State of California National Guard, Sacramento, California and Locals R12-125, R12-132, R12-146 and R12-150, National Association of Government Employees

 2 FLRA No. 21
 
 LTC. H.R. MAHONEY
 STATE OF CALIFORNIA
 OFFICE OF THE COMMANDING GENERAL
 STATE MILITARY FORCES-MILITARY DEPARTMENT
 2829 WATT AVENUE
 SACRAMENTO, CALIFORNIA 95821
 
                        RE:  STATE OF CALIFORNIA NATIONAL GUARD,
                             SACRAMENTO, CALIFORNIA AND LOCALS 
                             R12-125, R12-132, R12-146 AND 
                             R12-150, NATIONAL ASSOCIATION OF 
                             GOVERNMENT EMPLOYEES, 77 FSIP 77, 78 
                             FSIP 42, 78 FSIP 44 AND 78 FSIP 49, 
                             Case No. 0-MC-3
 
 DEAR COLONEL MAHONEY:
 
    THIS REFERS TO YOUR PETITION FOR REVIEW OF A FEDERAL SERVICE IMPASSES
 PANEL DECISION AND ORDER, FILED WITH THE AUTHORITY ON MARCH 23, 1979.
 
    ACCORDING TO YOUR PETITION FOR REVIEW AND OTHER RELEVANT MATERIAL,
 INCLUDING ISSUANCES OF THE FEDERAL SERVICE IMPASSES PANEL (HEREINAFTER
 THE PANEL), THE PERTINENT BACKGROUND IN THIS MATTER IS AS FOLLOWS:
 
    DURING SEPARATE NEGOTIATIONS BETWEEN LOCALS R12-105, R12-125,
 R12-132, R12-146 AND R12-150 OF THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES (NAGE), WHICH LOCALS INDIVIDUALLY REPRESENT UNITS OF ARMY OR
 AIR NATIONAL GUARD TECHNICIANS, AND THE COMMANDING GENERAL, STATE
 MILITARY FORCES, CALIFORNIA (CALIFORNIA NATIONAL GUARD) AN IMPASSE AROSE
 IN EACH BARGAINING UNIT CONCERNING THE WEARING OF MILITARY UNIFORMS BY
 CALIFORNIA NATIONAL GUARD TECHNICIANS WHEN PERFORMING DAY-TO-DAY
 TECHNICIAN DUTIES.  AS A RESULT, EACH OF THE NAGE LOCALS, PURSUANT TO
 SECTION 17 OF EXECUTIVE ORDER 11491, AS AMENDED, FILED A SEPARATE
 REQUEST WITH THE PANEL FOR ASSISTANCE IN RESOLVING THE IMPASSE.  AFTER
 INFORMAL INQUIRIES AND CONSULTATIONS WITH THE PARTIES, THE PANEL, ON
 JUNE 30, 1978, ISSUED AN ORDER TO SHOW CAUSE IN EACH OF THESE FIVE CASES
 WHY CONTRACT LANGUAGE ORDERED BY THE PANEL TO BE ADOPTED IN ELEVEN PRIOR
 CASES CONCERNING THE UNIFORM ISSUE, THAT IS, CONTRACT LANGUAGE AFFORDING
 SUCH TECHNICIAN EMPLOYEES "THE OPTION OF WEARING EITHER THE MILITARY
 UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE WITHOUT DISPLAY OF
 MILITARY RANK" SUBJECT TO AGREED-UPON EXCEPTIONS TO COVER CIRCUMSTANCES
 WHERE THE WEARING OF THE UNIFORM MAY BE REQUIRED, SHOULD NOT ALSO BE
 ADOPTED IN THESE CASES.  ONLY THE CALIFORNIA NATIONAL GUARD RESPONDED TO
 THE ORDERS TO SHOW CAUSE.
 
    THE PANEL, ON OCTOBER 13, 1978, AFTER CONSIDERATION OF THE CALIFORNIA
 NATIONAL GUARD'S RESPONSE, ISSUED A CONSOLIDATED DECISION AND ORDER
 DIRECTING THE PARTIES IN THE FOUR CASES INVOLVED IN THIS PETITION FOR
 REVIEW (THE FIFTH CASE, NAMELY NAGE LOCAL R12-105, 77 FSIP 70, BEING
 HELD IN ABEYANCE BY THE PANEL PENDING THE OUTCOME OF A QUESTION
 CONCERNING THAT LOCAL'S REPRESENTATION) /1/ TO ADOPT THE AFOREMENTIONED
 CONTRACT LANGUAGE IN EACH OF THEIR AGREEMENTS.
 
    ON NOVEMBER 21, 1978, THE CALIFORNIA NATIONAL GUARD REQUESTED THAT
 THE PANEL RECONSIDERED ITS OCTOBER 13, 1978, DECISION AND ORDER.  AFTER
 THIS REQUEST WAS DENIED BY THE PANEL ON JANUARY 9, 1979, YOU FILED THE
 INSTANT PETITION FOR REVIEW OF THE PANEL'S DECISION AND ORDER.
 
    IN THE SUBJECT PETITION FOR REVIEW OF THE PANEL'S DECISION AND ORDER
 YOU REQUEST THAT THE AUTHORITY "OVERRULE THE (PANEL'S) INSTRUCTIONS AND
 ALLOW THE COMMANDING GENERAL, STATE MILITARY FORCES, CALIFORNIA, HIS OWN
 DISCRETION IN REQUIRING THE CALIFORNIA NATIONAL GUARD TECHNICIAN
 WORKFORCE TO WEAR THE MILITARY UNIFORM" OR, IN THE ALTERNATIVE, "TO
 ACCORD THE CALIFORNIA NATIONAL GUARD BENEFIT OF A FACT FINDING HEARING .
 . . ."
 
    WE HAVE CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE PANEL'S
 DECISION AND ORDER AND HAVE DETERMINED FOR THE REASONS EXPRESSED BELOW
 THAT THERE SINCE ARE NO PROVISIONS IN THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1192) WHICH SANCTION DIRECT
 APPEALS FROM FINAL PANEL DECISIONS TO THE AUTHORITY, YOUR APPEAL MUST BE
 DENIED.
 
    AS PREVIOUSLY STATED, THE CASE AROSE UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, WHEN THE NAGE LOCALS INVOLVED IN THIS CASE REQUESTED THE PANEL
 TO RESOLVE AN IMPASSE IN NEGOTIATIONS.  FURTHER, AS ALSO STATED, THE
 PANEL, PURSUANT TO ITS AUTHORITY UNDER SECTIONS 5 AND 17 OF THE
 EXECUTIVE ORDER, ISSUED ITS CONSOLIDATED DECISION AND ORDER ON OCTOBER
 13, 1978, AND DENIED THE CALIFORNIA NATIONAL GUARD'S REQUEST FOR
 RECONSIDERATION OF THE DECISION AND ORDER ON JANUARY 9, 1979.  NO
 PROVISIONS WERE CONTAINED IN EXECUTIVE ORDER 11491, AS AMENDED, OR IN
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL
 AUTHORIZING DIRECT APPEALS FROM FINAL PANEL DECISIONS TO THE COUNCIL.
 INSTEAD, AN AGGRIEVED PARTY WAS EMPOWERED IN EFFECT TO OBTAIN REVIEW OF
 A PANEL DECISION AND ORDER BY THE COUNCIL THROUGH THE UNFAIR LABOR
 PRACTICE PROCEDURES ESTABLISHED IN THE EXECUTIVE ORDER, THAT IS, AFTER
 THE FILING BY THE OTHER PARTY OF AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING NONCOMPLIANCE WITH THE DECISION AND ORDER OF THE PANEL, A
 DECISION ON THAT COMPLAINT BY THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, AND AN APPEAL FROM AN ADVERSE DECISION OF
 THE ASSISTANT SECRETARY TO THE COUNCIL.  /2/
 
    UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, WHICH
 BECAME EFFECTIVE AFTER THE PANEL ISSUED ITS FINAL DECISION IN THE MATTER
 BUT BEFORE THE INSTANT APPEAL WAS FILED, /3/ THE COUNCIL'S POLICY
 PRECLUDING DIRECT APPEALS OF FINAL PANEL DECISIONS, EXCEPT IN THE
 CONTEXT OF THE UNFAIR LABOR PRACTICE PROCEDURES, REMAINS IN FULL FORCE
 AND EFFECT, UNLESS, AS RELEVANT IN THIS CASE, SUCH POLICY IS SUPERSEDED
 BY SPECIFIC PROVISIONS OF THE STATUTE OR BY DECISIONS ISSUED BY THE
 AUTHORITY UNDER THE STATUTE.  /4/
 
    AS TO REVIEW OF FINAL PANEL DECISIONS BY THE AUTHORITY UNDER THE
 STATUTE, AND AS REVEALED BY RELEVANT LEGISLATIVE HISTORY OF THE STATUTE,
 THE CLEAR INTENT AND PURPOSE OF CONGRESS WAS TO ESTABLISH THE UNFAIR
 LABOR PRACTICE PROCEDURE AS THE EXCLUSIVE MEANS OF OBTAINING AUTHORITY
 REVIEW.  SPECIFICALLY IN THIS REGARD, IN THE PORTION OF THE LEGISLATIVE
 HISTORY OF THE STATUTE CONCERNING FINAL ORDERS ISSUED BY THE PANEL UNDER
 SECTION 7119(C) OF THE STATUTE, 5 U.S.C.7119(C) (92 STAT. 1209), WHICH
 SECTION ESSENTIALLY CODIFIES THE PANEL'S PREEXISTING AUTHORITY AND
 RESPONSIBILITY TO RESOLVE NEGOTIATION IMPASSES AND IS DERIVED FROM THE
 HOUSE BILL (H.R. 11280), THE HOUSE REPORT EXPRESSLY STATES (H.REP. NO.
 95-1403, JULY 31, 1978, AT 54-55):
 
    NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED UPON
 THE PARTIES, AND THE
 
    ACTION IS FINAL AND BINDING UPON THE PARTIES DURING THE TERM OF THE
 AGREEMENT, UNLESS THE
 
    PARTIES AGREE OTHERWISE.  FINAL ACTION OF THE PANEL UNDER THIS
 SECTION IS NOT SUBJECT TO
 
    APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION ORDERED BY THE
 PANEL CONSTITUTES AN UNFAIR
 
    LABOR PRACTICE BY AN AGENCY UNDER SECTION 7116(A) AND (8) OR A LABOR
 ORGANIZATION UNDER
 
    SECTION 7116(B)(6) AND (8).
 
    THESE PROVISIONS OF SECTION 7116 IN THE HOUSE BILL ADVERTED TO IN THE
 REPORT, AND AS ENACTED WITHOUT MODIFICATION IN THE STATUTE, STATE THAT
 IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY OR A LABOR
 ORGANIZATION, RESPECTIVELY, "(6) TO FAIL OR REFUSE TO COOPERATE IN
 IMPASSE PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY THIS CHAPTER;  .
 . . " OR "(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION
 OF THIS CHAPTER."
 
    IT IS CLEAR, THEREFORE, FROM THE LITERAL LANGUAGE OF SECTION 7116 OF
 THE STATUTE AND THE INTENT OF CONGRESS AS EXPRESSED IN THE RELATED
 LEGISLATIVE HISTORY, THAT UNDER THE STATUTE, AUTHORITY REVIEW OF A FINAL
 PANEL DECISION AND ORDER, SUCH AS THE ONE HERE INVOLVED, MAY BE SOUGHT
 BY THE PARTY OBJECTING TO THAT ORDER ONLY AFTER THE FILING OF UNFAIR
 LABOR PRACTICE CHARGES BY THE OTHER PARTY, BASED ON NONCOMPLIANCE WITH
 THE PANEL'S DECISION AND ORDER UNDER SECTION 7118 OF THE STATUTE, 5
 U.S.C. 7118 (92 STAT. 1207-1209) AND PART 2423 OF THE AUTHORITY'S RULES
 OF PROCEDURE (44 FED.REG. 44,760(1979) (TO BE CODIFIED IN 5 C.F.R. PART
 2423)).  /5/
 
    ACCORDINGLY, AS THE STATUTE, LIKE E.O. 11491, AS AMENDED, DOES NOT
 SANCTION REVIEW OF A PANEL DECISION AND ORDER, EXCEPT THROUGH THE UNFAIR
 LABOR PRACTICE PROCEDURES SET FORTH IN THE STATUTE, YOUR PETITION FOR
 DIRECT REVIEW OF THE SUBJECT PANEL DECISION AND ORDER MUST BE DENIED.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /6/
 
    CC:  J. CARPENTER
 
    NAGE
 
    W. A. ROBERTSON
 
    NGB
 
    H. W. SOLOMON
 
    FSIP
 
    /1/ THE RESULTING PANEL DECISION AND ORDER IN 77 FSIP 70 WAS
 SEPARATELY APPEALED TO THE AUTHORITY, WHICH APPEAL WAS DENIED BY THE
 AUTHORITY ON THE PRESENT DATE IN CALIFORNIA NATIONAL GUARD, FRESNO AIR
 NATIONAL GUARD BASE, FRESNO, CALIFORNIA AND LOCAL R12-105, NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, 77 FSIP 70, 2 FLRA (FLRA NO. O-MC-4
 (DEC. 5, 1979), REPORT NO.  )
 
    /2/ SEE STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 78P-5 (DEC. 28,
 1978), REPORT NO. 169, AT P. 3 OF COUNCIL STATEMENT.
 
    /3/ SINCE NO ADMINISTRATIVE PROCEEDINGS IN THIS CASE WERE PENDING ON
 JANUARY 11, 1979, THE DATE THE PROVISIONS OF THE STATUTE TOOK EFFECT,
 SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224)
 IS NOT APPLICABLE IN THIS CASE.  AS TO THE APPLICATION OF SECTION
 902(B), SEE CALIFORNIA NATIONAL GUARD, FRESNO AIR NATIONAL GUARD BASE,
 FRESNO, CALIFORNIA AND LOCAL R12-105 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, 77 FSIP 70, 2 FLRA (FLRA NO. O-MC-4 (DEC. 5, 1979), REPORT
 NO.  )
 
    /4/ SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215) PROVIDES IN PERTINENT PART AS FOLLOWS:
 
    (B) POLICIES . . . ESTABLISHED UNDER AND DECISIONS ISSUED UNDER
 (EXECUTIVE ORDER 11491, AS
 
    AMENDED) AS IN EFFECT ON THE EFFECTIVE DATE OF THIS (STATUTE), SHALL
 REMAIN IN FULL FORCE AND
 
    EFFECT . . . UNLESS SUPERSEDED BY SPECIFIC PROVISIONS OF THIS
 (STATUTE) OR . . . DECISIONS
 
    ISSUED PURSUANT TO THIS (STATUTE).
 
    /5/ IN THIS REGARD, NAGE FILED AN UNFAIR PRACTICE CHARGE WITH THE
 AUTHORITY'S SAN FRANCISCO REGION ON MAY 7, 1979, WHICH ALLEGED THAT THE
 ACTIVITY VIOLATED SECTION 7116(A)(6) OF THE STATUTE.  THE UNFAIR LABOR
 PRACTICE CHARGE IS CURRENTLY PENDING.
 
    /6/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.