[ v62 p267 ]

62 FLRA No. 51

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS AND
BORDER PROTECTION
WASHINGTON, D.C.
(Agency)

0-NG-2809

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

November 20, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of seven proposals. [n2]  The Agency filed a statement of position (SOP), following which the Union filed a response and the Agency filed a reply.

      For the following reasons, we find that: (1) Proposals 2, 4, and 7 are outside the duty to bargain; (2) Proposals 3, 9, and 11 are within the duty to bargain; and (3) apart from the portions of Proposal 6 concerning exceptions to the Agency's grooming standards policy for religious and cultural reasons and facial hair, Proposal 6 is within the duty to bargain.

II.     Preliminary Matter: Whether the petition should be dismissed because there is a pending grievance relating to the negotiability appeal

A.     Background

      On August 3, 2004, the Agency notified the Union of proposed changes to its grooming standards policy. The Union requested to bargain and submitted proposals. The parties bargained but were unable to reach agreement. The Agency implemented a revised grooming standards policy on October 19, 2004. On that same date, the Union filed a grievance, which alleged that the Agency violated the parties' agreement and 5 U.S.C. § 7116(a)(1) and (5) by implementing the grooming standards policy prior to completing bargaining.

      On December 15, 2004, the Union filed this negotiability appeal with the Authority. In addition to its substantive negotiability claims regarding the proposals, the Agency asserts that it properly implemented the revised grooming standards policy because the Union waived its right to bargain by failing to timely submit proposals in accordance with the parties' collective bargaining agreement and because implementation was consistent with the necessary functioning of the Agency.

      During the post-petition conference, held on January 11, 2005, the Authority representative raised the issue of whether the petition should be dismissed pursuant to § 2424.30 of the Authority's Regulations because the Union had filed a grievance alleging an unfair labor practice (ULP) concerning issues related to the petition. [n3]  The parties agreed that the Union had withdrawn the portion of the grievance alleging violations of the Statute and that only "the portion of the grievance alleging a violation of the agreement is continuing to be processed." Record of Post-Petition Conference at 2.

      [ v62 p268 ] The arbitration hearing regarding the grievance was held in July 2005, at which time the parties stipulated the issue to be: "Whether the Agency violated the National Agreement between [the Agency] and [the Union] when it implemented [the grooming standards policy] prior to the completion of bargaining and/or by refusing to engage in post-implementation bargaining? If so, what is the appropriate remedy?" Award at 2. In the award, issued on October 14, 2005, the Arbitrator rejected the Agency's claims that the Union waived its right to bargain and that implementation was consistent with the necessary functioning of the Agency. [n4]  Id. at 15. As his award, the Arbitrator concluded that the Agency violated Article 37 of the parties' agreement "and applicable provisions of law" when it implemented the revised grooming standards policy without completing bargaining with the Union. Id. at 23 (emphasis added). The Agency timely filed exceptions to the award on November 15, 2005, which were docketed as Case No. 0-AR-4026. See NTEU, 62 FLRA No. 50 (2007) (NTEU).

B.      Analysis and Conclusions

      Section 2424.30(a) of the Authority's Regulations provides that the Authority will dismiss a negotiability appeal without prejudice where the union has filed "a grievance alleging a [ULP] under the parties' negotiated grievance procedure, and the . . . grievance concerns issues directly related" to a negotiability appeal. This regulation was adopted in 1999 as part of a "unified process" for negotiability petitions that raised both negotiability and bargaining obligation disputes. [n5]  63 Fed. Reg. 66410 (December 2, 1998). Under this process, where a ULP has been alleged, either through statutory ULP procedures or through a negotiated grievance procedure, those procedures are considered to be "better suited to resolving the entire dispute" than is the negotiability procedure. Id. The regulations thus provide that the Authority will dismiss the negotiability appeal, that the parties will utilize the ULP or grievance procedure, and that the Union may refile the negotiability petition if the issues remain unresolved after the conclusion of the ULP or grievance procedure.

      Here, a grievance filed by the Union on August 30, 2004, claimed that the Agency's implementation of a revised grooming standards policy constituted a ULP. The Agency also declared certain of the Union's proposals to be nonnegotiable and the Union filed the petition for review in this case concerning the same policy. Thus, at the time the petition in this case was filed, § 2424.30(a) supported dismissal of the Union's petition. However, based on the parties' agreement during the post-petition conference that the Union had withdrawn the portion of the grievance alleging a statutory violation, the Authority did not dismiss the petition for review.

      Consistent with their agreement during the post-petition conference, the parties stipulated to the Arbitrator that the issue was whether the Agency had violated the parties' agreement by implementing the grooming policy. See Award at 2. However, the agreement term at issue simply "requires that the Agency exercise its management rights in accordance with the law." Award at 3. Thus, while the parties submitted the issue to the Arbitrator as a matter of contract interpretation, the actual issues to be resolved by the Arbitrator were the Agency's legal defenses to the Union's request to bargain. Those defenses are substantively identical to those presented in this case and substantively identical to the issues that the parties' asserted had been withdrawn from the grievance during the post-petition conference.

      The parties thus presented the grievance at the post-petition conference in a manner that avoided dismissal under § 2424.30(a) while also pursuing the result that the regulation was designed to avoid. That is, despite their statements to the Authority, they litigated the exact same statutory bargaining issues before the Arbitrator and the Authority simultaneously. Further, the Arbitrator resolved the issues as both contractual and statutory claims and the Agency's exceptions allege that the Arbitrator's resolution of the statutory claims is contrary to law. As a result of the Union's petition in this case and the Agency's exceptions in Case No. 0-AR-4026, identical issues concerning the statutory obligation to bargain were pending in both cases.

      We conclude that the course taken by the parties here, to litigate identical bargaining obligation claims simultaneously in a negotiability petition and a grievance, is inconsistent with the purpose of § 2424.30(a) because the parties are effectively litigating a ULP claim in the grievance procedure. It creates an end-run around the Authority's regulatory scheme, which provides [ v62 p269 ] that bargaining obligation issues should be litigated in one forum.

      Under § 2424.30, where a union has filed a grievance that alleges a ULP concerning issues directly related to a negotiability petition, the Authority dismisses the negotiability petition without prejudice to the right of the union to refile the petition after the grievance has been resolved. Dismissal in this case is unnecessary, however. In particular, as noted above, the Agency has filed exceptions with the Authority to the award concerning the grievance at issue and the Authority has issued a decision concerning those exceptions. See NTEU. Because the grievance has been "resolved administratively" in a manner that does not resolve the negotiability issues, the Union would have the right to refile the negotiability petition at this time. [n6]  § 2424.30(a) Thus, as a practical matter, there is no basis to dismiss the petition and we resolve it.

III.     Proposals 2, 3, and 4

Proposal 2

The parties agree that the official uniform, when worn in its entirety, affords sufficient identification of the officer as a representative of CBP.

Proposal 3

Officers will be neat, clean and professional in attire and appearance at all times while on duty.

Proposal 4  [n7] 

Officers may conform to contemporary apparel and grooming standards (when not in uniform) and, when in uniform, contemporary grooming styles, subject to the terms of this MOU, 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.

A.      Meaning of the Proposals

      The parties agree that Proposal 2 means that the wearing of the official uniform alone is sufficient to identify a Customs and Border Protection (CBP) officer to the public. See Post-Petition Conference Report at 2. The parties also agree that the proposal means that grooming standards are not necessary to identify an employee as an Agency officer. In this regard, the Union contends that officers are recognized by their uniforms, not by their personal appearance. See Response at 2. Thus, we construe Proposal 2 as establishing that grooming standards are not necessary to identify officers to the public. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 741 (1996).

      Regarding Proposal 3, the parties agree that the proposal means that, when officers are on duty, their attire and appearance must be neat, clean, and professional, as judged by a "reasonable person" standard. [n8]  Post-Petition Conference Report at 2.

      Regarding Proposal 4, the parties agree that the proposal permits on-duty officers to exhibit grooming styles that conform to contemporary standards. See id. at 3. The parties also agree that Proposal 4 requires that contemporary grooming styles be consistent with any grooming standards negotiated by the parties, and that the proposal limits an officer's choice of grooming styles if that choice creates a health or safety hazard or interferes with or reduces the ability of officers to accomplish the Agency's mission. See id.

B.      Positions of the Parties

1.      Agency

      The Agency claims that Proposals 2, 3, and 4 excessively interfere with the right to determine its internal security practices. In this regard, the Agency asserts that officers must be readily identifiable as law enforcement officials in order to safely and effectively perform their duties. Specifically, the Agency contends that "officer's presence" is a necessary law enforcement technique and that the effectiveness of officer presence is dependent on the public's identification of officers. SOP at 7. The Agency claims that a "well-defined" grooming standards policy aids in identifying officers and, thus, "ensures officer safety." Id. at 8. The Agency further claims that the proposals would "distract[]" Agency officials responsible for enforcing the Agency's grooming standards policy and, as a result, would adversely affect the Agency's mission. Id. at 9.

      [ v62 p270 ] In addition, the Agency contends that Proposals 2, 3, and 4 excessively interfere with the right to determine the means of performing work. The Agency asserts that grooming standards are so "inextricably related" to uniform requirements that proposals "seeking to abrogate the application of those standards are negotiable only at the election of the [A]gency." Id. at 5 (citing NAGE, SEIU, AFL-CIO, 26 FLRA 515, 526-28 (1987) (Chairman Calhoun dissenting on other grounds) (NAGE)). The Agency states that its primary mission is "preventing terrorists and terrorists['] weapons from entering the United States" and that its decision to implement grooming standards is "directly linked" to its mission. SOP at 7, 8. As noted above, the Agency also claims that "officer's presence" is a necessary law enforcement technique and that identification of officers is dependent on their personal appearance. Id. at 7-8.

2.      Union

      According to the Union, the Agency has failed to establish that Proposals 2, 3, or 4 affect management's rights to determine its internal security practices or the means of performing work. See Response at 3, 10, 12. Alternatively, the Union claims that Proposals 2, 3, and 4 constitute appropriate arrangements. With regard to Proposal 2, the Union asserts that employees required to adhere to the Agency's grooming standards policy will be adversely affected because they will not be permitted to exercise their "personal, liberty[,] and privacy right[s]" to make the same grooming decisions made daily by other federal workers. Id. at 8. The Union claims that Proposal 3 would address the impact of the Agency's decision to implement a grooming standards policy by "providing criteria on what constitutes appropriate personal appearance standards" and helping employees avoid discipline for unacceptable personal appearance. Id. at 10. The Union asserts that Proposal 4 benefits employees by clarifying that grooming standards do not apply when employees are off-duty.

C.      Analysis and Conclusions

1.      Analytical Framework

      The Agency asserts that Proposals 2, 3, and 4 affect, and excessively interfere with, its right to determine internal security practices under § 7106(a) of the Statute and its right to determine the means of performing work under § 7106(b)(1). In response, the Union contends that the proposals do not affect these management rights and that, if they do, then the proposals are negotiable as appropriate arrangements under § 7106(b)(3) of the Statute.

      In addressing these arguments, we first determine whether a proposal affects the Agency's right to determine its internal security practices. If it does, then we determine whether it constitutes an appropriate arrangement for the exercise of that right or whether it does not because it excessively interferes with the right. If a proposal excessively interferes with the Agency's right to determine its internal security practices, then we do not determine whether, as the Agency asserts, the proposal also excessively interferes with its right to determine the means of performing work. [n9]  If a proposal does not affect or does not excessively interfere with the Agency's right to determine its internal security practices, then we will resolve the parties' claims regarding the Agency's right to determine the means of performing work. [n10]  See AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998).

2.     Proposals 2, 3, and 4 affect management's right to determine its internal security practices.

      Under § 7106(a)(1) of the Statute, management's right to determine its internal security practices includes the right to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See AFGE, Local 2143, 48 FLRA 41, 44 (1993) (Member Talkin concurring as to other matters). Review of precedent demonstrates that the Authority has used two different approaches in determining whether a proposal, which deviates from or modifies an agency policy, affects management's right to determine its internal security practices. As such, we take this opportunity to address these different approaches and clarify our law in this respect.

      The Authority has held, in cases concerning an agency decision to implement a uniform or identification card policy, that a proposal that modified an agency's policy, but did not conflict with the agency's stated security purpose or "defeat the purpose" for which the agency adopted the internal security measure, did not affect management's right to determine its internal security practices. See AFGE, AFL-CIO, Local 1625, 25 FLRA 1028, 1031-32 (1987) (AFGE, Local 1625); AFGE, Local 217, 21 FLRA 62, 66-67 (1986); see also AFGE, Local 1904, 56 FLRA 787, 789-90 (2000) (referencing AFGE, Local 1625, 25 FLRA [ v62 p271 ] at 1031). However, in other precedent regarding internal security practices, the Authority has required an agency to establish only: (1) a link between the agency's policy and its internal security measure, and (2) that a union's proposal deviated from or modified the agency's policy. See NTEU, 60 FLRA 367, 374-75 (2004) (Proposal 11) (Chairman Cabaniss and Member Pope dissenting on other grounds) petition for review granted, remanded in part, reversed in part, 437 F.3d 1248 (D.C. Cir. 2004); NTEU, 59 FLRA 978, 981 (2004).

      Having reviewed these two approaches, the Authority will no longer follow the earlier precedent holding that a proposal must conflict with or defeat the purpose of an agency's internal security measure in order to affect management's right to determine its internal security practices and will, instead, apply the "affects" test used in more recent precedent, including NTEU, 60 FLRA 367, and NTEU, 59 FLRA 978. In determining whether a proposal affects management's right to determine its internal security practices under this test, the Authority does not examine the extent to which the practices adopted by an agency to achieve its security objectives actually facilitate the accomplishment of those objectives. See AFSCME, Locals 2910 & 2477, 49 FLRA 834, 839 (1994). We note that this approach is consistent with the Authority's application of the "affects" test with respect to other § 7106(a) rights. See AFSCME, Local 2830, 60 FLRA 671, 673 (2005); AFSCME, Local 2830, 60 FLRA 124, 127 (2004); Laborer's Int'l Union of N. America, Local 28, 58 FLRA 605, 606 (2003). As such, it makes more consistent the standards for determining whether a proposal affects various management rights.

      Consistent with the foregoing, for the Agency's grooming standards policy to constitute an exercise of the Agency's right to determine its internal security practices, the Agency must establish a link between the policy and its internal security goals. If the Agency establishes such a link and a proposal deviates from or modifies the Agency's policy, then the proposal will be found to affect management's right to determine its internal security practices. A proposal affecting management's right to determine its internal security practices under § 7106(a)(1) is outside the duty to bargain, unless it is encompassed by an exception set forth in § 7106(b) of the Statute.

      With regard to whether the Agency has established a link between its grooming standards policy and its internal security goal of safeguarding Agency personnel, the Agency states that its mission is "preventing terrorists and terrorists['] weapons from entering the United States" and that a grooming standards policy for its officers is consistent with the Agency's effort to present "one face at the border." SOP at 7. The Agency also contends that its policy ensures that its officers are readily recognizable and identifiable as law enforcement officials. See id. at 5, 8. According to the Agency, "officer's presence" is the first level in the "Use of Force continuum," a law enforcement technique, and an officer's appearance "increases his or her effectiveness." Id. at 7-8. As such, the Agency claims that implementing a "well-defined policy" promotes officer effectiveness and safety. Id.

      The Agency's claims establish that it is tasked with the critical mission of preventing terrorism. Id. at 7. As a method of accomplishing its mission, the Agency implemented the grooming standards policy for its uniformed officers. According to the Agency, the purpose of the policy is 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. See SOP at 5. As such, consistent with Authority precedent, we find that the Agency has established a reasonable link between its grooming standards policy and its internal security goals. See AFSCME, Local 2910, 49 FLRA at 839-40 (agency established link between its policy that employees carry identification cards and its goal of safeguarding personnel); AFGE, AFL-CIO, Nat'l Archives and Record Admin. Council of AFGE, Locals (Council 1260), 31 FLRA 878, 881 (1988) (AFGE, Council 1260); AFGE, Local 217, 21 FLRA at 65-66 (agencies established link between uniform policies and goals of safeguarding personnel). Cf. NTEU, 61 FLRA 48, 51 (2005) (Member Armendariz dissenting) (agency did not establish link between policy of permitting only certain employees to wear cargo shorts and goal of safeguarding employees).

      With regard to whether the proposals deviate from or modify the agency's internal security policy, Proposal 2 provides that grooming standards are not necessary to identify officers to the public. As we have determined that there is a reasonable link between the Agency's grooming standards policy and the purpose of identifying its officers to the public, the proposal, which would establish that there is no such relationship, modifies the Agency's grooming standards policy. As such, we find that Proposal 2 affects the Agency's right to determine its internal security practices. See NTEU, 59 FLRA at 981.

      Proposal 3 requires that, when they are on duty, officers' attire and appearance will be neat, clean, and professional. We note that the Agency's grooming standards [ v62 p272 ] policy states that officers "are expected to present a neat, clean, and professional image consistent with the high regard in which this agency and its officers/employees are held." SOP, Attachment, Exhibit 1 at 3. As the meaning of the proposal and the Agency's policy -- requiring officers to present themselves in a neat, clean, and professional manner -- is the same, it does not appear that Proposal 3, on its face, requires a modification to or deviation from the Agency's policy. However, even assuming Proposal 3 is consistent with the Agency's policy, that alone would not establish that the proposal is negotiable because, under Authority precedent, proposals that are nonnegotiable because they affect a management right do not become negotiable because they simply restate an existing agency policy or practice. See AFGE, Local 3509, 46 FLRA 1590, 1617-18 (1993). As the inclusion of the policy in the agreement would prevent an agency from changing the policy during the life of the agreement, a proposal restating that policy affects the applicable management right. See id. Accordingly, as Proposal 3 would limit the Agency's ability to change its policy in the future, we find that the proposal affects the Agency's right to determine its internal security practices.

      Proposal 4 would permit officers to exhibit "contemporary grooming styles," consistent with any grooming standards MOU negotiated by the parties, provided such deviations do not create safety hazards or reduce the officers' ability to deal with the public. There is no indication that the proposal would require officers to abide by any grooming standards that were not negotiated into an MOU by the parties. See SOP, Exhibit 1. As such, the proposal would permit officers to deviate from the Agency's grooming standards policy and effectively require the Agency to grant exceptions to its grooming standards policy. Accordingly, Proposal 4 affects the Agency's right to determine its internal security practices. See Def. Logistics Council of AFGE Locals, 20 FLRA 166, 168 (1985), aff'd in part and rev'd in part on other grounds by Def. Logistics Council of AFGE Locals v. FLRA, 810 F.2d 234, 240 (D.C. Cir. 1987) (proposal providing exceptions to agency's policy affected right to determine its internal security practice) (Def. Logistics Council).

3.      Proposal 3 constitutes an appropriate arrangement and Proposals 2 and 4 do not constitute appropriate arrangements.

      In determining whether a proposal is an appropriate arrangement, the Authority applies the framework in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Doing so, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. The claimed arrangement must be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., NAGE, Local R1-100, 39 FLRA 762, 766 (1991). If the proposal is an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. See KANG, 21 FLRA at 31-33. In making this determination, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      For the purposes of this decision, we assume that Proposal 2 is a sufficiently tailored arrangement. See NTEU, 59 FLRA 844, 847 (2004). With regard to whether the proposal is appropriate, the Union claims that it benefits employees by providing them with discretion over their appearance. Nevertheless, as the Agency contends, the proposal would prevent the Agency from requiring officers to adhere to any grooming standards designed to ensure that the officers are readily identifiable to the public. Accordingly, the proposal would significantly burden the Agency by preventing it from carrying out its internal security practice and the purposes for which it was adopted. On balance, we conclude that the significant burden on management's right outweighs the benefit the proposal would afford employees. Therefore, the proposal excessively interferes with the Agency's right to determine its internal security practices and is not an appropriate arrangement. [n11]  See NTEU, 59 FLRA at 982.

      Regarding whether Proposal 3 is an appropriate arrangement, the Agency does not dispute that it is an arrangement; the Agency argues only that it is not an appropriate arrangement because it excessively interferes with management's right. See SOP at 9; NTEU, 55 FLRA 1174, 1175 (1999) (Member Wasserman dissenting on other grounds). The Union claims that the proposal benefits employees by providing standards concerning appropriate personal appearance and, thus, [ v62 p273 ] helps officers avoid discipline. See Response at 10. The Agency, on the other hand, does not establish how a proposal requiring that officers be neat, clean, and professional burdens the Agency's exercise of its management rights, especially since there is no argument or other basis to conclude that the Agency would ever desire a different policy. For the same reason, the fact that the proposal prevents the Agency from modifying its standards does not, by itself, justify finding that the proposal's burden on management's right outweighs the proposal's benefits to employees. In this connection, § 7106(b)(3) of the Statute entitles the Union to bargain over proposals that do not excessively interfere with the Agency's rights, including proposals that modify the Agency's decision regarding that right. See NAGE, Local R5-184, 51 FLRA 386, 392 (1995). In these circumstances, we find that Proposal 3 does not excessively interfere with the Agency's right to determine its internal security practices and, thus, is an appropriate arrangement.

      With regard to Proposal 4, assuming the proposal constitutes a sufficiently tailored arrangement, we find that it is not appropriate. The Union asserts that the proposal benefits officers by giving them discretion over their personal appearance and allowing them to abide by contemporary grooming styles when on duty. See Response at 8, 12. The Agency contends that, by allowing employees "latitude" in their grooming choices, the proposal distracts Agency officials and negatively impacts the accomplishment of the Agency's mission. SOP at 9. Although Proposal 4 would provide employees with greater discretion over their appearance, the proposal would require the Agency to permit employees to exhibit undefined and ambiguous "contemporary grooming styles." As such, the proposal significantly interferes with the Agency's decision to have a "well-defined" grooming standards policy. Id. at 8, 9. In addition, the proposal would limit the Agency's discretion to prohibit any contemporary grooming styles it deems in conflict with its grooming standards policy and security goals. On balance, the burden on the Agency's ability to exercise its management right outweighs the benefit the proposal would afford to the officers. See NTEU, 59 FLRA at 982. Accordingly, we find that the proposal excessively interferes with the Agency's internal security practices right and does not constitute an appropriate arrangement. [n12] 

4.      Proposal 3 does not affect management's right to determine the means of performing work.

      As we have found that Proposal 3 does not excessively interfere with the Agency's right to determine its internal security practices, it is necessary to address whether, as the Agency contends, the proposal affects management's right to determine the means of performing work. In determining whether a proposal affects the right to determine the means of performing work, the Authority first examines whether the proposal concerns a "means." In this regard, the Authority construes the term "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." IFPTE, Local 49, 52 FLRA 813, 818 (1996). Second, it must be shown that: (1) there is a direct and integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 452 (1999) (AFGE, Council 236).

      Consistent with the above, the Authority has held that an agency's determination that "uniformed officers must adhere to grooming standards to ensure that such officers are readily recognized" constitutes a determination regarding the means of performing work. United States Dep't of Justice, Immigration & Naturalization Serv, 31 FLRA 1123, 1136 (1988) (DOJ); see NAGE, 26 FLRA at 526-28; AFGE, AFL-CIO, Nat'l Immigration & Naturalization Serv. Council, 8 FLRA 347, 351 (1982) (AFGE). The Authority also held that, with respect to National Guard technicians, grooming standards "are so inextricably related to the wearing of the military uniform that the standards . . . must be considered an inextricable part of the uniform wearing requirement." NAGE, 26 FLRA at 527.

      However, not all proposals to modify an agency's determination regarding grooming standards affect the right to determine means of performing work. In this regard, the United States Court of Appeals for the District of Columbia Circuit and the Authority have determined that proposals providing grooming standards that vary from an agency's standards but do not impede the public's recognition of an agency's uniformed officers do not affect the right to determine the means of performing work. See Dep't of Health & Human Servs., Indian Health Serv., Okla. City v. FLRA, 885 F.2d 911, 916-17 (D.C. Cir. 1989) (DHHS); DOJ, 31 FLRA [ v62 p274 ] at 1136; see also NAGE, Serv. Employees Int'l Union, AFL-CIO, 23 FLRA 730, 731-32 (1986); AFGE, 8 FLRA at 353. In DHHS, the court -- addressing proposals involving uniform and dress code requirements, including grooming standards -- found that the determination of whether a proposal affects management's right to determine the means of performing work depends on "the degree of departure from agency policy implicit in a particular union proposal, the type of agency involved, and the agency's specific needs and requirements." DHHS, 885 F.2d at 917. The court found that a proposal to "completely eliminate, vitiate, or make optional an agency's requirements . . . is not subject to bargaining." Id. at 916. By contrast, according to the court, proposals providing grooming standards that vary from those adopted by an agency "are not beyond the scope of collective bargaining even if they differ in details from the methods and means adopted by that agency." Id. at 916-17. As the court observed in another decision concerning the uniforms worn by prison guards, the appropriate inquiry is "whether a union counter-proposal permits the accomplishment of the agency's mission-related purpose while modifying some particulars of its policy." AFGE, AFL-CIO, Local 2441 v. FLRA, 864 F.2d 178, 187 (D.C. Cir. 1988) (AFGE, Local 2441 v. FLRA).

      The Agency states that its mission is "preventing terrorists and terrorists['] weapons from entering the United States[.]" SOP at 7. This critical mission supports the Agency's decision to implement a grooming standards policy designed to ensure that its officers are readily identifiable to the public and effectively employ law enforcement techniques. See id. at 7-8. However, nothing in Proposal 3 or its requirement that officers be neat, clean, and professional is at odds with the Agency's stated mission. Further, Proposal 3 is not of such a "degree of departure" from the Agency's policy so as to affect the Agency's right to determine the means of performing work. In fact, the proposal is consistent with the Agency's goal of having professional, identifiable officers and does not "completely eliminate" or "make optional" the Agency's grooming standards policy. See DHHS, 885 F.2d at 916-17; AFGE, Local 2441 v. FLRA, 864 F.2d at 184. In this regard, DHHS makes clear that where, as here, the proposal only "provid[es] for grooming standards which vary" from those adopted by the agency, the proposal does not "completely eliminate" the agency's policy and, thus, does not affect management's right. DHHS, 885 F.2d at 917, 916. Accordingly, applying the DHHS factors, we conclude that the proposal does not affect the Agency's right to determine the means of performing work.

IV.     Proposal 6

Exceptions to CBP=s proposed personal appearance standards will be made for legitimate religious/cultural reasons.

CBP=s proposed personal appearance standards e.g. as reflected in its CBP Personal Appearance Standards - Quick Reference Matrix will be modified as follows:

·     Hair:

Male - Shall not cover more than the top half of the ear, nor extend beyond the bottom of the shirt collar.

Female: Shall be arranged so that it does not extend below the shoulder.

·     Facial Hair:

Beards and other facial hair shall be permitted 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. The parties agree that for the overwhelming majority of CBP officers, there is not a reasonable likelihood that the officer will need to use such a device. Mustaches and beards will be neatly trimmed and groomed, clean and will not be of excessive length, i.e. no longer than 1/2 inch to one inch in length.

·     Fingernails:

Male - Shall not extend beyond 1/4 inch beyond the fingertips.

Female: Shall extend no more than 1/2 inch beyond the fingertips.

·     Rings:

Accept Agency proposal except clarify that wedding and engagement rings are permitted and count as one ring.

·     Necklaces:

No limit on the number of necklaces, chains, or medallions as long as concealed while wearing uniform. [ v62 p275 ]

·     Earrings:

Female: All Aclip-on@ and stud-type earrings that are not excessive or conspicuous are permitted. Wearing of more than two pairs of earrings is prohibited.

·     Bracelets:

One bracelet which is not excessive or conspicuous is permitted.

·     Watches:

Accept Agency proposal except clarify that bracelet-style watch is permitted.

·     Tattoos need only be concealed if they are obscene, racially motivated or gang-related. Officers will continue to be permitted to wear uniform items, e.g. short-sleeved shirts, even if tattoos are not concealed.

A.      Severance

      The Union requests severance of the different portions of Proposal 6. Under § 2424.22(c) of the Authority's Regulations, a request for severance must be supported with an explanation of how each severed portion of the proposal may stand alone and would operate. If severance is granted, then the Authority rules on the negotiability of the proposal's separate components. See, e.g., AFGE, Local 3354, 54 FLRA 807, 811 (1998).

      The Union argues, and the wording of the portions of the proposal demonstrates, that the portions operate independently. See Response at 14, 18, 22, 24, 26, 28, 30, 32, 33, 35. In addition, the Agency does not object to the Union's severance requests. See Reply at 9, 10, 11, 12, 13. As such, we sever the proposal.

B.     Specific Proposals

      As clarified above with respect to Proposals 2, 3, and 4, if an agency establishes a link between its grooming standards policy and its internal security goals, then a proposal deviating from or modifying the agency's internal security policy affects management's right to determine its internal security practices. See supra at 7. We found above that the Agency has established a link between its grooming standards policy and its internal security goal of safeguarding employees. See id. As such, it is necessary to determine whether the various portions of Proposal 6 deviate from or modify the Agency's grooming standards policy.

1.      Exceptions for legitimate religious and cultural reasons

(a)      Meaning of the Proposal

      At the post-petition conference, the parties agreed that this severed proposal requires the Agency to grant exceptions to its grooming standards policy for legitimate religious and cultural reasons. See Post-Petition Conference Report at 3. In its response, the Union asserts that the proposal does not require the Agency to grant exceptions and, instead, "it provides that management will consider exceptions to the grooming standards based on legitimate religious and cultural reasons presented by an employee." Response at 13.

      As set forth above, the Authority examines the wording of the proposal as well as the union's statement of intent to determine the meaning of the proposal. If the union's statement of intent comports with the plain words of the proposal, then the Authority will adopt the union's interpretation of the proposal. See AFGE, Local 12, 60 FLRA 533, 537 (2004). If a union's explanation is not supported by a reasonable construction, then the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it. See id.

      The plain wording of the proposal states that exceptions to the Agency's grooming standards policy "will be made for legitimate religious and cultural reasons." Petition for Review at 3 (emphasis added). As the proposal is written in mandatory terms, the Union's explanation that the proposal would only require management to "consider" exceptions is inconsistent with the wording of the proposal. Accordingly, the Union's explanation is not adopted. Consistent with the plain wording and the parties' agreement at the post-petition conference, we interpret the proposal as requiring the Agency to grant exceptions to its grooming standards policy for legitimate religious and cultural reasons.

(b)      Positions of the Parties

      The Agency claims that the proposal excessively interferes with its rights to determine internal security practices and the means of performing work because it would require the Agency to grant exceptions to the Agency's policy for legitimate religious and cultural reasons in all circumstances, regardless of whether the Agency's ability to safeguard its personnel would be adversely affected. See SOP at 9, 10.

      In addition to claiming that the proposal does not affect management's rights, the Union asserts that the proposal constitutes an appropriate arrangement. In this connection, the Union claims that officers will be [ v62 p276 ] adversely affected by the Agency's grooming standards policy because they will not be permitted to exercise the "basic, personal, liberty and privacy right of determining how they wish to present themselves to others." Response at 8. According to the Union, permitting exceptions to the grooming standards policy for "legitimate religious and cultural reasons" would allow officers to follow their religious or cultural traditions.

(c)     Analysis and Conclusions

      The proposal requires the Agency to grant exceptions to its grooming standards, which standards, we have determined, constitute the exercise of the Agency's right to determine its internal security practices. As such, the proposal would permit deviations from the Agency's grooming standards policy. Accordingly, we conclude that the proposal affects the Agency's right to determine its internal security practices. See Def. Logistics Council of AFGE Locals, 20 FLRA 166, 168 (1985), aff'd in part and rev'd in part on other grounds by Def. Logistics Council of AFGE Locals v. FLRA, 810 F.2d 234, 240 (D.C. Cir. 1987) (proposal providing exceptions to agency's policy affected right to determine its internal security practice).

      Assuming that the proposal constitutes a sufficiently tailored arrangement, we conclude that it is not appropriate. In this regard, the Union asserts that allowing exceptions to the Agency's grooming standards policy for legitimate religious and cultural reasons would provide a "decided benefit" to officers by "precluding them from having to make a choice between protecting their country . . . and exercising deeply held religious and cultural beliefs." Response at 14. As an example, the Union refers to the cultural practice of Native Americans not to limit their hair length, which the Union's exhibit indicates may include hair below the shoulders. See Response at 14; Response, Exhibit 4.

      Permitting employees to adhere to particular religious or cultural practices provides a benefit to employees. On the other hand, the Agency correctly asserts that the proposal would require it to grant exceptions to any and all grooming standards in any and all circumstances involving a legitimate cultural or religious reason. See SOP at 10. As the Union's example above demonstrates, the Agency would not be permitted to restrict hair length even in situations where an officer with below-the-shoulder hair was working around dangerous machinery or where such officer was "required to apprehend and control uncooperative and resistant individuals (who grab and pull such hair)." SOP at 11. Even when the employee's religious or cultural reason for an exception may be "legitimate," this is a significant intrusion on the Agency's right, which, we conclude, outweighs the benefits to employees. [n13] As such, we find that the proposal excessively interferes with the Agency's right to determine its internal security practices and, thus, does not constitute an appropriate arrangement. [n14] 

2.      Hair and Fingernails

(a)      Meaning of the Proposal

      The Agency's grooming standards policy provides that male officers' hair "will be neatly trimmed and properly groomed" and "[w]ill not touch the ears or the collar when in a standing position[,]" while female officers' hair "shall be arranged so that it does not extend below the bottom edge of the collar." SOP, Exhibit 1 at 3. The parties agree that the portion of Proposal 6 addressing hair is intended to modify the Agency's policy and establish the criteria for acceptable hair length based on an officer=s sex. See Post-Petition Conference Report at 4. In particular, under the Union's proposal, male officers= hair would not be permitted to cover more than the top half of the ear or extend beyond the bottom of the shirt collar, while female officers would be required to arrange their hair so that it would not extend below their shoulders. See id.

      The Agency's grooming standards policy also provides that male and female officers' fingernails will be manicured and clean at all times and men's fingernails shall not extend beyond the fingertips, while women's fingernails shall not extend more than one-quarter inch beyond the fingertips. SOP, Attachment at 4 (Exhibit 1). The parties agree that the portion of Proposal 6 addressing fingernails is intended to modify the Agency's policy and establish that men's fingernails would not be permitted to extend more than one-quarter inch beyond the fingertips, while women's fingernails would not be permitted to extend more than one-half [ v62 p277 ] inch beyond the fingertips. See Post-Petition Conference Report at 4-5.

(b)     Positions of the Parties

      The Agency contends that the portions of Proposal 6 addressing hair and fingernails excessively interfere with its rights to determine its internal security practices and means of performing work because: (1) the hair length proposed by the Union would put officers at risk of having hair grabbed or pulled while trying to apprehend resistant individuals or operate machinery; (2) fingernails of the length proposed by the Union create the opportunity for officers to be injured in the performance of their work; and (3) the proposal would preclude the Agency from establishing a uniform policy on these matters. See SOP at 10-12, 13-14.

      In response, the Union contends that these portions of Proposal 6 constitute only slight modifications of the Agency's grooming standards policy and, as a result, these proposals neither affect nor excessively interfere with the Agency's rights. See Response at 15-18, 23-24.

(c)     Analysis and Conclusions

     (i)      Internal Security Practices

      The portions of Proposal 6 concerning hair and fingernails would permit officers to have hair and fingernails longer than permitted by the Agency's grooming standards policy. As such, these portions of Proposal 6 modify the Agency's grooming policy and, therefore, affect the Agency's right to determine its internal security practices.

      Regarding whether these portions of the proposal are appropriate arrangements, the Agency does not dispute they are arrangements; the Agency argues only that the portions are not appropriate arrangements because they excessively interfere with management's right to determine its internal security practices. Accordingly, we address only that issue. See Reply at 9, 11; NTEU, 55 FLRA at 1175.

      In determining whether these portions of the proposal excessively interfere with that right, we find that the Agency has failed to establish the safety-related burdens it asserts these portions of Proposal 6 create. In this connection, these portions of Proposal 6 permit male officers to exhibit the same hair and fingernail length that the Agency's policy permits female officers to exhibit. With regard to female officers, the portion of the proposal concerning fingernails permits such officers to have fingernails one-quarter inch longer than proposed by the Agency. With regard to hair length, the difference between the bottom of the shirt collar (under the Agency's policy) and "not below the shoulder" (under the Union proposal) would depend on the type of shirt worn, which is not described by the Agency. In these circumstances, the Agency has failed to explain how the Proposal 6 standards for men, which mirror the women's standards under the Agency's policy, and the Proposal 6 standards for women, which are only slightly different from the Agency's policy, would significantly burden the Agency by placing officers in a safety risk or preventing officers from being readily identifiable by the public.

      Regarding the proposal's benefits to officers, the proposal provides them with "personal discretion" over their appearance. See Response at 17, 23. In seeking to ensure that the officers retain this discretion, the portions of Proposal 6 concerning hair and fingernail length only slightly modify the Agency's grooming standards policy. The Authority has held that a union's right to negotiate over appropriate arrangements includes the right to negotiate over proposals modifying agency decisions regarding those rights. See NAGE, Local R5-184, 51 FLRA 386, 392 (1995).

      On balance, we find that the burdens alleged by the Agency do not outweigh the benefit these portions of Proposal 6 provide to the officers. In this regard, as the Agency has failed to explain how these portions would place officers at a safety risk or prevent the officers from being readily identifiable to the public, the Agency has not established identification or safety-related burdens on its management's right. In these circumstances, the Agency's asserted burdens do not outweigh the Union's right to negotiate over modifications to the Agency's grooming standards policy, particularly where, as here, those modifications are slight. Accordingly, we find that the portions of Proposal 6 concerning hair and fingernails do not excessively interfere with the Agency's right to determine its internal security practices and, thus, these portions of Proposal 6 constitute appropriate arrangements.

     (ii)     Means of Performing Work

      As we have determined that the portions of Proposal 6 concerning hair and fingernail length do not excessively interfere with the Agency's right to determine its internal security practices, it is necessary to address whether, as the Agency contends, these portions affect the Agency's right to determine the means of performing work. As we determined with respect to Proposal 3, the Agency's critical mission supports its [ v62 p278 ] decision to implement a grooming standards policy. See supra at 11.

      There is no indication that the portions of Proposal 6 concerning hair and fingernail length, which only slightly modify the Agency's grooming standards policy, would prevent the Agency from accomplishing the mission-related purposes for which it adopted the policy. See AFGE, Local 2441 v. FLRA, 864 F.2d at 187. In this regard, the Agency adopted its grooming standards policy to ensure its officers were readily identifiable by the public and to ensure that officers could effectively employ law enforcement techniques, but the Agency has not provided any evidence establishing that the portions of Proposal 6 addressing hair and fingernails would interfere with the public's recognition of officers or prevent officers from effectively carrying out their law enforcement functions. See DHHS, 885 F.2d at 916-17; DOJ, 31 FLRA at 1136; AFGE, 8 FLRA at 353. In addition, although these portions of the proposal vary from the Agency's policy, the Agency has not established that the variation is of such a "degree of departure" to warrant a conclusion that the proposal affects management's right to determine the means of performing work. DHHS, 885 F.2d at 917. Accordingly, we find that these portions of Proposal 6 do not affect the Agency's right to determine the means of performing work under § 7106(b)(1).

3.      Facial Hair

(a)     Meaning of the Proposal

      The Agency's grooming standards policy prohibits beards, except for medical reasons, and provides that moustaches "shall not extend beyond the corners of the mouth or below the upper vermillion of the lip and must be conservative in style." SOP, Exhibit 1at 4. The parties agree that the facial hair section of Proposal 6 is intended to modify the Agency's policy and would permit officers to have beards and other facial hair if it is clean, neatly trimmed and groomed, and is no longer than one-half inch to one inch in length. See Post-Petition Conference Report at 4. The parties also agree that, if the officers are required to use a respirator or other device, then they would be required to shave to the extent necessary to properly use the respirator or other device.

(b)      Positions of the Parties

      In addition to its claim that its grooming standards policy is linked to its goal of safeguarding personnel, the Agency makes the additional claim with respect to facial hair that wearing safety gear, such as a respirator or "dry mask[,]" is a specific requirement of the Agency's "confined space entry training program[,]" which trains officers for entry into confined spaces. Reply at 10. The Agency asserts that, at any time, officers may be required to use safety gear, such as respirators, and officers cannot do so if they wear beards. The Agency also claims that, as the proposal would preclude establishing a policy prohibiting beards, the proposal affects its right to determine the means of performing work.

      The Union contends that, even assuming employees are required to use respirators, the proposal addresses the Agency=s security concerns by requiring such employees to shave their facial hair to the extent necessary to safely operate the respirator. See id. As to the Agency's means of performing work claim, the Union contends that, in DOJ, 31 FLRA 1123 the Authority determined that grooming standards that permitted beards did not interfere with employees= assigned work or affect the public=s ability to recognize officers as law enforcement officers. As such, the Union asserts that the proposal does not affect the Agency=s right to determine the means of performing work.

(c)     Analysis and Conclusions

      The parties agree that the facial hair section of the proposal would require any officer who was required to use a respirator or other safety gear to shave to the extent necessary to properly use the gear. See Post-Petition Conference Report at 4. However, it is undisputed that the proposal does not account for emergency situations where, as the Agency claims, officers may be required to use a respirator or other device to "save their own life or the life of another officer or member of the trade or traveling public[.]" Reply at 10. In these circumstances, officers would not have the opportunity to shave "to the extent necessary" to properly operate a respirator. As such, this portion of the proposal modifies the Agency's policy by limiting the circumstances under which the officers could operate a respirator or other device. Accordingly, this portion of the proposal affects the Agency's right to determine its internal security practices.

      For the purposes of this decision, we assume that this portion of Proposal 6 is a sufficiently tailored arrangement. With regard to whether this arrangement is appropriate, although officers would benefit from the proposal by being permitted to exercise their personal choice to have facial hair, the proposal also would effectively preclude the Agency from requiring officers who have facial hair to use respirators in an emergency situation. On balance, we find that the burden on the Agency's ability to safeguard its personnel and control [ v62 p279 ] how its work is performed outweighs any benefit the proposal may provide to the officers. As such, we conclude that this portion of the proposal excessively interferes with the Agency's right to determine its internal security practices and, thus, does not constitute an appropriate arrangement. [n15] 

4.     Rings, Necklaces, Bracelets, and Earrings

(a)      Meaning of the Proposal

      The Agency's grooming standards policy prohibits officers from wearing more than two rings while in uniform. SOP, Exhibit 1 at 4. The parties agree that the portion of Proposal 6 concerning rings would modify the policy to provide that wedding and engagement rings are considered one ring. See Post-Petition Conference Report at 5.

      The Agency's grooming standards policy limits officers in uniform to "the wearing of one (1) necklace, medallion, or chain[,]" which must be concealed. SOP, Exhibit 1 at 4. The parties agree that the portion of Proposal 6 concerning necklaces would modify the Agency's policy to establish that, while in uniform, officers may wear an unlimited number of concealed necklaces. See Post-Petition Conference Report at 5.

      The Agency's policy prohibits officers from wearing bracelets while in uniform, except for "medical alert bracelets[.]" SOP, Exhibit 1 at 4. The parties agree that the portion of Proposal 6 concerning bracelets would modify the Agency's policy to permit officers to wear one bracelet of any type provided it is not excessive or conspicuous, as judged by a "reasonable person." Post-Petition Conference Report at 5.

      The Agency's grooming standards policy prohibits male officers from wearing earrings and permits female officers to wear only one pair of "plain, stud-type earrings no more than ¼ inch in diameter[.]" SOP, Exhibit 1 at 4. The parties agree that the portion of Proposal 6 concerning earrings is intended to modify the Agency's policy to provide that, while on duty, female officers are permitted to wear no more than two pairs of earrings that are not excessive or conspicuous, based on a "reasonable person" standard. See Post-Petition Conference Report at 5. The parties further agree that the proposal would leave intact the Agency's policy prohibiting male officers from wearing earrings.

(b)     Positions of the Parties

      The Agency claims that each of these portions of Proposal 6 excessively interferes with its rights to determine its internal security practices and the means of performing work because they permit officers to wear more rings, necklaces, earrings, and bracelets than permitted under the Agency's grooming standards policy and, thus, create a risk that officers will be injured while subduing a non-compliant individual, performing a search or seizure, or handling baggage, cargo, or persons. See SOP at 15, 17. The Agency contends that the proposals would "detract[]" from the officers "professional image" and are in "direct contrast" to the Agency's grooming standards policy. Id. at 14; see id. at 15-17.

      The Union asserts that, by agreeing with another union to a proposal with the same wording, the Agency has conceded that the portion of the proposal concerning rings does not affect its management rights. [n16]  See Response at 25. With respect to the portion involving necklaces, the Union asserts that the Agency has not established that permitting officers to wear only one necklace poses less of safety risk than allowing officers to wear more than one, concealed necklace. See id. at 27. The Union also asserts that these portions of the proposal constitute appropriate arrangements. See id. at 25, 27, 30, 32.

(c)     Analysis and Conclusions

     (i)     Internal Security Practices

      The portions of Proposal 6 concerning rings, necklaces, bracelets, and earrings would permit officers to wear a greater number of each of those items than is permitted under the Agency's grooming standards policy. As such, these portions of the proposal modify the Agency's policy. Accordingly, these portions of Proposal 6 affect the Agency's right to determine its internal security practices.

      Regarding whether these portions of the proposal are appropriate arrangements, the Agency does not dispute they are arrangements; the Agency argues only that the portions are not appropriate arrangements because they excessively interfere with management's right to determine its internal security practices. Accordingly, [ v62 p280 ] we consider only that issue. See Reply at 11-12; NTEU, 55 FLRA at 1175.

      In determining whether these portions of the proposal excessively interfere with that right, we find that the Agency has failed to establish the safety-related burdens it asserts these portions of Proposal 6 would create. In this regard, the proposal would permit officers to wear one additional ring. The Agency has not demonstrated how this presents a greater safety risk for the Agency or its officers, particularly in view of the Agency's agreement with a different union that officers may wear three rings. See Response, Exhibit 14 at 5. Similarly, the Agency has not explained how permitting one bracelet of any type would create a greater safety risk than the Agency's policy permitting one medical alert bracelet. In addition, as both the Agency's grooming standards policy and the Union's proposal require that necklaces be concealed, the Agency has failed to establish how the Union's proposal -- permitting an unlimited number of concealed necklaces -- poses a greater safety risk than the Agency's policy. As for earrings, the Agency limits female officers to one pair earrings, while the Union's proposal would permit two pairs. There is no evidence, and the Agency fails to explain, how the proposal would place officers at an increased security risk. Further, the Agency does not explain how these portions of Proposal 6 prevent officers from being readily identifiable by the public or effectively employing law enforcement techniques.

      With regard to the proposal's benefits to officers, the proposal provides them with "personal discretion" over their appearance. See Response at 17, 23. As with the portions of Proposal 6 concerning hair and fingernail length, in seeking to ensure that the officers retain this discretion, the portions of Proposal 6 concerning rings, necklaces, bracelets, and earrings only slightly modify the Agency's grooming standards policy. As noted above, the Union has a right to negotiate over appropriate arrangements, including the right to negotiate over proposals modifying agency decisions regarding management's rights. See NAGE, Local R5-184, 51 FLRA at 392.

      On balance, we find that the burdens alleged by the Agency do not outweigh the benefits provided to the officers. In this connection, although the Agency asserts that these portions of Proposal 6 would place officers at a safety risk and prevent them from being readily identifiable to the public, the Agency has not established identification or safety-related burdens. As such, the Agency's asserted burdens do not outweigh the Union's right to negotiate over modifications to the Agency's grooming standards policy, particularly where, as here, those modifications are slight. Accordingly, we find that the portions of Proposal 6 concerning rings, necklaces, bracelets, and earrings do not excessively interfere with the Agency's right to determine its internal security practices and, thus, these portions of Proposal 6 constitute appropriate arrangements.

     (ii)     Means of Performing Work

      As we have determined that the portions of Proposal 6 concerning rings, necklaces, bracelets, and earrings do not excessively interfere with the Agency's right to determine its internal security practices, it is necessary to address whether, as the Agency contends, these portions affect the Agency's right to determine the means of performing work. Similar to our finding with regard to Proposal 3, although the Agency's critical mission supports its decision to implement a grooming standards policy, the Agency has not established that the portions of Proposal 6 concerning rings, necklaces, bracelets, and earrings prevent the Agency from accomplishing the mission-related purposes for which it adopted the policy. In this connection, the Agency adopted its grooming standards policy to ensure its officers were readily identifiable by the public and to ensure that officers could effectively employ law enforcement techniques. However, there is no indication that wearing one more ring, bracelet, or pair of earrings than permitted by the Agency's policy, or wearing multiple concealed necklaces, would interfere with the public's recognition of officers or prevent officers from effectively carrying out their law enforcement functions. See DHHS, 885 F.2d at 916-17; DOJ, 31 FLRA at 1136; AFGE, 8 FLRA at 353. In addition, although these portions of the proposal "differ in details" from the Agency's policy, the Agency has not demonstrated that the difference is of such a "degree of departure" from the Agency's policy to warrant a conclusion that the proposal affects management's right. DHHS, 885 F.2d at 916-17. Accordingly, we find that these portions of Proposal 6 do not affect the Agency's right to determine the means of performing work under § 7106(b)(1).

5.      Tattoos

(a)      Meaning of the Proposal

      The Agency's grooming standards policy requires that obscene, racially motivated, or gang-related tattoos must be concealed, while other tattoos "will be physically covered to the greatest extent possible." SOP, Exhibit 1 at 5. The parties agree that this portion of Proposal 6 is intended to modify the Agency's policy so as to require that tattoos be concealed only if they are obscene, racially motivated or gang-related, as judged [ v62 p281 ] by a "reasonable person" standard. See Post-Petition Conference Report at 6.

(b)     Positions of the Parties

      The Agency asserts that this portion of the proposal excessively interferes with its rights to determine internal security practices and the means of performing work because it would preclude the Agency from establishing a grooming standards policy, which restricts the types of tattoos officers may exhibit.

      The Union contends that the section of Proposal 6 does not excessively interfere with management's rights because the proposal does not detract from the Agency's interest in ensuring that its officers present a professional image. Response at 35.

(c)     Analysis and Conclusions

     (i)     Internal Security Practices

      Under both the proposal and the Agency's policy, obscene, racially motivated, and gang-related tattoos must be concealed. The difference between the two concerns tattoos that are not obscene, racially motivated, or gang-related. The Union's proposal would permit officers to wear the uniform even if such tattoos would not be concealed; the Agency's policy would require officers to cover, to the greatest extent possible, all such tattoos. We find that this portion of Proposal 6 would modify the Agency's grooming standards policy. As such, this portion of the proposal affects the Agency's right to determine its internal security practices.

      Regarding whether this portion of Proposal 6 is an appropriate arrangement, the Agency does not dispute it is an arrangement; the Agency argues only that it is not an appropriate arrangement because it excessively interferes with management's right. Accordingly, we consider only that issue. See SOP at 19; NTEU, 55 FLRA at 1175.

      In determining whether the proposal excessively interferes with the Agency's right to determine its internal security practices, the Agency has not demonstrated that this portion of Proposal 6 creates identification or safety-related burdens for the Agency. In this connection, there is no indication that permitting officers to exhibit tattoos that are not obscene, racially motivated, or gang-related would limit the Agency's ability to safeguard its officers or ensure that the officers are readily identifiable to the public.

      With regard to the benefits to officers, this portion of Proposal 6 would permit officers to "continue to wear short-sleeved shirts as long as any exposed tattoo [i]s not obscene, racially motivated or gang-related" and would provide officers with "personal discretion" over their appearance. Response at 8, 34-35. In seeking to ensure that officers are able to continue to work comfortably and retain discretion over their appearance, this portion of Proposal 6 only slightly modifies the Agency's grooming standards policy. As noted above, the Union has a right to negotiate over appropriate arrangements, including the right to negotiate over proposals modifying agency decisions regarding management's rights. See NAGE, Local R5-184, 51 FLRA at 392.

      On balance, we find that the burdens alleged by the Agency do not outweigh the benefits this portion of Proposal 6 provides to the officers. In this regard, as the Agency has failed to explain how this portion of Proposal 6 would place officers at a safety risk or prevent them from being readily identifiable to the public, the Agency has failed to establish how the Agency's right to determine its internal security practices would be burdened. As such, the Agency's asserted identification and safety-related burdens do not outweigh the Union's right to negotiate over modifications to the Agency's grooming standards policy, particularly where, as here, those modifications are slight. Accordingly, we find that the portion of Proposal 6 concerning tattoos does not excessively interfere with the Agency's right to determine its internal security practices and, therefore, constitutes an appropriate arrangement.

     (ii)     Means of Performing Work

      As we have determined that the portion of Proposal 6 concerning tattoos does not excessively interfere with the Agency's right to determine its internal security practices, it is necessary for us to address whether, as the Agency contends, this portion affects the Agency's right to determine the means of performing work. As found above, the Agency's critical mission supports its decision to implement a grooming standards policy. See supra at 11. However, nothing in this portion of Proposal 6 prevents the Agency from accomplishing the mission-related purposes for which the Agency adopted its grooming standards policy. In this regard, although the Agency adopted its grooming standards policy to ensure its officers were readily identifiable by the public and to ensure that officers could effectively employ law enforcement techniques, there is no indication that permitting officers to display tattoos that are not obscene, racially motivated, or gang-related would interfere with the public's recognition of officers or prevent officers from effectively carrying out their law enforcement functions. See DHHS, 885 F.2d at 916-917; DOJ, [ v62 p282 ] 31 FLRA at 1136; AFGE, 8 FLRA at 353. In addition, although this portion of the proposal varies from the Agency's policy, the Agency has not established that the variation is of such a "degree of departure" to warrant a conclusion that the proposal affects the Agency's right. DHHS, 885 F.2d at 917. Accordingly, we find that this portion of Proposal 6 does not affect the Agency's right to determine the means of performing work under § 7106(b)(1).

V.      Proposal 7

A. If a complaint is made against an officer by CBP because of alleged improper attire or appearance i.e. that which is determined to be improper for official duties, the officer shall be notified immediately by the complaining official. If the complaining official and the officer cannot resolve the issue, the matter shall immediately be referred to the appropriate higher-level CBP official. If the officer still disagrees, the matter will immediately be referred to the appropriate higher-level CBP official, or his or her designee, for a final judgment.

B. A determination adverse to the employee by CBP means that the officer shall be instructed not to wear or exhibit that type of attire or appearance again and shall be instructed to take reasonable corrective action, if possible, for the remainder of the work day, but shall not be sent home. CBP may counsel the officer that repeated violations of the personal appearance standards may result in CBP proposing disciplinary action.

A.      Meaning of the Proposal

      The parties agree that Proposal 7, Section A establishes a procedure to apply when an Agency official determines that an officer's attire or appearance is improper. See Post-Petition Conference Report at 6. The parties also agree that: (1) the term "final judgment" means that the determination is final for the purposes of the Agency's internal procedure, but that the grievance procedure would be available; and (2) the proposal permits management to determine which employees will constitute the appropriate CBP officials. See id.

      With respect to Section B, the parties agree that, once the final decision discussed in Section A has been made, the officer shall be instructed to take reasonable corrective action, if possible, for the remainder of the work day but the officer will not be sent home. See id. The parties also agree that Proposal 7 would apply in all situations, regardless of the nature of the alleged violation or whether it is the employee's first or subsequent offense, and that the proposal would preserve the Agency's right to discipline officers, even for a first offense.

B.      Positions of the Parties

1.     Agency

      The Agency argues that Proposal 7 excessively interferes with its rights to determine its internal security practices and the means of performing work. Specifically, the Agency claims that the proposal would prohibit it from "taking actions it deems necessary to deal with the issue of noncompliance (to include sending an employee home)[.]" SOP at 20. According to the Agency, the proposal would impose a lengthy process for determining whether an employee's appearance complies with agency standards. The Agency asserts that the proposal would require it to spend "an inordinate amount of time and resources to deal with personal appearance issues" rather than accomplishing its mission. Id. The Agency claims that Proposal 7 is distinguishable from similar proposals the Authority previously found negotiable because it involves uniformed law enforcement officers in positions responsible for protecting the nation against terrorism. [n17]  Id.

2.      Union

      The Union claims that Proposal 7 is an appropriate arrangement under § 7106(b)(3) because any effect on management rights is "minimal and in fact furthers its interests to have a workforce in compliance with its personal appearance standards." Response at 37. The Union claims that the proposal would result in prompt resolution of compliance questions, "thereby potentially avoiding the cost and time of protracted litigation." Id.

      The Union also requests severance of the wording "but shall not be sent home." Id. The Union claims the "severed proposal would benefit the officer by not requiring the officer to be sent home, thereby avoiding personal embarrassment and the possible loss of overtime." Id. [ v62 p283 ]

C.      Severance

      Under § 2424.22(c) of the Authority's Regulations, a request for severance must be supported with an explanation of how each severed portion of the proposal may stand alone, and how such severed portion would operate. If the severance request meets the Authority's regulatory requirements, then the Authority severs the proposal and rules on the negotiability of its separate components. See, e.g., AFGE, Local 3354, 54 FLRA 807, 811 (1998).

      The Union requests to sever the wording "but shall not be sent home," asserting that the "severed proposal" would benefit officers by enabling them to avoid embarrassment and loss of overtime. Response at 37. However, the Union has not demonstrated how the wording "but will not be sent home" can stand alone. The Authority's regulations define "[s]everance" as the division of a proposal into "separate parts having independent meaning[.]" 5 C.F.R. § 2424.2(h). Here, the "part" the Union wants to sever and have adjudicated separately cannot stand alone. Accordingly, we deny the Union's request.

D.     Analysis and Conclusions

1.     Proposal 7 affects the Agency's right to determine its internal security practices and the means of performing work.

      We have concluded that the Agency has established a link between its goal of safeguarding officers and its decision to implement a grooming standards policy. See supra at 7. We have also concluded that the grooming standards policy constitutes an exercise of the Agency's right to determine the means of performing work. See supra at 11. As Proposal 7 would preclude the Agency from immediately enforcing -- correcting violations of -- these standards, we conclude that Proposal 7 affects the Agency's rights to determine its internal security practices and to determine the means of performing work.

2.     Proposal 7 does not constitute an appropriate arrangement for the Agency's exercise of its right to determine internal security practices.

      Assuming that Proposal 7 is an arrangement, we conclude that it is not appropriate because it would preclude management from sending an offending officer home, regardless of the nature of the violation or whether the violation may be sufficiently corrected for the remainder of the workday. In other words, the proposal would bar management from removing the employee from the workplace, regardless of the potential security issues caused by the officer's appearance. Although the Union claims that this portion of the proposal would benefit employees by avoiding embarrassment and missed overtime opportunities, the burden on management's right to determine internal security practices is significant. Accordingly, we conclude that Proposal 7 excessively interferes with the Agency's right to determine its internal security practices and, thus, does not constitute an appropriate arrangement. [n18] 

VI.      Proposal 9

Either party may reopen this MOU at any time subject to the mutual requirements to negotiate prior to implementation to the extent required by law and regulation.

A.      Meaning of the Proposal

      The parties agree that Proposal 9 is a standard "reopener" proposal and allows either party to reopen the negotiated Personal Appearance Standards memorandum of agreement (MOU) in response to a proposed change in the standards by the Agency. Post-Petition Conference Report at 7. The parties also agree that their bargaining rights and obligations would be determined by applicable law, including the Statute and relevant regulations, such as the Agency's new personnel system regulations. See id. at 7-8.

B.      Positions of the Parties

      The Agency asserts that the proposal is outside the duty to bargain, and is only a permissive subject of bargaining, because it requires the Agency to waive its statutory right to raise a "covered by" argument. SOP at 21.

      The Union claims that the proposal does not require the Agency to waive a "covered by" argument and does not require the Agency to bargain over a permissive subject. The Union asserts that the proposal is a "standard re-opener clause." Response at 40.

C.      Analysis and Conclusion

      The parties agree that Proposal 9 constitutes a standard reopener proposal. The Authority has long held that such proposals are within the duty to bargain. See NTEU v. FLRA, 399 F.3d 334, 342 (D.C. Cir. 2005) (stating that Authority has "often ordered an agency to [ v62 p284 ] bargain over a reopener proposal"); POPA, 56 FLRA 69, 72-73 (2000); AFGE, Local 1995, 47 FLRA 470, 471-73 (1993); NAGE, SEIU, AFL-CIO, 24 FLRA 147, 148-49 (1986); AFGE, AFL-CIO, Local 3804, 21 FLRA 870, 889-91 (1996). Further, the Agency's unexplained and unsupported assertions that the proposal requires the Agency to waive its right to raise a "covered by" argument and involves a permissive subject of bargaining, do not provide a basis for finding the proposal outside the duty to bargain. See NTEU, 53 FLRA 539, 548 (1997). As the Agency provides no reason for the Authority to modify this well-established precedent regarding reopener proposals, under these circumstances and consistent with the foregoing precedent, we find that the proposal is within the duty to bargain.

VII.     Proposal 11

CBP's August 3, 2004 proposal will be modified to conform with the terms of this MOU.

A.      Meaning of the Proposal

      The parties agree that Proposal 11 means that once the parties agree to an MOU with regard to grooming standards, the Agency's grooming standards policy will be modified to reflect any standards agreed upon in the MOU and that officers will be bound by the MOU, not the Agency's original proposal. See Post-Petition Conference Report at 8.

B.     Positions of the Parties

      The Agency claims that the proposal would require the Agency to execute a written agreement, "which is provided for by 5 U.S.C. § 7114(b)(5) and is therefore[] outside the duty to bargain." SOP at 21 (citing United States Dep't of the Treasury, Bureau of Engraving & Printing, 44 FLRA 926 (1992) (BEP); United States Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth, N.H., 44 FLRA 205 (1992) (Navy, Portsmouth).

      The Union claims that the proposal would require the Agency to comply with § 7114(b)(5) of the Statute by signing a written agreement embodying any agreed-upon grooming standards and modifying the Agency policy in accordance with that agreement.

C.      Analysis and Conclusion

      Under Proposal 11, if the Agency and the Union agree to modify the Agency's proposed grooming standards, then the Agency must sign, upon request, the agreement and the agreed-upon standards will control over the proposed ones. There is no indication that the Agency is obligated to sign such an agreement until the parties have reached a mutual agreement. In these circumstances, the Agency has not established that the proposal is inconsistent with § 7114(b)(5) or is outside the duty to bargain on any other basis. We note that "nothing in the Statute prevents an agency from agreeing to collective bargaining agreement provisions that alter or modify the policies established by an agency rule or regulation, even one for which a compelling need has been established." See United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 194 (1990). We also note that the decisions cited by the Agency actually support the Union's claim that the proposal is consistent with § 7114(b)(5) of the Statute. See BEP, 44 FLRA at 938; Navy, Portsmouth, 44 FLRA at 206 (stating that, under § 7114(b)(5), if an agreement is reached, the parties are obligated, on the request of any party to the negotiations, to execute a written document embodying the agreed terms). Accordingly, we find that the Agency has not established that Proposal 11 is outside the duty to bargain.

VIII.     Order

      Proposals 2, 4, 7, and the portions of Proposal 6 concerning facial hair and exceptions to the Agency's grooming standards policy for religious and cultural reasons are outside the duty to bargain, and we dismiss the petition with respect to those proposals. Proposals 3, 9, 11, and the portions of Proposal 6 concerning hair, fingernails, rings, necklaces, bracelets, earrings, and tattoos are within the duty to bargain, and the Agency shall, upon request, or as otherwise agreed by the parties, negotiate with the Union over these proposals. [ v62 p285 ]

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Opinion of Chairman Cabaniss, dissenting in part:

      I conclude from the above that Proposal 3 is intended to permit bargaining unit employees to deviate from the restrictions set out in the Agency's grooming standards. To the extent we find that the proposed grooming standards reflect the Agency's determination of its internal security practices, and the Union's proposals are meant to allow employees to deviate from those internal security practices, the proposals would have the effect of negating the Agency's substantive determination of what its internal security practices will be. For that reason, Proposal 3 would appear to not be an appropriate arrangement. And, I also note that the additional proposed intended benefit from Proposal 3 - to provide a clear, specific, standard as to what is or is not acceptable personal appearance - would appear to be slight given the generic qualifications of that standard.

      In examining proposals regarding an agency's internal security rights, the Authority must, based upon how Congress established this right, grant a greater degree of latitude to agencies in assessing these proposals. In that regard, Congress went out of its way to protect an agency's internal rights to a greater extent than other agency rights under § 7106(a), when Congress protected from negotiation an agency's internal security practices, not just an agency's right to make decisions regarding internal security. Once we conclude that a proposal affects an agency's rights under § 7106(a)(1) to determine what internal security practices it wants to use, a proposal that has the effect of negating that proposed practice should have a very tough time being declared as an appropriate arrangement, consistent with our precedent finding such proposals to not be an appropriate arrangement to an agency's proposed exercise of its § 7106 rights. And, in the context of grooming standards as an internal security practice, the practice we would be looking at would seem to be the substantive content of the grooming standard established, whether the standard be general in nature or more specific, as is the case here.

      We have neither the expertise nor the authority to address how well a proposed agency or union action will - or will not - accomplish the proposed purpose of an agency's internal security measure. That difficulty becomes even more of a concern when parties attempt to negotiate the content of dress and personal appearance standards. However, once an agency establishes the requisite connection between its internal security practices and the action(s) it proposes to take, any actions that have the effect of negating an agency's determination become outside the duty to bargain. That is not to say that agencies have a "free pass" on bargaining over its internal security procedures. As was done in NTEU, 61 FLRA 48 (2005) (Member Armendariz dissenting), the Authority has the right to question whether a practice reflects the exercise of an agency's right to determine its internal security practices. Once that connection is found, though, the Authority is not in a position to judge whether male employees' hair should be permitted to be off the ear or allowed to extend one-half inch below the top of the ear, for example. For better or worse, that determination is left to the agency involved.

      Regarding the various aspects of Proposal 6, I believe there are two separate internal security practice considerations at issue here. One is the consistent/uniformity in appearance aspect to these standards, which is found most frequently with such matters as hair and facial hair. This consideration I resolve based upon my views as to what constitutes a consistent or uniform appearance. The other aspect of these various standards has to do with the safety to the employee and others from the regulation of the matter at issue, such as rings. I base this upon my own knowledge of safety considerations as well as any other additional information provided by the parties that may help illuminate any unique aspects of their work environment that would not otherwise be commonly understood.

      I would find outside the duty to bargain the Union's proposals dealing with hair, facial hair, tattoos/brands, and earrings (primarily consistency of appearance), and the proposal dealing with bracelets (safety). I would find negotiable the Union's proposals regarding rings, necklaces, and fingernails as I find no effect on the Agency's internal security practices from these proposals, either as to consistency of appearance or the safety of the employee or others around them. In considering an agency's arguments regarding a proposal's safety considerations, I note an agency presents a stronger argument where it finds that any number of pieces of apparel (such as bracelets) presents a legitimate safety consideration, as opposed to where an agency is believes that some number of items (such as rings and necklaces) do not present a legitimate safety consideration.

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Footnote # 1 for 62 FLRA No. 51 - Authority's Decision

   The separate opinion of Chairman Cabaniss is set forth at the end of this decision.

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Footnote # 2 for 62 FLRA No. 51 - Authority's Decision

   The proposals are numbered 2, 3, 4, 6, 7, 8, 9, 10, and 11 according to the Union's numbering scheme. The Agency withdrew its allegation of nonnegotiability with respect to Proposal 8 and the Union withdrew its petition as to Proposal 10. See Statement of Position at 21; Union Response (Response) at 41. Accordingly, these proposals will not be addressed. In addition, as the Agency did not address the portion of Proposal 6 entitled "Watches," we do not consider that portion. See, e.g., AFGE, Local 2031, 56 FLRA 32, 32 n.3 (2000) (Chairman Wasserman concurring and Member Segal dissenting on other grounds).

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Footnote # 3 for 62 FLRA No. 51 - Authority's Decision

   Section 2424.30(a) provides, in relevant part, that:

[W]here an exclusive representative files . . . a grievance alleging an unfair labor practice under the parties negotiated grievance procedure, and the . . . grievance concerns issues directly related to the petition for review filed pursuant to this part, the Authority will dismiss the petition for review. The dismissal will be without prejudice to the right of the exclusive representative to refile the petition for review after the . . . grievance has been resolved administratively, including resolution pursuant to an arbitration award that has become final and binding.

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Footnote # 4 for 62 FLRA No. 51 - Authority's Decision

   The Arbitrator also rejected other Agency claims, noting that the Agency disputed the negotiability of some, but not all, of the proposals made by the Union. The Arbitrator noted that a negotiability appeal was pending before the Authority and "decline[d]" to resolve the negotiability of proposals pending in that appeal. Award at 20.

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Footnote # 5 for 62 FLRA No. 51 - Authority's Decision

   As relevant here, a "[n]egotiability dispute" is defined in § 2424.2(c) of the Authority's Regulations as a disagreement "concerning the legality of a proposal or provision." A "[b]argaining obligation dispute" is defined in § 2424.2(a) as a disagreement "concerning whether, in the specific circumstances involved in a particular case, the parties are obligated to bargain over a proposal that otherwise may be negotiable."

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Footnote # 6 for 62 FLRA No. 51 - Authority's Decision

   Moreover, because the bargaining obligation issues have been resolved in NTEU, we have no need to resolve them here.

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Footnote # 7 for 62 FLRA No. 51 - Authority's Decision

   Proposal 4 is as modified at the Post-Petition Conference. See Post-Petition Conference Report at 2-3.

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Footnote # 8 for 62 FLRA No. 51 - Authority's Decision

   As Proposal 3 is expressly limited to the time that officers are on duty, we do not address what, if any, requirements exist when officers are off-duty but are still in uniform. See SOP, Exhibit 9 at 1 (uniform may be worn while officers travel to and from the work place).

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Footnote # 9 for 62 FLRA No. 51 - Authority's Decision

   The Union does not claim that the proposals are electively negotiable under § 7106(b)(1) of the Statute.

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Footnote # 10 for 62 FLRA No. 51 - Authority's Decision

   This analytical framework also applies to the resolution of the parties' claims regarding Proposal 6.

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Footnote # 11 for 62 FLRA No. 51 - Authority's Decision

   Consistent with this finding, it is unnecessary to address the Agency's contention that Proposal 2 also excessively interferes with its right to determine the means of performing work.

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Footnote # 12 for 62 FLRA No. 51 - Authority's Decision

   Consistent with this finding, it is unnecessary to address the Agency's contention that Proposal 4 also excessively interferes with its right to determine the means of performing work.

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Footnote # 13 for 62 FLRA No. 51 - Authority's Decision

   We note that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. See 42 U.S.C. § 2000e-1(a). In enforcing this law, courts and the Equal Employment Opportunity Commission have held that an employer is not required to accommodate an employee's bona fide religious practice if such practice would impair workplace safety. See Bhatia v. Chevron, U.S.A., Inc., 734 F.2d 1382, 1383-84 (9^th Cir. 1984); Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 521 (6^th Cir. 1975); Joyner v. Lawrence Garrett, Sec., Dep't of the Navy, 1989 WL 609549 at 4 (EEOC) (1989).

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Footnote # 14 for 62 FLRA No. 51 - Authority's Decision

   Consistent with this finding, it is unnecessary to address the Agency's contention that this portion of Proposal 6 also excessively interferes with its right to determine the means of performing work.

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Footnote # 15 for 62 FLRA No. 51 - Authority's Decision

   Consistent with this finding, it is unnecessary to address the Agency's contention that this portion of Proposal 6 also excessively interferes with its right to determine the means of performing work.

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Footnote # 16 for 62 FLRA No. 51 - Authority's Decision

   In a memorandum of understanding between the Agency and the National Immigration and Naturalization Service Council, the agency and the union agreed that "[o]fficers may wear no more than a total of three rings on a total of two hands. Wedding rings (wedding band, engagement ring and /or wedding/engagement ring combination) are authorized for wear." Response, Exhibit 14 at 5.

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Footnote # 17 for 62 FLRA No. 51 - Authority's Decision

   The Agency distinguishes decisions involving the rights to direct and discipline employees, but does not contend that Proposal 7 is inconsistent with those rights. Insofar as the Agency's argument is construed as raising those rights, we reject it as a bare assertion. See AFGE, Nat'l Council of Field Labor Locals, Local 2139, 57 FLRA 292, 295 n.7 (2001) (Member Wasserman dissenting on other grounds).

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Footnote # 18 for 62 FLRA No. 51 - Authority's Decision

   As the Union notes, the Authority previously found a similar provision negotiable under § 7106(b)(3). See NTEU, Chapter 243, 49 FLRA 176, 179-186 (1994) (Member Armendariz concurring). However, the Union's reliance on this decision is misplaced because the decision did not address the wording precluding the agency from sending employees home.