18:0029(3)AR - Justice, INS and National Border Patrol Council, Local 1613, AFGE -- 1985 FLRAdec AR



[ v18 p29 ]
18:0029(3)AR
The decision of the Authority follows:


 18 FLRA No. 3
 
 U.S. DEPARTMENT OF JUSTICE, 
 IMMIGRATION AND NATURALIZATION 
 SERVICE 
 Agency 
 
 and 
 
 NATIONAL BORDER PATROL COUNCIL, 
 LOCAL 1613, AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES 
 Union
 
                                            Case No. 0-AR-310
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert C. Meiners filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
    The dispute in this matter arose when the Agency ordered that Border
 Patrol Agents in the Chula Vista Sector of California could no longer
 wear Levis-style trousers instead of Agency uniform trousers.  As noted
 by the Arbitrator, the Levis were essentially identical to the uniform
 trousers in appearance and the Union claimed that they provided somewhat
 better protection to the wearer under rough field conditions.  The Chief
 Patrol Officer for the Sector had granted the Union's request on behalf
 of the Agents for permission to wear the Levis for such rough duty.
 Prior to the Agency's order requiring that only uniform trousers could
 be worn, Agents wore the Levis-style trousers for rough duty for several
 months.  The Arbitrator found that although there was no written
 agreement between the parties concerning the matter, local and regional
 management officials were aware of and condoned the wearing of the Levis
 and that a past practice had been established.  The Arbitrator concluded
 that management had violated the parties' collective bargaining
 agreement by unilaterally changing the practice and, as a remedy,
 directed that the Agents be allowed to wear the Levis for rough duty.
 
    In its first exception, the Agency contends that the Arbitrator's
 award conflicts with management's right under section 7106(b)(1) of the
 Statute to determine the methods and means of performing the work of the
 Agency.  In support of this exception, the Agency essentially argues
 that the uniform trousers provide ready identification of the wearer as
 a representative of Governmental authority and therefore are necessary
 for law enforcement purposes, and that the non-uniform trousers
 interfere with such identification.
 
    It is well-established that under section 7106(b)(1) of the Statute
 management has the right to determine the methods and means to be used
 in accomplishing or furthering the performance of its work.  E.g.,
 National Treasury Employees Union and U.S. Customs Service, Region VIII,
 San Francisco, California, 2 FLRA 255 (1979);  Planners, Estimators and
 Progressman Association, Local No. 8 and Department of the Navy,
 Charleston Naval Shipyard, Charleston, South Carolina, 13 FLRA 455
 (1983).  /1/ Further in that regard, in order to constitute a "means" of
 performing work within the meaning of section 7106(b)(1), there must be
 a direct and integral relationship between the particular
 instrumentality the agency chooses to use and the agency's mission.
 See, e.g., American Federation of Government Employees, Local 3525 and
 United States Department of Justice, Board of Immigration Appeals, 10
 FLRA 61, 61-63 (1982).  Additionally, in disputes involving union
 proposals related to management's choice of a particular method or
 means, the Authority has determined that in order to be found violative
 of management's right under section 7106(b)(1), the proposal must
 directly interfere with management's right to determine the method or
 means by interfering with the mission-related purpose for which the
 agency established such method or means.  See, e.g., U.S. Customs
 Service, Region VIII, 2 FLRA at 260-61 (wherein the Authority held that
 a proposed option of uniformed officers using other than their actual
 full names on nameplates did not prevent management from requiring that
 officers wear nameplates and did not interfere with management's stated
 purpose for the nameplates, which was to personalize the Customs Service
 and facilitate the public's dealings with the officers);  American
 Federation of Government Employees, National Immigration and
 Naturalization Council and U.S. Department of Justice, Immigration and
 Naturalization Service, 8 FLRA 347, 349-51 (1982) (wherein the Authority
 held that a proposal that numbers or some combination of letters and
 numbers rather than names be used on identification plates to be worn by
 uniformed employees did not interfere with management's stated purpose
 for the plates, which was to provide for identification of the officers
 and facilitate the work of supervisory personnel;  and that a proposal
 concerning agency grooming standards did not interfere with management's
 purpose for the standards, which was to ensure that the officers were
 readily recognized as representatives of the agency in their dealings
 with the public);  Long Beach Naval Shipyard, Long Beach, California and
 Federal Employees Metal Trades Council, AFL-CIO, 17 FLRA No. 76 (1985)
 (wherein the Authority held that the Respondent Activity failed to show
 that bargaining concerning the type of protective clothing to be worn by
 employees would interfere with management's right to require that safety
 clothing be worn).  Cf., National Treasury Employees Union and U.S.
 Customs Service, Washington, D.C., 8 FLRA 3, 3-4 (1982) (wherein the
 Authority held that a portion of a proposal which would have excluded
 uniformed personnel performing vehicle inspections from an agency
 requirement for wearing uniform hats interfered with management's
 purpose of readily identifying the wearer as a representative of the
 Government).
 
    In terms of this case, the Agency determined that Border Patrol
 Agents will wear uniforms in performing their duties.  It is not
 disputed here that there is a direct and integral relationship between
 the uniform wearing requirement and the Agency's law enforcement
 mission.  The issue before the Authority in this case is whether, as the
 Agency alleges, the Arbitrator's award directing the Agency to continue
 to permit the Border Patrol Agents in the Chula Vista Sector to wear
 Levis-style trousers as part of their uniform for rough duty assignments
 interferes with management's stated purpose for its uniform trousers,
 namely, to provide ready identification of the wearer as a
 representative of Governmental authority.  Upon careful consideration of
 the record before the Authority in this matter, the Authority concludes
 that the Agency has not shown, and it is not otherwise apparent, how the
 Levis-style trousers interfere with management's objective.  Thus, as
 found by the Arbitrator, the Levis are essentially identical to the
 uniform trousers in appearance.  Moreover, supervisory and management
 officials permitted or condoned the wearing of the Levis for an
 extensive period of time, which strongly indicates that there was no
 detrimental effect on accomplishment of the Agency's law enforcement
 mission as a result of the wearing of the Levis.  In that regard, there
 is no support in the record for the Agency's assertion that the
 Levis-style trousers interfered with the identification of any wearer as
 a law enforcement officer.  Therefore, the Authority finds, contrary to
 the Agency's assertion, that the Arbitrator's award does not conflict
 with management's right under section 7106(b)(1) of the Statute.
 
    In its second exception, the Agency contends that the Arbitrator's
 award is inconsistent with and therefore does not draw its essence from
 the parties' collective bargaining agreement.  However, this exception
 constitutes nothing more than disagreement with the Arbitrator's
 interpretation of the parties' agreement and, consequently, provides no
 basis for finding the award deficient.  E.g., Bureau of Alcohol, Tobacco
 and Firearms and National Treasury Employees Union, 12 FLRA 49 (1983).
 
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C., May 14, 1985.
                                       Henry B. Fraz