09:0253(36)CA - Justice, INS and AFGE, National Border Patrol Council and AFGE Local 2455 and IBPO -- 1982 FLRAdec CA

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09:0253(36)CA
The decision of the Authority follows:


 9 FLRA No. 36
 
 UNITED STATES DEPARTMENT OF JUSTICE,
 UNITED STATES IMMIGRATION AND
 NATURALIZATION SERVICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, NATIONAL
 BORDER PATROL COUNCIL
 Charging Party/Intervenor
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2455
 Charging Party
 
 and
 
 INTERNATIONAL BROTHERHOOD OF
 POLICE OFFICERS
 Petitioner
 
                                            Case Nos. 6-CA-48 
                                                      6-CA-49 
                                                      63-CA-565
                                                      63-RO-6 
 
            DECISION AND ORDER AND DIRECTION OF SECOND ELECTION
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED CONSOLIDATED PROCEEDING FINDING THAT THE RESPONDENT HAD
 ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS IN CASE
 NOS. 6-CA-48, 6-CA-49 AND 63-CA-565, AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
 ATTACHED JUDGE'S DECISION.  THE JUDGE ALSO RECOMMENDED THAT VARIOUS
 OBJECTIONS TO THE CONDUCT OF THE ELECTION IN CASE NO. 63-RO-6 BE
 SUSTAINED AND THAT OTHER OBJECTIONS BE DISMISSED BUT, IN ACCORDANCE WITH
 SECTION 2422.20(G((1) OF THE AUTHORITY'S RULES AND REGULATIONS, MADE NO
 RECOMMENDATION WITH REGARD TO ANY REMEDIAL ACTION TO BE TAKEN CONCERNING
 THE OBJECTIONS.  THEREAFTER, THE RESPONDENT AND THE PETITIONER FILED
 EXCEPTIONS TO THE JUDGE'S DECISION, THE GENERAL COUNSEL AND THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO FILED OPPOSITIONS TO SUCH
 EXCEPTIONS, AND THE LATTER ADDITIONALLY FILED CROSS-EXCEPTIONS.
 
    PURSUANT TO SECTIONS 2422.20 AND 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTIONS 7111 AND 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY ADOPTS
 THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED
 BELOW.
 
    THE FACTS ARE SET FORTH IN DETAIL IN THE JUDGE'S DECISION BUT WILL BE
 SUMMARIZED HEREIN.  THE CHARGING PARTY, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER PATROL COUNCIL
 (HEREINAFTER REFERRED TO AS AFGE), REPRESENTS A NATIONWIDE UNIT OF
 APPROXIMATELY 2300 EMPLOYEES OF THE RESPONDENT.  THE PETITIONER,
 INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS (IBPO), TIMELY FILED A
 PETITION SEEKING TO REPRESENT THIS UNIT OF EMPLOYEES (CASE NO.  3-RO-6).
  AN ELECTION WAS CONDUCTED IN WHICH THE PETITIONER WON A MAJORITY OF THE
 VALID VOTES CAST.  HOWEVER, NO CERTIFICATION WAS ISSUED DUE TO THE
 TIMELY FILING OF OBJECTIONS BY THE INCUMBENT AFGE.  ADDITIONALLY, DURING
 THE PERIOD BETWEEN THE FILING OF THE REPRESENTATION PETITION AND THE
 HOLDING OF THE ELECTION, WHEN THERE EXISTED A QUESTION CONCERNING
 REPRESENTATION, AFGE FILED THE UNFAIR LABOR PRACTICE CHARGES IN CASE
 NOS. 6-CA-48 AND 6-CA-49 BASED UPON ACTIONS ALLEGEDLY TAKEN BY THE
 RESPONDENT DURING THAT PERIOD.  THE CHARGE IN CASE NO. 63-CA-565 WAS
 FILED SUBSEQUENT TO THE ELECTION BUT SIMILARLY WAS BASED ON CONDUCT
 WHICH WAS ALLEGED TO HAVE OCCURRED DURING THE PERIOD OF THE PENDING
 QUESTION CONCERNING REPRESENTATION.
 
    AS A PRELIMINARY MATTER, THE RESPONDENT SEEMINGLY ARGUES THAT IT WAS
 PREJUDICED BY THE FACT THAT THE ELECTION WAS CONDUCTED BY THE REGIONAL
 DIRECTOR OF THE AUTHORITY'S 3RD REGION NOTWITHSTANDING THE EXISTENCE OF
 THE UNFAIR LABOR PRACTICE CHARGES FILED IN THE 6TH REGION.  IN THE VIEW
 OF THE RESPONDENT, THERE WAS AN IMPROPER FAILURE TO INVOKE THE "BLOCKING
 RULE" WHEREBY, IN CERTAIN CIRCUMSTANCES, UNFAIR LABOR PRACTICE CHARGES
 MAY SERVE TO DELAY THE HOLDING OF AN ELECTION UNTIL THE CHARGES ARE
 RESOLVED.  HOWEVER, WHETHER UNFAIR LABOR PRACTICE CHARGES WILL BLOCK AN
 ELECTION IS A DISCRETIONARY MATTER WITHIN THE PURVIEW OF THE REGIONAL
 DIRECTOR, AND THE AUTHORITY FINDS THAT THE REGIONAL DIRECTOR OF THE 3RD
 REGION DID NOT ABUSE HIS DISCRETION, IN THE CIRCUMSTANCES OF THIS CASE,
 BY PROCEEDING WITH THE ELECTION.  /1/ IT FOLLOWS THAT, CONTRARY TO
 ANOTHER ALLEGATION OF THE RESPONDENT, THE REGIONAL DIRECTOR OF THE 6TH
 REGION DID NOT ABUSE HIS DISCRETION BY ADJUDICATING THE UNFAIR LABOR
 PRACTICE COMPLAINTS AND THE OBJECTIONS TO THE ELECTION CONCURRENTLY.
 
                   THE UNFAIR LABOR PRACTICE COMPLAINTS
 
    CASE NO. 6-CA-48
 
    THE JUDGE CONCLUDED THAT CHANGES MADE BY THE RESPONDENT REGARDING
 TRAFFIC CHECKPOINTS AND UNIFORMS CONSTITUTED A FAILURE TO ADHERE TO
 PREVIOUSLY EXISTING CONDITIONS OF EMPLOYMENT DURING THE ELECTION PERIOD
 IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.  IN AGREEMENT
 WITH THE JUDGE'S CONCLUSION, THE AUTHORITY FINDS THAT THE RESPONDENT WAS
 SO OBLIGATED TO MAINTAIN EXISTING CONDITIONS OF EMPLOYMENT DURING THE
 PENDENCY OF THE QUESTION CONCERNING REPRESENTATION.  THEREFORE, IN THE
 CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S UNILATERAL CHANGE IN SUCH
 CONDITIONS OF EMPLOYMENT DURING THE ELECTION PERIOD CONSTITUTED A
 VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /2/
 
    CASE NO. 6-CA-49
 
    THE JUDGE FOUND THAT A PAST PRACTICE OF PERMITTING MORNING COFFEE
 BREAKS BY UNIT EMPLOYEES AT THE LAREDO STATION HAD BEEN ESTABLISHED AS A
 CONDITION OF EMPLOYMENT AND THAT THE RESPONDENT'S UNILATERAL TERMINATION
 OF SUCH PRACTICE WITHOUT PRIOR NOTICE TO THE INCUMBENT UNION CONSTITUTED
 A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.  IN AGREEMENT
 WITH THE JUDGE'S CONCLUSION, THE AUTHORITY FINDS THAT THE RESPONDENT'S
 UNILATERAL TERMINATION OF A PAST PRACTICE DURING THE ELECTION PERIOD
 VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /3/
 
    SPECIFICALLY, WITH RESPECT TO THE RESPONDENT'S ASSERTION THAT, IN ANY
 EVENT, THE PRACTICE OF MORNING COFFEE BREAKS IS CONTRARY TO LAW, THE
 AUTHORITY FINDS THAT THE COMPTROLLER GENERAL DECISIONS RELIED UPON BY
 THE RESPONDENT ARE NOT IN POINT.  THUS, FOR EXAMPLE, IN COMPTROLLER
 GENERAL DECISION B-190011 (DEC. 30, 1977), THE ISSUES PRESENTED AND
 DECIDED IN THE NEGATIVE WERE WHETHER AGENCY MANAGEMENT HAD THE AUTHORITY
 TO GRANT EMPLOYEES SHORT PERIODS OF COMPENSABLE TIME CONTIGUOUS TO LUNCH
 BREAKS;  WHETHER AGENCY MANAGEMENT COULD ALLOW EMPLOYEES TO FOREGO A
 MORNING OR AFTERNOON REST PERIOD AND ADD THAT TIME TO THE LUNCH BREAK;
 AND WHETHER AN EMPLOYEE COULD FOREGO AN AFTERNOON REST PERIOD AND ADD
 THAT TIME TO LEAVE SCHEDULED DURING THE EMPLOYEE'S WORK HOURS SO THAT
 THE EMPLOYEE COULD DEPART HIS DUTY STATION EARLIER.  IN THE INSTANT
 CASE, NO QUESTION WAS RAISED AS TO WHETHER EMPLOYEES WERE ATTEMPTING TO
 TAKE THEIR BREAKS CONTIGUOUS EITHER TO THEIR LUNCH PERIODS OR TO
 SCHEDULED LEAVE.  RATHER, THE RECORD INDICATES THAT THE MORNING COFFEE
 BREAK WAS TAKEN BY EMPLOYEES AFTER THEY HAD STARTED THEIR NORMAL WORK
 DAY.  AS NOTED IN THE ABOVE-CITED COMPTROLLER GENERAL DECISION, THE
 GRANTING OF SUCH A REST PERIOD IS WITHIN THE DISCRETIONARY AUTHORITY OF
 DEPARTMENT HEADS UNDER 5 U.S.C. 301.  /4/ IN THE CIRCUMSTANCES HEREIN,
 THAT DISCRETION WAS EXERCISED BY THE RESPONDENT IN PERMITTING MORNING
 COFFEE BREAKS AND, AS HELD ABOVE, THE UNILATERAL TERMINATION OF SUCH
 PRACTICE WAS VIOLATIVE OF THE STATUTE.
 
    CASE NO. 63-CA-565
 
    THE JUDGE FOUND THAT THERE EXISTED A PAST PRACTICE IN THE
 RESPONDENT'S NORTHERN REGION OF PERMITTING UNIT EMPLOYEES ASSIGNED TO
 EXTENDED OPERATIONAL DETAILS OUTSIDE THE NORTHERN REGION THE OPTION OF
 USING THEIR PRIVATELY OWNED VEHICLES.  HE FOUND THAT THE RESPONDENT'S
 DECISION TO REQUIRE EMPLOYEES TO TRAVEL BY AIR TO A DETAIL IN
 CALIFORNIA, AND TO DISALLOW EMPLOYEES THE USE OF THEIR PRIVATELY OWNED
 VEHICLES, IMPACTED ON THE WORKING CONDITIONS OF THE DETAILED EMPLOYEES
 AND CONCLUDED THAT THE RESPONDENT'S DECISION IN THIS REGARD CONSTITUTED
 A UNILATERAL CHANGE IN AN ESTABLISHED PAST PRACTICE IN VIOLATION OF THE
 STATUTE.
 
    AS INDICATED BY THE JUDGE, METHODS OF TRANSPORTATION AUTHORIZED FOR
 OFFICIAL TRAVEL ARE GOVERNED BY THE FEDERAL TRAVEL REGULATIONS.  SUBJECT
 TO VARIOUS CRITERIA CONTAINED THEREIN, THE AUTHORITY FINDS THAT
 DECISIONS AS TO THE APPROPRIATE MODE OF TRANSPORTATION ARE DISCRETIONARY
 ON THE PART OF AGENCY MANAGEMENT, AND THAT THE RESPONDENT HEREIN HAD
 EXERCISED THIS DISCRETION BY PERMITTING THE USE OF PRIVATELY OWNED
 VEHICLES IN PREVIOUS DETAILS.  ACCORDINGLY, IN AGREEMENT WITH THE
 CONCLUSION REACHED BY THE JUDGE, THE AUTHORITY FINDS THAT THE
 RESPONDENT'S UNILATERAL CHANGE OF THIS PAST PRACTICE DURING THE ELECTION
 PERIOD CONSTITUTES A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
 STATUTE.
 
                      THE OBJECTIONS TO THE ELECTION
 
    THE REPRESENTATION ELECTION CONDUCTED IN THE NATIONWIDE UNIT OF THE
 RESPONDENT'S EMPLOYEES RESULTED IN THE FOLLOWING OUTCOME:  OF 1313 VALID
 VOTES COUNTED, 779 VOTES WERE CAST FOR THE PETITIONER IBPO, 476 VOTES
 WERE CAST FOR THE INCUMBENT AFGE, AND 58 VOTES WERE CAST AGAINST
 EXCLUSIVE RECOGNITION.  AS PREVIOUSLY MENTIONED, CERTIFICATION OF IBPO
 WAS WITHHELD PENDING RESOLUTION OF THE OBJECTIONS TO THE ELECTION FILED
 BY AFGE.
 
    FOURTEEN SEPARATE OBJECTIONS WERE FILED TO THE ELECTION.  OF THESE,
 FOUR RELATED TO INCIDENTS WHICH OCCURRED PRIOR TO THE FILING OF IBPO'S
 REPRESENTATION PETITION.  IN AGREEMENT WITH THE JUDGE, THE AUTHORITY
 FINDS THAT THESE FOUR OBJECTIONS MUST BE DISMISSED SINCE CONDUCT
 OCCURRING PRIOR TO THE FILING OF A REPRESENTATION PETITION SEEKING AN
 ELECTION CANNOT BE SAID TO HAVE INTERFERED WITH THE ELECTION HELD
 PURSUANT TO THAT PETITION SO AS TO CONSTITUTE GROUNDS FOR SETTING THAT
 ELECTION ASIDE.
 
    OF THE REMAINING OBJECTIONS, ONE WAS WITHDRAWN BY AFGE AT THE HEARING
 AND ONE WAS DISMISSED BY THE JUDGE SINCE IT HAD NOT BEEN RAISED PRIOR TO
 THE HEARING.  THE OBJECTIONS WHICH WERE ADDRESSED ON THEIR MERITS ARE AS
 FOLLOWS:
 
    UNILATERAL CHANGE IN LOCAL AGREEMENT, UNILATERAL TERMINATION OF
 COFFEE BREAK PRACTICE, UNILATERAL CHANGE IN PAST PRACTICE CONCERNING USE
 OF PRIVATELY OWNED VEHICLES.
 
    THE CONDUCT ALLEGED TO HAVE VIOLATED SECTION 7116(A)(1) AND (5) OF
 THE STATUTE IN CASE NOS. 6-CA-48, 6-CA-49 AND 63-CA-565, DISCUSSED
 SUPRA, ALSO FORMED THE BASIS OF THREE SEPARATE OBJECTIONS TO THE
 ELECTION.  THE JUDGE FOUND THAT THE RESPONDENT'S UNILATERAL CHANGE IN
 THE TERMS OF A LOCAL AGREEMENT AT THE LAREDO STATION AND ITS UNILATERAL
 TERMINATION OF PAST PRACTICES REGARDING COFFEE BREAKS AND USE OF
 PRIVATELY OWNED VEHICLES DURING THE ELECTION PERIOD COULD REASONABLY
 HAVE HAD A SIGNIFICANT IMPACT OR INFLUENCE ON THE FREE CHOICE OF VOTERS
 AND THERFORE IMPROPERLY AFFECTED THE RESULTS OF THE ELECTION.
 ACCORDINGLY, HE RECOMMENDED THAT THESE OBJECTIONS BE SUSTAINED.
 
    THE ACTS AND CONDUCT OF AGENCY MANAGEMENT DURING AN ELECTION
 CAMPAIGN, EVEN WHERE THEY ARE NOT VIOLATIVE OF THE UNFAIR LABOR PRACTICE
 PROVISIONS OF SECTION 7116(A) OF THE STATUTE, MAY NONETHELESS CONSTITUTE
 OBJECTIONABLE CONDUCT REQUIRING THE ELECTION TO BE SET ASIDE IF SUCH
 CONDUCT INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE THEREIN.  WHILE
 THE AUTHORITY RECOGNIZES THAT IT IS OFTEN DIFFICULT TO ASSESS HOW
 PERVASIVE THE IMPACT OF AN AGENCY'S ACTIONS MIGHT BE ON VOTERS, THE
 STANDARD FOR DETERMING WHETHER CONDUCT IS OF AN OBJECTIONABLE NATURE IS
 ITS POTENTIAL FOR INTERFERING WITH THE FREE CHOICE OF THE VOTERS.  IN
 THIS CONNECTION, THE AUTHORITY HAS PREVIOUSLY HELD IN DEPARTMENT OF THE
 AIR FORCE, AIR FORCE PLANT REPRESENTATIVE OFFICE, DETACHMENT 27, FORT
 WORTH, TEXAS, 5 FLRA NO. 62 (1981), THAT STATEMENTS CONTAINED IN AN
 EMPLOYER NEWSLETTER POSTED AND DISTRIBUTED TO EMPLOYEES SEVERAL DAYS
 PRIOR TO A REPRESENTATION ELECTION VIOLATED THE REQUIREMENTS OF
 MANAGEMENT NEUTRALITY DURING AN ELECTION CAMPAIGN, "INTERFERED WITH THE
 EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION AND THEREFORE REQUIRED THE
 ELECTION TO BE SET ASIDE." IN THE INSTANT CASE, AND IN AGREEMENT WITH
 THE JUDGE'S CONCLUSION, THE AUTHORITY SIMILARLY FINDS THAT THE
 RESPONDENT'S ACTIONS IN UNILATERALLY CHANGING THE TERMS OF AN EXISTING
 AGREEMENT AND UNILATERALLY TERMINATING PAST PRACTICES REGARDING COFFEE
 BREAKS AND USE OF PRIVATELY OWNED VEHICLES DURING THE ELECTION PERIOD
 INTERFERED WITH THE FREE CHOICE OF EMPLOYEES IN THE ELECTION.
 ACCORDINGLY, THE AUTHORITY SHALL SUSTAIN THESE OBJECTIONS.
 
    IBPO USE OF LOCKED MANAGEMENT BULLETIN BOARD SPACE
 
    THE JUDGE FOUND THAT AFGE, AS THE EMPLOYEE'S EXCLUSIVE
 REPRESENTATIVE, HAD NEGOTIATED THE RIGHT TO USE HALF OF A LOCKED
 BULLETIN BOARD FOR POSTING VARIOUS NOTICES, AND THAT THE RESPONDENT USED
 THE OTHER HALF.  DURING THE ELECTION PERIOD, THE RESPONDENT PERMITTED
 IBPO TO USE PART OF MANAGEMENT'S HALF OF THE LOCKED BULLETIN BOARD.  AT
 THE SAME TIME, MANAGEMENT CONTINUED TO POST MATERIAL ON THE SIDE OF THE
 BULLETIN BOARD.  THE JUDGE FOUND THAT WHEN THE RESPONDENT PERMITTED IBPO
 TO USE PART OF MANAGEMENT'S HALF OF THE LOCKED BULLETIN BOARD, THE
 RESPONDENT UNFAIRLY FAVORED IBPO SINCE THIS COULD REASONABLY HAVE BEEN
 VIEWED BY EMPLOYEES AS ASSISTANCE TO AND SUPPORT OF IBPO.  THUS, THE
 JUDGE CONCLUDED THAT THIS ACTION CONSTITUTED IMPROPER INTERFERENCE WITH
 THE EMPLOYEES' FREE CHOICE IN THE ELECTION.  WE AGREE WITH THE JUDGE AND
 SHALL SUSTAIN THIS OBJECTION.  /5/
 
    INSTRUCTOR STATEMENTS IN SUPPORT OF IBPO
 
    THIS OBJECTION IS BASED UPON STATEMENTS PURPORTEDLY MADE BY AN
 INSTRUCTOR AT THE BORDER PATROL ACADEMY TO UNIT EMPLOYEES, WHICH FAVORED
 IBPO OVER AFGE.  THE JUDGE FOUND THAT THESE STATEMENTS, TO THE EFFECT
 THAT IBPO WOULD PROVIDE LEGAL REPRESENTATION TO UNIT EMPLOYEES MORE
 EXPEDITIOUSLY THAN WOULD AFGE, THAT IBPO WAS WORKING TO GET A HIGHER
 SALARY FOR BORDER PATROL AGENTS, AND THAT AGENTS SHOULD HAVE A UNION
 CONSISTING SOLELY OF POLICE OFFICERS, WENT BEYOND THE SCOPE OF
 PERMISSIBLE STATEMENTS UNDER SECTION 7116(E) OF THE STATUTE /6/ AND
 INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE.  IN THIS CONNECTION,
 HE NOTED THAT WHILE THE INSTRUCTOR MAY NOT BE A SUPERVISOR OR MANAGEMENT
 OFFICIAL, HE IS IN A UNIQUE POSITION IN THAT HE POSSESSES SUASION OVER
 HIS STUDENTS AND MUST BE PARTICULARLY CAREFUL NOT TO MAKE STATEMENTS
 WHICH COULD DISTORT TRUE EMPLOYEE CHOICE.  THE JUDGE THEREFORE
 RECOMMENDED THAT THIS OBJECTION BE SUSTAINED.  THE AUTHORITY DISAGREES.
 
    AS IT PERTAINS TO REPRESENTATION ELECTIONS, SECTION 7116(E) OF THE
 STATUTE LIMITS THE TYPES OF STATEMENTS THAT MAY BE MADE BY AGENCY
 MANAGEMENT DURING AN ELECTION CAMPAIGN.  THUS, MANAGEMENT MAY MAKE
 STATEMENTS ENCOURAGING EMPLOYEES TO VOTE IN ELECTIONS, CORRECTING THE
 RECORD WHERE FALSE OF MISLEADING STATEMENTS ARE MADE, OR CONVEYING THE
 GOVERNMENT'S VIEWS ON LABOR-MANAGEMENT RELATIONS.  IN CONTRAST, THE
 EXPRESSION OF PERSONAL VIEWS BY EMPLOYEES DURING AN ELECTION CAMPAIGN IS
 PROTECTED BY SECTION 7102 OF THE STATUTE WHICH ASSURES THAT "(E)ACH
 EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
 ORGANIZATION . . . FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL . . ."
 
    IN THIS CASE, THERE IS NO EVIDENCE TO INDICATE THAT THE INSTRUCTOR
 WAS EITHER A SUPERVISOR OR MANAGEMENT OFFICIAL OR THAT HE WAS ACTING AS
 AN AGENT OF THE RESPONDENT WHEN HE MADE THE ALLEGED STATEMENTS.  /7/
 RATHER, THE INSTRUCTOR AS AN EMPLOYEE WAS ESPOUSING PERSONAL VIEWS
 PROTECTED BY THE STATUTE.  ACCORDINGLY, THIS OBJECTION SHALL BE
 DISMISSED.
 
    ASSAULT FORM
 
    THIS OBJECTION STEMS FROM THE RESPONDENT'S IMPLEMENTATION OF AN
 ASSAULT REPORTING FORM WHICH REQUIRED UNIT EMPLOYEES (BORDER PATROL
 AGENTS) TO PROVIDE INFORMATION CONCERNING ASSAULTS COMMITTED AGAINST
 THEM.  THE RECORD INDICATES THAT THE RESPONDENT AND AFGE HAD MET AT
 VARIOUS TIMES PRIOR TO THE FILING OF THE REPRESENTATION PETITION TO
 NEGOTIATE THE CONTENTS OF THE FORM, WHICH WAS OF PARTICULAR CONCERN TO
 UNIT EMPLOYEES BECAUSE OF THE POTENTIAL USES TO WHICH THE FORM COULD BE
 PUT.  NEGOTIATIONS CEASED AS A RESULT OF THE FILING OF IBPO'S
 REPRESENTATION PETITION.
 
    THE JUDGE DETERMINED THAT THE RESPONDENT FAILED TO MAINTAIN EXISTING
 PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS
 TO THE MAXIMUM EXTENT POSSIBLE WHEN IT IMPLEMENTED THE CONTROVERSIAL
 ASSAULT FORM DURING THE ELECTION PERIOD.  SUCH CONDUCT, HE CONCLUDED,
 HAD A REASONABLY FORESEEABLE NEGATIVE EFFECT ON THE VOTERS' ATTITUDE
 TOWARD AFGE AND COULD REASONABLY BE EXPECTED TO HAVE HAD A SIGNIFICANT
 IMPACT OR INFLUENCE ON THE ELECTION.  ACCORDINGLY, HE RECOMMENDED THAT
 THIS OBJECTION BE SUSTAINED.
 
    THE RESPONDENT ARGUED THAT THE ISSUE RAISED IN THIS OBJECTION IS RES
 JUDICATA BECAUSE AFGE HAD FILED AN UNFAIR LABOR PRACTICE CHARGE
 CONCERNING THE IMPLEMENTATION OF THE ASSAULT FORM WHICH WAS DISMISSED BY
 THE REGIONAL DIRECTOR ON THE BASIS THAT THE RESPONDENT HAD MET ITS
 BARGAINING OBLIGATION.  /8/ SUCH CONTENTION MUST BE REJECTED.  AS NOTED
 ABOVE, THE ACTS AND CONDUCT OF AGENCY MANAGEMENT DURING AN ELECTION
 CAMPAIGN WHICH DO NOT VIOLATE SECTION 7116(A) OF THE STATUTE MAY STILL
 CONSTITUTE OBJECTIONABLE CONDUCT.  A DETERMINATION, THERFORE, THAT THE
 RESPONDENT'S CONDUCT WAS NOT VIOLATIVE OF THE UNFAIR LABOR PRACTICE
 PROVISIONS OF THE STATUTE WOULD NOT NECESSARILY DISPOSE OF THE ISSUE OF
 WHETHER SUCH CONDUCT REQUIRED THE ELECTION TO BE SET ASIDE.  THUS, IN
 THIS CASE, THE ALLEGEDLY OBJECTIONABLE CONDUCT MUST BE JUDGED AS TO
 WHETHER IT TENDED TO INTERFERE WITH EMPLOYEE FREEDOM OF CHOICE.
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE JUDGE'S CONCLUSION, THAT
 THE IMPLEMENTATION OF THE CONTROVERSIAL ASSAULT FORM DURING THE ELECTION
 PERIOD INTERFERED WITH THE FREE CHOICE OF THE VOTERS.  IN THIS
 CONNECTION, THE RECORD REVEALS THAT THERE WAS A HISTORY OF PROTRACTED
 NEGOTIATIONS BETWEEN THE RESPONDENT AND THE INCUMBENT AFGE CONCERNING
 THE CONTROVERSIAL ASSAULT FORM COMMENCING AS EARLY AS 1977, AND THAT THE
 RESPONDENT WAS AWARE OF THE UNIT EMPLOYEES' CONCERNS REGARDING THE
 NATURE OF THE FORM.  NEVERTHELESS, THE RESPONDENT CHOSE TO IMPLEMENT THE
 FORM DURING THE ELECTION PERIOD WITHOUT ANY EXPLANATION AS TO WHY
 IMPLEMENTATION WAS IMPERATIVE DURING THAT PERIOD OF TIME.  /9/ INDEED,
 AS NOTED BY THE JUDGE, THE INDIVIDUAL RESPONSIBLE FOR IMPLEMENTING THE
 FORM TESTIFIED THAT THERE WAS NO SPECIFIC REASON WHY THE FORM WAS
 IMPLEMENTED DURING THE ELECTION PERIOD.  ACCORDINGLY, THE AUTHORITY
 FINDS, IN AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT'S IMPLEMENTATION
 OF THE ASSAULT FORM DURING THE ELECTION PERIOD HAD A REASONABLY
 FORESEEABLE NEGATIVE EFFECT ON THE VOTERS' ATTITUDE TOWARD THE INCUMBENT
 LABOR ORGANIZATION (AFGE) AND INTERFERED WITH THE FREE CHOICE OF THE
 VOTERS IN THE ELECTION.  THUS, THE AUTHORITY SHALL SUSTAIN THIS
 OBJECTION.
 
    GROOMING STANDARDS
 
    THE JUDGE FOUND THAT AFGE DID NOT SUPPORT BY A PREPONDERANCE OF THE
 EVIDENCE ITS POSITION THAT THE RESPONDENT HAD ESTABLISHED AND ENFORCED A
 NEW GROOMING STANDARD FOR UNIT EMPLOYEES DURING THE ELECTION PERIOD.
 /10/ RATHER, HE FOUND THAT THE GROOMING POLICY HAD BEEN IN EFFECT FOR
 SEVERAL YEARS AND THAT THE RESPONDENT'S ENFORCEMENT ACTIONS DURING THE
 ELECTION PERIOD COULD REASONABLY HAVE BEEN ASSESSED BY EMPLOYEES AS PART
 OF MANAGEMENT'S CONTINUING POLICY OF ENFORCEMENT.  THE AUTHORITY AGREES.
  ACCORDINGLY, THIS OBJECTION SHALL BE DISMISSED.
 
    NOTICE OF IBPO DEBATE
 
    THE JUDGE FOUND NO PROBATIVE EVIDENCE THAT AN IBPO NOTICE POSTED ON
 AN OFFICIAL ANNOUNCEMENT BOARD WAS EVER READ TO EMPLOYEES BY SUPERVISORS
 OR IN ANY WAY IMPACTED ON THE FREE CHOICE OF VOTERS.  HE THEREFORE
 RECOMMENDED DISMISSAL OF THIS OBJECTION.  THE AUTHORITY AGREES.
 ACCORDINGLY, THIS OBJECTION SHALL BE DISMISSED.
 
                                THE REMEDY
 
    HAVING FOUND THAT THE RESPONDENT ENGAGED IN UNFAIR LABOR PRACTICES
 VIOLATIVE OF SECTION 7116(A)(1) AND (5) OF THE STATUTE, THE AUTHORITY
 SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE
 CERTAIN AFFIRMATIVE ACTION AS SET FORTH BELOW.  AS A RESULT OF THE
 MERITORIOUS OBJECTIONS TO THE ELECTION FILED BY AFGE, WHICH INCLUDE
 CONDUCT AT A NUMBER OF LOCATIONS AND ENCOMPASS, INTER ALIA, THE UNFAIR
 LABOR PRACTICES, THE AUTHORITY SHALL ORDER THAT THE ELECTION BE SET
 ASIDE AND A SECOND ELECTION BE CONDUCTED.  IN THIS REGARD, IN DEPARTMENT
 OF THE AIR FORCE, AIR FORCE PLANT REPRESENTATIVE OFFICE, DETACHMENT 27,
 FORT WORTH, TEXAS, 5 FLRA NO. 62 (1981), THE AUTHORITY DETERMINED THAT
 STATEMENTS CONTAINED IN A SINGLE NEWSLETTER POSTED BY THE AGENCY AND
 DISTRIBUTED TO SOME UNIT EMPLOYEES SUFFICIENTLY INTERFERED WITH THE
 EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION AS TO REQUIRE THAT THE
 ELECTION BE SET ASIDE.  IN SO FINDING, THE AUTHORITY NOTED THAT A
 CORNERSTONE OF THE STATUTE IS THAT EMPLOYEES SHOULD BE FREE TO CHOOSE OR
 REJECT UNION REPRESENTATION WITHOUT COERCION AND WHILE AGENCY
 MANAGEMENT
 MAINTAINS A POSTURE OF NEUTRALITY.  IT FOLLOWS THAT, IN THE INSTANT
 CASE, WHERE AT LEAST SOME OF THE CONDUCT FOUND OBJECTIONABLE IS EVEN
 MORE FLAGRANT AND VIOLATES SPECIFIC UNFAIR LABOR PRACTICE PROVISIONS OF
 THE STATUTE, THE ELECTION MUST BE SET ASIDE AND THE EMPLOYEES GIVEN A
 SECOND OPPORTUNITY TO EXERCISE THEIR PROTECTED RIGHTS.  /11/
 
                                   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 AUTHORITY HEREBY ORDERS THAT THE UNITED STATES DEPARTMENT
 OF JUSTICE, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY ALTERING OR CHANGING ESTABLISHED PAST PRACTICES
 CONCERNING COFFEE BREAKS, OR THE USE OF PRIVATELY OWNED VEHICLES FOR
 TRAVEL BY EMPLOYEES ON EXTENDED OPERATIONAL DETAILS.
 
    (B) FAILING OR REFUSING TO ADHERE TO ESTABLISHED PERSONNEL POLICIES
 AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS AT THE LAREDO
 STATION.
 
    (C) 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:
 
    (A) RESCIND THE FEBRUARY 5, 1979 ANNOUNCED CHANGE IN THE ESTABLISHED
 PRACTICE OF ALLOWING BORDER PATROL AGENTS IN THE LAREDO STATION TO TAKE
 COFFEE BREAKS.
 
    (B) RESCIND THE MARCH 16, 1979 CHANGES CONCERNING TRAFFIC CHECKPOINTS
 AND UNIFORMS, AND REINSTITUTE THE PREEXISTING ESTABLISHED PERSONNEL
 POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
 
    (C) REINSTITUTE THE ESTABLISHED PAST PRACTICE CONCERNING THE USE OF
 PRIVATELY OWNED VEHICLES FOR TRAVEL BY EMPLOYEES ON EXTENDED OPERATIONAL
 DETAILS.
 
    (D) POST AT ALL OF ITS FACILITIES WHERE BARGAINING UNIT EMPLOYEES ARE
 LOCATED COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
 FEDERAL LABOR RELATIONS AUTHORITY.  SUCH FORMS SHALL BE SIGNED BY
 COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, 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
 INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (E) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    IT IS FURTHER ORDERED THAT THE OBJECTIONS NOT HEREIN SUSTAINED BY THE
 AUTHORITY BE, AND THEY HEREBY ARE, DISMISSED.
 
    IT IS FURTHER ORDERED THAT, PURSUANT TO SECTIONS 2422.20(I) AND
 2429.16 OF THE AUTHORITY'S RULES AND REGULATIONS AND SECTION 7105 OF THE
 STATUTE, THE ELECTION CONDUCTED IN THE NATIONWIDE UNIT IN 1979, BE, AND
 IT HEREBY IS, SET ASIDE AND A SECOND ELECTION BE CONDUCTED PURSUANT TO
 THE DIRECTION OF SECOND ELECTION SET FORTH BELOW.
 
                       DIRECTION OF SECOND ELECTION
 
    AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
 IN THE UNIT SET FORTH IN THE AGREEMENT FOR CONSENT OR DIRECTED ELECTION
 IN CASE NO. 3-RO-6 APPROVED ON MARCH 27, 1979, AS SOON AS FEASIBLE, BUT
 NOT EARLIER THAN SIXTY (60) DAYS FROM THE DATE OF POSTING OF THE
 ATTACHED NOTICE TO ALL EMPLOYEES.  THE APPROPRIATE REGIONAL DIRECTOR
 SHALL SUPERVISE OR CONDUCT, AS APPROPRIATE, THE ELECTION SUBJECT TO THE
 AUTHORITY'S RULES AND REGULATIONS.  ELIGIBLE TO VOTE ARE THOSE IN THE
 UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING
 THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD
 BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING
 THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS.
 INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE
 SINCE THE DESIGNATED PAYROLL PER'OD AND WHO HAVE NOT BEEN REHIRED OR
 REINSTATED BEFORE THE ELECTION DATE.  THOSE ELIGIBLE TO VOTE SHALL VOTE
 WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 NATIONAL BORDER PATROL COUNCIL;  BY THE INTERNATIONAL BROTHERHOOD OF
 POLICE OFFICERS;  OR BY NEITHER.
 
    ISSUED, WASHINGTON, D.C. JUNE 29, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                MEMORANDUM OF HENRY B. FRAZIER III, MEMBER
 
    THE PETITIONER HAS MOVED THAT I RECUSE MYSELF ON THE GROUNDS THAT I
 CANNOT RENDER AN IMPARTIAL, UNBIASED DECISION IN THIS CASE BECAUSE OF MY
 PAST ASSOCIATION WITH KENNETH T. BLAYLOCK, THE NATIONAL PRESIDENT OF THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE).  UPON CONSIDERATION
 OF THE PETITIONER'S MOTION, I FIND IT HAS NO MERIT.
 
    AS EVIDENCE OF A "CLOSE ASSOCIATION" WITH MR. BLAYLOCK, THE
 PETITIONER CITES A PRESS REPORT OF TESTIMONY GIVEN BY ME IN CONNECTION
 WITH SPECIAL PROCEEDINGS ORDERED BY THE COURT IN PROFESSIONAL AIR
 TRAFFIC CONTROLLERS ORGANIZATION V. FEDERAL LABOR RELATIONS AUTHORITY,
 NO. 81-2135 (D.C. CIR., JUNE 11, 1982) TO THE EFFECT THAT I RECEIVED
 TELEPHONE CALLS FROM MR.  BLAYLOCK, HAD ONE PERSONAL MEETING WITH HIM,
 AND IN 1979 HELD A PARTY IN MY HOME AT WHICH MR.  BLAYLOCK WAS A GUEST.
 
    THE PETITIONER HAS NOT ALLEGED ANY CONTACT WHATSOEVER BETWEEN MR.
 BLAYLOCK AND ME CONCERNING THE CASE AT HAND AND I FAIL TO SEE A NEXUS OF
 ANY KIND BETWEEN THE CITED INSTANCES OF MY ASSOCIATION WITH MR. BLAYLOCK
 AND MY CONSIDERATION OF THIS CASE.  CERTAINLY, THESE INSTANCES PRESENT
 NO GROUNDS TO SUPPORT AN ALLEGATION OF PERSONAL BIAS ON MY PART IN THIS
 CASE.  MY CONSIDERATION OF THIS CASE IS BASED SOLELY ON THE RECORD
 BEFORE THE AUTHORITY.
 
    I DO NOT TAKE AN ALLEGATION OF BIAS SUCH AS HERE PRESENTED BY
 PETITIONER LIGHTLY.  AS A COROLLARY, SUCH ALLEGATIONS SHOULD NOT BE
 LIGHTLY RAISED.  IN ESSENCE, THE PETITIONER ARGUES THAT I SHOULD
 DISQUALIFY MYSELF BECAUSE I AM ACQUAINTED WITH THE NATIONAL PRESIDENT OF
 AFGE.  AS A MATTER OF FACT, I AM ACQUAINTED WITH, THROUGH MY INVOLVEMENT
 IN THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, THE PRESIDENTS OF
 MANY FEDERAL EMPLOYEE UNIONS AND MANY FEDERAL MANAGEMENT OFFICIALS AS
 WELL, AS ARE THE OTHER MEMBERS OF THE AUTHORITY.  THUS, IN THEIR
 TESTIMONY IN THOSE SAME SPECIAL PATCO PROCEEDINGS, ONE OF MY FELLOW
 MEMBERS TESTIFIED AS TO TELEPHONE CALLS AND A PERSONAL MEETING WITH MR.
 BLAYLOCK AND ANOTHER TESTIFIED AS TO A TELEPHONE CALL WITH HIM.  (SEE
 PATCO, SUPRA AT N. 39.).  AS TO THE 1979 PARTY AT MY HOME CITED BY
 PETITIONER, IT WAS HELD IN HONOR OF MESSRS. HAUGHTON AND APPLEWHAITE,
 NEWLY ARRIVED IN WASHINGTON.  IN ATTENDANCE WERE NUMBERS OF UNION AND
 MANAGEMENT OFFICIALS, INCLUDING THE NATIONAL VICE PRESIDENT OF THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES WITH WHICH THE PETITIONER
 IS AFFILIATED.
 
    IF MEMBERS OF THE AUTHORITY WERE REQUIRED TO DISQUALIFY THEMSELVES IN
 A CASE BASED ON THEIR ACQUAINTANCE WITH UNION PRESIDENTS OR MANAGEMENT
 REPRESENTATIVES, THEN RARELY WOULD THE AUTHORITY BE ABLE TO FUNCTION IN
 ACCORDANCE WITH ITS STATUTORY MANDATE.  THE PETITIONER'S MOTION, WHICH
 IF GRANTED WOULD RESULT IN SUCH A SITUATION, VERGES ON THE FRIVOLOUS.
 
    ACCORDINGLY, I HAVE DETERMINED THAT THE PETITIONER'S MOTION THAT I
 RECUSE MYSELF IN THIS CASE BE AND HEREBY IS DENIED.
 
                       HENRY B. FRAZIER III, MEMBER
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT UNILATERALLY ALTER OR CHANGE ESTABLISHED PAST PRACTICES
 CONCERNING COFFEE BREAKS OR THE USE OF PRIVATELY OWNED VEHICLES FOR
 TRAVEL BY EMPLOYEES ON EXTENDED OPERATIONAL DETAILS.
 
    WE WILL NOT FAIL OR REFUSE, DURING THE PENDENCY OF A REPRESENTATION
 MATTER, TO ADHERE TO ESTABLISHED PERSONNEL POLICIES AND PRACTICES AND
 MATTERS AFFECTING WORKING CONDITIONS AT THE LAREDO STATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL RESCIND THE FEBRUARY 5, 1979 ANNOUNCED CHANGE IN THE
 ESTABLISHED PRACTICE OF ALLOWING BORDER PATROL AGENTS IN THE LAREDO
 STATION TO TAKE COFFEE BREAKS.
 
    WE WILL RESCIND THE MARCH 16, 1979 CHANGES CONCERNING TRAFFIC
 CHECKPOINTS AND UNIFORMS, AND REINSTITUTE THE PREEXISTING ESTABLISHED
 PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
 
    WE WILL REINSTITUTE THE ESTABLISHED PAST PRACTICE CONCERNING THE USE
 OF PRIVATELY OWNED VEHICLES FOR TRAVEL BY EMPLOYEES ON EXTENDED
 OPERATIONAL DETAILS.
 
    WE WILL, DURING THE PENDENCY OF A REPRESENTATION MATTER, ADHERE TO
 ESTABLISHED PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
 WORKING CONDITIONS AS SET FORTH IN THE LOCAL AGREEMENT AT THE LAREDO
 STATION.
 
                                 (AGENCY)
 
    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, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  ROOM 450, DOWNTOWN POST OFFICE, BRYAN AND ERVAY STREETS,
 DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER IS:  (214) 767-4996.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN SO CONCLUDING, THE AUTHORITY NOTES PARTICULARLY THAT AFGE, THE
 CHARGING PARTY IN ALL THREE UNFAIR LABOR PRACTICE CASES, DID NOT REQUEST
 THAT THE ELECTION BE POSTPONED EVEN THOUGH THE RESPONDENT WAS ALLEGED TO
 HAVE VIOLATED AFGE'S RIGHTS AS THE INCUMBENT EXCLUSIVE REPRESENTATIVE OF
 THE UNIT AT ISSUE BY MAKING UNILATERAL CHANGES IN ESTABLISHED CONDITIONS
 OF EMPLOYMENT.
 
    /2/ OF COURSE, MANAGEMENT'S OBLIGATION TO ADHERE TO EXISTING
 CONDITIONS OF EMPLOYMENT UNTIL THE REPRESENTATION MATTER IS RESOLVED
 WOULD NOT PREVENT THE RESPONDENT FROM MAKING CHANGES IN OTHERWISE
 NEGOTIABLE PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS UNDER ALL CIRCUMSTANCES, SUCH AS WHERE SUCH CHANGES WERE
 REQUIRED CONSISTENT WITH THE NECESSARY FUNCTIONING OF THE AGENCY.
 HOWEVER, AS NOTED BY THE JUDGE, THE RECORD FAILS TO ESTABLISH SUCH
 CIRCUMSTANCES HEREIN.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE
 CHANGES IMPLEMENTED REGARDING TRAFFIC CHECKPOINTS AND UNIFORMS VIOLATED
 SECTION 7116(A)(1) AND (5) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS
 CASE.
 
    /3/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
 THE JUDGE REGARDING THE EXISTENCE OF THE PAST PRACTICE.  THE DEMEANOR OF
 WITNESSES IS A FACTOR OF CONSEQUENCE IN RESOLVING ISSUES OF CREDIBILITY,
 AND THE JUDGE HAS HAD THE ADVANTAGE OF OBSERVING THE WITNESSES WHILE
 THEY TESTIFIED.  THE AUTHORITY WILL NOT OVERRULE A JUDGE'S RESOLUTION
 WITH RESPECT TO CREDIBILITY UNLESS A CLEAR PREPONDERANCE OF ALL THE
 RELEVANT EVIDENCE DEMONSTRATES SUCH RESOLUTION WAS INCORRECT.  THE
 AUTHORITY HAS EXAMINED THE RECORD CAREFULLY, AND FINDS NO BASIS FOR
 REVERSING THE JUDGE'S CREDIBILITY FINDINGS.
 
    /4/ 5 U.S.C. SEC. 301 PROVIDES AS FOLLOWS:
 
    SEC. 301.  DEPARTMENTAL REGULATIONS
 
    THE HEAD OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT MAY
 PRESCRIBE REGULATIONS FOR THE GOVERNMENT OF HIS DEPARTMENT, THE CONDUCT
 OF ITS EMPLOYEES, THE DISTRIBUTION AND PERFORMANCE OF ITS BUSINESS, AND
 THE CUSTODY, USE, AND PRESERVATION OF ITS RECORDS, PAPERS, AND PROPERTY.
  THIS SECTION DOES NOT AUTHORIZE WITHHOLDING INFORMATION FROM THE PUBLIC
 OR LIMITING THE AVAILABILITY OF RECORDS TO THE PUBLIC.  (PUB. L. 89-554,
 SEPT. 6, 1966, 80 STAT. 379.)
 
    /5/ AS TO THE RESPONDENT'S CONTENTION THAT IT DISCLAIMED SUPPORT FOR
 IBPO BY VIRTUE OF NOTICES IT POSTED REGARDING THE ACCORDING OF
 EQUIVALENT STATUS TO IBPO AND ITS OBLIGATION TO MAINTAIN NEUTRALITY
 DURING THE ELECTION, THE AUTHORITY FINDS THAT SUCH NOTICES WERE POSTED
 LONG BEFORE IBPO WAS GRANTED THE USE OF MANAGEMENT'S SIDE OF THE LOCKED
 BULLETIN BOARD, WERE VERY GENERAL IN NATURE, AND THUS DID NOT
 EFFECTIVELY DISCLAIM WHAT COULD REASONABLY HAVE BEEN VIEWED BY EMPLOYEES
 AS MANAGEMENT SUPPORT OF IBPO.
 
    /6/ SECTION 7116(E) PROVIDES AS FOLLOWS:
 
    (E) THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT, OPINION OR THE
 MAKING OF ANY STATEMENT WHICH--
 
    (1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
 EMPLOYEES TO EXERCISE THEIR RIGHT TO VOTE IN SUCH ELECTION,
 
    (2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
 STATEMENT MADE BY ANY PERSON, OR
 
    (3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
 LABOR-MANAGEMENT RELATIONS AND REPRESENTATION,
 
    SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
 OR PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A)
 CONSTITUTE AN UNFAIR LABOR PRACTICE UNDER ANY PROVISION OF THIS CHAPTER,
 OR (B) CONSTITUTE GROUNDS FOR THE SETTING ASIDE OF ANY ELECTION
 CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER.
 
    /7/ SEE DEPARTMENT OF THE AIR FORCE, AIR FORCE PLANT REPRESENTATIVE
 OFFICE, DETACHMENT 27, FORT WORTH, TEXAS, 5 FLRA NO. 62 (1981), WHEREIN
 THE AUTHORITY QUOTED AND DISCUSSED THE PERTINENT LEGISLATIVE HISTORY OF
 SECTION 7116(E) AS SET FORTH IN THE JOINT EXPLANATORY STATEMENT OF THE
 COMMITTEE ON CONFERENCE (H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS.  AT
 156 (1978)) WHICH STATED, IN PART, THAT IT WAS "INTENDED TO REFLECT THE
 CURRENT POLICY OF THE CIVIL SERVICE COMMISSION WHEN ADVISING AGENCIES ON
 WHAT STATEMENTS THEY MAY MAKE DURING AN ELECTION.  . ."
 
    /8/ THE REGIONAL DIRECTOR'S DISMISSAL OF THE CHARGE WAS SUBSEQUENTLY
 UPHELD BY THE GENERAL COUNSEL ON APPEAL.  UNITED STATES IMMIGRATION AND
 NATURALIZATION SERVICE, CASE NO. 63-CA-459 (JULY 31, 1980).
 
    /9/ MANAGEMENT'S RIGHT TO IMPLEMENT THE FORM, PURSUANT TO SECTION
 7106 OF THE STATUTE, IS NOT AT ISSUE HERE.
 
    /10/ SECTION 2422.20(H) OF THE AUTHORITY'S RULES AND REGULATIONS
 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SEC. 2422.20 CERTIFICATION;  OBJECTIONS TO ELECTION;  DETERMINATION
 ON OBJECTIONS AND CHALLENGED BALLOTS.
 
   .          .          .          .
 
 
    (H) AT A HEARING CONDUCTED PURSUANT TO PARAGRAPH (G) OF THIS SECTION
 THE PARTY FILING THE OBJECTIONS SHALL HAVE THE BURDEN OF PROVING ALL
 MATTERS ALLEGED IN ITS OBJECTIONS BY A PREPONDERANC