09:0347(41)CA - Florida NG and NAGE Locals R5-91, R5-107, R5-120 -- 1982 FLRAdec CA



[ v09 p347 ]
09:0347(41)CA
The decision of the Authority follows:


 9 FLRA No. 41
 
 FLORIDA NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107,
 R5-120
 Charging Party
 
                                            Case No. 4-CA-407
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE ORDERED TO
 CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
 EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE RESPONDENT, AND AN
 OPPOSITION THERETO WAS FILED BY THE CHARGING PARTY.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 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 THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS
 THE JUDGE'S SECTION 7116(A)(1) AND (6) FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /2/ STATE OF NEVADA NATIONAL GUARD, 7 FLRA NO.
 37(1981), APPEAL DOCKETED, NO. 82-7034 (9TH CIR.JAN. 18, 1982).  SEE
 ALSO DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, ALBANY,
 NEW YORK, 8 FLRA NO. 33(1982), APPEAL DOCKETED, NO.  82-4072(2DCIR.APR.
 16, 1982).  /3/
 
                                   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 FLORIDA NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND
 ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE
 MILITARY UNIFORM," OR IN ANY OTHER MANNER FAILING OR REFUSING TO
 COOPERATE IN IMPASSE DECISIONS OR PROCEDURES.
 
    (B) REFUSING TO ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE
 BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120:
 
    INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, SHALL HAVE THE
 
    DAILY 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
 OBTAINED BY EMPLOYEES
 
    WHO CHOOSE TO WEAR IT.
 
    (C) REFUSING TO AGREE UPON AND INCORPORATE IN ITS COLLECTIVE
 BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, THOSE CIRCUMSTANCES AND
 OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED.
 
    (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING 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 CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE BARGAINING
 AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
 R5-91, R5-107 AND R5-120:
 
    INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, SHALL HAVE THE
 
    DAILY 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
 OBTAINED BY EMPLOYEES
 
    WHO CHOOSE TO WEAR IT.
 
    (B) MEET AND NEGOTIATE WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, REGARDING THOSE
 CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
 UNIFORM MAY BE REQUIRED AND INCORPORATE THE AGREEMENT REACHED IN ITS
 COLLECTIVE BARGAINING AGREEMENT.
 
    (C) POST AT ITS FACILITIES, WHEREEVER UNIT EMPLOYEES ARE LOCATED,
 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 ADJUTANT GENERAL OF THE FLORIDA NATIONAL GUARD AND SHALL
 BE POSTED BY HIM FOR 60 CONSECUTIVE DAYS 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.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, 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., JUNE 30, 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 REFUSE TO HONOR AND ABIDE BY THE JANUARY 29, 1980,
 DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING
 "WEARING OF THE MILITARY UNIFORM" OR IN ANY OTHER MANNER FAIL OR REFUSE
 TO COOPERATE IN IMPASSE DECISIONS OR PROCEDURES.
 
    WE WILL NOT REFUSE TO ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE
 BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120:
 
    INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, SHALL HAVE THE
 
    DAILY 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
 OBTAINED BY EMPLOYEES
 
    WHO CHOOSE TO WEAR IT.
 
    WE WILL NOT REFUSE TO AGREE UPON AND INCORPORATE IN OUR COLLECTIVE
 BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, THOSE CIRCUMSTANCES AND
 OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED.
 
    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 ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING
 AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
 R5-91, R5-107 AND R5-120:
 
    INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, SHALL HAVE THE
 
    DAILY 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
 OBTAINED BY EMPLOYEES
 
    WHO CHOOSE TO WEAR IT.
 
    WE WILL MEET AND NEGOTIATE WITH THE NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, REGARDING THE
 CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
 UNIFORM MAY BE REQUIRED AND INCORPORATE THE AGREEMENT REACHED IN OUR
 COLLECTIVE BARGAINING AGREEMENT WITH SUCH LABOR ORGANIZATION.
 
                           (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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV,
 1776 PEACHTREE STREET, NW., SUITE 501, NORTH WING, ATLANTA, GEORGIA
 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    LINDA J. NORWOOD, ESQ.
    JAMES R. PUGHER, ESQ.
                     FOR THE GENERAL COUNSEL
 
    RANDY J. COHEN, ESQ.
                     FOR THE CHARGING PARTY
 
    LT. COL. RICHARD G. WEINBERG
    COL. C. M. MCCORMICK
                     FOR THE RESPONDENT
 
    BEFORE:  FRANCIS E. DOWD
                    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
 IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
 ON APRIL 22, 1980 BASED UPON A CHARGE FILED ON MARCH 25, 1980 BY
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107, AND
 R5-120, HEREIN REFERRED TO AS THE CHARGING PARTY OR UNION.  THE
 COMPLAINT ALLEGES, AND THERE IS NO SERIOUS FACTUAL DISPUTE, THAT FLORIDA
 NATIONAL GUARD, HEREIN REFERRED TO AS THE RESPONDENT, REJECTED AND
 REFUSED TO COMPLY WITH A DECISION AND ORDER OF THE FEDERAL SERVICE
 IMPASSES PANEL, HEREIN REFERRED TO AS THE FSIP OR THE PANEL, IN CASE NO.
 78 FSIP 100.  BY SO DOING, RESPONDENT IS ALLEGED TO HAVE VIOLATED
 SECTIONS 7116(A)(1), (5), (6) AND (8) OF THE STATUTE.
 
    THE ISSUES, AS SET FORTH IN THE GENERAL COUNSEL'S BRIEF, ARE AS
 FOLLOWS:
 
    A.  WHETHER RESPONDENT'S REFUSAL TO COMPLY WITH A DECISION AND ORDER
 OF THE FSIP VIOLATES
 
    SECTIONS 7116(A)(1), (6) AND (8) OF THE STATUTE.
 
    B.  WHETHER RESPONDENT'S REFUSAL TO ENTER INTO NEGOTIATIONS WITH THE
 UNION CONCERNING
 
    COMPLIANCE WITH A DECISION AND ORDER OF THE FSIP, UPON REQUEST BY THE
 UNION, VIOLATES SECTIONS
 
    7116(A)(1) AND (5) OF THE STATUTE
 
    THIS CASE REPRESENTS ANOTHER CHAPTER IN THE CONTINUING SAGA OF THE
 EFFORTS BY THE NATIONAL GUARD TO EVENTUALLY OBTAIN COURT REVIEW OF A
 DECISION OF THE FEDERAL SERVICE IMPASSES PANEL.  IN THE ABSENCE OF ANY
 STATUTORY PROVISION PERMITTING DIRECT REVIEW OF AN ADVERSE FSIP
 DECISION, THE NATIONAL GUARD IN THIS AND IN OTHER CASES THROUGHOUT THE
 COUNTRY /4/ IS EXHAUSTING ITS ADMINISTRATIVE AND STATUTORY REMEDIES BY
 FIRST SUBJECTING ITSELF TO AN UNFAIR LABOR PRACTICE PROCEEDING SO THAT
 IT CAN LAY THE GROUNDWORK FOR COURT REVIEW PURSUANT TO SECTION 7123 OF
 ANY ADVERSE DECISION BY THE FEDERAL LABOR RELATIONS AUTHORITY.  THUS,
 RESPONDENT IS ACTING IN ACCORDANCE WITH THE VIEWS OF THE AUTHORITY AS
 SET FORTH IN ITS DECISIONS DENYING PETITIONS FOR DIRECT REVIEW OF A
 FEDERAL SERVICE IMPASSES PANEL DECISION AND ORDER.  /5/
 
    AT THE HEARING IN ST. AUGUSTINE, FLORIDA ALL PARTIES WERE AFFORDED
 FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
 WITNESSES, AND ARGUE ORALLY.  THEREAFTER, RESPONDENT AND GENERAL COUNSEL
 FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
 
                  FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
    1.  THE MISSION OF THE EMPLOYER IS TO PROVIDE UNITS OF TRAINED
 PERSONNEL TO AUGMENT THE ARMED FORCES OF THE UNITED STATES, AND TO
 PRESERVE PEACE, ORDER, AND PUBLIC SAFETY WITHIN THE STATE OF FLORIDA.
 TO CARRY OUT THIS MISSION THE EMPLOYER MAINTAINS A CADRE OF SOME 530
 ARMY AND 320 AIR NATIONAL GUARD TECHNICIANS.  MOST OF THESE EMPLOYEES
 ARE LOCATED AT JACKSONVILLE (432), CAMP BLANDING (110), AND ST.
 AUGUSTINE, FLORIDA (106), BUT THERE ARE 17 ONE-PERSON AND 11 TWO-PERSON
 LOCATIONS AMONG THE MANY WHICH ARE SERVED BY ARMY NATIONAL GUARD
 TECHNICIANS.
 
    2.  AT ALL TIMES MATERIAL HEREIN, INCLUDING SINCE ON OR ABOUT AUGUST
 1971, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91,
 R5-107 AND R5-120 HAVE BEEN CERTIFIED AS EXCLUSIVE REPRESENTATIVES IN
 APPROPRIATE UNITS OF ALL NON-SUPERVISORY WAGE GRADE, AND GENERAL
 SCHEDULE ARMY AND AIR NATIONAL GUARD TECHNICIANS IN THE STATE OF FLORIDA
 BUT EXCLUDING SUPERVISORS AND NON-SUPERVISORY EMPLOYEES ENGAGED IN
 FEDERAL PERSONNEL WORK EXCEPT IN OTHER THAN A PURELY CLERICAL CAPACITY,
 MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES, AND GUARDS IN NAGE LOCAL
 R5-91, R5-107 AND R5-120.
 
    3.  THE CERTIFIED UNITS REFERRED TO ABOVE IN PARAGRAPH 2 HAVE BEEN
 EMBODIED IN THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT APPROVED
 JANUARY 29, 1975 BETWEEN RESPONDENT AND UNION.
 
    4.  AT ALL TIMES MATERIAL HEREIN, INCLUDING ALL TIMES SINCE JANUARY
 29, 1975, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
 R5-91, R5-107 AND R5-120 HAVE BEEN AND ARE THE EXCLUSIVE REPRESENTATIVES
 OF THE EMPLOYEES IN THE UNITS DESCRIBED ABOVE IN PARAGRAPH 2.
 
    5.  AT ALL TIMES MATERIAL HEREIN, THE FOLLOWING NAMED PERSONS
 OCCUPIED THE POSITIONS SET OPPOSITE THEIR RESPECTIVE NAMES AND HAVE BEEN
 AND ARE NOT SUPERVISORS AND MANAGEMENT OFFICIALS OF THE RESPONDENT
 WITHIN THE MEANING OF 5 USC 7103(A)(10) AND (11) AND ARE AGENTS OF
 RESPONDENT AT ITS ST. AUGUSTINE, FLORIDA LOCATION:
 
    K. C. BULLARD -- MAJOR GENERAL, COMMANDER
 
                          FLORIDA NATIONAL GUARD
 
    C. M. MCCORMICK, JR. -- COLONEL, SS, FLARING
 
                       TECHNICIAN PERSONNEL OFFICER
 
    6.  ON NOVEMBER 29, 1979, THE FEDERAL SERVICE IMPASSES PANEL ISSUES
 ITS REPORT AND RECOMMENDATION IN CASE NO. 78 FSIP 100 INVOLVING
 RESPONDENT AND UNION HEREIN IN WHICH IT MADE THE FOLLOWING SETTLEMENT
 RECOMMENDATIONS TO THE PARTIES:
 
    1.  THE WEARING OF THE MILITARY UNIFORM
 
    A.  THE PARTIES SHOULD ADOPT LANGUAGE IN THEIR AGREEMENT AFFORDING
 INDIVIDUAL EMPLOYEES,
 
    WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, THE DAILY 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 OBTAINED BY EMPLOYEES WHO CHOOSE
 TO WEAR IT.
 
    B.  THE PARTIES SHOULD AGREE UPON EXCEPTIONS TO COVER THOSE
 CIRCUMSTANCES AND OCCASIONS FOR
 
    WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED.
 
    7.  ON JANUARY 29, 1980, THE FSIP ISSUED ITS DECISION AND ORDER IN
 CASE NO. 78 FSIP 100 INVOLVING RESPONDENT AND UNION HEREIN IN WHICH IT
 ORDERED THE PARTIES TO ADOPT IN THEIR COLLECTIVE BARGAINING AGREEMENT
 THE RECOMMENDATIONS OF THE FSIP AS CONTAINED IN ITS REPORT AND
 RECOMMENDATIONS IN CASE NO. 78 FSIP 100, WHICH RECOMMENDATIONS ARE SET
 FORTH ABOVE IN PARAGRAPH 6.
 
    8.  ON OR ABOUT FEBRUARY 20, 1980, RANDY J. COHEN, ATTORNEY FOR THE
 UNION, WROTE COLONEL MCCORMICK REQUESTING NEGOTIATIONS CONCERNING
 COMPLIANCE WITH THE JANUARY 29, 1980 FSIP DECISION AND ORDER.
 RESPONDENT ON OR ABOUT FEBRUARY 29, 1980 BY IT SUPERVISOR, MANAGEMENT
 OFFICIAL AND AGENT TECHNICIAN PERSONNEL OFFICER COLONEL C. M. MCCORMICK,
 JR., INFORMED IN WRITING MR. HOWARD W. SOLOMON, EXECUTIVE DIRECTOR,
 FSIP, WITH A COPY TO THE UNION, THAT RESPONDENT WAS REJECTING THE FSIP'S
 DECISION AND ORDER IN CASE NO. 78 FSIP 100 AND WOULD NOT COMPLY WITH IT.
  THE PERTINENT PART OF THAT LETTER IS QUOTED BELOW.
 
    "THE PANEL DECISION AND ORDER HAS BEEN CAREFULLY REVIEWED, AND IT
 APPEARS THAT MANAGEMENT IS IN THE UNTENABLE POSITION OF BEING PUT IN
 VIOLATION OF ITS LAWFUL MILITARY REQUIREMENTS, IF THE BASIC ISSUE
 INVOLVED IS NOT OTHERWISE RESOLVED.  THE AUTHORITY FOR WEAR OF THE
 MILITARY UNIFORM FLOWS FROM STATUTORY REQUIREMENT UNDER THE UNITED
 STATES CODE, WHICH PRESCRIBES THE WEAR AND USE OF THE MILITARY UNIFORM,
 UNDER APPROPRIATE REGULATIONS OF THE SECRETARY OF DEFENSE.  THE IMPASSE
 IS NOT BETWEEN LABOR AND MANAGEMENT, BUT ARISES FROM COMPLIANCE WITH
 MISSION ESSENTIAL REQUIREMENTS OF THE NATIONAL GUARD.
 
    IT IS FURTHER SUBMITTED THAT THE ISSUE IS ONE WHICH LEAVES NO AVENUE
 OF SETTLEMENT OR NEGOTIATION OPEN TO THE FLORIDA NATIONAL GUARD.  THE
 UNIFORM WEAR IS AN INTEGRAL PART OF THE MISSION OF NATIONAL GUARD
 PERSONNEL, AND IT IS NOT APPROPRIATE FOR THE AUTHORITY TO COMPEL
 REQUIREMENTS INCOMPATIBLE WITH THE FUNCTION AND MISSION OF THE NATIONAL
 GUARD.
 
    THE FLORIDA NATIONAL GUARD HAS THEREFORE CONCLUDED THAT COMPLIANCE
 WITH THE PANEL'S DECISION AND ORDER CANNOT BE INITIATED IN GOOD
 CONSCIENCE AS IT RELATES TO THE UNIFORM ISSUE.  IN VIEW OF THIS
 CONCLUSION, AND THE FACT THAT NO AVENUE OF REVIEW OR APPEAL EXISTS, THIS
 HEADQUARTERS MUST RESPECTFULLY REJECT THE PANEL'S DECISION . . . ."
 
    A COPY OF THIS FEBRUARY 29, 1980, LETTER OF COLONEL MCCORMICK
 REFUSING COMPLIANCE WITH THE PANEL'S DECISION AND ORDER WAS SENT SO MR.
 COHEN IN RESPONSE TO HIS FEBRUARY 20, 1980 REQUEST FOR COMPLIANCE
 NEGOTIATIONS WITH REGARD TO THE PANEL'S DECISION AND ORDER.
 
    9.  SINCE ON OR ABOUT FEBRUARY 29, 1980 AND CONTINUING TO DATE,
 RESPONDENT HAS AT ITS ST. AUGUSTINE, FLORIDA LOCATION, IN VIOLATION OF 5
 USC 7116(A)(1) AND (6) FAILED AND REFUSED AND CONTINUES TO FAIL AND
 REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND DECISIONS BY REFUSING TO
 COMPLY WITH AND REJECTING THE FSIP DECISION AND ORDER IN CASE NO. 78
 FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8.
 
    10.  SINCE ON OR ABOUT FEBRUARY 29, 1980 AND AT ALL TIMES THEREAFTER,
 RESPONDENT HAS, AT ITS ST. AUGUSTINE, FLORIDA LOCATION, IN VIOLATION OF
 5 USC 7116(A)(1) AND (8), FAILED AND REFUSED AND CONTINUES TO FAIL AND
 REFUSE TO COMPLY WITH THE PROVISIONS OF 5 USC 7119(C)(5)(C) BY FAILING
 AND REFUSING AND CONTINUING TO FAIL AND REFUSE TO ADOPT IN THEIR
 AGREEMENT WITH THE UNION THE BINDING LANGUAGE OF THE FSIP DECISION AND
 ORDER IN CASE NO. 78 FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND
 8.
 
    11.  SINCE ON OR ABOUT FEBRUARY 29, 1980 AND AT ALL TIMES THEREAFTER
 RESPONDENT DID REFUSE AND CONTINUES TO REFUSE TO BARGAIN IN FOOD FAITH
 WITH THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE
 UNITS DESCRIBED ABOVE IN PARAGRAPH 2 IN THAT RESPONDENT FAILED AND
 REFUSED AND CONTINUES TO FAIL AND REFUSE TO NEGOTIATE IN GOOD FAITH THE
 REQUIREMENTS OF THE LANGUAGE AND ADOPT IN THEIR AGREEMENT WITH THE UNION
 THE REQUIREMENTS OF THE FSIP DECISION AND ORDER IN CASE NO. 78 FSIP 100
 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8 AS PART OF ITS FINAL
 RESOLUTION OF THE IMPASSE BETWEEN THE RESPONDENT AND THE UNION.
 
                          DISCUSSION AND ANALYSIS
 
    THE PERTINENT STATUTORY PROVISIONS INVOLVED IN THIS PROCEEDING ARE AS
 FOLLOWS:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    "(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    "(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;  . . .
 
    "(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
 ORGANIZATION AS REQUIRED
 
    BY THIS CHAPTER;
 
    "(6) TO FAIL OR REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND IMPASSE
 DECISIONS AS REQUIRED
 
    BY THIS CHAPTER;  . . .
 
    "(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    IN ADDITION, SECTION 7119(C)(5)(C) OF THE STATUTE PROVIDES THAT:
 
    NOTICE OF ANY FINAL ACTION OF THE PANEL UNDER THIS SECTION SHALL BE
 PROMPTLY SERVED UPON
 
    THE PARTIES, AND THE ACTION SHALL BE BINDING ON SUCH PARTIES DURING
 THE TERM OF THE AGREEMENT,
 
    UNLESS THE PARTIES AGREE OTHERWISE.
 
    ALTHOUGH THE AUTHORITY'S NEW YORK AND CALIFORNIA DECISIONS (CITED
 HEREIN IN PARAGRAPH 2) WERE NOT UNFAIR LABOR PRACTICE PROCEEDINGS, IT IS
 SIGNIFICANT THAT THE AUTHORITY REFERRED TO THE FOLLOWING LEGISLATIVE
 HISTORY (H.REP.NO. 95-1403, JULY 31, 1978, AT 54-55) AND ITSELF ADDED
 EMPHASIS TO A PORTION THEREOF:
 
    NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED UPON
 THE PARTIES, AND THE
 
    ACTION IS FINAL AND BINDING UPON THE PARTIES DURING THE TERM OF THE
 AGREEMENT, UNLESS THE
 
    PARTIES AGREE OTHERWISE.  FINAL ACTION OF THE PANEL UNDER THIS
 SECTION IS NOT SUBJECT TO
 
    APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION ORDERED BY THE
 PANEL CONSTITUTES AN UNFAIR
 
    LABOR PRACTICE BY AN AGENCY UNDER SECTION 7116(1)(6) AND (8) OR A
 LABOR ORGANIZATION UNDER
 
    SECTION 7116(B)(6) AND (8).
 
    THE FOREGOING LANGUAGE OF THE AUTHORITY COMPELS ME TO THE FOLLOWING
 CONCLUSIONS:  A FINAL ACTION OF THE FSIP IS BINDING UPON THE PARTIES AND
 IS NOT SUBJECT TO COLLATERAL ATTACK IN AN UNFAIR LABOR PROCEEDING;
 RATHER, THE ONLY ISSUE BEFORE ME IS RESPONDENT'S COMPLIANCE WITH THAT
 DECISION.  THERE BEING NO DISPUTE ABOUT RESPONDENT'S NON-COMPLIANCE, I
 AM CONSTRAINED TO FIND A VIOLATION OF SECTION 7116(A)(6) AND (8).  /6/
 FURTHER, BY REJECTING THE STATUTORY PROCEDURE ENACTED TO RESOLVE IMPASSE
 DISPUTES, RESPONDENT HAS INTERFERED WITH THE RIGHTS OF EMPLOYEES IN
 VIOLATION OF SECTIONS 7116(A)(1).  /7/
 
    A NEW ISSUE PRESENTED IN THE INSTANT PROCEEDING IS WHETHER RESPONDENT
 REFUSED TO "CONSULT OR NEGOTIATE" AS REQUIRED BY THE STATUTE.  IN
 VETERAN'S ADMINISTRATION, SALEM, VIRGINIA, 1 FLRA NO. 101(AUGUST 21,
 1979) THE AUTHORITY HELD THAT THE REFUSAL TO NEGOTIATE ON AN ISSUE AFTER
 THE ISSUE HAD BEEN DETERMINED TO BE NEGOTIABLE BY THE PROCESSES UNDER
 THE EXECUTIVE ORDER, CONSTITUTES AN UNFAIR LABOR PRACTICE PURSUANT TO
 SECTIONS 19(A)(1) AND (6) OF THE ORDER.  IN THAT CASE, RESPONDENT
 REFUSED TO BARGAIN OVER AN ISSUE DEEMED NEGOTIABLE BY THE FLRC, PENDING
 RESPONDENT'S REQUEST TO THE UNITED STATES ATTORNEY GENERAL FOR AN
 OPINION AS TO THE RESPONSIBILITY OF RESPONDENT TO ABIDE BY A
 NEGOTIABILITY DETERMINATION OF THE FLRC WHICH WAS ALLEGEDLY CONTRARY TO
 THE AGENCY'S REGULATIONS.  THE AUTHORITY DETERMINED THAT RESPONDENT'S
 ACTIONS IN HOLDING NEGOTIATIONS IN ABEYANCE PENDING REFERRAL OF A
 REQUEST FOR AN OPINION OF THE U.S. ATTORNEY GENERAL FOR REVIEW DOES NOT
 RELIEVE RESPONDENT OF ITS OBLIGATION TO BARGAIN.
 
    ACCORDINGLY, IF IN VETERAN'S ADMINISTRATION, SALEM, VIRGINIA, SUPRA,
 IT WAS HELD BY THE AUTHORITY THAT RESPONDENT'S REFUSAL TO BARGAIN OVER
 AN ISSUE DETERMINED TO BE NEGOTIABLE BY THE PROCEDURES PROVIDED FOR
 DETERMINING SUCH NEGOTIABILITY, WAS VIOLATIVE OF SECTIONS 19(A)(1) AND
 (6) OF THE ORDER, THEN I AGREE WITH THE GENERAL COUNSEL THAT IN THE
 INSTANT CASE, A FORTIORI, RESPONDENT'S REFUSAL TO BARGAIN, UPON REQUEST
 BY THE UNION, OVER COMPLIANCE WITH A DECISION AND ORDER OF THE FSIP IS
 ALSO VIOLATIVE OF SECTION 7116(A)(1) NAD (5) /8/
 
    RESPONDENT ATTEMPTS TO DEFEND ITS REJECTION OF AND REFUSAL TO COMPLY
 WITH THE FSIP'S DECISION AND ORDER, IN ESSENCE, BY ASSERTING THAT:  THE
 FSIP HAS NO JURISDICTION TO RULE ON A MATTER OF "PURELY MILITARY
 CONCERN", I.E., THE WEARING OF THE MILITARY UNIFORM;  THE WEARING OF THE
 MILITARY UNIFORM IS A NON-NEGOTIABLE ISSUE;  AND THE FSIP ERRED IN ITS
 DECISION AND ORDER.  I AGREE WITH THE GENERAL COUNSEL THAT THE ABOVE
 DEFENSES HAVE BEEN RAISED IN THE PAST BY VARIOUS RESPONDENT NATIONAL
 GUARDS UNITS IN SIMILAR CIRCUMSTANCES AND HAVE BEEN UNIFORMLY FOUND
 NON-MERITORIOUS.  WITH REGARD TO SAID DEFENSES RAISED BY RESPONDENT, THE
 FEDERAL LABOR RELATIONS COUNCIL (FLRC) IN NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCAL R14-87 AND KANSAS NATIONAL GUARD (AND OTHER
 CASES CONSOLIDATED THEREWITH), FLRC NO. 76A-16, 5 FLRC 124(1977),
 RECONSIDERATION DENIED 5 FLRC 336(1977) FOUND, IN PERTINENT PART, THAT
 THE ISSUE OF THE WEARING OF THE MILITARY UNIFORM BY CIVILIAN TECHNICIANS
 WAS NEGOTIABLE.  ACCORDINGLY, I REJECT RESPONDENT'S DEFENSES, AND I
 REAFFIRM ANY RULING AT THE HEARING DENYING ITS MOTION TO DISMISS.
 
    IN CONCLUSION, THE RECORD DEMONSTRATES THAT RESPONDENT HAS FAILED AND
 REFUSED TO COMPLY AND COOPERATE WITH A FINAL DECISION AND ORDER OF THE
 FEDERAL SERVICES IMPASSES PANEL, IN VIOLATION OF 5 U.S.C. SEC.
 7116(A)(6) AND (8), HAS FAILED AND REFUSED TO CONSULT AND NEGOTIATE WITH
 THE UNION CONCERNING THE IMPLEMENTATION OF THE PANEL'S FINAL DECISION
 AND ORDER, IN VIOLATION OF 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 5 U.S.C. 7116(A)(1).  TO REMEDY THESE VIOLATIONS, I
 RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND SECTION 2423.29 OF THE
 RULES AND REGULATIONS THE FEDERAL LABOR RELATIONS AUTHORITY HEREBY
 ORDERS THAT THE FLORIDA NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND
 ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE
 MILITARY UNIFORM" OR IN ANY MANNER FAILING OR REFUSING TO COOPERATE IN
 IMPASSE DECISIONS OR PROCEDURES.
 
    (B) REFUSING TO ADOPT THE FOLLOWING LANGUAGE IN THEIR COLLECTIVE
 BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120:
 
    INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, SHALL HAVE THE
 
    DAILY 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
 OBTAINED BY EMPLOYEES
 
    WHO CHOOSE TO WEAR IT.
 
    (C) FAILING AND REFUSING TO MEET AND NEGOTIATE IN GOOD FAITH WITH THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND
 R5-120 CONCERNING "THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE
 WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED", AND TO INCORPORATE THE
 RESULTS OF SUCH NEGOTIATIONS IN THEIR COLLECTIVE BARGAINING AGREEMENT.
 
    (D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) COOPERATE WITH THE FEDERAL SERVICE IMPASSES PANEL BY COMPLIANCE
 FORTHWITH WITH ITS DECISION AND ORDER ISSUED ON JANUARY 29, 1980.
 
    (B) MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCALS R5-91, R5-107 AND R5-120 AND NEGOTIATE IN GOOD FAITH CONCERNING
 MATTERS PERTAINING TO THE IMPLEMENTATION OF THE DECISION AND ORDER OF
 THE FEDERAL SERVICES IMPASSES PANEL ISSUED JANUARY 29, 1980.
 
    (C) POST AT ITS FACILITIES IN FLORIDA 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 AN AUTHORIZED
 REPRESENTATIVE, 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.  REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
 NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
 
    (D) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, 1776 PEACHTREE STREET,
 N.W., SUITE 501, NORTH WING, ATLANTA, GEORGIA, 30309, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
                        FRANCIS E. DOWD
                        ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 13, 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 HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND ORDER
 OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE MILITARY
 UNIFORM" AND COOPERATE WITH IMPASSE DECISIONS AND PROCEDURES.
 
    WE WILL ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING
 AGREEMENT WITH NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
 R5-91, R5-107 AND R5-120:
 
    INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
 DUTIES, SHALL HAVE THE
 
    DAILY 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
 OBTAINED BY EMPLOYEES
 
    WHO CHOOSE TO WEAR IT.
 
    WE WILL MEET AND NEGOTIATE IN GOOD FAITH WITH NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 AND INCORPORATE
 INTO OUR COLLECTIVE BARGAINING AGREEMENT, THOSE AGREED-UPON
 CIRCUMSTANCES AND OCCASIONS FOR WHICH "WEARING OF THE MILITARY UNIFORM"
 MAY BE REQUIRED.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
                           (ACTIVITY OR AGENCY)
 
    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 4, WHOSE
 ADDRESS IS:  1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
 ATLANTA, GEORGIA 30309.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN THIS CONNECTION, THE RESPONDENT HAS ADVANCED NO BASIS
 SUFFICIENT TO WARRANT CONSIDERATION BY THE AUTHORITY OF FACTUAL
 ARGUMENTS NOT PREVIOUSLY RAISED BEFORE THE FEDERAL SERVICE IMPASSES
 PANEL.
 
    /2/ HOWEVER, THE AFFIRMATIVE ACTION PORTION OF THE JUDGE'S
 RECOMMENDED ORDER IS MODIFIED HEREIN SPECIFICALLY TO REQUIRE THE
 RESPONDENT TO COMPLY WITH THE DIRECTIVES OF THE FEDERAL SERVICE IMPASSES
 PANEL BY INCLUDING PARTICULAR LANGUAGE IN ITS COLLECTIVE BARGAINING
 AGREEMENT WITH THE CHARGING PARTY AND BY NEGOTIATING WITH THE CHARGING
 PARTY CONCERNING REL