15:0473(100)CA - Military Department, State of Oregon, Oregon Army and Air NG, Salem OR and AFGE Local 2986 -- 1984 FLRAdec CA

 15 FLRA No. 100
 
 MILITARY DEPARTMENT,
 STATE OF OREGON,
 OREGON ARMY AND AIR
 NATIONAL GUARD,
 SALEM, OREGON
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2986, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-514
                                               8 FLRA 541
 
                      DECISION AND ORDER UPON REMAND
 
    This proceeding is before the Authority upon remand by the U.S. Court
 of Appeals for the Ninth Circuit.  This case was before the court on
 petition for review of a Decision and Order of the Authority /1/ in
 which the Respondent had been found to have violated section 7116(a)(1),
 (5), (6) and (8) of the Federal Service Labor-Management Relations
 Statute (the Statute) by its refusal to cooperate in final decisions and
 orders of the Federal Service Impasses Panel (the Panel) /2/ which
 involved the attire to be worn by National Guard technicians when
 performing civilian technician duties.  Inasmuch as the circumstances
 involved in this case are similar in all relevant and material respects
 to those in Division of Military and Naval Affairs, State of New York,
 Albany, New York, 8 FLRA 158 (1982), remanded sub nom. State of New York
 v. FLRA, 696 F.2d 202 (2nd Cir. 1982), the Authority upon remand of
 State of New York requested, and the court ordered, remand of the
 instant case.  Pursuant to the court's remand, the Authority issued a
 "Notice of Reopened Proceedings and Request for Statements of Position"
 with respect to only the issue of whether the attire which National
 Guard technicians wear while engaged in their daily duties as civilian
 technicians is a matter which is negotiable only at the election of the
 agency pursuant to section 7106(b)(1) of the Statute.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, /3/ the Authority makes the following
 determinations.  /4/
 
    The Authority finds that the facts and positions of the parties
 involved herein are substantially similar to those set forth in the
 Authority's Decision and Order Upon Remand issued in Division of
 Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
 No. 65 (1984), /5/ wherein the Authority found that the determination by
 the National Guard Bureau that technicians must wear the military
 uniform while performing technician duties constitutes management's
 choice of a "methods, and means of performing work" within the meaning
 of section 7106(b)(1) of the Statute.  For the reasons expressed in
 State of New York the Authority finds that the failure of the Respondent
 to cooperate in the final decision and order of the Panel did not
 constitute a violation of section 7116(a)(1), (5), (6) and (8) of the
 Statute.
 
                                 ORDER /6/
 
    IT IS ORDERED that the complaint in Case No. 9-CA-514 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., August 9, 1984
  
                                      Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Military Department, State of Oregon, Oregon Army and Air
 National Guard, Salem, Oregon, 8 FLRA 541 (1982).
 
 
    /2/ Oregon Army/Air National Guard, Salem, Oregon, and Local 2986,
 American Federation of Government Employees, AFL-CIO, Case No. 77 FSIP
 53 (1978);  and Oregon Army/Air National Guard, Salem, Oregon, and Local
 2986, American Federation of Government Employees, AFL-CIO, Case No. 79
 FSIP 4 (1979).
 
 
    /3/ The National Guard Bureau, on behalf of the Respondent, filed a
 consolidated response which included affidavits from the Adjutants
 General of several states and the Charging Party filed its statement of
 position.  The General Counsel of the Authority also filed a
 consolidated statement of position in this case.
 
 
    /4/ The General Counsel and the Charging Party filed motions to
 strike affidavits from the Adjutants General of several states which, as
 indicated above, were submitted by the National Guard Bureau on behalf
 of the Respondent, as well as all references thereto and arguments which
 address matters other than the relationship between technician attire
 and section 7106(b)(1) of the Statute contained in the National Guard
 Bureau's statement of position.  In view of the limited scope of the
 court's remand, as reflected in the Authority's ensuing request for
 statements of position, only those statements, arguments and reasons
 which relate to section 7106(b)(1) of the Statute have been considered
 herein, including those set forth in the affidavits submitted.
 Accordingly, the motions are granted to that extent.
 
    The National Guard Bureau's motion that a hearing before an
 Administrative Law Judge be conducted is denied since the additional
 submissions of the parties have established a full record upon which the
 Authority can decide the issue, as set forth in the Authority's Notice
 of Reopened Proceedings and Request for Statements of Position.
 
 
    /5/ In this regard, the National Guard Bureau's consolidated response
 was filed on behalf of the Respondent in this case as well as, among
 others, the respondent in State of New York.  The General Counsel also
 submitted a single statement of position with respect to this case, and,
 among others, State of New York.
 
 
    /6/ This Order shall supersede our earlier Order in this matter.