United States Department of the Air Force, Seymour Johnson Air Force Base (Respondent) and National Association of Government Employees, Local R5-188 (Charging Party)

[ v57 p772 ]

57 FLRA No. 172



(Charging Party)




May 15, 2002


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

I.     Statement of the Case

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

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of Federal Service Labor-Management Relations Statute (the Statute) by repudiating Article II of the parties' collective bargaining agreement when it implemented Air Force (AF) Instructions 36-1001 and 36-1004, which replaced the previous performance appraisal rating system--a five-tier rating system--with a two-tier system. The Judge found no violation of the Statute, and recommended that the complaint be dismissed.

      Upon consideration of the Judge's decision, the Charging Party's exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision. Accordingly, we dismiss the complaint.

II.     Background

      The Charging Party and the Respondent are parties to a collective bargaining agreement (cba) that became effective in 1991, and has been renewed, by its terms, every 3 years since 1994. The cba contains 54 articles, none of which refer to a five-tier performance rating system.

      By memorandum dated July 29, 1999, the Agency informed the Union, among other things, that: (1) it was changing its civilian performance appraisal system in accordance with Air Force (AF) Instruction 36-1001, a copy of which was attached; (2) it had published policy and guidance on civilian awards in AF Instruction 36-1004, a copy of which was attached; and (3) any recommendations or proposals should be submitted by August 31, 1999. AF Instructions 36-1001 and 1004 were to supersede AF Regulation 40-452 and compliance with each was mandatory. [n1] The Union President responded and requested to bargain impact and implementation. The Union submitted proposals concerning this matter.

      Subsequently, the parties met and the Agency declared a number of the proposals to be outside its duty to bargain impact and implementation and offered to negotiate on those remaining. The Union's National Representative declared an impasse and announced his intention to obtain a mediator, which the Respondent indicated was premature. From October 18 to December 17, 1999, the parties exchanged letters setting out their positions.

      By memorandum dated October 25, 1999, the Respondent notified the Union that the changes to the civilian performance appraisal system "must be implemented in December 1999 in order for employees to be rated under the revised procedures during this rating cycle[,]" and requested a meeting. Judge's Decision at 8. By memorandum dated November 17, 1999, the Respondent reviewed the matter and again informed the Union that the change had to be implemented in December 1999. The Respondent stated "[o]ur proposed implementation date is 13 December 1999. Therefore, we would like to meet again as soon as possible to discuss those proposals that are related to the change." Id. By letter dated November 30, 1999, the Union's National Representative replied stating that he had contacted Federal Mediation and Conciliation Service but had not received confirmation on mediation. In response, the Agency again informed the representative of the proposed implementation date.

      The Respondent implemented the performance appraisal system on April 1, 2000. Thereafter, the Union filed the ULP charge that resulted in the instant case.

      According to the Judge, the General Counsel asserted that the Respondent repudiated the cba because the performance appraisal system contained in AF Regulation 40-452 that was in effect when the cba became effective was incorporated by reference into the cba. Examining the cba and other evidence, the Judge stated that the Union's National Representative "tried to distort Article II to preserve [AF] Regulation 40-452 and to reject AF Information[s] [n2] 36-1001 . . . and 36-1004 [ v57 p773 ] . . . ." [n3] Id. at 5 (emphasis omitted) and G.C. Exhibit (Exh.) 2. The Judge stated that the National Representative testified that the term "appropriate authorities" in Article II "meant only `government-wide.'" Id. However, for the reasons stated in his decision, the Judge did not "credit nor give any probative value to [the representative's] testimony concerning the meaning of Article II." Id. The Judge interpreted the parties' cba and found that Article XXV, entitled Performance Appraisal, "makes no reference . . . to a five-tier performance rating system nor to AF Regulation 40-452[,]" and that Article III, entitled Definitions, did not mention or define appropriate authorities. Id. at 11.

      He further interpreted Article II and found the language to be clear and unambiguous. He found nothing in the first phrase of Article II that "makes any reference . . . directly or by implication, to `government-wide,' and the words `appropriate authorities' are wholly neutral and include any and all appropriate authorities, which could by way of example, be DOD or AF or OPM or, in some circumstances, a combination." Id. at 6 (emphasis in Judge's Decision). He concluded that the first phrase of Article II by its terms includes present and future regulations of the Air Force.

      Based on his review of the evidence, the Judge found the second phrase of Article II, that included the wording "subsequently published agency policies and regulations required . . . by the regulations of appropriate authorities," also by "its terms specifically includes subsequently published agency regulations required by regulations of an appropriate authority[,]" and that appropriate authority, like the first phrase of Article II, covered the AF. Id. at 12 (emphasis omitted). The Judge determined, therefore, that the AF Instructions 36-1001 and 36-1004 "[were] made mandatory and, consequently [were] `required . . . by the regulations of appropriate authority, i.e., the Department of Air Force." Id. at 12 (emphasis in original).

      The Judge applied the test for determining whether an agency's conduct constitutes a repudiation of the cba set forth in Dep't of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill., 51 FLRA 858 (1996) (Scott AFB). The Judge first noted the factors that the Authority considers, that is: (1) the nature and scope of the alleged breach of the agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). Based on the record, the Judge found that even if the Respondent breached the cba, the Respondent's interpretation of Article II was reasonable and, therefore, the breach was not clear and patent. The Judge thus found that no repudiation occurred. Accordingly, the Judge concluded that the Respondent did not violate the Statute as alleged and recommended that the complaint be dismissed.

III.     Positions of the Parties

A.     Charging Party's Exceptions

      The Charging Party excepts to the Judge's credibility determination, specifically, his "findings, conclusions and ruling" that the testimony of the National Representative "is `wholly contrived, and self serving, is inconsistent, ignores the clear and unambiguous language of Article II, and is contrary to the Union President's . . . memorandum of August 31, 1999.'" Exceptions at 5 (quoting Judge's Decision at 5). The Charging Party contends that the Judge's finding is "totally inconsistent with the record . . . ." Id. According to the Charging Party, the testimony of the National Representative was not rebutted.

      The Charging Party asserts that the intent of Article II "is to lock in the . . . (Air Force) regulations for the term of the contract." Id. at 6. The Charging Party contends that the "uncontested testimony" of the National Representative "conclusively" establishes the parties' intent that "Agency policies and regulations in existence at the time [of] the agreement[`s approval] are incorporated as part of the [cba]." Id. The Charging Party asserts that the National Representative testified that appropriate authorities under Article II meant "agencies that have government-wide authorit[y] such as [OPM]." Id. at 7.

      Citing Scott AFB, the Charging Party contends that the evidence shows that the Respondent clearly and patently breached the cba when it implemented AF Instructions 36-1001 and 36-1004.

B.     Respondent's Opposition

      The Respondent contends that a clear preponderance of the evidence demonstrates that the Judge's credibility determination was correct. Referring to the record, the Respondent asserts that the Judge based his findings and conclusions on the entire record, including the observation of the witness and his demeanor.

      The Respondent asserts that notwithstanding the Judge's credibility determination, the Judge based his decision on the clear and unambiguous language of Article II, his conclusion that no repudiation occurred, [ v57 p774 ] and his conclusion that even if the Respondent had breached the cba, the breach was not clear and patent.

IV.     Analysis and Conclusions

A.     The Charging Party Has Not Shown that the Judge's Credibility Determination Concerning the National Representative's Testimony Is Erroneous

      In this case, the Judge based his decision on the record and his "observation of the witness [the National Representative] and his demeanor." Judge's Decision at 2.

      The Authority has stated that it will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. 24th Combat Support Group, Howard AFB, Republic of Panama, 55 FLRA 273, 279 (1999). Credibility determinations may be based on a number 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. See United States Dep't of Commerce, NOAA, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1006 n.11 (1998) (Dep't of Commerce) (citing Hillen v. Dep't of the Army, 35 M.S.P.R. 453, 458 (1987)). With respect to witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify, and accordingly, the Authority attaches great weight to a judge's determinations based on demeanor. Dep't of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1204 (2000); Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Ala., 50 FLRA 51 (1994).

      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. Dep't of Commerce, 54 FLRA at 1007.

      As reflected in the decision, the Judge did not "credit nor give any probative value" to the National Representative's testimony concerning the meaning of Article II or to his assertion that "appropriate authorities" in Article II meant only government-wide authorities. Id. at 5. In explaining why he did not do so, the Judge stated that the National Representative's testimony in this regard was "wholly contrived and self-serving, . . . inconsistent, ignores the clear and unambiguous language of Article II, and [was] contrary to the Union President's [August 31 memorandum]." Id.

      In addition to the National Representative's demeanor, the Judge's determination was based on the record, including: (1) contradictory statements made by the National Representative with respect to his involvement in the negotiations of the original Article II (See id. at 4-5); (2) his finding that the National Representative's testimony was inconsistent with the Union President's August 31 memorandum wherein she requested to bargain impact and implementation of the new instructions (See id. at 5 and 7); (3) statements made by the National Represe