[ v15 p476 ]
The decision of the Authority follows:
15 FLRA No. 101 STATE OF NEVADA NATIONAL GUARD Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-130 AND R12-145 Charging Party Case No. 9-CA-49 7 FLRA 245 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) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by its refusal to cooperate in a final decision and order 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 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) and (6) of the Statute. ORDER /6/ IT IS ORDERED that the complaint in Case No. 9-CA-49 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/ State of Nevada National Guard, 7 FLRA 245 (1981). /2/ Nevada National Guard, Carson City, Nevada, and Locals R12-130 and R12-145, NAGE, 76 FSIP 68(a) (1979). /3/ The National Guard Bureau, on behalf of the Respondent, filed a consolidated response which included affidavits from the Adjutant's 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 filed a motion 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 positions, 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 motion is 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.