Kentucky National Guard (Respondent) and National Association of Government Employees, Local R5-100 (Charging Party)




[ v04 p534 ]
04:0534(73)CA
The decision of the Authority follows:


 4 FLRA No. 73
 
 KENTUCKY NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R5-100
 Charging Party
 
                                            Case No. 4-CA-85
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 ENGAGED IN CERTAIN UNFAIR, LABOR PRACTICES UNDER EXECUTIVE ORDER 11491,
 AS AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 (92 STAT. 1215), AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND
 TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.  THE
 ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE RESPONDENT HAD NOT
 ENGAGED IN CERTAIN OTHER UNFAIR LABOR PRACTICES UNDER THE STATUTE
 ALLEGED IN THE COMPLAINT, AND RECOMMENDED THE DISMISSAL OF THAT PORTION
 OF THE COMPLAINT.  THEREAFTER, THE GENERAL COUNSEL AND THE RESPONDENT
 FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER AND SUPPORTING BRIEFS.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 STATUTE.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTIONS 7118 AND 7135(B) OF THE
 STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE
 LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE
 RECORD IN THIS CASE, INCLUDING EXCEPTIONS AND SUPPORTING BRIEFS OF THE
 GENERAL COUNSEL AND THE RESPONDENT, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
 MODIFIED HEREIN.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTIONS 7118 AND 7135(B) OF THE
 STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE KENTUCKY NATIONAL GUARD,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A) MAKING STATEMENTS OR COMMENTS, BY THE ADJUTANT GENERAL OR ANY
 OTHER AGENT, OFFICER OR REPRESENTATIVE OF THE RESPONDENT, TO MEMBERS OF
 THE NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, OR ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT THE
 WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF TECHNICIAN
 DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST OF THE
 TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE NATIONAL
 GUARD, THAT THE ADJUTANT GENERAL WILL DO ANYTHING TO KEEP THE EMPLOYEES
 IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT WHICH WOULD INTERFERE
 WITH, RESTRAIN, OR COERCE ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS
 ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
 
    B) REFUSING TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
 REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES CONCERNING THE OPTION OF
 EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR
 THE MILITARY UNIFORM OR AN AGREED-UPON CIVILIAN ATTIRE PURSUANT TO THE
 DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL DATED AUGUST
 22, 1978.
 
    C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    D) REFUSING TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
 REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING
 THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN
 AGREED-UPON STANDARD CIVILIAN ATTIRE.
 
    E) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
 
    A) UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
 CONSONANT WITH LAW, REGULATIONS AND THE STATUTE, WITH THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
 REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING
 HEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN
 AGREED-UPON STANDARD CIVILIAN ATTIRE.
 
    B) POST AT EACH OF ITS FACILITIES IN THE COMMONWEALTH OF KENTUCKY
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" 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 KENTUCKY NATIONAL
 GUARD, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
 ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND
 NOT TO BE VIOLATIVE OF THE STATUTE BE, AND IT HEREBY IS, DISMISSED.  /1/
 
    ISSUED, WASHINGTON, D.C., OCTOBER 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT MAKE ANY STATEMENTS OR COMMENTS, BY THE ADJUTANT GENERAL
 OR ANY OTHER AGENT, OFFICER OR REPRESENTATIVE OF MANAGEMENT, TO MEMBERS
 OF THE NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, OR ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT
 THE WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF
 TECHNICIAN DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST
 OF THE TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE
 NATIONAL GUARD, THAT THE ADJUTANT GENERAL WILL DO ANYTHING TO KEEP THE
 EMPLOYEES IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT WHICH WOULD
 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF
 THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL NOT REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE
 EXCLUSIVE REPRESENTATIVE OF CERTAIN OF OUR EMPLOYEES CONCERNING THE
 OPTION OF EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, TO WEAR THE MILITARY UNIFORM OR ANY AGREED-UPON STANDARD
 CIVILIAN ATTIRE PURSUANT TO THE DECISION AND ORDER OF THE FEDERAL
 SERVICE IMPASSES PANEL DATED AUGUST 22, 1978.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL NOT REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE
 EXCLUSIVE REPRESENTATIVE OF CERTAIN OF OUR EMPLOYEES, OR ANY OTHER
 EXCLUSIVE REPRESENTATIVE, CONCERNING THE OPTION OF OUR EMPLOYEES, WHILE
 PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY
 UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
 CONSONANT WITH LAW, REGULATIONS AND THE STATUTE, WITH THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
 REPRESENTATIVE OF CERTAIN OF OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, CONCERNING THE OPTION OF OUR EMPLOYEES, WHILE PERFORMING
 THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN
 AGREED-UPON STANDARD CIVILIAN ATTIRE.
 
                                  . . .
 
                            AGENCY OR ACTIVITY
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
                           THE ADJUTANT GENERAL
 
                          KENTUCKY NATIONAL GUARD
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
 ADDRESS IS:  SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
 ATLANTA, GEORGIA 30300, AND WHOSE TELEPHONE NUMBER IS:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 
 
 ---------
 
  FOLLOWS -----------
    REGIONAL ATTORNEY
    JAMES PUHGER, ESQUIRE
    ATTORNEY
    MATILDA GENOVESE, ESQUIRE
    ATTORNEY
    FEDERAL LABOR RELATIONS AUTHORITY
    SUITE 501, NORTH WING
    1776 PEACHTREE STREET, N.W.
    ATLANTA, GEORGIA 30309
                          FOR THE GENERAL COUNSEL
 
    DAVID W. DOWNES, ESQUIRE
    STAFF ATTORNEY
    NATIONAL ASSOCIATION OF GOVERNMENT
    EMPLOYEES
    285 DORCHESTER AVENUE
    BOSTON, MASSACHUSETTS 02127
                          FOR THE CHARGING PARTY
 
    DON BRENEMAN, ESQUIRE
    LABOR RELATIONS SPECIALIST
    NATIONAL GUARD BUREAU
    COLUMBIA PIKE OFFICE BUILDING
    5600 COLUMBIA PIKE
    FALLS CHURCH, VIRGINIA 22041
 
    THOMAS G. MOONEY, ESQUIRE
    2100 COMMONWEALTH BUILDING
    LOUISVILLE, KENTUCKY 40202
                         FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
 ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, INTERIM RULES
 AND REGULATIONS, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, FINAL RULES
 AND REGULATIONS, EFFECTIVE JANUARY 28, 1980, FED. REG., VOL. 45, NO. 12,
 JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV.  A CHARGE WAS FILED ON APRIL 30,
 1979 (G.C. EXH.  1(A)) BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R5-100 (HEREINAFTER ALSO REFERRED TO AS THE "UNION") AND AN
 AMENDED CHARGE WAS FILED ON JULY 2, 1979 (G.C. EXH. 1(B)) BY THE UNION.
 A COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 24, 1979 (G.C. EXH.
 1(E)).  THE COMPLAINT ALLEGES THE FOLLOWING VIOLATIONS BY RESPONDENT:
 OF SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
 ALSO REFERRED TO AS THE "ORDER") BY VIRTUE OF CERTAIN ACTS AND
 STATEMENTS ON NOVEMBER 8, 1978, BY THE ADJUTANT GENERAL OF KENTUCKY,
 MAJOR GENERAL WELLMAN (PARAGRAPHS 5, 6 AND 14);  OF SECTIONS 19(A)(1)
 AND (6) OF THE ORDER BY VIRTUE OF A REFUSAL TO BARGAIN IN GOOD FAITH ON
 NOVEMBER 8, 1978, PURSUANT TO AN ORDER OF THE FEDERAL SERVICE IMPASSES
 PANEL (PARAGRAPH 8, 9, AND 15);  OF SECTION 7116(A)(1) AND (5) OF THE
 FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (HEREINAFTER ALSO
 REFERRED TO AS THE "STATUTE") /2/ BY VIRTUE OF THE REFUSAL TO BARGAIN IN
 GOOD FAITH ON AND AFTER JUNE 19, 1979 CONCERNING THE WEARING OF CIVILIAN
 CLOTHING (PARAGRAPHS 11 AND 16);  AND OF SECTIONS 16(A)(1) AND (6) OF
 THE STATUTE BY VIRTUE OF THE FAILURE OR REFUSAL OF RESPONDENT TO
 COOPERATE IN IMPASSE PROCEDURES AND IMPASSE DECISION AS REQUIRED BY THE
 STATUTE (PARAGRAPHS 8, 9, AND 15.) THE ALLEGATIONS OF PARAGRAPHS 12 AND
 17 WITH RESPECT TO SECTION 16(A)(8) OF THE STATUTE ARE, AT BEST,
 DUPLICATIONS OF MORE SPECIFIC ALLEGATIONS OF THE COMPLAINT AND HAVE NOT
 BEEN CONSIDERED.  /3/
 
    PURSUANT TO THE NOTICE OF HEARING, A HEARING WAS DULY HELD BEFORE THE
 UNDERSIGNED ON NOVEMBER 8, 1979, IN LOUISVILLE, KENTUCKY.  ALL PARTIES
 WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 HEARING ON THE ISSUES INVOLVED HEREIN;  AND THE PARTIES WERE AFFORDED
 FULL OPPORTUNITY TO PRESENT ORAL ARGUMENT AT THE CONCLUSION OF THE
 TESTIMONY.  AT THE CLOSE OF THE HEARING, AT THE REQUEST OF COUNSEL FOR
 THE GENERAL COUNSEL, WITH THE CONCURRENCE OF COUNSEL FOR RESPONDENT,
 DECEMBER 14, 1979 WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS
 AND COUNSEL FOR THE GENERAL COUNSEL AND FOR THE RESPONDENT HAVE TIMELY
 MAILED HELPFUL BRIEFS, RECEIVED ON DECEMBER 18, 1979, WHICH HAVE BEEN
 CAREFULLY CONSIDERED.  UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS, CONCLUSIONS AND ORDER:
 
                       FINDINGS AND CONCLUSIONS /4/
 
    1.  BACKGROUND.
 
    THE UNION HAD BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL AIR
 NATIONAL GUARD TECHNICIANS OF RESPONDENT IN THE COMMONWEALTH OF KENTUCKY
 FOR A NUMBER OF YEARS, INCLUDING ALL TIMES MATERIAL TO THIS CASE.  THE
 KENTUCKY NATIONAL GUARD IS AN AMALGAMATION OF THE ARMY AND AIR NATIONAL
 GUARD OF KENTUCKY.  THE HIGHEST MILITARY OFFICIAL OF RESPONDENT IS THE
 ADJUTANT GENERAL AND THE INDIVIDUAL OCCUPYING THAT POSITION AT PRESENT,
 AND AT ALL TIMES MATERIAL TO THIS CASE, IS MAJOR GENERAL BILLY G.
 WELLMAN.
 
    THE ISSUE IN THIS CASE IS THE WEARING OF CIVILIAN ATTIRE BY
 TECHNICIANS WHILE PERFORMING THEIR DAY-TO-DAY DUTIES AS CIVILIAN
 TECHNICIANS.  THE NATIONAL GUARD ACT, 32 U.S.C. 709, AUTHORIZES, AS A
 CONDITION TO EMPLOYMENT AS A CIVILIAN TECHNICIAN, MEMBERSHIP IN THE
 NATIONAL GUARD AND 32 U.S.C. 709(D) PROVIDES THAT A POSITION AUTHORIZED
 BY THIS SECTION IS OUTSIDE THE COMPETITIVE SERVICE IF THE TECHNICIAN IS
 REQUIRED, PURSUANT TO SUBSECTION (B), TO BE A MEMBER OF THE NATIONAL
 GUARD.  SEE, ALSO, DEPARTMENT OF DEFENSE, NATIONAL THE NATIONAL GUARD.
 SEE, ALSO, DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
 NATIONAL GUARD, A/SLMR NO.  336, A/SLMR 32 (1974).  TRADITIONALLY,
 CIVILIAN TECHNICIANS HAVE BEEN REQUIRED TO WEAR THE MILITARY UNIFORM;
 HOWEVER, BECAUSE THEY ARE CIVILIAN TECHNICIANS WHILE PERFORMING THEIR
 DAY-TO-DAY DUTIES, TECHNICIANS HAVE LONG SOUGHT THE RIGHT TO WEAR
 CIVILIAN ATTIRE.  IN KENTUCKY, THE UNIFORM MATTER WAS FIRST RAISED IN
 1971 BY A PETITION WHEREBY THE TECHNICIANS REQUESTED THAT THEY BE
 ALLOWED TO WEAR CIVILIAN CLOTHING.  THIS WAS DENIED AND THE UNION'S
 DEMAND TO BARGAIN ON SUCH ISSUE WAS ASSERTED BY RESPONDENT TO BE
 NON-NEGOTIABLE;  HOWEVER THE FEDERAL LABOR RELATIONS COUNCIL HELD THE
 MATTER TO BE NEGOTIABLE.  NEGOTIATIONS WERE NOT PRODUCTIVE AND ON JUNE
 8, 1977, THE UNION FILED A REQUEST WITH THE FEDERAL SERVICE IMPASSES
 PANEL TO CONSIDER A NEGOTIATING IMPASSE UNDER SECTION 17 OF THE ORDER.
 A FACT FINDING HEARING WAS HELD ON OCTOBER 5, 1977, AND A REPORT WAS
 ISSUED ON APRIL 25, 1978.  IN THE MEANTIME, THE FSIP HAD ISSUED
 RECOMMENDATIONS IN TEN OTHER CASES CONCERNING THE SAME ISSUE, NAMELY,
 THE WEARING OF MILITARY UNIFORM, AND ON JUNE 30, 1978, THE FSIP ISSUED
 AN ORDER TO SHOW CAUSE AS TO WHY THE SAME PROVISION SHOULD NOT BE
 MANDATED AS TO RESPONDENT (G.C. EXH. 2).  NO RESPONSE TO THE ORDER TO
 SHOW CAUSE WAS SUBMITTED BY EITHER THE UNION OR THE RESPONDENT AND, ON
 AUGUST 22, 1978, THE FSIP ISSUED ITS DECISION AND ORDER WHICH PROVIDED,
 IN PART, AS FOLLOWS:
 
                                  "ORDER
 
    "PURSUANT TO THE AUTHORITY VESTED IN IT BY EXECUTIVE ORDER 11491, AS
 AMENDED, THE FEDERAL
 
    IMPASSES PANEL HEREBY ORDERS THAT:
 
    "THE PARTIES SHALL ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT:
 
    "1.  EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES,
 SHALL HAVE THE OPTION
 
    OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN AGREED-UPON
 STANDARD CIVILIAN ATTIRE
 
    WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE PURCHASED BY
 EMPLOYEES WHO CHOOSE TO
 
    WEAR IT.
 
    "2.  CIRCUMSTANCES FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY
 BE REQUIRED SHALL BE
 
    AGREED UPON BY THE PARTIES AND INCORPORATED IN THIS AGREEMENT .  . ."
 (G.C. EXH. 3)
 
    RESPONDENT AGREED TO MEET AND NEGOTIATE THIS MATTER ON NOVEMBER 8,
 1979.
 
    2.  STATEMENTS BY GENERAL WELLMAN ON NOVEMBER 8, 1978, TO MEMBERS OF
 UNION'S LOCAL NEGOTIATING TEAM.
 
    THERE IS NO DISPUTE THAT ON THE MORNING OF NOVEMBER 8, 1978, PRIOR TO
 THE BEGINNING OF NEGOTIATIONS, GENERAL WELLMAN, WITH FULL KNOWLEDGE OF
 THE PRESENCE OF MR. CHARLES E. HICKEY, NATIONAL VICE PRESIDENT OF THE
 UNION AND ALTERNATE SPOKESMAN FOR THE UNION NEGOTIATING TEAM (G.C. EXH.
 4), ASKED THE MEMBERS OF THE UNION'S NEGOTIATING TEAM, EXCLUSIVE OF MR.
 HICKEY, TO MEET WITH HIM IN HIS OFFICE.  GENERAL WELLMAN TESTIFIED THAT
 THE FOLLOWING CONVERSATION TOOK PLACE:
 
    "I SAID, . . . 'YOU ALL GO IN THERE AND DO WHAT YOU THINK IS RIGHT,
 BECAUSE I'M GOING TO DO
 
    WHAT I THINK'S RIGHT FOR YOU.' THEY SAID, 'WELL, WHAT DO YOU THINK IS
 RIGHT?' I SAID, 'I
 
    WOULD DO ANYTHING TO KEEP YOU IN UNIFORM, BECAUSE I THINK IT IS TO
 YOUR BEST INTEREST AND THE
 
    BEST INTEREST OF THE TECHNICIAN PROGRAM.' I SAID THAT I THOUGHT THAT
 THE UNIFORM ISSUE WAS
 
    NOT IN THE BEST INTEREST OF THE TECHNICIAN PROGRAM.  THE PEOPLE LEFT
 AND THAT WAS THE EXTENT
 
    OF OUR CONVERSATION . . ." (TR. 110).  MR. ROBERT E. DENTON, CHIEF
 SPOKESMAN FOR THE UNION, TESTIFIED THAT GENERAL WELLMAN STATED,
 
    ". . . HE TOLD US THAT HE BELIEVED THAT IF THE TECHNICIANS WERE TO
 WEAR CIVILIAN CLOTHING
 
    INSTEAD OF MILITARY UNIFORMS, (SIC) WOULD DESTROY THE NATIONAL GUARD.
  AND, THEN, OF COURSE,
 
    WE QUESTIONED THE REASONS BEHIND THAT, BUT HE JUST SAID IT WOULD,
 THAT HE BELIEVED, IT WOULD
 
    DESTROY THE NATIONAL GUARD.
 
    "AFTER A WHILE, HE SAID, "WELL, YOU GUYS GO IN THERE AND DO WHAT YOU
 THINK IS BEST FOR
 
    YOURSELVES, AND DO WHAT YOU HAVE TO DO, HOWEVER, I WILL DO ANYTHING
 TO KEEP YOU IN
 
    UNIFORM.'" (TR. 38).  MR. DENTON'S TESTIMONY WAS FULLY SUPPORTED BY
 THE TESTIMONY OF MR.  BOBBIE L. BRAWNER, MEMBER (TR. 94) AND MESSRS.
 STEPHAN L. WEGMANN (TR. 84) AND MR. JIM WHITE (TR. 98), ALTERNATE
 MEMBERS OF THE UNION'S NEGOTIATING TEAM.  AS MESSRS. DENTON, BRAWNER,
 WEGMAN AND WHITE WERE WHOLLY CREDIBLE WITNESSES AND THEIR TESTIMONY WAS
 MUTUALLY CORROBORATIVE, I HAVE NO HESITATION IN CREDITING THEIR
 TESTIMONY;  BUT FOR THE SAKE OF ARGUMENT EVEN ACCEPTING GENERAL
 WELLMAN'S DENIAL THAT HE DID NOT SAY THAT THE ISSUE OF CIVILIAN ATTIRE
 WOULD DESTROY THE NATIONAL GUARD (TR. 107), GENERAL WELLMAN ADMITTED
 THAT HE TOLD MESSRS. DENTON, BRAWNER, WEGMAN AND WHITE THAT HE THOUGHT
 THE UNIFORM ISSUE WAS NOT IN THE BEST INTEREST OF THE TECHNICIAN
 PROGRAM.
 
    THE CIRCUMSTANCES OF THE MEETING WERE AS ASTOUNDING AS GENERAL
 WELLMAN'S STATEMENTS.  FIRST, FOR THE COMMANDING OFFICER TO MEET WITH
 THE UNION'S NEGOTIATORS IMMEDIATELY PRIOR TO A SCHEDULED BARGAINING
 SESSION WAS EXTRAORDINARY.  SECOND, HE WAS FULLY AWARE OF MR. HICKEY'S
 PRESENCE AS A MEMBER OF THE UNION'S NEGOTIATING TEAM BUT SPECIFICALLY
 DID NOT INVITE MR. HICKEY TO HIS OFFICE.  HIS STATED JUSTIFICATION, THAT
 HE HAD NOT BEEN INTRODUCED TO MR. HICKEY, IS HOLLOW, INDEED.  THIRD, FOR
 THE ADJUTANT GENERAL TO REGALE THE UNION'S NEGOTIATING TEAM FOR THE
 PURPOSE OF EXPRESSING RESPONDENT'S STEADFAST OPPOSITION TO THE ONLY
 ISSUE TO BE NEGOTIATED, I.E. THAT THE UNION'S DEMAND, ORDERED BY THE
 FSIP, THAT EMPLOYEES HAVE THE OPTION OF WEARING CIVILIAN ATTIRE, WAS NOT
 IN THEIR BEST INTEREST OR THE BEST INTEREST OF THE TECHNICIAN PROGRAM,
 IMMEDIATELY PRIOR TO THE COMMENCEMENT OF NEGOTIATIONS AND AFTER THE
 DELIBERATE EXCLUSION OF THE UNION'S NATIONAL VICE PRESIDENT, OBVIOUSLY
 TENDED TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE
 OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE
 ORDER.  THIS WAS THE HIGHEST MILITARY OFFICIAL OF RESPONDENT, A MAJOR
 GENERAL, TELLING THE MEMBERS OF UNION'S LOCAL NEGOTIATING TEAM, EACH AN
 ENLISTED MEMBER OF THE NATIONAL GUARD, THAT IT WAS NOT IN THEIR BEST
 INTEREST, OR IN THE BEST INTEREST OF THE TECHNICIAN PROGRAM, TO WEAR
 CIVILIAN CLOTHING AND THAT HE, GENERAL WELLMAN, WOULD "DO ANYTHING TO
 KEEP YOU IN UNIFORM." NOT ONLY DID SUCH STATEMENTS INTERFERE WITH THE
 EMPLOYEES' RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO ACT
 FOR THE UNION IN THE NEGOTIATIONS BUT THE STATEMENTS BY GENERAL WELLMAN
 THAT "I WOULD DO ANYTHING TO KEEP YOU IN UNIFORM", AS WELL AS HIS
 REFERENCE TO THEIR "BEST INTEREST" CONSTITUTED A THREAT TO THE
 EMPLOYEES.  CF., NATIONAL LABOR RELATIONS BOARD AND ITS GENERAL COUNSEL
 AND NATIONAL LABOR RELATIONS BOARD, REGION 29, A/SLMR NO. 1143, 8 A/SLMR
 1197(1978), APPEAL DISMISSED 1 FLRA 28, REPORT NO. 4, JUNE 22, 1979;
 PENNSYLVANIA ARMY NATIONAL GUARD, 1 FLRA 60, REPORT NO.  9, JULY 9,
 1979;  DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
 AIRWAY FACILITIES SECTOR, TAMPA, FLORIDA, A/SLMR NO. 725, 6 A/SLMR
 521(1976).  NOR WERE THE STATEMENTS BY GENERAL WELLMAN ANY LESS A
 VIOLATION OF SECTION 19(A)(1) BECAUSE HE USED "A VELVET GLOVE."
 
    3.  ALLEGED VIOLATION OF SECTION 16(A)(6) OF THE STATUTE.
 
    UNDER THE ORDER, ALLEGED NON-COMPLIANCE WITH A DECISION OF THE
 IMPASSES PANEL WAS, AND IS, A PART OF THE OBLIGATION TO BARGAIN IN GOOD
 FAITH IMPOSED BY SECTION 11(A) OF THE ORDER AND A FAILURE TO BARGAIN IN
 GOOD FAITH PURSUANT TO A DECISION OF THE IMPASSES PANEL IS A VIOLATION
 OF SECTION 19(A)(6) OF THE ORDER.  NEITHER THE ORDER NOR THE STATUTE
 PROVIDES FOR DIRECT ENFORCEMENT OF DECISIONS AND ORDERS OF THE PANEL;
 HOWEVER, THE STATUTE HAS ADDED A NEW UNFAIR LABOR PRACTICE, NAMELY SEC.
 16(A)(6) WHICH PROVIDES:
 
    "(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
   *          *          *          *
 
 
    (6) TO FAIL OR REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND IMPASSE
 DECISIONS AS REQUIRED
 
    BY THIS CHAPTER;" SEC. 16(B)(6) IS THE IDENTICAL COUNTERPART AS TO
 LABOR ORGANIZATIONS.
 
    ALTHOUGH THE STATUTE WAS ENACTED ON OCTOBER 13, 1978, SUBPART F--
 LABOR-MANAGEMENT AND EMPLOYEE RELATIONS OF P.L. 95-454, WAS NOT
 EFFECTIVE UNTIL JANUARY 11, 1979 (SEC. 907 OF P.L. 95-454, LEGISLATIVE
 HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE
 VII OF THE CIVIL SERVICE REFORM ACT OF 1978, 96TH CONG., 1ST SESS.,
 HOUSE COMMITTEE PRINT NO. 96-7, P. 117).  RESPONDENT'S ASSERTED FAILURE
 AND REFUSAL TO COMPLY WITH THE DECISION AND ORDER OF PANEL, DISCUSSED
 HEREINAFTER IN SECTION 4, OCCURRED ON NOVEMBER 8, 1978, AT WHICH TIME
 SEC. 16(A)(6) OF THE STATUTE HAD NOT BECOME EFFECTIVE AND ANY FAILURE BY
 RESPONDENT TO COMPLY WITH THE 1978 ORDER OF THE PANEL IN NOVEMBER 1978,
 WAS NOT A VIOLATION OF SEC. 16(A)(6) OF THE STATUTE, ALTHOUGH IT MAY
 WELL HAVE BEEN A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
 
    GENERAL COUNSEL URGES A THEORY OF A CONTINUING VIOLATION AFTER
 JANUARY 11, 1979;  BUT THE ONLY "CONTINUING VIOLATION" WAS THAT
 RESPONDENT DID NOTHING AFTER JANUARY 11, 1979, TO CHANGE THE POSITION IT
 HAD TAKEN IN NOVEMBER, 1978.  NOR DID THE UNION, AFTER JANUARY 11, 1979,
 SEEK TO RENEW NEGOTIATIONS.  TO THE CONTRARY, AS DISCUSSED MORE FULLY
 HEREINAFTER, THE UNION HAD TAKEN THE POSITION ON NOVEMBER 8, 1978, THAT
 THEY WERE AT A BARGAINING IMPASSE.  ACCORDINGLY, ANY FAILURE OF
 RESPONDENT TO COMPLY WITH THE DECISION AND ORDER OF THE PANEL OCCURED IN
 1978 AND, ASSUMING THAT THIS CONDUCT, IN 1978, VIOLATED SECTION 19(A)(6)
 OF THE ORDER, INACTION IN 1979, AFTER THE STATUTE BECAME EFFECTIVE, TO
 CORRECT A PRIOR VIOLATION OF THE ORDER, AFFORDS NO BASIS FOR FINDING A
 VIOLATION OF SECTION 16(A)(6) OF THE STATUTE, THE LEGAL EFFECT OF WHICH
 WOULD BE TO MAKE SECTION 16(A)(6) RETROACTIVE TO NOVEMBER 8, 1978.
 INDEED, EVEN IF BY SOME ALCHEMY SECTION 16(A)(6) WERE APPLICABLE, THE
 AUGUST 22, 1978, ORDER OF FSIP WAS NOT, DESPITE ITS SURFACE APPEARANCE,
 COMPLETE.  THUS, PURSUANT TO PARAGRAPH 1 THE PARTIES MUST AGREE UPON
 STANDARD CIVILIAN ATTIRE AND PURSUANT TO PARAGRAPH 2, THE PARTIES MUST
 AGREE TO THE CIRCUMSTANCES REQUIRING THE WEARING OF THE MILITARY
 UNIFORM.  WHETHER RESPONDENT COOPERATED IN THIS DECISION TURNS ON
 WHETHER RESPONDENT BARGAINED IN GOOD FAITH ON NOVEMBER 8, 1978, SINCE
 RESPONDENT PURPORTED TO COMPLY WITH THE FSIP ORDER.  FOR REASONS STATED
 HEREINAFTER, I HAVE CONCLUDED THAT RESPONDENT DID NOT BARGAIN IN GOOD
 FAITH ON NOVEMBER 8, 1978;  BUT SUCH FAILURE TO BARGAIN IN GOOD FAITH
 OCCURRED IN 1978 UNDER THE ORDER AND RESPONDENT'S ACTIONS OF NOVEMBER
 1978, WERE NOT OF A CONTINUING NATURE AS TO SUPPORT A VIOLATION OF THE
 STATUTE IN 1979.
 
    MOREOVER, ON JUNE 19, 1979, THE PARTIES MET TO NEGOTIATE A NEW
 CONTRACT.  ONE OF THE UNION'S DEMANDS WAS FOR A NEW ARTICLE TO THE
 EFFECT THAT EMPLOYEES "SHALL HAVE THE OPTION OF WEARING EITHER (A)
 MILITARY UNIFORM OR (B) AN AGREED UPON STANDARD CIVILIAN ATTIRE WITHOUT
 DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE OBTAINED BY EMPLOYEES WHO
 CHOOSE TO WEAR IT".  THIS DEMAND DID REFLECT THE LANGUAGE OF PARAGRAPH 1
 OF THE FSIP ORDER OF AUGUST 22, 1978, BUT WAS PART OF THE OVER-ALL
 NEGOTIATIONS. THE PARTIES NEGOTIATED ABOUT SIX AND ONE-HALF DAYS BUT DID
 NOT REACH AGREEMENT ON SOME SEVEN ARTICLES, INCLUDING THE NEW ARTICLE ON
 UNIFORMS, REFERRED TO ABOVE, AND ON SEPTEMBER 7, 1979, THE UNION FILED A
 REQUEST WITH THE FSIP TO CONSIDER A NEGOTIATION IMPASSE (G.C. EXH. 10).
 ON OCTOBER 17, 1979, THE FSIP DECLINED JURISDICTION "INASMUCH AS IT HAS
 DETERMINED THAT VOLUNTARY EFFORTS HAVE NOT BEEN EXHAUSTED.  NEGOTIATIONS
 BY THE PARTIES, THEREFORE, SHOULD BE RESUMED WITH THE ASSISTANCE OF THE
 FEDERAL MEDIATION AND CONCILIATION SERVICE." (RESP.  EXH. 3).  THE
 RECORD FURTHER REFLECTED THAT, AT THE TIME OF THE HEARING, MEDIATION WAS
 SCHEDULED FOR LATE NOVEMBER, 1979.
 
    CONSEQUENTLY, AFTER THE EFFECTIVE DATE OF THE STATUTE, THE ONLY
 DIRECTION OF THE PANEL WAS THAT CONTAINED IN ITS LETTER OF OCTOBER 17,
 1979, AND THE RECORD SHOWS AFFIRMATIVE STEPS TO COMPLY WITH THE
 DIRECTION TO RESUME NEGOTIATIONS WITH THE ASSISTANCE OF THE FEDERAL
 MEDIATION AND CONCILIATION SERVICE.
 
    FOR ALL THE FOREGOING REASONS, AS ANY FAILURE OF RESPONDENT TO COMPLY
 WITH AN ORDER OF THE FSIP OCCURRED IN 1978, THERE IS NO BASIS FOR
 FINDING A VIOLATION OF SECTION 16(A)(6) OF THE STATUTE AND THE PORTION
 OF THE COMPLAINT ALLEGING A VIOLATION OF SECTION 16(A)(6) AND,
 DERIVATIVELY, OF SECTION 16(A)(1) IN CONNECTION THEREWITH, ARE HEREBY
 DISMISSED.
 
    4.  VIOLATION OF SECTION 19(A)(6) OF THE ORDER
 
    THE FSIP ORDER OF AUGUST 22, 1978, QUITE PLAINLY STATED THAT "THE
 PARTIES SHALL ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT:  1.
 EMPLOYEES . . . SHALL HAVE THE OPTION OF WEARING EITHER (A) THE MILITARY
 UNIFORM OR (B) AN AGREED-UPON STANDARD CIVILIAN ATTIRE . . . ." THE
 UNION'S PROPOSAL, SUBMITTED WITH ITS COVER LETTER OF OCTOBER 24, 1978
 (G.C.  EXH. 4), SPECIFIED THE CIVILIAN WORK ATTIRE AND PARAGRAPH 8
 STATED "WEAR OF THE MILITARY UNIFORM OR THE CIVILIAN ATTIRE WILL BE AT
 THE OPTION OF THE EMPLOYEE ON A DAY-TO-DAY BASIS." ON A SEPARATE PAGE,
 THE UNION SET FORTH CIRCUMSTANCES WHEN THE MILITARY UNIFORM MUST BE WORN
 (G.C. EXH. 4, ATTACHMENT).
 
    RESPONDENT'S PROPOSALS, SUBMITTED WITH ITS COVER LETTER DATED
 NOVEMBER 1, 1978 (G.C. EXH. 5), REFLECTED AN ALMOST TOTAL DISDAIN FOR
 THE FSIP ORDER.  THUS, RESPONDENT'S PROPOSALS READ:
 
    "1.  GENERAL:  A. TECHNICIANS . . . SHALL WEAR THE MILITARY UNIFORM .
 . . WHEN PERFORMING
 
    TECHNICIANS DUTIES . . .
 
    "B.  TECHNICIANS IN THE BARGAINING UNIT MAY WEAR ATTIRE OTHER THAN
 THE MILITARY UNIFORM
 
    ONLY UPON PRIOR APPROVAL OF THE ADJUTANT GENERAL.
 
    "C.  TECHNICIANS ARE EXEMPT FROM THE WEAR OF MILITARY UNIFORM WHILE
 ACTUALLY PERFORMING IN
 
    ANY OF THE FOLLOWING SITUATIONS:
 
    "(1) TRAVELING . . . BY COMMERCIAL OR PRIVATE TRANSPORTATION.
 
    "(2) ATTENDING COURSES OF INSTRUCTION IN A TECHNICIAN STATUS AT
 LOCATIONS OTHER THAN
 
    MILITARY INSTALLATIONS.
 
    "(3) WHEN SERVING AS A LABOR ORGANIZATION REPRESENTATIVE WHILE
 ENGAGED IN LABOR AGREEMENT
 
    NEGOTIATIONS.
 
    "(4) WHILE PARTICIPATING AS A DATA COLLECTOR DURING THE CONDUCT OF
 FEDERAL WAGE SYSTEM
 
    SURVEYS.
 
    "(5) IN ANY SITUATION DEEMED APPROPRIATE BY THE ADJUTANT GENERAL.
 
    "D.  ATTIRE OTHER THAN THE MILITARY UNIFORM WILL BE AS PRESCRIBED BY
 THE ADJUTANT GENERAL.
 
   .          .          .          .
 
 
    "F.  ANY AUTHORIZED ATTIRE OTHER THAN THE MILITARY UNIFORM WILL BE AS
 PRESCRIBED BY THE
 
    ADJUTANT GENERAL.
 
    "G.  IF ATTIRE OTHER THAN THE MILITARY UNIFORM IS AUTHORIZED FOR WEAR
 BY THE ADJUTANT
 
    GENERAL, ALL ELIGIBLE MEMBERS OF THE BARGAINING UNIT WILL BE REQUIRED
 TO WEAR SUCH ATTIRE
 
    WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES.  . . ." (G.C.
 EXH. 5, ATTACHMENT).
 
    PRIOR TO THE COMMENCEMENT OF NEGOTIATIONS, GENERAL WELLMAN MET WITH
 THE UNION'S LOCAL NEGOTIATORS AND MADE THE COMMENTS, MORE FULLY SET
 FORTH HEREINABOVE, WHEREBY HE MADE IT CLEAR THAT HE OPPOSED THE IDEA OF
 TECHNICIANS WEARING CIVILIAN CLOTHES, TOLD THE NEGOTIATORS IT WAS NOT IN
 THEIR BEST INTEREST AND THAT HE WOULD DO ANYTHING TO KEEP THEM IN
 UNIFORM.
 
    AT THE NEGOTIATIONS ON NOVEMBER 8, 1978, WHICH COMMENCED IMMEDIATELY
 AFTER GENERAL WELLMAN'SMEETING WITH THE UNION'S LOCAL NEGOTIATORS,
 COLONEL KINNAIRD WAS SPOKESMAN FOR RESPONDENT.  DURING NEGOTIATIONS /5/
 RESPONDENT MADE COUNTER PROPOSALS TO ITS INITIAL PROPOSALS AND TO THE
 UNION'S PROPOSALS, SOME OF WHICH ARE REFLECTED BY GENERAL COUNSEL'S
 EXHIBIT 6.  PARAGRAPH 1A WAS UNCHANGED FROM RESPONDENT'S NOVEMBER 1,
 1978, PROPOSAL;  BUT SUBPARAGRAPH B NOW PROVIDED,
 
    "B.  ALL MEMBERS OF THE BARGAINING UNIT WILL WEAR THE STANDARD
 CIVILIAN ATTIRE.  EXCEPTIONS
 
    TO THIS POLICY WILL BE AT THE DISCRETION OF THE ADJUTANT GENERAL.
 THE REMAINING SUBPARAGRAPHS OF PARAGRAPH 1 WERE QUITE DIFFERENT FROM
 RESPONDENT'S NOVEMBER 1 PROPOSAL, ONLY TWO OF WHICH ARE NOTED:
 SUBPARAGRAPH D REQUIRED THAT EACH EMPLOYEE MAINTAIN A MILITARY UNIFORM
 IN THE IMMEDIATE VICINITY OF HIS WORK LOCATION;  AND SUBPARAGRAPH I
 PROVIDED THAT "WITHIN THIRTY (30) CALENDAR DAYS OF THE EFFECTIVE DATE OF
 THIS SUPPLEMENTAL AGREEMENT, EACH TECHNICIAN WHO IS OTHERWISE ELIGIBLE
 WILL ACQUIRE AND WEAR THE AGREED UPON STANDARD CIVILIAN ATTIRE WHILE
 PERFORMING THE TECHNICIAN DAY-TO-DAY TECHNICIAN DUTIES." RESPONDENT
 SUBMITTED AT THE NEGOTIATING MEETING PARAGRAPHS 2 (PAGES 3-10 OF G.C.
 EXH. 6) AND 3 (PAGES 11-13 OF G.C. EXH. 6) WHICH HAD NOT BEEN A PART OF
 ITS NOVEMBER 1 PROPOSALS.  PARAGRAPH 3, SUBPARAGRAPH 13, SOMETIMES
 REFERRED TO BY THE PARTIES, AND HEREIN, AS "BOWLEGGED 13" (PARAGRAPH 3
 WAS ENTITLED "CIRCUMSTANCES AND OCCASIONS REQUIRING THE WEAR OF MILITARY
 UNIFORM) PROVIDED AS FOLLOWS:
 
    "(13) WHENEVER IT WOULD BE IN THE PUBLIC INTEREST OR IN THE BEST
 INTEREST OF THE NATIONAL
 
    GUARD AS DETERMINED BY THE ADJUTANT GENERAL."
 
    THE UNION HAD VIEWED RESPONDENT'S PARAGRAPH 1 AS UNSATISFACTORY,
 INDEED, ILLUSORY, SINCE, ALTHOUGH THE INITIAL THRUST OF SUBPARAGRAPH B
 NOW WAS THAT ALL EMPLOYEES WEAR CIVILIAN ATTIRE, EXCEPTIONS TO THIS
 POLICY, OF WEARING CIVILIAN ATTIRE, WERE AT THE DISCRETION OF THE
 ADJUTANT GENERAL.  ACCORDINGLY, THE UNION INSISTED UPON THE LANGUAGE OF
 PARAGRAPH 1 OF THE FSIP ORDER.  LATE IN THE NEGOTIATIONS, RESPONDENT
 AGREED TO SUBSTITUTE PARAGRAPH 1 OF THE FSIP ORDER FOR ITS PROPOSED
 PARAGRAPH 1 WITH THE FURTHER PROVISION THAT, WITHIN THIRTY DAYS AFTER
 THE DATE OF THE SUPPLEMENTAL AGREEMENT, THE EMPLOYEES DECIDE WHETHER
 THEY WOULD WEAR THE UNIFORM OR CIVILIAN ATTIRE AND IF A MAJORITY ELECTED
 TO WEAR CIVILIAN ATTIRE, ALL WOULD WEAR CIVILIAN ATTIRE, AT THEIR
 PERSONAL EXPENSE.  ALTHOUGH IT IS CLEAR THAT, BY USE OF THE WORD
 "OPTION" IN ITS ORDER, THE PANEL DID NOT DEFINE ALL CIRCUMSTANCES UNDER
 WHICH INDIVIDUAL TECHNICIANS COULD EXERCISE THIS OPTION NOR DID IT PLACE
 ANY LIMITATION BY TIME CONSTRAINTS OR GROUP DECISION MAKING ON THE
 EXERCISE OF THIS OPTION, /6/ PREFERRING TO LEAVE THIS FOR NEGOTIATION BY
 THE PARTIES.  THE UNION HAD PROPOSED THAT THE CHOICE BE ". . . AT THE
 OPTION OF THE EMPLOYEE ON A DAY-TO-DAY BASIS" (G.C. EXH. 4, PAR. 8);
 BUT, IN A MAJOR AND BASIC CONCESSION, OFFERED TO ACCEPT RESPONDENT'S
 COUNTERPROPOSAL OF PARAGRAPH 1 OF THE PANEL ORDER WITH THE ONE TIME
 OPTION ON THE RIGHT TO WEAR CIVILIAN CLOTHING, IF RESPONDENT WOULD DROP
 "BOWLEGGED 13".  RESPONDENT REFUSED ABSOLUTELY TO DELETE "BOWLEGGED 13".
 RESPONDENT'S TRANSCRIPT OF THE TAPES OF THAT MEETING (RES. EXH. 2)
 SHOWS, IN PART, AS FOLLOWS:
 
    "HICKEY:  (REFERRING TO PAR. 3, SUBPARAGRAPH 13, PAGE 13 (G.C. EXH.
 6)) THAT'S A
 
    REQUIREMENT OF YOURS TO BE INCLUDED.
 
    "KINNAIRD:  YES SIR.
 
    "HICKEY:  WE'VE ALREADY GIVEN THE POSITION WE CAN'T AGREE WITH THAT
 AT ALL.  IT'S NOT
 
    ACCEPTABLE.  (PP. 39-40)
 
   *          *          *          *
 
 
    "HICKEY:  WE CAN AGREE TO THAT PROPOSAL IF YOU'LL DROP ALL OF 13 . .
 .  (P. 41)
 
   *          *          *          *
 
 
    "HICKEY:  WHAT I'M SAYING IS THAT WE CAN AGREE TO YOUR LANGUAGE THAT
 YOU WANT TO USE TO
 
    MODIFY OR ADD ON TO PARAGRAPH 1 OF THE ORDER.  IF THESE CIRCUMSTANCES
 AND OCCASIONS WHERE THE
 
    UNIFORM IS DEEMED APPROPRIATE.  IF AGREED UPON AND WE WOULD HAVE TO
 THRASH SOME OUT.  BUT WE
 
    CANNOT EVER AGREE ON AN OPEN-ENDED LANGUAGE OF YOUR BOWLEGGED 13
 WHERE THE ADJUTANT GENERAL
 
    HAS THE FINAL DECISION AS TO WHETHER OR NOT SOMEONE GETS OUT OF THE
 UNIFORM.
 
    "KINNAIRD:  NO, NO, NOW YOU'RE NOT READING THAT RIGHT CHARLIE.
 THAT'S NOT WHAT IT SAYS.  I
 
    KNOW WHAT YOU ALL THINK IT SAYS BUT THAT IS NOT WHAT IT SAYS.  READ
 THIS CAREFULLY.
 
    "HICKEY:  I'VE READ IT CAREFULLY.
 
    "KINNAIRD:  IT SAYS TWO TIMES, IT SAYS TWO TIMES IN HERE-- WHENEVER
 IT WOULD BE IN THE
 
    PUBLIC INTEREST.  OK.  WE KNOW WHAT THE PUBLIC INTEREST IS.  WE GOT
 IT, IF YOU DON'T KNOW THAT
 
    I'LL FURNISH YOU A REAM OF STUFF ON WHAT THE PUBLIC INTEREST IS.  I
 DON'T THINK YOU NEED
 
    THAT-- HOWEVER, IN THE BEST INTEREST OF THE NATIONAL GUARD.
 
    "HICKEY:  IF IT DOES THAT WHY DO YOU NEED THE LANGUAGE?
 
    "KINNAIRD:  BECAUSE THE ADJUTANT GENERAL IS THE ONE WHO MAKES THOSE
 DETERMINATIONS.  HE
 
    MAKES ALL KINDS OF DETERMINATIONS AROUND HERE.  BECAUSE HE HAS TO.
 HE HAS TO HAVE THAT
 
    AUTHORITY CHARLIE.
 
    "HICKEY:  I MADE YOU AN OFFER.
 
    "KINNAIRD:  WELL I'M MAKING YOU AN OFFER.
 
    "HICKEY:  I CAN'T AGREE WITH YOU 13-- THE CONCEPT OF ALL THAT THE
 VERY BOTTOM LINE OF THE
 
    AGREEMENT ANY EXCEPTIONS TO THE WEARING OF THE CIVILIAN UNIFORM THE
 BOTTOM LIKE WHERE IT
 
    SAYS-- 'WHENEVER IT WOULD BE IN THE PUBLIC INTEREST OR IN THE BEST
 INTEREST OF THE NATIONAL
 
    GUARD AS DETERMINED BY THE ADJUTANT GENERAL.' I CAN AGREE TO
 EXCEPTIONS TO BE WORKED
 
    OUT. THOSE PARTICULAR EXCEPTIONS THAT HAVE TO WEAR THE MILITARY
 UNIFORM ON THOSE PARTICULAR
 
    OCCASIONS WHEN THE UNIFORM.  BUT I CAN NEVER AGREE TO THE LANGUAGE
 THAT WOULD GIVE THE
 
    ADJUTANT GENERAL THE RIGHT TO MAKE THE DECISION WHILE * * *
 
    "KINNAIRD:  WHAT YOU'RE SAYING THEN IS THAT IF WE MODIFY 3A
 
    BOWLEGGED 13, THE WAY WE TALKED ABOVE WE PUT THAT VERBATIM IN THERE.
 
    WE'LL WORK THE LANGUAGE OUT-- WHAT IT MEANS IS EVERYBODY WEARS THE
 UNIFORM OR EVERYBODY WEARS
 
    THE CIVILIAN ATTIRE.  YOU BUY THAT IT WE STRIKE OUT 13 BUT NOTHING
 ELSE IN THERE HAS BEEN
 
    AGREED TO YET. IS THAT RIGHT?
 
    "DENTON:  RIGHT.
 
    "KINNAIRD:  I TELL YOU WHAT-- WE'RE NOT GOING TO BE ABLE TO-- WE'RE
 ALREADY OVERTIME ON
 
    THAT.  WE'RE GOING TO HAVE TO DO WHAT WE'VE DONE IN THE PAST CHARLIE
 AND THAT IS WE'RE GOING
 
    TO HAVE TO WORK DOWN TO THAT ONE AND SEE HOW WE GET ALONG ON THE REST
 OF THEM.
 
    "HICKEY:  I'LL HAVE TO GIVE YOU MY PARTICULAR POSITION, THE UNION'S
 POSITION IS THAT WE'RE
 
    AT AN IMPASSE AND WE SHALL HAVE TO GO BACK TO THE PANEL AND INFORM
 THEM OF SUCH * * *
 
    "KINNAIRD:  OK." (PP. 42-43) (MR. HICKEY) TESTIFIED THAT THE PORTION
 OF HIS STATEMENT
 
    OMITTED, FOLLOWING "WE SHALL HAVE TO GO BACK TO THE PANEL AND INFORM
 THEM OF SUCH" WAS, "THAT
 
    WE CANNOT LIVE WITH YOUR BOWLEGGED 13" (TR. 154).  MR. HICKEY FURTHER
 TESTIFIED THAT HE DID
 
    NOT RECALL A SINGLE WORD ANSWER BY COL. KINNAIRD AND THAT HE
 REMEMBERED HIM SAYING, "OKAY, I
 
    GUESS THAT'S IT." (TR. 154).
 
    THERE WERE NO FURTHER NEGOTIATIONS AND THE PARTIES LEFT WITHOUT
 FIXING ANY DATE FOR FURTHER NEGOTIATIONS.  FROM A CAREFUL EXAMINATION OF
 THE RECORD, I CONCLUDE THAT, WHILE COLONEL KINNAIRD DID STATE THAT ". .
 . WE'RE GOING TO HAVE TO WORK DOWN TO THAT ONE (BOWLEGGED 13) AND SEE
 HOW WE GET ALONG ON THE REST OF THEM", HE GAVE NO INDICATION THAT HE
 WOULD MOVE ON BOWLEGGED 13 AND WHEN MR. HICKEY SAID IT WAS THE UNION'S
 POSITION THAT THEY WERE AT IMPASSE AND WE CANNOT LIVE WITH YOUR
 BOWLEGGED 13, THAT COLONEL KINNARID SIMPLY SAID, AS TO THEIR BEING AT
 IMPASSE, "OKAY, I GUESS THAT'S IT".  THAT RESPONDENT CONTEMPLATED NO
 FURTHER BARGAINING IS, OF COURSE, CONFIRMED BY THE TOTAL ABSENCE, AFTER
 MR. HICKEY'S STATEMENT THAT IT WAS THE UNION'S POSITION THAT THEY WERE
 AT IMPASSE, OF ANY SUGGESTION OR REQUEST THAT THE PARTIES MEET
 THEREAFTER.
 
    TO BE SURE, COLONEL KINNAIRD'S STATEMENT THAT "WE'RE GOING TO HAVE TO
 WORK DOWN TO THAT ONE (BOWLEGGED 13) AND SEE HOW WE GET ALONG ON THE
 REST OF THEM" DEMONSTRATED NO GOOD FAITH ON HIS PART.  HAD HE
 ENTERTAINED THE SLIGHTEST INTENT TO RECEDED FROM BOWLEGGED 13, WHICH HE
 HAD ADAMANTLY INSISTED THAT "HE (THE ADJUTANT GENERAL) HAS TO HAVE THAT
 AUTHORITY .  . . ", IT WOULD HAVE BEEN SIMPLE ENOUGH TO HAVE STATED THAT
 "WE WILL AGREE TO DROP BOWLEGGED 13 IF WE CAN AGREE ON THE REST";  BUT,
 INSTEAD, HE SAID ONLY "WE'LL . . . WORK DOWN TO THAT ONE (BOWLEGGED 13)
 AND SEE HOW WE GET ALONG ON THE REST OF THEM".
 
    HOWEVER, MY CONCLUSION THAT RESPONDENT DID NOT BARGAIN IN GOOD FAITH
 IS BASED ON RESPONDENT'S TOTAL CONDUCT IN BARGAINING PURSUANT TO THE
 ORDER OF THE PANEL.  AS NOTED ABOVE, RESPONDENT'S PROPOSALS OF NOVEMBER
 1, 1978, SHOWED AN ALMOST TOTAL DISDAIN FOR THE FSIP ORDER AND ITS
 LIMITED AND GRUDGING ACCEPTANCE OF THE CONCEPT THAT TECHNICIANS MIGHT
 WEAR CIVILIAN ATTIRE WAS THOROUGHLY CONDITIONED, AT EVERY TURN, BY THE
 UNILATERAL DISCRETION OF THE ADJUTANT GENERAL.  RESPONDENT MADE NO
 COUNTER-PROPOSAL TO ITS NOVEMBER 1 PROPOSAL ON PARAGRAPH 1 UNTIL AFTER
 LUNCH AND ITS NEW PROPOSAL CONTINUED TO PROVIDE IN PARAGRAPH 1A THAT
 "TECHNICIANS . . . SHALL WEAR THE MILITARY UNIFORM . . . WHEN PERFORMING
 TECHNICIAN DUTIES, AND WILL COMPLY WITH THE STANDARDS OF THE APPROPRIATE
 SERVICE PERTAINING TO GROOMING AND THE WEARING OF THE MILITARY UNIFORM
 EXCEPT AS PROVIDED FOR ELSEWHERE IN THIS SUPPLEMENTAL AGREEMENT."
 PARAGRAPH 1B OF RESPONDENT'S COUNTER-PROPOSAL PROVIDED "ALL MEMBERS OF
 THE BARGAINING UNIT WILL WEAR THE STANDARD CIVILIAN ATTIRE.  EXCEPTIONS
 TO THIS POLICY WILL BE AT THE DISCRETION OF THE ADJUTANT GENERAL";  BUT,
 ALTHOUGH RECAST, THERE WAS NO QUESTION THAT THE ADJUTANT GENERAL
 RETAINED UNILATERAL DISCRETION TO MAKE THE ULTIMATE DECISION AS TO
 WHETHER CIVILIAN ATTIRE COULD BE WORN.  THE FOLLOWING COLLOQUEY BETWEEN
 MR. DENTON AND COLONEL KINNAIRD REFLECTS RESPONDENT'S ATTITUDE:
 
    "DENTON:  I THINK WHAT WE BASICALLY WANT, WHAT IS FAIR AND PROPER,
 AND WHAT THAT ORDER SAYS
 
    WE SHOULD HAVE-- AND THIS HAS ALL BEEN HASHED OUT IN THE PAST BY YOU
 AND HICKEY AND ALL THESE
 
    PEOPLE HERE, MUCH MORE THAN I HAVE
 
    "KINNAIRD:  YEAH, THE ASSOCIATION, 2 MEDIATIONS, A FACT FINDING AND
 WE'RE RIGHT BACK WHERE
 
    WE STARTED 18 MONTHS AGO." (RES. EXH. 2, P. 35)
 
    WHEN RESPONDENT AGREED TO ACCEPT PARAGRAPH 1 OF THE FSIP ORDER IT
 ATTACHED THE CONDITION THAT THE EMPLOYEES MAKE A ONE TIME ELECTION
 WHETHER TO WEAR THE UNIFORM OR CIVILIAN CLOTHES, WHICH, INTERESTINGLY,
 COLONEL KINNAIRD CHARACTERIZED AS "A HOOKER" (RES. EXH.  2, P. 41).
 
    WHETHER THAT PORTION OF RESPONDENT'S COUNTER-PROPOSAL (G.C. EXH. 6,
 PAGES 11-13) CONTAINING BOWLEGGED 13 HAD NOT BEEN SUBMITTED UNTIL NEAR
 THE END OF THE NOVEMBER 8, BARGAINING SESSION (SEE RES. EXH. 2 P. 39,
 TR. 60)OR WHETHER, BECAUSE ATTENTION HAD FIRST BEEN DIRECTED TO
 PARAGRAPH 1, WHEN MR. HICKEY BECAME AWARE OF BOWLEGGED 13 (RES. EXH. 2,
 P. 39) HE IMMEDIATELY STATED:
 
    "HICKEY:  WE'VE ALREADY GIVEN THE POSITION WE CAN'T AGREE WITH THAT
 AT ALL.  IT'S NOT
 
    ACCEPTABLE." (RES. EXH. 2, P. 40).
 
    BEARING IN MIND THAT PARAGRAPH 3 SPECIFIED WHEN THE MILITARY UNIFORM
 MUST BE WORN AND THAT SUBPARAGRAPH 13 REQUIRED THE MILITARY UNIFORM BE
 WORN:
 
    "WHENEVER IT WOULD BE IN THE PUBLIC INTEREST OR IN THE BEST INTEREST
 OF THE NATIONAL GUARD
 
    AS DETERMINED BY THE ADJUTANT GENERAL." COLONEL KINNAIRD'S RESPONSES
 WERE CERTAINLY LACKING IN GOOD FAITH.  FIRST MR. HICKEY STATED,
 
    "HICKEY:  WE'RE JUST GIVING YOU THE FACT. IF THE ADJUTANT GENERAL
 DECIDES IN THE BEST
 
    INTEREST OF THE NATIONAL GUARD TO KEEP YOUR MILITARY UNIFORM.  NONE
 OF US NEEDS TO BE IN
 
    THERE.  WHY DON'T WE PUT IT ON THE LINE.  YOU CAN BE IN A STANDARD OR
 CIVILIAN ATTIRE WHENEVER
 
    IT WOULD BE IN THE PUBLIC INTEREST OR BEST INTEREST OF THE NATIONAL
 GUARD AS DETERMINED BY THE
 
    ADJUTANT GENERAL.  I MEAN BE DONE WITH ALL THE REST." MR. DENTON
 STATED,
 
    "DENTON:  IT BOILS DOWN TO THAT ONE LITTLE SENTENCE." COLONEL
 KINNAIRD REPLIED,
 
    "KINNAIRD:  IT GIVES HIM AN AUTHORITY THAT I THINK HE HAS . .  ." MR.
 DENTON AGAIN STATED,
 
    "DENTON:  IT'S JUST IN MY OPINION THAT IT GIVES HIM THE AUTHORITY TO
 JUST THROW EVERYTHING
 
    ELSE OUT THE WINDOW AND SAY WELL-- THAT'S THAT.  COLONEL KINNAIRD
 STRANGELY DENIED SUCH AUTHORITY,
 
    "KINNAIRD:  NAW" AGAIN MR. DENTON INSISTED,
 
    "DENTON:  SURE.  SURE IT DOES.  NOW WHETHER OR NOT HE WOULD EVER
 EXERCISE IT I'M NOT GOING
 
    TO SAY HE WOULD OR WOULD NOT.  BUT IT GIVES HIM THAT-- TO WEAR
 ANYTHING YOU WANT TO-- AND SAY
 
    ALL
 
    THIS OTHER STUFF IS GARBAGE-- THROW IT OUT AND RIGHT HERE." TO WHICH
 COLONEL KINNAIRD AGAIN DENIED
 
    "KINNAIRD:  NO." (RES. EXH. 2, P. 40)
 
    COLONEL KINNAIRD'S DENIAL THAT SUBPARAGRAPH 13 GAVE THE ATTORNEY
 GENERAL COMPLETE AND UNFETTERED DISCRETION TO REQUIRE THAT UNIFORMS BE
 WORN ANY TIME HE DETERMINED IT TO BE IN THE PUBLIC INTEREST OR IN THE
 BEST INTEREST OF THE NATIONAL GUARD, NOT WHETHER HE WOULD OR WOULD NOT
 SO EXERCISE THE AUTHORITY, AS THE PROVISION PLAINLY STATED, AFTER FIRST
 ADMITTING THE AUTHORITY, HAD THE APPEARANCE OF SHAM SINCE, ONLY A FEW
 MINUTES EARLIER THE PARTIES HAD BEEN ON THE BRINK OF IMPASSE WITH
 RESPECT TO THE EQUIVALENT DISCRETIONARY AUTHORITY OF THE ADJUTANT
 GENERAL UNDER PARAGRAPH 1 (SEE, RESP. EXH. 2, P. 36).
 
    FINALLY, COLONEL KINNAIRD'S STEADFAST INSISTANCE THAT SUBPARAGRAPH 13
 WAS REQUIRED (RES. EXH. 2, P. 35) BECAUSE "HE (THE ATTORNEY GENERAL) HAS
 TO HAVE THAT AUTHORITY .  . ." (RES. EXH. 2, P. 42), CF. NATIONAL LABOR
 RELATIONS BOARD V. WOOSTER DIVISION OF BORG WARNER, 356 U.S. 342(1958),
 WAS PART OF A PRECONCEIVED SCHEME TO AVOID COMPLIANCE WITH THE ORDER OF
 THE PANEL.  EVERY PROPOSAL RESPONDENT MADE WAS CONDITIONED BY THE
 DISCRETION OF THE ATTORNEY GENERAL, THE TRUE INTENT OF WHICH GENERAL
 WELLMAN HAD MADE PLAIN FROM HIS PRONOUNCEMENTS TO THE ENLISTED MEMBERS
 OF THE UNION'S NEGOTIATING TEAM, WHEN HE HAD TOLD THEM, AS HE ADMITTED,
 THAT HE WOULD DO ANYTHING TO KEEP THEM IN UNIFORM BECAUSE HE THOUGHT IT
 WAS IN THEIR BEST INTEREST AND THE BEST INTEREST OF THE TECHNICIAN GROUP
 AND THAT THE UNIFORM ISSUED WAS NOT IN THE BEST INTEREST OF THE
 TECHNICIAN PROGRAM.
 
    FOR ALL THE FOREGOING REASONS, I CONCLUDE THAT RESPONDENT DID NOT
 BARGAIN IN GOOD FAITH ON NOVEMBER 8, 1978, PURSUANT TO THE ORDER OF THE
 FEDERAL SERVICE IMPASSES PANEL WHICH DIRECTED THAT EMPLOYEES, WHILE
 PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE THE OPTION OF
 WEARING EITHER THE MILITARY UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN
 ATTIRE, BY INSISTING, TO THE POINT OF IMPASSE, ON A PROVISION WHICH
 PERMITTED RESPONDENT TO NULLIFY, TOTALLY, THE OPTION, WHICH THE PANEL
 HAD DIRECTED BE ACCORDED THE EMPLOYEES, BY RESERVATION TO THE ATTORNEY
 GENERAL OF COMPLETE DISCRETION TO REQUIRE THAT EMPLOYEES WEAR THE
 MILITARY UNIFORM WHENEVER HE DETERMINED IT TO BE IN THE PUBLIC INTEREST
 OR IN THE BEST INTEREST OF THE NATIONAL GUARD.  RESPONDENT THEREBY
 VIOLATED SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 RESPONDENT ALSO THEREBY, DERIVATIVELY, VIOLATED SECTION 19(A)(1) OF
 EXECUTIVE ORDER 11491, AS AMENDED.
 
             5.  VIOLATION OF SECTION 16(A)(5) OF THE STATUTE
 
    THERE IS NO DISPUTE THAT ON JUNE 19, 1979, AND THEREAFTER, THE UNION,
 IN BARGAINING ON A NEW CONTRACT, INCLUDED IN ITS DEMANDS A NEW ARTICLE
 PROVIDING IN EFFECT, THAT EMPLOYEES HAVE THE OPTION OF WEARING EITHER
 THE MILITARY UNIFORM OR AN AGREED UPON STANDARD CIVILIAN ATTIRE, SUCH
 CIVILIAN CLOTHING TO BE PURCHASED BY EMPLOYEES WHO CHOOSE TO WEAR IT;
 AND THAT RESPONDENT REFUSED TO BARGAIN ON THE UNION'S DEMAND.  THE
 UNION'S DEMAND WAS A CONDITION OF EMPLOYMENT WITHIN THE MEANING OF
 SECTION 3(14) OF THE STATUTE, AN APPROPRIATE SUBJECT FOR COLLECTIVE
 BARGAINING WITHIN THE MEANING OF SECTION 3(12) OF THE STATUTE, THE UNION
 WAS, AND IS, A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION AND WAS ENTITLED TO NEGOTIATE PURSUANT TO SECTION 14 OF THE
 STATUTE, AND RESPONDENT, BY ITS REFUSAL TO CONSULT OR NEGOTIATE, THEREBY
 VIOLATED SECTION 16(A)(5) OF THE STATUTE AND, ALSO, THEREBY,
 DERIVATIVELY, VIOLATED SECTION 16(A)(1) OF THE STATUTE (5 U.S.C.
 7116(A)(5) AND (1), RESPECTIVELY).  THE FACT THAT AN UNFAIR LABOR
 PRACTICE PROCEEDING WAS THEN PENDING BEFORE THE AUTHORITY AS THE RESULT
 OF AN ALLEGED PRIOR REFUSAL TO BARGAIN IN GOOD FAITH ON THE SAME ISSUE
 NEITHER EXCUSED RESPONDENT'S REFUSAL TO BARGAIN IN JUNE, 1979, NOR IS
 SUCH FACT A DEFENSE TO RESPONDENT'S ADMITTED REFUSAL TO BARGAIN.  THE
 UNION'S DEMAND IN 1979 WAS A NEW DEMAND MADE AS PART OF NEGOTIATIONS FOR
 A NEW CONTRACT AS TO WHICH RESPONDENT WAS REQUIRED TO BARGAIN IN GOOD
 FAITH.  RESPONDENT'S REFUSAL TO BARGAIN ON THE UNION'S DEMAND FOR A NEW
 ARTICLE WITH REGARD TO THE OPTION OF EMPLOYEES TO WEAR EITHER THE
 MILITARY UNIFORM OR CIVILIAN ATTIRE VIOLATED SECTION 16(A)(5) AND (1)
 NOTWITHSTANDING THAT RESPONDENT BARGAINED ON OTHER ISSUES;  THAT THE
 FEDERAL SERVICE IMPASSES PANEL ON OCTOBER 17, 1979, DECLINED
 JURISDICTION TO CONSIDER A NEGOTIATION IMPASSE BECAUSE THE PANEL "HAS
 DETERMINED THAT VOLUNTARY EFFORTS HAVE NOT BEEN EXHAUSTED" ( RESP. EXH.
 3);  AND THAT THE UNION'S DEMAND FOR THE UNIFORM ARTICLE HAD BEEN ONE OF
 THE ITEMS INCLUDED IN THE UNION'S REQUEST TO THE PANEL.  (G.C. EXH. 10).
  SEE, NATIONAL LABOR RELATIONS BOARD V.  WOOSTER DIVISION OF
 BORG-WARNER, SUPRA.
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTION 19(A)(1) OF EXECUTIVE
 ORDER 11491, AS AMENDED, AS ALLEGED IN PARAGRAPHS 5, 6 AND 14 OF THE
 COMPLAINT, BY CERTAIN ACTS AND STATEMENTS BY THE ADJUTANT GENERAL OF
 KENTUCKY ON NOVEMBER 8, 1978;  THAT RESPONDENT VIOLATED SECTIONS
 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY ITS REFUSAL TO
 BARGAIN IN GOOD FAITH ON NOVEMBER 8, 1978, PURSUANT TO AN ORDER OF THE
 FEDERAL SERVICE IMPASSES PANEL, AS ALLEGED IN PARAGRAPHS 8, 9, AND 15 OF
 THE COMPLAINT;  AND THAT RESPONDENT VIOLATED SECTION 16(A)(1) AND (5) OF
 THE STATUTE, 5 U.S.C. 7116(A)(1) AND (5), BY ITS REFUSAL TO BARGAIN ON,
 AND AFTER, JUNE 19, 1979, CONCERNING THE UNION'S LAWFUL AND PROPER
 DEMAND FOR A CONTRACT PROVISION CONCERNING THE OPTION TO WEAR THE
 MILITARY UNIFORM OR CIVILIAN CLOTHING WHEN PERFORMING DAY-TO-DAY DUTIES
 AS CIVILIAN TECHNICIANS, AS ALLEGED IN PARAGRAPHS 11 AND 16 OF THE
 COMPLAINT, AN APPROPRIATE ORDER DESIGNED TO REMEDY THE UNFAIR LABOR
 PRACTICES FOUND IS SET FORTH HEREINAFTER.
 
    HAVING FOUND NO VIOLATION OF SECTION 16(A)(1) OR (6) OF THE STATUTE,
 AS ALLEGED IN PARAGRAPHS 8, 9, AND 15, ON THE THEORY THAT INACTION BY
 RESPONDENT AFTER JANUARY 11, 1979, CONSTITUTES A "CONTINUING VIOLATION"
 AS TO CONDUCT WHICH OCCURRED ON NOVEMBER 8, 1978, THOSE PORTIONS OF
 PARAGRAPHS 8, 9 AND 15 OF THE COMPLAINT ALLEGING A VIOLATION OF THE
 STATUTE ARE HEREBY DISMISSED;  AND HAVING FOUND NO BASIS FOR A VIOLATION
 OF SECTION 16(A)(8) OF THE STATUTE, AS ALLEGED IN PARAGRAPH 12 AND 17 OF
 THE COMPLAINT, THESE PARAGRAPHS OF THE COMPLAINT ARE HEREBY DISMISSED.
 
                                   ORDER
 
    PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. SECTION
 7118(A)(7), AND SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5
 U.S.C. CHAPTER XIV, FED. REG., VOL.  45, NO. 12, JANUARY 17, 1980;  AND
 SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, SECTION 203.26(B) OF
 THE REGULATIONS THEREUNDER, 29 C.F.R. SECTION 203.26(B), AND SECTION
 2400.2 OF THE FINAL RULES AND REGULATIONS, THE AUTHORITY HEREBY ORDERS
 THAT THE KENTUCKY NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A) MAKING STATEMENTS OR COMMENTS, BY THE ATTORNEY GENERAL OR ANY
 OTHER AGENT, OFFICER OR REPRESENTATIVE OF RESPONDENT, TO MEMBERS OF THE
 NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, OR TO ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT THE
 WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF TECHNICIAN
 DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST OF THE
 TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE NATIONAL
 GUARD, THAT THE ATTORNEY GENERAL WILL DO ANYTHING TO KEEP THE EMPLOYEES
 IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT OR LIKE IMPORT.
 
    B) IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED, AND BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE TO INTERFERE WITH, RESTRAIN, OR
 COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
 THE STATUTE.
 
    C) REFUSING TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
 CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY
 TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN AGREED-UPON
 STANDARD CIVILIAN ATTIRE AND/OR THE ORDER OF THE FEDERAL SERVICE
 IMPASSES PANEL DATED AUGUST 22, 1978.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND OF THE
 STATUTE:
 
    A) POST AT EACH OF ITS FACILITIES, OFFICES, OR STATIONS IN THE
 COMMONWEALTH OF KENTUCKY COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
 ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS,
 THEY SHALL BE SIGNED BY THE ADJUTANT GENERAL, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 CIVILIAN TECHNICIANS AND TO MEMBERS OF THE KENTUCKY NATIONAL GUARD ARE
 CUSTOMARILY POSTED.  THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO
 INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    B) UPON REQUEST, BARGAIN WITH NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
 OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING THE OPTION OF
 EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR
 THE MILITARY UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE AND/OR
 THE ORDER OF THE FEDERAL SERVICE IMPASSES PANEL DATED JANUARY 22, 1978.
 
    C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
 NOTIFY THE REGIONAL DIRECTOR OF REGION 4, SUITE 501, NORTH WING, 1776
 PEACHTREE STREET, N.S., ATLANTA, GEORGIA 30309, IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER