Application for Enforcement of Final Decision of the Federal Labor Relations Authority. Petition for Review and Cross-. FLRA No. 8-CA-90083.
Before: Procter Hug, Jr., and Edward Leavy, Circuit Judges and Manuel L. Real,*fn* Chief District Judge. Opinion by Judge Real.
REAL, Chief District Judge:
The UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES BORDER PATROL (INS) appeals the ruling of the FEDERAL LABOR RELATIONS AUTHORITY (FLRA) that the proposal of the NATIONAL BORDER PATROL COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1613, AFL-CIO (UNION), which would allow Border Patrol agents to wear bullet proof vests over their uniform shirts, was subject to negotiation under 5 U.S.C. § 7106(b)(3).
We have jurisdiction to review the ruling of the FLRA pursuant to 5 U.S.C. § 7123. We review on the record to determine if the action of the FLRA was arbitrary, capricious or an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. §§ 7123(c) and 706(2)(A). Bureau of Land Management v. FLRA, 864 F.2d 89 (9th Cir. 1988).
The United States Border Patrol is a uniformed, mobile, paramilitary force. The uniform reflects the identity of the wearer as a Border Patrol Officer and the rank of the officer. INS considers it an enhancement to the morale, discipline, esprit de corps, uniformity, recognition, identification and professional appearance of the officers.
The INS has a policy that gives the individual officer the freedom to decide whether or not to wear body armor*fn1, i.e., it is not required as part of the designated uniform. In 1988 the INS advised its employees that it was changing the policy that allowed the agents to wear body armor over or under their uniforms. The new policy was that those agents electing to wear body armor were required to wear body armor under the uniform shirt.
In response to the announcement of a new policy the UNION proposed to the INS that agents be permitted to wear body armor over the uniform shirt so long as the body armor was covered by some uniform outerwear that would permit the display of the badge and nameplate. No agreement could be reached on the proposed change so the UNION requested formal negotiations, as provided in the collective bargaining agreement, be initiated to settle the controversy. INS considered the UNION'S proposals non-negotiable and advised Patrol Agents in Charge that all Border Patrol Officers wearing body armor would wear it concealed under a uniform shirt. The UNION filed an unfair labor practice and initiated proceedings with the FLRA.
The FLRA by final order agreed with the UNION'S position and found that the INS committed an unfair labor practice by unilaterally instituting a change in the body armor policy without bargaining with the UNION. The rationale of the FLRA was that the proposal was subject to negotiation as an "appropriate arrangement for employees adversely affected by the exercise" of the INS' right to determine internal security practices pursuant to 5 U.S.C. § 7106(b)(3).
The Federal Service Labor-Management Relations Statute rights (FSLMRS), 5 U.S.C. § 7106 et seq. provides that certain management rights are exclusive and not subject to collective bargaining where internal security practices and methods and means of performing work are concerned. 5 U.S.C. §§ 7106(a)(1), (b)(1). These provisions, although appearing to be full authority for the INS to impose upon its Border Patrol agents an absolute requirement under the theory of providing for internal security practices (bullet proof vests) and methods and means of performing work (how to wear the vest), are not absolute.
5 U.S.C. § 7106(b)(3) provides to the employee the right to bargain over adverse effects agency policy may have on the employees' working conditions. Refusal to negotiate in good faith appropriate arrangements in connection with agency management subjects the agency ...