17:1040(139)CA - Tennessee NG and NAGE Local R5-108 -- 1985 FLRAdec CA



[ v17 p1040 ]
17:1040(139)CA
The decision of the Authority follows:


 17 FLRA No. 139
 
 TENNESSEE NATIONAL GUARD 
 Respondent
 
 and 
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R5-108 
 Charging Party
 
                                            Case No. 4-CA-20148
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 National Association of Government Employees, Local R5-108 (NAGE) filed
 exceptions to the Judge's Decision and the Respondent filed an
 opposition to NAGE's exceptions.
 
    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, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order.  See Division of
 Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
 No. 65 (1984), aff'd sub nom. New York Council, Association of Civilian
 Technicians v. FLRA, No. 84-4128 (2d Cir. Mar. 14, 1985).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-20148 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 13, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Dan R. Bradley, Esquire
    Les Barham, Esquire
    For the Respondent
 
    Paul J. Hodnett, Esquire
    For the Charging Party
 
    Linda J. Norwood, Esquire
    For the General Counsel
 
    Before:  WILLIAM DEVANEY, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., concerns a conceded refusal to comply with a
 final order of the Federal Service Impasses Panel which involved the
 attire to be worn by National Guard technicians when performing civilian
 technician duties.  This matter was initiated by a charge filed on
 January 11, 1982 (G.C. Exh. 1(a));  the Complaint and Notice of Hearing
 issued on November 18, 1982 (G.C. Exh. 1(b));  by Order dated April 24,
 1984, following various motions, hearing was scheduled for May 24, 1984,
 pursuant to which a hearing was duly held on May 24, 1984, in Nashville,
 Tennessee, before the undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues;  and were afforded the
 opportunity to present oral argument which each party waived.  At the
 close of the hearing, June 25, 1984, was fixed as the date for mailing
 post hearing briefs.  Respondent, the Charging Party and General Counsel
 each timely mailed an excellent brief, received on, or before, June 28,
 1984.  On August 20, 1984, this Office received Counsel for General
 Counsel's Motion for Remand which requested that, ". . . this case be
 remanded to the Regional Director for Region IV for further appropriate
 action consistent with the Authority's decision (Division of Military
 and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65,
 15 FLRA 288 (1984)).  As the matter is ripe for decision, General
 Counsel's Motion for Remand is hereby denied.
 
                        Discussion and Conclusions
 
    By letter dated July 29, 1981, Respondent advised the Federal Service
 Impasses Panel (FSIP) that as to the uniform issue, its position, inter
 alia, was that,
 
          ". . . the Adjutant General has determined that the uniforms
       issued to each member will be the work uniform for all military
       technicians." (G.C. Exh. 5).
 
    On October 5, 1981, the FSIP issued its Decision and Order, Case No.
 81-FSIP-91 (G.C. Exh. 6), in which, after noting Respondent's position,
 set forth, in part, above, it ordered, inter alia, that the parties
 adopt language in their agreement,
 
          ". . . affording individual employees, while performing their
       day-to-day technician duties, the daily option of wearing either
       (a) the military uniform or (b) an agreed-upon standard civilian
       attire without display of military rank, such clothing to be
       obtained by employees who choose to wear it . . . " (G.C. Exh. 6).
 
    By letter dated October 16, 1981, Respondent notified the FSIP that,
 
          "1.  In regard to Case No. 81 FSIP 91 . . . the State of
       Tennessee will be in non-compliance with the order.
 
          "2.  We do not feel that the day-to-day option is in compliance
       with law or regulation." (G.C. Exh. 7)
 
    The record is clear that Respondent unequivocally asserted the
 exercise of a management right, i.e., ". . . the Adjutant General has
 determined that the uniforms issued . . . will be the work uniform for
 all military technicians", and informed the FSIP that it would not
 comply with its order because, "we do not feel that the day-to-day
 option is in compliance with law or regulation";  but it is equally
 clear that Respondent did not specifically assert that the Union's
 proposal was nonnegotiable.  Nevertheless, the FSIP, despite
 Respondent's assertion of a management right, acted on an issue that
 required, as a condition precedent, determination of negotiability.  At
 the hearing, and in her brief (General Counsel Brief, p. 9 n. 7),
 counsel for General Counsel conceded that, ". . . if the Panel acts on
 an issue that is non-negotiable-- whether it has been determined or
 not-- and orders the parties to adopt non-negotiable items in their
 contract, it acts without authority." (Tr. 39), but asserted at the
 hearing, and in her brief (supra), that, ". . . had the Panel acted
 without a negotiability determination on the issue of uniforms, it may
 have acted without authority" but ". . . as far back as 1981, the
 Authority held, in upholding a Counsel's older Decision, the Authority
 specifically held that the uniform issue was negotiable.  That case is
 Nevada National Guard, 7 FLRA 245, 1981." (Tr. 18).  /2/
 
    Respondent's assertion of its exercise of a management right in
 determining that the uniforms issued would be the work uniform for all
 military technicians necessarily required that the FSIP, by ordering the
 adoption of contrary language, determined the negotiability of that
 issue, whether it did so, which would have been beyond its authority, or
 whether it, by silence, relied upon the prior determination of
 negotiability, either by the Authority or by the Council, which General
 Counsel asserts the FSIP did in this case;  the issue of negotiability
 is jurisdictional, was not waived by Respondent, and properly was raised
 in response to the unfair labor practice complaint.
 
    Subsequent to the hearing and the submission of briefs, the Authority
 in a series of decisions has removed wholly the underpinnings of General
 Counsel's negotiability determination argument.  First, in Division of
 Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
 No. 65, 15 FLRA 288 (July 17, 1984) and thereafter in Military
 Department, State of Oregon, Oregon Army and Air National Guard, Salem,
 Oregon, 15 FLRA No. 100 (August 9, 1984;  State of Nevada National
 Guard, 15 FLRA No. 101 (August 9, 1984) (this decision, on remand,
 reversed the Authority's prior decision, 7 FLRA 265 (1981), supra,
 principally relied up