17:1040(139)CA - Tennessee NG and NAGE Local R5-108 -- 1985 FLRAdec CA
[ v17 p1040 ]
17:1040(139)CA
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.