38:0039(7)CA - - Air Force, Nellis AFB, NV and AFGE Local 1199 - - 1990 FLRAdec CA - - v38 p39

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38:0039(7)CA
The decision of the Authority follows:


38 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

NELLIS AIR FORCE BASE, NEVADA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1199

(Charging Party)

9-CA-80020

DECISION AND ORDER

November 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by making certain remarks to a unit employee that interfered with, restrained and coerced employees in the exercise of their rights under the Statute, as alleged in the complaint. The Judge recommended that the Respondent cease and desist from such practices, and take certain affirmative action. The Respondent filed exceptions to the Judge's decision, and the General Counsel filed an opposition to the Respondent's exceptions.

The Respondent excepts to the credibility resolution of the Judge on which his findings of fact are based. In the alternative, the Respondent excepts to certain rulings made by the Judge in connection with his credibility resolution.

The Respondent argues that the credibility resolution should be overruled, because, it asserts, the Judge made no analysis of the factors on which his determination is based. In this regard, the Respondent relies on Hillen V. Department of the Army, 35 M.S.P.R. 453 (1987). The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified.

We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We see no reason to depart from that approach in this case. We have examined the record carefully, and find no basis for reversing the Judge's credibility findings. U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 34 FLRA 247 (1990).

Further, the Respondent's exceptions to various rulings made by the Judge all concern the Respondents' attempt to discredit the General Counsel's witness. For example, the Respondent alleges that the Judge improperly refused to permit it to question the witness about an alleged misrepresentation the witness had made in a document. The Respondent asserts that the Judge refused to permit the questioning "apparently because [the Judge] believed that would also waste his time." Respondent's brief at 15. To the contrary, the record discloses that the Judge upheld the General Counsel's objection to the introduction of the document on the ground that the document had not been given to the General Counsel prior to the hearing as required by section 2423.14(a) of the Authority's Rules and Regulations. Transcript (Tr.) at 38-9.

The Respondent also excepts to a ruling by the Judge that allegedly prevented it from eliciting evidence about the witness's capacity to observe and recollect the events that were the subject of the complaint. However, evidence bearing on the witness's capacity was already on the record when the Judge sustained the General Counsel's objection to the further introduction of such evidence on the ground of relevance, adding, "I won't permit this. I think you've gone far beyond what's relevant here." Tr. at 33-4. In view of the fact that evidence bearing on the witness's capacity was already on the record and the Judge did not order that evidence to be struck from the record, we view the Judge's comment as an indication of the weight he intended to give such evidence. The Respondent's real argument is with the Judge's refusal to find that the witness's emotional state indicated that her capacity to observe was diminished.

The other rulings excepted to by the Respondent also relate to attempts to impeach the credibility of the General Counsel's witness. As we have noted, we will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. In our view, none of the rulings made by the Judge warrant overruling the Judge's ultimate credibility determination.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. Consistent with the foregoing discussion we find that no prejudicial error was committed and we affirm the rulings.

Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended order.

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, we order that Department of the Air Force, Nellis Air Force Base, Nevada, shall:

1. Cease and desist from:

(a) Interfering with, restraining, or coercing its employees by telling them they are marked as persons who have gone to civilian personnel and the Uni