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The decision of the Authority follows:
17 FLRA No. 139 TENNESSEE NATIONAL GUARD Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-108 Charging Party Case No. 4-CA-20148 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the National Association of Government Employees, Local R5-108 (NAGE) filed exceptions to the Judge's Decision and the Respondent filed an opposition to NAGE's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. See Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65 (1984), aff'd sub nom. New York Council, Association of Civilian Technicians v. FLRA, No. 84-4128 (2d Cir. Mar. 14, 1985). ORDER IT IS ORDERED that the complaint in Case No. 4-CA-20148 be, and it hereby is, dismissed. Issued, Washington, D.C., May 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Dan R. Bradley, Esquire Les Barham, Esquire For the Respondent Paul J. Hodnett, Esquire For the Charging Party Linda J. Norwood, Esquire For the General Counsel Before: WILLIAM DEVANEY, Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., /1/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns a conceded refusal to comply with a final order of the Federal Service Impasses Panel which involved the attire to be worn by National Guard technicians when performing civilian technician duties. This matter was initiated by a charge filed on January 11, 1982 (G.C. Exh. 1(a)); the Complaint and Notice of Hearing issued on November 18, 1982 (G.C. Exh. 1(b)); by Order dated April 24, 1984, following various motions, hearing was scheduled for May 24, 1984, pursuant to which a hearing was duly held on May 24, 1984, in Nashville, Tennessee, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues; and were afforded the opportunity to present oral argument which each party waived. At the close of the hearing, June 25, 1984, was fixed as the date for mailing post hearing briefs. Respondent, the Charging Party and General Counsel each timely mailed an excellent brief, received on, or before, June 28, 1984. On August 20, 1984, this Office received Counsel for General Counsel's Motion for Remand which requested that, ". . . this case be remanded to the Regional Director for Region IV for further appropriate action consistent with the Authority's decision (Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65, 15 FLRA 288 (1984)). As the matter is ripe for decision, General Counsel's Motion for Remand is hereby denied. Discussion and Conclusions By letter dated July 29, 1981, Respondent advised the Federal Service Impasses Panel (FSIP) that as to the uniform issue, its position, inter alia, was that, ". . . the Adjutant General has determined that the uniforms issued to each member will be the work uniform for all military technicians." (G.C. Exh. 5). On October 5, 1981, the FSIP issued its Decision and Order, Case No. 81-FSIP-91 (G.C. Exh. 6), in which, after noting Respondent's position, set forth, in part, above, it ordered, inter alia, that the parties adopt language in their agreement, ". . . affording individual employees, while performing their day-to-day technician duties, the daily option of wearing either (a) the military uniform or (b) an agreed-upon standard civilian attire without display of military rank, such clothing to be obtained by employees who choose to wear it . . . " (G.C. Exh. 6). By letter dated October 16, 1981, Respondent notified the FSIP that, "1. In regard to Case No. 81 FSIP 91 . . . the State of Tennessee will be in non-compliance with the order. "2. We do not feel that the day-to-day option is in compliance with law or regulation." (G.C. Exh. 7) The record is clear that Respondent unequivocally asserted the exercise of a management right, i.e., ". . . the Adjutant General has determined that the uniforms issued . . . will be the work uniform for all military technicians", and informed the FSIP that it would not comply with its order because, "we do not feel that the day-to-day option is in compliance with law or regulation"; but it is equally clear that Respondent did not specifically assert that the Union's proposal was nonnegotiable. Nevertheless, the FSIP, despite Respondent's assertion of a management right, acted on an issue that required, as a condition precedent, determination of negotiability. At the hearing, and in her brief (General Counsel Brief, p. 9 n. 7), counsel for General Counsel conceded that, ". . . if the Panel acts on an issue that is non-negotiable-- whether it has been determined or not-- and orders the parties to adopt non-negotiable items in their contract, it acts without authority." (Tr. 39), but asserted at the hearing, and in her brief (supra), that, ". . . had the Panel acted without a negotiability determination on the issue of uniforms, it may have acted without authority" but ". . . as far back as 1981, the Authority held, in upholding a Counsel's older Decision, the Authority specifically held that the uniform issue was negotiable. That case is Nevada National Guard, 7 FLRA 245, 1981." (Tr. 18). /2/ Respondent's assertion of its exercise of a management right in determining that the uniforms issued would be the work uniform for all military technicians necessarily required that the FSIP, by ordering the adoption of contrary language, determined the negotiability of that issue, whether it did so, which would have been beyond its authority, or whether it, by silence, relied upon the prior determination of negotiability, either by the Authority or by the Council, which General Counsel asserts the FSIP did in this case; the issue of negotiability is jurisdictional, was not waived by Respondent, and properly was raised in response to the unfair labor practice complaint. Subsequent to the hearing and the submission of briefs, the Authority in a series of decisions has removed wholly the underpinnings of General Counsel's negotiability determination argument. First, in Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65, 15 FLRA 288 (July 17, 1984) and thereafter in Military Department, State of Oregon, Oregon Army and Air National Guard, Salem, Oregon, 15 FLRA No. 100 (August 9, 1984; State of Nevada National Guard, 15 FLRA No. 101 (August 9, 1984) (this decision, on remand, reversed the Authority's prior decision, 7 FLRA 265 (1981), supra, principally relied upon by General Counsel); State of California National Guard, 15 FLRA No. 102 (August 9, 1984); Puerto Rico Air National Guard, 15 FLRA No. 103 (August 9, 1984; National Guard Bureau, Maine Air National Guard (Augusta, Maine), 15 FLRA No. 104 (August 9, 1984), the Authority held, ". . . 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 reason 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." State of Nevada National Guard, 15 FLRA No. 101 at p. 2. In like manner, the determination of the Adjutant General of Tennessee 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 Sec. 6(b)(1) of the Statute. Accordingly, for the reasons stated by the Authority in the foregoing cases, Respondent's failure to cooperate in the final decision of the Panel did not constitute a violation of Secs. 16(a)(6) or (1) of the Statute and it recommended that the Authority adopt the following: ORDER The complaint in Case No. 4-CA-20148 be, and the same is hereby, dismissed. WILLIAM B. DEVANEY Administrative Law Judge Dated: September 13, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the Statute reference, e.g., Section 7116(a)(6) will be referred to, simply, as "Sec. 16(a)(6)." /2/ In point of fact, the FSIP could not have relied upon the Authority's decision in Nevada National Guard, supra, as that decision issued more than a month (November 19, 1981) after the FSIP's Decision and Order in this case (October 5, 1981). Although I am aware of Council determinations of negotiability of the uniform issue prior to October 5, 1981, see, for example, Kentucky National Guard, 4 FLRA No. 73, 4 FLRA 534 (1980), I am not aware of an Authority determination of the negotiability of the uniform issue prior to its Nevada National Guard, supra, decision.