National Treasury Employees Union v. Federal Labor Relations Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2008 Decided December 19, 2008
No. 08-1015
NATIONAL T REASURY E MPLOYEES U NION ,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order
of the Federal Labor Relations Authority
Timothy B. Hannapel argued the cause for petitioner.
With him on the briefs were Gregory O'Duden and Larry J.
Adkins.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were Rosa M. Koppel, Solicitor, and William R. Tobey,
Deputy Solicitor.
Before: GINSBURG, TATEL , and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL .

-- 1 of 12 --

2
TATEL , Circuit Judge: This case presents the question
whether the Federal Labor Relations Authority reasonably
concluded that customs officers endanger themselves by
growing certain styles of hair, beards, and mustaches.
Petitioner National Treasury Employees Union argues that the
U.S. Bureau of Customs and Border Protection (CBP) must
negotiate over three union proposals to modify CBP’s
grooming standards policy. CBP claims that because these
proposals would affect its right to determine its internal
security practices, they are nonnegotiable. The union
disagrees and argues in the alternative that its proposals were
appropriate arrangements that did not excessively interfere
with CBP’s management rights. While we agree that CBP
has no obligation to negotiate over two of the union’s
proposals, we remand the third proposal to the Authority to
determine whether it represents an appropriate arrangement.
I.
The Federal Service Labor-Management Relations Act, 5
U.S.C. §§ 7101–7135, requires federal agencies to bargain
with public employee unions over employment conditions,
but renders certain management rights nonnegotiable,
including an agency’s right to determine its “internal security
practices,” 5 U.S.C. § 7106(a)(1). When a union submits a
proposal that would affect an agency’s internal security
practices, the agency can invoke this provision to relieve it of
the obligation to negotiate over the proposal. To find that a
proposal would affect the agency’s right to determine its
internal security practices, the Federal Labor Relations
Authority must determine that the agency’s policy is
reasonably linked to the security of its operations, and that the
union’s proposal deviates from or modifies the policy. See
Nat’l Treasury Employees Union v. FLRA (“NTEU I”), 404
F.3d 454, 456–57 (D.C. Cir. 2005). An agency may
nevertheless be required to negotiate over a proposal which

-- 2 of 12 --

3
would affect its right to determine its internal security
practices if the union can establish that the proposal
represents an “appropriate arrangement[] for employees
adversely affected” by the agency’s exercise of that right.
§ 7106(b)(3).
In assessing whether a proposal that would affect an
agency’s right to determine its internal security practices is
nonetheless negotiable as an appropriate arrangement, the
Authority applies the “KANG test.” See Nat’l Treasury
Employees Union v. FLRA (“NTEU II”), 437 F.3d 1248,
1252–53 (D.C. Cir. 2006) (citing Nat’l Ass’n of Gov’t
Employees, Local R14-87 (“Kansas Army National Guard” or
“KANG”), 21 F.L.R.A. 24 (1986)). Under this test, the
Authority requires the union to establish that the proposal is in
fact intended as an arrangement to benefit employees. If the
union does so, then the Authority balances the “‘practical
needs of employees and managers’” to see if the proposal
“‘excessively interferes’” with management rights. NTEU II,
437 F.3d at 1253 (quoting KANG, 21 F.L.R.A. at 31–32).
Therefore, in order to conclude that an agency has no
obligation to negotiate over a proposal, the Authority must
determine, first, that the proposal would affect the agency’s
right to determine its internal security practices and, second,
that the proposal does not qualify as an appropriate
arrangement. While the Authority may make the first
determination without requiring the agency to produce
evidence if the connection is obvious, see, e.g., U.S. Dep’t of
Def. Fort Bragg Dependents Sch., 49 F.L.R.A. 333, 343
(1994), its second determination must be supported by record
evidence, e.g., NTEU I, 404 F.3d at 458.
As part of the process of establishing the Department of
Homeland Security, Congress created the U.S. Bureau of

-- 3 of 12 --

4
Customs and Border Protection (CBP) from components of
the Department of Agriculture and the former Immigration
and Naturalization Service and U.S. Customs Service.
Although CBP employees perform various customs-related
functions, this case concerns only those uniformed officers
stationed at ports of entry to the United States and charged
with preventing illegal entry of individuals and contraband.
In late 2003, several months after CBP’s formation, the
agency replaced the various predecessor agency uniforms
with a single uniform worn throughout the agency. The next
year, CBP unilaterally implemented a grooming standards
policy that superseded those of the predecessor agencies. In
addition to requiring officers to style their hair in accordance
with several specifications, the policy prohibited all facial hair
other than beards maintained for medical reasons and
“conservative” mustaches kept within “the corners of the
mouth” and above “the upper vermillion of the lip.”
CUSTOMS & BORDER P ROTECTION , DEP ’ T OF H OMELAND S EC.,
CBP NATIONAL UNIFORM PROGRAM ch. 3, at 6 (2004) (“CBP
POLICY”).
Petitioner National Treasury Employees Union filed a
grievance over CBP’s unilateral implementation of these
policies. Agreeing with the union on this point, the Authority
affirmed an arbitrator’s award prohibiting the agency from
implementing the policy until the completion of bargaining.
Nat’l Treasury Employees Union, 62 F.L.R.A. 263 (2007).
As part of the bargaining process, the union submitted
several proposals to modify the grooming standards policy, of
which only Proposals 2, 4, and 6 are at issue here. Proposal 2
sought to secure CBP’s agreement that “the official uniform,
when worn in its entirety, affords sufficient identification of
the officer as a representative of CBP.” Nat’l Treasury

-- 4 of 12 --

5
Employees Union (“Negotiability Order”), 62 F.L.R.A. 267,
269 (2007) (internal quotation marks omitted). Under
Proposal 4, uniformed officers could exhibit “contemporary
grooming styles, subject to the terms of [the agreement
between the union and CBP], provided that the styles do not
create a health or safety hazard, or interfere with or tend to
interfere with the accomplishment of the mission of CBP in a
particular situation by reducing the ability to deal effectively
with either the public, fellow employees, other government
agencies or other organization entities.” Id. (internal
quotation marks omitted). The relevant portion of Proposal 6
would permit neatly-trimmed beards and facial hair of no
more than one inch in length “except where there is a
reasonable likelihood that an officer will need to use a
respirator or other device in the performance of his job duties
and the device requires a cleanly shaven face.” Id. at 274.
The Authority concluded that all three proposals were
nonnegotiable. Proposals 2 and 4, it found, would affect
CBP’s right to determine its internal security practices by
interfering with CBP’s linked goals of identifying officers as
such and presenting a professional image to the public. Id. at
270–72. The Authority then concluded that because each
proposal would excessively interfere with management
rights—Proposal 4 by injecting an “undefined and
ambiguous” element into CBP’s policy, id. at 273, and
Proposal 2 by preventing CBP from requiring any grooming
standards policy on the basis of officer identification, id. at
272—neither qualified as an appropriate arrangement. As to
Proposal 6, the Authority found that the relevant language
would affect CBP’s right to determine its internal security
practices because the proposal failed to account for
emergency situations where officers might have to use
respirators to save their own or others’ lives and there was no
time to shave. Id. at 278. It also found that Proposal 6 did not

-- 5 of 12 --

6
qualify as an appropriate arrangement because the risk of such
emergency situations outweighed the benefit the proposal
would confer on officers. Id. at 278–79.
Petitioning for review, the union argues that the
Authority failed to base its findings on record evidence and
reached an unreasonable conclusion. As to Proposals 2 and 4,
the union points out that the only evidence CBP submitted
was the grooming standards policy itself and similar policies
of other law enforcement agencies and military units, and
argues that the Authority did not rely on the evidence in any
event. Regarding Proposal 6, the union counters the
Authority’s concerns about respirators by pointing to
uncontroverted record evidence that the officers were neither
subject to any respirator policy nor even issued respirators.
Reviewing under the arbitrary and capricious standard, e.g.,
Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S.
89, 97 n.7 (1983), we consider Proposals 2 and 4 in Section II
and Proposal 6 in Section III.
II.
The union argues that the Authority erred in finding that
Proposals 2 and 4 would affect CBP’s right to determine its
internal security practices and that they did not qualify as
appropriate arrangements. We reject both contentions.
The Authority accepted CBP’s explanation that its
grooming standards policy was intended to “safeguard its
uniformed officers by ensuring that they are readily
identifiable to the public and by increasing the officers’
ability to effectively employ law enforcement techniques.”
Negotiability Order, 62 F.L.R.A. at 271. Accordingly, it
found CBP to have established a reasonable link between its
grooming standards policy and its internal security goals. Id.
It then found that Proposal 2, by entirely negating the link

-- 6 of 12 --

7
between officer grooming and officer identification, and
Proposal 4, by “effectively requir[ing] the Agency to grant
exceptions,” would each modify the grooming standards
policy. Id. at 272. As a result, the Authority concluded that
both proposals would affect CBP’s right to determine its
internal security practices.
The union first argues that the Authority should have
based its conclusion on record evidence and didn’t. But it
did. CBP submitted as evidence its judgment that “[a] good
personal appearance adds to [CBP officers’] prestige, and is
an essential part of ‘officer presence’, i.e. officer safety.”
CBP POLICY, ch. 3, at 3; see also id. (“It is . . . imperative to
the CBP mission that officers project a neutral image that
minimizes public antagonism and ensures approachability by
the broadest possible spectrum of the domestic and
international public. Extremes and fads in personal
appearance and attire are, therefore, prohibited
. . . .”). Though this assessment appears in the document
setting forth the grooming standards policy’s requirements, it
clearly represents an independent statement of CBP’s
judgment regarding the connection between the policy and its
security, and the union has provided no reason for treating
this evidence as outside the record.
Although the Authority included no citation to this
evidence, referring only to CBP’s statements of its litigation
position, those litigation statements articulated the same
reasoning as the record evidence. Compare Negotiability
Order, 62 F.L.R.A. at 271–72, with CBP P OLICY , supra, ch. 3,
at 2–3. To be sure, the Authority would have aided our
review by actually citing the record evidence, but we have no
doubt that the evidence formed the basis of its decision. See,
e.g., Am. Fed’n of Gov’t Employees, Nat’l Border Patrol
Council, Local 2366, AFL-CIO v. FLRA, 114 F.3d 1214, 1218

-- 7 of 12 --

8
(D.C. Cir. 1997) (“‘[W]e will . . . uphold a decision of less
than ideal clarity if the agency’s path may reasonably be
discerned’ . . . .” (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).
We also reject the union’s claim that even if the
Authority relied on record evidence, its finding of a
reasonable link between the agency’s policy and its internal
security was nonetheless substantively arbitrary and
capricious. According to the union, the Authority should
have followed its reasoning in National Treasury Employees
Union, 61 F.L.R.A. 48 (2005), where it found aspects of
CBP’s uniform policy not reasonably linked to its internal
security practices. But that case considered a uniform policy
not applied consistently to all officers. See id. at 51 (“[T]he
Agency fails to explain why uniformed personnel at the
locations excepted from the policy [requiring trousers] are
sufficiently identifiable for security purposes while wearing
shorts, but such personnel in every other Class 3 work
environment would not be.”). As CBP applies the grooming
standards policy at issue here consistently, the Authority’s
earlier decision is of little relevance. That some of CBP’s
predecessor agencies had different grooming standards
policies alters this conclusion not at all: CBP need show only
that its policy is reasonably linked to its internal security, not
that the policy is the only possible way to preserve internal
security. We therefore have no basis for second-guessing the
Authority’s reasonable conclusion that officer grooming
provides incremental benefits to officer identification and
self-presentation beyond the mere wearing of a uniform, and
thus that CBP’s grooming standards policy is reasonably
linked to its internal security practices. As the Authority
reasonably concluded based on record evidence contained in
CBP’s policy that Proposals 2 and 4 would affect CBP’s right
to determine its internal security practices, we need not decide

-- 8 of 12 --

9
whether it relied on the evidence of practices of other law
enforcement agencies, or whether it could properly have
reached this conclusion without relying on any evidence
whatsoever.
For similar reasons, the Authority reasonably concluded
that Proposals 2 and 4 are not appropriate arrangements under
the KANG test. Given the Authority’s acknowledgment that
the proposals were intended as arrangements, the only
remaining issue is whether the Authority reasonably found
that they would “excessively interfere[]” with management
rights, KANG, 21 F.L.R.A. at 31. The Authority reasoned that
Proposal 2, by deeming grooming standards irrelevant for the
identification of uniformed officers, would completely
“prevent the Agency from requiring officers to adhere to any
grooming standards designed to ensure that the officers are
readily identifiable to the public.” Negotiability Order, 62
F.L.R.A. at 272. Similarly, the Authority found that Proposal
4’s license to display “undefined and ambiguous
‘contemporary grooming styles,’” id. at 273, would prevent
CBP from enforcing a clearly-defined grooming standards
policy. For these reasons, the Authority concluded that
Proposals 2 and 4 would excessively interfere with CBP’s
right to determine its internal security practices.
Relying on the record evidence discussed above, the
Authority identified and considered the interests at stake, and
we have no cause to overturn its reasonable weighing of those
interests. Contrary to the union’s argument, this case is unlike
two recent decisions where we concluded that the Authority
failed to address record evidence that suggested internal
inconsistencies in the agency’s policy. See NTEU I, 404 F.3d
at 458; NTEU II, 437 F.3d at 1254–55. Here, relying on
evidence demonstrating the connection between CBP’s
grooming standards policy and its internal security, the

-- 9 of 12 --

10
Authority reasonably found that the union’s proposals would
excessively interfere with agency security by effectively
nullifying CBP’s decision to adopt a clear and standardized
policy.
The union leans heavily on American Federation of
Government Employees, AFL-CIO, National INS Council, 8
F.L.R.A. 347 (1982), rev’d on other grounds sub nom. U.S.
Dep’t of Justice, INS v. FLRA, 709 F.2d 724 (D.C. Cir. 1983),
in which the Authority found a proposal similar to Proposal 4
negotiable as an appropriate arrangement. Nat’l INS Council,
8 F.L.R.A. at 353. But the Authority decided that case under
its pre-KANG standard. See id. at 353. And although in one
post-KANG case the Authority applied National INS
Council’s mode of analysis in order to answer a different legal
question than the one at issue in KANG, see Am. Fed’n of
Gov’t Employees, Nat’l Border Patrol Council, 31 F.L.R.A.
1123, 1136 (1988), numerous cases have since made clear
that KANG sets forth the standard for appropriate arrangement
determinations, see, e.g., Ass’n of Civilian Technicians, P.R.
Army v. FLRA, 534 F.3d 772, 777 (D.C. Cir. 2008). Neither
of these cases, therefore, provides a reason to upset the
Authority’s balancing of interests under the KANG test.
Finally, the union’s contrary argument notwithstanding, the
Authority’s decision in the related grievance proceeding,
supra at 4, has no bearing upon the present controversy, as it
involved a different legal question and was not part of the
record before the Authority here.
We thus conclude that the Authority acted neither
arbitrarily nor capriciously in determining that Proposals 2
and 4 are nonnegotiable.

-- 10 of 12 --

11
III.
The union argues that the Authority erred in concluding
both that a portion of Proposal 6—which would allow officers
to maintain neatly-trimmed beards of up to one inch unless
there was a reasonable likelihood they would be required to
use respirators—would affect CBP’s right to determine its
internal security practices and that the proposal did not
qualify as an appropriate arrangement. For the reasons given
above, however, we see no abuse of discretion in the
Authority’s finding of a reasonable link between CBP’s
grooming standards policy and its internal security. And
because Proposal 6 was plainly intended to modify the policy,
Negotiability Order, 62 F.L.R.A. at 278, the Authority acted
neither arbitrarily nor capriciously in finding that it would
affect CBP’s right to determine its internal security practices.
That said, we agree with the union that the Authority’s
appropriate arrangement analysis was faulty. The Authority
found that the relevant portion of Proposal 6 would
excessively interfere with CBP’s management rights by
preventing the agency from “requiring officers who have
facial hair to use respirators in an emergency situation.” Id. at
278. Yet the Authority pointed to no evidence that CBP had
any respirator policy whatsoever. Indeed, while CBP claims
that it had a goal of adopting policies that would require
respirators and of training officers in their use, Agency Reply
to Union Resp. 10; Oral Arg. at 22:20–22:48, the record
contains evidence, albeit fragmentary, that CBP’s current
policies did not require officers to use respirators, Union
Resp. to Agency Stmt. of Position Ex. 13; that many CBP
officers were never even issued respirators, e.g., id. Exs. 6, 9–
10; and that CBP relied not on its own officers but on other
agencies to respond to emergency situations requiring
respirators, see id. Ex. 8 (indicating that the Port Huron office
calls the local fire department to respond to situations

-- 11 of 12 --

12
requiring respirators). One email stated that CBP officers in
at least one location are currently “not allowed to enter any
environment where the use of a respirator is required,” and
that the hazardous environment policy “is to identify when a
hazardous condition exists, restrict access by establishing a
quarantine zone, and notify[] appropriate port authorities or
other haz[ardous] mat[erials] units to respond to the
situation.” Id. Ex. 12. Though if credited, this evidence
would significantly diminish CBP’s interest in facilitating its
officers’ use of respirators, the Authority considered none of
it.
Thus, contrary to the KANG standard, the Authority
failed to base its appropriate arrangement analysis on record
evidence. See NTEU I, 404 F.3d at 458 (“[T]he Authority
must consider the evidence in the record before it, conduct the
balanced inquiry required by the KANG line of precedent, and
then reach its conclusion as to whether the proposal
‘excessively interferes’ with the agency’s internal security
practices.”). Accordingly, we shall remand Proposal 6 to the
Authority so that it may determine, based on record evidence,
whether the portion governing facial hair constitutes an
appropriate arrangement.
IV.
For the foregoing reasons, the petition for review is
granted in part and denied in part, and the case is remanded to
the Authority for further proceedings consistent with this
opinion.
So ordered.

-- 12 of 12 --