Petition for Writ of Certiorari — The Ohio Adjutant General's Department, et al., Petitioners v. Federal Labor Relations Authority, et al.

Supreme Court briefMay 13, 2022

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No. 21-___

In the Supreme Court of the United States

______________________________

THE OHIO ADJUTANT GENERAL’S DEP’T, ET AL.,

Petitioners,

FEDERAL LABOR RELATIONS AUTHORITY, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________

APPENDIX

______________________________

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

*Counsel of Record

Ohio Solicitor General

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

bflowers@ohioago.gov

Counsel for Petitioners

TABLE OF CONTENTS

Page

Appendix A: Opinion, United States Court of

Appeals for the Sixth Circuit, December 21,

2021 ........................................................................... 1a

Appendix B: Decision and Order, Federal

Labor Relations Authority, June 30, 2020 ............. 17a

Appendix C: Decision, Federal Labor

Relations Authority, June 18, 2018 ....................... 34a

Appendix D: Order, On Petition for Rehearing

En Banc, United States Court of Appeals for

the Sixth Circuit, February 14, 2022 ................... 168a

Appendix E: Select Constitutional Provision

and Statutes .......................................................... 170a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No.

20-3908

THE OHIO ADJUTANT GENERAL’S

DEPARTMENT; Major General JOHN C. HARRIS,

JR., in his official capacity as the Adjutant General

of the Ohio National Guard; UNITED STATES

DEPARTMENT OF DEFENSE/OHIO NATIONAL

GUARD,

Petitioners,

FEDERAL LABOR RELATIONS AUTHORITY,

Respondents,

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3970, AFL-CIO,

Intervenor.

On Petition for Review from the Federal Labor

Relations Authority;

Nos. CH-CA-17-0248; CH-CA-17-0249; CH-CA-170251; CH-CA-17-0252; CH-CA-17-0336.

Argued: October 27, 2021

Decided and Filed: December 21, 2021

Before: DAUGHTREY, COLE, and CLAY,

Circuit Judges.

______________________________

COUNSEL

ARGUED: Michael J. Hendershot, OFFICE OF

THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Petitioners. Rebecca J. Osborne, FEDERAL

LABOR RELATIONS AUTHORITY, Washington,

D.C., for Respondent. Matthew W. Milledge,

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, Washington, D.C., for

Intervenor. ON BRIEF: Michael J. Hendershot,

Benjamin M. Flowers, Dale T. Vitale, OFFICE OF

THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Petitioners. Rebecca J. Osborne, Noah Peters,

FEDERAL LABOR RELATIONS AUTHORITY,

Washington, D.C., for Respondent. Matthew W.

Milledge,

AMERICAN

FEDERATION

GOVERNMENT

EMPLOYEES,

AFL-CIO,

Washington, D.C., for Intervenor.

______________________________

OPINION

______________________________

COLE, Circuit Judge. The Ohio National Guard

and its Adjutant General (collectively, the “Guard”)

petition this court to review a Federal Labor Relations

Authority (“FLRA”) decision and order arising out of a

collective-bargaining dispute between the Guard and

the union that represents its technicians, the

American Federation of Government Employees,

Local 3970, AFL-CIO (the “Union”). The Guard seeks

reversal of the decision and order, arguing that the

FLRA does not have jurisdiction under the Federal

Service Labor-Management Relations Statute (the

“Statute”), 5 U.S.C. §§ 7101–7135, to adjudicate

federal labor-relations questions between the Guard

and the technicians’ Union. The Guard additionally

argues that it is unconstitutional for the FLRA to

enforce the Statute by issuing orders to state national

guards and their adjutants general, and that the

Guard cannot legally comply with the FLRA’s order.

We deny the Guard’s petition.

BACKGROUND

This case arises from the Guard’s decision to end

its 45 year-long collective-bargaining relationship

with the Union that represents its technicians.

National Guard technicians are civilian federal

employees who work in a wide variety of clerical,

administrative, and technical roles in support of the

Guard’s daily operations. N.J. Air Nat’l Guard v.

FLRA, 677 F.2d 276, 279 (3d Cir. 1982). Technicians

are described as dual-status employees because their

employment is “a hybrid, both of federal and state,

and of civilian and military strains.” Ill. Nat’l Guard

v. FLRA, 854 F.2d 1396, 1398 (D.C. Cir. 1988).

Although technicians hold a military grade and wear

a military uniform while performing the military

aspects of their jobs, they are also “afforded the

benefits and rights generally provided for federal

employees in the civil service.” N.J. Air Nat’l Guard,

677 F.2d at 279.

The most recent collective bargaining agreement

(“CBA”) between the Guard and the Union was signed

in 2011 and was set to expire in 2014. As the

expiration date neared, the Guard and the Union

started negotiations for a new CBA. But no new

agreement was reached by the expiration date. In

January 2014, seemingly to continue bargaining and

reestablish the CBA, the Guard issued a

memorandum. In this memorandum, the Guard

recommitted to being bound by the mandatory

bargaining topics set forth in the 2011 CBA.

But the Guard did not keep its promise. Instead, in

September 2016, the Guard issued a memorandum

titled “Collective Bargaining Agreement (CBA).” This

memorandum was sent to over 2,000 people, including

many bargaining-unit technicians. The memorandum

announced:

1. No Collective Bargaining Agreement

(CBA). The Ohio National Guard has

informed Local 3970, American Federation of

Government Employees, that the Ohio

National Guard is not bound by any provision

of the CBA between the parties that expired in

2014.

2. Federal Service Labor Management

Relations Statute . . . . The Ohio National

Guard has also communicated to Local 3970

that it questions the applicability to National

Guard Technicians of the statutes in the

[Federal

Service

Labor-Management

Relations Statute] that have historically

underlain

the

collective

bargaining

relationship between local 3970 and the Ohio

National Guard. The details of this

jurisdictional dispute are unimportant here;

but until this dispute is resolved in a

satisfactory way, new CBA or by some other

means, the Ohio National Guard does not

consider itself obligated to abide by the

[Federal

Service

Relations Statute].

Labor-Management

(ALJ Decision, Pet’r App., Dkt. 19, p. 21a (alterations

added.))

After issuing this memorandum and thus ending

the collective-bargaining relationship between itself

and the technicians’ Union, the Guard next started

terminating Union dues deductions. First, the Guard

told the Union it did not have Standard Form 1187s

(“Form 1187s”)—which is a request for payroll

deductions for dues—on file for most of the duespaying members of the Union. Federal-sector

bargaining-unit members (like those in the Union) are

required to submit Form 1187s to their employing

agencies. Once a Form 1187 is submitted, union dues

are deducted from member paychecks, as provided by

5 U.S.C. § 7115(a). If employees want to cancel dues

allotments, they must submit a different form:

Standard Form 1188—cancellation of payroll

deductions (“Form 1188”).

The Guard acknowledged it was required to

maintain Form 1187s in its files, and that the

bargaining unit employees were not so obligated. Still,

the Guard could not explain what happened to the

Form 1187s, and it sent letters to most dues-paying

members, including the President of the local Union,

asking them to either provide a copy of the original

form or resubmit the form within 60 days. If members

did not submit a new or original Form 1187 within the

60-day period, the Guard completed a Form 1188 for

those employees and signed the forms on their behalf

without asking for consent. As a result, union dues

deductions for around 89 bargaining unit employees

were terminated between September 2016 and June

2017. In April 2017, the Guard sent a letter to at least

48 bargaining-unit employees, 41 of whom had a Form

1187 on file. In this letter, the Guard recommended

that the union-dues allotments for these employees be

terminated because there was no longer a CBA.

In March 2017, in response to the Guard’s conduct,

the Union filed four Unfair Labor Practice charges

(“ULPs”) with the FLRA. At this stage in the ULP

process, the FLRA’s regional General Counsel

investigates the charges and decides whether to issue

a complaint on behalf of the Union. Here, the General

Counsel issued a complaint alleging that the Guard

refused to negotiate in good faith when it told

employees it was no longer bound by the Statute or

the CBA. The General Counsel also alleged that the

Guard refused to negotiate in good faith when it

unilaterally implemented new policies regarding

union-dues deductions and, as a result, the Guard

interfered with, restrained, and coerced employees in

the exercise of their rights under the Statute.

The Union filed an additional ULP charge with the

FLRA in April 2017. After investigating, the FLRA’s

Regional Director filed a second complaint on behalf

of the Union and consolidated this new case with the

first one. Like the General Counsel’s first complaint,

this one also alleged that the Guard interfered with,

restrained, and coerced employees in the exercise of

their rights under the Statute, this time by

recommending the termination of employees’ uniondues deductions.

In May 2017, the Guard filed answers to the first

and second complaints. In both answers, the Guard

admitted certain facts, but denied that it violated the

Statute. For example, the Guard conceded that it

terminated the dues of most of the paying bargainingunit employees. But the Guard denied that it

constitutes an “agency” and that technician

bargaining-unit employees are “employees” for the

purposes of the Statute. Both the General Counsel and

the Guard moved for summary judgment before an

Administrative Law Judge (“ALJ”). The assigned ALJ

denied both motions and set the case for a hearing.1

After conducting the hearing, the ALJ issued a

recommended decision on June 18, 2018. The ALJ

found that: (1) the Guard is an “agency” within the

meaning of § 7103(a)(3); (2) the FLRA had jurisdiction

over the Guard; (3) technicians had collectivebargaining rights under the Statute; and (4) the

Guard’s actions in repudiating the CBA clearly

violated the Statute.

The ALJ ordered the Guard to cease and desist

from: (1) “[f]ailing and/or refusing to recognize and

comply with the mandatory terms of the expired

[CBA];” (2) “[f]ailing and/or refusing to maintain

existing personnel policies, and practices and matters

affecting working conditions;” (3) “[u]nlawfully

removing employees from union dues withholdings, or

threatening to do so;” and (4) “[i]nforming employees,

supervisors, and managers that the [Guard] does not

consider itself bound by the [Statute] and that the

CBA… is a nullity.” The ALJ also recommended that

the Guard reinstate the dues allotments and

1 ULP hearings are adversarial hearings before an ALJ.

reimburse to the Union the dues that were improperly

cancelled.

If either party disagrees with the ALJ’s

recommended decision, that party can file an appeal

with the FLRA’s headquarters in Washington, D.C.

These appeals are called “exceptions.” 5 C.F.R. §

2423.40. Exceptions are heard by a panel of FLRA

members. And in July 2018, the Guard filed

exceptions to the ALJ’s recommended decision. The

Guard argued that the FLRA cannot regulate state

national guards because Congress had not called the

militia into service. The Guard further argued that

the FLRA does not have jurisdiction over technician

employees. In addition to challenging the FLRA’s

jurisdiction, the Guard contended that its actions

were not ULPs, and that the remedies recommended

by the ALJ were inappropriate.

In August 2018, the FLRA’s General Counsel

opposed the Guard’s exceptions. Citing our decision in

Federal Labor Relations Authority v. Michigan Army

National Guard, 878 F.3d 171 (6th Cir. 2017), the

General Counsel argued that the Guard fell under the

FLRA’s jurisdiction in its capacity as the employer of

technicians, who are protected by the Statute.

On June 30, 2020, the three-member FLRA panel,

with one member dissenting, issued a Decision and

Order adopting the ALJ’s recommended decision in

full, finding the ALJ did not commit prejudicial error

in his factual findings or legal analysis. The FLRA

found that the Guard’s exception “served only to

repeat its arguments below.” The Guard timely

petitioned this court to review the FLRA’s order,

arguing that we should reverse the FLRA’s decision.

II.

ANALYSIS

The FLRA’s Waiver Argument

The core issue before us is whether the FLRA has

jurisdiction under the Statute to adjudicate federal

labor-relations questions between the Guard and the

technicians’ Union.2 But before turning to the merits,

we first address the FLRA’s waiver argument. Title 5,

Section 7123(c) of the United States Code provides

that “[n]o objection that has not been urged before the

[FLRA], or its designee, shall be considered by the

court, unless the failure or neglect to urge the

objection is excused because of extraordinary

circumstances.” On appeal, the FLRA asserts that five

of the Guard’s arguments cannot be reviewed by this

court because they were not properly exhausted in the

Guard’s exceptions briefing below. The five arguments

that the FLRA takes issue with are:

1) The Guard’s arguments based on the text of

the Statute.

2) The Guard’s arguments based on the canon

of constitutional avoidance.

3) The Guard’s arguments based on the

federalism canon.

4) The Guard’s argument that the FLRA’s

order to reinstate the wrongfully

terminated

dues

allotments

unenforceable.

2 Created by the Civil Service Reform Act of 1978, the FLRA is

an independent federal agency that governs labor-relations

between the federal government and its employees.

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5) The Guard’s arguments based on the

“uniformed services” exception.

We are not persuaded by the FLRA’s narrow

reading of the exhaustion requirement in 5 U.S.C. §

7123(c). On appeal, “parties are not limited to the

precise arguments they made below.” Lebron v. Nat’l

R.R. Passenger Corp., 513 U.S. 374, 379 (1995)

(quoting Yee v. Escondido, 503 U.S. 519, 534 (1992)).

Although it is true that the Guard did not raise these

five arguments verbatim at the exceptions stage, each

argument nonetheless supports the consistently

argued claims that the Guard brought below. It would

be unreasonable, and in some ways would defeat the

purposes of appellate litigation, to require the

petitioners to raise the exact same arguments that

they raised earlier. Thus, these five arguments are not

waived, and we move on to the merits.

The FLRA’s Jurisdiction Over the Guard

The Guard contends that the FLRA lacks

jurisdiction over the Guard because the Guard is not

an executive agency under the Statute. Questions of

statutory interpretation are questions of law, which

we review de novo. Ammex, Inc. v. United States, 367

F.3d 530, 533 (6th Cir. 2004) (citing Johnson v. Econ.

Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001)).

As background, the Statute is a federal law that

establishes collective-bargaining rights for most

employees of the federal government. It was

established under Title VII of the Civil Service Reform

Act of 1978, which limited the scope of the FLRA’s

jurisdiction to “executive agencies.” 5 U.S.C. §

7103(a)(3). Thus, we start our analysis by addressing

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whether the Guard is a federal executive agency under

the Statute. Our precedent dictates that it is.

In Michigan Army National Guard, the Michigan

National Guard challenged the power of the FLRA to

assert jurisdiction over it and cited to many of the

same cases on which the Guard now relies. We

rejected their challenge and held that the Statute

“clearly” provides labor rights and protections to dualstatus technicians, and that the FLRA has jurisdiction

over state national guards and their adjutants general

with respect to technician bargaining. Id. at 178

(citing N.J. Air Nat’l Guard, 677 F.2d at 286;

Lipscomb v. FLRA, 333 F.3d 611, 620 (5th Cir. 2003)).

We reasoned that “[w]hile each state unit of the

National Guard is ‘a state agency, under state

authority and control,’ the ‘activity, makeup, and

function of the Guard is provided for, to a large extent,

by federal law.’” Id. at 177 (citing New Jersey Air Nat’l

Guard, 677 F.2d at 278).

Put differently, in their capacity as employers of

dual-status technicians who receive “the benefits and

rights generally provided for federal employees in the

civil service,” id. (quoting New Jersey Air Nat’l Guard,

677 F.2d at 279), state national guards are executive

agencies. Because our precedent dictates that the

FLRA has jurisdiction over the Michigan National

Guard with respect to labor-relations disputes, it

would be unreasonable to suggest that the FLRA does

not have jurisdiction over the Ohio National Guard

with respect to nearly identical issues.

Every other circuit that has considered this issue

has similarly found that state national guards

constitute executive agencies in their capacity as

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employers and supervisors of technicians. For

example, in Lipscomb, 333 F.3d at 616, the Fifth

Circuit held that dual-status technicians are

employees of an “executive agency” for the purposes of

the Statute. In fact, the Guard itself concedes that

many circuits have held that “technicians have

bargaining rights under the Reform Act, and that

state adjutants general or state national guards are

therefore subject to the orders of the FLRA.” See

Assoc. of Civilian Technicians v. FLRA, 230 F.3d 377,

378 (D.C. Cir. 2000); U.S. Dep’t of Def. v. FLRA, 982

F.2d 577, 578 (D.C. Cir. 1993); N.Y. Council, Ass’n of

Civilian Technicians v. FLRA, 757 F.2d 502, 505 (2d

Cir. 1985); Ind. Air Nat’l Guard v. FLRA, 712 F.2d

1187, 1190 n.3 (7th Cir. 1983); Neb. v. FLRA, 705 F.2d

945, 948 (8th Cir. 1983); Cal. Nat’l Guard v. FLRA,

697 F.2d 874, 879 (9th Cir. 1983); N.J. Air Nat’l

Guard, 677 F.2d at 286. If we accepted the Guard’s

argument to the contrary, we would create a circuit

split. And given the “unanimity of thought” across the

circuits on this issue, we are not inclined to do so.

Terry v. Tyson Farms, Inc., 604 F.3d 272, 279 (6th Cir.

2010).

For the foregoing reasons, the Guard is a federal

executive agency in its capacity as the employer of

technicians. Thus, the FLRA has jurisdiction over the

Guard with respect to labor- relations issues under the

Statute.

The FLRA’s Jurisdiction Over DualStatus Technicians

To issue orders over the Guard with respect to the

collective-bargaining disputes at issue here, the FLRA

also needs jurisdiction over dual-status technicians.

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The Guard argues that technicians are members of

the uniformed services, and that the Civil Service

Reform Act explicitly excludes members of the

uniformed services from the FLRA’s reach. 5 U.S.C. §

7103(a)(2)(B)(ii). According to the Guard, technicians

are members of the uniformed services because they

must “wear the uniform appropriate for the member’s

grade and component of the armed forces.” 32 U.S.C.

§ 709(b)(4). But once again, our decision in Michigan

Army National Guard forecloses this conclusion.

In Michigan Army National Guard, we held that

dual-status national guard technicians are covered by

the Statute and are thus afforded certain labor rights.

878 F.3d at 179–80. This includes the right to form,

join, and/or assist a labor organization, and the right

for labor organizations to engage in collective

bargaining with their employing guard over certain

labor relations matters related to the civilian aspects

of technician employment. Id. at 181. And because the

FLRA is tasked with enforcing these rights, it follows

that technicians fall under the FLRA’s jurisdiction.

Were we to accept the Guard’s argument that

technicians are not covered under the FLRA’s

jurisdiction, we would in effect be overturning the

ruling of a three-judge panel, an action we are not

permitted to take under these circumstances. See, e.g.,

United States v. Lanier, 201 F.3d 842, 846 (6th Cir.

2000).

Statutory analysis provides further support for the

conclusion that dual-status technicians fall within the

FLRA’s jurisdiction. The Civil Service Reform Act

separates government service into three buckets: the

civil service, the armed forces, and the uniformed

14a

services. 5 U.S.C. § 2101(1). Additionally, the text of

10 U.S.C. § 10216(a) discusses dual-status military

technicians and states that “for purposes of this

section and any other provisions of the law,” dualstatus technicians are “federal civilian employees,”

not uniformed services employees. (Emphasis added.)

Because technicians are federal civilian employees,

they have collective bargaining rights under the

Statute.

The legislative history of 10 U.S.C. § 976, which

prohibits military unions, also supports this reading.

The House Committee specifically rejected the idea

that civilian technicians were members of the

military. H.R. Rep. No. 95-894(II) at 7 (1978). This

legislative history reflects Congress’s efforts to ensure

that dual-status technicians, in their civilian capacity,

have collective bargaining rights that members of the

uniformed services do not have.

Thus, for the reasons stated, both the Guard and

its technicians fall within the scope of the FLRA’s

jurisdiction.

The Guard’s Constitutional Arguments

We turn next to the Guard’s constitutional

challenge. We review constitutional questions de

novo. Ammex, 367 F.3d at 533 (citing Johnson, 241

F.3d at 509.)

The Guard argues that, under the Militia Clause

of the Constitution, art. I, § 8, cls. 15–16, Congress’s

power to govern state national guards (militias)

extends only to the part of the militia that is employed

in service of the United States. The Guard

understands this to mean that “Congress’s power to

15a

govern the militia applies only to the portion of the

militia called into active duty at any one time.” (Pet’r

Br. 32.) If the state guard has not been called into

active duty, argues the Guard, then the Tenth

Amendment “reserves to the states” the power to

regulate. (Id. at 33.) This argument fails. It is not

unconstitutional for the FLRA to enforce the Statute

by issuing orders to state national guards and their

adjutants general. Not a single court of appeals has

found that the FLRA lacks jurisdiction over dualstatus technicians, or their employing agencies, when

the labor dispute at hand is related to the civilian

aspects of a technician’s job.

In Lipscomb, for example, the Fifth Circuit

addressed similar arguments from the Mississippi

National Guard. 333 F.3d at 620. Specifically, the

Fifth Circuit rejected the argument that the Tenth

and Eleventh Amendments barred the FLRA from

exercising jurisdiction over the Mississippi Guard. Id.

at 618 n.7. The Fifth Circuit found that, in its capacity

as employer of dual-status technicians, the

Mississippi Adjutant General and Mississippi

National Guard were not acting as state agencies, but

instead as federal executive agencies. Id. at 618–19.

For that reason, the Fifth Circuit held there were no

constitutional problems with Congress giving the

FLRA jurisdiction over the state guard. The Tenth

and Eleventh Amendment issues addressed in

Lipscomb mirror the Guard’s arguments in this case,

and we find the Fifth Circuit’s reasoning persuasive

here. It is not unconstitutional for the FLRA to enforce

the Statute by issuing orders to state national guards

in their role as employers of technicians.

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The Legality of Restoring the Cancelled

Dues Allotments

The final issue before us is whether the Guard can

legally comply with the FLRA’s order, which requires

it to reinstate the canceled dues allotment. Whether

the Guard can comply is a question of law we review

de novo. Ammex, 367 F.3d at 533 (citing Johnson, 241

F.3d at 509.)

The Guard argues that compliance with the

FLRA’s reinstatement order would require it to violate

federal law. This argument is unpersuasive. It is

neither unlawful nor impractical for the Guard to

comply with the FLRA’s order requiring it to restore

the erroneously cancelled dues allotments. The

Statute empowers the FLRA to protect the labor

rights of technicians, and in this case, it found that the

Guard committed a violation. Specifically, despite the

statutory requirement that employees must submit

Form 1188s to change or cancel their allotments, the

Guard itself submitted Form 1188s on behalf of

numerous technicians without their consent. If the

Guard could so easily avoid compliance with an order

under these circumstances, the Statute would have no

teeth.

III.

CONCLUSION

In conclusion, we DENY the Guard’s Petition for

Review. The FLRA has jurisdiction to adjudicate the

collective-bargaining dispute between the Guard and

the Union and to issue an order requiring the Guard

to comply. Further, the Guard can lawfully comply

with the FLRA’s order.

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APPENDIX B

71 FLRA No. 165

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

______________________________

UNITED STATES DEPARTMENT OF DEFENSE

OHIO NATIONAL GUARD

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES LOCAL 3970, AFL-CIO

(Charging Party)

and

MAJOR GENERAL MARKE. BARTMAN, IN HIS

OFFICIAL CAPACITY AS THE ADJUTANT

GENERAL OF THE OHIO NATIONAL GUARD

(Intervenor-Respondent)

and

THE OHIO ADJUTANT GENERAL’S

DEPARTMENT

(Intervenor-Respondent)

CH-CA-17-0248

CH-CA-17-0249

CH-CA-17-0251

CH-CA-17-0252

CH-CA-17-0336.

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______________________________

DECISION AND ORDER

June 30, 2020

______________________________

Before the Authority: Colleen Duffy Kiko, Chairman,

and Ernest DuBester and James T. Abbott, Members

(Member Abbott concurring, in part; Chairman Kiko

dissenting)

______________________________

Statement of the Case

This unfair labor practice case comes before us on

exceptions to the attached decision by Federal Labor

Relations Authority (FLRA) Administrative Law

Judge Richard A. Pearson (the Judge) filed by the

Ohio National Guard (ONG), the Adjutant General of

the Ohio National Guard, and the Ohio Adjutant

General’s

Department

(OAGD)

(collectively,

Respondent).

The General Counsel filed an

opposition to the exceptions.

The Judge found that the Authority had

jurisdiction over the Respondent and that the

Respondent violated § 7116(a)(1), (5), and (8) of the

Federal Service Labor-Management Relations Statute

(the Statute).2 when it: (1) issued written

communications to the Union and bargaining-unit

employees (technicians) stating that it was not bound

by the Statute or the parties’ expired collective-

1 The Respondent in the complaint was the U.S. Department of

Defense, ONG. The Adjutant General and the OAGD joined the

case as intervenor-respondents before the Judge.

2 5 U.S.C. § 7116(a)(1), (5), (8).

19a

bargaining agreement (the agreement); (2) refused to

comply with the mandatory terms of the agreement,

including the negotiated grievance procedure and

official time provisions; (3) terminated technicians’

authorized union dues allotments; and (4) unilaterally

implemented new dues allotment and merit

promotion policies.

The Respondent has filed exceptions that

challenge the Judge’s factual findings and legal

analysis. Pursuant to § 2423.41(b) of the Authority’s

Regulations,3 upon consideration of the decision and

the entire record, and because the Respondent’s

exceptions served only to repeat its arguments below,

we find that the Judge committed no prejudicial errors

in his factual findings or legal conclusions. Therefore,

we adopt the Judge’s findings, conclusions, and

recommended order and deny the Respondent’s

exceptions.

II.

Order

Pursuant to § 2423.41(c) of the Authority’s

Regulations4 and § 7118 of the Statute,5 the U.S.

Department of Defense, ONG and the Respondent

shall:

1. Cease and desist from:

(a) Failing and/or refusing to recognize and comply

with the mandatory terms of the parties’ expired

agreement, including those terms regarding

3 5 C.F.R. § 2423.41(b).

4 Id. § 2423.41(c).

5 5 U.S.C. § 7118.

20a

grievances and arbitrations, official time, and hiring

and promotion.

(b) Failing and/or refusing to maintain existing

personnel policies and practices and matters affecting

working conditions to the maximum extent possible.

dues withholdings, or threatening to do so.

(d) Informing employees, supervisors, and

managers that the Respondent does not consider itself

bound by the Statute, and that the parties’ agreement,

including the grievance procedure, is a nullity.

(e) 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 actions in order

to effectuate the purposes and policies of the Statute:

(a) Post at its facilities where unit employees are

located, copies of the attached notice on forms to be

furnished by the FLRA. Upon receipt of such forms,

they shall be signed by the Adjutant General of the

ONG, and shall be posted and maintained for sixty

consecutive days thereafter, in conspicuous places

where notices to employees are customarily posted at

Respondent’s facilities statewide. Reasonable steps

shall be taken to ensure that such notices are not

altered, defaced, or covered by any other material.

(b) Disseminate a copy of the notice signed by the

Adjutant General through the Respondent’s email

system to all technicians, managers, and supervisors

in the Ohio Army and Air National Guard.

21a

technicians removed from dues withholding since

September 28, 2016, who did not fill out dues

revocation forms in the anniversary month of their

allotment.

(d) Reimburse the Union for the dues it would have

received had the Respondent not removed employees

unlawfully from dues withholding.

(e) Rescind any changes to the mandatory terms of

the agreement and to any existing personnel policies

and practices and matters affecting working

conditions since September 28, 2016, including

restoring the agreement’s grievance and arbitration

procedure, rescinding the February 2017 changes to

the merit-promotion policy, restoring reasonable

amounts of official time, and making employees whole

for any other losses resulting from the Respondent’s

unlawful changes.

(f) Upon request, bargain with the Union to the

extent required by the Statute.

(g) Pursuant to § 2423.41(e) of the Authority’s

Regulations,6 notify the Regional Director, Chicago

Region, FLRA, in writing, within thirty days from the

date of this order regarding what compliance actions

have been taken.

6 5 C.F.R. § 2423.41(e).

22a

NOTICE TO ALL EMPLOYEES POSTED BY

ORDER OF THE FEDERAL LABOR

RELATIONS AUTHORITY

The Federal Labor Relations Authority (FLRA) has

found that the U.S. Department of Defense, Ohio

National Guard and the Adjutant General of the Ohio

National Guard (collectively, ONG) violated the

Federal Service Labor-Management Relations Statute

(the Statute), and has ordered us to post and abide by

this notice.

WE HEREBY NOTIFY OUR EMPLOYEES

THAT:

The Statute gives dual-status technicians of the

ONG the following rights:

To form, join, or assist any labor organization; To

act for a labor organization in the capacity of a

representative;

To present the views of the labor organization to

heads of agencies and other officials of the

executive branch of the Government, Congress, or

other appropriate authorities;

To engage in collective bargaining with respect to

conditions of employment through representatives

chosen by employees under the Statute; and

To refrain from any of the activities set forth above,

freely and without fear or reprisal.

The ONG will not violate any of these rights.

More specifically:

WE RECOGNIZE and will comply with the

mandatory terms of the expired collective-bargaining

23a

agreement (agreement) between the American

Federation of Government Employees, Local 3970

(Union) and the ONG, including the provisions

concerning grievance and arbitration procedures,

official time, and hiring and promotion.

WE RECOGNIZE that our employees have the

right to file grievances under the agreement, bring

unfair labor practice charges, and seek and receive

Union representation.

WE RECOGNIZE our obligation to honor the dues

withholding allotments of bargaining-unit employees,

even after the agreement has expired.

WE WILL maintain the personnel policies and

practices and matters affecting working conditions

that were in effect on September 28, 2016.

WE WILL restore the mandatory terms of the

expired agreement and the preexisting personnel

policies, practices, and matters affecting working

conditions to the maximum extent possible.

WE WILL rescind the February 2017 changes to

our merit-promotion policy.

WE WILL grant Union officials reasonable official

time

carry

out

their

representational

responsibilities.

WE WILL reinstate to dues withholding status

those employees who were unlawfully removed from

that status and reimburse the Union for the dues it

would have received, but for our unlawful actions.

WE WILL give the Union notice and an

opportunity to bargain prior to making changes to

24a

existing personnel policies, practices, and matters

affecting working conditions.

WE WILL NOT fail and/or refuse to maintain the

mandatory terms of the agreement and the existing

personnel policies, practices, and matters affecting

working conditions to the maximum extent possible.

WE WILL NOT refuse to grant Union officials

reasonable official time.

WE WILL NOT unlawfully remove employees

from dues withholdings without their authorization.

WE WILL NOT tell employees, verbally or in

writing, that the agreement is a nullity, or that the

ONG is not required to comply with the Statute.

WE WILL NOT, in any like or related manner,

interfere with, restrain, or coerce bargaining-unit

employees in the exercise of their rights assured by

the Statute.

__________________________________

(Adjutant General, ONG)

Dated: ________________________

By: ______________________________

(Signature)

(Title)

This notice must remain posted for sixty

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

25a

may communicate directly with the Regional Director,

Chicago Region, FLRA, whose address is: 224 S.

Michigan Avenue, Suite 445, Chicago, Ill. 60604, and

whose telephone number is: (312) 886-3465.

26a

Member Abbott, concurring:

Chairman Kiko offers a compelling argument in

her dissent. I share her concerns regarding existing

judicial and Authority precedent which applies the

Statute to the Adjutant General as though it were a

federal agency.

Her constitutional concerns and her observations

that “the Adjutant General’s obligations under federal

regulations do not alter his status as a state officer”1

and the Supreme Court’s treatment of “federal

legislation that commandeers a State’s legislative or

administrative apparatus for federal purposes”2 are

well founded.

However, I am also mindful that the U.S. Court of

Appeals for the Fifth Circuit has spoken quite

decisively on this matter and at least four other

Circuits have reached similar conclusions,3 although

1 Dissent at 8.

2 Id. at 9.

3 See Mich. Army Nat’l Guard, 69 FLRA 393,395 (2016), enf’d as

modified by FLRA v. Mich. Army Nat’l Guard, 878 F.3d 171,178

(6th Cir. 2017) (finding Statute’s protections apply to technicians

despite the military authority of state adjutants general); In re

Sealed Case, 551 F.3d 1047, 1049 (D.C. Cir. 2009) (rejecting

constitutional argument that national guard must be called into

the service of the United States to have federal status); Lipscomb

v. FLRA, 333 F.3d 611, 618 & n.7 (5th Cir. 2003) (citing Gilliam

v. Miller, 973 F.2d 760, 762 (9th Cir. 1992)) (rejecting arguments

based on the Tenth and Eleventh Amendments and the adjutant

general’s state character and finding that, because the agency

acts in a federal capacity, the Statute does not “amount[] to

conscription of a state official into the performance of a federal

duty”); NeSmith v. Fulton, 615 F.2d 196, 198-99 (5th Cir. 1980)

(holding that adjutant general is a federal agency, despite its

27a

not directly addressing the concerns raised by the

Chairman in her dissent. For this reason, because of

the current judicial precedent on this matter, I believe

that we are bound to assume jurisdiction and address

the issues raised by the complaint and the judge’s

decision.

I believe the issues and concerns regarding the

extent to which our Statute applies to the Adjutant

General is a matter that ought to be revisited. But,

those are matters for the courts, and Congress, to

resolve.

status as a state office); Chaudoin v. Atkinson, 494 F.2d 1323,

1329 (3d Cir. 1974) (finding “no doubt” that the adjutant general

is an “agency or an agent of the United States” under the

National Guard Technicians Act and subject to federal

jurisdiction); see also AFGE, Local 3936, AFL-CIO v. FLRA, 239

F.3d 66 (1st Cir. 2001); Ind Air Nat’l Guard, Hulman Field, Terre

Haute, Ind v. FLRA, 712 F.2d 1187, 1191 (7th Cir. 1983); N.J. Air

Nat’l Guard v. FLRA, 677 F.2d 276, 278, 281 (3d Cir. 1982); Miss.

Army Nat’l Guard, Jackson, Miss., 57 FLRA 337,340 (2001);

NFFE, Local 1623, 28 FLRA 633,643 (1987); Adjutant Gen., State

of Ohio, Ohio Air Nat’l Guard, Worthington, Ohio, 21 FLRA 1062,

1079 (1986); AFGE, AFL-CIO, Local 2953, 7 FLRA 87, 90 (1981).

28a

Chairman Kiko, dissenting:

The Authority’s longstanding treatment of state

Adjutants General as federal “Executive agenc[ies]” is

wrong,1 and we should correct that mistake in this

case. The Adjutant General of the Ohio National

Guard and the Adjutant General’s Department are

the Respondents for the unfair labor practices (ULPs)

alleged in this dispute, and the Respondents allege

that the Authority lacks jurisdiction over them.2 The

Federal Service Labor-Management Relations Statute

(the Statute) empowers the Authority to redress ULPs

committed by an “agency.”3 Thus, if neither of the

Respondents is an “agency” under the Statute,4 then

the Authority lacks jurisdiction over the ULP

complaints here.

The governor of Ohio appoints the Ohio Adjutant

General, and the state of Ohio pays his salary.5

Further, he “perform[s] the duties prescribed by the

laws” of the state of Ohio.6 Although his employment

of technicians must follow regulations that the

National Guard Bureau prescribes, federal officials

“retain no authority over the day-to-day employment

1 5 U.8.C. § 7103(a)(3).

2 Exceptions Br. at 20-30.

3 5 U.S.C. § 7118(a)(7). Although not relevant here, the Authority

also has the power to redress ULPs committed by a “labor

organization.” Id.

4 Id.

5 Judge’s Decision at 5; Exceptions Br. at 20-21; Singleton v.

MSPB, 244 F.3d 1331, 1333-34 (Fed. Cir. 2001).

6 32 U.S.C. § 314(a); Exceptions Br. at 21 (summarizing 32 U.S.C.

§ 314(a)).

29a

of the technicians,”7 which is solely the province of the

Ohio Adjutant General, a state officer.8 The Adjutant

General must comply with federal regulations, but

that compliance does not render him, or his

department, a federal “agency” under the Statute.9

Indeed, if the obligation to comply with federal

regulations rendered a state officer a federal agency

for purposes of the Statute, many state officers,

including governors, would be considered federal

agencies. Thus, the Adjutant General’s obligations

under federal regulations do not alter his status as a

state officer.

The Ohio Adjutant General’s authority to “employ

and administer the “technicians” is delegated from

federal officials10-specifically, the Secretary of the

Army and the Secretary of the Air Force. But that

delegation does not change the Adjutant· General’s

status as an Ohio state officer, appointed by Ohio’s

governor, and paid from Ohio’s public fisc. For this

reason, the Authority’s sister agency-the Merit

Systems Protection Board (MSPB)-has recognized

that it may not issue orders to enforce its decisions

against Adjutants General.11 And the U.S. Court of

U.S. DOD, Nat’l Guard Bureau, 55 FLRA 657,661 (1999)

(DOD); see Exceptions Br. at 31-32 (noting that DOD recognized

that the National Guard Technicians Act (Technicians Act) may

limit the rights that technicians are able to exercise under the

Statute).

8 DOD, 55 FLRA at 660-61.

9 5 U.S.C. § 7103(a)(3).

10 32 U.S.C. § 709(d); Exceptions Br. at 30 (discussing rulemaking

responsibilities under 32 U.S.C. § 709(d)).

11 E.g., Melendez v. P.R. Nat’l Guard, 70 M.S.P.R. 252, 253-54

(1996) (Melendez). The Authority has previously distinguished

30a

Appeals for the Federal Circuit has affirmed the

MSPB’s view.12 The Authority should similarly

recognize the limits of its ULP enforcement powers

against Adjutants General.

I recognize that the U.S. Court of Appeals for the

Fifth Circuit (Fifth Circuit) reached a different

conclusion in Lipscomb v. FLRA.13 Despite my respect

for the court, I find that the deficiency in its decision

is plain on its face. In particular, the Fifth Circuit

recognized that “if one is searching for translucent,

definitional ... words under the [Statute] stating” that

the Adjutant General “constitute[s] an ‘Executive

agency,’ the search will be disappointing.”14 And the

rest of the U.S. Code is likewise bereft of “definitional

... words” stating that an Adjutant General is a federal

agency.15 Thus, the court should have finished its

analysis where it started. In the face of clear

provisions of the U.S. Code designating Adjutants

General as state officers performing duties under

state law,16 only a similarly unambiguous command

from Congress could manifest a contrary intent to

Melendez, stating that it conflicts with Authority precedent. P.R.

Air Nat’l Guard, 156th Airlift Wing (AMC) Carolina, AR., 56

FLRA 174, 178 (2000). But because I would change Authority

precedent in this area, that effort at distinguishing Melendez is

unpersuasive.

12 Exceptions Br. at 21-22 (citing Singleton v. MSPB, 244 F.3d

1331, 1333 (Fed. Cir. 2001)).

13 333 F.3d 611 (5th Cir. 2003).

14 Id. at 618.

15 Id.

16 See, e.g., 32 U.S.C. § 709(d) (providing that state adjutants

general will “employ and administer the technicians authorized

by this section”).

31a

treat Adjutants General as federal agencies. We have

no such statutory command here.17

Reinforcing the conclusion that we may not treat

state officers as federal agencies, the Supreme Court

has held that the U.S. Constitution forbids “the forced

participation of the States’ executive in the actual

administration of a federal program.”18

The

Authority’s enforcement powers regarding ULPs,

especially those that concern an obligation to

negotiate over technicians’ conditions of employment,

permeate every labor-relations interaction between

the Adjutants General and the technicians that they

employ. Consequently, if the Statute were interpreted

to cover the Ohio Adjutant General and his

department in this case, it would impermissibly force

a state officer to administer a federal program under

the supervision of a federal administrative tribunal.19

The Supreme Court has consistently struck down

“federal legislation that commandeers a State’s

legislative or administrative apparatus for federal

purposes.”20

Nor do the constitutional problems raised by the

Authority’s interpretation end there. In this case, a

state entity (the Ohio Adjutant General) has been

forced to litigate a complaint brought by a private

entity (AFGE, Local 3970) before a federal

administrative tribunal (the FLRA). The Supreme

Court has found, under analogous circumstances, that

17 See DOD, 55 FLRA at 661.

18 Printz v. United States, 521 U.S. 898,918 (1997).

19 Id.

20 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,577 (2012).

32a

state

sovereign

immunity

bars

federal

administrative body “from adjudicating complaints

filed by a private party against a nonconsenting

State.”21 “Simply put, if the Framers thought it an

impermissible affront to a State’s dignity to be

required to answer the complaints of private parties

in federal courts, we cannot imagine that they would

have found it acceptable to compel a State to do

exactly the same thing before the administrative

tribunal of an agency.”22 But that is just what has

happened here-and there is no indication that the

State of Ohio ever consented to this infringement on

its sovereign immunity.23

Under the canon of constitutional avoidance, the

Authority must read its Statute in such a way as to

avoid serious constitutional issues.24 There is no

language in the Statute, or even legislative history,

suggesting that Congress intended for state entities

21 Fed. Mar. Comm ‘n v. S.C. State Ports Auth., 535 U.S. 743, 760

(2002).

22 Id.

23 The Office of the General Counsel and AFGE argue that the

State of Ohio consented to this arrangement by agreeing to

accept federal funding for their National Guard units. But

nothing in either the Technicians Act or the Statute indicates

that the State of Ohio “voluntarily and knowingly accept[ed] the

terms of th[is] ‘contract.’” Nat’l Fed’n of Indep. Bus., 567 U.S. at

577.

24 Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const.

Trades Council, 485 U.S. 568,575 (1988) (“[W]here an otherwise

acceptable construction of a statute would raise serious

constitutional problems, the Court will construe the statute to

avoid such problems unless such construction is plainly contrary

to the intent of Congress.”); NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979).

33a

like the Ohio Adjutant General to be covered under

the Statute. Thus, interpreting the Statute to force

unwilling state entities to engage in federally

mandated collective bargaining under the aegis of a

federal agency, thereby raising serious constitutional

questions, is wholly unwarranted.

Finally, I would note that, even if the ULP

complaints in this case had named other respondents

- such as the National Guard Bureau, or the

Departments of the Army or Air Force - the Authority

would have faced many of the same legal obstacles to

the exercise of its jurisdiction. That is because, in

order for any remedial order to be meaningful, those

entities would have had to enlist the cooperation of the

Ohio Adjutant General.25 However, the legal obstacles

that I have discussed are especially plain in this case

because the Adjutant General and his department are

the named Respondents.

25 See DOD, 55 FLRA at 660-61 (recognizing that federal officials

lack the power for employment and administration of the

technicians program, without the involvement of the Adjutants

General).

34a

APPENDIX C

FEDERAL LABOR RELATIONS AUTHORTIY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424

Case Nos. CH-CA-17-0248

CH-CA-17-0249

CH-CA-17-0251

CH-CA-17-0252

CH-CA-17-0336

U.S. DEPARTMENT OF DEFENSE

OHIO NATIONAL GUARD

RESPONDENT

AND

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3970, AFL-CIO

CHARGING PARTY

AND

MAJOR GENERAL MARK E. BARTMAN, IN HIS

OFFICIAL CAPACITY AS THE ADJUTANT

GENERAL OF THE OHIO NATIONAL GUARD

INTERVENOR-RESPONDENT

AND

THE OHIO ADJUTANT GENERAL’S

DEPARTMENT

INTERVENOR-RESPONDENT

Alicia E. Weber

Greg Weddle

For the General Counsel

35a

Lt. Col. Christopher Stallkamp

Cpt. Adam H. Leonatti

For the Respondent and the Intervenors

William R. Kudrle

For the Charging Party

Before:

RICHARD A. PEARSON

Administrative Law Judge

DECISION

The facts of this case are complex, but the crux of

the case is simple: after 45 years of collective

bargaining with the union representing its dual status

technicians, under the Federal Service LaborManagement Relations Statute (the Statute) and the

Executive Orders that preceded it, management at the

Ohio National Guard decided that it was not covered

by the Statute after all, and that the Federal Labor

Relations Authority had no jurisdiction over its

employees or its Adjutant General. Management and

the Union had negotiated a series of collective

bargaining agreements (CBAs) over this period, but

when negotiations to replace the agreement expiring

in 2014 became stalled, management made two fateful

decisions: first, that the expired agreement was now

null and void; and second, that the Ohio Adjutant

General never had any obligation to comply with the

federal law that he and his predecessors had been

following for decades. Having made these decisions,

everything else in this case flowed naturally from that

point.

36a

In short, this is a case of “union busting” in its

purest form. If the Agency’s legal claims are valid,

then it will drastically disrupt the course of labor

relations for National Guard dual status technicians –

not just in Ohio, but in nearly every state in the

country where unions bargain collectively under the

Statute. None of the tens of thousands, perhaps

hundreds of thousands, of technicians will have any

federally protected bargaining rights, and state

adjutants general will have unfettered control over

the

technicians’

conditions

employment.

Fortunately, the Agency is wrong in its legal analysis,

and the purpose of this decision is to correct the

Agency’s errors before they metastasize.

This case presents several issues, but the first and

foremost question is whether the Authority has

jurisdiction over the Respondent. Because the

Respondent acts as a federal agency in its role as an

employer of federal employees, and because the

Authority’s jurisdiction over state National Guards

has been upheld by numerous federal courts as well as

the Authority, the answer to this question is yes.

The next question is whether a series of written

communications by Agency officials – telling

employees that they were not protected by the Statute

and that the Agency would no longer be bound by the

CBA – violated § 7116(a)(1) of the Statute. Because

the Agency coercively interfered with employees’

rights, including employees’ right to use the

contractual grievance procedure and their right to

assist the Union without fear of reprisal, the answer

to this question is yes.

37a

The third question is whether the Agency violated

§ 7116(a)(1) and (5) of the Statute by refusing to be

bound by specific terms of the expired CBA. Because

the Agency demonstrated in a series of

communications that it did not consider itself to be

bound by any provision in the CBA, and because it

refused to follow the negotiated grievance procedure

or to grant official time, the answer again is yes.

The fourth question is whether the Agency violated

§ 7116(a)(1) and (8) of the Statute when it terminated

union dues deductions for 89 employees. Because §

7115 of the Statute permits an agency to terminate

dues deductions for only two reasons, and the Agency’s

action was for neither of these reasons, the answer to

this question is yes.

The fifth and sixth questions are whether the

Agency violated § 7116(a)(1) and (5) of the Statute by

unilaterally implementing new policies regarding

union dues deductions and merit promotions. Because

the Agency implemented these changes without

providing adequate notice to the Union or an

opportunity to bargain under the Statute, the answer

to these questions is also yes.

STATEMENT OF THE CASE

This is an unfair labor practice (ULP) proceeding

under the Federal Service Labor-Management

Relations Statute, Chapter 71 of Title 5 of the U.S.

Code, 5 U.S.C. §§ 7101-7135, and the Rules and

Regulations of the Federal Labor Relations Authority

(the Authority or FLRA), 5 C.F.R. part 2423.

On March 8, 2017, the American Federation of

Government Employees, Local 3970, AFL-CIO (the

38a

Union or Local 3970) filed four ULP charges (Case

Nos. CH-CA-17-0248, CH-CA-17-0249, CH-CA-170251 & CH-CA-17-0252) against the Ohio National

Guard, Adjutant General’s Department. GC Ex. 1(a).

After investigating the charges, the Regional Director

of the FLRA’s Chicago Region issued a Consolidated

Complaint and Notice of Hearing on April 13, 2017, on

behalf of the General Counsel (GC), alleging that the

U.S. Department of Defense, Ohio National Guard

(the Respondent or Agency) refused to negotiate in

good faith, in violation of § 7116(a)(1) and (5) of the

Statute, by (among other things) telling employees

that it was no longer bound by the mandatory terms

of the expired collective bargaining agreement and

that it was not obligated to comply with the Statute,

and by unilaterally implementing new policies

regarding union dues deductions, grievances, official

time, and merit promotions. GC Ex. 1(b). The

Complaint further alleged that the Respondent failed

to comply with its obligations under § 7115(a) to honor

dues

withholding

authorizations

and

make

appropriate allotments to the Union, in violation of §

7116(a)(1) and (8) of the Statute. Finally, the

Complaint alleged that by engaging in this conduct,

the Respondent interfered with, restrained, and

coerced employees in the exercise of their § 7102

rights, in violation of § 7116(a)(1) of the Statute. Id.

On April 20, 2017, the Union filed an additional

ULP charge (Case No. CH-CA-17- 0336) against the

Respondent. GC Ex. 1(a). After investigating, the

Regional Director issued a second Complaint and

Notice of Hearing on May 4, 2017, and he consolidated

the new case with the four earlier cases. GC Ex. 1(c).

The new complaint alleged that by sending letters to

39a

employees stating that it would recommend the

termination of employees’ union dues deductions

because the collective bargaining agreement had

expired, the Respondent had failed and refused to

comply with its obligations under § 7115(a) of the

Statute, in violation of § 7116(a)(1) and (8), and that it

had interfered with, restrained, and coerced

employees in the exercise of their § 7102 rights, in

violation of § 7116(a)(1) of the Statute. Id.

The Respondent filed an Answer to the first

Complaint on May 8 and an Answer to the second

Complaint on May 30, 2017. In both pleadings, the

Respondent admitted certain factual allegations but

denied violating the Statute. GC Exs. 1(d) & 1(h). In

this regard, it admitted that it had first recognized the

Union in 1971 under Executive Order 11491, and that

the Authority had certified the Union as the exclusive

representative of a consolidated bargaining unit of its

employees on February 12, 1990; but it denied that it

is an “agency” or that the bargaining unit employees

are “employees” within the meaning of the Statute.

GC Exs. 1(b) & 1(d) at 4. It further admitted.:

“Starting on or about November 14, 2016, the

Respondent sent notices to the majority of the

bargaining unit employees who had authorized Union

dues allotments. The Respondent gave the employees

sixty (60) days to complete a new SF 1187 or send in a

copy of their old form.” Id. at 17. It also admitted:

“Starting in or around January 2017, the Respondent

... completed a new SF 1188 for the employees who did

not return a fully executed SF 1187 … [and]

terminated the dues of the majority of the bargaining

40a

unit employees then paying dues to the Union and

stopped remitting dues to the Union.” Id. at 18.1

On July 25, 2017, counsel for the Respondent filed

a motion to intervene for Major General Mark E.

Bartman, in his official capacity as Adjutant General

of the Ohio National Guard, and for the Ohio Adjutant

General’s Department. GC Ex. 1(aa). I granted the

motion on July 26, 2017. GC Ex. 1(bb). Additionally,

both the General Counsel and Respondent filed

motions for summary judgment along with evidence in

support thereof, and opposed each other’s motion. GC

Ex. 1(i), 1(m), 1(q) & 1(r). I denied both motions for

summary judgment on July 26, 2017, because there

were numerous genuine issues of fact in dispute. GC

Ex. 1(bb).

A hearing was held in this matter on August 1 and

2, 2017, in Columbus, Ohio. All parties were

represented and afforded an opportunity to be heard,

to introduce evidence, and to examine witnesses. The

1 Between May 15 and July 6, 2017, Respondent filed ten ULP

charges against the Union, and on July 7, 2017, Respondent filed

a motion asking me to consolidate its charges with the instant

proceeding, despite the fact that the Regional Director had not

completed its investigation or acted on the Respondent’s charges.

Respondent argued that consolidating all the charges would give

me “a broader context in which to evaluate the contentions made

by all parties to this case.” GC Ex. 1(s) at 2; see also attachments

thereto. I denied this motion on July 18, 2017, noting that only

the FLRA’s General Counsel, through its regional directors, has

the authority to issue a complaint, and that I can act only on

cases that have been submitted to me upon issuance of a

complaint. GC Ex. 1(u).

41a

GC, Charging Party, and Respondent filed posthearing briefs, which I have fully considered.

Based on the entire record, including my

observations of the witnesses and their demeanor, I

make the following findings of fact, conclusions of law,

and recommendations.

FINDINGS OF FACT

As I will explain in more detail later, the

Respondent is an agency within the meaning of §

7103(a)(3) of the Statute. The Union is a labor

organization within the meaning of § 7103(a)(4) of the

Statute. As noted above, the Respondent recognized

the Union in 1971, and the Union was certified by the

Authority in 1990 as the exclusive representative of

general schedule and wage board technicians

employed in the Air National Guard and the Army

National Guard in the State of Ohio. GC Exs. 1(b) and

1(d) at 4; GC Ex. 7. These employees are primarily

“dual status technicians” - federal civilian employees

who, as a condition of their employment, must become

and remain military members of the National Guard

of the state in which they are employed. Tr. 29-30; see

also 10 U.S.C. § 10216; 32 U.S.C. § 709. As civilians,

technicians do a broad range of work, from

administrative to blue collar work; they may perform

vehicle or aircraft maintenance, logistics, or finance.

GC Ex. 1(i), Ex. 21 at 2 (GC Motion for Summary

Judgment (GC MSJ)). They perform in their military

(i.e., non-civilian) role during weekend drills, during

their two weeks of training per year with the National

Guard, and when deployed. Id When in military

status, a technician takes leave from his or her civilian

job. Id at 2-3.

42a

Bargaining unit employees can have their union

dues deducted from their pay by submitting Standard

Form 1187 (SF 1187) to the Agency.2 GC Ex. 12 at 2;

Tr. 38. The union dues deducted from an employee’s

pay are reflected on the employee’s pay stub. Tr. 38.

Bargaining unit employees can cancel these

deductions by submitting another form, Standard

Form 1188 (SF 1188), to the Agency. GC Ex. 12 at 1.

The Ohio National Guard is administered by the

Ohio Adjutant General’s Department, which is

commanded by the Adjutant General, Ohio National

Guard. The Adjutant General is appointed by the

Governor of the State of Ohio and is employed by the

State of Ohio. Tr. 270, 341. While adjutants general

are state employees, they administer the technician

programs in their states in accordance with

regulations prescribed by the Secretary of the Army

and the Secretary of the Air Force. GC Ex. 1(i), Ex. 21

at 2 (GC MSJ); Tr. 301; see also GC Ex. 1(m),

Dernberger Affi. at 2 (Resp. Cross Motion for

Summary Judgment (Resp MSJ)) and Aukland Affi. at

3-4.3

2 Union dues deductions (or withholdings) is the informal term I

use in connection with the process of assignments, deductions,

and allotments described in § 7115(a) of the Statute, which

states, in pertinent part:

If an agency has received from an employee ... a written

assignment which authorizes the agency to deduct from the

pay of the employee amounts for the payment of regular and

periodic dues of the exclusive representative of the unit, the

agency shall honor the assignment and make an appropriate

allotment pursuant to the assignment....

3 Mr. Aukland gave two affidavits, which were attached to

different prehearing motions. The first affidavit, dated March 27,

43a

The National Guard Bureau is a federal agency

within the U.S. Department of Defense (DoD),

comprising the Air National Guard and the Army

National Guard. 10 U.S.C. § 10501; see also Tr. 17071, 180. The National Guard Bureau provides federal

money and property to the Ohio National Guard and

owns property used by the Ohio National Guard. Tr.

180, 271. In addition, the National Guard Bureau

issues Technician Personnel Regulations (TPRs),

which govern the employment of technicians. Tr. 27577. The payroll functions within the National Guard

are performed by the Defense Finance and Accounting

Service, which is frequently referred to as DFAS. Tr.

257-58.

The Collective Bargaining Agreement

On December 17, 2010, the Ohio Adjutant General

and the Union executed a collective bargaining

agreement which was submitted to DoD for agency

head review, as required by § 7114(c) of the Statute.

GC Ex. 9. On January 11, 2011, DoD informed the

Adjutant General and the Union that the agreement

was disapproved because several provisions did not

conform to law, rule, or regulation. See First

Attachment to GC Ex. 9. The parties revised the

agreement and resubmitted it for agency head review,

and on February 24, 2011, DoD advised the Adjutant

General and the Union that the revised CBA had been

approved. Id With that, the CBA went into effect, and

2017, is an exhibit attached to the GC’s opposition to the

Respondent’s MSJ, GC Ex. 1(r). The second affidavit, dated June

15, 2017, is an exhibit attached to Respondent’s MSJ, GC Ex.

1(m).

44a

‘it was to remain; in effect for three years. GC Ex. 9 at

19. It was signed by Major General Deborah

Ashenhurst, the Adjutant General at that time, and

by Jeffrey Tanner, then the Union President. Id at 20.

Article 7 of the CBA, Hiring and Promotion,

defined the “initial area of consideration” and created

a Joint Partnership Executive Council (JPEC),

consisting of bargaining unit employees and

management, to address selection procedures for

bargaining unit positions. Id. at 5, 6. Soon after the

CBA went into effect, the parties negotiated several

JPEC policy letters, expanding on the language of

Article 7. See Attachments to GC Ex. 9. Article 11 of

the CBA, Official Time, provided that official time

would be granted “in the amount necessary to

accomplish union obligations and responsibilities,”

with the Union President on 100% official time. Id. at

8; see also Tr. 334.

Article 15(b), Discipline, provided: “Before a

supervisor initiates any disciplinary action or a letter

of counseling, the affected employee and a union

representative will be given the opportunity to

informally discuss the problem and the basis for the

action with the supervisor.” GC Ex. 9 at 11. Article 16

established a five-step grievance procedure,

culminating in arbitration, except that arbitration

was prohibited for those issues reserved by 32 U.S.C.

§ 709(f) for final decision by the Adjutant General. Id

at 15. Article 18 established a joint unionmanagement procedure for coordinating the deduction

of union dues and specified that such deductions could

be “terminated for loss of membership due to

promotion or transfer to a non-union position,

45a

retirement, death, or separation from technician

employment.” Id. at 18.

Beginning in 2012, the Agency and the Union

attempted, but failed, to negotiate a successor

agreement prior to the expiration date of the CBA. See

GC Ex. 10 at 1. On January 24, 2014, Colonel Homer

Rogers, the Agency’s Human Resources Officer,

advised the Union that when the CBA expired on

February 24, the Agency intended “not to be bound by

certain permissive subjects of bargaining currently

included in our CBA.” Id. at 2. Rogers identified

several articles that would no longer apply, including

provisions

relating

union-management

partnership, details and temporary promotions, and

several JPEC policy letters, but he indicated that

other permissive subjects would continue in effect. He

continued: “The Agency intends to continue to honor

those agreements that are mandatory subjects of

bargaining to include the grievance process, seniority,

and dues withholding.” Id. Finally, the letter stated

that while union representatives would continue to be

granted a reasonable amount of official time, he

wished to renegotiate the provision granting the

Union President 100% official time. Id.

The Agency’s New Understanding of its Duty to

Bargain

In June 2015, Duncan Aukland became a Labor

Relations Specialist for the Adjutant General’s

Department. Tr. 268. Aukland’s “prime directive” was

to negotiate a new collective bargaining agreement

with the Union. Tr. 294. He stated in his March 2017

affidavit that although he was working to negotiate a

new agreement, he and others in management had

46a

come to believe that the expired CBA was “null and

void in its entirety.” GC Ex. 1(r), Aukland Affi. at 4.

Management also had “objections” to the notion that

the Adjutant General’s Department was bound by the

Statute, or that the FLRA had any jurisdiction over

the Adjutant General’s Department. Id. He reiterated

these views at the hearing. Tr. 282,299,332. Aukland

communicated his views on these matters to both

Union President Tanner and to his successor, but he

told them that the Agency would “waive [its]

jurisdictional and statutory arguments for the

duration” of a successor agreement, in an attempt to

bring the Union to the bargaining table. GC Ex. 1(r),

Aukland Affi. at 3; see also Tr. 299-300. But according

to Aukland, the Union was unwilling to bargain,

“because we were telling them that we had defenses to

jurisdiction.” Id at 3.

In March 2016, the Adjutant General and the

Union entered into a memorandum of understanding

settling a ULP charge concerning a performance

grievance. GC Ex. 11. In the MOU (signed by Tanner

for the Union), the Agency agreed to comply with the

grievance procedures (including arbitration) set forth

in Article 16 of the CBA until a successor agreement

was reached, “because grievance/arbitration is a

mandatory subject of bargaining under the Federal

Service Labor-Management Relations Statute.” Id.

The Agency also asserted that it “does not waive or

concede any jurisdictional arguments and may raise

other arguments concerning the merits of the

grievance before an arbitrator.” Id

In approximately August of 2016, Tanner retired

from the National Guard and notified the Agency by

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email that Mike Dohrmann would be the new Union

President.4 Tr. 324-25; see also GC Ex. 1(r), Aukland

Affi. at 4-5. During this same general time period,

Colonel William Giezie was taking over as the

Agency’s Director of Human Resources, and he was

instructed by the Adjutant General to do everything

he could to negotiate a new CBA with the Union. Tr.

149, 342-43. Initially, Dohrmann and Giezie

communicated regularly, and in August Dohrmann

sent an email to Giezie, outlining a variety of labormanagement issues he wanted to resolve. Tr. 348,

357-58. Colonel Giezie responded to Dohrmann’s

concerns in an email of his own, and he further

indicated his interest in resuming CBA negotiations,

but he didn’t get an immediate response. Tr. 348. In

early September, Colonel Giezie ran into Dohrmann

and reiterated that management wanted to resume

negotiations; Dohrmann replied that his workload at

that time was too busy, but that he would like to begin

negotiations at the beginning of 2017. See Tr. 349-50,

392.

On September 13, 2016, an arbitrator issued an

award finding that the Ohio National Guard violated

the CBA with respect to two employees’ temporary

details. GC Ex. 1(i) (Ex. 10 of GC MSJ at 22-23).

According to Aukland, the arbitrator rejected the

Agency’s argument that the CBA had expired and had

At the hearing, Aukland speculated that Tanner may have

retired as early as December 2015 (Tr. 324-25), but that seems to

be rebutted by Tanner’s signature on the March 2016 settlement

agreement (GC Ex. 11) and by Aukland’s own, more precise

account in his March 2017 affidavit. GC Ex 1(r), Aukland Affi. at

4-5.

48a

no effect, because the Agency had not previously

notified the Union that it had expired. GC Ex. 1(r),

Aukland Aff. at 4. The Agency saw the arbitrator’s

finding, in Aukland’s words, “as an invitation to

inform the Union that the CBA is null and void in its

entirety, which we did on September 20, 2016.”5 Id In

this regard, Colonel Giezie, in consultation with

Aukland, wrote a letter to the Union, addressed to

Dohrmann and dated September 19, along with a

cover letter signed by Aukland on September 20. Tr.

314; Resp. Exs. 3 & 4. In the letter, Colonel Giezie

wrote:

The Agency no longer recognizes the existence of

any portion of the former Collective Bargaining

Agreement (CBA). As has been previously stated,

the Agency is willing to waive its jurisdictional

defenses only in and for the duration of an

acceptable new CBA. Until a new CBA is in effect,

the Agency will continue to assert those

jurisdictional defenses to the Federal Services

Labor Management Relations Act.

It remains the Agency’s hope that we can proceed

to discuss the scope and scheduling of; and

participation in, collective bargaining sessions. If

the Union will not come to the table and seriously

5 Having read the arbitrator’s award in full, I see nothing there

that even suggests that the Agency could repudiate the CBA once

it so notified the Union. Ex. 10 of GC Ex. 1(i). But for purposes of

this case, it doesn’t matter whether the Agency interpreted the

arbitrator’s decision correctly or not; what is relevant is that the

Agency’s subsequent actions were at least partly based on this

interpretation.

49a

negotiate, the Agency reserves the right to pursue

other remedies....

Resp. Ex. 4. Although the Agency had difficulty

serving this letter on the Union, Giezie acknowledged

at the hearing that it was reasonable to expect that

his September 19 letter would be communicated to

bargaining unit employees. Tr. 413.

Almost immediately after sending the September

19 letter, Colonel Giezie (again in consultation with

Aukland) wrote a memo dated September 28, which

was distributed to a wide range of people in the Ohio

Army and Air National Guard. GC Ex. 2; see Tr. 28182. The memo read:

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT:

(CBA)

Collective

Bargaining

Agreement

1. No Collective Bargaining Agreement

(CBA). The Ohio National Guard has

informed Local 3970, American Federation

of Government Employees, that the Ohio

National Guard is not bound by any

provision of the CBA between the parties

that expired in 2014.

2. Federal Services Labor Management

Relations Act (FSLMRA), 5 USC

Chapter 71. The Ohio National Guard has

also communicated to Local 3970 that it

questions the applicability to National

Guard Technicians of the statutes in the

FSLMRA that have historically underlain

the collective bargaining relationship

between Local 3970 and the Ohio National

50a

Guard. The details of this jurisdictional

dispute are unimportant here; but until this

dispute is resolved in a satisfactory, new

CBA or by some other means, the Ohio

National Guard does not consider itself

obligated to abide by the FSLMRA.

3. Guidance. Pending a new CBA or some

definitive determination that the FSLMRA

applies to the Ohio National Guard, the

interim guidance to supervisors for

management of their National Guard

Technician workforce is as follows with the

understanding that any requirements of the

following publication which are dictated

either by the expired CBA or by the

FSLMRA may be waived at the option of the

Human Resource Office (HRO), on behalf of

The Adjutant General.

a. Hiring will continue IAW Technician

Personnel Regulation (TPR) 430 and the

Ohio National Guard’s Merit System

Promotion Plan.

b. Compatibility, a statutory requirement,

will continue to be governed by TPR 303.

c. Realignment,

Reorganization

Reductions in Force will be governed by

TPR 351.

d. Awards will be governed by TPR 451 and

ONG Policy.

e. Classification will be governed by TPRs

500 and 511.

51a

f. Absence and Leave will be governed by

TPR 630.

g. Non-adverse actions will be governed by

TPR 715.

h. Disciplinary and adverse actions will be

governed by TPR 752 and ONG TPR 752.

i. Pending the creation of a State

Alternative Dispute Resolution Plan ...

grievances will be forwarded to the HRO

for ad hoc resolution.

Not all-inclusive. The guidance

documents mentioned in para 3 above, are

not intended to be all-inclusive; but to be

representative of matters formerly the

subject of the CBA.

5. Questions. Questions should be directed to

Duncan

Aukland,

Labor

Relations

Specialist, at 614-336-7475.

FOR THE ADJUTANT GENERAL:

WILLIAM K. GIEZIE, PE, Col., OHANG

Director of Human Resources

DISTRIBUTION:

A, D

GC Ex. 2. According to Aukland, the September 28

memo was written to resolve “confusion among our

employees and supervisors over the status of where

we are in labor relations, and it was thought that some

communication to the field was appropriate to try to

clarify where we were.” Tr. 282. Colonel Giezie

testified that he intended the memo to be “an internal

52a

management document[]” going only to managers and

supervisors. Tr. 368. But it ended up being sent to

hundreds of bargaining unit employees, as well as

supervisors. Tr. 368; see GC Exs. 18, 19 & 22.

Witnesses at the hearing testified how this happened.

On September 28, 2016, Colonel Giezie asked

Pamela Tabler, his human resources assistant, to

send the memo by email to all supervisors of

technicians in the Ohio National Guard. Tr. 132, 36970. Tabler told Giezie that she didn’t have a

distribution list for supervisors, but that she always

sent things out to the “A” and “D” distribution lists,

and Colonel Giezie replied, “okay.” Tr. 142. Colonel

Giezie acknowledged that he permitted Tabler to send

the memo to the “A” and “D” distribution lists even

though he was not familiar with the make-up of the

“A” distribution list. Tr. 370.

Tabler testified that she regularly uses the “A” and

“D” distribution lists to distribute documents that go

out broadly to everyone within the Ohio National

Guard. Tr. 138. The “A” distribution list goes to most

of the Ohio Army National Guard, including

bargaining unit employees, while the “D” distribution

list goes mostly to managers and supervisors in the

Ohio Air National Guard. Tabler noted, though, that

recipients on the “D” distribution list “push it [email]

out to the base for us.” Tr. 135, 137-38. Tabler further

testified, “[W]hen I send things out, I send out ‘a’ and

‘d,’ because that’s the Army and the Air, and that’s

who we send all of our correspondence to.” Tr. 135. As

a result, Tabler sent the September 28 memo (GC Ex.

2) as an attachment to a blank cover memo, to

53a

recipients on the “A” and “D” distribution lists at 9:31

a.m. on September 28. GC Ex. 17; see Tr. 134.

Later that same day, at 3:14 p.m., Tabler sent an

email letter written by Colonel Giezie with the subject

heading “Operations without a Collective Bargaining

Agreement (CBA).” GC Ex. 20. This email, which

included the September 28 memo as an attachment,

was also sent to the “A” and “D” distribution lists, i.e.,

the same people who received the September 28

memo. Tr. 139. In this second document, Colonel

Giezie wrote:

The Collective Bargaining Agreement (CBA)

between the Adjutant General of Ohio and the

AFGE, Local 3970 expired in January 2014. At

that time, the agency was working with the union

to negotiate a new CBA which was progressing in

a positive manner. Therefore, the agency elected to

keep certain articles of the old CBA in effect until

a new CBA could be negotiated and agreed upon.

Since that time the negotiations for a new CBA

have essentially stopped. The HRO is currently

working with the union to get the process started

to negotiate a new CBA for the agency and we are

hopeful this will begin in the near future. However

in the interim, the union has been notified that the

agency no longer recognizes any portion of the

previously existing CBA. Therefore, the attached

guidance is provided to agency supervisors on how

to operate without a CBA until a new CBA can be

negotiated and finalized....

GC Ex. 20.

As it turned out, 284 of the 2,190 people on the “A”

distribution list receiving the September 28 memo,

54a

and 2 of the 84 people on the “D” distribution list

receiving the September 28 memo, were bargaining

unit employees.6 At the hearing, Colonel Giezie

accepted the likelihood that bargaining unit

employees received the memo (Tr. 154-55), although

he testified that he did not know it had been sent to

bargaining unit employees until he was so advised, in

April 2017, by counsel for the GC. Tr. 411. Aukland

similarly testified that the September 28 memo was

supposed to be sent only to supervisory personnel,

although that did not turn out to be the case. Tr. 335.

The Impact of the September 28 Memo

Roberta Craigo, a dual status technician in the

bargaining unit and a Union steward since 2006,

received the September 28 memo by virtue of being on

the “A” distribution list. Tr. 122-25. She testified that

she understood the memo to mean that “there was

basically no Union anymore and we didn’t have a

collective bargaining agreement.” Tr. 127. Craigo also

forwarded the memo to Union President Dohrmann

and to Vice President Charles Higginbotham. Tr. 9093, 128-29. Higginbotham said he understood

management to be saying in the memo “that they were

no longer going to be dealing with the Union. They

6 These numbers were hand-counted by comparing GC Exhibit 22

with GC Exhibits 18 and 19. GC Exhibit 22 lists all bargaining

unit employees, both Army and Air Force, as of September 28,

2016. Tr. 155. 284 of those employees were listed on GC Exhibit

18 as having received the September 28 memo from the “A” list,

and 2 of those employees were listed on GC Exhibit 19 as having

received the memo from the “D” list. While this methodology is

inherently susceptible to human error, I am confident that these

numbers are quite close, if not exact.

55a

didn’t have an agreement and didn’t have the need to

deal with us.” Tr. 92. Higginbotham added that the

Agency has not notified the Union that the September

28 memo has been rescinded. Tr. 93. In the wake of its

distribution, “a couple of’ bargaining unit employees

who received the September 28 memo asked

Higginbotham “what was going on, or if the Union was

still in existence or had been dissolved…” Tr. 94.

Higginbotham testified that no grievances had

been filed since the Sept. 28 memo, “[b]ecause

everyone felt that there was no longer a Union, there

was no - that we had just been shut down. There was

nothing going on.” Tr. 105. He added, “[W]hen they

said that there’s no longer a collective bargainingwe’re no longer recognizing 3970, you know, I felt that

it was higher than me at that point.” Tr. 106.

Nonetheless, a couple of employees in his unit made

him aware of problems they had, and Higginbotham

was able to resolve the issues informally with the

immediate supervisors, so that formal grievances did

not need to be filed. Tr. 105-07. With regard to

disciplinary actions, Higginbotham testified that

before the September 28 memo was issued, “it wasn’t

uncommon for a supervisor to call us if he had a

problem with an employee, to involve us during the

proceedings of disciplinary actions.” Tr. 95. But after

the September 28 memo, “it pretty much went quiet. I

didn’t get hardly any calls from anybody, other than

maybe an employee. That was it.” Tr. 96.

Dan Wayble, who was also a Union Vice President

until he became President in early 2017, first saw the

September 28 memo when he returned from activeduty deployment in late December 2016. Tr. 27-29. He

56a

understood it to mean that management had “left the

employees and our Union without a means to resolve

a conflict outside of the Agency itself.” Tr. 34. This

made him concerned that he no longer had protection

under the Statute. Tr. 34-35. Wayble understood the

memo’s reference to ad hoc resolution of grievances by

the HRO to mean that the Agency “would not

recognize our negotiated ... grievance process that we

had already been using,” including the use of binding

arbitration that could be used to appeal decisions of

the Adjutant General. Tr. 33, 37-38. Wayble testified

that in one instance, some employees came to him

with a problem in filling some vacant positions; when

Wayble asked why past practice was not being

followed, the selecting official told him “that

negotiating it with the Union, they weren’t doing that

anymore, they were relying on HRO’s guidance from

now on out.” Tr. 48-49. Nevertheless, Wayble was able

to work out a satisfactory solution directly with the

employees’ supervisors. Tr. 49.

Shortly after the September 28 memo was issued,

Higginbotham asked for official time from his

supervisor. Tr. 94. According to Higginbotham, his

supervisor called the Human Resources Office on the

speakerphone in front of him, and the person on the

other side of the line said that “official time wasn’t

being recognized at this time.” Tr. 95, 103. He testified

that he did not file a grievance about this, because “I

did not feel like a grievance would do us any good at

all.” Tr. 103-04.

Colonel Giezie denied that the Agency stopped

complying with the CBA after September 28. He

testified, “[W]e have addressed everything using the

57a

grievance process that was established in the expired

[CBA]. I have recommended that to all the supervisors

and that’s the procedures we have followed, if anybody

has been interested in filing one.” Tr. 383. Asked how

anyone reading the September 28 memo would

understand it to mean that the CBA grievance

procedure would be followed, Colonel Giezie

answered, “They don’t. When they come to me and ask

how [are] we going to resolve this, the answer is we’re

going to follow the grievance procedure in the [CBA].”

Tr. 384. Asked whether that included binding

arbitration, he stated, “We would be happy to do that.”

Id. He acknowledged, however, that he has not

communicated this to the Union or to bargaining unit

employees, nor has the Agency rescinded the

September 28 memo. Tr. 410-11. He further

acknowledged that no grievances had been filed since

September 28. Tr. 383.

In contrast to Colonel Giezie’s stated willingness to

continue following the CBA, Aukland testified

unconditionally that by virtue of the September 28

memo, the CBA was no longer in effect, and its

mandatory terms were no longer recognized. Tr. 282.

He said, “[W]e were going to operate under the

application of the Statute, and the Statute requires at

709(a) that there be some Army or Air Force

Regulation that mandates this process.”7 Aukland

elaborated on this in his March affidavit: “I do not

By “Statute,” Aukland was referring to the National Guard

Technicians Act of 1968, 32 U.S.C. §§ 709 et seq. (which I will

hereafter refer to as the Technicians Act), not the Federal Service

Labor-Management Relations Statute (which I refer to as the

Statute). See Tr. 282-83.

58a

view us as having a grievance procedure per se. We

have a willingness to entertain grievances, but we’re

not going to process them under the five-step process

under the expired CBA.” GC Ex. 1(r), Aukland Aff. at

8. Aukland further indicated that managers have not

stopped notifying the Union of proposed disciplinary

actions. Tr. 286. But he acknowledged that in issuing

the September 28 memo, the Agency changed

conditions of employment with respect to grievances

and arbitrations under the CBA. Id

With respect to official time, Aukland testified that

by issuing the September 28 memo, the Agency would

no longer comply with the CBA provision that entitled

the Union’s president to 100 percent official time, but

it would grant official time to Union representatives

“where it’s appropriate.” Tr. 285; see also Tr. 333-37.

He said the CBA provision for 100% official time was

“illegal,” as it violated the DoD FMR. Tr. 334. Aukland

acknowledged that the Statute permits agencies and

unions to negotiate reasonable provisions for official

time, but he countered, “[W]e had determined that

was not reasonable. We were no longer in partnership

with the Union…. There was no intent to have anyone

be on 100 percent official time. We could not get the

Union to bargain on official time, so we repudiated

that.” Tr. 334-35. But he further testified that he has

been asked to grant official time since September 28,

and he has granted it “where it was appropriate to

grant it,” under the DoD FMR. Tr. 285-86. Agreeing

with Aukland, Colonel Giezie testified: “I have

specifically identified [to supervisors] that we believe

Mr. Wayble, Mr. Reynolds, Mr. Higginbotham and Mr.

Rice to be officers of AFGE Local 3970 and that they

59a

are, as such, entitled to use official time for

representational functions” Tr. 379.

The Agency’s Attempts to Contact and Negotiate

with the Union Leadership

Between March 2016 and the hearing in August

2017, Local 3970 has undergone three transitions in

its presidency: from Tanner to Dohrmann to Gaven

Reynolds to Wayble. Dohrmann reached out to Agency

management in August 2016, around the time he took

office, and expressed his interest in resolving a variety

of pending issues. Tr. 348-50. The parties appeared to

be looking toward resuming CBA negotiations at the

start of 2017. Tr. 350. But problems seem to have

arisen (for both employees and management) when

Dohrmann relinquished his position with the Union,

sometime in the autumn of 2016.

The circumstances of Dohrmann’s departure were

never explained at the hearing, but both

Higginbotham and Craigo alluded to difficulties in

communicating with him after the Agency distributed

the September 28 memo. Tr. 94, 103, 125, 128. Craigo

forwarded a copy of the September 28 memo to

Dohrmann, and while Dohrmann forwarded it in turn

to an AFGE national representative and signed the

email as “President” of the Union, he didn’t respond to

Craigo. Tr. 125, 128; GC Ex. 16. Simultaneously,

management was also having difficulty in reaching

Dohrmann.

On September 20, 2016, Aukland mailed to

Dohrmann Colonel Giezie’s September 19 letter,

which notified the Union that the Agency “no longer

recognizes the existence” of the CBA and that it

disputed the Statute’s jurisdiction over the Agency.

60a

Resp. Exs. 3 & 4. He sent the letter by certified mail

and addressed it to the Union’s P.O. box, but repeated

attempts to deliver it, to two different addresses, were

unsuccessful. Tr. 315-24. The certified letter was

returned unclaimed, as was a second mailing to a

different address. Id.; Resp. Exs. 5, 6. This process

dragged on from September 20 to November 30, when

Aukland finally had Dohrmann’s commander handdeliver the letter to him at his workplace. Tr. 320-23,

351, 357-58; Resp. Ex. 7. At that time, Dohrmann told

his commander that he no longer had anything to do

with the Union and refused to accept the letter. Tr.

321,351; GC Ex. 1(r), Aukland Affi. at 5. The same

day, Dohrmann emailed Colonel Giezie that he was no

longer Union President, and that the Agency should

send Union correspondence to the AFGE regional

office in Indianapolis. Tr. 358-59. There is no evidence

that the Agency actually forwarded the September 19

letter to the AFGE.

According to Colonel Giezie, he next heard from the

Union just after New Year, 2017, when he received a

letter from the AFGE’s national office identifying

Gaven Reynolds as the new President of Local 3970.

Tr. 359. Rather than responding to Mr. Reynolds,

however, Aukland sent an email to AFGE National

Representative Chon Jung, at the AFGE’s

Indianapolis office, on January 10, 2017, questioning

the legitimacy of Reynolds’s selection as President and

asking for “further assurances of the bona fides of Mr.

Reynolds as President.” GC Ex. 3 at 1. Citing the

Union’s constitution, Aukland further asserted that

the AFGE national union had no authority to act on

behalf of Local 3970. Id. Notwithstanding this

61a

assertion, Aukland went on to address the status of

labor relations at the Agency:

It is the Agency’s position that the CBA has ceased

to be applicable to the Agency’s employees under 5

USC 7115(b)(1). Further support for the Agency’s

position i[s] found at... [the DoD FMR.] ...

Paragraph 110202 [s]tates that dues allotments

automatically terminate when the “(CBA) between

the Agency and the labor organization ceases to be

applicable to the employee.” Thus it is not only the

right but the duty of the Agency to terminate the

allotments, with no “additional requirement for

the employee to submit a cancellation form.” Para

110202.A.3.4.

Id. at 1-2. Responding to AFGE’s apparent claim that

the Agency was violating the rights of employees

under the Statute, Aukland denied that the Statute

applied to National Guard technicians or “that the

FLRA has some lawful authority over The Adjutant

General of Ohio.” Id. at 2. He concluded:

Finally, it is the Agency’s position that until there

is a CBA, no employee should be paying dues to

AFGE consistent with the DoDFMR. While the

Agency plans to start with those employees not

having SF 1187 on file, the Agency reserves the

right to terminate all union dues allotments until

there is a CBA. The Agency welcomes any

assistance AFGE can provide in obtaining SF

1187s from Ohio National Guard Technicians

desirous of having dues withheld from their pay[.]

Id.

62a

At the end of February or the beginning of March

2017, Wayble became the Union’s President.8 Tr. 55.

Wayble testified that he notified his local chain of

command in person that he was the Union President,

and that he informed state officials of this shortly

thereafter, by email. Tr. 55-59. Colonel Giezie testified

that he learned from the AFGE national office in

March 2017 that Wayble was the Union President.9

Tr. 363.

During the same period of transition in Union

leadership in early 2017, the Agency also sought to

implement two changes in personnel policies: a new

merit promotion plan and a new performance

appraisal system. Tr. 359-60. Development of the

merit promotion plan actually began in July 2016 with

internal meetings with managers, and Giezie testified

that once management was satisfied with the plan,

Aukland “reach[ed] out” to Reynolds in mid January

2017 to obtain the Union’s reaction. Tr. 360, 387-88.

However, Respondent offered into evidence no

documentation of its effort to notify the Union about

the plan, and its witnesses’ description of that effort is

ambiguous, contradictory, and generally not

credible.10 Aukland acknowledged that Reynolds was

8 Wayble said that the Union Executive Board selected him as

president without an election. Tr. 55-56. Higginbotham testified

that he and others were appointed to the Union’s executive board

because there was an “emergency situation” and that elections

would be held “as soon as we get everything straightened out,”

probably within a year. Tr. 102.

9 Agency counsel proffered that the Agency received this notice

on March 3, 2017. Tr. 59-60.

10 Aukland seems to have conflated his attempts to serve Giezie’s

September 19 letter on Dohrmann (Tr. 315-24) with his attempts

63a

attending a work-related school, out of state, during

the time he was trying to contact him. Tr. 330. With

regard to pursuing bargaining in general, I asked

Aukland whether he could have gone to the workplace

to talk face-to-face with Dohrmann, Reynolds, or

Wayble; he responded: “That’s about a 25-mile drive

each way, yes.” Tr. 331.

Wayble was asked whether management offered to

bargain over the new merit promotion plan. He

replied, “I can’t answer- I don’t have that answer, sir.”

Tr. 79. However, he did not become President until

early March, about two months after the Agency had

allegedly reached out to the Union regarding the plan.

The Respondent implemented the new merit

promotion plan on February 6, 2017, replacing the

plan adopted in 2014. GC Exs. 4, 21. Both the 2014

and the 2017 plans require that job announcements be

published on the USA Jobs website, but the old plan

provided that announcements generally would be

posted for thirty days, while the new plan provides

that announcements generally will be posted for

fifteen days. Compare GC Ex. 4 at 14 and GC Ex. 21

to serve notice of the merit promotion plan on Reynolds (Tr. 29091, 325-27). In describing the latter, Aukland said that

correspondence sent to Reynolds was “repeatedly returned,” and

he cited a letter he had sent to Reynolds in July 2017 that was

returned to him, unopened, two days before the hearing. Tr. 32627. These events occurred long after the Agency had already

begun dealing with Wayble as Union President, and several

months after the merit promotion plan had been implemented.

As a result, I do not credit Aukland’s testimony that he actually

attempted to notify the Union of the merit promotion plan or that

he offered to bargain over it.

64a

at 13. With respect to the area of consideration, the

new plan retains language from the old plan, stating:

“The area of consideration for each technician position

vacancy announcement will be determined by the

selecting official, subject to the approval of the HRO,

to ensure the receipt of sufficient numbers of qualified

candidates.” Compare GC Ex. 4 at 16 and GC Ex. 21

at 15. Wayble testified that under the old plan, the

area of consideration was “statewide to on-board

technicians[,]” but this assertion is not corroborated

by the documents in evidence. Wayble also testified

that when the new plan was implemented, Union

President Jeff Tanner filed numerous grievances

concerning positions advertised under the plan (Tr.

79-80), but this is difficult to credit, since Tanner had

retired long before 2017 and had long ceased to be

Union President. While it is possible that Wayble may

have meant to identify Reynolds as filing the

grievances, the lack of any documentation in evidence

makes it impossible to credit that possibility.

With regard to the selection process utilized in the

old and new merit promotion plans, Colonel Giezie

outlined significant differences in how applicants are

evaluated and scored. While the old plan only looked

at how an applicant performed in the interview,

without considering his or her past experience or

references, the new plan allows for the consideration

of many additional factors and reduces the influence

that any single member of the selection board can

have on the determination of a candidate’s score. Tr.

385-87.

In contrast to the lack of documentation of its

attempt to negotiate the revised merit promotion plan,

65a

the Respondent offered specific evidence regarding a

new performance appraisal system. On March 2, 2017,

Colonel Giezie sent Gaven Reynolds a memo offering

the Union an opportunity to bargain over the

implementation of a new appraisal program, with the

proposed plan attached. Resp. Ex. 9. Giezie noted that

his offer to bargain “in no way[] waives the

longstanding objections of The Adjutant General’s

Department to the applicability of the [Statute].to

Ohio National Guard Technicians.” Id. Similarly, the

Agency did not “concede any contractual rights under

the now-expired former Collective Bargaining

[Agreement]. This offer to bargain is solely in the

spirit of conciliation between the Department and

Local 3970.” Id. Colonel Giezie testified that he did not

get a response from the Union. Tr. 362. The Agency

prepared to implement the new plan on April 1, 2017,

but that has been suspended on orders from the

National Guard Bureau. Id.

On May 5, 2017, new Union President Wayble

contacted the Adjutant General and requested the

resumption of CBA negotiations. Colonel Giezie

responded to Wayble on May 9, accepting the Union’s

bargaining request, while adding certain conditions.

GC Ex. 28. In his memo, Giezie agreed to bargain only

with members of Local 3970, explicitly refusing to

meet with any officials of AFGE’s regional or national

offices or to allow them on State-owned property. He

also asked that Wayble provide him with a list of the

Union’s officers and evidence that they are authorized

to act on the Union’s behalf. Id. at 1-2. Finally, he

enclosed copies of seven of the ULP charges filed by

the Respondent against the Union, and he concluded:

“If the FLRA’s complaint is dismissed, this

66a

Department is willing to dismiss its ULP charges and

open negotiations provided the other conditions

outlined above are met.” Id. at 2.

The Agency’s Termination of Union Dues Deductions

Colonel John Dernberger is the United States

Property and Fiscal Officer for Ohio, a position within

the National Guard Bureau. Tr. 167, 271-72. Colonel

Dernberger is responsible for issuing federal funds

and property to the Ohio National Guard and for

overseeing assistants who manage payroll functions.

Tr. 169. He is not within the chain of command of the

Ohio Adjutant General. Tr. 170. As part of his ongoing

responsibility to make the Agency’s financial records

“audit ready,” his office discovered in 2014 or 2015

that “there were missing [SF] 1187s in the files.” Tr.

175, 183-84. That is, the Agency had been withholding

union dues for a large number of bargaining unit

employees, but the Agency had SF 1187s, authorizing

those deductions, for only some of the employees.

Nonetheless, the Agency continued to deduct dues

from those employees for an additional two or three

years, while management officials decided what to do

to correct the problem. Tr. 175-76, 183-84. Asked to

explain why the Agency permitted this, Colonel

Demberger testified that management was “working

on this for a long time to get this corrected,” and that

“it’s been an ongoing process.” Tr. 183-84. It was not

initially known how many 1187s were missing. Tr.

353.

In the fall of 2016, the Agency’s Human Resources

Office-primarily Colonel Giezie and Aukland - worked

with Colonel Demberger to develop a policy for dealing

with the missing 1187s. Tr. 184-85, 189-90. Colonel

67a

Demberger’s office conducted an audit to determine

exactly how many bargaining unit employees were

having union dues deducted from their pay without an

SF 1187 on file. Captain (now Major) Daryl Scott, a

Technician Branch Manager in the HRO, assisted in

these efforts. Among other things, Scott created a

spreadsheet listing bargaining unit employees whose

union dues were being deducted from their pay. Tr.

216, 239-40; GC Ex. 26. Using that spreadsheet,

Demberger had local comptroller offices around the

state search their payroll files for SF 1187s for those

employees. Tr. 205, 371-72. They identified thirty to

forty Army technicians and forty to fifty Air Force

technicians for whom the Agency had no SF 1187 on

file. Tr. 227.

The Agency’s witnesses were at a loss to explain

why so many SF 1187s had disappeared. Tr. 193,257.

Scott stated that the loss of so many documents was

unprecedented. Tr. 256. While Colonel Demberger

could not say for sure what happened, he did have a

theory. “Speculating,” he testified, “there has been

rules in the past of 6 years 3 months is your normal

record retention policy. Speculating, could during

normal reviews anything older than 6 years 3 months

be removed? And those items might have been pulled.”

Tr. 198. Colonel Giezie similarly testified that while

he was not sure how long SF 1187s were retained, it

was standard for the Agency to retain documents for

six years and three months. Tr. 402.

Agency officials believed that they could not

continue to deduct dues from a bargaining unit

employee whose SF 1187 was not on file. In this

regard, Colonel Demberger testified that if an

68a

employee is having union dues deducted, “there

should be the supporting 1187 in that file to do that.

If ... one of those actions that’s on a payroll document

does not have the supporting document, then that’s

basically a glitch and says, no, that’s a failure of the

audit and it needs to be corrected.” Tr. 177-78. He

cited Department of Defense Financial Management

Regulation, Volume 8, Chapter 11 (DoD FMR), in

support of his position. Tr. 179-80; see Resp. Ex. 1.

Colonel Giezie agreed, stating that under the DoD

FMR, the Agency is liable for any unauthorized

deductions that are made from an employee’s salary.

Tr. 377.

To address their concerns regarding the missing

SF 1187s, Colonel Giezie, Aukland, and Colonel

Dernberger decided that a new policy was needed for

the deduction of union dues. Tr. 175-76. The policy

provided that if an employee was having union dues

deducted and did not have an 1187 on file, then the

Agency would contact the employee and give him or

her sixty days to submit a copy of the original SF 1187

(if he had one) or to submit a new one. If the employee

failed to submit a new or original 1187 form, the

Agency would terminate the employee’s dues

deductions. Tr. 287; Resp. Ex. 8.

Colonel Giezie testified that he sent Dohrmann

(whom he believed to be the Union President at that

time) an email in “[e]arly October [2016], because we

gave him over 30 days of sending it out before we acted

....” Tr. 392. Giezie said he wanted to alert the Union

that the Agency was “having issues with

auditability[]” and that they planned to implement

this new policy to address those issues. Tr. 352.

69a

Further, Giezie testified that he provided Dohrmann

a copy of the proposed policy and offered to meet with

him to bargain over the impact and implementation of

the change. Tr. 351. He added that he reached out to

Dohrmann because “union dues collection policy or

procedures are what I understand to be a mandatory

term of negotiation for the collective bargaining

agreement.” Tr. 354. Colonel Giezie did not hear back

from Dohrmann until November 30, when Dohrmann

told him he no longer represented the Union. Tr.

354,358.

On November 14, 2016, Colonel Giezie sent

another letter to Dohrmann, informing him that the

Agency would be implementing its new policy. The

letter stated:

The Agency has audited the allotments of dues

from [Ohio Army National Guard] Technicians to

Local 3970. For unknown reasons ... in many cases,

there is no SF 1187 on record to show when the

dues allotment was requested. Without a record of

a request for an allotment, the Agency can’t

continue indefinitely to withhold union dues from

an employee’s pay. Accordingly, I would be

appreciative if any documentation Local 3970 has

on file for those whose allotment documentation is

lacking could be copied and furnished to the

Agency within 60 days. I have also asked each

Technician for whom there is no SF 1187 on file to

request a new allotment; but if you have ·

information on file that you will provide, this

would alleviate the need for new allotments to be

executed. An audit of [Ohio Air National Guard]

70a

Technicians paying dues to Local 3970 will follow

soon.

I want to make it clear that the Agency is simply

trying to clean up its payroll records and not to

discourage union dues-paying. But we simply

cannot continue to withhold dues from the pay of

any employee whose SF 1187 is unavailable in

Agency files.

Finally, you were asked to advise me of any Impact

and Implementation concerns about a previous

draft of the Union Dues Allotment Policy. Since

you have not communicated any such concerns in

a timely manner, you will find enclosed a new

Agency policy for Union Dues Allotments. If you

have any questions or concerns, please contact Mr.

Aukland at your earliest convenience.

Resp. Ex. 8 at 7 (Fourth Attach.).

A memorandum from Colonel Giezie explaining

the new policy, which was dated November 15, 2016,

was attached to the November 14 letter to Dohrmann.

As relevant here, the policy states: “If no SF 1187 or

other record is available ... and no new SF 1187 is

initiated, the dues allotment will be terminated for

lack of documentation [no later than] 30 days after the

lack of documentation is determined.” Id at 3. Also

attached were blank, sample copies of an SF 1187 and

an SF 1188; both forms provide a space for employees

to list their Social Security number or employee

identification number. Id. at 4-5. The forms advise

that providing an employee’s Social Security number

is “voluntary,” but “failure to provide it, when it is

used as the employee identification number, may

mean that payroll deductions cannot be processed.” Id

71a

Attached as well was a sample of a memo, which an

employee desiring union dues to be deducted was

supposed to send to Local 3970, releasing his Social

Security number in order to effectuate that action. Id

at 6.

Also on November 14, 2016, the Agency sent out

the first group of letters (SF 1187 letters) to

bargaining unit employees who had authorized union

dues to be deducted from their pay but whose SF 1187

was missing (or whose dues withholding anniversary

date was absent from the DCPS system). GC Ex. 13;

Tr. 39-40, 222-23, 247-48; see also GC Exs. 1(b) & 1(d).

The majority of bargaining unit employees who had

Union dues deducted from their pay lacked an SF

1187 on file, so a majority of dues-paying members of

the bargaining unit received an SF 1187 letter (either

on November 14 or in subsequent mailings). GC Exs.

1(b) & 1(d); Tr. 222.

The SF 1187 letters, which were prepared by

Captain Scott and signed by Colonel Giezie, stated, in

pertinent part:

2. Union dues withheld. Recently, an audit

has been completed of Ohio ... National

Guard Technicians whose pay records reflect

that union dues are being withheld from

their pay. Technician pay records reflect that

you are such an employee·.

3. Lack of documentation. Technician pay

records do not reflect an authorization to

withhold union dues from your pay as

required by [the] DoD FMR … Therefore, the

agency lacks the authority to withhold union

dues from your technician pay in the absence

72a

of this documentation. This notification is

not a suggestion that you should continue or

discontinue paying union dues but, if you

want to continue to have dues withheld from

your pay, you must either provide a copy of

the original SF 1187 or AFGE 1187, or you

must execute an authorization for dues

withholding on a new SF 1187, Request for

Payroll Deductions for Labor Organization

Dues.

4. Time limit. Your current dues withholding

will cease unless a copy of the original SF

1187 or a newly-executed SF 1187 is received

in the Human Resource Office within 60

days of the date of this memorandum.

GC Ex. 13.

Captain Scott testified that if a bargaining unit

employee failed to provide either the original SF 1187

or a new SF 1187 within sixty days, then he signed an

SF 1188, with his own signature, on behalf of the

employee and sent the SF 1188 to a payroll office to be

processed, terminating the deduction of union dues

from the employee’s pay. Tr. 178-79, 231-32; GC Ex.

23. GC Exhibit 24 shows that in September 2016, the

Agency deducted union dues from 126 technicians,

while in June 2017 it deducted dues from only thirtyseven technicians. Based on this information,

corroborated by Captain Scott’s rough estimate (Tr.

227), I find that the Agency terminated dues

deductions for at least eighty-nine bargaining unit

employees during that time period.

Scott received responses to the SF 1187 letters

from about five employees. Tr. 228. “[I]t was telephone

73a

calls asking what the letter meant and what they

needed to do, and various other questions,” he

testified. Id. One of those employees was Roberta

Craigo, who emailed a new SF 1187 to Captain Scott

on November 30. Resp. Ex. 2. (This was the same day

that Dohrmann advised the Agency that he was no

longer Union President, and that the Agency should

send Union-related correspondence to the AFGE

regional office.) Scott responded to Craigo the next

day, advising her that the SF 1187 was incomplete

because, among other things, it lacked a signature

from a Union official authorized to certify the dues

amount. Id. Scott told her that he would certify the

form once Craigo supplied the necessary information.

Id. Over a month later, on January 10, 2017, Scott

followed up with Craigo, advising her that he had

learned that Gaven-Reynolds was the new President

of Local 3970, and that Craigo should get Reynolds to

sign her SF 1187. Id. (January 10 was the same date

that Aukland had sent a letter to the AFGE regional

office, advising AFGE that the Agency needed proof

that Reynolds was authorized to represent Local 3970.

GC Ex. 3.) Scott did not hear back from Craigo, nor did

he follow up on the matter with her, and on January

13 (exactly 60 days after the first SF 1187 letters were

mailed) he signed his name in the “Signature of

Employee” block of an SF 1188, terminating Craigo’s

(as well as 32 other employees’) dues deductions. Tr.

229-30; GC Ex. 23 at 8. Asked why he did not give

Craigo the benefit of the doubt until she furnished the

missing information, Scott testified that Craigo’s SF

1187 was incomplete, and that “[s]he has some

personal responsibility to make sure that she touches

base with the Union and the Union knows that she’s

74a

going to be contributing, and they have to do their

part.” Tr. 252. Scott admitted, however, that the

absence of a signature from the Union president did

not bar him from accepting Craigo’s SF 1187. Tr. 265.

On December 19, 2016, Colonel Giezie sent an SF

1187 letter to Wayble, who was deployed overseas at

that time. Tr. 39; GC Ex. 13. When Wayble returned

from deployment to his civilian position in late

December or early January, he learned that the

Agency was going to terminate his dues deductions

unless he provided a new or original copy of his SF

1187. Tr. 39, 68-69. Wayble testified that he raised

concerns about the SF 1187 issue with his supervisors

and his commander, telling them that he “felt like it

was a target against me as a union member.” Tr. 71.

He also testified that when employees contacted him

to discuss the matter, the employees told him that

they were “afraid” to submit new 1187s, because the

Agency’s letter “specifically stated ... that an audit

was conducted only on the technicians who paid dues,

and they were afraid ... they were singled out as duespaying members[.]” Tr. 44.

Wayble had no desire to have his union dues

deductions terminated, but he refused to submit a new

SF 1187. Noting that he had originally submitted an

1187 in 2003, he explained, “I already had filled one

out. I had dues withheld prior to this date for years.”

Tr. 38-40, 66. He further stated that he did not submit

a new or original SF 1187 because he did not want to

“legitimize a new process or a new form.” Tr. 73. In

February 2017, the Agency terminated the dues

deductions for Wayble and forty-four other

technicians without their consent. Compare GC Ex. 23

75a

to GC Exs. 24 & 26. The Agency also terminated the

dues deductions for John Williamson, a bargaining

unit member, in March 2017, even though the Agency

had his SF 1187 on file. Compare GC Ex. 23 at 36 to

GC Ex. 26 at 5.

In December 2016, the Agency sent an SF 1187

letter to Shawn Rice, a dual-status technician in the

bargaining unit who served as a Union Vice President

for five years before becoming its Secretary-Treasurer

in March 2017. Tr. 110-11, 117; GC Ex. 24, GC Ex. 26.

Although Rice submitted an SF 1187 in 2005 and had

never sought to rescind it, he did not submit a new or

original SF 1187 in response to the Agency’s SF 1187

letter. Tr. 117-20. Asked why, Rice testified, “I talked

it over with Mr. Wayble and he stated that this was a

bullying tactic that was coming from HR to try to

union bust. So he said that the grievance was already

filed, so it wasn’t in our hands essentially, it was

pretty much up to the national organizer and [the

FLRA].” Tr. 118. Rice further stated that he believed

the Agency would not have honored a new SF 1187 if

he had submitted one. Tr. 114-15.

On February 23, 2017 (approximately sixty days

after receiving his SF 1187 letter), Captain Scott

signed an SF 1188 terminating Rice’s union dues

deductions. GC Ex. 5. Rice was notified by email the

next day that his dues deductions would be

terminated effective March 5. GC Ex. 15. The next

work day, Rice responded, objecting that he had not

signed the SF 1188 that had been issued in his name,

and insisting that “[d]ues should not be cancelled

unless the employee has signed the ... 1188.” Id.

Aukland responded to Rice on March 1, stating:

76a

1. No SF 1187, no Allotment. Financial

records were rigorously examined and you ...

did not have the authorizing document, SF

1187, on file. According to the memo you

received, you were given 60 days in which to

submit a SF 1187; yet you did not do so. Since

your dues allotments were un-auditable, it

was terminated per the memo you received.

2. DoD Financial Management Regulation

(DoDFMR) on dues cessation. This

regulation covers how dues allotments are to

work. The DoDFMR amplifies the statute,

stating that dues allotments. must be

terminated by the agency when the

Collective Bargaining Agreement (CBA)

“ceases to be applicable” to the employee. It

is the Agency’s view that the now-expired

CBA cannot be applicable to an employee

who does not have SF 1187 on file. For this

reason, your dues allotment was terminated.

Also, according to the DoDFMR, the dues

allotment must be terminated “with no

additional requirement for the employee to

submit a cancellation form.” Thus you did

not have to sign the SF 118[8] as you say.

3. New SF 1187. It is your right to submit a

SF 1187 at any time. However, I must advise

you that the above-cited language, from the

DoDFMR, calls into question whether

members of a union, not having a contract,

may have dues withheld from their pay.

Thus, since I am not a policy maker, I can’t

77a

say whether the Agency will honor a new SF

1187 without a new CBA.

4. Grievance. You should also understand

that under former Union leadership, Local

3970, refused to come to the table to

negotiate a new CBA unless the Agency

waived legally-valid defenses just to get the

Union to the negotiating table. The Agency

rightly refused this demand and countered

with an agreement to waive those defenses

in a CBA for the duration of the CBA and no

longer. The Union never budged, instead

choosing to arbitrate a management directed

reassignment. Although, the Arbitrator did

not agree that the entire contract had

expired ... he invited the Agency to tell the

Union the entire contract had expired. The

Agency has done so. The entire contract is a

nullity, including the contractual grievance

process, because it has expired. You may, if

you wish, file a grievance; but the process

used will be the process deemed appropriate

by the HRO Director or his designee, since

your grievance is apparently against him.

GC Ex. 6 at 1-2.

On April 4, 2017, Colonel Giezie sent a form letter

(the April 4 letters) to at least forty-eight bargaining

unit employees. GC Exs. 8 & 14. Forty-one of those

employees (including Higginbotham) had SF 1187’s on

file and continued to have union dues deducted from

78a

their pay.11 Compare the names on GC Exhibits 8 &

14 with the information regarding those employees on

GC Exhibits 24 & 26; Tr. 98. In these letters, Colonel

Giezie wrote:

1. I am advising you that pursuant to [the DoD

FMR], The Adjutant General will

recommend the termination of your Union

Dues Allotment by the Defense Finance and

Accounting Service (DFAS) because there is

no collective bargaining agreement with

AFGE Local 3970. If DFAS accepts this

recommendation then your dues deductions

will terminate 60 days from the date of this

memorandum.

2. The Adjutant General has no intention of

preventing you from paying Union dues; but

Three bargaining unit employees (Jeffrey Blazer, Brian

Hennig, and Shawn Rice) received April 4 letters (see GC Ex. 8)

but did not have SF 1187s on file and had already had their

Union dues deductions terminated (see GC Ex. 23); see also data

regarding these employees on GC Exhibits 24 & 26. Four

employees who received April 4 letters (Keven Eberts, Brandon

Harris, Michael Harris, and Ricky Hutchinson} had SF 1187s on

file, but the Agency stopped deducting their union dues in May

of 2017. See GC Ex. 26, which shows that dues were deducted for

these employees from September 2016 through April 2017, but

not thereafter. According to GC Exhibit 25, one of these four

employees (Michael Harris) had submitted an SF 1188 to

terminate dues deductions, but not the other three. Four other

bargaining unit employees (Scotty England, Richard Ford, Jr.,

George Megimose, and Cara Rothe) received April 4 letters (GC

Ex. 8), but they were not on the list of bargaining unit employees

(GC Ex. 22), nor were they on the list of employees whose dues

were deducted between September 2016 and July 2017 (GC Ex.

24).

79a

cannot lawfully ask that they be withheld

from your pay without a collective

bargaining agreement. If you wish to

continue to pay dues to AFGE Local 3970,

please either pay your dues to the Local by

check; or set up an electronic fund transfer

from your bank account.

GC Ex. 8.

Colonel Demberger and Colonel Giezie both

acknowledged that if an employee’s union dues were

being deducted from his pay, it is likely the employee

had previously submitted an SF 1187 to initiate those

deductions, though Giezie added that he knew of

instances where deductions had been made without

authorization. Tr. 189,403. Demberger also stated

that it was the Agency, rather than the employee, who

is responsible for maintaining the SF 1187s in its files.

Tr. 186. Asked whether the Agency would act

similarly with respect to other types of missing

documents, such as documents pertaining to health

insurance, Colonel Demberger testified, “I’m going to

say I don’t know….” Tr. 214-15. Aukland also affirmed

that the Agency is responsible for maintaining SF

1187s. Tr. 303; He acknowledged that while

Paragraph 110202 of the DoD FMR states that an SF

1187 must be submitted to initiate dues deductions, it

does not state that SF 1187s must be maintained. Id.;