15:0658(134)CA - Oklahoma Army NG, Oklahoma City, OK and NFFE Local 1694 -- 1984 FLRAdec CA



[ v15 p658 ]
15:0658(134)CA
The decision of the Authority follows:


 15 FLRA No. 134
 
 OKLAHOMA ARMY NATIONAL GUARD
 OKLAHOMA CITY, OKLAHOMA
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1694
 Charging Party
 
                                            Case No. 6-CA-20160
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, granting the General Counsel's Motion for
 Summary Judgment, finding that the Respondent had engaged in certain
 unfair labor practices alleged in the complaint 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.
 
    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.  Upon consideration of the
 Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendations only
 to the extent consistent herewith.
 
    The Judge concluded that the Respondent violated section 7116(a)(1)
 and (6) of the Statute by its failure and refusal to comply with the
 final decision and order of the Federal Service Impasses Panel (the
 Panel).  The Panel's decision and order required the parties to adopt
 language in their collective bargaining agreement providing National
 Guard technicians with the day-to-day option of wearing a military
 uniform or agreed-upon civilian attire.  /1/ Subsequent to the issuance
 of the Judge's Decision, the Authority issued its Decision and Order
 upon Remand in Division of Military and Naval Affairs, State of New
 York, Albany, New York, 15 FLRA No. 65 (1984), in which it held that the
 determination by the National Guard Bureau that technicians must wear
 the military uniform while performing technician duties constitutes
 management's choice of a "methods, and means of performing work" within
 the meaning of section 7106(b)(1) of the Statute and thus was not within
 the duty to bargain.  Consequently, the Authority found that the failure
 of the Respondent to cooperate in the final decision and order of the
 Panel was not violative of section 7116(a)(1) and (6) of the Statute.
 Based on this rationale as expressed more fully in State of New York,
 the Authority finds that the failure of the Respondent Oklahoma National
 Guard to comply with the final decision and order of the Federal Service
 Impasses Panel did not constitute a violation of section 7116(a)(1), (5)
 and (6) of the Statute.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CA-20160 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., August 28, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    James E. Dumerer, Esq.
    For the General Counsel
 
    Edgar L. Carlson
    For the Respondent
 
    Before:  ELI NASH, JR.
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., (hereinafter
 called the Statute), as a result of an unfair labor practice Complaint
 and Notice of Hearing issued on July 22, 1982 by the Regional Director,
 Region VI, Federal Labor Relations Authority (hereinafter called the
 Authority), Dallas, Texas.
 
    The Complaint alleges that the Oklahoma Army National Guard, Oklahoma
 City, Oklahoma (herein called Respondent) failed and refused to bargain
 in good faith with the National Federation of Federal Employees, Local
 1694 (herein called the Union) and failed and refused to cooperate in
 impasse procedures and impasse decision in violation of section
 7116(a)(1), (5) and (6) of the Statute.
 
    On August 12, 1982, Respondent filed its Answer to the aforesaid
 Complaint, which Answer admits the allegations contained in paragraphs
 1, 2, 3, 4, 5 and 6(a) of the Complaint.  Thereafter on October 7, 1982,
 the General Counsel filed a Motion for Summary Judgment, alleging, in
 essence, that all material factual allegations of the Complaint were
 admitted, that no litigable issues remained and that the admitted facts
 were sufficient to establish a violation of the Statute.  On October 15,
 1982, the Chief Administrative Law Judge issued his Order requiring
 responses to the General Counsel's Motion for Summary Judgment be served
 by November 1, 1982, and that all parties serve any additional
 statements or Memoranda of Law on or before November 15, 1982.  On that
 same day, October 15, 1982, Respondent filed its Cross Motion for
 Summary Judgment, which essentially admitted that there were no material
 factual disputes and alleging that the Complaint failed to state a
 violation of the Statute and, therefore, should be dismissed.  Both
 Respondent and the General Counsel filed briefs in the matter.
 
    It has long been settled 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.  Cf. Fed. R. Civ. p. 56;
 Lyons v. Board of Education, Charleston Reorganized School District
 Number 1 of Miss. City, Mo., 523 F.2d 430, 347 (8 Cir., 1975).  The
 Rules and Regulations of the Authority also specifically authorize the
 use of Motions for Summary Judgment in the litigation of unfair labor
 practice charges under the Statute.  See 5 C.F.R. 2423.19(k) (1980).
 Moreover, motions in the nature of Motions for Summary Judgment are
 deemed appropriate under the Administrative Procedure Act.  See, e.g.,
 Municipal Lightboards of Reading and Wakefield, Mass. v. Federal Power
 Commission, 450 Fed.2d 1341, 1345-1346 (D.C. Cir., 1971), Cert. denied,
 405 U.S. 989 (1972).
 
    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 these
 circumstances, the required hearing under the Statute may consist wholly
 of an opportunity to present written argument.  See F. Davis,
 Administrative Law Treatise, 2d Edition, Sections 12.1, 12.10 (1979).
 See also Section 12.1, at p. 406;  Internal Revenue Service, A/SLMR No.
 897, 7 A/SLMR 782 (1977).  The parties have been afforded such an
 opportunity and did, as previously noted, filed briefs in this matter.
 
                             Findings of Fact
 
    The material admitted facts are as follows:
 
    1.  Respondent is an agency within the meaning of 5 U.S.C.
 7103(a)(3).
 
    2.  The Union is a labor organization within the meaning of 5 U.S.C.
 7103(a)(4).
 
    3.  The Union is recognized by Respondent as the exclusive
 representative for employees in an appropriate bargaining unit.
 
    4.  Since on or about November 3, 1981, Respondent has failed and
 refused to adopt contract language and to take other affirmative action
 directed by the final decision of the Federal Service Impasses Panel
 (hereinafter called the Panel) in Case No. 81 FSIP 142.  That decision
 issued on November 3, 1981, sets out the following Union proposal:
 
          Technicians will have the day-to-day option of wearing a
       military uniform or street clothes of his choosing.  While working
       in civilian clothes the only appearance requirement will be that
       such clothing will be of a safe nature and provide adequate
       protection from sparks, chips, and spills of irritating liquids,
       this will eliminate the wear of shorts, tank tops, and sleeveless
       shirts.  While working in a military uniform appearance will be
       within military guidelines.  The employer will furnish all safety
       items of apparel to include safety shoes, parkas, rain suits,
       flight suits, and other foul weather gear and safety related
       items.
 
    The Panel ordered that the parties to adopt the Union's proposal as
 amended to provide that the street attire be neat, clean, and in good
 condition as might be reasonably expected under various working
 conditions.  In addition, it ordered further negotiations concerning the
 circumstances and occasions for which the wearing of the military
 uniform may still be required.
 
    5.  On December 22, 1981, the Panel denied Respondent's request for
 reconsideration of the matter.
 
    6.  Since that time Respondent has not negotiated with the exclusive
 representative concerning the uniform issue nor has it taken the action
 directed by the Panel.
 
                        Discussion and Conclusions
 
    Respondent, in its brief contends that its choosing to collaterally
 attack the Panel's Decision and Order constitutes neither an
 interference with employee rights nor interferences with the collective
 bargaining process.
 
    The General Counsel argues merely that the essential admitted facts
 including Respondent's recognition of the Union as the exclusive
 representative of the bargaining unit, the Panel's Decision and Order
 directing Respondent to adopt certain language, and its failure since
 November 3, 1981 (sic) to carry out the negotiations required by the
 Panel's Decision and Order constitutes a violation of the Statute.
 
    The Authority has repeatedly held that the failure and refusal to
 comply with a Final Decision and Order of the Panel constitutes a
 violation of the Statute.  Kentucky National Guard and National
 Association of Government Employees, Local RS-100, 4 FLRA No. 73 (1981);
  State of Nevada National Guard, 7 FLRA No. 37 (1981) appeal docketed
 No. 82-7034 (9th Circuit, January 18, 1982);  State of California
 National Guard, 8 FLRA No. 11 (1982);  Division of Military and Naval
 Affairs, State of New York, 8 FLRA No. 33 (1982);  Military Department,
 State of Oregon Army and Air National Guard, Salem, Oregon, 8 FLRA No.
 107 (1982);  Puerto Rico Air National Guard, 8 FLRA No. 99 (1982);
 Florida National Guard and Locals R5-91, R5-107, R5-120, 9 FLRA 41
 (1982).
 
    Most of the above cited cases involved collateral attacks on the
 decision of the Panel.  It is also noted that the uniform issue involved
 in this matter was also at issue in several of the above cases.  /2/ At
 this point, the Authority has not found sufficient basis to overturn a
 decision of the Panel where the uniform issue was concerned.  I agree
 with the General Counsel that Respondent's submission indicates no
 precedent for allowing such an attack in an unfair labor practice
 proceeding before the Authority, and in light of its previous rulings
 where similar collateral attacks were involved, no such attack can be
 sustained in this forum.  /3/
 
    Accordingly, since Respondent admittedly has failed and refused to
 comply with the Decision and Order of the Federal Service Impasses Panel
 in Case No. 81 FSIP 142, which, according to past decisions of the
 Authority was not contrary to law, I find that Respondent by such action
 violated section 7116(a)(1) and (6) and independently violated section
 7116(a)(1) of the Statute.  /4/
 
    Having found and concluded that Respondent violated section
 7116(a)(1) and (6) of the Statute, I recommend that the General
 Counsel's Motion for Summary Judgment be granted, that Respondent's
 Cross-Motion for Summary Judgment be denied and, that the Authority
 issue the following:
 
                                   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 Oklahoma Army National Guard, Oklahoma City,
 Oklahoma shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to comply and cooperate with the
       Decision and Order of the Federal Service Impasses Panel issued in
       Case No. 81 FSIP 142.
 
          (b) 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) Comply and cooperate with the Decision and Order of the
       Federal Service Impasses Panel issued in Case No. 81 FSIP 142.
 
          (b) 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 Adjutant
       General, Oklahoma Army National Guard, and shall be posted and
       maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  The Adjutant
       General shall take reasonable steps to insure that such notices
       are not altered, defaced, or covered by any other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and