[ v15 p896 ]
The decision of the Authority follows:
15 FLRA No. 168 FLORIDA AIR NATIONAL GUARD Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCALS R5-91, R5-107 and R5-120 Charging Party Case No. 4-CA-407 9 FLRA 347 DECISION AND ORDER UPON REMAND This proceeding is before the Authority upon remand by the U.S. Court of Appeals for the Eleventh 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 Services 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, remanded sub nom. State of New York v. FLRA, 696 F.2d 202 (2d 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/ As a preliminary matter, the Charging Party claims that the Respondent has waived its right to argue that the uniform is a management right by not raising it on a timely basis. This contention cannot be sustained. Throughout these proceedings the Respondent has consistently maintained that the uniform requirement was nonnegotiable using arguments which would support a determination that the uniform wearing requirement constitutes the "methods and means of performing work" within the meaning of section 7106(b)(1) of the Statute. /5/ Turning to the merits, 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 the "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. 4-CA-407 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Florida National Guard and National Association of Government Employees, Locals R5-91, R5-107, R5-120, 9 FLRA 347 (1982). /2/ Florida National Guard, St. Augustine, Florida, and Locals R5-91, R5-107 and R5-120, National Association of Government Employees, Case No. 78 FSIP 100 (1980). /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 statements of position. The General Counsel of the Authority also filed a single statement of position in this case. /4/ The Charging Party 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. The motion is denied, however the affidavits were only considered to the extent that they related to section 7106(b)(1) of the Statute. See State of New York at 3. 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/ See, e.g., Respondent's brief before the Administrative Law Judge in Case No. 4-CA-407 at 8-13 where Respondent argued in effect that there is a direct and integral relationship between the uniform wearing requirement and the furtherance of the overall mission of the National Guard. /6/ This Order shall supersede our earlier Order in this matter.