Puerto Rico Air National Guard and National Federation of Federal Employees, Local 1665 (Authority decision, May 7, 1982)

Final FLRA decision. The Authority resolves the unfair-labor-practice complaint and issues a final order. Under 5 U.S.C. § 7123(a), an aggrieved party may seek judicial review within 60 days after issuance.

Plain-English summary

The Federal Service Impasses Panel ordered the Puerto Rico Air National Guard and a union to include a civilian attire option for technicians in their agreement. The Guard refused to implement the order or negotiate related uniform requirements, including after the Defense Department withdrew its authority to appeal. On a stipulated record, the Authority found that the refusal to cooperate with the Panel violated the labor statute. It ordered the Guard to add the required attire language, bargain over occasions requiring a military uniform, and post a notice. The Authority did not decide a separate refusal-to-bargain allegation.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(6), and 7118.
• Outcome: Impasses Panel noncompliance found; contract language, bargaining, and notice ordered.
• Key point: An unresolved challenge to a Panel order did not excuse persistent refusal to comply after authority to appeal was withdrawn.

Full text (FLRA public release)

[ v08 p480 ]

08:0480(99)CA

The decision of the Authority follows:

8 FLRA No. 99

PUERTO RICO AIR NATIONAL GUARD
Respondent

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1665
Charging Party

Case No. 2-CA-182

DECISION AND ORDER

THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.

UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE
RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS: THE CHARGING
PARTY, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665 (THE UNION),
IS THE EXCLUSIVE REPRESENTATIVE OF A BARGAINING UNIT OF THE RESPONDENT'S
CIVILIAN TECHNICIANS. IN 1978, WHILE THE PARTIES WERE SEEKING TO
NEGOTIATE A NEW AGREEMENT, A DISPUTE AROSE CONCERNING THE RIGHT OF
CIVILIAN TECHNICIANS TO WEAR NON-MILITARY ATTIRE DURING WORK HOURS.
WHEN THE PARTIES WERE UNABLE TO RESOLVE THIS ISSUE, THE MATTER WAS
SUBMITTED TO THE FEDERAL SERVICE IMPASSES PANEL (THE PANEL). BY MUTUAL
AGREEMENT, THE PARTIES EXECUTED THE REMAINDER OF THE CONTRACT, AS
NEGOTIATED, EXCEPT FOR THIS ISSUE.

ON OC OCTOBER 13, 1978, THE PANEL ISSUED A DECISION AND ORDER (CASE
NO. 78-FSIP-62) WHICH DIRECTED THE PARTIES TO ADOPT THE FOLLOWING
LANGUAGE IN THEIR AGREEMENT:

1. 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.

2. 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 LETTER TO THE RESPONDENT, THE UNION'S PRESIDENT THEREAFTER SOUGHT
TO HAVE THE LANGUAGE ORDERED BY THE PANEL ADDED TO THE PARTIES'
AGREEMENT ADN TO COMMENCE NEGOTIATIONS ON THE ISSUE OF WHAT CONSTITUTES
STANDARD CIVILIAN ATTIRE. THIS REQUEST WAS FOLLOWED BY A MEMORANDUM
OUTLINING THE UNION'S PROPOSALS ON THE ISSUE. IN RESPONSE, THE
RESPONDENT DECLINED TO NEGOTIATE ON THE GROUND THAT THE RESPONDENT HAD
FILED A REQUEST FOR RECONSIDERATION OF THE PANEL'S ORDER.

ON FEBRUARY 23, 1979, THE UNION AGAIN REQUESTED NEGOTIATIONS ON THI
MATTER. THE RESPONDENT AGAIN REFUSED, THIS TIME ON THE BASIS THAT IT
WAS PREPARING A REQUEST THAT THE AUTHORITY ISSUE A MAJOR POLICY
STATEMENT ON THE ISSUE. /1/ THEREAFTER, IN RESPONSE TO A STATEMENT BY
THE UNION'S NATIONAL PRESIDENT, THE RESPONDENT NOTIFIED THE PANEL THAT
THERE WAS NO DUTY TO COMPLY WITH THE PANEL'S ORDER UNTIL THAT ORDER
BECAME FINAL. BY LETTER DATED MAY 10, 1979, THE DEPUTY ASSISTANT
SECRETARY OF DEFENSE (CIVILIAN PERSONNEL POLICY) INFORMED THE UNION THAT
THE DEPARTMENT OF DEFENSE HAD WITHDRAWN THE RESPONDENT'S AUTHORITY TO
FURTHER CONTEST THE PANEL'S ORDER. IN VIEW OF THE FOREGOING LETTER, THE
UNION ONCE AGAIN REQUESTED THAT THE RESPONDENT NEGOTIATE CONCERNING THE
ISSUE OF STANDARD CIVILIAN ATTIRE. IN RESPONSE, THE RESPONDENT
REQUESTED THAT THE NEGOTIATIONS BE HELD IN ABEYANCE PENDING A
DETERMINATION BY THE RESPONDENT'S STAFF JUDGE ADVOCATE'S OFFICE.
THEREAFTER, THE ACTING DEPUTY ASSISTANT SECRETARY OF DEFENSE NOTIFIED
THE AUTHORITY THAT IT HAD WITHDRAWN THE RESPONDENT'S AUTHORIZATION FOR
FURTHER APPEALS OF THE PANEL'S ORDER, AND REQUESTED WITHDRAWAL OF THE
PENDING PETITION FOR A STATEMENT ON MAJOR POLICY ISSUES. /2/ MORE THAN
TWO MONTHS LATER, THE UNION CONTACTED THE OFFICE OF THE GOVERNOR OF
PUERTO RICO AND REQUESTED ASSISTANCE IN THE RESOLUTION OF THE FOREGOING
LABOR DISPUTE. AS A RESULT OF THAT REQUEST, A MEETING WAS ARRANGED BY
THE GOVERNOR'S OFFICE AT WHICH THE UNION AGAIN RAISED THE QUESTION OF
STANDARD CIVILIAN ATTIRE. AT ALL TIMES MATERIAL HEREIN, HOWEVER, THE
RESPONDENT HAS FAILED TO COMPLY WITH THE PANEL'S DECISION AND ORDER AND
HAS REFUSED TO NEGOTIATE WITH THE UNION AS REQUIRED BY THAT ORDER. THE
COMPLAINT ALLEGES THAT, BY SUCH CONDUCT, THE RESPONDENT VIOLATED SECTION
7116(A)(1),(5) AND (6) OF THE STATUTE.

IT IS UNDISPUTED THAT THE RESPONDENT CONSISTENTLY HAS REFUSED TO
COMPLY WITH THE PANEL'S DECISION AND ORDER IN CASE NO. 78-FSIP-62, DATED
OCTOBER 13, 1978, EVEN AFTER THE DEPARTMENT OF DEFENSE HAD WITHDRAWN THE
RESPONDENT'S AUTHORITY TO APPEAL THE MATTER FURTHER AND HAD REQUESTED
WITHDRAWAL OF THE PETITION FOR A STATEMENT ON MAJOR POLICY ISSUES
PENDING BEFORE THE AUTHORITY. ACCORDINGLY, BASED ON THE AUTHORITY'S
DECISION IN STATE OF NEVADA NATIONAL GUARD, 7 FLRA NO. 37(1981), AND THE
RATIONALE THEREIN, THE AUTHORITY FINDS THAT THE RESPONDENT, BY FAILING
AND REFUSING TO COOPERATE IN AND COMPLY WITH THE PANEL'S DECISION AND
ORDER DATED OCTOBER 13, 1978, VIOLATED SECTION 7116(A)(6) OF THE STATUTE
AND THAT ITS ACTIONS NECESSARILY TENDED TO INTERFERE WITH, RESTRAIN, OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE
AND THUS ALSO VIOLATED SECTION 7116(A)(1). /3/

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE,
GUARD:

1. CEASE AND DESIST FROM:

(A) FAILING OR REFUSING TO COOPERATE IN AND COMPLY WITH THE FEDERAL
SERVICE IMPASSES PANEL'S DECISION AND ORDER RENDERED IN PUERTO RICO AIR
NATIONAL GUARD, SANTURCE PUERTO RICO, AND LOCAL 1665, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES; CASE NO. 78-FSIP-62.

(B) 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 ACTIONS IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE STATUTE:

(A) ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE BARGAINING
AGREEMENT WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665:

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.

(B) MEET AND NEGOTIATE WITH THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1665, REGARDING THE CIRCUMSTANCES AND OCCASIONS FOR
WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED AND
INCORPORATE THE AGREEMENTS REACHED INTO ITS COLLECTIVE BARGAINING
AGREEMENT WITH THAT LABOR ORGANIZATION.

(C) POST AT ITS FACILITIES, WHEREEVER UNIT EMPLOYEES ARE LOCATED,
COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE ADJUTANT
GENERAL OF THE PUERTO RICO AIR NATIONAL GUARD 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 ENSURE 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 OF REGION II, ROOM 1751, 26
FEDERAL PLAZA, NEW YORK, NEW YORK 10007, 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., MAY 7, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

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 COOPERATE AND COMPLY WITH THE FEDERAL SERVICE
IMPASSES PANEL'S DECISION AND ORDER RENDERED IN PUERTO RICO AIR NATIONAL
GUARD, SANTURCE, PUERTO RICO, AND LOCAL 1665, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES; CASE NO. 78-FSIP-62, REGARDING THE ATTIRE TO BE WORN
BY NATIONAL GUARD TECHNICIANS.

WE WILL NTO 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 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665:

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.

WE WILL MEET AND NEGOTIATE WITH THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1665, REGARDING THE CIRCUMSTANCES AND OCCASIONS FOR
WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED, AND
INCORPORATE THE AGREEMENTS REACHED INTO OUR COLLECTIVE BARGAINING
AGREEMENT WITH THAT LABOR ORGANIZATION.

(AGENCY

DATED:

BY: (SIGNATURE) (TITLE)

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 II,
ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE
TELEPHONE NUMBER IS: (212) 581-8100, EXT. 7233.

--------------- FOOTNOTES: ---------------

/1/ THE AUTHORITY TAKES OFFICIAL NOTICE THAT THE RESPONDENT FILED A
"PETITION FOR STATEMENT ON MAJOR POLICY ISSUES AND OTHER APPROPRIATE
RELIEF" WITH THE AUTHORITY IN FEBRUARY 1979, WHICH WAS DOCKETED AS FLRA
CASE NO. O-PS-4.

/2/ THE AUTHORITY GRANTED THE WITHDRAWAL REQUEST IN CASE NO. O-PS=4
BY LETTER DATED JUNE 15, 1979.

/3/ IN VIEW OF THAT FINDING, IT IS UNNECESSARY FOR THE AUTHORITY TO
PASS UPON WHETHER THE RESPONDENT'S CONDUCT ALSO VIOLATED SECTION
7116(A)(5). SEE STATE OF CALIFORNIA NATIONAL GUARD, 8 FLRA NO.
11(1982).