21:1062(124)CA - Adjutant General, St. of Ohio, Ohio ANG, Worthington, Ohio and AFGE, Ohio CANG Locals, Council 127 -- 1986 FLRAdec CA



[ v21 p1062 ]
21:1062(124)CA
The decision of the Authority follows:


 21 FLRA No. 124
 
 ADJUTANT GENERAL, STATE OF OHIO 
 OHIO AIR NATIONAL GUARD 
 WORTHINGTON, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, OHIO COUNCIL OF AIR 
 NATIONAL GUARD LOCALS, COUNCIL 127 
 AFL-CIO
 Charging Party
 
                                               Case Nos. 5-CA-20338
                                                                5-CA-30091
                                                                5-CA-30118
 
                            DECISION AND ORDER
 
                           Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed to the attached Decision of the Administrative Law Judge.  The
 Judge found that the Respondent had engaged in certain of the unfair
 labor practices as alleged in the complaints in Case Nos. 5-CA-30118 and
 5-CA-30091, and recommended that the Authority issue an appropriate
 order directing the Respondent to cease and desist from the unfair labor
 practices.  The Judge further found that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint in Case No.
 5-CA-20338, or in certain of the unfair labor practices alleged in the
 complaint in Case No. 5-CA-30091, and he recommended dismissal of the
 complaint in Case No. 5-CA-20338 and of those portions of the complaint
 in Case No. 5-CA-30091.  The Respondent filed exceptions to the
 violations found by the Judge, and the General Counsel and the Charging
 Party (the Union) filed exceptions to those portions of the Judge's
 decision in which he recommended a dismissal.  The Respondent filed an
 opposition to the General Counsel's exceptions and the Union filed an
 opposition to the Respondent's exceptions.
 
    This proceeding involves three separate complaints which were
 consolidated solely for the purpose of the hearing.  The Authority will
 consider separately the issues raised by the three complaints, in the
 order considered by the Judge.
 
                            Case No. 5-CA-30118
 
                               I.  The Issue
 
    The complaint in this case alleged that the Respondent violated
 section 7116(a)(1), (5) and (8) of the Statute by unilaterally deciding
 to discontinue the payment of travel and per diem expenses to employees
 serving as Union negotiators while they were engaged in the negotiation
 of a new agreement between the parties.
 
                              II.  Background
 
    The Respondent and the Union were parties to a negotiated agreement
 whose term ended on June 21, 1981.  The agreement also provided,
 however, that it would remain in full force and effect for up to one
 additional year from the time the parties signed off on ground rules
 covering the negotiation of a new agreement.  On October 6, 1981, the
 parties executed a Memorandum of Understanding (MOU) setting forth the
 ground rules for their negotiation of a new agreement.  The MOU provided
 that the MOU and the parties' existing agreement would continue for one
 full year, until October 6, 1982.  In part, the MOU provided for the
 payment by the Respondent of the travel and per diem expenses of
 employees serving as the Union's negotiators.  The Respondent contends
 that it had agreed to provide travel and per diem expenses for Union
 negotiators only because it was required to do so by the Authority's
 decision in Interpretation and Guidance, 2 FLRA 265 (1979).  On August
 26, 1982, the Respondent advised the Union that it would withhold any
 further payment of travel and per diem expenses for Union negotiators
 because decisions in the United States Court of Appeals for the Second
 (involving a National Guard unit) and Eighth Circuits had put in
 question the validity of the Authority's position in Interpretation and
 Guidance, noted above.
 
                        III.  The Judge's Decision
 
    When the Judge wrote his decision, he had the benefit of the Supreme
 Court's decision in Bureau of Alcohol, Tobacco and Firearms (BATF) v.
 FLRA, 464 U.S. 89 (1983).  The Judge found that the Supreme Court had
 held in BATF that section 7131(a) of the Statute does not require the
 payment of travel and per diem expenses for union negotiators, and
 therefore concluded that the Respondent's discontinuance of such
 payments did not violate section 7116(a)(8) of the Statute.  However, he
 also noted that the Supreme Court had additonally stated that Federal
 agencies were not precluded from making such payments, and had
 recognized that parties in the Federal sector may negotiate for the
 payment of travel and per diem expenses for union negotiators, citing
 464 U.S. at 107, n. 17.  He concluded that, as travel and per diem
 payments were bargained for and included in the parties' MOU, the
 Respondent could not unilaterally terminate such payments during the
 course of the agreement.  He therefore concluded that the unilateral
 decision by the Respondent in this case to terminate the payment of
 travel and per diem expenses to Union negotiators pursuant to the MOU
 constituted a complete and unlawful rejection of the MOU in violation of
 section 7116(a)(1) and (5) of the Statute.
 
                       IV.  Positions of the Parties
 
    The positions of the parties, as set forth in their exceptions and
 oppositions, essentially constitute disagreements as to whether the
 Judge correctly stated the findings of the Supreme Court's decision in
 BATF.  The Respondent argues that the Supreme Court's statement with
 regard to bargaining on travel and per diem expenses was not a finding
 of the court because it was not an issue before the court.  Further, it
 argues that, as the Respondent had initially agreed to pay such expenses
 only on the basis of the Authority's decision in Interpretation and
 Guidance, supra, which is no longer valid as a matter of law, the
 Respondent cannot be bound by the agreement it made in this regard.  The
 Union, in its opposition to the Respondent's exceptions, argues that the
 Judge's interpretation and explanation of the Surpreme Court's holding
 in BATF is essentially sound, and that his resulting conclusion is
 correct.
 
                               V.  Analysis
 
    Following the Supreme Court's BATF decision, the Authority recently
 decided in National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for
 review filed sub nom. Department of the Treasury, U.S. Customs Service
 v. FLRA, No. 86-1198 (D.C. Cir. Mar. 22, 1986), that a union proposal
 which would require an agency to pay the travel and per diem expenses
 incurred by employees while using official time pursuant to the parties'
 agreement concerned a condition of employment which is within the
 agency's administrative discretion, is not inconsistent with Federal law
 or Government-wide rules or regulations (including the Federal Travel
 Regulations), and therefore is within the duty to bargain.  Since the
 parties' MOU in this case, insofar as it provided for the payment of
 travel and per diem expenses for Union representatives engaged in the
 negotiation of a renewed contract between the parties, similarly
 concerned a negotiable condition of employment, the Authority adopts the
 Judge's conclusion that the Respondent violated section 7116(a)(1) and
 (5) of the Statute when it unilaterally terminated and repudiated that
 agreement.  See American Federation of Government Employees, Local 1923,
 AFL-CIO, 20 FLRA No. 88 (1985) and Great Lakes Program Service Center,
 Social Security Administration, Department of Health and Human Services,
 
 Chicago, Illinois, 9 FLRA 499 (1982).
 
                              VI.  Conclusion
 
    The Authority concludes that the Respondent violated section
 7116(a)(1) and (5) of the Statute by unilaterally repudiating its
 contract with the Union insofar as it provided for the payment of travel
 and per diem expenses for Union negotiators engaged in the negotiation
 of the parties' new collective bargaining agreement.
 
                            Case No. 5-CA-20338
 
                               I.  The Issue
 
    The complaint in this case alleged that the Respondent violated
 section 7116(a)(1) and (5) of the Statute by declaring nonnegotiable and
 refusing to negotiate about a Union proposal to provide an alternative
 to the standard military uniform generally required to be worn by
 National Guard civilian technicians.
 
                              II.  Background
 
    The alleged violation in this case took place during the course of
 the parties' negotiations for a renewed contract (see "Background,"
 under Case No. 5-CA-30118, above).  The parties' expiring agreement
 provided that the Respondent's civilian technician employees might wear
 agreed upon standardized civilian attire if they received permission to
 do so by following a procedure set forth in the agreement.  During the
 course of their negotiations for a new agreement (and during the year
 that the parties' contract was being kept in force and effect by the
 parties' MOU), the Union proposed that the clause in their expiring
 agreement which provided for the wearing of civilian attire be retained.
  The Respondent declared the subject nonnegotiable, and refused to
 consider the proposal on the basis that it involved a nonmandatory or
 "permissive" subject of bargaining.  The Respondent recognized that
 Authority precedent at the time was to the contrary, but argued that, in
 view of pending cases before various courts of appeals calling that
 precedent into question, it was justified in such position.
 
                        III.  The Judge's Decision
 
    The Judge noted precedent which clearly held that proposals
 substantially identical to the one here are mandatorily negotiable.  He
 found, however, that the Respondent had presented arguments in its
 post-hearing brief to support its position (ones not addressed in the
 Authority's decisions) that the wearing of the military uniform by
 civilian technicians is a matter of "internal security" under section
 7106(a)(1) of the Statute, and a matter pertaining to the "technology,
 methods and means of performing work" under section 7106(b)(1) so as to
 permit the Respondent to refuse to bargain on the matter.  He agreed
 with the Respondent's contentions that the wearing of the military
 uniform by civilian technicians involves internal security matters and
 the technology, methods, and means of performing work.  He therefore
 concluded that the Respondent did not violate section 7116(a)(1) and (5)
 of the Statute when, upon the expiration of the parties' then current
 agreement, it declared the Union's proposal concerning the wearing of
 the military uniform nonnegotiable and refused to bargain about it.
 Therefore, he recommended dismissal of the complaint.
 
                       IV.  Positions of the Parties
 
    With respect to the Judge's findings and conclusions regarding the
 issue of internal security, the Respondent argues generally in support
 of the Judge.  The General Counsel and the Union question whether the
 Judge was correct to consider the Respondent's arguments concerning
 internal security at all, as they contend that those arguments were
 raised for the first time in the Respondent's brief to the Judge.
 However, assuming that the matter was properly before the Judge, the
 General Counsel and the Union take issue with the Judge's finding that
 the facts presented by the Respondent support its position on the
 internal security matter, and they disagree with the legal conclusion
 the Judge reaches even if the facts were accurate.  With respect to the
 Judge's findings and conclusions regarding the "technology, methods and
 means of performing work," the General Counsel argued that there was no
 evidence that the attire of these employees is not directly or
 integrally related to the accomplishment of their duties.
 
                               V.  Analysis
 
    After the Judge issued his Dicision in this case, the Authority, on
 remand from the U.S. Court of Appeals for the Second Circuit, issued the
 first in a series of new determinations with regard to the negotiability
 of proposals concerning the wearing of civilian attire by National Guard
 civilian technicians.  In Division of Military and Naval Affairs, State
 of New York, Albany, New York, 15 FLRA 288 (1984), affirmed sub nom. New
 York Council, Association of Civilian Technicians v. Federal Labor
 Relations Authority, 757 F.2d 502 (2nd Cir. 1985), cert. denied, 106 S.
 Ct. 137 (Oct. 7, 1985), the Authority held that the requirement that
 civilian technicians wear military uniforms rather than civilian attire
 involves the methods and means of performing work within the meaning of
 section 7106(b)(1) of the Statute and therefore is a permissive rather
 than a mandatory subject of bargaining;  that is, a subject which may be
 bargained, but only at the election of the agency.  Further, the
 Authority has held that, while an agency acts at its peril when it
 refuses to negotiate on proposals similar to proposals previously found
 negotiable by the Authority, an unfair labor practice will not be found
 where subsequently established law supports the agency's position.  See,
 for example, Department of Defense, Department of the Army, Headquarters
 XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 20 FLRA
 No. 101 (1985) and Office of Personnel Management, 17 FLRA 302 (1985).
 
                              VI.  Conclusion
 
    The Authority adopts the Judge's conclusion, consistent with its
 decisions and rational in the above cited cases, that the Respondent did
 not violate section 7116(a)(1) and (5) of the Statute, as alleged, by
 exercising its option under section 7106(b)(1) of the Statute and
 refusing to negotiate concerning the Union's proposal which would have
 extended the terms of the parties' expiring agreement that had permitted
 some civilian technicians the option of wearing other than the required
 military uniform.  We shall therefore dismiss the complaint in this
 case.  We also find, in view of this conclusion, that it is unnecessary
 to pass upon whether the Judge properly considered the Respondent's
 position with regard to internal security, or whether he was correct in
 his resolution of the factual disputes of the parties in this regard.
 
                            Case No. 5-CA-30091
 
                               I.  The Issue
 
    The complaint in this case alleged that the Respondent violated
 section 7116(a)(1) and (5) of the Statute by unilaterally terminating
 certain terms and conditions of employment incorporated in the parties'
 negotiated agreement when the then current agreement between the parties
 expired on October 6, 1982.  Specifically, the complaint alleged that
 the Respondent violated the Statute by declaring that it (1) would no
 longer abide by the contractual procedure allowing civilian technicians
 the option of wearing standardized civilian attire, and (2) that in the
 future the processing of grievances and all disciplinary and adverse
 actions would have to be consistent with applicable National Guard
 regulations.
 
                              II.  Background
 
    As noted in the discussion of the prior two cases, the parties' then
 current contract was scheduled to expire on October 6, 1982.  On August
 26, 1982, the Respondent notified the Union that, in the event
 negotiations toward a new contract were not consummated by October 6,
 1982, the Respondent would consider the then current agreement as having
 expired, and that employees would have to comply with all appropriate
 National Guard regulations.  On September 30, 1982, the Respondent
 advised the Union that the specific areas in which National Guard
 regulations would supercede the parties' agreement included the wearing
 of the military uniform by civilian technicians, disciplinary and
 adverse actions, and grievance procedures.  On October 7, 1982, the
 contract was terminated by the Respondent.  The parties stipulated that
 46 grievances concerning the wearing of civilian attire, all filed prior
 to October 6, 1982, were processed under the procedures of the expired
 agreement.
 
    The parties stipulated that the expired agreement had specifically
 excluded from the grievance procedure those matters which could be heard
 under section 709(e) of the National Guard Technicians Act, and that the
 practice of the parties during the term of the agreement had been to
 exclude such matters.  Section 709(e)(4) of the Technicians Act defines
 the coverage of 709(e) matters as including "a reduction in force,
 removal, or an adverse action involving discharge from technician
 employment, suspension, furlough without pay, or reduction in rank or
 compensation."
 
                        III.  The Judge's Decision
 
    The Judge noted Authority precedent holding that the terms and
 conditions of a collective bargaining agreement continue in full force
 and effect after the expiration of the agreement unless the parties
 mutually agree to do otherwise.  He also noted Authority precedent
 holding that an agency may unilaterally change, upon the termination of
 an agreement, a term and condition of employment embodied in the expired
 agreement which involves a permissive subject of bargaining.  He
 concluded that the Respondent violated section 7116(a)(1) and (5) of the
 Statute when it refused to continue to adhere to the provisions of the
 parties' expired agreement dealing with the grievance procedure and the
 processing of disciplinary and adverse actions.  However, he concluded
 that the Respondent did not violate section 7116(a)(1) and (5) of the
 Statute when it unilaterally required a return to adherence to National
 Guard regulations concerning the wearing of military uniforms, as he had
 concluded in Case No. 5-CA-20338 (above) that this involved a permissive
 subject of bargaining and therefore the Respondent was within its rights
 to make such a change at the termination of the parties' agreement.
 
                       IV.  Positions of the Parties
 
    The Respondent contends that the only condition of employment it
 changed on October 6, 1982, was the uniform wearing requirement.  It
 asserts that the parties' then current agreement excluded by its own
 terms those matters which were subject to the disciplinary and adverse
 action procedures set forth in section 709(e) of the Technicians Act,
 and that grievances concerning subject matters which might properly have
 been filed pursuant to the grievance procedure contained in the parties'
 negotiated grievance procedure could still be resolved through that
 mechanism after the termination of the agreement.  In support of that
 contention, the Respondent points out that the 46 grievances concerning
 uniform wearing, mentioned above, were processed subsequent to the
 cancellation of the agreement pursuant to the terms of the agreement,
 and that there is no evidence that any grievances properly subject to
 the negotiated procedure were or would have been refused proper
 processing.
 
    In opposition to the Respondent, the Union contends that Congress
 intended, by virtue of section 7121 of the Statute, to offer employees a
 choice of alternative dispute mechanism -- either through a broad scope
 negotiated grievance procedure or through the procedure delineated in
 section 709(e) of the Technicians Act.  It further contends that the
 Judge, relying on earlier Authority decisions, properly held that
 disciplinary actions should be subject to the negotiated grievance
 procedure.  In essence, the Union argues that the parties' contractual
 provision excluding those matters subject to resolution pursuant to
 section 709(e) was meant only to exclude section 709(e) matters which
 were processed exclusively under that section, but was not meant to
 apply to such matters if initiated and pursued under the parties'
 contractual grievance procedure.
 
                               V.  Analysis
 
    As the Judge correctly found, the Authority has held that terms and
 conditions of employment which concern mandatory subjects of bargaining
 which are embodied in a collective bargaining agreement continue
 following the expiration of the agreement.  The Authority has also held,
 since the issuance of the Judge's Decision, that once an agreement has
 expired, either party may elect to no longer be bound by provisions
 therein concerning "permissive" subjects of bargaining, but instead may
 reassert the right not to negotiate with regard to such permissive
 subjects of bargaining.  See, for example, United States Department of
 Defense, Department of the Army, McAlester Army Ammunition Plant, 20
 FLRA No. 73 (1985), petition for review filed sub nom.  American
 Federation of Government Employees, Local 2815, AFL-CIO v. FLRA, No.
 86-1004 (D.C. Cir. Jan. 3, 1986), and the cases cited therein.
 
    As noted in the discussion of Case No. 5-CA-20338 above, subsequent
 to the issuance of the Judge's Decision, the Authority has held that the
 requirement that civilian technicians wear military uniforms rather than
 civilian attire is a permissive rather than a mandatory subject of
 bargaining.  Accordingly, the Respondent was within its rights in
 notifying the Union that civilian technicians would be required to wear
 the military uniform upon the expiration of the parties' agreement.
 This conclusion is also consistent with the Authority's decision in an
 arbitration appeal involving the same parties which arose from the same
 facts and circumstances that led to the unfair labor practice
 allegations in this case.  In The Adjutant General, State of Ohio and
 American Federation of Government Employees, AFL-CIO, Ohio Council of
 Air National Guard Locals No. 127, Local 3470, 17 FLRA 957 (1985), the
 Authority upheld the arbitrator's finding that the technicians who had
 exercised their option to choose to wear standardized civilian attire
 prior to the expiration of the parties' agreement were entitled to
 continue to do so for the one year period provided for in the parties'
 agreement, but that the technicians who had submitted declarations
 electing to wear civilian attire after the agreement expired did not
 have such a right.  In so concluding, the Authority noted that the
 requirement that civilian technicians wear military uniforms is a
 permissive rather than a mandatory subject of bargaining, and therefore
 could be terminated by either party after the agreement expired.
 
    Also subsequent to the issuance of the Judge's decision, the
 Authority, in Department of Defense, Illinois Air National Guard, 182nd
 Tactical Air Support Group, Peoria, Illinois, 19 FLRA No. 11 (1985),
 petition for review filed sub nom. Illinois Air Chapter 34, Association
 of Civilian Technicians, Inc. v. FLRA, No. 85-1579 (D.C. Cir. Sept. 12,
 1985), held that section 709(e) of the Technicians Act was the exclusive
 procedure for dealing with a matter involving an adverse personnel
 action against a National Guard technician.  The Authority cited and
 relied upon the opinions of several Courts of Appeals to the effect that
 the Technicians Act was meant to be the exclusive procedure for all
 matters enumerated in and susceptible to resolution through the
 procedures outlined in section 709(e).
 
    The General Counsel has not shown that the Respondent actually
 terminated any of the provisions of the parties' expired agreement
 pertaining to their grievance procedure or the processing of
 disciplinary and adverse actions under it.  It appears rather that
 management was only reaffirming its own past view as to what matters
 with regard to the grievance/arbitration provisions of the parties'
 agreement had been excluded because of the exclusion of section 709(e)
 matters.  In any event, as noted above, the Authority has held that such
 matters may not be included within the scope of a negotiated grievance
 procedure, and therefore the Respondent would not have committed an
 unfair labor practice by insisting that they be excluded even if they
 had been included in the past.
 
                              VI.  Conclusion
 
    The Authority concludes, consistent with its decision in McAlester
 Army Ammunition Plant, that the Respondent was within its rights under
 the Statute when it asserted, at the termination of the parties' then
 current agreement, that it would no longer be bound by the provision in
 the agreement that its civilian technician employees had the option of
 wearing standardized civilian attire and that such employees would
 henceforth be required to abide by National Guard regulations requiring
 the wearing of the military uniform.  Therefore, the Respondent's
 actions in this regard did not violate section 7116(a)(1) and (5), as
 alleged, and we shall dismiss that allegation of the complaint.
 
    The Authority also concludes, consistent with its decisions in
 Illinois Air National Guard and State of Ohio, above, that the
 Respondent was within its rights when it asserted that upon termination
 of the parties' agreement, the processing of all grievances and all
 disciplinary and adverse actions would have to be consistent with
 applicable National Guard regulations.  Therefore, the Respondent's
 actions in this regard did not violate section 7116(a)(1) and (5) of the
 Statute, as alleged, and we shall dismiss these allegations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Authority hereby orders that the Adjutant General, State of
 Ohio, Ohio Air National Guard, Worthington, Ohio, shall:
 
    1.  Cease and desist from:
 
    (a) Terminating and repudiating the terms of an October 6, 1982
 Memorandum of Understanding under which it had agreed to pay travel and
 per diem expenses, consistent with applicable Federal Travel
 Regulations, to the authorized representatives of the American
 Federation of Government Employees, Ohio Council of Air National Guard
 Locals, Council 127, AFL-CIO, who were engaged in negotiating a new
 collective bargaining agreement between the parties covering the unit
 employees.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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) Pay travel and per diem expenses consistent with applicable
 Federal Travel Regulations to the authorized representatives of the
 American Federation of Government Employees, Ohio Council of Air
 National Guard Locals, Council 127, AFL-CIO, who were engaged in
 negotiating a collective bargaining agreement pursuant to the parties'
 October 6, 1982 Memorandum of Understanding and make whole any
 representatives from whom such payments have been withheld.
 
    (b) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Adjutant General, or a designee,
 and shall be posted and maintained for 60 consecutive days thereafter,
 in conspicuous places, including bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to insure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, in writing, within
 30 days from the date of this Order, as to what steps have been taken to
 comply with it.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-30118,
 insofar as it alleges any other violations of the Statute, be, and it
 hereby is, dismissed.
 
    IT IS FURTHER ORDERED that the complaints in Case No. 5-CA-20338 and
 Case No. 5-CA-30091 be, and they hereby are, dismissed in their
 entirety.
 
    Issued, Washington, D.C., May 30, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          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
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT terminate and repudiate the terms of our October 6, 1982
 Memorandum of Understanding under which we had agreed to pay travel and
 per diem expenses, consistent with applicable Federal Travel
 Regulations, to the authorized representatives of the American
 Federation of Government Employees, Ohio Council of Air National Guard
 Locals, Council 127, AFL-CIO, who were engaged in negotiating a new
 collective bargaining agreement covering a unit of our employees.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL pay travel and per diem expenses consistent with applicable
 Federal Travel Regulations to the authorized representatives of the
 American Federation of Government Employees, Ohio Council of Air
 National Guard Locals, Council 127, AFL-CIO, who were engaged in
 negotiating a collective bargaining agreement pursuant to the parties'
 October 6, 1982 Memorandum of Understanding and make whole any
 representatives from whom such payments have been withheld.
                                       (Activity)
 
    Dated:
                                       By:  (Signature) (Title)
 
    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 or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
 whose telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos. 5-CA-20338 5-CA-30091 5-CA-30118
 
 ADJUTANT GENERAL, STATE OF OHIO, OHIO AIR 
 NATIONAL GUARD, WORTHINGTON, OHIO
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 OHIO COUNCIL OF AIR NATIONAL GUARD LOCALS, 
 COUNCIL 127, AFL-CIO
    Charging Party
 
    Major Robert D. Doane, Esquire
    For the Respondent
 
    Ronald Liwo
    For the Charging Party
 
    Arlander Keys, Esquire
    For the General Counsel,
    Federal Labor Relations Authority
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Labor-Managment Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101
 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the
 Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
 C.F.R. Chapter XIV, Section 2410 et seq.
 
    On September 27, 1982 American Federation of Government Employees,
 Ohio Council of Air National Guards Locals, Council 127, AFL-CIO
 (hereinafter called the Union or AFGE Council 127) filed a charge in
 Case No. 5-CA-20338, alleging that Adjutant General, State of Ohio, Ohio
 Air National Guard, Worthington, Ohio (hereinafter called Respondent or
 Ohio National Guard) had violated Sections 7116(a)(1), (5) and (8) of
 the Statute by declaring a Union proposal concerning the wearing of the
 military uniform by civilian technicians non-negotiable, after such
 proposal had been previously found negotiable by the FLRA.
 
    On December 9, 1982 the Union filed a charge in Case No. 5-CA-30091,
 alleging that Ohio Air National Guard had violated Sections 7116(a)(1)
 and (5) of the Statute by unilaterally changing terms and conditions of
 employment of civilian employees by requiring them to wear the military
 uniform and to adhere to National Guard Regulations concerning the
 processing of grievances and disciplinary and adverse actions.
 
    On December 30, 1982 the Union filed a charge in Case No. 5-CA-30118,
 alleging that Respondent had violated Sections 7116(a)(1) and (7) of the
 Statute by discontinuing to pay travel and per diem expenses of Union
 negotiators while they were engaged in negotiating a collective
 bargaining agreement with Respondent, thereby repudiating a Memorandum
 of Understanding in which Respondent had agreed to pay such expenses.
 On January 19, 1983 the Union filed an amended charge in Case No.
 5-CA-30118, in which it deleted the Section 7116(a)(7) allegation and
 alleged the stated facts therein to be violations of Sections
 7116(a)(1), (5) and (8) of the Statute.
 
    On November 24, 1982, January 11, 1983 and February 15, 1983,
 Complaints and Notices of Hearing issued in Case Nos. 5-CA-20338,
 5-CA-30091, and 5-CA-30118, respectively, alleging the violations
 alleged in said charges.  Respondent filed Answers to the Complaints in
 Case Nos. 5-CA-20338, 5-CA-30091, and 5-CA-30118, denying that it had
 violated the Statute.  /1/ By Order dated February 16, 1983, these cases
 were consolidated for purpose of hearing.
 
    A hearing in this matter was conducted before the undersigned in
 Columbus, Ohio.  The Ohio Air National Guard, AFGE Council 127 and the
 General Counsel of the FLRA were represented and afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence and to argue orally.  The parties entered into
 extensive stipulations of fact.  Post hearing briefs were filed and have
 been fully considered.
 
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    In July 1971, the Union became the exclusive collective bargaining
 representative for a unit composed of all general schedule and wage
 board employees, including civilian technicians, of the Ohio Air
 National Guard, with certain exclusions, not here relevant.  The
 Respondent and the Union became parties to a collective bargaining
 agreement covering civilian technicians, which expired in 1975 and then
 to a subsequent one which, by its terms, expired on June 21, 1981.  This
 latter agreement provided that it would remain in full force and effect,
 during renegotiation of the agreement, for up to one additional year
 after the ground rules were signed.
 
    On October 6, 1981 Respondent and AFGE Council 127 signed a
 Memorandum of Understanding, setting forth the ground rules for the
 negotiation of the new collective bargaining agreement and the parties
 agreed that the existing collective bargaining agreement would expire on
 October 6, 1982.  The ground rules provided that official time and
 travel and per diem expenses would be authorized by Respondent for the
 members of the Union's negotiating committee during such times as they
 were engaged in negotiating the new collective bargaining agreement;
 
    On March 17, 1981 the National Guard Bureau issued regulation TPR
 302.7-6, Wearing of the Military Uniform, which provides that civilian
 technicians are to wear the military uniform while performing civilian
 technician duties, unless otherwise specifically excluded by a
 negotiated labor agreement.  During the course of contract negotiations,
 the Union submitted the following proposal relative to the wearing of
 standardized civilian attire:
 
                          ARTICLE XXVI.  UNIFORMS
 
          Section 1.  a.  Ohio Air National Guard Technicians who are
       members of the Bargaining Unit, while performing their day-to-day
       duties shall have the option of wearing either:  (1) The Military
       Uniform;  or (2) an agreed upon standardized civilian attire,
       without the display of military rank.
 
          b.  For those individuals electing to wear the standardized
       civilian attire, it is the individual's responsibility to procure,
       maintain, and pay for any and all expenses incurred for his
       attire.
 
          c.  Either attire must be clean, neat and good (sic) condition
       on a daily basis.
 
    This proposal is identical to the provision contained in the expired
 collective bargaining agreement with respect to the wearing of
 standardized civilian attire.  Prior to this most recently expired
 collective bargaining agreement the civilian technicians had always worn
 the military uniform while performing day-to-day technician duties.
 
    By letter dated August 26, 1982 the Adjutant General of Ohio advised
 AFGE Council 127, that if the parties had not concluded a contract by
 October 6, 1982 there would be no contract in effect on October 7, 1982
 and that, accordingly, "all appropriate National Guard regulations shall
 be complied with during the remaining period of negotiation.  This will
 include the return of all technicians to the wear of the military
 uniform." By Memorandum dated September 16, 1982 Respondent declared the
 Union's proposal, Article XXVI, Uniforms, non-negotiable, asserting that
 the wearing of the uniform by civilian technicians is not a proper
 subject for negotiation.  Since September 16, 1982 Respondent has
 refused to negotiate concerning the Union's uniform proposal.
 
    As of October 7, 1982 the Adjutant General of Ohio, Major General
 James C. Clem, ordered that all technicians comply with the uniform
 regulations, TPR 302.7-6 and that the processing of grievances and all
 disciplinary and adverse actions be in accordance with Air Force and
 National Guard regulations.  Since October 7, 1982 Respondent has not
 permitted the filing of grievances under the contract grievance
 procedure.  /2/ On September 30, 1982 Respondent notified its
 supervisors and the Union that, effective October 7, 1982, the
 collective bargaining agreement would no longer be in effect and that
 the wearing of the military uniform by civilian technicians and the
 administering of all grievances and disciplinary and adverse actions
 would be in accordance with applicable Air Force and National Guard
 regulations.
 
    Pursuant to the National Guard regulations, implemented on October 7,
 1982 employees are required to wear the military uniform at all times
 while performing their civilian duties.
 
    The Air Force and National Guard regulations so implemented do not
 provide for arbitration or advisory arbitration, as did the expired
 collective bargaining agreement.  Rather the regulations provide that
 the final authority in the processing of a grievance is the Adjutant
 General.
 
    By letter dated August 26, 1982, Respondent, by Major General James
 C. Clem, notified the Union that, in view of the denial of enforcement
 of FLRA Orders in two United States Courts of Appeals concerning the
 payment of travel and per diem expenses to Union negotiators.
 Respondent proposed to hold in abeyance any further payment of such
 expenses pending a decision by the United States Supreme Court on the
 issue.  This proposal was not accepted by the Union.
 
    Since August 26, 1982, Respondent has accepted and recorded, but has
 not processed and paid the travel vouchers submitted by Union
 negotiators for travel and per diem expenses arising out of their having
 negotiated with Respondent on the new collective bargaining agreement.
 
    The primary mission of the Ohio Air National Guard is to provide
 trained, qualified, combat-ready forces in support of the active duty
 Air Force.
 
    The military uniform involves safety shoes, wet weather gear, and
 non-static jackets and material and is therefore related to the safety
 of civilian technicians.
 
    There is a 35 man base defense team that would be called in
 immediately for the security of the base.  A person in uniform may
 reasonably be deemed more effective than a person in civilian attire, in
 enforcing security orders vis-a-vis a civilian non-employee.
 
    Some aircraft were blown up at a facility controlled by the Puerto
 Rican Air National Guard.
 
                     Conclusions of Law and Discussion
 
    The parties hereto stipulated that the issues raised herein are as
 follows:
 
                            Case No. 5-CA-20338
 
          Whether Respondent, in view of the pendency of requests for
       review of Authority Orders concerning the issue of the
       negotiability of the wearing of the military uniform before
       several United States Courts of Appeals, violated 5 USC 7116(a)(1)
       and (5), when it declared the Union's bargaining proposal,
       described above in paragraph 12, as non-negotiable and thereafter
       refused to bargain concerning said proposal by alleging it to be a
       permissive Management right and thus subject to withdrawal from
       the bargaining process.
 
                            Case No. 5-CA-30091
 
          Whether Respondent, upon the termination of the collective
       bargaining agreement on October 6, 1982, violated 5 USC 7116(a)(1)
       and (5) by declaring the uniform to be a permissive subject of
       bargaining and not an appropriate subject of bargaining and by
       thereafter refusing to adhere to the provisions of said agreement
       concerning the wearing of the military uniform, the grievance
       procedure and the processing of disciplinary and adverse actions.
 
                            Case No. 5-CA-30118
 
          Whether Respondent, by refusing to process and pay travel and
       per diem for the Union's duly designated negotiators for expenses
       arising out of their negotiations with Respondent toward a new
       collective bargaining agreement, thereby breached the Memorandum
       of Understanding described above in paragraph 10 and/or failed to
       comply with 5 USC 7121(a), in violation of 5 USC 7116(a)(1), (5)
       and (8) even, though the exact issue is now pending before the
       United States Surpreme Court.
 
                          A.  Case No. 5-CA-30118
 
    The FLRA has held that Section 7131(a) of the Statute requires an
 agency to pay employee representatives of an exclusive collective
 bargaining representative engaged in contract negotiations, the travel
 and per diem expenses of such representatives for the time engaged in
 negotiations.  Interpretation and Guidance, 2 FLRA 265 (1979);  Bureau
 of Alcohol, Tobacco and Firearms, Western Region, Department of the
 Treasury, San Francisco, California, 4 FLRA 288 (1980), enforced sub
 nom. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
 Authority, 672 F.2d 732 (9th Cir. 1982), enforcement denied and case
 reversed 52 USLW 4013, No. 82-799 (U.S. November 29,1983) and Department
 of the Air Force, Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, supra.  But see, Division of Military and Naval
 Affairs, State of New York, Albany, New York, 7 FLRA 458 (1981),
 reversed sub nom. Division of Military and Naval Affairs v. Federal
 Labor Relations Authority, 683 F.2d 45 (2d Cir. 1982), U.S. Department
 of Agriculture, Science and Education Administration, Agricultural
 Research, North Central Region, Dakotas-Alaska Area, 6 FLRA 265 (1981),
 reversed sub nom. United States Department of Agriculture v. Federal
 Labor Relations Authority, 691 F.2d 1242 (8th Cir. 1982);  and Florida
 National Guard, 5 FLRA 365 (1981) reversed sub nom.  Florida National
 Guard and Department of Defense, v. Federal Labor Relations Authority,
 699 F.2d (11th Cir., 1983).  The United States Supreme Court in the
 Bureau of Alcohol, Tobacco and Firearms, v. FLRA, supra, in reversing
 the FLRA held that the Section 7131(a) of the Statute does not require
 the payment of travel and per diem expenses to Union negotiators.
 Accordingly, I conclude Respondent did not, in this respect violate
 Section 7116(a)(8) of the Statute.
 
    In the instant case, however, Respondent, in the ground rules, agreed
 to pay travel and per diem for the Union negotiators on official time.
 Such conduct by Respondent constituted a patent breach of a collective
 bargaining agreement and thus was in violation of Section 7116(a)(1) and
 (5) of the Statute.  Cf. Great Lakes Program Service Center, Social
 Security Administration, Department of Health and Human Services,
 Chicago, Illinois, 9 FLRA 499 (1982) and Internal Revenue Service, OALJ
 81-37 (July 21, 1982).  The subject case does not involve a dispute as
 to the meaning of the ground rules but rather a total rejection by
 Respondent of the ground rules term requiring payment of travel and per
 diem expenses.  In this regard the Supreme Court specifically stated
 that Section 7131(a) of the Statute does not preclude an agency from
 paying the travel and per diem expenses and recognized that a Union and
 agency can negotiate and contract for such payments.  Bureau of Alcohol,
 Tobacco and Firearms v. FLRA, supra, footnote 17.  Such a case is the
 instant one.
 
                          B.  Case No. 5-CA-30338
 
    Respondent contends that the Adjutant General of Ohio is permitted to
 declare the wearing of a military uniform non-negotiable pursuant to
 Section 7106(a)(1) /3/ of the Statute which provides that any management
 official may "determine the mission . . . internal security practices of
 the agency" and pursuant to 7106(b)(1) of the Statute which provides
 that nothing shall preclude any agency and any labor organization from
 negotiating . . . (1) at the election of the agency . . . on the
 technology, methods and means of performing the work;  . . ." Respondent
 contends that the Adjutant General of Ohio has determined that the use
 of a military uniform is necessary to carry out the mission of the
 agency and for internal security.
 
    Respondent "urges that the military uniform, in a military facility,
 worn by personnel working on military equipment, when those personnel
 have a definite mission of defense of those facilities and equipment is
 well within the internal security practices to be determined by the
 Adjutant General." /4/
 
    The Ohio Air National Guard's mission is to provide trained,
 qualified, combat-ready forces in support of the active duty Air Force,
 including the maintenance of aircraft, etc.  It may be reasonably
 concluded that internal security would be enhanced, improved or better
 maintained if all civilian technicians were required to wear military
 uniforms while on duty.  Such civilian employees would be easily
 identifiable, internal security forces can be more quickly mobilized and
 such civilian technicians, when in military uniform, would be more
 readily obeyed by civilians.
 
    The General Counsel of the FLRA points out that, when various State
 National Guards have refused to comply with FSIP awards, the FLRA has
 ordered parties to adopt union proposals containing nearly identical to
 the language involved herein.  See State of Nevada National Guard, 7
 FLRA 245 (1981);  Puerto Rico Air National Guard, 8 FLRA 480 (1982);
 Division of Military and Naval Affairs, State of New York, 8 FLRA 158
 (1982), remanded sub nom.  State of New York, Division of Military and
 Naval Affairs, (Albany, New York) and Department of Defense v. Federal
 Labor Relations Authority, 696 F.2d 202 (CA. 202, 1982);  Florida
 National Guard, 9 FLRA 347 (1982).  Further once a determination of
 negotiability has been made by the FLRA concerning a proposal a
 subsequent declaration of non-negotiability by another party with
 respect to a similar proposal constitutes a refusal to bargain in good
 faith unfair labor practice, so long as no meaningful differences can be
 found between the two proposals.  See Department of the Air Force, U.S.
 Air Force Academy, 6 FLRA 548 (1981);  Veterans Administration, Veterans
 Administration Regional Office, Buffalo, New York, 10 FLRA 167 (1982);
 Veterans Administration Medical Center, Northport, New York, 10 FLRA 675
 (1982).
 
    The FLRA, however, has never specifically addressed the question of
 whether the wearing of the military uniform by civilian technicians is a
 subject covered by Section 7106(a)(1) of the Statute dealing with
 internal security or covered by Section 7106(b)(1) of the Statute
 dealing with the technology and means of performing work.  The General
 Counsel of the FLRA submits that it is implicit in the FLRA's findings
 of violation when National Guards have refused to adopt the work attire
 language ordered by FSIP, that work attire is a mandatory subject of
 bargaining.  This argument is rejected.  The decisions of the FLRA
 dealing with the FSIP, work attire awards did not discuss whether, in
 the circumstances and facts of those cases, the wearing of the uniforms
 was a matter within the purview of Section 7106(a) and (b) of the
 Statute and there is absolutely nothing in those decisions to indicate
 that the respondent National Guards made such a contention.
 Accordingly, these FLRA decisions are not dispositive of the questions
 presented herein.
 
    It must be determined herein, therefore, whether the wearing of a
 military uniform by the civilians is a matter of "internal security"
 under Section 7106(a)(1) of the Statute or "technology, methods and
 means of performing work" under Section 7106(b)(1) of the Statute so as
 to permit Respondent to refuse to bargain about such matter.
 
    Protecting its facilities and equipment, including planes, is clearly
 a responsibility of Respondent.  It is noted that planes of the Puerto
 Rico National Guard have been destroyed.  In such circumstances, a
 requirement that all civilian technicians must wear military uniforms
 can not be said to be an unreasonable security precaution.  When wearing
 military uniforms, civilian technicians are easily identifiable, quickly
 mobilized for security purposes and more readily obeyed by non-employee
 civilians.  Thus it is a reasonable internal security practice and
 Respondent is privileged under a Section 7106(a)(1) of the Statute, to
 require the wearing of military uniforms by civilian technicians and to
 refuse to bargain about such determination.  Cf. American Federation of
 Government Employees, Local 15, and Department of the Treasury, Internal
 Revenue Service, 2 FLRA 874 (1980).
 
    Similarly, Respondent contends that the wearing of the military
 uniform involves the technology and method of performing the work.  In
 this regard, Respondent states the use of safety shoes and non-static
 jackets and clothes are required for safety considerations and that
 military uniforms meet these requirements.  A determination concerning
 appropriate safety equipment, assuming such determination is not totally
 unreasonable, comes within the purview of "the technology, methods, and
 means of performing work" as set forth in Section 7106(b)(1) of the
 Statute.  Accordingly, it is concluded that the wearing of the military
 uniform by civilian technicians is a safety determination by Respondent,
 pursuant to Section 7106(b)(1) of the Statute, about which at its own
 election, Respondent is not required to bargain.  /5/
 
    It can be argued, with respect to both the internal security and
 "technology, methods and means of performing work" considerations, that
 how these considerations can be met or best accomplished should be
 negotiable.  The entire thrust of Section 7106(a)(1) of the Statute is
 that once a matter is determined /6/ to be an internal security practice
 it is not negotiable, even though the Union might reasonably contend
 that the same end can be better achieved by utilizing other means.
 Similarly the thrust of Section 7106(b)(1) of the Statute is that, once
 a matter is determined to be the "technology, methods, and means of
 performing work" Respondent, at its own election, need not negotiate
 concerning such matter, even though the Union might reasonably content
 that the same objective could be better achieved by utilizing other
 means.  /7/
 
    In light of all the foregoing, it is concluded that Respondent did
 not violate Sections 7116(a)(1) and (5) of the Statute when, upon
 expiration of the then existing collective bargaining agreement, it
 declared the Union's proposal concerning the wearing of the military
 uniform non-negotiable and refused to bargain about it.
 
                          C.  Case No. 5-CA-30091
 
    This case deals with the contention that, after the termination of
 the collective bargaining agreement, Respondent violated Sections
 7116(a)(1) and (5) of the Statute by refusing to continue to adhere to
 those provisions of the agreement concerning the wearing of civilian
 "uniform" by civilian technicians, the grievance procedure and the
 processing of disciplinary and adverse actions.  It is contended that
 Respondent thereby unilaterally changed the terms and conditions of
 employment.
 
    The FLRA holds that terms and conditions of employment, established
 by a collective bargaining agreement, continue in force and effect after
 the expiration of the agreement, unless the parties mutually agree
 otherwise.  Cf. Department of the Air Force, 35th Combat Support Group
 (TAC), George Air Force Base, California, 4 FLRA 22 (1980), hereinafter
 called the George Air Force Base case;  Department of Defense,
 Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 4
 FLRA 760 (1980) and U.S. Nuclear Regulatory Commission, 6 FLRA 18
 (1981).  In the George Air Force Base case, supra, FLRA specifically
 held that "negotiated grievance and arbitration procedures must continue
 as established upon the expiration of a negotiated agreement, absent
 express agreement by the parties to the contrary . . . ." An agency, may
 upon the expiration of a collective bargaining agreement, however,
 change provisions of the agreement concerning permissive subjects of
 bargaining.  U.S. Naval Station, Mayport, Florida, 6 FLRA 133 (1981).
 
    In light of the foregoing and having already determined that the
 determination that civilian technicians must wear military uniforms is
 covered by Sections 7106(a) and (b) of the Statute, it is concluded that
 Respondent was permitted, at the termination of the agreement, to
 unilaterally change the agreement's provisions and to unilaterally
 require civilian technicians to wear military uniforms.  Accordingly, it
 is concluded, in this respect that Respondent did not violate Sections
 7116(a)(1) and (5) of the Statute.  Cf. U.S. Naval Station, Mayport,
 Florida, supra.
 
    Respondent argues that, with respect to the grievance procedure or
 the procedure for the processing of disciplinary and adverse actions,
 the National Guard Technicians Act of 1968, Public Law 90-486, 32 U.S.C.
 709, the Adjutant General is the final authority with respect to adverse
 actions affecting civilian technicians and is not, in this area, subject
 to the provisions of the Statute.  Respondent relies upon New Jersey Air
 National Guard v. Federal Labor Relations Authority, 677 F.2d 276 (3rd
 Cir. 1982);  cert denied 103 S. Ct. 343 (1982).  /8/ The FLRA in dealing
 with the relationship of the Statute and the National Guard Technicians
 Act of 1968, however, specifically rejected the contention that Section
 709(e) of the National Guard Technicians Act of 1968 requires the
 specific exclusion of adverse actions involving technicians from
 coverage under negotiated grievance procedures.  Michigan Army National
 Guard, Lansing, Michigan, 11 FLRA 365 (1983), footnote on page 365 and
 the cases cited therein.  See also NAGE Local R12-132 and California
 National Guard, 5 FLRA 201 (1981), reversed sub nom.  California
 National Guard, v. Federal Labor Relations Authority, 697 F.2d 874 (9th
 Cir. 1983).  I am constrained to follow the decisions of the FLRA and
 accordingly reject Respondent's contention that Section 709(e) of the
 National Guard Technicians Act of 1968 specifically reserves adverse
 actions to the Adjutant General and that in the case of adverse actions
 the Statute's mandates concerning negotiated grievance procedures and
 bargaining do not apply.
 
    I therefore conclude that Respondent violated Sections 7116(a)(1) and
 (5) of the Statute when, at the termination of the collective bargaining
 agreement, it refused to continue to adhere to those provisions of the
 agreement dealing with the grievance procedure and the processing of
 disciplinary and adverse actions.
 
    Having found and concluded that Respondent violated Sections
 7116(a)(1) and (5) of the Statute, I recommend the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to Section 2423.23 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, it is
 hereby ordered that the Adjutant General, State of Ohio, Ohio Air
 National Guard, Worthington, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to give effect to the agreement
       between American Federation of Government Employees, Ohio Council
       of Air National Guard Locals, Council 127, AFL-CIO, which sets
       forth the collective bargaining ground rules and which provides
       payment of travel and per diem expenses to representatives
       designated by the Union for the time spent in collective
       bargaining negotiations.
 
          (b) Unilaterally changing the grievance procedure and the
       procedure for the processing of disciplinary and adverse actions
       or any other condition of employment without first notifying AFGE
       Ohio Council of Air National Guard Locals, Council 127, AFL-CIO,
       and giving it an opportunity to bargain about any such change.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Provide representatives designated by American Federation
       of Government Employees, Ohio Council of Air National Guard
       Locals, Council 127, AFL-CIO, with necessary travel and per diem
       expenses, for the time spent in contract negotiations, in
       compliance with the ground rules and make whole representatives
       for such travel and per diem expenses which they have not been
       paid.
 
          (b) Reinstate the grievance procedure and the procedure for
       processing disciplinary and adverse actions as provided in the
       expired collective bargaining agreement with American Federation
       of Government Employees, Ohio Council of Air National Guard
       Locals, Council 127, AFL-CIO.
 
          (c) Post at its various installations of the Ohio Air National
       Guard wherein unit employees are located copies of the attached
       Notice on forms to be furnished by the Federal Labor Relations
       Authority.  Upon receipt of such forms, they shall be signed by an
       authorized representative of the Respondent and shall be posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including bulletin boards and all other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to insure that said Notices are not altered,
       defaced or covered by any other materials
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region V, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       the Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED, that the complaints in all other aspects are
 hereby dismissed.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  December 20, 1983
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) On January 11, 1983 and February 4, 1983, Counsel for the General
 Counsel filed Motions for Summary Judgments in Case Nos. 5-CA-20338,
 5-CA-30091, respectively.  On February 11, 1983 Respondent filed a
 Response to the Motion for Summary Judgment in Case Nos. 5-CA-30091.  By
 Orders dated February 2, 1983 and March 1, 1983 Counsel for the General
 Counsel's Motions for Summary Judgment were denied in Case Nos.
 5-CA-20338 and 5-CA-30091, respectively.
 
    (2) The parties stipulates:
 
    Since October 6, 1982, the Ohio Air National Guard has accepted 46
 grievances on the option of wear of standardized civilian attire which
 have resulted in two (2) arbitrations now in the process of resolution.
 The 46 grievances referred to above, all of which were filed on or
 before October 6, 1982, allege that Respondent violated Article XXIV,
 Section 2 of the collective bargaining agreement by refusing to continue
 to honor the written selections of individual employees to wear the
 military uniform or civilian attire which selections had not been in
 effect for the required one year period as of October 6, 1982.
 
    (3) Respondent's counsel specifically stated at the hearing that
 Respondent was arguing that the uniform issue was a permissive subject
 for bargaining under Section 7106(b)(1) not that it is forbidden to
 bargain about it under Section 7106(a) of the Statute.  Tr. pp. 13-14.
 Respondent has apparently changed its position in its brief.
 
    (4) See page 36 of Respondent's brief.
 
    (5) This, of course does not mean Respondent is not required to
 bargain about the impact and implementation of such a determination.
 See Section 7106(b)(2) and (3) of the Statute.
 
    (6) Of course such determinations must be reasonably related to
 internal security.  An assertion that a matter is related to internal
 security, where such assertion is frivolous, would not invoke the
 operation of Section 7106(a)(1) of the Statute.
 
    (7) Of course such determination must be reasonably related to the
 technology of doing the work.  A mere assertion of such, where
 frivolous, would not invoke the operation of Section 7106(b)(1) of the
 Statute.
 
    (8) American Federation of Government Employees, AFL-CIO, Local 3486
 and New Jersey Air National Guard, 177th Fighter Interceptor Group,
 Pamora, New Jersey, 5 FLRA 209 (1981);  reversed sub nom.  New Jersey
 Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276
 (3th Cir. 1982);  cert denied 103 S. Ct. 343 (1982).
 
 
 
 
 
 
                                 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 and refuse to give effect to the agreement between
 American Federation of Government Employees, Ohio Council of Air
 National Guard Locals, Council 127, AFL-CIO, which sets forth the
 collective bargaining ground rules and which provides payment of travel
 and per diem expenses to representatives designated by the Union for the
 time spent in collective bargaining negotiations.
 
    WE WILL NOT unilaterally change the grievance procedure and the
 procedure for the processing of disciplinary and adverse actions or any
 other condition of employment without first notifying AFGE Ohio Council
 of Air National Guard Locals, Council 127, AFL-CIO, and giving it an
 opportunity to bargain about any such change.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL provide representatives designated by American Federation of
 Government Employees, Ohio Council of Air National Guard Locals, Council
 127, AFL-CIO, with necessary travel and per diem expenses, for the time
 spent in contract negotiations, in compliance with our ground rules and
 make such representatives whole for such travel and per diem expenses
 which they have not been paid.
 
    WE WILL reinstate the grievance procedure and the procedure for
 processing disciplinary and adverse actions as provided in the expired
 collective bargaining agreement with American Federation of Government
 Employees, Ohio Council of Air National Guard Locals, Council 127,
 AFL-CIO.
                                       (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