Jimmy D. Gonzales, Petitioner, v. Department of the Air Force, Respondent, 895 F.2d 1420 (Fed. Cir. 1990)

DECISION

The decision of the Merit Systems Protection Board, Docket No. DE07528810312, is affirmed on the basis of the opinion of the administrative judge.

OPINION

The decision of the administrative judge turned on the credibility of the witnesses, and although Mr. Gonzales has pointed to inconsistencies and inadequacies in the testimony, matters of credibility are virtually unreviewable on appeal. Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985).

The investigation of the asserted unfair labor practice, as reported to us, relates solely to the right of the union to be present during the interrogation of Mr. Childs and Mr. Romero, and does not relate to whether their testimony at Gonzales' hearing had been coerced or perjured. In the event we have been misinformed, or it is found that such testimony was coerced or perjured, Mr. Gonzales may have a basis on which to reopen the matter of his dismissal, for these were the principal witnesses against him before the administrative judge. However, on the present record we affirm the administrative judge's ruling that the asserted unfair labor practice was not harmful to Mr. Gonzales.

Mr. Gonzales has not met the heavy burden of establishing reversible error in the decision of the Merit Systems Protection Board. The penalty is within the range of permissible penalties for the asserted actions.