Johnson v. Orr

• Decision Date: 31 October 1985
• Docket Number: No. 84-5877,84-5888,Nos. 84-5877,No. 84-,84-5877,84-,s. 84-5877
• Citation: 776 F.2d 75
• Parties: 120 L.R.R.M. (BNA) 3075, 103 Lab.Cas. P 11,691 Roy A. JOHNSON and John J. Sheller, Appellants in, v. Verne ORR, Secretary; Francis Gerard, Major General; Wilfred C. Menard, Jr., Major General; Colonel John Murphy; Brigadier General Charles Young, Air Commander; Lt. Col. Billy McDaniels, Appellees. Appeal of Verne ORR, Secretary of the Air Force, Cross-Appellant, in5888.
• Court: U.S. Court of Appeals — Third Circuit

Page 75

776 F.2d 75

120 L.R.R.M. (BNA) 3075, 103 Lab.Cas. P 11,691

Roy A. JOHNSON and John J. Sheller, Appellants in No. 84-5877, v. Verne ORR, Secretary; Francis Gerard, Major General Wilfred C. Menard, Jr., Major General; Colonel John Murphy Brigadier General Charles Young, Air Commander; Lt. Col Billy McDaniels, Appellees Appeal of Verne ORR, Secretary of the Air Force, Cross-Appellant, in No. 84- 5888.

Nos. 84-5877, 84-5888.

United States Court of Appeals, Third Circuit.

Argued Sept. 10, 1985.

Decided Oct. 31, 1985.

Martin Cohen (argued), American Federation of Government Employees, Philadelphia, Pa., Gay Snyder, New Brunswick, N. J., for appellants in No. 84-5877; Mark Roth, Gen. Counsel, American Federation of Government Employees, Washington, D.C., of counsel.

W. Hunt Dumont, U.S. Atty., Bette E. Uhrmacher, Asst. U.S. Atty. (argued), Trenton, N.J., for appellees.

Irwin I. Kimmelman, Atty. Gen. of the State of N.J., Dorothy Donnelly, Deputy Atty. Gen. (argued), Trenton, N.J., for Lt. Col. Billy McDaniels.

Before SEITZ, BECKER, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Plaintiffs, Roy A. Johnson and John J. Sheller, formerly employed by the New Jersey Air National Guard (ANG or the Guard) as civilian technicians, were dismissed from employment for alleged labor activities in violation of federal law. The New Jersey Adjutant General who dismissed them acted upon a pretermination recommendation of a hearing examiner for the ANG who held that the technicians had indeed violated applicable federal statutes. Plaintiffs appealed under the provisions of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701 (1982), to the United States District Court for the District of New Jersey seeking a reversal of the Adjutant General's decision. ¹

The court granted the plaintiffs' motion for summary judgment and entered judgment in their favor under the Administrative Procedure Act against the defendant, Verne Orr, Secretary of the Air Force, in his official capacity. This in effect reversed the terminations of their employment and may support their claims for back pay, claims that have been transferred by the district court to the United States Court of Claims. Secretary Orr timely appealed to this court from the summary judgment. The district court declined to reinstate the plaintiffs to employment, however, because it concluded they no longer satisfied the federal statutory requirement for civil technicians that they also serve as military members of the ANG. They appeal the denial of this motion for reinstatement. We affirm.

I.

Plaintiffs, who had been employed as aircraft mechanics in the night shift at the ANG 108th Tactical Fighter Wing at the McGuire Air Force Base (Tactical Wing), served also as stewards for the technicians' union, Local 377 of the American Federation of Government Employees (the Union). As stewards, their responsibilities included filing grievances on behalf of bargaining-unit members and keeping them advised of matters that might affect their working conditions. In the period immediately preceding plaintiffs' dismissal, the Tactical Wing was in transition from using the older F-105 aircraft to the new F-4D fighter-bomber. The United States Air Force established a schedule that required the Wing to complete its transition by October 1, 1981, and reach combat readiness status by that date. As the combat readiness date approached, Wing Commander General Young foresaw problems meeting the deadline. Complicating matters for him was the Union's request, made the preceding June, that he adjust the technicians' schedules to allow them a three-day Labor Day weekend.

The night shift technicians normally worked Tuesday through Saturday, approximately 2:00 P.M. to 10:30 P.M. In order to satisfy the Union's request for a three-day weekend and also to meet the transition schedule, the ANG allowed the technicians the Saturday of Labor Day weekend as a holiday, and instead required them to work the preceding Monday, August 31, 1981, from 7:30 A.M. to 4:00 P.M. The technicians had no objection to working on Monday, but pointed out that their usual hours whenever they were assigned work on Mondays were 2:00 P.M. to 10:30 P.M. They also asserted that their collective bargaining contract entitled them to notice two weeks prior to the change to the earlier Monday hours.

On August 26, 1981, several night-shift technicians complained to plaintiff Johnson regarding the Monday schedule. That day, Johnson contacted Colonel Wingert, who dealt with scheduling problems. Colonel Wingert said that he would gather more information and then discuss the matter with Johnson. During a routine break that evening, the night-shift technicians gathered informally and Johnson related this exchange to them. Those present, including plaintiff Sheller, discussed their options, but reached no decision. Plaintiffs promised to seek advice from other union officials. The next day, August 27, Colonel Wingert told Johnson that the agency would require the technicians to work the reassigned shift on Monday. During that evening's authorized break, plaintiffs discussed management's decision with the technicians. Johnson, he so asserted during the ensuing litigation, told the technicians to comply with the revised schedule and promised that the Union would file a grievance and, if necessary, seek arbitration. On the other hand, the ANG claimed that the technicians discussed a number of options for disrupting the work schedule, including refusing to report at the scheduled time, taking unscheduled sick leave, or engaging in slow downs. On August 31, 1981, all night technicians complied with the new schedule and commenced work at 7:30 A.M.

On September 2, 1981, plaintiffs' supervisor, Colonel Murphy, a defendant, notified plaintiffs by letter of a proposal to terminate their employment because they had conducted a prohibited union meeting on official time and had advocated a work slowdown and disruption of the Tactical Wing Mission. Plaintiffs made a detailed reply in writing to the proposed removal, in essence denying the allegations against them. On October 1, 1981, General Young, Wing Commander, sustained the charges contained in the proposed notice of removal and informed plaintiffs of their right to appeal his decision.

Plaintiffs appealed and Colonel Newman, a hearing examiner for the National Guard Bureau, conducted an administrative hearing. In his written opinion, Newman stated that plaintiffs were "charged with violation of 5 U.S.C. Sec. 7131 by conducting Union business while the employees were in duty status and of 5 U.S.C. Sec. 7116 by calling for and condoning a work slowdown and failing to take action to stop such activity." Newman concluded that plaintiffs had violated both sections and recommended that they be removed from employment as technicians. On January 26, 1982, defendant Menard, as State Adjutant General, implemented Newman's recommendation and discharged Johnson and Sheller. ²

On August 6, 1982, plaintiffs filed this suit against Menard, Murphy, and Young in their individual capacities and against Verne Orr, Secretary of the Air Force, and Francis Gerard, Chief of Staff of the ANG, in their official capacities. Plaintiffs asserted that defendants acted arbitrarily and capriciously in violation of constitutional and statutory law. They further alleged that the actions in question were in retaliation for plaintiffs' union activities and for their exercise of first amendment rights to freedom of speech and association.

Defendants initially moved to dismiss the complaint for failure to state a claim or, in the alternative, for summary judgment. The district court, in its opinion of July 8, 1983, denied defendants' motion and ruled that plaintiffs had stated a cognizable claim. The court ruled that it had jurisdiction under the APA to review the decision of the Guard to terminate the plaintiffs.

The court subsequently granted plaintiffs' motion for summary judgment on their APA claim, thereby reversing the decision of the National Guard, and denied the defendants' motion for summary judgment. The court reversed the section 7131 charge for lack of evidence that the employees were on duty status at the time of the meeting. It reversed the section 7116 charge on an error of law: the statute governs activities of unions as organizations and does not address those of individual members. As to plaintiffs' claim of lack of due process, the court found that the notice given them of the charges adequately satisfied constitutional due process requirements. As to plaintiffs' first amendment claims, the court found that the examiner's conclusion that required plaintiffs to speak out during discussion of job actions violated their first amendment rights. It did not, however, reinstate plaintiffs. Sheller was no longer a National Guard member, and Johnson resigned from the ANG and joined the Pennsylvania Air National Guard. The district court held that, in order to comply with 32 U.S.C. Sec. 709(b) requiring that technicians also serve as members of the National Guard, a technician must concurrently perform civilian and military duties in the same National Guard unit. Thus, the denial of reinstatement constituted a denial of the request for injunctive relief. The grant of plaintiffs' motion for summary judgment under the Administrative Procedure Act in effect granted their request for a declaratory judgment that the defendants had unlawfully terminated plaintiffs' employment.

II.

The parties raise three issues on appeal. First, plaintiffs argue that the ANG denied them due process because it did not provide them with notice of the statutory provisions they had allegedly violated. Second, the Secretary argues that the district court erred when it granted plaintiffs' motion for summary judgment under the APA. Finally, plaintiff Johnson asserts that the district court should have...