44:1095(89)CA - - DOT, FAA, SW Region, Airways Facilities Sector, Austin, TX and David McFarlin - - 1992 FLRAdec CA - - v44 p1095



[ v44 p1095 ]
44:1095(89)CA
The decision of the Authority follows:


44 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

SOUTHWEST REGION

AIRWAYS FACILITIES SECTOR

AUSTIN, TEXAS

(Respondent)

and

DAVID MCFARLIN

(Charging Party)

6-CA-01217

(43 FLRA 1581 (1992))

ORDER DENYING REQUEST FOR RECONSIDERATION

April 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before us on a request for reconsideration of 43 FLRA 1581 (1992) filed by the Charging Party under section 2429.17 of our Rules and Regulations. The Respondent did not file an opposition to the request. Because the Charging Party fails to establish that extraordinary circumstances exist warranting reconsideration of our decision, we will deny the request.

II. The Decision in 43 FLRA 1581

In 43 FLRA 1581, the Authority adopted the findings, conclusions and recommended Order of the Administrative Law Judge and found that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it told the Charging Party that he was not selected for promotion and when it failed to promote him. The complaint had alleged that the Respondent took these actions because of the Charging Party's membership in and activities on behalf of the Professional Airways Systems Specialists Union.

After an extensive review of the record, the Judge concluded that the Respondent's official had not made the statement he was alleged to have made to the Charging Party when discussing why the Charging Party had not been selected for the promotion. The Judge further concluded that a preponderance of the evidence did not support the allegation that the Charging Party was not selected because of his protected activity. Rather, he found that, although the Respondent had acknowledged that the Charging Party was a highly qualified candidate, the Respondent had selected two candidates who were better qualified for the position.

Both the General Counsel and the Charging Party filed exceptions to the Judge's decision. Those exceptions disputed the Judge's credibility findings and his factual and legal conclusions based on those findings. After a careful examination of the record, the Authority concluded that there was no basis on which to reverse the Judge's credibility findings. Accordingly, we denied the exceptions and adopted the Judge's findings, conclusions and recommended Order.

III. Charging Party's Request for Reconsideration

The Charging Party states that there are extraordinary circumstances meriting review because the Authority's decision in 43 FLRA 1581 did not specifically address the various exceptions made by the General Counsel and the Charging Party, but, rather, was merely a "rubber stamp" of the Judge's decision. Motion for Reconsideration at 1. The Charging Party also argues that the Judge's credibility rulings were not relevant to a determination as to whether the Respondent violated section 7116(a)(2), and that the Authority erred by not addressing certain of the General Counsel's exceptions that did not refer to credibility rulings.

IV. Analysis and Conclusions

Section 2429.17 of our Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Charging Party has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 43 FLRA 1581.

When the Authority decides to adopt a judge's decision with little, or no, explanatory comment, it does so only after a full examination of the issues raised by the exceptions, including, where necessary to determine those issues, a careful review of the entire record on which the judge's decision was based. In so doing, the Authority is following established administrative procedure that permits an agency, when reviewing a decision of its administrative law judge, to adopt the judge's findings of fact and conclusions of law, without further elaboration of the factors on which it relies, if the judge has fully articulated the bases for those findings and conclusions. See, for example, NLRB v. Windsor Industries, Inc., 730 F.2d 860, 866 (2d Cir. 1984); Kenworth Trucks of Philadelphia, Inc. v. NLRB, 580 F.2d 55, 62-63 (3rd Cir. 1978). The Authority has followed this procedure in appropriate cases since its earliest decisions. For example, Department of the Army, Fort Bragg Schools, 3 FLRA 364 (1980). Thus, in determining that the exceptions filed in 43 FLRA 1581 raised only issues governed by the Judge's credibility findings and that, after reviewing the record, it found no basis for reversing those findings, the Authority was following its established practice in such cases. Accordingly, the Charging Party does not present extraordinary circumstances for reconsidering our decision in this respect.

Similarly, we reject the Charging Party's argument that we should reconsider our decision because we erred in concluding that the exceptions regarding the Judge's determination of the section 7116(a)(2) allegation were based on the Judge's credibility findings. Two of the General Counsel's exceptions contended that a preponderance of the evidence supported the finding of a violation of section 7116(a)(2) and that the Respondent had not met its burden of proving the contrary by a preponderance of the evidence. However, it is clear from the remainder of the General Counsel's exceptions and those filed by the Charging Part