State of New York, Division of Military and Naval Affairs and New York Council, Association of Civilian Technicians, Inc. (Authority decision, December 5, 1979)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Federal Service Impasses Panel ordered language allowing New York National Guard technicians to choose agreed civilian attire in place of military uniforms, subject to exceptions. The Guard sought direct Authority review, arguing that the Panel relied on an erroneous negotiability ruling. The Authority held that neither the earlier executive order nor the new federal labor statute permitted direct appeal from a final Panel order. It denied the petition without addressing the uniform issue. It identified an unfair labor practice proceeding based on alleged noncompliance as the route for Authority review.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116, 7118 and 7135(b).
• Outcome: Direct appeal from Panel order denied.
• Key point: A party could not directly appeal a final impasse order to the Authority.

Full text (FLRA public release)

[ v02 p186 ]

02:0186(20)PS

The decision of the Authority follows:

2 FLRA No. 20

MAJOR GENERAL VITO J. CASTELLANO
ADJUTANT GENERAL
STATE OF NEW YORK
DIVISION OF MILITARY AND NAVAL AFFAIRS
STATE CAMPUS, PUBLIC SECURITY BUILDING
ALBANY, NEW YORK 12226

RE: STATE OF NEW YORK, DIVISION OF MILITARY
AND NAVAL AFFAIRS AND NEW YORK COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS,
INC., 78 FSIP 32, Case No. 0-MC-2

DEAR GENERAL CASTELLANO:

THIS REFERS TO YOUR PETITION FOR REVIEW OF A FEDERAL SERVICE IMPASSES
PANEL DECISION AND ORDER, FILED WITH THE AUTHORITY ON MARCH 9, 1979.

ACCORDING TO YOUR PETITION FOR REVIEW AND OTHER RELEVANT MATERIAL IN
THE RECORD, INCLUDING ISSUANCES OF THE FEDERAL SERVICE IMPASSES PANEL
(HEREINAFTER THE PANEL), THE PERTINENT BACKGROUND IN THIS MATTER IS AS
FOLLOWS:

DURING NEGOTIATIONS BETWEEN THE NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC. (ACT), WHICH REPRESENTS A STATEWIDE UNIT OF
NEW YORK ARMY AND AIR FORCE NATIONAL GUARD TECHNICIANS, AND THE STATE OF
NEW YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS, AN IMPASSE AROSE
CONCERNING, AS HERE PERTINENT, THE WEARING OF MILITARY UNIFORMS BY NEW
YORK NATIONAL GUARD TECHNICIANS WHEN PERFORMING DAY-TO-DAY TECHNICIAN
DUTIES. AS A RESULT, ACT, PURSUANT TO SECTION 17 OF EXECUTIVE ORDER
11491, AS AMENDED, FILED A REQUEST WITH THE PANEL ON MARCH 21, 1978, FOR
ASSISTANCE IN RESOLVING THE IMPASSE. AFTER TAKING OTHER ADMINISTRATIVE
ACTION TO RESOLVE THE IMPASSE PURSUANT TO ITS AUTHORITY UNDER
ADMINISTRATIVE ACTION TO RESOLVE THE IMPASSE PURSUANT TO ITS AUTHORITY
UNDER SECTIONS 5 AND 17 OF EXECUTIVE ORDER 11491, AS AMENDED, THE PANEL
ISSUED A DECISION AND ORDER ON JANUARY 9, 1979, IN WHICH IT DIRECTED THE
PARTIES TO RESOLVE THIS IMPASSE BY ADOPTING LANGUAGE IN THEIR AGREEMENT
AFFORDING SUCH TECHNICIAN EMPLOYEES "THE OPTION OF WEARING EITHER THE
MILITARY UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE WITHOUT
DISPLAY OF MILITARY RANK" SUBJECT TO AGREED-UPON EXCEPTIONS TO COVER
CIRCUMSTANCES WHERE THE WEARING OF THE UNIFORM MAY BE REQUIRED.

ON FEBRUARY 9, 1979, THE STATE OF NEW YORK, DIVISION OF MILITARY AND
NAVAL AFFAIRS, REQUESTED THAT THE PANEL HOLD ITS JANUARY 9, 1979,
DECISION AND ORDER IN ABEYANCE "PENDING THE OUTCOME OF JUDICIAL
INITIATIVE." AFTER THIS REQUESTED WAS DENIED BY THE PANEL ON FEBRUARY
28, 1979, YOU FILED THE INSTANT PETITION FOR REVIEW OF THE DECISION AND
ORDER WITH THE AUTHORITY.

IN THE SUBJECT PETITION FOR REVIEW OF THE PANEL'S DECISION AND ORDER
YOU STATE THAT SUCH PETITION FOR REVIEW IS BASED ON YOUR CONTENTION THAT
"THE CHALLENGED PANEL ORDER IS PREDICATED UPON AN ERRONEOUS CONSOLIDATED
NEGOTIABILITY DECISION" CONCERNING THE WEARING OF MILITARY UNIFORMS BY
NATIONAL GUARD TECHNICIANS WHICH WAS ISSUED BY THE FEDERAL LABOR
RELATIONS COUNCIL ON JANUARY 19, 1977. /1/

WE HAVE CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE PANEL'S
DECISION AND ORDER AND HAVE DETERMINED FOR THE REASONS EXPRESSED BELOW
THAT SINCE THERE ARE NO PROVISIONS IN THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATE (92 STAT. 1192) WHICH SANCTION DIRECT
APPEALS FROM FINAL PANEL DECISIONS TO THE AUTHORITY, YOUR APPEAL MUST BE
DENIED.

AS PREVIOUSLY STATED, THIS CASE AROSE UNDER EXECUTIVE ORDER 11491, AS
AMENDED, WHEN THE UNION, ON MARCH 21, 1978, REQUESTED THE PANEL TO
RESOLVE AN IMPASSE IN NEGOTIATIONS. FURTHER, AS ALSO STATED, THE PANEL,
PURSUANT TO ITS AUTHORITY UNDER SECTIONS 5 AND 17 OF THE EXECUTIVE
ORDER, ISSUED ITS FINAL DECISION IN THE MATTER ON JANUARY 9, 1979. NO
PROVISIONS WERE CONTAINED IN EXECUTIVE ORDER 11491, AS AMENDED, OR IN
THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL
AUTHORIZING DIRECT APPEALS FROM FINAL PANEL DECISIONS TO THE COUNCIL.
INSTEAD, AN AGGRIEVED PARTY WAS EMPOWERED IN EFFECT TO OBTAIN REVIEW OF
A PANEL DECISION AND ORDER BY THE COUNCIL THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES ESTABLISHED IN THE EXECUTIVE ORDER, THAT IS, AFTER
THE FILING BY THE OTHER PARTY OF AN UNFAIR LABOR PRACTICE COMPLAINT
ALLEGING NONCOMPLIANCE WITH THE DECISION AND ORDER OF THE PANEL, A
DECISION ON THAT COMPLAINT BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, AND AN APPEAL FROM AN ADVERSE DECISION OF
THE ASSISTANT SECRETARY TO THE COUNCIL. /2/

UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, WHICH
BECAME EFFECTIVE AFTER THE PANEL ISSUED ITS FINAL DECISION IN THE MATTER
BUT BEFORE THE INSTANT APPEAL WAS FILED, /3/ THE COUNCIL'S POLICY
PRECLUDING DIRECT APPEALS OF FINAL PANEL DECISIONS, EXCEPT IN THE
CONTEXT OF THE UNFAIR LABOR PRACTICE PROCEDURES, REMAINS IN FULL FORCE
AND EFFECT, UNLESS, AS RELEVANT IN THIS CASE, SUCH POLICY IS SUPERSEDED
BY SPECIFIC PROVISIONS OF THE STATUTE OR BY DECISIONS ISSUED BY THE
AUTHORITY UNDER THE STATUTE. /4/

AS TO REVIEW OF FINAL PANEL DECISIONS BY THE AUTHORITY UNDER THE
STATUTE, AND AS REVEALED BY RELEVANT LEGISLATIVE HISTORY OF THE STATUTE,
THE CLEAR INTENT AND PURPOSE OF CONGRESS WAS TO ESTABLISH THE UNFAIR
LABOR PRACTICE PROCEDURE AS THE EXCLUSIVE MEANS OF OBTAINING SUCH
AUTHORITY REVIEW. SPECIFICALLY IN THIS REGARD, IN THE PORTION OF THE
LEGISLATIVE HISTORY OF THE STATUTE CONCERNING FINAL ORDERS ISSUED BY THE
PANEL UNDER SECTION 7119(C) OF THE STATUTE, 5 U.S.C.7119(C) (92 STAT.
1209), WHICH SECTION ESSENTIALLY CODIFIES THE PANEL'S PREEXISTING
AUTHORITY AND RESPONSIBILITY TO RESOLVE NEGOTIATION IMPASSES AND IS
DERIVED FROM THE HOUSE BILL (H.R. 11280), THE HOUSE REPORT EXPRESSLY
STATES (H.REP.NO. 95-1403, JULY 31, 1978, AT 54-55):

NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED

UPON THE PARTIES, AND THE ACTION IS FINAL AND BINDING UPON THE
PARTIES DURING THE TERM OF THE

AGREEMENT, UNLESS THE PARTIES AGREE OTHERWISE. FINAL ACTION OF THE
PANEL UNDER THIS SECTION

IS NOT SUBJECT TO APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION
ORDERED BY THE PANEL

CONSTITUTES AN UNFAIR LABOR PRACTICE BY AN AGENCY UNDER SECTION
7116(A)(6) AND (8) OR A LABOR

ORGANIZATION UNDER SECTION 7116(B)(6) AND (8).

THESE PROVISIONS OF SECTION 7116 IN THE HOUSE BILL ADVERTED TO IN THE
REPORT, AND AS ENACTED WITHOUT MODIFICATION IN THE STATUTE, STATE THAT
IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY OR A LABOR
ORGANIZATION, RESPECTIVELY, "(6) TO FAIL OR REFUSE TO COOPERATE IN
IMPASSE PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY THIS CHAPTER; .
. ." OR "(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF
THIS CHAPTER."

IT IS CLEAR, THEREFORE, FROM THE LITERAL LANGUAGE OF SECTION 7116 OF
THE STATUTE AND THE INTENT OF CONGRESS AS EXPRESSED IN THE RELATED
LEGISLATIVE HISTORY, THAT UNDER THE STATUTE, AUTHORITY REVIEW OF A FINAL
PANEL DECISION AND ORDER, SUCH AS THE ONE HERE INVOLVED, MAY BE SOUGHT
BY THE PARTY OBJECTING TO THAT ORDER ONLY AFTER THE FILING OF UNFAIR
LABOR PRACTICE CHARGES BY THE OTHER PARTY, BASED ON NONCOMPLIANCE WITH
THE PANEL'S DECISION AND ORDER, UNDER SECTION 7118 OF THE STATUTE, 5
U.S.C.7118 (92 STAT. 1207-1209) AND PART 2423 OF THE AUTHORITY'S RULES
OF PROCEDURE (44 FED.REG. 44,760(1979) (TO BE CODIFIED IN 5 C.F.R. PART
2423)). /5/

ACCORDINGLY, AS THE STATUTE, LIKE E.O. 11491, DOES NOT SANCTION
REVIEW OF A PANEL DECISION AND ORDER, EXCEPT THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES SET FORTH IN THE STATUTE, YOUR PETITION FOR DIRECT
REVIEW OF THE SUBJECT PANEL DECISION AND ORDER MUST BE DENIED.

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY /6/

CC: V. PATERNO

ACT

W. A. ROBERTSON

NGB

H. W. SOLOMON

FSIP

/1/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL NO. R14-87
AND KANSAS NATIONAL GUARD, 5 FLRC 124 (FLRC NO. 76A-16 (AND OTHER CASES
CONSOLIDATED THEREWITH) (JAN. 19, 1977), REPORT NO. 120),
RECONSIDERATION DENIED, 5 FLRC 336 ((MAY 18, 1977), REPORT NO. 125).

/2/ SEE STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 78P-5 (DEC. 28,
1978), REPORT NO. 169, AT P. 3 OF COUNCIL STATEMENT.

/3/ SINCE NO ADMINISTRATIVE PROCEEDINGS IN THIS CASE WERE PENDING ON
JANUARY 11, 1979, THE DATE THE PROVISIONS OF THE STATUTE TOOK EFFECT,
SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224)
IS NOT APPLICABLE IN THIS CASE. AS TO THE APPLICATION OF SECTION 902(B)
SEE CALIFORNIA NATIONAL GUARD, FRESNO AIR NATIONAL GUARD BASE, FRESNO
CALIFORNIA AND LOCAL R12-105, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, 77 FSIP 70, 2 FLRA (FLRA NO. O-MC-4 (DEC. 5, 1979), REPORT
NO. ).

/4/ SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215) PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) POLICIES . . . ESTABLISHED UNDER AND DECISIONS ISSUED UNDER
(EXECUTIVE ORDER 11491, AS

AMENDED), AS IN EFFECT ON THE EFFECTIVE DATE OF THIS (STATUTE), SHALL
REMAIN IN FULL FORCE AND

EFFECT . . . UNLESS SUPERSEDED BY SPECIFIC PROVISIONS OF THIS
(STATUTE) OR . . . DECISIONS

ISSUED PURSUANT TO THIS (STATUTE).

/5/ IN THIS REGARD, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
WITH THE AUTHORITY'S BOSTON REGION ON MARCH 20, 1979, WHICH ALLEGED THAT
THE ACTIVITY VIOLATED SECTION 7116(A)(6) OF THE STATUTE. THE UNFAIR
LABOR PRACTICE PROCEEDING IS CURRENTLY PENDING.

/6/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.