[ v25 p490 ]
25:0490(35)CA
The decision of the Authority follows:
25 FLRA No. 35
UNITED STATES DEPARTMENT OF
JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE, PORT
OF ENTRY, SAN YSIDRO, CALIFORNIA
Respondent
and
IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2805,
AFL-CIO, SAN DIEGO, CALIFORNIA
Charging Party
Case No. 8-CA-50367
DECISION AND ORDER /1/
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that the Respondent be ordered to cease and desist and take
certain affirmative action. The Judge also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that the complaint be dismissed as to these
allegations. Thereafter, the Respondent filed exceptions to the Judge's
Decision with a supporting brief. The General Counsel filed a brief in
support of the Judge' s Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision, the Respondent's exceptions, the General Counsel's
response to the exceptions, and the entire record, the Authority hereby
adopts the Judge's findings, conclusions, and recommended Order, as
modified. /2/ See United States Immigration and Naturalization Service,
Port of Entry, San Ysidro, California, 25 FLRA No. 30 (1987).
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, it is ordered that the
United States Department of Justice, Immigration and Naturalization
Service, Port of Entry, San Ysidro, California, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by
forbidding Richard Walker or any other uniformed inspector, while on
duty, from wearing an American Federation of Government Employees pocket
penholder or other union insignia which does not detract from the
uniform.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their 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 Statute:
(a) Permit Richard Walker or any other uniformed inspector, while on
duty, to wear an American Federation of Government Employees pocket
penholder or other union insignia which does not detract from the
uniform.
(b) Post at its San Ysidro, California 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 Port
Director and shall be posted and maintained for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that the Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
It is further ordered that the complaint is dismissed as to
allegations concerning section 7116(a)(5) of the Statute.
Issued, Washington, D.C., February 4, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DISSENTING OPINION OF CHAIRMAN CALHOUN
Unlike the situation in United States Immigration and Naturalization
Service, Port of Entry, San Ysidro, California, 25 FLRA No. 30 (1987),
which involved the wearing of a lapel pin, in this case I conclude that
the Agency has adequately demonstrated that " special circumstances"
exist which warrant restricting the employee's right "to form, join or
assist any labor organization" under section 7102 of the Statute. See
United States Army Support Command, Fort Shafter, Hawaii, 3 FLRA 796
(1980).
As discussed in the Administrative Law Judge's Recommended Decision,
in exercising section 7102 rights, the interests of employees and
management must be balanced. I believe that this balancing requires
slightly more stringent deference to management's interests when, as
here, the employee is a uniformed law-enforcement officer. The "small,
neat, inconspicuous, non-provacative" standard enunciated in Fort
Shafter should be gauged against the fact that law-enforcement personnel
must present a disciplined, authoritative, and unifrom appearance.
In this case the penholder is 2 and 1/2 inches high and 3 and 1/2
inches wide. It is larger and more visible than any official adornment
on the employee's uniform. I also find it significant that when the
employee is in uniform, he is in constant contact with the public,
including contact with foreign nationals. In such circumstances the
need for uniformed Immigration Inspectors to present a professional and
authoritative appearance is increased.
Since the employee was prohibited from wearing the penholder only
when he was in uniform, I believe special circumstances have been shown.
I also concur in the Administrative Law Judge's finding that no past
practice concerning the wearing of the penholders has been established.
Issued, Washington, D.C., February 4, 1987.
/s/ Jerry L. Calhoun, Chairman
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 forbid Richard Walker or any other uniformed inspector,
while on duty, from wearing an American Federation of Government
Employees pocket penholder or other union insignia which does not
detract from the uniform.
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 Richard Walker or any other uniformed inspector, while
on duty, to wear an American Federation of Government Employees pocket
penholder or other union insignia which does not detract from the
uniform.
(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 VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
Case No.: 8-CA-50367
UNITED STATES DEPARTMENT OF
JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE, PORT
OF ENTRY, SAN YSIDRO,
CALIFORNIA
Respondent
and
IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2805,
AFL-CIO, SAN DIEGO, CALIFORNIA
Charging Party
Melainie Fitzsimmons, Esq.
For Respondent
Richard Walker
For Charging Party
Deborah S. Wagner, Esq.
For General Counsel
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute) and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
Pursuant to a charge filed on May 31, 1985, and amended on August 19,
1985, by Immigration and Naturalization Council, American Federation of
Government Employees, Local 2805, AFL-CIO /3/ against United States
Department of Justice, Immigration and Naturalization Service, Port of
Entry, San Ysidro, California, hereinafter called Respondent and INS San
Ysidro, /4/ the General Council of the FLRA, by the Director of Region
VIII issued the Complaint and Notice of Hearing herein on August 28,
1985 alleging that Respondent violated Section 7116(a)(1) and (5) of the
Statute by preventing an employee from wearing a penholder which
displayed the initials of AFGE, thereby changing an alleged past
practice, without notifying Local 2805 AFGE and affording it an
opportunity to bargain about the change. Respondent filed an Answer
denying it had violated the Statute.
A hearing in this matter was conducted before the undersigned in San
Diego, California. Respondent, Charging Party and General Counsel of
the FLRA were represented and afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence and to argue
orally. Briefs were filed and have been fully considered. /5/
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and my evaluation of the record I make the
following:
Findings of Fact
In 1968 the Council was recognized by INS as the exclusive collective
bargaining representative of a servicewide unit composed of all INS
employees except those assigned to Border Partrol Sectors and certain
others not relevant herein. The employees at INS San Ysidro are within
this unit. The Council and INS have been parties to successive
collective bargaining agreements, the most recent of which is effective
from September 21, 1984 to September 21, 1986, covering the employees in
the nationwide unit. Local 2805 AFGE is a constituent of the Council.
Richard Walker is employed by INS. He has held the position of
Special Agent since 1972 and has been at all times material a member of
the bargaining unit. Walker's duty station is the San Diego District
Office. His duties as a special agent consist of the location and
apprehension of aliens who are in the United States illegally. His
working clothes consist of a suit and tie.
Walker occasionally works overtime assignments as an Immigration
Inspector at the San Ysidro Port of Entry. His overtime work is usually
performed on the evening shift and his duties consist of inspecting
individuals and vehicles coming into the United States and evaluating
their eligibility for admission. Walker has worked an average of about
one night of such overtime per pay period since mid-1983. All
Inspectors are required to wear a uniform. The uniform consists of a
light blue shirt with an INS insignia on the arm, darker blue pants,
black shoes and socks, and a black belt. On the shirt, a badge appears
above the left breast pocket and a brass nameplate above the right
pocket. The winter uniform includes a long sleeve shirt, a jacket and a
tie, while the summer consists of a short sleeve shirt and no tie. The
uniform is described in the Administrative Manual. The Officer's
Handbook provides, inter alia, "Where a uniform is required, it should
be complete in all details and devoid of ornaments which are not part of
the uniform." Inspectors on occasion wear sidearms. They deal with the
public and are engaged in law enforcement. The purposes for wearing the
uniform are so Inspectors can be readily identified as law enforcement
officials, so they can be identified as INS Inspectors and so they are
not confused with other officials who are present (e.g. customs agents).
All the Inspectors at the San Ysidro Port of Entry rotate from one
assignment to another every half hour. There are normally two or three
first line supervisors and one operational supervisor, a second line
supervisor, on duty during the evening shift, when Walker worked his
overtime assignments. The first line supervisors are stationed in
different work areas along with the Inspectors, in the areas where the
public is inspected, while the operational supervisor is located in the
main office on the second floor. Accordingly, operational supervisors
normally have little contact with employees during evening shifts,
whereas first line supervisors are stationed directly in the work areas
with the Inspectors, who rotate through the different wash areas, and
the Inspectors are regularly observed by these first line supervisors.
The first line supervisors make sure the Inspectors are in proper
uniform. The operational supervisors and Port Director also enforce the
uniform requirement on the occasions they observe Inspectors. The Port
Director rarely worked the evening shift and had very little contact
with the Inspectors during the evening shift.
In 1982 Walker was Local 2805 AFGE Chief Steward; in 1983 he was the
Local Vice-President; and in 1984 he was the Local President. In 1985
Walker was Local 2805 AFGE's arbitration specialist and in October 1985
he again became Chief Steward.
From mid-1983 to May 1985, Walker wore a penholder and pocket
protector in the right breast pocket of his uniform shirt. Walker wore
the penholder each time he worked as an Inspector. The penholder is
off-white and fits inside the breast-pocket with a flap of the same
color that folds over the top of the breast-pocket. The flap is 2 and
1/2 inches high and 3 and 1/2 inches wide and contains the AFGE Logo and
initials in blue and red with the inscription "TO DO FOR ALL THAT WHICH
NONE CAN DO FOR HIMSELF". /6/ Walker wore the pocket flap tucked in so
that the penholder did not obscure his brass nameplate. /7/ When the
uniform jacket was worn, it covered the penholder. /8/
During early 1985 Robert Rich, Operations Supervisor, talked to
Walker in the vehicle secondary inspection area. Walker was working
overtime as an Inspector at the San Ysidro Port of Entry. Rich asked
Walker whether Walker would remove the penholder if asked to do so.
Walker replied that he would not and that it would be an unfair labor
practice for Rich to require it.
On May 22, 1985 Walker was working overtime as an Inspector at the
San Ysidro Port of Entry. Rich approached Walker and told Walker to
remove his penholder. Walker asked Rich, "Why?" and Rich replied that
the penholder was not part of the official uniform so it could not be
permitted. Walker asked whether he was being ordered to remove the
penholder and Rich replied that it was an order. Walker removed the
penholder and told Rich that Walker felt this constituted an unfair
labor practice, and he would file an unfair labor practice charge. Rich
replied that they would each have to do what each felt was necessary.
In the fall of 1984 Rich told Local 2805 AFGE officials Ted Stark and
Sherman Swanson that the penholders were forbidden. In the Spring of
1985 Rich told several new trainees to remove the penholder and to relay
the message to another employee, Marissa Hernandez.
Certain buttons were worn by Inspectors which were issued by INS.
One such button was one that said "We Serve With Courtesy & Pride" and
was issued before the 1984 Olympics. Wearing of the button was
optional. Another such pin is the service year pin, which is issued
every five years, setting forth the employees length of service, and is
normally worn on or near the nameplate or badge. Employees also wore a
patch commemorating the 200th anniversary of the United States and black
armband for a deceased fellow officer.
Inspectors also wore olympic torch pins, /9/ tie tacks, /10/ belt
buckles, /11/ necklaces and earings.
Stark wore a two-inch diameter San Diego Padres Button intermittently
during the 1984 baseball playoffs and continuously during the 1984 World
Series. Although clearly visible no supervisor told Stark to remove the
button until after the World Series was over.
Article 25 of the Collective Bargaining Agreement provides:
ARTICLE 25 - Uniforms and Appearance
A. The Service agrees to notify the Council President within
twenty-two (22) workdays of receipt in the Central Office of all
employees' suggestions regarding uniforms.
B. The Service will notify and discuss with the Union all
proposed uniform changes, additions and deletions, prior to
circulation to the field.
C. The District Director will determine the periods of time,
the tours of duty, and assignments during which the short-sleeved
uniform shirt will be worn. Neckties will not be worn with rough
duty uniforms or with summer dress uniforms, except where the
short-sleeved shirt is worn with the blouse. Ties and the tie
clasp will also always be worn with long-sleeved dress uniform
shirts or dress uniform coat.
D. All leather goods for uniform wear shall be made of high
quality, black, untooled leather. Leather equipment shall be kept
dyed and shined, and shall be replaced when it is cracked or worn
out. All leather goods for plain clothes wear shall be well made
of high quality leather and maintained in good serviceable
condition. In all cases, the style and design of holsters and
other leather goods will meet the specifications contained in
Service regulations.
E. Bringing all uniform items to formal inspections shall not
be necessary after all required uniform items have been purchased
and inspected by the appropriate supervisory officer. Thereafter,
formal inspection will be for officers to appear in full uniform
semiannually, once in winter dress uniform and once in summer
dress uniform. 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.
F. Management will provide fatigue clothing suitable for the
protection of civilian clothing or uniforms. The necessity, type,
and quantity of the clothing will be determined by Management
(normally the District Director) and fatigue clothing will be
stored at the official duty stations.
G. Female Immigration Inspectors shall be allowed the option
of wearing either the authorized uniform skirt or uniform slacks
at sea and land border ports of entry.
Discussion and Conclusions of Law
General Counsel of the FLRA contends that INS San Ysidro violated
Section 7116(a)(1) of the Statute by denying Walker the right to wear
the AFGE penholder and violated Sections 7116(a)(5) and (1) of the
Statute by unilaterally changing an existing working condition when INS
San Ysidro ordered Walker to remove the penholder without affording
Local 2805 AFGE an opportunity to bargain about the change.
Section 7102 of the Statute provides, inter alia, "Each employee
shall have the right to form, join or assist any labor organization, . .
. " The FLRA has long recognized that Section 7102 of the Statute grants
employees the right to wear small, neat, inconspicuous, non-provocative
union insignia at work. United States Army Support Command, Fort
Shafter, Hawaii, 3 FLRA 796 (1980), hereinafter called the Fort Shafter
Case; and Federal Aviation Administration, Spokane Tower/Approach
Control, 15 FLRA 668 (1984), hereinafter called the FAA Case. In
determining whether there has been a violation of such a right under the
Statute or whether there are the type of "special circumstances" that
would warrant an agency in restricting such a right, the circumstances
are examined and the competing rights and obligations are balanced.
Fort Shafter Case, supra.
In the Fort Shafter Case, supra, the FLRA, by affirming the
Administrative Law Judge, concluded that in the circumstances there
present a 3-inch long by 1 and 1/2 inch wide Steward badge, which was
about the same size as the Hotel name tag, could be considered a change
of the uniform and thus waived by the Union in the contract /12/ and
that, because customers were confused as to whether the waiter worked
for the hotel or union, the prohibition was a valid exercise of the
Respondent's right, on the basis of business judgment, to avoid
confusing customers.
In the subject case the employees presumably have the same rights
under Section 7116(a)(1) of the Statute to wear an insignia on behalf of
a labor organization. The rights and interests of the parties have to
be balanced. In this case the balance involves Walker's right as
guaranteed by Section 7102 of the Statute to wear the AFGE penholder and
INS' purpose, interest and consideration in requiring the Investigators
to wear uniforms. Basically INS requires the Investigators to wear
uniforms so that the Investigators are clearly identifiable as law
enforcement agents, are easily noticed, and are in uniforms easily
distinguishable from the other uniformed government employees who may
also be present.
At the hearing I observed the uniforms worn by the Investigators and
the penholder and I find that the penholder did not detract from the
uniform and would not reasonably have confused any member of the public.
Further, the wearing of the penholder would not interfere with any of
the purposes for which the uniform is worn. The Investigators would
still be clearly identifiable as law enforcement officers and would
still be distinguishable from the other uniformed government employees.
Finally the appearance of the penholder, neat and useful, was not one
that would have harmed the image of the INS that the uniform would
convey.
INS seems to contend that the wearing of the uniform by Investigators
is the "means" to perform the work of the INS.
Section 7106(b)(1) of the Statute provides:
" (b) Nothing in this section shall preclude any agency and any
labor organization from negotiating -
(1) at the election of the agency, on the numbers, types, and
grades employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work;"
It has been recognized as far back as 1977 under Executive Order
11491 that the wearing of a uniform by INS law enforcement employees is
an exercise by management of the means by which to perform its law
enforcement operations. AFGE, National Immigration and Naturalization
Service Council and Department of Justice, INS, 5 FLRC 105 (1977)
(hereinafter called the INS Council Case), and American Federation of
Government Employees, AFL-CIO, National Immigration and Naturalization
Service Council and U.S. Department of Justice, Immigration and
Naturalization Service Council, 8 FLRA 347 (1982) (hereinafter called
the INS Nameplate Case). In both cases it was recognized that, although
the uniform is a "means" within INS' privilege to act, that does not
mean that the INS' right is absolute. /13/ Rather it was recognized
that the employees' rights still may exist, i.e. the obligation to
bargain, so long as the exercise of the employees' rights does not
negate the purpose for which uniforms are required. Thus because I
concluded that the AFGE penholder would not negate the purpose for the
uniform, I reject INS' contention that because the uniform was a
"means", and therefore non-negotiable, INS was privileged to forbid the
wearing of the penholder. Similarly, I reject INS' argument that
because Article 25 of the collective bargaining agreement provides,
inter alia, that INS will notify the Council president of employee
suggestions concerning the uniform and will notify the Council of all
proposed uniform changes, that the Council waived the employee right to
wear union insignia. Any waiver of a protected right must be clear and
unequivocal and this provision of the collective bargaining agreement
does not constitute such a waiver. See Fort Shafter Case, supra and
Nuclear Regulatory Commission, 8 FLRA 715 (1982).
Accordingly, I conclude that INS San Ysidro did violate Section
7116(a)(1) of the Statute because it interfered with Walker's right
guaranteed by Sector 7102 of the Statute by ordering Walker to remove
the AFGE penholder.
The General Counsel of the FLRA contends that Walker's wearing of the
AFGE penholder was a past practice that constituted a condition of
employment and that INS San Ysidro changed such condition in violation
of Section 7116(a)(5) of the Statute when it ordered Walker to remove
the AFGE penholder without prior notification to Local 2805 AFGE and
without providing the union with an opportunity to bargain about the
change.
A practice becomes a term and condition of employement when it has
been consistently exercised for a substantial period of time with the
knowledge and consent of the management. U.S. Immigration and
Naturalization Service, 16 FLRA 1007 (1984). In the instant case only
Walker is alleged to have worn the penholder consistently while in
uniform and he worked in a uniformed capacity only one day a pay period.
Thus Walker only appeared in uniform about once every two weeks.
Further on a number of those occasions, when it was cool, the penholder
was concealed by Walker's uniform jacket. Further it is noted that,
according to the record, the only other employees, including AFGE Local
2805 officials, who wore the penholder were told by INS San Ysidro
officials to remove them and to so inform other employees. Some of
these incidents occurred as far back as the Fall of 1984. In such
circumstances I find the wearing of the AFGE penholder was not a past
practice that constituted a term and condition of employment within the
constraints set forth in U.S. Immigration and Naturalization Service, 16
FLRA 1007 (1984). Accordingly, I conclude that INS San Ysidro did not
violate Section 7116(a)(5) of the Statute when it ordered Walker to
remove the penholder.
Having concluded that INS San Ysidro violated Section 7116(a)(1) of
the Statute when it ordered Walker to remove the AFGE penholder I
recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
the United States Department of Justice, Immigration and Naturalization
Service, Port of Entry, San Ysidro, California, shall:
1. Cease and desist from:
(a) Forbidding uniformed inspectors from wearing an American
Federation of Government Employee pocket penholders or other
insignia on behalf of the American Federation of Government
Employees, or any other labor organization, that do not detract
from the uniform.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
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 Statute:
(a) Permit Richard Walker, or any other employee, while in
uniform, to wear an American Federation of Government Employee
pocket penholder or any other insignia on behalf of the American
Federation of Government Employees, or any other labor
organization, that do not detract from the uniform.
(b) Post at its San Ysidro, California facilities copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by a responsible official and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/s/ Samuel A. Chaitovitz
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: May 16, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) In his recommended order the Judge inadvertently neglected to
include a provision, consistent with his Decision, for dismissal of the
allegation of a section 7116(a)(5) violation. This has been corrected.
(3) The Charging Party will be referred to as Local 2805 AFGE; the
Immigration and Naturalization Council will be referred to as the
Council; and American Federation of Government Employees, AFL-CIO, will
be referred to as AFGE.
(4) The Immigration and Naturalization Service will herein be
referred to as INS.
(5) Respondent filed an Addendum to its brief on April 23, 1986.
General Counsel of the FLRA filed a Motion to Strike addendum. The
Addendum was untimely filed and is hereby rejected.
(6) This is a replica of the pocket flap, excepting the colors:
REPLICA OMITTED
(7) In this regard I credit Walker whose memory was more precise as
to where and how he wore the penholder than the memory of the other
witnesses.
(8) Walker also wore the penholder in his shirtpocket when he was
performing his normal duties as a Special Agent and was therefore not in
uniform.
(9) The Olympic Torch pins bear the initials "INS", are about the
size of a tie tack (3/4 inch high and a 1/2 inch wide), and were sold by
the employee Recreation and Welfare Association. They were worn on the
shirt pocket flap, the shirt collar or lapel and on the badge.
(10) Employees wore a variety of tie tacks, (e.g. "Smurfs", "Yosemite
Sam", border patrol tack) which are about 1/2 inch by 1/2 inch and an "I
Love America" tie tack which is about 1/2 inch by 1 and 1/2 inches.
They also wore Marine Corps and Air Force emblem tie tacks and plain
gold bars.
(11) Inspectors wore a variety of belt buckles, including Border
Patrol belt buckles.
(12) The contract provided that employees will wear uniforms
prescribed by the employer without altering it.
(13) Although I have rejected Respondent's Addendum to its brief, I
conclude that Goldman v. Weingerger, 54 LW 4298 (1986) is inapposite to
the subject case.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT forbid uniformed inspectors from wearing an American
Federation of Government Employees pocket penholders or other insignia
on behalf of the American Federation of Government Employees, or any
other labor organization, that do not detract from the uniform.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL permit Richard Walker, or any other employee, while in
uniform, to wear an American Federation of Government Employees pocket
penholder or any other insignia on behaof of the American Federation of
Government Employees, or any other labor organization, that do not
detract from the uniform.
(Agency or Activity)
Dated: . . . By: . . .
(Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority,Region VIII,
whose address is: 350 S. Figueroa Street, 10th Floor, Los Angeles, CA
90071 and whose telephone number is: (213) 688-3805.