[ v25 p447 ]
25:0447(30)CA
The decision of the Authority follows:
25 FLRA No. 30
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, PORT
OF ENTRY,SAN YSIDRO,
CALIFORNIA
Respondent
and
IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2805, AFL-CIO
Charging Party
Case No. 8-CA-50544
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent and the General Counsel to the attached decision
of the Administrative Law Judge. The case concerns whether the
Respondent violated section 7116(a)(1) of the Federal Service
Labor-Management Relations Statute by prohibiting an employee from
wearing a union button, or lapel pin, on his uniform while on duty.
II. Background
The Respondent employs about 50 immigration inspectors at the San
Ysidro Port of Entry, working three shifts. The inspectors are rotated
among work areas at half-hour intervals each workday. They are
supervised by a single first-line supervisor each day, but may be
supervised by any of eight first-line supervisors are subordinate to
three operations supervisors. The three operations supervisors are
subordinate to the assistant port director, who in turn is subordiante
to the port director.
The inspectors are required to wear a uniform, composed of a light
blue shirt with an INS insignia on the arm, dark blue pants, black shoes
and socks, a black belt, and a tie with a tie tack. No tie is worn in
the summer. A badge is worn on left pocket of the shirt and a name
plate is worn on the right pocket.
The Respondent's regulations and the inspectors' handbook describe
the uniform requirements. First-line supervisors are responsible for
ensuring that the inspectors comply with the uniform requirements. The
inspectors' handbook states that the uniform should be devoid of
ornaments which are not part of the uniform. However, the inspectors
have been free to select their own tie tacks and belt buckles.
The inspectors have worn a variety of ornaments with their uniforms,
aside from buttons issued by the Respondent, without objections from
management, including a small pin in the shape of an Olympic torch sold
by an employee recreation association and an assortment of tie tacks and
belt buckles. The Union president, Stark, has worn tie tacks depicting
a football helmet, cartoon characters, handcuffs, aircraft, and small
sign reading "I love America." In 1984 Stark wore a team button, 2 and
1/4 inches in diameter, during the major league baseball playoffs and
the World Series. The first-line supervisors did not object to these
ornaments.
From May to August 1985, Stark wore a union lapel pin on the right
pocket of his uniform shirt without objection by the first-line
supervisors. Shaped like a shield, the pin is about 1/2 inch by 3/8
inch in size, is colored red, white, and blue, and bears the initials
"A.F.G.E., AFL-CIO." The initials are recognizable within two feet of
the pin. From a greater distance the pin appears to be a patriotic
emblem.
In August 1985, Stark wore the pin when entering the office of an
operations supervisor. The port director, Kelliher, happened to be
there. Kelliher asked about the pin and was told that it was a union
pin. Kelliher directed Stark to remove the pin. Stark complied.
Kelliher testified that he told Stark to remove the pin because it
contained a union logo. In his view, everything on the uniform should
pertain to law enforcement, to avoid questions from the public which
might distract an inspector from his duties.
III. Judge's Decision
The Judge concluded that the Respondent's action in prohibiting Stark
from wearing the union lapel pin with his uniform interfered with
Stark's rights under section 7102 of the Statute and, therefore, the
Respondent had violated section 7116(a)(1) of the Statute as alleged.
He based his conclusion upon the unobtrusive nature of the pin and the
absence of any showing that wearing the pin caused any confusion or
interference with the duties and responsibilities of the inspectors. He
recommended that the Respondent be ordered to cease and desist from
prohibiting Stark or any other immigration inspectors from wearing the
union membership button with their uniform while on duty.
IV. Positions of the Parties
The respondent argues that section 7102 does not give its uniformed
inspectors the right to wear union insignia when they are on duty. The
Respondent also claims that the Union waived the employees' right to
wear union insignia under section 7102 when it failed to object to the
restrictions on ornaments in the inspector's handbook. Finally,
assuming that the Authority affirms the Judge's conclusion that a
violation has been committed, the Respondent argues that the Judge's
remedy should be amended to authorize only the wearing of pins of the
same size as Stark's lapel pin.
The General Counsel supports the Judge's decision, but excepts to the
Judge's order, which directed no affirmative action other than posting
of the notice. The General Counsel argues that the Respondent should be
affirmatively ordered to permit Stark, or any other uniformed
inspectors, to wear the union button or any other insignia that does not
detract from the uniform, as well as "insigna on behalf or any other
labor organization that does not detract from the uniform"
V. Analysis
A. The violation
We agree with the Judge's conclusion that the Respondent violated the
Statute as alleged in the complaint.
Under section 7106(b)(1) of the Statute, an agency may elect not to
bargain over the "means" of performing work. The Authority has defined
the "means" of performing work to be "any instrumentality, including an
agent, tool, device, measure, plan or policy used by the agency for the
accomplishing or the furthering of the performing of its work." National
Treasury Employees Union and U.S. Customs Service, Region VIII, San
Francisco, California, 2 FLRA 255, 258 (1979). Disputes involving union
proposals relating to an agency's choice of a particular means, such as
the composition of a uniform, are resolved on the basis of whether the
proposals directly interfere with the purpose for which the agency has
required a uniform to be worn. For example, American Federation of
Government Employees, Local 217 and Veterans Administration Medical
Center, Augusta, Georgia, 21 FLRA No. 13 (1986); and U.S. Department of
Justice, Immigration and Naturalization Service and National Border
Patrol Council, Local 1613, American Federation of Government Employees,
18 FLRA No. 3 (1985). There is no question that the requirement that a
uniform be worn by the bargaining unit employees involved in this case
is an exercise of the Agency's right to determine the means by which
Agency operations are conducted. See American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council and U.S. Department of Justice, Immigration and Naturalization
Service, 8 FLRA 347 (1982), reversed as to other matters sub nom.
Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984); and AFGE,
National Immigration and Naturalization Service Council and Department
of Justice, INS, 5 FLRC 105 (1977).
Apart from any rights a union may have to bargain over the
composition of a uniform, employees have the right under section 7102 of
the Statute "to form, join, or assist any labor organization(.)" This
section encompasses an employee's right, in the absence of special
circumstances, to wear union insignia at the work place. United States
Army Support Command, Fort Shafter, Hawaii, 3 FLRA 796 (1980). In Fort
Shafter, in determining whether special circumstances existed, the
Authority examined all the circumstances, including the size and nature
of the insignia (whether or not the insignia was conspicuous), and
whether wearing of the insignia could cause confusion among the public
customers of the hotel as to whether the two hotel service employees
involved were employed by the agency or the union. Thus, in Fort
Shafter, the Authority held that the agency did not violate the Statute
when it prohibited two hotel service employees from wearing union
steward badges when dealing with members of the public. The
Administrative Law Judge specifically found in that case that the badges
were "not small or inconspicuous," and further that some "customers were
confused" about whether the employees were employed by the hotel or the
union. Fort Shafter, at 805. The Authority has also found a special
circumstance to exist when the union insignia involved could reasonably
have been interpreted as promoting illegal concerted activity and as
being disruptive of agency operations. Federal Aviation Administration,
Spokane Tower/Approach Control and Professional Air Traffic Controllers
Organization, MEBA, AFL-CIO, 15 FLRA 668 (1984).
The Authority's interpretation of section 7102 as guaranteeing an
employee's right to wear union insignia in the absence of special
circumstances is consistent with the approach taken in the private
sector under the National Labor Relations Act. See Midstate Telephone
Corporation, 262 NLRB 1291, 1292 (1982) ("It is well established that in
the absence of 'special circumstances,' employees have a Section 7 right
. . . to wear insignia at work referring to unions or other matters
pertaining to working conditions for the purpose of mutual aid or
protection.") See also Republic Aviation Corporation v. NLRB, 324 U.S.
793 (1945). The NLRB has found special circumstances to exist when the
interest of employees in wearing union insignia is outweighed by an
employer's legitimate interest in maintaining discipline, safety, or
efficient production in the workplace. For example, Southwestern Bell
Telephone Company, 200 NLRB 667 (1972); and Pratt & Whitney Aircraft
Division, 134 NLRB 1632 (1961).
In this case, there has been no showing that the wearing of the union
lapel pin interfered in any way with the purpose for which the Agency
requires the uniform to be worn. There is, therefore, no conflict with
the Agency's right under section 7106(b)(1) to determine the means of
performing the Agency's work. Further, the Judge found, and we agree,
that there are no special circumstances in this case so as to negate the
employee's right under section 7102 to wear the insignia. Specifically,
the Judge found that the pin is small and unobtrusive and did not and
could not reasonably be expected to interfere with Stark's work
performance or the performance of other inspectors, or interfere with
the public's ability to recognize Stark as a representative of a
Government authority. We agree with these findings and conclude that
Respondent's action interfered with Stark's rights under section 7102
and violated section 7116(a)(1).
Finally, the Respondent's contention that the Union waived the
employees' rights under section 7102 by failing to object to the
restrictions on the wearing of ornaments which may exist in the
inspectors' handbook cannot be sustained. The bargaining representative
has no authority to waive rights guaranteed employees under section 7102
of the Statute. Department of Health and Human Services, Social
Security Administration, Southeastern Program Service Center, 21 FLRA
No. 93 (1986) at n.4 and accompanying text.
B. The remedy
We find that the Respondent violated the Statute by prohibiting the
wearing of particular union insignia in particular circumstances.
Therefore, in our order we shall direct that the Respondent cease and
desist from interfering with the wearing of the insignia involved, or
similar insignia.
The Judge clearly was correct that the violation did not merely
affect Stark's right under section 7102 of the Statute, but also the
statutory rights of the other inspectors at the San Ysidro Port of
Entry. As such, we agree with the General Counsel that the purposes and
policies of the Statute require an order which affirmatively directs the
Respondent to permit Stark and other uniformed inspectors to wear the
lapel pin of the American Federation of Government Employees, AFL-CIO or
similar insignia while at work.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, it is ordered that the
United States Immigration and Naturalization Service, Port of Entry, San
Ysidro, California, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by
prohibiting Ted Stark or any other immigration inspector from
wearing the American Federation of Government Employees, AFL-CIO,
union lapel pin or similar union insignia while on duty.
(b) In any like or related manner interfering with,
restraining, or coercing its 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
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Permit Mr. Ted Stark or any other immigration inspector to
wear an American Federation of Government Employees, AFL-CIO,
lapel pin or similar union insignia while they are on duty.
(b) Post at its facilities copies of the attached Notice on
forms furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Port Director
and shall be posted and maintained 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 ensure that the
Notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., February 2, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR
RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT prohibit Ted Stark or any other immigration inspector
from wearing the American Federation of Government Employees, AFL-CIO,
union lapel pin or similar union insigna while on duty.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL permit Ted Stark or any other immigration inspector to wear
an American Federation of Government Employees, AFL-CIO, lapel pin or
similar union insignia while they are on duty.
Dated: . . . By: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be alterned, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-50544
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, PORT OF ENTRY,
SAN YSIDRO, CALIFORNIA
Respondent
and
IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO
Charging Party
Deborah S. Wagner Esq. For General Counsel
Melainie Fitzsimmons, Esq. For Respondent
Mr. Richard Walker For Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on September 4, 1985, by Local 2805,
Immigration and Naturalization Service Council, American Federation of
Government Employees, AFL-CIO, (hereinafter called the Union or Local
2805), a Complaint and Notice of Hearing was issued on November 29, 1985
by the Regional Director for Region VIII, Federal Labor Relations
Authority, Los Angeles, California. The Complaint alleges that the
United States Immigration and Naturalization Service, Port of Entry, San
Ysidro, California, (hereinafter called the Respondent or INS), violated
Section 7116(a)(1) of the Federal Service Labor-Management Relations
Statute by virtue of its actions in forbidding a unit employee from
displaying a lapel pin bearing the logo and initials of the Union on his
uniform.
A hearing was held in the captioned matter on February 24, 1986, in
San Diego, California. All parties were afforded the opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on March 24 and March 21, 1986,
respectively, which have been duly considered. /1/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The INS has recognized American Federation of Government Employees
(National Immigration and Naturalization Council), AFGE, as the
collective bargaining agent of "all personnel of the Immigration and
Naturalization Service, except professionals, those assigned to Border
Patrol Sectors and those excluded from coverage by the Civil Service
Reform Act." Local 2805, the Charging Party, is the AFGE'S
representative at the San Ysidro, California, Port of Entry. Mr. Ted C.
Stark, an Immigration Inspector, at the time of the events described
herein was president of Local 2805.
The approximately fifty Immigration Inspectors employed at the San
Ysidro Port of Entry work on three separate shifts and are rotated from
one shift to another each pay period. During any given day, the
Immigration Inspectors rotate from one designated area to another every
half hour. Thus, as explained by Mr. Stark, an Inspector might work the
first half hour at pedestrian primary inspecting applicants for entry
approaching on foot, then be switched the second half hour to doing
secondary inspections on pedestrians, then be switched to a half hour
stint inspecting buses, and later be switched to a half hour assignment
of inspecting vehicle traffic. While the Inspectors are constantly
switching assignments on the half hour, the supervisors do not rotate
during the day and are assigned to one office for the entire day. Thus,
despite their half-hour rotations, the Immigration Inspectors remain
under one supervisor's supervision for the entire day. However, on any
given day, an Immigration Inspector can be assigned to any of the eight
first line supervisors. Over the first line supervisors are three
operations supervisors, who are subordinate to the Assistant Port
Director who in turn is subordinate to the Port Director.
While working at their inspection duties, the Immigration Inspectors
are required to wear a uniform which consists of a light blue shirt with
an INS insignia on the arm, dark blue pants, black shoes and socks, a
black belt and a tie with a tie tack. In the summer the uniform changes
to a short sleeve shirt without a tie. On the shirt the Immigration
Inspector wears a badge on the left shirt pocket and a name plate on the
right breast shirt pocket. The tie tack worn by Mr. Stark was a U.S.
Border Patrol. The INS did not have an official tie tack as of August
26, 1985 when the events underlying the instant complaint occurred.
Section 2415.01 of the Administrative Manual, entitled "Service
Uniforms -- Immigration Inspector" contains detailed specifications for
the uniform and Section 2415 entitled "Service Uniforms -- Inspections"
assigns the responsibility of making sure that the uniform is worn
properly to the first line supervisors. The Inspectors Officers'
Handbook under the title "Personal Appearance" provides in pertinent
part as follows: "Where a uniform is required, it should be complete in
all details and devoid of ornaments that are not part of the uniform."
Despite the proscription in the Officers' Handbook, Mr. Stark
testified, without contradiction, that a number of adornments have been
worn by the Inspectors over the years without any objection from
management. Thus, in 1984, just prior to the Olympics, the prespondent
issued a button reading "WE SERVE with Courtesy and Pride, I.N.S." which
was some 2 and 1/2 inches in diameter to its Inspectors. Although
wearing of the pin was optional, most Inspectors initially wore the pin
but as time wore on they ceased wearing it. Another ornament issued by
Respondent was a length of service pin, which was a 1/2 inch in
diameter. This pin was attached to the name plate; pocket flat, badge,
or necktie of the inspector who chose to wear it.
Aside from the above pins, it appears that the employees, with tacit
approval from management, also wore small pins in the shape of an
olympic torch which were sold by the Welfare and Recreation Office, an
employee association. These latter pins, unlike the Courtesy and Pride
buttons; have continued to be worn by the Inspectors. They are worn in
the same position as the length of service pin.
In addition to the olympic torch pin, according to Mr. Stark, there
have been a number of additional tie tacks and belts worn by the
Inspectors. The ornaments worn by Mr. Stark include tie tacks in the
shape of a football helmet, cartoon characters like Yosemite Sam and a
Smurf, handcuffs, aircraft and a small one inch sign reading "I Love
America".
Finally, Mr. Stark testified that in 1984 when the San Diego Padres
were in the playoffs and World Series, he wore a button depicting a
cartoon character swinging a bat and advertising the San Diego Padres.
This button was 2 and 1/4 inches in diameter.
Mr. Stark's testimony that he wore the above buttons or pins without
any objection from the Respondent stands uncontradicted in the record.
On or about August 26, 1985, Mr. Stark went into the Operations
Supervisor's office wearing a union pin, in the shape of shield bearing
the initials A.F.G.E., AFL-CIO, on the flap of his right shirt pocket.
The pin, red, white and blue in color, measured 1/2 inch by 3/8 inch.
/2/ Port Director Edward Kelliher, who happened to be in the office when
Mr. Stark walked in, asked Mr. Stark what the pin was. When Mr. Stark
informed Mr. Kelliher that it was a union pin, Mr. Kelliher told him to
"take the damn thing off". Mr. Stark immediately complied.
According to Mr. Stark, he had been wearing the union pin since May
without having had any objections from the various supervisors who had
observed him wearing it. At times he wore it on his tie and at other
times he wore it on his shirt pocket. According to Mr. Stark, no member
of the public had ever commented on the pin or asked its significance.
Further, according to Mr. Stark, the wearing of the pin had not confused
anyone with respect to whom his employer was.
Mr. Kelliher testified that he had Mr. Stark remove the union pin
because it contained a union logo. It was his opinion that everything
on a uniform should pertain to law enforcement, otherwise someone might
question the Inspector about the pin and thereby distract him from his
duties. According to Mr. Kelliher only the Courtesy and Pride button
and the length of service pins were adornments formally authorized by
INS. He considered the Border Patrol tie tack and the olympic torch pin
to be permissible although not expressly authorized. Further, according
to Mr. Kelliher, if he had observed Inspectors wearing the remaining
buttons or pins described, supra, such as football helmets, etc., he
would have requested that they be removed, although he admitted that the
regulations were silent as to the wearing of tie tacks.
Ms. Helen Fillman, a Supervisory Labor Relations Specialist,
testified that the Administrative Manual does not regulate tie tacks and
therefore the Inspectors were free to select their own tie tacks.
Discussion and Conclusions
The General Counsel, citing the Authority's decision in United States
Support Command, Fort Shafter, Hawaii, 3 FLRA 796 and the Supreme Court
Decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, takes the
position that in the absence of special circumstances the employees have
a right under the Statute to wear a union insignia at the workplace.
Thus, unless the insignia negates the purpose of the uniform and causes
confusion, interferes with discipline or work production, or interferes
with efficiency and safety, an employee is entitled to wear the union
button on his uniform. According to the General Counsel, inasmuch as
the special circumstances cited above have not been established,
Respondent interfered with Mr. Stark's Section 7102 right to support the
Union when it requested him to cease wearing the union button on his
uniform and thereby violated Section 7116(a)(1) of the Statute.
The Respondent, on the other hand, relying primarily on the
negotiability decision of the Federal Labor Relations Council in AFGE,
National Immigration and Naturalization Service Council & INS, FLRC No.
76A-26, January 18, 1977, takes the position that wearing of the union
button or pin would negate the purposes of the uniform and cause
confusion. In such circumstances the Respondent's action in denying Mr.
Stark the right to wear the union pin or button was not violative of
Section 7116(a)(1) of the Statute. The Respondent further argues that
in any event there was no violation of the employee's Section 7102
rights since there was no showing that Mr. Stark was engaged in
representational activity or that collective bargaining was in progress.
The Respondent also argues that there was no unfair labor practice
since the Respondent's activity was at best isolated and devoid of any
intent to discourage union activity. Finally, Respondent argues that
management rights are preeminent, and that under the circumstances
present herein, it was within its rights in banning the wearing of the
union button or pin. In support of this latter argument, Respondent
states that "this adornment has the potential to cause confusion in the
eye of the beholder, to detract from the law enforcement purposes of the
uniform, and it had the potential to cause disciplinary problems amongst
the employees."
It is clear from the Federal Labor Relations Council's decision in
AFGE, National Immigration and Naturalization Service Council & INS,
supra, the Authority's decision in Fort Shafter, supra, and the Supreme
Court's decision in Republic Aviation, supra, that in the absence of
Special circumstances, employees have a right both under the Statute and
the NLRA to wear a union insignia at the work place.
In reaching its decision in AFGE, National Immigration &
Naturalization Service Council & INS, supra, that a union proposal to
wear a 3x4 inch union insignia as an arm patch on an INS inspector's
uniform was non-negotiable due to the fact that the wearing of the patch
would cause confusion and negate the purposes of the uniform, the
Council stated, among other things, " . . . that the wearing of
inconspicuous union buttons or other indicia of union affiliation, which
do not negate the purpose for which uniforms are required, would not be
violative of Section 12(b)(5)" of Executive Order 11491. Similarly, in
Fort Shafter, supra, the Authority, while denying employees the right to
wear a union steward's badge approximately 3 inches long by one and
one-half inches wide because of its "conspicuous nature", stated "the
Authority agrees with the (Administrative Law Judge's) conclusion that
in the absence of special circumstances, employees have a riqht under
the Statute to wear union insignia at the work place". In Fort Shafter,
the employees sought to wear the union badge on their waiter's uniforms.
With respect to the wearing of union buttons or pins under the NLRA,
which also accords employees the right to "assist" a labor organization,
the Supreme Court in Republic Aviation, supra, upheld a National Labor
Relations Board finding that, in the absence of unusual or special
circumstances, employees had a right to wear union buttons at the work
place.
In the instant case there has been no showing, whatsoever, that the
wearing of the half inch (approximately the size of a dime) union button
has in any way interfered with the work performance of Mr. Stark or any
other Inspector. In fact, the red, white and blue shield which is the
union button would appear to the casual observer to be a patriotic
emblem from any distance further than two feet. It is only from a
distance of approximately two feet or less that one can discern the
letters "A.F.G.E., AFL-CIO".
Considering the unobtrusive nature of the dime size union pin, as
well as the absence of any showing that the wearing of the pin caused
any confusion or interference with the duties and responsibilities of
the Inspectors, I find that Respondent's action in prohibiting Mr. Stark
from wearing the union button on his uniform while he was in contact
with the public interfered with Mr. Stark's Section 7102 rights and
thereby violated Section 7116(a)(1) of the Statute. Cf. Consolidated
Casino Corp., 164 NLRB No. 132; Floridan Hotel of Tampa, Inc., 137 NLRB
No. 161, enf. as modified on other grounds, 318 F. 2d 545; and
Department of Transportation, FAA, Aeronautical Center, A/SLMR No. 117,
1 A/SLMR 556, rev. in part on other grounds, 1 FLRC 246, where the NLRB
and the Assistant Secretary of Labor on the basis of similar facts
reached similar conclusions under the NLRA and Executive Order 11491,
respectively.
Contrary to Respondent, I can not find that the deprivation of a
Section 7102 right is "isolated" solely because only one employee was
involved. This is particularly true when it is clear that the
prohibition against wearing a union button is equally applicable to the
fifty remaining inspectors working in the San Ysidro, California Port of
Entry. Nor can I find, as contended by Respondent, that the instant
complaint should be dismissed since Mr. Stark was not actively engaged
in either collective bargaining or other union representational activity
at the time he was instructed by Respondent's representative to remove
the pin bearing the union logo. In this connection I do not read the
Statute as limiting an employee's Section 7102 rights to solely those
occasions when he is involved in either collective bargaining or union
representation. Section 7102 gives an employee the right, among other
things, to assist a labor organization. Wearing a union button or pin
constitutes a form of advertising which exhibits support for the union
and thereby assists a union in search of members. Accordingly, I find
that, absent special circumstances, interference with such right is
violative of Section 7116(a)(1) of the Statute.
Having concluded that the prespondent violated Section 7116(a)(1) of
the Statute by prohibiting Mr. Ted Stark from wearing a union membership
button, I recommend that the Federal Labor Relations Authority issue the
following order designed to effectuate the purposes and policies of the
Statute.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute the Authority hereby orders
that the United States Immigration and Naturalization Service, Port of
Entry, San Ysidro, California, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by
prohibiting Mr. Ted Stark or any other Immigration inspector from
wearing an A.F.G.E., AFL-CIO union membership button while on
duty.
(b) In any like or related manner interfering with restraining,
or coercing its 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
purposes and policies of the Statute.
(a) Post at its facilities located at the San Ysidro,
California Port of Entry, 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 Port Director
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. The Port Director shall take reasonable steps to insure
that such notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director of Region VIII, Federal Labor
Relations Authority, 350 South Figueroa Street, 10th Floor, Los
Angeles, California, within 30 days from the date of this Order as
to what steps have been taken to comply herewith.
/s/ BURTON S. STERNBURG
Administrative Law Judge
Dated: May 20, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Subsequently, on April 23, 1986, Counsel for Respondent,
following the expiration of time set for filing briefs and without
making an appropriate motion, filed an "ADDENDUM" to its timely filed
closing brief. On May 9, 1986, General Counsel moved to Strike the
"ADDENDUM" filed by Respondent. Having considered the matter, I find
that the "ADDENDUM" fails to comply with the Authority's Rules and
Regulations. Accordingly, the General Counsel's Motion to Strike the
"ADDENDUM", should be, and hereby is granted.
(2) Unless one was very close to Mr. Stark, it would be almost
impossible to make out the A.F.G.E., AFL-CIO initials. From a distance
the union pin looked to the undersigned, because of its colors and
stripes, like some patriotic insignia.
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce our employees by
prohibiting Mr. Ted Stark or any other Immigration Inspector from
wearing an A.F.G.E., AFL-CIO union membership button while on duty.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . . (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 questions 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 VIII,
whose address is: 350 S. Figueroa Street, 10th Floor, Los Angeles, CA
90071, and whose telephone number is: (213) 688-3805.