15:0485(104)CA - NG Bureau, Maine Air NG (Augusta, ME) and AFGE Local 3013 -- 1984 FLRAdec CA

 15 FLRA No. 104
 
 NATIONAL GUARD BUREAU,
 MAINE AIR NATIONAL GUARD
 (AUGUSTA, MAINE)
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 3013, AFL-CIO
 Charging Party
 
                                            Case No. 1-CA-838
                                                  10 FLRA 583
 
                      DECISION AND ORDER UPON REMAND
 
    This proceeding is before the Authority upon remand by the U.S. Court
 of Appeals for the First 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), 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 Federal Service Impasses Panel
 did not constitute a violation of section 7116(a)(1) and (6) of the
 Statute.
 
                                 ORDER /5/
 
    IT IS ORDERED that the complaint in Case No. 1-CA-838 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/ National Guard Bureau, Maine Air National Guard (Augusta, Maine),
 10 FLRA 583 (1982).
 
 
    /2/ Maine Air National Guard, Bangor, Maine, and Local 3013, American
 Federation of Government Employees, AFL-CIO, Case No. 80 FSIP 52(a)
 (1981).
 
 
    /3/ The National Guard Bureau, on behalf of the Respondent, filed a
 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 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.  For the
 same reason, the Charging Party's request that oral argument be
 conducted in this matter is denied.
 
 
    /5/ This Order shall supersede our earlier Order in this matter.