California National Guard, Fresno Air National Guard Base, Fresno, California and Local R12-105, National Association of Government Employees



[ v02 p196 ]
02:0196(22)PS
The decision of the Authority follows:


 2 FLRA No. 22
 
 MR. JAMES C. HISE
 CHIEF, OFFICE OF LEGAL ADVISOR
 NATIONAL GUARD BUREAU
 DEPARTMENTS OF THE ARMY AND 
 HE AIR FORCE
 WASHINGTON, D.C.  20310
 
                              RE:  CALIFORNIA NATIONAL GUARD, FRESNO 
                                   AIR NATIONAL GUARD BASE, FRESNO, 
                                   CALIFORNIA AND LOCAL R12-105,
                                   NATIONAL ASSOCIATION OF GOVERNMENT 
                                   EMPLOYEES, 77 FSIP 70, Case 
                                   No. 0-MC-4
 
 DEAR MR. HISE:
 
    THIS REFERS TO YOUR PETITION FOR REVIEW OF A FEDERAL SERVICE IMPASSES
 PANEL DECISION AND ORDER FILED WITH THE AUTHORITY ON JULY 7, 1979.
 
    ACCORDING TO YOUR PETITION FOR REVIEW AND OTHER RELEVANT MATERIAL,
 INCLUDING ISSUANCES OF THE FEDERAL SERVICE IMPASSES PANEL (HEREINAFTER
 THE PANEL), THE PERTINENT BACKGROUND IN THIS MATTER IS AS FOLLOWS:
 
    DURING NEGOTIATIONS BETWEEN NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES (NAGE) LOCAL R12-105, WHICH REPRESENTS A BARGAINING UNIT OF
 CALIFORNIA AIR NATIONAL GUARD TECHNICIANS, AND THE CALIFORNIA NATIONAL
 GUARD, AN IMPASSE AROSE CONCERNING THE WEARING OF MILITARY UNIFORMS BY
 CALIFORNIA NATIONAL GUARD TECHNICIANS AT THE ACTIVITY INVOLVED WHEN
 PERFORMING DAY-TO-DAY TECHNICIAN DUTIES.  AS A RESULT, NAGE LOCAL
 R12-105, PURSUANT TO SECTION 17 OF EXECUTIVE ORDER 11491, AS AMENDED,
 FILED A REQUEST WITH THE PANEL ON OCTOBER 11, 1977, FOR ASSISTANCE IN
 RESOLVING THE IMPASSE.  AFTER TAKING OTHER ADMINISTRATIVE ACTION TO
 RESOLVE THE IMPASSE PURSUANT TO ITS AUTHORITY UNDER SECTIONS 5 AND 17 OF
 EXECUTIVE ORDER 11491, AS AMENDED, THE PANEL, ON JUNE 30, 1978, ISSUED
 AN ORDER TO SHOW CAUSE WHY CONTRACT LANGUAGE ORDERED BY THE PANEL TO BE
 ADOPTED IN ELEVEN PRIOR CASES CONCERNING THE UNIFORM WEARING ISSUE, THAT
 IS, CONTRACT LANGUAGE AFFORDING 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, SHOULD NOT ALSO BE ADOPTED IN THIS CASE.  /1/ WHILE BOTH
 PARTIES WERE GRANTED UNTIL JULY 31, 1978, TO RESPOND TO THE ORDER TO
 SHOW CAUSE, ONLY THE CALIFORNIA NATIONAL GUARD FILED A RESPONSE.  ON
 OCTOBER 13, 1978, THE PANEL NOTIFIED THE PARTIES THAT THE UNION'S
 REQUEST FOR ASSISTANCE WAS BEING HELD IN ABEYANCE PENDING RESOLUTION OF
 A DECERTIFICATION PETITION WHICH HAD BEEN FILED.  THIS CASE REMAINED
 PENDING BEFORE THE PANEL UNTIL MARCH 2, 1979, WHEN THE PANEL, AFTER
 HAVING BEEN INFORMED THAT THE QUESTION CONCERNING REPRESENTATION HAD
 BEEN RESOLVED IN THE UNION'S FAVOR, ORDERED THE PARTIES TO RESUME
 NEGOTIATIONS OR, ABSENT A SETTLEMENT, TO FILE THEIR RESPECTIVE PROPOSALS
 AND STATEMENTS OF POSITION WITH THE PANEL FOR FINAL DECISION.  WHEN
 SETTLEMENT EFFORTS FAILED, THE PANEL, AFTER CONSIDERATION OF THE WRITTEN
 SUBMISSIONS OF BOTH PARTIES, ISSUED A DECISION AND ORDER ON APRIL 13,
 1979, DIRECTING THE PARTIES TO ADOPT LANGUAGE IN THEIR AGREEMENT SIMILAR
 TO THE CONTRACT LANGUAGE DESCRIBED ABOVE WHICH HAD BEEN ORDERED TO BE
 ADOPTED IN OTHER CASES CONCERNING THE UNIFORM ISSUE.
 
    ON JULY 7, 1979, YOU FILED THE INSTANT PETITION FOR REVIEW ON BEHALF
 OF THE CALIFORNIA NATIONAL GUARD, IN WHICH YOU REQUEST THE AUTHORITY TO
 "OVERRULE THE PANEL'S DETERMINATION IN THIS CASE OR, IN THE ALTERNATIVE,
 REQUIRE THE PANEL TO CONDUCT A FACT FINDING HEARING IN THIS MATTER SO AS
 TO ALLOW THE CALIFORNIA NATIONAL GUARD TO PRESENT ITS EVIDENCE ON THE
 ISSUE."
 
    WE HAVE CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE PANEL
 DECISION AND ORDER.  HOWEVER, WE HAVE DETERMINED FOR THE REASONS
 EXPRESSED BELOW THAT SINCE THERE WAS NO BASIS IN EXECUTIVE ORDER 11491,
 AS AMENDED, FOR DIRECT APPEALS FROM FINAL PANEL DECISIONS TO THE FEDERAL
 LABOR RELATIONS COUNCIL, SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978, WHICH IS APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE,
 PRECLUDES THE AUTHORITY FROM ENTERTAINING THE DIRECT APPEAL OF THE