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

 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 Affairs, State of New York, Albany,
 New York, 15 FLRA No. 65 (1984), wherein the Authority found that the
 determination by the National Guard Bureau that technicians must wear
 the military uniform while performing technician duties constitutes
 management's choice of the "methods, and means of performing work"
 within the meaning of section 7106(b)(1) of the Statute.  For the
 reasons expressed in State of New York the Authority finds that the
 failure of the Respondent to cooperate in the final decision and order
 of the Panel did not constitute a violation of section 7116(a)(1) and
 (6) of the Statute.
 
                                 ORDER /6/
 
    IT IS ORDERED that the complaint in Case No. 4-CA-407 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., August 31, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Florida National Guard and National Association of Government
 Employees, Locals R5-91, R5-107, R5-120, 9 FLRA 347 (1982).
 
 
    /2/ Florida National Guard, St. Augustine, Florida, and Locals R5-91,
 R5-107 and R5-120, National Association of Government Employees, Case
 No. 78 FSIP 100 (1980).
 
 
    /3/ The National Guard Bureau, on behalf of the Respondent, filed a
 consolidated response which included affidavits from the Adjutants
 General of several states and the Charging Party filed its statements of
 position.  The General Counsel of the Authority also filed a single
 statement of position in this case.
 
 
    /4/ The Charging Party filed a motion to strike affidavits from the
 Adjutants General of several states which, as indicated above, were
 submitted by the National Guard Bureau on behalf of the Respondent.  The
 motion is denied, however the affidavits were only considered to the
 extent that they related to section 7106(b)(1) of the Statute.  See
 State of New York at 3.
 
    The National Guard Bureau's motion that a hearing before an
 Administrative Law Judge be conducted is denied since the additional
 submissions of the parties have established a full record upon which the
 Authority can decide the issue, as set forth in the Authority's Notice
 of Reopened Proceedings and Request for Statements of Position.
 
 
    /5/ See, e.g., Respondent's brief before the Administrative Law Judge
 in Case No. 4-CA-407 at 8-13 where Respondent argued in effect that
 there is a direct and integral relationship between the uniform wearing
 requirement and the furtherance of the overall mission of the National
 Guard.
 
 
    /6/ This Order shall supersede our earlier Order in this matter.