United States, Department of the Air Force, 60TH Air Mobility Wing, Travis Air Force Base, California (Agency) and American Federation of Government Employees, Local 1764, AFL-CIO (Union)

[ v59 p632 ]

59 FLRA No. 117

UNITED STATES
DEPARTMENT OF THE AIR FORCE,
60TH AIR MOBILITY WING
TRAVIS AIR FORCE BASE, CALIFORNIA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1764, AFL-CIO
(Union)

SF-CA-02-0660

_____

DECISION AND ORDER

February 13, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it temporarily detailed a lead clerk in its number two child development center (CDC #2) to a different CDC and changed her hours of work because she had filed grievances pursuant to the collective bargaining agreement. The Judge found that the Respondent violated § 7116(a)(1) of the Statute when it told the lead clerk that her detail resulted from her filing of grievances. Additionally, the Judge found that the Respondent violated § 7116(a)(2) of the Statute when it actually detailed the lead clerk based on her protected activity. As a result, the Judge ordered the Respondent to cease and desist from discriminating or retaliating against employees engaged in protected activity.

      For the reasons that follow, we affirm the Judge's determination that the Respondent violated § 7116(a)(1) and (2) of the Statute. [ v59 p633 ]

II.      Background

      The facts, set forth in the Judge's decision, are summarized here.

      The lead clerk is employed in one of three CDC's at Travis Air Force Base. As a lead clerk, the employee is responsible for opening up the center each morning, greeting parents, getting instructions on any medication needed for the children, ensuring proper staffing ratios throughout the day and collecting fees. The lead clerk reports directly to the director (supervisor) of CDC #2, who in turn reports to his immediate supervisor, a flight chief, and on occasion deals with the flight chief's supervisor, the squadron commander. Judge's Decision at 4.

      The Judge found that the lead clerk and her supervisor had a difficult relationship. Id. at 5 n.3. In this respect, the Judge noted that the lead clerk had been suspended for insubordination and was performing at an unsatisfactory level as of her last performance appraisal. Id. at 5 n.3.

      At the end of May, 2002, the supervisor sought a meeting with the squadron commander after learning that the lead clerk had just filed four grievances. Id. at 5, 7. In that meeting, the squadron commander recalled that the supervisor had informed him about the grievances filed by the lead clerk. Id. at 6. At the hearing the Judge asked the squadron commander whether the filing of these grievances was the reason that the supervisor had gone to talk to the squadron commander on that particular occasion. Transcript (TR) at 119. The squadron commander indicated that it was and that the grievances, as expressed by the supervisor, were the "last straw" that necessitated the May meeting to discuss the possibility of detailing the lead clerk. Id. at 119, 149.

      After the meeting, the squadron commander then met with the lead clerk. According to the lead clerk, the squadron commander told her that she would be detailed because there was a necessity to "clear the air" with respect to her grievances. Judge's Decision at 6. The Judge credited this testimony, even though he determined that the lead clerk's testimony may have been self-serving at times. Id. at 9. In this respect, the Judge noted that even the squadron commander acknowledged that he probably mentioned the grievances at the meeting to the lead clerk. Id. at 6.

      Finally, prior to any of these meetings, the Judge noted that the lead clerk was not definitively scheduled for detail to another CDC although such a detail had been discussed. Judge's Decision at 5, 7.

III.     Judge's Decision

      The Judge found that the Respondent violated § 7116(a)(1) of the Statute by telling the lead clerk that her detail was in response to her filing grievances. Additionally, the Judge found that the Respondent violated § 7116(a)(2) of the Statute when it actually detailed the lead clerk based on her protected activity. [n1] 

      In particular, the Judge determined that the lead clerk's filing of four grievances constituted protected activity under the Statute, and that the Respondent's decision to detail the lead clerk was at least in part a response to her filing grievances and, therefore, was discriminatory. In making this determination, the Judge noted the Authority's standard in Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny). Applying this standard the Judge concluded:

The evidence clearly shows that [the supervisor] went to see the [squadron commander] because of [the lead clerk's] grievances. [The squadron commander], in turn, knew that [the supervisor] considered the filing of the grievances to be the "last straw". [The squadron commander], by his own admission, ordered [the lead clerk] detail[ed] in order to defuse an explosive situation caused by [the supervisor's] distress over the grievances. That chain of events is sufficient to establish a prima facie case of discrimination.

Judge's Decision at 7.

      The Judge also rejected in relevant part, the Respondent's defense that it would have detailed the lead clerk in any event. The Judge found that even though the Respondent was contemplating a detail for the lead clerk, it had not decided to make a detail prior to May 28th, when the supervisor learned of the grievances. Thus, the Judge concluded that the Respondent had violated the Statute as charged, finding that:

The violation of § 7116(a)(1) was established by [the squadron commander's] statement to [the [ v59 p634 ] lead clerk] indicating that he was ordering her detail because she had filed grievances. The violation of § 7116(a)(2) arose out of the actual detail.

Id. at 8-9.

IV.      Positions of the Parties

A. Respondent's Exception

1.     The Judge Erred in Finding that the General Counsel Proved a Prima Facie Case of Discrimination

      The Respondent argues under Letterkenny that any alleged discriminatory action taken against an employee engaged in protected activity must be motivated in part based on the protected activity itself. Exceptions at 1. It argues that in light of the Judge's comment, "[the squadron commander] was a highly credible witness and I have accepted his assurances that his decision was in no way motivated by [the lead clerk's] grievances[,]" the lead clerk's engagement in protected activity did not result in the lead clerk being detailed. Id. at 2 (citing Judge's Decision at 6-7). As such, it contends that the Judge found no improper motivation, rather that the entire reason the lead clerk was detailed was because the squadron commander had to quickly act due to an emergency situation and because an open position in CDC #3 had recently become vacant. Id. at 2, 3 (citing Judge's Decision at 9-10).

2.     The Judge Failed to Allow the Respondent a"Meaningful Opportunity" to Rebut the General Counsel's Prima Facie Case of Discrimination

      Additionally, the Respondent contends that even if the GC had made out a prima facie case of discrimination under Letterkenny, the Judge denied it a meaningful opportunity to rebut this prima facie case. Exceptions at 3. In this respect, the Respondent contends that the Judge failed to consider facts that showed it had detailed the lead clerk for non-discriminatory reasons.

      Specifically, the Respondent argues that the Judge noted that the lead clerk's detail was under consideration prior to May and that the lead clerk was only detailed once a suitable open position became available. Id. at 4 (citing Judge's Decision at 5, 9). It also states that the Judge found that the squadron commander was not motivated by the grievances and determined that the detail was appropriate because it was an emergency situation. Id.

      As such, the Respondent contends that the squadron commander acted in good faith and his decision to detail the lead clerk was not pretext but justified. Id. at 5. Additionally, the Respondent asserts that given the emergency situation, especially because the lead clerk works in a day care center, its actions were based on "special circumstances" which made those actions justified. Id. at 5, 6 (citing United States Dep't of the Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, S.C., 56 FLRA 950, 953 n.5 (2000) (footnote attributable to then Member Cabaniss stating that "special circumstances" defense available to § 7116(a)(5) violations may also be available to matters pertaining to discrimination under § 7116(a)(2)). Accordingly, the Respondent argues, "[e]ven if the General Counsel had established a prima facie case of reprisal, the Respondent cannot be found to have violated 5 U.S.C. § 7116(a)(2) if there was a legitimate justification for the action and the same action would have been taken in any event." Exceptions at 6.

      Furthermore, the Respondent contends that the Judge's following remarks show that the Judge did not properly apply the Letterkenny framework:

It may well be true, as argued by the Respondent, that it would have been justified in detailing or permanently reassigning [the lead clerk] even if she had not engaged in protected activity. Nevertheless, the Respondent did not take action until after the grievances had been submitted and there can be no valid question that the Respondent's action was caused by the filing of grievances. It may also be true that another incident was bound to occur and that [the lead clerk's] permanent reassignment or detail was inevitable. However, that is conjectural. It does not matter that similar action might have been taken at an earlier or later date. The fact remains that the Respondent's action on May 30, 2002 was improper.

Id. at 7 (quoting Judge's Decision at 9). The Respondent argues that the Judge's "failure to properly consider whether Respondent would have moved [the lead clerk] is a clear misapplication of the 2-pronged rebuttal test under Letterkenny, and therefore, [the] Respondent was denied a meaningful opportunity to rebut the GC's prima facie case." Id. [ v59 p635 ]

3.     The Judge Erred in Finding that the General Counsel Proved its Case by a Preponderance                          of the Evidence

      Moreover, the Respondent argues that the GC ultimately has the burden of proving that it acted without justification in detailing the lead clerk. In this respect, it contends that the GC never disproved its assertion that the lead clerk was transferred on May 30th because a similar position had recently become available. Exceptions at 8-9 (citing Judge's Decision at 5). It argues that the motivation for detailing the lead clerk was not based on the filing of grievances. Id. at 9. Finally, it notes that the Judge never found its reason to detail the lead clerk as pretextual. Id.

4.     The Judge's Decision is Inconsistent With
His Credibility Determinations

      Additionally, the Respondent contends that the Judge erred when he determined the following:

[The lead clerk] testified that [the squadron commander] told her that the detail was intended to give [the supervisor] a chance to "clear the air" with regard to her grievances. [The squadron commander's] recollection of the conversation is less specific, but he acknowledged that he probably mentioned the grievances in his conversation with [the lead clerk]. Accordingly, I find as a fact that, in effect, [the squadron commander] told [the lead clerk] that she was being detailed because of her grievances.

Exceptions at 9 (citing Judge's Decision at 6).

      Specifically, the Respondent argues that the Judge erred by crediting the testimony of the lead clerk, which he had previously described as self-serving, while the squadron commander "merely recollects that he `probably' mentioned the word grievances at the meeting." Id. at 11 (citing Judge's Decision at 9.) In this respect, the Respondent notes that while the lead clerk had testified that she had "no knowledge" that she was going to be detailed prior to the May meeting, she nonetheless had solicited children's parents to write letters of character on her behalf in order to stay in her current position within CDC #2. Id. As such, it asserts that the Judge's determination as to what transpired in the meeting was not supported by credible evidence given that his decision was based on the unreliable testimony of the lead clerk. Therefore, it contends that in the absence of credible evidence, the Judge's finding is not supported by a preponderance of the evidence and, consistent with Authority precedent, must be overturned. Id. at 10-12 (citing United States Dep't of Commerce, National Oceanic and Atmospheric Admin., Nat'l Ocean Serv., Coast and Geodetic Survey Aeronautical Charting Div., Washington, D.C., 54 FLRA 987, 1007 (1998) (NOAA)).                                                       

5.     The Judge's Decision is Contrary to Law Because it Violates Management Rights UndeR 5 U.S.C. § 7106

      Finally, the Respondent contends that the decision by the Judge negates its ability to assign employees during emergency situations. As such, it contends that the decision is contrary to law because it precludes the Respondent from exercising its reserved management right to assign employees and act in emergency situations. Exceptions at 12, 13 (citing 5 U.S.C. § 7106).

B. General Counsel's Opposition

1.     The Judge Did Not Err in Finding that the General Counsel Proved a Prima Facie Case of Discrimination

      The General Counsel acknowledges that the Judge made statements in his decision that might raise "some confusion," but that after review of the entire decision it is clear that the Judge found that but for the lead clerk's filing of grievances, the lead clerk would not have been detailed when she met with the squadron commander. Opposition at 3 (citing Judge's Decision at 5, 7). As such, it argues that a prima facie case of discrimination under Letterkenny was established. Id.

2.     The Judge Did Not Fail to Allow the Respondent a "Meaningful Opportunity" to Rebut the General Counsel's Prima Facie Case of Discrimination

      Turning to the Respondent's next contention, the GC argues that the Respondent has misread the Judge's decision. In this respect, the GC contends that the Judge made it clear that the decision to detail the lead clerk at the May meeting was because the lead clerk had just filed grievances. Opposition at 4 (citing Judge's Decision at 9-10).

      As such, the GC argues that the Judge's decision is consistent with Authority precedent. Id. at 5 (citing Unites States Geological Survey and Caribbean District Office San Juan, Puerto Rico, 50 FLRA 548, 562 (1995); NOAA, 54 FLRA 987. It notes that "the Authority has faced and rejected attempts to defend discriminatory conduct by reliance on action that had merely been considered prior to the protected activity." Opposition at 5. Moreover, it disputes the Respondent's assertion that the Judge determined that it would have detailed the [ v59 p636 ] lead clerk in any event, reiterating that the Judge found this claim to be "mere conjecture." Id. at 6-7 (citing Judge's Decision at 9).

3.     The Judge Did Not Err in Finding that the General Counsel Proved its Case by a Preponderance of the Evidence

The General Counsel states:
Respondent contends that [the Judge] did not properly apply the legal framework required by Letterkenny in making his decision. This is merely a repeat of the arguments raised in the first two exceptions.

Opposition at 7.

4.     The Judge's Credibility Determinations Do Not Undermine His Decision

      Turning to the Respondent's fourth contention, the GC argues that the Judge's determination is supported by both the testimony of the lead clerk and the testimony of the squadron commander. The GC contends that while the lead clerk specifically stated at the meeting she was told by the squadron commander the detail was directly related to the filing of these grievances, the squadron commander could not remember in what context he mentioned the grievances. Opposition at 8, 9 (citing Tr. 42, 129, 133, 134). As such, the GC argues that the Judge's determination to credit the testimony of the lead clerk and find that indeed this conversation occurred is supported by the record. Id. at 9. Accordingly, the GC contends that "there is no basis for concluding that a clear preponderance of all relevant evidence demonstrates that the Judge['s] determination was incorrect." Id.

5.     The Judge's Decision Is Not Contrary to Law

      With respect to the Respondent's final contention, the GC argues that there was no emergency situation and that 5 U.S.C. § 7106(a) does not limit the Authority's ability to issue remedial orders for unfair labor practice cases. Opposition at 9, 10 (citing Federal Bureau of Prisons, Washington, D.C., 55 FLRA 1250, 1256 (2000) (BOP, Washington) (then-Member Cabaniss dissenting as to other matters).

V. Analysis and Conclusions

A.     The Judge Did Not Err in Finding that the General Counsel Proved a Prima Facie Case of Discrimination

      The Judge correctly applied the framework established by the Authority in Letterkenny, 35 FLRA 113 (1990) for resolving complaints of alleged discrimination in violation of § 7116(a)(2) of the Statute. Under that framework, the GC establishes a prima facie case of discrimination by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee. Once the GC makes the required prima facie showing, an agency may establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity. United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Ctr., Charleston, S.C., 58 FLRA 44, 47 (2002) (Johnson Medical Ctr.).

      With respect to the first prong, the Respondent does not contend that the lead clerk's action in filing grievances was not protected activity.

      Turning to the second prong, as stated above, in order to establish a prima facie case of discrimination the GC must show that the protected activity was a motivating factor in the Respondent's treatment of the lead clerk. Here, the Judge determined that the reason the supervisor went to see the squadron commander in May was because of the lead clerk's grievances. This factual finding of the Judge is corroborated by the testimony of the squadron commander:

Judge: Did you [squadron commander] at the time [the supervisor] came to see you -- well, did [the supervisor] mention that he had -- that [the lead clerk] had filed grievances against him?
[Squadron Commander]: Yes, sir.
Judge: Did he [the supervisor] somehow say -- I mean did he give you the impression that this was sort of, to use a cliche, as far as he was concerned, the straw that --
[Squadron Commander]: Broke --
Judge: -- broke the camel's back?
[Squadron Commander]: Yes, sir. [ v59 p637 ]
Judge: That that had put -- that -- now after all this, now she's filed grievances against me and I just can't -- something's got to be done in effect
[Squadron Commander]: Yes, sir.

Tr. at 119.

      In addition to the foregoing testimony, the squadron commander also testified that he detailed the lead clerk because he had an opening in CDC #3 and because he had an "explosive situation between two individuals that [he] need[ed] to solve." Tr. at 121. However, the Judge specifically found, and the Respondent does not except to this finding, that the "explosive situation" was caused by "distress over the grievances." See 5 C.F.R. § 2423.40(a)(1) (requiring a party to specifically except to a Judge's "findings") and 2423.40(d) (waiving any exception not specifically argued); Judge's Decision at 7. Moreover, the squadron commander was unable to rule out that the grievances affected his decision to detail the lead clerk. Tr. at 121. In these circumstances, the Judge's findings that the decision to detail the lead clerk was not made until after the discussion between the squadron commander and the supervisors and that the grievances were a motivating factor in the decision are supported by the record as a whole. Accordingly, the Judge did not err in applying the Letterkenny framework and finding that the GC established a prima facie showing of unlawful discrimination.

B.     The Judge Did Not Fail to Allow the Respondent a "Meaningful Opportunity" to Rebut the General Counsel's Prima Facie Case of Discrimination

      Under the Authority's Letterkenny analysis, once the GC makes the required prima facie showing of discrimination, an agency may establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of protected activity. Johnson Medical Ctr., 58 FLRA at 47; Letterkenny, 35 FLRA at 118.

      Here, the Respondent asserts that its justification for detailing the lead clerk on May 30, 2002 was based on an emergency situation and that it would have taken this action regardless of the lead clerk's grievances. However, given that the Judge's determinations are supported by the record as a whole, we find that the Judge's decision was not in error.

      The record indicates that in May the lead clerk filed four grievances with the Respondent. Judge's Decision at 3; GC's Opposition at 6. Shortly thereafter, the lead clerk's supervisor sought a meeting with the squadron commander. Judge's Decision at 3. According to the commander's testimony, at the meeting the grievances were raised by the supervisor and it was expressed by the supervisor that those grievances were weighing heavily upon him. In fact, the squadron commander testified that he believed the grievances were what set in motion the supervisor's request in May to discuss the situation involving the lead clerk. [n2] Additionally, on the very same date the meeting occurred, the squadron commander signed a memorandum notifying the lead clerk that she was to be detailed to CDC #3. GC's Exhibit 2.

      The Judge stated that "[t]here can be no legitimate doubt that [the lead clerk's] unscheduled detail was caused by the filing of her grievances." Judge's Decision at 7. The Respondent disagrees, asserting that the detail occurred because of a possible "explosive" situation. Exceptions at 5. However, the Respondent does not except to the Judge's finding that the "explosive" situation was caused by "distress over the grievances." Judge's Decision at 7. Accordingly, the Respondent's argument does not establish that it would have detailed the lead clerk even without considering her protected activity. [n3] 

      However, even if the detail was justified on the basis of a cooling-off period between the lead clerk and her supervisor, based on the matters occurring prior to the filing of the grievances, the Judge's finding that the evidence demonstrated that the squadron commander decided to detail the lead clerk only after the supervisor complained about her grievances is supported by the record as a whole. While some discussion about detailing the lead clerk took place prior to May 30, 2002, there is no evidence that a decision to detail her prior to her filing grievances was made. Rather, the reason the [ v59 p638 ] lead clerk was detailed was, as stated by the squadron commander and found by the Judge, to either avoid an explosive situation caused by her engaging in protected activity, or simply because of her decision to file grievances. Accordingly, in the absence of evidence showing that the detail was going to take place irrespective of the lead clerk's grievances, the Respondent's affirmative defense fails. See NOAA, 54 FLRA at 994-95, 1019; Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth, N.H., 17 FLRA 773, 781-82 (1985) (Authority upheld the decision of an ALJ rejecting the respondent's contention that an employee, who was troublesome for at least a year and a half and was transferred shortly after engaging in protected activity, would have been transferred anyway because such transfer had been previously discussed).

      Finally, the Respondent contends that it did not commit an unfair labor practice because the emergency situation in this matter is akin to a "special circumstance" justification in 5 U.S.C. § 7116(a)(5) violations. However, here we have noted through our analysis above, that the emergency situation was actually directly related to the supervisor's distress over the lead clerk's engagement in a protected activity and we find no basis to consider the Respondent's special circumstances argument further.

C.     The Judge Did Not Err in Finding that the General Counsel Proved its Case by a Preponderance of the Evidence

      Under Authority precedent, in cases alleging discrimination under § 7116(a)(2) of the Statute, "the GC has the overall burden of establishing the violation by a preponderance of the evidence on the record as a whole." Johnson Medical Ctr., 58 FLRA at 47; Letterkenny, 35 FLRA at 119. In this respect, the Authority has stated that, "even if the General Counsel makes the required prima facie showing, it is necessary to determine whether the General Counsel has proved the allegation in the complaint by a preponderance of the evidence." Id.

      Here, the Respondent again asserts that the decision to detail the lead clerk was not motivated by her decision to file grievances. Additionally, it states that the Judge found no pretext and that it had two lawful justifications, i.e., the vacancy and the emergency situation, that warrant showing that even if a prima facie case was made by the GC, the GC did not prove its violation by a preponderance of the evidence. We disagree.

In Letterkenny we stated:
If, in response to a prima facie case established by the General Counsel, the respondent offers evidence, it is necessary to determine whether the respondent's evidence rebuts the General Counsel's prima facie showing. This determination is made on the basis of the entire record, including any evidence the General Counsel offers in rebuttal to the respondent's showing. If the respondent rebuts the General Counsel's prima facie showing by a preponderance of the evidence, thereby establishing that it would have taken the allegedly unlawful action even in the absence of protected activity, the General Counsel has not established a violation of the Statute.

Id. at 119.

      Here, the Judge found that the evidence offered by the Respondent did not rebut the GC's prima facie case. In dismissing the Respondent's claims to the contrary, the Judge stated, "[n]evertheless, the Respondent did not take action [the detail] until after the grievances had been submitted and there can be no valid question that the Respondent's action was caused by the filing of the grievances." Judge's Decision at 9.

      Based upon our review of the Judge's findings and record as a whole, we find that the Respondent has failed to rebut (or prove its affirmative defense to) the GC's prima facie case. As such, we find that the Judge did not err in either his application of the Letterkenny framework, or in his decision to find the § 7116(a)(2) violation proven.

D.     The Judge's Credibility Determinations Do Not Undermine His Decision

      As noted by the parties, the Authority has previously found that credibility determinations may be based on a variety of considerations. Such considerations may include, but are not limited to: (1) the witness's opportunity and capacity to observe the event in question; (2) the witness's character as it relates to honesty; (3) prior inconsistent statements by the witness; (4) the witness's bias or lack thereof; (5) the consistency of the witness's testimony with other record evidence; (6) the inherent improbability of the witness's testimony; and (7) the witness's demeanor. NOAA, 54 FLRA at 1006 n.11; Hillen v. Department of the Army, 35 MSPR 453, 458 (1987). Where a party raises exceptions to credibility determinations based on considerations other than witness demeanor, the Authority will review those determinations based on the record as a whole. United States Dep't of the Air Force, Seymour [ v59 p639 ] Johnson Air Force Base, 57 FLRA 772, 774 (2002). However, the Authority will generally attach even greater weight to a judge's credibility determination that is based on witness demeanor as the Judge has had the benefit of observing the witness while they testify. NOAA, 54 FLRA at 1007. We will not overrule a Judge's credibility determination based on demeanor unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Ala., 50 FLRA 51 (1994).

      The Judge found that the squadron commander commented directly to the lead clerk that the grievances led to the detail. Judge's Decision at 6. This is supported by the testimony of the lead clerk, who testified that the squadron commander told her that the details were necessary to clear the air because of the grievances. Id.; Tr. at 42. Moreover, the squadron commander did not deny that he made that statement; the squadron commander was unable to recall the exact context in which he mentioned the grievances to the lead clerk. Tr. 129. In these circumstances, whether the Judge's finding was based on demeanor or other credibility considerations, it is properly supported by either the record as a whole or a clear preponderance of all the relevant evidence, and we reject the Respondent's exception to the contrary.

E.     The Judge's Decision Is Not Contrary to Law

      Upon review of the Respondent's final argument, we note that the Judge's decision does not limit the Respondent's ability to assign employees. Rather, the Judge directed the Respondent to refrain from assigning employees or taking other actions that are motivated in whole or in part because of discrimination or retaliation towards an employee who has engaged in protected activity. Judge's Decision at 10.

      Moreover, the Authority has previously found that "the Statute provides the Authority the discretion to fashion remedies as long as such remedies are consistent with the purposes and policies of the Statute" even where such remedies may otherwise impact a management right under § 7106(a)(2). BOP, Washington, D.C., 55 FLRA at 1256 (then-Member Cabaniss dissenting on other grounds). In this respect, the Authority has found that § 7106(a) limits the scope of bargaining rather than limiting the Authority's ability to issue remedial orders pursuant to 5 U.S.C. § 7118(a)(7). Id. at 1256-58. Accordingly, we find that the Judge's decision limiting the Agency's ability to commit unfair labor practices by precluding it from engaging in discriminatory or retaliatory assignments is not contrary to law.

VI.      Order

      Pursuant to 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (Statute), the United States Department of Air Force, 60th Mobility Wing, Travis Air Force Base, California shall:

      1.     Cease and desist from:

           (a)     Discriminating or retaliating against employees in the collective bargaining unit represented by the American Federation of Government Employees, Local 1764, AFL-CIO, by assignment of temporary details or by any other means, because they have submitted grievances or have otherwise engaged in protected activity within the meaning of the Statute.

           (b)     Making statements that interfere with, restrain or coerce employees in their exercise of activities protected by the Statute.

           (c)      In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights assured by the Statute.

      B.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Post at facilities where employees assigned to its Child Development Centers report to work 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 Respondent's Commander 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.

           (b)      Pursuant to § 2423.41(e) of our Regulations, notify the Regional Director of the San Francisco Region of the Federal Labor Relations Authority, in writing within 30 days of the date of this Order, as to what steps have been taken to comply. [ v59 p640 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OR
THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Air Force, 60th Air Mobility Wing, Travis Air Force Base, California violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify employees that:

WE WILL NOT discriminate or retaliate against employees in the collective bargaining unit represented by the American Federation of Government Employees, Local 1764, AFL-CIO, by the assignment of temporary details or by any other means, because they have submitted grievances or have engaged in other protected activity within the meaning of the Statute.

WE WILL NOT make statements that interfere with, restrain or coerce employees in their exercise of activities protected by the Statute.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights assured by the Statute.

  ________________________
 (Agency)

Dated: ______________  By: __________________
                                              (Signature) Commander

This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 356-5002.


File 1: Authority's Decision in 59 FLRA No. 117
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 117 - Authority's Decision

   Section 7116(a)(1) and (2) reads as follows:

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency --

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment[.]

Footnote # 2