[ v11 p303 ]
The decision of the Authority follows:
11 FLRA No. 65 DEPARTMENT OF THE AIR FORCE, 438th AIR BASE GROUP (MAC), MCGUIRE AIR FORCE BASE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO Charging Party Case No. 2-CA-274 DECISION AND ORDER The Administrative Law Judge issued the attached Recommended Decision in the above-entitled proceeding, finding that the unfair labor practice complaint alleging a violation of section 7116(a)(1), (2) and (4) of the Federal Service Labor-Management Relations Statute (the Statute) be dismissed in its entirety. The Charging Party filed exceptions to the Judge's Decision, and the Respondent filed an opposition to such exceptions. 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 and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations. /1A/ ORDER IT IS ORDERED that the complaint in Case No. 2-CA-274 be, and it hereby is, dismissed. Issued, Washington, D.C., February 10, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Nicholas J. Angelides, Esquire James L. Linsey, Esquire For the Respondent James E. Petrucci, Esquire Margaret A. Sipser, Esquire For the General Counsel, FLRA Herman A. Winters, Jr. For the Charging Party Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This case arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), as a result of an unfair labor practice complaint filed by the Regional Director, Region Two, Federal Labor Relations Authority, New York, New York, against the Department of the Air Force, 438th Air Base Group (MAC), McGuire Air Force Base (Respondent), based on a charge filed by the American Federation of Government Employees, Local 1778, AFL-CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1), (2), and (4) of the Statute by issuing two negative supervisory potential evaluations to employee Keith Van Laarhoven. One evaluation was issued on July 23, 1979 by Supervisor Nagel, and the other was issued on August 8, 1979 by Supervisor Potts. /1/ Respondent denied that the evaluations were issued in violation of the Statute. A hearing was held in this matter at McGuire Air Force Base, New Jersey. The Respondent and the General Counsel, FLRA were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record herein, including my observation of the witnesses and their demeanor, the exhibits and other relevant evidence adduced at the hearing, and the briefs, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact The Charging Party is, and at all relevant times has been, the exclusive bargaining representative of an appropriate unit, consisting of wage grade and general schedule employees, with certain exceptions, serviced by the base civilian personnel office at McGuire AFB, New Jersey. Pursuant to Executive Order 11491, as amended, Respondent and the Union entered into a collective bargaining agreement on August 9, 1977, for a term of three years, thus, governing the relationship between the parties during the periods relevant to this case. (Joint Ex. 1). Keith Van Laarhoven, the alleged discriminate, is an aircraft mechanic who has worked at Respondent's New Jersey facility for about eight years. (Tr. 8). During this period, Van Laarhoven worked for various supervisors; and at the times most material herein, was under the direct supervision of Klaus Nagel. Specifically, Nagel supervised his work in 1977 and again from May 1978 until October 1979. (Tr. 75). During the period January 1979 through October 1979 Master Sergeant Ronald Potts was the Flight Chief of "A" Flight, was Nagel's supervisor, and was, therefore, the second level supervisor of Van Laarhoven. (Tr. 197). Van Laarhoven has been a Union member for about eight years and has held the position of executive vice-president for the Union since about April 1979, after serving one year as vice-president. Before that, he served as a shop steward for about one and a half years. (Tr. 8, 9, 58). In these capacities he has used official time to represent the Union and unit employees while working on unfair labor practices, grievances, equal employment opportunity cases, and negotiations. (Tr. 9). Supervisors Nagel and Potts were generally aware of Van Laarhoven's union activities. (Tr. 109-111, 219-220). Respondent utilizes a system of annual performance appraisals prepared by supervisors for each employee under his/her supervision. The appraisal form consists of 19 area of employees performance during the prior year, to which the supervisor assigns a letter rating from "A" through "G". The specific meaning of each letter designation is as follows: A - Almost no supervision required B - Much less supervision than others at his or her grade level C - Somewhat less supervision than others at his or her grade level D - About the same amount of supervision as others at his or her grade level E - Somewhat more supervision than others at his or her grade level F - Much more supervision than others at his or her grade level G - Constant supervision because the employee is just learning this aspect of his or per position Van Laarhoven's annual appraisal, prepared by Nagel in February 1977, showed four (4) "A", three (3) "B), six (6) "C" and six (6) "D" ratings, with no ratings below average. Included among those areas where Van Laarhoven was considered much better than average or higher (A or B rating) were: "Attention to details and close accuracy" (B), "reliability of work habits and dependability in attendance" (A), "following instructions, regulations and directives" (B), and "minimizing risks by applying safety practices" (A). (General Counsel's Ex. 6). His February 1978 appraisal, prepared by Master Sergeant Doss, showed four (4) "A", five (5) "B", and ten (10) "C" ratings, all above average. He was again given the highest rating for "reliability of work habits and dependability in attendance" (A), "minimizing risks by applying safety practices" (A), as well as others; and was elevated to a much better than average rating in "planning and accepting work priorities" (B). (General Counsel's Ex. 7). At the end of January 1979, Supervisor Nagel prepared Van Laarhoven's last annual appraisal prior to the supervisory potential appraisal at issue herein. The 1979 evaluation showed six (6) "A", seven (7) "B" and six (6) "C" ratings, all above average. Included among the foregoing were elevation to the highest rating in "attention to details and close accuracy" (A) and "following instructions, regulations and directives" (A). Similarly, Van Laarhoven's ratings in "accepting authority and direction from others" (B) and "willingness to try new techniques and adjust to changing requirements and conditions" (B) were raised to much better than average as compared with prior ratings. (General Counsel's Ex. 8). Van Laarhoven was directly in involved in the filing of unfair labor practice charges against Respondent in April 1979 alleging that supervisor Nagel improperly denied official time for Van Laarhoven to perform representational activities. (Tr. 9, 10; General Counsel's Ex. 2). He provided the FLRA agent with an affidavit concerning this charge on official time. (Tr. 11). Van Laarhoven was also involved with a charge filed on August 1, 1979 concerning Respondent's failure to bargain about a change in the procedures for issuing radios to aircraft tow teams. (Tr. 12-17; General Counsel's Ex. 3). Several weeks prior to the events herein, Van Laarhoven approached Potts to ask if there was some way he could correct the apparent adversary relationship between himself and Nagel. He noted that there was "a lot of uneasiness; there's a lot of charges," and asked how they could improve labor relations. Potts responded: "Well, we'll solve it when we fire you." (Tr. 35, 60). /2/ In about May or June 1979 Van Laarhoven applied for a first-level supervisory position at McGuire AFB. /3/ (Tr. 17). Consequently, Nagel, Van Laarhoven's immediate supervisor, received instructions from the civilian personnel office to complete an AF Form 2455, "Supervisory Evaluation of Employee Potential for First Level Supervisory Position," on Van Laarhoven. (Tr. 76; General Counsel's Ex. 4). Nagel completed the evaluation, following the procedures reflected on the back of the form. (Tr. 76, 120). These instructions provided, in part, as follows: EVALUATION REQUIREMENTS The evaluation process involves making two ratings on each of six elements considered critical for first-level supervisory position. The first rating on each element is made of the employee potential to carryout the responsibility of the first-level supervisory position. For non-supervisory employees this represents the immediate supervisor's prediction of the employee's performance in the supervisory position. The second rating required for each element is the immediate supervisor's judgment of the frequency of which the employee performs the activity described by each element in his current position. Possible ratings of supervisory potential on the form ranged from "Outstanding" (A) to "Marginal" (E), while ratings for frequency of performance in current position ranged from "Frequent" (F) to "Never" (I). Nagel rated Van Laarhoven as having marginal supervisory potential, (E), in five of the elements (i.e. making appropriate decisions under stressful conditions, supporting organizational policy and reflecting desired image, accepting responsibility, delegating authority and accepting consequences, and motivating others through leadership capacity) and as average, (C), in the sixth (i.e. upholding the principles of social action programs such as EEO and upward mobility). With respect to frequency of performance in current position, two of the elements reflected performance as "Sometimes", (G), while four were marked "Never" (I). (General Counsel's Ex. 4). Nagel discussed his rating with Master Sergeant Potts, who agreed with the rating and signed it as the reviewing official. (Tr. 76, 198, 211). Nagel testified at hearing concerning his reasons for giving Van Laarhoven such a poor evaluation, as follows: 1. A reprimand for refusal to comply with an order to sign out tow team radios. (Tr. 89). 2. Tardiness. (Tr. 91). 3. Leaving a refueling operation without being properly relieved. (Tr. 92-94). 4. The fact that other employees allegedly did not want to work with Van Laarhoven. (Tr. 96-98). 5. Van Laarhoven's delay in starting work while preparing an unfair labor practice charge. (Tr. 99). 6. Towing aircraft too slowly. (Tr. 95). 7. Taking an unauthorized break on the way to obtain hardware. (Tr. 99). 8. IMPROPERLY GROUNDS AIRCRAFT FOR MINOR DISCREPANCIES. (Tr. 101). I credit the following testimony concerning these reasons: 1. Two Team Radios Just one month earlier, Van Laarhoven, while acting as tow team chief, refused to comply with Nagel's direct order to sign out radios to the tow team, complaining that the policy has not been negotiated with the Union. /4/ Another individual had to be appointed to perform the duty. (Tr. 86-89). Van Laarhoven's conduct resulted in a three-hour towing delay which had a bumping effect on aircraft maintenance operations. (Tr. 100). As a result, Van Laarhoven was given a letter of reprimand by Nagel. (Tr. 89; Respondent's Ex. 1). 2. Tardiness Van Laarhoven was often five to ten minutes late for work. Nagel had spoken to Van Laarhoven about being later numerous times and, at one time, made an entry regarding tardiness in Van Laarhoven's AF Form 971, the supervisor's record of employees. In accordance with an agreement Nagel made with Van Laarhoven, the entry was removed upon Van Laarhoven's improvement in reporting to work on time over a 90-day period. /5/ (Tr. 91, 92). 3. The Refueling Incident Van Laarhoven, while acting as a refueling supervisor in April 1979, walked away from a refueling operation one day about noon, stating he had had enough and was going to lunch. He had been approached by quality control personnel and advised that they wanted to evaluate the refueling operation. Van Laarhoven's conduct in walking off the job before being properly relieved brought the refueling operation to a halt until he could be replaced. (Tr. 92-94). /6/ 4. Views of Other Employees Nagel took into account comments he received from some of Van Laarhoven's fellow workers, military and civilian, who stated that they did not want to work with Van Laarhoven because he would not carry his own weight on the job. Nagel received such complaints from Mr. Vargas, A/1C Casole, and Earl Young. (Tr. 96-98). 5. Delaying Starting Work On an uncertain date, Nagel observed Van Laarhoven at the beginning of his shift writing what Van Laarhoven said was a report for a ULP. Nagel told Van Laarhoven that he should work on the aircraft, or else request time for union business, or sign for annual leave. (Tr. 99-100). 6. Towing Aircraft Too Slowly Nagel considered that Van Laarhoven was a slow worker. When periodically assigned as tow team chief, he performed very slowly, normally towing about two aircraft during an eight-hour shift where others would tow five to six aircraft. (Tr. 94, 95). Van Laarhoven acknowledged that whenever he could not tow by the check list, even for minor items, he would stop and seek authorization. (Tr. 52-53). 7. Unauthorized Break Nagel considered information received that Van Laarhoven has taken an unauthorized break while going to obtain small hardware. (Tr. 99). 8. Improperly Grounding Aircraft for Minor Discrepancies Nagel considered an occasion where he found that Van Laarhoven had improperly grounded an aircraft for minor discrepancies. The discrepancies were found to be within the limits established for safe aircraft operation. (Tr. 101-102). Nagel testified that, although he might have relied on incidents which occurred prior to February 1979 in evaluating Van Laarhoven's potential, those testified to at the hearing occurred between February 1979, and the July 79 evaluation. (Tr. 121-123). He did not make notes of these incidents (Tr. 123) and did not pursue disciplinary action against Van Laarhoven based upon them. (Tr. 126-127). Nagel attributed the acknowledged difference in the ratings between Van Laarhoven's February 1979 supervisory appraisal of current performance (General Counsel's Ex. 8) and the July 79 evaluation of Van Laarhoven's supervisory potential on the events which occurred after the February appraisal (Tr. 127-128) and to the radical change in Van Laarhoven's performance before and after February 1979. (Tr. 135). He further testified that the earlier performance ratings he had given Van Laarhoven (General Counsel's Ex. 6 and 8), were inflated, as were all such ratings at McGuire, and were really no better than average. There were lower than appraisals given to his other employee's, and, in his opinion, were insufficient to warrant promotion. (Tr. 135-136). Nagel also acknowledged that the incidents considered were not limited to those which he personally observed, but were also based upon information, which he believed truthful, which was supplied by others. (Tr. 134). Nagel had previously prepared a supervisory potential evaluation on another Union official. In February 1979, Nagel prepared an evaluation of supervisory potential (Respondent's Exhibit 2) and two supervisory appraisals of current performance in January 1979 and January 1980 (Respondent's Ex. 3 and 4) for Mr. Dennis Abplanalp, who was also a vice president of the Union. Mr. Abplanalp was given outstanding ratings by Mr. Nagel on these occasions. Abplanalp was active in the Union, had filed a grievance against Nagel, and had also used official time off for union activities. (Tr. 102-106). Respondent's summary of official time given to Union officials for representational activities reflects that Abplanalp was granted 282 hours while Van Laarhoven was granted 772 hours during 1979. (Tr. 279-283; Respondent's Ex. 6). When Van Laarhoven received the evaluation for supervisory potential from Nagel, he protested the very low ratings, refused to sign the appraisal, and stated that he was seeking Union assistance. He did so, and Union Representative Castellano was assigned to the matter. After discussing the situation with Van Laarhoven, Castellano visited Master Sergeant Potts, the reviewing official for the appraisal Nagel had prepared and Nagel's immediate supervisor. (Tr. 20, 145). Castellano informed Potts that it was his opinion that Nagel could not give Van Laarhoven an unbiased evaluation since Van Laarhoven was involved with unfair labor practices and grievances against Nagel. He asked Potts to re-do the evaluation. Potts agreed. Potts and Castellano thereupon signed a written agreement on July 26, 1979 which stated as follows: It was agreed today that MSgt. Potts will give Mr. Van Laarhoven a Supervisory Evaluation without the influance (sic) of Mr. Nagle (sic). This Evaluation will be given within two days of this letter. (General Counsel's Ex. 10; Tr. 146). On August 8, 1979, Potts met with Van Laarhoven and Castellano, told them he had re-done the evaluation as per his agreement with the Union, and presented it to them. (Tr. 22, 148, 201). The men quickly reviewed the appraisal and saw that it was identical to the one prepared by Nagel except in one category where Potts had moved the rating for "Frequency of Performance In Current Position" from "Never" to "Infrequently." (General Counsel's Ex. 5). The men protested, demanded justification, and a detailed review ensued of Potts' asserted reasons for each rating. The meeting lasted for one to two hours. (Tr. 148, 22, 201). In the course of the meeting, Van Laarhoven confronted Potts with his statement made several weeks earlier, in which he stated his view that labor relations and the tension with Nagel would be "solved" when Van Laarhoven was fired. According to Castellano, Potts said he had only been joking. Castellano reproached Potts, saying that the discharge of a man was no joking matter. /7/ (Tr. 185; 35). Both the General Counsel and the Respondent elicited extensive testimony from various witnesses, including Master Sergeant Potts for Respondent, concerning the Potts' appraisal, his alleged justification for the ratings, incidents he relied upon, and the content of the discussion and argument on these matters during the August 8 meeting. Master Sergeant Potts' justification for the August 8, 1979 rating, which I credit, included (1) Van Laarhoven's stopping an aircraft towing operation and refusing to take responsibility for going around a hole when this could have been accomplished safely, (2) Van Laarhoven's reprimand for refusing to sign out tow team radios, (3) leaving an aircraft refueling operation prior to the arrival of relief, (4) Van Laarhoven's failure to clear major flight discrepancies prior to leaving the aircraft, (5) tardiness for work, and (6) slowness and writing up of minor discrepancies which were within acceptable limits. Master Sergeant Potts testified on rebuttal, and for the first time in the proceeding, that after his meeting with Castellano and Van Laarhoven on August 8, and notwithstanding his written agreement with the Union, he threw the evaluation away, never submitted it, and it was never placed in Van Laarhoven's personnel file. /8/ Sergeant Bobby Lee Hall testified concerning Van Laarhoven's performance. Hall worked with Van Laarhoven as a co-worker in 1975. On occasion, Hall assigned him work during the period 1975 through 1979. During the first half of 1979, through July, Hall was assigned to the grave shift and only saw Van Laarhoven coming to work in the mornings as he was leaving. From August 1, 1979 until July 9, 1980 Hall worked strictly on the day shift. Hall described Van Laarhoven's performance of duty as having been very poor during the entire period since 1975. Hall testified that he believed it would be false to state that Van Laarhoven's performance was satisfactory prior to a rapid decline in some period during 1979. Hall testified to specific aspects of Van Laarhoven's performance which occurred since 1975 and which he had related to Mr. Nagel. In this regard, Hall stated that Van Laarhoven would sometime take 30 to 45 minutes to get to his assigned aircraft by taking his time and lingering at bench stock. On several occasions Van Laarhoven was late returning from lunch and failed to provide Hall with justification when asked. In the summer of 1978, Van Laarhoven refused to block an aircraft in the rain because he did not have rain gear with him-- a requirement of the job. Military personnel did not want to work with Van Laarhoven, and several asked Hall not to be assigned with him because he would not do his share of the work. Van Laarhoven, though qualified, was very reluctant to sign off "Red X's" and Hall would have to come by, inspect the work, and sign them off. Hall also testified that, in order to get any kind of satisfactory performance from Van Laarhoven, he would assign him to aircraft which were scheduled for departure the same day. (Tr. 247-264). The next annual appraisal on Mr. Van Laarhoven was prepared by his then supervisor Kenneth Counts on January 31, 1980 based on his performance during the period from October 28 or 29, 1979 to December 31, 1979. Mr. Van Laarhoven was given the highest rating in six categories, the second highest rating in twelve categories, and one above average rating. (General Counsel's Ex. 9; Tr.243-246). Discussion, Conclusions and Recommendations In urging a finding that Mr. Van Laarhoven's poor supervisory potential evaluation on July 23, 1979 was in retaliation for his union activities, or because of union considerations, the General Counsel points to Mr. Van Laarhoven's past and subsequent above average performance ratings, Potts' statement of solving labor relations problems when Van Laarhoven was fired, and the timing of the low supervisory potential evaluation by Nagel just three months after Van Laarhoven assisted in filing an unfair labor practice charge involving Nagel. I have credited major positions of the detailed testimony of Respondent's witnesses, particularly Mr. Nagel, Master Sergeant Potts, and Sergeant Hall in making the above findings of fact. Accordingly, it is concluded that the General Counsel has not proved the allegations of the complaint by a preponderance of the evidence. The record shows affirmatively that during the pertinent period Mr. Van Laarhoven demonstrated poor performance and conduct which would naturally be major factors in a supervisor's current evaluation and prediction of employee performance in a supervisory capacity. Just one month prior to the rating, Van Laarhoven refused to comply with his supervisor's order to check out tow team radios. This failure to obey orders resulted in a three hour operational delay. Van Laarhoven received an official reprimand for this conduct. Three months prior to the evaluation, the supervisor was notified that Van Laarhoven had brought a refueling operation to a halt by going to lunch before being properly relieved. The record also reflects less severe instances of poor performance during the period including tardiness, unauthorized breaks, and improperly grounding of aircraft for minor discrepancies which were within safety limits. Thus, even if Respondent were in some part motivated by union considerations, the Respondent has shown by a preponderance of the evidence that the same evaluation would have been given even in the absence of protected activity. See Internal Revenue Service, Washington, D.C., 6 FLRA No. 23 (1981), Veterans Administration, Medical and Regional Office Center, White River Junction, Vermont, 6 FLRA No. 68 (1981). It is also significant that another Union vice president, who had filed a grievance against the same supervisor and had also used significant amounts of official time, received an outstanding supervisory potential rating from the same supervisor just a few months earlier. Based on the foregoing findings of fact and conclusions, it is recommended that the Authority adopt the following Order: Order It is hereby ordered that the complaint in Case No. 2-CA-274 be, and it hereby is, DISMISSED. GARVIN LEE OLIVER Administrative Law Judge Dated: November 19, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1A/ The Charging Party excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /1/ The complaint was amended at the hearing to add the August 8, 1979 evaluation. /2/ Potts denied making this statement. (Tr. 223). I credit Van Laarhoven's testimony concerning this particular point. See fn. 7. /3/ It is undisputed that Van Laarhoven was not selected for the position; however, the non-selection is not alleged to be a violation of the Statute. /4/ The Union thereafter filed an unfair labor practice charge, alleging a unilateral change in violation of sections 7116(a)(1) and (5). This charge was the subject of an Authority settlement agreement with a non-admissions clause. The new policy was rescinded following the settlement. (General Counsel's Ex. 3; Tr. 287). /5/ Van Laarhoven denied ever being counseled about being late for work, other than with respect to two charges of being absence without leave (AWOL) for being late from lunch, which charges were dropped. (Tr. 55-56). I credit Nagel's testimony. /6/ Van Laarhoven acknowledged that in April 1979 his refueling operation was the subject of a quality control inspection. Because of certain negative comments contained in the quality control report about his leaving a refueling operation, he filed a complaint with the Union, which was informally resolved. No disciplinary action resulted from the incident. (General Counsel's Ex. 12; Tr. 288-299). /7/ Potts could not recall if the matter was raised at the August 8 meeting, could not recall if he defended on the basis that he had only been joking, and could not recall if Castellano offered the reproach. (Tr. 223-224). It seems odd that Potts could not recall being accused of such a statement, since he appeared to clearly recall never having made the statement in the first place. I credit the testimony of Van Laarhoven and Castellano concerning the discussion of this matter at the August 8 meeting. /8/ In view of this testimony, the General Counsel concedes in his brief that the second appraisal was, in fact, a nullity, and that the only extant issue presented concerns the Nagel appraisal of July 23, 1979. (General Counsel's brief, pp. 13, n.9, 18).