United States Court of Appeals
For the First Circuit
No. 00-1417
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3936, AFL-CIO,
Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent.
ON PETITION FOR REVIEW OF A DECISION AND ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Stuart A. Kirsch, with whom Mark D. Roth, American
Federation of Government Employees, AFL-CIO, was on brief for
petitioner.
Judith A. Hagley, with whom William R. Tobey, and David M.
Smith, Federal Labor Relations Authority, were on brief for
respondent.
Juan A. Lopez-Conway and Garcia & Fernández Law Offices on
brief for the Commonwealth of Puerto Rico, amicus curiae.
February 6, 2001
BOWNES, Senior Circuit Judge. Respondent Federal Labor
Relations Authority ("the Authority") issued a final decision
and order holding that the Puerto Rico Air National Guard ("the
Guard") committed unfair labor practices in violation of the
Federal Service Labor-Management Relations Statute, 5 U.S.C.
§§ 7101-7135 (1994 & Supp. 1998). P.R. Air Nat'l Guard 156th
Airlift Wing and Am. Fed'n Gov't Employees, Local 3936, 56
F.L.R.A. 174 (2000). The Authority further held, however, that
the National Guard Technicians Act of 1968, 32 U.S.C. § 709
(West Supp. 2000) ("Technicians Act"), precluded it from
reviewing the Guard's alleged retaliatory termination of a union
member. Petitioner American Federation of Government Employees,
Local 3926 ("the Union") challenges the ruling as to the
retaliatory termination. We affirm.
I. Background
The Union is the exclusive representative of certain
"dual-status" technicians employed by the Guard. These
technicians are federal civilian employees who, as a condition
of their employment, must become and remain military members of
the state National Guard unit in which they are employed. 32
U.S.C. § 709.
In late November, 1998, the Union planned to conduct
an informational picket concerning working conditions at the
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Guard. Upon learning of the Union's intention, the Assistant
Adjutant General advised Pedro Romero, the local union
president, not to picket on the access road leading to the
Guard's main gate. The Assistant Adjutant General also warned
that the picketing might be photographed and that the picketers
should wear bags or Halloween masks to cover their faces. On
December 8, 1998, approximately twenty-five off-duty technicians
picketed in an area designated by the Guard.
The following month, the Guard placed the picketing
technicians on non-duty status and suspended their security
clearances. The Authority’s General Counsel initiated an unfair
labor practice proceeding against the Guard under section
7116(a)(1) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 ("the Labor-Management Act")
(1994 & Supp. 1998). The complaint alleged that the Guard
interfered with bargaining unit employees’ right to picket by
ordering the employees not to engage in picketing on the Guard’s
property, placing them on non-duty status, and suspending their
security clearances.
Effective March 9, 1999, the Guard discharged Romero
from his military position, then terminated his technician
employment because he was no longer a Guard member. In
response, the General Counsel amended the complaint to allege
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that the termination was retaliatory and violated the
Labor-Management Act.
The Guard moved to dismiss the case, contending that
the Authority lacks subject matter jurisdiction. The
administrative law judge denied the motion. Because the Guard
failed to participate in the pre-hearing discovery required by
the Authority’s regulations, the General Counsel moved for
sanctions. The ALJ granted the motion and prohibited the Guard
from introducing evidence, objecting to the General Counsel’s
evidence, or “raising any particular jurisdictional defense
pertaining to a particular remedy.” Ultimately, the ALJ held
that the Guard had violated the Labor-Management Act as charged
by interfering with the technicians’ right to picket, and
ordered the Guard to rescind the retaliatory personnel actions
taken against the technicians, including Romero's termination.
The Guard appealed the ALJ's decision to the Authority,
which largely affirmed the ALJ. The Authority determined,
however, that the ALJ’s sanctions could not legally prevent the
Authority from addressing issues regarding its jurisdiction.
The Authority further held that it was precluded from reviewing
Romero's termination because of section 709(f) of the
Technicians Act, which gives the state adjutants general
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(including the adjutant general of Puerto Rico) "final review"
of technician terminations. The Union appeals.1
1 The Guard did not appeal from any aspect of the Authority's
decision. The Commonwealth of Puerto Rico, in an amicus brief,
raises two issues in addition to those briefed by the parties:
that the Authority has no jurisdiction whatsoever over the
Guard; and that the Authority was collaterally estopped by a
federal district court decision in a related action, see note 3,
infra. Because these issues were raised for the first time on
appeal by an amicus, not by a party, we do not consider them.
See United States v. Sturm, Ruger & Co., 84 F.3d 1, 6 (1st Cir.
1996) (“an amicus cannot introduce a new argument into a case”);
McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 23 n.9 (1st Cir.
1991) (“To the extent that the amicus raises different grounds
in support of reversal,” a court should “decline to consider
those grounds”).
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II. Discussion
Our standard of review of Authority decisions is
“narrow.” Am. Fed'n of Gov't Employees, Local 2343 v. Fed.
Labor Relations Auth., 144 F.3d 85, 88 (D.C. Cir. 1998). The
Authority's actions shall be set aside only if they are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 7123(c), incorporating 5
U.S.C. § 706(2)(A).
On appeal, the Union first argues that the Authority
should not have considered the Technicians Act argument, because
the Guard did not raise the issue below and because the ALJ had
correctly prohibited the Guard from asserting jurisdictional
defenses. The Authority may, however, consider sua sponte
whether it has jurisdiction to decide the merits of a dispute.
United States Small Bus. Admin. and Wildberger, 51 F.L.R.A. 413,
423 n.9 (1995). We do not think, therefore, that the Authority
abused its discretion in considering jurisdictional defenses.
Accordingly, we proceed to the merits of the Authority's
decision that the Technicians Act precluded it from reviewing
Romero's termination. We first consider the frameworks of
the two statutes at issue. In 1968, Congress enacted the
Technicians Act to "accommodate the civilian interests of
[National Guard technicians] without intruding on the Guard's
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military and security needs, and to recognize by statute the
special employee status that had evolved informally," N.J. Air
Nat'l Guard v. Fed. Labor Relations Auth., 677 F.2d 276, 279 (3d
Cir. 1982). The Act sets forth several conditions of employment
concerning the discipline and discharge of Guard technicians
that remain within the final discretion of the adjutants general
of the state National Guards. Id.; 32 U.S.C. § 709(f). It
provides, in relevant part: " Notwithstanding any other provision
of law . . . a right of appeal which may exist with respect to
[separation or discharge from employment] shall not extend
beyond the adjutant general of the jurisdiction concerned." 32
U.S.C. § 709(f) (emphasis added).
The other statute at issue is the Labor-Management Act,
a comprehensive legislative scheme regulating the organizational
rights of federal employees. It "embodies a statutory scheme
. . . for the establishment of a law of labor-management
relations for the federal public service analogous to that of
the National Labor Relations Act in the private sector." Dep't
of Navy v. Fed. Labor Relations Auth., 815 F.2d 797, 798 (1st
Cir. 1987) (internal citations and quotation marks omitted). It
creates an administrative agency, the Authority, to administer
the Act in a manner similar to the National Labor Relations
Board. Id.; 5 U.S.C. §§ 7104, 7105. As in private industry,
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the Act expressly protects the rights of federal employees "to
form, join, or assist any labor organization, or to refrain from
any such activity," id. § 7102, and causes certain actions by
executive agencies (or labor organizations) to be deemed unfair
labor practices, id. § 7116, against which the Authority may
take appropriate administrative or judicial action, id. §
7123(b). Dep't of Navy, 815 F.2d at 798-99.
We agree with the Authority that the plain language of
section 709(f)(4) of the Technicians Act categorically precludes
review of technician terminations under the Labor-Management
Act.2 A “clearer statement” than the Technicians Act’s
“notwithstanding any other provision of law” language “is
difficult to imagine.” N.J. Air Nat'l Guard, 677 F.2d at 283.
This “preemptive language is powerful evidence that Congress did
not intend any other, more general, legislation, whenever
enacted, to qualify the authority of the state adjutants general
as set out in the Technicians Act.” Id.
The Authority decided this issue squarely in Ill. Nat’l
Guard and Ill. Air Chapter 34, Ass'n Civilian Technicians, Inc.,
19 F.L.R.A. 101, 105 (1995), aff’d, Ill. Air Chapter 34, Ass'n
2
Petitioners also complain that the Authority erred in
failing to address the terminations of twenty-five other
technicians, which took place after the ALJ ruled. For the same
reasons that Romero's termination may not be reviewed, nor may
those terminations.
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Civilian Technicians, Inc. v. Fed. Labor Relations Auth.,
No. 85-1579 (D.C. Cir. Oct. 23, 1986), holding that the
Authority could not review in an unfair labor practice
proceeding an allegation that a technician had been terminated
for exercising rights protected by the Labor-Management Act.
The Authority looked to the plain language of section 709,
noting that Congress had emphasized that the adjutant general
should have final authority over adverse personnel actions
against technicians, regardless of what other laws provided.
Id.
Other circuits have considered the intersection of the
Labor-Management Act with the Technicians Act, although not in
the specific context of unfair labor practices. In N.J. Air
Nat'l Guard, the Third Circuit held that the appeal provision of
section 709(f) made it clear that the Guard is not obligated to
engage in collective bargaining. This is true, the court held,
despite the subsequent enactment of the Labor-Management Act,
which sets forth a collective bargaining system for federal
employees. 677 F.2d at 280, 285. There is no evidence that
Congress intended the general provisions of the Labor-Management
Act to repeal or modify the specific reservation of authority
set out in section 709(f) of the Technicians Act. Id. at 285.
All of the other circuits considering this issue have similarly
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held that the Technicians Act reserves exclusive review of
personnel actions affecting technicians for the state adjutants
general. Ind. Air Nat'l Guard v. Fed. Labor Relations Auth.,
712 F.2d 1187 (7th Cir. 1983); Neb. Military Dep’t, Office of
Adjutant Gen. v. Fed. Labor Relations Auth., 705 F.2d 945 (8th
Cir. 1983); Cal. Nat’l Guard v. Fed. Labor Relations Auth., 697
F.2d 874 (9th Cir. 1983).
The legislative history of the Technicians Act also
supports the Authority’s conclusion. This history evidences
“serious congressional concern with ensuring the final authority
of state adjutants general.” N.J. Air Nat'l Guard, 677 F.2d at
283. In its report, the Senate Committee on Armed Services
stated:
This bill implements the purpose [of the
legislation] by converting the technicians
to Federal employee status with certain
controls on administration and supervision
which would as a matter of law remain at the
State level. In effect, the technicians
will become Federal employees receiving the
salaries, fringe and retirement benefits,
but with certain administrative control
regarding employment supervision remaining
with the adjutants general of the
jurisdiction concerned under regulations
prescribed by the Secretary concerned.
S. Rep. No. 90-1446, at 2 (1968). Accordingly, “section
709[(f)], which ensures the authority of the state adjutants
general, can be viewed as a virtual quid pro quo for the section
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709[(e)] grant of federal employee status.” N.J. Air Nat'l
Guard, 677 F.2d at 284.
In contrast, the Labor-Management Act’s legislative
history “do[es] not provide an affirmative expression of
congressional intent to override the specific provision for
exclusive review of section 709[(f)] matters by the state
adjutants general in the technicians statute.” Neb. Military
Dep’t, 705 F.2d at 951-52; see also N.J. Nat’l Guard, 677 F.2d
at 285 (no reference to dual-status technicians in the
Labor-Management Act’s legislative history). While Congress
could have altered the Technicians Act’s limit on review
procedures when it enacted the Labor-Management Act, it did not
do so.
In attempting to evade the finality of section 709(f),
the Union contends that this case does not involve an "appeal"
within the meaning of that provision. The fact that an unfair
labor practice proceeding begins with a “complaint” rather than
an “appeal,” however, is not a meaningful distinction. As have
other courts considering the interaction between the Technicians
Act and the Labor-Management Act, we will construe the term
“appeal” broadly enough to include procedures that involve the
review of terminations but are not technically described as
"appeals." See, e.g., Cal. Nat’l Guard, 697 F.2d at 879
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(holding that a negotiated grievance procedure effectively
constitutes an appeal within the meaning of section 709(f)).
The Union also argues that First Amendment concerns
modify the reach of the Technicians Act because Romero was
terminated for participating in "protected activity."3 The
protections at issue here are rooted in the Labor-Management
Act, however; the Authority’s jurisdiction extends only to
statutory, not constitutional, claims. See Nat'l Treasury
Employees Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992)
(holding that a union’s constitutional claim was not adjudicable
in the administrative proceeding before the Authority).
Therefore, there is no independent constitutional basis for
petitioner's retaliatory termination claim.4
3
Romero filed an action in the district court alleging
constitutional violations under 42 U.S.C. § 1983. See Roig v.
P.R. Nat'l Guard, 47 F. Supp. 2d 216 (D.P.R. 1999). Despite an
initial ruling that Romero's action seeking equitable remedies
against the Guard was justiciable and that a preliminary
injunction was warranted, the court ultimately dismissed the
action, and no appeal was taken. Although we express no opinion
on the question, it appears that such an appeal might have been
a more fruitful approach to vindicating Romero's constitutional
rights. See Wigginton v. Centracchio, 205 F.3d 504, 511-12 (1st
Cir. 2000) (holding that a § 1983 action against the Adjutant
General of Rhode Island Army National Guard and State of Rhode
Island, seeking reinstatement to Guard, was justiciable).
4
The Union correctly points out that when interpreting the
Labor-Management Act, the Authority should “consider the
constitutional implications of its choice between permissible
interpretations of the Statute.” Nat'l Treasury Employees Union
v. Fed. Labor Relations Auth., 986 F.2d 537, 539 (D.C. Cir.
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Because the Technicians Act deprived the Authority of
jurisdiction, it could not review Romero's termination, despite
the Guard's patent and egregious violations of the Labor-
Management Act. We agree with the Authority that this result is
unfortunate. As the Authority stated in its majority opinion,
however, we cannot rewrite the statute:
We recognize that the National Guard's
immunity from prosecution in [unfair labor
practice] proceedings or retaliatory
discharges of civilian technicians leaves
meaningful rights Congress provided
technicians under the [Labor-Management Act]
largely unenforceable. . . . Nevertheless,
it is for Congress, not the Authority, to
correct this injustice.
The Authority was thus constrained from remedying the
termination, and we can take no further action. The Authority's
final decision and order is affirmed, and, accordingly, the
petition for review is denied and dismissed.
1993). In this case, however, the Authority resolved a
threshold jurisdictional issue based on the requirements of law
external to the Labor-Management Act. It properly concluded
that any constitutional questions raised in this case do not
independently establish jurisdiction. Nor does the fact that
the Civil Service Reform Act (CSRA) -- of which the
Labor-Management Act is a part -- preempts judicial review of
the technicians’ constitutional claims provide the Authority
with jurisdiction. The fact that a court will not hear a claim
does not provide an agency with jurisdiction that it otherwise
lacks, even if a party is left without a remedy. See Roth v.
United States, 952 F.2d 611, 615 (1st Cir. 1991) (even though
administrative agencies rejected claim for lack of jurisdiction,
CSRA preempted court review of that claim).
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