U.S. Department of Transportation, Federal Aviation Administration, Southwest Region, Airways Facilities Sector, Austin, Texas and David McFarlin (Authority decision, February 14, 1992)

Final FLRA decision. This is a final unfair labor practice order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

David McFarlin alleged that the FAA's Austin Airways Facilities Sector denied him a promotion because of union activity and told him that was the reason. An administrative law judge found no violation of the federal labor relations statute. The General Counsel and McFarlin challenged the judge's findings, particularly the judge's assessment of witness credibility. The Authority found no basis in the record to overturn those credibility findings and declined to consider new affidavits attached to McFarlin's exceptions. It adopted the judge's findings and dismissed the complaint.

Decision snapshot

• Authority: Alleged interference and discriminatory promotion under 5 U.S.C. § 7116(a)(1) and (2).
• Outcome: Judge's no-violation findings adopted; complaint dismissed.
• Key point: The record did not justify reversing the judge's witness-credibility findings.

Full text (FLRA public release)

[ v43 p1581 ]
43:1581(126)CA

The decision of the Authority follows:

43 FLRA No. 126

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

SOUTHWEST REGION

AIRWAYS FACILITIES SECTOR

AUSTIN, TEXAS

(Respondent)

and

DAVID MCFARLIN

(Charging Party)

6-CA-01217

DECISION AND ORDER

February 14, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent did not violate section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by telling the Charging Party that he was not selected for promotion because of his union activities and that the Respondent did not violate section 7116(a)(1) and (2) of the Statute when it did not select the Charging Party for promotion. The General Counsel and the Charging Party filed exceptions to the Judge's decision and the Respondent filed an opposition to the General Counsel's and the Charging Party's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings and find that no prejudicial error was committed. We affirm the rulings. On consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.(*)

II. Order

The complaint is dismissed.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

*/ Both the General Counsel's and the Charging Party's exceptions pertain to the Judge's credibility findings on which his findings of fact are based. The demeanor of witnesses is an important factor in resolving issues of credibility. Only 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. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 345, 346 n.1 (1990).

Consistent with section 2429.5 of the Authority's Rules and Regulations, we have not considered Exhibits 1, 2 and 3 attached to the Charging Party's exceptions. These exhibits are affidavits dated November 14, 1991, which describe an event that allegedly took place in August 1991, after the hearing in this matter closed and before the issuance of the attached decision. See U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 308-9 (1991), petition for review filed sub nom. U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City District, Salt Lake City, Utah v. FLRA, No. 91-1287 (D.C. Cir. June 17, 1991).