Petition for Writ of Certiorari — New York Council Ass'n of Civilian Technicians v. Federal Labor Relations Authority
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
Office-Supreme Court, U.S.
~
85-106 1) FILED
JUL 18 1985
ALEXANDER STEVAS,
No. 85-
{ a
IN THE
Supreme Court of the Wuited States
OCTOBER TERM, 1985
NEW YORK COUNCIL ASSOCIATION OF
CIVILIAN TECHNICIANS,
Petitioner
V.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRUCE E. ENDY
(Counsel of Record)
SPEAR, WILDERMAN, SIGMOND,
BORISH, ENDY & SILVERSTEIN
Suite 1500
260 S. Broad Street
Philadelphia, PA 19102
215/732-0101
Dated: July 18, 1985
—
WILSON - EPES PRINTING Co., INc. - 789-0096 - WASHINGTON, D.C. 20001
® ZEB co
QUESTIONS PRESENTED
I. Whether the determination by the Federal Labor
Relations Authority that the wearing of a military uni-
form by civilian technicians employed by the National
Guard is a method or means of performing work and a
management right under 5 U.S.C. § 7106 (b) (1) is sup-
ported by substantial evidence in the record or is arbi-
trary, capricious, an abuse of discretion or otherwise not
in accordance with law.
II. Whether the Federal Labor Relations Authority
may restrict subjects of mandatory bargaining for Fed-
eral employees by an expansive interpretation of the
Labor-Management provisions of the Civil Service Re-
form Act of 1978 at odds with articulated Congressional
intent regarding the scope of such bargaining.
III. Whether the Federal Labor Relations Authority
failed to develop a record appropriate for judicial review
in accordance with 5 U.S.C. § 7118 (a) (6), 5 U.S.C. § 706
(2)(D) and the Court of Appeals’ Order in State of New
York, Division of Military and Naval Affairs v. Federal
Labor Relations Authority, 696 F.2d 202 (2d Cir. 1982).
IV. Whether the Federal Labor Relations Authority
failed to make appropriate findings of fact in accordance
with 5 U.S.C. § 7118 (a) (8).
(i)
TABLE OF CONTENTS
OPINIONS BELOV ................ iaialeaeianinasbintdbcidaaneninncisions
Teen iss class. stnahsabannindnsahehannnhsnsuie
STATUTORY PROVISIONS INVOLVED .....................
REASONS FOR GRANTING THE WRIT .....................
I. THIS CASE PRESENTS SERIOUS QUES-
II.
TIONS NOT PREVIOUSLY DECIDED BY
THIS COURT REGARDING THE SCOPE OF
PERMISSIVE VERSUS MANDATORY BAR-
GAINING FOR FEDERAL EMPLOYEES
WHO ARE CIVILIAN EMPLOYEES OF THE
STATE NATIONAL GUARDS UNDER THE
LABOR-MANAGEMENT PROVISIONS OF
THE CIVIL SERVICE REFORM ACT OF
ears cahcdd send chbinees vsnnacendcaneccastnnses
THE FEDERAL LABOR RELATIONS AU-
THORITY FAILED TO CONDUCT AN EVI-
DENTIARY HEARING AS REQUIRED BY
THE SECOND CIRCUIT’S EARLIER RE-
MAND ORDER AND FAILED TO MAKE
APPROPRIATE FINDINGS OF FACT AS
REQUIRED BY STATUTE ................................
ssa cdeiscbsinnsiinsccennnsistneanannoneanes
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
Adamo Wrecking Co. v. United States, 434 U.S.
BE SD sec niacin ctaonambecatioenaenabenael 13
American Federation of Government Employees v.
Federal Labor Relations Authority, 712 F.2d 640
CR. SE Te | stcssecesicieieanicdeaesicinte nian taneceobininsic 12
Kansas National Guard, 5 FLRA 124 (1977) _......... 10
Library of Congress v. Federal Labor Relations
Authority, 699 F.2d 1280 (D.C. Cir. 1983) .......... 13
Mercy Hospital of Buffalo v. National Labor Rela-
tions Board, 668 F.2d 661 (2d Cir. 1982) -............ 13
National Association of Government Employees,
Local No. R14-87 and Kansas National Guard,
Se a WII oo ecsiica ass dean scr kabeeeeineatlbesasamind 5
National Federation of Federal Employees, Local
1636 and State of New Mexico National Guard,
yh ERR arene ites cok en ne Taeemenre 5
National Labor Relations Board v. Armcor Indus-
tries, Inc., 535 F.2d 239 (3rd Cir. 1976) -............. 13
National Labor Relations Board v. Erie Re istor
Came, TER Tit Were CR since... 10
National Labor Relations Board v. General Sten-
cils, Inc., 488 F.2d 894 (2d Cir. 1971) -................ 13
National Labor Relations Board v. Mercy College,
Oe Fe Oe Cie Gas BPD ivsc niece 13
National Labor Relations Board v. Yeshiva Uni-
waraite. 466 UE. Gia CROP anc... -.c.......-. 13
New York Council Association of Civilian Tech-
nicians v. Federal Labor Relations Authority,
oT Fee Ce Ce. Te 2... .., 1
Skidmore v. Swift and Co., 323 U.S. 134 (1944).... 13
State of Nevada National Guard and NAGE, 7
TR. SSRIS RACs Exe nken maces oc ieee. on yee 7
State of New York v. Federal Labor Relations Au-
thority, 696 F.2d 202 (2d Cir. 1982) -................. 7
State of Ohio Air National Guard, 6 FLRA 704
UI sit coradlacieta esas oncuctebiccictunnnantnts ad idaplins ieee tian 10
United States Customs Service, Region VIII, 2
EE IE III ig to ccatraBirieusis nectcen tamed hcueediins 12
¥
TABLE OF AUTHORITIES—Continued
STATUTES Page
Civil Service Reform Act of 1978, P.L. 95-454,
Title VII, § 701, et seq.
Mia: i I I ica erie cscs cccocabisaccens 2
NU nt 2,13
gk ee OY 5 | eee eae eee 8,11
Bik coe Bt) Fe Ue) | en nen 7
Lk Foe 4b 2 : eee 2,13
By eae Ae WD feces sins cu seca sckenedscennandooeenlaccevnes 8,13
National Guard Technicians Act of 1968, P.L. No.
90-486, 82 Stat. 755
gf oh, Rene en ee 2,3
Me en Oe POU MOD acon vevcisncanecescacssccdcecortaces 2,3
ee Ps A ND oe ccs venesccncamnnthadexeuctncs 3
Bee tes BOM CO CBD on cacinnesvnccccrecscensse Sicauamedaeay 2,4
Ie NE I a occ ec re) as 2
EXECUTIVE ORDER
Executive Order 11491, as amended, 5 U.S.C. 7101
(Note)
I ee 3, 5, 6, 7,9
MISCELLANEOUS
Legislative History of the Federal Services Labor-
Management Relations Statute, Title VII of the
Civil Service Reform Act of 1978, Committee
Print No. 96-7 Post Office and Civil Service Com-
mittee HR No. 19- (1976) ....................................... 9
H. Rept. No. 95-1717, 95th Congress, 2d Session
nn Rs a 11
S. Rept. No. 95-1271 (1978), 124 Cong. R.H. 11624
(Daily Ed. October 5, 1978) .......... 11
IN THE
Supreme Court of the United States
OCTOBER TERM, 1985
No. 85-
NEW YORK COUNCIL ASSOCIATION OF
CIVILIAN TECHNICIANS,
Petitioner
V.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
The New York Council Association of Civilian Tech-
nicians, Petitioners and Appellants below hereby petition
this Court to issue a Writ of Certiorari to the United
States Court of Appeals for the Second Circuit to review
the judgment in New York Council Association of Civilian
Technicians v. Federal Labor Relations Authority, 757
F.2d 502 (2d Cir. 1985), rehearing denied April 19, 1985.
OPINIONS BELOW
The Opinion of the United States Court of Appeals for
the Second Circuit is reported at 757 F.2d 502 and is
reprinted at pages la-19a of the Appendix (hereinafter
2
“App.”) to this Petition. The Second Circuit’s Order
denying rehearing is reprinted at App. 20a-2la. The De-
cision and Order of the Federal Labor Relations Au-
thority is reported at 15 FLRA No. 65 and is reprinted
at App. 22a-35a. An earlier Order of the Second Circuit
remanding the case to the Federal Labor Relations Au-
thority is reported at 696 F.2d 202 and is reprinted at
App. 36a-41la and the remanded Decision and Order of the
Federal Labor Relations Authority is reported at 8 FLRA
No. 33 and is reprinted at App. 42a-49a.
JURISDICTION
The Opinion and Order of the United States Court of
Appeals for the Second Circuit were issued on March
14, 1985. Petitioners filed a timely Motion for Rehearing
which was denied on April 19, 1985. This Court’s juris-
diction is invoked pursuant to 5 U.S.C. § 7123 (c) and 28
U.S.C. § 1254.
STATUTORY PROVISIONS INVOLVED
The following statutory provisions are appended as
follows:
Provisions of the Civil Service Reform Act of 1978,
P.L. 95-454, Title VII, § 701, et seq. (October 13, 1978):
5 U.S.C. § 7103 (a) (14) defining the term “conditions
of employment” (92 Stat. 1192) (App. 98a).
5 U.S.C. § 7106 setting forth managements rights (92
Stat. 1198) (App. 98a).
5 U.S.C. $7118 providing for the prevention of un-
fair labor practices (92 Stat. 1207) (App. 99a).
National Guard Technicians Act of 1968, P.L. No. 90-
486, 82 Stat. 755, 32 U.S.C. § 709 providing for the em-
ployment of National Guard Technicians (App. 103a).
3
STATEMENT OF THE CASE
A. The Facts
The Adjutant General of the State of New York ad-
ministers the hiring of federal civilian employees known
as “technicians” for the National Guard pursuant to the
National Guard Technician Act of 1968, P.L. No. 90-
486, 82 Stat. 755, 32 U.S.C. § 709. (Supp. 1984) (herein-
after “Technicians Act”). In the State of New York the
technician program employs Army National Guard tech-
nicians and air technicians in such positions as supply
electronics mechanic, sheet metal mechanic, and supply
technician. The New York Council, Association of Civil-
ian Technicians, Inc. (Union) became the certified col-
lective bargaining representative for these employees on
May 26, 1970, pursuant to Execlutive Order 11491, as
amended (5 U.S.C. § 7101 Note). Although employed by
the “Adjutant General” of the State of New York the
technicians are employees of the Department of the Army
or the Department of the Air Force as the case may be
and employees of the United States. 32 U.S.C. $ 709 (e)
and (d).
The overall mission of the National Guard is to pro-
vide units of trained, qualified and equipped personnel
for mobilization in time of war, national emergency, or
civil disruption. At the time this dispute arose there
were employed by the New York National Guard 1,317
civilian technicians assigned to the Army National Guard
and 1,043 civilian technicians assigned to the Air Na-
tional Guard. These civilian employees are, by statute,
required to maintain their membership in the National
Guard as a condition of their employment 32 U/S.C.
$709 (e)(1) (App. 103a). Nevertheless, they make up
only 10.7% of the State of New York’s military guard
membership. The balance of the National Guard’s mili-
tary reserve force are civilians who, on a daily basis, are
employed in all walks of life; bank clerks, store clerks,
and civilian employees of the federal, state and local
\ \
4
governments. Both the store clerks and civilian tech-
nicians meet together as military members of the Na-
tional Guard at weekend assemblies and summer encamp-
ments. During the work week, however, civilian techni-
cians are employed as, inter alia, aircraft mechanics,
sheet metal mechanics, auto mechanics, electronics me-
chanics, machinists and supply technicians. As civilian
federal employees technicians are assigned wage grades,
receive fringe benefits and negotiate labor agreements as
do other civilian employees of the federal government.
Indeed, their daily functions closely resemble work per-
formed by other federal civilian employees who work for
the Department of Defense. Technicians while perform-
ing their civilian duties are not subject to the Uniform
Code of Military Justice, but may only be discharged for
“cause.” 32 U.S.C. § 709 (e) (3) (App. 104a).
Air National Guard technicians in New York State
have always worn a military uniform while engaged in
their daily work, while rrior to 1972, New York’s Army
technicians wore various types of civilian attire while
performing their day to day job functions. Prior to
September 5, 1972, existing regulations permitted the
Adjutant Generals of the various states to allow civilian
attire among the technician work force. From 1960 to
1972 the wearing of civilian attire by Army technicians
in New York had no impact on unit readiness or <isci-
pline.
In March of 1971, ACT and the New York National
Guard began negotiations for their first collective bar-
gaining agreement. The employer proposed that all tech-
nicians wear the military uniform while the union sought
to permit all technicians to wear civilian attire. With
negotiations in progress the Chief of Staff, New York
National Guard issued a directive ordering all technicians
to wear their uniform while in civilian status. The Na-
tional Guard then declared the Union’s uniform proposal
non-negotiable on September 27, 1972. The National
Guard’s position on the uniform issue generated both an
5
unfair labor practice charge and an appeal to the Fed-
eral Service Impasses Panel on the issue of non-negotia-
bility. While these appeals were pending the parties
concluded their negotiations without agreeing to lan-
guage on the uniform issue, however, they agreed to
reopen the negotiations on this issue. In 1973, the II-
linois National Guard negotiated a civilian attire clause
with the Union’s Illinois Chapter and by the time of the
Impasses Panel hearing three other states, Massachusetts,
Montana, and Michigan, also had collective bargaining
agreements that permitted civilian attire. By the time
the Federal Labor Relations Authority requested position
statements in this matter at least sixty (60) Army and
Air National Guard units had collectively bargained the
right to wear civilian attire.
On January 19, 1977, the Federal Labor Relations
Council ruled that the uniform issue was negotiable.
National Association of Government Employees, Local No.
R14-87 and Kansas National Guara FLRC No. 76A-16
(and other cases ‘consolidaicd ther.with (January 19,
1977), Report No. 120; and National Federation of Fed-
eral Employee, Local 1636 and Siate of New Mexico
National Guard, FLRC No. 76A-75 (and other cases con-
solidated therewith) (January 19, 1977), Report No. 120,
Request for Reconsideration denied (May 18, 1977), Re-
port No. 125. The Department of Defense argued that
the right to compel technicians to wear the military uni-
form was a reserved management right under Section 12
‘b) (5) of Executive Order 11491 permitting the Em-
ployer to determine the “means” by which the agency
accomplishes its operations. Section 12 (b) (5) provides:
(b) Management officials of the agency retain the
right, in accordance with applicable laws and regu-
lations
*) x * 2
to determine the methods, means, and personnel by
which such operations are to be conducted. 5 U.S.C.
§ 7101 (Note)
6
Noting that the Federal Labor Relations Council con-
sidered this issue in its decision the Federal Labor Rela-
tions Council rejected the broad argument that Section 12
(b) (5) forbids all negotiations over uniforms and left
to “particular instances of assigned technician duties”
the question of whether Section 12 (b) (5) might apply
on a case by case basis. On August 16, 1977, the As-
sistant Secretary of Defense acknowledged that the uni-
form issue was negotiable under Section 12 (b) (5) ex-
cept where on a case by case basis when there might be
‘limited circumstances” bringing the issue within the
Section 12 (b) (5) exception.
The Association of Civilian Technicians and the Na-
tional Guard thereafter began negotiations for a new
labor agreement. On March 27, 1978, the Association of
Civilian Technicians filed a request with the Federal
Service Impasses Panel. It is from the Order of that
Panel, and subsequent unfair labor practices, that this
appeal arises.
B. Procedural History
On March 27, 1978, the Union filed a request with
the Federal Service Impasse Panel (Panel) asking the
Panel to resolve a negotiations dispute between the Union
and the Adjutant General relating to, inter alia, whether
civilian technicians may wear civilian clothing when per-
forming their civilian technician duties. The Panel con-
ducted a fact-finding hearing on June 7 and 8, 1978. On
September 28, 1978, the Panel submitted its Panel Re-
port and Recommendations for Settlement, finding that
the Union and the Adjutant General should adopt lan-
guage in their labor agreement permitting civilian tech-
nicians the option of wearing civilian attire (App. 76a).
The National Guard rejected the recommendation and on
January 9, 1979, the Panel issued its Decision and Order
in Case No. 78 FSIP 32 ordering the Adjutant General
to implement the Panels earlier recommendation (App.
70a). The Adjutant General sought reconsideration
7
from the Federal Labor Relations Authority which was
denied. Still, the Adjutant General refused to implement
the Order of the Panel.
On March 15, 1979, the Union filed a charge of unfair
labor practices with the Federal Labor Relations Au-
thority against the Adjutant General alleging a violation
of Sections 7116 (a)(1) and (6) of the Labor-Manage-
ment Act, 5 U.S.C. § 7116 (a) (1) and (6). On October
17, 1979, the General Counsel of the Federal Labor Re-
lations Authority issued a Complaint averring that the
Adjutant General had committed an unfair labor practice
by refusing to implement the Order of the Panel. In its
Answer to the Complaint the National Guard averred
that it was not obligated to bargain over the wearing
of civilian attire because it was a management right un-
der Section 12 (b) (5) of Executive Order 11491. On
February 19, 1982, the Federal Labor Relations Au-
thority issued its Decision and Order in 8 FLRA No. 33
(App. 42a) finding that the Adjutant General did com-
mit an unfair labor practice by refusing to implement
the Order of the Panel, relying on its previous decision
in State of Nevada National Guard and NAGE, 7 FLRA
No. 37 (Nov. 19, 1981). The Federal Labor Relations
Authority did not address the management’s rights issue.
The National Guard appealed to the Second Circuit Court
of Appeals from the final Order. On December 10, 1982,
the Second Circuit remanded the matter to the Federal
Labor Relations Authority to develop a full record ap-
propriate for judicial review as to whether the uniform
issue was non-negotiable under Section 7106 (b) of the
Labor-Management Act. State of New York v. Federal
Labor Relations Authority, 696 F.2d 202, 205 (2d Cir.
1982) (App. 36a).
On March 17, 1983, the Federal Labor Relations Au-
thority issued a notice of reopened proceedings and re-
quested the parties to submit position statements on
whether the uniform issue was non-negotiable under Sec-
8
tion 7106 (b) (1) of the Labor-Management Act. Each of
the parties, General Counsel to the Federal Labor Rela-
tions Authority, New York State Council Association of
Civilian Technicians and the National Guard, submitted
position statements. In addition, the National Guard re-
quested an evidentiary hearing on the issue raised by the
remand.
The Federal Labor Relations Authority held no hear-
ing and took no evidence, but rendered its Decision and
Order upon Remand finding the uniform issue to be a
permissive rather than mandatory subject of bargaining.
Original jurisdiction of this matter was to the United
States Court of Appeals for the Second Circuit pursuant
to 5 U.S.C. § 7123.
REASONS FOR GRANTING THE WRIT
I. THIS CASE PRESENTS SERIOUS QUESTIONS
NOT PREVIOUSLY DECIDED BY THIS COURT
REGARDING THE SCOPE OF PERMISSIVE VER-
SUS MANDATORY BARGAINING FOR FEDERAL
EMPLOYEES WHO ARE CIVILIAN EMPLOYEES
OF THE STATE NATIONAL GUARDS UNDER THE
LABOR-MANAGEMENT PROVISIONS OF THE
CIVIL SERVICE REFORM ACT OF 1978.
At issue is whether the National Guard may be re-
quired to bargain collectively over a civilian attire clause
in its labor agreement with the technicians’ representa-
tive. The Federal Labor Relations Authority made an
erroneous determination that the civilian attire issue was
only a permissive subject of bargaining under 5 U.S.C.
$7106 (b) (1). In determining that military uniforms
were a “meaus” by which the National Guard performed
its work, the Federal Labor Relations Authority utilized
an incorrect construction of the Labor-Management Act
coinpletely at odds with the construction of the statute
given by Congress at the time it was enacted. The man-
agement’s rights clause cited is to be narrowly construed
so as to favor negotiability where there is any ambiguity.
9
Further, Congress intended the phrase “methods and
means of performing the work” to encompass only gen-
eral policy questions determining how an agency does its
work. The Federal Labor Relations Authority’s interpre-
tation of what constitutes a means of performing the
work is so broad that this narrow exception to the man-
datory requirement of bargaining over conditions of em-
ployment swallows the general obligation. This broad
construction is arbitrary, capricious and in disregard of
the law.
The Federal Labor Relations Authority argued strenu-
ously for judicial deference in its interpretation of the
Labor Management Act. However, the Authority largely
ignored the fact that the current statute represented an
iteration of Executive Order 11491.
(Mr. Udall)
“What we really do is to codify the 1962 action of
President Kennedy in setting up a basic frame-work
of collective bargaining for Federal employees. This
was good enough and acceptable enough to all seg-
ments of our society that it was left unchanged
during the eight years of the Nixon and Ford ad-
ministration.
Legislative History of the Federal Services Labor-Manage-
ment Relations Statute, Title VII of the Civil Service
Reform Act of 1978, Committee Print No. 96-7 Post Office
and Civil Service Committee HR No. 19 (1978) at p. 923.
(Reprint).
That Executive Order, as did Regulation 2026, con-
tained within its scheme the concept of non-negotiability
over the “methods and means of performing the agency’s
work.” See Section 12 (b) (5) of Executive Order 11491,
5 U.S.C. § 7101, Historical Note. And in interpreting that
Executive Order the Federal Labor Relations Council was
not convinced that the uniform requirement was a method
or means needed for the National Guard Bureau to per-
10
form its work. State of Ohio Air National Guard, 6
FLRA 704 (1978); Kansas National Guard, 5 FLRA
124 (1977).
The Legislative History establishes that Congress did
not intend to abandon years of Federal Labor Relations
Council interpretation respecting the meaning of the
phrase “means of performing the work” and substitute a
dictionary definition that undermines that broad concept
of negotiability contained in the Statute.
In creating the current Labor-Management statute
Congress did not write upon an entirely clean slate. Yet,
the Federal Labor Relations Authority has suddenly
chosen to ignore Federal Labor Relations Council prece-
dent in favor of a definition of “means of performing the
work” that comes solely from the dictionary. The Au-
thority holds that “a means” is in essence anything used
to attain or make more likely the attainment of a desired
end” and refers to “any instrumentality, including an
agent, tool, devise, measure, plan, or policy used by the
agency for accomplishing or furthering of the perform-
ance of its work.” Taken to its logical conclusion their
definition renders every condition of employment subject
to permissive rather than mandatory bargaining.
It establishes no standard by which the Authority can
separate trivial and mundane working conditions from
those that impact seriously and crucially on the mission
of an agency. By broadly expanding the concept of “meth-
ods and means” the Federal Labor Relations Authority
has taken the tack expressly rejected by the framers of
the Legislation. In so ruling, the Federal Labor Rela-
tions Authority’s interpretation of the statute is neither
reasonable nor plausible to stand as governing law, and it’s
inadequate, irrational and arbitrary. National Labor Re-
lations Board v. Evie Resistor Corp., 373 U.S. 221, 236
(1963).
The Court below believed that this broad reading of the
Act was “saved” by the Federal Labor Relations Au-
11
thority’s qualification that the “means” have a “direct
and integral” relationship with the Agency’s mission
(App. 18a). Nevertheless, the Court rejected the earlier
Impasse decision that found no “functional relationship”
between the uniform requirement and the Agency’s mis-
sion. Instead, it adopted a rational relationship test that
was essentially imported from a Fourteenth Amendment
analysis. The Act itself does not define the terms
“method” or means”. They were given some considera-
tion in the Conference Report 95-1717 accompanying the
agreements between the Senate and House Managers of
the bill. The report states:
By inclusion of this language [permitting negotia-
tions on methods and means], however, it is not in-
tended that agencies will discuss general policy ques-
tions determining how an agency does its work... .
For example, the phrase “method and means” is not
intended to authorize IRS to negotiate with a labor
organization over how returns should be selected for
audit, or how thorough the audit of the returns should
be. It does not subject to the collective bargaining
agreement the judgment of EPA about how to select
recipients for the award of environmental grants.
It does not authorize the Energy Department to
negotiate with unions on which of the research and
development projects being conducted by the Depart-
ment should receive top priority as part of the De-
partment’s efforts to find new sources of energy. H.
Rept. No. 95-1717, 95th Congress, 2d Session (Oc-
tober 5, 1978) at 154; Reprint at 822 see also S.
Report No. 95-1271 (1978), 124 Cong. R.H. 11624
(Daily Ed. Oct. 5, 1978) (emphasis supplied).
General policy considerations aside, Section 7106 (b)
(1) is therefore to be considered as a narrow exception to
the broader right of employee unions to negotiate over
conditions of employment. As a narrow exception, the
phrase “methods and means of performing work” must
itself be given a limited meaning lest it swallow up in its
ambiguity “almost anything worth bargaining about.”
12
The appropriate construction to be given “methods and
means” is one that makes permissive negotiations over
“general policy questions determining how ,an agency
does its work.” Such general policy questions may
logically be considered as “rights” explicitly or by un-
ambiguous implication vested in management by the terms
of the Labor-Management Act or by provisions of the
Technicians Act. American Federation of Government
Employees v. Federal Labor Relations Authority, 712
F.2d 640, 646 n. 27 (D.C. Cir. 1983). All other condi-
tions of employment that do not implicate a general policy
over how the work shall be done must be labeled manda-
tory subjects of negotiation. Jd. The examples of “method
and means” noted by the Committee sponsors of the bill
support a construction that favors broad negotiation over
conditions of employment limited only where the right of
management to pursue its mission may be affected by the
negotiations. Clearly, the uniform issue under considera-
tion herein does not rise to the level of such a method
or means of performing the National Guard’s work that
it need be labeled a permissive subject of bargaining.
It is submitted that the Federal Labor Relations Au-
thority has arbitrarily and capriciously defined the phrase
“methods and means,” relying on United States Customs
Service, Region VIII, 2 FLRA 255 (1979), to make per-
missive, mandatory subjects of bargaining.
Il. THE FEDERAL LABOR RELATIONS AUTHORITY
FAILED TO CONDUCT AN EVIDENTIARY HEAR-
ING AS REQUIRED BY THE SECOND CIRCUIT'S
EARLIER REMAND ORDER AND FAILED TO
MAKE APPROPRIATE FINDINGS OF FACT AS
REQUIRED BY STATUTE.
The Federal Labor Relations Authority’s Decision dis-
cusses no evidence and makes no factual findings. (App.
22a). Although at pages 24a and 26a it refers to a
“record” before the Authority it does not disclose what
13
that record might be—other than the position statement
of the National Guard Bureau.
5 U.S.C. § 7118 (a) (8) provides:
If the individual or individuals conducting the
hearing determine that the preponderance of the evi-
dence received fails to demonstrate that the agency
or labor organization named in the complaint has
engaged in or is engaging in an unfair labor prac-
tice, the individual or individuals shall state in writ-
ing their findings of fact and shall issue an order
dismissing the complaint.
In lieu of a reasoned, factual analysis the Authority
substitutes conclusory rationales drawn from unrelated
cases. Such absence of relevant factual analysis cannot
justify the Authority’s Decision and Order. National
Labor Relations Board v. Yeshiva University, 444 U.S.
672, 691, 100 S.Ct. 856, 867 (1980).
The National Labor Relations Board’s failure to con-
duct a hearing, make factual findings and explain
factually the basis for its conclusions constitutes an arbi-
trary and capricious determination in violation of the
Board’s obligations imposed by law. National Labor Re-
lations Board v. General Stencils, Inc., 488 F.2d 984 (2d
Cir. 1971); National Labor Relations Board v. Mercy
College, 536 F.2d 544 (2d Cir. 1976) ; Mercy Hospital of
Buffalo v. National Labor Relations Board, 668 F.2d 661
(2d Cir. 1982). National Labor Relations Board v.
Armcor Industries, Inc., 585 F.2d 239, 245 (8rd Cir.
1976). These principles apply equally to decisions of the
Federal Labor Relations Authority, 5 U.S.C. § 7118 (a)
(8); 5 U.S.C. § 7106; 5 U.S.C. § 7128 (c); Library of
Congress v. Federal Labor Relations Authority, 699 F.2d
1280, 1284 (D.C. Cir. 1983). This is especially true
where the agency reverses course and renders a decision
contrary to earlier authority. Adamo Wrecking Co. v.
United States, 434 U.S. 275, 287 r. 5 (1978); Skidmore
v. Swift and Co., 323 U.S. 134, 140 (1944).
14
CONCLUSION
For the reasons stated above, this Petition for a Writ
of Certiorari should be granted.
Respectfully submitted,
BRUCE E. ENDY
(Counsel of Record)
SPEAR, WILDERMAN, SIGMOND,
BOoRISH, ENDY & SILVERSTEIN
Suite 1500
260 S. Broad Street
Philadelphia, PA 19102
215/732-0101
Dated: July 18, 1985
APPENDIX
TABLE OF CONTENTS
Opinion of the United States Court of Appeals for the
Second Circuit, March 14, 1985, affirming the dismis-
sal of unfair practices of the Federal Labor Relations
pI RY RIE PM RTA soa CRO: AS Rese eed SRO
Order of the U.S. Court of Appeals for the Second Cir-
cuit, April 19, 1985, denying petitioners Petition for
REE RPA ce Rac ENR: AE LEN ACE Tee SOY Enh
Decision and Order Upon Remand of the Federal Labor
Relations Authority, July 17, 1984, dismissing unfair
RETA GL Me Ri Se Nie nee A SOR eM
Opinion and Order of the U.S. Court of Appeals for
the Second Circuit, December 10, 1982, Remanding
To the Federal Labor Relations Authority its findings
CE ee BI IG initio ccrteinerete rn eosceeness
Decision and Order of the Federal Labor Relations Au-
thority, February 19, 1982, in Case No. 1-CA-19,
finding unfair labor practices by the Division of Mili-
tary and Naval Affairs, State of New York ................
Decision of the Administrative Law Judge in Case No.
1-CA-19, dated April 9, 1980 .........................................
Decision and Order of the Federal Service Impasses
Panel dated January 9, 1979, in Case No. 78 FSIP 32..
Report and Recommendations of the Federal Service
Impasses Panel dated September 28, 1978, in Case
ETE SR Se ence ee es
Page
la
20a
22a
36a
42a
50a
70a
la
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 555—August Term, 1984
(Argued: January 18, 1985 Decided: March 14, 1985)
Docket No. 84-4128
NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS, |
Petitioner,
—against—
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent.
STATE OF NEW YORK, DIVISION OF MILITARY AND NAVAL
AFFAIRS, and UNITED STATES DEPARTMENT OF DEFENSE,
Intervenors.
Before:
OAKES, CARDAMONE and PIERCE, Circuit Judges
The New York Council, Association of Civilian Tech-
nicians petitions to set aside an order of the Federal La-
bor Relations Authority which dismissed a complaint
brought against the Division of Military and Naval Af-
fairs, State of New York, for its refusal to include a pro-
2a
vision in collective bargaining that would permit its civil-
ian technicians to wear civilian attire while at work.
Petition for review denied.
Bruce E. Enpy, Philadelphia, Pennsylvania (Bernard
N. Katz, Spear, Wilderman, Sigmond, Borish, Endy
and Silverstein, Philadelphia, Pennsylvania, of coun-
sel) for Petitioner.
WILLIAM R. ToBEy, Washington, D.C. (Ruth E. Peters,
Steven H. Svartz, William E. Persina, Washington,
D.C., of counsel) for Respondent.
Marc RICHMAN, Washington, D.C. (Richard K. Willard,
Acting Assistant Attorney General, William Kanter,
James C. Hise, Joseph R. Reyna, Washington, D.C., of
counsel) for Intervenors
H. STEPHAN GORDON, Washington, D.C. (Clinton D. Wol-
cott, Washington, D.C., of counsel) for National Fed-
eration of Federal Employees, as Amicus Curiae.
WILLIAM J. STONE, Washington, D.C. (Charles A. Hob-
bie, Mark D. Roth, Washington, D.C., of counsel) for
American Federation of Government Employees, AF L-
CIO, as Amicus Curiae.
CARDAMONE, Circuit Judge:
Apparently giving the maximum “apparel oft pro-
claims the man’! the force of law, the Federal Labor
Relations Authority has found that the New York Na-
tional Guard may require its civilian technicians to be
clothed in military dress. Resolution of the issue hinges
1W. Shakespeare, Hamlet, Act I, scene iii, reprinted in Complete
Works of William Shakespeare (W. Craig ed. 1928).
3a
on whether the technicians’ attire is subject to manda-
tory bargaining or whether the wearing of uniforms is
a “means” by which the Guard performs its mission and
therefore is nonnegotiable. A previous decision of the
Federal Labor Relations Authority was remanded be-
cause it had failed to address the “means” objection to
negotiability. State of New York, Division of Military
and Naval Affairs v. FLRA, 696 F.2d 202, 205 (2d Cir.
1982). In its decision and order on remand, now before
us on this appeal, the Authority disregarded the rule
established by its predecessor that civilian attire is non-
negotiabi. only when it is shown that a functional re-
lationship exists between the wearing of a uniform and
the performance of the technicians’ duties. The Author-
ity also disregarded the factual findings of the Federal
Service Impasses Panel that the Guard had not demon-
strated such a link between the “means” and the ac-
complishment of the Guard’s mission. Nevertheless, we
believe the Authority has given a reasoned explanation
for its decision that does not contravene Congressional
purpose. In this regard, it must be emphasized that the
Authority was intended to take an independent approach
to federal labor relations and was not to be bound—or
even necessarily influenced—by its predecessor, the Fed
eral Labor Relations Council. Here, we deny the peti-
tion for review.
I
FACTUAL BACKGROUND
The New York Council, Association of Civilian Tech-
nicians (“Union”) petitions to set aside an order of the
Federal Labor Relations Authority (“FLRA” or “Au-
thority”) reported as Division of Military and Naval
Affairs, State of New York, Albany, New York, 15 FLRA
No. 65 (1984). The order and opinion dismissed a com-
plaint brought against the Division of M ilitary and Naval
Affairs, State of New York (“New York National Guard”
or “Guard”) for its refusal to comply with an order of
4a
the Federal Service Impasses Panel (“FSIP” or “Panel’’)
that required the Guard to include a collective bargaining
provision permitting its civilian technicians to wear civil-
ian attire. The Authority found the issue to be beyond
the scope of required bargaining. The New York Na-
tional Guard and the Department of Defense have in-
tervened and the American Federation of Government
Employees, AFL-CIO, and the National Federation of
Federal Employees have filed amicus curiae briefs. We
have jurisdiction pursuant to Section 701(a) of the Civil
Service Reform Act of 1978, 5 U.S.C. § 7123(a) (1982).
Title VII of the Civil Service Reform Act of 1978 is
codified as the Federal Service Labor-Management Re-
lations Act (Labor Management Act), 5 U.S.C. §§ 7101
et seq.
The Guard’s misison is to provide trained personnel
for mobilization in time of war, national emergency or
civil disruption. The Adjutant General in each state—
in New York the Chief of Staff to the Governor holds the
position, but not the title—administers the hiring of civil-
ian technicians, who are employed as aircraft mechanics,
sheet metal mechanics, auto mechanics, electronic me-
chanics, machinists and supply technicians. They have
been said to constitute the “backbone” of the Guard and
are the only personnel on duty for much of the year.
Maryland v. United States, 381 U.S. 41, 49, vacated on
other grounds, 382 U.S. 159 (1965). The technicians
have federal civilian employee status under the National
Guard Technicians Act of 1968, 32 U.S.C. § 709 (1982),
and as such are assigned wage grades, receive fringe ben-
efits, negotiate labor agreements, and may only be dis-
charged for “cause.” See generally AFGE Local 2953 v.
FLRA, 730 F.2d 1534 (D.C. Cir. 1984) (discussing
status of technicians under Technicians Act). As a con-
dition of employment, these employees must be members
in the Guard and attend four training assemblies each
month and a two-week encampment each year. Air Na-
tional Guard technicians in New York have always worn
tia ma owe os renee
eee
5a
uniforms, but prior to 1972 Army Guard technicians did
not.
The Union became the certified collective bargaining
representative of all Army and Air National Guard tech-
nicians employed by the New York National Guard in
1970. In 1978, the Union filed a request with the FSIP
asking it to resolve a dispute between it and the Ad-
jutant General that related in part to the question of
whether civilian technicians may wear civilian clothing
when performing their civilian technician duties. The
reason for the request was that National Guard Bureau
regulations and the New York Adjutant General’s di-
rectives required the technicians to wear uniforms even
while performing civilian duties. The NGB regulation
at issue reads:
Technicians in the excepted service will wear the
military uniform appropriate to their service and
federally recognized grade when performing techni-
cian duties and will comply with standards of the
appropriate service pertaining to grooming and
wearing of the military uniform.
After a hearing, the Panel recommended that the Union
and the Adjutant General adopt language in their col-
lective bargaining agreement that would provide civilian
technicians “the option of wearing either the military
uniform[] or an agreed-upon standard civilian attire
without displaying military rank.” The provision was
subject to agreed-upon exceptions specifying circum-
stances under which uniforms could be required.
When the Guard rejected the recommendation, the
Panel ordered the Adjutant General to implement it.
No. 78 FSIU 32. The FLRA denied the Adjutant Gen-
eral’s petition for reconsideration of the Panel’s decision.
The Adjutant General nonetheless continued its refusal
to comply with the Panel’s order. The Union therefore
filed unfair labor practice charges, alleging a violation of
6a
§ 7116(a)(1) and (6) of the Labor Management Act.
When the Authority’s General Counsel issued a com-
plaint, the Guard claimed that it was not obligated to
bargain over the uniform issue because it was a manage-
ment right under § 12(b) (5)? of Executive Order No.
11491, which at the time governed the labor relations of
federal employees. The Authority agreed with the Ad-
ministrative Law Judge and found tuat the Adjutant
General had committed an unfair labor practice by re-
fusing to comply with the Panel’s order. It relied on its
earlier decision in State of Nevada National Guard, 7
FLRA No. 37 (1981), in which it had held that the
FSIP order concerning the uniform issue was not con-
trary to the United States Constitution or the Techni-
cians Act, and that the Guard had demonstrated no
“compelling need” for requiring uniforms.
The Guard appealed and we remanded the matter to
the Authority “to develop a full record appropriate for
judicial review as to whether the attire the technicians
should wear while engaged in their daily duties as civil-
ians is a non-negotiable matter under Section 7106(b)”’
of the Labor Management Act.* State of New York v.
FLRA, 696 F.2d at 205. We noted that State of Nevada
National Guard had not addressed the issue, and that it
* Section 12(b) (5) of Executive Order No. 11491 reads:
(b) management officials of the agency retain the right, in
accordance with applicable laws and regulations—
(5) to determine the methods, means, and personnel by which
such operations are to be conducted.
5 U.S.C. 7101 note.
8 Section 7106(b) (1) provides in pertinent part that
nothing in this section shall preclude any agency and any
labor organization from negotiating—
(1) at the election of the agency, on the . . . methods, and
means of performing.
5 U.S.C. § 7106 (b) (1).
Ta
had been properly raised in the instant proceeding. /d.
In March 1983, the Authority issued a notice of re-
opened proceedings and requested the parties to submit
statements on whether the uniform issue was nonnegotia-
ble under § 7106(b) (1). The Authority’s General Coun-
sel, the Union, and the Guard each submitted statements.
The Guard attached affidavits of various State Adjutant
Generals and requested an evidentiary hearing. The Au-
thority denied that request. By the time the Authority
requested these position statements, 60 Army and Air
National Guard units had collectively bargained for the
right to wear civilian attire. In its decision after re-
mand, the Authority held that the uniform requirement
was negotiable only at the election of the Guard as a
“methods, and means of performing work” under § 7106
(b) (1) because permitting civilian attire would directly
interfere with the performance of the technicians’ duties
in furtherance of the Guard’s mission. By so holding,
the Authority changed the interpretation of the ‘methods
and means” language in $ 7106(b)(1) as it applies to
the uniform question. The Authority’s predecessor, the
Federal Labor Relations Council (“FLRC” or “Coun-
cil”), had required a “functional relationship” between
the wearing of a uniform and accomplishment of the
Guard’s mission.
The Unions and amici now petition to have that the
Authority’s decision set aside on three grounds. They
claim it was contrary to law, arbitrary and capricious,
and unsupported by substantial evidence. First, they
contend that the decision contravenes the clear aim of
Congress that the management rights provision be a
narrow exception to the duty to bargain. Second, they
assert that the FLRA’s decision is an unexplained de-
parture from the precedent of its predecessor, and is
therefore arbitrary and capricious.* Finally, they argue
*The National Federation of Federal Employees contends that
the Authority’s decision is also contrary to its own precedent,
8a
that the Authority failed to use the procedures required
by the remand order and by the Administrative Proce-
dure Act, failed to articulate the factual findings un-
derlying its conclusions, and reached a conclusion that
lacks the support of substantial evidence in the record.
We address each contention in turn.
II
SCOPE OF REVIEW
Section 7123(c) of the Labor Management Act pro-
vides that decisions of the Authority are subject to ju-
dicial review in accordance with the Administrative Pro-
cedure Act. 5 U.S.C. § 7123(c). Therefore, FLRA de-
cisions and orders that are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law,” 5 U.S.C. § 706(2)(A), must be set aside. To
analyze the question requires us to engage in two dis-
tinct tasks. We must first decide whether the Authority
has acted within its delegated authority—that is, whether
the choice it has made was one entrusted to it by Con-
gress. And then assuming such is the case, we must
decide whether its rule is the product of reasoned de-
cisionmaking. See Office of Communication of the United
Church of Christ v. FCC, 707 F.2d 1413, 1422 (D.C. Cir.
1983).
A. Delegated Authority
In its first consideration of an FLRA interpretation
of the Civil Service Reform Act, the Supreme Court re-
cently explained:
citing State of Nevada National Guard. But as noted in our
previous decision, that case did not address the management rights
issue. The finding that there was no “compelling need” for the
regulation related to a separate challenge based on the requirement
that a local regulation be essential to the accomplishment of the
Guard’s mission before it can be found nonnegotiable. See 5 U.S.C.
§ 7717.
ie A a i el
9a
Like the National Labor Relations Board, the FLRA
was intended to develop specialized expertise in its
field of labor relations and to use that expertise to
give content to the principles and goals set forth in
the Act. Consequenty, the Authority is entitled to
considerable deference when it exercises its “special
function of applying the general provisions of the
Act to the complexities” of federal labor relations.
On the other hand, the “deference owed to an
expert tribunal cannot be allowed to slip into a
judicial inertia which results in the unauthorized
assumption by an agency of major policy decisions
properly made by Congress.” Accordingly, while re-
viewing courts should uphold reasonable and defen-
sible constructions of an agency’s enabling Act, they
must not “rubber-stamp . . . administrative decisions
that they deem inconsistent with a statutory man-
date or that, frustrate the congressional policy un-
derlying a statute.”
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104
S. Ct. 489, 444 (1983) (citations omitted).
B. Reasoned Decision-Making
In Motor Vehicle Manufacturers Assoc. v. State Farm
Mutual Automobile Insurance Co., 103 S. Ct. 2856
(1983), the Supreme Court emphasized that when an
agency follows a settled course, its signals that in its
view by pursuing that course it is carrying out the Con-
gressional mandate, and that by adhering to the settled
path it best carries out Congressional policy. Jd. at 2866.
Thus, when an agency reverses its course, a court must
satisfy itself that the agency knows it is changing course,
has given sound reasons for the change, and has shown
that the rule is consistent with the law that gives the
agency its authority to act. Public Citizen v. Steed, 733
F.2d 98, 99 (D.C. Cir. 1984). In addition, the agency
10a
must consider reasonably obvious alternatives and, if it
rejects those alternatives, it must give reasons for the re-
jection, sufficient to allow for meaningful judicial review.
Id. Although there is not a “heightened standard of
scrutiny ... the agency must explain why the original
reasons for adopting the rule er policy are no longer dis-
positive.” Brae Corp. v. United States, 740 F.2d 1023,
1038 (D.C. Cir. 1984) (emphasis added). Even in the
absence of cumulative experience, changed circumstances
or judicial criticism, an agency is free to change course
after reweighing the competing statutory policies. But
such a flip-flop must be accompanied by a reasoned ex-
planation of why the new rule effectuates the statute as
well as or better than the old rule. Office of Communi-
cation of United Church of Christ v. FCC, 560 F.2d 529,
532 (2d Cir. 1977).
The Court explained in State Farm that it would not
be “reasonable,” nor would it demonstrate fidelity to the
statutory mandate, for an agency to make a change not
justified by the record. 103 S. Ct. at 2866. Although
recognizing that the scope of judicial review under the
arbitrary and capricious standard is narrow, a reviewing
court must be certain that an agency has considered all
the important aspects of the issue and articulated a
“satisfactory explanation for its action, including a
‘rational connection between the facts found and the
choice made.’” Jd. at 2866-67. An agency will have
acted arbitrarily if it has: (1) relied on factors that
Congress did not want it to consider; (2) failed to con-
sider an important aspect of the problem; (3) given an
explanation for its decision that is contrary to the evi-
dence before it; or (4) given an explanation so im-
plausible that it cannot be ascribed to any view of the
facts or to agency expertise. Jd. at 2867. With these
principles of review in mind, we consider the legislative
history and the Authority’s decision.
__ —e
lla
III
LEGISLATIVE HISTORY
The labor relations of federal employees are now regu-
lated by Title VII of the Civil Service Reform Act of
1978, 5 U.S.C. $$ 7101 et seg., which requires agencies
to bargain witl. their employees over the conditions of em-
ployment, subject only to express statutory exceptions.
Library of Congress v. FLRA, 699 F.2d 1280, 1285 (D.C.
Cir. 1983). This appeal involves the “management right”
to avoid mandatory bargaining over the “technology,
methods, and means of performing work.” 5 U.S.C.
§ 7106(b) (1). An agency may elect to bargain over these
matters, but it need not. The legislative history of the
Labor Management Act makes clear that § 7106 is a
narrow exception to the right to bargain over working
conditions. Congress intended § 7106(a) to expand the
scope of bargaining that had existed under Section 12
(b) (5) of Executive Order No. 11491 and FLRC prece-
dent. See, e.g., 124 Cong. Rec. 29198 (1978) (remarks
of Rep. Ford), reprinted in Subcommittee on Postal Per-
sonnel and Modernization of the Committee on Post Office
and Civil Service, 96th Cong., 1st Sess., Legislative His-
tory of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of
1978, at 954 (1978) (hereinafter cited as Legislative
History) ; National Treasury Employees Union v. FLRA,
691 F.2d 553, 559 & n.62 (D.C. Cir. 1982). Therefore,
“section 7106—which retains several of management’s
rights under the Executive Order, but also eliminates
several—[is to] be read to favor collective bargaining
whenever there is doubt as to the negotiability of a sub-
ject or a proposal.” H. Rep. No. 1408, 95th Cong., 2d
Sess. 44 (1978), reprinted in Legislative History, supra,
at 690.
The Union and amici argue that the terms “tech-
nology” and “methods and means of performing work”
12a
in the Labor Management Act were taken from the lan-
guage of Executive Order No. 11491. The Union con-
cedes that the Authority is not precluded from altering
interpretations made by its predecessor, the FLRC, but it
claims that there is a clear statement by Congress that
interpretations by the FLRC should be respected when
the Labor Management Act parallels the Executive Order.
The Union correctly contends that usually when Congress
adopts a new law that incorporates sections of a prior
law, it is presumed to be aware of administrative inter-
pretations of that law and to adopt those interpretations;
when Congress re-enacts a statute that has a longstand-
ing administrative interpretation, that re-enactment may
well ratify the interpretation. See Lorillard v. Pons, 434
U.S. 575 (1978). The Union also argues that § 7135(b),
which provides that “decisions issued under Executive
Order 11491... shall remain in full force and effect. ..
unless superseded by specific provisions of this chapter,”
reinforces the continued applicability of the Council’s in-
terpretations of the Executive Order.
We do not read § 7135(b) to prevent the Authority,
as successor to the Council, from formulating its own
construction of the Act. See National Treasury Employees
Union, 691 F.2d at 562-63 n.89 (“[wle discern in this
language no impediment to changed statutory interpreta-
tions by the Authority’). Instead, the legislative history
suggests that Congress did not intend § 7135(b) to shackle
the Authority, but simply to assure continuity until the
Authority developed its own body of interpretive law
under the new. statute. See id.; Department of Defense v.
FLRA, 659 F.2d 1140, 1163 (D.C. Cir. 1981). Given
the lack of controlling effect of the Council’s decisions and
absent more specific legislative history on the uniform
requirement, we are bound by this Congressional purpose.
The duty to determine the bargainable nature of issues
arising under the Labor Management Act rests squarely
on the shoulders of the Authority, not the courts. See
National Treasury Employees Union, 691 F.2d at 561.
13a
_ Although the Authority’s determination that the uni-
form requirement is nonnegotiable is entitled to consider-
able deference because the administrative body has the
expertise and the authority to apply the broad language
of § 7106 to questions of negotiability, the Authority’s in-
terpretation of the phrase “means” is not premised on an
understanding of industrial complexities but instead relies
on Webster. The all-important qualification put on its
literal definition of means is that there be a “direct and
integral” relationship between the means and the agency’s
mission. Because of this qualification, the Authority’s
interpretation does not conflict with the acknowledged
view that § 7106 creates a narrow exception te the duty
to bargain over the terms and conditions of employment.
Having determined that the Authority acted within its
delegated authority, we next consider whether its rule
is the product of reasoned decision-making.
IV
THE AUTHORITY’S DECISION
On remand the Authority found that the requirement
“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.”
Division of Military and Naval Affairs, 15 FLRA No. 65,
at 7. Quoting National Treasury Employees Union, 2
FLRA No. 30 (1979), the Authority found that “a
‘means’ is in essence anything used to attain or make
more likely the attainment of a desired end, and in the
context of section 7106(b) (1), refers to ‘any instru-
mentality, including an agent, tool, device, measure, plan,
or policy used by the agency for the accomplishing or
furthering of the performance of its work.’” 15 FLRA
No. 65, at 4. The FLRA focused on the fact that tech-
nicians performed their duties in a military framework,
and noted that the legislative history shows that in addi-
14a
tion to full-time civilian work, technicians are also bound
by military obligations and duties, and are available for
state or federal mobilization. See H. Rep. No. 1823, 90th
Cong., 2d Sess. 2, reprinted in 1968 U.S. Code Cong. &
Ad. News 3318, 3319. It recognized the several court de-
cisions that had found a rational relationship between
National Guard attire and its functioning as a military
organization. See, e.g., Klothbach v. Callaway, 473 F.
Supp. 1837 (W.D.N.Y. 1979) ; Syrek v. Pennsylvania Air
National Guard, 487 F. Supp. 236 (W.D. Pa. 1977);
Bruton v. Schnipke, 404 F. Supp. 1032 (E.D. Mich. 1975).
Moreover, it specifically found the requirement served “to
foster military discipline, promote uniformity, encourage
esprit de corps, increase the readiness of the military
forces for early deployment and enhance identification of
the National Guard as a military organization.” 15
FLRA No. 65, at 6.
As noted, the Council had previously required a “func-
tional relationship” between the wearing of a uniform and
the accomplishment of the Guard’s mission. See Kansas
National Guard, 5 FLRC 124 (1977); State of New
Mexico National Guard, 5 FLRC 146, request for recon-
sideration denied, 5 FLRC 336 (1977). It had made
clear its view that there was no “functional relationship
between the day-to-day work performed by technicians
and the requirement to wear military dress.” See, e.g.,
State of Ohio Air National Guard, 6 FLRC 704 (1978).
The Council had specifically rejected the Authority’s ra-
tionale for finding nonnegotiability. See, e.g., Kansas
National Guard. Instead, the question of attire was held
to be a mandatory subject of bargaining except when
there was a specific demonstration that wearing a uni-
form would be useful in the performance of the techni-
cian’s duties such as during an “organizational readiness
inspection.” State of Ohio Air National Guard.
The Union claims that the Authority abandoned with-
out explanation the requirement of close functional rela-
a
15a
tionship. It also argues that the Authority failed to con-
sider the alternative of standard civilian attire, thereby
ignoring its own requirement that the subject agency show
that its objective can only be accomplished by using the
particular means at issue. See, e.g., Planners, Estima-
tors and Progressmen Association Local 8, 138 FLRA No.
81 (1983) (the Authority found the elimination of time
clocks to be a mandatory bargaining issue on the ground
that the agency had not shown that its goals could be
achieved only by that particular means).
When examining an agency’s about-face, the general
rule, as explained above, is that such changes constitute
“danger signals’ that the [Agency] may be acting in-
consistently with its statutory mandate” and require a
“‘reasoned analysis indicating that prior policies and
standards are being deliberately changed, not casually
ignored.’” Office of Communications of United Church
of Christ, 707 F.2d at 1425 (quoting Greater Boston Tele-
vision Corp. V. FCC, 444 F.2d 851, 852 (D.C. Cir. 1970),
cert. denied, 403 U.S. 923 (1971)). But this principle
does not fully apply here because—unlike most other
agencies—the FLRA has been expressly instructed by
Congress to start afresh and avoid making the mistakes
of its predecessor. See AFGE v. FLRA, 716 F.2d 47, 50
(D.C. Cir. 1983); Brae Corp., 740 F.2d at 1038. Hence,
we cannot say that it was arbitrary and capricious for
the FLRA to find that there 1s a direct and integral rela-
tionship between wearing a military uniform and work-
ing within a military framework, even though its adminis-
trative predecessor held a different view.
The Union and amici also contend that the alterna-
tive of civilian attire would serve the Guard’s goals while
limiting the adverse effect on employees. If this is true,
the Authority’s failure to address that alternative in its
opinion would be arbitrary, and require a remand. See
State Farm, 103 S. Ct. at 2866; 5 U.S.C. § 7106(b) (3).
16a
It was not arbitary for the Authority to consider it
self-evident and unworthy of discussion that standard
civilian attire would not “foster military discipline, pro-
mote uniformity, encourage esprit de corps, increase the
readiness of the military forces for early deployment and
enhance identification of the National Guard as a military
organization.”
V
THE AUTHORITY’S FACT-FINDING PROCEDURES
We turn finally to the Union and amici’s three-prong
challenge to the Authority’s fact-finding procedures. First,
they argue that by accepting only the statements of posi-
tion at its proceedings the Authority acted contrary to
this Court’s remand order and in violation of 5 U.S.C.
§ 706(2)(D) and 5 U.S.C. § 7118(a) (b). Second, they
contend that the Authority failed to make appropriate
findings of fact in accordance with 5 U.S.C. § 557 and
5 U.S.C. § 7118(a) (8). Finally, it is their position that
the Authority’s findings of fact are not supported by
st ustantial evidence, and hence should be reversed under
5 U.S.C. § 706. We consider each of these arguments.
A. Failure to Conduct Appropriate Proceedings
Regarding development of the record, our previous
decision required only that the Authority “develop a full
record appropriate for judicial review.” 696 F.2d at 205.
We did not specify the particular procedure to be used on
remand, leaving it instead to administrative discretion.
The Union and amici point to the fact that the Authority
denied the Guard’s request for a hearing before an ALJ.
The Union further asserts that it was thereby “pre-
vented through no fault of its own from adducing addi-
tional evidence,” and moves for this proceeding to be
again remanded for the taking of additional, material
evidence. See 5 U.S.C. § 7128(c). It claims that had
17a
such a hearing been held it would have, for example,
adduced evidence pertaining to what the job of an air-
craft mechanic actually entails. Concededly, such evi-
dence would be material, but the procedure used by the
Authority in this case was similar to those it has used
in resolving other negotiability disputes involving methods
and means under Section 7106(b). See, e.g., National
Treasury Employees Union, 2 FLRA No. 30. And al-
though the Union did not waive whatever right it had
to a hearing by failing to object to the procedures fol-
lowed upon remand, the fact that it did not seek such a
hearing and that the General Counsel, with whom it was
allied, successfully objected to a hearing supports our
conclusion that the procedures used were appropriate.
B. Failure to Make Appropriate Findings of Fact
Section 7118(a)(8) of the Labor Management Act
and 5 U.S.C. § 557(c) (3) facilitate meaningful judicial
review by requiring the FLRA to set forth its findings
of fact with regard to all factual issues presented by the
record. The Union argues that had this Court merely
wanted additional legal arguments it could have solicited
these itself instead of remanding the proceeding. This
argument overlooks an important purpose of the remand.
It was not intended simply to develop the record. Rather,
it was to give the agency that Congress entrusted with
the task of making law within the interstices of the
statute an opportunity to exercise its developed expertise
and be the first to address the question. Moreover, the
objecting parties offer no authority for their argument
that the statements and affidavits in some fashion fail
to constitute evidence upon which factual findings may
be based. The Authority drew a number of its findings
from statements of position and attached affidavits sub-
mitted by the Guard. These findings relate to the nature
and functions of the Guard and the uniform requirement
as a “means” of accomplishing the Guard’s mission.
18a
C. Findings Supported by Substantial Evidence
We must defer to the FLRA findings of fact “if
supported by substantial evidence on the record considered
as a whole.” 5 U.S.C. § 7123(c). In determining whether
there is substantial evidence a court must set aside a
decision if it “cannot conscientiously find that the evi-
dence supporting that decision is substantial, when viewed
in the light that the record in its entirety furnishes,
including the body of evidence opposed to the Board’s
view.” Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951) (emphasis added). The need to give par-
ticularized findings is especially critical when the decision
constitutes an overruling of an established policy. Adamo
Wrecking Co. v. United States, 4384 U.S. 275, 287 n.5
(1978). Again, substantial evidence cannot be found in
conclusory rationales. NLRB v. Yeshiva University, 444
U.S. 672, 691 (1979).
The Union and amici emphasize that the Authority
rejected the factual findings made by the Panel. After
hearing testimony, that body had concluded:
(1) the employer had failed to demonstrate a
significant link between discipline at time of war and
wearing the uniform while performing civilian tech-
nician duties,
(2; Army National Guard technicians in New
York have a long history of wearing various types
of civilian attire without any showing of adverse
effect on their work,
(3) there is nothing in the record to demonstrate
that the technicians’ tasks have a significantly greater
military purpose than reservists and civilian em-
ployees in the Department of Defense, who are not
required to wear uniforms, and
(4) there is no record evidence that even guards-
men at civilian jobs away from the base have any
19a
particular difficulty in responding to emergency call-
ups.
The Authority disregarded those findings without discus-
sion and found that the uniform requirement fosters mili-
tary discipline, promotes uniformity, encourages esprit de
corps and increases the readiness of military forces for
early deployment. If this case involved credibility deter-
minations made by a trial examiner, the Authority’s dis-
agreement with the Panel’s factual findings would be
subject to considerable question. Yet, here the evaluation
of the facts is a matter of weighing priorities, not
assessing the demeanor of witnesses. Thus, the FLRA’s
findings cannot be said to be unsupported by substantial
evidence. Its failure to consider and weigh the FSIP’s
contrary view was not fatal to its decision. In effect the
Authority held that a functional relationship was not
necessary for there to be a “direct and integral” relation-
ship between wearing a uniform and the Guard’s mission.
CONCLUSION
Accordingly, for the reasons stated, the petition for
review is denied.
20a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Term of the United States Court of Ap-
peals for the Second Circuit, held at the United States
Courthouse in the City of New York, on the 19th day of
April one thousand nine hundred and eighty-five.
Present:
Hon. JAMES L. OAKES
Hon. RICHARD J. CARDAMONE
HON. LAWRENCE W. PIERCE
Circuit Judges,
No. 84-4128
NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
Petitioner,
Vs
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent.
/STATE OF NEW YORK, DIVISION OF MILITARY AND NAVAL
AFFAIRS, and UNITED STATES DEPARTMENT OF DEFENSE,
Intervenors.
[Filed Apr. 19, 1985]
21a
A petition for a rehearing having been filed herein by
Petitioner, New York Council, Association of Civilian
Technicians,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
/s/ Elaine B. Goldsmith
ELAINE B. GOLDSMITH
Clerk
22a
15 FLRA No. 65
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
Case No. 1-CA-19
8 FLRA 158
DIVISION OF MILITARY AND NAVAL AFFAIRS,
STATE OF NEW YORK, ALBANY, NEW YORK
Respondent
and
NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
Charging Party
DECISION AND ORDER UPON REMAND
This case is back before the Authority as a result of a
remand by the U.S. Court of Appeals for the Second Cir-
cuit. See State of New York, Division of Military and
Naval Affairs v. FLRA, 696 F.2d 202 (2nd Cir. 1982).
In the Authority’s original Decision,’ the Respondent was
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 deci-
sion and order of the Federal Service Impasses Panel (the
Panel)* which required the parties to adopt language in
1 Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA 158 (1982).
* State of New York, Division of Military and Naval Affairs,
Albany, New York and New York Council, Association of Civilian
Technicians, Inc., 78 FSIP 32 (1979).
23a
their collective bargaining agreement permitting National
Guard technicians the option of wearing either a mili-
tary uniform or agreed-upon civilian attire when per-
forming civilian technician duties, with agreed-upon ex-
ceptions to cover circumstances for which the wearing of
the uniform may be required. In finding a violation, the
Authority relied upon State of Nevada National Guard,
7 FLRA 245 (1981), another unfair labor practice deci-
sion in which it rejected contentions that negotiations over
technician attire in these circumstances were inconsistent
with applicable law including the U.S. Constitution and
the National Guard Technicians Act of 1968 (32 U.S.C.
$ 709, also referred to as the Technicians Act) or that
negotiations were barred by an agency regulation for
which a compelling need existed. In that case, no specific
argument was raised based on the management rights
provisions of Executive Order 11491, as amended, or of
the Statute. The court, in reviewing the Authority’s de-
cision in Division 6f Military and Naval Affairs, State of
New York, noted that the Authority’s decision in State of
Nevada National Guard did not deal with the question of
whether the requirement that technicians wear military
uniforms while performing technician duties constituted
a methods and means of performing work within the
meaning of section 7106(b)(1) of the Statute* How-
ever, the court found that such question had properly
been raised, but not addressed in the administrative pro-
ceedings before the Authority in Division of Military and
Naval Affairs, State of New York. The court stated that
the lack of a determination on that question was signifi-_-
3 Section 7106(b) (1) provides, in pertinent part, as follows:
§ 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating—
(1) at the election of the agency ... on the. . . methods,
and means of performing work[.]
24a
cant in view of the Authority’s decision in National
Treasury Employees Union and U.S. Customs Service,
Region VIII, San Francisco, California, 2 FLRA 255
(1979) wherein the Authority held, inter aiia, that a
requirement that uniformed Customs Officers wear name-
plates constituted a means of performing work. Thus,
the court remanded the instant case to the Authority “to
develop a full record appropriate for judicial review as
to whether the attire the technicians should wear while
engaged in their daily duties as civilians is a non-
negotiable matter under Section 7106(b).”
The Authority then issued a “Notice of Reopened Pro-
ceedings and Request for Statements of Position” in
which it referred to the court’s remand and direction
that it “consider whether the attire which National
Guard technicians wear while engaged in their daily
duties as civilian technicians is a matter which is nego-
tiable only at the election of the agency pursuant to
section 7106(b)(1) of [the Statute].” The Authority
requested “each of the parties to submit a statement of
position with respect to this issue only, including any
and all arguments in support thereof.” In this regard,
the National Guard Bureau, on behalf of the Respondent,
filed a consolidated response which included affidavits
from the Adjutants General of several states and the
Charging Party filed its statement of position. The Gen-
eral Counsel of the Authority also filed a consolidated
statement of position in this case. Upon careful consider-
ation of the entire record on this issue, the Authority
makes the following determinations.*
At the outset, the Authority must consider the General
Counsel’s motion to strike affidavits from the Adjutants
Genera! of several states which, as indicated above, were
*The National Guard Bureau’s motion that a hearing before an
Administrative Law Judge be conducted is denied since the addi-
tional submissions of the parties have established a full record upon
which the Authority can decide the issue framed by the court.
25a
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 relation-
ship 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
cour't’s remand, as reflected in the Authority’s ensuing
request for statements of position, 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 contends in essence that
because the requirement to wear the military uniform
is directly and integrally related to the ability of the
technician workforce to carry out its role or functions
and duties in pursuit of the overall military mission of
the National Guard, it constitutes a “methods, and means
of performing work.” The General Counsel and the
Charging Party, on the other hand, contend principally
that wearing the military uniform has no direct and
integral relationship to accomplishment of the technicians’
duties while such employees are in their civilian status.
They assert that in the absence of such a relationship,
the military uniform does not constitute a method or
means of performing work within the meaning of section
7106(b) (1) of the Statute.
For the reasons which follow, the Authority concludes,
in agreement with the National Guard Bureau, that the
requirement for civilian technicians to wear the military
uniform at all times does constitute a “methods, and
means of performing work” within the meaning of sec-
tion 7106(b) (1) of the Statute.
In U.S. Customs Service, Region VIII, 2 FLRA 255
(1979), the Authority, as previously noted, determined
that the requirement for uniformed Customs Officers to
wear nameplates as part of their uniform for purposes
26a
of identification constituted a means of performing work
within the meaning of section 7106(b) (1) of the Statute.
In reaching this decision the Authority, applying gen-
eral rules of statutory construction, determined that a
“means” is in essence anything used to attain or make
more likely the attainment of a desired end, and in the
context of section 7106(b) (1), refers to “any instru-
mentality, including an agent, tool, device, measure, plan,
or policy used by the agency for the accomplishing or
furthering of the performance of its work.”
Turning to the instant case, it is uncontroverted in the
record that the National Guard is a military organization
with dual state and Federal military missions. Specifi-
cally, upon state mobilization it provides the State Gov-
ernments with military units organized, equipped and
trained to function in the protection of life and property,
and the preservation of peace, order and public safety
under the command of state authorities. In this role it
has been defined as “the modern militia reserved to the
States by Art. I, Section 8, Cl. 15, 16 of the Constitu-
tion,” Maryland v. United States, 381 U.S. 41, 46
(1965). Furthermore, as an integral part of the national
defense when Federally mobilized, it provides the Federal
Government with combat units, combat support units and
qualified personnel for active military duty, to support
augmentation requirements, to fulfill war and contin-
gency commitments, and to perform such peacetime
military missions as are compatible with training re-
quirements and maintenance of mobilization readiness.°
In addition, National Guard units must always be ready
for Federal mobilization to assist in controlling domestic
civil disorders. 10 U.S.C. § 331 et seq.
Within this military organization National Guard
technicians function in three capacities in their respective
5 National Guard Brief at 5.
6 Jd. at 6.
27a
units: They perform full-time civilian work; they per-
form military training and duty; and they are continu-
ously available to enter active state or Federal military
duty whenever mobilized. See H. Rep. No. 1823, 90th
Cong., 2d Sess. 2, reprinted in 1968 U.S. CoDE & AD.
NEWS 3318, 3319.
However, while these technicians were granted status
as Federal civilian employees by the Technicians Act, it
is clear that Congress intended to organize and admin-
ister the technician program within the military frame-
work of the National Guard. This intent is reflected in,
for example, specific provisions in the Technicians Act
which condition the technicians’ civilian employment
status on maintenance of military membership in the
National Guard. 32 U.S.C. § 709(b). As a consequence,
technicians are automatically separated from their civil-
ian technician employment if they cease to hold the
military grade specified for their technician position or
if they are separated from the National Guard for any
reason. 32 U.S.C. § 709(e) (1); State of Tennessee v.
Dunlap, 426 U.S. 312 (1976).
Moreover, in this respect, the U.S. Court of Appeals
for the D.C. Circuit recently had occasion to examine
the legislative history of the National Guard Technicians
Act of 1968 in American Federation of Government
Employees, AFL-CIO, Local 2958 v. Federal Labor Re-
lations Authority, 730 F.2d 1534 (1984), aff’'g American
Federation of Government Employees, AFL-CIO, Local
2953 and National Guard Bureau, Office of the Adjutant
General, Nebraska, 7 FLRA 87 (1981). In that case, the
court upheld the Authority’s decision that a proposal to
preclude the use of military appraisals when establishing
reduction in force retention registers for technicians was
outside the duty to bargain. The court relied heavily on
its conclusion that the technician workforce was estab-
lished primarily to enable the National Guard to carry
out its military mission and that technicians were
28a
granted Federal civilian employment status in order to
make them eligible for Federal retirement and fringe
benefits and coverage under the Federal Tort Claims Act.
Specifically, the court found that “the primary mandate
of the [Technicians] Act is to insure that the military
capability of the guord is effective and efficient” and
further that there is ‘‘no obligation to trade on the essen-
tial mission of the National Guard at the bargaining
table.” 730 F.2d at 1546.
Other courts similarly have relied upon this interrela-
tionship between the duties performed by technicians and
the ability of the National Guard to maintain its combat
readiness. In Bruton v. Schnipke, 404 F.Supp. 1932
(E.D. Mich. 1975) for example, the court concluded that
the requirement that civilian technicians wear military
uniforms was rationally related to the National Guard’s
purpose, based on its view that technician employment is
essentially military in nature. In this regard, in the
court’s opinion denying an earlier motion for a _ pre-
liminary injunction, (Bruton v. Schnipke, 370 F.Supp.
1157, 1163 (E.D. Mich. 1974) ), the court stated:
The National Guard is a military organization. Its
functions are primarily military. The reason for its
existence is primarily military. All of the testimony
supports the conclusion that technicians function in
a more military fashion if they wear the military
uniform. Indeed, it is because wearing the uniform
requires [technicians] to perform their work in a
military way that they object. It does not seem
unreasonable to have military work performed in a
military manner. Given the National Guard’s pur-
pose and function the Court cannot say that the
regulation is not reasonably related to the National
Guard’s purpose.
Likewise, in Syrek v. Pennsylvania Air National
Guard, 437 F.Supp. 236 (W.D. Pa. 1977) the court
determined that application of military grooming stand-
AB tt Nal th 5 a tnt.
29a
ards to civilian technicians was reasonably related to
the National Guard’s interest in assuring its combat
readiness. The court found that Congress, by its decision
to organize and administer the technician program within
the military framework of the National Guard, as well
as to create an extremely close connection between the
technicians’ civilian and military status, had placed great
emphasis on uniformity, discipline and esprit de corps
in the technician program. In reaching its cenclusion the
court stated: 7
[Tlechnicians perform their duties on military
equipment using military procedure in a military
environment. The requirement that civilian tech-
nicians, as a part of the overall disciplinary require-
ments of their jobs, comply with Air Force hair
standards is reasonably related to assuring the
combat readiness of the Guard, which is the tech-
nicians’ primary purpose.
Moreover, the court in Klotzbach v. Gallaway, 473
F.Supp. 13837 (W.D. N.Y. 1979), finding Bruton and
Syrek to be controlling, also determined that because of
the clear interrelationship between technicians’ duties and
the effective function of the Guard it was rational for
the Guard to establish standards of appearance, including
dress requirements, for technicians. In so concluding the
court stated: °
Congress has chosen to administer the technician
program within the military framework of the
Guard and to give technicians dual status as civilians
and military personnel. The legislative history of
the Act indicates that Congress contemplated a
single technician position, which “would entail a
composite of inseparable, simultaneous military and
7 Syrek v. Pennsylvania Air National Guard, supra, at 240.
8 Klotzbach v. Callaway, supra, at 1348.
30a
civilian duties.” [Citations omitted.] This intent is
reflected in the statutory requirement of enrollment
in the Guard as a condition of employment as a
technician. Although the plaintiff would like a clear
division between civilian duties and military duties,
this simply is not possible because of the dual quali-
fication aspect of the position.
In the instant case, the record shows that the National
Guard Bureau uses the requirement for civilian techni-
cians to wear military uniforms to foster military disci-
pline, promote uniformity, encourage esprit de corps,
increase the readiness of the military forces for early
deployment and enhance identification of the National
Guard as a military organization. In this regard for
example, it is undisputed in the record that the ability
of the part-time Guard to mobilize into an effective
full-time military force is directly dependent upon the
full-time technician workforce. Moreover, the record
before the Authority indicates that because technicians
are already in uniform, National Guard unit commanders
have the technician workforce itself available for instant
deployment in response to any disaster or civil assistance
request while mobilization of the part-time Guardsper-
sons is in process.°
However, due to the unique status of technicians as
compared to other Federal employees, and as a result of
the essential role they play in achieving rapid mobiliza-
tion of the part-time Guard into a military force, tech-
nicians must possess a highly developed sense of esprit
de corps and military discipline which enables them to
be instantaneously convertible to active military status.
But, because the traditional means of instilling esprit de
corps and military discipline, such as drill, military cour-
tesy and protocol, are not available for use with personnel
who are employed technically in a civilian status, the
® National Guard Brief, Exhibit B at 7.
3la
wearing of the military uniform becomes indispensable
as a constant reminder to technicians that they are
members of an organization which is essentially military
and subject to mobilization at a moment’s notice.
In addition to the vital role technicians play in effec-
tuating rapid mobilization and deployment of the Guard,
they are also statutorily responsible for training the
part-time National Guard. 32 U.S.C. § 709(a) (1). Spe-
cifically, the record indicates that the purpose of this
training is to enable the National Guard to achieve a
high degree of military readiness and that such training
frequently occurs during the technician’s workweek.”
As a consequence, the uniform wearing requirement is
utilized by the National Guard to create the most realistic
military environment possible in order for such military
training to be successful.
Therefore, based on the foregoing, and consistent with
the judicial determinations supporting the conclusion that
there is a direct and integral relationship between the
uniform wearing requirement and the duties technicians
perform in furtherance of the overall military mission
of the National Guard, discussed 2bove, we find the
determination by the National Guard Bureau that tech-
nicians 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. Thus,
while this requirement may be bargained at the election
of the agency, it is not within the duty to bargain.
Consequently, in the circumstances of this case, the
failure of the Respondent to cooperate in the final de-
cision and! order of the Federal Service Impasses Panel
did not constitute a violation of section 7116(a)(1) and
(6) of the Statute.
10 National Guard Brief, Exhibit A at 7-8.
32a
ORDER"
IT IS ORDERED that the complaint in Case No. 1-
CA-19 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., July 17, 1984
/s/ Barbara J. Mahone
BARBARA J. MAHONE, Chairman
/s/ Ronald W. Haughton
RONALD W. HAUGHTON, Member
/s/ Henry B. Frazier III
HENRY B. FRAZIER III, Member
FEDERAL LABOR RELATIONS AUTHORITY
13 This Order shall supersede our earlier Order in this matter.
si
33a
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
Case No. 1-CA-19
8 FLRA 158
DIVISION OF MILITARY AND NAVAL AFFAIRS,
STATE OF NEW YoRK, ALBANY, New York,
— Respondent
NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
Charging Party
CERTIFICATE OF SERVICE
Copies of the Decision and Order Upon Remand of the
Federal Labor Relations Authority in the subject pro-
ceeding have been mailed upon issuance to the parties
listed below:
Certified Mail
Mr. James C. Hise
Chief, Office of Legal Advisor
National Guard Bureau
5600 Columbia Pike
Falis Church, Virginia 22041
Mr. Bruce E. Endy
Meranze, Katz, Spear & Wilderman
15th & Locust Street
Philadelphia, Pennsylvania 19102
Mr. David L. Feder
Assistant General Counsel
Counsel for the General Counsel
Federal Labor Relations Authority
500 C Street, SW.
Washington, D.C. 20424
34a
Regular Mail
Major General Vito J. Castellano
Division of Military and Naval Affairs
Public Security Bldg., State Campus
Albany, New York 12226
Mr. C. Roger Lunden
Counsel for Respondent
State of New York, DMNA
Publie Security Bldg., State Campus
Albany, New York 12226
Mr. Frederick S. Tedesco
New York State Chairman ACT, Inc.
66 Watkins Avenue
State: [sland, New York 10312
Mr. John Hunter, President
Association of Civilian Technicians
932 Hungerford Drive, Suite 34A
Rockville, Maryland 20850
Mr. John Giarrusso
38 Harris Avenue
Johnston, Rhode Island 02919
Colonel Clarence C. Wallace
Personnel Officer
Division of Military & Naval Affairs
Public Security Bldg., State Campus
Albany, New York 12226
Mr. Edward S. Davidson
Regional Director
Federal Labor Relations Authority
441 Stuart Street, 9th Floor
Boston, Massachusetts 02116
35a
Mr. Allan D. Heuerman
Assistant Director for Agency and
Labor-Management Relations
U.S. Office of Personnel Management
Room 7K51
1900 E Street, NW.
Washington, D.C. 20415
Mr. Thomas Garnett, Jr.
Director, Labor-Management Relations
Department of Defense, OASD (MRAG&L)
The Pentagon, Room 3D264
Washington, D.C. 20301
36a
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
Nos. 138, 139, Dockets 82-4072, 82-4090
STATE OF NEW YORK, DIVISION OF MILITARY AND NAVAL
AFFAIRS (ALBANY, NEW YORK), and The Department
of Defense,
Petitioners-Cross-Respondents,
V.
FEDERAL LABOR RELATIONS AUTHORITY
(Boston, Massachusetts) ,
Respondent-Cross-Petitioner.
Argued Oct. 21, 1982
Decided Dec. 10, 1982
Marc Richman, Atty., Appellate Staff, Civ. Div., Dept.
of Justice, Washington, D.C. (J. Paul McGrath, Asst.
Atty. Gen., William Kanter, Atty., Appellate Staff, Civ.
Div., Dept. of Justice, Joseph R. Reyna, Atty., National
Guard Bureau, Washington, D.C., of counsel), for
petitioner-cross-respondent.
William E. Persina, Atty., Federal Labor Relations
Authority, Washington, D.C. (Steven H. Svartz, Acting
Sol., Federal Labor Relations Authority, Washington,
D.C., of counsel), for respondent-cross-petitioner.
peed Bes tet
vate
37a
Drennan A. Clark, Col., Nevada Air National Guard,
State Judge Advocate, Nevada Military Dept., Carson
City, Nev., for amicus curiae Adjutants General Ass’n of
the United States.
Meranze, Katz, Spear & Wilderman, Philadelphia, Pa.
(Bernard N. Katz, Leonard Spear and Bruce E. Endy,
Philadelphia, Pa., of counsel), for amicus curiae New
York State Council, Ass’n of Civilian Technicians, Inc.
Before OAKES and WINTER, Circuit Judges, and
METZNER,* District Judge.
METZNER, District Judge:
The petitioner, State of New York, Division of Mili-
tary and Naval Affairs (National Guard), seeks review
of an order of the Federal Labor Relations Authority
(FLRA). The order stated that the National Guard had
engaged in an unfair labor practice and required the
National Guard to include in its collective bargaining
agreement with the New York Council, Association of
Civilian Technicians, Inc. (technicians), a provision to
the effect that the technicians may, at their option, wear
a military uniform or agreed-upon civilian attire while
performing their work. This provision was to be subject
to agreed-upon exceptions where the wearing of the uni-
form might be required.
The FLRA cross moves for the enforcement of its
order.
Pursuant to the National Guard Technician Act of
1968, 32 U.S.C. § 709 (1980), the Guard employs full-
time civilian technicians to administer and train the
National Guard and to maintain and repair the supplies
issued to the National Guard. As a condition of their
employment the technicians must become and remain
* The Honorable Charles M. Metzner of the United States Dis-
trict Court for the Southern District of New York, sitting by
designation.
38a
members of the National Guard. As members of the
National Guard they are required to discharge the mem-
bers’ responsibilities which include participation in train-
ing assemblies and encampments, and they are subject
to being called into active service. Their positions are
exempted from competitive civil service, but they are
considered federal civilian employees for the purpose of
the federal service labor-management relations program
established by Executive Order No. 11491, 3 C.F.R. 861
(1966-1970 Compilation), and later by Title VII of the
Civil Service Reform Act of 1978,' 5 U.S.C. § 7101-35
(1978).
The instant problem arose during the course of collec-
tive bargaining negotiations between the National Guard
and the technicians. Negotiations broke down over the
technicians’ proposal that they be given the option of
wearing standard civilian attire while acting as tech-
nicians in civilian employment. The National Guard
insisted that the technicians wear standard military uni-
forms when performing their day-to-day duties. The
technicians then requested that the matter be considered
by the Impasses Panel pursuant to Section 17 of the
Executive Order.
On January 9, 1979, the Panel directed the parties
to resolve the impasse by adopting language in their
agreement affording the technician employees “the option
of wearing either the military uniform or an agreed-
upon standard civilian attire without display of military
rank,” subject to exceptions to be negotiated to cover
circumstances where the wearing of the uniform might
be required. The National Guard sought FLRA review
of this determination claiming that the matter of attire
involved a non-negotiable issue. The request was denied
1 Executive Order No. 11491 was the predecessor of Title VII
and was in effect at the time of negotiations in this case. The
provisions of each are similar insofar as the problem in this pro-
ceeding is concerned.
nae) Sal iON ae ic A
OBL 0 dit Lia
met hts a kg hl MAR ‘et
39a
on the ground that there was no authorization for direct
appeal from the Panel decision either under the Execu-
tive Order or Title VII.2 The FLRA advised that the
National Guard could obtain review only in an unfeir
labor practice proceding. Refusal to follow the Panel’s
directive constitutes an unfair labor practice. 5 U.S.C.
§ 7116(a) (6). The FLRA would, in the course of such
proceeding, review the Panel decision.*
Since the National Guard had refused to follow the
directive, the technicians had already filed an unfair
labor practice charge. The matter came on for resolution
before an Administrative Law Judge. In his decision the
judge stated that he was aware of the FLRA position
that a Panel decision was only reviewable through the
unfair labor practice procedures. He also understood that
it was the purpose of the National Guard in the pro-
ceedings before him “to challenge and obtain a full review
of the Panel’s underlying premise that the wearing of
the uniform is a negotiable matter.” Nevertheless, he
found full review of the Panel’s decision unwarranted.
The National Guard had raised in its answer to the
unfair labor practice charge two reasons, among others,
that the Panel’s decision was invalid. First, it forced
the National Guard to meet u standard of compelling
need to support a regulation it deemed non-negotiable.
Second, the decision violated Section 12/b) (5) of Execu-
tive Order No. 11491, as amended, 3 C.F.R. 159 reprinted
in 5 U.S.C. § 7101 note (Supp. IV 1980). Section 12(b)
? Title VI had become effective January 11, 1979.
In State of Nevada National Guard, 7 FLRA No. 37 (1981),
the FLRA commented on the National Guard’s attempt to obtain
direct review of the Panel’s decision in that case by the Court of
Appeals of the Ninth Circuit. The Court had dismissed the peti-
tion. The FLRA pointed out that the court was fully apprised of
the fact that review of the Panel’s decision depends on the filing
of an unfair labor practice charge and the issuance of a final order
by the FLRA in that case.
40a
(5) and 5 U.S.C. § 7106(b) are substantially the same,
and define management rights which are non-negotiable
at the option of the agency.
After hearing argument and reading the papers sub-
mitted, the judge entered his decision and order in
which he engaged in a long discussion of the scope of
review. He sustained the charge, stating that the Na-
tional Guard “has failed to establish a valid reason for
its refusal to comply with the Panel’s decision regardless
of how the finality of the Panel’s decision is approached.”
He continued:
“Therefore, as I find no special circumstance
which would require review of the Panel’s Decision
and Order, I conclude that further review of the
Panel’s Decision is unwarranted. In my judgment,
to inquire further into the soundness of the Panel’s
factual findings and legal conclusions or the pro-
cedures it employed in reaching its decision would
inevitably result in opening inquiry into essentiaily
a full review of the Panel’s actions.”
The decision concluded with the statement that “a party
who refuses to follow the Panel’s final decision does so
at its peril.”
A full review of the Panel’s action was sought, it was
what the statute contemplated according to the FLRA,
but it was denied to the National Guard by the Adminis-
trative Law Judge who did not address the issue of
negotiability.
The decision and order was reviewed by the FLRA on
exceptions filed by the National Guard. The FLRA stated
that it had “reviewed the rulings of the judge made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed.” Based on
the FLRA’s decision in State of Nevada National Guard,
7 FLRA No. 37 (1981), the FLRA agred that the
National Guard had committed an unfair labor practice.
|
4la
The FLRA found it unnecessary to engage in a discus-
sion of the appropriate scope of review of a Panel deci-
sion. This order and decision of the FLRA is the subject
of this petition for review and the cross application for
enforcement of the order.
The FLRA’s decision in State of Nevada National
Guard, supra, deals with the “compelling need” standard
by which a matter covered by an agency regulation may
be deemed non-negotiable, 5 U.S.C. § 7117(a) (2), but
makes no mention of management rights reserved in
Section 7106. It is this latter section which was properly
raised in the administrative proceedings and which has
not been dealt with either by the Administrative Law
Jugde or the FLRA.
The failure to deal with the issue of management
rights here is significant in view of the FLRA decision
in National Treasury Employees Union v. United States
Customs Service, Region VIII, San Francisco, California,
Region VIII, San Francisco, California, 2 KLRA No. 30
(1979). In that case the FLRA upheld, as a management
right not subject to negotiation pursuant to Section
7106(b), an agency’s directive requiring all uniformed
personnel to wear name plates as part of the official
uniform.
The proceeding is remanded to the FLRA to develop
a full record appropriate for judicial review as to
whether the attire the technicians should wear while
engaged in their daily duties as civilians is a non-nego-
tiable matter under Section 7106(b).
42a
8 FLRA No. 33
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
Case No. 1-CA-19
DIVISION OF MILITARY AND NAVAL AFFAIRS,
STATE OF NEW YORK, ALBANY, NEW YORK,
Respondent
and
NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued his Decision and
Order 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. Thereafter,
the Respondent filed exceptions to the Judge’s Decision
and Order.
Pursuant to section 2423.29 of the Authority’s Rules
and Regulations (5 CFR 2423.29) 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 prejudi-
cial error was committed. The rulings are hereby af-
43a
firmed.' Upon consideration of the Judge’s Decision and
Order and the entire record in this case, including the
Respondent’s exceptions, the Authority hereby adopts the
Judge’s recommendations as modified herein.? Based on
the Authority’s decision in State of Nevada National
Guard, 7 FLRA No. 37 (1981), and the rationale therein,
the Authority agrees with the Judge that the Respondent
violated section 7116(a) (1) and (6) of the Statute. The
Authority finds in unnecessary, in view of the nature of
the exceptions, to address further the Judge’s discussion
of the scope of the Authority’s review of Federal Service
Impasses Panel decisions.
ORDER
Pursuant to section 2423.29 of the Federal Labor Re-
lations Authority’s Rules and Regulations and section
7118 of the Statute, it is hereby ordered that the Divi-
sion of Military and Naval Affairs, State of New York,
Albany, New York, shall:
1. Cease and desist from:
(a) Refusing to honor and abide by the January 9,
1979, 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 their
collective bargaining agreement with the New York Coun-
cil, Association of Civilian Technicians:
Employees, while performing their day-to-day tech-
nician duties, shall have the option of wearing either
1In this connection, 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 The affirmative action portion of the Judge’s Recommended
Order is modified herein based on the circumstances of this case.
44a
(a) the military uniform or (b) an agreed-upon
standard civilian attire without displaying military
rank, such clothing to be purchased by employees
who choose to wear it.
(c) Refusing to agree upon and incorporate in their
collective bargaining agreement with New York Council,
Association of Civilian Technicians those circumstances
and occasions for which the wearing of the military uni-
form 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
effectuate the purposes and policies of the Statute:
(a) Adopt the following language in its collective bar-
gaining agreement with the New York Council, Associa-
tion of Civilian Technicians:
Employees, while performing their day-to-day tech-
nicians duties, shall have the 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 purchased by employees
who choose to wear it.
(b) Meet and negotiate with the New York Council,
Association of Civilian Technicians regarding those cir-
cumstances 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 wherever 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 Division of Military and Naval
45a
Affairs, State of New York and shall be posted by him
for 60 consecutive days in conspicuous places, including
all bulletin boards and other places where notices to em-
ployees 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 I, Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order, as to what
steps have beer taken to comply herewith.
Issued, Washington, D.C., February 19, 1982
/s/ Ronald W. Haughton
RONALD W. HAUGHTON, Chairman
/s/ Henry B. Frazier III
HENRY B FRAZIER, III, Member
/s/ Leon B. Applewhaite
LEON B. APPLEWHAITE, Member
FEDERAL LABOR RELATIONS AUTHORITY
46a
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-MANAGMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to honor and abide by the January
9, 1979, Decision and Order of the Federal Service Im-
passes Panel regarding “Wearing of the Military Uni-
form” or in any other manner failing or refusing to co-
operate in impasse decisions or procedures.
WE WILL NOT refuse to adopt the following language
in our collective bargaining agreement with the New
York Council, Association of Civilian Technicians:
Employees, while performing their day-to-day tech-
nicians duties, shall have the option of wearing either
(a) the military uniform or (b) an agreed-upon
standard civilian attire without displaying military
rank, such clothing to be purchased by employees
who choose to wear it.
WE WILL NOT refuse to agree «pon and incorporate in
our collective bargaining agreement with New York Coun-
cil, Association of Civilian Technicians those circum-
stances and occasions for which the wearing of the mili-
tary uniform may be required.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
47a
their rights assured by the Federal Service Labor-Man-
agement Relations Statute.
WE WILL adopt the following language in our collective
bargaining agreement with the New York Council, As-
sociation of Civilian Technicians:
Employees, while performing their day-to-day tech-
nician duties, shall have the 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 purchased by employees
who choose to wear it.
WE WILL meet and negotiate with the New York Coun-
cil, Association of Civilian Technicians regarding the cir-
cumstances and occasions for which the wearing of the
military uniform may be required and incorporate the
agreement reached in our collective bargaining agree-
ment with such Jabor 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 othei material.
If employees have any questions concerning this Notice,
or compliance with any of its provisions, they may com-
municate directly with the Regional Director of the Fed-
eral Labor Relations Authority, Region I, 441 Stuart
Street, 9th Floor, Boston, Massachusetts 02116, and whose
telephone numbmer is (617) 223-0920.
48a
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
Case No. 1-CA-19
DIVISION OF MILITARY AND NAVAL AFFAIRS,
STATE OF NEW YORI, ALBANY, NEW YORK,
Respondent
and
NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
Charging Party
CERTIFICATE OF SERVICE
Copies of the Decision and Order of the Federal Labor
Relations Authority in the subject proceeding have this
day been mailed to the parties listed:
Major General Vito J. Castellano
Division of Military and Naval Affairs
Public Security Bldg., State Campus
Albany, New York 12226
Mr. C. Roger Lunden
Counsel for Respondent
State of New York, DMNA
Public Security Bldg., State Campus
Albany, New York 12226
Mr. Frederick S. Tedesco
New York State Chairman ACT, Inc.
66 Watkins Avenue
Staten Island, New York 10312
49a
Mr. Vincent J. Paterno, President
Association of Civilian Technicians
348A Hugerford Court
Rockville, Maryland 20850
Colonel Clarence C. Wallace
Personnel Officer
Division of Military & Naval Affairs
Public Security Bldg., State Campus
Albany, New York 12226
Mr. John Giarrusso
38 Harris Avenue
Johnston, Rhode Island 02919
Mr. Edward S. Davidson
Regional Director
441 Stuart Street
9th Floor
Boston, MA .02116
50a
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
Suite 705 - 1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 1-CA-19
DIVISION OF MILITARY AND NAVAL AFFAIRS,
STATE OF NEW YORK, ALBANY, NEW YORK,
Respondent
and
NEw YorRK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
Charging Party
C. Roger Lunden, Esquire
For the Respondent
Richard O. Zaiger, Esquire
For the General Counsel
John Giarrusso
For the Charging Party
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-
Management Statute, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. Section 7101 et seq.
Upon a charge filed by New York Council, Association
of Civilian Technicians (the Union) on March 15, 1979,
ae Yo
5la
and amended on October 17, 1979, against Division of
Military and Naval Affairs, State of New York, Albany,
New York,’ the General Counsel of the Authority, by the
Regional Director for Region 1, issued a Comnlaint and
Notice of Hearing on October 17, 1979, allegins that Re-
spondent had engaged in and was engaging in unfair
labor practices within the meaning of Sectiers 7116(a)
(1) and (6) of the Statute. The complaint alleged that
since February 9, 1979, Respondent refused and con-
tinues to refuse to comply with a Decision and Order of
the Federal Service Impasses Panel dated January 9,
1979, requiring the Charging Party and Respondent to
adopt into their collective bargaining agreement certain
language relative to wearing of the military uniform. On
October 26, 1979, Respondent filed its answer to the
complaint wherein it admitted in part and denied in part
the allegations in the complaint and set forth various
affirmative defenses.
On January 15, 1980, counsel for the General Counsel
filed a Motion for Summary Judgment and on January
30, 1980, Respondent filed a Statement in Opposition to
Charging Party’s (sic) Motion for Summary Judgment
and Cross-Motion for Summary Judgment.? On January
31, 1980, the parties were notified that ruling on the out-
standing motions would be held in abeyance pending re-
ceipt of argument at the hearing scheduled for February
5, 1980.
At the hearing conducted on February 5, 1980 in Al-
bany, New York all parties were represented and af-
forded full opportunity to present argument on their re-
spective positions. Based upon the entire record in this
matter, including the documents received in evidence and
1 Respondent’s name appears as amended at the hearing.
2 The cross-motion requested summary judgment relative to the
allegation that Respondent violated Section 7116(a)(1) of the
Statute.
52a
the arguments made at the hearing, counsel for the Gen-
eral Counsel’s Motion for Summary Judgment was
granted and Respondent’s Cross-Motion for Summary
Judgment was denied at the hearing. My ruling is based
upon the following:
Findings and Conclusions
1. On March 27, 1978, the Union filed a request with
the Federal Service Impasses Panel to consider a negotia-
tion impasse with the Respondent under Section 17 of
Executive Order 11491, as amended.
2. The parties appeared before a representative of the
Panel at a factfinding hearing conducted on June 7 and
8, 1978, at which time the parties presented testimouy
and documentary evidence and argument relative to the
impasse at issue which includ~* the question of whether
technicians should be required to wear the military uni-
form or permitted to wear civilian clothing when per-
forming technician duties, the only issue concerned
herein.
3. On September 28, 1978, a Panel Report and Rec-
ommendation for Settlement (78 FSIP 32) issued which
provided, inter alia:
“a. The parties should adopt language in their
agreement affording employees, while performing
their day-to-day technician duties, the 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 purchased by
employees who choose to wear it.
‘bh. The parties should agree upon exceptions to
cover those circumstances and occasions for which
the wearing of the military uniform may be re
quired.”
4. Respondent considered the Panel’s Report and Rec-
ommendation and on October 31, 1978, took exception to
53a
the Panel’s recommendation and requested review of the
Panel’s decision.
5. On January 1, 1979, the Panel issued its Decision
and Order in the matte and ordered:
“a. The parties shall adopt the following lan-
guage in their agreement:
Employees, while performing their day-to-day
technician duties, shall have the option of wear-
ing either the military uniform or an agreed-
upon standard civilian attire without display
of military rank, such clothing to be purchased
by employees who choose to wear it.
b. Circumstances and occasions for which the
wearing of the military uniform may be required
shall be agreed upon by the parties and incorporated
in their agreement.”
6. By letter dated February 9, 1979, to the Panel,
a copy of which was also sent to the Union, Respondent
stated it had “initiated proceedings to obtain judicial re-
view of the Panel’s Order in accordance with Section
7123 (of the Statute ... and) that portion of the order
must be placed in abeyance pending the outcome of our
judicial initiative’.
7. The Panel responded on February 28, 1979, and,
having considered Respondent’s letter of February 9, to
be a motion to hold in abeyance, denied the motion find-
ing no persuasive reasons were presented to support the
motion.
8. On March 7, 1979, Respondent filed with the Au-
thority a document entitled “Petition for Reconsidera-
tion” wherein it requested that the Authority review the
propriety of the Panel Order dated 9 January 1979, in-
sofar as it mandated the adoption of the language related
to the wearing of the uniform. The issues set forth by
Respondent were as follows:
54a
“Did the Federal Labor Relations Council, an
agency within the meaning of the Administrative
Procedure Act, by its authority derived from an
executive order, have the power to vitiate a military
regulation applicable only to National Guard tech-
nicians, and promulgated pursuant to statute by the
Department of Defense?
“Assuming that the Federal Labor Relations Coun-
cil had the authority to review federal civilian em-
ployee regulations for the purpose of determining
their negotiability, and that said review was prop-
erly made according to a ‘compelling need’ standard,
did an invalid determination of negotiability result
as «0 a particular military regulation by reason of
an invalid application of the standard for review?”
9. On October 17, 1979, counsel for the General Coun-
sel issued a Complaint alleging Respondent’s refusal to
abide by the Panel’s Decision and Order of January 9,
1979, violated Sections 7116(a) (1) and (6) of the Stat-
ute, which provisions declare it to be an unfair labor
practice:
“(1) to interfer with, restrain, or coerce any em-
ployee in the exercise by the employee of any right
under this chapter;
“(6) to fail or refuse to cooperate in impasse pro-
cedures and impasse decisions. . .”’
10. On October 26, 1979, Respondent filed its Answer
to the Complaint essentially admitting the fact of its re-
fusal to take the action ordered by the Panel in its Janu-
ary 9, 1979, Decision and Order, but denying that such
conduct violated the Statute. Further, Respondent set
forth various affirmative defenses by challenging the
jurisdiction of the Authority to act on the Complaint while
Respondent’s Petition for Reconsideration of March 7,
1979, had not been ruled on and alleging a violation of
55a
due process of law with regard thereto; alleging that
laches and/or equitable considerations compels the conclu-
sion that the Union’s charge was abandoned; contending
the Panel’s January 9, 1979, was invalid and contrary to
law in various respects; and contending that an improper
Respondent had been named.
11. On December 5, 1979, the Authority denied Re-
spondent’s March 7, 1979 “Petition for Reconsideration”
which the Authority construed to be “petition for direct
review”. The Authority concluded that the Statute does
not sanction Authority review of a Panel Decision and
Order “except through the unfair labor practice proce-
dures set forth in the Statute.”
12. By mailgram dated December 20, 1979, the Union
requested Respondent negotiate to implement the Panel’s
Decision and Order of January 9, 1979. Respondent, on
December 21, 1979, declined to negotiate by stating: “As
you are well aware it is our intention to pursue judicial
review should this Division be unsuccessful in defending
the uniform requirement before the Authority in Febru-
ary.” 3
13. Counsel for the General Counsel filed a Motion
for Summary Judgment on January 15, 1980, noting that
on December 5, 1979, the Authority denied Respondent’s
Petition for Reconsideration. Counsel for General Counsel
contended that Respondent, in its Answer of October 26,
1979, “. . . does not or cannot deny the pertinent factual
allegations of the Complaint” and that since “. . . all
material facts (have) been admitted or established
beyond controversy a Motion for Judgment is appropriate
unless the facts referred to... are insufficient to consti-
tute a violation of Section 7116(a)(1) and (6) of the
Statute or merit is found in one of Responden’t five (5)
affirmative defenses which it raised in its Answer.”
3 A hearing on the complaint had been scheduled for February 5,
1980.
56a
14. On January 30, 1980, Respondent filed a “State-
ment in Opposition to Charging Party’s (sic) Motion
for Summary Judgment and Cross-Motion for Summary
Judgment” in which it did not challenge or put in dis-
pute Counsel for the General Counsel’s representation
that Respondent failed to comply with the Decision and
Order of the Panel or the facts as set forth above. In
this regard Respondent presented various documents
which were part of the record placed before the Panel
when the uniform issue was being presented to the
Panel for determination. The basis of Respondent’s
argument in opposition to the Motion for Summary
Judgment is its desire to challenge and obtain a full
review of the Panel’s underlying premise that the wear-
ing of the uniform is a negotiable matter.‘ Respondent
accordingly seeks an opportunity in this proceeding to
challenge the prior determination of the Council, as aug-
mented by “new evidence” on this issue, and have the
entire matter reviewed by the Authority through the
administrative process. Thus, Respondent argues that an
administrative unfair labor practice hearing should be
conducted in order to provide a full administrative
review of “. . . not only the underlying record before
the Panel but . . . any new evidence which is germane
to (Respondent’s) failure to comply with the Decision
and Order. . .”
In addition, Respondent in the cross-motion for sum-
mary judgment contends that a refusal to comply with
a Panel decision does not constitute a violation of Section
*The Panel, in its January 9, 1979, Decision and Order con-
sidered the following Council decisions to be controlling: National
Association of Government Employees, Local R14-87 and Kansas
National Guard, FLRC No. 76A-16 (and other cases consolidated
therewith) (January 19, 1977), Report No. 12C; and National
Federation of Federal Employees, Local 1636, and State of New
Mezico National Guard, FLRC No. 76A-75 (and other cases consoli-
dated therewith) (January 19, 1977), Report No. 120; requests
for reconsideration denied (May 18, 1977), Report No. 125.
Albee aon 9d)
eee, UA Ne Boa ee ~
we a pe ne ae Tb 08 di RIN Settle ck
57a
1716(a) (1) of the Statute absent evidence to support a
finding of male fides or intent to interfere, restrain, or
coerce employees.
15. At the hearing conducted before me on February
5, 1980,° Respondent conceded it did not comply with the
Panel’s Decision and Order of January 9, 1979. However,
Respondent contended that the Panel made an improper
decision based on the evidence before it; that the Panel
gave insufficient weight to Respondent’s evidence; that
additional new evidence germain to the issue before the
Panel should now be received; that tie-Administrative
Law Judge and the Authority should review the evidence
that was before the Panel, and additional new evidence,
and reconsider and reverse the decision of the Panel.
Respondent also acknowledged that no new legal argu-
ments were being raised at the hearing which were not
previously raised before the Panel and the only factual
matters Respondent wished to present at the hearing,
which was not previously presented to the Panel, was new
evidence with regard to the “consequences” to the Na-
tional Guard from the use of civilian attire by techni-
cians.
With regard to the “consequences” evidence, after per-
mitting an offer of proof I rejected receipt of such testi-
mony. The offer of proof reveals that, if permitted, Re-
spondent would adduce testimony relating to National
Guard units where contractual uniform provisions simi-
lar to that ordered by the Panel herein were in effect,
as follows:
(a) In August 1978, in Massachusetts, a person in
uniform did not want to take orders from an individual
in civilian clothing since the uniformed person had no
way of knowing the rank of the individual in civilian
5 Respondent’s unopposed motion to correct the transcript is
hereby granted.
58a
attire thus, opinion evidence would show, producing a
“command problem”.
(b) Respondent was informed in January 1979 that
on some undisclosed date an Ohio technician in civilian
attire was refused training in Panama because of ap-
pearance thereby, in the opinion of Respondent’s witness,
depriving the unit of the benefit of training the individ-
ual would have acquired.
(c) In December 1978 or January 1979, in Pennsyl-
vania, a technician allowed his beard to grow between
monthly drills thereby providing an unkempt appearance
which, hearsay and opinion testimony would show, would
produce a source of irritation to members of the ,public
and the office he represents.
(d) The commanding officer of the Montana National
Guard would testify that between July 1978 and Febru-
ary 1979 in Montana; °®
(i) An undisclosed number of “part-time” guardsmen
who were not technicians objected to technicians who did
not wear the uniform and found the technicians failure
to follow the more stringent prior uniform and grooming
regulations to be a “considerable irritant”.
(ii) Violations of the uniform clause have been “fre-
quent and varied” such as wearing a mix of military and
civilian attire, wearing improper footwear and wearing
military cold weather gear with civilian clothing. Mix
of clothing violations are a “constant irritation” and
when violators complain to their union representatives,
the “irritation” and loss of time occasioned results in re-
duced work effectiveness of the individuals involved and
the entire unit.
6 Dates established from an affidavit of the Montana Air National
Guard commanding officer dated February 6, 1979 indicating that
in May 1978, the uniform option was added to that units collective
bargaining agreement by Panel Order.
59a
(iii) “Some” individuals in civilian attire use the
clothing controversy as a shield for bad behavior, for
instance, responding to comments of unsatisfactory work
performance or failure to receive special schooling or
assignments by claiming that the adverse treatment was
a result of choosing to wear civilian clothing. “A
number” of unfair labor practices have been filed charg-
ing management with such discrimination and valuable
time is spent investigating and attempting to resolve
these charges.
(iv) Mission accomplishment and overall attitude and
morale of the unit has been adversely affected as a
result of the “constant argument” over proper work
attire and the loss of time“ arguing over petty clothing
standards.”
16. At the hearing conducted on February 5, 1980, I
granted counsel for General Counsel’s Motion for Sum-
mary Judgment ‘and denied Respondent’s Cross-Motion
for Summary Judgment. I noted that the only matter
not before the Panel when it issued its decision was the
proffered evidence contained in the offer of proof. I
concluded that Respondent’s reasons for refusing to com-
ply with the Panel’s Decision and Order were invalid,
that no further hearing was warranted and accordingly,
Respondent by its conduct violated Section 7106(a) (6)
of the Statute.
I further concluded that by its refusal to comply with
the Panel’s Decision and Order, Respondent also violated
Section 7116(a)(1) of the Statute even though no spe-
cific additional evidence was presented relative to estab-
lishing Respondent’s bad faith.
Discussion
Respondent argues that under the Statute an Adminis-
trative Law Judge is empowered to reverse a decision of
the Panel both by reaching different factual and/or legal
60a
conclusions than the Panel reached in its deliberations as
well as considering matters which were not before the
Panel when it decided the issue.
The extent to which a decision of the Panel should be
accorded finality is a matter of first impression at this
time. However, in my view Respondent has failed to es-
tablish a valid reason for its refusal to comply with the
Panel’s decision regardless of how the finality of the
Panel’s decision is approached.
Obviously, if the Panel’s decision is considered to be
absolutely final and binding as far as the administrative
process is concerned, Respondent’s failure to comply with
that decision is the only subject of administrative review
and a violation of the Statute is clear. Thus, only the
Panel would have authority to question its own findings
and conclusions and the Panel would be the only body
which would be empowered to consider any “new facts”
which arose subsequent to the Panel’s initial decision.’
The legislative history of the Statute gives some support
for this theory. Section 7119(c) of the Statute provides
that “final action” of the Panel shall be “binding” on the
parties. The legislative history or the Statute reveals
that the Senate bill under consideration in 1978 (S.
2640) contained a provision expressly providing that the
Authority “may consider” exceptions to final decisions
and orders of the Federal Service Impasses Panel.* The
Senate Committee Report on this section of the bill
states: °
TWhile Respondent by its “Petition for Reconsideration” of
March 7, 1979, requested the Authority to “review” the Panel’s de-
cision, Respondent did not at any time present its arguments for
reconsideration to the Panel.
8 Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform of 1978,
96th Congress, Ist Session, Committee Print No. 96-7, (November
19, 1979) at 455, 510, 567.
9 Id., at 761.
CID wh ome Mp aBin
6la
“The provision further expressly sanctions ap-
peals to the Authority from final decisions and order
of the Federal Service Impasses Panel. The broad
authority of the Council under Executive Order
11491 to interpret the Order, decide major policy is-
sues and take whatever action is required to eifec-
tuate the purposes of the Order implies a right to
oversee final decisions and orders of the Panel. This
subchapter specifically sets forth the limited power
of review by the central authority to assure uniform
application of the legal requirements in the program,
but it is not anticipated that it would often be nec-
essary to exercise it except in the unlikely event that
the legal requirements of the program are misap-
plied. The Authority would not otherwise review the
substance or merits c any final decisions and orders
of the Panel.”
On the House side, the corresponding bill under con-
sideration in 1978 (H.R. 11280) made no express provi-
sion for Authority review of final decisions of the Panel.
Indeed, the House Report of July 31, 1978 contains the
following explanatory language: “. .. the action (of the
Panel) is final and binding on the parties. .. Final ac-
tion of the Panel under this section is not subject to ap-
peal and failure to comply with any final action order
by the Panel constitutes an unfair labor practice. . . .”
(Emphasis added). Accordingly, since the language in
S. 2640 was not adopted and the House version was the
one subsequently enacted, it may well be argued that
Congress intended to completely exempt final Panel deci-
sions from any type of administrative review. However,
it would appear that this interpretation may have al-
ready been rejected by the Authority in that its Decem-
ber 5, 1979 response to Respondent’s March 7, 1979 “Pe-
tition for Reconsideration” stated, inter alia; “. . . Au-
thority review of a final Panel Decision and Order. . .
10 Td., at 700.
62a
may be sought . . . only after the filing of unfair labor
practice charges . . .” This sttaement could be inter-
preted as suggesting that the Authority construes its
function to review, in some dimension, final decisions of
the Panel.
A second approach to the question of appealability of
a final decision of the Panel might be to consider a Panel
decision to be reviewable only to a very limited extent.
Following this approach a final Panel decision would be
administratively reviewable only with regard to those
significant extraordinary issues which were within the
sole discretion of the Authority, such as the correctness
of an underlying negotiability determination " or matters
which the Authority has clearly deemed it advisable to
review.’? In these circumstances the decision would be
solely that of the Authority and the Administrative Law
Judge would have authority to hear the matter only upon
specific direction from the Authority. The Authority has
not at this juncture ordered any such hearing and accord-
ingly, under this theory I do not conclude I have any
warrant to conduct a hearing on any issue presented by
the Respondent.
A third approach could provide Respondent a right of
administrative review of the Panel’s decision wherein the
special circumstances of the situation might give rise to
the right of limited review. Such situation would be sim-
ilar to that of the review accorded in an unfair labor
practice case of a matter previously litigated in a repre-
sentative proceeding under the National Labor Relations
11 See Section 7117(b) and (c) of the Statute and Part 2424
et seq. of the Regulations.
12 See generally, e.g., Part 2428.3 of the Regulations which treats
enforcement of Assistant Secretary standards of conduct decisions
and orders and provides that upon filing with the Authority a peti-
tion to enforce, an Assistant Secretary’s decision and order “. . .
shall be enforced (by the Authority) unless it is arbitrary, ca-
pricious, or based upon manifest disregard of the law.”
63a
Act. The National Labor Relations Board has long held
that in the absence of newly discovered or previously un-
available evidence or special circumstances, a respondent
in a proceeding alleging a refusal to bargain under the
Act is not entitled to relitigate issues which were or could
have been litigated in a prior representation proceeding.
Respondent urges that the Board’s approach be fol-
lowed and argues that the matter set forth in the offer of
proof falls within the scope of relitigable issues under
the Board’s rule. However, it is well settled under Board
law that there is no right to review of an underlying
determination of a prior administrative decision of the
Board based upon the claim of facts which occurred after
the Board’s initial representation decision.'* The follow-
ing language of the court in L.B. Foster, Co. is particu-
larly applicable:
‘é
. . to deny enforcement, with or without re-
mand for reconsideration on the basis of facts, oc-
curring after the Board’s decision, is to put a pre
mium upon continued litigation by the employer; it
can hope that the resulting delay will produce a new
set of facts, as to which the Board must then read-
judicate. Suppose that the Board does so, and again
finds against the employer. There can then be a pe-
tition to this court, a decision by it, and a petition
for certiorari to the Supreme Court. By that time
there will almost surely be another new set of facts.
When is the process to stop?”
Therefore, as I find no special circumstance which
would require review of the Panel’s Decision and Order,
13 Cf. Ray Brooks v. N.L.R.B., 75 S. Ct. 176 (1954) ; New Alaska
Development Corp. v. N.L.R.B., 441 F.2d 491 (7th Cir 1971);
N.L.R.B. v. The Kostel Corporation d/b/a Big Ben Shoe Store, 440
F.2d 347 (7th Cir. 1971); N.L.R.B. v. L.B. Foster Co., 418 F.2d 347
(9th Cir. 1969) ; Henderson Trumbull Supply Corp., 205 N.L.R.B.
245; The Wackenhut Corp., 194 N.L.R.B. 302, enf’d 471 F.2d 761
(6th Cir. 1972). ,
64a
I conclude that further review of the Panel’s decision is
unwarranted."* In my judgment, to inquire further into
the soundness of the Panel’s factual findings and legal
conclusions or the procedures it employed in reaching its
decision would inevitably result in opening inquiry into
essentially a full review of the Panel’s actions.
Lastly, a final Panel decision might be considered fully
reviewable, as Respondent suggests, wherein the review
would be tantamount to a hearing de novo. I reject this
concept. To conclude otherwise would render a_ nullity
the legislative history of the Statute as stated above,
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 ex-
peditious fashion.
With regard to Respondent’s argument that no finding
of violation of Section 7116(a) (1) can be supported with-
out specific proof of bad faith or intent to interfere with,
restrain or coerce employees, Respondent’s contentions
are without merit.’ Under Section 7102 of the Statute
employees are assured the right to join, form and assist
labor organizations and engage in collective bargaining
through their chosen representatives. The Union herein,
as the employees’ collective bargaining representative, is
seeking to conclude an agreement with Respondent re-
14 Even if Respondent’s new evidence was admissable for the
purpose of evaluating the Panel’s prior decision, I would find the
“evidence” contained in the offer of proof to be too insubstantial
to vary the Panel’s conclusions when considering the totality of the
evidence the Panel reviewed in reaching its findings and conclusions.
15] do not conclude that the language contained in the House
Report of July 31, 1978 (Legislative History of the Federal Service
Labor-Management Relations Statute, fn. 8, at 700, 701), which
states that “failure to comply with any action ordered by the Panel
constitutes an unfair labor practice by an agency under section
7116(a) (6) and (7) .. .”, excludes the possibility of finding such
conduct to be violative of any other provision of the Statute.
‘
65a
garding conditions of employment. The statutory scheme
envisions that when an impasse occurs Panel assistance
will be sought and the decision of the Panel will be final
and binding on the parties. Thus, the Panel becomes an
integral part of the collective bargaining process. When
a final decision of the Panel is defied and a union is frus-
trated 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.
Accordingly, when Respondent undermined this aspect of
the collective bargaining process by rejecting the statu-
tory procedure enacted to resolve impasse disputes, Re-
spondent interfered with its employees rights granted by
the Statute.
The claim that Respondent did not violate Section 7116
(a) (1) since it engaged in such conduct merely to obtain
review of the Panel’s Decision and Order is not persua-
sive. The Statute provides that the decision of the Panel
is final and binding on the parties. Therefore, a party
who refuses to follow the Panel’s final decision does so at
its peril. If Respondent ultimately prevails in its argu-
ment that it was not obligated to follow the Panel, then
obviously there was no 7116(a) (1) violation of the Stat-
ute. However, if Respondent is incorrect, then the em-
ployees were illegally denied the benefit of a contractual
provision until such time as Respondent complies with the
Panel’s Decision and Order. In these circumstances it
becomes all too apparent to employees that since the full
benefits of union representation can be illegally delayed,
such benefits are substantially less than that which the
Statute sought to provide in its declaration that Panel
decisions would be final and binding.
Having found and concluded that by its failure and
refusal to comply with a final Decision and Order of the
Federal Service Impasses Panel Respondent violated Sec-
66a
tions 7116(a) (6) and (1) of the Statute, I recommend
that the Authority issue the following:
ORDER
Pursuant to Section 7118(a) (7) of the Federal Labor-
Management Relations Statute and Section 2423.29 of
the Final Rules and Regulations, it is hereby ordered
that Division of Military and Naval Affairs, State of
New York, Albany, New York shall:
1. Cease and desist from:
(a) Refusing to honor and abide by the January 9,
1979, Decision and Order of the Federal Service Im-
passes Panel regarding “Wearing of the Military Uni-
form” or in any other manner failing or refusing to
cooperate in impasse decisions or procedures.
ib) Refusing to adopt the following language in their
collective bargaining agreement with the New York Coun-
cil, Association of Civilian Technicians:
Employees, while performing their day-to-day tech-
nician duties, shall have the option of wearing either
the military uniform or an agreed-upon standard
civilian attire without display of military rank, such
cothing to be purchased by employees who choose to
wear it.
(c) Refusing to agree upon and incorporate in their
collective bargaining agreement with New York Council,
Association of Civilian Technicians those circumstances
and occasions for which the wearing of the military uni-
form 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:
67a
(a) Post at its facilities in New York State 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, State of
New York, and shall be posted and maintained by him
for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and other places where No-
tices 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.
(b) Notify the Regional Director of Region I, 441
Stuart Street, 8th Floor, Boston, Massachusetts 02116, in
writing, within 30 days from the date of this Order as
to what steps have been taken to comply herewith.
/s/ Salvatore J. Arrigo
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: April 9, 1980
Washington, D.C.
68a
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 9, 1979, Deci-
sion and Order of the Federal Service Impasses Panel
regarding “Wearing of the Military Uniform” and coop-
erate with impasse decisions and procedures.
WE WILL adopt the following language in our collective
bargaining agreement with New York Council, Associa-
tion of Civilian Technicians:
Employees, while performing their day-to-day
technician duties, shall have the option of wearing
either military uniform or an agreed-upon civilian
attire without display of military rank, such cloth-
ing to be purchased by employees who choose to
wear it.
WE WILL agree upon and incorporate into our collec-
tive bargaining agreement with New York Council, As-
sociation of Civilian Technicians, those circumstances and
occasions for which “wearing of the military uniform”
may be required.
69a
WE WILL NOT, in any like or related manner, inter-
fere with, restrain, or coerce employees in the exercise
of their rights assured by the Statute.
Activity
Date: By:
Signature
This Notice must remain posted for 60 consecutive days
from the date of posting and 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 com-
municate directly with the Regional Director, Federal
Labor Relations Authority, Region I, whose address is:
441 Stuart Street, 8th Floor, Boston, Massachusetts
02116.
70a
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL SERVICE IMPASSES PANEL
Case No. 78 FSIP 32
IN THE MATTER OF STATE OF NEW YORK
DIVISION OF MILITARY AND
NAVAL AFFAIRS
and
NEW YORK COUNCIL
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
DECISION AND ORDER
The Federal Service Impasses Pane] (Panel) issued a
Panel Report and Recommendations for Settlement in this
matter on September 28, 1978. The recommendations
were as follows:
1. Extension of the Contract
The Employer should withdraw its proposal.
2. Performance Ratings
The parties should adopt the Union’s proposal.
3. Wearing of the Military Uniform
a. The parties should adopt language in their
agreement affording employees, while performing
their day-to-day technician duties, the option of wear-
ing either (a) the military uniform or (b) an
agreed-upon standard civilian attire without dis-
=reecw
eee eee ee
a ee ee ee ee eS ee ee ee
Tla
playing military rank, such clothing to be purchased
by employees who choose to wear it.
b. Parties should agree upon exceptions to cover
those circumstances and occasions for which the
wearing of the military uniform may be required.
The New York Council, Association of Civilian Tech-
nicians, (Union or ACT) accepted these recommenda-
tions but the State of New York, Division of Military
and Naval Affairs (Employer) did not. In its written
response the Employer requests that the Panel review
its findings and adopt the Employer’s proposals on all
three issues at impasse. The Panel has now considered
the entire record in this case including the responses of
the parties to its report and recommendations.
With regard to the contract extension issue, the Em-
ployer argues that its proposal, unlike that of the Union,
is consistent with a Federal Labor Relations Council
(Council) decision which was intended to encourage bar-
gaining on this subject.' As to the second issue, per-
formance ratings, the Employer contends that military
supervisors must be able to rate technicians on their
day-to-day activities. The military commander, it asserts,
is in the best position to assess the individual perform-
ance of the technicians.
We find that these arguments are essentially the same
as those which we found to be unpersuasive in the Panel
Report and Recommendations for Settlement in this case.
With particular respect to the performance ratings issue,
we recommended adoption of the Union’s proposal that
“all technician performance ratings will be accomplished
in accordance with Technician Personnel Pamphlet 902”
(TPP 902) be included in the cortract. TPP 902 pro-
1 Internal Revenue Service, Odgen Service Center, et al., A/SLMR
No. 806, FLRC No. 77A-40, and Department of the Treasury, In-
ternal Revenue Service, Brookhaven Service Center, A/SLMR No.
859, FLRC No. 77A-92 (March 17, 1978), Report No. 147.
72a
vides, as we previously noted, that performance ap-
praisals may be solicited by civilian supervisors, from
military commanders to aid in the rating of technicians,
This procedure, in our view, should substantially satisfy
the Employer’s needs.
As to the uniform issue, the Employer argues that the
Adjutant General (Chief of Staff to the Governor of
New York), pursuant to statutory authority, has re-
quired the wearing of the military uniform; his decision
was based on the military character of the National
Guard and the successful accomplishment of its military
tasks and mission. The Panel’s recommendations, it con-
tends, “enervates” the Adjutant General’s “final, military
authority.” Implicit in this argument is that, with a
decision by the Adjutant General requiring the wearing
of the military uniform, there is nothing to bargain
about. We note, however, that the Federal Labor Rela-
tions Council previously determined that the wearing of
the military uniform by National Guard technicians is
a negotiable matter.* Its decision is contrclling;* there-
fore, the Panel, as an agency within the Council, has the
2 National Association of Government Employees, Local R14-87
and Kansas National Guard, FLRC No. 76A-16 (and other cases con-
solidated therewith) (January 19, 1977), Report No. 120; and
National Federation of Federal Employees, Local 1636, and State
of New Mexico National Guard, FLRC No. 76A-75 (and other cases
consolidated therewith) (January 19, 1977), Report No. 120; re-
quests for reconsideration denied (May 18, 1977), Report No. 125.
3 Section 4 of the Order provides in relevant part: ...
(a) There is hereby established the Federa! Labor Relations
Council....
(b) The Council shall administer and interpret this Order,
decide major policy issues, prescribe regulations, and from
time to time, report and make recommendations to the Presi-
dent.
a
73a
duty to resolve the impasse which has arisen in negotia-
tions on this issue.*
The Employer also argues that the Panel (1) disre-
garded congressional intent; (2) failed to consider evi-
dence regarding the experience of the Air National Guard
technicians; (3) did not give appropriate weight to the
greater responsibilities of National Guard technicians
under the “total force” concept; and (4) incorrectly
found that National Guard technicians perform duties
similar to reserve technicians and other civilian employ-
ees of the Department of Defense.
With respect to congressional intent, the Council con-
sidered a similar claim in the previously cited negoti-
ability case concerning the wearing of the military uni-
form and stated that; *®
. . . [NJothing in the National Guard Technician
Act of 1968 or in its extensive legislative history
indicates that it was the intent of Congress to estab.
lish a dress requirement for National Guard tech-
nicians during the time these technicians were per-
forming in their technician status.
Contrary to the Employer’s second assertion, evidence
as to the wearing of the military uniform by Air Na-
tional Guard technicians was, in fact, reviewed by the
* Section 5 of the Order provides in pertinent part: ...
(a) There is hereby estblished the Federal Service Impasses
Panel as an agency within the Council. The Panel consists of at
least three members appointed by the President, one of whom he
designates as chairman. The Council shall provide the services
and staff assistance needed by the Panel.
(b) The Panel may consider negotiation impasses as provided
in section 17 of this Order and may take any action it considers
necessary to settle an impasse.
5 See note 2, supra at 18 of Kansas National Guard.
74a
Panel and appears on page 9 of its recommendations in
this case.
As to the Employer’s third and fourth allegations, we
find that these claims are essentially the same as those
found to be unpersuasive in the aforementioned Panal
Report and Recommendations for Settlement.
Consequently, we conclude, consistent with our respon-
sibilities under sections 5 and 17 of Executive Order
11491, as amended, that the Employer’s request should
be denied and the impasse be resolved on the basis of
our prior recommendations. THERE™ORE, we issue the
following order.
ORDER
Pursuant to the authority vested in it by Executive
Order 11491, as amended, the Federal Service Impasses
Panel hereby orders that:
1. Extension of the Contract.
The Employer shall withdraw its proposal.
2. Performance Ratings
The parties shall adopt the Union’s proposal.
3. Wearing of the Military Uniform
a. The parties shall adopt the foliowing language in
their agreement:
Employees, while performing their day-to-day
technician duties, shall have the option of wearing
either the military uniform of an agreed-upon stan-
dard civilian attire without display of military rank,
such clothing to be purchased by employees who
choose to wear it.
75a
b. Circumstances and occasions for which the wearing
of the military uniform may be required shall be agreed
upon by the parties and incorporated in their agreement.
By direction of the Panel.
/s/ Howard W. Solomon
HOWARD W. SOLOMON
Executive Secretary
January 9, 1979
Washington, D.C.
76a
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL SERVICE IMPASSES PANEL
Case No. 78 FSIP 32
IN THE MATTER OF
STATE OF NEW YORK
DIVISION OF MILITARY AND NAVAL AFFAIRS
ALBANY, NEW YORK
and
NEW YORK COUNCIL
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
PANEL REPORT AND RFJOMMENDATIONS FOR
SETTLEMENT
Appearances:
For State of New York, Division of Military and
Naval Affairs:
C. Roger Lunden, Counsel
Division of Military and Naval Affairs
Albany, New York
For New York Council, Association of Civilian
Technicians, Inc.:
Vincent J. Paterno, President
Association of Civilian Technicians, Inc.
Rockville, Maryland
John Chapman, Executive Assistant
Association of Civilian Technicians, Inc.
Rockville, Maryland
77a
The New York Council, Association of Civilian Tech-
nicians, Ine. (Union), filed a request with the Federal
Service Impasses Panel (Panel) on March 27, 1978, to
consider a negotiation impasse under section 17 of Exec-
utive Order 11491, as amended (Order). The request
arose out of labor agreement negotiations between the
Union and the State of New York, Division of Military
and Naval Affairs (Employer).
On May 2, 1978, the Panel determined that resolution
of the impasse required factfinding. By letter and Notice
of Hearing, it appointed Jonathan E. Kaufmann to con-
duct a factfinding hearing on issues concerning the wear-
ing of the military uniform, the extension of the con-
tract, reopening of the contract, and performance ratings.
During the course of the prehearing conference held
on June 6, 1978, the parties were able to resolve the
reopener issue. Thereafter, a hearing was held before
Factfinder Kaufmann on June 7 and 8, 1978, concern-
ing the three remaining issues. A stenographic record
was taken, testimony and argument were presented, and
the parties also presented documentary evidence. Post-
hearing briefs were subsequently filed by both parties.
BACKGROUND
1. The Employer and the Union
The mission of the Employer is to provide units of
trained, qualified, and equipped personnel for mobiliza-
tion in time of war, national emergency, or civil disrup-
tion. Authority to administer the technician program
pursuant to the National Guard Technician Act of 1968,
32 U.S.C. § 709 (1970), is granted to the Adjutant Gen-
eral; in the State of New York the Adjutant General is
the Chief of Staff to the Governor (CSG). This program
includes 1,317 Army National Guard technicians em-
ployed in 84 locations throughout New York in such job
classifications as general mechanic, administrative supply
78a
technician (AST), and fabric worker. In addition, there
are 1,043 Air technicians at 8 facilities in such positions
as supply electronics mechanic, sheet metal mechanic, and
supply technician.
The union gained recognition on May 26, 1970, as ex-
clusive representative for a statewide bargaining unit
of about 2,000 Army and Air National Guard techni-
cians. Since then it has negotiated one collective bar-
gaining agreement with the Employer which expired in
October 1977.
2. The History of the Current Negotiations
Prior to the expiration of the contract, the parties un-
successfully attempted to negotiate a ground rules agree-
inent for upcoming negotiations. Substantive negotiations
began nevertheless on November 14, 1977. After a week,
agreement was reached on such issues as union repre-
sentation, hours of work, and leave. A Federal mediator
met with the parties on two occasions in December 1977
and April 1978 but the unresolved issues led to tue
Union’s request for Panel assistance.
THE ISSUES AT IMPASSE
The issues will be addressed in the order that they
were presented at the hearing: (1) The extension of the
contract; (2) performance ratings; and (3) the wearing
of the military uniform.
EXTENSION OF THE CONTRACT
This issue involves whether the contract will ke ex-
tended beyond the termination date if the parties are
still negotiating for a new agreement at that time.
1. Background
Negotiations for the parties’ only contract began in
1971 and concluded in 1975 although no negotiations
ese is wa i
79a
tock place for about a year and one-half. The final agree-
ment contained no language concerning its extension but
the Employer agreed to extend the dues withholding and
grievance procedure provisions after the contract termi-
nated in October 1977.
2. The Parties’ Proposals
The Union presented no proposal for the Panel’s con-
sideration. Employer’s proposal is as follows:
This agreement, together with all articles con-
tained herein, shall terminate on the expiration date
of said agreement and may be extended only with
the consent of the Chief of Staff to the Governor.
(Emp. Exh. 1.)
3. The Union’s Position
During the course of the current negotiations, the
Union was concerned that the contract remain in effect
until a new agreement was implemented. These concerns
were met, it claims, when the Federal Labor Relations
Council (Council) issued a March 17, 1978, decision pro-
viding for the continuation of contract terms as condi-
tions of employment after an agreement expires.’ The
Union contends that the Eimployer’s proposal attempts
to set aside the Council’s decision even though manage-
ment still retains the right to invoke changes that derive
from law, regulation, or policy. With regard to the Em-
ployer’s claim that termination of the contract is neces-
sary to spur bargaining, a Union witness testified that
the Union has always negotiated expeditiously. It also
argues that termination of a contract would put no pres-
sure on the Employer to negotiate.
1 Internal Revenue Service, Odgen Service Center, et al., A/SLMR
No. 806, FLRC No. 77A-40, and Department of the Treasury, In-
ternal Revenue Service, Brookhaven Service Center, A/SLMR No.
859, FLRC No, 77A-92 (March 17, 1978), Report No. 147.
80a
4. The Employer’s Position
The Employer argues that the Council, in the previ-
ously discussed decision, did not intend that the existing
working conditions continue unabated, a situation which
would create inertia in the collective bargaining process.
It points to this part of the Council’s decision: *
In our view, existing personnel policies and prac-
tices and matters affecting working conditions,
whether or not they are included in a negotiated
agreement, continue as establishec pon the expira-
tion of a negotiated agreement, absent an express
agreement by the parties that such personnel pol-
icies and practices and matters affecting working
conditions terminate upon the expiration of that
agreement or unless otherwise modified in a manner
consistent with the Order.
(Un. Exh. 1 at 7.)
This language, it asserts, indicates that the Council
wants the parties to negotiate over the extension but the
Union steadfastly refuses to move from its current posi-
tion. The Employer notes that its position is flexible and
it would consider appropriate a recommendation of a
30- or 60-day extension of the agreement. Absent some
language concerning termination, the Employer argues,
the Union will receive all the benefits of the Council de-
cision and will be under no pressure to negotiate prior
to the expiration date of the contract.
PERFORMANCE RATING
At issue is whether military personnel should be per-
mitted to rate technicians on their day-to-day technician
performance.
1. Background
Army and Air National Guard technicians receive per-
formance ratings from their supervisors that reflect how
2 Id. at 7.
ee
8la
well they accomplish their normal, day-to-day duties. The
Technician Personnel Pamphlet (TPP) 902, issued by
the National Guard Bureau, establishes procedures for
assigning these performance ratings. TPP 902.2-3(a)
states in pertinent part:
2-3. Annual performance rating. a. This is the
annual process through which an official record of a
technician’s performance and assigned duties is
made. These ratings are based on comparisons with
performance requirements and are made for the
purpose of providing the technician, the technician’s
supervisor, and the TPO with an official record of
the technician’s performance fer the rating period.
Official ratings will be assigned by the immediate
supervisor and approved by the next higher level
supervisor. Solicitation of performance appraisals
by unit commanders not in the technician program
is recommended to aid supervisors in rating those
technicians whose duty station is not in the same
geographic area as the supervisor. (Un. Exh. 2 at
5.)
Both parties agree that the procedures contained in
TPP 902 have been followed in the past. To date the
technician’s civilian rather than military supervisor has
prepared the performance rating of the technician’s day-
to-day activities.
ra)
2. The Parties’ Proposals
The Union proposes that:
All technician performance ratings will be accom-
plished in accordance with Technician Personnel
Pamphlet 902, dated September 30, 1975.
(Un. Exh. 4.)
The proposal of the Employer is as follows:
Annual technician performance ratings and re-
lated evaluations will be conducted by designated
82a
personnel utilizing lines of authority and respon-
sibility. Personnel designated as raters may be
selected from the federal technician force, state mil-
itary personnel in designated areas of interest, or
military commanders with responsibility for the
actions of technicians.
(Emp. Exh. 5.)
3. The Union's Position
Performance ratings, the Union argues, have a direct
impact on an employee’s advancement to higher level
positions. It is important, therefore, that the rating
official be trained to evaluate and understand Federal
performance standards, and be familiar with the work
of other technicians in similar positions. Thus, the
Union proposes a continuation of the past practice in
which civilian supervisors have always given the per-
formance ratings for the technicians’ day-to-day tasks.
TPP 902, it notes, provides that performance appraisals
may be solicited from military commanders to aid the
technician supervisor in rating a particular employee.*
Over the years, there has been constructive input from
the commanders, the Union asserts. The Employer’s pro-
posal goes further, it contends, since military super-
visors would be permitted to be completely responsible
for the ratings. Several Union witnesses testified that:
Their military commanders are often part-time members
of the Guard with civilian jobs outside the installation;
these commanders w
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.