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 ]
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.