19:0101(11)CA - DOD, Illinois Air NG, 182nd Tactical Air Support Group, Peoria, IL and Illinois Air Chapter 34, ACT. Inc. -- 1985 FLRAdec CA
[ v19 p101 ]
19:0101(11)CA
The decision of the Authority follows:
19 FLRA No. 11
DEPARTMENT OF DEFENSE
ILLINOIS AIR NATIONAL GUARD
182nd TACTICAL AIR SUPPORT GROUP
PEORIA, ILLINOIS
Respondent
and
ILLINOIS AIR CHAPTER 34, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
Charging Party
Case No. 5-CA-20217
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision; the General Counsel filed cross-exceptions; the
Charging Party filed cross-exceptions and a memorandum in support of the
General Counsel's cross-exceptions and in opposition to the Respondent's
exceptions; and the Respondent filed an opposition to the Charging
Party's cross-exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (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, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The complaint alleges that the Respondent violated section
7116(a)(1), (2) and (4) of the Statute by terminating William Spence
from his employment as a civilian technician because he had engaged in
activities protected by the Statute. The Judge concluded that by
denying William Spence's reenlistment in the National Guard in a
military capacity, thereby causing his technician employment to be
terminated pursuant to the National Guard Technicians Act of 1968, 32
U.S.C. 709(e)(1), /1/ because he had engaged in activities protected by
the Statute, the Respondent violated section 7116(a)(1), (2) and (4) of
the Statute. The Judge, before reaching the merits of the case,
however, rejected the Respondent's contention that the Authority lacks
jurisdiction in the subject case because Spence's termination from his
civilian employment resulted from his loss of military status and
matters related to discharges or refusals to reenlist members in the
National Guard are military matters beyond the scope of the Statute.
Instead, the Judge concluded that the Authority:
has jurisdiction where it is alleged that a member of the
National Guard is denied reenlistment and is discharged, in his
military capacity from the National Guard, because the guardsman
had engaged in conduct protected by the Statute, which discharge
results in the separation of the guardsman . . . from his civilian
employment as a technician.
The Respondent excepts, inter alia, to that jurisdictional finding,
contending that the Judge's Decision "conflicts with the clear
provisions of section 709(e)(1) and (5) of the Technicians Act," and
that the "great weight of authority" supports its position that "section
709(e)(1) and (5), the narrow specific enactment, must be considered
controlling over the more recent but general provisions of Sec. 7116" of
the Statute. On the other hand, the Charging Party argues that "(w)hen
Congress passed (the Statute)" it "created a comprehensive statutory
framework intended to protect employees from arbitrary and capricious
actions on the part of management," and thus the Authority has
jurisdiction to consider the matter herein under section 7116 of the
Statute.
The Authority disagrees with the Judge's conclusion that the
Authority has jurisdiction in this matter. Section 709(e) of the
Technicians Act expressly provides that:
(e) Notwithstanding any other provisions of law and under
regulations prescribed by the Secretary concerned--
(1) a technician who is employed in a position in which
National Guard membership is required as a condition of employment
and who is separated from the National Guard or ceases to hold the
military grade specified for his position . . . shall be promptly
separated from his technician employment by the adjutant general
of the jurisdiction concerned;
. . . .
(5) a right of appeal which may exist with respect to clause
(1), (2), (3), or (4) shall not extend beyond the adjutant general
of the jurisdiction concerned(.)
The courts, while recognizing the broad legislative scheme set forth
in the Statute, have found that section 709(e) of the Technicians Act
constitutes a narrow exception to such scheme and that the Technicians
Act is the exclusive procedure for section 709(e) matters, which
includes subject matter under section 709(e)(1), involved herein. In
this regard, the U.S. Court of Appeals for the Third Circuit, in New
Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d
276 (3rd Cir. 1982), considered "whether the Technicians Act continues
to prohibit appeals from certain decisions of the state adjutant general
despite the provisions of the (Statute)." The court held that the
provisions of section 709(e) of the Technicians Act remain as exceptions
to the Statute and that "(o)nly this reading of the two statutes
successfully gives to both statutes the effect evidently intended by
Congress."
In reaching this conclusion, the court examined the legislative
history of both the Statute and the Technicians Act. It noted that
"(s)ection 709(e)(5) of the Technicians Act cuts off any appeal from a
decision by an adjutant general on one of the enumerated matters" and
stated that "it appear(ed) quite clear from the importance Congress
attached to the preservation of state control that, at least in 1968, it
intended to bring Guard technicians within the coverage of schemes such
as the Labor-Management Act only with the provision that the state
controls set out in section 709(e) would remain." New Jersey Air
National Guard, 677 F.2d at 294. The court further stated that, "(i)f
the manifest intent of the (Statute) were to repeal or modify the
provisions of section 709(e), (it) would . . . give effect to (such)
decision"; however, it could "find no evidence whatsoever that Congress
in 1978 had within its contemplation the employment status of National
Guard technicians." New Jersey Air National Guard, 677 F.2d at 285
(footnote omitted).
Also, the U.S. Court of Appeals for the Ninth Circuit, in California
National Guard v. Federal Labor Relations Authority, 697 F.2d 874 (9th
Cir. 1983), agreeing with the Third Circuit's interpretation of the
legislative history and purpose of the Technicians Act and the Statute,
emphasized the Technicians Act's "explicit language that
'(n)otwithstanding any other provision of law and under regulations
prescribed by the Secretary concerned' a right of appeal with respect to
the enumerated matters therein 'shall not extend beyond the adjutant
general of the jurisdiction concerned.'" This language, as stated by the
court:
clearly forbids, on its face, applicability of any other
provision that may contradict the terms of the provision in the
absence of any subsequent federal statute that might modify or
supersede the provision in some way. As the Third Circuit
concluded, the language in Sec. 709(e) imposes a limit on
procedures: "(I)t establishes only that a dispute over one of the
enumerated matters, (including a 709(e)(1) matter involved
herein), whatever procedural route it may take, must terminate,
finally, with the decision of the adjutant general." New Jersey
Air National Guard v. FLRA, 677 F.2d at 282.
The court further stated that the "provisions of the Technicians Act
constitute a narrow exception to the broad legislative scheme set forth
in the Labor-Management Act. Specifically, Congress plainly intended to
leave with state adjutants general the final authority over adverse
personnel actions against National Guard technicians." California
National Guard, 697 F.2d at 879.
Thus, noting the language of the Technicians Act as set forth above
and the courts' interpretations thereof, it is the Authority's view that
section 709(e) of the Technicians Act is the exclusive procedure for the
subject matter involved herein; i.e., a matter dealing with an adverse
personnel action against a National Guard technician. /2/ The Authority
therefore concludes that it has no jurisdiction to decide the issue
herein, as such matter may not be raised as an unfair labor practice,
and the complaint shall be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-20217 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 16, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 5-CA-20217
-------------------- ALJ$ DECISION FOLLOWS --------------------
S. Reed Murdock, Esq.
Joseph Reyna, Esq.
For the Respondent
Thomas J. Owsinski
John T. Hunter
For the Charging Party
Judith Ramsey, Esq.
Arlander Keys, Esq.
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R.Chapter XIV, Sec. 2410 et seq.
Pursuant to a charge filed on June 1, 1982 by Illinois Air Chapter
34, Association of Civilian Technicians, Inc. (hereinafter called the
Union and Chapter 34 ACT) against the 182nd Tactical Air Support Group,
Illinois Air National Guard, Peoria, Illinois (hereinafter called
Respondent and 182nd TASG) the General Counsel of the FLRA, by the
Director of Region 5, issued a Complaint and Notice of Hearing on July
19, 1982 and issued an amendment to the Complaint on August 4, 1982.
The Complaint, as amended, alleges that Respondent violated Sections
7116(a)(1)(2) and (4) of the Statute by terminating William L. Spence
from his employment as a civilian technician. Respondent filed an
Answer denying that it had violated the Statute and alleging inter alia,
that the FLRA lacks jurisdiction over the subject matter.
A hearing in this matter was conducted before the undersigned in
Peoria, Illinois. Respondent, Union and the General Counsel of the FLRA
were represented and afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence, and to argue orally.
Post hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, /3/ my observation of
the witnesses and their demeanor, and from my evaluation of the
evidence, I make the following:
Findings of Fact
A. Background
Since 1970, and at all times material herein, Chapter 34 ACT has been
the exclusive collective bargaining representative of all
non-supervisory, non-managerial technicians employed by the Respondent.
William L. Spence was hired in May 1956 as a civilian technician by
the 182nd TASG. /4/ The mission of the 182nd TASG is to train and equip
pilots and ground personnel for combat, in the event of a national
emergency, and to maintain a fleet of aircraft. Early in his civilian
career, Spence was a jet mechanic. For approximately the six years
preceding June 1982, Spence worked as the Production Controller in
Maintenance Control Branch of the 182nd TASG. The Maintenance Control
Branch essentially controlled and coordinated all the functions related
to the flying mission of the unit. Spence's duties, as Production
Controller, included setting up and monitoring maintenance schedules for
aircraft and related equipment, assuring that aircraft and personnel
were available to meet flight schedules, and dispatching personnel and
equipment to meet flight schedules. There was only one such civilian
position at the 182nd TASG and Spence performed these duties during a
regular 40-hour work week and supervised no employees.
As a civilian technician Spence was also required to be a member of
the National Guard. /5/ On June 5, 1982, Spence was separated from his
civilian employment in the Illinois Air National Guard after he had lost
his military membership in the National Guard. Spence had been a
military member of the Illinois Air National Guard for twenty-six years.
As a military member of the Illinois Air National Guard, Spence held
the rank of Master Sergeant and his job title was that of Maintenance
Control Supervisor. This job included the duties of the civilian job of
Production Controller, but in addition the Maintenance Control
Supervisor had the duty of training subordinate military members of the
Illinois Air National Guard in maintenance control; Spence was their
military supervisor and part of the management team. In his military
capacity Spence supervised approximately eight guardsmen. Spence
performed his duties as a military member of the 182nd TASG during the
mandatory military weekends (one weekend a month) and during the
required fifteen days a year of military field training or "unit
training assembles."
With respect to his civilian employment in the Illinois Air National
Guard, during the last two years of employment, Spence's immediate
supervisor was Major Gerald A. Dorethy, who holds no civilian job and is
an active duty Air Force Officer. Dorethy's predecessor as Spence's
supervisor, with respect to Spence's civilian job, was Robert Barnett.
Spence's second level supervisor, with respect to civilian employment
was Merle Lawrence, Chief of Maintenance; in Lawrence's absence,
William Troy was Spence's second level supervisor. Spence's third level
supervisor was Col. Ronald Ballow, Air Commander. Ballow, in his
civilian capacity, reported to Brigadier General Ralph A. Bush,
Assistant Adjutant General (Air), who in turn reported to Adjutant
General John R. Phipps.
With respect to his military membership in the Illinois Air National
Guard, Spence's first line supervisor was Dorethy. Spence's second
level military supervisor was Squadron Commander Lt. Col. William Troy.
Col. Ballow, Group Commander, was Spence's third level military
supervisor. Ballow's superior, in his military capacity, is Brigadier
General William Davis, Commander, Illinois Air National Guard, who in
turn reported to Adjutant General Phipps.
A civilian technician receives an annual appraisal and Spence
received his, annually, in July. During his twenty-six years as a
technician Spence received no rating, on his annual appraisal, of less
than satisfactory. For the years 1977, 1978, 1979 and 1980, Spence's
performance was rated "excellent." The first three of these appraisals
were made by Barnett, and the last (1980) was by Dorethy. In each
instance the appraisal, together with accompanying narrative
justification, was received and approved by Phipps. In 1981, Spence was
rated "satisfactory."
Since 1980 Spence has received an appraisal of his military
performance, by his military supervisor, simultaneously with Spence's
civilian annual appraisal. /6/ Spence's military supervisor in 1980 and
1981, Dorethy, who also was Spence's civilian supervisor, rated Spence's
military performance as outstanding in every performance category,
awarding Spence the maximum point score.
In 1981 Spence also received an Airman Performance Rating (APR) with
respect to his military performance. Spence's APR rating in April of
1981 was "not very good" and did not recommend his retention in the
National Guard.
A civilian technician in the National Guard must retain military
membership in the National Guard. /7/ Military membership is a matter
of contract between the guardsmen and the guard, each enlistment being
for a definite term. The enlistment must be renewed periodically and
the renewal agreement is subject to approval by the Commander. When a
guardsman has attained a certain rank and length of military service,
his retention or reenlistment is automatically subject to review by the
Selective Retention Board. /8/
Spence's last military enlistment was for a six year term and was due
to expire in May 1982. At that time, Spence was a Master Sergeant with
twenty-six years of military service. This combination of service time
and rank made Spence eligible for automatic review by the Selective
Retention Board. Spence's reenlistment was therefore subject to
approval both by the Selective Retention Board, pursuant to ANGR 39-06,
and by his Commander, pursuant to ANGR 39-09. B. Spence's Union
Activity
In the latter part of the 1960's Spence, along with some fellow
civilian technicians, organized Chapter 34 ACT at the 182nd TASG. In
1970, Chapter 34 ACT was recognized as the exclusive collective
bargaining representative of the civilian technicians at the 182nd TASG.
Spence served as Union vice-president for its first four years and then
was elected its president, a position he held until 1979, at which time
he became vice-president of the national union (ACT). Chapter 34 ACT
designated him its chief negotiator /9/ from 1978 to 1980. No agreement
was entered into and impasse was reached with respect to a broad scope
grievance procedure and Spence filed unfair labor practice charges with
respect to that matter. He testified, along with other union officials
and employees, at an unfair labor practice hearing held in October 1980.
/10/
Over the years Spence has been active on behalf of Chapter 34 ACT
filing unfair labor practice charges against Respondent. Until 1981,
none of the charges involved Spence personally. Spence did file a
charge over non-payment of travel and per diem expenses on behalf of
himself and others, and later withdrew that charge.
Chapter 34 ACT was the first ACT Chapter to negotiate concerning
civilian attire for technicians, and that issue was the subject of
litigation under Executive Order 11491. Spence assisted other ACT
Chapters with negotiations, disputes and hearings involving civilian
attire and Respondent was aware of that activity.
During his tenure as Union official, Spence filed 15 or 20 grievances
on behalf of unit employees. Many of the grievances were resolved at
the lower level, before they reached the level of Ballow. C. Spence's
Military History and Reenlistment.
Spence's last enlistment, a six year enlistment, expired in May 1982.
Spence, in order to be reenlisted, had to make his desire known to his
immediate military supervisor, Dorethy, who had to approve the
reenlistment, as well as to Squadron Commander Troy, his second level
military supervisor. Spence's reenlistment, because of his rank (master
sergeant) and term of military service (26 years), required additional
review by the Selective Retention Board.
In April 1981, Troy orally informed Spence that Troy was recommending
to the Selective Retention Board that Spence not be retained in the
National Guard following the end of his then current enlistment. The
sole justification conveyed by Troy to Spence for this recommendation
was a suggestion that Spence go to the NCO Academy. Spence then
received a memorandum dated April 4, 1981 advising of Troy's decision,
with no supporting reasons set forth, and that the Selective Retention
Board would consider Spence's case on June 6, 1981.
Spence obtained his APR, which was also dated April 4, 1981 and was
the first APR Spence had received. The supervisors rating Spence in the
APR were first, Dorethy, second, Troy and third, Ballow. /11/ Both
Dorethy and Troy stated that Spence's overall performance satisfactory.
Dorethy noted that at a recent "red Flag" /12/ exercise he had to
counsel Spence "on his acceptance of NCO responsibilities and on-the-job
training supervisor's responsibilities. He scheduled an unexperienced
airman to work her first day of the exercise in Job Control without any
direct supervision. This could have had an adverse affect on the
exercise if I would not have been present to assist her in her duties.
MSgt Spence had been counselled in past aircraft staging by another
officer in regard to work schedule conflicts." Troy checked a
"non-concur" box. Troy added, in addition, that Spence had failed to
complete sufficient military education courses "compatible with his rank
and responsibilities." Troy also stated that Spence failed to support
unit activities beyond his job and that Spence was deficient with
respect to his NCO responsibilities and has not demonstrated support to
the Air National Guard recruiting and community action programs.
Dorethy's comments included, as noted above, "MSgt Spence had been
counselled on a past aircraft staging by another officer in regard to
work schedule conflicts." This comment referred to an incident that
occurred at an exercise at Volk Field. /13/
1. Volk Field Incident.
On Saturday, June 21, 1980, the 182nd TASG was involved in a one week
unit training assembly at Volk Field. A Wisconsin unit was unexpectedly
also utilizing Volk Field for an exercise and this caused some
dislocation as well as a shortage of fuel and oil towards the end of
week's exercise.
Captain Anders J. Norgaard, an experienced officer, was in charge of
maintenance. The 182nd TASG was practicing using new load codes. /14/
A purpose of the exercise was to perfect the new loading procedure.
Spence, in maintenance control, was the expert on use of the load codes
and this was the first time they were being used with live munitions.
Maintenance control was the critical communications link between the
flight line and the other support personnel with respect to load codes.
On Tuesday, June 24, 1980, Norgaard became aware that pilots were
complaining that the aircraft configurations were incorrect and that the
appropriate personnel were not able to locate Spence to solve the
problems with the load codes. The maintenance controller on duty June
24 was Tech Sergeant Huston, who was on his first deployment in
maintenance control. Maintenance control personnel reported for work,
generally, before 9:30 a.m. and left at 6 or 7 p.m. after 8 hours of
work. Further no one, including Spence, was authorized time off.
Norgaard tried to find Spence and finally located him between 2 and 3
p.m. on June 24 and informed Spence of the problems created by Spence's
not being on duty. Norgaard informed Spence that Spence was there on
duty, that no one was authorized time off and that Spence had taken off
enough time already. Norgaard ordered Spence to report to duty with
maintenance control for the rest of the Volk Field exercise and to work
the same shift and hours as the other maintenance people. Spence
advised Norgaard that Sergeant Huston was a good maintenance person.
Norgaard advised Spence that they were still having problems and that
one of Spence's duties was to train Huston. Spence stated that he had
"been around," mentioning a nearby firehouse. Norgaard advised Spence
that Spence's duty station was not the firehouse and that Spence had
been unaware of the problems at maintenance control, especially
concerning the load codes. Spence responded that his training
philosophy was to let new controller jump in with both feet. Norgaard
said that he had no objection to that so long as the trainer, Spence in
this case, is there to help when the trainee got into trouble. Spence
disagreed that he should have been on duty.
On Wednesday, June 25, 1980, Spence did report and worked along with
the rest of the maintenance control people. On Thursday, June 26, 1980
all the maintenance control people reported for work, except Spence, who
did not report for duty until 1:00 p.m. On that day, Norgaard was
preoccupied with the shortage of fuel and oil; there was a possibility
that the planes would not only not have enough fuel to fly the following
day's missions, but that there might not even be enough fuel for the
planes to return to Peoria. Because of his preoccupation with the fuel
and oil shortage, on June 26, Norgaard did not speak to Spence about his
failure to arrive at work until 1:00 p.m. However, on Friday, June 27,
Norgaard spoke to Lawrence about Spence's absence from work and Spence's
failure to obey Norgaard's direct order of Tuesday that Spence was to
work the regular tour of duty starting at 9:30 a.m. and was not to miss
any more work. Lawrence directed Norgaard to write Lawrence a memo
setting forth exactly what had occurred at Volk Field.
In a letter dated July 11, 1980, Norgaard set forth the two problems
that had occurred at the Volk Field exercise. First, Norgaard set out
the fuel and oil shortage problem caused by the unexpected presence of
the Wisconsin unit. Then Norgaard set forth the problems he had had
with Spence "taking large amounts of time for his own personal
pursuits," contrasted to Spence's subordinate, Huston, who was available
full time. Norgaard also described Spence's failure to obey Norgaard's
order of June 24, that henceforth Spence perform a full eight hour work
day, when Spence reported to work hours late on June 26. Norgaard
stated in his letter that the maintenance people, outside of Spence,
performed their duty in an outstanding manner. Norgaard concluded,
"However, I would not praise the performance of MSgt Spence in the same
manner."
In July, 1980 Spence was called to Lawrence's office to discuss
Norgaard's July 11, 1980 letter. Dorethy was also present. Spence was
shown Norgaard's letter and given an opportunity to read it, and to
respond to it. Lawrence stressed the problem of Spence's attendance at
the Volk Field exercise. Spence made no real response.
Lawrence then wrote a letter, dated July 29, 1980 to Spence's
supervisor attaching Norgaard's letter and stating:
"1. Your immediate attention is required on the situation
described in paragraph 2 of the basic letter. The actions on the
part of MSgt Spence cannot be condoned. It should be explicitly
understood by all deploying personnel that the maintenance project
officer is in complete charge of the maintenance activities during
a staging.
2. The actions on the part of MSgt Spence border on
insubordination and should not be overlooked. Had the counseling
by Captain Norgaard on 24 June 1980 taken care of the problem, I'm
sure we would not have heard about the incident.
3. The actions and attitudes of our top supervisory
noncommissioned officers are to set an example for our younger
airmen and NCOs. If we permit violations, such as described in
Captain Norgaard's letter, to go unchecked, we cannot expect to
maintain discipline in our units.
4. I suggest you thoroughly investigate this incident and take
whatever action you, as Commander, deems necessary. You may want
to consider restricting MSgt Spence's staging duties to coincide
with yours or Major Dorethy's until he shows the proper respect
for the authority of the immediate officer in charge."
2. Red Flag Exercise.
Dorethy's comments in the APR also referred to Spence's scheduling an
"unexperienced airman" to do a particular job during the "Red Flag"
exercise and that Troy had to intervene. The Red Flag operation was
conducted between January 30, 1981 and February 14, 1981 at Indian
Springs, Nevada. The exercise involved a number of units and if the
tasks of the 182nd TASG had not been performed properly, this would have
been an adverse impact on the other units and would have embarrassed the
182nd TASG.
Maintenance control's tasks encompassed controlling all the functions
relating to the aircraft flying mission of the unit, including setting
up schedules, making aircraft available to meet flight schedules, etc.
The maintenance controller was responsible for making decisions, minute
by minute, involving difficult scheduling situations.
Patti Staton was assigned the second week of the exercise as a
maintenance controller under the supervision of Spence. /15/ This was
apparently the first exercise in which Staton functioned as a
maintenance controller. /16/
On the first duty day of the second week of Red Flag, Spence did not
report for duty. Airman Staton was alone in maintenance control /17/
and she did not have the hand held radios used to communicate with the
flight line. Staton did not know how to perform her task and she asked
Dorethy for assistance. Dorethy asked Staton where Spence was but
Staton did not know. Dorethy, in helping Staton, was distracted from
his other tasks. /18/
During Red Flag maintenance control worked the same schedule as the
other specialists and the regular work day was from about 7:30 a.m. to
about 3:00 or 4:00 p.m. There were no split shifts. Everyone was
expected to report at about 7:30 p.m. On the second Monday of the
exercise, the day Staton was on duty alone, Spence was not in his room
when it was time to leave for the 7:00 a.m. bus, which carried the crews
from Las Vegas, where they were housed in a motel, to Red Flag. When
the flying was cancelled that Monday and the crews returned to Las
Vegas, Spence was found in his bed, and Spence told his roommate that he
(Spence) was still intoxicated. The hand held radios were still on the
floor in Spence's room. Dorethy returned to Spence's room and found
Spence in bed and seemingly intoxicated. Dorethy told Spence that
Dorethy did not want Staton working alone again because she was unable
to handle it and that Spence was to report with the rest of the crew.
Spence disagreed with Dorethy that Staton could not handle the work
alone.
The next day, Tuesday, Spence did not report with the rest of the
crew and Staton was again alone as maintenance controller and she again
was "lost" and again the hand held radios were not on the field. Spence
arrived on duty at 9:30 a.m. Dorethy asked Spence where he had been,
pointing out that again Staton was alone, and inquiring where the hand
held radios were. Spence gave no real excuse. Letters of appreciation
Chief Administrative Law Judge
Spence. /19/
Troy and Ballow both mentioned in the APR, that Spence was in
violation of AFR 35-10 grooming standards in numerous occasions.
Finally Ballow stated Spence was not recommended for retention. Ballow
concurred with the previous comments but, noted Spence had been observed
sleeping on duty during a recent deployment (Red Flag).
After April 4, 1981 but before June 1981, Spence and Chapter 34 ACT
filed an unfair labor practice charge alleging that Respondent's
recommendation to the Selective Retention Board that Spence not be
retained, was motivated by Spence's union activity. This charge was
investigated during June 1981.
As Maintenance Control Supervisor, part of Spence's military duties
entailed training those guards assigned to maintenance control,
including using on-the-job training (OJT).
A report by OJT Manager Sgt Vicky L. Briney, dated April 2, 1981
rated various training functions of units of the 182nd TASG. The
Maintenance Control unit, for which Spence was the overall supervisor
and which he was responsible for training, received the lowest rating of
all the 182nd TASG units. Briney's report stated that Staton who had
performed the maintenance control function at the Red Flag exercise, had
received no identified training in maintenance control prior to April
1981. Spence wrote a response dated May 20, 1981 in which he indicated
he has taken steps to correct the shortcomings noted in Briney's April
2, 1981 report. Briney wrote another memo on November 13, 1981 in which
she notes continuing shortcomings with respect to training in
Maintenance Control, including the fact that Spence removed his name
from training responsibility, leaving the trainees with no supervision.
/20/
On Friday, July 10, 1981, Dorethy told Spence to appear the next
morning, a scheduled military weekend, in his dress uniform to meet with
Ballow. The meeting was held at 10:00 a.m. in Ballow's office and
present were Spence, Troy and Ballow. Spence did not speak unless
expressly asked to do so /21/ and Troy made no remarks. Ballow referred
to the unfair labor practice charge Spence had filed regarding the
failure to recommend his reenlistment and Ballow stated that the charge
was illegal and that Spence and the Union President could go to prison
for it. Ballow told Spence that, if Spence did not withdraw the charge,
Ballow would take action against Spence, which might include demotion
and dismissal, and further Spence should consider the fact that he was
not eligible for full retirement. Ballow advised Spence that Troy was
being instructed to keep a log of Spence's activities on a daily basis
and that Ballow would use this at an appropriate time. Ballow indicated
that he would not respond to FLRA questions because it was none of their
"damn business." Finally, Ballow informed Spence that the Selective
Retention Board had not accepted Ballow's recommendation that Spence not
be retained. Ballow told Spence that Ballow "would still have eight
months to build a case that would get the same results." /22/
Spence received a Letter of Reprimand dated July 14, 1981 from Col.
Ballow referring to the July 11, 1981 meeting. In the letter Spence was
reprimanded for failure to execute his responsibility as a Master
Sergeant in the Illinois Air National Guard and his failure to take the
lead in maintaining the standards of the Department of Defense, Air
Force and Air National Guard. The letter then specifically advised
Spence " . . . you are charged with violation of DOD Directive 1354.1 by
supporting the filing of an unfair labor practice charge through the
Illinois Air Chapter #34, Association of Civilian Technicians, Inc.,
concerning your military membership in the Illinois Air National Guard."
The letter additionally advised Spence "further attempts to regulate . .
. military . . . decisions through unauthorized and/or inappropriate
means could possibly result in more severe disciplinary action to
include demotion in rank and discharge from the Illinois Air National
Guard. Further attempts by either the Illinois Air Chapter #34,
Association of Civilian Technicians, Inc., or the Federal Labor
Relations Authority to interfere on your behalf in the military
decision-making process concerning your military service will be
considered as a further violation of military command authority and
conduct unbecoming of a noncommissioned officer." Spence was finally
advised that the Letter of Reprimand would be placed in his Commander's
file for a period not to exceed one year.
During July 1981, /23/ Ballow advised Davis, Commander of the
Illinois Air Guard, of the July 11 meeting with Spence and that the
Selective Retention Board had not concurred in the recommendation not to
reenlist Spence. Ballow advised Davis that Ballow would not appeal the
Selective Retention Board action, but, instead, would build his case
against Spence.
After receiving the Letter of Reprimand, Spence filed a new unfair
labor practice charge based on the July 11 meeting and the Letter of
Reprimand. A Complaint was issued in that case.
By letter dated September 9, 1981, Ballow advised Spence, officially,
that the Adjutant General had approved Spence's retention in the Air
National Guard and been determined acceptable for reenlistment in
accordance with ANGR 39-06.
In October 1981, Dorethy gave Spence an "outstanding" rating in all
categories on Spence's "Appraisal by Military Supervisor."
By memorandum dated February 1, 1982 Troy, as Spence's Military
Commander, notified Spence that Troy intended to deny Spence's
reenlistment under ANG 39-09. /24/ The reason given was, "It is in the
best interest of the Government." The memorandum advised Spence that if
he did not concur in the action, he could appeal to his Commander,
Ballow. Spence filed such an appeal.
On March 27, 1982, Troy advised Davis that Troy was not going to
reenlist Spence. /25/ Davis instructed Troy " . . . make sure you can
justify it, and I want reasons for it, otherwise, I'm not going to sign
off on it." Troy stated that he would comply.
On April 7, 1982, Ballow wrote Davis setting forth a list of reasons
for refusing to reenlist Spence. On April 15, 1982 Davis held a
"Commander's Call" to discuss the Spence matter with a number of the
Illinois Air National Guard commanders. On this same day, Ballow sent a
memorandum to Spence advising Spence that Ballow had presented his
conclusion to Davis that Ballow concurred in Troy's decision not to
enter into another reenlistment/extension contract with Spence when the
current term expires on May 8, 1982. Ballow gave no reasons for his
decision, except to state that Troy's decision was "based on military
reasons with the best interest of the Government and his unit as the
motivating factors" and that Ballow was "unable to find any connection
between Lt. Col. Troy's denial of your reenlistment/extension and any
lawful civilian activities . . . " Spence was advised that the matter
was currently under review by Davis.
On April 28, 1982, Spence and a Union representative met with Phipps
and Respondent's representatives. Spence made a presentation and Phipps
asked his own staff people for any comments. General Ralph Bush replied
that he had known Spence for many years and that they "sat on both sides
of the fence in hearings and so forth" and that Spence had "a very good
work record, been a good individual, military as well as civilian." Bush
said that Spence was "above reproach" and that the whole matter was a
personality clash between Spence and Ballow and that it was all probably
brought about by Spence's filing "so many unfair labor practice charges
and grievances . . . " Davis said that he would not let these matters
enter into his decision. Soon after this meeting, Phipps called Davis
requesting that Davis provide Phipps with justification for the action
against Spence so that Phipps could respond to Congressional Inquiries.
On April 30, 1982, Davis wrote such a letter, showed it to Lawrence and
read it over the phone to Ballow, who said he agreed with everything in
the letter, and then hand carried the letter to Phipps. On that same
day, April 30, 1982, the orders were cut discharging Spence from the
National Guard. Davis' April 30, letter stated that he concurred with
the conclusion of Troy and Ballow in denying reenlistment of Spence.
Davis relied on Spence's performance at Red Flag and Volk Field;
Spence's history of dress and grooming violations of AFR 35-10, which
Davis construed as defiance of authority; the fact that Spence was not
a new recruit and should be able to perform his military duties in a
satisfactory manner; Spence's failure "to become a member of the team"
and his becoming "an adversary," openly criticizing officers and NCO's
and creating conflicts with commanders; and Spence's failure, after
being put on notice of his shortcomings, to improve and join the team.
On May 3, 1982, Phipps sent a letter to Spence, attaching Davis'
April 30 letter, stating that Phipps concurred with the Davis' findings.
Spence received Phipps letter on May 4, 1982.
Discussions and Conclusions of Law
Respondent's initial contention is that the FLRA lacks jurisdiction
in the subject case. Respondent alleges that it separated Spence from
his civilian employment in Illinois Air National Guard, because it was
compelled to, as a matter of law, pursuant to Section 709(e)(1) of the
National Guard's Technician Act of 1968, 32 U.S.C. 709, hereinafter
called NGT Act. This law in substance requires that all employees of
the National Guard, Civilian Technicians, must be military members of
the National Guard, and once that military status ceases, the employee
must be separated from his civilian employment in the National Guard.
Respondent argues further that the Statute does not confer upon the FLRA
any jurisdiction to review the military actions of the National Guard,
including discharges or refusals to reenlist members in the National
Guard. Accordingly, Respondent argues, that because the Illinois Air
National Guard was required by law to separate Spence from his civilian
employment once Spence had been refused reenlistment in the Illinois Air
National Guard, the FLRA has no jurisdiction over the matter.
General Counsel for the FLRA contends that the Statute does grant
FLRA jurisdiction in the subject case. General Counsel of the FLRA
argues that the subject matter of the case is the termination of the
civilian employment of Spence because he engaged in activity protected
by the Statute and that the "military decision" to discharge Spence was
a pretext to achieve the unlawful objective of separating Spence from
his civilian employment because Spence had engaged in the protected
activity. In these circumstances, it is contended that the FLRA has
jurisdiction over the "military" decision to separate Spence.
Respondent points out that courts are reluctant to interfere with the
military-decision making of the National Guard, e.g., Gilligan v.
Morgan, 413 U.S. 1 (1973); Rostker v. Goldberg, 453 U.S. 57, (1981).
Section 7103(a)(2) of the Statute provides that an "employee" is an
individual employed in an agency or whose employment in an agency ceased
because of an unfair labor practices, but does not include "(ii) a
member of the uniformed services; . . . " Further Respondent points out
that courts grant deference to the military in the area of military
enlistments or reenlistments, e.g. Schulke v. United States, 544 F.2d
453 (10th Cir. 1976); Neal v. Secretary of the Navy, 472 F.Supp. 763
(E.D. Pa, 1979). Although decisions by the military deserve deference,
they are not unreviewable in the courts, e.g., Mindes v. Seaman, 453
F.2d 197 (5th Cir. 1971); Lindenau v. Alexander, 663 F.2d 68 (10th Cir.
1981); and Suro v. Padilla, 441 F.Supp. 14 D.P.R. (1976).
The instant case presents the problem of reconciling two separate
considerations that seem to be inconsistent. One consideration is
affording federal employees the protection of the Statute and the other
is exempting military personnel from the coverage of the Statute. In
Section 7101 of the Statute, Congress states that "labor organizations
and collective bargaining in the civil service are in the public
interest . . . " and that the Statute "prescribes certain rights and
obligations of the employee of the Federal Government . . . . " Section
7102 of the Statute provides, in part, that employees have the right to
form, join, or assist any labor organization and to engage in collective
bargaining with respect to conditions of employment. For these purposes
civilian employees of the various State National Guards have been
recognized as employees within the meaning of the Statute and subject to
the Statute's protections. See Michigan Army National Guard, Lansing,
Michigan, 11 FLRA 365 (1983).
Members of the National Guard, in their military capacity, however,
are not covered by the Statute, and cannot organize or collectively
bargain over the terms of their military duties. Section 7103(a)(2) of
the Statute; Cf. New Jersey Department of Defense, New Jersey Air
National Guard, 177th Fighter Interceptor Groups, A/SLMR No. 835 (1977).
National Guard Technicians are employed pursuant to the National
Guard Technicians Act of 1968, 32 U.S.C. 709. Section 709(e)(1) of the
NGT Act provides that a technician who is separated from the Guard, as a
military member "shall be promptly separated from his technician
employment." Respondent argues that Spence was a military member of the
National Guard, and as such, was not subject to the provisions and
protections of the Statute. Therefore, it is submitted, the decision
not to reenlist Spence and to discharge him from his military membership
in the Guard, was a purely military decision, is not within the purview
of the Statute, is outside the jurisdiction of the FLRA and is therefore
unreviewable by the FLRA. Finally, Respondent argues that Spence was
separated as a civilian technician because such action is required by
Section 709(e)(1) of the NGT Act. The Respondent contends, in light of
the foregoing, that the Statute does not grant the FLRA jurisdiction to
review termination of a technician pursuant to Section 709(e)(1) of the
NGT Act, citing in support of this contention New Jersey Air National
Guard v. FLRA, 677 F.2d 276 (3rd Cir. 1982). /26/
The relationship of technicians in the Guard to the federal and state
authorities is a subtle and complex one because of technicians' dual
capacity as both civilian and military employees. Congress first
attempted to deal with this relationship when it enacted the NGT Act.
When it passed the Statute, Congress superimposed another set of
obligations and rights on the relationship. The accommodation of these
various rights and obligations, which may appear conflicting and
unreconcilable, is the problem presented in the subject case.
As discussed above, the Statute excludes from coverage the solely
military aspects of technicians. Further, courts generally give great
deferences to purely military decisions. However, in harmonizing all of
competing considerations, statutory interpretation should deal with
matters in a realistic way, and not by some overly formalistic or
abstract approach.
The FLRA, in attempting to reconcile the Statute and the NGT Act,
interpreted the Statute in such a way as to limit the apparently
unlimited power of the Adjutant Generals, as provided in Section 709(e)
of the NGT Act. Michigan Army National Guard, 11 FLRA 365 (1983) and
the cases cited therein in the footnote. The FLRA held that, with
respect to matters over which NGT Act seemed to grant absolute authority
to the Adjutant Generals, where those matters affect the civilian
employment of technicians, collective bargaining is mandated by the
Statute. Cf. National Association of Government Employees, Local
R12-132 and California National Guard, 5 FLRA No. 25 (1981), reversed
sub nom. California National Guard v. FLRA, 697 F.2d 874 (9th Cir.
1983). I, of course, must follow the decisions and interpretations of
the FLRA.
In the subject case, I conclude that, the FLRA has jurisdiction where
it is alleged that a member of the National Guard is denied reenlistment
and is discharged, in his military capacity from the National Guard,
because the guardsman had engaged in conduct protected by the Statute,
which discharge results in the separation of the guardsman, pursuant to
Section 709(e)(1) of the NGT Act, from his civilian employment as a
technician. To hold otherwise would be to completely frustrate and
negate the entire application of the protections of the Statute to the
National Guard. It would enable any state component of the Guard to
deny the protections of the Statute to civilian technicians, by merely
discharging the technician from his military membership in the Guard.
Such an interpretation would be tantamount to denying coverage of the
Statute to the National Guard civilian technicians. Such was the
holding of the undersigned Administrative law Judge under the Executive
Order 11491 in Department of Defense, National Guard Bureau, Texas Air
National Guard, A/SLMR No. 336, (1974). /27/ In reversing the ALJ's
decision the Assistant Secretary of Labor stated that because the
separation of the alleged discriminatee could have been raised under an
appeals procedure covered by Section 19(d) of Executive Order 11491,
therefore, "I am precluded from determining, in the context of an unfair
labor practice proceeding, whether Burgamy was in fact, denied
reenlistment for discriminatory reasons." The Assistant Secretary held,
accordingly, that he had jurisdiction to determine whether the
discriminatee had been denied his military reenlistment for
discriminatory reasons, but, because Respondent had raised a meritorious
defense, i.e., an appeal was available within the meaning of Section
19(d) of the Executive Order 11491, the Assistant Secretary need not
reach or make the factual determination of discriminatory motivation.
Section 7135 of the Statute provides that the decisions of the Assistant
Secretary under Executive Order 11491 are binding until reversed. This
holding had not yet been reversed.
Many "rules" exist for statutory interpretation, but where Congress
has given no clear guidance, it appears that common sense and an attempt
to reasonably accommodate the conflicting considerations is the most
rational approach. In attempting to reconcile the conflicting statutes
and considerations, I conclude that Congress did not intend to exempt
civilian technicians employed by the National Guard from the protections
of the Statute. The decision to discharge someone from his military
membership in the Guard, when the real purpose is to discriminatorily
affect that person's civilian employment, is not a "military" decision
at all and this does not come under the "military" exemption of the
Statute nor does the FLRA have to defer to the Guard with respect to
such pretextual "military" decisions. In so holding, I am not
concluding that the Statute grants complete jurisdiction over enlistment
and reenlistment decisions, even where discriminatory motive is alleged,
but rather that the enlistment decision is open to examination and to
determination whether it was for unlawful and discriminatory purposes.
Respondent argues that Tennessee v. Dunlap, 426 U.S. 312 (1976) is
dispositive of the subject case because it holds that when a technician
is separated pursuant to Section 709(e)(1) of the NGT Act, the
discharge, is unreviewable. Tennessee v. Dunlap, supra, however, is
inapposite. It deals solely with statutory construction of the NGT Act
and the relationship between Section 709(e)(1) and Section 709(e)(3) of
the NGT Act. Section 709(e)(1) provides that technicians must be
separated if no longer a military member of the National Guard and
Section 709(e)(3) provides that a technician can be separated for
"cause." The Supreme Court concluded that Congress, in enacting the NGT
Act, intended to make these alternative grounds for separation and did
not intend a "cause" standard to apply to each of the other grounds for
separation. The Supreme Court was not trying to reconcile the Statute
and the NGT Act and their different aims and considerations. Similarly
the other cases cited by Respondent are not applicable to the subject
case. /28/
In light of the foregoing, I conclude that FLRA does have the
jurisdiction to examine the allegations that Spence was refused
reenlistment and was discharged as a military member of the National
Guard in order to discriminatorily discharge Spence from his civilian
employment as a technician by the Illinois Air National Guard, because
Spence had engaged in protected union activity and because he had filed
unfair labor practice charges and given testimony in support of said
charges.
General Counsel of the FLRA first alleges that Spence's discharge
violated Section 7116(a)(1) and (2) of the Statute because it was
motivated by Spence's activities on behalf of Chapter 34 ACT. The
record establishes that Spence had been extremely active for many years,
on behalf of Chapter 34 ACT, holding a number of different Union
offices, filing many grievances and unfair labor practices charges on
behalf of the Union, and negotiating on behalf of the Union. Further it
is established and undenied that Spence's activities on behalf of
Chapter 34 ACT were well known to Respondent and its agents.
I conclude that the record fails to establish that Respondent decided
to separate Spence because of his activities on behalf of Chapter 34
ACT. Spence, and many others, had been active on behalf of the union
for a number of years with no history of discrimination or anti-union
animus on the part of Respondent. Further, the record establishes that
Respondent originally recommended that Spence not be reenlisted because
of Spence's conduct at the Red Flag and Volk Field exercises, as well as
other perceived shortcomings in Spence's performance of his military
duties.
General Counsel of the FLRA bases its allegation that Spence was
separated because of his union activity primarily on the statement of
Bush, Assistant Adjutant General of the State of Illinois for the Air
National Guard. Bush stated to General Phipps that apparently the whole
matter was a personality clash between Spence and Ballow and that it was
probably brought about by Spence's filing "so many unfair labor practice
charges and grievances . . . " These comments by Bush were not the
position of the Respondent, nor did they express the result of any
investigation, rather, they were pure conjecture and General Bush's
personal guess as to why Spence was being separated. These remarks are
hardly probative evidence of the underlying reasons for the refusal to
reenlist Spence. General Counsel of the FLRA also submitted evidence
that in 1980 and 1981, Spence received the maximum points possible on
his appraisal for his military performance. However these appraisals
were used for RIF purposes and were obviously not given much other
consideration. Therefore, I find them unpersuasive with respect to a
true or accurate appraisal of Spence's military performance. In this
regard, I note that Spence's APR of April 1981 was unfavorable,
recommended his non-reenlistment and set forth many substantial
shortcomings in Spence's performance of his military duties, many of
which had already been brought to Spence's attention.
Thus the record herein paints the picture of a guardsman, Spence,
whose performance of his military duties began to go down hill
substantially in 1980 and continued to deteriorate. Because of this
deterioration, not because of his union activity, Spence's superiors
determined to recommend against his reenlistment. They were however
overridden by the Selective Retention Board and Respondent acquiesced in
this determination. Spence was advised orally at the July 11, 1981
meeting that, pursuant to the Selective Retention Board's determination,
he was being reenlisted, and in writing by memo dated September 9, 1981
that the Adjutant General approved Spence's retention in the Air
National Guard and that Spence had been determined acceptable for
reenlistment in accordance with ANGR 39-06. Thus, officially,
Respondent rejected the recommendation that Spence not be reenlisted
and, accordingly, rejected the position of Spence's superiors that
Spence's military performance was so deficient as to justify his
reenlistment.
Thus the record fails to establish that this original decision by
Spence's superiors not to recommend reenlistment was based in any way on
Spence's activity on behalf of the Union.
However, it was at the July 11, 1981 meeting that a new matter was
added to the situation, that is, the fact that Spence had participated
in the filing of an unfair labor practice charge with the FLRA, pursuant
to the Statute, alleging that Respondent had violated the Statute by
recommending Spence not be reenlisted for discriminatory reasons. As
discussed above such an allegation of discrimination is within the
purview of the Statute and is the valid subject of an unfair labor
practice charge. Ballow, in Troy's presence, made it quite clear that
he found the use of the Statute and its procedures totally unacceptable
and "illegal." Ballow told Spence that if Spence did not withdraw the
charge Ballow would take action against Spence which might include
demotion and dismissal. Further, Spence was advised that Troy would
keep a daily log of Spence's activities and he would use it at an
appropriate time. Ballow further stated that he would not respond to
FLRA questions because it was none of their "damn business." This
meeting was followed by a memo dated July 14, 1981 which formally
reprimanded Spence for "supporting the filing of an unfair labor
practice charge through the Illinois Air Chapter #34, Association of
Civilian Technicians, Inc., concerning your military membership in the
Illinois Air National Guard. . . . " The memorandum also stated that the
filing of the unfair labor practice charge has "the purpose of
attempting to influence, coerce . . . the authority of your commanders."
Spence was formally warned in the memo "further attempts to regulate or
influence military policies and decision through unauthorized/or
inappropriate means could possibly result in more severe disciplinary
action to include demotion in rank and discharge from the Illinois Air
National Guard. . . . "
In light of the foregoing, I conclude that the record establishes
that Ballow and Troy determined to rid themselves of Spence because he
filed the unfair labor practice charge and that they were using the
denial of Spence's military reenlistment to punish Spence for filing
such an unfair labor practice and to rid themselves of Spence. This
decision to punish Spence for filing the unfair labor practice by
denying Spence reenlistment necessarily resulted in Spence being
separated from his civilian employment as a technician.
In reaching the foregoing conclusion, I note particularly that the
matters Respondent set forth to justify the denial of Spence's
reenlistment were substantially the grounds upon which the original
recommendation of non-reenlistment had been based and substantially all
existed when the Selective Retention Board decided to approve Spence's
reenlistment, when he was advised on July 11 of the Selective Retention
Board's action and when he received the September 9, 1981 memorandum
advising him that the Adjutant General approved Spence's retention in
the Air National Guard. Thus all these "shortcomings" in Spence's
performance of his military duties had already been considered and been
found not sufficient to warrant denying reenlistment. In effect they
had been condoned in so far as permitting Spence to reenlist.
Respondent contends that the subject case is a "Wright-Line"
situation. Respondent contends this is a mixed-motive situation and
that Respondent would have refused Spence's reenlistment, even if Spence
hadn't engaged in the protected activity. Accordingly, Respondent
contends it did not commit an unfair labor practice. Cf. Internal
Revenue Service, 6 FLRA 96 (1981); Federal Correctional Institution, 7
FLRA 315 (1981); Mt Healthy City Public School District, Board of
Education v. Doyle, 429 U.S. 274 (1977); Wright-Line, a Division of
Wright Line, 251 NLRB 1083 (1980). However, in light of the foregoing
discussion, this is not a mixed motive case. Rather, I conclude that
the military justifications for denying Spence's reenlistment for this
action were not the real reasons and were pretexts in order to punish
Spence for filing an unfair labor practice charge which necessarily
resulted in the separation of Spence from his civilian employment.
Accordingly, all the mixed motive cases set forth above are not in
point. /29/
Sections 7116(a)(1), (2) and (4) of the Statute provide:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment;
(4) to discipline or otherwise discriminate against an employee
because the employee has filed a complaint, affidavit, or
petition, or has given any information or testimony under this
chapter;
In the subject case Spence was denied reenlistment in the Guard
because he filed an unfair labor practice charge which had alleged that
previously, it had been recommended that Spence not be reenlisted
because Spence had engaged in protected activity on behalf of the Union.
As discussed above, such allegations are within the jurisdiction of the
FLRA and are cognizable under the Statute and Spence's right to invoke
the Statute's protection must be protected by the FLRA. Where, as here,
Respondent punished Spence for filing and pursuing an unfair labor
practice charge, when Respondent knew its action had to result in
Spence's separation as a civilian employee, Respondent's action violated
Sections 7116(a)(4) and (1) of the Statute. This section was
specifically designed to protect employee rights to utilize and invoke
the protections of the Statute and to protect the FLRA's processes.
Respondent's action, which necessarily affected Spence's civilian
status, was a clear and open attack on the FLRA's processes and a
message to all employees that, if they attempted to utilize the
Statute's protection, they too could find their civilian employment
terminated. Thus, Respondent's action in denying Spence reenlistment in
order to punish Spence for filing an unfair labor practice charge
constituted a violation of Sections 7116(a)(4) and (1) of the Statute.
Further, because Spence, in pursuing the unfair labor practice charge,
was acting in concert with Chapter 34 Act, the action taken against him
also violated Sections 7116(a)(2) and (1) of the Statute.
In light of all of the foregoing, having concluded that Respondent
refused to reenlist Spence as a military member of the Illinois Air
National Guard, which action would result in the separation of Spence
from his civilian employment as a technician, in order to punish Spence
for having filed an unfair labor practice charge and having supported
the Union in the processing of the charge, I conclude that Respondent
violated Sections 7116(a)(4), (2) and (1) of the Statute.
Having concluded that Respondent's action constituted a violation of
the Statute, the remedy appropriate to rectify Respondent's action must
be considered. As discussed above, I concluded that, although I have no
jurisdiction over Respondent's military "decision," I can examine
Respondent's motives in refusing to reenlist to determine whether it was
merely a means to accomplish objectives which violate the Statute. I
further concluded Respondent's "military decision" was such a method to
achieve these unlawful objectives. In attempting to fashion an
appropriate remedy, it is again necessary to accommodate diverse
considerations, while at the same time rectifying the wrongs done to
Spence. In light of this, I will not order Respondent to reenlist
Spence in the Illinois Air National Guard because, although I may be
able to examine the discharge from the military position with respect to
motives and objectives, I do not have jurisdiction over the "military"
aspect of Respondent. Additionally, in light of the mandate of Section
709(e)(1) of the NGT Act, absent reenlistment, I can not require that
Respondent reinstate Spence to his civilian position as a technician.
Within these legal limitations, I conclude that the subject violations
can best be remedied by ordering Respondent, inter alia, to offer Spence
reinstatement to his civilian technician position when it can lawfully
do so, and to make Spence whole for any loss of pay in the past and in
the future, until such time that Respondent can lawfully offer Spence
reinstatement.
Having found and concluded that Respondent violated Sections
7116(a)(1), (2) and (4) of the Statute, I recommend the Authority issue
the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that, Department of Defense, Illinois National Guard,
182nd Tactical Air Support Group, Peoria, Illinois, shall:
1. Cease and desist from:
(a) Discharging or refusing to reenlist members of Illinois Air
National Guard because they file unfair labor practice charges or
engage in other activities protected by the Federal Service
Labor-Management Relations Statute.
(b) Discharging or separating civilian employees of the
Illinois Air National Guard because they file unfair labor
practice charges or engage in other activities protected by the
Federal Service Labor-Management Relations Statute.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Offer William L. Spence reinstatement to his position as a
civilian technician, when this may be lawfully accomplished.
(b) Make William L. Spence whole for any loss suffered by
reason of his discharge from his civilian technician position
until such time as he is lawfully offered reinstatement to his
position as civilian technician.
(c) Post at its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Adjutant
General, Illinois Air National Guard, or his designee, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Adjutant
General shall take reasonable steps to insure that such Notices
are not altered, defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: August 19, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discharge or refuse to reenlist members of Illinois Air
National Guard because they file unfair labor practice charges or engage
in other activities protected by the Federal Service Labor-Management
Relations Statute. WE WILL NOT discharge or separate civilian employees
of the Illinois Air National Guard because they file unfair labor
practice charges or engage in other activities protected by the Federal
Service Labor-Management Relations Statute. WE WILL NOT in any like or
related manner, interfere with, restrain, or coerce employees in the
exercise of rights assured by the Federal Service Labor-Management
Relations Statute. WE WILL offer William L. Spence reinstatement to his
position as a civilian technician, when this may be lawfully
accomplished. WE WILL make William L. Spence whole for any loss
suffered by reason of his discharge from his civilian technician
position until such time as he is lawfully offered reinstatement to his
position as civilian technician.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) This Notice must remain posted
for 60 consecutive days from the date of posting and must not be
altered, defaced or covered by any other material. If employees have
any questions concerning this Notice of compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region V, whose address is: 175
West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and whose
telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ Sec. 709(e) provides, in pertinent part, as follows:
(e) Notwithstanding any other provision of law and under
regulations prescribed by the Secretary concerned--
(1) a technician who is employed in a position in which
National Guard membership is required as a condition of employment
and who is separated from the National Guard or ceases to hold the
military grade specified for his position by the Secretary
concerned shall be promptly separated from his technician
employment by the adjutant general of the jurisdiction concerned;
(2) a technician who is employed in a position in which
National Guard membership is required as a condition of employment
and who fails to meet the military security standards established
by the Secretary concerned for a member of a reserve component of
the armed force under his jurisdiction may be separated from his
employment as a technician and concurrently discharged from the
National Guard by the adjutant general of the jurisdiction
concerned;
(3) a technician may, at any time, be separated from his
technician employment for cause by the adjutant general of the
jurisdiction concerned;
(4) a reduction in force, removal, or an adverse action
involving discharge from technician employment, suspension,
furlough without pay, or reduction in rank or compensation shall
be accomplished by the adjutant general of the jurisdiction
concerned;
(5) a right of appeal which may exist with respect to clause
(1), (2), (3), or (4) shall not extend beyond the adjutant general
of the jurisdiction concerned(.)
/2/ See also Tennessee v. Dunlap, 426 U.S. 312 (1976).
/3/ The record in this matter was completed with the receipt of a
copy of General Counsel's Exhibit 10, on July 8, 1983. Further,
Charging Party, in its brief renews its request that I receive into
evidence a non-FLRA settlement agreement in Case Nos. 5-CA-1112 and
5-CA-1233 in order to show that Respondent had tried to harm the Union
and Spence in the past. (Charging Party's Exhibit No. 1, contained in
the rejected Exhibit file). Charging Party's request is hereby denied.
/4/ Spence had just recently completed four years of active military
duty in the United States Air Force.
/5/ 32 U.S.C. 709(b). This requirement will be discussed infra, in
the Discussion and Conclusions section.
/6/ This military appraisal is used in conjunction with the civilian
technician appraisal to determine the technician's retention standing in
the event of a reduction in force.
/7/ 32 U.S.C. 709(d)(e).
/8/ Pursuant to Air National Guard Regulation (ANGR) 39-06.
/9/ Spence had served as Chapter 34 ACT's chief negotiator from 1971
to 1973, when a collective bargaining agreement was entered into.
/10/ ALJ Oliver recommended dismissal of the complaint, concluding no
unfair labor practice had been committed. The FLRA affirmed the ALJ.
182nd Tactical Air Support Group, Illinois Air National Guard, etc. 10
FLRA 381 (1982).
/11/ All were also Spence's supervisors with respect to Spence's
civilian employment.
/12/ The Red Flag exercise is discussed infra.
/13/ Troy did not specifically refer to either the "Red Flag" or
"Volk Field" exercises.
/14/ A load code is a code given by Operations and Maintenance which
specifies the fuel and munitions load and configuration on an aircraft.
/15/ Staton had been assigned to maintenance control since December
1980 and had attended only one or two unit training assembles prior to
Red Flag.
/16/ In fact her first real training in maintenance control did not
begin till March 3, 1981, three weeks after "Red Flag."
/17/ Although flying was cancelled, the maintenance control function
continued.
/18/ There had been an aircraft accident and Dorethy was involved in
trying to deal with that problem.
/19/ With respect to findings of fact concerning the Volk Field and
Red Flag exercises. I find Spence to be an unreliable witness. His
memory was vague, his testimony confused and contradictory and answers
to questions were often evasive. Accordingly, I discredit his testimony
and rely on the testimony of the other witnesses in determining what
occurred.
/20/ With respect to his training obligations and performance, I
discredit Spence, finding his testimony was evasive and contradictory.
Accordingly, I rely on Briney's reports.
/21/ In accord with military protocol.
/22/ Spence's testimony with respect to this meeting undenied and
unrefuted and is therefore credited.
/23/ After July 11, 1981.
/24/ Spence was in the hospital when he received this notice. He had
had been absent from work because of illness for approximately 35-40
days.
/25/ Davis already was aware of this. He had already discussed this
with Ballow a number of times.
/26/ American Federation of Government Employees, AFL-CIO, Local 3486
and New Jersey Air National Guard, 177th Fighter Interceptor Group,
Pomona, New Jersey, 5 FLRA No. 26 (1981) reversed sub nom. New Jersey
Air National Guard v. FLRA, 677 F.2d 276 (3rd Cir. 1982).
/27/ The issues as presented under Executive Order 11491 and the
Statute are substantially identical insofar as they concern harmonizing
the considerations of the labor relations statute and the "military"
decision of the National Guard.
/28/ Respondent urges that the decision of the Court of Appeals in
New Jersey Air National Guard v. FLRA, supra, is dispositive of the
subject case. However, I am bound by the FLRA's interpretation of the
Statute, unless it acquiesces the Court's interpretation, which it has
not. Cf. Michigan Army National Guard, supra.
/29/ However, even if this were a mixed motive situation, the record
establishes that, had it not been for Spence's filing of the unfair
labor practice charge and Respondent's desire to punish him for filing
such charge Respondent would not have refused to reenlist Spence.
Further once General Counsel established that Spence's protected
activity was a cause for his military discharge, the burden was on
Respondent to establish that it would have discharged Spence, even if he
had not engaged in this protected activity. NLRB v. Transportation
Management, U.S. Supreme Court, No. 82-168, 103 S.Ct. 2469 (June 15,
1983). Respondent did not meet this burden. As discussed above, the
record establishes quite the contrary; the record establishes that
Spence was in fact discharged from his military and, hence, his civilian
positions, because he had filed an unfair labor practice charge.