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
 SUBJECT PANEL DECISION AND ORDER.
 
    AS PREVIOUSLY INDICATED, THIS CASE AROSE ON OCTOBER 1, 1977, WHEN THE
 UNION, PURSUANT TO SECTION 17 OF EXECUTIVE ORDER 11491, AS AMENDED,
 REQUESTED THE PANEL TO RESOLVE AN IMPASSE IN NEGOTIATIONS.  WHILE THE
 PANEL TOOK A NUMBER OF ADMINISTRATIVE ACTIONS IN AN EFFORT TO RESOLVE
 THE DISPUTE PURSUANT TO ITS AUTHORITY UNDER SECTIONS 5 AND 17 OF
 EXECUTIVE ORDER 11491, AS AMENDED, THE SPECIFIC IMPASSE INVOLVED HEREIN
 REMAINED PENDING BEFORE THE PANEL FOR RESOLUTION AS OF JANUARY 11, 1979,
 WHEN THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1111) BECAME
 EFFECTIVE.  CONGRESS SPECIFICALLY ADVERTED TO SUCH PENDING CASES IN
 SECTION 902(B) OF THE ACT (92 STAT. 1224), WHICH STATES AS FOLLOWS:
 
    (B) NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE
 PROCEEDINGS PENDING AT THE
 
    TIME SUCH PROVISION TAKES EFFECT.  ORDERS SHALL BE ISSUED IN SUCH
 PROCEEDINGS AND APPEALS
 
    SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED.
 
    SINCE THE INSTANT ADMINISTRATIVE PROCEEDING WAS PENDING ON JANUARY
 11, 1979, WHEN THE PROVISIONS OF THE CIVIL SERVICE REFORM ACT OF 1978
 TOOK EFFECT, SECTION 902(B) OF THAT ACT REQUIRES THAT APPEALS FROM SUCH
 PROCEEDINGS BEFORE THE PANEL BE TAKEN THEREFROM AS IF THE ACT HAD NOT
 BEEN ENACTED.  IN OTHER WORDS, THE PROPRIETY OF ANY DIRECT APPEAL TO THE
 AUTHORITY FROM THE PANEL'S DECISION AND ORDER OF APRIL 13, 1979, MUST BE
 GOVERNED EXCLUSIVELY BY EXECUTIVE ORDER 11491, AS AMENDED.
 
    IN THIS REGARD, AND AS TO FINAL ORDERS ISSUED BY THE PANEL PURSUANT
 TO ITS AUTHORITY UNDER SECTION 5 AND 17 OF EXECUTIVE ORDER 11491, AS
 AMENDED, SUCH AS THE ONE HERE INVOLVED, NO PROVISION WAS MADE IN THE
 EXECUTIVE ORDER OR THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS
 COUNCIL AUTHORIZING DIRECT APPEALS FROM SUCH PANEL DECISIONS TO THE
 COUNCIL.  INSTEAD, AN AGGRIEVED PARTY WAS EMPOWERED IN EFFECT TO OBTAIN
 REVIEW OF SUCH PANEL DECISIONS AND ORDERS 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 APPEAL FROM AN ADVERSE DECISION OF
 THE ASSISTANT SECRETARY TO THE COUNCIL.  /2/
 
    THUS, SINCE EXECUTIVE ORDER 11491, AS AMENDED, DID NOT SANCTION
 DIRECT APPEALS FROM PANEL DECISIONS TO THE FEDERAL LABOR RELATIONS
 COUNCIL, SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT OF 1978, WHICH
 PROVIDES AS PREVIOUSLY SET FORTH ABOVE, THAT APPEALS SHALL BE TAKEN FROM
 ADMINISTRATIVE PROCEEDINGS PENDING ON JANUARY 11, 1978, AS IF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE HAD NOT BEEN ENACTED,
 PRECLUDES THE AUTHORITY FROM ENTERTAINING THE DIRECT APPEAL OF THE
 PANEL'S DECISION AND ORDER HERE INVOLVED.  /3/
 
    ACCORDINGLY, YOUR PETITION FOR DIRECT APPEAL OF THE SUBJECT PANEL
 DECISION AND ORDER MUST BE DENIED.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /4/
 
    CC:  J. CARPENTER
 
    NAGE
 
    W. A. ROBERTSON
 
    NGB
 
    H. W. SOLOMON
 
    FSIP
 
    /1/ ON THIS SAME DATE, JUNE 30, 1978, THE PANEL ISSUED ORDERS TO SHOW
 CAUSE IN FOUR OTHER CALIFORNIA NATIONAL GUARD CASES CONCERNING THE
 UNIFORM ISSUE.  THE RESULTING CONSOLIDATED PANEL DECISION AND ORDER IN
 THOSE FOUR CASES WAS SEPARATELY APPEALED TO THE AUTHORITY, WHICH APPEAL
 WAS DENIED BY THE AUTHORITY ON THE PRESENT DATE IN CALIFORNIA NATIONAL
 GUARD, SACRAMENTO, CALIFORNIA AND LOCALS R12-125, R12-132, R12-146 AND
 R12-150, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, 77 FSIP 77, 78
 FSIP 42, 78 FSIP 44 AND 78 FSIP 49, 2 FLRA (FLRA NO. O-MC-3 (DEC. 5,
 1979), REPORT NO.  ).
 
    /2/ SEE STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 78P-5 (DEC. 28,
 1978), REPORT NO. 169, AT P. 3 OF COUNCIL STATEMENT.  LIKEWISE, THERE IS
 NO RIGHT OF DIRECT APPEAL TO THE AUTHORITY FROM PANEL DECISIONS AND
 ORDERS UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92
 STAT. 1191).  RATHER, FAILURE TO COMPLY WITH PANEL DECISIONS AND ORDERS
 IS SUBJECT TO UNFAIR LABOR PRACTICE CHARGES FILED WITH THE AUTHORITY
 UNDER SECTION 7116(A)(6) AND (8) OR SECTION 7116(B)(6) AND (8) OF THE
 STATUTE (92 STAT. 1204) AND PROCEEDINGS THEREIN UNDER SECTION 7118 OF
 THE STATUTE (92 STAT. 1207).  STATE OF NEW YORK, DIVISION OF MILITARY
 AND NAVAL AFFAIRS AND NEW YORK COUNCIL, ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., 78 FSIP 32, 2 FLRA (FLRA O-MC-2 (DEC. 5, 1979),
 REPORT NO.  ).
 
    /3/ THIS CONCLUSION DOES NOT MEAN, OF COURSE, THAT THE PETITIONER MAY
 NOT OBTAIN AUTHORITY REVIEW OF THE SUBJECT PANEL DECISION AND ORDER
 THROUGH THE UNFAIR LABOR PRACTICE PROCEDURES OF THE STATUTE.  IN THIS
 RESPECT, SECTION 7116 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, 5 U.S.C.7116 (92 STAT. 1204) PROVIDES THAT IT SHALL BE AN
 UNFAIR LABOR PRACTICE FOR AN AGENCY UNDER SUBSECTION (A) (5 U.S.C.
 7116(A)) OR A LABOR ORGANIZATION UNDER SUBSECTION (B) (5 U.S.C.7116(B))
 RESPECTIVELY, "(6) TO FAIL OR REFUSE TO COOPERATE IN IMPASSE PROCEDURES
 AND IMPASSE DECISIONS AS REQUIRED BY THIS CHAPTER . .. " "(8) TO
 OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER."
 THUS, A PARTY AGGRIEVED