# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2008 Decided December 19, 2008

No. 08-1015

N ATIONAL T REASURY E MPLOYEES U NION

, P ETITIONER

v.

F EDERAL L ABOR R ELATIONS A UTHORITY

, R ESPONDENT

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: G INSBURG , T ATEL , and B ROWN

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge T ATEL

.2

T ATEL

, Circuit Judge : This case presents the question

whether the Federal Labor Re lations Authority reasonably

concluded that customs offi cers endanger themselves by growing certain styles of ha ir, beards, and mustaches. Petitioner National Treasury Em ployees Union argues that the U.S. Bureau of Customs and Border Protection (CBP) must negotiate over three union pr oposals to modify CBP’s grooming standards policy. CBP claims that because these proposals would affect its righ t to determine its internal security practices, they are nonnegotiable. The union disagrees and argues in the alte rnative that it s 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 fede ral 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 agen cy’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 which3

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 propos al 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 es tablish 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 manage rs’” 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 concl ude 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 requiri ng 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 es tablishing the Department of Homeland Security, Congress created the U.S. Bureau of4

Customs and Border Protecti on (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 a nd contraband.

In late 2003, several months after CBP’s formation, the agency replaced the various predecessor agency uniforms with a single uniform worn thr oughout the agency. The next year, CBP unilaterally implem ented 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 pol icy prohibited all facial hair

other than beards maintain ed for medical reasons and “conservative” mustaches kept within “the corners of the mouth” and above “the upper vermillion of the lip.”

C USTOMS & B ORDER P ROTECTION

, D EP ’ T OF H OMELAND S EC

., CBP N ATIONAL U NIFORM P ROGRAM ch. 3, at 6 (2004) (“CBP

P OLICY ”).

Petitioner National Treasury Employees Union filed a grievance over CBP’s unilateral implementation of these policies. Agreeing with the un ion 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 agreemen t that “the official uniform, when worn in its entirety, affords sufficient identification of the officer as a representative of CBP.” Nat’l Treasury5

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], provi ded 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 th e ability to deal effectively with either the public, fellow employees, other government agencies or other organization entities.” Id. (internal quotation marks omitted). The re levant portion of Proposal 6 would permit neatly-t rimmed 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 go als 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 fr om requiring any grooming standards policy on the basi s of officer identification, id. at 272—neither qualified as an approp riate 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 o fficers 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 not6

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 polic y 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 th at 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 Prop osals 2 and 4 in Section II and Proposal 6 in Section III.

II.

The union argues that the Aut hority 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 it s internal security goals. Id. It then found that Proposal 2, by entirely negating the link7

between officer grooming and officer identification, and Proposal 4, by “effectively requi r[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 th e 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 ‘offi cer presence’, i.e. officer safety .”

CBP P OLICY , 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. Extrem es 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 connecti on between the policy and its security, and the union has pr ovided 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 statem ents 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, 12188

(D.C. Cir. 1997) (“‘[W]e will . . . uphold a decision of less than ideal clarity if the agen cy’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 th e 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 reasona bly 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 po licy [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 rele vance. That some of CBP’s predecessor agencies had di fferent grooming standards policies alters this conclusion notat all: CBP need show only that its policy is reas onably 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 conclu sion that officer grooming provides incremental benefits to officer identification and self-presentation beyond the me re wearing of a uniform, and thus that CBP’s grooming st andards policy is reasonably linked to its internal security practices. As the Authority reasonably concluded based on re cord evidence contained in CBP’s policy that Proposals 2 an d 4 would affect CBP’s right to determine its internal security practices, we need not decide9

whether it relied on the eviden ce 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 Author ity’s acknowledgment that the proposals were intended as arrangements, the only remaining issue is whether the Authority reasonably found that they would “excessively in terfere[]” 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 requi ring 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 clearl y-defined grooming standards policy. For thes e reasons, the Author ity concluded that Proposals 2 and 4 would excessi vely interfere with CBP’s right to determine its intern al security practices.

Relying on the record ev idence discussed above, the Authority identified and considered the interests at stake, and

we have no cause to overturn it s 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 evid ence 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, the10

Authority reasonably found that the union’s proposals would excessively interfere with ag ency 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-C IO, National INS Council , 8 F.L.R.A. 347 (1982), rev’d on other gr ounds 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 pr oposal 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 ques tion 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 Aut hority 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 a buse of discretion in the Authority’s finding of a r easonable 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 caprici ously 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 por tion 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 Ar g. at 22:20–22:48, the record contains evidence, albeit frag mentary, 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 departme nt to respond to situations12

requiring respirators). One ema il stated that CBP officers in

at least one location are curren tly “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[] appr opriate port au thorities or other haz[ardous] mat[erials ] units to re spond to the

situation.” Id. Ex. 12. Though if cred ited, this evidence would significantly diminish CBP’s interest in facilitating its officers’ use of respirators, th e 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 th e 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 th e 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, th e petition for review is granted in part and denied in part, and the case is remanded to the Authority for further proceed ings consistent with this opinion.

So ordered.