[ v45 p755 ]
The decision of the Authority follows:
45 FLRA No. 65
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by terminating a probationary employee who had filed a grievance. The Judge recommended that the complaint be dismissed. The General Counsel filed exceptions to the Judge's decision. The Respondent filed an opposition to the exceptions.
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 and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
For the reasons stated by the Judge, we find that although the General Counsel presented evidence sufficient to support an inference that the employee's protected activity was a motivating factor in the Respondent's decision to terminate her, based on the entire record in this case the General Counsel failed to prove, by a preponderance of the evidence, that the employee was terminated in violation of the Statute.*/ Accordingly, we find that the General Counsel has not established that the Respondent violated section 7116(a)(1) and (2) of the Statute.
The complaint in this case is dismissed.
(If blank, the decision does not have footnotes.)
*/ Despite the General Counsel's assertion that it "does not
dispute the Judge's credibility findings[,]" we construe the
General Counsel's exceptions as a challenge to the Judge's
credibility findings. Exceptions at 16. The demeanor of
witnesses is an important factor in resolving issues of
credibility, and 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 have examined the record
carefully and find no basis for reversing the Judge's credibility
findings. See Department of Housing and Urban Development, Region
X, Seattle, Washington, 41 FLRA 363, 364 (1991).