38:1256(101)CA - - Justice, INS, Border Patrol, El Paso, TX and AFGE, National Border Patrol Council - - 1991 FLRAdec CA - - v38 p1256

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[ v38 p1256 ]
38:1256(101)CA
The decision of the Authority follows:


38 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

BORDER PATROL

EL PASO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Charging Party)

6-CA-70732

and

6-CA-80175

DECISION AND ORDER

January 4, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These unfair labor practice cases are before the Authority on exceptions filed by the Respondent to the attached Decisions of the Administrative Law Judge (the Judge). The General Counsel filed an opposition to the Respondent's exceptions in both cases. In Case No. 6-CA-70732, the General Counsel also filed cross-exceptions and the Respondent filed an opposition to the General Counsel's cross-exceptions. Because the underlying facts in these cases are the same and because the applicable law and precedent applicable to the complaints is the same, we have consolidated these cases for decision. The Respondent, the Union, and the General Counsel each submitted supplemental briefs in both cases.

The complaint in Case No. 6-CA-70732 alleged that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with, restraining and coercing bargaining unit employees in the exercise of their rights under section 7102 of the Statute by prohibiting bargaining unit employees from wearing a Union lapel pin during their duty hours.

The complaint in Case No. 6-CA-80175 alleged that the Respondent interfered with, restrained and coerced employees in the exercise of their statutory rights by taking into consideration their Union activity when issuing to them an annual Officer Corps Rating in violation of section 7116(a)(1) of the Statute; and discriminated against employee Robert J. Marren by considering his Union activity when issuing to him his appearance rating as part of his annual Officer Corps Rating in violation of section 7116(a)(1) and (2) of the Statute.

The Judge found that the Respondent's conduct in both cases violated the Statute as alleged. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearings and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decisions and the entire records, and consistent with our decision in US Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701 (1990) (INS 3), we adopt the Judge's decisions for the reasons set forth below.

II. Background

A. Case No. 6-CA-70732

The Union represents all nonprofessional border patrol agents of the Respondent. The Union's Executive Vice President, Robert J. Marren, is a border patrol agent at the Fabens Station Office. He serves as a chief steward there. He wore a Union lapel pin on his agent's uniform in September 1987 at a labor-management relations meeting.(1) Judge's Decision at 3; Hearing Transcript at 49. The Union lapel pin is a glossy shield-shaped emblem, 1/2 inch in width by 3/8 inch in height, with red, blue, and white stripes, and gold trim, and has the abbreviation "AFGE" on it in small letters. Judge's Decision at 3; General Counsel's Exhibit 2; Hearing Transcript at 13.

Subsequently, on September 15, 1987, Marren's second-line supervisor, Ernesto Martinez, Jr., told Marren to remove the Union lapel pin from his uniform. Martinez had been instructed by Chief Patrol Agent Williams, through Assistant Chief Patrol Agent Blackwell, to tell Marren to remove the Union lapel pin because Respondent's Administrative Manual did not allow any decorations on the uniform. Marren removed the pin and filed the underlying unfair labor practice charge on September 21, 1987. A complaint in this case was issued on January 22, 1988.

B. Case No. 6-CA-80175

All officer corps employees receive an annual Office Corps Rating. On November 21, 1987, Marren's first-line supervisor, Sterling Smith, issued Marren an Officer Corps Rating. Smith rated Marren "Very Good" in the category of "Appearance." Martinez, on or about December 1, 1987, rated Marren as "Good" in the category of "Appearance." Marren then discussed the lower rating with Martinez. Martinez told Marren that the reason for the lower rating was that Marren had worn a Union pin on his uniform and that his mustache was longer than allowed under the regulations. On January 15, 1988, the Union filed an unfair labor practice charge, and a complaint in this case was issued on May 25, 1988.

III. Related FLRA and Court Decisions

The Authority issued United States Immigration and Naturalization Service, Port of Entry, San Ysidro, California, 25 FLRA 447 (1987) (INS 1) on February 2, 1987, finding that the Immigration and Naturalization Service (the Agency) violated section 7116(a)(1) of the Statute by prohibiting an immigration inspector from wearing a Union lapel pin on his uniform. Id. at 452. On February 4, 1987, the Authority reached a similar conclusion in United States Department of Justice, Immigration and Naturalization Service, Port of Entry, San Ysidro, California, 25 FLRA 490 (1987) (INS 2) (Chairman Calhoun dissenting), where it found that the Agency's prohibition against wearing a Union penholder or other Union insignia on immigration inspector uniforms violated section 7116(a)(1) of the Statute. The United States Court of Appeals for the Ninth Circuit reversed the Authority's decisions in INS 1 and INS 2 in Immigration and Naturalization Service v. FLRA, 855 F.2d 1454 (9th Cir. 1988) (INS v. FLRA). A more detailed discussion of these cases is contained in INS 3, 38 FLRA at 702, 710-18.

Subsequently, the Supreme Court issued its decision in Department of the Treasury, Internal Revenue Service v. FLRA, U.S. , 110 S. Ct. 1623 (1990) (IRS v. FLRA). The Court's decision discussed, among other things, the relationship between section 7106(a) of the Statute and other sections of the Statute, as well as provisions of law and regulation outside the Statute.

IV. Administrative Law Judge's Decisions

The same Judge conducted the hearings in both cases and issued both decisions. The Judge stated that the Authority has ruled that employees have the right to wear Union insignia at the workplace, in the absence of a showing that the wearing of such insignia interferes with the purpose of the uniform. The Judge found that in INS 1 the Authority held that a pin, identical to the Union lapel pin in these cases, was so small and unobtrusive as to preclude interference with work or confusion of the public. Judge's Decision at 4.

The Judge acknowledged that INS 1 and INS 2 were reversed in INS v. FLRA. However, the Judge stated that because the Authority's decisions are binding on him, he was constrained to conclude that the Respondent violated section 7116(a)(1) of the Statute as to Case No. 6-CA-70732, and that the Respondent violated section 7116(a)(1) and (2) of the Statute as to Case No. 6-CA-80175.

In Case No. 6-CA-80175, the Judge noted that Martinez also told Marren that his appraisal was influenced by Marren's failure to trim his mustache. The Judge concluded, however, that "it appears that the complaint from the Chief Patrol Agent concerned Marren's wearing of the Union pin on his uniform, and this was the real cause of the action taken against the employee." Judge's Decision at 6 n.6.

V. Positions of the Parties

A. Case No. 6-CA-70732

1. The Respondent's Exceptions

Initially, the Respondent argues that the Authority is precluded by the principle of defensive collateral estoppel from prosecuting the complaint in this case. The Respondent argues that where there is a mutuality of parties and where the issue to be litigated is identical to an issue already decided, collateral estoppel applies. The Respondent asserts that the same issue and parties involved in this case were present in INS v. FLRA, and, therefore, collateral estoppel is applicable.

Next, the Respondent excepts to the Judge's conclusion that section 7102 gives Federal employees who are in routine contact with the public, and more particularly uniformed Federal law enforcement officers, a protected right to wear Union insignia when they are not performing Union duties. The Respondent argues that even if section 7102 could be construed to give such employees a protected right to wear Union insignia, that right is restricted by management's rights to determine its mission, organization, internal security practices, and the methods and means that it will use to carry out its work, under section 7106(a)(1) and (b)(1) of the Statute. The Respondent argues that the Judge erred in refusing to find that the facts in this case presented "special circumstances," within the meaning of the Authority's established precedent, that would warrant the Respondent's actions at issue in this case.

To support this argument, the Respondent contends that the border patrol agents' mission, command structure, day-to-day duties, uniforms and firearms requirements are more military in nature than the working conditions of its inspectors. The Respondent argues that the "paramilitary" nature of the agents' assignments requires a special esprit de corps on which each agent relies for mutual cooperation and support. Exceptions at 28. The Respondent states that the mission requirements of the Border Patrol demand that agents are, and appear to be, totally neutral when on duty. The Respondent also points to the El Paso Sector's consistent practice of enforcing the requirement that uniforms be devoid of extraneous decoration. The Respondent argues that the "special circumstances" present in this case are similar to those described by the Authority in decisions involving military activities where the Authority found that "special circumstances" existed. Exceptions at 28-37.

Finally, the Respondent argues that even if section 7102 could be construed to provide employees a protected right to wear Union insignia, the Union waived that right by negotiating Article 25 of the parties' master agreement regarding uniforms and uniform inspections. Exceptions at 40.

2. The General Counsel's Opposition

The General Counsel argues that the Respondent's exceptions raise no new arguments and that the Authority should find that the Respondent's policy violates the Statute by interfering with, restraining and coercing bargaining unit employees in the exercise of their rights to wear a Union lapel pin during their duty hours, while performing both representational/Union duties and their official working duties. General Counsel's Opposition at 1, 7.

More specifically, the General Counsel argues that the Respondent's collateral estoppel argument is inapplicable. The General Counsel states that the criteria applicable to collateral estoppel--same issues of fact and law--are not met in this case. The General Counsel contends that the Respondent has previously argued the opposite--that there are significant differences between this case and the facts in INS 1 and INS 2. General Counsel's Opposition at 2. Additionally, the General Counsel argues that the previous cases have not involved an employee's performance of representational duties, which the General Counsel argues is present here. Id. at 3.

The General Counsel argues that Marren was engaged in protected activity when he was ordered to remove the Union lapel pin. The General Counsel contends that Marren wore the Union lapel pin while performing representational duties, such as attending a labor-management meeting and a grievance meeting. The General Counsel states that Martinez told Marren shortly thereafter to remove the Union lapel pin. Therefore, the General Counsel contends that this case involves a bargaining unit employee's attempt to wear a Union lapel pin during performance of representational duties, which constitutes protected activity. General Counsel's Opposition at 3-5.

The General Counsel also argues that any management right the Respondent may have regarding uniform requirements under section 7106(a)(1) and (b)(1) of the Statute must be balanced with an employee's right under section 7102.

Finally, the General Counsel asserts that the Respondent's argument that the Union contractually waived the employees' right to wear the Union lapel pin is without merit. The General Counsel contends that the Union cannot waive these employee rights in negotiations. General Counsel's Opposition at 7.

3. The General Counsel's Cross-Exceptions

The General Counsel argues that the Judge improperly failed to conclude that Marren wore the Union lapel pin during the course of performing representational duties and that the Respondent's policy prohibited the employee from wearing the Union lapel pin during the performance of representational duties. Cross-Exceptions at 1.

The General Counsel argues that the use of the term "duty hours" in the complaint covers the duty time during which representational duties and other protected activities occur. The General Counsel contends that the term "working hours" would have been substituted for "duty hours" if the complaint had been limited to the time during which employees are performing their official duties. Cross-Exceptions at 2 n.1. Moreover, the General Counsel states that if the Authority does not consider the wearing of a Union lapel pin during performance of representational duties, the same issue will arise in subsequent litigation. Therefore, the General Counsel argues that the complaint required the Judge to consider the effect of the Respondent's policy applied to bargaining unit employees' performance of representational duties.

4. The Respondent's Opposition

The Respondent argues that the complaint in this case did not notify the Respondent that it was being prosecuted for denying a Union officer any right under section 7102 of the Statute. Moreover, the Respondent argues that even if this allegation were included in the complaint, the record developed in the case does not support this allegation. Respondent's Opposition at 2, 5.

B. Case No. 6-CA-80175

1. The Respondent's Exceptions

The Respondent states that the merits of this case may be addressed only if the Authority is not barred by collateral estoppel or issue preclusion from further prosecuting this complaint. Exceptions at 1. The Respondent contends that this is not a case in which the gravamen of the complaint is that the Respondent interfered with or discriminated against the employee acting in his role as a Union representative. Exceptions at 30.

The Respondent asserts that it was privileged to enforce its regulations barring its border patrol agents from wearing personal ornamentation on their uniforms so as to preclude them from wearing Union emblems. Put another way, the Respondent excepts to the Judge's finding that by enforcing its regulations, the Respondent interfered with the agents', and specifically Marren's, right under section 7102 to engage in protected activity and that its action constituted a violation of section 7116(a)(1) and (2) of the Statute. The Respondent argues that the court's decision in INS v. FLRA should be controlling and that the Authority should find that the Respondent did have the right to enforce its uniform requirements prohibiting unauthorized ornaments from being worn on the employees' uniforms. Exceptions at 7-14.

The Respondent also asserts that it had a right under section 7106(a)(1) and/or (b)(1) of the Statute to enforce the uniform regulations which require its border patrol agents to refrain from wearing Union insignia, as well as other forms of ornamentation, on their uniforms. The Respondent excepts to the Judge's finding that by lowering Agent Marren's rating on the "Appearance" section of his annual Officer Corps rating, it violated the Statute. The Respondent maintains that the INS v. FLRA decision upholds management's rights to determine uniform requirements and to enforce those requirements. The Respondent argues that Marren had no right to wear the Union insignia on his uniform, and any other conclusion would be inconsistent with the Ninth Circuit's decision in INS v. FLRA as well as FLRA precedent involving National Guard technicians. Exceptions at 15-22.

Finally, the Respondent contends that if Federal employees have a protected right under section 7102 of the Statute to wear Union emblems on their uniforms, the facts in this case regarding the specific nature of the Border Patrol's mission and organization, and the nature of the border patrol agent's duties, nevertheless present "special circumstances" which permit the Respondent to enforce its uniform regulations barring personal ornamentation. Exceptions at 22-29.

2. The General Counsel's Opposition

The General Counsel contends that Agent Marren's rating was lowered because he wore the Union lapel pin during his duty hours and during representational activity. Opposition at 3. The General Counsel argues that the Union lapel pin in question is innocuous and inconspicuous, that it is fashioned as a patriotic symbol, and does not degrade or take away from the uniform of the border patrol agents. Id.

The General Counsel argues that even if it is determined that the wearing of the small Union lapel pin is not a protected right, the Respondent's conduct in lowering Marren's rating would still be inappropriate because the supervisors admitted seeing Marren wearing the lapel pin only for a brief duration. The General Counsel argues that such a brief action does not warrant a lowered rating. Opposition at 4. The General Counsel also argues that even if wearing a Union lapel pin is not a protected right during duty time, Agent Marren's rating should not have been lowered for wearing the Union lapel pin at a labor-management relations meeting. Opposition at 5.

The General Counsel also argues against the Respondent's contention that collateral estoppel and issue preclusion apply to the processing of this complaint in addition to Case No. 6-CA-70732. Opposition at 6.

C. Parties' Additional Submissions

On April 23, 1990, the Authority issued an Order directing the parties to file supplemental briefs concerning the effect if any, of the United States Supreme Court's decision in IRS v. FLRA on the issue in these cases. More specifically, the parties were requested to address the relationship between the Respondent's rights enumerated under section 7106(a) and (b) and rights of employees and the Union under sections 7102 and 7106(b)(2) and (3) of the Statute. The Respondent, the Union, and the General Counsel each submitted consolidated supplemental briefs in these cases and in Case No. 8-CA-70694 (INS 3). The positions of the parties are fully set forth in our decision in INS 3. See INS 3, 38 FLRA at 705. To the extent that the parties submitted arguments regarding constitutional claims, those arguments are beyond the scope of the requested information and beyond the case presented to the Judge, we will not consider those arguments in this decision. See INS 3, 38 FLRA at 705 n.2.

VI. Analysis and Conclusions in Case No. 6-CA-70732

A. The Cross-Exceptions

The General Counsel's cross-exceptions assert that the Judge erred in failing to find that Marren wore the Union lapel pin during the performance of representational duties on behalf of bargaining unit employees and that the Respondent's policy prohibited Marren from wearing the Union lapel pin during representational activities. We deny the cross-exceptions for the following reasons.

The complaint alleges that "[s]ince on or about September 15, 1987, and continuing to date, Respondent has interfered with, restrained, and coerced bargaining unit employees in the exercise of their rights under 5 USC 7102 by prohibiting bargaining unit employees from wearing a [U]nion lapel pin during their duty hours." General Counsel's Exhibit 1(g), paragraph 8. The complaint is silent regarding bargaining unit employees' wearing the Union lapel pin during the performance of representational duties or protected activities. Therefore, the Respondent did not have notice that this allegation was intended to be encompassed in the complaint. See U.S. Government Printing Office, 23 FLRA 35, 38 (1986) (where an allegation was not encompassed by the complaint and thus was not before the Judge, the Authority concluded that the violation found by the Judge in this regard must be dismissed). Compare U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494 (1990) (the Authority held that where both parties understood the subject of the dispute and, at the hearing, presented evidence and witnesses relevant to the issue of the dispute, a mere ambiguity in the language of the complaint does not remove the issue from being encompassed by the complaint).

The complaint did not specify that the Union lapel pin was being worn during the performance of representational duties. Instead, the General Counsel argues that use of the words "duty hours" in the complaint signifies the inclusion of representational duties. In our view, the General Counsel's assertion that the complaint includes the more specific issue of wearing a Union lapel pin during performance of representational duties improperly attempts to expand the complaint after the hearing. See Patent Office Professional Association v. FLRA, 872 F.2d 451 (D.C. Cir. 1989), affirming in part and reversing and remanding as to other matters sub nom. U.S. Patent and Trademark Office, 31 FLRA 952 (1988).

The complaint was insufficient to put the Respondent on notice that the General Counsel intended to raise the issue of interfering with a Union officer's rights under section 7102 while performing representational duties. Moreover, these issues were not raised during the hearing. Therefore, the General Counsel's cross-exceptions are denied.

B. Exceptions

1. Collateral Estoppel Does Not Apply

The Respondent argues that the doctrine of collateral estoppel prevents the consideration of this case because the matter has already been decided by the Ninth Circuit in INS v. FLRA. For the following reasons, we conclude that the doctrine of collateral estoppel does not apply to this case and does not block consideration of the issues on their merits.

The doctrine of collateral estoppel generally applies to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action involving the same parties. United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The doctrine of mutual defensive collateral estoppel is applicable against the Government to preclude relitigation of the same issue already litigated against the same party in another case involving virtually identical facts. See Department of the Treasury, U.S. Customs Service, Washington, D.C. v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985) (opinion by then Circuit Judge Scalia); Brown, Collateral Estoppel Effects of Administrative Agency Determinations: Where Should Federal Courts Draw the Line?, 73 Cornell L. Rev. 817 (1988).

A review of the record establishes that different facts are present in this case from those in INS 1 and INS 2. The INS 1 and INS 2 cases involved Immigration and Naturalization Service (INS) inspectors, who generally are unarmed and who are stationed at fixed posts. See INS 1, 25 FLRA at 457; INS 2, 25 FLRA at 497. In contrast, the employees involved in this case are INS agents who are armed when on duty. Hearing Transcript at 10. The agents are not stationed at fixed posts, but rather work on roving patrols or on surveillance of the international border. Often the agents are in concealed locations until they are ready to apprehend suspects. The agents also conduct searches of businesses and farms employing aliens to ensure that only authorized aliens are being employed. Hearing Transcript at 8-9, 44-45, 70-71, Respondent's Exhibit 6.

Moreover, we note that in the hearing before the Judge, the Respondent did not raise the issue of collateral estoppel. Section 2429.5 of the Authority's Rules and Regulations precludes the Authority from considering any issue that was not presented before the Judge. Therefore, the issue of collateral estoppel is not properly before us.

However, even if that issue were properly before us, we note that the Respondent argued that the factual situation in this case was different in many ways from the INS 1 and INS 2 cases. The Respondent relied on the distinctions as justification for reaching a result opposite to the holdings in INS 1 and INS 2. The Respondent repeats the differences it perceives between the facts here and the facts in the earlier cases. Respondent's Exceptions at 27-30.

The Respondent, therefore, has argued previously that the facts in this case are distinguishable from the facts found in INS 1 and INS 2, and now argues, in support of its defensive collateral estoppel contention, that the facts in this case are similar to those in INS 1 and INS 2. We reject this claim, because, as we have discussed above, the facts present in this case are different from those in INS 1 and INS 2, and find that the doctrine of defensive collateral estoppel does not apply in this case.

2. The Merits

For the reasons set forth below, we conclude that the Respondent violated the Statute when Martinez ordered INS Agent Marren to remove a Union lapel pin from his uniform.

In INS 3, we examined the interplay of section 7106(a) and section 7106(b)(1) with section 7102 of the Statute. In that decision, we also considered the effect of the Supreme Court's IRS v. FLRA decision, which addressed the relationship between management rights enumerated in section 7106(a) of the Statute and other sections of the Statute, as well as provisions of law and regulation outside the Statute. In INS 3, we reaffirmed our view that section 7102 of the Statute grants Federal employees the right to wear Union insignia at the workplace, unless special circumstances exist. In determining whether special circumstances exist, we will look to the factors present in each case.

In INS 3, we considered whether border patrol agents, like the employees in these cases, who wore uniforms, pursuant to the Agency's right under section 7106(b)(1) to determine the methods and means of performing its work, had a right to wear Union insignia on the uniform at the workplace. We concluded that special circumstances did not exist in INS 3 and, therefore, that the border patrol agents did have a right to wear a Union lapel pin on their uniforms at the workplace.

Most of the arguments raised in these cases were raised by the parties in INS 3. Because we have dealt with those arguments fully in our decision in INS 3, we need not repeat them here. See INS 3, 38 FLRA at 706-21.

In its exceptions and its supplemental brief, the Respondent stated that the right to require that uniforms be unadorned derives from the section 7106(a) right to determine the Respondent's internal security practices. See Respondent's Supplemental Brief at 3 n.1. The Respondent mentioned the Respondent's right to determine its internal security practices in passing in its Exceptions at 18, and in a hypothetical example in its Exceptions at 21. The Respondent did not raise an internal security argument before the Judge. See Respondent's Memorandum to the Judge at 5, 9, 10, 14. The Respondent has not developed or presented an argument that its right to determine its internal security practices is involved in this case through these brief references to internal security practices. Moreover, the Authority will not consider evidence offered by a party that was not presented in the proceedings before the Judge. See section 2429.5 of the Authority's Rules and Regulations. Accordingly, even if an internal security practices argument were properly raised before us, we reject the Respondent's claim that the wearing of the Union lapel pin is inconsistent with the right to determine its internal security practices under section 7106(a)(1) of the Statute.

The Respondent also argues that even if employees have a protected right to wear Union insignia under section 7102, the Charging Party waived the right by agreeing to Article 25 of the Master Agreement, regarding uniforms and uniform inspections. The Respondent states that Article 25 provides, in part:

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.

Respondent's Exceptions at 40, quoting Respondent's Exhibit 4 in part.

It is well established that any waiver of rights must be clear and unmistakable. See Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 21 FLRA 748, 752 (1986). It is not clear that the Union could waive employees' rights emanating from section 7102 relating to the wearing of Union insignia. See id. However, even assuming that the Union could waive employees' rights with regard to this matter, nothing in the cited portion of Article 25 demonstrates that the Union clearly and explicitly waived its right to wear Union insignia on uniforms. See Respondent's Exhibit 4. Accordingly, we find that the Respondent's argument that the Charging Party waived its right to bargain by agreeing to Article 25 of the Agreement is without merit. Therefore, this exception is denied.

We find that the underlying circumstances in INS 3 are indistinguishable from the circumstances in this case. Moreover, nothing in the Respondent's additional argument warrants any different outcome in this case. Accordingly, consistent with the reasons fully set forth in INS 3, we find that special circumstances do not exist in this case which would prohibit wearing Union insignia by the border patrol agents, including Agent Marren. We find that the Respondent violated section 7116(a)(1) of the Statute by prohibiting Agent Marren from wearing a Union lapel pin during duty hours.

VII. Analysis and Conclusions in Case No. 6-CA-80175

In INS 3, we reaffirmed our view that the right to wear Union insignia stems from section 7102 of the Statute, which guarantees to each employee "the right to form, join, or assist any labor organization," and provides that "each employee shall be protected in the exercise of such right," unless special circumstances exist. We have determined in Case No. 6-CA-70732 that special circumstances do not exist to bar wearing Union insignia by the border patrol agents, including Agent Marren, who are involved in both of these cases. Therefore, Agent Marren had a right to wear Union insignia on his uniform. Accordingly, the Respondent improperly lowered Agent Marren's rating in the category of "Appearance" during the 1987 Officer Corps Rating for wearing a Union lapel pin on his uniform.

The exceptions raised by the Respondent in Case No. 6-CA-80175 duplicate arguments raised previously in Case No. 6-CA-70732. Because those arguments have already been addressed above and in INS 3, we find it unnecessary to repeat that discussion here.(2)

Accordingly, consistent with the reasons fully set forth in INS 3, and our decision set forth above in Case No. 6-CA-70732, we adopt the Judge's decision in Case No. 6-CA-80175 that the Respondent violated section 7116(a)(1) and (2) of the Statute by lowering Agent Marren's performance rating in the category of "Appearance" during the 1987 Officer Corps Rating because he wore a Union lapel pin on his uniform during duty hours.(3)

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, shall:

1. Cease and desist from:

(a) Interfering with, restraining, or coercing its employees by prohibiting Robert J. Marren, or any other border patrol agent, from wearing the American Federation of Government Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty hours.

(b) Discriminating against Robert Marren or any other employee, by considering as part of the annual Officer Corps Rating that Robert J. Marren, or any other employee, wore the American Federation of Government Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty hours.

(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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 Robert J. Marren, or any other border patrol agent, to wear the American Federation of Government Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty hours.

(b) Rescind the December 1, 1987 "Appearance" rating of Robert J. Marren prepared by Supervisor Ernesto Martinez, Jr.; remove it from his personnel file; and prepare a new Officer Corps Rating for 1987 for Robert J. Marren that restores the rating to "very good" as to his appearance, which rating does not consider that he wore the American Federation of Government Employees, AFL-CIO, Union lapel pin on his uniform during duty hours.

(c) Post at its 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 Chief Patrol Agent 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 insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, 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.

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 interfere with, restrain or coerce our employees by prohibiting Robert J. Marren, or any other border patrol agent, from wearing the American Federation of Government Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty hours.

WE WILL NOT discriminate against Robert Marren, or any other employee, by considering as part of the annual Officer Corps Rating that Robert J. Marren, or any other employee, wore the American Federation of Government Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty hours.

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 Robert J. Marren, or any other border patrol agent, to wear the American Federation of Government Employees, AFL-CIO, Union lapel pin or similar Union insignia on his uniform during duty hours.

WE WILL rescind the December 1, 1987 "Appearance" rating of Robert J. Marren prepared by Supervisor Ernesto Martinez, Jr.; remove it from his personnel file; and prepare a new Officer Corps Rating for 1987 for Robert J. Marren that restores the rating to "very good" as to his appearance, which rating does not consider that he wore the American Federation of Government Employees, AFL-CIO, Union lapel pin on his uniform during duty hours.

______________________________
(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 VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone number is: (214) 767-4996.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The record does not specify the date of the meeting.

2. In Case No. 6-CA-80175, the General Counsel makes a motion to strike a document filed by the Respondent on May 4, 1990, which objected to material in the General Counsel's Opposition in this case. The "objectionable" material dealt with an unrelated matter, Case No. 6-CA-80004. Because the matter deals with an unrelated case, we will not address either party's contention in our decision here.

3. </