25:0447(30)CA - INS, Port of Entry, San Ysidro, CA and INS Council, AFGE Local 2805 -- 1987 FLRAdec CA



[ v25 p447 ]
25:0447(30)CA
The decision of the Authority follows:


 25 FLRA No. 30
 
 UNITED STATES IMMIGRATION AND 
 NATURALIZATION SERVICE, PORT 
 OF ENTRY,SAN YSIDRO, 
 CALIFORNIA
 Respondent
 
 and
 
 IMMIGRATION AND NATURALIZATION 
 SERVICE COUNCIL, AMERICAN 
 FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 2805, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-50544
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent and the General Counsel to the attached decision
 of the Administrative Law Judge.  The case concerns whether the
 Respondent violated section 7116(a)(1) of the Federal Service
 Labor-Management Relations Statute by prohibiting an employee from
 wearing a union button, or lapel pin, on his uniform while on duty.
 
    II.  Background
 
    The Respondent employs about 50 immigration inspectors at the San
 Ysidro Port of Entry, working three shifts.  The inspectors are rotated
 among work areas at half-hour intervals each workday.  They are
 supervised by a single first-line supervisor each day, but may be
 supervised by any of eight first-line supervisors are subordinate to
 three operations supervisors.  The three operations supervisors are
 subordinate to the assistant port director, who in turn is subordiante
 to the port director.
 
    The inspectors are required to wear a uniform, composed of a light
 blue shirt with an INS insignia on the arm, dark blue pants, black shoes
 and socks, a black belt, and a tie with a tie tack.  No tie is worn in
 the summer.  A badge is worn on left pocket of the shirt and a name
 plate is worn on the right pocket.
 
    The Respondent's regulations and the inspectors' handbook describe
 the uniform requirements.  First-line supervisors are responsible for
 ensuring that the inspectors comply with the uniform requirements.  The
 inspectors' handbook states that the uniform should be devoid of
 ornaments which are not part of the uniform.  However, the inspectors
 have been free to select their own tie tacks and belt buckles.
 
    The inspectors have worn a variety of ornaments with their uniforms,
 aside from buttons issued by the Respondent, without objections from
 management, including a small pin in the shape of an Olympic torch sold
 by an employee recreation association and an assortment of tie tacks and
 belt buckles.  The Union president, Stark, has worn tie tacks depicting
 a football helmet, cartoon characters, handcuffs, aircraft, and small
 sign reading "I love America." In 1984 Stark wore a team button, 2 and
 1/4 inches in diameter, during the major league baseball playoffs and
 the World Series.  The first-line supervisors did not object to these
 ornaments.
 
    From May to August 1985, Stark wore a union lapel pin on the right
 pocket of his uniform shirt without objection by the first-line
 supervisors.  Shaped like a shield, the pin is about 1/2 inch by 3/8
 inch in size, is colored red, white, and blue, and bears the initials
 "A.F.G.E., AFL-CIO." The initials are recognizable within two feet of
 the pin.  From a greater distance the pin appears to be a patriotic
 emblem.
 
    In August 1985, Stark wore the pin when entering the office of an
 operations supervisor.  The port director, Kelliher, happened to be
 there.  Kelliher asked about the pin and was told that it was a union
 pin.  Kelliher directed Stark to remove the pin.  Stark complied.
 Kelliher testified that he told Stark to remove the pin because it
 contained a union logo.  In his view, everything on the uniform should
 pertain to law enforcement, to avoid questions from the public which
 might distract an inspector from his duties.
 
    III.  Judge's Decision
 
    The Judge concluded that the Respondent's action in prohibiting Stark
 from wearing the union lapel pin with his uniform interfered with
 Stark's rights under section 7102 of the Statute and, therefore, the
 Respondent had violated section 7116(a)(1) of the Statute as alleged.
 He based his conclusion upon the unobtrusive nature of the pin and the
 absence of any showing that wearing the pin caused any confusion or
 interference with the duties and responsibilities of the inspectors.  He
 recommended that the Respondent be ordered to cease and desist from
 prohibiting Stark or any other immigration inspectors from wearing the
 union membership button with their uniform while on duty.
 
    IV.  Positions of the Parties
 
    The respondent argues that section 7102 does not give its uniformed
 inspectors the right to wear union insignia when they are on duty.  The
 Respondent also claims that the Union waived the employees' right to
 wear union insignia under section 7102 when it failed to object to the
 restrictions on ornaments in the inspector's handbook.  Finally,
 assuming that the Authority affirms the Judge's conclusion that a
 violation has been committed, the Respondent argues that the Judge's
 remedy should be amended to authorize only the wearing of pins of the
 same size as Stark's lapel pin.
 
    The General Counsel supports the Judge's decision, but excepts to the
 Judge's order, which directed no affirmative action other than posting
 of the notice.  The General Counsel argues that the Respondent should be
 affirmatively ordered to permit Stark, or any other uniformed
 inspectors, to wear the union button or any other insignia that does not
 detract from the uniform, as well as "insigna on behalf or any other
 labor organization that does not detract from the uniform"
 
    V.  Analysis
 
    A.  The violation
 
    We agree with the Judge's conclusion that the Respondent violated the
 Statute as alleged in the complaint.
 
    Under section 7106(b)(1) of the Statute, an agency may elect not to
 bargain over the "means" of performing work.  The Authority has defined
 the "means" of performing work to be "any instrumentality, including an
 agent, tool, device, measure, plan or policy used by the agency for the
 accomplishing or the furthering of the performing of its work." National
 Treasury Employees Union and U.S. Customs Service, Region VIII, San
 Francisco, California, 2 FLRA 255, 258 (1979).  Disputes involving union
 proposals relating to an agency's choice of a particular means, such as
 the composition of a uniform, are resolved on the basis of whether the
 proposals directly interfere with the purpose for which the agency has
 required a uniform to be worn.  For example, American Federation of
 Government Employees, Local 217 and Veterans Administration Medical
 Center, Augusta, Georgia, 21 FLRA No. 13 (1986);  and U.S. Department of
 Justice, Immigration and Naturalization Service and National Border
 Patrol Council, Local 1613, American Federation of Government Employees,
 18 FLRA No. 3 (1985).  There is no question that the requirement that a
 uniform be worn by the bargaining unit employees involved in this case
 is an exercise of the Agency's right to determine the means by which
 Agency operations are conducted.  See American Federation of Government
 Employees, AFL-CIO, National Immigration and Naturalization Service
 Council and U.S. Department of Justice, Immigration and Naturalization
 Service, 8 FLRA 347 (1982), reversed as to other matters sub nom.
 Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984);  and AFGE,
 National Immigration and Naturalization Service Council and Department
 of Justice, INS, 5 FLRC 105 (1977).
 
    Apart from any rights a union may have to bargain over the
 composition of a uniform, employees have the right under section 7102 of
 the Statute "to form, join, or assist any labor organization(.)" This
 section encompasses an employee's right, in the absence of special
 circumstances, to wear union insignia at the work place.  United States
 Army Support Command, Fort Shafter, Hawaii, 3 FLRA 796 (1980).  In Fort
 Shafter, in determining whether special circumstances existed, the
 Authority examined all the circumstances, including the size and nature
 of the insignia (whether or not the insignia was conspicuous), and
 whether wearing of the insignia could cause confusion among the public
 customers of the hotel as to whether the two hotel service employees
 involved were employed by the agency or the union.  Thus, in Fort
 Shafter, the Authority held that the agency did not violate the Statute
 when it prohibited two hotel service employees from wearing union
 steward badges when dealing with members of the public.  The
 Administrative Law Judge specifically found in that case that the badges
 were "not small or inconspicuous," and further that some "customers were
 confused" about whether the employees were employed by the hotel or the
 union.  Fort Shafter, at 805.  The Authority has also found a special
 circumstance to exist when the union insignia involved could reasonably
 have been interpreted as promoting illegal concerted activity and as
 being disruptive of agency operations.  Federal Aviation Administration,
 Spokane Tower/Approach Control and Professional Air Traffic Controllers
 Organization, MEBA, AFL-CIO, 15 FLRA 668 (1984).
 
    The Authority's interpretation of section 7102 as guaranteeing an
 employee's right to wear union insignia in the absence of special
 circumstances is consistent with the approach taken in the private
 sector under the National Labor Relations Act.  See Midstate Telephone
 Corporation, 262 NLRB 1291, 1292 (1982) ("It is well established that in
 the absence of 'special circumstances,' employees have a Section 7 right
 . . . to wear insignia at work referring to unions or other matters
 pertaining to working conditions for the purpose of mutual aid or
 protection.") See also Republic Aviation Corporation v. NLRB, 324 U.S.
 793 (1945).  The NLRB has found special circumstances to exist when the
 interest of employees in wearing union insignia is outweighed by an
 employer's legitimate interest in maintaining discipline, safety, or
 efficient production in the workplace.  For example, Southwestern Bell
 Telephone Company, 200 NLRB 667 (1972);  and Pratt & Whitney Aircraft
 Division, 134 NLRB 1632 (1961).
 
    In this case, there has been no showing that the wearing of the union
 lapel pin interfered in any way with the purpose for which the Agency
 requires the uniform to be worn.  There is, therefore, no conflict with
 the Agency's right under section 7106(b)(1) to determine the means of
 performing the Agency's work.  Further, the Judge found, and we agree,
 that there are no special circumstances in this case so as to negate the
 employee's right under section 7102 to wear the insignia.  Specifically,
 the Judge found that the pin is small and unobtrusive and did not and
 could not reasonably be expected to interfere with Stark's work
 performance or the performance of other inspectors, or interfere with
 the public's ability to recognize Stark as a representative of a
 Government authority.  We agree with these findings and conclude that
 Respondent's action interfered with Stark's rights under section 7102
 and violated section 7116(a)(1).
 
    Finally, the Respondent's contention that the Union waived the
 employees' rights under section 7102 by failing to object to the
 restrictions on the wearing of ornaments which may exist in the
 inspectors' handbook cannot be sustained.  The bargaining representative
 has no authority to waive rights guaranteed employees under section 7102
 of the Statute.  Department of Health and Human Services, Social
 Security Administration, Southeastern Program Service Center, 21 FLRA
 No. 93 (1986) at n.4 and accompanying text.
 
    B.  The remedy
 
    We find that the Respondent violated the Statute by prohibiting the
 wearing of particular union insignia in particular circumstances.
 Therefore, in our order we shall direct that the Respondent cease and
 desist from interfering with the wearing of the insignia involved, or
 similar insignia.
 
    The Judge clearly was correct that the violation did not merely
 affect Stark's right under section 7102 of the Statute, but also the
 statutory rights of the other inspectors at the San Ysidro Port of
 Entry.  As such, we agree with the General Counsel that the purposes and
 policies of the Statute require an order which affirmatively directs the
 Respondent to permit Stark and other uniformed inspectors to wear the
 lapel pin of the American Federation of Government Employees, AFL-CIO or
 similar insignia while at work.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is ordered that the
 United States Immigration and Naturalization Service, Port of Entry, San
 Ysidro, California, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining, or coercing its employees by
       prohibiting Ted Stark or any other immigration inspector from
       wearing the American Federation of Government Employees, AFL-CIO,
       union lapel pin or similar union insignia while on duty.
 
          (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 Federal Service Labor-Management Relations
 Statute:
 
          (a) Permit Mr. Ted Stark or any other immigration inspector to
       wear an American Federation of Government Employees, AFL-CIO,
       lapel pin or similar union insignia while they are on duty.
 
          (b) Post at its facilities copies of the attached Notice on
       forms furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms, they shall be signed by the Port Director
       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 the
       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, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply.
 
    Issued, Washington, D.C., February 2, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
  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 Ted Stark or any other immigration inspector
 from wearing the American Federation of Government Employees, AFL-CIO,
 union lapel pin or similar union insigna while on duty.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL permit Ted Stark or any other immigration inspector to wear
 an American Federation of Government Employees, AFL-CIO, lapel pin or
 similar union insignia while they are on duty.
 
    Dated:  . . . By:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be alterned, 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, 10th Floor, Los Angeles, California
 90071, and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 Case No.: 8-CA-50544
 
 UNITED STATES IMMIGRATION AND 
 NATURALIZATION SERVICE, PORT OF ENTRY,
 SAN YSIDRO, CALIFORNIA
    Respondent
 
                                    and
 
 IMMIGRATION AND NATURALIZATION 
 SERVICE COUNCIL, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO
    Charging Party
 
    Deborah S. Wagner Esq. For General Counsel
 
    Melainie Fitzsimmons, Esq. For Respondent
 
    Mr. Richard Walker For Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on September 4, 1985, by Local 2805,
 Immigration and Naturalization Service Council, American Federation of
 Government Employees, AFL-CIO, (hereinafter called the Union or Local
 2805), a Complaint and Notice of Hearing was issued on November 29, 1985
 by the Regional Director for Region VIII, Federal Labor Relations
 Authority, Los Angeles, California.  The Complaint alleges that the
 United States Immigration and Naturalization Service, Port of Entry, San
 Ysidro, California, (hereinafter called the Respondent or INS), violated
 Section 7116(a)(1) of the Federal Service Labor-Management Relations
 Statute by virtue of its actions in forbidding a unit employee from
 displaying a lapel pin bearing the logo and initials of the Union on his
 uniform.
 
    A hearing was held in the captioned matter on February 24, 1986, in
 San Diego, California.  All parties were afforded the opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs on March 24 and March 21, 1986,
 respectively, which have been duly considered.  /1/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The INS has recognized American Federation of Government Employees
 (National Immigration and Naturalization Council), AFGE, as the
 collective bargaining agent of "all personnel of the Immigration and
 Naturalization Service, except professionals, those assigned to Border
 Patrol Sectors and those excluded from coverage by the Civil Service
 Reform Act." Local 2805, the Charging Party, is the AFGE'S
 representative at the San Ysidro, California, Port of Entry.  Mr. Ted C.
 Stark, an Immigration Inspector, at the time of the events described
 herein was president of Local 2805.
 
    The approximately fifty Immigration Inspectors employed at the San
 Ysidro Port of Entry work on three separate shifts and are rotated from
 one shift to another each pay period.  During any given day, the
 Immigration Inspectors rotate from one designated area to another every
 half hour.  Thus, as explained by Mr. Stark, an Inspector might work the
 first half hour at pedestrian primary inspecting applicants for entry
 approaching on foot, then be switched the second half hour to doing
 secondary inspections on pedestrians, then be switched to a half hour
 stint inspecting buses, and later be switched to a half hour assignment
 of inspecting vehicle traffic.  While the Inspectors are constantly
 switching assignments on the half hour, the supervisors do not rotate
 during the day and are assigned to one office for the entire day.  Thus,
 despite their half-hour rotations, the Immigration Inspectors remain
 under one supervisor's supervision for the entire day.  However, on any
 given day, an Immigration Inspector can be assigned to any of the eight
 first line supervisors.  Over the first line supervisors are three
 operations supervisors, who are subordinate to the Assistant Port
 Director who in turn is subordinate to the Port Director.
 
    While working at their inspection duties, the Immigration Inspectors
 are required to wear a uniform which consists of a light blue shirt with
 an INS insignia on the arm, dark blue pants, black shoes and socks, a
 black belt and a tie with a tie tack.  In the summer the uniform changes
 to a short sleeve shirt without a tie.  On the shirt the Immigration
 Inspector wears a badge on the left shirt pocket and a name plate on the
 right breast shirt pocket.  The tie tack worn by Mr. Stark was a U.S.
 Border Patrol.  The INS did not have an official tie tack as of August
 26, 1985 when the events underlying the instant complaint occurred.
 
    Section 2415.01 of the Administrative Manual, entitled "Service
 Uniforms -- Immigration Inspector" contains detailed specifications for
 the uniform and Section 2415 entitled "Service Uniforms -- Inspections"
 assigns the responsibility of making sure that the uniform is worn
 properly to the first line supervisors.  The Inspectors Officers'
 Handbook under the title "Personal Appearance" provides in pertinent
 part as follows:  "Where a uniform is required, it should be complete in
 all details and devoid of ornaments that are not part of the uniform."
 
    Despite the proscription in the Officers' Handbook, Mr. Stark
 testified, without contradiction, that a number of adornments have been
 worn by the Inspectors over the years without any objection from
 management.  Thus, in 1984, just prior to the Olympics, the prespondent
 issued a button reading "WE SERVE with Courtesy and Pride, I.N.S." which
 was some 2 and 1/2 inches in diameter to its Inspectors.  Although
 wearing of the pin was optional, most Inspectors initially wore the pin
 but as time wore on they ceased wearing it.  Another ornament issued by
 Respondent was a length of service pin, which was a 1/2 inch in
 diameter.  This pin was attached to the name plate;  pocket flat, badge,
 or necktie of the inspector who chose to wear it.
 
    Aside from the above pins, it appears that the employees, with tacit
 approval from management, also wore small pins in the shape of an
 olympic torch which were sold by the Welfare and Recreation Office, an
 employee association.  These latter pins, unlike the Courtesy and Pride
 buttons;  have continued to be worn by the Inspectors.  They are worn in
 the same position as the length of service pin.
 
    In addition to the olympic torch pin, according to Mr. Stark, there
 have been a number of additional tie tacks and belts worn by the
 Inspectors.  The ornaments worn by Mr. Stark include tie tacks in the
 shape of a football helmet, cartoon characters like Yosemite Sam and a
 Smurf, handcuffs, aircraft and a small one inch sign reading "I Love
 America".
 
    Finally, Mr. Stark testified that in 1984 when the San Diego Padres
 were in the playoffs and World Series, he wore a button depicting a
 cartoon character swinging a bat and advertising the San Diego Padres.
 This button was 2 and 1/4 inches in diameter.
 
    Mr. Stark's testimony that he wore the above buttons or pins without
 any objection from the Respondent stands uncontradicted in the record.
 
    On or about August 26, 1985, Mr. Stark went into the Operations
 Supervisor's office wearing a union pin, in the shape of shield bearing
 the initials A.F.G.E., AFL-CIO, on the flap of his right shirt pocket.
 The pin, red, white and blue in color, measured 1/2 inch by 3/8 inch.
 /2/ Port Director Edward Kelliher, who happened to be in the office when
 Mr. Stark walked in, asked Mr. Stark what the pin was.  When Mr. Stark
 informed Mr. Kelliher that it was a union pin, Mr. Kelliher told him to
 "take the damn thing off".  Mr. Stark immediately complied.
 
    According to Mr. Stark, he had been wearing the union pin since May
 without having had any objections from the various supervisors who had
 observed him wearing it.  At times he wore it on his tie and at other
 times he wore it on his shirt pocket.  According to Mr. Stark, no member
 of the public had ever commented on the pin or asked its significance.
 Further, according to Mr. Stark, the wearing of the pin had not confused
 anyone with respect to whom his employer was.
 
    Mr. Kelliher testified that he had Mr. Stark remove the union pin
 because it contained a union logo.  It was his opinion that everything
 on a uniform should pertain to law enforcement, otherwise someone might
 question the Inspector about the pin and thereby distract him from his
 duties.  According to Mr. Kelliher only the Courtesy and Pride button
 and the length of service pins were adornments formally authorized by
 INS.  He considered the Border Patrol tie tack and the olympic torch pin
 to be permissible although not expressly authorized.  Further, according
 to Mr. Kelliher, if he had observed Inspectors wearing the remaining
 buttons or pins described, supra, such as football helmets, etc., he
 would have requested that they be removed, although he admitted that the
 regulations were silent as to the wearing of tie tacks.
 
    Ms. Helen Fillman, a Supervisory Labor Relations Specialist,
 testified that the Administrative Manual does not regulate tie tacks and
 therefore the Inspectors were free to select their own tie tacks.
 
                        Discussion and Conclusions
 
    The General Counsel, citing the Authority's decision in United States
 Support Command, Fort Shafter, Hawaii, 3 FLRA 796 and the Supreme Court
 Decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, takes the
 position that in the absence of special circumstances the employees have
 a right under the Statute to wear a union insignia at the workplace.
 Thus, unless the insignia negates the purpose of the uniform and causes
 confusion, interferes with discipline or work production, or interferes
 with efficiency and safety, an employee is entitled to wear the union
 button on his uniform.  According to the General Counsel, inasmuch as
 the special circumstances cited above have not been established,
 Respondent interfered with Mr. Stark's Section 7102 right to support the
 Union when it requested him to cease wearing the union button on his
 uniform and thereby violated Section 7116(a)(1) of the Statute.
 
    The Respondent, on the other hand, relying primarily on the
 negotiability decision of the Federal Labor Relations Council in AFGE,
 National Immigration and Naturalization Service Council & INS, FLRC No.
 76A-26, January 18, 1977, takes the position that wearing of the union
 button or pin would negate the purposes of the uniform and cause
 confusion.  In such circumstances the Respondent's action in denying Mr.
 Stark the right to wear the union pin or button was not violative of
 Section 7116(a)(1) of the Statute.  The Respondent further argues that
 in any event there was no violation of the employee's Section 7102
 rights since there was no showing that Mr. Stark was engaged in
 representational activity or that collective bargaining was in progress.
  The Respondent also argues that there was no unfair labor practice
 since the Respondent's activity was at best isolated and devoid of any
 intent to discourage union activity.  Finally, Respondent argues that
 management rights are preeminent, and that under the circumstances
 present herein, it was within its rights in banning the wearing of the
 union button or pin.  In support of this latter argument, Respondent
 states that "this adornment has the potential to cause confusion in the
 eye of the beholder, to detract from the law enforcement purposes of the
 uniform, and it had the potential to cause disciplinary problems amongst
 the employees."
 
    It is clear from the Federal Labor Relations Council's decision in
 AFGE, National Immigration and Naturalization Service Council & INS,
 supra, the Authority's decision in Fort Shafter, supra, and the Supreme
 Court's decision in Republic Aviation, supra, that in the absence of
 Special circumstances, employees have a right both under the Statute and
 the NLRA to wear a union insignia at the work place.
 
    In reaching its decision in AFGE, National Immigration &
 Naturalization Service Council & INS, supra, that a union proposal to
 wear a 3x4 inch union insignia as an arm patch on an INS inspector's
 uniform was non-negotiable due to the fact that the wearing of the patch
 would cause confusion and negate the purposes of the uniform, the
 Council stated, among other things, " . . . that the wearing of
 inconspicuous union buttons or other indicia of union affiliation, which
 do not negate the purpose for which uniforms are required, would not be
 violative of Section 12(b)(5)" of Executive Order 11491.  Similarly, in
 Fort Shafter, supra, the Authority, while denying employees the right to
 wear a union steward's badge approximately 3 inches long by one and
 one-half inches wide because of its "conspicuous nature", stated "the
 Authority agrees with the (Administrative Law Judge's) conclusion that
 in the absence of special circumstances, employees have a riqht under
 the Statute to wear union insignia at the work place".  In Fort Shafter,
 the employees sought to wear the union badge on their waiter's uniforms.
 
    With respect to the wearing of union buttons or pins under the NLRA,
 which also accords employees the right to "assist" a labor organization,
 the Supreme Court in Republic Aviation, supra, upheld a National Labor
 Relations Board finding that, in the absence of unusual or special
 circumstances, employees had a right to wear union buttons at the work
 place.
 
    In the instant case there has been no showing, whatsoever, that the
 wearing of the half inch (approximately the size of a dime) union button
 has in any way interfered with the work performance of Mr. Stark or any
 other Inspector.  In fact, the red, white and blue shield which is the
 union button would appear to the casual observer to be a patriotic
 emblem from any distance further than two feet.  It is only from a
 distance of approximately two feet or less that one can discern the
 letters "A.F.G.E., AFL-CIO".
 
    Considering the unobtrusive nature of the dime size union pin, as
 well as the absence of any showing that the wearing of the pin caused
 any confusion or interference with the duties and responsibilities of
 the Inspectors, I find that Respondent's action in prohibiting Mr. Stark
 from wearing the union button on his uniform while he was in contact
 with the public interfered with Mr. Stark's Section 7102 rights and
 thereby violated Section 7116(a)(1) of the Statute.  Cf.  Consolidated
 Casino Corp., 164 NLRB No. 132;  Floridan Hotel of Tampa, Inc., 137 NLRB
 No. 161, enf. as modified on other grounds, 318 F. 2d 545;  and
 Department of Transportation, FAA, Aeronautical Center, A/SLMR No. 117,
 1 A/SLMR 556, rev. in part on other grounds, 1 FLRC 246, where the NLRB
 and the Assistant Secretary of Labor on the basis of similar facts
 reached similar conclusions under the NLRA and Executive Order 11491,
 respectively.
 
    Contrary to Respondent, I can not find that the deprivation of a
 Section 7102 right is "isolated" solely because only one employee was
 involved.  This is particularly true when it is clear that the
 prohibition against wearing a union button is equally applicable to the
 fifty remaining inspectors working in the San Ysidro, California Port of
 Entry.  Nor can I find, as contended by Respondent, that the instant
 complaint should be dismissed since Mr. Stark was not actively engaged
 in either collective bargaining or other union representational activity
 at the time he was instructed by Respondent's representative to remove
 the pin bearing the union logo.  In this connection I do not read the
 Statute as limiting an employee's Section 7102 rights to solely those
 occasions when he is involved in either collective bargaining or union
 representation.  Section 7102 gives an employee the right, among other
 things, to assist a labor organization.  Wearing a union button or pin
 constitutes a form of advertising which exhibits support for the union
 and thereby assists a union in search of members.  Accordingly, I find
 that, absent special circumstances, interference with such right is
 violative of Section 7116(a)(1) of the Statute.
 
    Having concluded that the prespondent violated Section 7116(a)(1) of
 the Statute by prohibiting Mr. Ted Stark from wearing a union membership
 button, I recommend that the Federal Labor Relations Authority issue the
 following order designed to effectuate the purposes and policies of the
 Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute the Authority hereby orders
 that the United States Immigration and Naturalization Service, Port of
 Entry, San Ysidro, California, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining, or coercing its employees by
       prohibiting Mr. Ted Stark or any other Immigration inspector from
       wearing an A.F.G.E., AFL-CIO union membership button while on
       duty.
 
          (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) Post at its facilities located at the San Ysidro,
       California Port of Entry, copies of the attached notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by the Port Director
       and shall be posted and maintained by him for 60 consecutive days
       thereafter in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Port Director shall take reasonable steps to insure
       that such notices are not altered, defaced, or covered by any
       other material.
 
          (b) Notify the Regional Director of Region VIII, Federal Labor
       Relations Authority, 350 South Figueroa Street, 10th Floor, Los
       Angeles, California, within 30 days from the date of this Order as
       to what steps have been taken to comply herewith.
 
                                       /s/ BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  May 20, 1986
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Subsequently, on April 23, 1986, Counsel for Respondent,
 following the expiration of time set for filing briefs and without
 making an appropriate motion, filed an "ADDENDUM" to its timely filed
 closing brief.  On May 9, 1986, General Counsel moved to Strike the
 "ADDENDUM" filed by Respondent.  Having considered the matter, I find
 that the "ADDENDUM" fails to comply with the Authority's Rules and
 Regulations.  Accordingly, the General Counsel's Motion to Strike the
 "ADDENDUM", should be, and hereby is granted.
 
    (2) Unless one was very close to Mr. Stark, it would be almost
 impossible to make out the A.F.G.E., AFL-CIO initials.  From a distance
 the union pin looked to the undersigned, because of its colors and
 stripes, like some patriotic insignia.
 
 
 
 
 
 
                                 APPENDIX
 
                          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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT interfere with, restrain, or coerce our employees by
 prohibiting Mr. Ted Stark or any other Immigration Inspector from
 wearing an A.F.G.E., AFL-CIO union membership button while on duty.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.