16:0561(79)CA - Minnesota Army NG, The Adjutant General, State of Minnesota, St. Paul, MN and ACT, Tony Kempenich Memorial Chapter -- 1984 FLRAdec CA
[ v16 p561 ]
16:0561(79)CA
The decision of the Authority follows:
16 FLRA No. 79
MINNESOTA ARMY NATIONAL GUARD
THE ADJUTANT GENERAL, STATE OF
MINNESOTA, ST. PAUL, MINNESOTA
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS,
INC., TONY KEMPENICH MEMORIAL CHAPTER
Charging Party
Case No. 5-CA-944
DECISION AND ORDER
The Administrative Law Judge issued his 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, and recommending that the Respondent be ordered
to cease and desist therefrom and take certain affirmative action.
Thereafter, the Respondent and the General Counsel 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 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 recommendations only to the extent consistent herewith.
The Judge concluded that the Respondent violated section 7116(a)(1),
(6) and (8) of the Statute by its failure and refusal to comply with the
final decision and order of the Federal Service Impasses Panel (the
Panel) in Case No. 78 FSIP 59(b). The Panel's decision and order
required the parties to adopt language in their collective bargaining
agreement which would provide General Schedule National Guard
technicians with the day-to-day option of wearing a military uniform or
agreed-upon civilian attire. Subsequent to the issuance of the Judge's
Decision, the Authority issues 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 Minnesota Army
National Guard to comply with the final decision and order of the Panel
in Case No. 78 FSIP 59(b) did not constitute a violation of section
7116(a)(1), (6) and (8) of the Statute. Oklahoma Army National Guard,
Oklahoma City, Oklahoma, 15 FLRA No. 134 (1984).
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-944, be, and it
hereby is, dismissed.
Issued, Washington, D.C., November 19, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
MINNESOTA ARMY NATIONAL GUARD
THE ADJUTANT GENERAL, STATE OF
MINNESOTA, ST. PAUL, MINNESOTA
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS,
INC., TONY KEMPENICH MEMORIAL
CHAPTER
Charging Party
Case No.: 5-CA-944
Captain Jon C. Cieslak, Esq.
For the Respondent
Judith A. Ramey, Esq.
For the General Counsel
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 April 30, 1981 by the Regional Director,
Region 5, Federal Labor Relations Authority, Chicago, Illinois.
The Complaint alleges in substance that the Minnesota Army National
Guard, The Adjutant General, State of Minnesota, St. Paul, Minnesota,
(herein called Respondent), failed and refused to bargain in good faith
with the Association of Civilian Technicians, Inc., Tony Kempenich
Memorial Chapter, (herein called the Union) by failing and refusing to
bargain in good faith and failing or refusing to cooperate in Federal
Service Impasses Panel (herein called the Panel) decisions.
On May 22, 1981 the Respondent filed its Answer denying the
commission of any unfair labor practices but, admitting that it had
declined to implement the Decision and Order of the Panel for the
purpose of seeking administrative and judicial review of the Decision
and Order of the Panel.
A hearing was scheduled for June 22, 1981 and postponed to July 29,
1981. Prior to the scheduled hearing date, on July 13, 1981 the General
Counsel filed a Motion for Summary Judgment. Pursuant to the Rules and
Regulations the Chief Administrative Law Judge postponed the scheduled
hearing and an Order was issued under his name setting a briefing
period.
On August 3, 1981 Respondent filed a response to the Motion, a
Statement of Material Facts and Defenses in Opposition to the Motion and
Cross Motion for Summary Judgment. Respondent reiterated that it had
not failed to negotiate in good faith, stating that it had no purpose in
declining to implement the Panel Decision and Order other than to obtain
administrative review in good faith. Respondent failed to raise any new
areas of factual dispute. Thereafter, on August 13, 1981 the General
Counsel filed a reply brief in support of Motion for Summary Judgment
again alleging that there are no genuine issues of material fact and
because the facts alleged and admitted constituted violations of section
7116(a)(1), (5) and (6) of the Statute urged that the Motion for Summary
Judgment be granted. Subsequently on August 18 Respondent filed a
Memorandum of Law in Opposition to the General Counsel's Motion for
Summary Judgment and in support of its Cross Motion for Summary
Judgment.
It is well 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 Federal Labor Relations Authority (hereinafter called
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 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 an opportunity
for such replies in this matter.
Upon consideration of the General Counsel's Motion for Summary
Judgment, Respondent's reply thereto, and 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 as a matter of
law. Accordingly, the General Counsel's Motion is granted and I make
the following findings of fact, conclusions of law, and recommendations.
These findings are essentially the same as proposed by the General
Counsel in its Motion for Summary Judgment.
Findings of Fact
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. Since November 1975, Respondent and the Union have been parties
to a collective bargaining agreement, which, by its terms, expired in
November 1978. Commencing in May, 1980, and continuing to date,
Respondent and the Union have engaged in negotiations toward a new
collective bargaining agreement.
4. Around September 23, 1980, Mr. Thomas J. Owsinski, on behalf of
the Union wrote to the Panel requesting its assistance on the issue of
civilian attire for bargaining unit employees.
5. On January 21, 1981, the Panel, in Case No. 78 FSIP 59(b), issued
its Decision and Order directing the Respondent to take certain action
regarding the issue of civilian attire for bargaining unit employees.
6. Thereafter on February 9, 1981, Respondent, through Colonel
Robert L. Blevins, wrote the Union stating that it considered the
Decision and Order in Case No. 78 FSIP 59(b) to be invalid and that
meetings with the Union to discuss implementation "would seem
inappropriate".
7. Subsequently on February 20, 1981, Colonel Blevins wrote the
Panel stating that the Respondent had taken no action to implement the
Decision and Order in Case No. 78 FSIP 59(b) and requesting that the
Panel reconsider its Decision. /1/
8. Also, on February 20, 1981, the Union filed a charge with the
Regional Director, Region 5, alleging violations of 5 U.S. Code
7116(a)(1), (2), (3), (5), (6) and (8). Thereafter on April 27, 1981
the Union filed an amended charge alleging violations of 5 U.S.C.
7116(a)(1), (5) and (6). The amended charge alleges that Respondent
failed and refused to negotiate in good faith with the Union on the
issue of civilian attire for bargaining unit employees and has failed
and refused to cooperate in Panel procedures and Panel decisions as
required by the Statute.
9. On April 30, 1981, the Complaint and Notice of Hearing herein was
issued alleging that Respondent failed and refused, and continues to
fail and refuse, to bargain in good faith with the Union and has failed
and refused, and continues to fail and refuse, to cooperate in Panel
Decisions in violation of 5 U.S.C. 7116(a)(1), (5) and (6).
10. Thereafter on May 22, 1981, Respondent filed its Answer
admitting that the original charge and the amended charge were properly
served upon it; admitting that the Respondent maintains and operates a
facility in St. Paul, Minnesota known as the Minnesota Army National
Guard; admitting that certain individuals alleged in the Complaint are
supervisors or agents; admitting that the Union requested the
assistance of the Panel on the issue of civilian attire for bargaining
unit employees; and, admitting that Respondent has declined to
implement the Decision and Order of the Panel in Case No. 78 FSIP 59(b).
In its answer Respondent denied only that the Union, by its letter of
September 23, 1980, requested assistance of the Panel on issues other
than that of civilian attire for bargaining unit employees. The General
Counsel contended that the allegation denied by Respondent is not
material to the case. The General Counsel, therefore, requested that
since all of the material allegations of the complaint had been admitted
a Motion for Summary Judgment was appropriate unless the facts admitted
were insufficient to constitute a violation of 5 U.S.C. 7116(a)(1), (5)
and (6).
11. In its submissions, Respondent did not deny that it declined to
implement the Decision and Order of the Panel but, contended that its
refusal to abide by the Decision and Order was not unlawfully motivated
but for the good faith reason of invoking the only apparent mechanism
for review of that Decision and Order. Respondent contends that the
Authority has expressly acknowledged machinery for the review of such
Decisions and Orders in New York Division of Military and Naval Affairs,
2 FLRA 20 (1979). There the Authority stated:
It is clear, therefore, from the literal language of section
7116 of the Statute and the intent of Congress as expressed in the
related legislative history, under the Statute, Authority review
of a final Panel Decision . . . may be sought by the party
objecting to that order only after the filing of unfair labor
practice charges by the other party, based on noncompliance with
the Panel's Decision and Order . . .
Respondent's argument, in sum, is that the Authority as a superior may
revise and review actions of "subordinates" such as the Panel under the
language of section 7105(a)(2)(I) of the Statutes, /2/ is empowered to
reverse a Decision and Order of the Panel both by reaching different
factual and/or legal conclusions than the Panel reached in its
deliberation, as well as considering matters which were not before the
Panel when it decided the issue in this matter.
Discussion
The record, as it stands, in this matter clearly establishes that
Respondent has failed and refused to comply and cooperate with a final
Decision and Order of the Panel in violation of section 7116(a)(6) and
(8) of the Statute, and that Respondent has failed and refused to
bargain with the Union concerning the implementation of the Panel's
final Decision and Order in Case 78 FSIP 59(b). This issue has been
addressed by the Authority and various Administrative Law Judges. In
each instance the refusal to comply with a decision of the Panel was
found violative of the Statute. See Kentucky National Guard and
National Association of Government Employees, Local R2-100, 4 FLRA No.
73 (1980); State of California National Guard and National Association
of Government Employees, Locals R12-125, R12-146, R12-150, Case Nos.
9-CA-44 and 95 (March 21, 1980); Division of Military and Naval
Affairs, State of New York, Albany, New York and New York Council,
Association of Civilian Technicians, Case No. 1-CA-19 (April 9, 1980).
Respondent does not deny that it made no effort to comply with the
Panel's decision in 78 FSIP 59(b) or that it refused to meet with the
Union concerning implementation of that decision on February 9, 1981
contending that such meetings "would seem inappropriate." In essence
Respondent contends that the instant matter should be disposed of
without consideration of the substantive correctness of its rejection of
the Panel's final decision and that a review of the Panel's decision by
the Authority under the unfair labor practice provisions of the Statute
is not appropriate. For this argument Respondent relies chiefly on New
York Division of Military and Naval Affairs, supra. Indeed that
decision suggests that some review is anticipated by the Authority. At
the very least, the Authority has guaranteed that there will be no
sacrifice of any statutory rights if the Panel processes fail to
function in a manner consistent with the dictates of the Statute, but it
does not indicate as discussed infra, that de novo review was intended.
Furthermore, that Authority decision, which reviewed the legislative
history of section 7119(c) of the Statute, clearly states that failure
to comply with a final Panel decision constitutes a violation of the
Statute.
While some review is anticipated, I agree with Judge Arrigo's
statement in Division of Military and Naval Affairs, State of New York,
supra, that such review does not require a de novo hearing. There he
stated, such a review "would render a nullity the legislative history of
the Statute . . . undermine the Panel's function and effectiveness and
produce a stream of interminable litigation on matters which the Panel
is uniquely designed to resolve in an expeditious fashion." To conclude
otherwise would open all Panel decisions to such review under the unfair
labor practice procedures of the Statute and effectively destroy its
role in Federal labor relations.
Respondent contends that the Panel decision in this matter was
contrary to law, arbitrary and capricious. Yet Respondent participated
in the entire Panel proceeding allegedly knowing that the Panel was
predisposed, had exhibited a bias on the so-called "uniform issue" and
that the Panel has a "predilection" toward the issue. Like all systems
for resolution of disputes, there are bound to be some imperfections,
but refusal to abide by a decision of any such body, after full
participation, would seem to be at one's peril. Assuming that a limited
review would be in order, I have considered the relevant "underlying
evidence" submitted by Respondent and find no reason to conclude that
the Panel's decision was unlawful, arbitrary or capricious. First,
there was no showing of any irrational or improper conduct on the part
of the Panel or any of the Panel members. Second, a mere showing that
the Panel has decided an issue in a consistent manner does not establish
a bias. Finally, Respondent did not establish on the evidence presented
that it was not afforded procedural due process before the Panel, that
there is any irrational basis for the Panel's alleged predilection or
that the Panel's actions were repugnant to the Statute. Accordingly,
based on this record it must be concluded that the Panel's decision was
legal and valid and Respondent's refusal to implement the decision was
violative of section 7116(a)(6) and (8) of the Statute. /3/
Respondent also argues that there should be no finding of a
derivative violation of section 7116(a)(1) because there is no specific
proof of bad faith or enmity by it to employees exercise of protected
rights. Such an argument is not persuasive. The Panel is a central
institution in the Federal collective bargaining process. When a final
Decision of the Panel is defied and a collective bargaining
representative is frustrated in its attempt to enter into an agreement
in the manner prescribed by the Statute, employees will readily conclude
that significant fruits which flow from union representation are
illusory and motivation for Union membership and assistance is
substantially diminished. Under these circumstances, Respondent clearly
interfered with employees rights guaranteed by the Statute. See
Division of Military and Naval Affairs, State of New York, Albany, New
York, supra.
The General Counsel contends that Respondent's conduct herein
violates section 7116(a)(5) of the Statute, but advances no persuasive
reasons why such a violation should be found in this matter. I note
that the legislative history dictates that the conduct alleged herein is
violative of section 7116(a)(6) and (8) of the Statute. Absent any
persuasive reason and noting Congress' intent by including a separate
violation for failure to abide by Panel processes, it is found that
Respondent's conduct was not violative of section 7116(a)(5), but
constituted a violation of section 7116(a)(6) and (8) of the Statute.
Accordingly, the General Counsel's Motion for Summary Judgment
finding a violation of section 7116(a)(1), (6) and (8) of the Statute is
granted and Respondent's Cross Motion for Summary Judgment, denied.
Therefore, I recommend that the Authority issue the following Order.
ORDER
Pursuant to sections 7118(a)(7) of the Statute and section 2423.29 of
the Rules and Regulations of the Authority, it is hereby ordered that
Minnesota Army National Guard, the Adjutant General State of Minnesota,
St. Paul, Minnesota, shall:
1. Cease and desist from:
(a) Refusing to honor and abide by the Decision and Order of
the Federal Service Impasses Panel in Case No. 78 FSIP 59(b) or in
any other manner failing or refusing to cooperate in Federal
Service Impasses Panel Decisions or procedures.
(b) Refusing to adopt the language in their collective
bargaining agreement with the Association of Civilian Technicians,
Inc., Tony Kempenich Memorial Chapter, as ordered by the Federal
Service Impasses Panel in Case No. 78 FSIP 59(b).
(c) Refusing to agree upon and incorporate in their collective
bargaining agreement with Association of Civilian Technicians,
Inc., Tony Kempenich Memorial Chapter 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 Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply and cooperate forthwith with the Decision and Order
in Federal Service Impasses Panel Decision No. 78 FSIP 59(b).
(b) Post at its facilities in St. Paul, Minnesota copies of the
attached marked "APPENDIX" on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the Adjutant General, State of Minnesota, 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.
(c) Notify the Regional Director of Region 5, 175 West Jackson
Boulevard, Suite 1359-A, Chicago, Illinois, 60604, 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: September 29, 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 NOT refuse to honor and abide by the Decision and Order of
the Federal Service Impasses Panel Decision and Order in Case No. 78
FSIP 59(b).
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.
WE WILL honor and abide by the Federal Service Impasses Panel
Decision and Order in Case No. 78 FSIP 59(b) and any Panel Decisions and
procedures.
WE WILL adopt the language in our collective bargaining agreement
with Association of Civilian Technicians, Inc., Tony Kempenich Memorial
Chapter, as ordered by the Federal Service Impasses Panel in Case No. 78
FSIP 59(b).
WE WILL agree upon and incorporate into our collective bargaining
agreement with Association of Civilian Technicians, Inc., Tony Kempenich
Memorial Chapter, those circumstances and occasions for which "wearing
of the Military uniform" may be required.
(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 questions concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 5, whose
address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago,
Illinois, 60604, and whose telephone number is: (312)886-3468.
--------------- FOOTNOTES$ ---------------
/1/ On March 19, 1981 the Panel denied Respondent's request for
reconsideration.
/2/ Section 7105(a)(2)(I) states, in pertinent part:
"to take such other actions as are necessary and appropriate to
effectively administer the provisions of this Chapter."
/3/ The Respondent argued that the Panel has exceeded its authority
in articulating a Decision and Order which impinges upon the authority
Adjutant General as an officer of the state of Minnesota. This argument
has been made in several similar National Guard now pending before the
Authority. However, in view of the above disposition of this matter it
is unnecessary to decide this issue raised by Respondent in its
submissions.