Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico (Respondent) and American Federation of Government Employees, Local 3936, AFL-CIO (Charging Party/Union)
[ v56 p174 ]
56 FLRA No. 21
PUERTO RICO AIR NATIONAL GUARD
156th AIRLIFT WING (AMC)
CAROLINA, PUERTO RICO
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3936, AFL-CIO
DECISION AND ORDER
March 21, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N Segal and Dale Cabaniss, 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 filed by the Respondent.
The amended complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (Statute) by ordering and threatening members of the bargaining unit not to engage in informational picketing on the Respondent's premises, and by placing the employees in non-duty status, suspending their security clearances, and terminating a union official in retaliation for engaging in such picketing. The Judge found that the Respondent violated the Statute as charged and ordered the Respondent to, among other things, rescind the retaliatory personnel actions taken against the employees.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision. We find that the Respondent violated the Statute as charged, except we disagree with the Judge and find that we do not have jurisdiction to review the complaint's retaliatory termination allegation. Accordingly, we adopt only those portions of the recommended remedy that are consistent with these findings.
II. Background and the Judge's Decision
1. The Facts [n2]
The facts are fully set out in the Judge's decision and are only summarized herein. The Charging Party is the exclusive representative of a unit of the Respondent's technicians. On or about November 30, 1998, the Union distributed a flyer to bargaining unit members stating that it was going to engage in informational picketing to protest working conditions on December 8, 1998. Shortly thereafter, the Union issued a press release regarding the planned protest.
At 8:00 p.m. on December 6, 1998, at the Base Community Club, [n3] Brigadier General Romo informed the Union's President, Pedro Romero, that picketing was not to take place on the access road leading to the Respondent's premises. Romero was not on duty in either his military or civilian capacity at the time of this conversation. On the morning of December 8, 1998, Romo called Romero, and told him that the picketing might be photographed by the Respondent and that the picketers should put bags or Halloween masks over their heads.
After the technicians completed their shift on the afternoon of December 8, 1998, they gathered to conduct the picketing on the public street at the entrance to the main gate of the base. Local police, who had been contacted by the Union, told the technicians that they could not picket on the public road for safety reasons, and suggested that the picketing take place in a parking area off the access road. Romero informed the police officer that he had been told not to picket on the access road. The police officer then secured permission from the Guard officials at the gate and directed the employees to the parking area off the access road.
The picketing then took place for about an hour and a half. During the picketing, the technicians were off-duty and in civilian clothes. The picketing was orderly and did not interfere with base operations. During the picketing, no employee was told by the Respondent to stop picketing on its property. [ v56 p175 ]
The purpose of the picketing was to inform the public, including the local press, of what the Union considered a hostile work environment. The Union protested the Respondent's retaliation against Union officials for engaging in union activity. The picketers also protested certain alleged "immoral work practices" of the Respondent's officials such as drinking alcohol during duty hours. Judge's Decision at 10. Finally, the picketers were protesting the Respondent's refusal to abide by negotiated agreements.
By letter dated January 7, 1999, the Respondent informed Romero and the other bargaining unit employees who participated in the picketing that, effective January 11, 1999, they would be placed in a non-duty status with pay, because they engaged in informational picketing. Romero and the other employees also were notified by letters that their security clearances and access to restricted areas of the base were being suspended. The sole reason for the suspensions contained in the letters was the fact that the employees "willfully participated in a picketing trespassing government property, disobeying the lawful orders of the Assistant Adjutant General for Air." GC Exs. 10c, 10d, 15c, 15d.
In addition, by a second letter dated January 8, 1999, Romero was informed that he was being recommended for involuntary separation from the Puerto Rico National Guard. The letter cited the picketing of December 8 as the sole reason for the recommended separation. GC Ex. 10e. On March 9, 1999, Romero was discharged from the National Guard. On the next day, he was informed that since he was no longer a member of the National Guard, his employment as a civilian technician would be terminated effective April 13, 1999.
The personnel actions taken against Romero and the other employees were premised on their participation in the picketing.
2. The General Counsel's Complaint
Based on a charge filed by the Union, the General Counsel issued, and subsequently amended, a complaint, which alleged that the Respondent, by its agents and representatives, violated section 7116(a)(1) by: (1) instructing Union President Romero not to engage in picketing on the Respondent's premises; (2) threatening that employees who engaged in picketing would be photographed and should place bags or Halloween masks over their heads; (3) placing Romero and twenty-five other bargaining unit members in a non-duty status because they engaged in picketing; (4) suspending the security clearances of Romero and other employees because they engaged in picketing; and (5) proposing, and then implementing, Romero's involuntary separation from the Puerto Rico National Guard.
B. The Judge's Decision
1. Preliminary Matters
This case was scheduled for hearing on April 15, 1999. Pursuant to section 2423.23 of the Authority's unfair labor practice (ULP) regulations, at least fourteen days before the hearing the parties must provide one another with witness lists, copies of documents proposed to be offered into evidence, and a brief statement of the theory of the case including "all defenses to the allegations in the complaint." 5 C.F.R. § 2423.23. Having received none of the required information from the Respondent, the General Counsel filed a motion for sanctions on April 6, 1999. Paraphrasing section 2423.24(e), the General Counsel requested that the Respondent be prohibited from "introducing evidence, calling witnesses, raising objections to the introduction of evidence or testimony of witnesses at hearing, [or] relying upon a particular defense." GC Ex. 2(A).
On April 6, 1999, the Respondent filed a "Motion to Dismiss and/or for Summary Judgement." The Motion contended that the Authority lacks subject matter jurisdiction over the case because: the Respondent is a state entity, not a federal agency; the controversy concerns a military matter; the picketing on December 8 was illegal because it violated 10 U.S.C. § 976 and a lawful, military order; and the Authority has no power to reinstate a security clearance. The General Counsel filed a response the next day. On that day, April 7, 1999, the Judge held a telephonic prehearing conference. Counsel for the Respondent stated during the conference that the Respondent did not intend to comply with a subpoena filed by the General Counsel, or be present at or otherwise participate in the hearing.
By order dated April 8, 1999, the Judge denied the Respondent's Motion to Dismiss, and denied the alternative Motion for Summary Judgment as untimely filed. [n4] The Judge deferred ruling on the motion for sanctions until the hearing.
The Respondent did not appear at the hearing. The Judge granted the General Counsel's motion for sanctions, including the striking of anything filed with the Motion to Dismiss that could be considered evidence. Tr. at 11. The Judge also ruled that the Respondent could not rely on "any particular jurisdictional defense pertaining to a particular remedy." Tr. at 214-15. [ v56 p176 ]
2. Judge's Conclusions of Law
At the conclusion of the hearing, the Judge issued a bench decision finding that the Respondent violated the Statute as charged. Specifically, the Judge found that the technicians in the case are civilian employees of the United States and possess the right under section 7102 of the Statute to form, join, or assist a labor organization, without fear of penalty or reprisal.
The Judge noted the well-settled case law holding that among the rights protected by section 7102 is the right to engage in informational picketing on agency property, including military bases, that does not interfere with agency operations (citing Department of the Army, U.S. Soldier Support Center, Fort Benjamin Harrison, Indiana, 40 FLRA 558 (1991) (Fort Benjamin Harrison)). Referencing Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044 (1987), the Judge stated that it is a ULP for an agency to interfere with such picketing.
The Judge held that the Respondent's December 6 "order" to Romero was unlawful because it interfered with the Union's right to engage in picketing concerning working conditions. Similarly, the Judge also held that the Respondent's surveillance threat to Romero on the morning of the picketing also interfered with protected activity.
The Judge determined that the picketing at issue in this case was lawful because it concerned the conditions of employment of bargaining unit employees and did not disrupt agency operations. The Judge held that the Respondent interfered with protected rights in violation of 5 U.S.C. § 7116(a)(1) when it retaliated against the employees for their picketing by placing the employees on non-duty status, suspending their security clearances, and terminating Romero.
With regard to Romero's termination, the Judge noted that in Department of Defense, Illinois National Guard, 182nd Tactical Air Support Group, Peoria, Illinois, 19 FLRA 101 (1985) (Illinois National Guard), petition for review denied, 802 F.2d 1483 (D.C. Cir. 1986) (Table), the Authority held that the National Guard Technicians Act, 32 U.S.C. § 709(e)(5) (Technicians Act), [n5] denied the Authority jurisdiction to review technician terminations. The Judge stated his view that the Authority should not read section 709(e) to preclude relief in this case, which the Judge asserted "implicates important First Amendment rights protected by the Statute." Judge's Decision (Decision) at 12a.
The Judge ordered relief for each of the violations found. In addition to issuing a cease and desist order, the Judge ordered the Respondent to correct the technicians' official records and to rescind the decisions to place the technicians on non-duty status, suspend their security clearances, and terminate Romero.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent, without referencing the Judge's sanctions, made several exceptions to the Judge's decision. The Respondent states that the findings of fact are not supported by the evidence. Further, the Respondent challenges the findings of fact because they are based on the testimony of Union officials.
With regard to the Judge's legal conclusions, the Respondent contends that the Authority lacks jurisdiction over this case for four reasons. First, the Respondent claims that it is a state agency, not a federal agency over which the Authority has jurisdiction.
Second, the Respondent argues that the Authority lacks jurisdiction over the case because the controversy is military in nature and the Authority may not adjudicate military matters. Relying on Wright v. Park, 5 F.3d 586 (1st Cir. 1993) (Wright), where the court stated that the military and civilian aspects of technician employment are inseparable, the Respondent states that technician employment is inherently military in character. The Respondent also contends that the case is military in nature because the picketing concerned military matters and because the picketing violated a "military order."
Third, the Respondent argues that the Authority lacks jurisdiction to review security clearance determinations, relying on Department of the Navy v. Egan, 484 U.S. 518 (1988) (Egan), where the Supreme Court held that the Merit Systems Protection Board (MSPB) has no authority to review agency security clearance determinations.
Fourth, the Respondent argues that the Technicians Act precludes the Authority from reviewing in a ULP proceeding the termination of a technician. [ v56 p177 ]
B. General Counsel's Opposition
As a preliminary matter, the General Counsel contends that the Judge's imposition of sanctions against the Respondent was an appropriate exercise of his discretion. Therefore, according to the General Counsel, the Authority should not consider any of the Respondent's evidentiary or factual arguments. However, the General Counsel acknowledges that the sanctions ruling does not preclude the Authority from addressing legal arguments that pertain to its jurisdiction.
The General Counsel contends that the Authority has jurisdiction over this case, and, therefore, should reject each of the Respondent's jurisdictional exceptions. First, concerning the specific claim that the Respondent is not an agency, the General Counsel argues that since technicians are federal employees, it follows that their employer is a federal agency.
Second, the General Counsel claims that the controversy in this case, which was the subject of the picketing, is civilian, not military, in nature. Specifically, the General Counsel asserts that the Judge correctly found that both the subject and the manner of the picketing were civilian and that the picketing was not unlawful.
Third, the General Counsel argues that the Respondent may not use security clearance determinations to punish technicians for protected activity.
Fourth, the General Counsel contends that section 709(e) of the Technicians Act does not preclude Authority review of retaliatory technician terminations. According to the General Counsel, the Respondent is not insulated from the reach of the Statute where a technician is terminated for a facially-unlawful reason. The General Counsel asserts that the Judge properly distinguished Illinois National Guard by noting the First Amendment implications of the instant case.
IV. Analysis and Conclusions
A. The Judge's Sanctions Preclude Respondent's Arguments, Except as to Jurisdictional Matters.
It is undisputed that the Respondent failed to participate in prehearing disclosure, as required by the Authority's Regulations. Accordingly, pursuant to 5 C.F.R. § 2423.24(e), the Judge sanctioned the Respondent by prohibiting it from introducing evidence or objecting to the General Counsel's evidence and from raising "any particular jurisdictional defense pertaining to a particular remedy." Tr. at 214-15. A judge's imposition of sanctions is reviewed on an abuse of discretion standard. See 5 C.F.R. § 2423.24(e) (Judge may impose sanctions in his "discretion").
The Guard does not directly except to the Judge's sanctions ruling but does so indirectly by excepting to the Judge's findings of fact and to the Authority's jurisdiction in this case. We note that the General Counsel argues that the sanctions preclude the Respondent from questioning the Judge's factual findings but not from making legal arguments that implicate the Authority's jurisdiction.
We agree with the General Counsel's position. Because the specific sanctions ordered by the Judge are consistent with the sanctions expressly authorized in section 2423.24(e) of the Authority's Regulations and in light of the Respondent's conduct before the Judge, we affirm the Judge's sanctions to the extent that they preclude the Respondent from challenging any of the Judge's evidentiary or factual findings.
However, notwithstanding the Judge's sanctions, we have a responsibility to determine whether we have jurisdiction over the matters at issue and, therefore, we will consider the Respondent's specific defenses that challenge our jurisdiction: whether the Respondent is a federal agency; whether the nature of the controversy is military or civilian; whether the Authority has the power to affect security clearance determinations; and whether section 709(e) of the Technicians Act precludes the Authority from reviewing a termination. See United States Small Business Administration, 51 FLRA 413, 423 n.9 (1995) (The Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute.); see also Doe by Fein v. District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996) (jurisdictional issues, even if not preserved for review, must be examined by reviewing body); Perez v. FBI, 71 F.3d 513, 515 (5th Cir. 1995) (reviewability of security clearance determinations is a jurisdictional issue).
B. The Respondent Is a Federal Agency.
The Respondent argues that it is a state agency and that, therefore, we do not have jurisdiction over it. For the purposes of the Statute, however, the Respondent is also a federal agency and must comply with the Statute's mandates.
The National Guard has both state and federal functions. See New Jersey Air National Guard v. FLRA, 677 F.2d 276, 278-79 (3d Cir. 1982) (New Jersey National Guard) (The National Guard is "hybrid" with both state and federal functions.). Because the National Guard is not a full-time active force, it employs "civilian `technicians' to perform administrative, clerical, and [ v56 p178 ] technical tasks." U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Rhode Island v. FLRA, 982 F.2d 577, 578 (D.C. Cir. 1993). These technicians are federal employees. See 5 U.S.C. § 2105. When the state National Guards administer the technicians program, they act in their federal capacity. See Technicians Act, 32 U.S.C. § 709(c) (The Secretary of the Army or the Air Force, as the case may be, "shall designate the adjutants general . . . to employ and administer the technicians authorized by this section.").
Federal case law makes clear that state National Guard units act as federal agencies in matters concerning the employment of technicians. [n6] Indeed, the U.S. Court of Appeals for the First Circuit has held, in a case related to this one, that in matters arising under the Statute, "the Guard is being sued in its capacity as a federal agency." FLRA v. Puerto Rico National Guard, Puerto Rico Air National Guard, San Juan, Puerto Rico, No. 99-1293 (1st Cir. Nov. 23, 1999) (unpublished). See also Arkansas National Guard v. FLRA, No. 99-1563 (8th Cir. Aug. 30, 1999) (unpublished) (28 U.S.C. § 516, which provides that the Department of Justice has sole litigating authority for federal agencies, applies to the state National Guards); FLRA v. Arkansas National Guard, No. 99-1974 (8th Cir. Oct. 14, 1999) (unpublished) (granting FLRA's petition for enforcement against a state National Guard).
Neither of the cases that the Respondent relies upon is persuasive. See Ursulich v. Puerto Rico National Guard, 384 F. Supp. 736 (D.P.R. 1974) (Ursulich); Melendez v. Puerto Rico National Guard, 70 MSPR 252 (1996) (Melendez). The first, Ursulich, is inapposite. The case involved a tort action concerning the death of a National Guard member, not a technician. The court ruled that the Guard member was a state employee and that the Commonwealth of Puerto Rico was the party in interest. 384 F. Supp. at 738. This case sheds no light on whether, in administering federal statutes, and the technician program in particular, the Respondent has the legal status of a federal agency.
In the second decision on which the Respondent relies, Melendez, the MSPB held that the Puerto Rico National Guard is not a federal agency and that the adjutant general is not a federal employee. This MSPB decision is inconsistent with long-standing Authority and judicial precedent, discussed above, finding that with respect to technician employment, the state National Guards and their adjutants general are federal entities subject to enforcement of Authority orders. Accordingly, we are not persuaded by Melendez.
C. The Authority Has Jurisdiction To Determine Whether the Order, Surveillance Threat, and Picketing Were Civilian, Rather Than Military in Nature.
The Respondent argues that the case involves a military - as opposed to civilian - controversy and that, therefore, the Authority lacks jurisdiction. Military matters are generally nonjusticiable. See, e.g., Wright, 5 F.3d at 590-91. Although the Authority does not have jurisdiction over military matters, it does have jurisdiction over civilian matters that arise under the Statute. Because this case relates to the civilian aspect of technician employment, we conclude that the Authority has jurisdiction.
1. Technicians Have a Dual Status, and the Authority Has Jurisdiction over the Civilian Aspect of Technician Employment.
It is well established that there is both a military and a civilian aspect to technician employment. See, e.g., National Federation of Federal Employees, Local 1669 and U.S. Department of Defense, Arkansas Air National Guard, 188th Fighter Wing, Fort Smith, Arkansas, 55 FLRA 63, 66-67 (1999) (Arkansas Guard) (union proposal regarding technician uniforms relates to civilian aspect of technician employment and, therefore, is within the Guard's duty to bargain), enforced sub nom. FLRA v. Arkansas National Guard, No. 99-1974 (8th Cir. Oct. 14, 1999); National Federation of Federal Employees, Local 1623 and South Carolina National Guard, Columbia, South Carolina, 28 FLRA 633, 643 (1987) (South Carolina Guard) (proposal that relates to technicians' military status relates to military aspect of technician employment and, therefore, is not within the Guard's duty to bargain), aff'd sub nom. National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988) (NFFE, Local 1623).
The long-standing precedent on this point is supported by both the language [n7] and legislative history [n8] of the Technicians Act. In addition, the technician's dual status has been recognized by virtually every court and [ v56 p179 ] administrative forum to address the issue. See, e.g., NFFE, Local 1623, 852 F.2d 1349; Kostan v. Arizona National Guard, 50 MSPR 182, 186 (1991) (Kostan). Further, technicians possess the same rights and privileges as other federal employees, except where specifically and expressly limited by law. See NFFE, Local 1623, 852 F.2d at 1350-51 (technicians covered under the Statute); Kostan, 50 MSPR at 186.
The Respondent argues that technician employment is military in character, citing Wright, where the First Circuit stated in dicta that the military and civilian aspects of technician employment are inseparable. Because the technicians' military and civilian roles are so intertwined, the Respondent contends that the FLRA lacks subject matter jurisdiction even in cases where there are effects on a technician's civilian employment.
We reject the Respondent's attempt to merge the civilian and military aspects of technician employment. First, the Respondent's reliance on Wright is not persuasive. The First Circuit in Wright recognizes the dual status of Guard technicians. See 5 F.3d at 587. Moreover, the court was not asked to determine whether technicians have rights under the Statute. Indeed, the First Circuit has recognized that technicians are covered by the Statute. See Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999). Second, Congress has specifically provided that National Guard technicians have the right to collectively bargain over the non-military conditions of their employment. See 32 U.S.C. § 709 and footnote 7, supra. Although technician employment takes place in a military environment, the technician is a federal civilian employee who has rights under the Statute. To accommodate this dual nature of technician employment, the Authority determines whether an issue relates to the civilian aspect of that employment -- and is, therefore, within the protection of the Statute, see, e.g., Arkansas Guard, 55 FLRA at 66-67 -- or whether the issue relates to the military aspect, which is outside the Statute's coverage, see, e.g., South Carolina Guard, 28 FLRA at 643.
2. The Order, Surveillance Threat, and Picketing Relate to Civilian Matters, and, Therefore, the Authority Has Jurisdiction to Find a Violation.
To determine whether we have jurisdiction over this case, we must decide whether the underlying controversy relates to the civilian or the military aspect of technician employment. As explained below, each allegation of the complaint relates to the civilian aspect of technician employment, and, accordingly, we have jurisdiction.
The first two allegations in the complaint, concerning the December 6 "order" and the December 8 surveillance threat, both relate to the civilian aspect of technician employment. Before picketing, the Union distributed a flyer and issued a press release announcing its intention to protest the technicians' working conditions. In response, on December 6, the Respondent, through Romo, directed the Union not to picket on the access road leading to the Respondent's premises. Two days later, Romo warned Romero that picketing employees would be photographed and that they should wear a bag or mask over their heads.
Like the "order" and the surveillance threat, the actual picketing that occurred in this case related to the civilian, as opposed to the military, aspect of technician employment. Both the subject and the manner of the picketing demonstrate the civilian nature of this case. As the Judge found, the technicians were picketing about civilian matters. The picketing emphasized three grievances, all of which relate to the civilian aspect of technician employment, i.e., the retaliation against two union officials for protected activity, the alleged immoral practices of the Respondent's officials during duty hours, and the Respondent's failure to abide by negotiated agreements.
The manner of the picketing was also civilian. The picketing was conducted when the technicians were on neither civilian nor military duty. Further, the picketing technicians wore civilian clothes, not military uniforms. [ v56 p180 ]
The Respondent relies on 10 U.S.C. § 976, which generally bars members of the military from activities associated with collective bargaining, to argue that the picketing was unlawful. However, a military agency may not prohibit civilian employees from engaging in informational picketing on its premises. See Fort Benjamin Harrison, 40 FLRA at 566. Here, the technicians were picketing in their civilian capacity. In addition, they were picketing about their working conditions, not the military aspect of their employment. Accordingly, section 976 does not apply.
The Respondent also argues that the picketing violated a "military order." We disagree. First, employees on a military base have the right to picket on agency property, "subject only to restrictions necessary to avoid disruption of the agency's mission." Fort Benjamin Harrison, 40 FLRA at 566. Neither Romo nor the Respondent has asserted that the basis for Romo's "order" was that the picketing would be disruptive of agency operations. Indeed, as the Judge found, the actual picketing - which was done with permission - did not disrupt military operations and, therefore, was a lawful activity protected by the Statute. See id.
Second, although the Respondent now refers to this "order" as a military order, it was not issued as a military order. Romo's instruction was not addressed to Romero in his military capacity, but in his capacity as Union president. In this regard, the instruction was clearly directed not only to Romero, but to all employees intending to participate in the picketing. Thus, Romo, viewing this as a labor-relations matter, communicated the instruction through channels appropriate for that non-military context and not through a recognized chain of command. Further, the Respondent has not alleged -- and there is no direct evidence to support -- that Romo's "order" was passed on to the employees who engaged in the picketing. Indeed, the technicians who testified at the hearing stated that they did not receive an order not to picket on the agency's premises. See, e.g., Tr. at 111, 132, 143, 149, 154. Finally, the instruction was given in a non-military location, at the Base Community Club, in the evening after duty hours. Romero was indisputably present in an off-duty civilian capacity.
Based on the above, we find that the Authority has jurisdiction over this case because the actions involved were civilian, rather than military. Accordingly, we affirm the Judge's findings that the Respondent's instruction and surveillance threat regarding the picketing, as well as certain actions taken in retaliation for the lawful picketing, [n9] violate the Statute.
D. The Authority Has Jurisdiction to Determine That the Respondent's Retaliatory Suspension of the Technicians' Security Clearances Violates the Statute.
The Judge found that the suspension of the technicians' security clearances interfered with the technicians' rights under section 7102 of the Statute, and the Judge's recommended order includes reinstatement of the security clearances. According to the Respondent, the Authority has no power to order the reinstatement of a security clearance. The Respondent relies exclusively on Egan, where the Supreme Court held that the MSPB does not have the authority to review the substance of a security clearance determination in the course of adjudicating an adverse action. 484 U.S. at 520. The Court stated that the protection of classified material must be committed to the discretion of the agency responsible and that it is not "reasonably possible for an outside nonexpert body to review the substance of such a judgment." Id. at 529.
Egan does not preclude the Authority from finding that the Respondent's retaliatory suspension of the technicians' security clearances violates the Statute. Egan precludes an agency from reviewing "the substance of an underlying decision to deny or revoke a security clearance." 484 U.S. at 520. This case, however, does not necessitate such a review. Here, the Respondent has stated unequivocally that it suspended the clearances because of the picketing. See, e.g., GC Ex. 10c. We have determined that this picketing was lawful, protected activity. Therefore, the clearance decision itself is facially illegal and there is no need for us to review the substance of the security clearance decision to determine that the Respondent has violated the Statute. [n10] To be clear, we are in no way asserting jurisdiction over all of Respondent's security clearance determinations. Indeed, nothing in this decision precludes the Respondent from revoking the technicians' security clearances for any lawful reason. However, the Authority has jurisdiction to find a violation where an agency suspends or [ v56 p181 ] revokes a security clearance for the express and sole reason that an individual exercised rights protected by the Statute. Accordingly, we affirm the Judge's findings and recommended order as they relate to the security clearance suspensions.
E. Section 709(e) of the Technicians Act Precludes the Authority from Reviewing the Respondent's Retaliatory Termination.
In this case, the Judge found that the Respondent terminated a technician for the express and sole reason that he engaged in informational picketing and that this termination violates the Statute. The Respondent does not dispute the facts. Instead, it questions our ability to remedy what would in a non-technician setting be a patent violation of our Statute. For the reasons that follow, we reverse the Judge's findings with regard to the termination.
Section 709(e)(5) of the Technicians Act provides that "a right of appeal which may exist with respect to [adverse personnel actions] shall not extend beyond the adjutant general of the jurisdiction concerned." The Authority has held that review of an adverse personnel action against a technician in a ULP proceeding would violate that provision. Illinois National Guard, 19 FLRA at 105. [n11] In so holding, the Authority relied on court decisions that had reversed the Authority concerning a technician's right to arbitrate adverse actions. [n12] Id. at 103-105 (citing New Jersey National Guard, 677 F.2d 276, 282 (3d Cir. 1982), and California National Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983)).
In Illinois National Guard, the Authority recognized, and the D.C. Circuit affirmed, that Congress's intent regarding section 709(e) is clear -- "Congress plainly intended to leave with state adjutants general the final authority over adverse personnel actions against National Guard technicians." 19 FLRA at 105. The adjutant general has final authority, Congress has emphasized, "notwithstanding any other provision of law," which includes the Statute. [n13] Id. at 104. As the D.C. Circuit stated in affirming Illinois National Guard, "the [Statute] evidences no legislative intent to override the clear pre-emptive language of the Technicians Act." Illinois Air Chapter 34, ACT, Inc. v. FLRA, No. 85-1579, at 2 (D.C. Cir. Oct. 23, 1986). Accordingly, the Authority determined that it lacked jurisdiction in ULP proceedings to review a technician's termination.
Our dissenting colleague suggests that a ULP complaint is not an "appeal" within the meaning of section 709(e). However, the language of section 709(e) does not permit an interpretation that limits its prohibitions to MSPB appeals and other third party reviews of the merits for "cause" determinations. See Illinois Air Chapter 34, ACT, Inc. v. FLRA, No. 85-1579, at 1 (D.C. Cir. Oct. 23, 1986) (rejecting argument that a ULP complaint is not an "appeal" within the meaning of section 709(e)). Succinctly put, section 709(e) broadly prohibits any final review of a technician's termination, other than that by an adjutant general. See New Jersey Air National Guard, 677 F.2d at 282; see also California National Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983) (a grievance procedure is an "appeal" within the meaning of section 709). [n14] [ v56 p182 ]
The Judge's attempt to distinguish the case based on the "important First Amendment rights protected by the Statute" is not persuasive. The Judge cited cases in which federal courts exercised jurisdiction over otherwise nonreviewable personnel actions where constitutional rights were implicated. However, the Authority's jurisdiction in ULP cases extends only to claims arising from the Statute, not constitutional claims. See NTEU v. King, 961 F.2d 240, 243 (D.C. Cir. 1992) (holding that a union's constitutional claim was not adjudicable in the administrative proceeding before the Authority). Here, the Authority has clearly found that the employees have the statutory right to picket. However, it is section 709(e) of the Technicians Act, not the Statute, that restricts the Authority's ability to review an employee's termination for picketing. As such, the constitutional question raised in this case does not provide a basis for adjudication where the Authority is otherwise deprived of jurisdiction to resolve a particular issue. [n15]
The General Counsel contends that review should lie in at least those cases where the termination is expressly premised on protected activity. Unfortunately, the express and exclusive language of section 709(e) does not permit such an exception, even where - as here - the Respondent's misconduct is flagrant. Notwithstanding the blatant nature of the violation in this case, the wording of section 709(e) deprives us of jurisdiction. We recognize that the National Guard's immunity from prosecution in ULP proceedings for retaliatory discharges of civilian technicians leaves meaningful rights Congress provided technicians under the Statute largely unenforceable. It seems incongruous for Congress to on the one hand provide rights, but on the other to deny any meaningful enforcement. Nevertheless, it is for Congress, not the Authority, to correct this injustice. See Pritzker v. Yari, 42 F.3d 53, 73 (1st Cir. 1994) (the unambiguous language of a statute may not be ignored, even if its application to particular facts evokes a "sympathetic reaction").
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Puerto Rico Air National Guard shall:
1. Cease and desist from:
(a) Interfering with the rights of employees represented by the Union to engage in activity protected by the Federal Service Labor-Management Relations Statute (the Statute) by ordering bargaining unit employees to refrain from lawful informational picketing on the access road to the Main Gate at the Muniz Air Force Base.
(b) Interfering with the rights of employees represented by the Union to engage in activity protected by the Statute by creating the impression that activity for and on behalf of the Union will be kept under surveillance.
(c) Interfering with the rights of employees represented by the Union to engage in activity protected by the Statute by placing on non-duty status bargaining unit employees because they engaged in lawful informational picketing.
(d) Interfering with the rights of employees represented by the Union to engage in activity protected by the Statute by suspending the security clearances of bargaining unit employees because they engaged in lawful informational picketing.
(e) In any other manner interfering with, restraining or coercing bargaining unit employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Advise all relevant higher officials involved in this matter that Pedro Romero and the bargaining unit employees named in Appendix A were engaged in lawful informational picketing on behalf of the Union on December 8, 1998, conduct which is protected by 5 U.S.C. 7102; and that all official records pertaining to this conduct by such employees shall so reflect or be changed to so reflect.
(b) Rescind its decision to suspend with pay Pedro Romero and the employees named in Appendix A. [ v56 p183 ]
(c) Rescind its decision to suspend the security clearances of Pedro Romero and the employees named in Appendix A.
(d) Notify within ten days of this order the Union, Pedro Romero, and the employees named in Appendix A that action directed above has been taken.
(e) Post at the Muniz Air Force Base and any other location where bargaining unit employees are located 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 of the Puerto Rico Air National Guard 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. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(f) Within ten days of posting the Notice, the Guard will conduct a meeting of all civilian technicians in the bargaining unit represented by the Union and at the meeting the Adjutant General will read to all employees present the Notice and inform each of the employees present that the Puerto Rico Air National Guard recognizes that the Federal Labor Relations Authority has jurisdiction over the Guard and that conduct in conflict with the provisions of the Federal Service Labor-Management Relations Statute will not be tolerated.
(g) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
1. Rolando Navarro
2. Juan C. Diaz
3. Jaime F. Rivera Colon
4. Angel Vazquez
5. Angel M. Berrios
6. Victor Merced
7. Pedro J. Martinez
8. Hector Velez
9. George Rodriguez
10. Jose Lebron
11. Jose Torres (M.I.D.)
12. Marcos Saldana
13. Axel Rivera
14. Arlene M. Luciano
15. Edgardo Antuna
16. `Hector Aponte Alicea
17. Luis M. Rivera
18. Frank Garcia-Rosado
19. Carlos Rivera
20. Michael Coll
21. Carlos Ayala
22. Rafael Horta
23. George Arce
24. Luis A. Pabon
25. Felix Perez [ v56 p184 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.
We hereby notify bargaining unit employees that:
The Federal Service Labor-Management Relations Statute (the Statute) gives employees of this agency the following rights:
To form, join, or assist any labor organization;
To act for a labor organization in the capacity of a representative;
To present the views of the labor organization, as a representative of a labor organization, to heads of agencies and other officials of the executive branch of the Government, Congress or other appropriate authorities;
To engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under the Statute; and
To refrain from any of the activities set forth above, freely and without fear of penalty or reprisal.
The Puerto Rico Air National Guard, Muniz Air National Guard Base, Carolina, Puerto Rico, will not violate any of these rights. More specifically:
WE WILL NOT interfere with the rights of our employees to engage in activity protected by the Statute by informing the American Federation of Government Employees, Local 3936, AFL-CIO, the exclusive representative of its employees, not to conduct informational picketing on the access road to Muniz Air National Guard Base.
WE WILL NOT interfere with the protected rights of our employees by making statements that suggest that engaging in lawful informational picketing on behalf of the American Federation of Government Employees, Local 3936, AFL-CIO, may have adverse repercussions or may cause an employee to be treated in a disparate manner.
WE WILL NOT discriminate against employees by placing them in a non-duty pay status and suspending their security clearances and their access to Muniz Air National Guard Base and, because they engaged in lawful informational picketing on behalf of the American Federation of Government Employees, Local 3936, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured them by the Statute.
WE WILL advise all relevant higher officials involved in this matter that Pedro Romero and other bargaining unit employees were engaged in lawful informational picketing on behalf of the American Federation of Government Employees, Local 3936, AFL-CIO on December 8, 1998, conduct that is protected by 5 U.S.C. § 7102; and that all official records pertaining to this conduct by such employees shall so reflect or be changed to so reflect.
WE WILL rescind the suspension of employees' security clearances and the suspension of their access to Muniz Air National Guard Base, and advise employees in writing that such action has been taken and that it will not be used against them in any way.
Date: ___________ By: _______________________
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 or compliance with any of its provisions, they may communicate directly with the Regional Director of the Boston Region, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200 and whose telephone number is: (617) 424-5730. [ v56 p185 ]
Opinion of Chairman Wasserman, concurring in part and dissenting in part:
I agree with my colleagues with respect to the evaluation of the Judge's sanctions, and his determination that the Puerto Rican National Guard is a federal agency. I also agree that the Authority has jurisdiction because the actions involved were civilian, rather than military in nature. In addition, the Authority may set aside security clearance determinations that are expressly based upon a foundation that is unlawful under the Statute. I part ways with the majority with respect to the determination that Section 709(e)(5) of the Technicians Act precludes the Authority's review of unlawful terminations.
The Technician's Act provides:
(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;
. . . .
(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;...
32 U.S.C. § 709(e)(5).
In this case, Pedro Romero was discharged from his National Guard position for the following reasons:
On 8 December 1998, Tsgt Pedro Romero-Roig conducted a picket at the Muniz Air National Guard Base (MANGB), Carolina Puerto Rico. This activity was conducted within the premises of the Base, violating a lawful order given to him by the Assistant Adjutant General for Air/Commander on 6 December 1998. During this activity, malicious and defamatory statements were made against the PRNG and some of its senior leaders and supervisors.
GC Ex. 11, Memorandum regarding "Recommendation for Involuntary Separation" dated 2 March 1999. As we found above, both the subject and the manner for the picketing concerned the civilian aspects of Romero's employment. The picketing was lawful under our Statute. Accordingly, Romero was separated from the National Guard for the sole and express reason that he participated in protected activity. His mandatory termination from his civilian position was thus directly caused by his participation in protected activity. Rarely have we been presented with a clearer or more egregious violation of our Statute.
My colleagues have concluded, in accord with an earlier Authority decision, that section 709 bars our review and correction of Romero's unlawful termination. I disagree with that conclusion. The Authority was incorrect when it determined in Illinois National Guard that it could not review unfair labor practice complaints pertaining to termination of National Guard technicians. The Authority relied upon the decisions in New Jersey National Guard and California National Guard. The Third and Ninth Circuit Courts, respectively, attempted to reconcile Section 709(e)(5) with Section 7121 as they reviewed the negotiability of proposals that would permit grievances and binding arbitration of terminations of National Guard technicians. Both courts determined that the general requirement of binding arbitration found in Section 7121 of our Statute did not override the specific language of Section 709 requiring appeals to stop at the adjutant general level. See New Jersey National Guard, 677 F.2d 276, 285-86 (3d Cir. 1982); California National Guard, 697 F.2d 874, 879 (9th Cir. 1983).
The Courts were not given the opportunity to evaluate the specific language of our Statute with respect to the correction of unfair labor practices. In contrast to the abbreviated requirement of having final and binding arbitration, Congress was quite specific about the Authority's role in resolving unfair labor practices. First, as relevant here, unfair labor practices were defined to include interference, restraint or coercion with respect to the exercise of any right under the Statute. 5 U.S.C. § 7116(a)(1). The Authority was granted the power to resolve complaints of unfair labor practices and "to take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter." 5 U.S.C. §7105(a)(2)(G) and (I).
Specific remedial power was granted by Congress as follows:
If the Authority . . . determines...that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, then [it] shall . . . issue and cause to be served on the agency or labor organization an order - [ v56 p186 ]
(A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;
. . . .
(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay may be required of the agency (as provided in section 5596 of this title) or of the labor organization, as the case may be, which is found to have engaged in the unfair labor practice involved.
5 U.S.C. § 7118(a)(7). In addition, the Authority was granted the ability to seek judicial enforcement of its orders. 5 U.S.C. § 7123(b). All of these provisions reveal a strong Congressional intent to provide for review and redress of unfair labor practices.
I suggest that harmonizing section 709 and the various aspects of our Statute regarding the correction of unfair labor practices would yield a result different from the Authority's determination in Illinois National Guard. Specifically, I view the unfair labor practice provisions as providing the Authority with jurisdiction to review adjutant general decisions that are claimed to constitute unfair labor practices. Clearly, the Authority's review is not akin to an arbitrator's evaluation of the just cause of a civilian technician's termination. Such arbitral review would constitute the prohibited second guessing of the state official's prerogative in administering the personnel system under the Technician's Act. In contrast, the Authority's review of unfair labor practice complaints derives from a specific Congressional grant of authority to ensure that unfair labor practices are not permitted to go unaddressed.
This case, more than any, calls out for the exercise of the Authority's role in providing a remedy for unfair labor practices, because Romero's removal was based on a loss of military standing that was explicitly and directly attributable to the agency's response to the protected activity of civilian labor picketing. In fact, Authority precedent suggests the propriety of this view. See U.S. Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, California, and Karen O'Rourke, 40 FLRA 290, 302 (1991) (Authority notes that a matter may not be substantively reviewable as an unfair labor practice if the agency asserts a "lawful reason for a disputed action . . . taken pursuant to its exclusive authority" under its authorizing statute, implying that review is appropriate in the absence of a stated lawful reason).
I am well aware of the D.C. Circuit's unpublished affirmance of the Authority's decision in Illinois National Guard. In its short memorandum opinion, the Court relied upon the decisions in New Jersey National Guard and California National Guard, which I have discussed above. In addition, the Court rejected the union's argument that an unfair labor practice complaint was not an "appeal" as contemplated by Section 709(e). I think the Court's determination was incorrect on that point. The Merit Systems Protection Board has, and its predecessor Civil Service Commission had, jurisdiction over "appeals" of terminations, generally, while we have jurisdiction over "complaints" of unfair labor practices. Compare 5 U.S.C. § 7513 and 5 U.S.C. § 7118(a)(1). In my view, Section 709(e) was intended to preclude third party review on the merits of the "cause" determination, not the adjudication of unfair labor practice complaints that deal with National Guard Technician terminations.
The Authority is not obliged to, and does not always, adopt the reasoning of a United States Court of Appeals. See, e.g., Headquarters, National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., 50 FLRA 601, 612-14 (1995), enforced 120 F.3d 1208 (11th Cir. 1997), aff'd ___ U.S. ___, 119 S. Ct. 1979 (1999) (Authority declined to follow the D.C. Circuit's interpretation of section 7114(a)(2)(B) of the Statute as it pertained to representatives of an agency). Given the options provided in section 7123(a)(2) for where judicial review can be sought, the Authority can never know whether or where its decisions will be reviewed. As such, the Statute "does not contemplate that the law of a single circuit would exclusively apply in any given case." Arvin Automotive, 285 NLRB 753, 757 (1987) (commenting on substantially identical judicial review provisions in the National Labor Relations Act). Accordingly, the Authority would be free to revisit its decision in Illinois National Guard, notwithstanding the D.C. Circuit's unpublished approval. I would do so here.
Having determined that Section 709(e) of the Technicians Act does not preclude our review, I would evaluate the merits of the complaint as to the termination of Romero. I conclude that the Respondent violated [ v56 p187 ] the law when it terminated Romero's civilian employment, because the action has at its base Respondent's unlawful response to Romero's participation in the picketing at issue. Although the removal was dictated by Romero's loss of military position, the military action was predicated on the picketing. As a result, the civilian termination was so essentially tainted by an unlawful motivation that it must be set aside as an unfair labor practice. I would order Romero's reinstatement to his civilian position, with full back pay and benefits. It would be up to the Respondent to determine the manner of accomplishment of civilian reinstatement in conformance with the requirement that National Guard technicians must hold equivalent military positions.
File 1: Authority's Decision in 56 FLRA No.
21 and Opinion of Chairman Wasserman
File 2: ALJ's Decision
Footnote # 1 for 56 FLRA No. 21 - Authority's Decision
Footnote # 2 for 56 FLRA No. 21 - Authority's Decision
Footnote # 3 for 56 FLRA No. 21 - Authority's Decision
Footnote # 4 for 56 FLRA No. 21 - Authority's Decision
Sections 2423.21(b)(1) and 2423.27(a) of the Authority's regulations require that prehearing motions in general and motions for summary judgment in particular must be filed at least 10 days before the hearing.
Footnote # 5 for 56 FLRA No. 21 - Authority's Decision
Notwithstanding any other provision of law . . . a right of appeal which may exist with respect to [among other things, adverse actions involving discharge from technician employment] shall not extend beyond the adjutant general of the jurisdiction concerned.
32 U.S.C. § 709(e)(5).
Footnote # 6 for 56 FLRA No. 21 - Authority's Decision
See, e.g., Gilliam v. Miller, 973 F.3d 760, 762 (9th Cir. 1992) ("We agree that the [Oregon Adjutant General's] personnel actions as supervisor over the federal civilian technicians are taken in the capacity of a federal agency."); NeSmith v. Fulton, 615 F.2d 196, 199 (5th Cir. 1980) (finding that the Adjutant General was a federal agency with respect to technician employment, and finding further that the fact that "an adjutant general is a state officer does not preclude his simultaneously being a federal agency"); Chaudoin v. Atkinson, 494 F.2d 1323, 1329 (3d Cir. 1974) ("there can be no doubt that the Adjutant General of Delaware is an agency or agent of the United States [in administering the technician program]").
Footnote # 7 for 56 FLRA No. 21 - Authority's Decision
The Technicians Act states that a technician employed under the act "is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States." 32 U.S.C. § 709(d). The Technicians Act not only establishes the civilian character of technician employment, but also reflects Congress's intent that technicians have the same collective bargaining rights as other federal employees. In this regard, subsections 709(f) and (g) exempt technicians from specific provisions of Title 5 of the United States Code, but do not exempt them from the Statute.
Footnote # 8 for 56 FLRA No. 21 - Authority's Decision
See H.R. Rep. No. 89-1823, reprinted in 1968 U.S. Code Cong. & Ad. News 3318, 3319 (technicians serve both by performing "full-time civilian work" and "military training and duty"). In addition, legislation enacted after the Technicians Act confirms that Congress intended technicians to have the right to bargain collectively like other federal employees. In 1978, Congress enacted what was to become 10 U.S.C. § 976 (Pub. L. 95-610), which prohibits collective bargaining in the military. The language and legislative history of that statute demonstrate that Congress knew of and considered the special employment circumstances of civilian technicians and that Congress was committed to collective bargaining rights for civilian technicians. See H.R. Rep. No. 95-894(I), reprinted in 1978 U.S. Code Cong. & Ad. News 7575, 7580; H.R. Rep. No. 95-894(II), reprinted in 1978 U.S. Code Cong. & Ad. News 7575, 7586.
Footnote # 9 for 56 FLRA No. 21 - Authority's Decision