22:0529(56)CA - Air Force, HQs Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1986 FLRAdec CA

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[ v22 p529 ]
22:0529(56)CA
The decision of the Authority follows:


 22 FLRA No. 56
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS AIR FORCE LOGISTICS 
 COMMAND, WRIGHT-PATTERSON AIR 
 FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 214
 Charging Party
 
                                            Case No. 5-CA-30322
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority because of
 limited exceptions filed by the Respondent to the attached Decision of
 the Administrative Law Judge.  No exceptions were filed to the Decision
 and recommended Order of the Judge and they are not in dispute.  The
 sole issue raised it whether the Judge's denial of the Respondent's
 motion to revoke two subpoenas, requested by the General Counsel,
 requiring the appearance of an employee at certain phases of the hearing
 in this case should be affirmed.  The Respondent also filed a motion to
 consolidate this case with another which is currently pending before the
 Authority.
 
                  II.  Background and Judge's Conclusion
 
    Due to the geographical location of a large number of witnesses, the
 hearing in this case was held at three sites:  Dayton, Ohio;  Oklahoma
 City, Oklahoma;  and Macon, Georgia, respectively, An employee, Paul
 Palacio, was subpoenaed, at the request of the General Counsel, to
 appear at each site.  At all relevant times, Palacio was President of
 the Charging Party and assigned to the Wright-Patterson Air Force Base,
 Dayton, Ohio.  At the opening of the Dayton phase of the hearing, the
 Respondent moved that the Judge revoke Palacio's subpoenas for the
 Oklahoma City and Macon phases of the hearing on the ground that the
 employee's testimony was not relevant to the proceeding at these
 locations.  The Judge questioned the General Counsel and Palacio
 concerning the necessity for the employee's testimony at these sites and
 considered the Respondent's response.  After hearing the arguments, the
 Judge denied the Respondent's motion to revoke, stating:
 
          I recognize . . . that in deciding whether a witness is
       necessary, I am not to superimpose my judgement for that of
       counsel trying a case.  That counsel may have another witness that
       may or may not serve the same purpose.  I don't think if the
       witness requested is reasonably related that I can say, no, I'm
       going to make you use someone else.  I don't think my authority
       goes that far.  I am going to revoke the subpoena, but I will
       permit the subpoena to stand, because I think that Mr. Palacio is
       -- may reasonably be expected to have relevant information that
       can be admissible with respect to what happened at these other
       bases (Dayton Tr. 20-21).
 
    With respect to the allegations of the complaint, the Judge concluded
 that the Respondent, by the conduct of certain supervisors, violated
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute) by unilaterally implementing a quota
 system for rating employees under the Civilian Potential Appraisal
 System (CPAS) during the 1983 rating cycle, without giving the Charging
 Party notice of, and an opportunity to bargain over, procedures and
 appropriate arrangements for employees adversely affected by the change.
 
                      III.  Positions of the Parties
 
    In its exceptions, the Respondent only takes issue with the Judge's
 denial of its motion to revoke two subpoenas, requested by the General
 Counsel, requiring Paul Palacio, an employee, to appear at the Oklahoma
 City, Oklahoma and Macon, Georgia sites of the hearing.  More
 particularly, the Respondent argues that the Judge's determination that
 Palacio was a necessary witness constituted an abuse of his discretion.
 In support of such contention the Respondent essentially asserts that:
 (1) the General Counsel's basis for subpoenaing Palacio was vague;  (2)
 the employee possessed only hearsay knowledge of the allegations
 litigated at the two sites;  (3) local union officers were available and
 suitable as witnesses for the General Counsel;  and (4) Palacio
 testified concerning his first-hand knowledge of the case during the
 Dayton phase of the hearing.  Furthermore, the Respondent argues that
 the Judge's determination that Palacio was a necessary witness should
 have been subjected to a "reasonableness" test.  The Respondent also
 moved to consolidate this case with Case No. 5-CA-40259.
 
    In opposing the Respondent's exceptions, the General Counsel contends
 that the Respondent's brief misrepresented certain facts, and that the
 Judge's ruling must be affirmed because it is clearly supported by the
 Authority's Rules and Regulations as well as Authority precedent.  The
 General Counsel also opposed the Respondent's motion to consolidate.
 
                               IV.  Analysis
 
                         A.  Motion to Consolidate
 
    In its motion to consolidate this case with case No. 5-CA-40259,
 which is currently pending before the Authority, the Respondent
 essentially contends that:  consolidation would save time and money;
 the cases involve the same parties;  and the exceptions in each case are
 based upon the set of circumstances.  The General Counsel, in opposing
 the consolidation of cases, argues there is no evidence or reasonable
 expectation that the consolidation of these cases, at this stage of the
 proceeding, would result in a "cheaper and quicker" disposition of the
 cases, especially when separate hearings have already been held,
 different Judges' decisions rendered, and exceptions filed with the
 Authority.  Further, the General Counsel asserts that the unfair labor
 practice charges in the two cases are based on different circumstances
 which involve different and unrelated violations of the Statute.
 
    The Authority denies the Respondent's motion to consolidate.  In the
 Authority's view, there is no basis for concluding that, at this stage
 of the proceeding, the consolidation of Case No. 5-CA-30322 and Case No.
 5-CA-40259, which arose from unfair labor practice charges based upon
 different circumstances, would result in any savings in time and money
 to the parties or the Authority, or that such consolidation would result
 in q quicker disposition of these cases.
 
                            B.  Exceptions /1/
 
    With respect to the Judge's ruling at issue, in Norfolk Naval
 Shipyard, Portsmouth, Virginia, 5 FLRA 788 (1981), the Authority held
 that "once an unfair labor practice hearing has convened and before the
 close of the hearing, . . . the (Judge) has the power under the
 Authority's Rules and Regulations to determine, subject to review by the
 Authority, whether the participation of any employee in any phase of any
 proceeding before the Authority is necessary. . . ." /2/ Upon reviewing
 the record, the Authority notes, among other things, that a large number
 of individuals were tentatively scheduled to be called as witnesses by
 the Respondent;  that the Judge ascertained from the General Counsel
 that given the large number of witnesses and the uncertainty of their
 testimony, Palacio was needed as someone who "might be able to rebut
 their testimony," and that the Judge further ascertained from Palacio
 that he had been the individual who had dealt with management generally
 on the CPAS problem and was the individual who received complaints from
 the Changing Party's various regional and field representatives.  /3/ In
 view of these facts, the Authority finds that the evidence presented at
 the hearing, at the time of the Judge's ruling, demonstrates that the
 employee, as deemed by the Judge, was a necessary witness, and therefore
 the Judge did not abuse his discretion as alleged by the Respondent.
 Accordingly, the Judge's ruling in this regard is affirmed.
 
    In rejecting the Respondent's contention that a "reasonableness" test
 be applied to the Judge's determination, the Authority notes that it has
 previously considered but rejected the application of a "reasonableness"
 standard to a determination, by an appropriate Authority agent, than an
 employee's participation in a particular Authority proceeding is
 necessary.  See Department of the Treasury, Internal Revenue Service,
 Department of the Treasury, Internal Revenue Service, Jacksonville
 District, 15 FLRA 506 1984);  Department of the Treasury, Bureau of
 Alcohol, Tobacco and Firearms, 13 FLRA 558 (1983);  and Department of
 Health and Human Services, Social Security Administration, Great Lakes
 Program Service Center, 10 FLRA 510 (1982).
 
                              V.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudical error was
 committed, and thus affirms those rulings.  Specifically, the Authority
 affirms the Judge's ruling denying the Respondent's motion to revoke two
 subpoenas requiring the appearance of employee Paul Palacio at the
 Oklahoma City, Oklahoma, and Macon, Georgia phases of the hearing as the
 record supports the Judge's conclusion that the employee was a necessary
 witness.  Further, upon consideration of the Judge's Decision and the
 entire record, and noting particularly that no exceptions were filed to
 the Judge's Decision or his recommended remedy, the Authority adopts the
 Judge's findings, conclusions and recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority orders that
 the Department of the Air Force, Headquarters, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Changing the working conditions of employees exclusively
       represented by Council 214, American Federation of Government
       Employees, AFL-CIO, by using a numeric quota system of rating
       bargaining unit employees under the Civilian Potential Appraisal
       System, without first notifying the exclusive collective
       bargaining representative and bargaining, upon request, concerning
       procedures to be observed in implementing the system and
       appropriate arrangements for employees adversely affected.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Bargain in good faith, upon request, with Council 214,
       American Federation of Government Employees, AFL-CIO, concerning
       procedures to be observed im implementing any system for the use
       of quotas in appraising employees in competitive action appraisal
       programs, and concerning appropriate arrangements for employees
       adversely affected by such a system.
 
          (b) Require that the following supervisors reaccomplish any
       1983 CPAS ratings for all employees who were adversely affected by
       the use of a quota system, and certify that the CPAS no longer
       reflects any such adverse effect:
 
          At Wright-Patterson AFB, Ohio, Col. James Harvey, Jr., Lt. Col.
       Reginald P. Gibson, Captain Helen Brinerd, Joanne Wells, and
       Captain Joseph Zelasco;  at Hill AFB, Utah, Allen W. Meyer,
       Secundino Martinez, Neil Peterson, Russell Lawrence, Robert Parks,
       M.C. Hurd and James P. Kretzmann;  at Warner Robins AFB, Georgia,
       Gordon H. Brantley;  at McClellan AFB, California, Bernard T.
       Sakamoto, Jackson W. Lytal, Richard Steele, Lt. Col. John
       Peterson, John W. Huston, Beverly Woodward, Charles Richins, Gary
       C. Crowder, LaVelle Hopper, Horace Holmes and Robert Calvert;  and
       at Tinker AFB, Oklahoma, Clayton Branton, Billie Coughran, James
       Dyer, and Donald Basinger.
 
          (c) Post at its facilities at Wright-Patterson AFB, Ohio, Hill
       AFB, Utah, Warner Robins AFB, Georgia, McClellan AFB, California,
       and Tinker AFB, Oklahoma, copies of the attached Notice on forms
       to be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms, they shall be signed by the Commander, Air
       Force Logistics Command, or a designee, and shall be posted and
       maintained for 60 consecutive days thereafter in conspicuous
       places, including all bulletin boards and other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region V, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this order, as to what steps have been taken to comply with the
       order.
 
    Issued, Washington, D.C., July 11, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In connection with its exceptions, the Respondent requests the
 Authority to take official notice of certain evidence contained in Case
 No. 5-CA-40259 mentioned above.  The Authority, noting that the rulings
 and determination of the Judge were based upon the evidence presented in
 the proceeding before him, denies such request.
 
    (2) Section 2429.13 of the Authority's Rules and Regulations
 provides, in pertinent part, as follows:
 
          Section 2429.13 Official time
 
          If the participation of any employee in any phase of any
       proceeding before the Authority, including the investigation of
       unfair labor practice charges and representation petitions and the
       participation in hearings and representation elections, is deemed
       necessary by the Authority, the General Counsel, any
       Administrative Law Judge, Regional Director, Hearing Officer, or
       other agent of the Authority designated by the Authority, such
       employee shall be granted official time for such participation. .
       . .
 
    See also section 2429.7 of the Authority's Rules and Regulations
 which provides, in pertinent part, as follows:
 
          Section 2429.7 Subpenas.
 
          (d) (T)he . . . Administrative Law Judge . . . shall grant the
       request upon the determination that the testimony or documents
       appear to be necessary to the matters under investigation(.)
 
          (e) (T)he . . . Administrative Law Judge . . . shall revoke the
       subpena if the evidence the production of which is required does
       not related to any matter under investigation or in question in
       the proceedings(.)
 
    (3) The record reveals that the General Counsel later informed the
 Judge that Palacio would not appear at the Macon phase of the hearing.
 
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION and ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT change the working conditions of employees exclusively
 represented by Council 214, American Federation of Government Employees,
 AFL-CIO, by using a numeric quota system for rating bargaining unit
 employees under the Civilian Potential Appraisal System without first
 notifying the exclusive collective bargaining representative and
 bargaining, upon request, concerning procedures to be observed in
 implementing the system and appropriate arrangements for employees
 adversely affected.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise or their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL bargain in good faith, upon request, with Council 214,
 American Federation of Government Employees, AFL-CIO, concerning
 procedures to be observed in implementing any system for the use of
 quotas in appraising employees in competitive action appraisal programs,
 and concerning appropriate arrangements for employees adversely affected
 by it.
 
    WE WILL require that the following supervisors reaccomplish