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AFGE v. RESOR

November 21, 1974

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Plaintiffs
v.
STANLEY R. RESOR, Secretary of the Army, et al., Defendants



The opinion of the court was delivered by: WADDY

 This action, arising under the federal civil service laws, is before the Court on defendants' motion for summary judgment and plaintiffs' cross-motion for summary judgment. Plaintiffs are five civilian employees of the Department of the Army and the Department of the Air Force *fn1" and the American Federation of Government Employees (AFGE), a labor organization representing federal civil servants. Plaintiff AFGE is recognized by both the Army and Air Force as the exclusive bargaining agent for civilian employees in units in which collective bargaining agreements have been executed. Defendants are the Secretaries of the Army and Air Force and the Commissioners of the Civil Service Commission. Plaintiffs claims, briefly stated, involve the legality of the Army's and Air Force's Reserve Technician Programs (hereinafter referred to as ART), which require as a condition of employment that personnel in the programs maintain membership in the Army and Air Force Reserves. It is alleged that the reserve membership requirement violates various provisions of the civil service laws and that the agreements between the Civil Service Commission and the Army and Air Force establishing the ART programs are unlawfully vague. Plaintiffs ask the Court to declare illegal and to enjoin the operation of the ART programs. In addition, the individual plaintiffs seek injunctive and monetary relief with respect to administrative actions taken against them.

 FACTS

 I.

 The material facts in this case, as set forth below, are undisputed. There being no genuine issue as to any material fact, summary judgment may be entered pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 The Civil Service Commission (CSC), on June 25, 1957, informed the Department of the Air Force that it was approving the Department's proposed ART program, under which specified technical positions in the career civil service would be filled only by persons who became and remained members of the active Air Force reserve. *fn2" Applicants would be required to compete for these positions through competitive examinations, as is true for other positions in the competitive service. *fn3" Incumbents would receive the regular pay of their civilian jobs, plus military pay for the time spent in military status (e.g., weekend reserve duties). A memorandum issued by the CSC shortly after its initial notification to the Air Force outlined the operation of the new plan and noted that it was designed "to increase mobilization readiness of Air Reserve flying units." *fn4"

 Prior to the initiation of the ART program an Air Force Base consisted of two separate organizational units: "Flying Centers" and "Reserve Wings." The latter are combat organizations comprised of active reservists who receive periodic military training. The Flying Center, on the other hand, is made up of both military and civilian personnel engaged primarily in maintaining and operating the Base's facilities. As a result of the inauguration of the ART program the following changes were brought about:

 
Under the Air Reserve Technician Plan, the Air Reserve Flying Centers and the Reserve Wings will be integrated organizationally to provide within each Wing a permanent cadre or "hard core" of highly skilled personnel available for immediate mobilization. This hard core will consist of civilian reservists who in their civilian capacity will provide the basic functions of maintenance, supply, etc., heretofore provided by Air Reserve Flying Center personnel, and in addition in their military capacity will provide training for the remainder of the wing personnel who will continue to report only on weekends and during summer active duty tours. The hard core will constitute on an average approximately 20% of the strength of each flying wing.
 
. . .
 
The Air Force will assign to all ART positions comparable military designations and ranks. It is important to recognize that the civilian job and the military assignment are the same. This program includes the establishment as civilian positions of many combat type jobs that heretofore have always been held by active duty uniformed personnel, including such jobs as wing commanders. *fn5"

 This merger of military and civilian functions at the Air Bases was further explained in a Continental Air Command "Personnel Policy and Procedures Manual" issued on April 7, 1958:

 
At present an Air Reserve flying center is the responsibility of and operated by an Air Force organization which is apart and separate from the Air Reserve flying unit being trained at the location. This organization is composed of approximately half military and half civilian personnel. Its primary mission is to maintain equipment and operate an Air Force facility to be used by an Air Reserve flying unit in accomplishing its training. To the extent possible, it does assist in the training of Reserve personnel though the responsibility for this training is properly that of the Air Reserve flying unit. On the other hand, there is the Air Reserve flying unit which utilizes the facility and equipment in providing for inactive duty training on the equivalent of one weekend per month and for one two-week period of active duty per year. Other than occupying and utilizing the same facility there is, at present, no direct connection or relationship between these two organizations. The ART Plan provides generally for a consolidation of these two units through integrating that portion of the permanent party support requirement, which is directly related to the tactical portion of the Air Reserve flying unit, into the Reserve unit utilizing that facility. The majority of the positions thus integrated will be designated as ART and will be identified with an identical or comparable position in the Air Reserve flying unit. *fn6"

 A CSC manual entitled "Recruitment of Air Reserve Technicians Through Competitive Examination" informed civil service examiners of the nature of the ART program, instructing them that the reserve technicians were to enjoy all benefits accruing to other employees in the competitive civil service. *fn7" However, the ART positions were clearly defined to comprise a separate competitive level *fn8" because of the reserve membership requirement. Although the manual advised that any future budget reductions would proportionately affect ART and non-ART personnel, the latter employees could not transfer into an ART position, in the event of a RIF, unless able and willing to meet the reserve requirements. *fn9"

 On July 5, 1960 the Chairman of the CSC advised the Department of Defense that the proposed Army Reserve Technician program was approved pursuant to an eight-point Memorandum of Understanding, with the following proviso:

 
This approval is based on our understanding that the Department of Army is in full agreement with the provisions of the enclosed Memorandum of Understanding, and will carry out both in letter and spirit the commitments it has made and the safeguards it has promised to apply with respect to employees who would be affected by the plan. It is also understood that the department of Army will comply fully and strictly with the requirements of the Veterans' Preference Act of 1944 and the Commission's regulations under that act in all of its activities under the plan. *fn10"

 In November, 1960 the CSC issued a manual entitled "Recruitment of Army Reserve Technicians Through Competitive Examination" *fn11" which was similar to its Air Force counterpart. The manual incorporated the terms of the Memorandum of Understanding, including the condition that "[the] lack or involuntary loss of military status will not be a basis for removing present or future civilian employees." *fn12" However, the Army program, as the Air Force's, devised separate competitive levels for ART and non-ART employees, *fn13" the distinguishing criterion being the reserve membership requirement. *fn14"

 On January 7, 1969 plaintiff Erwin P. Rolf, a preference eligible employee *fn15" of the Air Force, received notice of a RIF action, as a result of which he was reduced in grade and transferred from a position as flightline mechanic to warehouseman. Rolf was denied transfer into an ART position because he could not satisfy the reserve membership requirements. He subsequently appealed the RIF action, arguing that the conditions of entrance into the ART program violated his rights as a preference eligible employee, including his retention rights. *fn16" The appeal was denied by both the Philadelphia Regional Office of CSC and the Board of Appeals and Review (BAR). *fn17"

 Plaintiffs Guttenberger and Meadows, preference eligible civil servants at McGuire Air Force Base, received general notices of a RIF action on May 6, 1969. Neither of these plaintiffs was a member of the active reserves at the time of the RIF. Offers of reassignment to lower grade positions at McGuire were extended to both employees. Guttenberger accepted the reassignment, while Meadows declined the offer. *fn18" Appeals of the RIF actions were taken by both of these plaintiffs to CSC's New York Regional Office, arguing that the duties of these employees' positions were being continued after the RIF and that the jobs were being performed by Reserve personnel in lower retention status.

 The New York Regional Director advised Guttenberger and Meadows, on August 14, 1969, of the rejection of their appeal. The letters, identical in content, stated that the RIF actions were necessitated by fund limitations and were not the result of the reorganization of the Base following initiation of the ART program. As to the argument that these plaintiffs had priority over reserve members with lesser retention rights, the letter reiterated the position that ART employees are in a competitive level distinct from the levels occupied by non-ART personnel. The letter further stated:

 
The duties formerly performed by you are not being performed by the Air Reserve Technicians but are being performed by other civilian employees or military personnel. It should be noted that the Air Reserve Technician personnel perform a separate function and exist solely for the purpose of training reservists during training weekends and active duty encampment. *fn19"

 Neither Guttenberger nor Meadows appealed the decisions to the CSC Board of Appeals and Review.

 Plaintiffs Morton and Minnich were employed by the Army at the Indiantown Gap Military Reservation, Annville, Pennsylvania at the time of the Department's ART reorganization. Pursuant to the provisions in the agreement between the CSC and the Army, these employees were reassigned to positions within the ART program, in spite of the fact that neither was a member of the reserves. *fn20" When Morton and Minnich later requested assignment to higher-grade positions within the ART program, they both were informed that the transfers would be approved pending satisfaction of the requirements for membership in the reserves. However, Ms. Morton failed to meet the physical requirements for reserve membership, while Mr. Minnich was denied transfer from the retired to the active reserves because of his age. As ...


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