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) (Authority decision, March 21, 2000)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Civilian technicians at the Puerto Rico Air National Guard held orderly, off-duty informational picketing about working conditions with permission to use a parking area. The Guard threatened surveillance, placed participating employees on paid non-duty status, suspended their security clearances, and terminated the union president after ending his Guard membership. The Authority found unlawful interference with protected civilian union activity and ordered the Guard to reverse the non-duty and security-clearance suspensions, correct records, and post and read a notice. It could review the clearance suspensions because the stated sole reason was protected picketing, without examining the substance of a security judgment. The majority nevertheless held that the National Guard Technicians Act barred its review of the termination and removed that portion of the judge’s remedy. Chairman Wasserman dissented on termination jurisdiction and would have ordered reinstatement with back pay.

Decision snapshot

• Authority: Protected informational picketing, unfair labor practices, and the National Guard Technicians Act.
• Outcome: Interference and suspension violations upheld with relief; termination allegation outside Authority jurisdiction.
• Key point: The majority distinguished protected civilian activity from the statutory bar on reviewing technician terminations.

Full text (FLRA public release)

[ v56 p174 ]

56 FLRA No. 21

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)

BN-CA-90241

_____

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

A. Background

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").

V. Order

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.

APPENDIX A

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.

_____

(Activity)

Date: __ By: ________

(Signature) (Title)

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

Chairman Wasserman's opinion, dissenting in part, is set forth at the end of this decision.

Footnote # 2 for
56 FLRA No. 21

• Authority's Decision

These facts are those found by the Judge based on the testimony of the Union's President and other witnesses for the General Counsel. The Respondent did not participate in the hearing.

Footnote # 3 for
56 FLRA No. 21

• Authority's Decision

The Community Club was described as "an entertainment place, it's a bar." Transcript (Tr.) at 51.

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

As relevant here, the Technicians Act states:

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

The Judge found that these actions include the Respondent's placement of the employees on non-duty status, the suspension of their security clearances, and the termination of Romero. The Respondent has specifically excepted to our reviewing the security clearance suspensions and the termination, issues that are discussed below. The Respondent did not, however, specifically object to our review of the placement of the employees on non-duty status. But for the Respondent's retaliation, the technicians would have been at work performing their civilian duties. Because being placed on non-duty status relates to the civilian aspect of technician employment, we have jurisdiction to determine that this act violates the Statute, and, accordingly, affirm the Judge's finding that placing the employees in non-duty status violated the Statute.

Footnote # 10 for
56 FLRA No. 21

• Authority's Decision

Citing Egan, the Authority has recognized that, as a general rule, it may not review the substance of security clearance determinations. See Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 51 FLRA 1751, 1757 n.7 (1996) (Defense Mapping Agency) (rejecting on mootness grounds request for information related to security clearances). However, the complaint in Defense Mapping Agency did not involve a security clearance determination that, on its face, was premised on engaging in activity protected by the Statute.

Footnote # 11 for
56 FLRA No. 21

• Authority's Decision

The Association of Civilian Technicians's petition for review of Illinois National Guard was denied in an unpublished memorandum decision by the D.C. Circuit. Illinois Air Chapter 34, ACT, Inc. v. FLRA, 802 F.2d 1483 (D.C. Cir. 1986) (Table).

Footnote # 12 for
56 FLRA No. 21

• Authority's Decision

As the dissent points out, the Authority's review of unfair labor practice complaints is different from arbitral review. Nevertheless, with regard to challenging technician terminations, both types of review are prohibited by section 709(e) because only an adjutant general may review such an adverse action. See New Jersey Air National Guard, 677 F.2d at 282 (Section 709(e) "establishes only that a dispute over one of the enumerated matters, whatever procedural route it may take, must terminate, finally, with the decision of the adjutant general") (emphasis added).

Footnote # 13 for
56 FLRA No. 21

• Authority's Decision

When Congress enacted the Statute in 1979, it was presumably aware of the "notwithstanding any other provision of law" language which it had enacted in the Technicians Act of 1968. However, Congress chose not to address the Technicians Act's limit on review procedures when it drafted the Statute. See New Jersey National Guard, 677 F.2d at 286 ("It appears inconceivable that Congress in 1978, without a moment's thought as to the question of state control over the National Guard, or as to the needs of military discipline over Guard technicians in their dual status as civilian and military personnel, intended to eliminate, by mere implication, the controls that Congress carefully had imposed over those employees and deemed `essential' ten years earlier.")

Footnote # 14 for
56 FLRA No. 21

• Authority's Decision

We note, in this regard, that the case relied upon by the dissent, U.S. Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, California, and Karen O'Rourke, 40 FLRA 290 (1991), does not address section 709(e) of the Technicians Act, and, therefore, is inapposite.

Footnote # 15 for
56 FLRA No. 21

• Authority's Decision

NTEU v. FLRA, 986 F.2d 537 (D.C. Cir. 1993), is not to the contrary. There the court held only that in interpreting the Statute, the Authority must take constitutional implications into account. Id. at 540.

[ v56 p187 ]

Bench Decision

[Errors in the transcript have been corrected]

1

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

BOSTON REGION

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

Case No. BN-CA-90241

BEFORE: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

2

APPEARANCES

On Behalf of AFGE:

Stuart A. Kirsch, Esq.

American Federation of Government Employees, AFL-CIO

6724 Church Street, Suite 2

Riverdale, GA 30274-4711

On Behalf of the General Counsel, FLRA

Richard Zaiger, Esq.

Regional Attorney

Federal Labor Relations Authority

99 Summer Street, Suite 1500

Boston, MA 02110

Julie McCarthy, Esq.

Federal Labor Relations Authority

99 Summer Street, Suite 1500

Boston, MA 02110

On behalf of PRNG:

(No appearance.) [ v56 p188 ]

3

PROCEEDINGS

(11:15 a.m.)

ADMINISTRATIVE LAW JUDGE OLIVER: This is a bench decision rendered at the close of the hearing pursuant to section 2423.31(d) of the Authority's regulations.

The unfair labor practice complaint alleged that the Respondent committed various unfair labor practices in violation of section 7116(a)(1) of the Federal Service Labor Management Relations Statute by interfering with the rights of employees to engage in conduct protected by section 7102 of the Statute, including the right to engage in lawful informational picketing.

The Respondent's answer denied most of the allegations of the complaint and asserted several affirmative defenses.

The Respondent's pretrial motion to dismiss was denied, and its alternative motion for summary judgment was denied as untimely. The Respondent failed to comply with the Authority's prehearing disclosure requirements set out in sections 2423.23(a), (b), and (c), of the Authority's regulations. And the General Counsel's motions for appropriate sanctions in accordance with 2423.24(e) were granted during the outset, and during the course of the hearing.

The General Counsel and the Charging Party were

4

represented by counsel at the hearing. Counsel for the Respondent had stated, during a prehearing conference, that due to the Respondent's position on the lack of Authority jurisdiction, the Respondent did not intend to be present and participate in the hearing, and it did not do so.

Counsel for the General Counsel and Charging Party proceeded to present their testamentary and documentary evidence, and closing arguments.

Based on the entire record, including my observation of the witnesses, and their demeanor, I make the following findings of fact and conclusions of law, including those proposed by Counsel for the General Counsel and Counsel for the Charging Party:

1. The Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico (the Respondent), is an agency under 5 U.S.C. § 7103(a)(3).

2. The American Federation of Government Employees, Local 3936, AFL-CIO (the Charging Party or the Union), is a labor organization under 5 U.S.C. § 7103(a)(4).

3. At all times material, the Charging Party has been the certified exclusive representative of a unit of employees (civilian technicians) appropriate for collective bargaining at the Respondent. In its role as the exclusive representative of the civilian technicians employed by the Charging Party, the Charging Party has negotiated a collective

5

bargaining agreement covering the working conditions of bargaining unit employees. The Charging Party has also negotiated memorandums of agreement with the Respondent addressing the working conditions of bargaining unit employees as well as having filed grievances under its negotiated agreement on behalf of bargaining unit employees.

4. The charge in this proceeding was filed by the Charging Party with the Boston Regional Director of the Federal Labor Relations Authority (the Authority) on February 3, 1999, and a copy of the charge was served on the Respondent.

5. At all times material to this proceeding, the following named persons occupied positions set opposite their names with the Respondent:

General Emilio Diaz Colon - Adjutant General

Brigadier General Daniel López Romo - Assistant Adjutant General Air Commander

Colonel Nelson Tejada - Base Wing Commander

Lt. Colonel Jose A. Goyco, Jr. - Personnel Officer

Captain Nestor Barreto - Maintenance Officer

Captain Manuel E. Castro Frias - Field Maintenance Command/Commander, Aircraft Generation Squadron

6. At all times material to this proceeding, the persons named in paragraph 5 were supervisors and/or

6

management officials under 5 U.S.C. § 7103(a)(1) and/or (11).

7. At all times material to this proceeding, the persons named in paragraph 5 were acting on behalf of the Respondent. [ v56 p189 ]

8. On or about November 30, 1998, the Charging Party distributed a flyer to bargaining unit employees announcing its intention to conduct an informational picket line on December 8, 1998. According to the flyer, the purpose of the picketing was to protest the working conditions of the bargaining unit employees. The Union issued a press release prior to the picketing announcing its intent to picket regarding abuse of power, corruption, and immorality by managerial staff of the Air National Guard.

9. On December 6, 1998, at approximately 8:00 p.m., Brigadier General, Daniel Lopez Romo approached the Charging Party's President, Pedro Romero at the Base Community Club. López Romo told Mr. Romero not to engage in picketing on the access road leading to the Main Gate of the Respondent's premises. At the time of this discussion Mr. Romero was not on duty in either a civilian or military capacity since he had completed his military active duty for the weekend.

10. On the morning of December 8, 1998, Brigadier General Daniel López Romo called the Charging Party's President, Pedro Romero, on the telephone. During the telephone conversation, López Romo told Mr. Romero that any

7

employees engaged in picketing should place a bag or a Halloween mask over their head.

11. On December 8, 1998, employees in the bargaining unit described in paragraph 3 engaged in informational picketing on behalf of the Charging Party. Participating on the picket line were the Charging Party's President, Pedro Romero, and the twenty-five (25) bargaining unit employees named in Appendix A.

12. The Charging Party intended to conduct the picketing on the public street at the entrance to the Main Gate at the Muñiz Air National Guard Base in Carolina, Puerto Rico. Commonwealth of Puerto Rico police were contacted by the Union prior to the picketing. The local police expressed safety concerns to the Union picketers and directed the picketers to a parking lot area off of an access road. Local Union President Romero informed the police regarding guidance he had gotten regarding the access road being construed as base property.

The police officer indicated that he would seek approval from PRANG officials to move the picketing to this parking lot. The police officer went inside the gate and returned, indicating he had received approval from PRANG officials to move the picketing to this parking area.

Indeed, the police officer returned with several orange cones furnished by PRANG officials to demarcate the

8

permissible area of the picketing within 10 spaces of the parking lot. The picketing activities resumed in this space, which was approximately 800 feet from the Respondent's Main Gate.

13. The picketing took place after normal duty hours between 4:00 p.m. and 5:30 p.m.

14. The bargaining unit employees changed into civilian clothes before engaging in any picketing. Except for Pedro Romero, none of the other employees who engaged in picketing on December 8, 1998 were ever told by an supervisor or member of management that they could not engage in picketing, could not engage in picketing on agency's premises or that they could not engage in picketing on the access road to the Respondent's Main Gate.

15. At all times, the picketing was conducted in an orderly manner. The picketing employees did not block or otherwise interfere with individuals entering or leaving the Muñiz Air National Guard Base in Carolina, Puerto Rico, and there was no interference with the Respondent's operations. No operations were being conducted on the base during the picketing.

16. At no time during the picketing on December 8, 1998 did any management representative or military personnel order any of the picketing employees to stop engaging in such conduct on the Respondent's property.

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17. The purpose of engaging in the informational picketing was to improve working conditions of bargaining unit employees by informing the public, including the local press and electronic news media, of the hostile work environment created by Respondent. All of the bargaining unit employees knew, or were likely to know, of all of the actions taken by the Respondent in this case, based on the nature of the Respondent's conduct itself, and the reports in the local press, i.e. newspapers, radio, and television.

18. Bargaining unit employees engaged in picketing informed the public of the Charging Party's belief that the Respondent had unfairly terminated the Charging Party's vice president and a Union Steward. The [ v56 p190 ] Union employees believed these Union officials were unfairly terminated because of their filings of grievances, unfair labor practices, and representation activities and because of their disclosures of fraud, waste, abuse and sexual harassment. The picketing activities occurred after the Union had exhausted all internal efforts to rectify problems addressed in the picketing. These two Union officials had been involuntarily retired from their military positions. As a result, they were no longer eligible for employment as civilian technicians in the National Guard since civilian technicians in the National Guard must be members of a military unit in order to be employed as civilian technicians in the Puerto Rico Air National Guard. The Union

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Vice president and the Union Steward were active on behalf of the Charging Party, and the Charging Party believed the decision requiring these two Union officials to retire was a result of their activity for and on behalf of the Charging Party. Although twenty-four (24) employees were required to retire from the military, the Union Vice President and the Union Steward were the only civilian technicians who were forced to retire involuntarily. The remaining civilian technicians had volunteered and were all eligible for an immediate pension as well as an "early out" bonus.

19. Bargaining unit employees on the picket line informed the public of the Charging Party's belief that the Respondent was engaging in immoral work practices which were typified by the fact that the Respondent allowed "hooters" girls into restricted areas, "mooning" incidents that had occurred on that base as recently as 1998, and the use of alcohol during duty hours.

20. Bargaining unit employees participated on the picket line to protest the Respondent's refusal to abide by negotiated agreements. This conduct was typified by the refusal of the Respondent to abide by the May 15, 1998 Decision and Order of the Federal Labor Relations Authority involving the repudiation of a Memorandum of Agreement (MOU) that had been negotiated with the Respondent involving an experimental compressed work schedule. The Respondent did not

11

file any exceptions to the Decision and Order. Nevertheless, the Respondent refused to comply with the order in that proceeding, and the Authority has filed a petition for enforcement with the Federal Circuit Court of Appeals for the First Circuit.

21. On January 8, 1999 the Respondent, by Lt. Col. Jose A. Goyco, Jr., issued a letter to the President of the Charging Party, Pedro Romero, and the twenty-five (25) bargaining unit employees named in Appendix A, that, effective January 11, 1999 they would be placed on a non-duty pay status not to exceed March 31, 1999, because they engaged in informational picketing on December 8, 1998. Except for the Charging Party's President who is in the process of being terminated, this date was extended until April 30, 1999.

22. On January 8, 1999 the Respondent, by Captain Manuel E. Castro Frias, issued a letter to the President of the Charging Party, Pedro Romero, proposing his involuntary separation from the Puerto Rico National Guard because he engaged in informational picketing on December 8, 1998. On March 9, 1999 Romero was issued a letter discharging him from the military because he allegedly violated a "lawful" order, made defamatory statements against members of the PRNG, and engaged in conduct "contrary to the good name...of the Puerto Rico National Guard," and on March 10, 1999, Romero was terminated from his civilian position because he lost his

12

status in the military, effect April 13, 1999.

23. On January 8, 1999, the Respondent, by Colonel Nelson F. Tejada, issued memorandums to the President of the Charging Party, Pedro Romero, and the twenty-five (25) bargaining unit employees named in Appendix A, informing them that they had been temporarily placed on non-duty status and their Security Clearances suspended because they engaged in informational picketing on December 8, 1998. Local President Romero was the third consecutive Union president to be terminated from the Respondent. By virtue of Respondent's actions, Local Union officials were denied access to the Union office, files, and equipment.

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CONCLUSIONS OF LAW

The technicians in this case are civilian employees of the United States. 5 U.S.C. §§ 2105(a)(1)(F) and 7103(a)(2), and 32 U.S.C. § 709(d). As such, the employees have the right to form, join, or assist a labor organization (the Charging Party) without fear of penalty or reprisal under 5 U.S.C. § 7102 of the Statute. As interference with the exercise of those rights constitutes an unfair labor practice under 5 U.S.C. § 7116(a) of the Statute, the Authority has statutory jurisdiction under 5 U.S.C. § 7105(a)(2)(G) [ v56 p191 ] to resolve the unfair labor practice complaint in this case.

32 U.S.C. § 709(e), which prohibits further appeals from adjutant general decisions with respect to adverse personnel actions against civilian technicians, was held by the Authority in Department of Defense, Illinois Air National Guard, 182nd Tactical Air Support Group, Peoria, Illinois, 19 FLRA 101 (1985) to deprive the Authority of jurisdiction over an allegation than a technician was denied re-enlistment in the guard, thereby terminating his employment as a civilian technician, because he had engaged in activity protected by the Statute.

As urged by the General Counsel, I recommend that in this case, which implicates important First Amendment rights protected by the Statute, section 709(e) not be read to

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deprive the Authority of jurisdiction. See Bollen v. National Guard Bureau, 449 F. Supp. 343 (W.D., Pa., 1978)(termination of military and civilian employment was illegal and improper where undertaken to punish for exercising First Amendment rights); Chaudoin v. Atkinson, 494 F.2d 1323 (3rd Cir., 1974) (discharge of civilian technician for disobeying order to participate in military funeral was an abuse of discretion where order was unlawful); Webster v. Doe, 486 U.S. 592, 603 (1988) (Sole discretion of CIA director over employment termination decisions may not be read to exclude review of colorable constitutional claims arising out of an individual discharge); Kostan v. Arizona National Guard, 50 M.S.P.R. 182, 186 (1991)(Uncodified provision of the Technicians Act, Pub. L. No. 90-486 § 3(b), 82 Stat. 755, 757 (1968) demonstrates that technicians must be considered to possess all the rights held by other Army and Air Force civilian employees, save those rights specifically denied them in the National Guard Technicians Act).

Under section 19(b)(4) of Executive Order 11491, a ban on all picketing by Federal civilian employees, including informational picketing which did not interfere with an agency's operations, was held to be overly broad and an intrusion upon the right of free expression in violation of the First Amendment. National Treasury Elmployees Union v.

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Fasser, 428 F. Supp. 295 (D.C. 1976). As a result, Federal employees covered by the Statute, including those employed on military bases, now have a right under section 7102 of the Statute to conduct informational picketing concerning unit employees' conditions of employment which does not interfere with an agency's operations. Department of the Army, U.S. Soldier Support Center, Fort Benjamin Harrison, Indiana, 40 FLRA 558 (1991); American Federation of Government Employees, Local 2369, AFL-CIO, 22 FLRA 63, 768-70 (1986); 5 U.S.C. § 7116(b)(7). The Authority has also held that the right to publicize matters affecting unit employees' terms and conditions of employment, while not unfettered, is a right protected by section 7102 of the Statute, and that the Air Force at Clark Air Force Base, the Philippines, by denying employees permission to distribute handbills concerning matters affecting unit employees conditions of employment, at the base exchange and commisary, where no disruption of the mission was shown, violated section 7116(a)(1) of the Statute. Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044 (1987).

While military aspects of civilian technician employment do not concern conditions of employment within the meaning of the Statute, Association of Civilian Technicians, Pennsylvania State Council, 47 FLRA 332 (1993), the informational picketing

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in this case concerned, in whole or in major part, the non-military aspects of the conditions of employment of the civilian technicians, addressing as it did alleged unfair terminations, immoral work practices, and the Respondent's refusal to abide by negotiated agreements.

Accordingly, the facts in this case support the following additional conclusions:

24. The picketing that was conducted by the Charging Party on December 6, 1998, was lawful since it did not interfere with the Respondent's operations.

25. The sole basis for the actions taken by the Respondent against the twenty-five (25) employees named in Appendix A was that they engaged in lawful informational picketing.

26. The sole basis for the actions taken by the Respondent against the Charging Party's President, Pedro Romero, was his protected Union activity which included the picketing that took place on December 8, 1998, as well as the statements he made to the local press. [ v56 p192 ]

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27. The order given to Pedro Romero by López Romo on December 6, 1998 was an unlawful order since it is well settled that a labor organization in the Federal Sector has a right to engage in lawful informational picketing on an agency's property. This right extends to the military, and is recognized by the Department of Defense in DoD 1400.25-M of Dec. 96, a regulation that applies to the National Guard Bureau. (G.C. Exh. 17).

28. By the conduct described above in paragraph 9, 10, 21, 22 and 23, the Respondent has created a hostile work environment that has resulted in an unprecedented decrease in dues paying Union members within a relative short period of time (from approximately 130 dues paying members to between 80 and 90 dues paying members) which has effectively destroyed the Charging Party's ability to provide representation to the civilian technicians that continue to be employed by the Respondent.

29. By the conduct described above in paragraph 9, 10, 21, 22, and 23, individually and collective, the Respondent has and continues to interfere with rights of the bargaining unit employees to engage in conduct protected by 5 U.S.C. § 7102, including the right to engage in lawful informational picketing and thereby committed unfair labor practices in violation of 5 U.S.C. § 7116(a)(1).

30. By the conduct described above in paragraph 10, the Respondent interfered with rights of bargaining unit

14

employees to engage in conduct protected by 5 U.S.C. § 7102, including the right to engage in lawful informational picketing and thereby committed an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1).

The unfair labor practices committed by the Respondent were so pervasive that extraordinary relief is warranted. Accordingly, I recommend that the Authority issue the following order.

ORDER

Pursuant to section 2423.41 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Puerto Rico Air National Guard, 158th Airlift Wing (AMC) Carolina, Puerto Rico, shall:

1. Cease and desist from:

(a) Interfering with the rights of employees represented by the Charging Party to engage in activity protected by the Federal Service Labor-Management Relations Statute by not allowing bargaining unit employees to engage in lawful informational picketing on the access road to the Main Gate at the Muñiz Air Force Base.

(b) Interfering with the rights of employees represented by the Charging Party to engage in activity protected by the Statute by creating the impression that activity for and on behalf of the Charging Party will be kept under surveillance.

15

(c) Interfering with the rights of employees represented by the Charging Party to engage in activity protected by the Statute by making statements to employees that interfere with, restrain and coerce employees with regard to rights protected by the Statute, including the right to engage in lawful informational picketing on the Respondent's property.

(d) Interfering with the rights of employees represented by the Charging Party to engage in activity protected by the Statute by suspending with pay bargaining unit employees because they engaged in lawful informational picketing.

(e) Interfering with the rights of employees represented by the Charging Party to engage in activity protected by the Statute by suspending the security clearances of bargaining unit employees because they engaged in lawful informational picketing.

(f) Interfering with the rights of employees represented by the Charging Party to engage in activity protected by the Statute by requesting the investigation of the security clearances of bargaining unit employees because they engaged in lawful informational picketing.

(g) Interfering with the rights of employees

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represented by the Charging Party to engage in activity protected by the Federal Service Labor-Management Relations Statute by terminating the Charging Party's President, Pedro Romero, because he exercised his right under the Statute to engage in lawful informational picketing and to present the views of the Charging Party to the news media.

(h) Engaging in any further reprisal or effort to effect employees' condition of employment [ v56 p193 ] including retention based upon their having engaged in the lawful informational picketing.

(i) In any other manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations 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 information picketing on behalf of the Charging Party on December 8, 1998, conduct which is protected by 5 U.S.C. § 7102; that all official records pertaining to this conduct by such employees shall so reflect or be changed to so reflect, and

17

that any and all records which reflect that such activity constituted unfavorable activity, conduct, or behavior meriting adverse action toward such individuals shall be rescinded.

(b) Rescind its decision to suspend with pay Pedro Romero and the employees named in Appendix A.

(c) Rescind its decision to terminate Pedro Romero.

(d) Rescind its decision to suspend the security clearances of Pedro Romero and the employees named in Appendix A.

(e) Rescind its request that an investigation be undertaken to reexamine the security clearances of Pedro Romero and the employees named on Appendix A and immediately inform any individual or group of individuals investigating the security clearances of Pedro Romero and the employees named in Appendix A that the decision to request that investigation was based solely on unlawful considerations and should cease immediately.

(f) Consistent with the provisions of the Back Pay Act, make Pedro Romero and the employees named in Appendix A whole for any losses they may suffer as a result of the conduct found unlawful.

(g) Notify within ten (10) days of this order the Charging Party, Pedro Romero and the employees named in Appendix A that the action directed above has been taken.

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(h) Post at the Muñiz 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 Respondent 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.

(i) Within ten (10) days of posting the Notice, the Respondent will conduct a meeting of all civilian technicians in the bargaining unit represented by the Charging Party 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 Respondent and that conduct in conflict with the provisions of the Federal Service Labor-Management Statute will not be tolerated.

(j) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

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Issued, San Juan, Puerto Rico, April 16, 1999.

Issued, Washington, DC, April 28, 1999.

_____

GARVIN LEE OLIVER

Administrative Law Judge [ v56 p194
]

APPENDIX A

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 AYALA

20. MICHAEL COLL

21. CARLOS AYALA

22. RAFAEL HORTA

23. GEORGE ARCE

24. LUIS A. PABON

25. FELIX PEREZ

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 violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

The Federal Service Labor-Management Relations Statute gives employees of the Puerto Rico Air National Guard the 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 Gaurd, Muñiz 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 our employees, not to conduct information picketing on the access road to Muñiz Air National Guard Base.

WE WILL NOT, interfere with the protected rights of our employees by making statements which 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 suspending their security clearances and their access to Muñiz Air National Guard Base, and placing them in a nonduty pay status because they engaged in lawful [ v56 p195 ] informational picketing on behalf of the American Federation of Government Employees, Local 3936, AFL-CIO.

WE WILL NOT, discriminate against Pedro Romero by issuing him a Proposed Notice of Removal, because he 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 our employees in the exercise of their rights under 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 which is protected by 5 U.S.C. § 7102; that all official records pertaining to this conduct by such employees shall so reflect or be changed to so reflect; and that any and all records which reflect that such activity constituted unfavorable activity, conduct, or behavior meriting adverse action towards such individuals shall be rescinded.

WE WILL rescind the suspension of employees security clearances and the suspension of their access to Muñiz 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.

WE WILL rescind the Notice of Removal issued to Pedro Romero, and the suspension of his security clearance and access to Muñiz Air National Guard Base, and advise him in writing that such action has been taken and that it will not be used against him in any way.

______

(Respondent/Activity)

Date:___ By:____

(Signature) (Title)

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, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA and whose telephone number is: (617) 424-5730.

File 1: Authority's Decision in 56 FLRA No. 21 and Opinion of Chairman Wasserman

File 2: ALJ's Decision