United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2008 Decided December 19, 2008 

No. 08-1015 

NATIONAL TREASURY EMPLOYEES UNION, 

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. 
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 
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 
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 PROTECTION, DEP’T OF HOMELAND SEC.,

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 
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 
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 
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 POLICY, 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 
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 
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 
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. 
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 
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.