At this time FLRA remains fully operational. Effective Friday July 31, 2020, the agency now extends the prohibition on in-person filings indefinitely.  

See details: here.

U.S. Federal Labor Relations Authority

Search form

23:0635(84)CA - HQ, Army Training Center and Fort Jackson, Fort Jackson, SC and Leroy W. Howell -- 1986 FLRAdec CA

[ v23 p635 ]
The decision of the Authority follows:

 23 FLRA No. 84
 Charging Party
                                            Case No. 4-CA-50066
                            DECISION AND ORDER
                         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 filed by the
 Charging Party, Leroy W. Howell. 1/ The complaint alleged that the
 Respondent had violated section 7116(a)(1) of the Statute by advising
 Howell that he could not file a grievance under the terms of the
 applicable collective bargaining agreement because he was not a
 bargaining unit employee.  The issue before the Authority is whether the
 Judge properly dismissed the complaint.
                              II. Background
    On September 21, 1984, Howell sent a letter to his supervisor stating
 that the letter served as official notification that he was grieving his
 change in duty hours and requesting that the individual who was the
 local union president represent him.  The union president felt that he
 could only represent Howell as an individual since Howell, in the
 president's view, was a supervisor.  Howell's supervisor returned what
 he termed the "letter of grievance" for clarification, stating in
 addition that Howell was a supervisor and must file the grievance under
 the Department of the Army grievance procedure.  In response to the
 request for clarification, Howell replied, identifying the reply as step
 1 of the "grievance procedure," seeking reinstatement of his previous
 duty hours.  He also requested clarification of the status of his
 position as supervisory or nonsupervisory and again requested by name to
 be represented by the local union president.  Howell's immediate
 supervisor maintained his original position that Howell was a supervisor
 and could not file a grievance under the negotiated procedure.
 Subsequently, Howell's supervisor processed the grievance under the
 agency grievance procedure and denied the grievance at the first step.
 He also stated, as to the request for representation, that the local
 union president could be a personal representative under the agency
 procedure, but could not represent Howell under the negotiated grievance
    After the rejection of his grievance by his immediate supervisor,
 Howell filed the unfair labor practice charge against the Respondent
 alleging that it had interfered with his right to file a grievance under
 the negotiated grievance procedure.  Howell did not pursue his grievance
 under the negotiated grievance procedure.  This choice appears to have
 been made freely by Howell.  There is no evidence that any management
 official, by statement or act, attempted to interfere with, restrain, or
 coerce Howell from filing further appeals under the negotiated grievance
 procedure.  And more specifically, there is no evidence that any
 official of the Respondent indicated to Howell that Respondent would
 have refused to participate in or respond to the invocation of further
 grievance and arbitration procedures had he or the Union chosen to
 invoke them.  However, the Post Commander indicated in a subsequent
 letter to Howell that he also supported the position taken by Howell's
                         III. The Judge's Decision
    The Judge dismissed the complaint on the basis that Howell was a
 supervisor and that consequently the Respondent did not violate the
 Statute by refusing to process his grievance under the negotiated
 grievance procedure.
                              IV. Exceptions
    The Charging Party filed exceptions to the Judge's dismissal of the
 complaint essentially arguing that the Judge erred by determining that
 he, Howell, was a supervisor.
                                V. Analysis
    The Authority adopts the Judge's conclusion that the complaint must
 be dismissed, but not for the reasons stated by the Judge.  Instead, the
 Authority finds that there was no violation in the circumstances of this
 case because the Respondent did nothing more than assert and maintain
 its position that Howell was a supervisor who was not covered by -- and
 therefore could not process a grievance under -- the negotiated
 grievance procedure.  An agency does not impede or obstruct the
 submission of unresolved grievances to binding arbitration or otherwise
 violate the Statute by maintaining a position in processing an
 employee's grievance that the employee is a supervisor, even if the
 agency later is found to have been incorrect.  See Harry S. Truman
 Memorial Veterans Administration Hospital, Columbia, Missouri, 11 FLRA
 516 (1983), in which the Authority held that an agency has not impeded
 or obstructed the submission of unresolved grievances to binding
 arbitration merely by asserting that the matter in dispute was not
 grievable or arbitrable.
    In this case, the essence and substance of the Respondent's conduct
 was an assertion of its position that the grievance was not subject to
 the negotiated grievance procedure.  Although the Respondent acted on
 the dispute under the terms of the agency grievance procedure, the
 General Counsel has failed to establish that the Respondent impeded or
 obstructed the processing of the grievance under the negotiated
 procedure. Rather, it would appear that Howell's immediate supervisor
 merely maintained his original position that Howell, as a supervisor,
 could not file a grievance under the negotiated procedure. In this
 regard, the Authority notes that after the rejection of his grievance on
 that basis, Howell did not attempt to continue processing the grievance
 under the subsequent steps of the negotiated grievance procedure or seek
 to have the Union invoke arbitration on his behalf.  Instead, he
 directly filed an unfair labor practice charge.
    It is unlikely that had Howell pursued his grievance and exhausted
 his appeals under the negotiated grievance procedure, that the matter
 would have been resolved in arbitration.  Both the Union and the Agency
 were in agreement that he was a supervisor.  /2/ Nevertheless, the only
 avenue available to him under the Statute and the parties' collective
 bargaining agreement was to exhaust the steps of the negotiated
 grievance procedure and then attempt to persuade the Union to invoke
 arbitration to resolve his grievance over the change in his hours of
 work.  If Howell had succeeded, the arbitrator would have had for
 resolution the collateral threshold grievability/arbitrability issue
 concerning whether Howell was in the bargaining unit or excluded as a
    The Authority has held in this regard that an arbitrator may make a
 factual determination regarding the bargaining unit status of a grievant
 in the course of deciding whether the arbitrator has jurisdiction to
 resolve the grievance under the negotiated grievance procedure.
 National Archives and Records Service, General Services Administration
 and Local 2578, American Federation of Government Employees, AFL-CIO, 9
 FLRA 381, 383 (1982).  The Authority cautioned, however, that the
 negotiated grievance procedure and arbitration may not be used in place
 of a clarification of unit petition.  The Authority has found that an
 arbitrator may not determine the bargaining unit status of an individual
 where the issue of status is not a collateral question of grievability
 but instead is the essential issue of the grievance.  Office of Hearings
 and Appeals, Social Security Administration, Department of Health and
 Human Services ana Local 3615, American Federation of Government
 Employees, AFL-CIO, 20 FLRA No. 96 (1985).  Of course, the Union never
 invoked arbitration and the Respondent never indicated that it would
 refuse to participate in such a proceeding.
    While we thus agree with the Judge's conclusion that the complaint
 must be dismissed, we conclude that he need not and should not have made
 a unit determination as to Howell's status and resolved the case on that
 basis.  It is appropriate in certain circumstances for an Administrative
 Law Judge to make unit determinations within the context of an unfair
 labor practice proceeding. 3/ However, in this matter the Judge's
 supervisory status finding was not germane or necessary to his unfair
 labor practice determination, and should not have been made in the
 context of this proceeding.  Rather, a question of an individual's
 bargaining unit status and entitlement to use the negotiated grievance
 procedure is a question of grievability and arbitrability for resolution
 by an arbitrator when the question is raised as a collateral issue to a
 grievance otherwise properly brought under the negotiated grievance
 procedure.  See, for example, Harry S.  Truman Memorial Veterans
 Administration Hospital, Columbia, Missouri, 11 FLRA 516 (1983).
                              VI. Conclusion
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and accordingly affirms those rulings.  The Authority has
 considered the Judge's Decision, the positions of the parties and the
 entire record, and adopts the Judge's findings and conclusions only to
 the extent consistent with this decision.  For the reasons set forth
 above, we conclude that the Respondent's continued insistence that
 Howell was a supervisor and was not entitled to use the negotiated
 grievance procedure was not violative of the Statute.  Thus, the
 complaint must be dismissed.
    The complaint in Case No 4-CA-50066 is dismissed.  
 Issued, Washington, D.C., October 21, 1986.
    Jerry L. Calhoun, Chairman
    Henry B.  Frazier III, Member
    Jean McKee, Member
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Case No.: 4-CA-50066 
    Charging Party 
 Michael T. Russell, Esquire 
 Ms. Virginia Combs
    For the Respondent 
 Richard S. Jones, Esquire
    For the General Counsel 
 Mr. Leroy W. Howell
    Pro se 
          Administrative Law Judge
                           Statement of the Case
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C Sec.
 7101 et seq., 1/ and the Final Rules and Regulations issued thereunder,
 5 C.F.R. Sec. 2423.1, et seq., concerns whether Mr. Leroy W.  Howell was
 a supervisor within the meaning of Sec. 3 (a)(10) of the Statute.  For
 reasons set forth hereinafter, I find that Mr. Howell was a supervisor
 and, accordingly, Respondent did not violate Sec. 16(a)(1) by refusing
 to entertain Mr. Howell's grievance under the negotiated grievance
 procedure. 2/ This case was initiated by a charge filed on November 1,
 1984 (G.C. Exh.  1(a)).  The Complaint and Notice of Hearing issued on
 January 25, 1985 (G.C. Exh.  1(c)), the hearing to be held on March 19,
 1985, at a place to be designated;  and by Order dated February 21,
 1985, the place of hearing was designated (G.C. Exh. 1(f)), pursuant to
 which a hearing was duly held on March 19, 1985, in Columbia, South
 Carolina, before the undersigned.
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues, and were afforded opportunity
 to present oral argument.  At the close of the hearing, April 22, 1985,
 was fixed as the date for mailing post-hearing briefs and the General
 Counsel and Respondent 3/ each timely filed a brief, received on, or
 before, April 24, 1985, which have been carefully considered.  Based
 upon the entire record, including my observation of the witnesses and
 their demeanor, I make the following findings and conclusions:
                          Findings and Discussion
    Sec. 3(a)(10) of the Statute defines "supervisor" as follows:
          "(10) "supervisor" means an individual employed by an agency
       having authority in the interest of the agency to hire, direct,
       assign, promote, reward, transfer, furlough, layoff, recall,
       suspend, discipline, or remove employees, to adjust their
       grievances, or to effectively recommend such action, if the
       exercise of the authority is not merely routine or clerical in
       nature but requires the consistent exercise of independent
       judgement, except that, with respect to any unit which includes
       firefighters or nurses, the term "supervisor" includes only those
       individuals who devote a preponderance of their employment time to
       exercising such authority;"
    Mr. Leroy W. Howell, the Charging Party, has been employed at Fort
 Jackson since October 29, 1967.  In 1982, Mr. Howell's title was "Lead
 Sports Specialist";  but on August 8, 1982, his title was changed to
 "Supervisory Sports Specialist" (G.C. Exh. 2).  At that time, Mr.
 Howell was, as he testified,".  . . in charge of the Morale Support
 Gymnasium (Lee Field House).  I had control of the Gymnasium, 1 managed
 the gymnasium, I directed the work force there and I had a staff which
 comprised of sometimes 8 to 10 military and 3 civilians. . . ." (Tr.
 35).  In December, 1982, Mr. Howell left Fort Jackson for an overseas
 assignment which was expected to last at least three years;  however,
 because of illness, Mr. Howell returned to Fort Jackson in January,
 1984, in a sick leave status, and underwent heart by-pass surgery in
 January, 1984, and in July, 1984, had double hernia surgery.  As a
 result, except for limited periods and restricted activity, Mr. Howell
 did not return to full duty, full time until late August, 1984.
    When Mr. Howell left for overseas duty his position of Supervisory
 Sports Specialist remained encumbered for him upon his return from the
 overseas assignment.  The position of Supervisory Sports Specialist was
 filled in the fall of 1983 by Dr. Carporvitz (Tr. 158).  In December,
 1983, the Physical Activities Branch (Res. Exh. 8), now Recreation
 Division (Res. Exh. 7), gave up Lee Field House (Moral Support
 Gymnasium) and received another building, Perez Center, several blocks
 from Lee Field House (Tr. 172);  however, in December the Perez Center
 was being used temporarily by the Nursery (Tr. 226).  It was planned
 that Perez Center would be operated as a health spa type facility for
 physical fitness and, specifically, be designed and constructed to
 provide privacy, especially for females (Tr. 172A).  Extensive
 renovation was undertaken and the Perez Center was not opened until May,
 1984 (Tr. 172-172A).
    Initially, Dr. Carporvitz, as had Mr. Howell prior to his departure,
 was in charge of Lee Field House and had under his supervision Messrs.
 Cook and Trakas (both GS-5's), Mr. Mitchell (GS-3) and two full-time
 military physical fitness specialists (an E-5 and an E-3), which was
 essentially the same complement as had been directed by Mr. Howell -
 indeed both Mr. Cook and Mr. Trakas had been under Mr. Howell's
 supervision and, while Mr. Howell testified he had three civilians, Mr.
 Mitchell did not come over into Sports until 1983.  With the loss of Lee
 Field House, in December, Dr. Carporvitz was placed in charge of
 Outdoors Recreation and of Perez Center, although, as noted, Perez
 Center did not become an operating facility until May, 1984, and Messrs.
 Cook, Trakas and Mitchell, after the loss of Lee Field House, worked
 entirely on grounds maintenance and on Outdoors Recreation facilities.
 Lt. Colonel Gibson, Mr.  Howell's and Dr. Carporvitz's overall
 supervisor (Tr. 154) testified, without contradiction, that Dr.
 Carporvitz functioned as a supervisor (Tr.  135, 162, 163, 164, 166,
 167).  Mr. John Everett, who, as Sports Director, had been Mr. Howell's
 immediate supervisor, left in August, 1983 (Tr.  129, 130).  He was
 succeeded by Mr. William John Rashleigh who began work in January, 1984,
 shortly before Mr. Howell returned (Tr. 221).  At, or shortly after, Mr.
 Rashleigh's arrival, Mr. Trakas was transferred to Mr.  Rashleigh's
 supervision (Tr. 183, 222).
    Col. Gibson, a very credible witness, testified that when Mr.  Howell
 arrived in January, 1984, he offered him one of two positions:  either
 Dr.  Carporvitz's position (new Perez Fitness Center and Outdoor
 Recreation) or Supervisor of Weston Lake.  Col. Gibson stated that Mr.
 Howell indicated that he wanted his old position back, which was
 essentially the one that Dr. Carporvitz had, and that he, Col. Gibson,
 said ". . . fine, you have that, and Dr. Carporvitz will go out to
 Weston Lake".  (Tr. 172B).
    4/ Accordingly, Mr. Howell, nominally took over both the Perez Center
 and Outdoor Recreation in January, 1984;  however, because Mr. Howell
 was on sick leave, and shortly thereafter had heart by-pass surgery, he
 was unable to undertake the coordination and supervision of the
 extensive renovation project to get the Perez facility ready for
 operation (Tr.  174).  Subsequently, Col. Gibson decided to recruit a
 full time manager for the Perez Fitness Center and to remove those
 duties from Mr.  Howell, leaving him with Programming and Supervising
 the Outdoor facility section (Tr. 174).  Mr. Howell testified that he
 did not "even" report for work until March 15, 1984, "or somewhere
 around there".  (Tr. 92).  From the time Mr. Howell reported to work,
 only Mr. Cook remained full time under his supervision, although from
 time to time military personnel were assigned on detail and, later,
 during the summer, he had CETA employees.  Mr. Cook left in June, 1984
 (Tr. 84), for employment with the Columbia Post Office (Tr. 133).  Mr.
 Trakas' job had been abolished shortly before Mr. Cook's departure (Tr.
 201) and when Mr. Cook left, Mr. Trakas, on a non-competetive basis,
 "rolled over" to the vacant position (Tr.  176-177) so that Mr. Howell's
 staff remained at one full time civilian employee.  As noted above, Mr.
 Howell was on sick leave again from July 17 to August 27, 1984 (Tr. 91).
    At least two other full time positions are authorized for Mr.
 Howell's staff but due to lack of appropriations remain unfilled (Tr.
 178-179).  With the beginning of the new fiscal year in October, 1984,
 recruitment was undertaken to fill one of the authorized Recreation Aid
 slots.  Mr.  Howell testified that Mr. Rashleigh recommended that he,
 Howell, hire a Mr.  Russell (Rusty) Smith (Tr. 51);  but Mr. Howell knew
 that Mr. Smith had had trouble with his supervisors and, after
 interviewing Mr. Smith, Mr.  Howell declined to hire Mr. Smith and asked
 for a new list with at least three names on it (Tr. 52-53).  The
 recruitment action was on-going at the time of the hearing;  but it is
 clear that Mr. Howell has the responsibility to select, and will select,
 the new member of his staff (Tr. 178-179).  Col.  Gibson stated that,
 because of the continuing shortage of appropriated funds, the position
 will now be filled as a non-appropriated fund position.
    It is clear that Mr. Howell's position description clothes him with
 all authority of a supervisor.  General Counsel asserts that
 notwithstanding his apparent authority, i.e., the duties specified in
 his job description, Mr. Howell has never exercised sufficient authority
 to constitute him a supervisor.  Thus, General Counsel asserts that Mr.
 Howell has never made an annual performance appraisal for any employee.
 Mr. Cook stated that Mr. Howell was his supervisor;  but was "not sure"
 and couldn't remember (Tr. 134) whether Mr. Howell ever signed any of
 his performance appraisals.  Mr. Rashleigh testified that he had seen a
 performance appraisal for Mr. Cook signed by Mr. Howell before Mr.
 Howell left for his overseas assignment (229-230).  While it is true
 that no performance appraisal for Mr. Cook signed by Mr. Howell was
 introduced as an exhibit, it is at least equally significant that no
 performance appraisal for any employee, i.e., Cook, Trakas, Mitchell or
 full-time military sports specialists, was shown to have been made after
 Mr.  Howell was made a supervisor on August 8, 1982, and prior to his
 departure for Europe in December, 1982.  Stated otherwise, Mr. Howell
 was a supervisor only from August 8, 1982, until his departure in
 December, 1982, and there is no evidence whatever that performance
 appraisals were made by any other supervisor for any employee under his
 supervision after he became a supervisor in August until he left in
 December, which would have detracted seriously from his having been a
 true supervisor.  On the other hand, if no performance appraisals were
 "due" during this period, the fact that Mr.  Howell had no occasion to
 appraise employees would be meaningless.
    It is true that Mr. Howell has not made a performance appraisal for
 Mr. Trakas since Mr. Trakas was assigned to him in June, 1984;  but the
 record is clear that he has not done so for the simple reason that none
 was "due" for Mr. Trakas.  It is also clear that Mr. Howell will
 appraise Mr. Trakas in the future.  More important, Mr. Howell, as Mr.
 Cook's then first line supervisor, did decide three grievances which had
 been filed by Mr. Cook 5/ (Res. Exh. 2, 3 and 4).  Mr. Howell testified
 that he told Col. Gibson ".  . . I can help you get rid of those
 hang-over grievances" (Tr. 61);  and Mr. Howell wrote the draft of each
 letter.  The fact that Mr. Kinlaw, then a Labor Relations Specialist,
 put each in proper format does not detract from the fact that Mr. Howell
 made each decision (Tr. 258 - 259).  Mr. Howell prepares schedules for
 his employees and, in doing so, can and does change the normal duty
 hours to meet changing needs.  Having scheduled Mr. Cook's hours, Mr.
 Howell, shortly before Mr. Cook left Fort Jackson in June, 1984,
 declined to change his hours in the belief that two week notice was
 required (Tr. 247).  Mr. Rashleigh believed the Regulations permitted
 hours of duty to be changed without two weeks notice and changed Mr.
 Cook's hours when he was needed to handle a boxing smoker.  When Mr.
 Cook filed a grievance, Mr. Howell declined to act as the step 1
 supervisor ". . . because . . . I think he agreed with the grievance and
 therefore didn't want to be involved in making a judgement" (Tr. 229)
 and Mr.  Rashleigh acted on it (Tr. 229, 247-248).  However, even in
 this instance, Mr. Howell exhibited independent judgment by refusing to
 take action he believed wrong even though his supervisor disagreed and
 Union President Brown agreed with Mr. Rashleigh's action (Tr. 248).
    Mr. Trakas testified that Mr. Howell is his supervisor;  Mr.  Howell
 does direct the work of Mr. Trakas, detailed military, and CETA
 employees;  Mr. Howell can, and does recommend overtime (Tr. 248-249);
 and Mr.  Howell has shown wholly independent judgment in selecting a new
 employee for his staff.  Mr. Howell has the authority to exercise all
 functions of a supervisor, has exercised such authority when required,
 e.g., in deciding grievances and employing a new staff member, and will
 exercise other authorized supervisory duties as they arise, e.g., making
 employee appraisals.  The fact that a supervisor has only one employee
 under his supervision does not mean that such person is not a supervisor
 within the meaning of the Statute.  Headquarters III Corps and Fort
 Hood, Fort Hood, Texas, 13 FLRA No. 84, 13 FLRA 479 (1983);  The
 Adjutant General, Delaware National Guard, 9 FLRA No. 1, 9 FLRA 3, 9
 (1982).  Here, of course, Mr.  Howell not only supervises one full-time
 employee, Mr. Trakas, but a second full-time employee is being recruited
 for his staff, with a third full-time slot being authorized and awaiting
 only the availability of funds.  In addition, Mr. Howell supervises
 military personnel on detail 6/ and CETA, or equivalent, employees.
    Accordingly, I conclude that Mr. Howell was, and is, a supervisor
 within the meaning of the Statute and, therefore, was not subject to the
 terms of the negotiated agreement and Respondent did not violate the
 Statute by refusing to entertain his grievance under the negotiated
 agreement.  Therefore, I recommend that the Authority adopt the
    The Complaint in Case No. 4-CA-50066 be, and the same is hereby,
    Administrative Law Judge
    Dated:  May 20, 1985
    Washington, DC
    ---------------  FOOTNOTES FROM DECISION AND ORDER$ ---------------
    1/ The Respondent filed a motion to dismiss the exceptions.  However,
 no basis is provided for dismissing the exceptions under the Authority's
 Rules and Regulations.
    2/ Similarly, since there was no disagreement between the exclusive
 representative and the activity -- the parties to the collective
 bargaining relationship -- concerning the composition of the unit for
 which the Union was certified, a clarification of unit (CU) proceeding
 would be unavailable.  See section 2422.1(d) of the Authority's Rules
 and Regulations, which only provides for the filing of a CU petition "by
 an activity or agency or by a labor organization which is currently
 recognized by the activity or agency as an exclusive representative."
    3/ See, for example, Internal Revenue Service Seattle District, 12
 FLRA 324 (1983) and National Archives and Records Service and National
 Archives Trust Board, General Services Administration, Washington, D.C.,
 9 FLRA 413 (1982), wherein the Authority found that management violated
 section 7116(a)(1) and (8) of the Statute by removing employees from
 dues withholding in the erroneous belief that the employees had become
         ---------------  FOOTNOTES FROM DECISION$ ---------------
    1/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
 as "Sec.16(a)(1)".
    2/ Mr. Howell declined to process his grievance under the Department
 of Army grievance procedure.  (Tr. 20).
    3/ Respondent submitted a single copy of its brief, entitled "Closing
 Argument" rather than an original and four copies required by Sec.
 2423.25 of the Regulations.
    4/ Dr. Carporvitz left abruptly at the end of January, 1984 (Tr. 221)
 for a better paying position in Manila (Tr. 199-200).
    5/ The grievances appear to have been filed March 19, 1984.  In view
 of Mr. Howell's absence on sick leave, it is understandable that Mr.
 Cook was uncertain who his supervisor was at that time.  Each of Mr.
 Howell's decisions is dated 3 March 1984 which date obviously is
 incorrect.  In all probability the date of each decision was March 30,
 1984, or possibly April 2-5, as each was received by the Civilian
 Personnel Office on April 5, 1984, at 3:15 p.m.
    6/ In view of the wording of the Statute which excludes "a member of
 the uniformed services" as an employee (Sec. 3(a)(2)) and the definition
 of supervisor to supervise "employees", if a person supervises only
 military personnel, that person is not a supervisor within the meaning
 of the Statute;  however, if that person supervises one or more
 employees, then the supervisory authority over military personnel may
 also be considered.