Lead Opinion
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. §§ 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. § 7105(a)(2)(G). We have jurisdiction pursuant to 5 U.S.C. § 7123(a). We deny enforcement of both orders.
I
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 xk 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 21/* 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 supervi
Between mid-1983 and May 1985, Walker worked part-time as an inspector. When doing so, he wore an off-white plastic pen-holder and pocket protector on his right uniform shirt pocket. This penholder fit inside his uniform shirt pocket, but had a 2V2 inch by 3V2 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 pen-holder 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. § 7116(a)(1) and (5)
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 AU 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 AU recommended that the Authority enter an order permitting Stark to wear the pin.
The Authority adopted the AU’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 “[interfering with, restraining, or coercing” Stark or any other inspector from wearing a Union lapel pin or similar insignia on their uniforms while on duty.
II
Section 7123(c) provides that judicial review of Authority orders shall be on the
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,
Ill
The Authority argues that the plain language of section 7102
The Authority contends that we should recognize and defer to the Authority’s interpretation of section 7102 found in Spokane Tower and Fort Shafter. Under Spokane Tower and Fort Shafter, an employee may assist a labor organization by wearing a union emblem on his official uniform unless the employer can demonstrate special circumstances justifying a restriction on the employee’s section 7102 rights.
We recognize that we should uphold the Authority’s interpretation of the Act if it is reasoned and supportable. American Federation, 775 F.2d at 1025. Nonetheless, our primary concern is to effectuate congressional intent. See Bureau of Alcohol,
The INS makes three arguments. First, the INS argues that under section 7102, federal employees who work in public contact positions have no statutory right to
A.
The starting point for any issue concerning statutory interpretation must be the statute itself. E.g., Lewis v. United States,
In NLRB v. Harrah’s Club,
We rejected the Board’s interpretation of section 7 and concluded that section 7 does not necessarily guarantee employees a statutory right to wear union buttons. Id. at 179. In reaching this conclusion we quoted the following part of section 7:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
(Emphasis added.) We pointed out that “[t]he Supreme Court has held that the wearing of union buttons comes under the heading of ‘other concerted activities.’ ” Id., citing Republic Aviation Corp. v. NLRB,
The INS places great reliance on the fact that in Harrah’s Club, we held that the source of any right to wear union buttons is the “concerted activities” language of section 7. By rejecting the employees’ section 7 claim, we implicitly held that section 7’s “to assist” language does not create a right to wear a union button. The INS contends that to interpret the “right to assist labor organizations” in section 7102 as granting employees a statutory right to wear union buttons would contradict our interpretation of identical language in the NLRA. Under such an interpretation, a uniformed, public contact federal union em
We find these arguments persuasive. We doubt that Congress intended the phrase “to assist labor organizations” to grant uniformed federal immigration inspectors a statutory right when that identical language does not provide such a right to uniformed casino employees. However, given the potentially contradictory interpretation of identical language found in the NLRA and the Act, we believe that we must examine the legislative history of section 7102 to determine whether Congress intended this result.
There is relatively little discussion of section 7102 in the Act’s legislative history. Both the Senate and House Reports indicate that the employee rights section ultimately adopted as section 7102 was intended to incorporate the policy contained in section 1(a) of Executive Order 11491. See S.Rep. No. 969, 95th Cong., 1st Sess. 102 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Reforms Act of 1978, at 762 (1979) (hereinafter Legislative History); H.R.Rep. No. 1403, 95th Cong., 1st Sess. 38-39 (1978), reprinted in Legislative History at 684-85. Section 1(a) of Executive Order 11491 stated that:
Each employee of the executive branch of the Federal Government has the right, freely and without fear of penalty or reprisal, to form, join, and assist a labor organization or to refrain from any such activity, and each employee shall be protected in the exercise of this right. Except as otherwise expressly provided in this Order, the right to assist a labor organization extends to participation in the management of the organization and acting for the organization in the capacity of an organization representative, including presentation of its views to officials of the executive branch, the Congress, or other appropriate authority. The head of each agency shall take the action required to assure that employees in the agency are apprised of their rights under this section and that no interference, restraint, coercion, or discrimination is practiced within his agency to encourage or discourage membership in a labor organization.
Exec. Order 11491, reprinted in 5 U.S.C.A. § 7101 at 5. The Supreme Court has stated that “one of the primary purposes of the Executive Order was to ‘substantially strengthen the Federal labor relations system by bringing it more into line with practices in the private sector of the economy.’ ” Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin,
Section 1 of the Executive Order does not grant federal employees the right, guaranteed by § 7 of the NLRA for employees in the private sector, “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The right to attempt to persuade others to join the union, however, is derived from the rights to form, join, and assist a union, as well as from the right to engage in concerted activities. The absence ofmention of a right to engage in concerted activities is obviously no more than a reflection of the fact that the Order does not permit federal employee unions to engage in strikes or picketing. The prohibition of picketing and the lack of protection for concerted activities might be thought to indicate an intention in the Executive Order to regulate the location or form of employee speech to a somewhat greater extent than under the NLRA....
Id.,
The Authority argues that even if the rights guaranteed public sector employees by the Executive Order are somewhat more limited than those guaranteed by section 7 of the NLRA, we should nonetheless defer to the Federal Labor Relations Council’s interpretation of the Executive Order. The Council, which administered federal labor relations under the Order, possessed the authority to interpret the Order. In Department of Transportation, FAA, Aeronautical Center and AFGE, AFL-CIO, Local Union 2282, 1 F.L.R.C. 246 (1973) (Aeronautical Center), the Council, in a one paragraph opinion, upheld a Federal Aviation Administration academy instructor’s “right” to wear a union insignia on his uniform. The Authority argues that we must defer to this decision when interpreting the scope of section 7102.
We are not persuaded that we must defer to the Council’s interpretation of the Order in Aeronautical Center when determining the scope of section 7102. Congress expressly intended to allow both the Authority and the courts to disregard the Council’s interpretation of the Executive Order. See 5 U.S.C. § 7135(b) (“[policies, regulations, and procedures established under and decisions issued under” the Executive Order remain in force “until revised or revoked by the President, or unless superseded by specific provisions of this [Act] or regulations or decisions issued pursuant to this [Act].”). In enacting section 7135, Congress did not intend for the Authority or the courts to pay any deference to the earlier Council interpretations of the Executive Order, but to “take a fresh and independent approach to federal labor relations.” American Federation,
We conclude that nothing in section 7102’s legislative history supports the Authority’s position that federal employees enjoy greater rights to assist their unions than private sector employees do under section 7 of the NLRA. We believe that to hold that section 7102’s “form and assist” language creates a statutory right to wear union buttons would be inconsistent with our holding in Harrah’s Club, where we concluded that a private sector employee’s qualified right to wear a union button derived from section 7’s right to engage in other concerted activity. Harrah’s Club,
Our interpretation is consistent with the Supreme Court’s conclusion that “the lack of protection for concerted activities ... indicate[s] an intention ... to regulate the location or form of [federal] employee speech to a somewhat greater extent than under the NLRA.” Letter Carriers,
B.
Even if section 7102 did grant public contact employees a statutory right to adorn their official uniforms with union insignia while on duty, we believe that section 7106(b)(1), which protects the government’s authority to determine the “methods and means of performing work,” 5 U.S.C. § 7106(b)(1), limits that right in these cases. Both parties admit, and we agree, that section 7106(b)(1) gives the INS the right to dictate that the inspectors wear uniforms. See American Federation,
Our examination of section 7106(b)(1) begins with the statute itself. Lewis,
President Carter signed the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, on October 13,1978. The Act is Title YII of this statute. 5 U.S.C. §§ 7101-7135. The Act thoroughly restructured federal labor relations. Bureau of Alcohol,
Section 7106’s legislative history indicates that Congress was dissatisfied with the discretion given federal managers under the Executive Order. Initially, the Senate and the President desired to preserve the status quo from section 12 of the Executive Order concerning management’s rights.
On the floor, Representative Udall successfully offered an amendment to H.R. 11280 which substantially enlarged the management rights clause. Congressman Udall stated that the revised committee bill
attempted to navigate a course which gives Federal employees greater rights in labor relations than they have heretofore enjoyed. At the same time we have preserved the rights of management to run the shop. I believe the time has simply come for Federal employees to enjoy some, if not all, of the same rights which employees in the private sector have had since 1935. We do not permit bargaining over pay and fringe benefits, but on other issues relating to an employee’s livelihood, we do permit collective bargaining between Federal employee unions and agency management.
124 Cong.Rec.H. 8462 (daily ed. Aug. 11, 1978), reprinted in Legislative History at 850.
Congress adopted Representative Udall’s proposal and codified it into section 7106.
The decision to require uniforms involves a management decision as to the means of performing work within section 7106(b)(1) and is therefore a subject for bargaining only at the employer’s election. See American Federation,
Section 7106’s management rights provision is noticeably absent from the NLRA. The provision recognizes the obvious difference between public sector employees and private sector employees. The federal government is not a private corporation responsible to a few stockholders, but a sovereign entity responsible to all taxpayers. See 124 Cong.Rec. H. 9647 (daily ed. Sept. 13, 1978), reprinted in Legislative History at 950 (statements of Congressman Lott discussing why picketing should be an unfair labor practice). The most obvious difference between the two labor statutes is the significant public interest that applies to federal managers attempting to effectuate congressional and executive policy. The INS’s decision to require enforce
In spite of the absence of an explicit management rights provision in the NLRA, the management interest in requiring unadorned uniforms has been recognized in private sector cases as well. The Sixth Circuit has recognized that concerns over discipline and presenting a clean professional image justified a private employer in prohibiting its restaurant employees from wearing unauthorized union buttons on their official uniforms. Burger King v. NLRB,
We conclude that the inclusion of the management rights section in the Act was intended to allow agencies such as the INS to govern the appearance of their public contact employees. This conclusion is bolstered by Congress’s direction to interpret the Act “in a manner consistent with the requirement of an effective and efficient Government.” 5 U.S.C. § 7101(b); Department of Justice,
The Authority ignored section 7106 when reaching its conclusion that the INS committed unfair labor practices in this case. Instead, the Authority analyzed whether special circumstances existed that justified the INS’s ban on the pin and the penholder. In applying the “special circumstances” balancing approach, the Authority adopted the analysis that the Board and courts engage in when analyzing limitations on an employee’s section 7 rights. See, e.g., Pay’N Save,
We reach this result while recognizing that, notwithstanding the INS’s longstanding policy against unofficial uniform adornments, a few individuals did wear unofficial uniform adornments such as an Olympic pin or a baseball pin on a few occasions and were not asked to remove them. The record does not show whether the supervisors even noticed these transgressions. In any event, however, we refuse to conclude that the INS waived the ability to require unadorned uniforms by failing to take action with respect to these minor transgressions. These rare and incidental departures from a consistently enforced rule do not prevent the INS from enforcing its rule. See Burger King,
In light of our conclusion concerning federal management’s rights under section 7106 in the facts of this case, we express no opinion as to the propriety of “special circumstances” balancing in other contexts.
IV
The Union, as intervenor, argues that the INS’s administrative regulation
Connick and Pickering recognize that the government may not condition public employment on a basis that violates the public employee’s first amendment rights. When adjudicating a public employee’s claim that a statute or regulation violates the first amendment, we must strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Connick,
Assuming that the immigration inspectors did not waive this first amendment argument in the collective bargaining agreement and assuming that the wearing of the button and the penholder constituted speech on a matter of public concern, we find no first amendment violation in this case. The INS is legitimately concerned with the efficiency of the public service its employees perform. See Rankin v. McPherson, — U.S. -,
Balancing the immigration inspectors’ interest in wearing the union adornments, Rankin,
We conclude that the regulation is more akin to the grooming regulation sustained against constitutional attack in Kelley,
The Union, relying on Healy v. James,
We disagree. The tie tacks and belt buckles are irrelevant because the regulation does not prescribe a specific tie tack or belt buckle. Thus, unlike wearing an unauthorized button or penholder, belt buckles and tie tacks do not violate the regulation. The wearing of service pins and black armbands do not help the Union’s argument. The INS clearly authorized its inspectors to wear such material as part of the uniform; therefore, they can hardly be described as ornaments not part of the uniform. Finally, the argument based upon the baseball button and the Olympic pin is not persuasive. The record does not reflect that these transgressions were noticed by the inspectors’ superiors. Even if they were, however, rare transgressions from an otherwise consistently enforced rule does not establish that the INS’s enforcement in these cases constituted viewpoint discrimination.
Y
In summary, the INS did not commit an unfair labor practice in ordering Stark and Walker to remove their union insignias from their official uniforms. The right to assist a labor organization guaranteed by section 7102 does not create a statutory right for these federal employees to wear union insignia while on duty. In addition, even if section 7102 does create the right to wear a union button in these cases before us, the rights of management guaranteed by section 7106(b)(1) limit those rights and allow the INS to order removal of the pin and penholder. Finally, the INS anti-adornment regulation does not violate the first amendment.
ENFORCEMENT DENIED.
Notes
. Section 7116 provides:
(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—
(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
(5) to refuse to consult or negotiate in good faith with a labor organization or required by this chapter; ...
. Section 7102 provides that:
Each employee shall have the right to form, join, or assist any labor organization, or to refrain from such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right— (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and
(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.
5 U.S.C. § 7102.
. Section 12 of the Executive Order provided that:
Sec. 12. Basic provisions of agreements. Each agreement between an agency and a labor organization is subject to the following requirements—
(b) management officials of the agency retain the right, in accordance with applicable laws and regulations—
(1) to direct employees of the agency;
(2) to hire, promote, transfer, assign, and retain employees in positions within the agency, and to suspend, demote, discharge, or take other disciplinary action against employees;
(3) to relieve employees from duties because of lack of work or for other legitimate reasons;
(4) to maintain the efficiency of the Government operations entrusted to them;
(5) to determine the methods, means, and personnel by which such operations are to be conducted; and
(6) to take whatever actions may be necessary to carry out the mission of the agency in situations of emergency; and
Exec. Order No. 11491, reprinted in 5 U.S.C.A. § 7101 at 10.
. H.R. 11280 provided:
§ 7106. Management rights
(a) Nothing in this chapter shall affect the authority of any management official of any agency—
(1) subject to subsection (b), to determine the mission, budget, organization, and internal security practices of such agency; and
(2) in accordance with applicable laws, to take whatever actions as may be necessary to carry out the mission of such agency during national emergencies.
(b) Nothing in this section shall preclude any agency and labor organization from negotiating—
(1) procedures which management officials of such agency will observe in exercising their authority to determine the mission, budget, organization, and internal security of such agency, or
(2) appropriate arrangements for employees adversely affected by the exercise of such authority by such management officials.
Staff of House Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 1st Sess., Title VII — Federal Service Labor Management Relations at 15-16 (Comm. Print 1978), reprinted in Legislative History at 325-26.
.Section 7106 provides:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—
(1) to determine the mission, budget, organization, number of employees, and internal security practices of such agency; and
(2) in accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from—
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency mission during national emergencies.
(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 of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affecting by the exercise of any authority under this section by such management officials.
Dissenting Opinion
dissenting:
The “special function” of the Federal Labor Relations Authority is to give meaning to the general provisions of the act it administers. Bureau of Alcohol, Tobacco and Firearms v. FLRA,
The majority pays lip service to this rule of deferential review of decisions of the Authority. In the case at hand, the Authority construed section 7102 of the FSLRA (“[ejach employee shall have the right to form, join, or assist any labor organization....”) to confer a protected right of federal employees to wear union insignia. Without citing a single line of legislative history advancing a contrary interpretation of this section of the Act, the majority overturns the Authority’s interpretation as inconsistent with congressional policy. The majority turns deference on its head. Rather than upholding the Authority’s interpretation in the absence of some congressional statement of contrary intent, the majority reverses the Authority because it finds nothing in an admittedly sparse legislative record to support the Authority’s interpretation. Opinion at 1461. In so doing, the majority simply makes its own findings of fact and substitutes its construction of the Act for the Authority’s, even though the Authority is the agency that Congress specially created “to give content to the principles and goals set forth
The majority makes essentially two arguments. The first rests entirely on an analogy from the private sector: Congress simply could not have intended to grant federal employees a “greater” right to wear union insignia under section 7102 of the FSLRA than it granted to private sector employees under section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). Maj. op. at 1461-62; see NLRB v. Harrah’s Club,
The majority’s second argument turns on an expansive interpretation of section 7106, the statutory provision which protects an agency’s management prerogative to determine the “methods and means” by which work is performed. The majority concludes that even if the Authority was reasonable in construing section 7102 as creating a right on the part of federal employees to wear union insignia, this right is limited by section 7106. It is undisputed that section 7106 authorizes the INS to require its employees to wear uniforms. The majority goes on to rule, however, that the right to require uniforms “necessarily encompasses” the right to require an unadorned uniform, citing United States Department of Justice v. FLRA,
Although the majority chides the Authority for ignoring section 7106 in this case (Maj. op. at 1465), the record shows that the Authority did weigh the interests of the agency in effective and efficient management that are protected by section 7106. After explicitly considering these interests, the Authority concluded that section 7106 was not a bar to the exercise of the employees’ rights under section 7102 because there was no reason to believe “that the wearing of the [union insignia] interfered in any way with the purpose for which the Agency [INS] requires the uniform to be worn.” Excerpt of Record (ER) at 5 (emphasis added). The Authority’s balancing approach, which is plainly the correct one, contrasts sharply with the “divide and conquer” approach to the statute embraced by the majority. The Authority is the proper body to strike such a fact-specific balance, and I would accord the Authority the deference Congress intended it to have.
The reasonableness of the Authority’s interpretation of the statutory scheme is reinforced by the fact that the activities engaged in by Stark and Walker are, I believe, protected by the First Amendment. To my mind, the INS has not satisfied the standards enunciated by the Supreme Court in Connick v. Myers,
There is no reason to believe, for example, that the wearing of the insignia makes the INS officials any less recognizable to the public. An INS uniform consisting of a standardized shirt, tie, trousers, shoes, badge, nameplate and perhaps a cap would make INS officials recognizable to the general public whether or not individual officials were also wearing small unobtrusive union insignia. This at least was the conclusion of the Authority, which found as a matter of fact that “[the union insignia] did not and could not reasonably be expected ... to interfere with the public’s ability to recognize [the INS official] as a representative of a Government authority.” ER at 5. Once again, the majority offers no explanation why this determination is not supported by substantial evidence.
Nor does the majority suggest how the wearing of the insignia interferes with esprit de corps or prevents the INS from subordinating personal preferences in favor of the overall group mission, any more so than the wearing of personalized belt
Viewed in light of the fact that the INS actions at least arguably violate the First Amendment, the Authority’s interpretation of the statutory scheme seems eminently reasonable. Federal statutes should be interpreted and applied so as to avoid constitutional problems, if fairly possible. See Ashwander v. TVA,
In my view, the Authority’s interpretation of the statute is plainly reasonable. I would grant the Authority the deference it is due and enforce the order.
. Indeed, the Supreme Court has recognized that the First Amendment is not necessarily relevant in the private sector labor context and has held that the “Free Speech and Assembly" provision of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(2), does not to grant rights coextensive with the First Amendment. United Steelworkers v. Sadlowski,
. Moreover, in Department of Justice, the court was convinced that preventing the INS from establishing night-time checkpoints would have frustrated the INS’s mission.
. The INS is thus different from the military in this regard. The military, because of its compelling need to subordinate personal interests to those of the group, has prescribed uniforms down to the last detail. See Goldman v. Weinberger,