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43 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES IMMIGRATION AND

NATURALIZATION SERVICE

UNITED STATES BORDER PATROL

SAN DIEGO SECTOR

SAN DIEGO, CALIFORNIA

(Respondent)

and

NATIONAL BORDER PATROL COUNCIL

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1613, AFL-CIO

(Charging Party/Union)

8-CA-90083

DECISION AND ORDER

December 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed to the attached Administrative Law Judge's decision. Both the General Counsel and the Union filed exceptions. The Respondent filed an opposition to the Union's exceptions and cross-exceptions, and the Union filed an opposition to the Respondent's cross-exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it instituted a change in working conditions by changing the manner in which it requires employees to wear soft body armor (a bullet-proof vest) without first completing bargaining with the Union over the substance, impact and implementation of the change. The Judge found that all of the proposals submitted by the Union were nonnegotiable and that, consequently, the Respondent did not violate the Statute when it instituted the new policy concerning body armor after declaring the Union's proposals nonnegotiable. Accordingly, the Judge recommended dismissal of the complaint.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. However, for the reasons set forth below, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by instituting a new policy concerning body armor without completing bargaining concerning the impact and implementation of that policy.

II. Background and Judge's Decision

The underlying facts and chronology of the case are set forth in the Judge's decision and will not be repeated in detail here. The dispute in this case centers on the Respondent's action in instituting a policy requiring border patrol agents who wear body armor to conceal the body armor under their uniform shirt. The principal type of body armor that is involved in this case consists of bullet-proof material that covers a majority of the torso above the waist, slips over the head, and has "tails" that can be tucked into the employee's trousers. Tr. 44-45, Respondent's Exhibit R. The Respondent claims, and the Judge found, that wearing the "tails" in this manner anchors the body armor and prevents it from shifting or bunching.

In response to the Respondent's proposed policy, the Union submitted the following four proposals:

A. The parties agree that the wearing of body armor shall remain a matter of individual discretion to be exercised by each agent.

B. The parties agree that concealable body armor, in order to be maximally effective, should be worn under the outermost article of uniform apparel. This does not preclude agents from wearing the body armor over a uniform shirt, as long as it is covered by a uniform jacket or other approved article of uniform apparel.

C. Violations of this policy shall be treated consistent with the past practice of handling uniform apparel violations in the San Diego Sector.

D. The terms of this agreement are binding upon both parties until such time as both parties agree to modify or terminate the agreement.

In the course of negotiations over the proposed policy the Respondent declared all of the Union's proposals nonnegotiable. Subsequently, the Respondent implemented the new policy on wearing body armor.

The Judge concluded that all four of the proposals were nonnegotiable. He concluded that Proposal A was nonnegotiable because it "abrogated" the Respondent's management right under section 7106(a)(1) of the Statute to determine its internal security practices. Judge's decision at 12.

In addressing Proposal B, the Judge found that under the proposal the body armor "could only be worn over the uniform shirt when the bulletproof vest is completely covered and concealed by the uniform jacket or other outergarment, and that this was explained to and understood by the representatives of the Border Patrol San Diego Sector." Id. The Judge concluded that Proposal B "abrogated" management's rights to determine its internal security practices and direct employees. Id. at 16-17. Central to this conclusion was the Judge's finding that the proposal would prevent employees from tucking the tails of the body armor into their trousers and, consequently, that Proposal B would frustrate a safety feature of the body armor. In support of this finding, the Judge noted that when the Union explained this proposal it "indicated the tails would be pinned up under the body armor." Id. at 16. For this reason the Judge concluded that Proposal B was nonnegotiable.

Although he concluded that Proposal B was nonnegotiable, the Judge nevertheless rejected some other arguments that the Respondent had presented in support of its position that this proposal was nonnegotiable. In response to the Respondent's claim that Proposal B would compromise employee safety by leaving the body armor visible to observers, he found that this would not be the case in those circumstances where the body armor was totally concealed under an outer garment. He concluded that in such circumstances, Proposal B would constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Judge also rejected the Respondent's claims that Proposal B interfered with the management rights to determine its mission and organization, and the methods and means of performing work. The Judge concluded that Proposal B did not interfere with management's right to determine the methods and means of performing work by prescribing a uniform to be worn by its employees based on his findings that: (1) the body armor itself was not part of the employees' uniform; and (2) because the proposal would apply only in circumstances where the body armor was completely concealed by an outer garment, the proposal would not compromise the uniform's purpose and effectiveness.

The Judge concluded that Proposal C was nonnegotiable because it excessively interfered with management's right to take disciplinary action. He concluded that Proposal D was dependent on the other proposals for meaning and that as none of them was negotiable, neither was Proposal D.

Having concluded that all of the Union's proposals were nonnegotiable, the Judge further concluded that the Respondent did not violate the Statute when it instituted the new policy on body armor after declaring the Union's proposals nonnegotiable. Accordingly, the Judge recommended that the complaint be dismissed.

III. Positions of the Parties

A. The General Counsel's Exceptions

The General Counsel contends that Proposals B and D are negotiable. The thrust of the General Counsel's exceptions is that the Judge's negotiability determinations concerning Proposal B rest on erroneous factual premises. Specifically, the General Counsel contends that the record fails to establish that in issuing its new policy on body armor the Respondent ever instructed employees to tuck the tails into their trousers or that the Union's proposals require that the tails be pinned up rather than tucked in. The General Counsel contends that in view of the Respondent's failure to issue such an instruction, the placement of the tails does not now constitute an exercise of management's rights to determine its internal security practices or direct employees. The General Counsel asserts that even assuming that the Respondent's new policy did contemplate that the tails be tucked in, Proposal B constitutes an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute. In this regard, the General Counsel contends that the record does not support the Judge's conclusion that Proposal B would frustrate a requirement that the tails be tucked in. The General Counsel asserts that although the Union recognized that folding or pinning the tails up under the body armor was a possible treatment of the tails, the Union never represented its proposals as intending or requiring that the employees wear the body armor in this manner. Rather, the General Counsel contends that Proposal B is compatible with a requirement that the tails be tucked into the trousers.

The General Counsel contends that because Proposal B is negotiable, it follows that Proposal D is also. The General Counsel argues that in view of the fact that some of the Union's proposals are negotiable, the Respondent's action in implementing the body armor policy prior to the completion of negotiations violated section 7116(a)(1) and (5) of the Statute.

The General Counsel requests a status quo ante remedy and contends that all of the elements necessary for such a remedy are present. Specifically, the General Counsel contends that the Union promptly requested bargaining upon notification of the proposed change and that the Respondent willfully and deliberately implemented the change without completing bargaining. The General Counsel also asserts that a status quo ante remedy would not disrupt or impair the Respondent's operations. In this latter regard, the General Counsel points out that the wearing of body armor is, under normal circumstances, discretionary with the employee and that employees had worn the body armor over their shirts for a substantial period of time without problem or incident. Alternatively, the General Counsel requests a bargaining order that includes, but is not limited to, Proposals B and D.

B. The Union's Exceptions

The Union asserts that nothing in the record supports the Judge's factual findings that the Respondent's body armor policy mandated that the tails of the body armor be tucked into the employees' trousers. The Union contends that a "last best offer" provided by the Respondent to the Union during the course of negotiations, which mentioned the anchoring feature afforded by tucking the tails into the trousers, "hardly qualifies as a policy directive" because this offer was not distributed to employees. Union's exceptions at 2-3. Moreover, the Union states that the memorandum that implemented the Respondent's new body armor policy contained no mention of this anchoring feature. The Union contends that absent any evidence that a policy was ever promulgated that dictated the manner in which employees were to wear the tails, the Judge's conclusions based on this premise cannot stand.

Further, the Union asserts that nothing in the record supports the Judge's factual finding that the Union ever explained its proposal as intended to circumvent the anchoring effect afforded by the tails of the body armor. The Union argues that while its witness acknowledged at the hearing that the tails could be pinned up beneath the body armor, it has recognized that they could also be tucked into the trousers. The Union maintains that this aspect of the body armor was never addressed during the negotiations and discussions between the parties because the parties' focus was almost entirely on the concealment aspects of the body armor. The Union argues that because the underlying factual findings are invalid, the Judge's conclusion that Proposal B interfered with management's rights to determine its internal security practices and direct employees is erroneous.

The Union contends that even assuming that the Respondent had ordered that the tails on the body armor be tucked into the trousers, Proposal B is nevertheless a negotiable appropriate arrangement because nothing in the proposal itself, or the Union's explanation of it, precludes employees from wearing the body armor in that fashion.

The Union argues that Proposal C is negotiable because nothing in it limits the full range of disciplinary penalties available to the Respondent. It states that Proposal C merely categorizes breaches of the body armor policy as violations of uniform code regulations and that nothing in those regulations establishes limits on discipline.

The Union contends that because at least one of the Union's other proposals is negotiable, so is Proposal D. The Union argues that a status quo ante remedy is appropriate and that such remedy will involve neither cost to the Respondent nor disruption of Agency operations.

C. The Respondent's Opposition to the Union's Exceptions and Cross-exceptions

In its cross-exceptions the Respondent initially contends that the excessive interference test that the Authority established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), is invalid and that those portions of the Judge's decision that apply that test should be set aside.

The Respondent also asserts that the Judge erred in ruling on the negotiability of Proposals A and C. The Respondent contends that at the hearing the General Counsel indicated that the complaint encompassed only Proposals B and D and that the General Counsel's statement "constituted an amendment" to the complaint. Respondent's brief at 8. The Respondent contends that, consequently, the Judge's rulings on Proposals A and C are without force and effect.

As to the merits of the Judge's negotiability findings, the Respondent argues that the Judge erred in assuming that the Respondent did not view Proposal B as inconsistent with its own proposal that employees wear body armor under the uniform shirt "no matter which uniform was the uniform of the day." Id. In fact, the Respondent contends that it has consistently objected to Proposal B because it is dependent on the unrealistic expectation that employees will not unzip or unfasten their outer garments while wearing body armor over their uniform shirts. According to the Respondent, the unrealistic nature of this expectation is underscored by the Union's arguments that one factor that makes wearing the body armor under the uniform shirt undesirable is the warm climate in southern California. The Respondent argues that, as a practical matter, Proposal B would "lead to an unacceptable trade off between employee safety and adherence to uniform standards . . . ." Id. at 11-12.

The Respondent contends that the Judge erred in concluding that Proposal B would not interfere with management's right under section 7106(b)(1) to determine the methods and means of performing work. The Respondent maintains that this right encompasses the determination of uniform requirements. The Respondent asserts that the Judge's statement at page 14 of his decision that "body armor is not part of the uniform that is to be worn properly" is "just plain wrong" because body armor "is a uniform item or uniform accoutrement[.]" Respondent's brief at 12. The Respondent argues that the border patrol uniform serves the same purpose for the border patrol agents who are involved in this case as the military uniform served for National Guard technicians in cases such as The Adjutant General, Massachusetts National Guard, Boston, Massachusetts, 36 FLRA 312 (1990) (Massachusetts National Guard). The Respondent argues that consistent with Massachusetts National Guard, the Judge's conclusion that the Respondent's "uniform regulation . . . does not concern a decision reserved by section 7106(b)(1) must be set aside." Respondent's brief at 14. Respondent asserts that even if the Judge's conclusion is not inconsistent with Authority precedent, it is inconsistent with the interpretation that the U.S. Court of Appeals for the Ninth Circuit has applied to the scope of management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute in U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 881 F.2d 636 (9th Cir. 1989) (INS). The Respondent contends that under the Ninth Circuit's interpretation of section 7106(b)(1), Proposal B is nonnegotiable. On a related issue, the Respondent maintains that because the cut of the Eisenhower jacket, which is a component of the border patrol dress uniform, would not conceal the body armor, the proposal would create a security hazard and a deviation from the central purpose of the Respondent's uniform regulations when applied to an employee who is required to wear the dress uniform.

The Respondent argues that the Judge erred in finding that Proposal B constitutes an appropriate arrangement insofar as it involves management's right to determine its internal security practices by requiring that the body armor be concealed. The Respondent contends that even if KANG is good law, the Judge's conclusion that this proposal does not excessively interfere with management's rights is still erroneous. The Respondent states that the claimed adverse effect involved is heat discomfort and contends that the proposed solution would not serve to ameliorate this problem but would aggravate it. In this regard, the Respondent states that Proposal B requires that employees who are wearing the body armor over their uniform shirt keep their outer garments zipped or buttoned up. Additionally, the Respondent contends that Proposal B has great potential for noncompliance because an employee who wished to unbutton or unzip an outer garment would be faced with the choice of doing without body armor or taking time to place it underneath his or her uniform shirt.

In its opposition to the Union's exceptions, the Respondent disputes the Union's claim that its new policy did not address the subject of how employees must wear the tails. In rebuttal, the Respondent contends that the Union acknowledges that during the course of negotiations the Respondent expressed concern for ensuring that the body armor was anchored and that its failure to specifically mention that concern in later communications does not demonstrate that the Respondent had abandoned that concern. The Respondent argues that it is illogical to read its policy requiring that employees wear their body armor under their uniform shirts as permitting the tails to be worn pinned up rather than tucked into the trousers.

In response to the Union's claim that Proposal B is negotiable as an appropriate arrangement, the Respondent asserts that because Proposal B does not preclude employees from wearing the tails outside their trousers, it would "totally 'abrogate' management's right to determine its internal security practice with regard to concealment . . . ." Respondent's brief at 23. The Respondent contends that the intent of Proposal B is to leave the placement of the tails to the discretion of the individual employee and that the Union's assurances that Proposal B would "preclude potential assailants from detecting the fact that an [employee] is wearing a vest were deceptive at best." Id.

D. Union's Opposition to Respondent's Cross-exceptions

The Union argues that the Judge properly ignored the Respondent's attempt to relitigate the excessive interference test and correctly determined that Proposal B constitutes an appropriate arrangement insofar as the issue of concealment of the body armor is concerned. The Union contends that the Respondent's claim that Proposal B would be difficult to enforce is purely speculative and incorrect inasmuch as a cursory visual inspection would reveal whether body armor is fully concealed in compliance with Proposal B. In disputing the Respondent's claim that Proposal B would encourage employees to remove their body armor, the Union asserts that employees would be more likely to use body armor if it could be more readily donned after dark or in other dangerous situations.

The Union argues that the complaint was framed broadly and that the General Counsel did not seek to amend the complaint at the hearing. Moreover, the Union asserts that all of the proposals were fully litigated.

The Union contends that the Respondent's representatives understood that the intention of Proposal B was that the body armor would be completely concealed by the uniform. The Union also argues that the Respondent's claims that Proposal B is impractical ignore several relevant facts. Specifically, the Union cites record testimony that the level of danger to employees is far greater during hours of darkness and that some shifts overlap daylight and darkness. The Union contends that given the fact that when the sun sets the temperature in the desert drops substantially, the employees' heightened desire and need for body armor often coincides with the period during a shift when wearing a fully zippered or buttoned jacket or coat is practical. The Union argues that Proposal B provides employees flexibility in body armor use and allows consideration of factors such as comfort and safety.

The Union points out that Proposal B leaves employees the option of wearing the body armor beneath their uniform shirts, but that requiring that practice has discouraged employees from utilizing the body armor.

The Union maintains that the Judge's conclusion that body armor is not part of the uniform is correct. Additionally, the Union contends that the circumstances in this case are distinguishable from those in Massachusetts National Guard in that nothing in Proposal B allows a deviation from the prescribed uniform itself. The Union argues that the court's decision in INS is similarly distinguishable inasmuch as that decision dealt with uniform trousers that are indisputably a part of the uniform and are highly visible.

Last, the Union asserts that contrary to the Respondent's contentions, the Judge correctly recognized that because body armor could not be fully concealed under the Eisenhower jacket, the use of that garment to conceal body armor is not permitted under Proposal B.

IV. Analysis and Conclusions

A. The Procedural Issue

We reject the Respondent's claim that the Judge improperly considered Proposals A and C. We agree with the Judge that the complaint is broad enough to encompass all of the Union's proposals within its scope. Although at the hearing the General Counsel indicated that it was the General Counsel's position that only Proposals B and D were negotiable, the General Counsel did not amend the complaint to narrow its scope. Additionally, the General Counsel interposed no objection to the Union's pursuit of its claim that all four proposals were negotiable. Significantly, the Respondent addressed the negotiability of all four proposals in its brief to the Judge. Thus, we conclude that Respondent was not prejudiced by the Judge's action in addressing all four of the Union's proposals.

For the foregoing reasons, we conclude that the question of the negotiability of all four of the Union's proposals was before the Judge and is before us.

B. Reconsideration of the Excessive Interference Test

The Respondent requests that the Authority reconsider the excessive interference test set forth in KANG, which establishes the standard for determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency argues that any proposal that interferes with a management right is nonnegotiable even if the proposal is intended as an appropriate arrangement.

In KANG, the Authority referenced the decision of the United States Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983), and stated that the court "enunciated a standard which requires an analysis of whether 'excessive interference' with a right reserved to management would result from the implementation of the proposal." KANG, 21 FLRA at 25.

We decline the Respondent's request that we reconsider the excessive interference test set forth in KANG. Accordingly, based on KANG, we reject the Agency's assertion that any proposal that interferes with a reserved right is nonnegotiable even if the proposal is intended as an appropriate arrangement. Instead, to determine whether a proposal is negotiable as an appropriate arrangement, we will determine whether the proposal constitutes an arrangement and, if it does, whether it excessively interferes with management's rights under section 7106 of the Statute. See, for example, American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region, 39 FLRA 675, 681-82 (1991), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region v. FLRA, No. 91-70259 (9th Cir. Apr. 12, 1991); National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 842-44 (1990); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 627-29 (1990).

C. The Union's Proposals

Generally, under the Statute, absent a clear and unmistakable waiver of bargaining rights, an agency must afford the exclusive representative of affected employees notice of proposed changes in conditions of employment and an opportunity to bargain over those aspects of the changes that are negotiable. For example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262 (1991) (SSA, Baltimore). Where parties are engaged in bargaining over a proposed change in conditions of employment, an agency is generally obligated to maintain the status quo pending the completion of the entire bargaining process, including the opportunity to pursue impasse procedures. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 948-50 (1990). If a bargaining obligation arises by virtue of an agency changing conditions of employment, the agency is required to bargain only over negotiable proposals. For example, SSA, Baltimore, 39 FLRA at 262. When a union submits bargaining proposals and an agency refuses to bargain over them based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. Id. at 262-63.

As recognized by the parties and the Judge, in this case the question of whether a violation has occurred is dependent on whether any of the Union's proposals are negotiable. The Judge has concluded that all of the proposals are nonnegotiable and that, therefore, the Respondent had no duty to bargain before implementing the change in its policy. We disagree. Rather, we conclude that Proposals B and D are negotiable and that the Respondent was required to bargain over those proposals before implementing the change in its policy regarding the wearing of body armor.

Initially, we note that in analyzing whether the proposals are negotiable as appropriate arrangements under section 7106(b)(3), the Judge has relied on the Authority's decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). In Customs Service, we concluded that in cases involving exceptions to arbitration awards, we should not apply the analytical framework formulated for cases involving negotiability decisions. We concluded that in cases where an agency asserts that an arbitrator's award is contrary to section 7106(a) of the Statute, we would examine the provision enforced by the arbitrator to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. 37 FLRA at 314. The approach formulated in Customs Service applies solely to questions concerning the enforceability of contractual provisions agreed to by the parties. See Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1221 (1991). The approach has no applicability to questions concerning the negotiability of proposals or provisions that are not contained in a contract pursuant to the parties' agreement. Consequently, the Judge's reliance on Customs Service in ruling on the negotiability of the Union's proposals in this case is misplaced. Rather, the appropriate standard for ruling on the applicability of section 7106(b)(3) in the context of negotiability determinations is that which the Authority set forth in KANG.

1. Proposal A

There were no exceptions filed with respect to the Judge's conclusions concerning Proposal A. However, the Judge applied the standard that was articulated in Customs Service in his analysis of the proposal. Therefore, we will independently examine the negotiability of that proposal applying the correct standard. For the following reasons, we conclude that Proposal A is nonnegotiable.

The record reveals that Proposal A represents the Respondent's existing practice at the time it was proposed. That is, as found by the Judge, the practice was that, except in extraordinary situations, the employees had the discretion to decide whether to wear body armor. Judge's decision at 6. However, the fact that a proposal is identical to an agency's policy or regulation does not by itself make the proposal negotiable. See, for example, American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 527 (1991) (National Border Patrol Council), petition for review filed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. June 25, 1991); Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 161-62 (1990) (Marine Corps, Cherry Point). Instead, to the extent that a portion of an agency's policy constitutes, and results from, the exercise of a management right under section 7106 of the Statute, proposals incorporating the policy constitute an independent contractual limitation on management's rights and directly interfere with those rights. See, for example, National Border Patrol Council, 40 FLRA at 527. Additionally, incorporation of the policy in the negotiated agreement would prevent the agency from changing the policy during the life of the agreement. See, for example, Marine Corps, Cherry Point, 38 FLRA at 161-62.

In agreement with the Judge, we conclude that Proposal A directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Authority has defined that right as including the right to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel and physical property. For example, National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019, 1031 (1991) (Rock Island Arsenal). This right extends to agency decisions that employees must use certain kinds of protective clothing and equipment. See, for example, id. The determination of the circumstances under which such clothing and equipment will be used is an integral part of the decision to require the use of protective clothing and equipment. See, for example, American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 994 (1988) (the discretion to determine under what circumstances immediate removal is warranted is an integral part of action to control or remove vehicles that may pose a threat to the safety of agency property or personnel).

We note that the circumstances here are distinguishable from those in International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Army Aberdeen Proving Ground, Aberdeen, Maryland, 32 FLRA 200 (1988). In that case the agency required that employees wear long pants while working in industrial, range and laboratory areas because of hazards connected with working in such areas. The union's proposal permitted employees to wear shorts only in certain areas where non-hazardous materials were used and when no safety or health hazards would result from wearing shorts. Because the proposal did not interfere with the agency's ability to protect its employees from health and safety hazards, the Authority concluded that by its terms the proposal did not interfere with management's right to determine internal security practices. Proposal A is not limited to those situations that do not involve hazards that the Respondent has sought to abate by the use of body armor. Therefore, it would directly interfere with the Respondent's ability to protect its employees from health and safety hazards.

Under the analytical framework set out in KANG, we first determine, as a threshold question, whether a proposal is in fact intended as an arrangement for employees adversely affected by management's exercise of its rights. We conclude that Proposal A is intended as an arrangement for employees adversely affected by the Respondent's new policy. In this regard, Proposal A seeks to ameliorate the adverse effects of the Respondent's policy that employees wear the body armor under their uniform shirts by proposing that the employees retain the discretion to determine, in other than extraordinary circumstances, whether they will wear the body armor. We now consider whether the proposed arrangement is appropriate. To determine whether a proposed arrangement excessively interferes with management's rights under the analytical framework that was articulated in KANG, the Authority considers whether the burden placed on the exercise of management's rights is disproportionate to the benefits to be derived from the proposed arrangement.

Proposal A would require that the Respondent continue its practice of allowing employees to decide whether to wear body armor except in extraordinary situations. Allowing employees the freedom to choose in ordinary circumstances whether they will wear body armor offers a significant benefit to employees. However, binding the Respondent to maintain that practice for the life of the agreement, notwithstanding whatever internal security concerns may arise that warrant a change in the practice, is a significant limitation on the Respondent's management right to determine its internal security practices under section 7106(a)(1) of the Statute. We conclude that, on balance, the negative impact of Proposal A on management's right outweighs the benefits to employees. Therefore, we conclude that it excessively interferes with management's right to determine internal security practices and is nonnegotiable.

2. Proposal B

Initially, we find that there is no basis in the record of this case to reject the Judge's statement at page 14 of his decision that "body armor is not a part of the uniform that is to be worn properly; rather it is an item that was to be worn so as not to interfere with the uniform or to compromise the uniform's purpose." In excepting to this statement, the Respondent offers only that this categorization is "just plain wrong, and that the vest is a uniform item or uniform accoutrement, particularly if, as Union proposal B would have it, it is to be worn over the uniform shirt." Respondent's brief at 12-13. At the hearing in this case, the Respondent placed into evidence a portion of section 2415 of the Immigration and Naturalization Service Administrative Manual that prescribes, among others, the border patrol uniform. Respondent's Exhibit Z. While that section is quite detailed in specifying the composition and specifications of the uniform, it makes no mention whatsoever of body armor. Based on this evidence, we cannot conclude that the Judge's statement is in error.

Next we turn to the interpretation of Proposal B. It is clear from the record that the Union intends Proposal B to permit employees to wear body armor over the uniform shirt only in circumstances where the body armor is completely concealed by one of the outer garments that constitutes the uniform. This interpretation is consistent with the wording of the proposal and we adopt it for purposes of this decision.

We agree with the Judge that Proposal B does not directly interfere with management's rights to determine its mission and organization. See U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701 (1990) (Border Patrol), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991).

We also agree with the Judge that Proposal B does not directly interfere with management's right to determine the methods and means of performing work. See id. In this regard, we reject the Respondent's argument that consideration of matters such as military discipline and esprit de corps compels a contrary conclusion. As we stated in Border Patrol, the Respondent "is not a military organization and border patrol agents are not members of the United States armed forces." 38 FLRA at 719. Consequently, we view the circumstances involved here as distinguishable from those involving National Guard technicians in decisions such as Massachusetts National Guard, 36 FLRA 312.

National Guard technicians are civilian employees of the National Guard, and are employed for the purpose of administering the National Guard, training its members, and maintaining and repairing the equipment of the Guard. H.R. Rep. No. 1823, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Ad. News 3318, 3323. Unlike the border patrol agents, under the National Guard Technicians Act the civilian technicians must become and remain military members of the state National Guard in which they are employed as a condition of their employment and must maintain the military grade specified for their technician positions (32 U.S.C. º 709(b) and (e)(1)). Based on the military role that the National Guard technicians perform in a military organization, the Authority has found that the specific prescribed military uniform is critical to achieving the purposes for which the National Guard has adopted its uniform requirements. See, for example, Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 686 (1987). In contrast, we conclude that allowing border patrol agents the option of wearing body armor in a manner other than under the uniform shirt would not interfere with morale, pride, esprit de corps, regimentation, and discipline, or create divisiveness and factionalism. See Border Patrol, 38 FLRA at 720 (nothing in the record supported the respondent's claim that the wearing by employees of union insignia on their uniforms would have an adverse effect on morale, pride or esprit de corps). Accordingly, we reject the Respondent's argument that Proposal B directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

Insofar as our opinion here diverges from that of the U.S. Court of Appeals for the 9th Circuit, we respectfully disagree with the court's assessment that the same rationale that applies to military uniforms applies to the border patrol uniform insofar as the right to determine the methods and means of performing work is concerned. We reiterate that we will not apply the same rationale to the border patrol uniform as we apply to military uniforms. Id.

We conclude, however, that Proposal B directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. As noted above, this right includes the right to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel and physical property. For example, Rock Island Arsenal, 42 FLRA at 1030. When an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice or decision designed to implement that goal, a proposal that directly interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1). For example, America Federation of Government Employees, Local 1482 and U.S. Department of the Navy, United States Marine Corps Logistics Base, Barstow, California, 40 FLRA 12, 15-16 (1991). Where such a link has been established, the Authority will not review the merits of the agency's action in resolving a negotiability dispute. For example, American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 984 (1990) (Wright-Patterson).

In this case, the Agency has asserted that, among others, the purposes that it sought to achieve by requiring that employees wear the body armor under the uniform shirt are the concealment and anchoring of the body armor. Its claim that these features are reasonably connected to the effectiveness of the body armor is plausible and is unrebutted.⁽¹⁾ We conclude that the Respondent has established a link between its policy or practice of requiring that employees wear the body armor under the uniform shirt and its goal of protecting its personnel. By requiring the Respondent to permit employees the option of wearing the body armor over the uniform shirt but under an outer garment, Proposal B directly interferes with the Respondent's right to determine its internal security practices. Compare Wright-Patterson, 34 FLRA 977 (proposals that would substitute different entry procedures on a military base for those adopted by the agency directly interfere with management's right to determine its internal security practices).

We turn to the question of whether Proposal B constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Under the analytical framework set forth in KANG, we initially determine whether the proposal constitutes an arrangement for employees who are adversely affected by the exercise of a management right. The Respondent does not dispute the assertion that wearing body armor in the southern California climate can produce heat discomfort. Respondent's brief at 17-18. Proposal B clearly seeks to ameliorate this adverse effect and, thus, constitutes an arrangement within the meaning of section 7106(b)(3).

We next determine whether the proposed arrangement is appropriate or whether it excessively interferes with management's rights. As we previously found, Proposal B would permit employees the option of wearing the body armor over the uniform shirt only in circumstances where the armor is covered, that is, completely concealed, by a uniform jacket or other approved article. The wording of Proposal B is silent on the manner in which employees will wear the tails. Further, we do not find any basis in the record for concluding that the Union ever expressed the intent that under Proposal B the tails would be pinned up under the body armor. At the hearing a Union witness who was demonstrating the body armor testified that the tails could be pinned up. Tr. 44-45. In its brief to the Judge, the Union reiterated this possibility but also stated that employees could tuck them into their trousers. Union brief to the Judge at 8. This statement is cited and repeated in the Union's exceptions. Union's exceptions at 3. We view the Union's statements concerning pinning up the tails as a recognition of what is physically possible under the proposal, rather than an indication of what would be required by the proposal.

We find that the record does not support a conclusion that Proposal B would preclude the Respondent from requiring that border patrol agents tuck the tails into their trousers when wearing the body armor over their uniform shirts. Moreover, pictures of the border patrol uniform that are contained in the record reveal no reason why the tails could not be tucked into the trousers when the body armor is worn over the shirt. General Counsel's Exhibit Nos. 15, 17(a) and (b), 18(a), (b) and (c), and 19(a), (b) and (c); Respondent's Exhibit M , N, O, and P. Nor does the Respondent claim, in its opposition, that such is not physically possible.

We find that under Proposal B, the Respondent's objectives of concealing and anchoring the body armor are not compromised. Thus, the impact of the proposal on management's right to determine its internal security practices is minimal. In contrast, the proposal provides a significant benefit to employees. The record reveals that, under the Respondent's current policy, employees retain individual discretion to decide whether to wear the body armor except in circumstances where they are directed specifically to wear it. Proposal B gives employees the option of wearing the body armor under the uniform shirt or, if they wish to wear an appropriate outer garment, over the uniform shirt. As was elicited in testimony at the hearing, the danger to border patrol agents is generally greater during darkness than during daylight. Tr. 219-20. Many agents work on shifts that cross darkness and daylight. Tr. 220. As it is not uncommon in desert areas for the temperature to vary significantly between darkness and daylight, it would not be unreasonable to assume, as the Union argues, that an employee could comfortably wear a jacket or other outer garment during one portion of his or her shift and not in another. Thus, the flexibility afforded by Proposal B affords a significant benefit by facilitating the employees' ability to put the body armor on and take it off based on changing needs that occur during their work day.⁽²⁾ In sum, providing such flexibility will enhance employees' ability and willingness to wear the body armor during periods when it is advisable to do so. On balance, we conclude that the benefits to employees outweigh the negative impact on management's rights and that the proposal does not excessively interfere with management's right to determine its internal security practices.

The Respondent's speculation about the likelihood of noncompliance with the requirement that the outer garment remained zipped or buttoned does not provide a basis for finding this proposal nonnegotiable. An agency cannot remove an otherwise negotiable proposal from the bargaining table simply because the agency expects that, if agreed upon, the proposal could provide the opportunity for abuse. National Association of Government Employees, Local R14-77 and Veterans Administration Medical Center, Grand Junction, Colorado, 23 FLRA 547, 549 (1986). Such speculation provides no basis for finding that a proposal is nonnegotiable. Id.

Even assuming that the proposal may also interfere with management's right to direct employees, we conclude, based on the reasoning expressed above, that it would constitute an appropriate arrangement with respect to this management right as well. In this regard, we note particularly that Proposal B does not prevent the Respondent from requiring that employees wear the body armor so that it is concealed and anchored. Thus, the negative impact on management's ability to require that employees wear the body armor in a manner that renders it most effective is minimal.

3. Proposal C

The Union argues that Proposal C is intended only "to categorize violations of the body armor policy as violations of uniform code regulations." Union's exceptions at 5. However, as written, Proposal C also requires that such violations shall be treated consistent with past practice. Thus, the express wording of the proposal is not as limited as the Union suggests in its arguments, and we conclude that the Union's statement is inconsistent with the plain wording of the proposal. We do not base a negotiability determination on a statement of intent that is inconsistent with a proposal's plain wording. For example, National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991).

As written, Proposal C would require that for the life of the agreement, the Respondent treat violations of the body armor policy in a manner that is consistent with its past practice of handling uniform apparel violations. Thus, the proposal limits the Respondent's discretion to take disciplinary action for violations of the body armor policy. For example, the Respondent would be limited to disciplinary action that is consistent with actions taken previously in response to uniform apparel violations notwithstanding the fact that it may deem that violations of the body armor policy warrant a different type or level of action. In this regard, the Respondent may wish to treat a violation of body armor policy in which the effectiveness of the body armor is compromised as inherently more serious than a routine violation of its uniform apparel requirements. Proposals that place restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. For example, American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 198-99 (1991). We conclude that Proposal C directly interferes with the Respondent's management right to take disciplinary action. See id. (Provision 2, which required the agency to administer discipline in, among other things, a progressive and consistent manner, excessively interfered with management's right to take disciplinary action.)

Proposal C's restrictions on the Respondent's ability to impose disciplinary action on employees for violations of body armor policy constitute a benefit for employees. However, the employee benefits are obtained only through significant restrictions on the Respondent's right to determine what disciplinary actions are appropriate in response to violations of body armor policy. We conclude that the limitations that Proposal C places on the Respondent's discretion to determine appropriate disciplinary action outweigh the benefits to employees and, thereby, excessively interfere with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. See id. Consequently, we find that Proposal C is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is nonnegotiable.

4. Proposal D

As noted by the Judge, the negotiability of Proposal D, which requires that the parties treat the "terms of this agreement" as binding until they reach agreement to modify or terminate the agreement, is dependent on a conclusion that at least one of the Union's other three proposals is negotiable. In view of our conclusions that Proposal B is negotiable and the fact that this portion of the proposal simply restates the parties' statutory obligation to maintain the terms of a negotiated agreement until they reach agreement to change those terms, we conclude that Proposal D is negotiable.

D. Summary and Conclusions

Proposals B and D are negotiable. Consequently, the Respondent's action of implementing a change in its policy on the manner in which employees will wear body armor without first completing bargaining with the Union over the impact and implementation of that change violated section 7116(a)(1) and (5) of the Statute. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309 (1991).

E. The Remedy

Both the General Counsel and the Union request a status quo ante remedy. In Federal Correctional Institution, 8 FLRA 604 (1982) the Authority set forth balancing criteria to be applied to the facts of each case to determine whether a status quo ante remedy is warranted in the case of a refusal or failure to bargain over procedures and appropriate arrangements that management will observe in exercising its rights under section 7106 of the Statute. Under the Federal Correctional Institution criteria, the Authority considers, among other things: (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Federal Correctional Institution, 8 FLRA at 606.

The record in this case reveals that the Respondent notified the Union of its intention to standardize the wearing of body armor in advance of implementing the new policy. The Union requested bargaining and presented proposals to the Respondent concerning the proposed change in body armor policy in a timely manner. The Respondent ultimately declared all of the Union's proposals nonnegotiable and implemented the policy notwithstanding the fact that bargaining over the issue had not been completed and that the Union had requested that bargaining continue and that the status quo be maintained pending resolution of the issues in dispute. Thus, the Respondent acted with full knowledge that the bargaining process had not been completed. Further, the new policy adversely affected the employees by limiting their flexibility to put on and remove the body armor in a climate in which wearing body armor can produce significant heat discomfort.

The Union and the General Counsel contend that a status quo ante remedy would not disrupt or impair the efficiency and effectiveness of Agency operations. In support of this last point, the General Counsel contends that the Respondent had operated without a policy requiring that body armor be worn under the uniform shirt for a substantial period of time without problem or incident. Indeed, the Respondent offers no claim that any problem actually resulted under its previous policy. Moreover, the Respondent offers no argument whatsoever to support a conclusion that a return to the status quo ante would disrupt or impair the efficiency and effectiveness of Agency operations. In the absence of any such claim on the part of the Respondent and any support for such a claim that is otherwise apparent to us, we find that there is no basis on which to conclude that disruption or impairment of agency operations would result from a return to the status quo ante. We note particularly that under the status quo ante employees generally have the option of wearing the body armor under their uniform shirt whenever they view that as prudent and in the interest of safety.

Accordingly, after balancing the factors set forth in Federal Correctional Institution, we conclude that a status quo ante remedy is appropriate and warranted in order to best effectuate the purposes and policies of the Statute.

V. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, shall:

1. Cease and desist from:

(a) Unilaterally establishing a policy requiring that employees wear body armor underneath their uniform shirts, without bargaining with the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of certain of its employees, to the extent consistent with law and regulations, concerning the procedures to be observed in implementing that policy, and appropriate arrangements for employees adversely affected by that policy.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the 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) Upon request of the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of certain of its employees, rescind the policy requiring that employees wear their body armor underneath their uniform shirt and afford it the opportunity to bargain over the impact and implementation of any such changes that occur in the future.

(b) Post at its San Diego Sector facilities copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the 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 these Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Region, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103, 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 unilaterally establish a policy requiring that employees wear body armor beneath their uniform shirts, without bargaining with the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of certain of our employees, to the extent consistent with law and regulations, concerning the procedures to be observed in implementing that policy, and appropriate arrangements for employees adversely affected by that policy.

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, upon request of the National Border Patrol Council, American Federation of Government Employees, Local 1613, AFL-CIO, the exclusive representative of certain of our employees, rescind the policy requiring that employees wear their body armor underneath their uniform shirt and afford it the opportunity to bargain over the impact and implementation of any such changes that occur in the future.

___________________________
(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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.

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FOOTNOTES:
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1/ In their exceptions, the Union and the General Counsel challenge this claim only with respect to the timing and consistency with which the Respondent expressed its concern for anchoring the body armor into the trousers. In any event, we note that the record establishes that the Respondent clearly articulated this specific concern to the Union on one occasion during the course of negotiations over its then-proposed policy that the body armor be worn under the uniform shirt. General Counsel Exhibit No. 5. We find that the Respondent's failure to expressly articulate this specific concern in a consistent manner in its communications regarding its policy does not undermine the validity of this claim.

2/ Although tucking the tails into the trousers would require more effort than simply letting them hang down over the trousers, it appears to be more practical than removing and replacing the uniform shirt.

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