[ v15 p658 ]
15:0658(134)CA
The decision of the Authority follows:
15 FLRA No. 134
OKLAHOMA ARMY NATIONAL GUARD
OKLAHOMA CITY, OKLAHOMA
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1694
Charging Party
Case No. 6-CA-20160
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, granting the General Counsel's Motion for
Summary Judgment, finding that the Respondent had engaged in certain
unfair labor practices alleged in the complaint and recommending that it
be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision.
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 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 violated section 7116(a)(1)
and (6) of the Statute by its failure and refusal to comply with the
final decision and order of the Federal Service Impasses Panel (the
Panel). The Panel's decision and order required the parties to adopt
language in their collective bargaining agreement providing National
Guard technicians with the day-to-day option of wearing a military
uniform or agreed-upon civilian attire. /1/ Subsequent to the issuance
of the Judge's Decision, the Authority issued its Decision and Order
upon Remand in Division of Military and Naval Affairs, State of New
York, Albany, New York, 15 FLRA No. 65 (1984), in which it held 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 and thus was not within
the duty to bargain. Consequently, the Authority found that the failure
of the Respondent to cooperate in the final decision and order of the
Panel was not violative of section 7116(a)(1) and (6) of the Statute.
Based on this rationale as expressed more fully in State of New York,
the Authority finds that the failure of the Respondent Oklahoma National
Guard to comply with the final decision and order of the Federal Service
Impasses Panel did not constitute a violation of section 7116(a)(1), (5)
and (6) of the Statute.
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-20160 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
James E. Dumerer, Esq.
For the General Counsel
Edgar L. Carlson
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., (hereinafter
called the Statute), as a result of an unfair labor practice Complaint
and Notice of Hearing issued on July 22, 1982 by the Regional Director,
Region VI, Federal Labor Relations Authority (hereinafter called the
Authority), Dallas, Texas.
The Complaint alleges that the Oklahoma Army National Guard, Oklahoma
City, Oklahoma (herein called Respondent) failed and refused to bargain
in good faith with the National Federation of Federal Employees, Local
1694 (herein called the Union) and failed and refused to cooperate in
impasse procedures and impasse decision in violation of section
7116(a)(1), (5) and (6) of the Statute.
On August 12, 1982, Respondent filed its Answer to the aforesaid
Complaint, which Answer admits the allegations contained in paragraphs
1, 2, 3, 4, 5 and 6(a) of the Complaint. Thereafter on October 7, 1982,
the General Counsel filed a Motion for Summary Judgment, alleging, in
essence, that all material factual allegations of the Complaint were
admitted, that no litigable issues remained and that the admitted facts
were sufficient to establish a violation of the Statute. On October 15,
1982, the Chief Administrative Law Judge issued his Order requiring
responses to the General Counsel's Motion for Summary Judgment be served
by November 1, 1982, and that all parties serve any additional
statements or Memoranda of Law on or before November 15, 1982. On that
same day, October 15, 1982, Respondent filed its Cross Motion for
Summary Judgment, which essentially admitted that there were no material
factual disputes and alleging that the Complaint failed to state a
violation of the Statute and, therefore, should be dismissed. Both
Respondent and the General Counsel filed briefs in the matter.
It has long been settled that the purpose of summary judgment is to
avoid useless, expensive, and time-consuming trials where there are no
genuine issues of material fact to be tried. Cf. Fed. R. Civ. p. 56;
Lyons v. Board of Education, Charleston Reorganized School District
Number 1 of Miss. City, Mo., 523 F.2d 430, 347 (8 Cir., 1975). The
Rules and Regulations of the Authority also specifically authorize the
use of Motions for Summary Judgment in the litigation of unfair labor
practice charges under the Statute. See 5 C.F.R. 2423.19(k) (1980).
Moreover, motions in the nature of Motions for Summary Judgment are
deemed appropriate under the Administrative Procedure Act. See, e.g.,
Municipal Lightboards of Reading and Wakefield, Mass. v. Federal Power
Commission, 450 Fed.2d 1341, 1345-1346 (D.C. Cir., 1971), Cert. denied,
405 U.S. 989 (1972).
Upon examination of the General Counsel's Motion for Summary Judgment
and the Respondent's reply, it appears that there are no genuine issues
of material fact and that only legal issues are involved. In these
circumstances, the required hearing under the Statute may consist wholly
of an opportunity to present written argument. See F. Davis,
Administrative Law Treatise, 2d Edition, Sections 12.1, 12.10 (1979).
See also Section 12.1, at p. 406; Internal Revenue Service, A/SLMR No.
897, 7 A/SLMR 782 (1977). The parties have been afforded such an
opportunity and did, as previously noted, filed briefs in this matter.
Findings of Fact
The material admitted facts are as follows:
1. Respondent is an agency within the meaning of 5 U.S.C.
7103(a)(3).
2. The Union is a labor organization within the meaning of 5 U.S.C.
7103(a)(4).
3. The Union is recognized by Respondent as the exclusive
representative for employees in an appropriate bargaining unit.
4. Since on or about November 3, 1981, Respondent has failed and
refused to adopt contract language and to take other affirmative action
directed by the final decision of the Federal Service Impasses Panel
(hereinafter called the Panel) in Case No. 81 FSIP 142. That decision
issued on November 3, 1981, sets out the following Union proposal:
Technicians will have the day-to-day option of wearing a
military uniform or street clothes of his choosing. While working
in civilian clothes the only appearance requirement will be that
such clothing will be of a safe nature and provide adequate
protection from sparks, chips, and spills of irritating liquids,
this will eliminate the wear of shorts, tank tops, and sleeveless
shirts. While working in a military uniform appearance will be
within military guidelines. The employer will furnish all safety
items of apparel to include safety shoes, parkas, rain suits,
flight suits, and other foul weather gear and safety related
items.
The Panel ordered that the parties to adopt the Union's proposal as
amended to provide that the street attire be neat, clean, and in good
condition as might be reasonably expected under various working
conditions. In addition, it ordered further negotiations concerning the
circumstances and occasions for which the wearing of the military
uniform may still be required.
5. On December 22, 1981, the Panel denied Respondent's request for
reconsideration of the matter.
6. Since that time Respondent has not negotiated with the exclusive
representative concerning the uniform issue nor has it taken the action
directed by the Panel.
Discussion and Conclusions
Respondent, in its brief contends that its choosing to collaterally
attack the Panel's Decision and Order constitutes neither an
interference with employee rights nor interferences with the collective
bargaining process.
The General Counsel argues merely that the essential admitted facts
including Respondent's recognition of the Union as the exclusive
representative of the bargaining unit, the Panel's Decision and Order
directing Respondent to adopt certain language, and its failure since
November 3, 1981 (sic) to carry out the negotiations required by the
Panel's Decision and Order constitutes a violation of the Statute.
The Authority has repeatedly held that the failure and refusal to
comply with a Final Decision and Order of the Panel constitutes a
violation of the Statute. Kentucky National Guard and National
Association of Government Employees, Local RS-100, 4 FLRA No. 73 (1981);
State of Nevada National Guard, 7 FLRA No. 37 (1981) appeal docketed
No. 82-7034 (9th Circuit, January 18, 1982); State of California
National Guard, 8 FLRA No. 11 (1982); Division of Military and Naval
Affairs, State of New York, 8 FLRA No. 33 (1982); Military Department,
State of Oregon Army and Air National Guard, Salem, Oregon, 8 FLRA No.
107 (1982); Puerto Rico Air National Guard, 8 FLRA No. 99 (1982);
Florida National Guard and Locals R5-91, R5-107, R5-120, 9 FLRA 41
(1982).
Most of the above cited cases involved collateral attacks on the
decision of the Panel. It is also noted that the uniform issue involved
in this matter was also at issue in several of the above cases. /2/ At
this point, the Authority has not found sufficient basis to overturn a
decision of the Panel where the uniform issue was concerned. I agree
with the General Counsel that Respondent's submission indicates no
precedent for allowing such an attack in an unfair labor practice
proceeding before the Authority, and in light of its previous rulings
where similar collateral attacks were involved, no such attack can be
sustained in this forum. /3/
Accordingly, since Respondent admittedly has failed and refused to
comply with the Decision and Order of the Federal Service Impasses Panel
in Case No. 81 FSIP 142, which, according to past decisions of the
Authority was not contrary to law, I find that Respondent by such action
violated section 7116(a)(1) and (6) and independently violated section
7116(a)(1) of the Statute. /4/
Having found and concluded that Respondent violated section
7116(a)(1) and (6) of the Statute, I recommend that the General
Counsel's Motion for Summary Judgment be granted, that Respondent's
Cross-Motion for Summary Judgment be denied and, that the Authority
issue the following:
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 Oklahoma Army National Guard, Oklahoma City,
Oklahoma shall:
1. Cease and desist from:
(a) Failing and refusing to comply and cooperate with the
Decision and Order of the Federal Service Impasses Panel issued in
Case No. 81 FSIP 142.
(b) 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) Comply and cooperate with the Decision and Order of the
Federal Service Impasses Panel issued in Case No. 81 FSIP 142.
(b) Post at its facilities 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 the Adjutant
General, Oklahoma Army National Guard, 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. The Adjutant
General shall take reasonable steps to insure that such notices
are not altered, defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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.
ELI NASH, JR.
Administrative Law Judge
Dated: December 2, 1982
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 NOT fail and refuse to comply with the Decision and Order of
the Federal Service Impasses Panel issued in Case No. 81 FSIP 142.
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 comply and cooperate with the Decision and Order of the
Federal Service Impasses Panel issued in Case No. 81 FSIP 142 and will
otherwise cooperate in impasses procedures and decisions as required by
the Federal Service Labor-Management Relations Statute.
(Agency or Activity)
BY: (Signature)
DATED: . . .
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 VI, whose
address is: P.O. Box 2640, Dallas, Texas 75221 and whose telephone
number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ The Union proposal as set out in the Judge's Decision is:
Technicians will have the day-to-day option of wearing a
military uniform or street clothes of his choosing. While working
in civilian clothes the only appearance requirement will be that
such clothing will be of a safe nature and provide adequate
protection from sparks, chips, and spills of irritating liquids,
this would eliminate the wear of shorts, tank tops, and sleeveless
shirts. While working in a military uniform appearance will be
within military guidelines. The employer will furnish all safety
items of apparel to include safety shoes, parkas, rain suits,
flight suits, and other foul weather gear and safety related
items.
The Panel ordered the parties to adopt the Union's proposal, as
amended, to provide that the street attire be neat, clean, and in good
condition as might be reasonably expected under various working
conditions. In addition, it ordered further negotiations concerning the
circumstances and occasions for which the wearing of the military
uniform may still be required.
/2/ Respondent contends that material issues are indeed raised since
there is currently litigation in the First, Second, Ninth and Eleventh
Circuits concerning the uniform issue. While this statement is true,
the Authority has consistently adhered to the position that failure to
comply with a Panel Decision and Order violates the Statute, which is
the issue before the undersigned. The undersigned is bound by those
decisions until the Authority changes its position on the matter.
/3/ In its brief, Respondent argues that the Panel refused to
consider a real issue of creditability, i note, however, that Respondent
was a full participant in the Panel proceedings and had an opportunity
to argue the credibility determinations at that time.
/4/ In view of these findings, and since the following Order will
provide an adequate remedy for Respondent's actions, I deem it
unnecessary to determine whether or not Respondent's actions also
constituted a violation of Section 7116(a)(5) of the Statute.