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UTMs oversee the timely completion of ancillary and on-the-job training in accordance with the standards of each Air Force mission. From the perspective of a future UTM and presented to current UTMs. This guide offers reference materials for solving the type of legal ethical issues UTMs might encounter. The only Air Force ethical standards that can be used in solving dilemmas are the comprehensive "Airman Foundational Competencies Definitions" (Department of the Air Force, 2022, p. 35, Table A2.1) encompassing all Air Force career fields. This guide reviews some laws and policies that enable the mission of training U.S. armed forces as well as some of the ethical and future training issues proper to the Air Force education and training field. Although investigating ethical misconduct is ultimately done by the Air Force Office of Special Investigations (AFOSI) and Judge Advocate General Corps (JAGC), UTMs need to understand how laws and policies impact their function in order to prevent or report to the proper authorities. cases of criminal and ethical misconduct.

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This legal guide offers UTMs information on the laws, policies, and ethical issues that affect the Air Force education and training career field. Knowledge of those laws and policies will guide UTMs in presenting for investigation, by AFOSI and the JAGC, cases of test compromise, unlawful disclosure of training materials, and false statements in training reports. This guide also provides additional ethical guidance for UTMs in the exercise of their functions. Given that their work is often done remotely UTMs need particular legal and ethical guidelines to fulfill their function while maintaining strict operational security.

This guide also includes a 2022 study submitted to the Research and Development Corporation (RAND Corporation) announcing an upcoming shift in Air Force education and training: from measuring proficiencies from an individual to a group perspective (Toukan et al, 2022). This shift coincides with the recent geopolitical events in Ukraine and the South China Sea, which indicate a potential return to large-scale conflict. This strategic repositioning will inevitably lead to different training practices. As trainees start getting assessed on how well they work together, UTMs may have to tackle unforeseen legal and ethical issues.

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Slide #3 Professional Association: Air Force Learning Professionals 

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Slide #3 Professional Association: Air Force Learning Professionals 

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The Air Force Learning Professionals is an association of Educators that provides resources on instructor development: which includes a module on professional relationships consisting in part of an annual online course on Air Force ethics as well as the policy on professional relationships. This policy codifies in detail the types of occurrences and behaviors that have legal ramifications. "Alcohol shall not be consumed as part of any syllabus, lesson plan, or plan of instruction training activity, and students shall not be required or encouraged to consume alcohol for any purpose, including as a method of gaining acceptance in the training community (T-1). Squadron commanders in training squadrons will establish an alcohol consumption policy, after consultation and review from their servicing base legal offices (T2)." (Department of the Air Force, 2019, p. 26, §4.5.3)

Air Force Learning Professionals. (n.d.). Instructor competencies: professional relationships. Learningprofessionals.af.mil. https://www.learningprofessionals.af.mil/Resources/Career-Field-Education-Training/

Department of the Air Force (2019) Air Force Instruction 36-2909. https://static.e-publishing.af.mil/production/1/aetc/publication/afi36-2909_aetcsup/afi36-2909_aetcsup.pdf

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Occupational competencies are a set of competencies required of all Airmen within a specific workforce category. These competencies provide a framework that describes the knowledge, skills, abilities, and other characteristics needed to perform that function's mission successfully.

Listed below are the eight instructor competencies. Instructors around the Department of the Air Force developed the desired observable behaviors that define success within each of the instructor competencies. You can view the observable behaviors (). Additionally, a team of subject matter experts identified resources in the form of books, courses, quick guides and articles that support each competency. Select each competency below to view a sample of resources to aid in development of the competency. Common Access Card (CAC) required.

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The official website of Air Force Learning Professionals

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Slide #4 Current News Article: Ethical Behavior More Than Just Yearly Online Training 

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Slide #4 Current News Article: Ethical Behavior More Than Just Yearly Online Training 

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This article from the Department of Defense (DoD) News presents a video by the U.S. Secretary of Defense Loyd Austin where he addresses the importance of ethical conduct across all of the DoD endeavors. UTMs handle issues of ethical misconduct in regard to test compromise, fraudulent distribution of controlled training material, and potential false statements in official training reports. The new format for ethical training helps UTMs in solving cases of ethical misconduct. This ethical conduct training combines the usual recalling of key information on ethical issues through training videos and multiple choice question testing with scenario-based questions that give test-takers the opportunity to apply ethical principles to a specific situation. UTMs also oversee the yearly completion of ethical conduct training for each member at the squadron level as per DoD requirements:
- Ethical conduct training is done online
- Ethical conduct training is completed yearly
- Ethical conduct training is mandatory for both service members and DoD civilian contractors
- Ethical training is now incorporating a scenario-based format that encourages the application of ethical principles to a specific situation.

Todd Lopez, C. (2022). Ethical behavior more than just yearly online training. U.S. Department of Defense. https://www.defense.gov/News/News-Stories/Article/Article/3023359/ethical-behavior-more-than-just-yearly-online-training/

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Service members and civilians throughout the Defense Department complete an array of training sessions annually related to topics such as insider threats, anti-terrorism awareness and cyber security. All are important to the well-being of the department. But compliance with ethics standards - another topic with an annual training requirement - is important enough that Secretary of Defense Lloyd J. Austin III has drawn special attention to it this year.

"Our mission is to defend the United States, and we do it seven days a week, 24 hours a day," Austin said in a recently released video which supports the department's ongoing efforts to ensure every employee is aware of and understands ethical standards.

"It's a big job, one that requires skill and focus," he said. "It also demands the highest standards of conduct. I know that you and your teammates take this responsibility seriously. I know that you serve with honor and integrity ... and that each day you strive to do the right thing. But I also know how important it is to occasionally refresh our understanding of that code of conduct ... of our ethics ... of our values."

Annual ethics training for service members, as well as civilians within the Defense Department and the military services, focuses on topics like avoiding financial conflicts of interest while conducting official duties; conducting fair and impartial relations with, and support to, non-federal entities; and rejecting any sense of personal entitlement while employed by the federal government.

Sometimes, even the appearance of unethical actions - even if they wouldn't break a rule - can damage the trust the public has in the U.S military. And that's something Austin said service members and civilians must also be aware of.

"We should avoid even the appearance of unethical behavior," Austin said. "We're all role models for the department. And the way our actions appear often affects our reputation, as individuals and as an institution. A lot of times, when faced with an ethical dilemma, we ask ourselves, 'can I do this?' I would like you to also ask yourself ... 'should I do this?' Something may be perfectly permissible by the rules, but it still might set the wrong example. It still might be the wrong thing to do at the wrong time."

Service members and civilians across the Defense Department may be asked again this year to complete annual government ethics training. That training is developed to ensure employees know what is right, so they are always able to maintain and strengthen the trust the American people have in the U.S. military.

"Ethics is a part of everything we do in the department," Scott Thompson, director of the standards of conduct office within the Defense Department's Office of General Counsel, said. "An important part of our ethics program is annual training. Ethics attorneys work with leaders to create realistic and challenging scenarios. This scenario-based training helps ensure employees are ready to make the right decision when confronted with an ethical dilemma."

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Ethical Behavior More Than Just Yearly Online Training

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Secretary of Defense Lloyd J. Austin III has drawn special attention to the topic of compliance with ethical standards in a recently released video that supports ongoing DOD efforts.

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Slide #5 Current News Article: Ethical, Legal Considerations for Remote Work

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Slide #5 Current News Article: Ethical, Legal Considerations for Remote Work

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This article from the National Defense Magazine highlights how remote work can raise ethical issues for DoD employees. UTMs often work on their own. A UTM's function of overseeing training programs can to a large extent be accomplished through remote work if necessary. UTMs should then be particularly cautious of avoiding the possible negative ethical implications of remote work:
- A decreased level of supervision can lead to an "increased opportunity for labor or time mischarging" (Eyre & Zhou, 2022, para. 7) which could lead to False Claims Act liabilities imposed on employees defrauding the government (U.S. Department of Justice Civil Division, 2019, para. 2)
- Supervisors can no longer rely on face-to-face interaction or traditional methods of timekeeping: they should further monitor employee compliance with policy, implementing more detailed reporting and justification for task completion (Eyre & Zhou, 2022, para. 8-10).
- Employees should report non-compliance to company policy as often as in a traditional office setting, in spite of the distance from other employees and supervisors (Eyre & Zhou, 2022, para. 11-12).
- Defense employees should be even more cautious with sensitive information when using a private network and avoid using any unapproved technology (Eyre & Zhou, 2022, para. 13-14).
- Defense employees should also use increased security measures to maintain the confidentiality of their work when fulfilling their role outside of a secure office environment Eyre & Zhou, 2022, para. 15-17).

Eyre, P., & Zhou, M. Y. (2022, September 12). Ethics Corner: Ethical, Legal Considerations for Remote Work. https://www.nationaldefensemagazine.org/articles/2022/9/12/ethical-legal-considerations-for-remote-work

U.S. Department of Justice Civil Division. (2019). The false claims act. https://www.justice.gov/civil/false-claims-act#:~:text=The%20FCA%20provides%20that%20any

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iStock illustration

Two and a half years into the COVID-19 pandemic, contractors have navigated numerous challenges facing their workforce. From creating new workspaces and practices to keep employees safe and secure, to adopting flexible and virtual work arrangements, to addressing the ever-present plague of "pandemic fatigue," organizations continue to manage the changing landscape of the new reality.

As contractors settle into this "new normal," it is also important that they remain vigilant to the ethical considerations and challenges that can arise in remote work environments, which are still relatively new to many companies.

The Pew Research Center recently reported that nearly 57 percent of the remote workforce either rarely or never worked from home prior to the coronavirus outbreak. With the reduction in daily connectivity to co-workers, supervisors and workplace resources - as well as the shift away from traditional methods of training, connecting and monitoring - the risk is greater than ever that employees could begin overlooking, or at the very least, become laxer in adhering to company ethics and compliance obligations and best practices.

Against this backdrop, here are some key areas for compliance attention and best practices for both contractor employees and employers when working in remote and virtual environments.

First, there are timekeeping considerations. Since the onset of the pandemic, there has been a significant reduction in staffing at both customer sites and contractor work locations.

The shift in physical distance and workplace culture means that many employees are no longer subject to the same degree of supervision and are also likely juggling an increase in personal and familial responsibilities throughout the day, thereby further escalating time constraints.

All these factors may lead to an increased opportunity for labor or time mischarging - whether intentionally, due to carelessness or otherwise - which brings with it an increased potential of False Claims Act risk for contractors that operate under certain types of contracts.

Second, consider supervision and approvals. When working in a remote environment, a shift away from daily in-person oversight of employee activities does not provide justification to be any laxer in adhering to supervisor responsibilities, such as the review of work product, task tracking or reimbursement or time approvals.

Contractors should consider adjusting the way they conduct supervisory functions and approvals to enhance compliance and oversight.

For example, timekeeping and labor-hour approvals may now require greater justification from employees - whereas in the past, employers could ostensibly rely on employee time entries due to their clocking-in and out of the office, employers may now want to require time-entry narratives that detail employees' daily tasks and activities that can validate timekeeper logs.

Another factor is comfort with reporting concerns. Just because some employees are no longer working in shared spaces does not mean that there should be any shift in the expectation that they remain vigilant and report any potential concerns regarding non-compliance with company policies, procedures and applicable laws and regulations.

Contractors should continue reminding employees of their reporting obligations and resources and should also consider revising their investigations playbook to adjust to conducting internal reviews of employee or hotline complaints in a remote work environment.

And cybersecurity and information security are no less important. Transitioning to a remote workforce can lead to unintended consequences due to the use of employee home offices, such as potentially untested and unapproved software and systems, and/or flexibility in allowing employees to use whatever technology they think will help them do their jobs more efficiently.

Now more than ever, employers should be mindful of their cybersecurity and information security obligations and consider enhancing their back-end networks as well as employee-facing requirements.

And finally, consider confidentiality requirements. With children, partners, family and roommates spending more time at home - and with the potential flexibility of "remote" work from nearly any place around the globe - it can be difficult to maintain the confidential workplace that was readily available in traditional work environments.

Though it is unrealistic to expect employees to operate from hermitically sealed remote spaces, contractors should maintain the expectation of, and impose obligations on, employees to prioritize privacy and confidentiality of company information and systems.

For example, enforcing remote work hygiene best practices, such as multi-factor authentication requirements, mandating frequent password updates and reminding employees of confidentiality obligations - such as using headsets or turning off cameras when in less secure locations - will be more critical than ever to protect the confidentiality of contractor- and client-sensitive information.

Given the new complexities that arise with remote working arrangements, contractors should be cognizant of these issues and take steps to mitigate them, such as formulating a remote work policy to address specific concerns.

Contractors can then reiterate and remind employees of their ethical obligations, such as by requiring employees to revisit and certify compliance with the company's code of conduct and ethics, enhancing employee training of company policies that address remote work considerations, and engaging in learning assessments to test employee knowledge of their obligations, thereby creating a more compliant and responsible remote culture and workforce.

Peter Eyre is partner at Crowell & Moring and co-chair of the government contracts practice. M. Yuan Zhou is a counsel in Crowell & Moring's government contracts practice.

Topics: Ethics, Contracting, Contracting RulesEthics

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Ethics Corner: Ethical, Legal Considerations for Remote Work

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Ethics Corner: Ethical, Legal Considerations for Remote Work

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Slide #6 Original Sources of Law at the Federal Level - Constitutional law:  U.S Constitution Article I Section 8. Clause 11.2 Powers of Congress

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Slide #6 Original Sources of Law at the Federal Level - Constitutional law:  U.S Constitution Article I Section 8. Clause 11.2 Powers of Congress

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Section 8 of Article 1 of the U.S. Constitution establishes the various powers of Congress including prerogatives on regulating the nation’s military. It is the constitutional source of law that declares the necessity of providing training for the nation’s armed forces. "Congress shall have power to [...] make Rules for the Government and Regulation of the land and naval Forces. " (U.S. Const. art. 1, § 8, c 11.2)

U.S. const. art. 1. § 8, C11.2. (1788). Senate.gov. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm#a1_sec8

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Constitution of the United States
Preamble Article I Article II Article III Article IV Article V Article VI
Article VII AMENDMENTS
Introduction

Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world's longest surviving written charter of government. Its first three words - "We The People" - affirm that the government of the United States exists to serve its citizens. The supremacy of the people through their elected representatives is recognized in Article I, which creates a Congress consisting of a Senate and a House of Representatives. The positioning of Congress at the beginning of the Constitution affirms its status as the "First Branch" of the federal government.

The Constitution assigned to Congress responsibility for organizing the executive and judicial branches, raising revenue, declaring war, and making all laws necessary for executing these powers. The president is permitted to veto specific legislative acts, but Congress has the authority to override presidential vetoes by two-thirds majorities of both houses. The Constitution also provides that the Senate advise and consent on key executive and judicial appointments and on the approval for ratification of treaties.

For over two centuries the Constitution has remained in force because its framers successfully separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the federal and state governments. More a concise statement of national principles than a detailed plan of governmental operation, the Constitution has evolved to meet the changing needs of a modern society profoundly different from the eighteenth-century world in which its creators lived. To date, the Constitution has been amended 27 times, most recently in 1992. The first ten amendments constitute the Bill of Rights.

Annotated Constitutions

The Constitution of the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated) contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law.

The Constitution of the United States of America, S.PUB.103-21 (1994) (PDF), prepared by the Office of the Secretary of the Senate with the assistance of Johnny H. Killian of the Library of Congress in 1994, provided the original text of each clause of the Constitution with an accompanying explanation of its meaning and how that meaning changed over time.

Italicized text indicates words and passages of the Constitution that were changed or affected by amendments.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names,

G o. Washington-Presid t.

And deputy from Virginia

New Hampshire John Langdon

Nicholas Gilman

Massachusetts Nathaniel Gorham

Rufus King

Connecticut Wm. Saml. Johnson

Roger Sherman

New York Alexander Hamilton

New Jersey Wil: Livingston

David Brearley

Wm. Paterson

Jona. Dayton

Pennsylvania B Franklin

Thomas Mifflin

Robt Morris

Geo. Clymer

Thos. FitzSimons

Jared Ingersoll

James Wilson

Gouv Morris

Delaware Geo: Read

Gunning Bedford jun

John Dickinson

Richard Bassett

Jaco: Broom

Maryland James McHenry

Dan of St. Thos. Jenifer

Danl Carroll

Virginia John Blair-

James Madison Jr.

North Carolina Wm. Blount

Richd. Dobbs Spaight

Hu Williamson

South Carolina J. Rutledge

Charles Cotesworth Pinckney

Charles Pinckney

Pierce Butler

Georgia William Few

Abr Baldwin

Attest William Jackson Secretary

AMENDMENTS
Amendment I (1791) Amendment II (1791)
Amendment III (1791) Amendment IV (1791)
Amendment V (1791) Amendment VI (1791)
Amendment VII (1791) Amendment VIII (1791)
Amendment IX (1791) Amendment X (1791)
Amendment XI (1795/1798) Amendment XII (1804)
Amendment XIII (1865) Amendment XIV (1868)
Amendment XV (1870) Amendment XVI (1913)
Amendment XVII (1913) Amendment XVIII (1919)
Amendment XIX (1920) Amendment XX (1933)
Amendment XXI (1933) Amendment XXII (1951)
Amendment XXIII (1961) Amendment XXIV (1964)
Amendment XXV (1967) Amendment XXVI (1971)
Amendment XXVII (1992)

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President -The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

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U.S. Senate: Constitution of the United States

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Slide #7 Original Sources of Law at the Federal Level - Statutory Law: Unified Code of Military Justice §892. Art. 92. Failure to obey order or regulation

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Slide #7 Original Sources of Law at the Federal Level - Statutory Law: Unified Code of Military Justice §892. Art. 92. Failure to obey order or regulation

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Article 92 of the Unified Code of Military Justice gives force of law to military regulatory documents. "Any person subject to this chapter who—

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct." (Article 92, UCMJ, § 892)

Failure to obey order or regulation, Uniform Code of Military Justice Art. 92 § 892, 18 U.S.C. § 1001.(2019). https://jsc.defense.gov/Portals/99/Documents/UCMJ%20-%2020December2019.pdf

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Slide #8 Original Sources of Law at the Federal Level - Administrative Law: DOD Instruction 1322.35, Volume 1 Military Education Program Management and Administration

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Slide #8 Original Sources of Law at the Federal Level - Administrative Law: DOD Instruction 1322.35, Volume 1 Military Education Program Management and Administration

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This Department of Defense instruction provides the policy for military education of all the service branches. "It is DoD policy, through DoD ME [military education] programs, to:
a. Equip warfighters and security professionals with the knowledge and habits of mind required for operational success to ensure the force’s cognitive readiness.
b. Develop strategic-thinking warfighters who leverage diverse experiences, backgrounds, and perspectives to think critically and creatively about using military power to inform national strategy, conduct globally integrated operations, and fight under conditions of disruptive change.
c. Prepare the DoD workforce to perform effectively and ethically across the entire spectrum of DoD operations to achieve national security objectives." (Department of
Defense Instruction 1322.35, Volume 1, p. 3 § 1.2)

Department of Defense. (2022). DoD Instruction 1322.35, Volume 1. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/132235_vol1.PDF?ver=1mKICMbRcNsQUXaPf5YUfw%3D%3D

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Slide #9 Original Sources of Law at the State Level: Judicial Law - Ohio National Guard v. American Federation of Government Employees, Local 3970, AFL-CIO (American Federation of Labor and Congress of Industrial Organizations)

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Slide #9 Original Sources of Law at the State Level: Judicial Law - Ohio National Guard v. American Federation of Government Employees, Local 3970, AFL-CIO (American Federation of Labor and Congress of Industrial Organizations)

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This ruling demonstrates the legal limitations of military jurisdiction. The new commander of the Ohio National Guard retracted a previous agreement with the American Federation of Government Employees that allowed technicians serving part-time to be unionized.  This case ruled in favor of the union. "The Statute gives dual status technicians of the Ohio National Guard 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 of reprisal.
- The Ohio National Guard will not violate any of these rights." (Ohio National Guard v. American Federation of Government Employees Local 3970 AFL-CIO, 2020)

Ohio National Guard v. American Federation of Government Employees Local 3970 AFL-CIO, OALJ 18-13 (2020). https://www.flra.gov/node/78540

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[26] 5 U.S.C. § 7103(a)(3) (agency means "an Executive agency," with additions and exclusions not relevant here); § 105 ("'Executive agency' means an Executive department, a Government corporation, and an independent establishment."); id. § 101 (listing the "Executive departments" as "State," "Treasury," "Defense," "Justice," "Interior," "Agriculture," "Commerce," "Labor," "Health and Human Services," "Housing and Urban Development," "Transportation," "Energy," "Education," "Veterans Affairs," and "Homeland Security.").
Office of Administrative Law Judges
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

Case Nos. CH-CA-17-0248

CH-CA-17-0249

CH-CA-17-0251

CH-CA-17-0252

CH-CA-17-0336

Alicia E. Weber

Greg Weddle

For the General Counsel

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 Labor-Management 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.

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 of 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.

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 Union or Local 3970) filed four ULP charges (Case Nos. CH-CA-17-0248, CH-CA-17-0249, CH-CA-17-0251 & 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 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 unit employees then paying dues to the Union and stopped remitting dues to the Union." Id. at ¶ 18.

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 GC, Charging Party, and Respondent filed post-hearing 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
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.

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. 170-71, 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. 275-77. 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
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 union-management 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, retirement, death, or separation from technician employment." Id. at 18.
The Agency's New Understanding of its Duty to Bargain
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 email that Mike Dohrmann would be the new Union President. Tr. 324-25; s ee 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 labor-management 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 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." 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 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. 281-82. The memo read:

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Collective Bargaining Agreement (CBA)

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 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 or 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.

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.

4. 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 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, 369-70. 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 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.
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. 90-93, 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 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 bargaining - we'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 active-duty deployment in late December 2016. Tr. 27-29. He 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 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." Aukland elaborated on this in his March affidavit: "I do not 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 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. 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 hand-deliver 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 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[.]

At the end of February or the beginning of March 2017, Wayble became the Union's President. 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. Tr. 363.

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.

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.

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 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 Dernberger 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 Dernberger to develop a policy for dealing with the missing 1187s. Tr. 184-85, 189-90. Colonel Dernberger'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, Dernberger 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 Dernberger 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 Dernberger testified that if an 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. 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] 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.).

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 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 thirty-seven 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.

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 dues-paying members[.]" Tr. 44.

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:

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 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 their pay. 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 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 Dernberger 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. Dernberger 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 Dernberger 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.; see also Resp. Ex. 1 at 11-5.

Wayble testified that he has tried, unsuccessfully, to have the Agency initiate new requests for union dues deduction on behalf of three employees. Tr. 76. He said the Agency's Finance Department refused to process their SF 1187s, after which the employees came to Wayble, who approached the employees' commanders directly. The commanders said they would look into the matter, but SF 1187s were never processed. Id. Subsequently, employees received Colonel Giezie's April 4 letter, notifying them that he was recommending the cessation of dues deductions even for employees with SF 1187s on file. GC Exs. 8 & 14. Nevertheless, Colonel Giezie testified that if an employee submits an SF 1187, the Agency would process it. Tr. 378. Aukland testified that while the Adjutant General's Department is "prepared to make a recommendation that 1187s not be recognized when the collective bargaining agreement has expired[,]" it has delayed such an action while this ULP case is pending. Tr. 297.
POSITIONS OF THE PARTIES General Counsel
Moving to the substantive unfair labor practice allegations, the GC argues that by communicating repeatedly to employees and to the Union that the Agency no longer recognized the CBA or the coverage of the Statute, the Agency coerced employees in the exercise of their statutory rights and chilled protected activity, in violation of § 7116(a)(1) of the Statute. GC Br. at 25-26. The Authority has consistently held that an agency violates § 7116(a)(1) when it makes statements that would tend to interfere with, restrain, or coerce employees in the exercise of their rights protected by the Statute, and that statements are unlawful if they would cause a reasonable employee to "think twice" before exercising a statutory right. AFGE, Nat'l Border Patrol Council, Local 2595, 67 FLRA 361, 366 (2014); U.S. Air Force, Lowry Air Force Base, Denver, Colo., 16 FLRA 952, 960 (1984) ( Lowry AFB)). Similarly, an agency violates § 7116(a)(1) when it communicates that there would be no point in filing a grievance. Dep't of the Air Force, Scott AFB, Ill., 34 FLRA 956, 966 (1990) ( Scott AFB); Dep't of the Air Force, 35th Combat Support Grp. (Tac), George AFB, Cal., 4 FLRA 22, 22-23 (1980) ( George AFB)).

The GC asserts that the written and oral statements of Colonel Giezie and Aukland conveyed to employees that they were not protected by the Statute, and that there was "no point in exercising any of their protected rights," such as consulting with a Union representative or asserting their Weingarten rights. GC Br. at 26. Further, since the Agency considered the CBA void, there was no point in complaining of contract violations or filing a grievance. At best, going to the Union would be "ineffectual," and at worst it could subject them to "unreviewable reprisal." Therefore, the Agency's communications "objectively chilled" the exercise of employees rights, in violation of § 7116(a)(1). Id.

To remedy the Respondent's unfair labor practices, the General Counsel requests both traditional and nontraditional remedies. In the former category, the GC urges that the Respondent be ordered to recognize the mandatory subjects in the parties' CBA, including the grievance-arbitration procedure, hiring and promotion, discipline, and official time. Further, the Agency should restore the status quo concerning conditions of employment that existed before September of 2016 and make any employees whole who suffered losses as a result of changes in mandatory subjects of bargaining. Accordingly, the Agency must reinstate dues withholding for all bargaining unit employees who were removed from withholding since September 28, 2016, and reimburse the Union for all dues it should have received from those employees. GC Br. at 40. The GC contends that such remedies are standard for this type of violation ( see U.S. Army Materiel & Readiness Command, Warren, Mich., 7 FLRA 194, 199 (1981)), and that they do not violate the doctrine of sovereign immunity ( see U.S. Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Tucson, Ariz., 66 FLRA 517, 520-21 (2012)).

In addition to these traditional remedies, the GC contends that the severity of the Agency's ULPs require more extensive remedial actions. The GC submits that the Agency has "significantly chilled union activity, causing employees to question whether they have collective bargaining rights at all or a Union." GC Br. at 41. Utilizing the Authority's reasoning in U.S. Penitentiary Leavenworth, Kan., 55 FLRA 704, 718-19 (1999) ( USP Leavenworth), the GC asserts that the Respondent's "widely disseminated egregious anti-Union statements" require the Respondent to retract those statements by reading the Authority's Notice to Employees aloud at meetings of employees around the state. And because managers and supervisors received the same unlawful statements from the Respondent's HRO, the GC contends that managers and supervisors should also receive the Notice and be required to attend those meetings. U.S. Penitentiary, Florence, Colo., 53 FLRA 1393, 1394 (1998) ( USP Florence).
Charging Party
The Union agrees with the GC that the Respondent violated the Statute and that the FLRA has jurisdiction over the Respondent. Specifically, the Agency violated the Statute by refusing to be bound by the mandatory terms of the CBA and by unilaterally implementing the new merit promotion plan. CP Br. at 16. The Union notes that the Agency continues to refuse to be bound by the Statute, as seen in Colonel Giezie's refusal to bargain on Agency premises with AFGE national or regional officials representing the Union. Id. at 14.

The Union describes the Agency's contention that it could not reach the Union to initiate negotiations as "laughable," since Union officers "work for the Agency at the Agency's facilities." Id. at 16-17. Management "knows where the union officer[s'] workstations are," and Aukland could have met with Wayble or any other Union official at his workplace to discuss any of the issues in dispute; instead, the Agency chose to implement changes unilaterally. Id.

With respect to union dues deductions, the Union asserts that the Agency admitted that all of the employees who received SF 1187 letters had previously authorized dues deductions. The Union argues that the Agency's audit of dues deductions was a "thinly veiled and unlawful attempt to financially weaken the Union." Id. at 20. In this regard, the Union notes that Colonel Dernberger could not say who came up with the idea for the audit, and that the Agency "seemed not to have its story straight" as to why employees needed to submit SF 1187s: while Dernberger asserted that SF 1187s needed to be submitted for "audit readiness," Aukland asserted that SF 1187s needed to be submitted to comply with the DoD FMR, even though Aukland could not show where that requirement was listed in the regulation. Id. Another sign the audit was pretextual, the Union argues, is that Scott was unaware of any other type of documents that had been lost the way the SF 1187s had.
Respondent
The Respondent begins by asserting, "The FLRA does not have jurisdiction over the Adjutant General of Ohio, his department, the Ohio National Guard, or the Technicians he administers . . . ." Resp. Br. at 19. In this regard, it argues: (1) under the U.S. Constitution, Congress and the President have authority over state militias only when called into the service of the United States; (2) the Governor of Ohio is the commander in chief of the state's military and naval forces except when they are called into the service of the United States; (3) the Adjutant General is appointed by the Governor of Ohio; (4) the Adjutant General is a paid employee of the State of Ohio; and (5) the Ohio National Guard is "an element of the organized militia of Ohio." Id. at 19-20. Respondent further asserts that § 7103(a)(3) of the Statute's definition of an agency "does not include a state adjutant general, his/her department, or a state national guard organization." Id. at 20. The Respondent adds that under 32 U.S.C. § 314, the Adjutant General is "required to perform the duties required of him under State law[]" and that 32 U.S.C. § 314 "does not . . . ascribe federal employee status to The Adjutant General." Id.

According to the Agency, the Federal Circuit Court of Appeals recognized these principles in its Singleton decision, where it ruled that federal agencies have no authority to give orders to the Adjutant General of Ohio. Specifically, the court stated:

The adjutant general of the [Ohio National Guard] is not a federal employee, as the term is defined in Title 5. Therefore, no order of the [Merit Systems Protection] Board may be directed to the adjutant general. The Governor of Ohio similarly is not a federal employee, and consequently no order of the [Merit Systems Protection] Board could command the Governor to order a corrective act to be taken by the adjutant general.

Singleton, 244 F.3d at 1336-37.

The Agency acknowledges that in Lipscomb, the Fifth Circuit Court of Appeals ruled that the Adjutant General of Mississippi "was an 'Executive Agency' for purposes of the . . . Statute, and therefore could be ordered by the FLRA to permit a union election among its technicians." Resp. Br. at 21. But Respondent insists that Lipscomb is flawed, because the court itself admitted that the language of the Statute (specifically § 7103(a)(3)) does not explicitly list the state national guards or adjutants general within the definition of "agency," and because the court "never squarely addresses the Constitutional question of how a federal agency can assert authority over a state militia officer and gubernatorial appointee . . . ." Id. (citing Lipscomb, 333 F.3d at 618). The Agency also cites Fisher v. Peters, 249 F.3d 433 (6th Cir. 2001) ( Fisher) for the proposition that technicians are "irreducibly military in nature." Based on Fisher, the Respondent argues that the Statute "does not apply to [technicians], and they may not unionize." Resp. Br. at 24.

The Respondent argues that it attempted to bargain with the Union over the new policy regarding union dues deductions, pointing to Colonel Giezie's attempt to serve the Union with a copy of the proposed policy and his offer to engage in impact and implementation bargaining with Union President Dohrmann in October 2016. Tr. 351; Resp. Ex. 8 at 8. Additionally, employees and Union officials were sent letters advising them of the policy in November 2016 and subsequent months. GC Ex. 13. Respondent contends, therefore, that it did not violate § 7116(a)(1) and (5) of the Statute in implementing the dues policy. Resp. Br. at 29.

The Respondent similarly contends that it complied with the Statute in implementing the new merit promotion plan. Id. at 32. In this regard, it argues that there was no material change between the old merit promotion plan and the new one, and that in any event it provided the Union with notice of the change. Specifically, Respondent asserts that "the plan" was mailed to union officials at their official addresses of record but "none of the union members would receive mail" there. Resp. Br. at 32-33; see Tr. 290-91.
ANALYSIS AND CONCLUSIONS The Authority Has Jurisdiction over the Respondent
Stepping briefly away from the factual minutia of this case, and looking first at the big picture of what has been happening within the Ohio National Guard in the last two years, it is breathtaking to contemplate how completely the Respondent has tried to divorce itself from history, from its own organizational structure, and from the legal precedents of the past fifty years. It seeks to ignore everything that its own leadership had done for decades, in order to pursue a legal theory that has been consistently rejected by the Authority, by the courts, and by Congress.

In 1971 (prehistoric times for the FLRA), a predecessor of the current union became the exclusive collective bargaining representative of a unit of Ohio Air National Guard technicians. See Adjutant General, State of Ohio, Ohio Air Nat'l Guard, Worthington, Ohio, 21 FLRA 1062, 1079 (1986) ( Ohio ANG). The parties negotiated a series of collective bargaining agreements, one of which expired in 1981, triggering a dispute over whether the agency could refuse to continue to be bound by certain permissive subjects such as uniforms. By that time, Congress had passed the Statute and created the Authority to adjudicate such disputes, and the Authority ruled that some of the subjects in dispute were indeed permissive - thus entitling the agency to stop observing them - while others were mandatory and must therefore remain in effect, even after the CBA expired. Id. at 1065-72. Accordingly, the Authority ordered the Adjutant General to cease his unlawful conduct, bargain over mandatory subjects, and pay per diem and travel expenses that he had previously denied. Id. at 1073. The Adjutant General did not appeal this decision, and it appears that he complied with the Authority's order - yet, somehow, neither the Constitutional fabric of our federal system nor the space-time continuum was destroyed. Instead, the parties continued to engage in collective bargaining under the regulatory structure of the Statute for another 35 years, until certain agents of the Respondent recently got the idea that the Statute never actually covered its technicians, and that the Adjutant General had no obligation to abide by federal laws he doesn't like.

Congress passed the Technicians Act in 1968 and the Statute in 1978, and it is through the interplay of these two statutes that the case law governing labor relations in the state National Guards has evolved. In its early years, the Authority ruled that state National Guards were obligated to bargain over "broad scope" grievance-arbitration procedures, even those which required outside arbitration of disputes concerning discipline and reductions in force. NAGE, Local R12-132, 5 FLRA 201 (1981) ( Local R-12-132); AFGE, AFL-CIO, Local 3486, 5 FLRA 209 (1981). The Authority considered the legislative histories of the Technicians Act (particularly 32 U.S.C. § 709(e), which prohibits appeals of disciplinary actions and certain other matters beyond the state adjutant general) and the Statute (particularly 5 U.S.C. §§ 7103 and 7121) and concluded that Congress intended to give employees who are subject to other personnel systems (such as the Title 32 system) the same grievance and appeal rights as Title 5 employees. Local R-12-132, 5 FLRA at 206-07. But the Third and Ninth Circuit Courts of Appeal quickly reversed the Authority's decisions in those two cases and held that Congress intended the Technicians Act, rather than the Statute, to govern in situations relating to appeals of adjutant general decisions in specific areas. N.J. ANG, 677 F.2d at 277-78; see also Cal. Nat'l Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983).

The reasoning of the court in N.J. ANG, in upholding the final authority of adjutants general in certain matters, is important, as it directly affects our current dispute. First, the court recognized the role of the state National Guards as the Constitutional successors to the early state militias. 677 F.2d at 278. Yet it explained that the Guard

does not fit neatly within the scope of either state or national concerns;

historically the Guard has been, and today remains, something of a hybrid.

Within each state the National Guard is a state agency, under state authority

and control. At the same time, the activity, makeup, and function of the Guard

is provided for, to a large extent, by federal law.

677 F.2d at 278-79. Similarly, it said that the Technicians Act recognized the "sui generis" military-civilian status of technicians, as they were "declared to be federal employees, and were thereby afforded the benefits and rights generally provided for federal employees in the civil service. 32 U.S.C. § 709(d)." Id. at 279. Simultaneously, however, the Technicians Act limited the rights of technicians in certain respects: for instance, matters relating to their discipline were to remain within the final discretion of the adjutants general. Id. The court summarized:

[W]e . . . hold that the provisions of section 709[(f)] of the Technician Act remain as exceptions to the terms of the [Statute]. . . . It bears emphasis that, under the [Statute], the Guard still must engage in collective bargaining with a union representing Guard technicians: the dispute here is not over coverage by the Act, but over the applicability of a few, concededly important, provisions of the Act.

Id. at 286. See accord, Ind. Air Nat'l Guard, Hulman Field, Terre Haute, Ind. v. FLRA, 712 F.2d 1187, 1191 (7th Cir. 1983) (holding that "§ 709[(f)] of the Technicians Act is a narrow exception to the Labor Management Act, thereby exempting the Guard from negotiating union proposals containing binding arbitration provisions which cover matters listed in §709[(f)].")

The combined effect of the Labor-Management Act and the Technicians Act is to give National Guard technicians a limited right to negotiate over conditions of employment: But that right is circumscribed by the reality that a technician's military status will often impinge on his civilian status and that, when this happens, the needs of the military must prevail.

Id. at 1353. Similarly, the Authority stated in Div. of Military & Naval Affairs, State of N.Y., Albany, N.Y., 15 FLRA 288, 291 (1984), "while these technicians were granted status as Federal civilian employees by the Technicians Act, it is clear that Congress intended to organize and administer the technician program within the military framework of the National Guard."

Thus we see that since the passage of the Statute in 1978, the Authority has been exercising jurisdiction over state National Guards and their adjutants general; regulating collective bargaining between the state National Guards and federally-certified unions; and developing a detailed case law that recognizes the limitations imposed by § 709(f) of the Technicians Act on the bargaining rights of technicians. We also see that the federal courts have uniformly recognized the Authority's jurisdiction in this area and enforced the federal statutory bargaining rights of technicians. When state National Guard officials violate these rules, the Authority and the courts have ordered state adjutants general to take remedial action, and they have complied. In most of these cases, the state officials did not directly raise a challenge to the Authority's jurisdiction, but the decisions of the courts were nonetheless clear that the Statute gave technicians federally enforceable rights. And in the few cases where the agencies did raise jurisdictional challenges, the Authority's jurisdiction has always been upheld.

After the Authority issued its decision, the Mississippi Adjutant General sought to have the U.S. District Court enjoin the election and declare that the Authority had no jurisdiction over him and his employees. Both the District Court and the Fifth Circuit Court of Appeals rejected all of the agency's arguments and agreed with virtually everything that the Authority had stated in its decision. The appeals court summarized its decision at the outset:

We hold that the civilian technicians, clearly federal employees by virtue of the National Guard Technicians Act . . . are included under the terms of the FSLMRA as federal employees of an Executive agency. We further find that the [Adjutant General] - as an employer of these federal employees - along with the MSNG and MSANG, which organizations operate under the AG's authority and direction, are federal agencies for the purpose of the FSLMRA, and consequently are subject to the jurisdiction of the Authority.

333 F.3d at 613. It then proceeded to shred the Adjutant General's arguments one by one.

Taking up the AG's constitutional argument first, the court stated that the modern-day National Guard is widely recognized as a hybrid entity combining both federal and state characteristics, a recognition that has been shared by the Supreme Court. Id. at 614. Congress embodied the dual nature of technician employment in the Technicians Act, § 709(e) of which "explicitly granted federal employee status" to technicians. Id. at 614, 616-17. The court next rejected the AG's assertion that even though he employs these "federal employees," he and the Mississippi National Guard are not federal Executive agencies under § 7103(a)(3) of the Statute, due to the purely state character of his office. The court cited Chaudoin v. Atkinson, 494 F.2d 1323, 1329 (3rd Cir. 1974), a case not involving the FLRA, to reject this notion: "Section 709 'charges the adjutant generals with employment and administration of the civilian technicians who are federal employees. In view of the foregoing there can be no doubt that the Adjutant General of Delaware is an agency or an agent of the United States . . . ." 333 F.3d at 618. The Lipscomb court concluded that there was "no doubt that the hybrid character of the AG includes a federal component, which in his capacity as employer of the technicians renders him an 'Executive agency'." Id. Accordingly, the court agreed with "decades of settled practice and the decisions of our sister circuits, which have upheld the organizational rights of national guard civilian technicians under the FSLMRA." Id. at 620.

Now that I have retraced the case law regarding collective bargaining in the state National Guards, there is very little left to say about the jurisdictional arguments raised by the Respondent in this case. For all intents and purposes, their arguments have already been rejected by the Authority and every federal court to date. The few court decisions they cite in their favor have involved agencies other than the FLRA and laws other than the Statute, and even those decisions appear to have been superseded by recent Congressional action.

Second, the court which authored the Fisher decision cited by Respondent has expressly held that the rationale of that case is not applicable to the Statute. FLRA v. Mich. ANG, 878 F.3d at 178. In Fisher, the Sixth Circuit had referred to the "irreducibly military" nature of technician employment to bar lawsuits by individual technicians under the Civil Rights Act of 1964, and it cited similar language in Leistiko v. Stone, 134 F.3d 817, 818 (6th Cir. 1998), which barred individual lawsuits under the Rehabilitation Act. Despite the Michigan National Guard's insistence that the cases were indistinguishable, the court cited the widespread judicial application of the Statute's collective bargaining system to state National Guard technicians as evidence that the military and civilian aspects can be separated. 878 F.3d at 178-79. And while the court did not make this point, I would add that (unlike the case law regarding dual status technicians under Title VII and the Rehabilitation Act) the Authority has developed an extensive body of law recognizing the distinction between a technician's military and civilian duties, and it has given considerable deference to the adjutants general in identifying matters that are essential to the military preparedness of the National Guard. This belies the Respondent's contention that technicians' duties are irreducibly military.

The specific issues in our case illustrate how the Respondent's alleged ULPs relate only to the civilian aspects of technician employment. To take one example, the Respondent has admitted that it stopped deducting union dues from employees' pay. Whatever the factual or legal justifications it may have had for that action, this subject had nothing whatsoever to do with the technicians' military duties; it was not based on the Adjutant General's responsibility for ensuring the military preparedness of his technicians. Furthermore, pursuant to § 7114(c) of the Statute, the Department of Defense had reviewed the CBA negotiated by the parties in 2011, to ensure that it was "in accordance with the provisions of [the Statute] and any other applicable law, rule, or regulation . . . ." If any of the negotiated terms related to the military duties of technicians or interfered with the Adjutant General's military responsibilities, DoD had the opportunity at that time to disapprove those provisions. Indeed, DoD did disapprove some portions of the CBA and returned it to the parties for renegotiation, after which the revised CBA was approved. See First Attachment to GC Exhibit 9. The Respondent is now arguing, in effect, that both the Adjutant General and the Department of Defense negotiated or endorsed a contract that was unlawful in its entirety, as it compromised the "irreducibly military" nature of technician employment. I find this to be a wholly untenable position, both factually, legally, and equitably.

Next, the Respondent claims that the Authority lacks jurisdiction over "the Adjutant General of Ohio, his department, the Ohio National Guard, or the Technicians he administers," because they are state, not federal, officials or agencies. Resp. Br. at 19. But Lipscomb and several of the other cases cited earlier refute this theory. The court in N.J. ANG, 677 F.2d at 278, discussed the hybrid state-federal nature of the National Guards and noted that while they are state agencies, "the activity, makeup, and function of the Guard is provided for, to a large extent, by federal law." Respondent's witnesses at the hearing acknowledged that they and the Ohio Adjutant General are governed by regulations and instructions issued by the Department of Defense and the National Guard Bureau. Tr. 179-81, 270-73, 275-77; GC Ex. 2; Resp. Ex. 1. Although the state National Guards are not in the same command structure as the National Guard Bureau, DoD and the Bureau own much of the state agencies' property and control most of their financing. Despite admitting that they are bound by this complex web of DoD regulations - regulations that they obey - the Adjutant General insists that he is not bound by the Statute. This is a claim that smacks of convenience, not law. It certainly has not garnered any judicial support.

Essentially, the only case the Respondent can cite in its favor on this matter is Singleton. There, an Ohio National Guard technician claimed at the Merit Systems Protection Board that he had been denied a promotion in reprisal for his protected activity. The MSPB ruled, and the Federal Circuit Court of Appeals agreed, that even if he could prove unlawful reprisal, it could not provide him with any effective relief, because an order of the MSPB is not enforceable against the Ohio National Guard. 244 F.3d at 1336-37. The court reasoned that even if Singleton were to prevail in his reprisal claim, a remedial order could not be directed to the Ohio Adjutant General, who is not a federal employee. The MSPB could possibly order the Ohio National Guard to take corrective action, since the MSPB has ruled that a state National Guard is a federal agency, but the Guard can act only through its adjutant general, and the MSPB lacks any authority to order the adjutant general to do anything. Id.

With all due respect to the Federal Circuit, this reasoning sounds both circular and defeatist. Even though the court acknowledged that the Ohio National Guard may indeed be a federal agency - against which both the Board and the Authority, under their separate statutes, can issue remedial orders - it refused to entertain the possibility of issuing an order against the Guard itself. Federal courts issue orders to federal agencies all the time, but the Singleton court offered no explanation for passing over that avenue of relief and singling out the adjutant general as the only entity to whom the order must be issued. And then, as for the possibility of ordering the adjutant general to take action, the court simply threw up its hands and concluded that the MSPB had no authority to order the AG to take any action. Id. at 1337. But the case law is replete with examples of courts and federal agencies ordering agencies to take actions, as well as ordering the heads of those federal agencies to do so. None of the federal circuit courts that have enforced orders under the Statute have expressed the slightest difficulty in issuing such orders in cases against state National Guards, and the Lipscomb court was quite emphatic that the Mississippi Adjutant General himself and the Mississippi National Guard were federal agencies, subject to orders issued by the Authority or the court. 333 F.3d at 613, 617-18; see also cases cited by the Authority in Miss. ANG, 57 FLRA at 339. The Authority has similarly ordered state National Guards, as well as state adjutants general, to take specific actions in far too many cases to list, and circuit courts have enforced those orders, when called upon.

Applying this precedent, I conclude that the Adjutant General of Ohio, as an employer of federal civilian technicians who are employees within the meaning of the Statute, is an agency within the meaning of § 7103(a)(3) of the Statute. Further, because the Ohio Adjutant General's Department and the Ohio National Guard are entities that operate under the authority and direction of the Adjutant General, I find that they too are agencies within the meaning of § 7103(a)(3) of the Statute. Accordingly, the Authority has jurisdiction over the Respondent.

I will now consider the unfair labor practices alleged in the complaints. These allegations fall into three general categories: the independent violations of § 7116(a)(1), the termination of employee dues allocations, and the unilateral changes in conditions of technicians' employment.
The Agency's Communications Interfered with and Restrained Employees in the Exercise of their Rights
I will first address the allegations that the Respondent committed independent violations of § 7116(a)(1) of the Statute, because those allegations are relevant to many other aspects of this case. The Agency's communications to employees - the September 28 memo and several other written statements thereafter - cast a shadow over the Agency's subsequent relations with the Union and with employees, and they affect my consideration of the other alleged unfair labor practices. In essence, the September 28 memo and its frequent reaffirmations poisoned the atmosphere in which labor-management relations could occur.

Under § 7102 of the Statute, an employee has the right to form, join, or assist any labor organization, or to refrain from such activity, freely and without fear of penalty or reprisal. In addition, it protects the right to "engage in collective bargaining with respect to conditions of employment through representatives chosen by employees . . . ." Id. Section 7102 protects (among other things) employees' right to file and process grievances under a collective bargaining agreement. Scott AFB, 34 FLRA at 965.

Under § 7116(a)(1) of the Statute, an agency commits a ULP when it interferes with, restrains, or coerces employees in the exercise of their rights protected under the Statute. Mich. ANG, 69 FLRA at 396. For instance, the Authority has held that an agency violates § 7116(a)(1) by indicating that "there would be no point" in filing a grievance, or by asserting that an employee had no rights or recourse under the negotiated grievance procedure because the agreement had expired. Additionally, an agency's violation of § 7115 can interfere with an employee's right under § 7102 to form, join, or assist any labor organization. AFGE, AFL-CIO, 51 FLRA 1427, 1438 (1996).

With these rules in mind, I evaluate the General Counsel's allegation that the September 28 memo interfered with, restrained, and coerced employees in the exercise of their protected rights. It is important to understand the context in which Colonel Giezie made the statements in that memo. It was sent a few days after Giezie and Aukland had sent a letter to the Union, notifying it that "[t]he Agency no longer recognizes the existence of any portion of the former [CBA]. . . . Until a new CBA is in effect, the Agency will continue to assert . . . jurisdictional defenses to the Federal Services Labor Management Relations Act." Resp. Exs. 3 & 4. In the September 28 memo, Giezie indicated that he had already notified the Union that management would no longer be bound by the CBA and would challenge the applicability of the Statute to technicians. Therefore, the memo was sent to provide "guidance to supervisors for management of their . . . Technician workforce." GC Ex. 2, ¶ 3. Giezie advised recipients that the Agency "is not bound by any provision of the CBA" and "does not consider itself obligated to abide by the FSLMRA." Id., ¶¶ 1, 2. In the absence of the Statute and the CBA, "grievances will be forwarded to the HRO for ad hoc resolution." Id., ¶ 3. Other "matters formerly the subject of the CBA" (including absence and leave, awards, and discipline) would be governed by internal personnel regulations. Id., ¶¶ 3, 4. Moreover, while Giezie testified that he intended the memo to be sent only to supervisors and managers, in fact it was sent - at his direction and by his assistant - to over 2,000 people, including 284 bargaining unit employees.

The objective meaning of these statements is clear: technicians would no longer have any of the legal protections given to federal employees under the Statute; neither technicians nor their union would be able to utilize the CBA's grievance procedure to enforce any of the conditions of employment contained in the CBA; and management would be guided only by its own regulations in dealing with employees. And while the memo did not explicitly spell out the consequences of the Agency's disavowal of the Statute, those consequences were equally clear: the FLRA would (at least in the Agency's view) no longer be able to utilize any of the procedures contained in the Statute to regulate collective bargaining at the Agency. In other words, bargaining impasses would no longer be resolved at the FSIP; negotiability disputes would no longer be resolved by the Authority; contract disputes could no longer go to arbitration; and if management retaliated against a technician for engaging in union activity, the Authority would not be able to protect him. Employee witnesses at the hearing confirmed that they understood the memo in this manner, but I do not need their personal impressions to understand both the explicit and implicit meaning of Giezie's words.

But as I have already noted, the September 28 memo did not simply eliminate the negotiated grievance procedure; it also advised employees that the entire CBA was null and void. In other words, none of the multitude of contract provisions negotiated by the Union over many years, concerning all sorts of conditions of employment, had any validity whatsoever, and employees were subject entirely to the dictates of the Agency. None of the rules regarding leave, hiring, promotion, safety, seniority, RIFs, and discipline, which technicians had become accustomed to following, could be relied upon any more. But the memo went even further: not only was the Union powerless to protect employees regarding the conditions of their employment, but so was the FLRA. Asserting their rights would not only be a futile act for employees, but a dangerous one. Technicians would be totally at the mercy of the Adjutant General and his HR office. I can think of nothing that would have a greater chilling effect than statements like these. Once employees have been told that the Union and the federal government are powerless to protect them in their dealings with the Agency, they understand that both their civilian and military careers can be jeopardized by challenging a supervisor's or an HR official's directions.

The letters sent to employees on April 4 compounded the Agency's interference with employees' right to assist the Union, by telling them that the Agency "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." GC Exs. 8 & 14; Tr. 98-99. This was a fulfillment of Aukland's earlier promise to Rice to terminate all employees' dues allotments. The April 4 letters were sent to 41 technicians whose SF 1187s were still on file with the Agency; nevertheless, the Agency told these employees that it would seek DFAS approval to stop their dues allotments. While the Agency subsequently deferred acting on this plan, it has not rescinded its notices to the 41 technicians, and the coercive effects of the April 4 letters linger unabated. These letters communicate not only to the 41 affected employees, but to the Union and the entire bargaining unit, that the Agency will utilize the lack of a CBA as the basis for cutting off the Union's financial support - an action that would impair the Union's ability to represent dues-paying and non-dues-paying employees alike.

I reject the Respondent's argument that, because the September 28 memo was intended only for supervisors and managers, the Agency should not be held liable for it. This claim simply is not credible, given the facts of this case. Although the record is unclear whether Ms. Tabler (the HR assistant who distributed the memo) was an agent of the Respondent, it is undisputed that she worked directly for Colonel Giezie and sent the memo (twice in one day) at his direction. She told Giezie that she had no management-only distribution list, and Giezie told her to go ahead and use the "A" and "D" lists. As the director of this department, it is clear that Giezie sent out considerable correspondence to both employees and supervisors, and even if he did not explicitly understand who would be receiving the memo, he certainly should have. His willful ignorance of that fact does not excuse the reality that the memo was directly received by nearly 300 bargaining unit members, and subsequently passed on undoubtedly to hundreds more. Giezie admitted as much at the hearing. Tr. 412-13.

Finally, I note that the Agency has never retracted the contents of the September 28 memo. At some point in the weeks after September 28, it was inevitable that word spread back to supervisors and HR officials that the memo had been sent to technicians. There was ample time for Colonel Giezie to advise all technicians, publicly and in writing, that the Agency would continue to observe the terms of the CBA and the Statute until its legal claims were resolved, but he did not do so; instead, he and Aukland doubled down on the September 28 memo and continued to assert publicly that the CBA was void and that the Statute didn't cover them. The Agency must, therefore, accept the legal liability for the unlawful statements it has made.

For all of these reasons, I find that the Respondent's statements in the September 28 memo; the January 10 letter to Jung; the March 1 letter to Rice; and the April 4 letters interfered with, restrained, and coerced employees in the exercise of their rights under the Statute, in violation of § 7116(a)(1).
The Respondent Violated § 7116(a)(1) and (5) of the Statute by Refusing to Be Bound by Mandatory Terms of the CBA, including Provisions Concerning the Grievance-Arbitration Procedure and Official Time
Now that I have established the unlawfulness of the Agency's ongoing communications with employees between September 2016 and at least May 2017, we can better evaluate the GC's allegations that the Agency repudiated mandatory terms of the CBA, thereby refusing to negotiate in good faith with the Union, in violation of § 7116(a)(1) and (5) of the Statute.

In applying this rule, the Authority has specified that while terms and conditions of employment resulting from permissive bargaining may be unilaterally terminated by either party when the CBA expires, conditions of employment involving mandatory subjects of bargaining must be maintained. U.S. Dep't of Justice, INS, Wash., D.C., 52 FLRA 256, 260 n.3 (1996); see also U.S. Food & Drug Admin. Ne. and Mid-Atl. Regions, 53 FLRA 1269, 1275-76 (1998), for discussion of what constitutes a permissive subject. In accordance with this principle, the Agency's Human Resources Officer notified the Union in 2014 that it would stop complying with certain permissive terms of the soon-expiring CBA, while continuing to follow the remainder of the agreement. GC Ex. 10. Among the issues that have been held to be mandatory subjects of bargaining are: matters pertaining to negotiated grievance and arbitration procedures; official time; procedures for discussing potential disciplinary matters informally; consultation with a union prior to changing the area of consideration; and procedures for deducting and remitting union dues. After a CBA has expired, an agency that unilaterally terminates a contractual provision (or provisions) that constitutes a mandatory subject of bargaining violates § 7116(a)(1) and (5) of the Statute. SSA, 44 FLRA at 881.

In stating that the Agency "is not bound by any provision of the CBA," the September 28 letter clearly repudiated those CBA terms involving mandatory subjects of bargaining. GC Ex. 2. These terms include the grievance and arbitration procedure in Article 16, the official time provisions in Article 11, and the provisions concerning discipline in Article 15 of the CBA.

Not only did the September 28 memo repudiate the CBA in general, but it specifically imposed a new, "ad hoc" grievance procedure, to be administered by the HRO. GC Ex. 2 at 2. This corroborates what Aukland stated in his March affidavit, in which he said: "I do not view us as having a grievance procedure per se. . . . [W]e're not going to process them under the five-step process under the expired CBA." GC Ex. 1(r), Aukland Affi. at 8. This was clearly done unilaterally, without notifying or bargaining with the Union. Although Colonel Giezie claimed at the hearing that his office has instructed supervisors to observe the CBA and the negotiated grievance procedure (Tr. 382-84), there is no evidence that employees have been advised of this, and I find it incredible. Giezie himself acknowledged that the September 28 memo gave employees the impression that they had no grievance rights under the CBA, and that employees would only learn otherwise if they spoke directly to him. Tr. 384. The testimony of Wayble and Higginbotham, that they were able to resolve a few employee complaints informally with supervisors (Tr. 49, 107), does not establish that the CBA grievance procedure was being followed, but only that some supervisors continued to meet with Union officials. The overwhelming evidence shows that the Agency made it clear to employees that their only recourse was to follow an ad hoc procedure under the final control of the HR director. Accordingly, I find that the Respondent unlawfully changed the technicians' conditions of employment by imposing a new, ad hoc grievance procedure and by repudiating the negotiated procedure.

With respect to official time, Higginbotham testified that he approached his supervisor after September 28 about a problem that required his attention as a Union steward, and he requested official time to handle it. His supervisor called the HRO while Higginbotham waited in the room, and when he got off the phone the supervisor told Higginbotham that official time was no longer being recognized. Tr. 94-95, 102-03. Aukland confirmed that after September 28, the Agency no longer accepted the provision in Article 11 entitling the Union President to 100 percent official time, but he was ambiguous as to whether management granted official time to other Union officials. Tr. 335-36. No management witness offered any specific evidence showing that it continued to grant official time. In light of the sweeping language of the September 28 memo, and the above-cited testimony of Higginbotham and Aukland, I find that the Agency told at least one Union steward that official time was no longer being granted, and that the Agency renounced its contractual obligation to grant 100 percent official time to the Union President. Accordingly, the Respondent violated § 7116(a)(1) and (5) by changing its policy regarding official time.

However, the GC has not established that the Agency changed its policy or practice regarding disciplinary actions. I note first that the GC offered no evidence of specific instances in which an employee was disciplined and the Union was not allowed to discuss it with the supervisor. Higginbotham's testimony was quite vague, saying only that after September 28 "I didn't get hardly any calls from anybody, other than maybe an employee." Tr. 96. Compounding the difficulty, Article 15 of the CBA is similarly vague as to the supervisor's duty in such situations. It requires that before disciplinary action is initiated, "the affected employee and a union representative will be given the opportunity to informally discuss the problem . . . with the supervisor." GC Ex. 9 at 11. Whether this means the supervisor has an affirmative obligation to notify the Union, or whether the supervisor simply is obligated to meet with the Union on request, is unclear, and the hearing testimony did not shed light on this issue. While I recognize that the Agency's repeated statements that the CBA was void, and that the Statute didn't protect them, likely deterred employees from seeking Union assistance in disciplinary situations, I have already found that those statements constituted independent violations of § 7116(a)(1) of the Statute. I don't believe that the evidence supports a further finding that the Respondent changed its policy regarding disciplinary actions.
The Respondent Violated § 7116(a)(1) and (8) of the Statute by Terminating the Union Dues Allotments that Employees had Authorized
Section 7115 of the Statute provides, in pertinent part:

(a) 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 . . . . Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.

(b) An allotment under subsection (a) of this section for the deduction of dues with respect to any employee shall terminate when--

(1) the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee; or

(2) the employee is suspended or expelled from membership in the exclusive representative.

An agency is permitted to terminate an employee's dues deductions only when it follows the requirements set forth in § 7115(b) of the Statute. Mare Island, 47 FLRA at 1293. Section 7115(b)(1) provides that allotments shall terminate "when the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee." 5 U.S.C. § 7115(b)(1). Examples of what it means for an agreement to "case to be applicable to an employee" can be seen in Authority precedent, legislative history, and administrative opinions. In this regard, the Authority has noted that § 7115(b)(1) requires the termination of an employee's union dues deductions when the employee ceases to be part of an established bargaining unit. U.S. Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 16 FLRA 872, 874-75 (1984).

Looking at the legislative history of § 7115, the House Report stated:

Subsection (b) . . . requires that an allotment terminate when . . . the existing collective bargaining agreement between the agency and labor organization ceases to be applicable to the employee ( the employee is promoted to a management position or leaves the employ of the agency) . . . .

H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 48 (1978) (emphasis added).

The Comptroller General has adopted this interpretation of § 7115(b), stating: "Section [7115](b)(1) applies to situations where the employee is promoted to a management position or leaves the employ of the agency." In re Margaret Jackson - Withdrawal of Allotment of Union Dues, B-196978, 1980 WL 18062 (Comp. Gen. Aug. 14, 1980). Similarly, and as noted above, the DoD FMR states that a collective bargaining agreement ceases to be applicable to the employee when: (1) the employee is separated from the employing agency; (2) the employee is promoted or reassigned to a supervisory position; or (3) the labor organization loses eligibility for exclusive recognition. Resp. Ex. 1.

There is no serious dispute that the Agency stopped deducting union dues for at least 89 bargaining unit employees - including Craigo, Rice, and Wayble - who did not have SF 1187s on file, even though the employees had initially authorized the deductions, and even though the employees had not asked the Agency to terminate the deductions. See GC Exs. 1(b) & 1(d); Tr. 227. These terminations were valid only if they met one of the criteria set forth in § 7115(b). One of those two criteria - termination when the employee is suspended or expelled from union membership - clearly does not apply here. Thus the Agency's only justification for terminating these employees' dues allotments is that the CBA "cease[d] to be applicable" to the employees when the CBA expired. 5 U.S.C. § 7115(b)(1). However, the above-cited examples of when § 7115(b)(1) applies - an employee becomes a supervisor, the employee leaves the employ of the agency, and the union loses eligibility for exclusive recognition - are not present in our case. Moreover, because the Authority has indicated that an agency must honor dues assignments even if no agreement is in effect at the time, it follows that an agreement's expiration cannot be a basis for terminating an employee's authorized deductions.

This interpretation is bolstered by the fact that § 7115(b) refers to the contract no longer being applicable to a single "employee," rather than a group of employees, which would be the case if dues could be terminated upon the expiration of a contract. For these reasons, the phrase in § 7115(b), that an allotment shall terminate when the agreement "ceases to be applicable to the employee," does not mean that an allotment terminates when a collective bargaining agreement expires. See U.S. Mint, 35 FLRA at 1099-1100. Continuing dues deductions post-expiration is consistent with the statutory purpose of providing a greater measure of union security, thereby fostering stability in federal labor-management relations. See Readiness Command, 7 FLRA at 198-99. This same interest in fostering stability was the basis for the George AFB rule that mandatory conditions of employment must be continued after a CBA expires. 4 FLRA at 23. For all these reasons, the Agency's termination of employees' authorized union dues deductions was unlawful.

The Respondent's justifications for its actions are unconvincing. It contends that 110202 of the DoD FMR requires that an SF 1187 be on file to justify a union dues allotment. Resp. Br. at 29. But this provision requires only that SF 1187s be submitted to initiate dues deductions, a requirement that was satisfied in our case. Resp. Ex. 1 at 11-5, -6; see also Tr. 186, 189, 403. Nothing in ¶ 110202 requires that SF 1187s be maintained in order for dues deductions to be continued. Resp. Ex. 1 at 11-5, 11-6; Tr. 303. Accordingly, this justification does not withstand scrutiny.

Citing ¶ 110202, Respondent also argues that it would have been responsible for reimbursing an employee if a deduction occurred without an SF 1187 on file. But the FMR requires reimbursement only when an agency has failed to terminate dues deductions for an employee who has left the bargaining unit, a situation that did not occur in our case. Resp. Ex. 1 at 11-7. Moreover, ¶ 110201 indicates that an agency "has no liability in connection with any authorized allotment," and the allotments at issue in our case were authorized. Resp. Ex. 1 at 11-5; GC Exs. 1(b) & 1(d); see also Tr. 186, 189, 403. Additionally, an agency's potential liability is not in itself a basis for terminating an allotment, as set forth in § 7115 of the Statute. Therefore, this argument also lacks merit.

The Respondent contends that it terminated the technicians' dues deductions to comply with "stringent audit readiness requirements" established by the U.S. Department of Defense and monitored by the USPFO. However, it has not provided any documentary evidence to substantiate this claim. In particular, Respondent offered no documentation defining the "audit readiness" requirements or stating that an agency must terminate an employee's authorized union dues deductions if the agency loses the employee's SF 1187. Further, while Colonel Dernberger, Colonel Giezie, and Aukland testified that it was necessary for the Agency to maintain employees' SF 1187s on file, they did not cite a law or regulation specifically requiring an agency to terminate an employee's authorized union dues deductions when the employee's SF 1187 is lost. See Tr. 171-72, 177-80, 287, 377. And I doubt that such a strict requirement exists, given that the Agency permitted dues deductions to continue even though it knew for years that some employees' SF 1187s were missing. It was also unreasonable for the Agency to put the burden on employees to rectify the problem of the missing SF 1187s, given that it was the Agency's responsibility to maintain those forms, and given that it was most likely the Agency's document retention policy that caused the loss of the forms. See Tr. 186, 198, 303. 402. Finally, and ultimately most importantly, an agency's internal audit requirements are not a reason listed in § 7115 justifying the termination of an employee's authorized union dues deductions.

The Respondent counters that Wayble and Rice refused to submit new or original SF 1187s for themselves. But again, the language of the Statute is a brick wall that will not yield to the Respondent's self-created paperwork exigencies. There is nothing in § 7115 or in the case law that permits the Agency to punish an employee's refusal to provide such documentation by terminating the employee's previously authorized dues deductions. As already noted, Congress has stated that the employee alone controls the matter of dues payment. These employees had previously told the Agency that they wanted their union dues deducted, and the Agency had received nothing from them to indicate that they wished to revoke that authorization. Accordingly, the Agency was required to continue the deductions.

Moreover, while the Agency invited employees to submit a new or original SF 1187, an employee could reasonably conclude, as Rice did, that submitting the form would be pointless, in light of the Agency's oft-stated position that it was not bound by the CBA or the Statute. See Tr. 114-15. The futility of submitting a new SF 1187 seems to have been demonstrated by the Agency's response to Craigo's submission of a new 1187. Resp. Ex. 2; Tr. 252. Although Craigo had clearly told the Agency she wanted to continue having her union dues deducted, the Agency refused to carry out her request, simply because her form lacked the signature of a Union official. In light of the Statute and the case law, this response is simply unacceptable, and it demonstrates a predisposition on the Agency's part to eliminate employee dues allotments whenever possible. The futility of cooperating with the Agency was further demonstrated: (1) by Aukland's March 1 letter to Rice, stating that he could not ensure that the Respondent would honor a new SF 1187 "without a new CBA" (GC Ex. 6 at 3); (2) by the April 4 letters (GC Ex. 8) sent out to dozens of additional employees, telling them that the Agency was recommending that all dues allotments be terminated; and (3) by Wayble's testimony that he was unable to get the Agency to process an employee's SF 1187 (Tr. 76-77). Finally, the Agency's repeated statements to employees regarding the Agency's refusal to accept the Statute or the FLRA's jurisdiction reasonably justified a fear among employees that they would be subjected to retaliation if they submitted an SF 1187. In light of these facts, the Agency can hardly shift the blame to employees or the Union for refusing to submit additional documentation. See U.S. Mint, 35 FLRA at 1100.

Based on the foregoing, I find that the Respondent violated § 7116(a)(1) and (8) of the Statute by terminating employees' authorized allotments of union dues.
Respondent Violated § 7116(a)(1) and (5) of the Statute by Unilaterally Implementing the New Policy Regarding Union Dues Deductions
I have already addressed the allegations that the Agency unilaterally stopped complying with provisions in the CBA concerning grievances, official time, and discipline, in violation of § 7116(a)(1) and (5). In this section and the next, I will consider the related allegations that the Agency violated its duty to bargain in good faith by changing its dues deduction and merit promotion policies. Unlike its actions regarding the grievance procedure and official time, however, the Respondent argues that it implemented the dues deduction and merit promotion changes after notifying the Union of its proposed changes, and after the Union waived its right to bargain. Therefore, it is necessary here to confront the unexplained turnover in Union leadership and the Agency's difficulties in notifying the Union of changes in conditions of employment.

In the previous section, I discussed how the Agency's termination of dues allotments for at least forty-eight technicians violated §§ 7115(a) and 7116(a)(1) and (8) of the Statute. As I noted there, the termination of those allotments violated the individual statutory rights of those employees. The 7116(a)(1) and (5) allegations, on the other hand, concern the Agency's obligations to the Union. But regardless of whether the Agency violated its statutory duty to bargain with the Union over these actions, it has violated the rights of the technicians and must remedy those violations.

Colonel Giezie testified that prior to adopting the new dues policy in November, he sent Dohrmann an email on approximately October 6, enclosing "a previous draft" of the policy, asking for his "comments and feedback," and offering to "negotiate impact and the implementation" of the policy. Tr. 351, 392. Dohrmann did not respond to Giezie, so the Agency proceeded to implement a revised version of the policy.

We do have Giezie's November 14 letter to Dohrmann, however, and it does corroborate that Giezie had previously sought the Union's input regarding the dues policy. Resp. Ex. 8 at 7. But it tells us nothing about the substance of the earlier proposed policy or its timing, making it extremely difficult to assess the legal adequacy of the notice. Moreover, the November 14 letter uses the phrase "impact and . . . implementation" to describe Giezie's offer to bargain, and this reflects a misunderstanding on the Agency's part of its duty to bargain. The changes to the Agency's dues allotment policy were not an exercise of its management rights under § 7106(a) of the Statute; rather, they were changes that were fully and substantively negotiable. The Agency was required to bargain over the changes in their entirety, not merely on their impact and implementation. And more to the point, the Agency was not actually offering to negotiate within the meaning of the Statute at all.

As I have said before, the Agency's implementation of its new dues allotment policy must be understood in the context of all the events starting in September of 2016: specifically, the September 20 notice to the Union that the Agency was repudiating the CBA in its entirety and its own obligations to comply with the Statute; and the September 28 memo, advising technicians and supervisors of what it had just notified the Union, and announcing that the Agency would thereafter apply its own policies on all matters formerly the subject of the CBA. In this light, how can Colonel Giezie's request for "comments and feedback" from the Union be taken seriously as a request to bargain under the Statute? If he disagreed with the Union about the negotiability of a proposal, would the Agency have submitted itself to the Authority's negotiability procedures? If the parties had reached an impasse on the policy, would the Agency have allowed the dispute to go to the Impasses Panel? Clearly not. The Agency was offering only a pale imitation of bargaining, as it had repeatedly and emphatically asserted that the Statute itself did not apply to the National Guard or its technicians, and that it would not comply with the Statute until a CBA was negotiated.

Therefore, while the absence of any Union leadership in the autumn of 2016 certainly made it difficult for the Agency to engage with the Union regarding its loss of the SF 1187s and the Agency's proposed solution to that issue, the Union did not waive its right to bargain over all aspects of that subject, because the Agency never properly made an offer to fully bargain with the Union. Accordingly, I conclude that the Respondent failed to negotiate in good faith with the Union over the dues policy, in violation of § 7116(a)(1) and (5) of the Statute.
Respondent Violated § 7116(a)(1) and (5) of the Statute by Unilaterally Implementing the New Merit Promotion Plan
The Agency implemented its new merit promotion plan on February 6, 2017. GC Ex. 4. The old plan (GC Ex. 21) provided that job announcements would normally be posted for thirty days, while the new plan reduces that posting time to fifteen days. The new plan also utilizes a new process for scoring candidates; specifically, it incorporates a "full soldier-airman concept" in evaluating applicants and promotes the Agency's diversity and inclusion goals by allowing the selection board to consider additional factors, including past experience, resumes, and references, and by reducing the influence that any single manager has on the determination of an applicant's score. Tr. 385-87.

Further, I have no doubt that these changes - which could affect whether an employee had enough time to apply for a promotion and whether the employee would receive the promotion - had greater than de minimis effects on conditions of employment. See U.S. Dep't of the Treasury, IRS, 66 FLRA 528, 530 (2012) (noting that changes affecting an employee's earning potential are greater than de minimis). The Agency claims these changes were not "material," but it cites no case law to support that claim, and Aukland's assertion that there were no material differences between the old and new merit promotion plans is contradicted by the documents themselves. Tr. 293. While the new plan retained the bulk of the old plan, the changes directly affected the ability of technicians to move laterally and upwards at the Agency. Therefore, the Agency was obligated to provide the Union with adequate notice of the planned change.

The Agency insists that it met this requirement. It asserts that it mailed copies of the new merit promotion plan to Union officials at their addresses of record but that "none of the union members would receive mail" there. Resp. Br. at 32, citing Tr. 290. Therefore, the Agency argues that the Union waived its right to bargain. But this defense runs into the same problems that I discussed regarding the change in the Agency's dues deduction policy.

First, I am not convinced that the Agency ever sent the Union a copy of the proposed merit promotion plan, much less offered to negotiate over it. Aukland's and Giezie's testimony on this point was vague and contradictory, and there is no documentary evidence to corroborate it. (See my discussion of this at footnote 10.) I credit Colonel Giezie's testimony that he had Aukland "reach out" to the Union's then-President Reynolds in January 2017, but I do not believe that the Agency ever sent a written notice of the proposed plan to the Union, and we certainly have nothing to show what might have been contained in such a document, even if it existed.

Second, even if the Agency had mailed the Union a copy of its proposed changes to the merit promotion plan prior to its implementation, that still is not sufficient to demonstrate that it gave the Union adequate notice of the change. We have no evidence indicating that the Agency explained its intentions to the Union, advised the Union about the planned timing of the change, or even invited the Union to bargain. Merely sending the Union a copy of a proposed change, without any specific explanation of the change, its certainty, or its timing, is not enough to provide the Union with adequate notice of the planned change. See Corps of Engineers, 53 FLRA at 82-84. And in the particular facts of this case, sending the Union a copy of the new plan without an explanation of the proposed changes or an invitation to bargain, in the wake of the Agency's repeated statements that it was not bound by the Statute or the CBA, suggests that the Agency was announcing the change as a fait accompli. Finally, as I noted regarding the change in dues deductions, any purported offer by the Agency to "bargain" was not an offer to bargain within the meaning of the Statute.

Therefore, I find that the Respondent violated § 7116(a)(1) and (5) of the Statute by unilaterally implementing the new merit promotion plan.

The Respondent has committed a wide range of unfair labor practices: it has made numerous coercive statements to the entire bargaining unit, telling them that they have no legal protections under the Statute, and that the terms of the CBA are void; it has refused to abide by specific provisions of the CBA, including the grievance procedure and official time; it has unilaterally implemented changes in conditions of employment; and it has improperly terminated union dues deductions to at least eighty-nine employees and threatened to terminate deductions for all other employees. Moreover, it has committed, and repeated, these actions over several months.

The Authority has developed a variety of traditional remedies for these types of violations, which the GC endorses and asks me to order. I agree. The GC also requests two nontraditional remedies: that the Authority's notice to employees be distributed to managers and supervisors, as well as employees, and that Agency officials be required to retract its coercive statements by reading the Authority's notice aloud at meetings around the state attended by both employees, supervisors, and HR staff. I agree with the first of these remedies, but not the second.

Most of the Respondent's unfair labor practices can be adequately addressed by one or more of the traditional remedies. The Agency's refusals to comply with all or some of the provisions of the CBA can be remedied by ordering it to comply with, and abide by, all mandatory provisions of the CBA, and to make whole any employees adversely affected. See U.S. Dep't of Justice, Fed. Bureau of Prisons, 68 FLRA 786, 790 (2015) (ordering compliance with an agreement the agency had repudiated); Ohio ANG, 21 FLRA at 1079 (ordering agency to cease refusing to give effect to a CBA); George AFB, 4 FLRA at 22-23 (agency ordered to stop refusing to process a grievance under the negotiated grievance procedure in an expired CBA). The Authority recognizes that a central objective of its remedial authority is "to recreate the conditions and relationships that would have been had there been no [ULP]" and to restore, as far as possible, the status quo that existed before the ULPs. U.S. Dep't of VA, VA Med. Ctr., Martinsburg, W.Va., 67 FLRA 400, 402 (2014). When a ULP causes employees or unions to suffer monetary losses, the Authority requires the offending party to pay backpay, restore leave, or otherwise reimburse them. U.S. Dep't of Labor, Wash., D.C., 37 FLRA 25, 39-41 (1990). And when agencies have violated the dues deduction requirements of § 7115, the Authority routinely orders them to reinstate the dues allotments of individuals in the unit whose dues allotments were unlawfully terminated, and to reimburse the union in an amount equal to the amount of dues it would have received, but for the agency's unlawful conduct. See, e.g., U.S. Mint, 35 FLRA at 1100; Def. Logistics Agency, 5 FLRA 126, 131-33 (1981).

For purposes of evaluating a remedy, I will presume that the new merit promotion plan involved the exercise of management's rights under § 7106(a), and I will apply the FCI criteria to the facts of this case. All of the factors support a status quo ante remedy here. As I have already discussed, the Agency failed to give the Union adequate notice of the change, and the Union was thus excused from a requirement to request bargaining. Moreover, the Agency acted willfully. By the time it sought to implement its dues deduction policy, it already knew that it could not reach Dohrmann at his post office box, but it made no additional effort to contact him personally at his work site. I consider the Agency's effort to "reach out" to the Union to be half-hearted at best, and more likely a convenient excuse for the Agency to act unilaterally, in light of Colonel Giezie's September 28 memo and the Agency's numerous announcements to employees and managers that the CBA was void and the Statute inapplicable. As I have also noted, the Agency's concept of "bargaining" with the Union after September 28 was not the process required by the Statute; therefore it cannot be credited with any good faith here. For these reasons, the first three factors support a status quo ante remedy. With respect to the fourth factor, employees were adversely affected by having fifteen fewer days to apply for positions. And while there may have been many valid reasons for the Agency changing the way it scored candidates, such changes inevitably result in "winners" and "losers," and the Union should have had a say in addressing the potential adverse effects of the new process. As for the fifth factor, there is no evidence that a return to the old merit promotion plan would disrupt or impair the efficiency or effectiveness of the Agency's operations. As the Respondent has itself pointed out, the new plan did not radically alter the regulation that had been in use for many years. Returning to the earlier merit promotion plan will also serve to encourage the Respondent to engage in good faith negotiations to implement a new plan. For these reasons, a status quo ante remedy is warranted.

The GC also requests nontraditional remedies. The Authority discussed the legal and factual parameters for both traditional and nontraditional remedies in F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 161 (1996) ( Warren AFB):

[A]ssuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to "recreate the conditions and relationships" with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct.

Nontraditional remedies are not warranted merely because they would further a salutary objective; rather, they are appropriate only when traditional remedies would not adequately redress the wrong incurred by the ULP. Moreover, remedies for ULPs may not be punitive. BOP, 67 FLRA at 223-24.

The GC requests that the "Notice to All Employees" - which is always sent to bargaining unit employees - also be sent to supervisors and management officials. This is a nontraditional remedy. USP Florence, 53 FLRA at 1394. Nonetheless, I believe it is a remedy that is particularly suitable to the circumstances of our case, as it would directly refute the contrary message the Agency sent to supervisors, managers, and employees on September 28. While the September 28 memo was inadvertently disseminated to employees, it was primarily intended to provide guidance to supervisors and managers on how to handle personnel matters in the absence of a CBA and Statute. By sending today's notice directly to managers and supervisors, the Authority would begin to alleviate the unlawful message that the Agency sent them on September 28, in a manner that could not be accomplished by a notice sent only to bargaining unit employees. Sending the notice to managers and supervisors would promote compliance, ensure a uniform understanding throughout the Ohio National Guard, and reduce the risk that the Order would be misinterpreted or ignored. Given the erroneous theories that the HRO has espoused (not only in the September 28 memo but in many other communications as well), it is especially important to give managers and supervisors a clear explanation of their duties under the Statute. By widely educating managers and supervisors about the Respondent's obligations under the Statute, the remedy will deter future violations of the Statute. In addition, the knowledge that notices will be sent to managers and supervisors will give employees confidence that they will not be ignored, second-guessed, or retaliated against when asserting rights under the Statute. Finally, the Respondent has not cited any legal or public policy arguments against imposing this remedy, and none are apparent. For all of these reasons, I believe this remedy is warranted.

Like the agency in USP Leavenworth, the Respondent in our case has acted egregiously. However, I believe that the remedies I have already recommended are sufficient to recreate the conditions and relationships with which the Respondent's violations interfered. The Respondent's most egregious and harmful violations were carried out through written messages, so it is appropriate to remedy the violations by sending managers and supervisors, along with bargaining unit employees, copies of the Notice. Further, while a notice read aloud by the warden (or an Authority agent with the warden present) was a fitting punishment designed to counteract the statements the warden made to employees at a large, mandatory meeting, there was no similar type of meeting in our case. Requiring management to perform public readings of the notice would be superfluous, if not an attempt to humiliate management officials, a remedy which borders on being punitive. Additionally, because the Respondent's employees work at disparate locations around the state, and HR and management officials do not necessarily work there, attempting to organize such meetings with bargaining unit employees and managers would present unnecessary logistical challenges. For these reasons, I deny the GC's request for this remedy.

Based on the foregoing, I recommend that the Authority adopt the following order:
ORDER
Pursuant to § 2423.41(c) of the Rules and Regulations of the Authority and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the U.S. Department of Defense, Ohio National Guard (Respondent), shall:

1. Cease and desist from:
(a) Failing and/or refusing to recognize and comply with the mandatory terms of the expired collective bargaining agreement (CBA) between the American Federation of Government Employees, Local 3970, AFL-CIO (Union) and the Respondent, including those terms regarding 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.

(c) Unlawfully removing employees from union 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 CBA between the Respondent and the Union, 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 action in order to effectuate the purposes and policies of the Statute:
(a) Post at its facilities where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Adjutant General of the Ohio National Guard, and shall be posted and maintained for sixty consecutive days thereafter, in conspicuous places, including all bulletin boards and other 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 bargaining unit employees and to all managers and supervisors in the Ohio Army and Air National Guard.

(c) Reinstate to dues withholding status all bargaining unit employees 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 CBA and to any existing personnel policies and practices and matters affecting working conditions since September 28, 2016, including restoring the CBA's grievance and arbitration procedure, rescinding the February 2017 changes to the Merit Promotion Plan, 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 Rules and Regulations of the Authority, notify the Regional Director, Chicago Region, Federal Labor Relations Authority, in writing, within thirty (30) days from the date of this Order, a report regarding what compliance actions have been taken.

Issued, Washington, D.C., June 18, 2018

______________________________________________RICHARD A. PEARSON

Administrative Law Judge
NOTICE TO ALL EMPLOYEES POSTED BY ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of Defense, Ohio National Guard (the Ohio National Guard), violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

The Statute gives dual status technicians of the Ohio National Guard 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 of reprisal.

The Ohio National Guard will not violate any of these rights.

More specifically:

WE RECOGNIZE and will comply with the mandatory terms of the expired collective bargaining agreement (CBA) between the American Federation of Government Employees, Local 3970 (the Union) and the Ohio National Guard, 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 CBA, 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 CBA 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 CBA 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 Plan.

WE WILL grant Union officials reasonable official time to 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 existing personnel policies, practices, and matters affecting working conditions.

WE WILL NOT fail and/or refuse to maintain the mandatory terms of the CBA 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 CBA is a nullity, or that the Ohio National Guard 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.

______________________________________________

(Ohio National Guard)

Dated: _______ By: ________________________

(Signature) (Title)

This Notice must remain posted for sixty (60) 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 its provisions, they may communicate directly with the Regional Director, Chicago Region, Federal Labor Relations Authority, whose address is: 224 S. Michigan Avenue, Suite 445, Chicago, IL 60604, and whose telephone number is: (312) 886-3465.

. . . .

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26] 5 U.S.C. § 7103(a)(3) (agency means "an Executive agency," with additions and exclusions not relevant here); § 105 ("'Executive agency' means an Executive department, a Government corporation, and an independent establishment."); id. § 101 (listing the "Executive departments" as "State," "Treasury," "Defense," "Justice," "Interior," "Agriculture," "Commerce," "Labor," "Health and Human Services," "Housing and Urban Development," "Transportation," "Energy," "Education," "Veterans Affairs," and "Homeland Security.").

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Career field education and training plan (CFETP) for the Air Force education and training career field (AFSC 3F2X1)

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Slide #10 Policy or Rule from a School or Institution - Administrative Law: Career field education and training plan (CFETP) for the Air Force education and training career field (AFSC 3F2X1)

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Slide #10 Policy or Rule from a School or Institution - Administrative Law: Career field education and training plan (CFETP) for the Air Force education and training career field (AFSC 3F2X1)

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This policy is specific to the Air Force career field of training and education. The policy describes how this career field aids in the development of competencies in Air Force technical maintenance and logistical support. The education and training Air Force career field “conducts Education and Training (E&T) tasks for maintenance, operations, and support training; performs education services, curriculum development, and instructor activities. Develops, delivers, and evaluates Education and Training programs and oversees Education and Training activities.” (Department of the Air Force, 2023, p. 8, § B 4.1)

Department of the Air Force. (2023). AFSC 3F2X1 Education and Training. https://static.e-publishing.af.mil/production/1/af_a1/publication/cfetp3f2x1/cfetp3f2x1.pdf

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Slide #11 Ethical Principle: AIRMAN’S FOUNDATIONAL COMPETENCIES DEFINITIONS

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Slide #11 Ethical Principle: AIRMAN’S FOUNDATIONAL COMPETENCIES DEFINITIONS

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The modeling of Air Force competencies is based on developing a set of defined ethical behaviors and best practices (Department of the Air Force, 2022, p. 35, Table A2.1). Although the role of UTM is connected to the vast majority of Air Force ethical behaviors and best practices: the most applicable is "information seeking". UTMs offer guidance along a process of "continuous learning". UTMs analyze how training is conducted, "identify areas of deficit" and offer recommendations as subject matter experts (Department of the Air Force, 2022, p. 39, Table A4.5).

Department of the Air Force. (2022). Air Force Handbook 36-2647: Competency Modeling https://static.e-publishing.af.mil/production/1/af_a1/publication/afh36-2647/afh36-2647.pdf

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This study was submitted in 2022 to the RAND Corporation on the necessary investment in Air Force training to counter the threat of large-scale conflict. Air Force training requirements are shifting from the asymmetrical warfare of counter-insurgency to a conventional type of conflict not seen since WWII.  Air Force training managers will play a key role in assessing unit capability through "improved metrics [...] at both the individual and team level." (Toukan et al, 2022, p. 9, para. 4)

Toukan, M., & Schulker, D. (2022). Improving U.S. air force training investments: Putting proficiency first. https://www.rand.org/pubs/perspectives/PEA992-3.html

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The U.S. Air Force (USAF) needs to make near-term investments to develop its operational training infrastructure so that airmen are ready for high-end conflict in future contingencies but lacks the information it needs to make informed decisions for many training investments. This Perspective explores which investments are most appropriate for training needs and which should receive priority, identifying five primary components of training decisions for which additional research and information are needed to support investment decisions in the training enterprise.

Focusing on combat pilot training, the authors assess where the USAF requires additional information and research to support investment decisions in its operational training enterprise. The authors note that new analytic approaches can be harnessed to improve the training enterprise but will not solve the greatest training challenges without first having valid performance metrics. This puts a priority on advancing proficiency measurement.

The authors recommend that the USAF prioritize formulating performance metrics for existing competencies; experiment to identify which are most informative; and create new competencies, measurement approaches, and metrics where existing approaches do not hold up to experimentation. Further, the USAF could use downtime in its emerging force generation model to generate information for metric identification, analysis, and experimentation.

This work was prepared for the Department of the Air Force and conducted by the Workforce, Development, and Health Program within RAND Project AIR FORCE.

This publication is part of the RAND Corporation Perspective series. RAND Perspectives present expert insights on timely policy issues. All RAND Perspectives undergo peer review to ensure high standards for quality and objectivity.

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Citation

Format:

Toukan, Mark and David Schulker, Improving U.S. Air Force Training Investments: Putting Proficiency First. Santa Monica, CA: RAND Corporation, 2022. https://www.rand.org/pubs/perspectives/PEA992-3.html.

Toukan, Mark and David Schulker, Improving U.S. Air Force Training Investments: Putting Proficiency First, RAND Corporation, PE-A992-3, December 2022. As of July 1, 2023: https://www.rand.org/pubs/perspectives/PEA992-3.html

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Improving U.S. Air Force Training Investments

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The U.S. Air Force needs to make near-term investments in its operational training infrastructure to ready airmen for high-end conflict. This Perspective explores which investments are most appropriate and which should receive priority.

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Slide #13 Bulleted List of Recommendations / Best Practices for Compliance: 

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Slide #13 Bulleted List of Recommendations / Best Practices for Compliance: 

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Summary:

UTMs oversee how Air Force training is conducted. Their function enables them to keep all Air Force work centers appraised of the latest changes in training. UTMs verify the completion of the yearly ethical conduct training by all squadron members. UTMs encounter particular ethical issues in regard to test compromise, unlawful disclosure of training materials, and false statements in training reports. UTMs almost always work alone and should be particularly cautious in maintaining the confidentiality of sensitive Air Force training information. A UTM's function has legal ramifications with Constitutional Law, the Uniformed Code of Military Justice, the Department of Defense Instruction 1322.35 Volume 1 Military Education Program Management Administration as well as court decisions on the federal and state level. Although Career Field Education and Training Plans (CFETPs) include how on-the-job training (OJT) stems in part from the ethical principles of Airman Foundational Competencies, these ethical principles are rarely mentioned in actual OJT. Finally, The upcoming change in the Air Force education proficiency assessment from an individual to a group approach announces possible new ethical and legal issues in the education and training career field.

Recommendations:

- Although ancillary training for online operational security and ethical conduct is already a requirement, a training module covering the ethical and operational risks of remote work should be a prerequisite before any DoD employee is able to work outside their office setting.

- Maintain control of training documentation by having manuals that are serialized, criminalize the reproduction of training materials, and have Airmen who are leaving the Air Force turn in their copies of the training material.

- Commission a legal primer from the JAGC to further inform UTMs on the laws and court decisions that affect military education and training.

- Research the existing legal and ethical considerations of joint military operations (Department of Defense Joint Publication, 2016) in preparation for the shift in Air Force education and training from the assessment of individuals to a more collaborative process.

- Inform work center supervisors of the resources accessible on the Air Force Learning Profesional portal as well as their application to on-the-job training and ethical conduct for trainers and task certifiers.

- Ensure that career development testing includes the relationship between OJT competencies and Air Force ethical principles, including the latter more explicitly in OJT.

Department of Defense Joint Publication. (2016). Legal Support to Military Operations. https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp1_04.pdf