18:0029(3)AR - Justice, INS and National Border Patrol Council, Local 1613, AFGE -- 1985 FLRAdec AR
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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. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See also Division of Military and Naval Affairs, State of New York, Albany, New York and New York Council, Association of Civilian Technicians, 15 FLRA No. 65 (1984), wherein the Authority found that there was a direct and integral relationship between a uniform-wearing requirement for civilian technicians of the National Guard and the duties the technicians performed in furthering accomplishment of the overall military mission of the National Guard and, therefore, held that the uniform wearing requirement constituted management's choice of methods and means of performing work within the meaning of section 7106(b)(1).