Military Department, State of Oregon, Oregon Army and Air National Guard, Salem, Oregon and American Federation of Government Employees, Local 2986 (Authority decision, May 13, 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

A Federal Service Impasses Panel order gave Oregon National Guard technicians a choice between a military uniform and agreed civilian attire for daily duties. The Guard negotiated related provisions with the union but refused to sign an agreement containing the Panel's language. On a stipulated record, the Authority found that refusing to comply with the Panel orders and execute the negotiated agreement violated the federal labor statute. It ordered the Guard to include the attire language and the negotiated exceptions in its collective bargaining agreement and to post a notice.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(5), 7116(a)(6), and 7116(a)(8).
• Outcome: Unfair labor practices found; adoption of attire terms and notice ordered.
• Key point: An agency must cooperate with an Impasses Panel decision and incorporate negotiated terms implementing it.

Full text (FLRA public release)

[ v08 p541 ]

08:0541(107)CA

The decision of the Authority follows:

8 FLRA No. 107

MILITARY DEPARTMENT
STATE OF OREGON
OREGON ARMY AND AIR NATIONAL GUARD
SALEM, OREGON
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2986, AFL-CIO
Charging Party

Case No. 9-CA-514

DECISION AND ORDER

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

UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:

THE AMENDED COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1)8 (5), (6) AND (8) OF THE STATUTE WHEN IT FAILED AND REFUSED
TO COOPERATE WITH A DECISION OF THE FEDERAL SERVICE IMPASSES PANEL
(FSIP) RELATING TO THE WORKING ATTIRE OF NATIONAL GUARD TECHNICIANS.

ON AUGUST 28, 1978, FSIP ISSUED A DECISION AND ORDER /1/ ORDERING THE
PARTIES TO ADOPT THE FOLLOWING LANGUAGE IN A MID-TERM 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 THIS
AGREEMENT.

PURSUANT TO FSIP'S DIRECTIONS, THE PARTIES RESUMED NEGOTIATIONS BUT
LATER REQUESTED A CLARIFICATION OF THE ABOVE-REFERENCED DECISION AND
ORDER. A SUPPLEMENTARY DECISION AND ORDER /2/ WAS ISSUED ON APRIL 24,
1979, IN WHICH FSIP ADDED THE FOLLOWING SENTENCE TO THE FIRST SECTION OF
THE LANGUAGE MANDATED IN ITS EARLIER ORDER:

THE TECHNICIAN SHALL HAVE THE OPTION OF WEARING EITHER THE MILITARY
UNIFORM OR THE STANDARD

CIVILIAN ATTIRE ON A DAY-TO-DAY BASIS.

SHORTLY THEREAFTER, IN MAY 1979. THE PARTIES BEGAN NEGOTIATIONS OVER
A NEW BASIC COLLECTIVE BARGAINING AGREEMENT INCLUDING PROVISIONS RELATED
TO THE FSIP ORDERED LANGUAGE. SUCH NEGOTIATIONS TERMINATED ON MAY 21,
1980. HOWEVER, BASED ON ITS CONTENTION THAT FSIP LACKS THE AUTHORITY TO
ISSUE SUCH DECISIONS AND FOR REASONS MORE FULLY STATED IN ITS BRIEF, THE
RESPONDENT HAS REFUSED TO INCORPORATE IN ANY AGREEMENT THE LANGUAGE SET
FORTH BY FSIP OR THE RELATED PROVISIONS NEGOTIATED BY IT AND THE
CHARGING PARTY.

THE FACTS AND POSITIONS OF THE PARTIES IN THIS CASE ARE SUBSTANTIALLY
IDENTICAL TO THOSE INVOLVED IN STATE OF NEVADA NATIONAL GUARD 7 FLRA NO.
37(1981), APPEAL DOCKETED, NO. 82-7034(9TH CIR. JAN. 18, 1982). /3/
THUS, FOR THE REASONS MORE FULLY SET FORTH IN STATE OF NEVADA NATIONAL
GUARD, THE AUTHORITY FINDS THAT THE RESPONDENT HEREIN HAS FAILED AND
REFUSED TO COOPERATE IN IMPASSE DECISIONS AS SPECIFICALLY REQUIRED BY
SECTION 7116(A)(6) OF THE STATUTE AND HAS THEREFORE VIOLATED THAT
SECTION AS WELL AS SECTION 7116(A)(1) OF THE STATUTE.

FURTHERMORE, RELYING ON THE RATIONALE CONTAINED IN LONG BEACH NAVAL
SHIPYARD, LONG BEACH, CALIFORNIA, 7 FLRA NO. 16(1981) AND STATE OF NEW
YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS, 2 FLRA 185(1979), THE
AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(5) AND (8)
OF THE STATUTE BY ITS REFUSAL, RESPECTIVELY, TO EXECUTE THE NEGOTIATED
AGREEMENT REACHED WITH THE CHARGING PARTY AND ITS REFUSAL TO COMPLY WITH
THE FSIP DECISION.

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE RESPONDENT SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING OR REFUSING TO COOPERATE IN AND COMPLY WITH THE FEDERAL
SERVICE IMPASSES PANEL'S DECISION AND ORDERS RENDERED IN OREGON ARMY/AIR
NATIONAL GUARD, SALEM, OREGON, AND LOCAL 2986, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 77 FSIP 53(1978) AND OREGON
ARMY/AIR NATIONAL GUARD, SALEM, OREGON, AND LOCAL 2986, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 79 FSIP 4(1979).

(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 CHARGING PARTY:

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. THE TECHNICIAN SHALL HAVE THE OPTION OF WEARING EITHER THE
MILITARY UNIFORM OR THE

STANDARD CIVILIAN ATTIRE ON A DAY-TO-DAY BASIS.

(B) ADOPT THE PROVISIONS PREVIOUSLY NEGOTIATED WITH THE CHARGING
PARTY REGARDING THE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF
THE MILITARY UNIFORM MAY BE REQUIRED AND INCORPORATE SUCH AGREEMENT IN
THE COLLECTIVE BARGAINING AGREEMENT WITH THE CHARGING PARTY.

(C) POST AT ITS FACILITIES WHEREVER 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 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 OF REGION IX, 530 BUSH STREET,
SUITE 542, SAN FRANCISCO, CALIFORNIA, 94102, 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 13, 1982

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

NOTICE OF 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 IN AND COMPLY WITH THE FEDERAL
SERVICE IMPASSES PANEL'S DECISIONS AND ORDERS RENDERED IN OREGON
ARMY/AIR NATIONAL GUARD, SALEM, OREGON, AND LOCAL 2986, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 77 FSIP 53(1978)
AND OREGON ARMY/AIR NATIONAL GUARD, SALEM, OREGON, AND LOCAL 2986,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 79 FSIP
4(1979), REGARDING THE ATTIRE TO BE WORN BY NATIONAL GUARD TECHNICIANS.

WE WILL ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING
AGREEMENT WITH LOCAL 2986, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO:

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. THE TECHNICIAN SHALL HAVE THE OPTION OF WEARING EITHER THE
MILITARY UNIFORM OR THE

STANDARD CIVILIAN ATTIRE ON A DAY-TO-DAY BASIS.

WE WILL ADOPT THE PROVISIONS PREVIOUSLY NEGOTIATED WITH LOCAL 2986,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, REGARDING THE
CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
UNIFORM MAY BE REQUIRED AND INCORPORATE SUCH AGREEMENT IN THE COLLECTIVE
BARGAINING AGREEMENT WITH THAT LABOR ORGANIZATION.

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.

(AGENCY OR ACTIVITY)

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 IX,
530 BUSH STREET, SUITE 543, SAN FRANCISCO, CALIFORNIA, 94102, AND WHOSE
TELEPHONE NUMBER IS (415) 556-8105.

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

/1/ OREGON ARMY/AIR NATIONAL GUARD, SALEM, OREGON, AND LOCAL 2986,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 77 FSIP
53(1978)

/2/ OREGON ARMY/AIR NATIONAL GUARD, SALEM, OREGON, AND LOCAL 2986,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 79 FSIP
4(1979).

/3/ FOLLOWING ISSUANCE OF THE FSIP DECISIONS AND ORDERS, THE
RESPONDENT IN THE INSTANT CASE, UNLIKE THE RESPONDENT IN STATE OF NEVADA
NATIONAL GUARD, MET AND NEGOTIATED WITH THE CHARGING PARTY OVER THE
ISSUE OF TECHNICIAN ATTIRE. HOWEVER, THE RESPONDENT, ULTIMATELY,
REFUSED TO SIGN OFF ON THE AGREEMENT REACHED AND, THUS HAS FAILED TO
COMPLY WITH THE FSIP DECISION AND ORDER.