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56 FLRA No. 21
Puerto Rico Air National Guard, 156th Airlift Wing (AMC) Carolina, Puerto Rico and AFGE, Local 3936, AFL-CIO, Case No. BN-CA-90241 (Decided March 21, 2000)
The complaint alleged that the Respondent violated section 7116(a)(1) of the 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.
The Authority adopted the Judge's findings, conclusions, and recommended order to the extent consistent with this decision. The Authority found that the Respondent violated the Statute as charged except that, in disagreement with the Judge, it found that it had no jurisdiction to review the complaint's retaliatory termination allegation. Accordingly, the Authority adopted only those portions of the recommended remedy that were consistent with its findings.
The Authority explained that Federal case law makes clear that state National Guard units act as federal agencies in matters concerning the employment of technicians. The Authority stated that although it does not have jurisdiction over military matters, it does have jurisdiction over civilian matters that arise under the Statute. Because this case concerned the civilian aspect of technician employment, the Authority concluded that it had jurisdiction. It also concluded that because the Order, surveillance threat, and picketing related to civilian matters, it had jurisdiction to find a violation. Thus, it found that it had jurisdiction to determine that the Respondent's retaliatory suspension of the technicians' security clearances violated the Statute.
However, contrary to the Judge's conclusion the Authority found that section 709(e) of the Technicians Act Precluded the Authority from reviewing the Respondent's retaliatory termination. The Authority noted that 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.