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38 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

SAN DIEGO SECTOR

SAN DIEGO, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1613

NATIONAL BORDER PATROL COUNCIL

(Charging Party)

8-CA-70694

DECISION AND ORDER

November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Administrative Law Judge's Decision. The General Counsel filed an opposition to the Respondent's exceptions. Additionally, the parties filed submissions in response to the Authority's request for supplementary briefs.

The complaint alleged that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by preventing a bargaining unit employee from displaying a lapel pin bearing the logo and initials of the Union on his uniform.

The Judge found that the Respondent's conduct violated section 7116(a)(1) of the Statute. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision, and the entire record, we adopt the Judge's decision, for the reasons set forth below.

II. Background

A. Prior Authority Decisions

On February 2, 1987, the Authority issued its decision in United States Immigration and Naturalization Service, Port of Entry, San Ysidro, California, 25 FLRA 447 (1987) (INS 1). In that case, the Authority found that the agency violated section 7116(a)(1) of the Statute by prohibiting an immigration inspector from wearing a union pin on his uniform. The Authority found that the agency's right under section 7106(b)(1) of the Statute to determine the means by which agency operations will be conducted included the right to require bargaining unit employees to wear a uniform. The Authority also found that, in the absence of special circumstances, an employee has a right under section 7102 of the Statute to wear union insignia at the workplace.

The Authority found that there was no evidence that wearing the union lapel pin interfered with the purpose for which the agency required the uniform to be worn. The Authority determined, therefore, that there was no conflict between an employee's right to wear union insignia under section 7102 and management's right to determine the means of performing the agency's work under section 7106(b)(1). Additionally, the Authority found that special circumstances were not present which would negate the employee's right under section 7102 to wear the union insignia. Accordingly, the Authority concluded that directing the employee to remove the pin violated the Statute. See also United States Department of Justice, Immigration and Naturalization Service, Port of Entry, San Ysidro, California, 25 FLRA 490 (1987) (INS 2) (Chairman Calhoun dissenting), where the Authority found that the prohibition against wearing a union penholder or other union insignia on immigration inspector uniforms violated section 7116(a)(1) of the Statute.

B. Facts

During March, 1987, Albert Cummings, a border patrol agent and the Charging Party's Chief Steward, began wearing a union lapel pin. Administrative Law Judge's Decision at 2. In April 1987, Cummings wore the pin at a meeting with management at which Cummings was representing an employee. Id. at 3. On April 24, 1987, the assistant patrol agent in charge of the Respondent's Patrol Station at Brown Field, California directed Cummings to remove the pin. Id.

The Union informed the Respondent of the Authority's decision in INS 1 and of the Union's view that the order directing Cummings to remove the pin violated the Statute. Id. The Union also requested that the Respondent decide whether the lapel pin could be worn on the uniform while employees were on duty. Id. The Respondent advised the Union that the Respondent's Administrative Manual did not authorize the lapel pin to be worn. Id. at 3. The Respondent also stated that the decision in INS 1 was not applicable because a different uniform was involved and because the mission of border patrol agents is different from the mission of immigration inspectors. Id. at 3-4.

III. Administrative Law Judge's Decision

The Judge found that the Authority's decision in INS 1 was dispositive of the complaint in this case. Therefore, he found a violation of the Statute. In reaching his conclusion, the Judge compared the facts presented in INS 1 with the facts presented here and found that: (1) the lapel pin which Cummings sought to wear was identical to the pin involved in INS 1; (2) the uniform worn by border patrol agents is "nearly identical" to that worn by immigration inspectors; (3) border patrol agents have less contact with the public than do immigration inspectors; and (4) border patrol agents, unlike immigration inspectors, generally have been prohibited from wearing anything on their uniforms other than authorized insignia. Id. at 4-5. The Judge then noted the absence of any evidence that the wearing of the union lapel pin interfered in any way with the purpose for which the Respondent required the uniform to be worn, and stated that the Respondent's concerns that wearing the lapel pin would cause morale problems and be divisive were speculative. Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1) of the Statute by directing Cummings to remove the lapel pin.

IV. Positions of the Parties

A. The Respondent's Exceptions

The Respondent argues that this case is distinguishable from the Authority's decisions in INS 1 and INS 2. In particular, the Respondent argues that: (1) the work of border patrol agents has a more military character or nature than does that of immigration inspectors; (2) there are differences between the uniforms of border patrol agents and immigration inspectors; and (3) the prohibition against the wearing of anything but authorized insignia had not been enforced in INS 1 as it has in this case. The Respondent also argues that the Judge improperly required management to demonstrate that the wearing of union insignia caused actual interference with the accomplishment of the Respondent's mission.

The Respondent also excepts to the Judge's statement of facts which, in the Respondent's view, implied that Cummings was engaged in protected activity when he was observed wearing the lapel pin and later was directed to remove it. The Respondent argues that Cummings was not performing representational responsibilities when he was directed to remove the pin and that, in any event, there was no such allegation in the unfair labor practice complaint.

Finally, the Respondent argues that its decision to insist on strict uniform requirements is integral to its rights to determine its organization and mission under section 7106(a)(1) of the Statute. The Respondent also argues that the wearing of the uniform concerns the methods and means of performing work under section 7106(b)(1) of the Statute.

B. The General Counsel's Opposition

The General Counsel argues that the Respondent's exceptions lack merit and urges the Authority to adopt the Judge's Decision.

C. Parties' Additional Submissions

On April 23, 1990, the Authority issued an Order directing the parties to file supplemental briefs concerning the effect if any, on the issues raised herein, of the United States Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, U.S. , 110 S.Ct. 1623 (1990) (Internal Revenue Service). In Internal Revenue Service, the Court addressed, among other things, the relationship between management rights enumerated in section 7106(a) of the Statute and other sections of the Statute, as well as provisions of law and regulation outside the Statute. Because the case here raised issues concerning the interplay of various statutory provisions, including those relating to the exercise of management rights, the Authority requested the parties to address the relationship between the Respondent's rights enumerated in section 7106(a) and (b) with rights that adhere to employees and the Union under sections 7102 and 7106(b)(2) and (b)(3) of the Statute.

Briefs were filed by the Respondent, the General Counsel and the Union.⁽¹⁾ Both the General Counsel and the Union argue that Internal Revenue Service is inapplicable because the Court addressed only management rights under section 7106(a), and there are no such management rights involved here. They also argue that sections 7106(b)(2) and 7106(b)(3) are not relevant. The General Counsel contends that the wearing of union insignia stems from section 7102 of the Statute and not from sections 7106(b)(2) or 7106(b)(3). The Union asserts that the wearing of a lapel pin does not involve a procedure or an appropriate arrangement. The Union also sets forth an argument, not previously raised, that the right of Federal employees to wear union insignia is protected by the First Amendment to the U.S. Constitution.⁽²⁾

The Respondent asserts that the Court's decision demonstrates that no balancing needs to be done between sections 7102 and 7106 and, further, that section 7102 cannot operate to affect the exercise of management's rights under either section 7106(a) or section 7106(b)(1). In this regard, the Respondent claims that management's right to require the wearing of a uniform and, particularly, an unadorned uniform, stems from both section 7106(a) as well as section 7106(b)(1).⁽³⁾ The Respondent also argues that any consideration of sections 7106(b)(2) and 7106(b)(3) is inappropriate.

V. Analysis and Conclusions

A. Internal Revenue Service is Inapplicable

In resolving the issue presented in this case, we have determined that the analysis used by the Supreme Court in Internal Revenue Service to assess the interplay between various statutory provisions is not applicable here. As indicated, the Court focused on the exercise of management rights and the interplay, in part, among various provisions of the Statute. More specifically, the Court discussed the relationship between the prefatory language in section 7106(a) providing that "nothing in this chapter shall affect the authority of any management official of any agency . . ." and the exercise of a management right contained in section 7106(a)(2)(B).

As discussed below, the dispute in this case does not involve the exercise of any of the enumerated management rights contained in section 7106(a) of the Statute. Rather, the dispute involves a matter falling within section 7106(b)(1) of the Statute. The prefatory language contained in section 7106(a), discussed by the Court, does not, by its terms, apply to section 7106(b)(1) of the Statute. Instead, the exercise of management rights contained in section 7106(a) is "[s]ubject to subsection (b) . . .[,]" which further provides that "[n]othing in this section shall preclude any agency and any labor organization from negotiating--" over the matters enumerated therein. Consequently, the Court's analysis, focusing solely on a right enumerated in section 7106(a)(2)(B) is not applicable to the resolution of the issue raised here.⁽⁴⁾

B. Section 7106(a) and Section 7106(b)(1)

The issue in this case is whether the Respondent violated section 7116(a)(1) of the Statute by prohibiting a bargaining unit employee from displaying a union lapel pin on his uniform. In resolving this issue, a threshold issue is whether border patrol agents have a right to wear union insignia on their uniforms or whether the Respondent has a right to require that the uniforms be unadorned.

The General Counsel does not dispute that the Respondent's decision to require border patrol agents to wear a uniform constitutes the exercise of management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. See U.S. Department of Justice, Kennedy Center, Federal Correctional Institution, Bureau of Prisons, 29 FLRA 1471 (1987), aff'd sub nom., AFGE, Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988) and Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of Civilian Technicians v, FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied, 474 U.S. 846 (1985).

The Respondent argues, however, that the adornment of the uniform involves the exercise of various management rights under section 7106(a)(1) of the Statute. More specifically, the Respondent argues that maintaining a uniform requirement is an integral component of the rights to determine organization and mission under section 7106(a)(1). We disagree.

In National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 409-13, (1990) (IRS), we discussed an agency's right to determine its organization. We stated that the right to determine organization refers to "the administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties." Id. at 409. We further stated that "[t]his right encompasses the determination of how an agency will structure itself to accomplish its mission and functions[ ]" and cited, as to that determination, such matters as geographic locations in which the agency would provide services or conduct its operations, the manner in which responsibilities would be distributed among organizational subdivisions, how the agency's organizational grade levels would be designed, and how the agency would be divided into organizational entities. Id. at 409-10.

The Respondent has not demonstrated how the wearing of a union lapel pin by a bargaining unit employee involves or interferes with the exercise of the right to determine its administrative and functional structure. Accordingly, consistent with IRS, we reject the Respondent's contention that adornment of the uniform involves the exercise of management's right to determine its organization.

Moreover, we reject the Respondent's assertion that the wearing of the union lapel pin violates its right to determine its organization because rules regarding the appearance of uniformed personnel relate to an entity's organization and mission. The Respondent relies, in this regard, on the decisions in Kelly v. Johnson, 425 U.S. 238 (1976) (length of hair), Goldman v. Weinberger, 475 U.S. 503 (1986) (wearing of a head covering); Marshal v. District of Columbia Government, 559 F.2d 726 (D.C. Cir. 1977) (compliance with grooming standards); and Lowman v. Davies, 704 F.2d 1044 (8th Cir. 1983) (hair length).

The cited cases relate to constitutional and other challenges to various grooming policies. The Authority previously addressed, and rejected, the argument that grooming standards are related to the exercise of management's right to determine its organization under section 7106(a)(1) of the Statute. American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 351-53 (1982), enforcement denied as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). As indicated by the Authority in that case, and also in IRS, the term "organization" relates generally to the institutional structuring of an agency's functions. Grooming standards, on the other hand, and more particularly as they relate to uniform requirements, concern the means of performing work under section 7106(b)(1). See United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123, 1135-36 (1988) (involving the same parties as are involved in the instant case and relating to a provision regarding beards worn by uniformed employees which was found not to conflict with section 7106(b)(1) of the Statute) and National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 526-28 (1987) (proposal calling for cessation of grooming standards during technician work week concerned the methods and means of performing work under section 7106(b)(1)).

Likewise, we reject the Respondent's argument that the wearing of a lapel pin is inconsistent with its right to determine its mission under section 7106(a)(1) of the Statute. The Respondent states, in this connection, that its use of a "uniformed paramilitary structure, complete with strict uniform regulations, in order to carry out its primary mission of interdicting illegal aliens is integral to its ability to accomplish that mission." Respondent's Exceptions at 32 (emphasis in original).

The Respondent has not demonstrated that the wearing of a lapel pin would interfere with its ability to interdict illegal aliens or would, in any other way, interfere with the accomplishment of its mission. Further, to the extent that the Respondent bases this argument on its argument concerning the necessity of a uniformed paramilitary structure, we found above that the wearing of a lapel pin does not interfere with the Agency's right to determine its institutional structuring. Consequently, the Respondent's argument concerning the right to determine its mission must be rejected.

The wearing of a uniform by unit employees in this case constitutes the means of performing work under section 7106(b)(1) of the Statute. In analyzing whether a union lapel pin may be worn on the uniform, we next examine the effect of section 7102 on the exercise of the Respondent's right under section 7106(b)(1).

C. Section 7102

The Authority previously addressed the rights inuring to employees under section 7102 as they affect the right to require that uniforms be worn. INS 1 and INS 2. The Judge relied on the Authority's decision in INS 1 in finding a violation in this case.

Subsequent to the issuance of the Judge's decision, the United States Court of Appeals for the Ninth Circuit, in a majority opinion, reversed the Authority's decisions in both INS 1 and INS 2. Immigration and Naturalization Service v. FLRA, 855 F.2d 1454 (9th Cir. 1988)(Immigration and Naturalization Service). The court held that section 7102 of the Statute does not grant "public contact federal uniformed employees a statutory right to wear union insignia on the job." 855 F.2d at 1462. The court also held that even if section 7102 granted such a right to employees, the right was limited by section 7106(b)(1) of the Statute. In this regard, the court held that the right to require a uniform "'necessarily encompasses' the right to require an unadorned uniform." Id. at 1464.

In reaching its conclusion that section 7102 does not grant employees the right to wear union insignia, the court compared the wording of section 7102 with that of section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157 (1988), under which employee rights to wear union insignia in the private sector have been analyzed. Relying, in part, on its own precedent, the court noted that the right to wear union insignia under section 7 stems from that portion of the section which permits employees "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" and requires that there be a showing that the insignia was connected with a purpose that is protected under the NLRA. The court added that it specifically "did not bottom" the right to wear insignia on the section 7 right of employees to "assist a labor organization . . . ." 855 F.2d at 1461-62.

The court noted the absence of any comparable wording in section 7102 permitting employees to engage in concerted activity. In this connection, the court examined the legislative history of section 7102 and concluded that its interpretation of that section was consistent with the Supreme Court's decision in Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974) (Letter Carriers), which involved an interpretation of section 1 of Executive Order 11491, the predecessor of section 7102.

At issue in Letter Carriers was the permissible range of union speech during an organizational campaign. The Court in Letter Carriers held that the contents of a union publication were protected under Federal labor laws and reversed a judgment finding that the publication violated state libel law. The court, in Immigration and Naturalization Service, cited the following remarks made by the Supreme Court with respect to the distinctions between rights under section 1 of the Executive Order and section 7 of the NLRA:

Section 1 of the Executive Order does not grant federal employees the right, guaranteed by § 7 of the NLRA for employees in the private sector, "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The right to attempt to persuade others to join the union, however, is derived from the rights to form, join, and assist a union, as well as from the right to engage in concerted activities. The absence of mention of a right to engage in concerted activities is obviously no more than a reflection of the fact that the Order does not permit federal employee unions to engage in strikes or picketing. The prohibition of picketing and the lack of protection for concerted activities might be thought to indicate an intention in the Executive Order to regulate the location or form of employee speech to a somewhat greater extent than under the NLRA . . . .

855 F.2d at 1460-61, quoting 418 U.S. at 278, n. 13.

The court in Immigration and Naturalization Service interpreted the cited language as indicative of the intent "to regulate federal employee speech to a somewhat greater extent than allowed under the NLRA." 855 F.2d at 1461. On this basis, the court refused to "defer to an interpretation of section 7102 that grants to federal employees greater rights than those enjoyed by similarly situated private sector employees." Id. at 1462.

In addition to noting the absence of language in section 7102 relating to concerted activities, the court also noted that at the time the employees involved were ordered to remove the union insignia from their official uniforms, there was no organizing effort, collective bargaining or other concerted activity taking place. Id. at 1457. The court stated that allowing employees to wear union insignia based on the section 7102 right "to form, join, or assist any labor organization" would be inconsistent with its precedent. Id. at 1461. Accordingly, the court concluded that "[a]bsent this statutory authority to engage in other concerted activities, . . . section 7102 [does not] grant[ ] public contact federal uniformed employees a statutory right to wear union insignia on the job." Id. at 1462. The court found, in this regard, that adoption by the Authority of the "'special circumstances' balancing test" appropriate under the NLRA, "was not reasoned and supportable." Id. at 1465.

We respectfully disagree with the court's assessment of the rights granted by section 7102 of the Statute and our use of the special circumstances balancing test. However, in view of the court's decision, we take this opportunity to more fully explicate the statutory basis for allowing employees here to wear a union lapel pin.

The right to wear union insignia stems from section 7102 of the Statute, which guarantees to each employee "the right to form, join, or assist any labor organization," and provides that "each employee shall be protected in the exercise of such right. . . ." There are many ways in which employees can form, join, or assist a labor organization. For example, employees may hold leadership positions within a union or act in a representational capacity and, in this capacity, they have the right to file and process grievances, they may assist in organizational campaigns, and they may engage in various solicitation activities on behalf of a labor organization. See generally, U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 34 FLRA 385 (1990) (serving copies of unfair labor practice charges on behalf of a union is a protected activity under section 7102); Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA 831 (1985) (filing and processing of grievances under a negotiated grievance procedure is protected by section 7102); and Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044 (1987) (distribution of handbills is protected activity). Most recently, we found that section 7102 encompassed employee rights to discuss a collective bargaining agreement during nonwork time, when there was no disruption of work, and that an employer-promulgated rule prohibiting such activity violated the Statute. U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 36 FLRA 705 (1990).

In our view, the wearing of a union lapel pin in the circumstances of this case provides an opportunity for employees to assist the Union by publicizing the existence of the Union and demonstrating their support for a labor organization. Moreover, the wearing of union insignia denotes pride in union affiliation. It is clear to us that these purposes clearly fall within the ambit of section 7102 and, as such, are to be protected.

In reviewing the provisions of the Statute, the record in this case, and the decision of the Ninth Circuit in INS 1 and INS 2, we find no basis on which to conclude that section 7102 must be interpreted as narrowly as it was interpreted by the Ninth Circuit, that is, to apply only to situations in which employees are engaged in "other concerted activities." Further, we find that the right to wear union insignia need not be predicated on statutory authorization to engage in "other concerted activities." In reaching our conclusions, we address the following findings made by the court.

First, in interpreting the provisions of section 7102, the court, as noted above, relied on an explanatory note in Letter Carriers to find that rights of Federal employees are more circumscribed than those of private sector employees covered by the NLRA. In our view, the court's opinion is not necessarily supported by the Supreme Court's decision. Thus, in note 13, the Supreme Court discussed the possibility of greater restrictions on Federal employees, compared to employees covered by the NLRA, but only insofar as the employee conduct related to strikes and unlawful picketing. 418 U.S. at 278. The Court did not discuss or suggest the same limitations for other types of employee conduct. Further, the Court specifically found that the right of Federal employees to persuade other employees to join a union was derived from the rights to form, join, and assist a union, and were not premised solely on the right to engage in concerted activities. Notably, the Court made no mention of greater restrictions on Federal employees with regard to this conduct.

Second, the court in Immigration and Naturalization Service also stated that it refused to defer to an interpretation of section 7102 that would grant greater rights to Federal employees than are granted to similarly situated employees in the private sector. As is discussed in more detail below, the court's reasoning fails to acknowledge that similarly situated private sector employees do enjoy the right to wear union insignia on the job in a variety of circumstances, and that this right is not contingent on the exercise of the particular right to engage in concerted activities but rather on the rights, in general, of employees under section 7 of the NLRA. See, for example, Nordstrom, Inc., 264 NLRA 698, 700 (1982) ("The Board has long held that, absent 'special consideration,' the wearing of union buttons or insignia by employees is activity protected under Section 7 of the [NLRA].").

Third, in finding that the right to wear union insignia was based on the right to engage in other concerted activities, the Ninth Circuit relied on its own precedent and the Supreme Court's decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) (Republic Aviation). In our view, Republic Aviation does not compel the conclusion reached by the court in Immigration and Naturalization Service.

Republic Aviation involved two separate cases in which the Court had granted certiorari. In the case involving Republic Aviation Corporation, at issue, among other things, was the discharge of three employees for wearing union steward buttons, in violation of the employer's no-solicitation rule, during the union's organizational campaign. In the case involving Le Tourneau Company of Georgia, two employees were suspended for distributing union literature in violation of the company's policy of prohibiting distribution on company property. In each case, the National Labor Relations Board (NLRB) found that the employer's conduct violated provisions of the NLRA.

On appeal, Republic Aviation and Le Tourneau objected to the NLRB's remedial orders to correct violations of the NLRA, claiming that the orders "rest[ed] on a policy formulated without due administrative procedure." 324 U.S. at 798. The Court rejected this challenge to the NLRB's authority and found, instead, that the NLRB had fairly explicated the theory underlying its conclusions. Id. at 803.

Nowhere in the Court's decision in Republic Aviation does it appear that the rights to wear union steward buttons and to distribute union literature were premised on the right to engage in other concerted activities. Rather, the Court focused on the "action of the [NLRB] in working out an adjustment between the undisputed right of self-organization assured to employees under the [NLRA] and the equally undisputed right of employers to maintain discipline in their establishments." 324 U.S. at 797-98. The Court added that its inquiry was done in the context of the NLRA's purpose which was described as "the right of employees to organize for mutual aid without employer interference." Id. at 798.

In particular, the Court sustained the NLRB in finding unlawful the discharge of three employees for wearing union steward buttons and the suspension of two other employees for distributing union literature. In so doing, the Court noted the absence of evidence of unusual conditions surrounding the discharge to support a different result, and found that the facts concerning the suspension were also "barren of special circumstances." Id. at 801.

Subsequent to Republic Aviation, the use of special circumstances evolved as a standard for measuring the parameters within which union insignia may be worn at the workplace. The standard has been applied by the Authority and, far more extensively, by the NLRB and the courts in private sector cases. A review of the Authority decisions and pertinent private sector cases illustrates the various factors that have been examined in determining whether special circumstances exist, which prohibit the wearing of union insignia.⁽⁵⁾ Because there is a larger body of case law in the private sector, we begin our review there.

The NLRB and the courts have examined a number of factors when presented with the issue of whether unit employees may wear union insignia at the workplace. Generally, there is a balancing of employee rights to wear union insignia with an employer's need for production and efficiency. As an initial matter, the NLRB and the courts look to the circumstances in which the union insignia is worn, the size, shape and color of the insignia, as well as any messages imprinted thereon, the nature of the employer's activity, and the employer's need for production and safety.

In Consolidated Casinos Corp., 164 NLRB 950 (1967), for example, the NLRB found unlawful the employer's conduct in directing public contact employees to remove union insignia from their uniforms while at work. Noting that the union buttons were nickel-sized, inconspicuous, and contained no provocative messages, the NLRB found no evidence that the buttons affected the employer's business or that the prohibition against wearing the button was needed in order to maintain employee discipline. In Nordstrom, Inc., 264 NLRB 698 (1982), the NLRB found that the employer violated the NLRA by directing a union steward to remove a steward pin worn while working on the sales floor of the employer's retail facility, in furtherance of the union's efforts to institute a newly created steward system. The NLRB found that the pin was "muted in tone, discrete in size, and free from provocative slogans or mottos[,]" and there was no evidence that wearing the pin would create disruption among employees, or be displayed in an environment of friction or dispute with the employer. Id. at 701. In Page Avjet Corp., 275 NLRB 773 (1985), the NLRB found that the employer violated the NLRA by instituting a policy against the wearing of union insignia on newly-purchased uniforms. The NLRB found that the employer failed to establish special circumstances justifying its broad prohibition against the wearing of buttons, badges, and pencil clips carrying the union logo, by employees with varying degrees of public contact.

The courts have reached similar conclusions as well. In NLRB V. Floridan Hotel of Tampa, Inc., 318 F.2d 545 (5th Cir. 1963), the court found unlawful the prohibition against the wearing of two types of union pins by various uniformed and non-uniformed hotel employees. The court noted that the pins, worn by employees and union stewards, were both smaller than a dime, and contained either the union's initials or the initials and the union's full name. The court found no evidence that the pins detracted from the dignity of the business operation or of the employees wearing them on duty, no evidence of customer complaints, and no evidence of any diminution in hotel business. Id. at 548.

In Serv-Air, Inc. v. NLRB, 395 F.2d 557 (10th Cir. 1968), the court held unlawful the employer's temporary discharge of employees and its prohibition against the wearing of union badges. The court rejected assertions that the buttons were disruptive of employee harmony, were potentially dangerous to the work process, or that the prohibition was necessary to assure that employees presented a responsible appearance. The court found instead that the wearing of union insignia is a form of expression that is to be protected.

By contrast, in cases in which special circumstances were found to exist, justifying the prohibition against the wearing of union insignia, there was evidence linking the wearing of union insignia, often large and obtrusive, with disruption of the employer's operations and maintenance of safety and discipline. See, for example, Fabri-Tek, Inc. v. NLRB, 352 F.2d 577 (8th Cir. 1965) (Fabri-Tek), (although prohibition against wearing large, conspicuous buttons which could detract from employer's exacting work process held not violative of the NLRA, the court noted that the prohibition did not extend to customary union buttons which employees were permitted to wear); Davison-Paxon Co., Division of R. H. Macy & Company v. NLRB, 462 F.2d 364 (5th Cir. 1972) (regarding an employer's attempt to prevent conflict on its premises and disruption of its retail operations); Caterpillar Tractor Co. v. NLRB, 230 F.2d 357 (7th Cir. 1956) (attempt to prevent disruption of employee harmony and to maintain discipline); Burger King v. NLRB, 725 F.2d 1053 (6th Cir. 1984) (the employer, a nationally operated enterprise, derived much of its recognition from its uniform public image, and consequently, there was a need for uniformity); Asociacion Hospital del Maestro, Inc. v. NLRB, 842 F.2d 575 (1st Cir. 1988) (prevention of adverse effects on patient health care); Andrews Wire Corp., 189 NLRB 108 (1971) (maintenance of employee safety); and Midstate Telephone Corp. v. NLRB, 706 F.2d 401 (2d Cir. 1983) (regarding the maintenance of discipline).

In addition to INS 1 and INS 2, the Authority had occasion to assess employee rights to wear union insignia, and applied the special circumstances rule, in United States Army Support Command, Fort Shafter, Hawaii, 3 FLRA 796 (1980) (Fort Shafter), and Federal Aviation Administration, Spokane Tower/Approach Control, 15 FLRA 668 (1984) (FAA). In both cases, special circumstances were found to exist. More particularly in Fort Shafter, the Authority found special circumstances to exist where employees of a hotel operated on a military installation wore large (3 inches long and 1 and 1/2 half inches wide), conspicuous union badges while dealing with the public. The Authority adopted the administrative law judge's finding that the prohibition against the wearing of the badges constituted a "valid exercise of the [r]espondent's right, on the basis of business judgment, to avoid confusing customers and protecting its image by not authorizing the wearing of a foreign name tag as part of the prescribed uniform." 3 FLRA 805-06. In FAA, the Authority found that T-shirts imprinted with union emblems, insignia and messages were not protected union insignia. The Authority found that when viewed in the context of ongoing negotiations for a new collective bargaining agreement, the messages on the shirts reasonably could have been interpreted as promoting illegal concerted activity. The Authority further noted that in such circumstances, continued wearing of the shirts reasonably could have been judged by management as being potentially disruptive of the agency's crucial operations of providing air traffic services.

In sum, it is apparent from the foregoing review, that the use of a special circumstances test to assess employee rights to wear union insignia at the workplace has long been accepted in the private sector and has been employed by the Authority as a viable standard on which to balance employee/employer rights. We find no reason to abandon our continued use of this standard.

Our use of the special circumstances standard, of course, assumes that employees covered by the Statute have a basic right to wear union insignia. As we indicated, Congress clearly established, in section 7102 of the Statute, employees' rights to "form, join, or assist any labor organization[.]" In our view, this includes the right to wear union insignia. To find, as does the Ninth Circuit, that Federal employees covered by the Statute do not have a basic right to wear union insignia because the Statute does not contain wording comparable to the NLRA, is unwarranted. The right to wear union insignia is not unlimited, however; the presence of special circumstances, in a given case, can limit that right.

Consequently, we reaffirm our view that section 7102 of the Statute grants Federal employees the right to wear union insignia at the workplace, unless special circumstances exist. In determining whether special circumstances exist, we will look to the factors present in each case.

D. Merits of the Unfair Labor Practice Case

As a preliminary matter, we find it unnecessary to address the Respondent's exception to the Judge's statement of facts which, in the Respondent's view, implied that Cummings was engaged in protected activity when he was observed wearing the lapel pin. The complaint did not allege that Cummings was discriminated against because he was engaged in protected activity. Rather, the General Counsel's position was that the "Respondent violated section 7116(a)(1) of the Statute when it prohibited employees from displaying a lapel pin bearing the logo and initials of the [Union], while in a duty status." General Counsel's Brief at 5.

The question presented in this case is whether special circumstances exist which justify the prohibition against the adornment of the border patrol agent uniforms through the wearing of union lapel pins.

In the cases described above, in which the Authority has found special circumstances to exist, the union insignia which employees sought to wear were either large, conspicuous, and potentially confusing to customers, or were potentially disruptive of crucial agency operations and could be viewed as promoting illegal activity. None of those circumstances is present here. The lapel pin which employee Cummings sought to wear is in the shape of a shield, bears the initials A.F.G.E., AFL-CIO, is red, white and blue in color, and measures one-half inch by three-eighths inch in size. Judge's Decision at 2. This small, unobtrusive pin does not, in our view, fall within the category of large, conspicuous buttons that were found in Fort Shafter and Fabri-Tek to constitute, in part, the type of insignia presenting special circumstances justifying their prohibition.

In support of its assertion that special circumstances exist here, the Respondent points to the following factors: the military nature of its operations and the uniforms; the need to avoid detection by illegal aliens in field locations; the importance of morale, pride, esprit de corps, regimentation and discipline and the need to avoid divisiveness and factionalism; and the need to maintain an appearance of neutrality and impartiality. The Respondent also notes that it has maintained a consistent and nondiscriminatory policy of disallowing various types of pins or buttons to be worn by border patrol agents.

With regard to the first noted factor, the Respondent emphasizes the para-military structure of its operations and uniforms which it claims should guide the Authority's finding of special circumstances. The Respondent, however, is not a military organization and border patrol agents are not members of the United States armed forces. For these reasons, this case is distinguishable from the decision in American Federation of Government Employees, AFL-CIO, Local 3006 and Idaho Army and Air National Guard, 32 FLRA 539 (1988). In that case, the Authority found nonnegotiable a proposal which would have permitted National Guard technicians, serving as union representatives, to wear badges identifying them as union officials while they were performing their technician duties. While noting that the wearing of union insignia is a matter covered by section 7102 of the Statute, the Authority found that:

Nonmilitary additions to or modifications of the required uniform are incompatible with the purpose of maintaining the military identity of civilian technicians which is necessary to the accomplishment of their mission. . . . In our view, the military uniform can fulfill the purposes for which the Agency determined that it was a necessary means only if it remains an exclusively military uniform.

Id. at 543 (emphasis in original).

Here, as indicated, neither the Respondent nor its employees are members of the military. We view this as a critical distinction when addressing rights inuring to employees under section 7102 of the Statute.

Moreover, although we are cognizant of the Respondent's operational needs, it is not apparent, and the Respondent has not shown, how the wearing of a small, unobtrusive pin would have deleterious effects on its operations. For example, the size of the pin and its coloration make it unlikely that the pin alone would increase the likelihood of agents being detected in the field, as the Respondent suggests.

The Respondent also argues that wearing the pin would interfere with morale, pride, esprit de corps, regimentation and discipline, and create divisiveness and factionalism. However, the presence of a lapel pin, in our view, has no more bearing on employee morale than does the absence of a pin. That is, morale, pride, and esprit de corps, are instilled in a variety of ways and nothing in the record before us supports the conclusion that these matters are contingent on the absence of union insignia. We also agree with the Judge's finding that the claims of divisiveness and factionalism are speculative.

We further find speculative the Respondent's assertion that the wearing of a pin would interfere with the appearance of neutrality and impartiality which, according to the Respondent, is required of border patrol agents. The unobtrusiveness of the pin makes it highly unlikely that onlookers would be able to sufficiently identify the pin so as to call into question an agent's neutrality and impartiality. Moreover, the likelihood that an illegal alien would take the time to closely inspect a small pin, and draw pro-union inferences on the part of the border patrol agent wearing the pin, as the Respondent suggests, is specious.

Finally, the Respondent's assertion that it has applied its policy of allowing various types of pins and buttons to be worn by border patrol agents in a consistent and nondiscriminatory manner does not constitute a special circumstance justifying the prohibition. The Respondent cannot, by unilateral action, however consistent, establish special circumstances.

Based on the foregoing, we conclude that there are no special circumstances in this case justifying the Respondent's prohibition against the wearing of the union lapel pin. Therefore, the Respondent's conduct in directing employee Cummings to remove his lapel pin constitutes a violation of section 7116(a)(1) of the Statute.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, shall:

1. Cease and desist from:

(a) Interfering with, restraining, or coercing its employees by prohibiting Albert Cummings or any other border patrol agent from wearing a lapel pin bearing the logo and initials of the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the employees' exclusive representative.

(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) Permit Albert Cummings or any other border patrol agent represented by the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, to wear a union lapel pin.

(b) Post at its facilities in San Diego, California, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the San Diego Sector Commander, 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 these 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, within 30 days from the date of this Order, as to what steps have been taken to comply.

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 Albert Cummings or any other employee from wearing a lapel pin bearing the logo and initials of the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of the employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL permit Albert Cummings or any other border patrol agent represented by the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, to wear a union lapel pin.

______________________
(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 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, Room 370, Los Angeles, CA 90071, and whose telephone number is: (213) 894-3805.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Authority granted the Respondent's request to file one consolidated brief in the instant case and in Case Nos. 6-CA-70732 and 6-CA-80175, raising similar issues, and in which the Authority had also requested the parties to file additional submissions. Case Nos. 6-CA-70732 and 6-CA-80175 are currently pending with the Authority.

2. This argument exceeds the scope of the Authority's request for additional submissions insofar as the Union has not established that its First Amendment rights were affected by the decision in Internal Revenue Service. To the extent that the Union is attempting to introduce an issue that was not raised previously, or otherwise related to the Authority's request for supplemental briefs, the argument will not be considered by the Authority. See section 2429.5 of our Rules and Regulations which states, in relevant part, "[t]he Authority will not consider . . . any issue, which was not presented in the proceedings before the Regional Director, . . . [or] Administrative Law Judge . . . ."

3. In addition to the rights under section 7106(a), which the Respondent argued in its prior submissions and which will be discussed, infra, the Respondent requests the Authority to consider an argument raised by the Respondent in Case No. 6-CA-70732 that the wearing of an unadorned uniform involves management's section 7106(a) right to determine its internal security practices. We deny the request. The Respondent had ample opportunity to raise this argument at an earlier stage of this unfair labor practice proceeding. See also section 2429.5 of our Rules and Regulations.

4. Additionally, and in view of the parties' assertions that the dispute does not involve matters falling within sections 7106(b)(2) and 7106(b)(3) of the Statute, we will not discuss those sections further.

5. As the Authority noted in Department of the Navy, Pearl Harbor Naval Shipyard Restaurant System, Pearl Harbor, Hawaii, 28 FLRA 172, 176n. (1987), "[w]hile decisions of the National Labor Relations Board are not controlling in the Federal sector, the Authority may take into account the experience gained in the private sector." See also U.S. Department of Transportation, U.S. Coast Guard Finance Center, Chesapeake, Virginia, 34 FLRA 946, 952-53 (1990).

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