[ v11 p303 ]
11:0303(65)CA
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).