---

8 FLRA NO. 33

DIVISION OF MILITARY AND NAVAL
AFFAIRS, STATE OF NEW YORK,
ALBANY, NEW YORK

                  Respondent

        and

NEW YORK COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS

                  Charging Party

Case No. 1-CA-19

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 prejudicial error was committed. The rulings are hereby affirmed. 1 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. 2 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 it 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. [ v8 p158 ]

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the 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 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 Council, Association of Civilian Technicians:

Employees, while performing their day-to-day technician 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.

(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 uniform may be required.

(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute:

(a) Adopt the following language in its collective bargaining agreement with the New York Council, association of Civilian Technicians:

Employees, while performing their day-to-day technicians 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. [ v8 p159 ]

(b) Meet and negotiate with the New York Council, Association of Civilian Technicians regarding those circumstances 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 of 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 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 employees are customarily posted. The Adjutant General shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material.

(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 been taken to comply herewith.

Issued, Washington, D.C., February 19, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v8 p160 ]

                        NOTICE TO ALL EMPLOYEES
                             PURSUANT TO
                      A DECISION AND ORDER OF THE
                   FEDERAL LABOR RELATIONS AUTHORITY
              AND IN ORDER TO EFFECTUATE THE POLICIES OF
                     CHAPTER 71 OF TITLE 5 OF THE
                          UNITED STATES CODE
              FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
                 WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to honor and abide by the January 9, 1979, Decision and Order of the Federal Service Impasse Panel regarding "Wearing of the Military Uniform" or in any other manner failing or refusing to cooperate 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 technicians 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 upon and incorporate in our collective bargaining agreement with New York Council, Association of Civilian Technicians those circumstances and occasions for which the wearing of the military uniform may be required.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL 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 technician 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. [ v8 p161 ]

WE WILL meet and negotiate with the New York Council, Association of Civilian Technicians regarding the circumstances and occasions for which the wearing of the military uniform may be required and incorporate the agreement reached in our collective bargaining agreement with such labor 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 other material.

If employees have any question concerning this Notice, or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region I, 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose telephone number is (617) 223-0920. 

[ v8 p162 ]

  DIVISION OF MILITARY AND NAVAL
   AFFAIRS,
  STATE OF NEW YORK,
  ALBANY, NEW YORK
                   Respondent

           and

  NEW YORK COUNCIL,
  ASSOCIATION OF CIVILIAN TECHNICIANS
                   Charging Party

Case No. 1-CA-19

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, and amended on October 17, 1979, against Division of Military and Naval Affairs, State of New York, Albany, New York, 3 the General Counsel of the Authority, by The Regional Director for Region 1, issued a Complaint and Notice of Hearing on October 17, 1979, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sections 7116(a)(1) and (6) of the Statute. The complaint alleged that since February 9, 1979, Respondent refused and continues to refuse to comply with a Decision and Order of the Federal Service [ v8 p163 ] 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 of Summary Judgment and Cross - Motion for Summary Judgment. 4 On January 31, 1980, the parties were notified that ruling on the outstanding motions would be held in abeyance pending receipt of argument at the hearing scheduled for February 5, 1980.

At the hearing conducted on February 5, 1980 in Albany, New York all parties were represented and afforded full opportunity to present argument on their respective positions. Based upon the entire record in this matter, including the documents received in evidence and the arguments made at the hearing, counsel for the General 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 negotiation 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 testimony and documentary evidence and argument relative to the impasse at issue which included the question of whether technicians should be required to wear the military uniform or permitted to wear civilian clothing when performing technician duties, the only issue concerned herein.

3. On September 28, 1978, a Panel Report and Recommendation 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. [ v8 p164 ]

"b. The parties should agree upon exceptions to cover those circumstances and occasions for which the wearing of the military uniform may be required."

4. Respondent considered the Panel's Report and Recommendation and on October 31, 1978, took exception to 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 language in their agreement:

Employees, while performing their day-to-day technician duties, shall have the option of wearing 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 review 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, 1979, to be a motion to hold in abeyance, denied the motion finding no persuasive reasons were presented to support the motion.

8. On March 7, 1979, Respondent filed with the Authority a document entitled "Petition for Reconsideration" wherein it requested that the Authority review the propriety of the Panel Order dated 9 January 1979, insofar as it mandated the adoption of the language related to the wearing of the uniform. The issues set forth by Respondent were as follows:

"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 [ v8 p165 ] military regulation applicable only to National Guard technicians, and promulgated pursuant to statute by the Department of Defense?

"Assuming that the Federal Labor Relations Council had the authority to review federal civilian employee regulations for the purpose of determining their negotiability, and that said review was properly made according to a 'compelling need' standard, did an invalid determination of negotiability result as to a particular military regulation by reason of an invalid application of the standard for review?"

9. On October 17, 1979, counsel for the General Counsel 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 Statute, which provisions declare it to be an unfair labor practice:

"(1) to interfer with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

"(6) to fail or refuse to cooperate in impasse procedures and impasse decisions ..."

10. On October 26, 1979, Respondent filed its Answer to the Complaint essentially admitting the fact of its refusal to take the action ordered by the Panel in its January 9, 197, 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 due process of law with regard thereto; alleging that latches and/or equitable considerations compels the conclusion 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 Respondent'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 procedures 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 February." 5 [ v8 p166 ]

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 constitute a violation of Section 7116(a)(1) and (6) of the Statute or merit is found in one of Respondent's five (5) affirmative defenses which it raised in its Answer."

14. 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" in which it did not challenge or put in dispute 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 wearing of the uniform is a negotiable matter. 6 Respondent accordingly seeks an opportunity in this proceeding to challenge the prior determination of the Council, as augmented 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 summary judgment contends that a refusal to comply with a Panel decision does not constitute a violation of Section 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, 7 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 [ v8 p167 ] Respondent's evidence; that additional new evidence germain to the issue before the Panel should now be received; that the 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 arguments 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 National Guard from the use of civilian attire by technicians.

With regard to the "consequences" evidence, after permitting an offer of proof I rejected receipt of such testimony. The offer of proof reveals that, if permitted, Respondent would adduce testimony relating to National Guard units where contractual uniform provisions similar 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 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 appearance thereby, in the opinion of Respondent's witness, depriving the unit of the benefit of training the individual would have acquired.

(c) In December 1978 or January 1979, in Pennsylvania, 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 February 1978 in Montana; 8

(i) An undisclosed number of "part-time" guardsmen who were not technicians objected to technicians who did not were 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 "frequent 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 [ v8 p168 ] clothing violations are a "constant irritation" and when violators complain to their union representatives, the "irritation" and loss of time occasioned results in reduced work effectiveness of the individuals involved and the entire unit.

(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 charging 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 Summary 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 comply 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 specific additional evidence was presented relative to establishing Respondent's bad faith.

Discussion

Respondent argues that under the Statute an Administrative Law Judge is empowered to reverse a decision of the Panel both by reaching different factual and/or legal 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 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.

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 [ v8 p169 ] arose subsequent to the Panel's initial decision. 9 The legislative history of the Statute gives some support for tis theory. Section 7119(c) of the Statute provides that "final action" of the Panel shall be "binding" on the parties. The legislative history of 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. 10 The Senate Committee Report on this section of the bill states: 11

"The provision further expressly sanctions appeals 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 issues and take whatever action is required to effectuate 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 necessary to exercise it except in the unlikely event that the legal requirements of the program are misapplied. The Authority would not otherwise review the substance or merits of any final decisions and orders of the Panel."

On the House side, the corresponding bill under consideration in 1978 (H.R. 11280) made no express provision 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 action of the panel under this section is not subject to appeal and failure to comply with any final action order by the Panel constitutes an unfair labor practice. . . ." 12 (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 [ v8 p170 ] to completely exempt final Panel decisions from any type of administrative review. However, it would appear that this interpretation may have already been rejected by the Authority in that its December 5, 1979 response to Respondent's March 7, 1979 "Petition for Reconsideration" stated, inter alia; ". . . Authority review of a final Panel Decision and Order . . . may be sought . . . only after the filing of unfair labor practice charges . . ." This statement could be interpreted 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 13 or matters which the Authority has clearly deemed it advisable to review. 14 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 accordingly, 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 similar to that of the review accorded in an unfair labor practice case of a matter previously litigated in a representative proceeding under the National Labor Relations Act. The National Labor Relations Board has long held that in the absence of newly discovered or previously unavailable 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 followed 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 [ v8 p171 ] occurred after the Board's initial representation decision. 15 The following language of the court in L.B. Foster, Co. is particularly applicable:

"... to deny enforcement, with or without remand for reconsideration on the basis of facts occurring after the Board's decision, is to put a premium 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 readjudicate. Suppose that the Board does so, and again finds against the employer. There can then be a petition 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, I conclude that further review of the Panel's decision is unwarranted. 16 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 expeditious fashion.

With regard to Respondent's argument that no finding of violation of Section 7116(a)(1) can be supported without specific proof of bad faith or intent to interfere with, restrain or coerce employees, Respondent's [ v8 p172 ] contentions are without merit. 17 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 regarding 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 frustrated in its attempt to enter into an agreement in the manner prescribed by the Statute, employees will readily conclude that significant fruits which flow from union representation are illusory and motivation for union membership and assistance is substantially diminished. Accordingly, when Respondent undermined this aspect of the collective bargaining process by rejecting the statutory procedure enacted to resolve impasse disputes, Respondent 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 persuasive. 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 argument that it was not obligated to follow the Panel, then obviously there was no 7116(a)(1) violation of the Statute. However, if Respondent is incorrect, then the employees 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 Sections 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: [ v8 p173 ]

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 Council, Association of Civilian Technicians:

Employees, while performing their day-to-day technician duties, shall have the option of wearing 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.

(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 uniform may be required.

(d) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) 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 Notices to Employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced or covered by any other material.

(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.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated: April 9, 1980
Washington, D.C.

[ v8 p174 ]

                               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, Decision and Order of the Federal Service Impasses Panel regarding "Wearing of the Military Uniform" and cooperate with impasse decisions and procedures.

WE WILL adopt the following language in our collective bargaining agreement with New York Council, Association of Civilian Technicians:

Employees, while performing their day-to-day technician duties, shall have the option of wearing 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.

WE WILL agree upon and incorporate into our collective bargaining agreement with New York Council, Association of Civilian Technicians, those circumstances and occasions for which "wearing of the military uniform" may be required.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

                  _________________________________
                                Activity

Dated: ______ 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 communicate directly with the Regional Director, Federal Labor Relations Authority, Region I, whose address is: 441 Stuart Street, 8th Floor, Boston, Massachusetts 02116. [ v8 p 175 ]

FOOTNOTES

Footnote 1 In 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.

Footnote 2 The affirmative action portion of the Judge's Recommended Order is modified herein based on the circumstances of this case.

Footnote 3 Respondent's name appears as amended at the hearing.

Footnote 4 The cross-motion requested summary judgment relative to the allegation that Respondent violated Section 7116(a)(1) of the Statute.

Footnote 5 A hearing on the complaint had been scheduled for February 5, 1980.

Footnote 6 The Panel, in its January 9, 1979, Decision and Order considered 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. 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; requests for reconsideration denied (May 18, 1977), Report No. 125.

Footnote 7 Respondent's unopposed motion to correct the transcript is hereby granted.

Footnote 8 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.

Footnote 9 While Respondent by its "Petition for Reconsideration" of March 7, 1979, requested the Authority to "review" the Panel's decision, Respondent did not at any time present its arguments for reconsideration to the Panel.

Footnote 10 Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act if 1978, 96th Congress, 1st Session, Committee Print No. 96-7, (November 19, 1979) at 455, 567.

Footnote 11 Id., at 761.

Footnote 12 Id., at 700.

Footnote 13 See Section 7117(b) and (c) of the Statute and Part 2424 et seq. of the Regulations.

Footnote 14 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 petition to enforce, an Assistant Secretary's decision and order ". . . shall be enforced (by the Authority) unless it is arbitrary, capricious, or based upon manifest disregard of the law."

Footnote 15 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 (6th Cir. 1972).

Footnote 16 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 conclusion when considering the totality of the evidence the Panel reviewed in reaching its findings and conclusions.

Footnote 17 I 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.

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