OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
KIRTLAND AIR FORCE BASE
ALBUQUERQUE, NEW MEXICO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2263
Case No. DA-CA-40072
Charlotte A. Dye, Esquire Susan E. Jelen, Esquire For the General Counsel
Ms. Yvon Lefebvre For the Charging Party
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether an
employee was "chastised" for having given a witness statement to
the Union and whether the employee was ordered to remain off the
premises of the Transportation Department because he had given the
statement to the Union, all in violation of §§ 16(a)(1) and (2) of
This case was initiated by a charge filed on October 27,
1993 (G.C. Exh. 1(a)) which alleged violation of §§ 16(a)(1) and
(4) of the Statute. A First Amended charge was filed on December
16, 1993 (G.C. Exh. 1(b)), to allege violation of §§ 16(a)(1), (2)
and (4) of the Statute; and a Second Amended charge was filed on
January 14, 1994 (G.C. Exh. 1(e)), which alleged violation of §§
16(a)(1) and (2). The Complaint and Notice of Hearing issued on
February 9, 1994 (G.C. Exh. 1(h)), alleged violation of §§ 16(a)(1)
and (2) and the hearing was set for a date, time and place to be
determined. By Order dated March 2, 1994 (G.C. Exh. 1(i)), the
hearing in this, and other cases, was set for April 11, 1994, in
Albuquerque, New Mexico; by Order dated March 12, 1994 (G.C. Exh.
1(m)), the place of the hearing in Albuquerque on April 11, 1994,
was changed; and by Order dated April 4, 1994 (G.C. Exh. 1(n)), the
date of the hearing was rescheduled for April 12, 1994, pursuant to
which a hearing was duly held on April 12, 1994, in Albuquerque,
New Mexico, before the undersigned. All parties were represented at
the hearing, were afforded full opportunity to be heard, to
introduce evidence bearing on the issues involved, and were
afforded the opportunity to present oral argument which all parties
waived. At the conclusion of the hearing, May 12, 1994, was fixed
as the date for mailing post-hearing briefs, which time was
subsequently extended, on motion of Respondent, to which the other
parties did not object, for good cause shown, to June 12, 1994.
Respondent and General Counsel each timely mailed an excellent
brief, received on, or before, June 17, 1994, which have been
carefully considered. Upon the basis of the entire record,
including my observation of the witnesses and their demeanor, I
make the following findings and conclusions:
1. Mr. David Chavez (hereinafter referred to simply as
"David" to distinguish him from Mr. Jesse Chavez, a supervisor, who
will be referred to simply as "Jesse"), has been employed at
Kirtland Air Force Base since December, 1978 (Tr. 12). From the
date of his employment until February 22, 1993, David had worked in
the Transportation Department. On February 22, 1993, David
transferred to Base Supply (Tr. 12).
2. On February 3, 1993, David, Mr. José Marquez and Mr.
Chris Lopez were sitting in the break room on their afternoon break
talking. The telephone, presumably in the break room, rang, David
answered it and called S/Sgt. Maurassi to the telephone. While Sgt.
Maurassi talked on the telephone, David, Marquez and Lopez
continued their conversation. Mr. Lopez told Sgt. Maurassi to keep
his voice down. Sgt. Maurassi responded by saying, "Excuse me I'm
on the phone", Mr. Lopez argued with him and said he was going to
knock his block off. Sgt. Maurassi got off the telephone and left
the break room. David talked to Sgt. Maurassi outside the break
room and he was upset. Sgt. Maurassi then went to the Vehicle
Maintenance Office (G.C. Exh. 2, Tr. 12-13).
3. The following day, February 4, 1993, David was called
to the office of Mr. Jesse Chavez (hereinafter referred to as
Jesse), Vehicle Maintenance Officer in charge of the 377th
Transportation Maintenance Branch (Tr. 34), for whom he had worked
since October 25, 1990 (Tr. 39). Jesse asked David what had
occurred the previous day between Lopez and Sgt. Maurassi (Tr. 13,
40). David said that Mr. Milton Kernegay, another Vehicle
Maintenance Officer, and two Master Sergeants were present (Tr.
13); but Jesse said that only Master Sergeant Hoffman was present
(Tr. 52). Apparently, David did not tell Jesse what had happened at
that time but agreed to submit a written statement (Tr. 13, 40)
which he did on February 17, 1993 (G.C. Exh. 2) which recites the
facts as set forth in Paragraph 2, above.
4. Sgt. Maurassi having filed a charge against Mr. Lopez
for the threat against him, Jesse interviewed Marquez (Marcus),
Lopez and Maurassi individually and, in reliance in large part on
the written statement of David on whom he ". . . depended . . . I
trusted in his honesty." (Tr. 40), recommend the discharge of Mr.
Lopez (Tr. 41).
5. Thereafter, the Union requested a meeting with Jesse
at which it produced a second written statement of David (G.C. Exh.
3). Jesse found the two statements inconsistent (Tr. 42), as indeed
they are, by way of omission from his first statement. Thus, as
". . . in the second statement that David Chavez gave, he had two items in there, one that he did not
relate to me. And, that one was the fact that Mr. -- Sergeant Maurassi had taken off into the office
and proceeded to destroy it in a sense of speaking. And, then (sic) second item that he put there, was
that he prevented Sergeant Maurassi from going out into the shop and picking a fight with Mr. Salsa
Lopez." (Tr. 42; see, G.C. Exh. 3).
As the result of the information in David's second statement,
Jesse reduced the recommended discharge to a ten day suspension
(Tr. 42) which Mr. Lopez completed on, or about, April 27, 1993
6. David conceded that his two statements were quite
different, asserting, ". . . The one statement I gave Sergeant
Maurassi's side [G.C. Exh. 2] and the other Mr. Lopez' side [G.C.
Exh. 3]." (Tr. 16).
7. As noted above, David transferred to Base Supply on
February 22, 1993, just five days after he gave his first statement
(G.C. Exh. 2). Jesse testified that he had seen David in the
Transportation Compound in a vehicle on occasion after his transfer
(Tr. 43) but only had the opportunity to wave or hollo until May 7,
1993, when he saw David wandering around the compound(2) and sent word that he wanted to see him (Tr.
44). David said that he went to pick up softball equipment (Tr.
17), but conceded that he talked to Mr. Kernegay and to Master
Sergeant Wilson (Tr. 18). David said Jesse came out of his office
and asked him to come in but he didn't go until later (Tr. 18).
Jesse testified that he saw David in the Compound in the morning
and told Master Sergeant Hoffman, the superintendent (Tr. 52, 44),
that he wanted to see him (Tr. 44); that he waited but David did
not show up so he called several shops before locating David in the
allied trades shop and he told the person who had answered the
telephone to, "Tell David Chavez that I want to see him before he
leaves the compound" (Tr. 44); that he waited about an hour and
when David still had not appeared, called the allied trades shop
again, was told that David was still there and then spoke to David
and told him he wanted to see him before he left (Tr. 45). David
said that when he arrived at Jesse's office, the secretary, Ms.
Nona McManus, told him, "Boy are you in trouble for writing that
statement." (Tr. 18). David said that when he went in, Jesse, ". .
. said he was very unhappy with me that I wrote that statement on
behalf of Mr. Lopez . . . he was very unhappy with what I wrote and
that it contradicted the statement I had written before." (Tr.
Jesse testified that David came to his office about fifteen
or twenty minutes after he talked to him; that when he came in he
said, "What's (sic) you doing here"; that David responded, "I'm
visiting friends. I've got a lot of friends here" and that he had
replied, "Well you don't come around here and visit friends . . .
People's got to work. I got work to put out." (Tr. 45). Jesse
stated that he told David, "This is the statement you gave me and
then the statement you gave to somebody else was totally different"
(Tr. 46). Jesse again testified that he asked David, "Why are you
here in the compound"; that David said, "I'm visiting friends";
that he said, "David, you've been here for three, almost going on
four hours . . . I don't want you in this compound, I want you to
leave it and don't -- only come in here on official business"; that
David responded, "Okay, if that's the way you want it." (Tr.
David testified that when he got up to leave, Jesse, ". . .
told me I was no longer welcome in transportation except for
official business" and that he had responded, "Okay that's all
right with me I'll just come on official business." (Tr. 20).
David denied that he was in the compound for more than a few
minutes when Jesse came out of the back part of his office and
asked him to come into his office (Tr. 65-66); denied that he
talked to Jesse on the telephone, indeed denied that he was ever
out of his truck (Tr. 66). David stated that he told Mr. Kernegay
and Sgt. Wilson what Jesse had said; Jesse said he told Sgt.
Hoffman of his conversation with David; but none was called as a
8. David said that he had been back to the Transpor-tation
Compound since May 7, 1993, but only on official business (Tr. 21).
His lament was that he had not gone back for social functions such
as retirements and awards parties (Tr. 21, 22) because he was, ". .
. not allowed to go back . . . Mr. Jesse Chavez made it very clear
to me that I wasn't welcome." (Tr. 22).
David testified that he had received invitations after May
7, 1993, to attend retirement functions at transportation (Tr. 30,
67). He said, "I should be allowed to go if I am invited." (Tr.
Jesse testified, without contradiction, that retirement and
awards programs are official functions (Tr. 49); that they are for
the Maintenance Branch and if outsiders want to attend, they must
clear it through the Maintenance Office or with him (Tr. 50); that
David had never asked to attend one of these functions after he
transferred and if he had asked, permission would have been
granted. (Tr. 50).
David admitted that his supervisor, Jesse, on February 4,
1993, asked him what had occurred the day before between Mr. Lopez
and Sgt. Maurassi; and that he agreed to give a written statement
which he did on February 17, 1993 (G.C. Exh. 2). Obviously, his
statement of Fobruary 17 was written at his leisure, wholly free of
intrusive pressure. Although asked what had happened on February 3,
1993, David's statement of February 17, 1993, would prove to be
seriously lacking in candor - not by what David said, but by what
he failed to say. The record is further clear that Jesse relied on
David's statement in reaching his decision to recommend the
discharge of Mr. Lopez. When the Union, sometime after his
recommen-dation, asked to meet with him, Jesse was shown a second
statement by David in which he set forth, in particular, two very
important matters which he had wholly omitted from his first
statement. Based on David's second statement, Jesse changed his
recommended removal of Mr. Lopez to a ten-day suspension.
There is no dispute that Jesse, on May 7, 1993, did berate
David - not because he had given the Union a statement, but because
he had given Jesse a dishonest and misleading statement by the
omission of critical information. By failing to tell the whole
truth, David had, indeed, lied, in the sense that he had deceived
by withholding vital information. That the information was vital is
beyond question inasmuch as, on the basis of that information,
Jesse changed his recommendation of dismissal to a suspension of
ten days. Nor is there any doubt whatever that David fully
understood that he was berated because ". . . he was very unhappy
with what I wrote and that it contradicted the statement I had
written before." (Tr. 19). I do not credit David's testimony that
Jesse said, ". . . that wasn't the truth, that was not what took
place." (Tr. 19). First, the truth of what
David said in his statements was never questioned as was
demonstrated by the fact that, on the basis of David's second
statement, Jesse changed his prior recommendation. Second, David,
even at the hearing, did not, or would not, recognize his
deceitfulness in willfully withholding in his first statement vital
informa-tion. Indeed, his cavilling retort was, ". . . I was only
giving both sides of the story. . . ." (Tr. 19). Third, I found
Jesse's testimony as to what occurred wholly credible and
convincing. Thus, Jesse, testified, in relevant part, as
". . . 'This is the statement you gave me and then the statement you gave to somebody else was
totally different'. And, then he proceeded to tell me that the statements were the same as far as
he's concerned and he can't see nothing different.
So, I read both statements to him and I said, 'I would have made a different decision if I
could have had the second statement, if you would have told me everything that transpired'. . . ."
Accordingly, as the record shows, and I find, that David was
berated solely because he had given Jesse a statement which, by its
omissions, was deceitful and inaccurate and had led to a decision
which would not have been made had David told all that happened,
Respondent did not violate § 16(a)(1) by its beratement of David
for having given, effectually, a false statement.
The Transportation Compound is an enclosed enclave with
controlled access. Outsiders are not permitted free access and, if
Jesse's ire caused him to tell David that he was no longer welcome
in the Transportation Compound except on official business, he did
not violate §§ 16(a)(1) or (2). Indeed, David was merely subjected
to the same limitation applicable to all non-Transportation
personnel. However, the record shows that there was a wholly
independent reason for Jesse telling David to come to the compound
only on official business, namely, that David was spending too much
time in the compound visiting with friends. As noted, this is an
enclosed compound with controlled access. Outsiders, including
customers, are not allowed in the shops while mechanics are working
and employees are required to account for all time spent working on
vehicles (Tr. 36-38). Jesse testified that David spent too much
time visiting which disrupted the work of employees. While David
conceded that he talked to Mr. Kernegay and Sergeant Wilson (Tr.
17-18, 65), he minimized his visiting, even asserting that on May
7, 1993, he had never got out of his truck (Tr. 66); nevertheless,
by a Freudian slip of the tongue he admitted he continued to visit
with Mr. Kernegay and Sergeant Wilson after being summoned. Thus,
when asked if he went to Jesse's office when Jesse asked him to
come in, he replied, "A bit later, yes I did." (Tr. 18). I credit
Jesse's testimony that he told David that, "My people's got to
work, the people's got to put out work" (Tr. 46). Indeed, David
expressed no disagreement whatever with being told to come to the
compound only on official business. He testified, "I told him,
'Okay that's all right with me I'll just come on official
business'." (Tr. 20) and Jesse testified that David responded,
"Okay, if that's the way you want it". (Tr. 66). David's only
concern was that he should be allowed to attend Transportation
social affairs if he were invited (Tr. 29). Jesse testified without
contraction that retirement and/or awards affairs were solely for
the Maintenance Branch and that if outsiders wished to attend they
must clear their attendance through the Vehicle Maintenance Office
or with him (Tr. 50). David never sought permission to attend any
Transportation social function after his February 22, 1993,
transfer. In any event, social functions were not mentioned by
Jesse on May 7, 1993. Clearly, David believed the admonition, come
to the compound only on official business, included social
functions; but he never inquired if he could attend social events,
which, had he asked, he would have known he could (Tr. 50). Jesse
testified that his admonition applied only to visiting during
performance of work, not social affairs, as to which the procedure
always had been that attendance by outsiders is permitted if
cleared by the Vehicle Maintenance Office, or by him, which means
that the charge for the visitor is paid (Tr. 51) and, if the
visitor is an employee of Respondent, his or her absence has been
approved by his or her supervisor (Tr. 51). Having applied to David
the same limitations and procedures as applicable to all
non-Transportation employees, Respondent did not violate §§
16(a)(1) or (2).
Accordingly, it is recommended that the Authority adopt the
The Complaint in Case No. DA-CA-40072 be, and the same is
WILLIAM B. DEVANEY
Administrative Law Judge
Issued: September 15, 1994
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(2) will be referred to, simply, as, "§ 16(a)(2)".
2. There are seven shops in one compound enclosed by a high fence. (Tr. 35). Access is through a controlled gate (Tr. 35). The Transportation Branch has two other shops outside the compound which are also enclosed by a fence (Tr. 35).