25:0490(35)CA - Justice, INS, Port of Entry, San Ysidro, CA and INS Council, AFGE Local 2805, San Diego, CA -- 1987 FLRAdec CA



[ v25 p490 ]
25:0490(35)CA
The decision of the Authority follows:


 25 FLRA No. 35
 
 UNITED STATES DEPARTMENT OF
    JUSTICE, 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, SAN DIEGO, CALIFORNIA
    Charging Party
 
                                            Case No. 8-CA-50367
 
                          DECISION AND ORDER /1/
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that the Respondent be ordered to cease and desist and take
 certain affirmative action.  The Judge also found that the Respondent
 had not engaged in certain other unfair labor practices alleged in the
 complaint, and recommended that the complaint be dismissed as to these
 allegations.  Thereafter, the Respondent filed exceptions to the Judge's
 Decision with a supporting brief.  The General Counsel filed a brief in
 support of the Judge' s Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 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
 Judge's Decision, the Respondent's exceptions, the General Counsel's
 response to the exceptions, and the entire record, the Authority hereby
 adopts the Judge's findings, conclusions, and recommended Order, as
 modified.  /2/ See United States Immigration and Naturalization Service,
 Port of Entry, San Ysidro, California, 25 FLRA No. 30 (1987).
 
                                   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 Department of Justice, 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
 forbidding Richard Walker or any other uniformed inspector, while on
 duty, from wearing an American Federation of Government Employees pocket
 penholder or other union insignia which does not detract from the
 uniform.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing 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) Permit Richard Walker or any other uniformed inspector, while on
 duty, to wear an American Federation of Government Employees pocket
 penholder or other union insignia which does not detract from the
 uniform.
 
    (b) Post at its San Ysidro, California 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.
 
    It is further ordered that the complaint is dismissed as to
 allegations concerning section 7116(a)(5) of the Statute.
 
    Issued, Washington, D.C., February 4, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                  DISSENTING OPINION OF CHAIRMAN CALHOUN
 
    Unlike the situation in United States Immigration and Naturalization
 Service, Port of Entry, San Ysidro, California, 25 FLRA No. 30 (1987),
 which involved the wearing of a lapel pin, in this case I conclude that
 the Agency has adequately demonstrated that " special circumstances"
 exist which warrant restricting the employee's right "to form, join or
 assist any labor organization" under section 7102 of the Statute.  See
 United States Army Support Command, Fort Shafter, Hawaii, 3 FLRA 796
 (1980).
 
    As discussed in the Administrative Law Judge's Recommended Decision,
 in exercising section 7102 rights, the interests of employees and
 management must be balanced.  I believe that this balancing requires
 slightly more stringent deference to management's interests when, as
 here, the employee is a uniformed law-enforcement officer.  The "small,
 neat, inconspicuous, non-provacative" standard enunciated in Fort
 Shafter should be gauged against the fact that law-enforcement personnel
 must present a disciplined, authoritative, and unifrom appearance.
 
    In this case the penholder is 2 and 1/2 inches high and 3 and 1/2
 inches wide.  It is larger and more visible than any official adornment
 on the employee's uniform.  I also find it significant that when the
 employee is in uniform, he is in constant contact with the public,
 including contact with foreign nationals.  In such circumstances the
 need for uniformed Immigration Inspectors to present a professional and
 authoritative appearance is increased.
 
    Since the employee was prohibited from wearing the penholder only
 when he was in uniform, I believe special circumstances have been shown.
  I also concur in the Administrative Law Judge's finding that no past
 practice concerning the wearing of the penholders has been established.
 
    Issued, Washington, D.C., February 4, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
 
 
 
 
 
 
 
  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 forbid Richard Walker or any other uniformed inspector,
 while on duty, from wearing an American Federation of Government
 Employees pocket penholder or other union insignia which does not
 detract from the uniform.
 
    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 Richard Walker or any other uniformed inspector, while
 on duty, to wear an American Federation of Government Employees pocket
 penholder or other union insignia which does not detract from the
 uniform.
                                       (Activity)
 
    Dated:  . . .  By:  . . .
                                       (Signature) (Title)
 
    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 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 --------------------
 
 
                     FEDERAL LABOR RELATIONS AUTHORITY
                    OFFICE OF ADMINISTRATIVE LAW JUDGES
                          WASHINGTON, D.C.  20424
 
    Case No.: 8-CA-50367
 
    UNITED STATES DEPARTMENT OF
    JUSTICE, 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, SAN DIEGO, CALIFORNIA
    Charging Party
 
    Melainie Fitzsimmons, Esq.
    For Respondent
 
    Richard Walker
    For Charging Party
 
    Deborah S. Wagner, Esq.
    For General Counsel
 
    Before:  SAMUEL A. CHAITOVITZ
    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., 92 Stat. 1191 (hereinafter referred to as the
 Statute) and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
 
    Pursuant to a charge filed on May 31, 1985, and amended on August 19,
 1985, by Immigration and Naturalization Council, American Federation of
 Government Employees, Local 2805, AFL-CIO /3/ against United States
 Department of Justice, Immigration and Naturalization Service, Port of
 Entry, San Ysidro, California, hereinafter called Respondent and INS San
 Ysidro, /4/ the General Council of the FLRA, by the Director of Region
 VIII issued the Complaint and Notice of Hearing herein on August 28,
 1985 alleging that Respondent violated Section 7116(a)(1) and (5) of the
 Statute by preventing an employee from wearing a penholder which
 displayed the initials of AFGE, thereby changing an alleged past
 practice, without notifying Local 2805 AFGE and affording it an
 opportunity to bargain about the change.  Respondent filed an Answer
 denying it had violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in San
 Diego, California.  Respondent, Charging Party and General Counsel of
 the FLRA were represented and afforded full opportunity to be heard, to
 examine and cross-examine witnesses, to introduce evidence and to argue
 orally.  Briefs were filed and have been fully considered.  /5/
 
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and my evaluation of the record I make the
 following:
 
                             Findings of Fact
 
    In 1968 the Council was recognized by INS as the exclusive collective
 bargaining representative of a servicewide unit composed of all INS
 employees except those assigned to Border Partrol Sectors and certain
 others not relevant herein.  The employees at INS San Ysidro are within
 this unit.  The Council and INS have been parties to successive
 collective bargaining agreements, the most recent of which is effective
 from September 21, 1984 to September 21, 1986, covering the employees in
 the nationwide unit.  Local 2805 AFGE is a constituent of the Council.
 
    Richard Walker is employed by INS.  He has held the position of
 Special Agent since 1972 and has been at all times material a member of
 the bargaining unit.  Walker's duty station is the San Diego District
 Office.  His duties as a special agent consist of the location and
 apprehension of aliens who are in the United States illegally.  His
 working clothes consist of a suit and tie.
 
    Walker occasionally works overtime assignments as an Immigration
 Inspector at the San Ysidro Port of Entry.  His overtime work is usually
 performed on the evening shift and his duties consist of inspecting
 individuals and vehicles coming into the United States and evaluating
 their eligibility for admission.  Walker has worked an average of about
 one night of such overtime per pay period since mid-1983.  All
 Inspectors are required to wear a uniform.  The uniform consists of a
 light blue shirt with an INS insignia on the arm, darker blue pants,
 black shoes and socks, and a black belt.  On the shirt, a badge appears
 above the left breast pocket and a brass nameplate above the right
 pocket.  The winter uniform includes a long sleeve shirt, a jacket and a
 tie, while the summer consists of a short sleeve shirt and no tie.  The
 uniform is described in the Administrative Manual.  The Officer's
 Handbook provides, inter alia, "Where a uniform is required, it should
 be complete in all details and devoid of ornaments which are not part of
 the uniform." Inspectors on occasion wear sidearms.  They deal with the
 public and are engaged in law enforcement.  The purposes for wearing the
 uniform are so Inspectors can be readily identified as law enforcement
 officials, so they can be identified as INS Inspectors and so they are
 not confused with other officials who are present (e.g. customs agents).
 
    All the Inspectors at the San Ysidro Port of Entry rotate from one
 assignment to another every half hour.  There are normally two or three
 first line supervisors and one operational supervisor, a second line
 supervisor, on duty during the evening shift, when Walker worked his
 overtime assignments.  The first line supervisors are stationed in
 different work areas along with the Inspectors, in the areas where the
 public is inspected, while the operational supervisor is located in the
 main office on the second floor.  Accordingly, operational supervisors
 normally have little contact with employees during evening shifts,
 whereas first line supervisors are stationed directly in the work areas
 with the Inspectors, who rotate through the different wash areas, and
 the Inspectors are regularly observed by these first line supervisors.
 The first line supervisors make sure the Inspectors are in proper
 uniform.  The operational supervisors and Port Director also enforce the
 uniform requirement on the occasions they observe Inspectors.  The Port
 Director rarely worked the evening shift and had very little contact
 with the Inspectors during the evening shift.
 
    In 1982 Walker was Local 2805 AFGE Chief Steward;  in 1983 he was the
 Local Vice-President;  and in 1984 he was the Local President.  In 1985
 Walker was Local 2805 AFGE's arbitration specialist and in October 1985
 he again became Chief Steward.
 
    From mid-1983 to May 1985, Walker wore a penholder and pocket
 protector in the right breast pocket of his uniform shirt.  Walker wore
 the penholder each time he worked as an Inspector.  The penholder is
 off-white and fits inside the breast-pocket with a flap of the same
 color that folds over the top of the breast-pocket.  The flap is 2 and
 1/2 inches high and 3 and 1/2 inches wide and contains the AFGE Logo and
 initials in blue and red with the inscription "TO DO FOR ALL THAT WHICH
 NONE CAN DO FOR HIMSELF".  /6/ Walker wore the pocket flap tucked in so
 that the penholder did not obscure his brass nameplate.  /7/ When the
 uniform jacket was worn, it covered the penholder.  /8/
 
    During early 1985 Robert Rich, Operations Supervisor, talked to
 Walker in the vehicle secondary inspection area.  Walker was working
 overtime as an Inspector at the San Ysidro Port of Entry.  Rich asked
 Walker whether Walker would remove the penholder if asked to do so.
 Walker replied that he would not and that it would be an unfair labor
 practice for Rich to require it.
 
    On May 22, 1985 Walker was working overtime as an Inspector at the
 San Ysidro Port of Entry.  Rich approached Walker and told Walker to
 remove his penholder.  Walker asked Rich, "Why?" and Rich replied that
 the penholder was not part of the official uniform so it could not be
 permitted.  Walker asked whether he was being ordered to remove the
 penholder and Rich replied that it was an order.  Walker removed the
 penholder and told Rich that Walker felt this constituted an unfair
 labor practice, and he would file an unfair labor practice charge.  Rich
 replied that they would each have to do what each felt was necessary.
 
    In the fall of 1984 Rich told Local 2805 AFGE officials Ted Stark and
 Sherman Swanson that the penholders were forbidden.  In the Spring of
 1985 Rich told several new trainees to remove the penholder and to relay
 the message to another employee, Marissa Hernandez.
 
    Certain buttons were worn by Inspectors which were issued by INS.
 One such button was one that said "We Serve With Courtesy & Pride" and
 was issued before the 1984 Olympics.  Wearing of the button was
 optional.  Another such pin is the service year pin, which is issued
 every five years, setting forth the employees length of service, and is
 normally worn on or near the nameplate or badge.  Employees also wore a
 patch commemorating the 200th anniversary of the United States and black
 armband for a deceased fellow officer.
 
    Inspectors also wore olympic torch pins, /9/ tie tacks, /10/ belt
 buckles, /11/ necklaces and earings.
 
    Stark wore a two-inch diameter San Diego Padres Button intermittently
 during the 1984 baseball playoffs and continuously during the 1984 World
 Series.  Although clearly visible no supervisor told Stark to remove the
 button until after the World Series was over.
 
    Article 25 of the Collective Bargaining Agreement provides:
 
                   ARTICLE 25 - Uniforms and Appearance
 
          A.  The Service agrees to notify the Council President within
       twenty-two (22) workdays of receipt in the Central Office of all
       employees' suggestions regarding uniforms.
 
          B.  The Service will notify and discuss with the Union all
       proposed uniform changes, additions and deletions, prior to
       circulation to the field.
 
          C.  The District Director will determine the periods of time,
       the tours of duty, and assignments during which the short-sleeved
       uniform shirt will be worn.  Neckties will not be worn with rough
       duty uniforms or with summer dress uniforms, except where the
       short-sleeved shirt is worn with the blouse.  Ties and the tie
       clasp will also always be worn with long-sleeved dress uniform
       shirts or dress uniform coat.
 
          D.  All leather goods for uniform wear shall be made of high
       quality, black, untooled leather.  Leather equipment shall be kept
       dyed and shined, and shall be replaced when it is cracked or worn
       out.  All leather goods for plain clothes wear shall be well made
       of high quality leather and maintained in good serviceable
       condition.  In all cases, the style and design of holsters and
       other leather goods will meet the specifications contained in
       Service regulations.
 
          E.  Bringing all uniform items to formal inspections shall not
       be necessary after all required uniform items have been purchased
       and inspected by the appropriate supervisory officer.  Thereafter,
       formal inspection will be for officers to appear in full uniform
       semiannually, once in winter dress uniform and once in summer
       dress uniform.  Supervisory officers will be responsible for
       conducting informal daily visual inspections of the officers in
       their respective units or stations.  If uniform deficiencies are
       noted, immediate corrective action will be taken.
 
          F.  Management will provide fatigue clothing suitable for the
       protection of civilian clothing or uniforms.  The necessity, type,
       and quantity of the clothing will be determined by Management
       (normally the District Director) and fatigue clothing will be
       stored at the official duty stations.
 
          G.  Female Immigration Inspectors shall be allowed the option
       of wearing either the authorized uniform skirt or uniform slacks
       at sea and land border ports of entry.
 
                     Discussion and Conclusions of Law
 
    General Counsel of the FLRA contends that INS San Ysidro violated
 Section 7116(a)(1) of the Statute by denying Walker the right to wear
 the AFGE penholder and violated Sections 7116(a)(5) and (1) of the
 Statute by unilaterally changing an existing working condition when INS
 San Ysidro ordered Walker to remove the penholder without affording
 Local 2805 AFGE an opportunity to bargain about the change.
 
    Section 7102 of the Statute provides, inter alia, "Each employee
 shall have the right to form, join or assist any labor organization, . .
 . " The FLRA has long recognized that Section 7102 of the Statute grants
 employees the right to wear small, neat, inconspicuous, non-provocative
 union insignia at work.  United States Army Support Command, Fort
 Shafter, Hawaii, 3 FLRA 796 (1980), hereinafter called the Fort Shafter
 Case;  and Federal Aviation Administration, Spokane Tower/Approach
 Control, 15 FLRA 668 (1984), hereinafter called the FAA Case.  In
 determining whether there has been a violation of such a right under the
 Statute or whether there are the type of "special circumstances" that
 would warrant an agency in restricting such a right, the circumstances
 are examined and the competing rights and obligations are balanced.
 Fort Shafter Case, supra.
 
    In the Fort Shafter Case, supra, the FLRA, by affirming the
 Administrative Law Judge, concluded that in the circumstances there
 present a 3-inch long by 1 and 1/2 inch wide Steward badge, which was
 about the same size as the Hotel name tag, could be considered a change
 of the uniform and thus waived by the Union in the contract /12/ and
 that, because customers were confused as to whether the waiter worked
 for the hotel or union, the prohibition was a valid exercise of the
 Respondent's right, on the basis of business judgment, to avoid
 confusing customers.
 
    In the subject case the employees presumably have the same rights
 under Section 7116(a)(1) of the Statute to wear an insignia on behalf of
 a labor organization.  The rights and interests of the parties have to
 be balanced.  In this case the balance involves Walker's right as
 guaranteed by Section 7102 of the Statute to wear the AFGE penholder and
 INS' purpose, interest and consideration in requiring the Investigators
 to wear uniforms.  Basically INS requires the Investigators to wear
 uniforms so that the Investigators are clearly identifiable as law
 enforcement agents, are easily noticed, and are in uniforms easily
 distinguishable from the other uniformed government employees who may
 also be present.
 
    At the hearing I observed the uniforms worn by the Investigators and
 the penholder and I find that the penholder did not detract from the
 uniform and would not reasonably have confused any member of the public.
  Further, the wearing of the penholder would not interfere with any of
 the purposes for which the uniform is worn.  The Investigators would
 still be clearly identifiable as law enforcement officers and would
 still be distinguishable from the other uniformed government employees.
 Finally the appearance of the penholder, neat and useful, was not one
 that would have harmed the image of the INS that the uniform would
 convey.
 
    INS seems to contend that the wearing of the uniform by Investigators
 is the "means" to perform the work of the INS.
 
    Section 7106(b)(1) of the Statute provides:
 
          " (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating -
 
          (1) at the election of the agency, on the numbers, types, and
       grades employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work;"
 
    It has been recognized as far back as 1977 under Executive Order
 11491 that the wearing of a uniform by INS law enforcement employees is
 an exercise by management of the means by which to perform its law
 enforcement operations.  AFGE, National Immigration and Naturalization
 Service Council and Department of Justice, INS, 5 FLRC 105 (1977)
 (hereinafter called the INS Council Case), and American Federation of
 Government Employees, AFL-CIO, National Immigration and Naturalization
 Service Council and U.S. Department of Justice, Immigration and
 Naturalization Service Council, 8 FLRA 347 (1982) (hereinafter called
 the INS Nameplate Case).  In both cases it was recognized that, although
 the uniform is a "means" within INS' privilege to act, that does not
 mean that the INS' right is absolute.  /13/ Rather it was recognized
 that the employees' rights still may exist, i.e. the obligation to
 bargain, so long as the exercise of the employees' rights does not
 negate the purpose for which uniforms are required.  Thus because I
 concluded that the AFGE penholder would not negate the purpose for the
 uniform, I reject INS' contention that because the uniform was a
 "means", and therefore non-negotiable, INS was privileged to forbid the
 wearing of the penholder.  Similarly, I reject INS' argument that
 because Article 25 of the collective bargaining agreement provides,
 inter alia, that INS will notify the Council president of employee
 suggestions concerning the uniform and will notify the Council of all
 proposed uniform changes, that the Council waived the employee right to
 wear union insignia.  Any waiver of a protected right must be clear and
 unequivocal and this provision of the collective bargaining agreement
 does not constitute such a waiver.  See Fort Shafter Case, supra and
 Nuclear Regulatory Commission, 8 FLRA 715 (1982).
 
    Accordingly, I conclude that INS San Ysidro did violate Section
 7116(a)(1) of the Statute because it interfered with Walker's right
 guaranteed by Sector 7102 of the Statute by ordering Walker to remove
 the AFGE penholder.
 
    The General Counsel of the FLRA contends that Walker's wearing of the
 AFGE penholder was a past practice that constituted a condition of
 employment and that INS San Ysidro changed such condition in violation
 of Section 7116(a)(5) of the Statute when it ordered Walker to remove
 the AFGE penholder without prior notification to Local 2805 AFGE and
 without providing the union with an opportunity to bargain about the
 change.
 
    A practice becomes a term and condition of employement when it has
 been consistently exercised for a substantial period of time with the
 knowledge and consent of the management.  U.S. Immigration and
 Naturalization Service, 16 FLRA 1007 (1984).  In the instant case only
 Walker is alleged to have worn the penholder consistently while in
 uniform and he worked in a uniformed capacity only one day a pay period.
  Thus Walker only appeared in uniform about once every two weeks.
 Further on a number of those occasions, when it was cool, the penholder
 was concealed by Walker's uniform jacket.  Further it is noted that,
 according to the record, the only other employees, including AFGE Local
 2805 officials, who wore the penholder were told by INS San Ysidro
 officials to remove them and to so inform other employees.  Some of
 these incidents occurred as far back as the Fall of 1984.  In such
 circumstances I find the wearing of the AFGE penholder was not a past
 practice that constituted a term and condition of employment within the
 constraints set forth in U.S. Immigration and Naturalization Service, 16
 FLRA 1007 (1984).  Accordingly, I conclude that INS San Ysidro did not
 violate Section 7116(a)(5) of the Statute when it ordered Walker to
 remove the penholder.
 
    Having concluded that INS San Ysidro violated Section 7116(a)(1) of
 the Statute when it ordered Walker to remove the AFGE penholder I
 recommend that the Authority issue the following:
 
                                   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, the Authority hereby orders
 the United States Department of Justice, Immigration and Naturalization
 Service, Port of Entry, San Ysidro, California, shall:
 
          1.  Cease and desist from:
 
          (a) Forbidding uniformed inspectors from wearing an American
       Federation of Government Employee pocket penholders or other
       insignia on behalf of the American Federation of Government
       Employees, or any other labor organization, that do not detract
       from the uniform.
 
          (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) Permit Richard Walker, or any other employee, while in
       uniform, to wear an American Federation of Government Employee
       pocket penholder or any other insignia on behalf of the American
       Federation of Government Employees, or any other labor
       organization, that do not detract from the uniform.
 
          (b) Post at its San Ysidro, California facilities copies of the
       attached Notice on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receipt of such forms, they shall be
       signed by a responsible official 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 such 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
       herewith.
                                       /s/ Samuel A. Chaitovitz
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  May 16, 1986
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) In his recommended order the Judge inadvertently neglected to
 include a provision, consistent with his Decision, for dismissal of the
 allegation of a section 7116(a)(5) violation.  This has been corrected.
 
    (3) The Charging Party will be referred to as Local 2805 AFGE;  the
 Immigration and Naturalization Council will be referred to as the
 Council;  and American Federation of Government Employees, AFL-CIO, will
 be referred to as AFGE.
 
    (4) The Immigration and Naturalization Service will herein be
 referred to as INS.
 
    (5) Respondent filed an Addendum to its brief on April 23, 1986.
 General Counsel of the FLRA filed a Motion to Strike addendum.  The
 Addendum was untimely filed and is hereby rejected.
 
    (6) This is a replica of the pocket flap, excepting the colors:
 
       REPLICA OMITTED
 
    (7) In this regard I credit Walker whose memory was more precise as
 to where and how he wore the penholder than the memory of the other
 witnesses.
 
    (8) Walker also wore the penholder in his shirtpocket when he was
 performing his normal duties as a Special Agent and was therefore not in
 uniform.
 
    (9) The Olympic Torch pins bear the initials "INS", are about the
 size of a tie tack (3/4 inch high and a 1/2 inch wide), and were sold by
 the employee Recreation and Welfare Association.  They were worn on the
 shirt pocket flap, the shirt collar or lapel and on the badge.
 
    (10) Employees wore a variety of tie tacks, (e.g. "Smurfs", "Yosemite
 Sam", border patrol tack) which are about 1/2 inch by 1/2 inch and an "I
 Love America" tie tack which is about 1/2 inch by 1 and 1/2 inches.
 They also wore Marine Corps and Air Force emblem tie tacks and plain
 gold bars.
 
    (11) Inspectors wore a variety of belt buckles, including Border
 Patrol belt buckles.
 
    (12) The contract provided that employees will wear uniforms
 prescribed by the employer without altering it.
 
    (13) Although I have rejected Respondent's Addendum to its brief, I
 conclude that Goldman v. Weingerger, 54 LW 4298 (1986) is inapposite to
 the subject case.
 
 
 
 
 
 
                          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 forbid uniformed inspectors from wearing an American
 Federation of Government Employees pocket penholders or other insignia
 on behalf of the American Federation of Government Employees, or any
 other labor organization, that do not detract from the uniform.
 
    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 permit Richard Walker, or any other employee, while in
 uniform, to wear an American Federation of Government Employees pocket
 penholder or any other insignia on behaof of the American Federation of
 Government Employees, or any other labor organization, that do not
 detract from the uniform.
                                       (Agency or Activity)
 
    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 of the Federal Labor Relations Authority,Region VIII,
 whose address is:  350 S. Figueroa Street, 10t