Air Force, Seymour Johnson Air Force Base and NAGE Local R5-188 (Authority decision, June 25, 2002)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing unfair labor practice allegations under 5 U.S.C. § 7116. 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

The complaint alleged that the Air Force removed an Air Reserve Technician from a deployment-alternate list because of union activity and made a coercive statement explaining that removal. The Authority held that the deployment decision concerned the military aspect of the technician's dual-status employment and fell outside its jurisdiction. The majority also treated the related statement as inseparable from that military decision. It dismissed the complaint without resolving the agency's factual challenge to whether removal had occurred. Member Pope agreed on the deployment decision but would have found the statement a separate unfair labor practice. The Authority also adopted the unchallenged dismissal of a consolidated complaint about a rodeo-team assignment without precedential significance.

Decision snapshot

• Authority: 5 U.S.C. §§ 7103(a)(2)(B)(ii) and 7116(a)(1), (2).
• Outcome: Deployment complaint dismissed for lack of jurisdiction; consolidated complaint dismissal adopted.
• Key point: The majority found both the deployment decision and its accompanying explanation tied to military employment outside statutory coverage.

Full text (FLRA public release)

[ v57 p884 ]

57 FLRA No. 188

UNITED STATES

DEPARTMENT OF THE AIR FORCE

SEYMOUR JOHNSON AIR FORCE BASE

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R5-188

(Union/Charging Party)

WA-CA-00424

WA-CA-00425

_____

DECISION AND ORDER

June 25, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

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

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

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

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

II. Background and Judge's Decision

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

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

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

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

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

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

III. Positions of the Parties

A. Respondent's Exceptions

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

1. Jurisdiction

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

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

2. Merits

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

B. GC's Opposition

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

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

C. GC's Cross-Exception

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

IV. Analysis and Conclusions

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

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

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

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

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

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

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

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

B. The Statement Made to the ART [n8]

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

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

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

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

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

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

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

V. Order

The complaint is dismissed.

File 1: Authority's Decision in 57 FLRA No.
188

File 2: Opinion of Member Pope

File 3: ALJ's Decision

Footnote # 1 for
57 FLRA No. 188

• Authority's Decision

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

Footnote # 2 for
57 FLRA No. 188

• Authority's Decision

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

Footnote # 3 for
57 FLRA No. 188

• Authority's Decision

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

Footnote # 4 for
57 FLRA No. 188

• Authority's Decision

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

Footnote # 5 for
57 FLRA No. 188

• Authority's Decision

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

Footnote # 6 for
57 FLRA No. 188

• Authority's Decision

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

Footnote # 7 for
57 FLRA No. 188

• Authority's Decision

In the record, it is undisputed that the actual deployment to Istres constituted a military assignment and that all personnel deployed on such missions must be in a military status.

Footnote # 8 for
57 FLRA No. 188

• Authority's Decision

Member Pope dissents as to the conclusions in this section.

Footnote # 9 for
57 FLRA No. 188

• Authority's Decision

In light of our decision that the allegations in the complaint involve conduct that does not fall within the protection of the Statute, we need not address the Respondent's exception that the Judge erred in finding that the ART was actually removed from the list of alternates for deployment.

[ v57 p889 ]

Member Pope, concurring in part and dissenting in part:

I agree with the majority that the
Authority lacks jurisdiction over the allegation that the Respondent violated section 7116(a)(2) of the Statute when it removed the ART from a list of employees available (as alternates) for a military deployment. The "underlying controversy" involved in that allegation is a military decision and, thus, is not justiciable. Puerto Rico Air Nat'l Guard, 56 FLRA at 179. I disagree with the majority that the Authority lacks jurisdiction over the allegation that the Respondent violated section 7116(a)(1) when the ART's supervisor told him that he had been removed from the deployment list for making "too many waves."

In my view, the justiciability concerns
that preclude the Authority from examining the Respondent's decision to remove the ART from the alternate deployment list do not apply to the examination of the statement. It is clear, in this regard, that the coercive statement was made by the ART's civilian supervisor, during a period of the civilian employment, and refers to civilian protected activity. While the statement related to a military decision, it is not necessary to examine that decision to determine that the statement coerced the technician in the exercise of protected, civilian rights.

In Puerto Rico Air Nat'l Guard,
56 FLRA at 180, the Authority reviewed the discriminatory
revocation of a security clearance. Because the agency's discriminatory motive was conceded, the review did not require that it evaluate "the substance of
[the] underlying decision[.]" Id., citing Egan, 484 U.S. at 520.
Similar logic, applied here, dictates that the Authority has
jurisdiction. [n*] Specifically, as in Puerto
Rico Air Nat'l Guard, the substance of the military decision to remove the
ART from the list of those eligible for deployment is not at issue, because the violation involves a stated threat to take action, rather than the action itself. Thus, as in that case, the Authority may adjudicate the alleged violation of the Statute without resolving an underlying controversy that is military in nature.

I disagree with the majority that the
military "context" of the disputed statement determines our jurisdiction.
Majority Opinion at 11. In this regard, virtually all aspects of a dual status employee's work have a military context. I believe the relevant inquiry is whether the resolution of the underlying controversy requires us to review -- or interfere with -- such a decision. This is the heart of the justiciability doctrine and, in my view, should be its limit.

Turning to the merits, the Authority's
test for determining whether a statement violates section 7116(a)(1) focuses on whether the statement has the effect of deterring a reasonable employee from engaging in protected activity, and the statement here is similar to statements that have been found to violate the Statute. See, e.g., United States Dep't of Agric., 49 FLRA at 1034-35 (statement implying that official time use led to perception of poor performance); Veterans Admin. Med. Ctr., Memphis, Tenn., 39 FLRA 388 (1991) (statement that employee could not be trusted because he filed an unfair labor practice charge); United States Treasury Dep't, Bureau of Engraving and Printing, 19 FLRA 366 (1985) (statement that employee would "suffer the consequences" of taking time off for union business). A statement that an employee is being deprived of an opportunity to participate in a desirable assignment because of protected activity clearly would deter a reasonable employee from engaging in protected activity. Therefore, I would find that the Respondent violated section 7116(a)(1).

I would direct Respondent's supervisors
to cease making coercive statements such as that in this case, even though the statement referred to a military decision that is beyond the reach of the Authority. As the Authority has noted, limitations on Authority jurisdiction over dual status employees may make difficult, if not impossible, the meaningful enforcement of rights Congress granted to employees. See Puerto Rico Air National Guard, 56 FLRA at 182. In this context, finding that the statement violates the Statute results in a situation where employees would be protected from threats of retaliation, but not the retaliation itself, where it involves military aspects of employment that are outside the Statute's coverage. This situation is far from desirable but, in my view, limited protection of the employees' rights is better than no protection at all, and effectuates the purposes and policies of the Statute.

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

File 3: ALJ's Decision

Footnote * for 57 FLRA No. 188 -
Opinion of Member Pope

In concluding that Puerto Rico
Air Nat'l Guard does not support the Authority's jurisdiction over the
disputed statement here, the majority emphasizes the factual
differences between the two cases but, in so doing, ignores the
principles underlying both. While, as a factual matter, the relevant
portion of Puerto Rico involved security determinations, not military
decisions, the rationales for restricting review of both are the same. In this regard, non-reviewable agency discretion over security clearances "flows primarily from" the President's role as the "Commander in Chief of the Army and Navy of the United States." Egan, 484 U.S. at 527 (quoting U.S. Const., Art. II, § 2). Both doctrines are rooted in military authority and are based on the determination that outside decision- makers should not, and are ill-equipped to, interfere in sensitive military and foreign affairs matters. Compare id. at 529, with Chappell, 462 U.S. 296, 301, 305. Thus, the Authority's conclusion that it possessed jurisdiction in Puerto Rico Air Nat'l Guard, where the reason for the respondent's security clearance determination was not at issue, supports the conclusion that it possesses jurisdiction over the statement here, where the reason for the respondent's military decision is not at issue.

[ v57 p890 ]

Office of Administrative Law Judges

DEPARTMENT OF THE AIR FORCE

SEYMOUR JOHNSON AIR FORCE BASE

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R5-188

Charging Party

Case Nos. WA-CA-00424

WA-CA-00425

Captain Tabitha G. Macko, Esquire

Monte E. Crane, Esquire

For the Respondent

Thomas F. Bianco, Esquire

For the General Counsel

Ms. Mae Howell

For the Charging Party

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et. seq. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1 et seq., concerns whether: (a) Air Reserve Technician Tart (military rank: Technical Sergeant (Tr. 14-15)) was removed from a list selected for military deployment to France because he had engaged in protected activity, in violation of §§ 16(a)(1) and (2) of the Statute [Case No. WA-CA-00424]; (b) Air Reserve Technician Tart on March 6, 2000, was named to a team to represent the 916th Aircraft Generation Squadron, Maintenance Squadron, in a rodeo competition at Pope Air Force Base, North Carolina from May 5-13, 2000, and was removed from the team on March 7, 2000, because he had engaged in protected activity, in violation of §§ 16(a)(1) and (2) of the Statute [Case No. WA-CA-00425].

Case No. WA-CA-00424 was initiated by a charge filed on April 12, 2000 (G.C. Exh. 1(a)) which alleged violations of §§ 16(a)(1), (2), (3), (4), (7) and (8) of the Statute. The Complaint and Notice of Hearing issued on August 30, 2000; alleged violation only of §§ 16(a)(1) and (2); and set the hearing for December 12, 2000, at a location to be determined (G.C. Exh. 1(c)). Case No. WA-CA-00425 was initiated by a charge, also filed on April 12, 2000, which also alleged violations of §§ 16(a)(1), (2), (3), (4), (7) and (8) of the Statute. The Complaint and Notice of Hearing also issued on August 30, 2000; alleged violation only of § 16(a)(1) and (2); and set the hearing for December 12, 2000, at a location to be determined (G.C. Exh. 1(d)). On October 19, 2000, a notice was issued in each case of the location of the hearing, Goldsboro, North Carolina (G.C. Exh. 1(i) and (j)); on November 28, 2000 (G.C. Exh. 1(k)), the cases were consolidated; and, pursuant to the foregoing, a hearing was duly held on December 12, 2000, in Goldsboro, North Carolina, before the undersigned.

All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. On December 4, 2000, Respondent filed a Motion to Dismiss Case No. WA-CA-00424 "For Lack of Jurisdiction" [that the deployment to France was a military aspect of technicians' employment, the staffing of which was outside the duty to bargain (G.C. Exh. 1(L)), which I denied at the hearing because, ". . . I find nothing that convinces me that there's a lack of jurisdiction. I understand your argument on the military nature, but I think what we've been talking about, what the evidence shows . . . is that these are not really military considerations. And for that reason, I'm going to deny your motion." (Tr. 281).

At the conclusion of the hearing, with the agreement of the parties, January 26, 2001, was fixed as the date for mailing post-hearing briefs, which time subsequently was extended, on motion of the General Counsel, to which there was no objection, for good cause shown, to February 9, 2001, and Respondent and General Counsel each timely mailed, or filed, an excellent brief, received on, or before, February 13, 2001, which have been carefully considered. Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions: [ v57 p891 ]

FINDINGS

1. The National Association of Government Employees, Local R5-188 (hereinafter, "Union") is the exclusive representative of an appropriate unit of employees of the Department of the Air Force, Seymour Johnson Air Force Base, North Carolina (hereinafter, "Respondent").

2. Mr. Jimmy L. Tart, Jr. (hereinafter "Tart"), is an Air Force Reserve Technician (hereinafter "ART") with the 916th Aircraft Generation Squadron which is an air refueling wing reserve squadron (Tr. 14) and consists of about 350 reservists and civilian employees who support ten tanker aircraft that provide air refueling and airlift support for contingency basis around the globe (Tr. 102). Mr. Tart is a Crew Chief, also known as an aircraft mechanic (Tr. 14) and has been since 1992 (Tr. 15) when he came to Seymour Johnson); has been in the Reserves since 1992; and has been an ART since 1997 (Tr. 14). An ART is a civilian employee who must maintain membership in the Air Force Reserve in order to retain his/her civilian position. His military rank is Technical Sergeant (Tr. 14-15).

3. Mr. Tart has been on deployments [n2] including Istres, France, in the April-May time frame of 1998 (Tr. 29, 30). There was to be another deployment to Istres, France, in February, 2000, and in October, 1999, Respondent requested volunteers. Mr. Tart volunteered for Istres (Tr. 30), which was an Air Expeditionary Force (AEF) to support Kosavo (Tr. 96). Mr. Tart testified that Mr. Wall, Senior Master Sergeant (Tr. 141), since March, 2000, at NASA, and from February, 1995, until March, 2000, had been Flight Chief of "A" Flight of the 916th [Mr. Tart was in "B" Flight]. Civilian grade WS-9 (Tr. 141), had told him he had been selected to go on that deployment (Tr. 30); that Mr. Wall told him, ". . . prior to November timeframe." (Tr. 30); and that Mr. Wall had a dry erase board in his office on which he listed the crew chiefs selected to go and his, Tart's, name was on there (Tr. 30-31). I do not credit Mr. Tart's testimony that he ever was selected to go on the 2000 deployment to Istres. I do not credit Mr. Tart's testimony for a variety of reasons, including, as shown hereinafter, that he was not an accurate or forthcoming witness, e.g., Mr. Tart said he was given a letter of counseling concerning two assault occurrences at the March UTA [Unit Training Assembly] (Tr. 43), whereas, this letter of reprimand was received by Mr. Tart on April 2, 2000, at 0730 (Res. Exh. 6); while Mr. Tart mentioned a second letter of counseling about, "Allegations about an affair with a lady at work" (Tr. 34), he made no reference to the fact that she is a member of the Squadron; that her husband is a member of the Wing; and that the husband had refused to fly on an airplane on which Mr. Tart was Crew Chief, until he was recalled following Respondent's testimony (Tr. 197, 198, 214-217, 235, 238) (Mr. Tart on recall, Tr. 276-278). First, Mr. Wall credibly testified that Mr. Tart was not part of his flight and that he prepared the list for "A" Flight (Tr. 145); that for deployments he wrote names in teams, i.e., ARTs; reservists that were going; the ARTs that was not to be going; and an alternate list (Tr. 144). Mr. Wall further explained that on a deployment they also select by skill level: Level 7, advance type crew chief with all qualifications to do everything required with crewing an aircraft; Level 5, assistant crew chief, a journeyman who has completed his basic requirements; Level 3, mechanic still in training (Tr. 151). Mr. Wall said that he and Mr. Darby met and they went over his list and Mr. Darby's list, to make certain, ". . . we did have all the squares filled and the commitments met. . . ." (Tr. 153) and he believed Mr. Tart was an alternate (Tr. 147, 153). Second, Mr. Adrian H. Darby, Technical Sergeant, WS-9, and Flight Chief of "B" Flight, Mr. Tart being one of his employees (Tr. 170), credibly testified that Mr. Tart, ". . . wasn't considered because he had traveled on the last deployment [to Istres] . . . ." (Tr. 173); that he was on an alternate list in case we needed him (Tr. 174, 177, 186). Further, Mr. Darby credibly testified, without contradiction, that no one who had deployed to Istres in 1998 went on the 2000 deployment to Istres (see, Tr. 67-68, 69) [Blanks]) except a Sergeant Cameron, a load planner who went on both deployments to Istres because he was the only load planner in "B" Flight (Tr. 186-187). Third, the first deployment list, which issued October 24, 1999 (Res. Exh. 4), does not contain Mr. Tart's name. Fourth, Mr. Darby credibly testified, without contradiction, that they thought the 2000 deployment to Istres would be the same as it had been in 1998 with 20 crew chiefs per rotation, or a total of 40 to 42 crew chiefs (Tr. 174); [ v57 p892 ] but when the tasking came down, the 916th was cut to two aircraft and 11 crew chiefs per rotation (each two weeks) or a total of 22 crew chiefs (Tr. 174). Accordingly, not all volunteers got to go (Tr. 174). Fifth, Mr. Tart conceded, upon recall, that he had been only an alternate for Istres. He testified as follows:

"Q When did you learn that you were going to be a substitute, or alternate, for the Istres deployment?

"A It was after I was removed from the deployment all together.

. . .

"Q Mr. Tart, did I hear correctly that you just told Mr. Bianco that you learned that you were going to be an alternate for the Istres, France deployment after you said you had been removed from the deployment list?

"A Yes, ma'am.

. . .

"BY MR. BIANCO:

"Q Were there other alternates?

"A Yes.

"Q Did any of those go?

"A No, sir.

"Q No one went?

"A No, sir." (Tr. 279-280). [n3]

4. The charge, which was dated March 14, 2000, and was filed on April 12, 2000 (G.C. Exh. 1(a)), alleged that on December 16, 1999, Mr. Tart was, ". . . briefed that it was because of his union activities. . . ." (id.); the Complaint alleged November 18, 1999 (G.C. Exh. 1(c), Par. 21); Mr. Tart testified initially that it had been, ". . . Around the first - beginning of November." (Tr. 31) and that, ". . . when you were talking with Mr. Wall, he told you you weren't going to go, what did you say? A I asked him why. Q What was his response? A He said he was directed to remove me from the list. Q Did you (sic) tell you who directed him? A Colonel Sitrin." (Tr. 32) [Lieutenant Colonel Eric Michael Sitrin (Tr. 101), ART, GS-13 (Tr. 102) and Logistics Group Commander, which includes the 916th AGS, commanded by Major Malcolm; Logistics Support Squadron, Commanded by Major Elliott; and the Maintenance Squadron, commanded by Major Shealey (Tr. 102), containing in whole 350 reservists and civilian employees who support ten tanker aircraft (Tr. 102).] On recall, Mr. Tart placed the time of his conversation with Mr. Darby as, ". . . after I had filed a grievance." (Tr. 278) [November 17, 1999, G.C. Exh. 4]. Mr. Blanks said the third week of November, before Thanksgiving (Tr. 71) and before ". . . we actually started the rotation. . . ." (Tr. 72) [November 22, 1999 (G.C. Exh. 2)]. Mr. Vaughn placed it before rotation began (Tr. 78).

I have serious reservations as to when Mr. Tart had the discussion with Mr. Darby, which was overheard by Messrs. Blanks and Vaughn, and equally serious reservations that it involved deployment to Istres at all, but, rather, that it more probably concerned the TDY restriction placed on Mr. Tart and occurred in February, 2000, after the Istres deployment had begun; but while this seems highly probable and that Colonel Sitrin used the word "deployment" to include "TDYs" (Tr. 121); nevertheless Chief Master Sergeant Gaul testified that, ". . . I did make a decision that he would not be going - it wasn't November timeframe. It was later - you know, near a deployment. And the reason for that was because of several incidences that had happened." (Tr. 160); ". . . there were two incidences that occurred that led me to believe that there would be a possibility of him not being able to make that trip. Then I made the decision to pull him on that tour. I notified Major Malcolm and Colonel Sitrin. . . . First instance was . . . about a fight in the billeting New Year's Eve . . . Next incident was . . . early February before the deployment. . . ." (Tr. 162).

The trouble with this scenario is that the second incident occurred the, ". . . first weekend in February." (Tr. 34) (i.e., February 5-6, 2000) and the deployment began February 1, 2000 or earlier (Tr. 273) [January 28] (Res. Exh. 4; Tr. 273). Accordingly, Mr. Tart's name could not have been removed before the Istres deployment began for something that that had not happened but was in the future. On the other hand, Mr. Tart said he filed a grievance over Chief Master Sergeant Gaul's November 3, 1999, notice of shift rotation (G.C. Exh. 2; Tr. 20) and Chief Master Sergeant Gaul said a grievance [ v57 p893 ] had been filed [n4] ; that he talked to Mr. Tart about the adverse effect shift rotation would have on him; that he talked to Colonel Sitrin and they agreed that Mr. Tart would not rotate until after he completed the semester of classes he was in (Tr. 158); that he was aware of a grievance Mr. Tart filed over Mr. Wall not permitting him to have official time (Tr. 159); and that he, Gaul, had responded to the grievance (Tr. 158). Inasmuch as the reason stated for the removal of Mr. Tart's name was false, and pretextual, the only reason left for Chief Master Sergeant Gaul's removal of Mr. Tart's name, before the February 4th and 5th incident, was Mr. Tart's protected activity. Therefore, I conclude that Mr. Darby did tell Mr. Tart in November, 1999, that he wasn't going to Istres because, ". . . I caused too many waves and he was directed to remove me from the list." (Tr. 32), i.e., that he was removing his name as an alternate. Mr. Tart's testimony was confirmed by the testimony of Technical Sergeant Blanks (Tr. 71) and by the testimony of Crew Chief Kelly Vaughn (Tr. 78). Mr. Darby testified that he did not remember telling Mr. Tart he had to take him off the list for France because he caused too many waves (Tr. 174-175) and while I found Mr. Darby otherwise to have been a credible witness, I do not credit his denial in this regard.

5. Events concerning Mr. Tart's personal conduct became quite bizarre with the dawn of the year 2000. Mr. Tart took lodging on the base for New Year's Eve so he would not have to drive (Tr. 35). After the ubiquitous, "two beers", he left the NCO Club at 1:00 - 2:00 a.m. and walked to his lodging, about a block away, and, going down the hall on the second floor to his room, he was assaulted by an unknown assailant (Tr. 36). He got a good look at him and called the MPs who took a report (Res. Exh. 5), searched the area and had Mr. Tart transported to the hospital for stitches for a laceration over his right eye (id.).

As Mr. Tart was in base housing when he was hit by an unknown person who ran down the rear fire escape (Tr. 130), Colonel Sitrin stated that no discipline was imposed on Mr. Tart and he did not direct that Mr. Tart be taken off TDYs at that point. Colonel Sitrin testified, in relevant part, as follows:

"Q Let me ask you . . . What was your reaction when you found out that Mr. Tart's name showed up in the Blotter, something happened at billeting?

"A Really no reaction, just the same thing that I do with the Blotter entries . . . Hand them to the superintendent and the commander and ask them to look at it and talk to the employee and find out what's going on. . . .

. . .

"Q Did you direct that he be taken off TDYs at that point?

"A No. No.

"Q Did you direct some sort of discipline come his way in January?

"A No. The only thing I asked the commander and first sergeant and the superintendent to do was to engage with the employee and find out what's going on." (Tr. 119-120).

Major Malcolm said, ". . . I just took note that he was involved in this incident and that was pretty much it." (Tr. 193). Superintendent Gaul noted the report which showed, ". . . that he got jumped and really didn't know who the fight was with, or whatever." (Tr. 162). The 1st Sergeant, Senior Master Sergeant Joseph Charles Spruill (Tr. 221) testified, ". . The fight was mainly - he met up with someone in the middle of the hallway in the morning of - I think it was January the 1st . . . He didn't know the guy. The guy hit him . . . he [Tart] ended up with some stitches out of it. Then the guy disappeared, and that's the last anybody ever heard of this person. It was something that he didn't know. He didn't know the person and we've just - that's all there was to it." (Tr. 222-223).

On either February 4th or 5th, 2000 (Tr. 34), Mr. Tart testified that he was at the bar in the Best Western Inn at about 12:00 or 1:00 a.m. when an unknown man pushed up against him and hit him with a beer bottle; they started fighting and, ". . . were pushed out the fire exit, along with two of his friends. They grabbed me, because we both fell down. They picked me up. The other guy stood up and I managed to take my right hand and get a knife and I cut one of the guys holding me. And they fled, and then the police were called." (Tr. 38); "It's just a regular pocketknife, three inch. . . . Yes, folding [blade]." (Tr. 40); "The police showed up shortly after. . . . And I spoke with him about it, told him what happened. He took my information and he said I required - I should go to the hospital to get checked out, because I got laceration. . . . I required several stitches. . . . Across the bridge of my nose." (Tr. 40-41). Mr. Tart said no police report was filed, [ v57 p894 ] "The following Sunday I went down to the magistrate's office and inquired about the report and they said no report was filed. . . ." (Tr. 41). Mr. Tart said he later heard rumors that the man he cut required a hundred, or more, stitches (Tr. 42) Mr. Tart said he was in the Best Western bar with co-worker Kenny Jennings (Tr. 38). Mr. Tart reported the incident, "The very next morning." (Tr. 41), to Mr. Darby and to First Sergeant Spruill (Tr. 41).

Mr. Darby said, ". . . Jimmy called me the morning of the incident about 3:00 at home. I told him to come in, and when he came in he explained all that happened. We went over the whole process and at that point in time we saw the first sergeant and the commander [n5] and explained it to them and talked to them about it. At that point in time it was a matter of following it through to see what came of it. Ultimately what came of it was there were no charges on either side. . . ." (Tr. 177).

First Sergeant Spruill, when asked what he knew about the February incident, stated, "When he showed up the next day after the fight down at the Best Western. He showed up, he had a black eye. If I remember correctly, he had some -I think he had some stitches . . . Sergeant Darby came and told me what was going on before I'd even seen Sergeant Tart. . . . His side of the story was he was just sitting there at a - the nightclub down at the Best Western. For whatever reason, someone came and hit him over the head with a beer bottle. Then it started. He jumped up and hit someone, then two people grabbed him, and then he pulled a knife. Somehow the rumor got started that he pulled a knife and cut someone with a hundred (100) stitches. Well, I figured if someone was cut with a hundred (100) stitches there had to be charges with the police department and some other stuff. And so, I went to the Best Western . . . They said no one got really cut up, that they could recollect. . . . I went to the Goldsboro Police Department and they said in fact someone had been dispatched that night, but no charges were filed. No weapon was confiscated. And he [Tart] had told me that he had been taken to the hospital and his weapon - his knife was confiscated." (Tr. 224-226).

First Sergeant Spruill sent an e-mail message to Major Malcolm in France (Tr. 194, 227) advising him that Mr. Tart had been involved in another incident and Major Malcolm, ". . . directed the first sergeant to look into it more, and to get the details of what really happened. I directed that Mr. Tart would not go on any deployments without my permission. Because I was concerned that there was something going on in his personal life that's getting him involved in these kinds of incidents. . . ." (Tr. 194).

Sgt. Spruill made a second visit to the Best Western and on the second round of questioning was told that Mr. Tart had been harassing women in the band; that he was asked to leave and had refused and the "bouncer," i.e., ". . . someone that helps take care of discipline with the band" (Tr. 226) got into a fist fight with Mr. Tart and the fight moved outside (Tr. 226-227). Mr. Tart said he didn't start the fight; Best Western said he did (Tr. 228). Mr. Tart denied that he communicated with, or harassed, any women at the Best Western (Tr. 274-275).

Many assertions either were in direct conflict or were not explained, e.g., Mr. Tart told Sgt. Spruill that his weapon, the folding pocket knife, had been confiscated; but the police denied having confiscated any weapon; how Mr. Tart, with only his right hand free, opened an ordinary folding knife blade, as opposed to a "switch blade", was not explained; Best Western asserted Mr. Tart harassed women in the band, which Mr. Tart denied; that Mr. Tart would have been assaulted on two occasions by an unknown assailant, or assailants, when he was doing nothing, i.e., on the first occasion, he was merely walking to his room and on the second occasion he was siting at a bar, minding his own business; Mr. Tart's insistence that he knew none of the February assailants but said that the one who hit him with the bottle went back into the bar (Tr. 40) while the other two fled; Mr. Tart said he was at the Best Western with co-workers, one of whom he said was Kenny Jennings (Tr. 38), but he did not say whether Mr. Jennings saw anything or knew any of the assailants. Because Mr. Tart was involved and, ". . . just kind of brought a bad light on us . . ." (Tr. 228), Sgt. Spruill in March had a letter of reprimand prepared (Tr. 229) when Mr. Tart came in with papers from a lawyer that Mr. Tart had sued one of the band members and they had settled out of court and Mr. Tart had got some money (Tr. 228, 229) so, Major Malcolm and he gave Mr. Tart a letter of counselling - ". . . he admitted he pulled a pocketknife . . . I told him . . . you don't need to be in those places if you have to carry a pocketknife." (Tr. 229-230). Mr. Tart stated that the settlement agreement, "It was between me and the individual who assaulted me and the individual [ v57 p895 ] who was cut." (Tr. 275). Although the settlement agreement may have demonstrated that Mr. Tart had not been the aggressor, it also demonstrated that Mr. Tart's insistence, that he did not know any of the assailants, if ever true, did not long persist, inasmuch as he had to know the identity of the person who assaulted him in order to sue him and thereafter the identity of the person he cut in order to obtain his statement.

In March, 2000, a third suspected incident involving Mr. Tart was being looked into (Tr. 126), which was Mr. Tart's involvement with the wife of a member of the squadron whose husband was a member of the Wing.

6. By letter dated February 16, 2000, Ms. Mae Howell, President of the Union, notified Respondent that Mr. Tart had been named as a Steward (Res. Exh. 10); the list of union officers, including Mr. Tart as Steward, was returned for correction by memorandum dated March 24, 2000 (Res. Exh. 11); and the revised list, including Mr. Tart as Steward, was not returned until June 21, 2000 (Res. Exh. 12), at which time the list was posted. Mr. Tart testified that he, ". . . was down speaking with Mae . . . and she asked would I deliver a grievance to the Colonel Sitrin since I was going back to that area." (Tr. 52-53). Mr. Tart further testified,

"Q What was your role, if any, in connection with this document [G.C. Exh. 5]?

"A I was a Union steward. I was just delivering it to Colonel Sitrin.

"Q You delivered this document to Colonel Sitrin?

"A Yes, sir.

"Q When was that delivery made?

"A Around the 6th of March." (Tr. 53) (Emphasis supplied).

Mr. Tart stated,

"A Once I delivered the document I went back to our building, 4909. I was going to speak with Mr. Love . . . At that time he received a phonecall saying that I should - I cannot go on the trip, that I'd been removed." (Tr. 54).

First Lieutenant David Clark Eastham, Jr., an ART, GS-12, Aircraft Maintenance Manager, was tasked with assembling a team for the rodeo and in January, 2000, he selected Master Sergeant Phillip Lee Love, an ART and a Crew Chief, to select the team. Sgt. Love testified that before he left for Istres, on January 28, 2000, he knew that Mr. Tart was not to be deployed for TDY and he had taken Mr. Tart's name off the deployment list (Tr. 89). I do not credit Sgt. Love's testimony in this regard for the reason that it is contrary to the testimony of Major Malcolm, which I credit, that it was not until February, 2000, when he was in Istres, France, that he; ". . . directed that Mr. Tart would not go on any deployments without my permission." (Tr. 194) which was fully confirmed by the credible testimony of Colonel Sitrin (Tr. 120, 121) and First Sergeant Spruill (Tr. 231). Nevertheless, Sgt. Love stated ". . . The first people I selected [for the rodeo] were Jimmy Tart and Mark Cole" (Tr. 91), neither of whom went (id.). Sgt. Love said he put Mr. Tart's name on the list on March 6th, 2000, after he talked to Chief Bailey who told him, ". . . it would be okay . . . .", but the next day, March 7, Chief Bailey, ". . . called me . . . and said that I was going to have to take Jimmy off the list, and to fill his slot with somebody else." (Tr. 94).

Lt. Eastham stated that in January, 2000, Colonel Sitrin told him Mr. Tart was under consideration for rodeo but that he, Sitrin, had reservations (Tr. 121, 248). When Sgt. Love gave Lt. Eastham a list with Mr. Tart's name on it, he, Eastham, stated as follows:

". . . I told him that I had no problem with it, but I had to - at the time I had become aware that I had to have permission from Major Malcolm as his commander before I could . . . say yes or no to the names on the team, including Jimmy Tart." (Tr. 249).

"Q Did you talk with Major Malcolm? . . .

"A E-mail, I e-mailed him.

"Q What was the response?

"A The response came back - I think the response cam back to Colonel Sitrin. . . . it was to the effect of he did want to have final say where Jimmy Tart was concerned, because he had some concerns about some off duty activity that at the time I was not aware of. . . ." (Tr. 249).

Lt. Eastham further stated,

"A I believe I was directed by the Colonel, Colonel Sitrin, to call Phil Love and eliminate from final consideration
. . .

. . .

"A . . . He [Colonel Sitrin] made the decision and he asked me to make the call to Master Sergeant [ v57 p896 ] Love. Or at least from my perception he was the one that made the decision. He's the one that gave me the information to carry out the order." (Tr. 251).

Lieutenant Colonel Sitrin testified, in part, as follows:

". . . I did ask Lieutenant Eastham to confer with Major Malcolm, who is the squadron commander. That he's comfortable with who's going on the deployment.

"Q So, you saw Jimmy Tart's name on some list?

"A No. I don't think I actually saw a list. I think probably Lieutenant Eastham briefed me on a list. . . ."

. . .

"A Well . . . I talk with my commanders every month or every drill weekend, and we had talked the January and February, March UTAs about - you know, that Jimmy, in this particular case, wouldn't go on any deployments for a while because of his couple of incidents he'd had. Plus, he had another suspected incident that Major Malcolm and Sergeant Spruill were looking at as well. So, there's a third incident out there that they were looking at as well." (Tr. 125-126).

Major Malcolm testified, in part, as follows:

"Q Were you made aware that whether Jimmy Tart's name was on a list to go as a member of the rodeo team?

"A It was brought to my attention, I believe, in early March. Lieutenant Colonel Sitrin sent me an e-mail saying that he saw that Jimmy Tart's name showed up on a list to be on the team. He thought he remembered me saying that I didn't want him going on these types of trips without my permission. So, he wanted to know if I wanted him to go.

"Q What was your reaction to that? What was your next step?

"A For something like - for a rodeo, a competition like this, high visibility type of thing, no. My reaction was, no, I don't want him going on this type of thing until I am confident that he has straightened out his personal life, and there's not going to be any problems.

"Q Who did you tell your decision to? That Jimmy Tart shouldn't be on the rodeo team?

"A Well, there was some communication between Lieutenant Colonel Sitrin and Lieutenant Eastham, the full time Maintenance officer, and myself. Because Literature (sic) Eastham had originally thought it was okay to put Tart on there because he didn't know that I had directed, when I returned from France, that he not go on any trips without my permission. He thought it would be okay. So, we had a little back and forth in e-mail where - you know, I left it to - if Colonel Sitrin wanted to override me, of course, being my boss, he has the authority to do that. But Colonel Sitrin decided, no, I'm not going to override that, if you don't want him to go then he's not going. So, Colonel Sitrin then is probably the one who passed along the information that, no, he's not going. But it was originally my decision that he not go.

"Q I'll ask you more directly. Did Colonel Sitrin tell you to pull Tart from the rodeo team?

"A No, he did not.

"Q Did anybody tell you to pull Tart from the rodeo team?

"A No, it was my decision." (Tr. 198-199).

Finally, Chief Master Sergeant Bailey testified, in part, as follows:

"A Well, you know, talking - the rodeo is a world-wide competition event. There's thirty-two (32) countries normally. They are competing. There's the best of the best that compete there. . . . The only person that I was actually involved in was Phil Love came to me. He was - Lieutenant Eastham was the team chief for the rodeo. Phil Love was the Maintenance team chief for the maintainers, the mechanics, that was going. Phil Love came to me one afternoon and said he had a special request. They would like Jimmy Tart to be on the rodeo team.

"Q How did you respond to this special request?

"A I told him I had no problem with Jimmy going on the team, but I would have to pass that by the commander because of some of the issues that Jimmy was involved in at that time.

"Q What did you know about those issues? [ v57 p897 ]

"A Very little. I knew he had been in a couple scuffles off base and - you know. But no details about them. And that's why I told him that I would have to go talk to the commander about whether Jimmy could go or not.

. . .

"Q What did you do after Phil Love approached you?

"A I went and talked to the commander and I was told, no, he couldn't go because of the involvement he had had in, you know, his personal affairs.

"Q Which commander? What commander did you speak to?

"A Colonel Sitrin.

"Q Did you speak with Major Malcolm at all?

"A Well, after the fact, because Major Malcolm wasn't there at the time. I'm sure Colonel Sitrin spoke with Major Malcolm about the scenario before he told me that, no, they wanted to keep Jimmy at home for a while.

"Q How much time went by between Phil Love approaching you and you getting a response from Colonel Sitrin?

"A Well, if I'm not mistaken, ma'am, it was two days after I was approached when I got the response back. I went back and told Phil, no, that Jimmy could not go.

"Q Did you get a reason why?

"A N, no, no. Just - other than they wanted to keep Jimmy close to home because of personal involvements that Jimmy had in his personal side of his life.

"Q What was Phil Love's reaction?

"A He said, okay, he said, I understand, and that was it. That was the end of the conversation." (Tr. 258-260).

I found Colonel Sitrin, Major Malcolm, Lieutenant Eastham and Chief Master Sergeant Bailey credible witnesses. On the other hand I found Sgt. Love's testimony contrived and unconvincing. He ignored entirely any mention of Lt. Eastham and I credit Lt. Eastham's testimony that Sgt. Love gave him a list with Mr. Tart's name on it and that he, Eastham, told Sgt. Love, that, ". . . I had no problem with it, but . . . I had to have permission from Major Malcolm . . . before I could say yes or no. . . ." (Tr. 249). Further, I credit the testimony of Chief Bailey that he, Bailey, ". . . told him [Love] I had no problem with Jimmy going on the team, but I would have to pass that by the commander because of some of the issues that Jimmy was involved in at that time." (Tr. 258). Accordingly, because Lt. Eastham and Chief Bailey each told Sgt. Love that approval would have to be obtained for Mr. Tart's participation on the rodeo team, I specifically do not credit the testimony of Sgt. Love that Mr. Tart's participation on the rodeo ever was approved and/or that Chief Bailey ever told him, ". . .it [Tart's participation] would be okay. . . ." (Tr. 94).

There is no dispute that Mr. Tart, who had been removed from the list for TDY deployment in February, 2000, which Sgt. Love well knew, was denied permission in March, 2000, to participate. I have found that Chief Bailey told Sgt. Love that Mr. Tart could not go because, ". . . they wanted to keep Jimmy close to home because of personal involvements that Jimmy had in his personal side of his life." (Tr. 259-260).

7. Chief Bailey very credibly testified about a conversation he had with Mr. Tart, as follows,

"Q Did you ever have an occasion to sit down with Tart, Jimmy Tart, and speak to him about what was going on in his life?

"A Yes, ma'am, I sure did.

"Q Tell me about your conversation.

"A That's when I first went over as the acting superintendent during the process of Chief Gaul retiring. Jimmy approached me and wanted to talk one afternoon. I told Jimmy to come on in the office, and he sat down and we sat there and talked. Jimmy, at that time, he basically made the comment to me was that he felt like that he was being kind of stepped on, railroaded, you know, in some of the things that he was trying to do. I told him, I said, Jimmy, I said, I'm going to be honest with you. I'm a pretty (sic) judge of character, I said, when it comes to work, your work ethics, couldn't ask for no better. But, I said, your personal life is what you need to take care of. Your private life. And he didn't disagree with me or agree. That was basically the extent of the conversation. I just told him, I said, Jimmy, you need to take care of your personal affairs." (Tr. 260). [ v57 p898 ]

CONCLUSIONS

1. Removal of ART Tart as an Alternate for deployment to Istres, France.

For reasons set forth above, I have found that Mr. Tart, although not selected for the February, 2000, deployment to Istres, France, had been designated as an alternate and was removed as an alternate before the Istres deployment began on, or before February 1, 2000. Because the Superintendent, Chief Master Sergeant Gaul, testified that he removed Mr. Tart as an alternate before the Istres deployment began, I further found that the Superintendent's justification was false and was pretextual for the reason that, as of the date the deployment began, the record showed no conduct or action by Mr. Tart would have warranted removal of his name as an alternate. To the contrary, the testimony of Colonel Sitrin, Major Malcolm and First Sergeant Spruill viewed Mr. Tart as an innocent victim of an unprovoked assault on New Year's Day. Accordingly, I credited the testimony of Mr. Tart that his supervisor, Mr. Darby, told him he had been directed to remove his name because he caused too many waves, i.e., his filing of grievances and other protected activity. Mr. Tart's testimony concerning Mr. Darby's "waves" statement was corroborated by the testimony of Messrs. Blanks and Vaughn. Respondent thereby violated §§ 16(a)(1) and (2) of the Statute. Mr. Tart was only named as an alternate and he testified that no alternate had been deployed to Istres, France in February 2000. Accordingly, he would not have gone on the Istres deployment in an event.

2. ART Tart was denied permission to participate in Rodeo because of his off-duty conduct.

There is no disagreement that Mr. Tart knew in February, 2000, that he had been removed from consideration for TDY assignments because of his off-duty conduct. Sgt. Love was well aware of Mr. Tart's TDY restriction when, in early March, 2000, he asked Chief Bailey, ". . . if there was a way that Jimmy could go. Because he's one of our better crew chiefs. . . . first he [Bailey] said he didn't think so. . . . and he said that he would talk to the colonel, Colonel Sitrin, and see what he said about it." (Tr. 92). For reasons fully set forth above, I do not credit Sgt. Love's testimony that anyone ever approved Mr. Tart's participation on the Rodeo team. To the contrary, the credited testimony of Lt. Eastham and of Chief Bailey shows that no approval was given and each told Sgt. Love that Mr. Tart could not go, as Chief Bailey stated, ". . . because of the involvement he had had in, you know, his personal affairs." (Tr. 259); and, as Lt. Eastham stated, "The response came back - I think the response came back to Colonel Sitrin. . . . but it was to the effect of he [Major Malcolm] did want to have final say where Jimmy Tart was concerned, because he had some concerns about some off duty activity that at the time I was not aware of . . ." (Tr. 249) and, ". . . I [Lt. Eastham] was directed by the Colonel, Colonel Sitrin, to call Phil Love and eliminate [Tart] from final consideration . . ." (Tr. 251). Major Malcolm stated, ". . . Lieutenant Colonel Sitrin sent me an e-mail saying that he saw that Jimmy Tart's name showed up on a list to be on the team. He thought he remembered me saying that I didn't want him going on these types of trips without my permission. So, he wanted to know if I wanted him to go. . . . For something like - for a rodeo, a competition like this, high visibility type of thing, no. My reaction was, no, I don't want him going on this type of thing until I am confident that he has straightened out his personal life, and there's not going to be any problems." (Tr. 198-199). Major Malcolm further stated that, ". . . Colonel Sitrin decided, no, I'm not going to override that, if you don't want him to go then he's not going. So, Colonel Sitrin then is probably the one who passed along the information that, no, he's not going. But it was originally my decision that he not go." (Tr. 199).

General Counsel's assertion that Respondent denied Mr. Tart permission to participate on the Rodeo team because Mr. Tart delivered a grievance (G.C. Exh. 5) to Colonel Sitrin's office appears wholly contrived, is unconvincing and the assertion is rejected. Mr. Tart was uncertain of the date he delivered the grievance, saying it was, "Around the 6th of March." (Tr. 53); but he said he was approved for the Rodeo team when he delivered the grievance and, "Once I delivered the document I went back to our building, 4909. . . . At that time he [Sgt. Love] received a phone call saying that I should - I cannot go on the trip, that I'd been removed." (Tr. 54). Sgt. Love testified that he talked to Chief Bailey on March 6, ". . . about putting Tart on the list . . . ." (Tr. 92); and that Chief Bailey called him back on March 6 and told him it was "okay" to put Mr. Tart on the list (id.) and Chief Bailey called again on March 7 and told him to take Mr. Tart's name off the list (Tr. 94). All credited testimony, i.e., of Chief Bailey, Colonel Sitrin, Major Malcolm and Lieutenant Eastham, shows, it was not less than two days after Chief Bailey was approached by Sgt. Love that Chief Bailey received a reply from Colonel Sitrin. For example, as Chief Bailey stated, ". . . Major Malcolm wasn't there at the time. . . . it was two days after I was approached when I got the response back. . . ." (Tr. 259). Thus, the asserted "approval", which I have found never occurred, or more correctly the response from Chief Bailey, was not received until March 8. [ v57 p899 ] According to Mr. Tart, he delivered the grievance on March 6 and when he got back to Sgt. Love's office, on March 6, Sgt. Love received a telephone call telling him to remove Mr. Tart's name. According to Sgt. Love Chief Bailey "approved" Mr. Tart's participation on March 6 and then a day later, on March 7th, called and told him [Love] that Mr. Tart could not go. Sgt. Love conceded that he did not have authority to select Mr. Tart, because he knew Mr. Tart was not permitted to go TDY (Tr. 91), and the only "list" Mr. Tart's name was removed from, was Sgt. Love's list (see; Res. Exh. 8, Respondent's March 14, 2000, list of Rodeo team members).

On the other hand, there can be no doubt that as of early March, 2000, Mr. Tart's off-duty activity was under investigation for three incidents: First, the New Year's Day assault, in government quarters, in which Mr. Tart at first appeared to have been the innocent victim. Second, the February 4th or 5th assault at the Best Western lounge. In each incident, Mr. Tart was assaulted by unknown assailants; in the February incident, Mr. Tart used a knife to apparently painfully, if not seriously, inflect injury on an attacker. As more fully set forth above, there were many questions raised and many doubts unresolved including, by way of example: whether Mr. Tart provoked the February incident; whether the January 1st and February incidents were somehow related; etc. Then in early March, Mr. Tart was investigated for a third incident, namely, his involvement with the wife, who was a member of the Squadron and whose husband was a member of the Wing. This raised a specter of possible interrelation of the three incidents. Because of the doubt surrounding Mr. Tart's asserted non-aggressor, First Sergeant Spruill prepared a Letter of Reprimand. [n6] Accordingly, I do not find credible the assertion that Mr. Tart's delivery of grievance played any role whatever in Major Malcolm's refusal, in early March, 2000, of Mr. Tart's participation while Mr. Tart's off-duty conduct was under investigation and Mr. Tart's culpability very much in doubt.

If, contrary to my finding that protected activity played no part in Respondent's denial, in early March, 2000, of permission for Mr. Tart's participation as a member of the Rodeo team, it is determined that Mr. Tart's delivery of a grievance played a part in the denial of his request to participate on the Rodeo team, nevertheless, I conclude that Respondent would have taken the same action if there had been no engagement in protected activity. U.S. Department of the Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, South Carolina, 56 FLRA 950 (2000); Letterkenny Army Depot, 35 FLRA 113 (1990). As noted, at the time the request was made, early March, 2000, Mr. Tart's off-duty conduct was under investigation and his status was in question, i.e., a letter of reprimand had been prepared and its issuance was under active consideration. Major Malcolm candidly stated that he did not want Mr. Tart going on a high visibility TDY, like the Rodeo, ". . . until I am confident that he has straightened out his personal life, and there's not going to be any problems." (Tr. 198-199; see, also, Tr. 213, 218). Mr. Tart later provided information, i.e., his suit against one assailant and the statement of the assailant Mr. Tart cut with his knife, that demonstrated that Mr. Tart had not initiated the attacks, although he was not found to have been innocently attacked (Tr. 202). Mr. Tart's TDY restriction has been lifted (Tr. 278).

For the reasons set forth above, the allegations of Case No. WA-CA-00425 that Respondent violated §§ 16(a)(1) and (2) of the Statute are hereby dismissed.

Having found in Case No. WA-CA-00424 that Respondent violated §§ 16(a)(1) and (2) of the Statute when it removed Mr. Tart's name as an alternate for deployment to Istres, France, because of Mr. Tart's protected activity (no alternate was deployed to Istres, although there were other alternates for Crew Chief slots), it is recommended that the Authority adopt the following: [ v57 p900 ]

ORDER

Pursuant to § 2423.41 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the Department of the Air Force, Seymour Johnson Air Force Base, shall:

1. Cease and desist from:

(a) Taking any adverse action against Air Reserve Technician Jimmy L. Tart, Jr., or any other employee represented by the National Association of Government Employees, Local R5-188, including deployments, because of engagement in protected activity.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post wherever employees represented by the National Association of Government Employees, Local R5-188, 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 Commanding Officer, Seymour Johnson Air Force Base, 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.

(b) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41(e), notify the Regional Director, Washington Region, Federal Labor Relations Authority, Tech World Plaza, 800 K Street, NW, Suite 910N, Washington, DC 20001, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

______

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: June 28, 2001

Washington, DC

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of the Air Force, Seymour Johnson Air Force Base, has 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:

WE WILL NOT take any adverse action against Air Reserve Technician Jimmy L. Tart, Jr., or any other employee represented by the National Association of Government Employees, Local R5-188, including deployments, because of engagement in protected activity.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

DATE:_ BY: ___

Commanding Officer

Seymour Johnson AFB

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, Washington Region, Federal Labor Relations Authority, whose address is: Federal Labor Relations Authority, Tech World Plaza, 800 K Street, NW, Suite 910N, Washington, DC 20001, and whose telephone number is: (202) 482-6700.

File 1: Authority's Decision in 57 FLRA No. 188

File 2: Opinion of Member Pope

File 3: ALJ's Decision

Footnote # 1 for
57 FLRA No. 188

• ALJ's Decision

For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial, "71", of the statutory reference, i.e., Section 7116(a)(1) will be referred to, simply, as, "§ 16(a)(1)".

Footnote # 2 for
57 FLRA No. 188

• ALJ's Decision

Normal TDY (Temporary Duty) assignments are listed monthly by Operations, the flying squadron. The aircraft to be sent is selected by tail number, the purpose being to rotate trips by aircraft. Selection for TDY is then made from among the reservists and ARDs assigned to that aircraft (Tr. 85-87).

Deployment, while, in a sense, also a TDY, is quite different and is handled in a very different manner. First, there usually is only one deployment each year. Second, a deployment normally covers a longer span of time, generally 30 days. Third, a deployment requires a great many more aircraft and many more people. Fourth, a 50-50 ratio of reservists to ARTs is sought, with 30% reservists being a minimum and a 40% reservist - 60% ARTs being good (Tr. 108-109).

All personnel must be in military status for all overseas deployments (Res. Exhs. 1 and 2; Tr. 112, 113).

Footnote # 3 for
57 FLRA No. 188

• ALJ's Decision

General Counsel's statement in his Brief,

". . . At least some alternates were deployed. Tr. 280. Tart was not one of them. Tr. 280." (General Counsel's Brief, p. 6),

obviously is in error. Mr. Tart specifically, and emphatically, testified that no alternate deployed to Istres (Tr. 280).

General Counsel does not appear to question the fact that Mr. Tart from the beginning had been only an alternate. (General Counsel's Brief, p. 6).

Footnote # 4 for
57 FLRA No. 188

• ALJ's Decision

While Mr. Tart stated that General Counsel Exhibit 3 was the grievance he filed (Tr. 24), General Counsel Exhibit 3 is not a grievance but, rather, is a request to bargain the proposed shift rotation and a request for status quo pending completion of bargaining.

Footnote # 5 for
57 FLRA No. 188

• ALJ's Decision

Mr. Darby, "at that point in time", by his reference to the commander undoubtably meant Superintendent Gaul inasmuch as Major Malcolm was then in France (Res. Exh. 4; Tr. 194, 227) and Chief Gaul stated, ". . . During the week, I was AGS Commander.
. . . because I was the highest ranking civilian." (Tr. 157). Accordingly, with Major Malcolm out of the country, Chief Gaul was AGS Commander and Chief Gaul stated that he talked to Mr. Tart's Flight Chief, who was Mr. Darby (Tr. 162).

Footnote # 6 for
57 FLRA No. 188

• ALJ's Decision

First Sergeant Spruill stated,

". . . I found out when - let's see, was it April - between March and April that he was, I guess, suing one of the band members. And I guess they ended up settling out of court and I really don't know the whole details of that at all. But it ended up to where he wasn't really found . . . we couldn't prove that he started it . . . But . . . he was involved in that and it just kind of brought a bad light on us, so we decided to hold off on that LOR . . . .

"Q Did you meet with Mr. Tart and see any documents from a lawyer?

"A I want to say it was in April.

. . .

"A We actually met with him. I'm not sure of the exact month it was, but I want to say it was April, because that's where we decided not to do an actual LOR. . . ." (Tr. 228-229).