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

[ v18 p29 ]
The decision of the Authority follows:

 18 FLRA No. 3
                                            Case No. 0-AR-310
    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