National Treasury Employees Union (Union) and United States, Department of Homeland Security, Bureau of Customs and Border Protection (Agency)

[ v61 p48 ]

61 FLRA No. 7

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS AND
BORDER PROTECTION
(Agency)

0-NG-2793

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUE

June 13, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members/ [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal concerning the wearing of cargo shorts by Customs Officers. The Agency filed a statement of position, to which the Union filed a response. The Agency did not file a reply to the Union's response.

      For the reasons set forth below, we find that the proposal is within the duty to bargain.

II. Proposal [n2] 

Legacy Customs Inspectors, Canine Enforcement Officers, and any other uniformed legacy Customs Officer will be permitted to wear cargo shorts when performing work in a Class 3 environment. This right will also apply to legacy Customs Officers who have been reassigned to the CBP Officer position and those other CBP officers represented by NTEU.

III.      Positions of the Parties

A.      Agency

1.      Internal Security

      According to the Agency, it has authorized different classes of uniforms for different work circumstances and work environments. The Class 3 uniform is authorized for Agency personnel "in air and seaport cargo environments and land border passenger and cargo environments." CBP [Customs and Border Protection] National Uniform Program (National Uniform Program) at 27. Attachment 2 to the Statement of Position. The Agency allows officers to wear cargo shorts as a part of the Class 3 uniform only in confined cargo environments at Southwest border locations, [n3] in South Florida, and in Puerto Rico. National Uniform Program at 29. The Agency explains that officers in that work environment in those places are consistently subjected to extreme heat and rarely encounter the traveling public. Id., Statement of Position at 6.

      The Agency contends that the proposal affects management's right to determine its internal security practices under § 7106(a)(1) because it would preclude it from establishing a policy that ensures that uniformed officers are identifiable as law enforcement officers. Specifically, the Agency contends that, by limiting the wearing of cargo shorts by uniformed officers "to areas where employees need it most[,]" the Agency makes it possible for officers to "clearly identify one another during both routine and emergency situations." Statement of Position at 4. The Agency also states that it has strictly limited the wearing of cargo shorts pursuant to its determination that the wearing of such shorts is not consistent with "a professional law enforcement image[.]" Id. at 5. In this regard, the Agency maintains that it has established" a clear link between restrictions on the use of cargo shorts" and its "ability to identify and safeguard employees, physical property[,] and the public." Id. According to the Agency, by allowing uniformed officers to wear cargo shorts in all Class 3 work environments, the proposal excessively interferes with its right to "make determinations necessary to identify and safeguard its uniformed personnel[.]" Id.

      The Agency also argues that: (1) it negotiated its uniform policy with two other unions; and (2) those negotiations did not result in revision of its limited policy regarding the wearing of cargo shorts. According to the Agency, a separate policy for the Union in this case [ v61 p49 ] would be" divisive and disruptive" and would negatively affect its ability to fulfill its anti-terrorism and law enforcement missions. Id.

      Further, the Agency maintains that the "type of uniform" worn by its officers constitutes "an important safety factor[,]" because the wearing of shorts: (1) "increases the amount of skin exposed" to hazardous substances encountered in the workplace, increasing the risk an officer will be killed or injured; (2) increases officers' exposure to the harmful effects of ultraviolet radiation and risks their incapacitation due to sunburn; (3) limits an officer's "ability to kneel or crawl" and thus increases "the risk that an officer will be injured while doing so;" and (4) provides no protection at all for an officer's legs during a physical encounter. Id. at 5-6.

2.      Methods and Means

      According to the Agency, uniformed officers "regularly interact with international travelers, diplomats, foreign dignitaries, members of the international trade community, and a wide-range of law enforcement agencies" and, thus, they need to maintain "an image that commands respect and instills confidence[.]" Id. at 6. The Agency asserts that the wearing of cargo shorts by uniformed personnel is not consistent with the need to maintain such an image or with the expectations of the public.

      The Agency also contends "local climates can change rapidly during an officer's tour of duty" and "the wearing of long trousers would eliminate the need for an officer to change from shorts to long trousers during the course of a tour or a[n] overtime assignment." Id. In addition, the Agency claims that "a number of Federal and State law enforcement agencies . . . do not permit the wearing of uniform shorts." Id. The Agency states that it has allowed a limited exception to the prohibition against uniformed officers wearing shorts "in order to ensure that the fewest number of employees possible would be required to make uniform adjustments as operational requirements dictate" so as to enhance its ability "to quickly respond to critical situations." Id. at 7. In particular, the "goal" of the Agency's policy regarding uniforms is "to establish one policy to further unify a workforce with one critical mission, preventing terrorists and weapons of mass destruction from entering the United States[,] while at the same time facilitating the flow of legitimate trade." Id. at 8.

3.      Appropriate Arrangements

      According to the Agency, proposals that "permit deviation" from the prescribed uniform policy are not appropriate arrangements. Id. at 7 (citing ACT, Wisconsin Chapter, 26 FLRA 682 (1987)).

B.      Union

1.      Internal Security

      The Union explains that the proposal is intended to determine where uniformed employees will be permitted to wear cargo shorts. Under the proposal, the Union states, employees who work in a Class 3 environment, which encompasses air and seaport cargo environments and land border passenger and cargo environments, would be permitted to wear the shorts. The Union describes the Class 3 environment as being a "non-climate controlled environment, primarily outside[,] exposed to the elements." Petition for Review at ¶ 12. According to the Union, the purpose of the proposal is "to provide employees a means of combating the heat and humidity[,] which affects most if not all employees who work in a Class 3 environment at some point during the year[.]" Id.

      The Union maintains that the Agency has failed to meet its burden of establishing a link between its policy regarding the wearing of cargo shorts in a Class 3 work environment and its internal security policies and practices. In this connection, the Union notes that the Agency allows uniformed employees along the southern border of the United States, in south Florida, and in Puerto Rico, who work in a cargo environment, to wear cargo shorts despite its "anti-terrorism and law enforcement concerns[.]" Union's Response at 5. According to the Union, it "is factually incorrect[,]" to claim, as does the Agency, that only officers working in the specified locations and circumstances require "accommodation with the weather[.]" Id. at 4.

      The Union also disputes the Agency's claim that the policy limiting the wearing of cargo shorts in Class 3 environments serves the purpose of ensuring the identification of uniformed officers as part of its operations. The Union states, in this regard, that uniformed officers working in a Class 3 environment have been allowed to wear cargo shorts during hot and humid weather since 1999. Moreover, the Union argues, the uniforms worn by the officers have insignia that identify them as Agency employees. The Union claims that "it is factually incorrect to state that members of the public would not be able to identify the employees as [Agency] law enforcement officers if they were allowed to wear shorts." Id. at 3. In this regard, although the Agency argues that its policy is designed to ensure that its officers "present a professional law enforcement image," the Union contends that there is "no evidence or explanation [ v61 p50 ] of how this relates to, much less interferes with, the management right to set internal security practices." Id. at 4.

      As to the Agency's claim that its policy is designed to ensure the safety of its officers, the Union argues that the Agency "has failed to present any evidence supporting [that argument], even though officers have been wearing shorts for at least five years." Id. at 5 (emphasis in original). The Union states that it has requested information from the Agency concerning "Office of Workers' Compensation Program (OWCP) claims related to exposure to the sun, [and to] various [hazardous] substances" and "studies addressing the danger of wearing shorts related to occupational injuries and illnesses[,]" but the Agency has failed to respond to its request. Id. at 5-6. According to the Union, the Agency's failure to respond raises "the presumption that the Agency has no evidence to support its safety rationale." Id. at 6. The Union adds that there is also "no evidence in the record concerning hazardous substances." Id.

      The Union disputes the Agency's claim that allowing officers in the Union's bargaining unit who work in a Class 3 environment to wear shorts, when similarly situated employees in other units are not allowed to do so, would undermine the Agency's goal of unifying its workforce and integrating its inspectional functions. The Union points out, in this regard, that "there already is a disparity inherent in [the Agency's policy] that arbitrarily limits the shorts uniform option to employees working in [S]outh Florida, some southern border locations and Puerto Rico and only in the confined cargo environment." Id. at 2.

2.      Methods and Means

      The Union notes that, in support of its methods and means argument, the Agency argues that "the wearing of shorts by uniformed personnel would not project an image that commands respect and instills confidence in the domestic and international communities and is not consistent with the expectations of the public." Id. at 6. In response, the Union contends that "allowing officers to wear shorts is consistent with the practice in other law enforcement entities in the federal, state and city sectors." Id. at 7. In this regard, the Union cites, and presents evidence with respect to, several Federal, state, and local agencies who allow their uniformed personnel to wear shorts.

      The Union disputes the Agency's claim that allowing officers to wear shorts will not command respect or instill confidence in the public, noting that it requested from the Agency information concerning "complaints received by the Agency from the public and Congress regarding officers being permitted to wear shorts" and that the Agency provided "no such evidence." Id. at 8. As to the Agency's claim that changes in weather and the need to respond quickly to critical situations would necessitate changes in uniform, the Union indicates that the Agency has "provided no evidence that, in fact, officers have been changing from pants to shorts or vi[ce] versa, o[r], if so, the extent of this practice." Id.

      In sum, the Union asserts that the Agency has failed to meet its burden of demonstrating that the proposal relates to the methods and means of performing the Agency's work within the meaning of § 7106(b)(1) under the Authority's framework for analyzing such claims.

3.      Appropriate Arrangements

      The Union maintains that the proposal does not affect a management right under § 7106 of the Statute. However, if the Authority concludes otherwise, the Union argues, in the alternative, that the proposal is an appropriate arrangement within the meaning of § 7106(b)(3).

      Citing the Authority's framework for analyzing claims under § 7106(b)(3), the Union provides statements from uniformed officers in its bargaining unit to substantiate the extent to which the policy agreed to by the parties in 1999 allowing the wearing of shorts benefitted those officers. The Union also notes that the proposal applies only to officers who work in a Class 3 environment, which is not a climate-controlled environment. Further, the Union indicates that the proposal is designed to address the adverse effects of management's right to determine its internal security practices or to determine the methods and means of performing work. According to the Union, the proposal affords significant benefits to employees and does not excessively interfere with any management right.

IV.      Meaning of the Proposal

      By its terms, and as explained by the Union, the proposal would permit specified unit employees to wear cargo shorts while working in any Class 3 environment.

V.      Analysis and Conclusions

A.      The Proposal Does Not Affect Management's Right to Determine its Internal Security Practices

      It is well established that the right to determine internal security practices under § 7106(a)(1) of the Statute includes the right to determine the policies and practices that are a part of an agency's plan to secure or [ v61 p51 ] safeguard its personnel, physical property, or operations against internal or external risks. See, e.g., AFGE, Local 1920, 47 FLRA 340, 348 (1993) (Local 1920). Where the agency shows a link, or reasonable connection, between its objectives of securing or safeguarding its personnel, property, or operations and the policy or practice designed to implement that objective, a proposal that conflicts with the policy or practice affects management's right. See, e.g., NTEU, 55 FLRA 1174, 1186 (1999). Upon finding such a link, the Authority "will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives." AFSCME, Locals 2910 & 2477, 49 FLRA 834, 839 (1993).

      The Agency has failed to demonstrate the requisite link or reasonable connection between its policy of limiting the wearing of cargo shorts to posts on the Southwest border and in South Florida and Puerto Rico and its security concerns. In asserting that the policy requiring uniformed officers to wear trousers in all but a limited number of Class 3 work environments serves its anti-terrorism and law enforcement objectives, the Agency fails to articulate any security differences in the locations excepted from that policy that warrant a different uniform policy in those locations. In this regard, uniformed officers interact with a variety of individuals at locations where shorts are currently allowed. National Uniform Program at 29. While the traveling public apparently is not a group present at these locations, the Agency does not explain or identify how the absence of the traveling public at these locations presents different security considerations in terms of the uniforms to be worn.

      For the same reasons, the Agency's claim that its policy is necessary in order to identify Agency personnel in the work environment is unavailing. In this regard, the Authority has recognized that the requirement of a uniform for purposes of identifying agency personnel may be an internal security matter. See, e.g., AFGE, Local 217, 21 FLRA 62, 65-66 (1986) (Local 217). However, the Agency fails to explain why uniformed personnel at the locations excepted from the policy are sufficiently identifiable for security purposes while wearing shorts, but such personnel in every other Class 3 work environment would not be. Moreover, we note that the Agency has itself identified a standard type of cargo shorts that can be worn as a part of the uniform for Class 3 environments, a matter fully consistent with the Agency's desire to make personnel sufficiently identifiable for security purposes. National Uniform Program at 30.

      Further, as the Union points out, other parts of the required uniform contain additional means of identification, for example, shirts and/or jackets with badges, nameplates, and shoulder emblems. National Uniform Policy at 14-15. It is undisputed that, under the proposal, uniformed personnel covered by the proposal would be wearing the cargo shorts specified in the National Uniform Program. Because the proposal would be implemented in a manner that is consistent with the current uniform policy it is consistent with the Agency's need for those personnel to be readily identifiable as Agency law enforcement personnel for security purposes. See, e.g., AFGE, AFL-CIO, Local 1625, 25 FLRA 1028, 1031 (1987) (proposal regarding uniform that is consistent with purpose of identification does not affect management's right to determine internal security). Moreover, the Agency has provided no explanation of the security considerations underlying its proposed change in its uniform policy regarding cargo shorts.

      Finally, the Agency also fails to provide any substantiation for its safety-related arguments against the wearing of cargo shorts. Consequently, the Agency has not demonstrated that its policy is linked to protecting the physical well-being of those personnel. In this regard, as the Union points out, the Agency has provided no evidence as to on-the-job injuries related to uniform apparel in either those locations where cargo shorts are allowed or those where shorts are prohibited. See SSA, Chicago Region, Cleveland Ohio District Office, University Circle Branch, 56 FLRA 1084, 1088-89 (2001) (agency must support its claim that a given action constitutes the exercise of a right); Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 56 FLRA 398, 403-04 (2000) (agency burden with respect to demonstrating that the subject matter of a proposal concerns its internal security practices).

      In sum, the Agency has failed to meet its burden of demonstrating that there is a link or reasonable connection between its policy limiting the wearing of cargo shorts in a Class 3 work environment and its internal security concerns. Accordingly, we find that the proposal does not affect management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

B.      The Proposal Does Not Concern Matters that Constitute the Methods and Means of Performing Work

      In determining whether a proposal concerns the methods or means of performing work under § 7106(b)(1) of the Statute, the Authority has construed [ v61 p52 ] the term "method" to refer to "the way in which an agency performs its work." Local 1920, 47 FLRA at 343. The Authority has defined the term "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or [the] furtherance of performance of [its] work." Id. The legislative history of the Statute indicates that the term "methods" was intended to mean "how" work is performed; the term "means" was intended to mean "with what." See Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, U.S.C.C.A.N. 2830, 2831. See also GSA, 54 FLRA 1582, 1590 n.6 (1998).

      Applying these definitions, the Authority has consistently held that an agency's determination that employees must wear a uniform while performing work constitutes a decision as to the methods and means of performing work under § 7106(b)(1) of the Statute. See, e.g., ACT, 47 FLRA 743, 746 (1993). In the circumstances of this case, the Agency has made that determination by requiring that the employees covered by this proposal will wear uniforms in performing the Agency's work. In particular, the Agency has prescribed the elements of the uniform for use in a Class 3 work environment. National Uniform Policy at 27-30. However, the Agency makes no attempt to justify or explain, in terms of the definitions of the terms "methods" and "means" as used in § 7106(b)(1), how the fact that the wearing of cargo shorts is permitted in some locations, and not in others, relates to how work is done and how shorts are used as a means of performing work. Thus, the Agency has not demonstrated how the proposal concerns the methods and means of performing work under § 7106(b)(1). In this regard, consistent with Authority precedent, proposals such as the instant proposal, that "are limited to attempting to assure that [employees'] uniforms are suitable for the conditions in which employees work" do not involve the methods and means of performing work. Local 217, 21 FLRA at 67.

      Accordingly, we find that the proposal does not concern the methods and means of performing work within the meaning of § 7106(b)(1) of the Statute. [n4] 

VI. Order

      The Agency shall, on request, bargain as to the proposal.

File 1: Authority's Decision in 61 FLRA No. 7
File 2: Opinion of Member Armendariz


Footnote # 1 for 61 FLRA No. 7 - Authority's Decision

   Member Armendariz' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 7 - Authority's Decision

   The proposal is stated as it was modified during the post-petition conference in this case.


Footnote # 3 for 61 FLRA No. 7 - Authority's Decision

   The record does not further clarify the location of the posts of duty encompassed within the phrase "Southwest border."


Footnote # 4 for 61 FLRA No. 7 - Authority's Decision

   Chairman Cabaniss and Member Pope agree that in the circumstances of this case no further inquiry is necessary because the Agency has failed to demonstrate that the proposal concerns the methods and means of performing work within the meaning of § 7106(b)(1). Consistent with her previously stated position, see AFGE, Local 3129, SSA General Committee, 58 FLRA 273, 276 (2002), Chairman Cabaniss finds that the inquiry as to whether this proposal constitutes a "methods" or "means" of performing work within the meaning of § 7106(b)(1) is the only inquiry required by the Statute.

      Member Pope notes that under existing Authority precedent, a proposal that concerns the methods and means of performing work is encompassed by