17:0242(37)CA - North Carolina Air NG and AFGE Local 3001 -- 1985 FLRAdec CA



[ v17 p242 ]
17:0242(37)CA
The decision of the Authority follows:


 17 FLRA No. 37
 
 NORTH CAROLINA AIR NATIONAL GUARD
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3001, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-20010
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, granting part of the General Counsel's Motion
 for Summary Judgment, finding that the North Carolina Air National Guard
 (the Respondent) had violated the Federal Service Labor-Management
 Relations Statute (the Statute) by failing to comply with certain
 portions of a Decision and Order of the Federal Service Impasses Panel
 (FSIP or Panel), and recommending that the Respondent be ordered to
 cease and desist therefrom and take certain affirmative action.  The
 Judge also granted part of the Respondent's Motion for Summary Judgment
 finding that its failure to comply with certain other portions of the
 FSIP's Decision did not violate the Statute.  Exceptions to the Judge's
 Decision were filed by both the Respondent and the American Federation
 of Government Employees, Local 3001, AFL-CIO (the Union).  The Union
 filed an opposition to the Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge and finds that no prejudicial error was committed.  The
 rulings are hereby affirmed.  Upon consideration of the Judge's Decision
 and the entire record in this case, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations only to the extent
 consistent herewith.
 
    The Judge concluded that the Respondent's failure and refusal to
 comply and cooperate with the final Decision and Order of the Panel,
 which required the parties to adopt the Union's proposal for a full
 scope grievance and arbitration procedure excluding only those matters
 specifically excluded by the Statute, constituted a violation of section
 7116(a)(1) and (6) of the Statute.  Subsequent to the issuance of the
 Judge's Decision, the Authority concluded in National Guard Bureau,
 Falls Church, Virginia, 16 FLRA No. 52 (1984) and in Association of
 Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
 and Air National Guard, 14 FLRA 38 (1984), that the National Guard may
 require that the parties' collective bargaining agreement expressly
 exclude actions enumerated in section 709(e) of the National Guard
 Technicians Act of 1968, 32 U.S.C. 709(e) (1976) /1/ from the scope of
 the parties' negotiated grievance procedure.  Accordingly, the Union's
 proposal is outside the duty to bargain under section 7117 of the
 Statute and 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.
 /2/ The Authority therefore concludes that the allegations of the
 complaint in this respect must be dismissed.
 
    The Judge concluded that the Respondent was entitled to summary
 judgment on the issue of its alleged failure to comply with the Panel's
 Decision requiring it to adopt the Union's proposal concerning the
 wearing of civilian attire by technicians while performing civilian
 technician duties.  Without passing on the Judge's specific findings on
 this issue, the Authority agrees that no violation was committed.  In
 the Authority's view, the issues presented 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), petition for review filed, New York
 Council, Association of Civilian Technicians v. FLRA, No. 84-4128 (2d
 Cir. Sept. 11, 1984) wherein the Authority found that the determination
 by the National Guard Bureau that technicians must wear the military
 uniform while performing technician duties constituted management's
 choice of a "methods and means of performing work" within the meaning of
 section 7106(b)(1) of the Statute.  Accordingly, based on the rationale
 expressed in State of New York, the Authority finds that the Union's
 proposal is outside the duty to bargain and 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.  The Authority further finds that
 violations of section 7116(a)(5) and (8) have not been established in
 these circumstances.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-20010 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., March 20, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 4-CA-20010
    Edwin M. Speas, Jr., Esquire
                            For the Respondent
 
    Mr. John W. Mulholland
    Ms. Deborah Loeb Bohren
    Mr. Herman A. Barrier
                          For the Charging Party
 
    Barbara S. Liggett, Esquire
                          For the General Counsel
 
    Before:  GARVIN LEE OLIVER
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Four, Federal Labor Relations Authority,
 Atlanta, Georgia against the North Carolina Air National Guard
 (Respondent).  The complaint alleged, in substance, that Respondent
 violated sections 7116(a)(1), (5), (6), and (8) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
 by failing and refusing to bargain in good faith with the Union and to
 comply and cooperate with a Decision and Order of the Federal Service
 Impasses Panel (the Panel).
 
    Respondent's answer denied the commission of any unfair labor
 practice, but admitted that it has failed to comply with the Panel's
 Decision and Order.  Respondent raised various affirmative defenses.
 
    Prior to a scheduled hearing, the General Counsel filed a motion for
 summary judgment.  The Charging Party supported the motion.  Thereafter,
 the Respondent filed an opposition to the General Counsel's motion and
 moved to dismiss the complaint or, alternatively, for summary judgment
 in its favor.  /3/ The parties were subsequently afforded the
 opportunity to, and did, file additional briefs concerning the
 applicability of section 7106(b).
 
    Upon consideration of all the pleadings and exhibits, it appears that
 there is no genuine issue of material fact and that the General Counsel
 is entitled to summary judgment on the issue of Respondent's failure to
 comply with the Panel's Decision and Order requiring it to adopt the
 Union's proposals concerning grievance arbitration procedures.  The
 Respondent is entitled to summary judgment on the issue of its alleged
 failure to comply with the Panel's decision requiring it to adopt the
 Union's proposal concerning dress and appearance standards.
 Accordingly, such motions are granted, and, in support thereof, I make
 the following findings of fact, conclusions of law, and recommendations.
 
                             Findings of Fact
 
    1.  Since on or about September 19, 1969, the American Federation of
 Government Employees, Local 3001, AFL-CIO (Charging Party or Union) has
 been the exclusive representative of the employees of Respondent in an
 appropriate unit of all full time, and regular part time, civilian
 technician personnel (Federal) employed by the agency at Douglas
 Municipal Airport, Charlotte, North Carolina, excluding temporary
 technicians and casual employees.
 
    2.  On or about October 9, 1979 the Union and Respondent commenced
 negotiations for an initial collective bargaining agreement.  On
 November 18, 1980 the Union requested the assistance of the Panel to
 resolve an impasse which had been reached on four issues.
 
    3.  The Panel appointed a factfinder to conduct a hearing on January
 13, 1981 and to make recommendations for settlement on issues concerning
 dress and appearance standards, grievance procedure, arbitration, and
 duration of the agreement.  A hearing was held, and the factfinder
 submitted her report on March 10, 1981.
 
    4.  The recommendations of the factfinder were accepted by the Union,
 but rejected by Respondent.  Respondent filed a motion to disqualify the
 Panel.
 
    5.  On May 26, 1981, the Panel issued its Decision and Order in Case
 No. 81 FSIP 21 involving Respondent and the Union.  It concluded that
 the parties should adopt the recommendation of the factfinder.  It
 denied the motion to disqualify and ordered the following:
 
          The parties shall adopt the Union's proposals concerning
       grievance arbitration procedures.  Furthermore, the parties shall
       adopt the Union's proposal concerning dress and appearance
       standards and shall, within 60 days of receipt of the Decision and
       Order, negotiate (1) the components of standard civilian attire,
       and (2) circumstances and occasions for which the wearing of
       military uniforms may be required.
 
    6.  On or about June 10, 1981, Respondent submitted to the Panel a
 motion to reconsider requesting that the Decision and Order be set
 aside.
 
    7.  On or about August 3, 1981, the Panel denied Respondent's motion
 to reconsider.
 
    8.  On or about September 2, 1981, Respondent by Rufus L. Edmisten
 and Edwin M. Speas, Jr., informed the Panel in writing, with a copy to
 the Union, that Respondent was rejecting the Decision and Order.
 
    9.  Since on or about August 31, 1981, and at all times material
 herein, Respondent has failed and refused to comply with the Panel's
 Decision and Order.
 
    10.  On October 5, 1981, the Union filed a charge with the Authority
 alleging violations by Respondent of section 7116(a)(1), (5), (6), and
 (8) of the Statute.
 
                        Discussion and Conclusions
 
    It is well settled that a refusal to comply with a final order of the
 Federal Service Impasses Panel constitutes a violation of sections
 7116(a)(1) and (6).  Michigan Army National Guard, Lansing, Michigan, 11
 FLRA No. 74 (1983), appeal filed, No. 83-3244 (6th Cir.).
 
    Respondent takes the position that the Panel's Decision and Order is
 contrary to law, and that it is under no obligation to comply with it.
 Respondent relies on several affirmative defenses.  Grievance and
 Arbitration.
 
    With respect to the Panel's order requiring Respondent to adopt the
 Union's proposals concerning grievance and arbitration procedures,
 Respondent urges that the order is in clear violation of the authority
 vested in the Adjutant General under 32 U.S.C. 709(e).  Decisions of the
 Third and Eighth Circuit support Respondent's position.  See New Jersey
 Air National Guard, 177th Fighter Interceptor Group and Department of
 Defense v. Federal Labor Relations Authority, 677 F.2d 276 (3rd Cir.
 1982), cert. denied 102 S.Ct. 343 (1982);  State of Nebraska, Military
 Department, Office of the Adjutant General and Department of Defense v.
 Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983).
 However, at the time of the Panel's consideration of the issue, the
 Authority had, and it continues to, reject this view.  See Michigan Army
 National Guard, Lansing, Michigan, 11 FLRA No. 74 (1983), appeal filed,
 No. 83-3244 (6th Cir.).  I am bound to follow the legal precedents of
 the Authority.
 
    Accordingly, Respondent has failed and refused to comply and
 cooperate with the final Decision and Order of the Federal Service
 Impasses Panel by failing and refusing to adopt the Union's proposals
 concerning grievance arbitration procedures, which, according to past
 decisions of the Authority, are not contrary to law.  By such action
 Respondent has violated sections 7116(a)(1) and (6) of the Statute.  /4/
 Dress and Appearance Standards
 
    Respondent has set forth several affirmative defenses in support of
 its position that the Panel's order directing it to adopt the Union's
 proposal regarding dress and appearance standards is contrary to law.
 The one I find most persuasive is Respondent's claim that the Panel
 "ignored" its argument that section 7106 reserves to Respondent the
 authority to determine its "mission" and "to determine the personnel by
 which agency operations shall be conducted."
 
    The Panel adopted its factfinder's report that Respondent's assertion
 of nonnegotiability, based on section 7106, was "without merit." The
 factfinder held that she was bound by the 1977 negotiability
 determination of the Federal Labor Relations Council issued under
 Executive Order 11491, as amended, in National Association of Government
 Employees, Local R14-87 and Kansas National Guard, (and other cases
 consolidated therewith), 5 FLRC 124 (1977), reconsideration denied, 5
 FLRC 336 (1977).
 
    The Statute became effective January 11, 1979, long before the
 parties commenced their negotiations.  Pursuant to section 7105(a)(2)(E)
 of the Statute, the Authority is required to resolve issues relating to
 the duty to bargain in good faith under section 7117(c) which
 specifically contemplates an appeal to the Authority.  The Authority has
 implemented this statutory imperative in Part 2424 of the Authority's
 Rules and Regulations.  These regulations set forth the procedures for
 union appeals directly to the Authority from agency allegations that the
 duty to bargain in good faith does not extend to matters proposed to be
 bargained.  Based on this plain language of the Statute, as implemented
 by the Authority's Rules and Regulations, the Authority has decided that
 negotiability issues which arise during impasse resolution procedures of
 the Panel may not be resolved by the Panel, but must be resolved through
 appeal to the Authority.  Interpretation and Guidance, 11 FLRA No. 107
 (1983), appeal filed No. 83-1518 (D.C. Cir.).  The Authority has also
 held that an agency's allegation of nonnegotiability in its prehearing
 brief to the Panel can constitute an "allegation" of nonnegotiability
 for the purpose of filing a petition for review pursuant to Part 2424 of
 the Authority's Rules and Regulations.  International Brotherhood of
 Electrical Workers, AFL-CIO, Local 121, 10 FLRA No. 39 (1982).
 
    In view of these specific statutory and regulatory provisions for
 determining negotiability, the Panel should not have exercised
 jurisdiction over this issue by relying on a negotiability decision
 issued pursuant to the Executive Order.  Section 7135(b) was
 inapplicable to this issue.  /5/ The Authority has not to date addressed
 a section 7106 claim regarding technician's attire.  In view of the
 elaborate statutory and regulatory procedure for resolving pure
 negotiability disputes, it would be equally