Michigan Army National Guard
| Decision Date | 25 May 2016 |
| Docket Number | CH-CA-14-0475 |
| Citation | 69 FLRA No. 56 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | MICHIGAN ARMY NATIONAL GUARD (Respondent) and LABORERS' INTERNATIONAL UNION OF NORTH AMERICA LOCAL 2132, AFL-CIO (Charging Party /Union) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members
This unfair labor practice (ULP) case comes before the Authority on exceptions to the attached decision by Chief Administrative Law Judge Charles R. Center (Judge) filed by the Respondent. In his decision, the Judge determined that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) [1] when, in anticipation of an upcoming internal-Agency administrative hearing, the Respondent issued a directive that restricted any communications between any bargaining-unit employees and their Union representative without Agency counsel present. We must decide three substantive questions.
First the Respondent argues that the Judge erred in exercising jurisdiction over this matter because the underlying dispute was military in nature and was therefore not justiciable before the Authority. Because the employees involved in this dispute had dual status as both civilian and military employees, and because this dispute relates only to the civilian aspect of their employment, we deny this exception.
Second the Respondent argues that the ULP charge was barred by § 7116(d) of the Statute [2] because the Union failed to allege any difficulty procuring witnesses or documents during the internal-Agency administrative hearing held months after the charge was filed. Because both the factual and legal issues disputed during this internal-Agency administrative process are distinct from the factual and legal issues underlying the ULP charge, we deny this exception.
Third the Respondent argues that the Judge erred in finding that the Respondent's directive violated § 7116(a)(1) of the Statute. [3] Because bargaining-unit employees have protected rights under § 7102 of the Statute [4] to engage in union activity, and, viewed objectively, the directive tended to interfere with these rights, we deny this exception.
For the foregoing reasons, we deny the Respondent's exceptions.
II. Background and Judge's Decision
The Respondent employs technicians who serve in both a federal civilian capacity and a military capacity. Two such technicians were terminated from their civilian positions for misconduct. They appealed their removals through an internal-Agency administrative process that would culminate in evidentiary hearings. The Union represented the two technicians. Soon after the technicians filed their administrative appeals, but months prior to the administrative hearings themselves, an attorney for the Respondent sent a letter to the Union representative stating the following:
Please be advised that this office will represent the interests of the [Respondent] at the administrative hearing requested by your client. Accordingly, any and all communications with employees or representatives of the [Respondent] regarding this matter should be directed to this office. Any communications with employees or representatives of the [Respondent] outside the presence of a[] [Respondent] attorney are improper until such time as the administrative hearing examiner determines that further pre-hearing interviews are necessary. [5]
The Union replied that the Respondent had no right to restrict communication between bargaining-unit employees and the Union concerning employment matters, asserted that the directive violated the Statute, and requested that the Respondent rescind the directive. The Respondent did not respond, nor did it rescind its directive.
The Union then filed a ULP charge against the Respondent alleging that the directive illegally interfered with bargaining-unit employees' rights under § 7102 of the Statute to communicate with their exclusive representative. [6] After investigating the charge, the Regional Director of the Chicago Region of the Federal Labor Relations Authority (FLRA) issued a complaint on behalf of the FLRA's General Counsel (GC) asserting that the Respondent had violated § 7116(a)(1) of the Statute by prohibiting bargaining-unit employees from communicating with Union representatives outside the presence of a Respondent attorney.
B. Judge's Decision
Before the Judge, the parties agreed that there was no genuine issue of material fact in dispute, and both parties filed motions for summary judgment.
The GC argued that the Respondent's directive interfered with bargaining-unit employees' rights protected under § 7102 of the Statute; namely, the right for an employee to act as a union representative, and the right for employees to freely communicate with their exclusive representative. The GC further argued that the directive was overly broad because it applied to any communications between the Union representative and all bargaining-unit employees, regardless of the subject matter of those communications or when they occurred.
The Respondent argued that the Judge lacked jurisdiction to adjudicate the case because the underlying dispute - the removal of the technicians for misconduct - was military in nature. However, the Judge noted that technicians are federal civilian employees who have rights under the Statute, and found that this matter "relates to the civilian aspect of technician employment." [7] Accordingly, the Judge found that he had jurisdiction to hear this case.
The Respondent then argued that § 7116(d) of the Statute barred this charge because, according to the Respondent, it concerns access to witnesses during the internal adjudicatory process in connection with the internal Agency hearing. The Judge found that the factual and legal matters at dispute in the administrative hearing, which was of a disciplinary nature and arose out of the misconduct of the two technicians, were "entirely distinct" from the factual and legal matters underlying the ULP charge, which alleged a violation of the Statute as a result of issuing the directive. [8]
Finally, the Respondent argued that summary judgment should be granted in its favor because the Union admitted that the Respondent's directive did not impede its ability to communicate with the two technicians, therefore rendering the case moot. The Judge noted that the directive was still in place and that "its relative ineffectiveness does not render the act of issuing it moot." [9] The Judge further found that "[t]he intended coercion and intimidation presented by such an outright restriction is not negated by virtue of the recipient's failure to comply." [10] Accordingly, the Judge rejected this argument, and concluded that the Respondent violated § 7116(a)(1) of the Statute by restricting bargaining-unit employees' rights under § 7102 of the Statute to engage in union activity.
The Respondent filed exceptions to the Judge's decision, and the GC filed an opposition to those exceptions.
III. Preliminary Matter: Section 2429.5 of the Authority's Regulations bars two of the Respondent's arguments.
Under § 2429.5 of the Authority's Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the Judge. [11] The Respondent raises two arguments in its exceptions that were not raised before the Judge. First, the Respondent argues that the directive should be treated as lawful because it was drafted by an attorney of record during a contested case proceeding. [12] Second, the Respondent argues that the Union was bound by rules of professional responsibility - "the rules affecting communications with a party represented by counsel." [13] The record does not reflect that these specific points were articulated before the Judge, nor is there any indication that the Respondent could not have raised them below. Accordingly, these arguments are barred under § 2429.5 of the Authority's Regulations, and we dismiss them as such. [14]
IV. Analysis and Conclusions
The Respondent argues that the Judge erred in exercising jurisdiction over this matter because the dispute is a military matter that cannot be heard by the Authority. [15] The Respondent further claims that "[e]very court having occasion closely to consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature." [16]
In support of this assertion, the Respondent cites case law from the U.S. District Courts of the Northern District of Ohio and the Western District of Michigan, as well as the U.S. Court of Appeals for the Sixth Circuit. [17] In these decisions, the courts dismissed claims brought individually by dual-status technicians, seeking various remedies under assorted statutes other than the Statute, because of the National Guard's military nature. [18] These cases are inapposite, because the decisions considered the individual appellants' claims for redress against the Guard, but did not consider the Agency's own federal labor obligations vis a vis the exclusive representative and the employees it represents, as imposed upon the Agency by the Statute.
Although military matters are generally nonjusticiable before the Authority, [19] not all aspects of technician employment are, as the Respondent argues, "irreducibly military in nature." [20] To the contrary "the technician's dual status has been recognized by virtually every court and administrative forum to address the issue, " including the Authority. [21] As the Judge noted in his decision, it is well-settled that "[a]lthough technician employment takes place in a military environment, the technician[s are] federal...
To continue reading
Request your trial