[ v17 p242 ]
17:0242(37)CA
The decision of the Authority follows:
17 FLRA No. 37
NORTH CAROLINA AIR NATIONAL GUARD
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3001, AFL-CIO
Charging Party
Case No. 4-CA-20010
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, granting part of the General Counsel's Motion
for Summary Judgment, finding that the North Carolina Air National Guard
(the Respondent) had violated the Federal Service Labor-Management
Relations Statute (the Statute) by failing to comply with certain
portions of a Decision and Order of the Federal Service Impasses Panel
(FSIP or Panel), and recommending that the Respondent be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge also granted part of the Respondent's Motion for Summary Judgment
finding that its failure to comply with certain other portions of the
FSIP's Decision did not violate the Statute. Exceptions to the Judge's
Decision were filed by both the Respondent and the American Federation
of Government Employees, Local 3001, AFL-CIO (the Union). The Union
filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of 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 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's failure and refusal to
comply and cooperate with the final Decision and Order of the Panel,
which required the parties to adopt the Union's proposal for a full
scope grievance and arbitration procedure excluding only those matters
specifically excluded by the Statute, constituted a violation of section
7116(a)(1) and (6) of the Statute. Subsequent to the issuance of the
Judge's Decision, the Authority concluded in National Guard Bureau,
Falls Church, Virginia, 16 FLRA No. 52 (1984) and in Association of
Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
and Air National Guard, 14 FLRA 38 (1984), that the National Guard may
require that the parties' collective bargaining agreement expressly
exclude actions enumerated in section 709(e) of the National Guard
Technicians Act of 1968, 32 U.S.C. 709(e) (1976) /1/ from the scope of
the parties' negotiated grievance procedure. Accordingly, the Union's
proposal is outside the duty to bargain under section 7117 of the
Statute and the failure of the Respondent to cooperate in the final
decision and order of the Federal Service Impasses Panel did not
constitute a violation of section 7116(a)(1) and (6) of the Statute.
/2/ The Authority therefore concludes that the allegations of the
complaint in this respect must be dismissed.
The Judge concluded that the Respondent was entitled to summary
judgment on the issue of its alleged failure to comply with the Panel's
Decision requiring it to adopt the Union's proposal concerning the
wearing of civilian attire by technicians while performing civilian
technician duties. Without passing on the Judge's specific findings on
this issue, the Authority agrees that no violation was committed. In
the Authority's view, the issues presented 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), petition for review filed, New York
Council, Association of Civilian Technicians v. FLRA, No. 84-4128 (2d
Cir. Sept. 11, 1984) wherein the Authority found that the determination
by the National Guard Bureau that technicians must wear the military
uniform while performing technician duties constituted management's
choice of a "methods and means of performing work" within the meaning of
section 7106(b)(1) of the Statute. Accordingly, based on the rationale
expressed in State of New York, the Authority finds that the Union's
proposal is outside the duty to bargain and that the failure of the
Respondent to cooperate in the final decision and order of the Federal
Service Impasses Panel did not constitute a violation of section
7116(a)(1) and (6) of the Statute. The Authority further finds that
violations of section 7116(a)(5) and (8) have not been established in
these circumstances.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-20010 be, and it
hereby is, dismissed.
Issued, Washington, D.C., March 20, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-20010
Edwin M. Speas, Jr., Esquire
For the Respondent
Mr. John W. Mulholland
Ms. Deborah Loeb Bohren
Mr. Herman A. Barrier
For the Charging Party
Barbara S. Liggett, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Four, Federal Labor Relations Authority,
Atlanta, Georgia against the North Carolina Air National Guard
(Respondent). The complaint alleged, in substance, that Respondent
violated sections 7116(a)(1), (5), (6), and (8) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
by failing and refusing to bargain in good faith with the Union and to
comply and cooperate with a Decision and Order of the Federal Service
Impasses Panel (the Panel).
Respondent's answer denied the commission of any unfair labor
practice, but admitted that it has failed to comply with the Panel's
Decision and Order. Respondent raised various affirmative defenses.
Prior to a scheduled hearing, the General Counsel filed a motion for
summary judgment. The Charging Party supported the motion. Thereafter,
the Respondent filed an opposition to the General Counsel's motion and
moved to dismiss the complaint or, alternatively, for summary judgment
in its favor. /3/ The parties were subsequently afforded the
opportunity to, and did, file additional briefs concerning the
applicability of section 7106(b).
Upon consideration of 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 on the issue of Respondent's failure to
comply with the Panel's Decision and Order requiring it to adopt the
Union's proposals concerning grievance arbitration procedures. The
Respondent is entitled to summary judgment on the issue of its alleged
failure to comply with the Panel's decision requiring it to adopt the
Union's proposal concerning dress and appearance standards.
Accordingly, such motions are granted, and, in support thereof, I make
the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
1. Since on or about September 19, 1969, the American Federation of
Government Employees, Local 3001, AFL-CIO (Charging Party or Union) has
been the exclusive representative of the employees of Respondent in an
appropriate unit of all full time, and regular part time, civilian
technician personnel (Federal) employed by the agency at Douglas
Municipal Airport, Charlotte, North Carolina, excluding temporary
technicians and casual employees.
2. On or about October 9, 1979 the Union and Respondent commenced
negotiations for an initial collective bargaining agreement. On
November 18, 1980 the Union requested the assistance of the Panel to
resolve an impasse which had been reached on four issues.
3. The Panel appointed a factfinder to conduct a hearing on January
13, 1981 and to make recommendations for settlement on issues concerning
dress and appearance standards, grievance procedure, arbitration, and
duration of the agreement. A hearing was held, and the factfinder
submitted her report on March 10, 1981.
4. The recommendations of the factfinder were accepted by the Union,
but rejected by Respondent. Respondent filed a motion to disqualify the
Panel.
5. On May 26, 1981, the Panel issued its Decision and Order in Case
No. 81 FSIP 21 involving Respondent and the Union. It concluded that
the parties should adopt the recommendation of the factfinder. It
denied the motion to disqualify and ordered the following:
The parties shall adopt the Union's proposals concerning
grievance arbitration procedures. Furthermore, the parties shall
adopt the Union's proposal concerning dress and appearance
standards and shall, within 60 days of receipt of the Decision and
Order, negotiate (1) the components of standard civilian attire,
and (2) circumstances and occasions for which the wearing of
military uniforms may be required.
6. On or about June 10, 1981, Respondent submitted to the Panel a
motion to reconsider requesting that the Decision and Order be set
aside.
7. On or about August 3, 1981, the Panel denied Respondent's motion
to reconsider.
8. On or about September 2, 1981, Respondent by Rufus L. Edmisten
and Edwin M. Speas, Jr., informed the Panel in writing, with a copy to
the Union, that Respondent was rejecting the Decision and Order.
9. Since on or about August 31, 1981, and at all times material
herein, Respondent has failed and refused to comply with the Panel's
Decision and Order.
10. On October 5, 1981, the Union filed a charge with the Authority
alleging violations by Respondent of section 7116(a)(1), (5), (6), and
(8) of the Statute.
Discussion and Conclusions
It is well settled that a refusal to comply with a final order of the
Federal Service Impasses Panel constitutes a violation of sections
7116(a)(1) and (6). Michigan Army National Guard, Lansing, Michigan, 11
FLRA No. 74 (1983), appeal filed, No. 83-3244 (6th Cir.).
Respondent takes the position that the Panel's Decision and Order is
contrary to law, and that it is under no obligation to comply with it.
Respondent relies on several affirmative defenses. Grievance and
Arbitration.
With respect to the Panel's order requiring Respondent to adopt the
Union's proposals concerning grievance and arbitration procedures,
Respondent urges that the order is in clear violation of the authority
vested in the Adjutant General under 32 U.S.C. 709(e). Decisions of the
Third and Eighth Circuit support Respondent's position. See New Jersey
Air National Guard, 177th Fighter Interceptor Group and Department of
Defense v. Federal Labor Relations Authority, 677 F.2d 276 (3rd Cir.
1982), cert. denied 102 S.Ct. 343 (1982); State of Nebraska, Military
Department, Office of the Adjutant General and Department of Defense v.
Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983).
However, at the time of the Panel's consideration of the issue, the
Authority had, and it continues to, reject this view. See Michigan Army
National Guard, Lansing, Michigan, 11 FLRA No. 74 (1983), appeal filed,
No. 83-3244 (6th Cir.). I am bound to follow the legal precedents of
the Authority.
Accordingly, Respondent has failed and refused to comply and
cooperate with the final Decision and Order of the Federal Service
Impasses Panel by failing and refusing to adopt the Union's proposals
concerning grievance arbitration procedures, which, according to past
decisions of the Authority, are not contrary to law. By such action
Respondent has violated sections 7116(a)(1) and (6) of the Statute. /4/
Dress and Appearance Standards
Respondent has set forth several affirmative defenses in support of
its position that the Panel's order directing it to adopt the Union's
proposal regarding dress and appearance standards is contrary to law.
The one I find most persuasive is Respondent's claim that the Panel
"ignored" its argument that section 7106 reserves to Respondent the
authority to determine its "mission" and "to determine the personnel by
which agency operations shall be conducted."
The Panel adopted its factfinder's report that Respondent's assertion
of nonnegotiability, based on section 7106, was "without merit." The
factfinder held that she was bound by the 1977 negotiability
determination of the Federal Labor Relations Council issued under
Executive Order 11491, as amended, in National Association of Government
Employees, Local R14-87 and Kansas National Guard, (and other cases
consolidated therewith), 5 FLRC 124 (1977), reconsideration denied, 5
FLRC 336 (1977).
The Statute became effective January 11, 1979, long before the
parties commenced their negotiations. Pursuant to section 7105(a)(2)(E)
of the Statute, the Authority is required to resolve issues relating to
the duty to bargain in good faith under section 7117(c) which
specifically contemplates an appeal to the Authority. The Authority has
implemented this statutory imperative in Part 2424 of the Authority's
Rules and Regulations. These regulations set forth the procedures for
union appeals directly to the Authority from agency allegations that the
duty to bargain in good faith does not extend to matters proposed to be
bargained. Based on this plain language of the Statute, as implemented
by the Authority's Rules and Regulations, the Authority has decided that
negotiability issues which arise during impasse resolution procedures of
the Panel may not be resolved by the Panel, but must be resolved through
appeal to the Authority. Interpretation and Guidance, 11 FLRA No. 107
(1983), appeal filed No. 83-1518 (D.C. Cir.). The Authority has also
held that an agency's allegation of nonnegotiability in its prehearing
brief to the Panel can constitute an "allegation" of nonnegotiability
for the purpose of filing a petition for review pursuant to Part 2424 of
the Authority's Rules and Regulations. International Brotherhood of
Electrical Workers, AFL-CIO, Local 121, 10 FLRA No. 39 (1982).
In view of these specific statutory and regulatory provisions for
determining negotiability, the Panel should not have exercised
jurisdiction over this issue by relying on a negotiability decision
issued pursuant to the Executive Order. Section 7135(b) was
inapplicable to this issue. /5/ The Authority has not to date addressed
a section 7106 claim regarding technician's attire. In view of the
elaborate statutory and regulatory procedure for resolving pure
negotiability disputes, it would be equally inappropriate for me to make
a de novo determination of the negotiability issues at this time in the
context of this unfair labor practice case for alleged refusal to comply
with the Panel's order.
Inasmuch as Respondent's assertion of nonnegotiability was not
properly resolved, the Panel's order requiring Respondent to adopt the
Union's proposal concerning dress and appearance standards is contrary
to law. Respondent did not violate the Statute by refusing to comply
and cooperate with the Panel's decision in this respect.
In view of this disposition, it is unnecessary to address
Respondent's other defenses.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the North Carolina Air National Guard
shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in and comply with the
Federal Service Impasses Panel's Decision and Order issued May 26,
1981 requiring it to adopt the Union's proposals concerning
grievance and arbitration procedures.
(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 effectuate the
purposes and policies of the Statute:
(a) Comply and cooperate forthwith with the Federal Service
Impasses Panel's Decision and Order issued May 26, 1981 requiring
it to adopt the Union's proposals concerning grievance and
arbitration procedures.
(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 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 5 C.F.R.section 2423.30 notify the Regional
Director, Region Four, Federal Labor Relations Authority, Atlanta,
Georgia, in writing, within 30 days from the date of this order,
as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the Complaint in Case No. 4-CA-20010
insofar as it alleges an unfair labor practice because of Respondent's
failure to comply and cooperate with the Panel's Decision and Order
requiring it to adopt the Union's proposal concerning dress and
appearance standards be, and it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: July 6, 1983
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to cooperate in and comply with the Federal
Service Impasses Panel's Decision and Order issued May 26, 1981
requiring us to adopt the proposals of the American Federation of
Government Employees, Local 3001, AFL-CIO concerning grievance and
arbitration procedures. WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL comply and cooperate forthwith with the Federal
Service Impasses Panel's Decision and Order issued May 26, 1981
requiring us to adopt the proposals of the American Federation of
Government Employees, Local 3001, AFL-CIO concerning grievance and
arbitration procedures.
. . . (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
questions concerning this Notice of compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region Four, whose address is:
1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Georgia
30309 and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ The matters enumerated in section 709(e) generally relate to the
discipline and discharge of civilian technicians and include separation,
removal, discharge, suspension, furlough without pay, reduction in
force, and reduction in rank or compensation.
/2/ Supplemental decision and order in Michigan Army National Guard,
Lansing, Michigan, 11 FLRA 365 (1983), published at 14 FLRA 811 (1984).
/3/ See State of California National Guard, 8 FLRA No. 11 (1982)
remanded, No. 82-7187 (9th Cir., Jan. 7, 1983), which established that
motions for summary judgment are appropriate in unfair labor practice
proceedings under the Statute.
/4/ In view of these findings, and since the following Order will
provide an adequate remedy for Respondent's actions, it is unnecessary
to determine whether Respondent's actions also violated sections
7116(a)(5) and (8). State of California National Guard, supra, fn. 1.
/5/ Section 7135(b) provides:
Policies, regulations, and procedures established under and
decisions issued under Executive Orders 11491, 11616, 116361
11787, and 11838, or under any other Executive Order, as in effect
on the effective date of this chapter, shall remain in full force
and effect until revised or revoked by the President, or unless
superseded by specific provisions of this chapter or by
regulations or decisions issued pursuant to this chapter.