15:0476(101)CA - State of Nevada NG and NAGE Local R12-130 and R12-145 -- 1984 FLRAdec CA

 15 FLRA No. 101
 
 STATE OF NEVADA NATIONAL 
 GUARD
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R12-130 AND R12-145
 Charging Party
 
                                            Case No. 9-CA-49
                                                  7 FLRA 245
 
                      DECISION AND ORDER UPON REMAND
 
    This proceeding is before the Authority upon remand by the U.S. Court
 of Appeals for the Ninth 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 Service 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 (1982), remanded sub nom. State of New York v. FLRA, 696 F.2d
 202 (2nd 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/
 
    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), /5/ 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 a "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. 9-CA-49 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., August 9, 1984
 
 \                                      Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ State of Nevada National Guard, 7 FLRA 245 (1981).
 
 
    /2/ Nevada National Guard, Carson City, Nevada, and Locals R12-130
 and R12-145, NAGE, 76 FSIP 68(a) (1979).
 
 
    /3/ The National Guard Bureau, on behalf of the Respondent, filed a
 consolidated response which included affidavits from the Adjutant's
 General of several states and the Charging Party filed its statement of
 position.  The General Counsel of the Authority also filed a
 consolidated statement of position in this case.
 
 
    /4/ The General Counsel 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, as
 well as all references thereto and arguments which address matters other
 than the relationship between technician attire and section 7106(b)(1)
 of the Statute contained in the National Guard Bureau's statement of
 position.  In view of the limited scope of the court's remand, as
 reflected in the Authority's ensuing request for statements of
 positions, only those statements, arguments and reasons which relate to
 section 7106(b)(1) of the Statute have been considered herein, including
 those set forth in the affidavits submitted.  Accordingly, the motion is
 granted to that extent.
 
    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/ In this regard, the National Guard Bureau's consolidated response
 was filed on behalf of the Respondent in this case as well as, among
 others, the respondent in State of New York.  The General Counsel also
 submitted a single statement of position with respect to this case, and,
 among others, State of New York.
 
 
    /6/ This Order shall supersede our earlier Order in this matter.