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 supe