State of New York, Division of Military and Naval Affairs and New York Council, Association of Civilian Technicians, Inc.



[ v02 p186 ]
02:0186(20)PS
The decision of the Authority follows:


 2 FLRA No. 20
 
 MAJOR GENERAL VITO J. CASTELLANO
 ADJUTANT GENERAL
 STATE OF NEW YORK
 DIVISION OF MILITARY AND NAVAL AFFAIRS
 STATE CAMPUS, PUBLIC SECURITY BUILDING
 ALBANY, NEW YORK 12226
 
                      RE:  STATE OF NEW YORK, DIVISION OF MILITARY
                           AND NAVAL AFFAIRS AND NEW YORK COUNCIL,
                           ASSOCIATION OF CIVILIAN TECHNICIANS,
                           INC., 78 FSIP 32, Case No. 0-MC-2
 
 DEAR GENERAL CASTELLANO:
 
    THIS REFERS TO YOUR PETITION FOR REVIEW OF A FEDERAL SERVICE IMPASSES
 PANEL DECISION AND ORDER, FILED WITH THE AUTHORITY ON MARCH 9, 1979.
 
    ACCORDING TO YOUR PETITION FOR REVIEW AND OTHER RELEVANT MATERIAL IN
 THE RECORD, INCLUDING ISSUANCES OF THE FEDERAL SERVICE IMPASSES PANEL
 (HEREINAFTER THE PANEL), THE PERTINENT BACKGROUND IN THIS MATTER IS AS
 FOLLOWS:
 
    DURING NEGOTIATIONS BETWEEN THE NEW YORK COUNCIL, ASSOCIATION OF
 CIVILIAN TECHNICIANS, INC. (ACT), WHICH REPRESENTS A STATEWIDE UNIT OF
 NEW YORK ARMY AND AIR FORCE NATIONAL GUARD TECHNICIANS, AND THE STATE OF
 NEW YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS, AN IMPASSE AROSE
 CONCERNING, AS HERE PERTINENT, THE WEARING OF MILITARY UNIFORMS BY NEW
 YORK NATIONAL GUARD TECHNICIANS WHEN PERFORMING DAY-TO-DAY TECHNICIAN
 DUTIES.  AS A RESULT, ACT, PURSUANT TO SECTION 17 OF EXECUTIVE ORDER
 11491, AS AMENDED, FILED A REQUEST WITH THE PANEL ON MARCH 21, 1978, FOR
 ASSISTANCE IN RESOLVING THE IMPASSE.  AFTER TAKING OTHER ADMINISTRATIVE
 ACTION TO RESOLVE THE IMPASSE PURSUANT TO ITS AUTHORITY UNDER
 ADMINISTRATIVE ACTION TO RESOLVE THE IMPASSE PURSUANT TO ITS AUTHORITY
 UNDER SECTIONS 5 AND 17 OF EXECUTIVE ORDER 11491, AS AMENDED, THE PANEL
 ISSUED A DECISION AND ORDER ON JANUARY 9, 1979, IN WHICH IT DIRECTED THE
 PARTIES TO RESOLVE THIS IMPASSE BY ADOPTING LANGUAGE IN THEIR AGREEMENT
 AFFORDING SUCH TECHNICIAN EMPLOYEES "THE OPTION OF WEARING EITHER THE
 MILITARY UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE WITHOUT
 DISPLAY OF MILITARY RANK" SUBJECT TO AGREED-UPON EXCEPTIONS TO COVER
 CIRCUMSTANCES WHERE THE WEARING OF THE UNIFORM MAY BE REQUIRED.
 
    ON FEBRUARY 9, 1979, THE STATE OF NEW YORK, DIVISION OF MILITARY AND
 NAVAL AFFAIRS, REQUESTED THAT THE PANEL HOLD ITS JANUARY 9, 1979,
 DECISION AND ORDER IN ABEYANCE "PENDING THE OUTCOME OF JUDICIAL
 INITIATIVE." AFTER THIS REQUESTED WAS DENIED BY THE PANEL ON FEBRUARY
 28, 1979, YOU FILED THE INSTANT PETITION FOR REVIEW OF THE DECISION AND
 ORDER WITH THE AUTHORITY.
 
    IN THE SUBJECT PETITION FOR REVIEW OF THE PANEL'S DECISION AND ORDER
 YOU STATE THAT SUCH PETITION FOR REVIEW IS BASED ON YOUR CONTENTION THAT
 "THE CHALLENGED PANEL ORDER IS PREDICATED UPON AN ERRONEOUS CONSOLIDATED
 NEGOTIABILITY DECISION" CONCERNING THE WEARING OF MILITARY UNIFORMS BY
 NATIONAL GUARD TECHNICIANS WHICH WAS ISSUED BY THE FEDERAL LABOR
 RELATIONS COUNCIL ON JANUARY 19, 1977.  /1/
 
    WE HAVE CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE PANEL'S
 DECISION AND ORDER AND HAVE DETERMINED FOR THE REASONS EXPRESSED BELOW
 THAT SINCE THERE ARE NO PROVISIONS IN THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATE (92 STAT. 1192) WHICH SANCTION DIRECT
 APPEALS FROM FINAL PANEL DECISIONS TO THE AUTHORITY, YOUR APPEAL MUST BE
 DENIED.
 
    AS PREVIOUSLY STATED, THIS CASE AROSE UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, WHEN THE UNION, ON MARCH 21, 1978, REQUESTED THE PANEL TO
 RESOLVE AN IMPASSE IN NEGOTIATIONS.  FURTHER, AS ALSO STATED, THE PANEL,
 PURSUANT TO ITS AUTHORITY UNDER SECTIONS 5 AND 17 OF THE EXECUTIVE
 ORDER, ISSUED ITS FINAL DECISION IN THE MATTER ON JANUARY 9, 1979.  NO
 PROVISIONS WERE CONTAINED IN EXECUTIVE ORDER 11491, AS AMENDED, OR IN
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL
 AUTHORIZING DIRECT APPEALS FROM FINAL PANEL DECISIONS TO THE COUNCIL.
 INSTEAD, AN AGGRIEVED PARTY WAS EMPOWERED IN EFFECT TO OBTAIN REVIEW OF
 A PANEL DECISION AND ORDER BY THE COUNCIL THROUGH THE UNFAIR LABOR
 PRACTICE PROCEDURES ESTABLISHED IN THE EXECUTIVE ORDER, THAT IS, AFTER
 THE FILING BY THE OTHER PARTY OF AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING NONCOMPLIANCE WITH THE DECISION AND ORDER OF THE PANEL, A
 DECISION ON THAT COMPLAINT BY THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, AND AN APPEAL FROM AN ADVERSE DECISION OF
 THE ASSISTANT SECRETARY TO THE COUNCIL.  /2/
 
    UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, WHICH
 BECAME EFFECTIVE AFTER THE PANEL ISSUED ITS FINAL DECISION IN THE MATTER
 BUT BEFORE THE INSTANT APPEAL WAS FILED, /3/ THE COUNCIL'S POLICY
 PRECLUDING DIRECT APPEALS OF FINAL PANEL DECISIONS, EXCEPT IN THE
 CONTEXT OF THE UNFAIR LABOR PRACTICE PROCEDURES, REMAINS IN FULL FORCE
 AND EFFECT, UNLESS, AS RELEVANT IN THIS CASE, SUCH POLICY IS SUPERSEDED
 BY SPECIFIC PROVISIONS OF THE STATUTE OR BY DECISIONS ISSUED BY THE
 AUTHORITY UNDER THE STATUTE.  /4/
 
    AS TO REVIEW OF FINAL PANEL DECISIONS BY THE AUTHORITY UNDER THE
 STATUTE, AND AS REVEALED BY RELEVANT LEGISLATIVE HISTORY OF THE STATUTE,
 THE CLEAR INTENT AND PURPOSE OF CONGRESS WAS TO ESTABLISH THE UNFAIR
 LABOR PRACTICE PROCEDURE AS THE EXCLUSIVE MEANS OF OBTAINING SUCH
 AUTHORITY REVIEW.  SPECIFICALLY IN THIS REGARD, IN THE PORTION OF THE
 LEGISLATIVE HISTORY OF THE STATUTE CONCERNING FINAL ORDERS ISSUED BY THE
 PANEL UNDER SECTION 7119(C) OF THE STATUTE, 5 U.S.C.7119(C) (92 STAT.
 1209), WHICH SECTION ESSENTIALLY CODIFIES THE PANEL'S PREEXISTING
 AUTHORITY AND RESPONSIBILITY TO RESOLVE NEGOTIATION IMPASSES AND IS
 DERIVED FROM THE HOUSE BILL (H.R. 11280), THE HOUSE REPORT EXPRESSLY
 STATES (H.REP.NO. 95-1403, JULY 31, 1978, AT 54-55):
 
    NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED
 
    UPON THE PARTIES, AND THE ACTION IS FINAL AND BINDING UPON THE
 PARTIES DURING THE TERM OF THE
 
    AGREEMENT, UNLESS THE PARTIES AGREE OTHERWISE.  FINAL ACTION OF THE
 PANEL UNDER THIS SECTION
 
    IS NOT SUBJECT TO APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION
 ORDERED BY THE PANEL
 
    CONSTITUTES AN UNFAIR LABOR PRACTICE BY AN AGENCY UNDER SECTION
 7116(A)(6) AND (8) OR A LABOR
 
    ORGANIZATION UNDER SECTION 7116(B)(6) AND (8).
 
    THESE PROVISIONS OF SECTION 7116 IN THE HOUSE BILL ADVERTED TO IN THE
 REPORT, AND AS ENACTED WITHOUT MODIFICATION IN THE STATUTE, STATE THAT
 IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY OR A LABOR
 ORGANIZATION, RESPECTIVELY, "(6) TO FAIL OR REFUSE TO COOPERATE IN
 IMPASSE PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY THIS CHAPTER;  .
 . ." OR "(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF
 THIS CHAPTER."
 
    IT IS CLEAR, THEREFORE, FROM THE LITERAL LANGUAGE OF SECTION 7116 OF
 THE STATUTE AND THE INTENT OF CONGRESS AS EXPRESSED IN THE RELATED
 LEGISLATIVE HISTORY, THAT UNDER THE STATUTE, AUTHORITY REVIEW OF A FINAL
 PANEL DECISION AND ORDER, SUCH AS THE ONE HERE INVOLVED, MAY BE SOUGHT
 BY THE PARTY OBJECTING TO THAT ORDER ONLY AFTER THE FILING OF UNFAIR
 LABOR PRACTICE CHARGES BY THE OTHER PARTY, BASED ON NONCOMPLIANCE WITH
 THE PANEL'S DECISION AND ORDER, UNDER SECTION 7118 OF THE STATUTE, 5
 U.S.C.7118 (92 STAT. 1207-1209) AND PART 2423 OF THE AUTHORITY'S RULES
 OF PROCEDURE (44 FED.REG. 44,760(1979) (TO BE CODIFIED IN 5 C.F.R. PART
 2423)).  /5/
 
    ACCORDINGLY, AS THE STATUTE, LIKE E.O. 11491, DOES NOT SANCTION
 REVIEW OF A PANEL DECISION AND ORDER, EXCEPT THROUGH THE UNFAIR LABOR
 PRACTICE PROCEDURES SET FORTH IN THE STATUTE, YOUR PETITION FOR DIRECT
 REVIEW OF THE SUBJECT PANEL DECISION AND ORDER MUST BE DENIED.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /6/
 
    CC:  V. PATERNO
 
    ACT
 
    W. A. ROBERTSON
 
    NGB
 
    H. W. SOLOMON
 
    FSIP
 
    /1/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL NO. R14-87
 AND KANSAS NATIONAL GUARD, 5 FLRC 124 (FLRC NO. 76A-16 (AND OTHER CASES
 CONSOLIDATED THEREWITH) (JAN. 19, 1977), REPORT NO. 120),
 RECONSIDERATION DENIED, 5 FLRC 336 ((MAY 18, 1977), REPORT NO. 125).
 
    /2/ SEE STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 78P-5 (DEC. 28,
 1978), REPORT NO. 169, AT P. 3 OF COUNCIL STATEMENT.
 
    /3/ SINCE NO ADMINISTRATIVE PROCEEDINGS IN THIS CASE WERE PENDING ON
 JANUARY 11, 1979, THE DATE THE PROVISIONS OF THE STATUTE TOOK EFFECT,
 SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224)
 IS NOT APPLICABLE IN THIS CASE.  AS TO THE APPLICATION OF SECTION 902(B)
 SEE CALIFORNIA NATIONAL GUARD, FRESNO AIR NATIONAL GUARD BASE, FRESNO
 CALIFORNIA AND LOCAL R12-105, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, 77 FSIP 70, 2 FLRA (FLRA NO. O-MC-4 (DEC. 5, 1979), REPORT
 NO.  ).
 
    /4/ SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215) PROVIDES IN PERTINENT PART AS FOLLOWS:
 
    (B) POLICIES . . . ESTABLISHED UNDER AND DECISIONS ISSUED UNDER
 (EXECUTIVE ORDER 11491, AS
 
    AMENDED), AS IN EFFECT ON THE EFFECTIVE DATE OF THIS (STATUTE), SHALL
 REMAIN IN FULL FORCE AND
 
    EFFECT . . . UNLESS SUPERSEDED BY SPECIFIC PROVISIONS OF THIS
 (STATUTE) OR . . . DECISIONS
 
    ISSUED PURSUANT TO THIS (STATUTE).
 
    /5/ IN THIS REGARD, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
 WITH THE AUTHORITY'S BOSTON REGION ON MARCH 20, 1979, WHICH ALLEGED THAT
 THE ACTIVITY VIOLATED SECTION 7116(A)(6) OF THE STATUTE.  THE UNFAIR
 LABOR PRACTICE PROCEEDING IS CURRENTLY PENDING.
 
    /6/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHI