[ v08 p54 ]
08:0054(11)CA
The decision of the Authority follows:
8 FLRA No. 11
STATE OF CALIFORNIA NATIONAL GUARD
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R12-125, R12-132,
R12-146, R12-150 and R12-105
Charging Party
Case No(s). 9-CA-44,
9-CA-95
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT
IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
DECISION AND ORDER AND A BRIEF IN SUPPORT THEREOF, AND THE GENERAL
COUNSEL FILED AN OPPOSITION THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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. /1/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD IN THE SUBJECT
CASES, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S RECOMMENDATIONS AS
MODIFIED HEREIN. BASED ON THE AUTHORITY'S DECISION IN STATE OF NEVADA
NATIONAL GUARD, 7 FLRA NO. 37(1981), AND THE RATIONALE THEREIN, THE
AUTHORITY AGREES WITH THE JUDGE THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (6) OF THE STATUTE. IN VIEW OF THAT FINDING, THE
AUTHORITY FINDS IT UNNECESSARY TO PASS UPON WHETHER THE RESPONDENT'S
CONDUCT ALSO VIOLATED SECTION 7116(A)(5) OR (8).
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE STATE OF CALIFORNIA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO COMPLY AND COOPERATE WITH DECISIONS AND
ORDERS OF THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978,
AND APRIL 13, 1979.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES IN EXECUTIVE ORDER 11491, AS AMENDED, AND THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF THE
FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL 13,
1979.
(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDING GENERAL, CALIFORNIA NATIONAL GUARD, 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
COMMANDING GENERAL SHALL TAKE REASONABLE STEPS 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 9, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 FAIL AND REFUSE TO COMPLY WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL
13, 1979.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL
13, 1979, AND WILL OTHERWISE COOPERATE IN IMPASSES PROCEDURES AND
DECISIONS AS REQUIRED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
(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 OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 540 BUSH STREET, SUITE 500, SAN FRANCISCO, CALIFORNIA
94102, AND WHOSE TELEPHONE NUMBER IS (415)556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
REGIONAL ATTORNEY
JOSANNA BERKOW, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION 9,
450 GOLDEN GATE AVENUE
ROOM 11409, P.O.BOX 36016
SAN FRANCISCO, CALIFORNIA 94102
FOR THE GENERAL COUNSEL
STEPHAN J. EGAN, ESQUIRE
DEPUTY ATTORNEY GENERAL
STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE
555 CAPITOL MALL, SUITE 350
SACRAMENTO, CALIFORNIA 95814
FOR THE RESPONDENT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C 7101 ET. SEQ., AS A RESULT OF
A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT DATED OCTOBER 31, 1979
FILED BY THE REGIONAL DIRECTOR, REGION 9, FEDERAL LABOR RELATIONS
AUTHORITY, SAN FRANCISCO, CALIFORNIA AGAINST THE STATE OF CALIFORNIA
NATIONAL GUARD (RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5
U.S.C. 7116(1)(1), (5), (6), AND (8) IN THAT SINCE ON OR ABOUT NOVEMBER
12, 1978 RESPONDENT HAS FAILED AND REFUSED TO ADOPT CONTRACT LANGUAGE
AND TAKE OTHER AFFIRMATIVE ACTION DIRECTED BY FINAL DECISIONS AND ORDERS
OF THE FEDERAL SERVICES IMPASSES PANEL AND HAS FAILED AND REFUSED TO
MEET AND NEGOTIATE IN GOOD FAITH WITH THE CHARGING PARTY OR UNION TO
DISCUSS MATTERS PERTAINING TO THE IMPLEMENTATION OF THESE FINAL
DECISIONS AND ORDERS.
RESPONDENT'S ANSWER DENIED THESE ALLEGATIONS AND SET UP AFFIRMATIVE
DEFENSES.
A HEARING WAS SET IN THIS MATTER FOR JANUARY 8, 1980. HOWEVER, UPON
A REPRESENTATION BY COUNSEL FOR THE GENERAL COUNSEL DURING A CONFERENCE
CALL THAT A MOTION FOR SUMMARY JUDGMENT WOULD BE FILED, THE CHIEF JUDGE
POSTPONED THE HEARING, AND THE UNDERSIGNED SUBSEQUENTLY ISSUED THE
FOLLOWING ORDER:
THE FOLLOWING BRIEFING SCHEDULE IS ESTABLISHED IN ORDER TO RULE UPON
THE MOTION OR
OTHERWISE ASCERTAIN WHAT MATERIAL FACTS EXIST WITHOUT SUBSTANTIAL
CONTROVERSY AND WHAT
MATERIAL FACTS ARE ACTUALLY AND IN GOOD FAITH CONTROVERTED:
1. THE GENERAL COUNSEL'S MOTION FOR SUMMARY JUDGMENT SHALL BE SERVED
ON RESPONDENT ON OR
BEFORE JANUARY 10, 1980. THE BASIC MOTION SHALL INCLUDE A SEPARATELY
NUMBERED AND
NON-ARGUMENTATIVE STATEMENT OF ALL ALLEGED UNCONTESTED MATERIAL FACTS
WHICH PROVIDE THE BASIS
FOR THE MOTION, REFERENCED TO THE PARTS OF THE RECORD RELIED UPON OR
TO SUPPORTING EXHIBITS AND AFFIDAVITS.
2. RESPONDENT SHALL SERVE ON OR BEFORE JANUARY 28, 1980 A CONCISE
STATEMENT OF GENUINE
ISSUES WHICH SHALL INCLUDE A STATEMENT OF DISPUTED FACTS,
CORRESPONDINGLY NUMBERED TO THE
GENERAL COUNSEL'S, AS TO WHICH IT IS CONTENDED THERE EXISTS A GENUINE
ISSUE NECESSARY TO BE
LITIGATED AS WELL AS A STATEMENT OF ANY ADDITIONAL CONTESTED OR
UNCONTESTED MATERIAL FACTS,
WITH BOTH STATEMENTS REFERENCED TO THE PARTS OF THE RECORD OR
SUPPORTING EXHIBITS AND
AFFIDAVITS RELIED UPON. RESPONDENT MAY, IF IT DESIRES, CROSS MOVE
FOR SUMMARY JUDGMENT AT THIS TIME.
3. THE PARTIES SHALL SERVE ANY ADDITIONAL REPLY STATEMENTS WITH
REGARD TO THE FACTS AND
ISSUES TOGETHER WITH MEMORANDA OF LAW IN SUPPORT OF OR OPPOSITION TO
THE MOTION(S) ON OR BEFORE FEBRUARY 13, 1980.
4. IN DETERMINING THE MOTION(S) FOR SUMMARY JUDGMENT AND/OR WHAT
FURTHER PROCEEDINGS, IF
ANY, ARE NECESSARY, FACTS AS CLAIMED BY A PARTY IN THE PARTY'S
STATEMENT OF MATERIAL FACTS
WILL BE DEEMED ADMITTED TO EXIST EXCEPT AS AND TO THE EXTENT SUCH
FACTS ARE CONTROVERTED AS
PRESCRIBED HEREIN. AS INDICATED ABOVE, STATEMENTS OF MATERIAL FACTS
MUST BE SEPARATELY
NUMBERED AND STATED IN AN OBJECTIVE, AND NON-ARGUMENTATIVE FASHION.
THE GENERAL COUNSEL FILED A MOTION FOR SUMMARY JUDGMENT, STATEMENT OF
MATERIAL FACTS, AND MEMORANDUM OF LAW IN ACCORDANCE WITH THE ORDER. THE
RESPONDENT FILED A RESPONSE TO THE MOTION WHICH MERELY REQUESTED THAT
THE MOTION BE DENIED AND THAT A HEARING BE HELD PURSUANT TO 5 U.S.C.
7118(A)(6). RESPONDENT FAILED TO RAISE A SINGLE AREA OF FACTUAL
DISPUTE. RESPONDENT DID NOT FILE A MEMORANDUM OF LAW IN OPPOSITION TO
THE MOTION OR IN SUPPORT OF ITS AFFIRMATIVE DEFENSE.
IT HAS LONG BEEN ESTABLISHED THAT THE PURPOSE OF SUMMARY JUDGMENT IS
TO AVOID USELESS, EXPENSIVE, AND TIME-CONSUMING TRIALS WHERE THERE ARE
NO GENUINE ISSUES OF MATERIAL FACT TO BE TRIED. /2/ FEDERAL LABOR
RELATIONS AUTHORITY REGULATIONS, 5 C.F.R. 2423.19(K)(1980),
SPECIFICALLY AUTHORIZE THE USE OF MOTIONS FOR SUMMARY JUDGMENT IN THE
LITIGATION OF UNFAIR LABOR PRACTICE CHARGES UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE. SUCH PRACTICE IS CONSISTENT WITH
THE ADMINISTRATIVE PROCEDURE ACT /3/ AND WELL-ESTABLISHED PRINCIPLES OF
DUE PROCESS AND ADMINISTRATIVE LAW. /4/
UPON EXAMINATION OF THE GENERAL COUNSEL'S MOTION FOR SUMMARY JUDGMENT
AND THE RESPONDENT'S REPLY, IT APPEARS THAT THERE ARE NO GENUINE ISSUES
OF MATERIAL FACT AND THAT ONLY LEGAL ISSUES ARE INVOLVED. IN SUCH
CIRCUMSTANCES, THE REQUIRED HEARING UNDER THE STATUTE MAY CONSIST WHOLLY
OF AN OPPORTUNITY TO PRESENT WRITTEN ARGUMENT. /5/ THE PARTIES HAVE
BEEN AFFORDED THAT OPPORTUNITY.
UPON CONSIDERATION OF THE GENERAL COUNSEL'S MOTION FOR SUMMARY
JUDGMENT, RESPONDENT'S REPLY THERETO, AND ALL THE PLEADINGS AND
EXHIBITS, IT APPEARS THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND
THAT THE GENERAL COUNSEL IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF
LAW. ACCORDINGLY, THE GENERAL COUNSEL'S MOTION IS GRANTED, AND I MAKE
THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FOR CONVENIENCE, THE FINDINGS OF FACT ARE IN ESSENTIALLY THE SAME FORM
AS PROPOSED BY THE GENERAL COUNSEL AND UNDISPUTED BY RESPONDENT.
FINDINGS OF FACT
1. THE RESPONDENT NATIONAL GUARD IS AN AGENCY WITHIN THE MEANING OF 5
U.S.C 7103(A)(3).
2. THE CHARGING PARTIES, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES LOCAL R12-125, R12-132, R12-146, R12-150 AND R12-105,
HEREINAFTER UNIONS, ARE LABOR ORGANIZATIONS WITHIN THE MEANING OF 5
U.S.C. 7103(A)(4).
3. AT ALL TIMES MATERIAL HEREIN, THE UNIONS HAVE BEEN RECOGNIZED BY
RESPONDENT AS EXCLUSIVE REPRESENTATIVES FOR APPROPRIATE UNITS OF
CIVILIAN NATIONAL GUARD EMPLOYEES.
4. THE CHARGE WAS FILED BY THE UNION, LOCALS R12-125, R12-132,
R12-146, AND R12-150, IN FEDERAL LABOR RELATIONS AUTHORITY CASE NO.
9-CA-44 ON OR ABOUT MAY 7, 1979, AND SERVED UPON RESPONDENT BY THE UNION
ON OR ABOUT MAY 4, 1979. (EXHIBIT 1(A)).
THE CHARGE WAS FILED BY THE UNION, LOCAL R12-105 IN FEDERAL LABOR
RELATIONS AUTHORITY CASE NO. 9-CA-95 ON OR ABOUT JUNE 22, 1979, AND
SERVED UPON RESPONDENT BY THE UNION ON OR ABOUT JUNE 30, 1979. (EXHIBIT
1(B)).
THE FIRST AMENDED CHARGE WAS FILED BY THE UNION IN FEDERAL LABOR
RELATIONS AUTHORITY CASE NO. 9-CA-44 ON OR ABOUT OCTOBER 5, 1979, AND
SERVED UPON RESPONDENT BY BY THE UNION ON OR ABOUT OCTOBER 3, 1979.
(EXHIBIT 1(C)).
THE FIRST AMENDED CHARGE WAS FILED BY THE UNION IN FEDERAL LABOR
RELATIONS AUTHORITY CASE NO. 9-CA-95 ON OR ABOUT OCTOBER 5, 1979, AND
SERVED UPON RESPONDENT BY THE UNION ON OR ABOUT OCTOBER 3, 1979.
(EXHIBIT 1(D)).
5. THE RESPONDENT FILED A RESPONSE DATED MAY 21, 1979, TO THE CHARGE
IN 9-CA-44 ON MAY 23, 1979 (EXHIBIT 1(E) TOGETHER WITH ATTACHMENTS
(EXHIBITS 2-10).
6. THE RESPONDENT FILED A RESPONSE DATED JULY 25, 1979, TO THE
CHARGE IN 9-CA-95 ON JULY 30, 1979 (EXHIBIT 1(F)) TOGETHER WITH
ATTACHMENTS (EXHIBITS 2-10).
7. ON OCTOBER 31, 1979 AN ORDER CONSOLIDATING CASES, COMPLAINT AND
NOTICE OF HEARING WAS ISSUED IN CASE NOS. 9-CA-44 AND 9-CA-95 (EXHIBIT
1(G).
8. RESPONDENT'S ANSWER TO THE COMPLAINT WAS FILED WITH THE REGIONAL
DIRECTOR ON NOVEMBER 19, 1979. (EXHIBIT 1(H)). AN ORDER EXTENDING TIME
FOR ANSWER WAS ENTERED ON NOVEMBER 16, 1979. (EXHIBIT 1(I)).
9. IN 1977 AND 1978, AFTER EXTENSIVE NEGOTIATIONS AND THE ASSISTANCE
OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE, THE UNION FILED
REQUESTS FOR ASSISTANCE WITH THE FEDERAL SERVICE IMPASSES PANEL,
HEREINAFTER, FSIP OR PANEL, TO CONSIDER A NEGOTIATION IMPASSE WHICH THE
PARTIES HAD FAILED TO RESOLVE BY VOLUNTARY ARRANGEMENTS, CONCERNING THE
ISSUE OF MILITARY ATTIRE FOR CIVILIAN EMPLOYEES. (EXHIBITS 2A-2E).
10. UPON RECEIPT OF THE UNIONS' REQUEST, THE FSIP, IN ACCORDANCE
WITH APPLICABLE LAW AND REGULATION, CONDUCTED AN INFORMATION INQUIRY.
THEREAFTER, ON JUNE 30, 1978 THE FSIP ISSUED ORDERS OF SHOW CAUSE UPON
RESPONDENT. (EXHIBITS 3A-3E).
11. ON JULY 18, 1978, THE NATIONAL GUARD FILED ITS COLLECTIVE
RESPONSE TO THE ORDERS TO SHOW CAUSE IN CASE NOS. 77 FSIP 70, 78 FSIP
42, 77 FSIP 77, 78 FSIP 44 AND 78 FSIP 49, SETTING FORTH BOTH ITS
ARGUMENTS AND EVIDENCE IN SUPPORT OF ITS POSITION IN OPPOSITION TO THE
ORDER TO SHOW CAUSE. THE RESPONDENT ALSO INFORMED THE PANEL AT THIS
TIME THAT A DECERTIFICATION PETITION HAS BEEN FILED WITH THE DEPARTMENT
OF LABOR FOR UNION LOCAL R12-105. (EXHIBIT 4).
12. ON OCTOBER 13, 1978, THE FSIP ISSUED ITS DECISIONS AND ORDERS IN
CASE NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 AND 78 FSIP 49 AND ON APRIL
13, 1979 IN CASE NO. 77 FSIP 70, ORDERING THAT:
1. THE PARTIES ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT:
EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL
HAVE THE 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 PURCHASED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
2. CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
UNIFORM MAY BE
REQUIRED SHALL BE AGREED UPON BY THE PARTIES AND INCORPORATED IN
THEIR AGREEMENT.
THE FSIP FURTHER DIRECTED THE PARTIES TO SEND EVIDENCE OF COMPLIANCE
WITH ITS ORDERS WITHIN 30 DAYS OF RECEIPT THEREOF. (EXHIBITS 5 AND 6).
13. ON NOVEMBER 17, 1978, THE NATIONAL GUARD FILED A MOTION FOR
RECONSIDERATION OF THE DECISION AND ORDER OF OCTOBER 13, 1978 IN CASE
NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44, 78 FSIP 49 WITH FSIP. (EXHIBIT
7).
14. ON JANUARY 18, 1979, FSIP DENIED RESPONDENT'S MOTION FOR
RECONSIDERATION OF ITS OCTOBER 13, 1978 DECISION AND ORDER. (EXHIBIT
8).
15. ON MARCH 12, 1979, THE NATIONAL GUARD FILED A REQUEST FOR
CONSIDERATION WITH THE FEDERAL LABOR RELATIONS AUTHORITY HEREINAFTER,
FLRA, OF CASE NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44, AND 78 FSIP 49.
ON MAY 2, 1979 RESPONDENT WROTE FLRA REQUESTING THAT 77 FSIP 70 BE ADDED
TO THE ABOVE CONSOLIDATED CASES SUBMITTED PER THE REQUEST FOR
CONSIDERATION. (EXHIBIT 9 AND 10).
16. ON DECEMBER 5, 1979, FLRA DENIED RESPONDENT'S REQUEST FOR
CONSIDERATION OF 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 AND 78 FSIP 49. ON
DECEMBER 5, 1979 FLRA DENIED RESPONDENT'S REQUEST FOR CONSIDERATION OF
77 FSIP 70. (EXHIBITS 11 AND 12).
17. RESPONDENT HAS FAILED AND REFUSED TO ADOPT THE CONTRACT LANGUAGE
SET OUT IN PARAGRAPH 12, ABOVE, INTO ITS COLLECTIVE BARGAINING AGREEMENT
WITH THE UNION AS DIRECTED BY FSIP AS ITS FINAL RESOLUTION OF THE
IMPASSE BETWEEN RESPONDENT AND THE UNION.
18. RESPONDENT HAS FAILED AND REFUSED TO MEET AND NEGOTIATE WITH THE
UNION TO DISCUSS THE IMPLEMENTATION OF FSIP'S FINAL DECISIONS AND ORDER
TO THE EXTENT REQUIRED BY THE DECISIONS AND ORDERS.
19. RESPONDENT HAS FAILED AND REFUSED TO FOLLOW FSIP'S DIRECTION TO
SEND THE PANEL EVIDENCE OF COMPLIANCE WITH THE FINAL DECISIONS AND
ORDERS WITHIN 30 DAYS OF RESPONDENT'S RECEIPT THEREOF.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE UNDISPUTED FACTS REFLECT THAT SINCE THE PANEL ISSUED ITS
DECISIONS AND ORDERS DATED OCTOBER 13, 1978 AND APRIL 13, 1979,
RESOLVING THE NEGOTIATION IMPASSE, RESPONDENT HAS FAILED AND REFUSED TO
COMPLY WITH THE DECISIONS AND ORDERS. RESPONDENT HAS FAILED AND REFUSED
TO MEET WITH THE UNIONS; HAS NOT AGREED TO ADOPT THE MANDATED LANGUAGE
IN THE AGREEMENT; AND HAS PRESENTED NO EVIDENCE OF COMPLIANCE WITHIN
THE 30 DAY PERIOD ORDERED BY THE PANEL.
ALTHOUGH RESPONDENT DID NOT SUBMIT A MEMORANDUM OF LAW IN SUPPORT OF
ITS POSITION IN THIS CASE, ITS AFFIRMATIVE DEFENSES SET FORTH IN THE
ANSWER HAVE, NEVERTHELESS, BEEN CONSIDERED IN LIGHT OF THE GENERAL
COUNSEL'S POSITION ON THESE DEFENSES AND THE RECORD AS A WHOLE.
RESPONDENT ASSERTS THAT THE FEDERAL LABOR RELATIONS AUTHORITY LACKS
JURISDICTION TO ENTERTAIN THE CHARGES IN THE COMPLAINT INASMUCH AS SUCH
CHARGES ARE PREMATURE WHILE A PETITION FOR RECONSIDERATION OF THE ORDERS
OF THE FEDERAL SERVICES IMPASSES PANEL IS PENDING BEFORE THE AUTHORITY.
RESPONDENT ALSO CLAIMS THAT CONSIDERATION OF THE CHARGES AT THIS TIME
WOULD CONSTITUTE A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE
LAW. RESPONDENT'S DEFENSES IN THIS REGARD HAVE BEEN RENDERED MOOT BY
THE DECISIONS OF THE AUTHORITY, DATED DECEMBER 5, 1979, DENYING THE
PETITIONS. (EXHIBITS 11 AND 12). SEE ALSO STATE OF NEW YORK, DIVISION
OF MILITARY AND NAVAL AFFAIRS AND NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., 78 FSIP 32, FLRA NO. 0-MC-2, 2 FLRA 20
(DEC. 5, 1979).
RESPONDENT'S THIRD AFFIRMATIVE DEFENSE ALLEGES THAT THE IMPASSE PANEL
DECISIONS AND ORDERS ARE INVALID BECAUSE THEY:
(A) ARE BASED ON A REQUIREMENT FOR THE CALIFORNIA NATIONAL GUARD TO
JUSTIFY VIA A STANDARD
OF "COMPELLING NEED" A DEFENSE DEPARTMENT AND CALIFORNIA REGULATIONS
WHICH RESPONDENT DEEMS TO
BE NON-NEGOTIABLE,
(B) IMPROPERLY BY AGENCY REGULATION ATTEMPT TO ABROGATE THE AUTHORITY
OF THE COMMANDING
GENERAL - STATE MILITARY FORCES GRANTED HIM BY FEDERAL STATUTE, TO
WIT, TITLE 32, UNITED
STATES CODE, SECTION 709(C),
(C) IMPROPERLY ATTEMPT TO VITIATE A MILITARY REGULATION, A MATTER
OVER WHICH FLRA HAS NO
AUTHORITY, SINCE IN THIS INSTANCE FLRA POWERS DERIVE FROM AN
EXECUTIVE ORDER WHILE THE
MILITARY AUTHORITY STEMS FROM ACTS OF CONGRESS,
(D) ARE BASED ON CRITERIA DEVELOPED OUTSIDE OF THE THEN FEDERAL LABOR
RELATIONS COUNCIL'S
GRANT OF AUTHORITY BY CONGRESS,
(E) ARE BASED ON RULES WHICH VIOLATE BASIC PRINCIPLES OF EQUITY AND
ADMINISTRATIVE LAW.
RESPONDENT'S DEFENSES (A) THROUGH (D), WHILE COUCHED IN TERMS OF
OBJECTIONS TO THE IMPASSES PANEL DECISIONS APPEAR FROM THE RECORD TO
ACTUALLY CONCERN THE NEGOTIABILITY OF THE MATTER AT IMPASSE, I.E., THE
SUBJECT OF CIVILIAN GUARD TECHNICIAN ATTIRE, AND, IN SHORT, CONSTITUTE
AN ATTEMPT TO COLLATERALLY ATTACK THE DECISION OF THE FEDERAL RELATIONS
COUNCIL IN WHICH THE COUNCIL DETERMINED THAT THE PROPOSALS BEFORE IT
CONCERNING TECHNICIAN ATTIRE WERE PROPERLY SUBJECT TO NEGOTIATION UNDER
SECTION 11(A) OF THE EXECUTIVE ORDER. /6/
THE IMPASSES PANEL DOES NOT DETERMINE WHETHER OR NOT AN ISSUE IS
NEGOTIABLE, /7/ AND, THUS, ITS DECISION IS NOT SUBJECT TO A COLLATERAL
ATTACK. MOREOVER, RESPONDENT COULD HAVE OBTAINED REVIEW OF THE
COUNCIL'S DECISION IN DISTRICT COURT UNDER THE JUDICIAL REVIEW
PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 701 ET. SEQ.
NATIONAL BROILER COUNCIL INC. V. FLRA, 382 F.SUPP. 322, 86 LRRM 2113
(E.D. VA. 1974). IN THAT CASE, AFTER DETERMINING THAT A COUNCIL
NEGOTIABILITY DECISION WAS A "FINAL AGENCY ACTION" FOR PURPOSES OF
JUDICIAL REVIEW UNDER 5 U.S.C. 701 ET, SEQ., THE COURT REVIEWED
OBJECTIONS TO THE COUNCIL'S DECISION ANALOGOUS TO THOSE RAISED BY
RESPONDENT HEREIN; INCLUDING A DETERMINATION THAT THE PETITIONER
BROILER COUNCIL, WHILE NOT A PARTICIPANT IN THE PROCEEDINGS BEFORE THE
COUNCIL, WAS AN INTERESTED PARTY WITH STANDING TO SEEK JUDICIAL REVIEW.
RESPONDENT'S DEFENSE (E), THAT THE PANEL'S DECISION IS BASED ON RULES
WHICH VIOLATE BASIC PRINCIPLES OF EQUITY AND ADMINISTRATIVE LAW, APPEARS
TO RELATE TO RESPONDENT'S ARGUMENT THAT THE PANEL WAS REQUIRED TO HOLD A
FACT-FINDING HEARING IN THE CASE.
IN ITS DECISION AND ORDER DATED OCTOBER 13, 1978, (EXHIBIT 5), THE
PANEL STATED THAT NEITHER EXECUTIVE ORDER 11491 NOR THE PANEL'S OWN
RULES REQUIRED IT TO HOLD A HEARING IN EACH AND EVERY CASE. THE PANEL
NOTED:
IN THE RESPONSE ITSELF THE EMPLOYER ARGUES THAT THE ORDERS TO SHOW
CAUSE DEPRIVE THE
EMPLOYER OF ITS RIGHTS UNDER EXECUTIVE ORDER 11491 AND THE PANEL'S
RULES OF
PROCEDURE. EXECUTIVE ORDER 11491 AND THE PANEL'S RULES, HOWEVER
CONTAIN NO REQUIREMENT THAT A
HEARING BE HELD IN EACH AND EVERY CASE. RATHER, SECTIONS 4 AND 17 OF
EXECUTIVE ORDER 11491
PROVIDE THAT THE PANEL "MAY TAKE ANY ACTION IT CONSIDERS NECESSARY TO
SETTLE AN IMPASSE" AND
"MAY SETTLE THE IMPASSE BY APPROPRIATE ACTION." THIS BROAD AUTHORITY
TO RESOLVE NEGOTIATION
IMPASSES HAS BEEN INCORPORATED IN SECTIONS 2471.6(A)(6),
2471.13(D)(2), AND 2471.15 OF THE
PANEL'S RULES. THUS, UNDER THE CIRCUMSTANCES OF THESE CASES, WHERE
THE PANEL HAS (1)
PREVIOUSLY CONSIDERED THE ISSUE AT IMPASSE ON SEVERAL OCCASIONS, (2)
DETERMINE THAT THESE
CASES APPEAR ESSENTIALLY SIMILAR TO THOSE EARLIER CASES, AND (3)
DETERMINED THAT IT IS
NECESSARY TO SETTLE PROMPTLY THESE PROTRACTED IMPASSES, THE PANEL'S
ACTION-AFFORDING THE
PARTIES AN OPPORTUNITY TO STATE IN WRITING WHAT MATERIAL FACTS THEY
BELIEVE ARE SIGNIFICANTLY
DIFFERENT FROM OTHER NATIONAL GUARD UNIFORM CASES-IS CONSISTENT WITH
ITS AUTHORITY UNDER
EXECUTIVE ORDER 11491 AND ITS RULES. (FOOTNOTE OMITTED.)
IN ITS SHOW CAUSE ORDERS DATED JUNE 30, 1978 (EXHIBITS 3(A)-(E)) THE
PANEL AFFORDED RESPONDENT AN OPPORTUNITY TO SHOW CAUSE, IN WRITING, WHY
CONTRACT LANGUAGE ORDERED BY THE PANEL IN ELEVEN PRIOR CASES CONCERNING
THE UNIFORM ISSUE SHOULD NOT ALSO BE ADOPTED IN THESE CASES. RESPONDENT
WAS ORDERED TO SPECIFY WHAT MATERIAL FACTS WERE SIGNIFICANTLY DIFFERENT
FROM THE PREVIOUS CASES. RESPONDENT CHOSE TO RELY ON ITS RESPONSE TO
THE SHOW CAUSE ORDER (EXHIBIT 4) TO SUPPORT ITS POSITION. AFTER
CONSIDERING THE RESPONSE, THE PANEL HELD THAT THE RESPONSE DID NOT SHOW
MATERIAL FACTS SIGNIFICANTLY DIFFERENT FROM THOSE CONSIDERED IN PREVIOUS
CASES; DETERMINED THAT THE HOLDING OF A FACTFINDING HEARING WAS NOT
WARRANTED; AND, ACCORDINGLY, IT ISSUED ITS DECISION AND ORDER.
(EXHIBIT 5 AND 6).
THE DECISIONS OF THE PANEL THOROUGHLY DISCUSSED AND REJECTED EACH
ARGUMENT RAISED BY THE RESPONSE. RESPONDENT THEN FILED A MOTION FOR
RECONSIDERATION OF THE PANEL'S DECISION AND ORDER. (EXHIBIT 7). AGAIN
THE PANEL ADDRESSED EACH ARGUMENT RAISED BY RESPONDENT IN A DETAILED
ANALYSIS EMBODIED IN ITS DENIAL AND RESPONDENT'S MOTION FOR
RECONSIDERATION DATED JANUARY 9, 1979. (EXHIBIT 8).
IT IS CONCLUDED THAT THE PANEL AFFORDED RESPONDENT AMPLE OPPORTUNITY
TO PRESENT EVIDENCE AND ARGUMENT CONSISTENT WITH ITS BROAD AUTHORITY
UNDER SECTIONS 5 AND 17 OF EXECUTIVE ORDER 11941, AS AMENDED, TO RESOLVE
NEGOTIATION IMPASSES IN THE FEDERAL SECTOR; THAT RESPONDENT WAS
AFFORDED PROCEDURAL DUE PROCESS, THAT THERE IS A RATIONAL BASIS FOR THE
PANEL'S DECISIONS; AND THAT THE PANEL'S DECISIONS AND ORDER IN THESE
CASES WERE NEITHER ARBITRARY NOR CAPRICIOUS, BUT ARE LEGAL AND VALID.
THE RECORD DEMONSTRATES THAT RESPONDENT HAS FAILED AND REFUSED TO
COMPLY AND COOPERATE WITH FINAL DECISIONS AND ORDERS OF THE FEDERAL
SERVICES IMPASSES PANEL, IN VIOLATION OF 5 U.S.C. 7116(A)(6) AND (8),
HAS FAILED AND REFUSED TO CONSULT AND NEGOTIATE WITH THE UNION
CONCERNING THE IMPLEMENTATION OF THE PANEL'S FINAL DECISIONS AND ORDERS,
IN VIOLATION OF SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED,
AND 5 U.S.C. 7116(A)(5), AND, BY SUCH ACTION, HAS INTERFERED WITH AND
RESTRAINED THE EXERCISE BY EMPLOYEES OF THEIR RIGHTS IN VIOLATION OF
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5 U.S.C.
7116(A)(1). ACCORDINGLY, I RECOMMEND THAT THE AUTHORITY ISSUE THE
FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C.SECTION 7118(A)(7)(A) AND SECTION 7135 AND 5
C.F.R.SECTION 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE STATE
OF CALIFORNIA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING THE COMPLY AND COOPERATE WITH DECISIONS AND
ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978
AND APRIL 13, 1979.
(B) FAILING AND REFUSING TO MEET AND NEGOTIATE IN GOOD FAITH WITH THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-105, R12-125,
R12-132, R12-146, AND R12-150 CONCERNING MATTERS PERTAINING TO THE
IMPLEMENTATION OF DECISIONS AND ORDERS OF THE FEDERAL SERVICES IMPASSES
PANEL ISSUED OCTOBER 13, 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED
BY SUCH DECISIONS AND ORDERS.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDER OF THE
FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL 13,
1979.
(B) MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
12-105, R12-125, R12-132, R12-146, AND R12-150 AND NEGOTIATE IN GOOD
FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF DECISIONS
AND ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13,
1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED BY SUCH DECISIONS AND
ORDERS.
(C) 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 COMMANDING GENERAL, CALIFORNIA
NATIONAL GUARD, 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 COMMANDING GENERAL SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, 450 GOLDEN GATE
AVENUE, ROOM 11409, P. O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 21, 1980
WASHINGTON, D.C.
APPENDIX
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 FAIL AND REFUSE TO COMPLY WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL
13, 1979.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL
13, 1979 AND WILL OTHERWISE COOPERATE IN IMPASSE PROCEDURES AND
DECISIONS AS REQUIRED BY THE FEDERAL SERVICES LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCALS R12-105, R12-125, R12-132, R12-146, AND R12-150, AND NEGOTIATE IN
GOOD FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF
DECISIONS AND ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED
OCTOBER 13, 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED BY SUCH
DECISIONS AND ORDERS.
(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 OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, 450
GOLDEN GATE AVENUE, ROOM 11409, P. O. BOX 36016, SAN FRANCISCO,
CALIFORNIA 94102.
--------------- FOOTNOTES: ---------------
/1/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDS THAT IT WAS NOT
AFFORDED OPPORTUNITY TO PRESENT LEGAL ARGUMENTS PURSUANT TO THE
ADMINISTRATIVE LAW JUDGE'S GRANTING OF A SUMMARY JUDGMENT. IN THIS
REGARD, RESPONDENT CONTENDS IT ONLY HAD AN OPPORTUNITY TO RESPOND TO
GENERAL COUNSEL'S INITIAL MOTION FOR PARTIAL SUMMARY JUDGMENT. IT
APPEARS THAT THE RESPONDENT WAS FULLY AWARE OF THE SCHEDULE, NATURE AND
EXTENT OF RESPONSE REQUIRED TO PRESERVE ITS RIGHTS, AND WAS NOT
PREJUDICED BY THE CAPTIONING OF GENERAL COUNSEL'S PLEADING AS "PARTIAL"
WHICH WAS PREDICATED UPON THE BRIEFING SCHEDULE AGREED TO BY THE
PARTIES.
/2/ CF. FED. R. CIV. P. 56; LYONS V. BD. OF ED. CHARLESTON
REORGANIZED SCHOOL DISTRICT NO. 1 OF MISS. CTY., MO., 523 F.2D 340, 347
(8TH CIR., 1975).
/3/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE REQUIRES
THAT HEARINGS BE CONDUCTED IN ACCORDANCE WITH THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. 551 ET. SEQ., TO THE EXTENT PRACTICABLE. 5
U.S.C. 7118(A)(6). MOTIONS IN THE NATURE OF MOTIONS FOR SUMMARY
JUDGMENT ARE DEEMED APPROPRIATE UNDER THE ADMINISTRATIVE PROCEDURE ACT.
SEE, E.G., MUNICIPAL LIGHT BOARDS OF READING AND WAKEFIELD, MASS V.
FEDERAL POWER COMMISSION, 450 F.2D 1341, 1345-1346 (D.C. CIR., 1971),
CERT. DENIED, 405 U.S. 989(1972).
/4/ DAVIS, ADMINISTRATIVE LAW TREATISE, SECOND EDITION, SECS. 12.1,
12.10(1979).
/5/ CF. DAVIS, SUPRA, SEC. 12.1, AT P. 406. THE PRACTICE UNDER
EXECUTIVE ORDER 11491, AS AMENDED, WAS SUBSTANTIALLY THE SAME. SEE
INTERNAL REVENUE SERVICE, A/SLMR NO. 897, 7 A/SLMR 782(1977).
/6/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND
KANSAS NATIONAL GUARD, 5 FLRC 124, 336 (FLRC NO. 76A-16 (AND OTHER CASES
CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120); AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1636 AND STATE OF NEW
MEXICO NATIONAL GUARD, 5 FLRC 146, 336 (FLRC NO. 76A-75 (AND OTHER CASES
CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120);
RECONSIDERATION DENIED, 5 FLRC 336 (MAY 18, 1977), REPORT NO. 125.
/7/ 5 U.S.C. 7119; 5 U.S.C. 7117; SECTION 11 OF EXECUTIVE ORDER
11491, AS AMENDED. SEE ALSO THE PANEL'S COMMENTS ON THIS QUESTION IN
ITS DECISION AND ORDER IN THE INSTANT CASE. (EXHIBIT 5, P. 3).