United States Department of the Air Force, Seymour Johnson Air Force Base (Respondent) and National Association of Government Employees, Local R5-188 (Union/Charging Party)

[ v57 p884 ]

57 FLRA No. 188

UNITED STATES
DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188
(Union/Charging Party)

WA-CA-00424
WA-CA-00425

_____

DECISION AND ORDER

June 25, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. [n2] The General Counsel (GC) filed an opposition to the Respondent's exceptions and a cross-exception to the Judge's decision. The Respondent did not file an opposition to the GC's cross-exception.

      The complaint in this case alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) removing an Air Reserve Technician (ART) from the list of employees selected for deployment on a mission because of his protected union activity; and (2) informing the ART that he had been removed from the deployment list because he "caused too many waves." GC's Complaint at 3.

      The Respondent moved to dismiss the complaint for lack of jurisdiction on the ground that the complaint involved a military matter. The Judge denied the Respondent's motion. On the merits, the Judge concluded that the Respondent had violated the Statute by removing the ART from the list of alternates for deployment. The Judge did not resolve the allegation that the Respondent violated the Statute by telling the ART that he had been removed from the deployment list because he caused too many waves.

      Upon consideration of the Judge's decision and the entire record, we conclude that the Respondent did not commit the unfair labor practices alleged in the complaint because the allegations in the complaint relate to a military matter and are therefore outside our jurisdiction. Accordingly, we dismiss the complaint.

II.     Background and Judge's Decision

      The facts, which are fully set forth in the Judge's decision, are briefly summarized here.

      ARTs are civilian employees who must maintain membership in the Air Force Reserve in order to retain their civilian positions. In this case, the ART in question is with the 916th Aircraft Generation Squadron. The Squadron consists of 350 reservists and civilian employees who support tanker aircrafts, which in turn provide air refueling and airlift support for troops on a contingency basis overseas.

      In October 1999, in response to the Respondent's solicitation for volunteers, the ART volunteered for deployment to Istres, France in February 2000 as part of an Air Expeditionary Force to support NATO action in Kosovo. It is undisputed that all personnel must be in military status for such overseas deployments.

      The Flight Chief placed the ART on the alternate list for the deployment, since the ART had previously been deployed to Istres in 1998. The ART was removed from the list sometime before the deployment began in February 2000.

      At the hearing before the Judge, the Respondent argued that the Authority lacked jurisdiction over the case because it involved a military matter. The Judge denied the motion at the close of the hearing, stating that the issues raised "are not really military considerations." Tr. at 281. [ v57 p885 ]

      As to the allegations in the complaint, the Judge found that the reasons proffered for the ART's removal from the list of alternates were pretextual since "the record showed no conduct or action by [the ART that] would have warranted removal of his name as an alternate" other than his protected activities[n3] Judge's Decision at 19. In addition, the Judge found that the Flight Chief told the ART that he had been directed to remove his name from the list of alternates for deployment because the ART "caused too many waves," and that this statement referred to the ART's protected activity. Id. Based on these findings, the Judge concluded that the Respondent removed the ART's name from the list of alternates for deployment because of the ART's protected activity, and that such action violated § 7116(a)(1) and (2) of the Statute. The Judge did not resolve whether the Flight Chief's statement to the ART constituted a separate violation of the Statute.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent excepts to the Judge's decision in two respects:

1.     Jurisdiction

      The Respondent claims that the Judge erred in denying its motion to dismiss and asserting jurisdiction over the Respondent's decision regarding a military mission. The Respondent argues that its "determinations [regarding] who would be selected to deploy, or who would be an alternate for deployment" are "military decisions," and that "the courts and the Authority have recognized that military decisions are nonjusticiable." Exceptions at 6. The Respondent argues that the Authority should apply the same principles that it has used to find proposals outside the duty to bargain when they involve a military aspect of National Guard Technician employment. Id. at 7, citing ACT, Schenectady Chapter, 55 FLRA 925, 932-33 (1999), aff'd, 230 F.3d 377 (D.C. Cir. 2000) (finding union proposals relating to deployment of National Guard Technicians non-negotiable).

      The Respondent also asserts that the Authority should follow the approach taken by the Equal Employment Opportunity Commission (EEOC) and federal courts "in . . .  analogous situation[s] involving administrative and court litigation under the various civil rights statutes." Exceptions at 9. The Respondent cites numerous decisions by the EEOC and circuit courts of appeals for the proposition that "federal [dual status] technicians are covered by [such statutes] only when the alleged discriminatory action arises from their capacity as civilian employees, and not when personnel decisions affect their capacity as uniformed military personnel." Id. at 10, citing, among others, Lekander v. Dep't of the Air Force, EEOC No. 01943208, 1994 WL 746498 (Oct. 7, 1994) (Lekander).

2.     Merits

      The Respondent argues that even if the Authority has jurisdiction over this case, the Judge erred in finding that the ART was actually removed from the list of alternates for military deployment to France. In this respect, the Respondent maintains that the Flight Chief testified that the ART's name was always on the list of alternates and that the record establishes that none of the alternates was deployed. Accordingly, the Respondent asserts that since the ART's name was not removed from the list of alternates, no violation occurred and the complaint should be dismissed.

B.     GC's Opposition

      The GC maintains that the Respondent's decision to remove the ART from the list of alternates for deployment "was not a military one" and that the Judge was "not called upon to review the substance of a military decision when deciding whether Respondent's motive for removing [the ART's] name was retaliation for [the ART's] protected activity." Opposition at 5-6, citing Puerto Rico Air Nat'l Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico, 56 FLRA 174, 180 (2000) (Puerto Rico Air Nat'l Guard), aff'd on other grounds, 239 F.3d 66 (1st Cir. 2001) (Authority had jurisdiction over retaliatory suspension of National Guard Technicians' security clearances when agency's discriminatory reasons for suspension were undisputed and did not necessitate investigation).

      The GC further maintains that the Judge did not err in finding that the ART's name was removed from the list of alternates for deployment, based on protected activity, as this finding is fully supported by the record. [ v57 p886 ]

C.     GC's Cross-Exception

      The GC excepts to the Judge's failure to conclude that the Respondent violated § 7116(a)(1) of the Statute by the Flight Chief's statement to the ART that he was removed from the list of alternates for deployment because he "caused too many waves," and to the Judge's failure to recommend a remedy for this violation. In this respect, the GC claims that the Judge made the necessary findings to support this independent violation of the Statute by finding that the Flight Chief made this statement and that the statement was a reference to the ART's protected activities. The GC maintains that the statement "constituted a violation of § 7116(a)(1) even if the Authority lacked jurisdiction to review the decision to remove [the ART's] name from the deployment alternates list because it is the reasonably coercive impact of the statement, not its connection with conditions of employment, that is determinative." Cross-Exception at 7-8.

IV.     Analysis and Conclusions

      For the reasons explained below, we find that the Authority lacks jurisdiction over the allegations made in the complaint.

A.     Removal of the ART from the Deployment List of Alternates

      Under § 7103(a)(2)(B)(ii) of the Statute, members of the "uniformed services" are excluded from the definition of employee and, as a result, from coverage under the Statute. To accommodate the dual civilian and military nature of technician employment, the Authority considers whether an issue relates to the civilian aspect of that employment -- and is, therefore, within the protection of the Statute -- or whether the issue relates to the military aspect, which is outside the Statute's coverage. Specifically, in determining whether the Authority has jurisdiction to review an unfair labor practice complaint where an agency contends that the complaint involves a military matter outside the Authority's jurisdiction, the Authority decides the threshold question of "whether the underlying controversy relates to the civilian or military aspect of technician employment." Puerto Rico Air Nat'l Guard, 56 FLRA at 179. [n4] 

      This approach is consistent with that of a number of courts that have addressed military versus civilian aspects of employment in cases involving analogous claims of employment discrimination under Title VII, 42 U.S.C. § 2000e et seq. In Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000), for example, the court concluded, following the EEOC's approach, that claims arising purely from an ART's civilian position are cognizable under Title VII, while claims that originate from an ART's military status are not. [n5] Applying this standard, the court dismissed the ART's claim that his military discharge from the Air Force Reserve, which resulted in termination of his civilian employment, was discriminatory. In so doing, the court held that the ART sought review of actions taken by the military that formed the basis of his military discharge and that while these actions made him ineligible for his civilian position, they "were actions taken within the military sphere" and, therefore, not subject to review under Title VII. Id.

      Similarly, the Ninth Circuit has distinguished between the civilian and military status of National Guard technician employment and concluded that "because [National] Guard technicians are in a hybrid job entailing both civilian and military aspects, . . . Title VII coverage of civilians employed by the military encompasses actions brought by Guard technicians except when the challenged conduct is integrally related to the military's unique structure." Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995). In reaching this conclusion, the court observed that "[c]ourts have declined to review a variety of employment actions involving military personnel because, in the military, `overriding demands of discipline and duty' prevail, demands which do not have a counterpart in civilian life." Id. at 749, quoting Chappell v. Wallace, 462 U.S. 296, 300 (1983) (Chappell). [n6] In this respect, the court noted, inter alia, that a National Guard "technician's challenge to a military transfer is nonjusticiable in part because `transfer decisions go to the core of deployment of troops and overall strategies of preparedness.'" 57 FLRA at 750, quoting Sebra v. Neville, 801 F.2d 1135, 1142 (9th Cir. 1986). [ v57 p887 ]

      Also addressing National Guard technicians, the D.C. Circuit held in NFFE, Local 1623 v. FLRA, 852 F.2d 1349, 1352 (D.C. Cir. 1988) (NFFE, Local 1623), that procedures that addressed military assignment decisions concerned a military matter and were outside the duty to bargain. With respect to the military's autonomy in making military personnel decisions, the court stated that "the military enjoys special status, and its decisions involving the organization of security forces are especially shielded from outside interference." Id. at 1353. In the same vein, the Supreme Court has noted that the "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments." Chappell, 462 U.S. at 302, quoting Gilligan v. Morgan, 413 U.S. 1, 10(1973).

      In line with the foregoing, and as stated above, we must decide, as a threshold matter, whether the claim of discrimination relates to the civilian or military aspect of technician employment. We find that the alleged violation of § 7116(a)(2) by the Respondent in deciding to remove the ART from the list of employees selected for deployment to France on a NATO military mission relates to the military aspect of technician employment. Specifically, this allegation involves the Respondent's decision concerning the staffing of, or personnel assigned on, a military mission and, as such, the allegation involves conduct that does not fall within the protection of the Statute. [n7] Cf. ACT, Schenectady Chapter, 55 FLRA 925, 932-33 (2000) (Authority concluded that proposal was outside duty to bargain as it related to the staffing of a military assignment and attempted to influence a military decision regarding which employees will carry out military assignments in a military pay status).

      The GC's reliance on Puerto Rico Air Nat'l Guard to support its view that this case does not involve review of a military decision is misplaced. In Puerto Rico Air Nat'l Guard, the respondent, "rel[ying] exclusively" on the Supreme Court's decision in Dep't of the Navy v. Egan, 484 U.S. 518 (1988) (Egan), argued that the Authority was precluded from addressing whether an agency's retaliatory suspension of National Guard technicians' security clearances violated the Statute. Puerto Rico Air Nat'l Guard, 56 FLRA at 180. In Egan, the Court held that the Merit Systems Protection Board did not have the authority to review "the substance of an underlying decision to deny or revoke a security clearance" in the course of adjudicating an adverse action. Egan, 484 U.S. at 520. In this respect, the Authority found that Egan did not preclude its exercise of jurisdiction over the suspension of security clearances since it was unnecessary for the Authority to review the substance of the clearance decision in Puerto Rico Air Nat'l Guard. Rather, the Authority relied on the respondent's "unequivocal[]" statement that it suspended the clearances because of protected activity, i.e., picketing concerning civilian working conditions by these employees. Puerto Rico Air Nat'l Guard, 56 FLRA at 180. Thus, the Authority's exercise of jurisdiction over the concededly retaliatory suspension of security clearances in Puerto Rico Air Nat'l Guard is not inconsistent with the conclusion that we lack jurisdiction to review the Respondent's decision concerning the assignment of an ART as an alternate for deployment on a military mission.

B.     The Statement Made to the ART [n8] 

      We reject the GC's exception that, even if the Authority lacks jurisdiction to review the Respondent's decision to remove the ART from the list as a military matter, the Flight Chief's statement to the ART that he was removed from the list because he caused too many waves nonetheless violates § 7116(a)(1) of the Statute.

      As discussed above, in order to determine whether the Authority has jurisdiction to review this allegation of the complaint, we must determine whether the issue relates to the military or civilian aspect of technician employment. For the following reasons, we find that this allegation relates to a military aspect of ART employment and, as such, is outside our jurisdiction. [ v57 p888 ]

      The record demonstrates that the Flight Chief made the statement in response to the ART's specific question regarding why his name had been removed from the deployment list. See Tr. at 71, 78. In light of the context in which the statement occurred, and its clear relation to the Respondent's decision to remove the ART from the list of alternates for deployment on a military mission (which, as we found earlier, involves a military matter), we also find here that this claim is inextricably related to the Respondent's decision concerning the staffing of, or personnel assigned on, a military mission. Cf. 162nd Tactical Fighter Group, Ariz. Air Nat'l Guard, Tucson, Ariz., 20 FLRA 818 (1985) (Authority found violation of the Statute where alleged discriminatory conduct related to National Guard technicians' participation in an unfair labor practice hearing); 162nd Tactical Fighter Group, Ariz. Air Nat'l Guard, Tucson, Ariz., 18 FLRA 583, 586 (1985) (Authority found violation where alleged discriminatory conduct related to National Guard technicians' civilian and military obligations). As such, the alleged discrimination relates solely to a military matter and, therefore, involves conduct that does not fall within the protection of the Statute.

      This case is unlike Puerto Rico Air Nat'l Guard, in which the Authority found that the relevant allegations related to the civilian aspect of technician employment and, therefore, were within its jurisdiction. See Puerto Rico Air Nat'l Guard, 56 FLRA at 179-80. Specifically, the allegations in that case related to the civilian aspect of technician employment because they involved an order by the National Guard directing technicians not to engage in picketing that protested working conditions and a threat that employees who picketed would be photographed. Conversely, in this case, the context in which the statement was made related solely to the ART's non-selection as an alternate for deployment on a military assignment.

      In addition, we do not believe that the Authority's exercise of jurisdiction over the retaliatory suspension of security clearances in Puerto Rico Air Nat'l Guard supports a conclusion that the Authority has jurisdiction over the matter before us. In this respect, we note that in Puerto Rico Air Nat'l Guard, the Authority was not presented with the legal rationale that has been presented here, i.e., the line of court and administrative determinations finding that seemingly civilian employee issues of dual status technicians may not be reviewed because they are too intertwined with the military status of the individual.

      Also, as stated above, the discussion in which the statement was made relating to the denial of a military assignment to the ART is not so free of entanglement with his military status to permit us to assert jurisdiction over it. This circumstance is dissimilar to Puerto Rico Air Nat'l Guard. In that case, the alleged violation was from the revocation of the employees' security status in their civilian capacity; whereas here, the case pertains to the denial of a military assignment, a uniquely military issue, thereby making the assertion of jurisdiction, and any reliance on this aspect of the Puerto Rico Air Nat'l Guard decision, inapposite.

      For the foregoing reasons, the Authority lacks jurisdiction over the allegations in this case. [n9] Accordingly, we dismiss the complaint.

V.     Order

      The complaint is dismissed.


File 1: Authority's Decision in 57 FLRA No. 188
File 2: Opinion of Member Pope
File 3: ALJ's Decision


Footnote # 1 for 57 FLRA No. 188 - Authority's Decision

   Member Pope's opinion, concurring that the Authority lacks jurisdiction over the first allegation in the complaint but dissenting to the majority's conclusion that it lacks jurisdiction over the second allegation, is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 188 - Authority's Decision

   The complaint at issue in this case, WA-CA-00424, was consolidated with the complaint in WA-CA-00425 for hearing. The Judge found that the Respondent did not violate the Statute with regard to the allegations in WA-CA-00425 and dismissed that complaint. As no exceptions were filed with respect to the Judge's findings and conclusions in WA-CA-00425, the Authority adopts them without precedential significance pursuant to § 2423.41 of the Authority's Regulations. See, e.g., Fed. Bureau of Prisons, S. Cent. Region, Dallas, Tex., 55 FLRA 1250 (2000).


Footnote # 3 for 57 FLRA No. 188 - Authority's Decision

   During early to mid-November 1999, the ART requested official time, which was denied, to discuss filing a grievance with the Union over the Respondent's decision to rotate the shifts for ARTs in the Maintenance Squadron. In addition, the Union filed a grievance concerning the rotation of shifts for ARTs and filed another grievance on behalf of the ART over the denial of his request for official time.


Footnote # 4 for 57 FLRA No. 188 - Authority's Decision

   Puerto Rico Air Nat'l Guard involved dual status National Guard technicians, who must maintain military membership in the National Guard in order to retain their federal civilian positions. 56 FLRA at 179. In the case at hand, the ARTs occupy analogous dual status positions, and must maintain military membership in the Air Force Reserves as a condition of their civilian employment. See AFGE, Local 2077, 43 FLRA 344, 350 n.5 (1991); AFGE v. Hoffman, 543 F.2d 930, 932-34 (D.C. Cir. 1976).


Footnote # 5 for 57 FLRA No. 188 - Authority's Decision

   The EEOC, in resolving Title VII claims made by dual status employees, considers "federal technicians . . . covered by Title VII only when the alleged discriminatory action arises from their capacity as civilian employees, and not when personnel decisions affect their capacity as uniformed military personnel." Lekander, 1994 WL 746498, at *2 (citation omitted) (allegedly retaliatory order to attend EEO training in a military status for military pay deemed exclusively a military matter not covered by EEOC regulations enforcing Title VII).


Footnote # 6 for 57 FLRA No. 188 - Authority's Decision

   In Chappell, the Supreme Court held that military personnel could not maintain a suit to recover money damages from a superior officer for alleged constitutional violations. 462 U.S. at 305. At the same time, however, the Court noted that "[t]his Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service." Id. at 304 (citations omitted). In United States v. Stanley, 483 U.S. 669 (1987) (Stanley), the Court clarified that this statement "referred to redress designed to halt or prevent the constitutional violation," that is, equitable or injunctive relief rather than the award of money damages. Id. at 683. In Stanley, the Court also indicated that the Chappell approach may apply generally to activities performed "incident to service" rather than solely to activities performed within the officer/subordinate realm. Id. at 680-81. We note that the Court's limited exception for constitutional claims seeking equitable relief is not applicable to the justiciabil