31:0145(19)CA - Justice, INS, Washington, DC and AFGE, National Border Patrol Council -- 1988 FLRAdec CA



[ v31 p145 ]
31:0145(19)CA
The decision of the Authority follows:


31 FLRA No. 19

UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, WASHINGTON, D.C.

                   Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL
COUNCIL, AFL-CIO

                   Charging Party

Case No. 8-CA-70178

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of our Rules and Regulations based on the parties' stipulation of facts and briefs filed by the Respondent and the General Counsel. The complaint alleges that the Respondent violated section 7116 (a) (1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by unilaterally changing a past practice in employees' conditions of employment without first completing bargaining with the American Federation of Government Employees, National Border Patrol Council, AFL - CIO (the Union) on the change and/or the impact and implementation of the change. The change concerned the Respondent's decision to prohibit employees from wearing Levi-style trousers (also called "green jeans") while employees are on rough duty in the San Diego, California, Border Patrol Sector.

For the reasons discussed below, we find that: (1) the Respondent had an obligation to bargain over the substance and the impact and implementation of its decision to change the past practice of allowing employees engaged in rough duty to wear green jeans; (2) in response to the Respondent's notice of the change, the Union submitted a substantive bargaining proposal; and (3) the Respondent committed an unfair labor practice by unilaterally implementing the change in the past practice before completing bargaining with the Union. [PAGE]

II. Facts

The Union is the exclusive representative of a nationwide consolidated unit of nonprofessional employees in the Respondent's Border Patrol Sectors, including those in the San Diego, California, Border Patrol Sector. The Respondent and the Union are parties to a collective bargaining agreement covering employees in the consolidated unit. The agreement became effective September 30, 1976, for 2 years, and its terms and conditions have remained in full force and effect at all times material to this proceeding. The agreement was supplemented by a memorandum of understanding on June 10, 1977. The memorandum of understanding clarifies Article 3G of the 1976 agreement by stating that when Sectors decide to take actions which will change personnel policies, practices, and/or working conditions, the Union will be given 15 days' notice and may request negotiations on the changes and/or the impact of the changes as appropriate.

Since the 1976 agreement, no new agreement has been entered into by the parties. In November 1985, the Union filed a request with the Federal Service Impasses Panel for assistance in reaching a new agreement. In June 1986, the Panel referred the matter to interest arbitration. The Arbitrator issued his opinion and Award on September 25, 1987. Both parties have filed exceptions to that award, and the exceptions are pending before the Authority. United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, Case No. 0-AR-1444.

As reflected in the parties' stipulation, the issue of what type of trousers can be worn by the Respondent's employees who are engaged in rough duty work is one of long standing. On October 7, 1981, an arbitrator ruled that the Respondent had unilaterally terminated an established past practice whereby unit employees in the Chula Vista, California, Border Patrol Sector had the option of wearing Levi-style trousers for rough duty work. In his award (attached as Exhibit 1 (f) to the parties' stipulation), the arbitrator stated that the union had requested that Levi-style trousers be allowed for rough duty because they protected the agents' legs better when the agents were running through rough bush and cactus. The arbitrator concluded that a past practice existed under which agents in the Chula Vista Sector had the option of wearing Levi-style trousers for rough duty, and that the Agency violated the parties' contract when it ordered the wearing of such [ v31 p2 ] trousers to cease. The arbitrator ordered that employees in the Chula Vista Sector be allowed to wear Levi-style trousers for rough duty at their option.

The Respondent filed exceptions to the arbitrator's award, and on May 14, 1985, the Authority dismissed the exceptions. U.S. Department of Justice, Immigration and Naturalization Service and National Border Patrol Council, Local 1613, American Federation of Government Employees, 18 FLRA 29 (1985). According to the Authority's decision, the Respondent argued that the award interfered with management's right under section 7106(b)(1) to determine the methods and means of performing its work. The Authority stated that in support of its exception, the Respondent argued 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." 18 FLRA at 30. The Authority found that the award did not conflict with management's right under section 7106(b)(1) of the Statute because the Respondent had not shown how the Levi-style trousers interfered with the stated objective of providing identification of the wearer as a law enforcement officer. The Authority noted that "as found by the Arbitrator, the Levis are essentially identical to the uniform trousers in appearance." 18 FLRA at 31.

On September 19, 1985, the Union filed an unfair labor practice charge in Case No. 8-CA-50571, alleging that the Respondent had refused to comply with the arbitrator's award with regard to the Chula Vista Sector. On January 14, 1986, the FLRA Regional Director for Region 8 approved an informal settlement agreement in that case, by which the Respondent agreed to comply with the arbitration award by reinstating the past practice of allowing employees in the Chula Vista Sector to wear Levi-style trousers for rough duty.

On May 27, 1986, the Respondent and the Union entered into an agreement regarding the wearing of Levi-style trousers for rough duty work by employees in the San Diego Sector. Under that agreement, the Respondent approved the practice of allowing employees in the San Diego Sector to wear three models of green Levi-style trousers for rough duty, in addition to one model it had allowed them to wear since January 1986. Alan Eliason, Chief Patrol Agent for the San Diego Sector, signed the agreement on behalf of the Respondent. The parties stipulated that between January 1986 and December 1986, the past practice found by the arbitrator regarding the wearing of Levi-style trousers for rough duty [ v31 p3 ] work remained in effect in the Respondent's San Diego Sector under the terms of the May 27, 1986 agreement.

By letter dated November 14, 1986, Eliason notified Local 1613 as follows:

In accordance with Article 3G of the Negotiated Agreement, this serves to notify you that the San Diego Sector must return to compliance with Agency policy regarding rough-duty uniform trousers as contained in I&NS Administrative Manual 2215.47.

Effective December 14, 1986, the wearing of green Levi-style trousers will not be allowed while on duty. . . . The Union may present its views (which must be responsive to either the proposed change or the impact of the proposed change) to me by December 3, 1986.

On December 2, 1986, Philip Jacobsen, the Union's Executive Vice - President, responded on behalf of Local 1613 :

The Union must once again advise you that the above subject is being negotiated at the national level in our current contract proposals. It is incumbent on management to adhere to the status quo, which permits the wearing of these trousers, until the national contract negotiations are completed.

By letter dated December 12, 1986, Eliason informed Local 1613:

I am in receipt of a letter . . . proposing that the Sector maintain the status quo until the completion of the National Contract Negotiations. Since the notice affects only the employees of the San Diego Sector and it is necessary to bring the Sector into compliance with Agency policy regarding rough-duty uniform trousers, the matter is considered a local issue. As you are aware, contract negotiations are continuing, and this Sector will implement any changes resulting from the contract negotiations; therefore, the proposal by Mr. Jacobsen is not responsive to the issue.

Since you failed to present your views to me, this is to advise you that effective the pay [ v31 p4 ] period beginning December 21, 1986, the wearing of green Levi-style trousers will not be allowed while on duty.

On December 16, 1986, the Respondent, through Eliason, notified all border patrol agents in its San Diego Sector that "(e)ffective December 21, 1986, the wearing of green Levi style trousers will not be allowed while on duty(,)" with the exception of employees engaged in horse patrol duties. Effective December 21, 1986, to the present, the Respondent has eliminated the wearing of green Levi-style trousers while employees are engaged in rough duty work, except horse patrol duties.

III. Positions of the Parties

A. The General Counsel

The General Counsel contends that the Respondent's unilateral change in the past practice, without first completing bargaining with the Union on the change and/or its impact and implementation, constitutes an unfair labor practice. The General Counsel asserts that the change concerned employees' conditions of employment, and that the Union's December 2, 1986 response--that the Respondent maintain the status quo until the completion of the parties' national contract negotiations--was a substantive bargaining proposal. According to the General Counsel, the Respondent erred in contending that the Union failed to present a proposal concerning the change, and the Respondent was not justified in unilaterally implementing the change without completing bargaining.

The General Counsel also asserts that the Respondent's change does not concern the "methods and means" used by the Agency to perform its work within the meaning of section 7106(b)(1) of the Statute. The General Counsel argues that the Respondent therefore was required to bargain over the substance of the change. The General Counsel contends that the Authority considered and rejected the identical "methods and means" argument made by the Respondent here that it made in Immigration and Naturalization Service, 18 FLRA 29, and that the Respondent therefore is precluded from raising that issue in this proceeding. The General Counsel further contends that the change does not concern "methods and means" because the wearing of Levi-style trousers does not interfere with the purpose for which the Respondent has decided to require uniform trousers--providing ready identification of the wearer as a representative of Government authority. The General Counsel therefore asserts that the Authority should [ v31 p5 ] find that the Respondent committed the unfair labor practices alleged in the complaint.

B. The Respondent

The Respondent contends that it acted properly in restricting the wearing of green jeans at the San Diego Sector. The Respondent contends that its change in the past practice of allowing employees to wear green jeans was effectuated in a manner consistent with the Statute. The Respondent maintains that it gave the Union notice of and an opportunity to bargain over the intended change and received no bargaining proposal that was responsive to the proposed change.

The Respondent also contends that in order to show that a party took improper unilateral action during negotiations, it is necessary to demonstrate that the same or a related matter is under negotiation at the time the change is made. The Respondent alleges that the parties' stipulation does not contain evidence as to any Union proposals under negotiation concerning green jeans, or as to any related proposals before the interest arbitrator. The Respondent therefore asserts that there has been no showing that management acted improperly as to matters which were under negotiation.

The Respondent acknowledges its obligation to continue to the maximum extent possible terms and conditions of employment established by the contract. It maintains that it was required by the contract to make the change prohibiting the wearing of green jeans in order to enforce national uniform regulations and correct the deficient practice in the San Diego Sector. The Respondent asserts, therefore, that "irrespective of matters that might be under negotiation elsewhere, the action of the Chief Patrol Agent in eliminating the deficient practice in his Sector was totally proper." Respondent's Brief at 7-8. The Respondent contends also that the 1981 arbitration award does not resolve this case and does not preclude the Respondent from raising any issues in this proceeding.

Finally, the Respondent asserts that management's decision to restrict the wearing of green jeans in the San Diego Sector pursuant to its national uniform policy is protected by two provisions of section 7106 of the Statute which entitled management to terminate the improper practice after expiration of the contract. First, the Respondent contends that its decision to require a standard uniform trouser involves a determination as to the methods and means of accomplishing or furthering the performance of the [ v31 p6 ] Agency's work under section 7106(b)(1) of the Statute. According to the Respondent, management's requirement for professionally dressed Border Patrol Agents--those wearing a total uniform including designated rough duty trousers--encourages public respect and cooperation with the Agency's mission. In asserting that to allow the practice of wearing green jeans to continue would interfere with that purpose, the Respondent states (Brief at 8): "(T)he professional appearing officer in a complete uniform, as opposed to the officer who may be viewed to be a hunter or laborer in his jeans, will command respect and cooperation, and will be more likely to achieve his work goals." Second, the Respondent contends that the uniform constitutes an exercise of management's right under section 7106(a)(1) to determine its organization. The Respondent contends that under either provision of section 7106, the wearing of green jeans is not a negotiable subject, and following the expiration of a negotiated agreement management may unilaterally terminate a practice which permitted the wearing of green jeans.

IV. Discussion

The issue is whether the Respondent violated the Statute by unilaterally changing the past practice in its San Diego Sector of allowing employees to wear green Levi-style trousers while on rough duty, without first completing bargaining with the Union on the change and/or its impact and implementation. We find, as stipulated by the parties, that such a past practice existed between January 1986 and December 1986. There is also no dispute, and we find, that the past practice concerned employees' conditions of employment within the meaning of section 7103(a)(14) of the Statute. Where a condition of employment has become established for unit employees through past practice or agreement of the parties, changes may not be made by the agency involved without fulfilling its bargaining obligations. Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322, 324 (1987). Therefore, in order to determine whether the Respondent committed an unfair labor practice in making the change in employees' conditions of employment, we must determine the extent of the Respondent's bargaining obligation in these circumstances and whether the Respondent fulfilled its bargaining obligation.

For the reasons which follow, we find that: (1) the Respondent had an obligation to bargain over the substance and the impact and implementation of its decision to change the past practice of allowing employees engaged in rough duty [ v31 p7 ] to wear green jeans; (2) in response to the Respondent's notice of the change, the Union submitted a substantive bargaining proposal; and (3) the Respondent committed an unfair labor practice by unilaterally implementing the change in the past practice before completing bargaining with the Union.

As an initial matter, we reject the General Counsel's contention that the Respondent's "methods and means" argument in this case raises the identical issue set forth in the Authority's decision in Immigration and Naturalization Service, and that we are therefore precluded from considering that argument. The Respondent argues here that it requires the wearing of standard uniform trousers because allowing agents to wear green jeans interferes with its objective of encouraging public respect and cooperation with the Agency's mission, and that this requirement therefore is an exercise of its right under section 7106(b)(1) to choose the "means" to perform its work. This issue is different from the issue in Immigration and Naturalization Service, in which the Authority stated the Agency's argument to be that the uniform requirement was necessary in order to enable Border Patrol Agents to be identified. Accordingly, the issue which is presented in this case was not actually litigated and decided in Immigration and Naturalization Service, and we will consider the Respondent's "methods and means" argument in this case.

Under section 7106(b)(1) of the Statute, management has the right to determine the methods and means to be used to perform its 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 Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA No. 115 (1988), slip op. at 27. In order to constitute a "means" of performing work, there must be a direct and integral relationship between the particular instrumentality an agency chooses to use and the performance of the agency's work. Where there is such a relationship between the uniform requirement and the agency's mission, the requirement that employees wear a uniform in the performance of their duties constitutes a determination of the "means" of performing an agency's work. See American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA 62, 67 (1986). [ v31 p8 ]

The Authority has also held that proposed additions or modifications to the required uniform may be negotiated, as long as those additions or modifications do not conflict with the mission-related purposes which an agency seeks to achieve in requiring employees to wear a uniform. See American Federation of Government Employees, AFL - CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 25 FLRA 1028 (1987). Proposed additions or modifications to a uniform which are incompatible with the mission-related purposes for which an agency requires the wearing of uniforms are nonnegotiable because they interfere with management's rights under section 7106(b)(1). See U. S. Department of Justice, Kennedy Center, Federal Correctional Institution Bureau of Prisons, 29 FLRA 1471 (1987) (Member McKee concurring in relevant part), petition for review filed sub nom. American Federation of Government Employees v. FLRA, No. 87-1820 (D.C. Cir. Dec. 23, 1987).

The Respondent argues in this case that its mission-related purpose for requiring agents engaged in rough duty to wear standard uniform trousers instead of green jeans is to command respect for and cooperation with the agents and to make it more likely that agents will achieve their work goals. Further, the Respondent argues that it has adopted the uniform as an organizational tool, and allowing the wearing of green jeans interferes with management's right to determine its organization.

We find that the Respondent has not established that allowing agents engaged in rough duty to wear green jeans interferes with the stated purpose for the Respondent's standard trouser requirement. The practice of permitting agents engaged in rough duty to wear green jeans had existed for some time in the San Diego Sector. The Respondent has not established and the record does not show that the practice caused any loss of respect or cooperation or otherwise interfered with the Respondent's mission. Therefore, the Respondent has not demonstrated that continuation of the past practice of allowing the wearing of green jeans directly interfered with the exercise of its right under section 7106(b)(1) of the Statute to determine the methods and means of performing its work. Similarly, the Respondent has not demonstrated how the change in the past practice involves an exercise of its right to determine its organization under section 7106(a)(1). See National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA 314, 316 (1986). We conclude that the change in the past practice involved a change in [ v31 p9 ] employees' conditions of employment which was subject to bargaining as to its substance and its impact and implementation.

We further find that the response by the Union to the Respondent's notice of the intended change was a substantive bargaining proposal. The Union proposed that the Respondent maintain the status quo, permitting the wearing of green jeans, until the national contract negotiations were completed. The Respondent therefore had an obligation to bargain over the proposal before implementing the change. See Veteran's Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278 (1986). By unilaterally implementing the change before completing bargaining, the Respondent committed an unfair labor practice.

In order to remedy the violation, we shall order that the Respondent rescind the change, as set forth in its December 16, 1986 directive; restore the past practice of permitting San Diego Sector agents to wear green Levi-style trousers; and notify the Union and bargain upon request concerning any future changes in the practice.

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 United States Department of Justice, Immigration and Naturalization Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Failing or refusing to bargain in good faith with the American Federation of Government Employees, National Border Patrol Council, AFL - CIO (AFGE), the exclusive bargaining representative of its border patrol agents, by unilaterally instituting changes in the past practice of permitting border patrol agents in the San Diego Sector, San Diego, California, to wear green Levi-style trousers (as agreed by letter of May 27, 1986, to Local 1613, AFGE) while engaged in rough duty work, without first completing bargaining with AFGE concerning any proposed change.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. [ v31 p10 ]

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the change prohibiting border patrol agents in the San Diego Sector from wearing green Levi-style trousers while engaged in rough duty work, as set forth in the December 16, 1986 directive, which became effective on December 21, 1986.

(b) Restore the past practice of permitting border patrol agents in the San Diego Sector to wear green Levi-style trousers while engaged in rough duty work.

(c) Notify and, upon request, bargain with AFGE concerning any future changes in the practice of permitting border patrol agents in the San Diego Sector to wear green Levi-style trousers while engaged in rough duty work.

(d) Post at its San Diego Sector, San Diego, 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 the Regional Commissioner, Immigration and Naturalization Service, 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.

(e) 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 27, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p11 ]

                      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 fail or refuse to bargain in good faith with the American Federation of Government Employees, National Border Patrol Council, AFL - CIO (AFGE), the exclusive bargaining representative of our border patrol agents, by unilaterally instituting changes in the past practice of permitting border patrol agents in the San Diego Sector, San Diego, California, to wear green Levi-style trousers (as agreed by letter of May 27, 1986, to Local 1613, AFGE) while engaged in rough duty work, without first completing bargaining with AFGE concerning any proposed change.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL rescind the change prohibiting border patrol agents in the San Diego Sector from wearing green Levi-style trousers w