[ 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