I.N.S. v. Federal Labor Relations Authority
| Decision Date | 01 September 1988 |
| Docket Number | 87-7146,87-7208 and 87-7209,R,Nos. 87-7138,AFL-CI,s. 87-7138 |
| Parties | 129 L.R.R.M. (BNA) 2256, 57 USLW 2196 IMMIGRATION & NATURALIZATION SERVICE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. IMMIGRATION & NATURALIZATION SERVICE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, and American Federation of Government Employees,espondent-Intervenor. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dwight A. Rabuse, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for petitioner-cross-respondent.
Arthur A. Horowitz, Associate Solicitor, Federal Labor Relations Authority, Washington, D.C., for respondent-cross-petitioner.
Judith D. Galat, American Federation of Government Employees, Washington, D.C., for respondent-intervenor.
On Petitions for Review and Cross-Applications for Enforcement of Orders of the Federal Labor Relations Authority.
Before WALLACE, NORRIS and THOMPSON, Circuit Judges.
The Immigration and Naturalization Service (INS) seeks review of two separate decisions of the Federal Labor Relations Authority (Authority) arising under the Federal Service Labor-Management Relations Act (Act), 5 U.S.C. Secs. 7101-7135. In each case the Authority concluded that the INS had committed an unfair labor practice by prohibiting uniformed INS inspectors from wearing union insignia on their uniforms while on duty at the San Ysidro Port of Entry. The INS filed timely petitions for review in both cases and the Authority timely moved for enforcement in both cases. We consolidated the cases on appeal.
The Authority had jurisdiction pursuant to 5 U.S.C. Sec. 7105(a)(2)(G). We have jurisdiction pursuant to 5 U.S.C. Sec. 7123(a). We deny enforcement of both orders.
The INS employs approximately fifty immigration inspectors at the San Ysidro Port of Entry. The immigration inspectors are law enforcement officers responsible for enforcing federal immigration and customs laws. They inspect both persons and vehicles entering the Port for contraband and ensure that foreign entrants possess proper passports, visas, or other entry documents. Obviously, their work requires frequent contact with the public.
Inspectors at the San Ysidro Port of Entry work under the management of a number of INS officials, including a Port Director, Assistant Port Director, three operations supervisors, and eight "first-line" supervisors. All of these supervisors are responsible for, among other things, ensuring that the inspectors wear proper uniforms while on duty.
The INS requires that the inspectors wear official INS uniforms. Section 2415.01 of the INS Administrative Manual and Officers' Handbook (manual) prescribes the official uniform: a light blue shirt, bearing the INS insignia on the sleeve, dark blue pants, black shoes, black socks, a belt, a tie, and a tie tack. In the summer, the uniform includes a short-sleeve light blue shirt and does not include a tie. Section 2415.01 does not prescribe the design of the tie tack or the belt buckle. The manual also requires that the inspectors wear an INS badge on the left shirt breast pocket and an official name plate on the right shirt breast pocket and that the uniform "be complete in all details and devoid of all ornaments which are not part of the uniform."
Despite this regulation, at various times some inspectors wore assorted adornments on their official uniforms. In 1984, just prior to the Olympics, the INS issued and authorized the inspectors to wear a button approximately two inches in diameter which stated "WE SERVE with Courtesy and Pride, I.N.S." Certain inspectors also wore small olympic torch pins on their uniforms without any objection. In 1984, the INS issued and authorized certain inspectors to wear a pin 1/2 inch in diameter stating the inspector's length of service. One inspector also testified that during the 1984 National League Championship Series and the World Series, he wore a button 2 1/4 inches in diameter depicting a cartoon character swinging a bat and advertising the San Diego Padres.
Between May and August of 1985, Inspector Stark wore on his right uniform breast pocket a shield-shaped red, white, and blue union pin which contained the initials "A.F.G.E., AFL-CIO," which identified the American Federation of Government Employees, AFL-CIO (Union). Although none of Stark's first-line supervisors challenged Stark for wearing the pin, in August 1985 the Port Director directed him to remove the pin, and he complied.
Between mid-1983 and May 1985, Walker worked part-time as an inspector. When doing so, he wore an off-white plastic penholder and pocket protector on his right uniform shirt pocket. This penholder fit inside his uniform shirt pocket, but had a 2 1/2 inch by 3 1/2 inch flap which folded over the outside of his shirt pocket. This flap contained a red and blue Union logo. Under the logo, the flap contained the inscription "TO DO FOR ALL THAT WHICH NONE CAN DO FOR HIMSELF."
In early 1985, Supervisor Rich asked Walker whether he would remove the penholder if asked to do so. Walker responded that he would not and that he would consider such a request to be an unfair labor practice. On May 22, 1985, Rich ordered Walker to remove the penholder on the grounds that it was not part of the official uniform. Walker complied.
At the times their supervisors ordered Stark and Walker to remove the Union insignia from their official uniforms, no organizing effort, collective bargaining, or other concerted union activity was taking place at the San Ysidro Port.
On May 31, 1985, Local 2805 of the Union filed unfair labor practice charges alleging that the INS violated 5 U.S.C. Sec. 7116(a)(1) and (5) 1 when it ordered Walker to remove the penholder. On August 28, 1985, the Authority General Counsel issued a complaint and notice of a hearing. Following briefing, the administrative law judge (ALJ) concluded that the INS had committed an unfair labor practice. The ALJ analyzed 5 U.S.C. Sec. 7102 and Sec. 7106, balanced Walker's rights against those of the INS, and concluded that Walker's interest in wearing the penholder outweighed the INS's interest in enforcing the uniform regulation. The ALJ's recommended order specified that the INS permit Walker to wear the penholder while on duty. The Authority adopted the ALJ's findings and conclusions with insignificant modifications.
On September 4, 1985, Local 2805 filed unfair labor practice charges against the INS alleging that the INS violated section 7116(a)(1) and (5) when it ordered Stark to remove his union pin. On November 29, 1985, the Authority Regional Director issued a complaint and notice against the INS. On May 20, 1986, the ALJ concluded that the INS committed an unfair labor practice when it ordered Stark to remove the pin. The ALJ reasoned that Stark had a right to wear the pin under section 7102 absent "special circumstances" because wearing the pin "assisted" the union in finding new members. The ALJ then concluded that special circumstances were not present due to the unobtrusive nature of the pin and due to the absence of a showing that the pin interfered with Stark's work. The ALJ recommended that the Authority enter an order permitting Stark to wear the pin.
The Authority adopted the ALJ's findings. The Authority recognized that the INS had the right under section 7106(b)(1) to require employees to wear uniforms; however, it also concluded that employees enjoy a general right under section 7102 to wear union insignia in the absence of "special circumstances." The Authority then concluded that because the union insignia was "small and unobtrusive," no such special circumstances existed. Thus, the Authority entered a cease and desist order that prohibited the INS from "[i]nterfering with, restraining, or coercing" Stark or any other inspector from wearing a Union lapel pin or similar insignia on their uniforms while on duty.
Section 7123(c) provides that judicial review of Authority orders shall be on the record and in accordance with 5 U.S.C. Sec. 706. 5 U.S.C. Sec. 7123(c). Section 706(2)(a) provides that we should only set aside agency action if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A); Navy Public Works Center v. FLRA, 678 F.2d 97, 99 (9th Cir.1982). The Authority's factual findings are conclusive if supported by substantial evidence on the record as a whole. 5 U.S.C. Sec. 7123(c); National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C.Cir.1983).
The Authority's legal construction of the Act is entitled to deference if it is reasoned and supportable. American Federation of Government Employees, Local 2986 v. FLRA, 775 F.2d 1022, 1025 (9th Cir.1985) (American Federation ); National Treasury Employees Union v. FLRA, 732 F.2d 703, 705 (9th Cir.1984). However, as the Supreme Court made clear in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (Bureau of Alcohol ), courts should not allow this deferential standard "to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress." Id., quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965). Thus, while we will uphold the Authority's reasonable and supportable construction of the Act, we will not rubber-stamp the Authority's decision if it is inconsistent with the statutory mandate or if it frustrates the congressional policy underlying the statute. Id.
The Authority argues that the...
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