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American Federation of Government Employees, Local 3936, AFL-CIO v. Federal Labor Relations Authority, No. 00-1417 (1st Cir. February 6, 2001).

The First Circuit—relying on the express language of the Technicians Act, its legislative history, and other court decisions—affirmed the Authority's holding in 56 FLRA No. 21 that the Technicians Act (32 U.S.C. § 709) precludes FLRA from reviewing the employer's retaliatory termination of the employee who was the union president. "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[.]"

As a consequence of engaging in informational picketing, Pedro Romero, the president of the local union, was discharged from his military position and then terminated from his technician employment because he no longer was a member of the Guard. A ULP complaint followed and in 56 FLRA No. 21 (reported in Significant Cases No. 134) the Authority held, among other things, that it was without authority to review the employer's retaliatory termination. The union sought court review.

In rejecting the union's contention that FLRA should not have considered the agency's jurisdictional argument, the court held that FLRA didn't abuse its discretion when, notwithstanding the ALJ's prohibiting the Guard from asserting jurisdictional defenses (as one of the sanctions imposed on the Guard for not participating in the pre-hearing discovery required by FLRA's regulations), it considered, sua sponte whether it had jurisdiction to decide the merits of the termination.

Turning to the merits, the court agreed with the Authority that the plain language of section 709(f)(4) of the Technician's Act categorically precluded FLRA from reviewing Romero's termination.

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 and interpolation by the court.]

It noted that other Circuit Courts of Appeal that have considered "the intersection of the Labor-Management Act with the Technicians Act . . . have held that the Technicians Act reserves exclusive review of personnel actions affecting technicians for the state adjutants general."

In finding that the legislative history of the Technicians Act supported FLRA's conclusion, the court quoted, with approval, the 3rd Circuit in N.J. Air Nat'l Guard v. FLRA, 677 F.2d 276, 284 (1982), where the 3rd Circuit said that "section 709[f], which ensures the authority of state adjutants general, can be viewed as a virtual quid pro quo for the section 709[e] grant of federal employee status." The FSLMRS, by contrast, didn't provide an affirmative expression of congressional intent to override the Technicians Act's provision of exclusive review of section 709(f) matters by state adjutants general. "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."

The court rejected the union's contention that this case didn't involve an "appeal" within the meaning of section 709(f) of the Technicians Act. "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.'"

It also turned aside the union's argument that First Amendment concerns modify the reach of the Technicians Act because Romero was terminated for participating in "protected activity" by pointing out that "the Authority's jurisdiction extends only to statutory, not constitutional claims."

It accordingly affirmed the Authority's decision that the Technicians Act deprived FLRA of jurisdiction to review Romero's termination.

In a footnote the court noted that the union had also complained that FLRA erred in failing to address the terminations of 25 other technicians (which took place after the ALJ had ruled on the termination of Romero) and responded that "[f]or the same reasons that Romero's termination may not be reviewed, nor may those terminations."

In a later footnote, the court noted that Romero had filed an action in district court alleging constitutional violations under 42 U.S.C. § 1983. Although the district court initially ruled that Romero's action seeking equitable remedies against the Guard was justiciable, it ultimately dismissed the action. Noting that that decision wasn't appealed, the court said the following: "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."