09:0347(41)CA - Florida NG and NAGE Locals R5-91, R5-107, R5-120 -- 1982 FLRAdec CA
[ v09 p347 ]
09:0347(41)CA
The decision of the Authority follows:
9 FLRA No. 41 FLORIDA NATIONAL GUARD Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107, R5-120 Charging Party Case No. 4-CA-407 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE RESPONDENT, AND AN OPPOSITION THERETO WAS FILED BY THE CHARGING PARTY. 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. /1/ UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S SECTION 7116(A)(1) AND (6) FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /2/ STATE OF NEVADA NATIONAL GUARD, 7 FLRA NO. 37(1981), APPEAL DOCKETED, NO. 82-7034 (9TH CIR.JAN. 18, 1982). SEE ALSO DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, ALBANY, NEW YORK, 8 FLRA NO. 33(1982), APPEAL DOCKETED, NO. 82-4072(2DCIR.APR. 16, 1982). /3/ ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS HEREBY ORDERED THAT THE FLORIDA NATIONAL GUARD SHALL: 1. CEASE AND DESIST FROM: (A) REFUSING TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE MILITARY UNIFORM," OR IN ANY OTHER MANNER FAILING OR REFUSING TO COOPERATE IN IMPASSE DECISIONS OR PROCEDURES. (B) REFUSING TO ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120: INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE 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. (C) REFUSING TO AGREE UPON AND INCORPORATE IN ITS COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED. (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE: (A) ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120: INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE 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. (B) MEET AND NEGOTIATE WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, REGARDING THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED AND INCORPORATE THE AGREEMENT REACHED IN ITS COLLECTIVE BARGAINING AGREEMENT. (C) POST AT ITS FACILITIES, WHEREEVER UNIT EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE ADJUTANT GENERAL OF THE FLORIDA NATIONAL GUARD AND SHALL BE POSTED BY HIM FOR 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. ISSUED, WASHINGTON, D.C., JUNE 30, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT REFUSE TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE MILITARY UNIFORM" OR IN ANY OTHER MANNER FAIL OR REFUSE TO COOPERATE IN IMPASSE DECISIONS OR PROCEDURES. WE WILL NOT REFUSE TO ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120: INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE 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. WE WILL NOT REFUSE TO AGREE UPON AND INCORPORATE IN OUR COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120: INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE 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. WE WILL MEET AND NEGOTIATE WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, REGARDING THE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED AND INCORPORATE THE AGREEMENT REACHED IN OUR COLLECTIVE BARGAINING AGREEMENT WITH SUCH LABOR ORGANIZATION. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV, 1776 PEACHTREE STREET, NW., SUITE 501, NORTH WING, ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324. -------------------- ALJ$ DECISION FOLLOWS -------------------- LINDA J. NORWOOD, ESQ. JAMES R. PUGHER, ESQ. FOR THE GENERAL COUNSEL RANDY J. COHEN, ESQ. FOR THE CHARGING PARTY LT. COL. RICHARD G. WEINBERG COL. C. M. MCCORMICK FOR THE RESPONDENT BEFORE: FRANCIS E. DOWD ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING ON APRIL 22, 1980 BASED UPON A CHARGE FILED ON MARCH 25, 1980 BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107, AND R5-120, HEREIN REFERRED TO AS THE CHARGING PARTY OR UNION. THE COMPLAINT ALLEGES, AND THERE IS NO SERIOUS FACTUAL DISPUTE, THAT FLORIDA NATIONAL GUARD, HEREIN REFERRED TO AS THE RESPONDENT, REJECTED AND REFUSED TO COMPLY WITH A DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL, HEREIN REFERRED TO AS THE FSIP OR THE PANEL, IN CASE NO. 78 FSIP 100. BY SO DOING, RESPONDENT IS ALLEGED TO HAVE VIOLATED SECTIONS 7116(A)(1), (5), (6) AND (8) OF THE STATUTE. THE ISSUES, AS SET FORTH IN THE GENERAL COUNSEL'S BRIEF, ARE AS FOLLOWS: A. WHETHER RESPONDENT'S REFUSAL TO COMPLY WITH A DECISION AND ORDER OF THE FSIP VIOLATES SECTIONS 7116(A)(1), (6) AND (8) OF THE STATUTE. B. WHETHER RESPONDENT'S REFUSAL TO ENTER INTO NEGOTIATIONS WITH THE UNION CONCERNING COMPLIANCE WITH A DECISION AND ORDER OF THE FSIP, UPON REQUEST BY THE UNION, VIOLATES SECTIONS 7116(A)(1) AND (5) OF THE STATUTE THIS CASE REPRESENTS ANOTHER CHAPTER IN THE CONTINUING SAGA OF THE EFFORTS BY THE NATIONAL GUARD TO EVENTUALLY OBTAIN COURT REVIEW OF A DECISION OF THE FEDERAL SERVICE IMPASSES PANEL. IN THE ABSENCE OF ANY STATUTORY PROVISION PERMITTING DIRECT REVIEW OF AN ADVERSE FSIP DECISION, THE NATIONAL GUARD IN THIS AND IN OTHER CASES THROUGHOUT THE COUNTRY /4/ IS EXHAUSTING ITS ADMINISTRATIVE AND STATUTORY REMEDIES BY FIRST SUBJECTING ITSELF TO AN UNFAIR LABOR PRACTICE PROCEEDING SO THAT IT CAN LAY THE GROUNDWORK FOR COURT REVIEW PURSUANT TO SECTION 7123 OF ANY ADVERSE DECISION BY THE FEDERAL LABOR RELATIONS AUTHORITY. THUS, RESPONDENT IS ACTING IN ACCORDANCE WITH THE VIEWS OF THE AUTHORITY AS SET FORTH IN ITS DECISIONS DENYING PETITIONS FOR DIRECT REVIEW OF A FEDERAL SERVICE IMPASSES PANEL DECISION AND ORDER. /5/ AT THE HEARING IN ST. AUGUSTINE, FLORIDA ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENT AND GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE MISSION OF THE EMPLOYER IS TO PROVIDE UNITS OF TRAINED PERSONNEL TO AUGMENT THE ARMED FORCES OF THE UNITED STATES, AND TO PRESERVE PEACE, ORDER, AND PUBLIC SAFETY WITHIN THE STATE OF FLORIDA. TO CARRY OUT THIS MISSION THE EMPLOYER MAINTAINS A CADRE OF SOME 530 ARMY AND 320 AIR NATIONAL GUARD TECHNICIANS. MOST OF THESE EMPLOYEES ARE LOCATED AT JACKSONVILLE (432), CAMP BLANDING (110), AND ST. AUGUSTINE, FLORIDA (106), BUT THERE ARE 17 ONE-PERSON AND 11 TWO-PERSON LOCATIONS AMONG THE MANY WHICH ARE SERVED BY ARMY NATIONAL GUARD TECHNICIANS. 2. AT ALL TIMES MATERIAL HEREIN, INCLUDING SINCE ON OR ABOUT AUGUST 1971, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 HAVE BEEN CERTIFIED AS EXCLUSIVE REPRESENTATIVES IN APPROPRIATE UNITS OF ALL NON-SUPERVISORY WAGE GRADE, AND GENERAL SCHEDULE ARMY AND AIR NATIONAL GUARD TECHNICIANS IN THE STATE OF FLORIDA BUT EXCLUDING SUPERVISORS AND NON-SUPERVISORY EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK EXCEPT IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES, AND GUARDS IN NAGE LOCAL R5-91, R5-107 AND R5-120. 3. THE CERTIFIED UNITS REFERRED TO ABOVE IN PARAGRAPH 2 HAVE BEEN EMBODIED IN THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT APPROVED JANUARY 29, 1975 BETWEEN RESPONDENT AND UNION. 4. AT ALL TIMES MATERIAL HEREIN, INCLUDING ALL TIMES SINCE JANUARY 29, 1975, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 HAVE BEEN AND ARE THE EXCLUSIVE REPRESENTATIVES OF THE EMPLOYEES IN THE UNITS DESCRIBED ABOVE IN PARAGRAPH 2. 5. AT ALL TIMES MATERIAL HEREIN, THE FOLLOWING NAMED PERSONS OCCUPIED THE POSITIONS SET OPPOSITE THEIR RESPECTIVE NAMES AND HAVE BEEN AND ARE NOT SUPERVISORS AND MANAGEMENT OFFICIALS OF THE RESPONDENT WITHIN THE MEANING OF 5 USC 7103(A)(10) AND (11) AND ARE AGENTS OF RESPONDENT AT ITS ST. AUGUSTINE, FLORIDA LOCATION: K. C. BULLARD -- MAJOR GENERAL, COMMANDER FLORIDA NATIONAL GUARD C. M. MCCORMICK, JR. -- COLONEL, SS, FLARING TECHNICIAN PERSONNEL OFFICER 6. ON NOVEMBER 29, 1979, THE FEDERAL SERVICE IMPASSES PANEL ISSUES ITS REPORT AND RECOMMENDATION IN CASE NO. 78 FSIP 100 INVOLVING RESPONDENT AND UNION HEREIN IN WHICH IT MADE THE FOLLOWING SETTLEMENT RECOMMENDATIONS TO THE PARTIES: 1. THE WEARING OF THE MILITARY UNIFORM A. THE PARTIES SHOULD 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. B. THE PARTIES SHOULD AGREE UPON EXCEPTIONS TO COVER THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED. 7. ON JANUARY 29, 1980, THE FSIP ISSUED ITS DECISION AND ORDER IN CASE NO. 78 FSIP 100 INVOLVING RESPONDENT AND UNION HEREIN IN WHICH IT ORDERED THE PARTIES TO ADOPT IN THEIR COLLECTIVE BARGAINING AGREEMENT THE RECOMMENDATIONS OF THE FSIP AS CONTAINED IN ITS REPORT AND RECOMMENDATIONS IN CASE NO. 78 FSIP 100, WHICH RECOMMENDATIONS ARE SET FORTH ABOVE IN PARAGRAPH 6. 8. ON OR ABOUT FEBRUARY 20, 1980, RANDY J. COHEN, ATTORNEY FOR THE UNION, WROTE COLONEL MCCORMICK REQUESTING NEGOTIATIONS CONCERNING COMPLIANCE WITH THE JANUARY 29, 1980 FSIP DECISION AND ORDER. RESPONDENT ON OR ABOUT FEBRUARY 29, 1980 BY IT SUPERVISOR, MANAGEMENT OFFICIAL AND AGENT TECHNICIAN PERSONNEL OFFICER COLONEL C. M. MCCORMICK, JR., INFORMED IN WRITING MR. HOWARD W. SOLOMON, EXECUTIVE DIRECTOR, FSIP, WITH A COPY TO THE UNION, THAT RESPONDENT WAS REJECTING THE FSIP'S DECISION AND ORDER IN CASE NO. 78 FSIP 100 AND WOULD NOT COMPLY WITH IT. THE PERTINENT PART OF THAT LETTER IS QUOTED BELOW. "THE PANEL DECISION AND ORDER HAS BEEN CAREFULLY REVIEWED, AND IT APPEARS THAT MANAGEMENT IS IN THE UNTENABLE POSITION OF BEING PUT IN VIOLATION OF ITS LAWFUL MILITARY REQUIREMENTS, IF THE BASIC ISSUE INVOLVED IS NOT OTHERWISE RESOLVED. THE AUTHORITY FOR WEAR OF THE MILITARY UNIFORM FLOWS FROM STATUTORY REQUIREMENT UNDER THE UNITED STATES CODE, WHICH PRESCRIBES THE WEAR AND USE OF THE MILITARY UNIFORM, UNDER APPROPRIATE REGULATIONS OF THE SECRETARY OF DEFENSE. THE IMPASSE IS NOT BETWEEN LABOR AND MANAGEMENT, BUT ARISES FROM COMPLIANCE WITH MISSION ESSENTIAL REQUIREMENTS OF THE NATIONAL GUARD. IT IS FURTHER SUBMITTED THAT THE ISSUE IS ONE WHICH LEAVES NO AVENUE OF SETTLEMENT OR NEGOTIATION OPEN TO THE FLORIDA NATIONAL GUARD. THE UNIFORM WEAR IS AN INTEGRAL PART OF THE MISSION OF NATIONAL GUARD PERSONNEL, AND IT IS NOT APPROPRIATE FOR THE AUTHORITY TO COMPEL REQUIREMENTS INCOMPATIBLE WITH THE FUNCTION AND MISSION OF THE NATIONAL GUARD. THE FLORIDA NATIONAL GUARD HAS THEREFORE CONCLUDED THAT COMPLIANCE WITH THE PANEL'S DECISION AND ORDER CANNOT BE INITIATED IN GOOD CONSCIENCE AS IT RELATES TO THE UNIFORM ISSUE. IN VIEW OF THIS CONCLUSION, AND THE FACT THAT NO AVENUE OF REVIEW OR APPEAL EXISTS, THIS HEADQUARTERS MUST RESPECTFULLY REJECT THE PANEL'S DECISION . . . ." A COPY OF THIS FEBRUARY 29, 1980, LETTER OF COLONEL MCCORMICK REFUSING COMPLIANCE WITH THE PANEL'S DECISION AND ORDER WAS SENT SO MR. COHEN IN RESPONSE TO HIS FEBRUARY 20, 1980 REQUEST FOR COMPLIANCE NEGOTIATIONS WITH REGARD TO THE PANEL'S DECISION AND ORDER. 9. SINCE ON OR ABOUT FEBRUARY 29, 1980 AND CONTINUING TO DATE, RESPONDENT HAS AT ITS ST. AUGUSTINE, FLORIDA LOCATION, IN VIOLATION OF 5 USC 7116(A)(1) AND (6) FAILED AND REFUSED AND CONTINUES TO FAIL AND REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND DECISIONS BY REFUSING TO COMPLY WITH AND REJECTING THE FSIP DECISION AND ORDER IN CASE NO. 78 FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8. 10. SINCE ON OR ABOUT FEBRUARY 29, 1980 AND AT ALL TIMES THEREAFTER, RESPONDENT HAS, AT ITS ST. AUGUSTINE, FLORIDA LOCATION, IN VIOLATION OF 5 USC 7116(A)(1) AND (8), FAILED AND REFUSED AND CONTINUES TO FAIL AND REFUSE TO COMPLY WITH THE PROVISIONS OF 5 USC 7119(C)(5)(C) BY FAILING AND REFUSING AND CONTINUING TO FAIL AND REFUSE TO ADOPT IN THEIR AGREEMENT WITH THE UNION THE BINDING LANGUAGE OF THE FSIP DECISION AND ORDER IN CASE NO. 78 FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8. 11. SINCE ON OR ABOUT FEBRUARY 29, 1980 AND AT ALL TIMES THEREAFTER RESPONDENT DID REFUSE AND CONTINUES TO REFUSE TO BARGAIN IN FOOD FAITH WITH THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE UNITS DESCRIBED ABOVE IN PARAGRAPH 2 IN THAT RESPONDENT FAILED AND REFUSED AND CONTINUES TO FAIL AND REFUSE TO NEGOTIATE IN GOOD FAITH THE REQUIREMENTS OF THE LANGUAGE AND ADOPT IN THEIR AGREEMENT WITH THE UNION THE REQUIREMENTS OF THE FSIP DECISION AND ORDER IN CASE NO. 78 FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8 AS PART OF ITS FINAL RESOLUTION OF THE IMPASSE BETWEEN THE RESPONDENT AND THE UNION. DISCUSSION AND ANALYSIS THE PERTINENT STATUTORY PROVISIONS INVOLVED IN THIS PROCEEDING ARE AS FOLLOWS: SEC. 7116. UNFAIR LABOR PRACTICES "(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY-- "(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER; . . . "(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR ORGANIZATION AS REQUIRED BY THIS CHAPTER; "(6) TO FAIL OR REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY THIS CHAPTER; . . . "(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER. IN ADDITION, SECTION 7119(C)(5)(C) OF THE STATUTE PROVIDES THAT: NOTICE OF ANY FINAL ACTION OF THE PANEL UNDER THIS SECTION SHALL BE PROMPTLY SERVED UPON THE PARTIES, AND THE ACTION SHALL BE BINDING ON SUCH PARTIES DURING THE TERM OF THE AGREEMENT, UNLESS THE PARTIES AGREE OTHERWISE. ALTHOUGH THE AUTHORITY'S NEW YORK AND CALIFORNIA DECISIONS (CITED HEREIN IN PARAGRAPH 2) WERE NOT UNFAIR LABOR PRACTICE PROCEEDINGS, IT IS SIGNIFICANT THAT THE AUTHORITY REFERRED TO THE FOLLOWING LEGISLATIVE HISTORY (H.REP.NO. 95-1403, JULY 31, 1978, AT 54-55) AND ITSELF ADDED EMPHASIS TO A PORTION THEREOF: NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED UPON THE PARTIES, AND THE ACTION IS FINAL AND BINDING UPON THE PARTIES DURING THE TERM OF THE AGREEMENT, UNLESS THE PARTIES AGREE OTHERWISE. FINAL ACTION OF THE PANEL UNDER THIS SECTION IS NOT SUBJECT TO APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION ORDERED BY THE PANEL CONSTITUTES AN UNFAIR LABOR PRACTICE BY AN AGENCY UNDER SECTION 7116(1)(6) AND (8) OR A LABOR ORGANIZATION UNDER SECTION 7116(B)(6) AND (8). THE FOREGOING LANGUAGE OF THE AUTHORITY COMPELS ME TO THE FOLLOWING CONCLUSIONS: A FINAL ACTION OF THE FSIP IS BINDING UPON THE PARTIES AND IS NOT SUBJECT TO COLLATERAL ATTACK IN AN UNFAIR LABOR PROCEEDING; RATHER, THE ONLY ISSUE BEFORE ME IS RESPONDENT'S COMPLIANCE WITH THAT DECISION. THERE BEING NO DISPUTE ABOUT RESPONDENT'S NON-COMPLIANCE, I AM CONSTRAINED TO FIND A VIOLATION OF SECTION 7116(A)(6) AND (8). /6/ FURTHER, BY REJECTING THE STATUTORY PROCEDURE ENACTED TO RESOLVE IMPASSE DISPUTES, RESPONDENT HAS INTERFERED WITH THE RIGHTS OF EMPLOYEES IN VIOLATION OF SECTIONS 7116(A)(1). /7/ A NEW ISSUE PRESENTED IN THE INSTANT PROCEEDING IS WHETHER RESPONDENT REFUSED TO "CONSULT OR NEGOTIATE" AS REQUIRED BY THE STATUTE. IN VETERAN'S ADMINISTRATION, SALEM, VIRGINIA, 1 FLRA NO. 101(AUGUST 21, 1979) THE AUTHORITY HELD THAT THE REFUSAL TO NEGOTIATE ON AN ISSUE AFTER THE ISSUE HAD BEEN DETERMINED TO BE NEGOTIABLE BY THE PROCESSES UNDER THE EXECUTIVE ORDER, CONSTITUTES AN UNFAIR LABOR PRACTICE PURSUANT TO SECTIONS 19(A)(1) AND (6) OF THE ORDER. IN THAT CASE, RESPONDENT REFUSED TO BARGAIN OVER AN ISSUE DEEMED NEGOTIABLE BY THE FLRC, PENDING RESPONDENT'S REQUEST TO THE UNITED STATES ATTORNEY GENERAL FOR AN OPINION AS TO THE RESPONSIBILITY OF RESPONDENT TO ABIDE BY A NEGOTIABILITY DETERMINATION OF THE FLRC WHICH WAS ALLEGEDLY CONTRARY TO THE AGENCY'S REGULATIONS. THE AUTHORITY DETERMINED THAT RESPONDENT'S ACTIONS IN HOLDING NEGOTIATIONS IN ABEYANCE PENDING REFERRAL OF A REQUEST FOR AN OPINION OF THE U.S. ATTORNEY GENERAL FOR REVIEW DOES NOT RELIEVE RESPONDENT OF ITS OBLIGATION TO BARGAIN. ACCORDINGLY, IF IN VETERAN'S ADMINISTRATION, SALEM, VIRGINIA, SUPRA, IT WAS HELD BY THE AUTHORITY THAT RESPONDENT'S REFUSAL TO BARGAIN OVER AN ISSUE DETERMINED TO BE NEGOTIABLE BY THE PROCEDURES PROVIDED FOR DETERMINING SUCH NEGOTIABILITY, WAS VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE ORDER, THEN I AGREE WITH THE GENERAL COUNSEL THAT IN THE INSTANT CASE, A FORTIORI, RESPONDENT'S REFUSAL TO BARGAIN, UPON REQUEST BY THE UNION, OVER COMPLIANCE WITH A DECISION AND ORDER OF THE FSIP IS ALSO VIOLATIVE OF SECTION 7116(A)(1) NAD (5) /8/ RESPONDENT ATTEMPTS TO DEFEND ITS REJECTION OF AND REFUSAL TO COMPLY WITH THE FSIP'S DECISION AND ORDER, IN ESSENCE, BY ASSERTING THAT: THE FSIP HAS NO JURISDICTION TO RULE ON A MATTER OF "PURELY MILITARY CONCERN", I.E., THE WEARING OF THE MILITARY UNIFORM; THE WEARING OF THE MILITARY UNIFORM IS A NON-NEGOTIABLE ISSUE; AND THE FSIP ERRED IN ITS DECISION AND ORDER. I AGREE WITH THE GENERAL COUNSEL THAT THE ABOVE DEFENSES HAVE BEEN RAISED IN THE PAST BY VARIOUS RESPONDENT NATIONAL GUARDS UNITS IN SIMILAR CIRCUMSTANCES AND HAVE BEEN UNIFORMLY FOUND NON-MERITORIOUS. WITH REGARD TO SAID DEFENSES RAISED BY RESPONDENT, THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND KANSAS NATIONAL GUARD (AND OTHER CASES CONSOLIDATED THEREWITH), FLRC NO. 76A-16, 5 FLRC 124(1977), RECONSIDERATION DENIED 5 FLRC 336(1977) FOUND, IN PERTINENT PART, THAT THE ISSUE OF THE WEARING OF THE MILITARY UNIFORM BY CIVILIAN TECHNICIANS WAS NEGOTIABLE. ACCORDINGLY, I REJECT RESPONDENT'S DEFENSES, AND I REAFFIRM ANY RULING AT THE HEARING DENYING ITS MOTION TO DISMISS. IN CONCLUSION, THE RECORD DEMONSTRATES THAT RESPONDENT HAS FAILED AND REFUSED TO COMPLY AND COOPERATE WITH A FINAL DECISION AND ORDER OF THE FEDERAL SERVICES IMPASSES PANEL, IN VIOLATION OF 5 U.S.C. SEC. 7116(A)(6) AND (8), HAS FAILED AND REFUSED TO CONSULT AND NEGOTIATE WITH THE UNION CONCERNING THE IMPLEMENTATION OF THE PANEL'S FINAL DECISION AND ORDER, IN VIOLATION OF 5 U.S.C. 7116(A)(5), AND, BY SUCH ACTION, HAS INTERFERED WITH AND RESTRAINED THE EXERCISE BY EMPLOYEES OF THEIR RIGHTS IN VIOLATION OF 5 U.S.C. 7116(A)(1). TO REMEDY THESE VIOLATIONS, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING: ORDER PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND SECTION 2423.29 OF THE RULES AND REGULATIONS THE FEDERAL LABOR RELATIONS AUTHORITY HEREBY ORDERS THAT THE FLORIDA NATIONAL GUARD SHALL: 1. CEASE AND DESIST FROM: (A) REFUSING TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE MILITARY UNIFORM" OR IN ANY MANNER FAILING OR REFUSING TO COOPERATE IN IMPASSE DECISIONS OR PROCEDURES. (B) REFUSING TO ADOPT THE FOLLOWING LANGUAGE IN THEIR COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120: INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE 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. (C) FAILING AND REFUSING TO MEET AND NEGOTIATE IN GOOD FAITH WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 CONCERNING "THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED", AND TO INCORPORATE THE RESULTS OF SUCH NEGOTIATIONS IN THEIR COLLECTIVE BARGAINING AGREEMENT. (D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE: (A) COOPERATE WITH THE FEDERAL SERVICE IMPASSES PANEL BY COMPLIANCE FORTHWITH WITH ITS DECISION AND ORDER ISSUED ON JANUARY 29, 1980. (B) MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 AND NEGOTIATE IN GOOD FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF THE DECISION AND ORDER OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED JANUARY 29, 1980. (C) POST AT ITS FACILITIES IN FLORIDA COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY AN AUTHORIZED REPRESENTATIVE, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. (D) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING, ATLANTA, GEORGIA, 30309, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. FRANCIS E. DOWD ADMINISTRATIVE LAW JUDGE DATED: FEBRUARY 13, 1981 WASHINGTON, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE MILITARY UNIFORM" AND COOPERATE WITH IMPASSE DECISIONS AND PROCEDURES. WE WILL ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING AGREEMENT WITH NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120: INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE 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. WE WILL MEET AND NEGOTIATE IN GOOD FAITH WITH NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 AND INCORPORATE INTO OUR COLLECTIVE BARGAINING AGREEMENT, THOSE AGREED-UPON CIRCUMSTANCES AND OCCASIONS FOR WHICH "WEARING OF THE MILITARY UNIFORM" MAY BE REQUIRED. WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. (ACTIVITY OR AGENCY) DATED: BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING, ATLANTA, GEORGIA 30309. --------------- FOOTNOTES$ --------------- /1/ IN THIS CONNECTION, THE RESPONDENT HAS ADVANCED NO BASIS SUFFICIENT TO WARRANT CONSIDERATION BY THE AUTHORITY OF FACTUAL ARGUMENTS NOT PREVIOUSLY RAISED BEFORE THE FEDERAL SERVICE IMPASSES PANEL. /2/ HOWEVER, THE AFFIRMATIVE ACTION PORTION OF THE JUDGE'S RECOMMENDED ORDER IS MODIFIED HEREIN SPECIFICALLY TO REQUIRE THE RESPONDENT TO COMPLY WITH THE DIRECTIVES OF THE FEDERAL SERVICE IMPASSES PANEL BY INCLUDING PARTICULAR LANGUAGE IN ITS COLLECTIVE BARGAINING AGREEMENT WITH THE CHARGING PARTY AND BY NEGOTIATING WITH THE CHARGING PARTY CONCERNING RELATED MATTERS. /3/ IN VIEW OF THAT FINDING, IT IS UNNECESSARY FOR THE AUTHORITY TO PASS UPON WHETHER THE RESPONDENT'S CONDUCT ALSO VIOLATED SECTION 7116(A)(5) AND (8) OF THE STATUTE, AS FOUND BY THE JUDGE. SEE STATE OF CALIFORNIA NATIONAL GUARD, 8 FLRA NO. 11(1982), APPEAL DOCKETED, NO. 82-7187(9TH CIR. APR. 1, 1982). /4/ NEW YORK, CALIFORNIA, KENTUCKY, KANSAS, NEW MEXICO. /5/ STATE OF NEW YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS AND NEW YORK COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, INC., 2 FLRA NO. 20(DECEMBER 5, 1979). ON THE SAME DATE, THE AUTHORITY ISSUED TWO SIMILAR DECISIONS INVOLVING THE CALIFORNIA NATIONAL GUARD IN 2 FLRA NO. 21 AND 2 FLRA NO. 22. /6/ DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, CASE NO. 1-CA-19, (APRIL 9, 1980); STATE OF CALIFORNIA NATIONAL GUARD, CASE NOS. 9-CA-44 AND 9-CA-95(MARCH 21, 1980). A MORE DETAILED DISCUSSION OF THESE ISSUES IS CONTAINED IN THESE DECISIONS. /7/ STATE OF NEW YORK, SUPRA, PAR. 3. /8/ IN THE STATE OF CALIFORNIA CASE (SUPRA PAR.2), THE ALJ ALSO FOUND A VIOLATION OF SECTION 7116(A)(5).