Puerto Rico Air National Guard (Respondent) and National Federation of Federal Employees, Local 1665 (Charging Party) 

 8 FLRA No. 99
 
 PUERTO RICO AIR NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1665
 Charging Party
 
                                            Case No. 2-CA-182
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE
 RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS:  THE CHARGING
 PARTY, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665 (THE UNION),
 IS THE EXCLUSIVE REPRESENTATIVE OF A BARGAINING UNIT OF THE RESPONDENT'S
 CIVILIAN TECHNICIANS.  IN 1978, WHILE THE PARTIES WERE SEEKING TO
 NEGOTIATE A NEW AGREEMENT, A DISPUTE AROSE CONCERNING THE RIGHT OF
 CIVILIAN TECHNICIANS TO WEAR NON-MILITARY ATTIRE DURING WORK HOURS.
 WHEN THE PARTIES WERE UNABLE TO RESOLVE THIS ISSUE, THE MATTER WAS
 SUBMITTED TO THE FEDERAL SERVICE IMPASSES PANEL (THE PANEL).  BY MUTUAL
 AGREEMENT, THE PARTIES EXECUTED THE REMAINDER OF THE CONTRACT, AS
 NEGOTIATED, EXCEPT FOR THIS ISSUE.
 
    ON OC OCTOBER 13, 1978, THE PANEL ISSUED A DECISION AND ORDER (CASE
 NO. 78-FSIP-62) WHICH DIRECTED THE PARTIES TO ADOPT THE FOLLOWING
 LANGUAGE IN THEIR AGREEMENT:
 
    1.  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.
 
    BY LETTER TO THE RESPONDENT, THE UNION'S PRESIDENT THEREAFTER SOUGHT
 TO HAVE THE LANGUAGE ORDERED BY THE PANEL ADDED TO THE PARTIES'
 AGREEMENT ADN TO COMMENCE NEGOTIATIONS ON THE ISSUE OF WHAT CONSTITUTES
 STANDARD CIVILIAN ATTIRE.  THIS REQUEST WAS FOLLOWED BY A MEMORANDUM
 OUTLINING THE UNION'S PROPOSALS ON THE ISSUE.  IN RESPONSE, THE
 RESPONDENT DECLINED TO NEGOTIATE ON THE GROUND THAT THE RESPONDENT HAD
 FILED A REQUEST FOR RECONSIDERATION OF THE PANEL'S ORDER.
 
    ON FEBRUARY 23, 1979, THE UNION AGAIN REQUESTED NEGOTIATIONS ON THI
 MATTER.  THE RESPONDENT AGAIN REFUSED, THIS TIME ON THE BASIS THAT IT
 WAS PREPARING A REQUEST THAT THE AUTHORITY ISSUE A MAJOR POLICY
 STATEMENT ON THE ISSUE.  /1/ THEREAFTER, IN RESPONSE TO A STATEMENT BY
 THE UNION'S NATIONAL PRESIDENT, THE RESPONDENT NOTIFIED THE PANEL THAT
 THERE WAS NO DUTY TO COMPLY WITH THE PANEL'S ORDER UNTIL THAT ORDER
 BECAME FINAL.  BY LETTER DATED MAY 10, 1979, THE DEPUTY ASSISTANT
 SECRETARY OF DEFENSE (CIVILIAN PERSONNEL POLICY) INFORMED THE UNION THAT
 THE DEPARTMENT OF DEFENSE HAD WITHDRAWN THE RESPONDENT'S AUTHORITY TO
 FURTHER CONTEST THE PANEL'S ORDER.  IN VIEW OF THE FOREGOING LETTER, THE
 UNION ONCE AGAIN REQUESTED THAT THE RESPONDENT NEGOTIATE CONCERNING THE
 ISSUE OF STANDARD CIVILIAN ATTIRE.  IN RESPONSE, THE RESPONDENT
 REQUESTED THAT THE NEGOTIATIONS BE HELD IN ABEYANCE PENDING A
 DETERMINATION BY THE RESPONDENT'S STAFF JUDGE ADVOCATE'S OFFICE.
 THEREAFTER, THE ACTING DEPUTY ASSISTANT SECRETARY OF DEFENSE NOTIFIED
 THE AUTHORITY THAT IT HAD WITHDRAWN THE RESPONDENT'S AUTHORIZATION FOR
 FURTHER APPEALS OF THE PANEL'S ORDER, AND REQUESTED WITHDRAWAL OF THE
 PENDING PETITION FOR A STATEMENT ON MAJOR POLICY ISSUES.  /2/ MORE THAN
 TWO MONTHS LATER, THE UNION CONTACTED THE OFFICE OF THE GOVERNOR OF
 PUERTO RICO AND REQUESTED ASSISTANCE IN THE RESOLUTION OF THE FOREGOING
 LABOR DISPUTE.  AS A RESULT OF THAT REQUEST, A MEETING WAS ARRANGED BY
 THE GOVERNOR'S OFFICE AT WHICH THE UNION AGAIN RAISED THE QUESTION OF
 STANDARD CIVILIAN ATTIRE.  AT ALL TIMES MATERIAL HEREIN, HOWEVER, THE
 RESPONDENT HAS FAILED TO COMPLY WITH THE PANEL'S DECISION AND ORDER AND
 HAS REFUSED TO NEGOTIATE WITH THE UNION AS REQUIRED BY THAT ORDER.  THE
 COMPLAINT ALLEGES THAT, BY SUCH CONDUCT, THE RESPONDENT VIOLATED SECTION
 7116(A)(1),(5) AND (6) OF THE STATUTE.
 
    IT IS UNDISPUTED THAT THE RESPONDENT CONSISTENTLY HAS REFUSED TO
 COMPLY WITH THE PANEL'S DECISION AND ORDER IN CASE NO. 78-FSIP-62, DATED
 OCTOBER 13, 1978, EVEN AFTER THE DEPARTMENT OF DEFENSE HAD WITHDRAWN THE
 RESPONDENT'S AUTHORITY TO APPEAL THE MATTER FURTHER AND HAD REQUESTED
 WITHDRAWAL OF THE PETITION FOR A STATEMENT ON MAJOR POLICY ISSUES
 PENDING BEFORE THE AUTHORITY.  ACCORDINGLY, BASED ON THE AUTHORITY'S
 DECISION IN STATE OF NEVADA NATIONAL GUARD, 7 FLRA NO. 37(1981), AND THE
 RATIONALE THEREIN, THE AUTHORITY FINDS THAT THE RESPONDENT, BY FAILING
 AND REFUSING TO COOPERATE IN AND COMPLY WITH THE PANEL'S DECISION AND
 ORDER DATED OCTOBER 13, 1978, VIOLATED SECTION 7116(A)(6) OF THE STATUTE
 AND THAT ITS ACTIONS NECESSARILY TENDED TO INTERFERE WITH, RESTRAIN, OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE
 AND THUS ALSO VIOLATED SECTION 7116(A)(1).  /3/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE,
 GUARD:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING TO COOPERATE IN AND COMPLY WITH THE FEDERAL
 SERVICE IMPASSES PANEL'S DECISION AND ORDER RENDERED IN PUERTO RICO AIR
 NATIONAL GUARD, SANTURCE PUERTO RICO, AND LOCAL 1665, NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES;  CASE NO. 78-FSIP-62.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE BARGAINING
 AGREEMENT WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665:
 
    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.
 
    (B) MEET AND NEGOTIATE WITH THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1665, REGARDING THE CIRCUMSTANCES AND OCCASIONS FOR
 WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED AND
 INCORPORATE THE AGREEMENTS REACHED INTO ITS COLLECTIVE BARGAINING
 AGREEMENT WITH THAT LABOR ORGANIZATION.
 
    (C) POST AT ITS FACILITIES, WHEREEVER UNIT EMPLOYEES ARE LOCATED,
 COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY.
  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE ADJUTANT
 GENERAL OF THE PUERTO RICO AIR NATIONAL GUARD AND SHALL BE POSTED BY HIM
 FOR 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN
 BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
 POSTED.  THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO ENSURE THAT
 SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION II, ROOM 1751, 26
 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, 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., MAY 7, 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 REFUSE TO COOPERATE AND COMPLY WITH THE FEDERAL SERVICE
 IMPASSES PANEL'S DECISION AND ORDER RENDERED IN PUERTO RICO AIR NATIONAL
 GUARD, SANTURCE, PUERTO RICO, AND LOCAL 1665, NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES;  CASE NO. 78-FSIP-62, REGARDING THE ATTIRE TO BE WORN
 BY NATIONAL GUARD TECHNICIANS.
 
    WE WILL NTO 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 ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING
 AGREEMENT WITH NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665:
 
    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.
 
    WE WILL MEET AND NEGOTIATE WITH THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1665, REGARDING THE CIRCUMSTANCES AND OCCASIONS FOR
 WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED, AND
 INCORPORATE THE AGREEMENTS REACHED INTO OUR COLLECTIVE BARGAINING
 AGREEMENT WITH THAT LABOR ORGANIZATION.
 
                                  (AGENCY
 
    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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION II,
 ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE
 TELEPHONE NUMBER IS:  (212) 581-8100, EXT. 7233.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AUTHORITY TAKES OFFICIAL NOTICE THAT THE RESPONDENT FILED A
 "PETITION FOR STATEMENT ON MAJOR POLICY ISSUES AND OTHER APPROPRIATE
 RELIEF" WITH THE AUTHORITY IN FEBRUARY 1979, WHICH WAS DOCKETED AS FLRA
 CASE NO. O-PS-4.
 
    /2/ THE AUTHORITY GRANTED THE WITHDRAWAL REQUEST IN CASE NO.  O-PS=4
 BY LETTER DATED JUNE 15, 1979.
 
    /3/ IN VIEW OF THAT FINDING, IT IS UNNECESSARY FOR THE AUTHORITY TO
 PASS UPON WHETHER THE RESPONDENT'S CONDUCT ALSO VIOLATED SECTION
 7116(A)(5).  SEE STATE OF CALIFORNIA NATIONAL GUARD, 8 FLRA NO.
 11(1982).