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, 464 U.S. 89, 97 , 104 S.Ct. 439, 444 , 78 L.Ed.2d 195 (1983). In recognition of the Authority’s congressional mandate and its acknowledged expertise in the field of federal labor relations, the judiciary affords “considerable deference” to the Authority’s interpretations of the Federal Service Labor-Management Relations Act (FSLRA), 5 U.S.C. §§ 7101-7135 . Id. Although we should not rubber-stamp interpretations that are inconsistent with the governing statute or that frustrate the will of Congress, “courts should uphold reasonable and defensible constructions of an agency’s enabling Act.” Id.

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 *1468 in the Act.” Bureau of Alcohol, Tobacco and Firearms, 464 U.S. at 97 , 104 S.Ct. at 444 .

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, 337 F.2d 177 (9th Cir.1964). As the Second Circuit recently cautioned, however, “[wjhile private sector analogies are useful, it is obvious that public sector labor relations may vary depending upon the statutory provisions and legal concepts involved.” AFGE v. FLRA, 811 F.2d 769, 773 (2d Cir.1987); see also Library of Congress v. FLRA, 699 F.2d 1280, 1287 (D.C.Cir.1983). In this case, the legal concepts underlying the right of private sector employees to wear union insignia differ significantly from the legal concepts underlying that right in the public sector. In defining the insignia-wearing rights of federal employees under the FSLRA, Congress necessarily has to accommodate the First Amendment interests of public employees. The First Amendment is a floor below which Congress cannot go. No such accommodation is necessary when Congress grants statutory protection to private employees. 1 Accordingly, it is unremarkable that the Authority interpreted the FSLRA as granting public employees a more expansive right to wear union insignia than exists for private employees under the NLRA. Far from contravening congressional intent, the Authority’s decision is a reasoned effort to interpret the Act in a manner that respects Congress’ effort to accommodate the free speech interests of public employees, and perhaps avoid costly litigation over their First Amendment rights.

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, 727 F.2d 481 , 488 (5th Cir.1984). The majority’s reliance on Department of Justice is misplaced because the Fifth Circuit was not required in that case to weigh the competing interests protected by sections 7102 and 7106. The court simply held that after the expiration of a collective bargaining agreement that imposed some restrictions on the freedom of the INS to decide when and where employees worked, section 7106 protected INS’s management right to decide unilaterally whether to require employees to work at nighttime check-points established by the INS. Section 7102 was never mentioned in the Fifth Circuit opinion for the obvious reason: section 7102 does not give public employees any right to choose when and where they work. Thus, Department of Justice did not implicate the free speech interests of public employees. 2 Here, in contrast, the federal agency’s rights under *1469 section 7106 must be weighed against employee rights protected by section 7102.

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, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), and Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968). These cases, as the majority concedes, require us to strike “a balance between the interests of the [public 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, 461 U.S. at 142 , 103 S.Ct. at 1687 , quoting Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734-35 . The majority performs this balance in a mechanical fashion to conclude that the INS’ interests in making inspectors more readily recognizable to the public, encouraging esprit de corps, and subordinating personal preferences in favor of the overall group mission outweigh the employees’ interests in engaging in what is undoubtedly core First Amendment expression. What the majority completely fails to do, however, is articulate how or why the wearing of the union insignia interferes with any of the INS’ objectives. The majority seems to be untroubled by the fact that the INS has not even begun to make the constitutionally required demonstration that its interests are in fact being frustrated by the wearing of the insignia. Indeed, to the extent that any factual determinations on this issue have been made, they have been made by the Authority, which concluded as a factual matter that there “has been no showing that the wearing of the [insignia] interfered in any way with the purpose for which the Agency requires the uniform to be worn.” ER at 5. This factual determination by the' Authority is conclusive if supported by “substantial evidence on the record considered as a whole.” 5 U.S.C. § 7123 (c). The majority makes no attempt to explain why the Authority’s factual determination in this regard is not supported by the record. As I read the record, this would be a difficult, if not impossible, task.

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 *1470 buckles or tie tacks, which are items the INS has not seen fit to standardize as part of the uniform. Indeed, the fact that the INS has not prescribed every detail of its uniform undermines its claim that absolute uniformity is essential to the INS’ mission. 3

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, 297 U.S. 288, 348 , 56 S.Ct. 466, 483 , 80 L.Ed. 688 (1936). If, as the majority insists, Congress truly intended section 7106 to be construed as authorizing the INS to prohibit the insignia without making a showing that such expressive activity would in fact interfere with INS officials’ job performance, section 7106 would raise serious First Amendment questions. The Authority was well within the scope of its authority in balancing the statutory interests in such a way as to avoid this result. The problem with the majority is that it accepts uncritically the word of one federal agency, the INS, while failing to afford the proper deference to the agency whose “special function” is to give meaning to the general provisions of the FSLRA.

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, 457 U.S. 102, 111 , 102 S.Ct. 2339, 2345 , 72 L.Ed.2d 707 (1982). In the public sector context, Congress has no choice but to respect the First Amendment rights of federal employees.

. 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. 727 F.2d at 488. Here, the Authority found that the INS had failed to make a showing that the wearing of union insignia frustrated the INS's goals in any way. See infra, 1469-70.

. 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, 475 U.S. 503, 508 , 106 S.Ct. 1310, 1313 , 89 L.Ed.2d 478 (1986).