16:0561(79)CA - Minnesota Army NG, The Adjutant General, State of Minnesota, St. Paul, MN and ACT, Tony Kempenich Memorial Chapter -- 1984 FLRAdec CA



[ v16 p561 ]
16:0561(79)CA
The decision of the Authority follows:


 16 FLRA No. 79
 
 MINNESOTA ARMY NATIONAL GUARD
 THE ADJUTANT GENERAL, STATE OF
 MINNESOTA, ST. PAUL, MINNESOTA
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 INC., TONY KEMPENICH MEMORIAL CHAPTER
 Charging Party
 
                                            Case No. 5-CA-944
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his 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, and recommending that the Respondent be ordered
 to cease and desist therefrom and take certain affirmative action.
 Thereafter, the Respondent and the General Counsel 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 and finds that no prejudicial error was committed.  The rulings
 are hereby affirmed.  Upon consideration of the Judge's Decision and the
 entire record, 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),
 (6) and (8) of the Statute by its failure and refusal to comply with the
 final decision and order of the Federal Service Impasses Panel (the
 Panel) in Case No. 78 FSIP 59(b).  The Panel's decision and order
 required the parties to adopt language in their collective bargaining
 agreement which would provide General Schedule National Guard
 technicians with the day-to-day option of wearing a military uniform or
 agreed-upon civilian attire.  Subsequent to the issuance of the Judge's
 Decision, the Authority issues 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 Minnesota Army
 National Guard to comply with the final decision and order of the Panel
 in Case No. 78 FSIP 59(b) did not constitute a violation of section
 7116(a)(1), (6) and (8) of the Statute.  Oklahoma Army National Guard,
 Oklahoma City, Oklahoma, 15 FLRA No. 134 (1984).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-944, be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., November 19, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    MINNESOTA ARMY NATIONAL GUARD
    THE ADJUTANT GENERAL, STATE OF
    MINNESOTA, ST. PAUL, MINNESOTA
                                Respondent
 
    and
 
    ASSOCIATION OF CIVILIAN TECHNICIANS,
    INC., TONY KEMPENICH MEMORIAL
    CHAPTER
                              Charging Party
 
                                       Case No.: 5-CA-944
 
 
 
 
 
 
    Captain Jon C. Cieslak, Esq.
    For the Respondent
 
    Judith A. Ramey, Esq.
    For the General Counsel
 
    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 April 30, 1981 by the Regional Director,
 Region 5, Federal Labor Relations Authority, Chicago, Illinois.
 
    The Complaint alleges in substance that the Minnesota Army National
 Guard, The Adjutant General, State of Minnesota, St. Paul, Minnesota,
 (herein called Respondent), failed and refused to bargain in good faith
 with the Association of Civilian Technicians, Inc., Tony Kempenich
 Memorial Chapter, (herein called the Union) by failing and refusing to
 bargain in good faith and failing or refusing to cooperate in Federal
 Service Impasses Panel (herein called the Panel) decisions.
 
    On May 22, 1981 the Respondent filed its Answer denying the
 commission of any unfair labor practices but, admitting that it had
 declined to implement the Decision and Order of the Panel for the
 purpose of seeking administrative and judicial review of the Decision
 and Order of the Panel.
 
    A hearing was scheduled for June 22, 1981 and postponed to July 29,
 1981.  Prior to the scheduled hearing date, on July 13, 1981 the General
 Counsel filed a Motion for Summary Judgment.  Pursuant to the Rules and
 Regulations the Chief Administrative Law Judge postponed the scheduled
 hearing and an Order was issued under his name setting a briefing
 period.
 
    On August 3, 1981 Respondent filed a response to the Motion, a
 Statement of Material Facts and Defenses in Opposition to the Motion and
 Cross Motion for Summary Judgment.  Respondent reiterated that it had
 not failed to negotiate in good faith, stating that it had no purpose in
 declining to implement the Panel Decision and Order other than to obtain
 administrative review in good faith.  Respondent failed to raise any new
 areas of factual dispute.  Thereafter, on August 13, 1981 the General
 Counsel filed a reply brief in support of Motion for Summary Judgment
 again alleging that there are no genuine issues of material fact and
 because the facts alleged and admitted constituted violations of section
 7116(a)(1), (5) and (6) of the Statute urged that the Motion for Summary
 Judgment be granted.  Subsequently on August 18 Respondent filed a
 Memorandum of Law in Opposition to the General Counsel's Motion for
 Summary Judgment and in support of its Cross Motion for Summary
 Judgment.
 
    It is well 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 Federal Labor Relations Authority (hereinafter called
 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 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 an opportunity
 for such replies in this matter.
 
    Upon consideration of the General Counsel's Motion for Summary
 Judgment, Respondent's reply thereto, and all the pleadings and
 exhibits, it appears that there is no genuine issue of material fact and
 that the General Counsel is entitled to Summary Judgment as a matter of
 law.  Accordingly, the General Counsel's Motion is granted and I make
 the following findings of fact, conclusions of law, and recommendations.
 
    These findings are essentially the same as proposed by the General
 Counsel in its Motion for Summary Judgment.
 
                             Findings of Fact
 
    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.  Since November 1975, Respondent and the Union have been parties
 to a collective bargaining agreement, which, by its terms, expired in
 November 1978.  Commencing in May, 1980, and continuing to date,
 Respondent and the Union have engaged in negotiations toward a new
 collective bargaining agreement.
 
    4.  Around September 23, 1980, Mr. Thomas J. Owsinski, on behalf of
 the Union wrote to the Panel requesting its assistance on the issue of
 civilian attire for bargaining unit employees.
 
    5.  On January 21, 1981, the Panel, in Case No. 78 FSIP 59(b), issued
 its Decision and Order directing the Respondent to take certain action
 regarding the issue of civilian attire for bargaining unit employees.
 
    6.  Thereafter on February 9, 1981, Respondent, through Colonel
 Robert L. Blevins, wrote the Union stating that it considered the
 Decision and Order in Case No. 78 FSIP 59(b) to be invalid and that
 meetings with the Union to discuss implementation "would seem
 inappropriate".
 
    7.  Subsequently on February 20, 1981, Colonel Blevins wrote the
 Panel stating that the Respondent had taken no action to implement the
 Decision and Order in Case No. 78 FSIP 59(b) and requesting that the
 Panel reconsider its Decision.  /1/
 
    8.  Also, on February 20, 1981, the Union filed a charge with the
 Regional Director, Region 5, alleging violations of 5 U.S. Code
 7116(a)(1), (2), (3), (5), (6) and (8).  Thereafter on April 27, 1981
 the Union filed an amended charge alleging violations of 5 U.S.C.
 7116(a)(1), (5) and (6).  The amended charge alleges that Respondent
 failed and refused to negotiate in good faith with the Union on the
 issue of civilian attire for bargaining unit employees and has failed
 and refused to cooperate in Panel procedures and Panel decisions as
 required by the Statute.
 
    9.  On April 30, 1981, the Complaint and Notice of Hearing herein was
 issued alleging that Respondent failed and refused, and continues to
 fail and refuse, to bargain in good faith with the Union and has failed
 and refused, and continues to fail and refuse, to cooperate in Panel
 Decisions in violation of 5 U.S.C. 7116(a)(1), (5) and (6).
 
    10.  Thereafter on May 22, 1981, Respondent filed its Answer
 admitting that the original charge and the amended charge were properly
 served upon it;  admitting that the Respondent maintains and operates a
 facility in St. Paul, Minnesota known as the Minnesota Army National
 Guard;  admitting that certain individuals alleged in the Complaint are
 supervisors or agents;  admitting that the Union requested the
 assistance of the Panel on the issue of civilian attire for bargaining
 unit employees;  and, admitting that Respondent has declined to
 implement the Decision and Order of the Panel in Case No. 78 FSIP 59(b).
  In its answer Respondent denied only that the Union, by its letter of
 September 23, 1980, requested assistance of the Panel on issues other
 than that of civilian attire for bargaining unit employees.  The General
 Counsel contended that the allegation denied by Respondent is not
 material to the case.  The General Counsel, therefore, requested that
 since all of the material allegations of the complaint had been admitted
 a Motion for Summary Judgment was appropriate unless the facts admitted
 were insufficient to constitute a violation of 5 U.S.C. 7116(a)(1), (5)
 and (6).
 
    11.  In its submissions, Respondent did not deny that it declined to
 implement the Decision and Order of the Panel but, contended that its
 refusal to abide by the Decision and Order was not unlawfully motivated
 but for the good faith reason of invoking the only apparent mechanism
 for review of that Decision and Order.  Respondent contends that the
 Authority has expressly acknowledged machinery for the review of such
 Decisions and Orders in New York Division of Military and Naval Affairs,
 2 FLRA 20 (1979).  There the Authority stated:
 
          It is clear, therefore, from the literal language of section
       7116 of the Statute and the intent of Congress as expressed in the
       related legislative history, under the Statute, Authority review
       of a final Panel Decision . . . may be sought by the party
       objecting to that order only after the filing of unfair labor
       practice charges by the other party, based on noncompliance with
       the Panel's Decision and Order . . .
 
 Respondent's argument, in sum, is that the Authority as a superior may
 revise and review actions of "subordinates" such as the Panel under the
 language of section 7105(a)(2)(I) of the Statutes, /2/ is empowered to
 reverse a Decision and Order of the Panel both by reaching different
 factual and/or legal conclusions than the Panel reached in its
 deliberation, as well as considering matters which were not before the
 Panel when it decided the issue in this matter.
 
                                Discussion
 
    The record, as it stands, in this matter clearly establishes that
 Respondent has failed and refused to comply and cooperate with a final
 Decision and Order of the Panel in violation of section 7116(a)(6) and
 (8) of the Statute, and that Respondent has failed and refused to
 bargain with the Union concerning the implementation of the Panel's
 final Decision and Order in Case 78 FSIP 59(b).  This issue has been
 addressed by the Authority and various Administrative Law Judges.  In
 each instance the refusal to comply with a decision of the Panel was
 found violative of the Statute.  See Kentucky National Guard and
 National Association of Government Employees, Local R2-100, 4 FLRA No.
 73 (1980);  State of California National Guard and National Association
 of Government Employees, Locals R12-125, R12-146, R12-150, Case Nos.
 9-CA-44 and 95 (March 21, 1980);  Division of Military and Naval
 Affairs, State of New York, Albany, New York and New York Council,
 Association of Civilian Technicians, Case No. 1-CA-19 (April 9, 1980).
 
    Respondent does not deny that it made no effort to comply with the
 Panel's decision in 78 FSIP 59(b) or that it refused to meet with the
 Union concerning implementation of that decision on February 9, 1981
 contending that such meetings "would seem inappropriate." In essence
 Respondent contends that the instant matter should be disposed of
 without consideration of the substantive correctness of its rejection of
 the Panel's final decision and that a review of the Panel's decision by
 the Authority under the unfair labor practice provisions of the Statute
 is not appropriate.  For this argument Respondent relies chiefly on New
 York Division of Military and Naval Affairs, supra.  Indeed that
 decision suggests that some review is anticipated by the Authority.  At
 the very least, the Authority has guaranteed that there will be no
 sacrifice of any statutory rights if the Panel processes fail to
 function in a manner consistent with the dictates of the Statute, but it
 does not indicate as discussed infra, that de novo review was intended.
 Furthermore, that Authority decision, which reviewed the legislative
 history of section 7119(c) of the Statute, clearly states that failure
 to comply with a final Panel decision constitutes a violation of the
 Statute.
 
    While some review is anticipated, I agree with Judge Arrigo's
 statement in Division of Military and Naval Affairs, State of New York,
 supra, that such review does not require a de novo hearing.  There he
 stated, such a review "would render a nullity the legislative history of
 the Statute . . . undermine the Panel's function and effectiveness and
 produce a stream of interminable litigation on matters which the Panel
 is uniquely designed to resolve in an expeditious fashion." To conclude
 otherwise would open all Panel decisions to such review under the unfair
 labor practice procedures of the Statute and effectively destroy its
 role in Federal labor relations.
 
    Respondent contends that the Panel decision in this matter was
 contrary to law, arbitrary and capricious.  Yet Respondent participated
 in the entire Panel proceeding allegedly knowing that the Panel was
 predisposed, had exhibited a bias on the so-called "uniform issue" and
 that the Panel has a "predilection" toward the issue.  Like all systems
 for resolution of disputes, there are bound to be some imperfections,
 but refusal to abide by a decision of any such body, after full
 participation, would seem to be at one's peril.  Assuming that a limited
 review would be in order, I have considered the relevant "underlying
 evidence" submitted by Respondent and find no reason to conclude that
 the Panel's decision was unlawful, arbitrary or capricious.  First,
 there was no showing of any irrational or improper conduct on the part
 of the Panel or any of the Panel members.  Second, a mere showing that
 the Panel has decided an issue in a consistent manner does not establish
 a bias.  Finally, Respondent did not establish on the evidence presented
 that it was not afforded procedural due process before the Panel, that
 there is any irrational basis for the Panel's alleged predilection or
 that the Panel's actions were repugnant to the Statute.  Accordingly,
 based on this record it must be concluded that the Panel's decision was
 legal and valid and Respondent's refusal to implement the decision was
 violative of section 7116(a)(6) and (8) of the Statute.  /3/
 
    Respondent also argues that there should be no finding of a
 derivative violation of section 7116(a)(1) because there is no specific
 proof of bad faith or enmity by it to employees exercise of protected
 rights.  Such an argument is not persuasive.  The Panel is a central
 institution in the Federal collective bargaining process.  When a final
 Decision of the Panel is defied and a collective bargaining
 representative is frustrated in its attempt to enter into an agreement
 in the manner prescribed by the Statute, employees will readily conclude
 that significant fruits which flow from union representation are
 illusory and motivation for Union membership and assistance is
 substantially diminished.  Under these circumstances, Respondent clearly
 interfered with employees rights guaranteed by the Statute.  See
 Division of Military and Naval Affairs, State of New York, Albany, New
 York, supra.
 
    The General Counsel contends that Respondent's conduct herein
 violates section 7116(a)(5) of the Statute, but advances no persuasive
 reasons why such a violation should be found in this matter.  I note
 that the legislative history dictates that the conduct alleged herein is
 violative of section 7116(a)(6) and (8) of the Statute.  Absent any
 persuasive reason and noting Congress' intent by including a separate
 violation for failure to abide by Panel processes, it is found that
 Respondent's conduct was not violative of section 7116(a)(5), but
 constituted a violation of section 7116(a)(6) and (8) of the Statute.
 
    Accordingly, the General Counsel's Motion for Summary Judgment
 finding a violation of section 7116(a)(1), (6) and (8) of the Statute is
 granted and Respondent's Cross Motion for Summary Judgment, denied.
 Therefore, I recommend that the Authority issue the following Order.
 
                                   ORDER
 
    Pursuant to sections 7118(a)(7) of the Statute and section 2423.29 of
 the Rules and Regulations of the Authority, it is hereby ordere