15:0896(168)CA - Florida Air NG and NAGE Locals R5-91, R5-107 and R5-120 -- 1984 FLRAdec CA



[ v15 p896 ]
15:0896(168)CA
The decision of the Authority follows:


 15 FLRA No. 168
 
 FLORIDA AIR NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
 LOCALS R5-91, R5-107 and R5-120
 Charging Party
 
                                            Case No. 4-CA-407
                                                   9 FLRA 347
 
                      DECISION AND ORDER UPON REMAND
 
    This proceeding is before the Authority upon remand by the U.S. Court
 of Appeals for the Eleventh Circuit.  This case was before the court on
 petition for review of a Decision and Order of the Authority /1/ in
 which the Respondent had been found to have violated section 7116(a)(1)
 and (6) of the Federal Service Labor-Management Relations Statute (the
 Statute) by its refusal to cooperate in a final decision and order of
 the Federal Services Impasses Panel (the Panel) /2/ which involved the
 attire to be worn by National Guard technicians when performing civilian
 technician duties.  Inasmuch as the circumstances involved in this case
 are similar in all relevant and material respects to those in Division
 of Military and Naval Affairs, State of New York, Albany, New York, 8
 FLRA 158, remanded sub nom. State of New York v. FLRA, 696 F.2d 202 (2d
 Cir. 1982), the Authority upon remand of State of New York requested,
 and the court ordered, remand of the instant case.  Pursuant to the
 court's remand, the Authority issued a "Notice of Reopened Proceedings
 and Request for Statements of Position" with respect to the issue of
 whether the attire which National Guard technicians wear while engaged
 in their daily duties as civilian technicians is a matter which is
 negotiable only at the election of the agency pursuant to section
 7106(b)(1) of the Statute.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, /3/ the Authority makes the following
 determinations.  /4/
 
    As a preliminary matter, the Charging Party claims that the
 Respondent has waived its right to argue that the uniform is a
 management right by not raising it on a timely basis.  This contention
 cannot be sustained.  Throughout these proceedings the Respondent has
 consistently maintained that the uniform requirement was nonnegotiable
 using arguments which would support a determination that the uniform
 wearing requirement constitutes the "methods and means of performing
 work" within the meaning of section 7106(b)(1) of the Statute.  /5/
 
    Turning to the merits, the Authority finds that the facts and
 positions of the parties involved herein are substantially similar to
 those set forth in the Authority's Decision and Order Upon Remand issued
 in Division of Military and Naval Af