American Federation of Government Employees, Local 2986, AFL-CIO v. Federal Labor Relations Authority, AFL-CI

• Decision Date: 31 October 1985
• Docket Number: Nos. 84-7609,84-7654 and 84-7655,AFL-CI,P,s. 84-7609
• Citation: 775 F.2d 1022
• Parties: 120 L.R.R.M. (BNA) 3162 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2986,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, and Oregon National Guard and United States Department of Defense, Intervenors. NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-125, R12-132, R12-146, R12-150 AND R12-105, and Locals R12-130, and R12-145, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, and California National Guard, Nevada National Guard, and United States Department of Defense, Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1022

775 F.2d 1022

120 L.R.R.M. (BNA) 3162

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2986, AFL-CIO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, and Oregon National Guard and United States Department of

Defense, Intervenors.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS

R12-125, R12-132, R12-146, R12-150 AND R12-105, and Locals R12-130, and R12-145, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, and California National Guard, Nevada National Guard, and United

States Department of Defense, Intervenors.

Nos. 84-7609, 84-7654 and 84-7655.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1985.

Decided Oct. 31, 1985.

William J. Stone, Mark D. Roth, American Federation of Government Employees, Washington, D.C., Michael J. Kelly, West Coast Counsel, Burbank, Cal., for petitioner.

William Tobey, Ruth Peters, Federal Labor Relations Authority, Marc Richman and William Kanter, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for respondent.

On Petition for Review of Decisions of the Federal Labor Relations Authority

Before ALARCON and POOLE, Circuit Judges, and ORRICK, ^* District Judge.

POOLE, Circuit Judge:

The American Federation of Government Employees and the National Association of Government Employees, (collectively the "Unions"), petition to set aside orders of the Federal Labor Relations Authority dismissing their respective complaints against the Oregon Army and Air National Guard, and the California and Nevada National Guards (collectively the "National Guard" or "Guard"), for refusing to include in their collective bargaining agreements a provision that would permit civilian technicians to wear civilian clothing at work. We affirm.

I.

Each of these cases arose out of an impasse in collective bargaining negotiations over union proposals to give Guard civilian technicians the option of wearing either military uniforms or agreed-upon standard civilian attire while performing certain of their duties. The Federal Service Impasses Panel ("Panel") was requested in each instance to resolve the dispute. The Panel directed the parties to adopt language in their collective bargaining agreements permitting the option of wearing civilian clothing and to negotiate concerning circumstances when military uniforms could be required. In each case, the Guard failed to comply with the Panel's order. Complaints were then issued by the Authority against the Oregon, California, and Nevada Guards alleging the commission of unfair labor practices because of their failure to comply with the Panel's orders.

In lieu of an evidentiary hearing, the parties to the Nevada and Oregon cases stipulated the record, permitting direct decision by the Authority. The Authority first decided the Nevada Guard case, ¹ concluding that the Guard had violated Sec. 7116(a)(1) and (6) ² of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Secs. 7101 et seq. (the Act). A subsequent motion for reconsideration was denied. Relying on its Nevada Guard decision, the Authority similarly found a violation of the Act by the Oregon Guard. ³

The California Guard case was decided by an Administrative Law Judge on motion for summary judgment by the Authority's General Counsel. The ALJ determined that the California Guard had committed unfair labor practices in violation of Sec. 7116(a)(1), (5), (6), and (8). ⁴ The ALJ's findings and conclusions were subsequently adopted in large part by the Authority, which relied on its prior Nevada decision. ⁵

All three National Guard units petitioned us for review pursuant to 5 U.S.C. Sec. 7123(a). While those petitions were pending, the Second Circuit issued its decision in a case involving similar issues, State of New York, Division of Military and Naval Affairs (Albany, New York) v. FLRA, 696 F.2d 202 (2d Cir.1982) appeal after remand, 757 F.2d 502 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985). The court found that the Authority had failed to consider whether the Guard's policy of requiring civilian technicians to wear military uniforms concerns a management right to determine unilaterally the methods and means of performing work under Sec. 7106(b)(1) ⁶ of the Act. Accordingly, the court remanded the case to the Authority for the development of a record appropriate for judicial review concerning whether civilian attire is a negotiable matter.

The Authority then sought and obtained from this court a remand of the Oregon, California, and Nevada Guard cases for further consideration of the applicability of Sec. 7106(b). A notice of reopened proceedings was issued, and position statements and arguments were requested of and submitted by the parties on "whether the attire which National Guard technicians wear while engaged in their daily duties as civilian technicians is a matter which is negotiable only at the election of the [employer] pursuant to section 7106(b)(1) of the Statute." The Authority concluded in each case "that the determination by the [National Guard] that technicians must wear the military uniform while performing technician duties constitutes management's choice of 'methods, and means of performing work' within the meaning of section 7106(b)(1) of the statute." The Authority relied upon its New York Guard decision on remand from the Second Circuit, which reached the same result, Division of Military and Naval Affairs, State of New York, Albany, NY and New York Council, Association of Civilian Technicians, 15 FLRA No. 65 (1984), since the facts and positions of the parties were found to be substantially identical.

The petitions concerning the Authority's rulings in the California and Nevada Guard cases were consolidated on appeal, and were heard simultaneously with the Oregon Guard case. The Nevada, California, and Oregon National Guards, and the United States Department of Defense, intervened as respondents.

II.

Pursuant to 5 U.S.C. Sec. 7123(c), judicial review of the Authority's orders is on the record in accordance with the Administrative Procedure Act, 5 U.S.C. Sec. 706, which provides that agency action shall be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A); National Treasury Employees Union v. FLRA, 767 F.2d 1315, 1316 n. 3 (9th Cir.1985); National Treasury Employees Union v. FLRA, 732 F.2d 703, 705 (9th Cir.1984); New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502, 507 (2nd Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985) ("New York Guard "). Considerable deference is to be given the Authority "when it exercises its 'special function of applying the general provisions of the Act to the complexities' of federal labor relations." New York Guard, 757 F.2d at 507 (quoting Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (citations omitted)). The factual findings of the Authority are conclusive if supported by substantial evidence on the record as a whole. 5 U.S.C. Sec. 7123(c). We will defer to the Authority's interpretation of the Act if it is "reasoned and supportable." National Treasury, 732 F.2d at 705 (citing Navy Public Works Center v. FLRA, 678 F.2d 97, 99 (9th Cir.1982)).

III.

The primary issue presented for our review is whether substantial evidence supports the Authority's decision that civilian technician attire is a "methods and means of performing work," and thus a subject for bargaining only at the employer's election pursuant to 5 U.S.C. Sec. 7106(b)(1). Three other circuits have recently considered the issue, and were persuaded on substantially similar factual records to defer to the Authority. National Association of Government Employees, Locals R5-91, R5-107, and R5-120 v. FLRA, 771 F.2d 1449 (11th Cir.1985); American Federation of Government Employees, Local 3013 v. FLRA, 762 F.2d 183 (1st Cir.1985) ("Maine and Puerto Rico Guards "); New York Guard, 757 F.2d 502 (2nd Cir.1985). We are convinced that their reasoning is sound.

In its decision on our remand, the Authority concluded that the uniform requirement fosters military discipline, promotes uniformity, encourages esprit de corps, increases the readiness of military forces for early deployment, and enhances the identification of the National Guard as a military organization. The Authority noted that the Guard is a military organization with a military mission and that the Guard Technician workforce was established primarily to enable the Guard to carry out that mission. It relied in part on court decisions that had found a rational relationship between the Guard's ability to fulfill its mission and the uniform requirement. See Klotzbach v. Callaway, 473 F.Supp. 1337, 1343 (W.D.N.Y.1979); Syrek v. Pennsylvania Air National Guard, 437 F.Supp. 236, 240 (W.D.Pa.1977); Bruton v. Schnipke, 404 F.Supp. 1032 (E.D.Mich.1975); Bruton v. Schnipke, 370 F.Supp. 1157, 1163 (E.D.Mich.1974). The Authority concluded that those decisions, and the facts in the record, demonstrated 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." Division of Military and Naval Affairs, State of New York, Albany, NY and New York Council, Association of Civilian Technicians, 15 FLRA No. 65 at 294. ⁷

The petitioners argue that, because the findings of the Impasse Panel concerning the relationship between the uniform requirement and the performance of Guard duties were contrary to those of the Authority, substantial evidence does not support the Authority's decision. They correctly note that the Authority failed to discuss the Panel findings in its decision or to provide any basis for rejecting those findings. That the Authority reached a different factual conclusion from the Panel,...