Iowa National Guard and National Guard Bureau (Respondents) and American Federation of Government Employees, Local 3080, AFL-CIO (Charging Party)

 



[ v08 p500 ]
08:0500(101)CA
The decision of the Authority follows:


 8 FLRA No. 101
 
 IOWA NATIONAL GUARD AND NATIONAL
 GUARD BUREAU
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3080
 Charging Party
 
                                            Case No. 73-CA-106
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT IOWA NATIONAL
 GUARD HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE
 ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND DESIST
 THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.  NO EXCEPTIONS WERE FILED
 WITH RESPECT TO SUCH FINDING.  IN ADDITION, THE JUDGE RECOMMENDED THAT
 CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES BE DISMISSED.  THE GENERAL
 COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S DECISION,
 AND THE RESPONDENTS FILED OPPOSITIONS TO SUCH EXCEPTIONS.  THEREAFTER,
 THE GENERAL COUNSEL FILED "CROSS EXCEPTIONS TO THE RESPONDENT'S
 OPPOSITION."
 
    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
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUS, 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.  UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE
 RECORD, /1/ AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS BY THE
 RESPONDENTS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.  /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE,
 THE AUTHORITY HEREBY ORDERS THAT THE IOWA NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) BYPASSING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3080, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR
 ANY OTHER EXCLUSIVE REPRESENTATIVE, AND DEALING DIRECTLY WITH UNIT
 EMPLOYEES CONCERNING PERSONNEL POLICIES AND PRACTICES AND MATTERS
 AFFECTING WORKING CONDITIONS.
 
    (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.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) POST AT ITS FACILITIES AT THE IOWA NATIONAL GUARD, 185TH TACTICAL
 FIGHTER GROUP (ANG), SIOUX CITY MUNICIPAL AIRPORT, SERGEANT BLUFFS,
 IOWA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
 FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY
 SHALL BE SIGNED BY THE COMMANDER, 185TH TACTICAL FIGHTER GROUP (ANG) 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
 COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VII, 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 FURTHER ORDERED THAT, IN ALL OTHER RESPECTS, THE COMPLAINT IN
 CASE NO. 73-CA-106, BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 7, 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 BYPASS THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3080, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
 DEAL DIRECTLY WITH UNIT EMPLOYEES CONCERNING PERSONNEL POLICIES AND
 PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
 
    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.
 
                            (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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, REGION VII, FEDERAL LABOR RELATIONS AUTHORITY,
 FEDERAL BUILDING & U.S. CUSTOMS HOUSE, 1531 STOUT STREET, SUITE 301,
 DENVER, COLORADO 80202, AND WHOSE TELEPHONE NUMBER IS (816) 374-2199.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DONALD L. BRENEMAN
                 FOR THE RESPONDENT
 
    NICHOLAS J. LOBURGIO, ESQUIRE
    JOHN J. RUBIN, ESQUIRE
                 FOR THE GENERAL COUNSEL
 
    BEFORE:  GARVIN LEE OLIVER
                ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
 FILED BY THE REGIONAL DIRECTOR, SEVENTH REGION, FEDERAL LABOR RELATIONS
 AUTHORITY, KANSAS CITY, MISSOURI, AGAINST THE IOWA NATIONAL GUARD AND
 NATIONAL GUARD BUREAU (RESPONDENTS), BASED ON A CHARGE FILED BY AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3080 (CHARGING PARTY OR
 UNION).
 
    THE AMENDED COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENTS
 VIOLATED SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED
 (THE ORDER), BY (1) UNILATERALLY CHANGING CONDITIONS OF EMPLOYMENT BY
 REQUIRING, AS A PRE-CONDITION OF BEING DEPLOYED TO PANAMA, THAT UNIT
 EMPLOYEES REFRAIN FROM EXERCISING A CONTRACTUAL RIGHT TO WEAR CIVILIAN
 ATTIRE, AND (2) BY BY-PASSING THE UNION AND HOLDING A MEETING WITH
 EMPLOYEES CONCERNING THE EXERCISE OF THEIR CONTRACTUAL RIGHT TO WEAR
 CIVILIAN ATTIRE.  THE COMPLAINT ALSO ALLEGED THAT RESPONDENTS VIOLATED
 SECTION 19(A)(1) OF THE ORDER BY THREATENING EMPLOYEES THAT, IF THEY
 EXERCISED THEIR CONTRACTUAL RIGHT TO WEAR CIVILIAN ATTIRE, THEY WOULD BE
 REPLACED ON THE DEPLOYMENT TO PANAMA AND WOULD NOT RECEIVE FUTURE
 TEMPORARY DUTY ASSIGNMENTS OR GOOD TRIPS.  RESPONDENTS DENIED THE
 ALLEGATIONS.
 
    A HEARING WAS HELD IN THIS MATTER IN SIOUX CITY, IOWA.  THE
 RESPONDENTS AND THE GENERAL COUNSEL WERE REPRESENTED BY COUNSEL AND
 AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
 AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3080, HAS BEEN RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF
 NON-SUPERVISORY CIVILIAN TECHNICIAN EMPLOYEES OF THE IOWA AIR NATIONAL
 GUARD, 185TH TACTICAL FIGHTER GROUP (ANG), SIOUX CITY MUNICIPAL AIRPORT,
 SERGEANT BLUFF, IOWA SINCE JULY 16, 1970.  THE UNION AND THE IOWA
 NATIONAL GUARD, ADJUTANT GENERAL OF IOWA, HAVE HAD A COLLECTIVE
 BARGAINING AGREEMENT SINCE 1975.
 
    2.  ON JUNE 22, 1978 THE UNION AND RESPONDENT IOWA NATIONAL GUARD
 SIGNED A CHANGE TO THEIR COLLECTIVE BARGAINING AGREEMENT ENTITLED,
 "ARTICLE 33, WEAR OF STANDARDIZED CIVILIAN ATTIRE." THE CHANGE INVOLVED
 THE OPTION OF WEARING STANDARD CIVILIAN ATTIRE AND PROVIDED, IN RELEVANT
 PART, AS FOLLOWS:
 
    SECTION 1.  SIOUX CITY AIR NATIONAL GUARD TECHNICIANS WHILE
 PERFORMING THEIR DAY-TO-DAY
 
    TECHNICIAN DUTIES SHALL HAVE THE OPTION OF WEARING THE AGREED UPON
 STANDARD CIVILIAN ATTIRE OR
 
    THE MILITARY UNIFORM.  TECHNICIANS MUST ELECT THEIR UNIFORM OPTION ON
 THE ANNIVERSARY DATE OF
 
    THE CONTRACT.
 
   *          *          *          *
 
 
    SECTION 6.  THE WEAR OF THE MILITARY UNIFORM IN MANDATORY ON THE
 FOLLOWING OCCASIONS:
 
    A.  DURING TRAVEL IN OFFICIAL TDY STATUS IN MILITARY VEHICLES OR
 AIRCRAFT.
 
    B.  WHILE REPRESENTING THE COMMAND AT PUBLIC FUNCTIONS, I.E.,
 PARADES, INAUGURATIONS,
 
    CEREMONIES, OR OTHER CIVIC ACTIVITIES.
 
    C.  SECURITY PERSONNEL.
 
    D.  WHEN PERFORMING RECRUITING DUTIES.
 
    E.  DURING INSPECTIONS CONDUCTED BY HIGHER HEADQUARTERS, I.E.,
 ORI/MEI.
 
    F.  DURING BASE DEFENSE FORCE EXERCISES.
 
    G.  DURING SCHEDULED UNIT TRAINING ASSEMBLIES, AND DURING ANNUAL
 FIELD TRAINING AT OTHER
 
    THAN HOME STATION.
 
    (JOINT EX. 1;  TR. 34).  ON SEPTEMBER 28, 1978 DESIGNATED BARGAINING
 UNIT PERSONNEL WERE AUTHORIZED TO WEAR THE STANDARD CIVILIAN ATTIRE
 EFFECTIVE OCTOBER 2, 1978.  (JOINT EX. 5).
 
    3.  ON AUGUST 16, 1978 THE NATIONAL GUARD BUREAU ISSUED AN OPERATIONS
 ORDER CALLING FOR THE ROTATIONAL DEPLOYMENT OF A DETACHMENT OF FOUR
 FIGHTER-TYPE AIRCRAFT TO HOWARD AIR FORCE BASE, CANAL ZONE TO SUPPORT
 U.S. AIR FORCE COMMITMENTS.  (JOINT EX. 6).  THE AIRCRAFT WOULD PROVIDE
 CLOSE AIR SUPPORT TO ARMED FORCES IN PANAMA FOR THE PROTECTION OF THE
 PANAMA CANAL.  (TR. 85).  ONCE IN THE CANAL ZONE, OPERATIONAL CONTROL OF
 THE DEPLOYED AIR NATIONAL GUARD UNITS WOULD BE UNDER THE U.S. AIR FORCE.
  (JOINT EX. 6).  OPERATIONAL CONTROL INVOLVED DIRECTING PERSONNEL IN THE
 ASSIGNMENT OF WORK AND DUTIES TO BE PERFORMED.  (TR. 146).
 ADMINISTRATIVE CONTROL, SUCH AS PAY AND LEAVE, REMAINED WITH THE AIR
 NATIONAL GUARD UNITS DEPLOYED.  THE NICKNAME OF THE PLAN WAS "CORONET
 COVE." (JOINT EX. 6;  TR. 146).
 
    4.  THE DEPLOYMENT DID NOT REQUIRE THAT THE 185TH TACTICAL FIGHTER
 GROUP GO AS A COMPLETE UNIT.  IN AUGUST 1978 BARGAINING UNIT MEMBERS
 WERE CONTACTED INDIVIDUALLY AND ASKED WHETHER OR NOT THEY DESIRED TO
 VOLUNTEER FOR AN OCTOBER 1978 DEPLOYMENT AS A TEMPORARY DUTY ASSIGNMENT.
  IF AN INDIVIDUAL CHOSE TO VOLUNTEER, HE WAS ALSO ALLOWED HIS CHOICE OF
 GOING IN MILITARY STATUS, AS PART OF HIS FIFTEEN DAYS OF ANNUAL MILITARY
 TRAINING AS A MILITARY MEMBER OF THE AIR NATIONAL GUARD, OR IN HIS
 CIVILIAN TECHNICIAN STATUS, OR IN A MIXTURE OF THE TWO.  (TR.  36,
 52-53, 57, 64-65, 142-143).
 
    5.  IT HAD BEEN NATIONAL GUARD BUREAU POLICY AND PRACTICE FOR
 CIVILIAN TECHNICIANS TO WEAR THE MILITARY UNIFORM WHILE ON TEMPORARY
 DUTY ASSIGNMENTS OUTSIDE THE CONTINENTAL UNITED STATES.  (TR. 127, 131).
  THIS POLICY, HOWEVER, CAME INTO EXISTENCE PRIOR TO THE 1977
 DETERMINATION OF THE FEDERAL LABOR RELATIONS COUNCIL THAT NO COMPELLING
 NEED EXISTED FOR A NATIONAL GUARD BUREAU REGULATION REQUIRING ALL
 NATIONAL GUARD TECHNICIANS WORKING IN THEIR TECHNICIAN STATUS UNDER
 VIRTUALLY ALL CIRCUMSTANCES TO WEAR MILITARY UNIFORMS AND FINDING THAT
 CERTAIN UNION PROPOSALS IN THAT CASE WERE PROPERLY SUBJECT TO
 NEGOTIATION.  (TR. 131) /3/
 
    6.  THE OCTOBER 1978 DEPLOYMENT WAS TO BE THE FIRST DEPLOYMENT OF THE
 185TH TACTICAL FIGHTER GROUP TO PANAMA.  (TR. 83).  IN EARLY OCTOBER
 1978, SHORTLY BEFORE THE DEPLOYMENT, TWO TECHNICIANS OF THE 185TH
 TACTICAL FIGHTER GROUP WERE ASSIGNED TO TEMPORARY DUTY FOR TRAINING IN
 TUCSON, ARIZONA.  THEY WORE THE MILITARY UNIFORM ON THIS ASSIGNMENT.
 (TR.  90).  HOWEVER, WHEN THE UNION FOUND OUT ABOUT IT AND OBJECTED,
 PERSONNEL WERE SUBSEQUENTLY SENT TO ANOTHER BASE IN THE CONTINENTAL
 UNITED STATES FOR TRAINING WHERE THE CIVILIAN UNIFORMS COULD BE WORN.
 (TR. 90, 95, 113).
 
    7.  AS OF EARLY OCTOBER 1978 BOTH MANAGEMENT OF THE 185TH TACTICAL
 FIGHTER GROUP AND MEMBERS OF THE BARGAINING UNIT ASSUMED THAT THOSE
 GOING ON THE DEPLOYMENT TO PANAMA AS CIVILIAN TECHNICIANS ON TEMPORARY
 DUTY STATUS WOULD WEAR THE STANDARD CIVILIAN ATTIRE.  (TR.  28, 53, 71,
 99, 108, 114).  ON APPROXIMATELY OCTOBER 20, 1978, EIGHT OR NINE DAYS
 BEFORE THE DEPLOYMENT WAS TO BEGIN, LLOYD A. PIPPETT, CHIEF OF
 MAINTENANCE, CONTACTED THE AIR NATIONAL GUARD LIAISON OFFICER IN PANAMA,
 COLONEL RICHARD LAW, TO INFORM HIM THAT TECHNICIANS WOULD BE WEARING THE
 CIVILIAN UNIFORM.  (TR. 108).
 
    8.  COLONEL LAW SUBSEQUENTLY CONTACTED CURTIS N. METCALF, DEPUTY
 CHIEF, PLANS, AIR NATIONAL GUARD, NATIONAL GUARD BUREAU, AND STATED THAT
 HE HAD INFORMED THE U.S.  AIR FORCE WING COMMANDER IN PANAMA, WHO WOULD
 ADMINISTER AND SUPPORT THE AIR NATIONAL GUARD DEPLOYMENT, OF THE
 INTENTION OF THE SIOUX CITY AIR NATIONAL GUARD TO HAVE CIVILIAN
 TECHNICIANS WEAR THE STANDARD CIVILIAN ATTIRE.  COLONEL LAW ADVISED MR.
 METCALF THAT THE AIR FORCE WING COMMANDER DID NOT "PARTICULARLY LIKE
 TECHNICIANS DEPLOYING IN CIVILIAN UNIFORM," "THAT BECAUSE OF THE TENSE
 SITUATION OF THE NEGOTIATIONS FOR PANAMA BEING GIVEN BACK TO THE
 PANAMANIANS, THERE WAS SO MUCH UNREST, THAT PERSONNEL SHOULD BE IN
 MILITARY UNIFORM DURING DUTY HOURS IN CASE THERE WAS A REQUIREMENT FOR
 THEM TO BE USED." (TR. 127-128)
 
    9.  AS A RESULT OF THIS INFORMATION, MR. METCALF SENT A MESSAGE, ON
 OCTOBER 25, 1978, OR 241930Z, TO ALL FOURTEEN TACTICAL FIGHTER UNITS
 INVOLVED IN THE DEPLOYMENT, INCLUDING RESPONDENT IOWA NATIONAL GUARD,
 WHICH PROVIDED, IN PART, AS FOLLOWS:
 
    SUBJECT:  STATUS OF ANG PERSONNEL SUPPORTING CORONET COVE
 
    1.  UNITS SUPPORTING CORONET COVE ARE PROVIDED THE FOLLOWING GUIDANCE
 PERTAINING TO STATUS OF DEPLOYED INDIVIDUALS:
 
    A.  ALL PILOTS WILL BE IN A MILITARY STATUS.
 
    B.  OTHER PERSONNEL SHOULD BE IN MILITARY STATUS TO THE MAXIMUM
 EXTENT POSSIBLE.
 
    2.  . . . PERSONNEL OTHER THAN PILOTS MAY BE AUTHORIZED TO
 PARTICIPATE IN AN AIR TECHNICIAN STATUS PROVIDING THE FOLLOWING
 CONDITIONS CAN BE MET:
 
    A.  ONLY MINIMUM ESSENTIAL PARTICIPATION IN AIR TECHNICIAN STATUS IS
 AUTHORIZED.
 
    B.  INDIVIDUALS PARTICIPATING IN AIR TECHNICIAN STATUS ARE PREBRIEFED
 AND AGREE TO WEAR THE
 
    PROPER MILITARY UNIFORM IN ACCORDANCE WITH AFR 35-10 DURING DUTY
 HOURS FOR THE FULL
 
    DEPLOYMENT.
 
    3.  SHOULD UNITS OR INDIVIDUALS NOT BE ABLE TO COMPLY WITH 2A AND 2B
 THE FOLLOWING ACTION SHOULD BE TAKEN:
 
    A.  ADVISE NGB/XO OF THE NUMBERS OF PERSONNEL AND AFSC'S WHICH ARE
 NOT AVAILABLE TO DEPLOY
 
    UNDER THIS CRITERIA A MINIMUM OF 30 DAYS IN ADVANCE.
 
    B.  COORDINATE WITH NGB/XO FOR AUGMENTATION OF THESE AFSC'S FROM
 OTHER A-7 UNITS.  (JOINT
 
    EX. 3).
 
    10.  ON OR ABOUT OCTOBER 25, 1978, DALE PRICE, LOCAL UNION PRESIDENT,
 UPON HEARING RUMORS THAT MILITARY UNIFORMS WERE GOING TO BE REQUIRED ON
 THE DEPLOYMENT, ARRANGED A MEETING WITH COLONEL WARREN G. NELSON,
 COMMANDER, 185TH TACTICAL FIGHTER GROUP.  MR. GERALD BREYFOGLE,
 VICE-PRESIDENT, LOCAL 3080, WAS ALSO PRESENT.  (TR. 35, 51, 73-74).
 COL. NELSON TOLD THE UNION OFFICERS THAT A NATIONAL GUARD BUREAU
 DIRECTIVE REQUIRED THAT PERSONNEL WHO DEPLOY TO PANAMA DO SO IN MILITARY
 UNIFORMS, AND IF ENOUGH PERSONNEL WOULD NOT DO SO, REQUESTS FOR
 REPLACEMENTS WOULD BE MADE TO OTHER UNITS.  MR. PRICE THEN ASKED FOR A
 MEETING ON MANAGEMENT'S TIME SO THAT COL. NELSON COULD BRIEF THE UNIT
 EMPLOYEES WHO WERE GOING ON THE DEPLOYMENT ABOUT THE UNIFORM
 REQUIREMENT.  (TR. 35-37;  51-52;  73-74).
 
    11.  A MEETING OF UNIT EMPLOYEES WAS HELD THE SAME DAY.  MR. PRICE
 CALLED THE MEETING TO ORDER AND STATED THAT COL. NELSON WOULD EXPLAIN
 THE UNIFORM ISSUE.  COL.  NELSON PRESENTED ESSENTIALLY THE SUBSTANCE OF
 THE NATIONAL GUARD BUREAU MESSAGE.  COL. PIPPETT ALSO SPOKE.  HE STATED
 THAT, SINCE THERE WERE ONLY FOUR DAYS LEFT BEFORE THE ACTUAL DEPLOYMENT,
 MANAGEMENT WOULD HAVE TO KNOW VERY SOON IF PERSONNEL WERE NOT GOING IN
 MILITARY UNIFORM, SO REPLACEMENTS COULD BE FOUND FOR THE INDIVIDUALS WHO
 REFUSED TO GO.  THE UNION INFORMED COL. PIPPETT THAT A VOTE WOULD BE
 TAKEN ON THE ISSUE.
 
    12.  AFTER COL. PIPPETT LEFT, MR. PRICE BROUGHT THE MEETING TO ORDER
 AND ASKED FOR A VOTE ON WHETHER EMPLOYEES WOULD DEPLOY IN A MILITARY
 UNIFORM OR IN THE CIVILIAN ATTIRE.  THE EMPLOYEES VOTED TO DEPLOY IN
 CIVILIAN ATTIRE.  (TR. 37-38, 53-55).
 
    13.  AFTER THIS VOTE, MR. PRICE AND MR. BREYFOGLE ADVISED COL.
 NELSON OF THE OUTCOME OF THE VOTE AND OF THE STANCE OF THE UNION IN NOT
 GOING TO PANAMA IN THE MILITARY UNIFORM.  COL. NELSON SAID HE WAS
 DISAPPOINTED AND WOULD HAVE TO CALL THE NATIONAL GUARD BUREAU AND INFORM
 THEM TO GIVE THE MISSION TO ANOTHER UNIT, OR BACK TO THE AIR FORCE.
 (TR. 38).
 
    14.  ON THAT SAME DATE, PRELIMINARY TO A REGULARLY SCHEDULED SESSION
 FOR THE NEGOTIATION OF A NEW CONTRACT, LT. COL. PIPPETT, THE MANAGEMENT
 CHIEF NEGOTIATOR, ADVISED THE UNION NEGOTIATING TEAM THAT SINCE HE WOULD
 BE BUSY CALLING AROUND LOCATING REPLACEMENTS FOR ANYONE WHO DID NOT WANT
 TO GO TO PANAMA, HE WAS RECESSING THE NEGOTIATIONS.  UNDER THE GROUND
 RULES, EITHER PARTY COULD REQUEST A RECESS.  (TR. 24, 60-61, 110-112,
 118).
 
    15.  DESPITE THE UNION VOTE, AS THE DAY WORE ON, UNION VICE PRESIDENT
 BREYFOGLE OBSERVED STRONG DIFFERENCES OF OPINION AMONG UNIT PERSONNEL AS
 TO WHETHER OR NOT THEY SHOULD AGREE TO DEPLOY IN THE MILITARY UNIFORM.
 (TR. 55-56).  THAT EVENING HE DRAFTED THE FOLLOWING LETTER TO UNION
 PRESIDENT PRICE:
 
    AFTER MUCH REVIEW AND DELIBERATION OF THE STATEMENTS MADE TO US BY
 LT. COL. WARREN
 
    G. NELSON, I HAVE REACHED THE FOLLOWING CONCLUSIONS.  I FEEL THAT IN
 ORDER TO;  1. PROMOTE
 
    BETTER RELATIONS BETWEEN MANAGEMENT AND LOCAL 3080, 2. PROMOTE A
 FAVORABLE IMAGE OF THE 185TH
 
    TO THE NATIONAL GUARD BUREAU AND THE U.S. AIR FORCE AND 3. TO FULFILL
 OUR PREVIOUSLY
 
    VOLUNTEERED COMMITMENTS TO THE PANAMA EXERCISE;  THAT ALL PERSONNEL,
 WHO WERE TO PARTICIPATE IN
 
    THE EXERCISE IN A TECHNICIAN STATUS AND CIVILIAN ATTIRE, SHOULD BE
 RELEASED FROM THEIR
 
    OBLIGATION TO WEAR THEIR CIVILIAN ATTIRE, AS REQUIRED BY ARTICLE 33
 OF LOCAL 3080'S NEGOTIATED
 
    CONTRACT, WITHOUT REPRISAL OR CRITICISM AND BE ALLOWED TO FULFILL
 THEIR PREVIOUS COMMITMENTS
 
    TO THE PANAMA EXERCISE EVEN THROUGH IT ENTAILS WEARING THE MILITARY
 UNIFORM.  (GENERAL COUNSEL
 
    EX. 2).
 
    16.  MR. PRICE APPROVED THE LETTER ABOUT 7:30 A.M. THE NEXT DAY, AND
 HE AND MR. BREYFOGLE THEN TOOK IT TO COL. NELSON, WHO EXPRESSED HIS
 APPRECIATION.  (TR. 59).
 
    17.  ABOUT THIS SAME TIME, TERRENCE MARTIN, BRANCH CHIEF,
 ORGANIZATIONAL MAINTENANCE SHOP, CALLED A MEETING WITH HIS UNIT
 EMPLOYEES FOR THE PURPOSE OF OBTAINING A COUNT OF WHO WAS GOING IN
 MILITARY UNIFORM.  (TR. 100).  MR. MARTIN HAD ATTENDED THE GENERAL
 MEETING THE PREVIOUS DAY.  MARTIN TOLD HIS EMPLOYEES THAT THEY WOULD BE
 REPLACED IF THEY DID NOT WEAR MILITARY UNIFORMS, AND THAT THE UNIT WOULD
 BE PUT ON THE "BACK-BURNER" BY THE NATIONAL GUARD BUREAU FOR FUTURE GOOD
 TRIPS.  HE URGED THEM TO GO ON THE TRIP TO PANAMA IN MILITARY ATTIRE
 AND, IF THEY FELT STRONGLY, TO FILE A GRIEVANCE ABOUT IT LATER.  HE
 SAID, "WHO IS GOING ON VACATION WITH ME," AND INTERROGATED EACH OF HIS
 EMPLOYEES WHO HAD PREVIOUSLY VOLUNTEERED AS TO WHETHER HE WAS GOING TO
 GO.  (TR.  18-19;  99-106).
 
    18.  THE DEPLOYMENT TOOK PLACE ON OCTOBER 29, 1978 WITH A TOTAL OF 4
 PERSONNEL GOING IN MILITARY STATUS, 9 PERSONNEL GOING IN CIVILIAN
 TECHNICIAN STATUS IN MILITARY UNIFORM, AND 25 PERSONNEL DIVIDING THEIR
 TIME INTO SIX DAYS CIVILIAN TECHNICIAN STATUS AND TEN DAYS MILITARY
 STATUS.  (TR. 47).
 
    19.  THE DUTIES PERFORMED BY THE CIVILIAN TECHNICIANS WHILE IN PANAMA
 WERE NOT ESSENTIALLY DIFFERENT FROM THOSE PERFORMED AT THEIR NORMAL DUTY
 STATION.  (TR. 45-46;  87-88;  92;  124-125).  HOWEVER, THE
 CIRCUMSTANCES WERE DIFFERENT.  IT WAS AN OPERATIONAL MISSION FOR THE
 U.S. AIR FORCE.  AS NOTED, OPERATIONAL CONTROL, INVOLVING DIRECTING
 PERSONNEL AND THE ASSIGNMENT OF WORK, WAS UNDER THE CONTROL OF THE U.S.
 AIR FORCE.  (JOINT EX. 6;  TR. 81, 82, 146).  THE DEPLOYMENT WAS SIMILAR
 TO AN OPERATIONAL READINESS INSPECTION (ORI), EXCEPT THAT DURING AN ORI
 THE GUARD PERFORMS SIMULATED TRAINING EXERCISES UNDER THE INSPECTION OF
 THE U.S. AIR FORCE, WHILE A DEPLOYMENT IS THE PERFORMANCE OF AN ACTUAL
 MILITARY MISSION UNDER THE DIRECTION OF THE U.S. AIR FORCE.  (TR. 83,
 85, 87-88, 138, 145).  THE PANAMA DEPLOYMENT WAS THE FIRST DEPLOYMENT IN
 TEN YEARS FOR THE 185TH TACTICAL FIGHTER GROUP WHICH WAS NOT STRICTLY
 FOR TRAINING.  (TR. 138).
 
    20.  ON JANUARY 25, 1979 LOCAL 3080 AND RESPONDENT IOWA NATIONAL
 GUARD ENTERED INTO A MEMORANDUM OF RECORD WHICH STATES THAT NEGOTIATIONS
 ON ARTICLE 33, SECTION 6, CONCERNING MANDATORY WEAR OF THE MILITARY
 UNIFORM, WILL BE RE-OPENED IF THIS UNFAIR LABOR PRACTICE CASE "DOES NOT
 SATISFACTORILY RESOLVE THE WEARING OF THE CIVILIAN UNIFORM DURING
 PERIODS OF TDY." (JOINT EX. 4).
 
    21.  THEREAFTER, ON JANUARY 29, 1979, LOCAL 3080 AND RESPONDENT IOWA
 NATIONAL GUARD ENTERED INTO A NEW COLLECTIVE BARGAINING AGREEMENT.
 ARTICLE 33, SECTION 6 G PROVIDES THAT THE WEAR OF THE MILITARY UNIFORM
 IS MANDATORY "DURING PERIODS OF TDY OUTSIDE CONTINENTAL USA IF
 REQUIRED." (JOINT EX. 2).  THE MEANING OF THIS CONTRACTUAL PROVISION IS
 DISPUTED.  (TR.  22, 48, 121).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE GENERAL COUNSEL ALLEGES THAT RESPONDENTS' UNILATERALLY CHANGED
 CONDITIONS OF EMPLOYMENT CONTAINED IN THE COLLECTIVE BARGAINING
 AGREEMENT.  THE INITIAL QUESTION, THEREFORE, IS WHETHER THE COLLECTIVE
 BARGAINING AGREEMENT ESTABLISHED A CONDITION OF EMPLOYMENT WHEREBY UNIT
 EMPLOYEES HAD THE RIGHT TO WEAR THE STANDARD CIVILIAN ATTIRE WHILE
 PERFORMING THEIR TECHNICIAN DUTIES ON A VOLUNTARY TEMPORARY DUTY
 ASSIGNMENT OUTSIDE THE CONTINENTAL UNITED STATES IN CONNECTION WITH A
 DEPLOYMENT UNDER THE OPERATIONAL CONTROL OF THE U.S. AIR FORCE.
 
    THE AGREEMENT PROVIDES THAT SIOUX CITY AIR NATIONAL GUARD TECHNICIANS
 "WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES SHALL HAVE THE
 OPTION OF WEARING THE AGREED UPON STANDARD CIVILIAN ATTIRE . . . ." THE
 AGREEMENT ALSO SPECIFIES THAT THE MILITARY UNIFORM IS MANDATORY ON
 CERTAIN OCCASIONS INCLUDING, "DURING INSPECTIONS CONDUCTED BY HIGHER
 HEADQUARTERS, I.E. ORI/MEI."
 
    RESPONDENTS ARGUE THAT THE CONTRACT ONLY PERMITTED UNIT PERSONNEL THE
 OPTION OF WEARING STANDARD CIVILIAN ATTIRE WHILE PERFORMING THEIR DAY TO
 DAY TECHNICIAN DUTIES;  THAT THERE WAS NO RIGHT TO TEMPORARY DUTY;  THAT
 THE DUTIES PERFORMED BY TECHNICIANS WHO VOLUNTEERED FOR TEMPORARY DUTY
 FOR THE DEPLOYMENT WERE NOT DAY TO DAY DUTIES;  THAT THE 185TH TACTICAL
 FIGHTER WING HAD NOT BEEN ON SUCH A DEPLOYMENT FOR TEN YEARS;  THAT THE
 TECHNICIANS WERE UNDER THE DIRECTION AND CONTROL OF THE AIR FORCE;  AND
 THAT THE REQUIREMENT TO WEAR THE MILITARY UNIFORM ON THIS DEPLOYMENT
 FELL WITHIN THE SCOPE OF RIGHTS RESERVED TO MANAGEMENT UNDER SECTION
 12(B)(5) OF THE ORDER.
 
    IT IS WELL RECOGNIZED THAT A PARTY TO A NEGOTIATED AGREEMENT ACTS AT
 ITS PERIL IN INTERPRETING AND APPLYING SUCH AGREEMENT.  THUS, IF THE
 RESPONDENTS' INTERPRETATION OF THE NEGOTIATED AGREEMENT WAS SUCH THAT IT
 RESULTED IN A CLEAR AND PATENT BREACH OF THE TERMS OF THE AGREEMENT,
 THEN SUCH INTERPRETATION COULD RISE TO THE LEVEL OF AN UNFAIR LABOR
 PRACTICE.  ON THE OTHER HAND, IF RESPONDENTS' INTERPRETATION WAS
 ARGUABLY WITHIN THE TERMS OF THE NEGOTIATED AGREEMENT, THEN SUCH
 INTERPRETATION WOULD MERELY BE A MATTER OF CONTRACT INTERPRETATION TO BE
 RESOLVED THROUGHT THE PARTIES' GRIEVANCE AND ARBITRATION MACHINERY.
 OKLAHOMA CITY AIR LOGISTICS CENTER;  TINKER AIR FORCE BASE, OKLAHOMA, 3
 FLRA NO. 82(1980).; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION,
 CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA 19(1979);  DEPARTMENT OF
 THE NAVY, NAVAL AIR REWORK FACILITY, A/SLMR NO. 1089, 8 -A/SLMR 815,
 816(1978) AND CASES CITED THEREIN.  I CONCLUDE THAT, UNDER ALL THE
 CIRCUMSTANCES, THE RESPONDENT' ACTION DID NOT RISE TO THE LEVEL OF A
 CLEAR AND PATENT BREACH OF THE AGREEMENT AND AN UNFAIR LABOR PRACTICE
 UNDER THE ORDER, AND SUCH CONTRACTUAL DISPUTE SHOULD BE RESOLVED BY THE
 MEANS THE PARTIES THEMSELVES HAVE ADOPTED FOR THE RESOLUTION OF DISPUTES
 OVER THE MEANING OF PROVISIONS IN THE AGREEMENT.  IT MUST BE PRESUMED,
 ABSENT CLEAR EVIDENCE TO THE CONTRARY, THAT THE GRIEVANCE AND
 ARBITRATION PROCEDURES CONTAINED IN A COLLECTIVE BARGAINING AGREEMENT
 CAN ADEQUATELY RESOLVE ALL DISPUTES CONCERNING INTERPRETATION AND
 APPLICATION OF THAT COLLECTIVE BARGAINING AGREEMENT.  CF. SOCIAL
 SECURITY ADMINISTRATION, DISTRICT OFFICES IN DENVER, PUEBLO AND GREELY,
 COLORADO, ET AL, 3 FLRA NO. 10(1980).
 
    ASSUMING, HOWEVER, THAT THE CASE IS PROPERLY THE SUBJECT OF AN UNFAIR
 LABOR PRACTICE PROCEEDING ON THE THEORY THAT IT INVOLVES AN ALLEGED
 VIOLATION OF RESPONDENT'S OBLIGATION TO BARGAIN UNDER THE ORDER, THE
 RECORD WILL BE CONSIDERED FURTHER ON THAT BASIS.
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 127
 AND STATE OF OHIO AIR NATIONAL GUARD, FLRC NO. 77A-114, 6 FLRA
 705(1978), THE FEDERAL LABOR RELATIONS COUNCIL HELD THAT A REQUIREMENT
 FOR AIR NATIONAL GUARD TECHNICIANS TO WEAR THE MILITARY UNIFORM IN THE
 NARROW CIRCUMSTANCES PRESENTED BY AN OPERATIONAL READINESS INSPECTION
 (ORI) BY THE AIR FORCE FELL WITHIN THE SCOPE OF RIGHTS RESERVED TO
 MANAGEMENT UNDER SECTION 12(B)(5) OF THE ORDER AND WAS NONNEGOTIABLE.
 THE COUNCIL HELD THAT IT WAS "A 'MEANS' BY WHICH AN AGENCY OPERATION IS
 CONDUCTED -- AS REALISTIC A TEST AS IS POSSIBLE OF THE ABILITY OF A
 PARTICULAR NATIONAL GUARD UNIT TO PERFORM ITS WARTIME MILITARY MISSION .
 . . ." THE RECORD HERE SHOWS THAT THE DEPLOYMENT TO PANAMA BY VARIOUS
 AIR NATIONAL GUARD UNITS AS ORDERED BY THE NATIONAL GUARD BUREAU WAS ONE
 STEP ABOVE AN ORI AND ONE STEP BELOW ACTIVE DUTY SERVICE AS PART OF THE
 AIR FORCE, WHICH WOULD BE THE WARTIME OPERATIONAL MODE OF THE GUARD.
 THE DEPLOYMENT WAS NOT SIMPLY A REALISTIC TEST OR EVALUATION, AS IS AN
 ORI, BUT WAS THE ACTUAL ACCOMPLISHMENT BY THE AIR NATIONAL GUARD OF A
 MILITARY MISSION FOR THE U.S. AIR FORCE AS PART OF THE USE OF TOTAL
 FORCES CONCEPT.  ACCORDINGLY, IT IS CONCLUDED THAT THE REQUIREMENT TO
 WEAR THE MILITARY UNIFORM, IN THE NARROW CIRCUMSTANCES PRESENTED HERE,
 DURING A DEPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES TO FULFILL A
 MILITARY MISSION UNDER THE OPERATIONAL CONTROL OF THE U.S. AIR FORCE,
 FELL WITHIN THE SCOPE OF THE RIGHTS RESERVED TO MANAGEMENT UNDER SECTION
 12(B)(5) OF THE ORDER.  IT IS A "MEANS" BY WHICH AN AGENCY OPERATION IS
 CONDUCTED AND IS NONNEGOTIABLE.
 
    NOTWITHSTANDING THE FACT THAT A PARTICULAR MANAGEMENT DECISION IS
 NONNEGOTIABLE BECAUSE IT FALLS WITHIN THE AMBIT OF SECTION 11(B) OR
 12(B) OF THE ORDER, THE AGENCY OR ACTIVITY MUST, NEVERTHELESS, AFFORD AN
 EXCLUSIVE REPRESENTATIVE REASONABLE NOTICE AND AN OPPORTUNITY TO BARGAIN
 WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF SUCH ACTION, PRIOR TO
 ITS IMPLEMENTATION, WHEN SUCH ACTION EFFECTS A CHANGE IN EXISTING
 PERSONNEL POLICIES AND PRACTICES OR WORKING CONDITIONS OF UNIT
 EMPLOYEES, PROVIDED IT DOES NOT INTERFERE WITH THE EXERCISE OF THE
 RESERVED RIGHTS THEMSELVES.  DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
 SERVICE CENTER, A/SLMR NO. 984(1978);  U.S. CUSTOMS SERVICE, REGION VII,
 LOS ANGELES, CALIFORNIA, A/SLMR NO. 1066(1978);  DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, 7 A/SLMR
 255, A/SLMR NO. 814(1977).
 
    THE RECORD REFLECTS THAT THE UNION, UPON RECEIVING NOTICE OF THE
 MILITARY UNIFORM REQUIREMENT, DID NOT REQUEST MORE TIME TO CONSIDER THE
 MATTER, OR REQUEST IMPACT AND IMPLEMENTATION BARGAINING.  RATHER, IT
 INITIALLY ADHERED TO ITS INTERPRETATION OF THE CONTRACT AND ADVISED
 MANAGEMENT THAT UNIT MEMBERS WOULD NOT GO ON THE VOLUNTARY ASSIGNMENT IN
 MILITARY UNIFORM.  LATER, THE UNION ADVISED MANAGEMENT, IN EFFECT, THAT,
 UPON RECONSIDERATION, UNIT PERSONNEL WOULD NOT INSIST ON THE UNION'S
 INTERPRETATION OF THE CONTRACT AND WOULD GO ON THE DEPLOYMENT IN
 MILITARY UNIFORM.  IN MY VIEW, THE UNION'S ACTION CONSTITUTED A CLEAR
 AND UNMISTAKABLE WAIVER OF ANY BARGAINING RIGHTS IT MAY OTHERWISE HAVE
 HAD CONCERNING THE IMPACT AND IMPLEMENTATION OF THE REQUIREMENT.
 
    THE GENERAL COUNSEL'S ARGUMENT THAT COL. NELSON'S STATEMENTS WERE
 THREATENING AND COERCIVE AND PREVENTED THE UNION'S WAIVER FROM BEING A
 CLEAR AND UNMISTAKABLE ACT OF FREE WILL IS REJECTED.  THE STATEMENTS OF
 COL. NELSON AND MR. PIPPETT WERE NO MORE THAN A REITERATION OF THE
 NATIONAL GUARD BUREAU MESSAGE.  THE UNION AND BARGAINING UNIT EMPLOYEES
 WERE SIMPLY ADVISED, IN EFFECT, THAT THE DEPLOYMENT, AND THE CONSEQUENT
 TEMPORARY DUTY ASSIGNMENT, WAS PURELY VOLUNTARY;  THAT THEY COULD
 VOLUNTEER TO GO IN THE MILITARY UNIFORM, AS REQUIRED BY THE NATIONAL
 GUARD BUREAU, OR THEY COULD STAY AT THEIR NORMAL DUTY STATION PERFORMING
 THEIR REGULAR DAY TO DAY TECHNICIAN DUTIES, WITHOUT ANY CHANGE
 WHATSOEVER, AND OTHER ARRANGEMENTS WOULD BE MADE TO FULFILL THE MISSION.
  IN THIS RESPECT, THE RESPONDENT NATIONAL GUARD BUREAU MESSAGE DID NOT,
 IN ANY WAY, ATTEMPT TO SUPERSEDE, MODIFY, OR CHANGE THE TERMS OF THE
 PARTIES' NEGOTIATED AGREEMENT.  NOR DID IT SEEK TO COMPEL THE PARTIES TO
 THAT AGREEMENT TO MAKE ANY CHANGE.  IT WAS SENT TO ALL FOURTEEN UNITS TO
 BE INVOLVED IN THE DEPLOYMENT, INCLUDING RESPONDENT IOWA NATIONAL GUARD.
  THE ONLY ACTION REQUIRED BY UNITS WHO FOUND THAT THEY WOULD BE UNABLE,
 FOR WHATEVER REASONS, TO MEET THE REQUIREMENTS WAS TO ADVISE THE
 NATIONAL GUARD BUREAU OF THE NUMBERS AND POSITIONS OF PERSONNEL NOT ABLE
 TO DEPLOY AND COORDINATE FOR THEIR REPLACEMENT IN PANAMA.  COMPARE
 DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING, CONVERSION AND
 REPAIR, PASCAGOULA, MISSISSIPPI, A/SLMR NO. 390, 4 A/SLMR 324(1974);
 NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, A/SLMR NO. 608, 6 A/SLMR
 68(1976), FLRC NO.  76A-37, 5 FLRC 303(1977).
 
    FOR THESE SOME REASONS, I CONCLUDE THAT A PREPONDERANCE OF THE
 EVIDENCE DOES NOT ESTABLISH THE ALLEGATIONS OF PARAGRAPHS 5(A), (B), (C)
 AND 7 OF THE COMPLAINT, THAT RESPONDENT, ACTING BY AND THROUGH TERRENCE
 N. MARTIN AND LLOYD A. PIPPETT VIOLATED SECTION 19(A)(1) OF THE ORDER BY
 STATEMENTS INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
 EXERCISE OF RIGHTS ASSURED BY THE ORDER.  MOREOVER, AS NOTED, THE
 ALLEGED CONTRACTUAL RIGHT IS SUBJECT TO DIFFERING INTERPRETATIONS.  THE
 ALLEGED INTERFERENCE WITH A CONTRACTUAL RIGHT IN THESE CIRCUMSTANCES
 COULD NOT RISE TO THE LEVEL OF INTERFERENCE WITH RIGHTS GUARANTEED BY
 THE ORDER AND AN UNFAIR LABOR PRACTICE.  CF. DEPARTMENT OF THE AIR
 FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE,
 CALIFORNIA,A/SLMR NO. 485, 5 A/SLMR 112, FLRC NO. 75A-25, 4 FLRC
 587(1976).  IT CANNOT BE CONCLUDED FROM THE RECORD THAT THE ACTIONS
 TAKEN BY MANAGEMENT IS THE RESPECT, CONCERNING THE WEARING OF THE
 MILITARY UNIFORM IN THE NARROW CIRCUMSTANCES PRESENTED HERE, HAD THE
 CONSEQUENCE AND EFFECT OF INTERFERING WITH, RESTRAINING, OR COERCING
 EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER, E.G., THE
 RIGHT TO FORM, JOIN, OR ASSIST A LABOR ORGANIZATION.  COMPARE KENTUCKY
 NATIONAL GUARD AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R5-100, 4 FLRA NO.  73(1980).
 
    THE GENERAL COUNSEL ALSO ALLEGES THAT RESPONDENT BY-PASSED THE UNION
 IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER, WHEN TERRENCE N.
 MARTIN HELD A MEETING WITH EMPLOYEES CONCERNING THE WEAR OF CIVILIAN OR
 MILITARY ATTIRE.
 
    THE FEDERAL LABOR RELATIONS COUNCIL IN DEPARTMENT OF THE NAVY, NAVAL
 AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, FLRA NO. 74A-80, 3 FLRA
 697(1975) HELD THAT THE FOLLOWING CRITERIA SHOULD BE USED IN DETERMINING
 WHETHER A COMMUNICATION AMOUNTS TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
 REPRESENTATIVE:
 
    IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE ORDER, IT
 MUST BE JUDGED
 
    INDEPENDENTLY AND A DETERMINATION MADE AS TO WHETHER THAT
 COMMUNICATION CONSTITUTES, FOR
 
    EXAMPLE, AN ATTEMPT BY AGENCY MANAGEMENT TO DEAL OR NEGOTIATE
 DIRECTLY WITH UNIT EMPLOYEES OR
 
    TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES.  IN REACHING THIS
 DETERMINATION, BOTH THE
 
    CONTENT OF THE COMMUNICATION AND THE CIRCUMSTANCES SURROUNDING IT
 MUST BE CONSIDERED.  MORE
 
    SPECIFICALLY, ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT
 EMPLOYEES OVER MATTERS
 
    RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT VIOLATIVE.
  RATHER COMMUNICATIONS
 
    WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
 REPRESENTATIVE AND BARGAIN
 
    DIRECTLY WITH EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON
 THE REPRESENTATIVE TO TAKE
 
    A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE BENEFITS TO
 EMPLOYEES ARE VIOLATIVE
 
    OF THE ORDER.
 
    THE RECORD REFLECTS THAT, AT THE TIME THIS MEETING WAS HELD, MR.
 MARTIN KNEW THAT, AS A RESULT OF THE GENERAL MEETING WITH COL. NELSON,
 THE UNION HAD TAKEN A POSITION ON THE UNIFORM ISSUE, OR, AT LEAST, HAD
 THE UNIFORM ISSUE UNDER CONSIDERATION.  ALTHOUGH IT WAS PROPER FOR MR.
 MARTIN TO REITERATE, AS HAD BEEN DONE AT THE GENERAL MEETING, THAT THOSE
 TECHNICIANS NOT CHOOSING TO GO IN MILITARY UNIFORM WOULD BE REPLACED,
 AND TO OBTAIN A COUNT OF THOSE STILL GOING ON THE DEPLOYMENT IN MILITARY
 OR TECHNICIAN STATUS, IT WAS NOT PROPER FROM HIM TO TELL UNIT EMPLOYEES
 THAT THE UNIT WOULD BE PUT ON THE "BACK-BURNER" FOR FUTURE GOOD TRIPS;
 THAT THEY SHOULD GO IN MILITARY UNIFORM AND FILE A GRIEVANCE LATER;  AND
 URGE THEM TO GO ON THE DEPLOYMENT -- "ON VACATION" -- WITH HIM.  THIS
 CONDUCT AMOUNTED TO AN ATTEMPT TO BARGAIN DIRECTLY WITH EMPLOYEES BY
 THREATENING AND PROMISING BENEFITS TO EMPLOYEES, AND, INDIRECTLY, URGING
 EMPLOYEES TO PUT PRESSURE ON THE REPRESENTATIVE TO CHANGE ITS POSITION.
 MR. MARTIN'S ACTIONS CONSTITUTED A BY-PASSING OF THE EXCLUSIVE
 REPRESENTATIVE IN DEROGATION OF ITS STATUS AS THE EXCLUSIVE
 REPRESENTATIVE OF UNIT EMPLOYEES AND A VIOLATION OF SECTIONS 19(A)(1)
 AND (6) OF THE ORDER.
 
    BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
 THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
 
                                 ORDER /4/
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135(B) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE IOWA NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) BY-PASSING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3080, THE
 
    EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, AND DEALING
 
    DIRECTLY WITH UNIT EMPLOYEES CONCERNING PERSONNEL POLICIES AND
 PRACTICES AND MATTERS AFFECTING
 
    WORKING CONDITIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING,
 COERCING EMPLOYEES IN THE
 
    EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    (A) POST AT ITS FACILITIES AT THE IOWA AIR NATIONAL GUARD, 185TH
 TACTICAL FIGHTER GROUP
 
    (ANG), SIOUX CITY MUNICIPAL AIRPORT, SERGEANT BLUFFS, IOWA 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 COMMANDER, 185TH TACTICAL FIGHTER GROUP (ANG)
 AND SHALL BE POSTED AND
 
    MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES WHERE NOTICES TO
 
    EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDER SHALL TAKE
 REASONABLE STEPS TO INSURE THAT
 
    SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (B) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
 DIRECTOR, FEDERAL LABOR
 
    RELATIONS AUTHORITY, SUITE 680;  CITY CENTER SQUARE, 1100 MAIN
 STREET, KANSAS CITY, MISSOURI IN
 
    WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
 HAVE BEEN TAKEN TO
 
    COMPLY HEREWITH.
 
    IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 73-CA-106, IN
 ALL OTHER RESPECTS, BE, AND HEREBY IS DISMISSED.
 
                        GARVIN LEE OLIVER
                        ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 6, 1981
    WASHINGTON, D.C.
 
 
 
        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 BY-PASS THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3080, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
 DEAL DIRECTLY WITH EMPLOYEES CONCERNING PERSONNEL POLICIES AND PRACTICES
 AND MATTERS AFFECTING WORKING CONDITIONS.
 
    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.
 
                           (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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 7, WHOSE
 ADDRESS IS:  SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS
 CITY, MISSOURI 64105.  TELEPHONE (816) 374-2199.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE GENERAL COUNSEL AND THE CHARGING PARTY EXCEPTED TO CERTAIN
 CREDIBILITY FINDINGS MADE BY THE JUDGE.  THE DEMEANOR OF WITNESSES IS A
 FACTOR OF CONSEQUENCE IN RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE
 HAS HAD THE ADVANTAGE OF OBSERVING THE WITNESSES WHILE THEY TESTIFIED.
 THE AUTHORITY WILL NOT OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO
 CREDIBILITY UNLESS A CLEAR PREPONDERANCE OF ALL THE RELEVANT EVIDENCE
 DEMONSTRATES SUCH RESOLUTION WAS INCORRECT.  THE AUTHORITY HAS EXAMINED
 THE RECORD CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S
 CREDIBILITY FINDINGS.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978(92 STAT. 1224), THE PRESENT CASE IS DECIDED ON THE BASIS OF
 EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW STATUTE HAD NOT
 BEEN ENACTED.  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER
 EITHER THE MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW
 STATUTE OR THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE
 CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R-14-87 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.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978(92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (STAT. 1191) HAD NOT BEEN ENACTED.
 THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.