State of California National Guard (Respondent) and National Association of Government Employees, Locals R12-125, R12-132, R12-146, R12-150 and R12-105 (Charging Party)

 



[ v08 p54 ]
08:0054(11)CA
The decision of the Authority follows:


 8 FLRA No. 11
 
 STATE OF CALIFORNIA NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R12-125, R12-132,
 R12-146, R12-150 and R12-105
 Charging Party
 
                                            Case No(s). 9-CA-44, 
                                                        9-CA-95
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT RESPONDENT HAD ENGAGED IN THE
 UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT
 IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
 ACTION.  THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
 DECISION AND ORDER AND A BRIEF IN SUPPORT THEREOF, AND THE GENERAL
 COUNSEL FILED AN OPPOSITION THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  /1/ UPON CONSIDERATION OF
 THE JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD IN THE SUBJECT
 CASES, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S RECOMMENDATIONS AS
 MODIFIED HEREIN.  BASED ON THE AUTHORITY'S DECISION IN STATE OF NEVADA
 NATIONAL GUARD, 7 FLRA NO. 37(1981), AND THE RATIONALE THEREIN, THE
 AUTHORITY AGREES WITH THE JUDGE THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (6) OF THE STATUTE.  IN VIEW OF THAT FINDING, THE
 AUTHORITY FINDS IT UNNECESSARY TO PASS UPON WHETHER THE RESPONDENT'S
 CONDUCT ALSO VIOLATED SECTION 7116(A)(5) OR (8).
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE STATE OF CALIFORNIA NATIONAL GUARD SHALL:
 
    1. CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO COMPLY AND COOPERATE WITH DECISIONS AND
 ORDERS OF THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978,
 AND APRIL 13, 1979.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES IN EXECUTIVE ORDER 11491, AS AMENDED, AND THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
 
    (A) COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF THE
 FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL 13,
 1979.
 
    (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
 BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL
 BE SIGNED BY THE COMMANDING GENERAL, CALIFORNIA 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
 COMMANDING GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION 9, 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.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                          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 FAIL AND REFUSE TO COMPLY WITH DECISIONS AND ORDERS OF
 THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL
 13, 1979.
 
    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, AND THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF
 THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL
 13, 1979, AND WILL OTHERWISE COOPERATE IN IMPASSES PROCEDURES AND
 DECISIONS AS REQUIRED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:
 
                                (SIGNATURE)
 
    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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  540 BUSH STREET, SUITE 500, SAN FRANCISCO, CALIFORNIA
 94102, AND WHOSE TELEPHONE NUMBER IS (415)556-8105.
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 
    REGIONAL ATTORNEY
    JOSANNA BERKOW, ESQUIRE
    OFFICE OF THE GENERAL COUNSEL
    FEDERAL LABOR RELATIONS AUTHORITY
    REGION 9,
    450 GOLDEN GATE AVENUE
    ROOM 11409, P.O.BOX 36016
    SAN FRANCISCO, CALIFORNIA 94102
                          FOR THE GENERAL COUNSEL
 
    STEPHAN J. EGAN, ESQUIRE
    DEPUTY ATTORNEY GENERAL
    STATE OF CALIFORNIA
    DEPARTMENT OF JUSTICE
    555 CAPITOL MALL, SUITE 350
    SACRAMENTO, CALIFORNIA 95814
 
                            FOR THE RESPONDENT
 
    BEFORE:  GARVIN LEE OLIVER
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C 7101 ET. SEQ., AS A RESULT OF
 A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT DATED OCTOBER 31, 1979
 FILED BY THE REGIONAL DIRECTOR, REGION 9, FEDERAL LABOR RELATIONS
 AUTHORITY, SAN FRANCISCO, CALIFORNIA AGAINST THE STATE OF CALIFORNIA
 NATIONAL GUARD (RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5
 U.S.C. 7116(1)(1), (5), (6), AND (8) IN THAT SINCE ON OR ABOUT NOVEMBER
 12, 1978 RESPONDENT HAS FAILED AND REFUSED TO ADOPT CONTRACT LANGUAGE
 AND TAKE OTHER AFFIRMATIVE ACTION DIRECTED BY FINAL DECISIONS AND ORDERS
 OF THE FEDERAL SERVICES IMPASSES PANEL AND HAS FAILED AND REFUSED TO
 MEET AND NEGOTIATE IN GOOD FAITH WITH THE CHARGING PARTY OR UNION TO
 DISCUSS MATTERS PERTAINING TO THE IMPLEMENTATION OF THESE FINAL
 DECISIONS AND ORDERS.
 
    RESPONDENT'S ANSWER DENIED THESE ALLEGATIONS AND SET UP AFFIRMATIVE
 DEFENSES.
 
    A HEARING WAS SET IN THIS MATTER FOR JANUARY 8, 1980.  HOWEVER, UPON
 A REPRESENTATION BY COUNSEL FOR THE GENERAL COUNSEL DURING A CONFERENCE
 CALL THAT A MOTION FOR SUMMARY JUDGMENT WOULD BE FILED, THE CHIEF JUDGE
 POSTPONED THE HEARING, AND THE UNDERSIGNED SUBSEQUENTLY ISSUED THE
 FOLLOWING ORDER:
 
    THE FOLLOWING BRIEFING SCHEDULE IS ESTABLISHED IN ORDER TO RULE UPON
 THE MOTION OR
    OTHERWISE ASCERTAIN WHAT MATERIAL FACTS EXIST WITHOUT SUBSTANTIAL
 CONTROVERSY AND WHAT
    MATERIAL FACTS ARE ACTUALLY AND IN GOOD FAITH CONTROVERTED:
 
 
    1.  THE GENERAL COUNSEL'S MOTION FOR SUMMARY JUDGMENT SHALL BE SERVED
 ON RESPONDENT ON OR
    BEFORE JANUARY 10, 1980.  THE BASIC MOTION SHALL INCLUDE A SEPARATELY
 NUMBERED AND
    NON-ARGUMENTATIVE STATEMENT OF ALL ALLEGED UNCONTESTED MATERIAL FACTS
 WHICH PROVIDE THE BASIS
    FOR THE MOTION, REFERENCED TO THE PARTS OF THE RECORD RELIED UPON OR
 TO SUPPORTING EXHIBITS AND AFFIDAVITS.
 
 
    2.  RESPONDENT SHALL SERVE ON OR BEFORE JANUARY 28, 1980 A CONCISE
 STATEMENT OF GENUINE
    ISSUES WHICH SHALL INCLUDE A STATEMENT OF DISPUTED FACTS,
 CORRESPONDINGLY NUMBERED TO THE
    GENERAL COUNSEL'S, AS TO WHICH IT IS CONTENDED THERE EXISTS A GENUINE
 ISSUE NECESSARY TO BE
    LITIGATED AS WELL AS A STATEMENT OF ANY ADDITIONAL CONTESTED OR
 UNCONTESTED MATERIAL FACTS,
    WITH BOTH STATEMENTS REFERENCED TO THE PARTS OF THE RECORD OR
 SUPPORTING EXHIBITS AND
    AFFIDAVITS RELIED UPON.  RESPONDENT MAY, IF IT DESIRES, CROSS MOVE
 
 FOR SUMMARY JUDGMENT AT THIS TIME.
 
    3.  THE PARTIES SHALL SERVE ANY ADDITIONAL REPLY STATEMENTS WITH
 REGARD TO THE FACTS AND
 
    ISSUES TOGETHER WITH MEMORANDA OF LAW IN SUPPORT OF OR OPPOSITION TO
 THE MOTION(S) ON OR BEFORE FEBRUARY 13, 1980.
 
    4. IN DETERMINING THE MOTION(S) FOR SUMMARY JUDGMENT AND/OR WHAT
 FURTHER PROCEEDINGS, IF
    ANY, ARE NECESSARY, FACTS AS CLAIMED BY A PARTY IN THE PARTY'S
 STATEMENT OF MATERIAL FACTS
    WILL BE DEEMED ADMITTED TO EXIST EXCEPT AS AND TO THE EXTENT SUCH
 FACTS ARE CONTROVERTED AS
    PRESCRIBED HEREIN.  AS INDICATED ABOVE, STATEMENTS OF MATERIAL FACTS
 MUST BE SEPARATELY
    NUMBERED AND STATED IN AN OBJECTIVE, AND NON-ARGUMENTATIVE FASHION.
 
 
    THE GENERAL COUNSEL FILED A MOTION FOR SUMMARY JUDGMENT, STATEMENT OF
 MATERIAL FACTS, AND MEMORANDUM OF LAW IN ACCORDANCE WITH THE ORDER.  THE
 RESPONDENT FILED A RESPONSE TO THE MOTION WHICH MERELY REQUESTED THAT
 THE MOTION BE DENIED AND THAT A HEARING BE HELD PURSUANT TO 5 U.S.C.
 7118(A)(6).  RESPONDENT FAILED TO RAISE A SINGLE AREA OF FACTUAL
 DISPUTE.  RESPONDENT DID NOT FILE A MEMORANDUM OF LAW IN OPPOSITION TO
 THE MOTION OR IN SUPPORT OF ITS AFFIRMATIVE DEFENSE.
 
    IT HAS LONG BEEN ESTABLISHED THAT THE PURPOSE OF SUMMARY JUDGMENT IS
 TO AVOID USELESS, EXPENSIVE, AND TIME-CONSUMING TRIALS WHERE THERE ARE
 NO GENUINE ISSUES OF MATERIAL FACT TO BE TRIED.  /2/ FEDERAL LABOR
 RELATIONS AUTHORITY REGULATIONS, 5 C.F.R.  2423.19(K)(1980),
 SPECIFICALLY AUTHORIZE THE USE OF MOTIONS FOR SUMMARY JUDGMENT IN THE
 LITIGATION OF UNFAIR LABOR PRACTICE CHARGES UNDER THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.  SUCH PRACTICE IS CONSISTENT WITH
 THE ADMINISTRATIVE PROCEDURE ACT /3/ AND WELL-ESTABLISHED PRINCIPLES OF
 DUE PROCESS AND ADMINISTRATIVE LAW.  /4/
 
    UPON EXAMINATION OF THE GENERAL COUNSEL'S MOTION FOR SUMMARY JUDGMENT
 AND THE RESPONDENT'S REPLY, IT APPEARS THAT THERE ARE NO GENUINE ISSUES
 OF MATERIAL FACT AND THAT ONLY LEGAL ISSUES ARE INVOLVED.  IN SUCH
 CIRCUMSTANCES, THE REQUIRED HEARING UNDER THE STATUTE MAY CONSIST WHOLLY
 OF AN OPPORTUNITY TO PRESENT WRITTEN ARGUMENT.  /5/ THE PARTIES HAVE
 BEEN AFFORDED THAT OPPORTUNITY.
 
    UPON CONSIDERATION OF THE GENERAL COUNSEL'S MOTION FOR SUMMARY
 JUDGMENT, RESPONDENT'S REPLY THERETO, AND ALL THE PLEADINGS AND
 EXHIBITS, IT APPEARS THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND
 THAT THE GENERAL COUNSEL IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF
 LAW.  ACCORDINGLY, THE GENERAL COUNSEL'S MOTION IS GRANTED, AND I MAKE
 THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
  FOR CONVENIENCE, THE FINDINGS OF FACT ARE IN ESSENTIALLY THE SAME FORM
 AS PROPOSED BY THE GENERAL COUNSEL AND UNDISPUTED BY RESPONDENT.
 
                             FINDINGS OF FACT
 
    1. THE RESPONDENT NATIONAL GUARD IS AN AGENCY WITHIN THE MEANING OF 5
 U.S.C 7103(A)(3).
 
    2.  THE CHARGING PARTIES, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES LOCAL R12-125, R12-132, R12-146, R12-150 AND R12-105,
 HEREINAFTER UNIONS, ARE LABOR ORGANIZATIONS WITHIN THE MEANING OF 5
 U.S.C. 7103(A)(4).
 
    3.  AT ALL TIMES MATERIAL HEREIN, THE UNIONS HAVE BEEN RECOGNIZED BY
 RESPONDENT AS EXCLUSIVE REPRESENTATIVES FOR APPROPRIATE UNITS OF
 CIVILIAN NATIONAL GUARD EMPLOYEES.
 
    4.  THE CHARGE WAS FILED BY THE UNION, LOCALS R12-125, R12-132,
 R12-146, AND R12-150, IN FEDERAL LABOR RELATIONS AUTHORITY CASE NO.
 9-CA-44 ON OR ABOUT MAY 7, 1979, AND SERVED UPON RESPONDENT BY THE UNION
 ON OR ABOUT MAY 4, 1979.  (EXHIBIT 1(A)).
 
    THE CHARGE WAS FILED BY THE UNION, LOCAL R12-105 IN FEDERAL LABOR
 RELATIONS AUTHORITY CASE NO. 9-CA-95 ON OR ABOUT JUNE 22, 1979, AND
 SERVED UPON RESPONDENT BY THE UNION ON OR ABOUT JUNE 30, 1979. (EXHIBIT
 1(B)).
 
    THE FIRST AMENDED CHARGE WAS FILED BY THE UNION IN FEDERAL LABOR
 RELATIONS AUTHORITY CASE NO. 9-CA-44 ON OR ABOUT OCTOBER 5, 1979, AND
 SERVED UPON RESPONDENT BY BY THE UNION ON OR ABOUT OCTOBER 3, 1979.
 (EXHIBIT 1(C)).
 
    THE FIRST AMENDED CHARGE WAS FILED BY THE UNION IN FEDERAL LABOR
 RELATIONS AUTHORITY CASE NO. 9-CA-95 ON OR ABOUT OCTOBER 5, 1979, AND
 SERVED UPON RESPONDENT BY THE UNION ON OR ABOUT OCTOBER 3, 1979.
 (EXHIBIT 1(D)).
 
    5. THE RESPONDENT FILED A RESPONSE DATED MAY 21, 1979, TO THE CHARGE
 IN 9-CA-44 ON MAY 23, 1979 (EXHIBIT 1(E) TOGETHER WITH ATTACHMENTS
 (EXHIBITS 2-10).
 
    6.  THE RESPONDENT FILED A RESPONSE DATED JULY 25, 1979, TO THE
 CHARGE IN 9-CA-95 ON JULY 30, 1979 (EXHIBIT 1(F)) TOGETHER WITH
 ATTACHMENTS (EXHIBITS 2-10).
 
    7.  ON OCTOBER 31, 1979 AN ORDER CONSOLIDATING CASES, COMPLAINT AND
 NOTICE OF HEARING WAS ISSUED IN CASE NOS. 9-CA-44 AND 9-CA-95 (EXHIBIT
 1(G).
 
    8.  RESPONDENT'S ANSWER TO THE COMPLAINT WAS FILED WITH THE REGIONAL
 DIRECTOR ON NOVEMBER 19, 1979.  (EXHIBIT 1(H)).  AN ORDER EXTENDING TIME
 FOR ANSWER WAS ENTERED ON NOVEMBER 16, 1979.  (EXHIBIT 1(I)).
 
    9.  IN 1977 AND 1978, AFTER EXTENSIVE NEGOTIATIONS AND THE ASSISTANCE
 OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE, THE UNION FILED
 REQUESTS FOR ASSISTANCE WITH THE FEDERAL SERVICE IMPASSES PANEL,
 HEREINAFTER, FSIP OR PANEL, TO CONSIDER A NEGOTIATION IMPASSE WHICH THE
 PARTIES HAD FAILED TO RESOLVE BY VOLUNTARY ARRANGEMENTS, CONCERNING THE
 ISSUE OF MILITARY ATTIRE FOR CIVILIAN EMPLOYEES.  (EXHIBITS 2A-2E).
 
    10.  UPON RECEIPT OF THE UNIONS' REQUEST, THE FSIP, IN ACCORDANCE
 WITH APPLICABLE LAW AND REGULATION, CONDUCTED AN INFORMATION INQUIRY.
 THEREAFTER, ON JUNE 30, 1978 THE FSIP ISSUED ORDERS OF SHOW CAUSE UPON
 RESPONDENT.  (EXHIBITS 3A-3E).
 
    11.  ON JULY 18, 1978, THE NATIONAL GUARD FILED ITS COLLECTIVE
 RESPONSE TO THE ORDERS TO SHOW CAUSE IN CASE NOS. 77 FSIP 70, 78 FSIP
 42, 77 FSIP 77, 78 FSIP 44 AND 78 FSIP 49, SETTING FORTH BOTH ITS
 ARGUMENTS AND EVIDENCE IN SUPPORT OF ITS POSITION IN OPPOSITION TO THE
 ORDER TO SHOW CAUSE.  THE RESPONDENT ALSO INFORMED THE PANEL AT THIS
 TIME THAT A DECERTIFICATION PETITION HAS BEEN FILED WITH THE DEPARTMENT
 OF LABOR FOR UNION LOCAL R12-105.  (EXHIBIT 4).
 
    12.  ON OCTOBER 13, 1978, THE FSIP ISSUED ITS DECISIONS AND ORDERS IN
 CASE NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 AND 78 FSIP 49 AND ON APRIL
 13, 1979 IN CASE NO.  77 FSIP 70, ORDERING THAT:
 
    1.  THE PARTIES ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT:
 
    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 AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
 UNIFORM MAY BE
 
    REQUIRED SHALL BE AGREED UPON BY THE PARTIES AND INCORPORATED IN
 THEIR AGREEMENT.
 
    THE FSIP FURTHER DIRECTED THE PARTIES TO SEND EVIDENCE OF COMPLIANCE
 WITH ITS ORDERS WITHIN 30 DAYS OF RECEIPT THEREOF.  (EXHIBITS 5 AND 6).
 
    13.  ON NOVEMBER 17, 1978, THE NATIONAL GUARD FILED A MOTION FOR
 RECONSIDERATION OF THE DECISION AND ORDER OF OCTOBER 13, 1978 IN CASE
 NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44, 78 FSIP 49 WITH FSIP.  (EXHIBIT
 7).
 
    14.  ON JANUARY 18, 1979, FSIP DENIED RESPONDENT'S MOTION FOR
 RECONSIDERATION OF ITS OCTOBER 13, 1978 DECISION AND ORDER.  (EXHIBIT
 8).
 
    15.  ON MARCH 12, 1979, THE NATIONAL GUARD FILED A REQUEST FOR
 CONSIDERATION WITH THE FEDERAL LABOR RELATIONS AUTHORITY HEREINAFTER,
 FLRA, OF CASE NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44, AND 78 FSIP 49.
 ON MAY 2, 1979 RESPONDENT WROTE FLRA REQUESTING THAT 77 FSIP 70 BE ADDED
 TO THE ABOVE CONSOLIDATED CASES SUBMITTED PER THE REQUEST FOR
 CONSIDERATION.  (EXHIBIT 9 AND 10).
 
    16.  ON DECEMBER 5, 1979, FLRA DENIED RESPONDENT'S REQUEST FOR
 CONSIDERATION OF 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 AND 78 FSIP 49.  ON
 DECEMBER 5, 1979 FLRA DENIED RESPONDENT'S REQUEST FOR CONSIDERATION OF
 77 FSIP 70.  (EXHIBITS 11 AND 12).
 
    17.  RESPONDENT HAS FAILED AND REFUSED TO ADOPT THE CONTRACT LANGUAGE
 SET OUT IN PARAGRAPH 12, ABOVE, INTO ITS COLLECTIVE BARGAINING AGREEMENT
 WITH THE UNION AS DIRECTED BY FSIP AS ITS FINAL RESOLUTION OF THE
 IMPASSE BETWEEN RESPONDENT AND THE UNION.
 
    18.  RESPONDENT HAS FAILED AND REFUSED TO MEET AND NEGOTIATE WITH THE
 UNION TO DISCUSS THE IMPLEMENTATION OF FSIP'S FINAL DECISIONS AND ORDER
 TO THE EXTENT REQUIRED BY THE DECISIONS AND ORDERS.
 
    19.  RESPONDENT HAS FAILED AND REFUSED TO FOLLOW FSIP'S DIRECTION TO
 SEND THE PANEL EVIDENCE OF COMPLIANCE WITH THE FINAL DECISIONS AND
 ORDERS WITHIN 30 DAYS OF RESPONDENT'S RECEIPT THEREOF.
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE UNDISPUTED FACTS REFLECT THAT SINCE THE PANEL ISSUED ITS
 DECISIONS AND ORDERS DATED OCTOBER 13, 1978 AND APRIL 13, 1979,
 RESOLVING THE NEGOTIATION IMPASSE, RESPONDENT HAS FAILED AND REFUSED TO
 COMPLY WITH THE DECISIONS AND ORDERS.  RESPONDENT HAS FAILED AND REFUSED
 TO MEET WITH THE UNIONS;  HAS NOT AGREED TO ADOPT THE MANDATED LANGUAGE
 IN THE AGREEMENT;  AND HAS PRESENTED NO EVIDENCE OF COMPLIANCE WITHIN
 THE 30 DAY PERIOD ORDERED BY THE PANEL.
 
    ALTHOUGH RESPONDENT DID NOT SUBMIT A MEMORANDUM OF LAW IN SUPPORT OF
 ITS POSITION IN THIS CASE, ITS AFFIRMATIVE DEFENSES SET FORTH IN THE
 ANSWER HAVE, NEVERTHELESS, BEEN CONSIDERED IN LIGHT OF THE GENERAL
 COUNSEL'S POSITION ON THESE DEFENSES AND THE RECORD AS A WHOLE.
 
    RESPONDENT ASSERTS THAT THE FEDERAL LABOR RELATIONS AUTHORITY LACKS
 JURISDICTION TO ENTERTAIN THE CHARGES IN THE COMPLAINT INASMUCH AS SUCH
 CHARGES ARE PREMATURE WHILE A PETITION FOR RECONSIDERATION OF THE ORDERS
 OF THE FEDERAL SERVICES IMPASSES PANEL IS PENDING BEFORE THE AUTHORITY.
 RESPONDENT ALSO CLAIMS THAT CONSIDERATION OF THE CHARGES AT THIS TIME
 WOULD CONSTITUTE A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE
 LAW.  RESPONDENT'S DEFENSES IN THIS REGARD HAVE BEEN RENDERED MOOT BY
 THE DECISIONS OF THE AUTHORITY, DATED DECEMBER 5, 1979, DENYING THE
 PETITIONS.  (EXHIBITS 11 AND 12).  SEE ALSO STATE OF NEW YORK, DIVISION
 OF MILITARY AND NAVAL AFFAIRS AND NEW YORK COUNCIL, ASSOCIATION OF
 CIVILIAN TECHNICIANS, INC., 78 FSIP 32, FLRA NO.  0-MC-2, 2 FLRA 20
 (DEC. 5, 1979).
 
    RESPONDENT'S THIRD AFFIRMATIVE DEFENSE ALLEGES THAT THE IMPASSE PANEL
 DECISIONS AND ORDERS ARE INVALID BECAUSE THEY:
 
    (A) ARE BASED ON A REQUIREMENT FOR THE CALIFORNIA NATIONAL GUARD TO
 JUSTIFY VIA A STANDARD
 
    OF "COMPELLING NEED" A DEFENSE DEPARTMENT AND CALIFORNIA REGULATIONS
 WHICH RESPONDENT DEEMS TO
 
    BE NON-NEGOTIABLE,
 
    (B) IMPROPERLY BY AGENCY REGULATION ATTEMPT TO ABROGATE THE AUTHORITY
 OF THE COMMANDING
 
    GENERAL - STATE MILITARY FORCES GRANTED HIM BY FEDERAL STATUTE, TO
 WIT, TITLE 32, UNITED
 
    STATES CODE, SECTION 709(C),
 
    (C) IMPROPERLY ATTEMPT TO VITIATE A MILITARY REGULATION, A MATTER
 OVER WHICH FLRA HAS NO
 
    AUTHORITY, SINCE IN THIS INSTANCE FLRA POWERS DERIVE FROM AN
 EXECUTIVE ORDER WHILE THE
 
    MILITARY AUTHORITY STEMS FROM ACTS OF CONGRESS,
 
    (D) ARE BASED ON CRITERIA DEVELOPED OUTSIDE OF THE THEN FEDERAL LABOR
 RELATIONS COUNCIL'S
 
    GRANT OF AUTHORITY BY CONGRESS,
 
    (E) ARE BASED ON RULES WHICH VIOLATE BASIC PRINCIPLES OF EQUITY AND
 ADMINISTRATIVE LAW.
 
    RESPONDENT'S DEFENSES (A) THROUGH (D), WHILE COUCHED IN TERMS OF
 OBJECTIONS TO THE IMPASSES PANEL DECISIONS APPEAR FROM THE RECORD TO
 ACTUALLY CONCERN THE NEGOTIABILITY OF THE MATTER AT IMPASSE, I.E., THE
 SUBJECT OF CIVILIAN GUARD TECHNICIAN ATTIRE, AND, IN SHORT, CONSTITUTE
 AN ATTEMPT TO COLLATERALLY ATTACK THE DECISION OF THE FEDERAL RELATIONS
 COUNCIL IN WHICH THE COUNCIL DETERMINED THAT THE PROPOSALS BEFORE IT
 CONCERNING TECHNICIAN ATTIRE WERE PROPERLY SUBJECT TO NEGOTIATION UNDER
 SECTION 11(A) OF THE EXECUTIVE ORDER. /6/
 
    THE IMPASSES PANEL DOES NOT DETERMINE WHETHER OR NOT AN ISSUE IS
 NEGOTIABLE, /7/ AND, THUS, ITS DECISION IS NOT SUBJECT TO A COLLATERAL
 ATTACK.  MOREOVER, RESPONDENT COULD HAVE OBTAINED REVIEW OF THE
 COUNCIL'S DECISION IN DISTRICT COURT UNDER THE JUDICIAL REVIEW
 PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 701 ET. SEQ.
 NATIONAL BROILER COUNCIL INC. V.  FLRA, 382 F.SUPP. 322, 86 LRRM 2113
 (E.D. VA. 1974).  IN THAT CASE, AFTER DETERMINING THAT A COUNCIL
 NEGOTIABILITY DECISION WAS A "FINAL AGENCY ACTION" FOR PURPOSES OF
 JUDICIAL REVIEW UNDER 5 U.S.C. 701 ET, SEQ., THE COURT REVIEWED
 OBJECTIONS TO THE COUNCIL'S DECISION ANALOGOUS TO THOSE RAISED BY
 RESPONDENT HEREIN;  INCLUDING A DETERMINATION THAT THE PETITIONER
 BROILER COUNCIL, WHILE NOT A PARTICIPANT IN THE PROCEEDINGS BEFORE THE
 COUNCIL, WAS AN INTERESTED PARTY WITH STANDING TO SEEK JUDICIAL REVIEW.
 
    RESPONDENT'S DEFENSE (E), THAT THE PANEL'S DECISION IS BASED ON RULES
 WHICH VIOLATE BASIC PRINCIPLES OF EQUITY AND ADMINISTRATIVE LAW, APPEARS
 TO RELATE TO RESPONDENT'S ARGUMENT THAT THE PANEL WAS REQUIRED TO HOLD A
 FACT-FINDING HEARING IN THE CASE.
 
    IN ITS DECISION AND ORDER DATED OCTOBER 13, 1978, (EXHIBIT 5), THE
 PANEL STATED THAT NEITHER EXECUTIVE ORDER 11491 NOR THE PANEL'S OWN
 RULES REQUIRED IT TO HOLD A HEARING IN EACH AND EVERY CASE.  THE PANEL
 NOTED:
 
    IN THE RESPONSE ITSELF THE EMPLOYER ARGUES THAT THE ORDERS TO SHOW
 CAUSE DEPRIVE THE
 
    EMPLOYER OF ITS RIGHTS UNDER EXECUTIVE ORDER 11491 AND THE PANEL'S
 RULES OF
 
    PROCEDURE.  EXECUTIVE ORDER 11491 AND THE PANEL'S RULES, HOWEVER
 CONTAIN NO REQUIREMENT THAT A
 
    HEARING BE HELD IN EACH AND EVERY CASE.  RATHER, SECTIONS 4 AND 17 OF
 EXECUTIVE ORDER 11491
 
    PROVIDE THAT THE PANEL "MAY TAKE ANY ACTION IT CONSIDERS NECESSARY TO
 SETTLE AN IMPASSE" AND
 
    "MAY SETTLE THE IMPASSE BY APPROPRIATE ACTION." THIS BROAD AUTHORITY
 TO RESOLVE NEGOTIATION
 
    IMPASSES HAS BEEN INCORPORATED IN SECTIONS 2471.6(A)(6),
 2471.13(D)(2), AND 2471.15 OF THE
 
    PANEL'S RULES.  THUS, UNDER THE CIRCUMSTANCES OF THESE CASES, WHERE
 THE PANEL HAS (1)
 
    PREVIOUSLY CONSIDERED THE ISSUE AT IMPASSE ON SEVERAL OCCASIONS, (2)
 DETERMINE THAT THESE
 
    CASES APPEAR ESSENTIALLY SIMILAR TO THOSE EARLIER CASES, AND (3)
 DETERMINED THAT IT IS
 
    NECESSARY TO SETTLE PROMPTLY THESE PROTRACTED IMPASSES, THE PANEL'S
 ACTION-AFFORDING THE
 
    PARTIES AN OPPORTUNITY TO STATE IN WRITING WHAT MATERIAL FACTS THEY
 BELIEVE ARE SIGNIFICANTLY
 
    DIFFERENT FROM OTHER NATIONAL GUARD UNIFORM CASES-IS CONSISTENT WITH
 ITS AUTHORITY UNDER
 
    EXECUTIVE ORDER 11491 AND ITS RULES.  (FOOTNOTE OMITTED.)
 
    IN ITS SHOW CAUSE ORDERS DATED JUNE 30, 1978 (EXHIBITS 3(A)-(E)) THE
 PANEL AFFORDED RESPONDENT AN OPPORTUNITY TO SHOW CAUSE, IN WRITING, WHY
 CONTRACT LANGUAGE ORDERED BY THE PANEL IN ELEVEN PRIOR CASES CONCERNING
 THE UNIFORM ISSUE SHOULD NOT ALSO BE ADOPTED IN THESE CASES. RESPONDENT
 WAS ORDERED TO SPECIFY WHAT MATERIAL FACTS WERE SIGNIFICANTLY DIFFERENT
 FROM THE PREVIOUS CASES.  RESPONDENT CHOSE TO RELY ON ITS RESPONSE TO
 THE SHOW CAUSE ORDER (EXHIBIT 4) TO SUPPORT ITS POSITION.  AFTER
 CONSIDERING THE RESPONSE, THE PANEL HELD THAT THE RESPONSE DID NOT SHOW
 MATERIAL FACTS SIGNIFICANTLY DIFFERENT FROM THOSE CONSIDERED IN PREVIOUS
 CASES;  DETERMINED THAT THE HOLDING OF A FACTFINDING HEARING WAS NOT
 WARRANTED;  AND, ACCORDINGLY, IT ISSUED ITS DECISION AND ORDER.
 (EXHIBIT 5 AND 6).
 
    THE DECISIONS OF THE PANEL THOROUGHLY DISCUSSED AND REJECTED EACH
 ARGUMENT RAISED BY THE RESPONSE.  RESPONDENT THEN FILED A MOTION FOR
 RECONSIDERATION OF THE PANEL'S DECISION AND ORDER.  (EXHIBIT 7).  AGAIN
 THE PANEL ADDRESSED EACH ARGUMENT RAISED BY RESPONDENT IN A DETAILED
 ANALYSIS EMBODIED IN ITS DENIAL AND RESPONDENT'S MOTION FOR
 RECONSIDERATION DATED JANUARY 9, 1979.  (EXHIBIT 8).
 
    IT IS CONCLUDED THAT THE PANEL AFFORDED RESPONDENT AMPLE OPPORTUNITY
 TO PRESENT EVIDENCE AND ARGUMENT CONSISTENT WITH ITS BROAD AUTHORITY
 UNDER SECTIONS 5 AND 17 OF EXECUTIVE ORDER 11941, AS AMENDED, TO RESOLVE
 NEGOTIATION IMPASSES IN THE FEDERAL SECTOR;  THAT RESPONDENT WAS
 AFFORDED PROCEDURAL DUE PROCESS, THAT THERE IS A RATIONAL BASIS FOR THE
 PANEL'S DECISIONS;  AND THAT THE PANEL'S DECISIONS AND ORDER IN THESE
 CASES WERE NEITHER ARBITRARY NOR CAPRICIOUS, BUT ARE LEGAL AND VALID.
 
    THE RECORD DEMONSTRATES THAT RESPONDENT HAS FAILED AND REFUSED TO
 COMPLY AND COOPERATE WITH FINAL DECISIONS AND ORDERS OF THE FEDERAL
 SERVICES IMPASSES PANEL, IN VIOLATION OF 5 U.S.C. 7116(A)(6) AND (8),
 HAS FAILED AND REFUSED TO CONSULT AND NEGOTIATE WITH THE UNION
 CONCERNING THE IMPLEMENTATION OF THE PANEL'S FINAL DECISIONS AND ORDERS,
 IN VIOLATION OF SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED,
 AND 5 U.S.C. 7116(A)(5), AND, BY SUCH ACTION, HAS INTERFERED WITH AND
 RESTRAINED THE EXERCISE BY EMPLOYEES OF THEIR RIGHTS IN VIOLATION OF
 SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5 U.S.C.
 7116(A)(1).  ACCORDINGLY, I RECOMMEND THAT THE AUTHORITY ISSUE THE
 FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C.SECTION 7118(A)(7)(A) AND SECTION 7135 AND 5
 C.F.R.SECTION 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE STATE
 OF CALIFORNIA NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING THE COMPLY AND COOPERATE WITH DECISIONS AND
 ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978
 AND APRIL 13, 1979.
 
    (B) FAILING AND REFUSING TO MEET AND NEGOTIATE IN GOOD FAITH WITH THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-105, R12-125,
 R12-132, R12-146, AND R12-150 CONCERNING MATTERS PERTAINING TO THE
 IMPLEMENTATION OF DECISIONS AND ORDERS OF THE FEDERAL SERVICES IMPASSES
 PANEL ISSUED OCTOBER 13, 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED
 BY SUCH DECISIONS AND ORDERS.
 
    (C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
 
    (A) COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDER OF THE
 FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL 13,
 1979.
 
    (B) MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 12-105, R12-125, R12-132, R12-146, AND R12-150 AND NEGOTIATE IN GOOD
 FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF DECISIONS
 AND ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13,
 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED BY SUCH DECISIONS AND
 ORDERS.
 
    (C) POST AT ITS FACILITIES 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 COMMANDING GENERAL, CALIFORNIA
 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 COMMANDING GENERAL SHALL TAKE REASONABLE STEPS
 TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, 450 GOLDEN GATE
 AVENUE, ROOM 11409, P. O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
 WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
 HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                          GARVIN LEE OLIVER
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 21, 1980
    WASHINGTON, D.C.
 
 
 
                                APPENDIX
 
           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 FAIL AND REFUSE TO COMPLY WITH DECISIONS AND ORDERS OF
 THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL
 13, 1979.
 
    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, AND THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF
 THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL
 13, 1979 AND WILL OTHERWISE COOPERATE IN IMPASSE PROCEDURES AND
 DECISIONS AS REQUIRED BY THE FEDERAL SERVICES LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    WE WILL MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCALS R12-105, R12-125, R12-132, R12-146, AND R12-150, AND NEGOTIATE IN
 GOOD FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF
 DECISIONS AND ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED
 OCTOBER 13, 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED BY SUCH
 DECISIONS AND ORDERS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, 450
 GOLDEN GATE AVENUE, ROOM 11409, P. O. BOX 36016, SAN FRANCISCO,
 CALIFORNIA 94102.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDS THAT IT WAS NOT
 AFFORDED OPPORTUNITY TO PRESENT LEGAL ARGUMENTS PURSUANT TO THE
 ADMINISTRATIVE LAW JUDGE'S GRANTING OF A SUMMARY JUDGMENT.  IN THIS
 REGARD, RESPONDENT CONTENDS IT ONLY HAD AN OPPORTUNITY TO RESPOND TO
 GENERAL COUNSEL'S INITIAL MOTION FOR PARTIAL SUMMARY JUDGMENT.  IT
 APPEARS THAT THE RESPONDENT WAS FULLY AWARE OF THE SCHEDULE, NATURE AND
 EXTENT OF RESPONSE REQUIRED TO PRESERVE ITS RIGHTS, AND WAS NOT
 PREJUDICED BY THE CAPTIONING OF GENERAL COUNSEL'S PLEADING AS "PARTIAL"
 WHICH WAS PREDICATED UPON THE BRIEFING SCHEDULE AGREED TO BY THE
 PARTIES.
 
    /2/ CF. FED. R. CIV. P. 56;  LYONS V. BD. OF ED. CHARLESTON
 REORGANIZED SCHOOL DISTRICT NO. 1 OF MISS. CTY., MO., 523 F.2D 340, 347
 (8TH CIR., 1975).
 
    /3/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE REQUIRES
 THAT HEARINGS BE CONDUCTED IN ACCORDANCE WITH THE ADMINISTRATIVE
 PROCEDURE ACT, 5 U.S.C. 551 ET.  SEQ., TO THE EXTENT PRACTICABLE.  5
 U.S.C. 7118(A)(6).  MOTIONS IN THE NATURE OF MOTIONS FOR SUMMARY
 JUDGMENT ARE DEEMED APPROPRIATE UNDER THE ADMINISTRATIVE PROCEDURE ACT.
 SEE, E.G., MUNICIPAL LIGHT BOARDS OF READING AND WAKEFIELD, MASS V.
 FEDERAL POWER COMMISSION, 450 F.2D 1341, 1345-1346 (D.C. CIR., 1971),
 CERT. DENIED, 405 U.S. 989(1972).
 
    /4/ DAVIS, ADMINISTRATIVE LAW TREATISE, SECOND EDITION, SECS.  12.1,
 12.10(1979).
 
    /5/ CF. DAVIS, SUPRA, SEC. 12.1, AT P. 406.  THE PRACTICE UNDER
 EXECUTIVE ORDER 11491, AS AMENDED, WAS SUBSTANTIALLY THE SAME.  SEE
 INTERNAL REVENUE SERVICE, A/SLMR NO. 897, 7 A/SLMR 782(1977).
 
    /6/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND
 KANSAS NATIONAL GUARD, 5 FLRC 124, 336 (FLRC NO. 76A-16 (AND OTHER CASES
 CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120);  AND
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1636 AND STATE OF NEW
 MEXICO NATIONAL GUARD, 5 FLRC 146, 336 (FLRC NO. 76A-75 (AND OTHER CASES
 CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120);
 RECONSIDERATION DENIED, 5 FLRC 336 (MAY 18, 1977), REPORT NO. 125.
 
    /7/ 5 U.S.C. 7119;  5 U.S.C. 7117;  SECTION 11 OF EXECUTIVE ORDER
 11491, AS AMEND