March 25, 2008
Last week, a mutually selected arbitrator determined in the attached decision that CBP committed a Prohibited Personnel Practice by violating merit system principles, violated the United States Code, the Code of Federal Regulations, and its own commitments as set forth in the parties’ National Agreement when it implemented its Personal Appearance Standards (grooming standards or PAS) for uniformed employees. Among his remedies, the arbitrator ordered that CBP rescind the grooming standards and return to the status quo ante in terms of the grooming standards it can require for such employees. The arbitrator’s Opinion and Award tracks the argument that NTEU has been making and which impacted employees have been painfully aware of for the last four years: there is absolutely no connection between the insulting grooming standards and the ability of uniformed employees to pursue the many important CBP missions on behalf of the United States public.
Specifically, the arbitrator found that CBP had failed in its legal requirement to conduct a “job analysis” of the grooming standards because such standards were an “employment practice” used by CBP as a “qualification standard” within the meaning of 5 CFR 300.101. Such a job analysis would determine whether there was a “rational relationship” between the grooming standards and the employees’ performance for the agency. Without such a job analysis, CBP was found to have been using nonmerit factors as a condition of employment. Stated differently, CBP has yet to establish that it needs to regulate the length of an officer’s fingernails in order to prevent terrorists from harming the United States.
Rather than uphold the law, CBP has known since at least October 2005 that it implemented its grooming standards in violation of law when this finding was made by a different mutually selected arbitrator. Even when that arbitration decision was upheld by the Federal Labor Relations Authority (FLRA) in December 2007, the last appeal available to CBP, it still refused to follow the law by rescinding the grooming standards. Rather, in classic Orwellian doublespeak, CBP informed NTEU that to follow the law would be “operationally problematic,” “administratively challenging,” and “would create disruption and distraction for employees” to rescind the grooming standards. And, in a concluding coda that would be laughable if it were not so sad, CBP wrote that it made this decision because of concerns about employee morale.
Of course, you have known since CBP unilaterally implemented the standards in the fall of 2004 that its supportive rationale was, to put it kindly, weak. You may recall that CBP argued that the very safety of the nation was at risk if the grooming standards were not implemented because they were necessary to improve employee morale, promote esprit de corps, bolster employee self- confidence, and contribute to employee safety. As to employee safety, in an assertion to the FLRA, CBP represented that male uniformed employees could not be permitted to grow facial hair because they would need to use respirators in the event of an emergency. Over three years later, CBP still has no respirator program and has yet to respond to NTEU proposals on the subject.
As discussed above, one arbitrator, sustained on appeal, determined that the PAS were illegally implemented because NTEU was not afforded its right to bargain while a second arbitrator has just found that the required legal job analysis was never conducted. And, as to the assertion that the grooming standards were based on “careful thought, analysis and research,” both arbitration decisions noted:
The agency derived PAS from the standards in place for a variety of law enforcement agencies and not, from internal or external studies as to the need for the standards or as to the health, safety, or security consequences of not having the standards in place. In response to the union’s information request for the information on which the agency relied in crafting the PAS, the agency disclaimed any health, safety, or security data. The agency cited no studies, no surveys, either conducted inside the agency or gathered from outside. (emphasis added).
The derivative and generic assertions of health, safety, and/or security advantages of aspects of PAS which the agency attributed to the law enforcement agencies from which it derived practices are not only conclusionary and unsupported, but are contradicted by the agency’s earlier assertions that it neither possessed nor relied on such data.
The irony concerning the implementation of PAS is that rather than the mess that CBP has created on this issue, good faith bargaining by the agency could have settled this matter in 2004. At a recent informal bargaining session on the grooming standards, NTEU and CBP explored modified grooming standards and were close to reaching an agreement on most of the standards. And, when combined with NTEU’s suggested approach on respirators that would have permitted employees to grow facial hair while satisfying the parties’ mutual interest in protecting employee safety, CBP could have then focused on the really important issues facing CBP and its employees.
The ball is now in CBP’s court. It can begin its rehabilitation among its employees and comply with the law by rescinding the grooming standards, or it can continue to ignore their legitimate concerns as it has done for the last seven years. As we have shown, NTEU can operate in either environment. I will provide you with further information once CBP decides its response to the arbitrator’s decision.
Please forward your questions, comments, and concerns to your National Field Representative.
Colleen M. Kelley National President
