Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2003 Decided January 9, 2004
No. 03-1083
ASSOCIATION OF CIVILIAN TECHNICIANS,
WICHITA AIR CAPITOL CHAPTER,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of a Decision and Order of the
Federal Labor Relations Authority
Daniel M. Schember argued the cause and filed the briefs
for petitioner.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, SENTELLE, and HENDERSON, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Edwards.
Concurring opinion filed by Circuit Judge HENDERSON.
Edwards, Circuit Judge: Petitioner Association of Civilian
Technicians, Wichita Air Capitol Chapter (‘‘ACT’’ or ‘‘Un-
ion’’), the collective bargaining agent for a unit of employees
at the Kansas National Guard (‘‘Guard’’), seeks review of a
negotiability determination of the Federal Labor Relations
Authority (‘‘FLRA’’ or ‘‘Authority’’). The Union submitted a
bargaining proposal to the Guard prescribing the manner in
which management representatives should address Union
agents during collective bargaining negotiations.
The Guard refused to bargain over the proposal and ACT
appealed to the Authority. Purporting to apply this court’s
decision in United States Department of the Navy, Naval
Aviation Depot, Cherry Point, N.C. v. FLRA, 952 F.2d 1434
(D.C. Cir. 1992) (‘‘Cherry Point’’), the Authority held that the
proposal was not within the employer’s duty to bargain,
because it determined a condition of employment of manage-
ment officials by dictating the terms they must use when
addressing Union agents. The Union now petitions for re-
view of the Authority’s decision.
Under Cherry Point, a union proposal that purports to
regulate the substantive conditions of employment of manage-
ment officials or other non-unit persons is not negotiable.
The Union’s proposal in this case, however, merely seeks to
establish standards governing interactions between Union
and management representatives during collective bargaining
negotiations and in grievance proceedings. The proposal
does not fix conditions of employment of management offi-
cials. That managers must comply with these procedures
does not render that compliance a substantive condition of
employment of those personnel. Management officials often
must comply with negotiated rules that benefit unit employ-
ees; but such compliance never has been construed to be a
‘‘condition of employment’’ for management under the Stat-
3
ute. Furthermore, even if the proposal is viewed as regulat-
ing a condition of employment within the meaning of Cherry
Point, the only persons whose substantive employment inter-
ests are implicated are the members of the bargaining unit.
We therefore hold that the Union’s proposal is negotiable and
grant the petition for review.
I. BACKGROUND
Petitioner ACT is the exclusive representative of a unit of
employees of the United States Department of Defense,
National Guard Bureau, Kansas National Guard. The mem-
bers of the bargaining unit are designated ‘‘dual status techni-
cians,’’ i.e., civilian employees who must become and remain
military members of the Guard unit in which they are em-
ployed and maintain the military grade specified for their
positions. See 32 U.S.C. § 709 (2000).
During the course of collective bargaining with the Guard,
ACT submitted a proposal specifying how Union officials
should be addressed during collective bargaining negotiations
and in grievance proceedings. The proposal stated:
A. Written communication in connection with any
matter covered by Chapter 71 of Title 5, United
States Code, by the employer to a bargaining unit
employee who is a labor organization representative,
will not, in addressing the labor representative, refer
to military status or rank; the appropriate address
will be ‘‘Mr.’’ or ‘‘Mrs.’’ or ‘‘Ms.’’
B. Oral communication in connection with any mat-
ter covered by Chapter 71 of Title 5, United States
Code, by the employer to a bargaining unit employ-
ee who is a labor organization representative, who is
on official time under 5 U.S.C. § 7131, and who is
not wearing a military uniform, will not, in address-
ing the labor representative, refer to military status
or rank; the appropriate address will be ‘‘Mr.’’ or
‘‘Mrs.’’ or ‘‘Ms.’’
C. Written communication – in connection with a
grievance or arbitration under the negotiated griev-
4
ance procedure; Federal Labor Relations Authority,
Federal Mediation and Conciliation Service, or Fed-
eral Service Impasses Panel proceeding; adverse
action; or other dispute concerning a condition of
employment – by the employer to a bargaining unit
employee who is a party or witness in the matter,
will not, in addressing the employee, refer to mili-
tary status or rank; the appropriate address will be
‘‘Mr.’’ or ‘‘Mrs.’’ or ‘‘Ms.’’
D. Oral communication – in connection with a
grievance or arbitration under the negotiated griev-
ance procedure; Federal Labor Relations Authority,
Federal Mediation and Conciliation Service, or Fed-
eral Service Impasses Panel proceeding; adverse
action; or other dispute concerning a condition of
employment – by the employer to a bargaining unit
employee who is a party or witness in the matter,
who is on official time under 5 U.S.C. § 7131, and
who is not wearing a military uniform, will not, in
addressing the employee, refer to military status or
rank; the appropriate address will be ‘‘Mr.’’ or
‘‘Mrs.’’ or ‘‘Ms.’’
Ass’n of Civilian Technicians, Wichita Air Capitol Chapter,
57 F.L.R.A. 939, at *1-2 (2002), reprinted in Appendix
(‘‘App.’’) 13-14. ACT asserts that the proposal would ensure
that collective bargaining occurs in an atmosphere of equality
by prohibiting management negotiators from addressing Un-
ion officials by their subordinate military ranks. As clarified
by the Union, the proposal prohibits only forms of address
referring to military status or rank; the proposal does not
prohibit Guard officials from addressing Union representa-
tives by their civilian titles or by their first names. See id. at
*2, App. 14.
The Guard refused to negotiate over the proposal, declar-
ing it to be outside its duty to bargain under the Federal
Service Labor–Management Relations Statute, which governs
labor-management relations in the federal public sector.
Specifically, the Guard contended that the proposal regulated
5
a condition of employment of management officials and was
therefore nonnegotiable. ACT appealed the negotiability of
the proposal to the Authority.
The Authority held that the proposal was outside the
Guard’s duty to bargain and dismissed the Union’s petition.
In reaching this decision, the Authority purported to apply
Cherry Point, which holds that union proposals to regulate
the conditions of employment of managers are outside an
employer’s duty to bargain. 952 F.2d at 1441-43. The
Authority concluded that because ACT’s proposal ‘‘regulates
specific words managers may use in conducting labor-
management relations aspects of their work,’’ it ‘‘plainly
establishes a job requirement applying only to management
officials.’’ Ass’n of Civilian Technicians, 57 F.L.R.A. at *4,
App. 17. In the Authority’s view, the proposal therefore
‘‘directly determines the conditions of employment of man-
agement officials’’ and falls outside the duty to bargain within
the meaning of Cherry Point. Id.
ACT filed a motion for reconsideration before the Authori-
ty, arguing that the Authority had misinterpreted this court’s
decision in Cherry Point. The Authority denied reconsidera-
tion. Ass’n of Civilian Technicians, Wichita Air Capitol
Chapter, 58 F.L.R.A. No. 71 (2003), reprinted in App. 25-31.
ACT timely filed this petition for review challenging the
Authority’s decision on the negotiability of the proposal.
II. ANALYSIS
A. The Appropriate Standard of Review
The Federal Service Labor-Management Relations Statute
(‘‘Statute’’), 5 U.S.C. §§ 7101-7135 (2000), establishes a collec-
tive bargaining regime in the federal public sector. See
generally Cherry Point, 952 F.2d at 1438. The Statute
grants federal employees the right to organize and engage in
collective bargaining with respect to conditions of employ-
ment. 5 U.S.C. § 7102. Management officials and supervi-
sors are not ‘‘employees’’ under the Statute, however, so they
are excluded from any recognized bargaining unit. See 5
6
U.S.C. § 7112(b)(1). The Statute requires employer agencies
to bargain in good faith with the agents of unit employees, 5
U.S.C. § 7114(a)(4), (b), and makes the failure to do so an
unfair labor practice, 5 U.S.C. § 7116(a)(5).
The FLRA is authorized under the Statute to determine,
inter alia, the negotiability of contested collective bargaining
proposals. See 5 U.S.C. § 7105; see also Library of Congress
v. FLRA, 699 F.2d 1280, 1284 (D.C. Cir. 1983) (noting that
Congress has delegated authority to FLRA to construe the
Statute and to determine whether a proposal falls within an
employer’s duty to bargain). We therefore ordinarily defer
to the Authority’s reasonable interpretations of the Statute
and its resulting negotiability determinations. See Library of
Congress, 699 F.2d at 1285; see also Overseas Educ. Ass’n v.
FLRA, 827 F.2d 814, 816 (D.C. Cir. 1987).
In this case, no deference is due to the Authority’s negotia-
bility determination, because the FLRA purported to inter-
pret a decision of this court. See Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1085 (D.C. Cir. 2001); United
States Dep’t of Justice v. FLRA, 266 F.3d 1228, 1230 (D.C.
Cir. 2001). Where an agency interprets and applies judicial
precedent, rather than the statute it is charged with adminis-
tering, we review its decision de novo. This is because ‘‘an
agency has no special competence or role in interpreting a
judicial decision.’’ New York v. Shalala, 119 F.3d 175, 180
(2d Cir. 1997).
Even if we were to apply a deferential standard of review,
however, the Authority’s decision in this case would not
survive scrutiny. As we explain below, the Authority’s deci-
sion is not a reasonable one, because it is founded on an
untenable application of the Statute and a misconstruction of
Cherry Point. Therefore, we hold that the Union’s proposal
is within the Guard’s statutory obligation to bargain and
grant the Union’s petition for review.
B. The Negotiability Ruling
The decision in Cherry Point makes it clear that a union
cannot bargain over the conditions of employment of non-unit
7
personnel. See 952 F.2d at 1441-43. In that case, we re-
viewed a decision of the Authority holding that two union
proposals were within the employer’s duty to bargain because
they ‘‘vitally affected’’ the conditions of employment of bar-
gaining unit employees. See id. at 1436. We reversed the
Authority’s ruling, finding that the proposals ‘‘[sought] to
establish and regulate the conditions of employment of em-
ployees in other bargaining units and supervisory personnel.’’
Id. at 1441. The proposals therefore exceeded the represen-
tation rights of the union and were not within the scope of
mandatory bargaining. See id.; see also Am. Fed’n of Gov’t
Employees, Local 32 v. FLRA, 110 F.3d 810, 815 (D.C. Cir.
1997) (‘‘AFGE’’) (explaining that under Cherry Point, a pro-
posal is nonnegotiable if it ‘‘would govern the working condi-
tions of supervisors and employees in other bargaining
units’’).
Because ‘‘a union is the exclusive representative of employ-
ees in the certified or recognized unit, and those employees
only,’’ an employer has no obligation to bargain with a union
over the conditions of employment of employees in another
bargaining unit. Cherry Point, 952 F.2d at 1442. Similarly,
because the Statute excludes supervisors and management
officials from any authorized bargaining unit, ‘‘the same poli-
cies that prevent a union from purporting to regulate the
conditions of employment of persons in other units apply with
equal force to supervisory personnel.’’ Id. (citing 5 U.S.C.
§ 7112(b)(1)). Conversely, under Cherry Point, a union may
negotiate the conditions of employment of its own bargaining
unit employees, even if those conditions affect personnel
outside of that bargaining unit. See AFGE, 110 F.3d at 815;
Cherry Point, 952 F.2d at 1440-41.
The Authority’s decision in this case rests primarily on its
determination that ACT’s proposal ‘‘directly determines’’ the
conditions of employment of supervisory personnel by dictat-
ing the forms of address they may use during negotiations
and is therefore outside the duty to bargain under Cherry
Point. Ass’n of Civilian Technicians, 57 F.L.R.A. at *4-5,
App. 17-18. This analysis fundamentally misapplies the Stat-
ute and misconstrues our decision in Cherry Point. ACT’s
8
proposal in this case relates to the terms of the interactions
between union and management representatives during col-
lective bargaining negotiations and in grievance proceedings.
The clear purpose of the proposal is to ensure that employees
who act as agents for members of the bargaining unit are
treated as equals while serving in their representative capaci-
ties at the bargaining table or in grievance proceedings. The
proposal thus does not come within the proscription of Cherry
Point. The Union here is not seeking to regulate the sub-
stantive conditions of employment of non-unit persons; rath-
er, it is proposing to reach agreement on how the parties’
representatives deal with one another during bargaining and
grievance processing.
The FLRA has long recognized that parties in a collective
bargaining relationship may propose ‘‘ground rules’’ for nego-
tiations or grievance processing and that such proposals fall
within the statutory duty to bargain in good faith. See, e.g.,
375th Combat Support Group, Scott Air Force Base, Ill., 46
F.L.R.A. 640, 665 (1992); Dep’t of Def. Dependents Sch., 14
F.L.R.A. 191, 193 (1984). A proposed ground rule generally
may encompass any ‘‘guide for the conduct of TTT negotia-
tions.’’ Am. Fed’n of Gov’t Employees, 16 F.L.R.A. 602, 613
(1984), remanded on other grounds, 784 F.2d 1131 (D.C. Cir.
1986), and aff’d, 21 F.L.R.A. 786 (1986). And the FLRA
assesses the propriety of such proposals by asking whether
they are offered in good faith and whether they are designed
to further the bargaining process. See United States Dep’t of
the Air Force Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 36 F.L.R.A. 524, 533
(1990).
ACT’s proposal prescribes how Union representatives
should be addressed solely in the context of collective bar-
gaining negotiations and in grievance proceedings. As such,
it is akin to any ordinary ground rules proposal or routine
regulation of negotiation procedures. Neither the Guard nor
the Authority has asserted that the Union offered this pro-
posal in bad faith. Nor can it be said that the proposal would
hinder the bargaining process. To the contrary, by prohibit-
ing references to Union representatives’ subordinate military
9
ranks, the proposal contributes to the equality of the parties’
representatives in collective bargaining and is therefore con-
sistent with a primary goal of the Statute. See, e.g., Am.
Fed’n of Gov’t Employees v. FLRA, 750 F.2d 143, 148 (D.C.
Cir. 1984) (noting the statutory ‘‘goal of equalizing the posi-
tions of labor and management at the bargaining table’’).
Accordingly, the proposal clearly falls within the Guard’s duty
to bargain.
Finally, even if ACT’s proposal is viewed as establishing a
substantive condition of employment, the proposal clearly
relates to a condition of employment of bargaining unit
employees, not their managers. As such, it remains negotia-
ble under the literal terms of Cherry Point. Properly under-
stood, Cherry Point prohibits union proposals that directly
implicate the interests of management officials by regulating
the terms of the employment relationship between managers
or supervisors and their employer. A union that advances
such proposals is inappropriately attempting to bargain on
behalf of individuals it does not represent. Cherry Point
does not, however, prohibit proposals that regulate the condi-
tions of employment of bargaining unit employees merely
because those proposals have ‘‘some effect’’ on managers or
supervisors. AFGE, 110 F.3d at 815.
The proposal here seeks to ensure that the employees’
bargaining agents retain the full appearance of equal status
at the bargaining table and in grievance proceedings. Plain
and simple, this is a beneficial condition of employment for
bargaining unit employees who serve as representatives in
collective bargaining negotiations or in grievance proceedings.
Of course, if the parties adopt the Union’s proposal, manage-
ment officials will be obliged to comply with the terms of the
parties’ agreement. But this is true of any union proposal
that beneficially changes the conditions of employment of
bargaining unit personnel. The fact that management per-
sonnel are obligated to conform their behavior during negoti-
ations to these procedural requirements does not establish a
substantive condition of employment for those personnel.
Such compliance has never been thought to be a ‘‘condition of
employment’’ for management under the Statute. We there-
10
fore hold that the Authority erred in holding that the propos-
al was not negotiable.
III. CONCLUSION
For the reasons noted above, ACT’s petition for review is
granted. The Guard is obligated under the Statute to bar-
gain in good faith with the Union over the proposal specifying
how Union officials should be addressed during collective
bargaining negotiations and in grievance proceedings.
So ordered.
1
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
If you’ll be my bodyguard,
I can be your long lost pal!
I can call you Betty,
And Betty, when you call me,
You can call me Al!
You Can Call Me Al
by Paul Simon
I concur in the majority’s conclusion that, insofar as the
Union’s proposal (to require that management address unit
employees by their civilian titles during labor negotiations)
seeks only to set ‘‘ground rules’’ for negotiations and griev-
ances, it does not regulate a ‘‘condition of employment’’ of
bargaining unit members or of supervisory personnel. The
proposal is therefore negotiable, I suppose; but the wisdom
of negotiating it is a different matter. Where will it end?
Will addressing negotiators by first names be permitted?
Prohibited? Required? What about nicknames? Or tone or
volume of voice? To engage in bargaining over such minuti-
ae, which the majority notes has nothing to do with any
substantive condition of employment, is a waste of everyone’s
time as this litigation manifests.
If the proposal were judged to regulate a substantive
condition of employment of unit employees (a determination
that the Authority did not expressly make but that the
majority posits briefly in its alternative analysis, maj. op. at
9), then I would uphold the FLRA’s determination that the
proposal is nonnegotiable under Cherry Point because it
seeks to regulate the conditions of employment of supervisory
personnel as well. It seems to me that if the manner in
which a bargaining unit member is addressed by a supervisor
is a condition of the member’s employment, then the manner
in which a supervisor is required to address a member must
likewise be deemed a condition of the supervisor’s employ-
ment. At a minimum the Authority could reasonably reach
2
the conclusion that it is a condition of employment within the
meaning of 5 U.S.C. § 7103(a)(13).*
* I disagree with the majority’s position that ‘‘no deference is due
to the Authority’s negotiability determination, because the FLRA
purported to interpret a decision of this court,’’ maj. op. at 6. The
Authority’s decision below construed not only the court’s decision in
Cherry Point but also the statutory term ‘‘condition of employment’’
in section 7103(a)(13). The Authority’s interpretation of the statu-
tory language is due deference. See U.S. Dep’t of Air Force v.
FLRA, 949 F.2d 475, 480 (D.C. Cir. 1991) (‘‘Congress explicitly
entrusted to FLRA responsibility to resolve ‘issues relating to the
duty to bargain in good faith under § 7117(c),’ 5 U.S.C.
§ 7105(a)(2)(E), and specified that the Authority’s decisions should
be reversed only when arbitrary or capriciousTTTT In keeping with
the Statute’s text, and corresponding Supreme Court instructions,
this court upholds the Authority’s negotiability conclusions when
they are ‘reasonable and defensible.’ ’’) (quoting Dep’t of Treasury,
Bureau of Alcohol, Tobacco, & Firearms v. FLRA, 857 F.2d 819,
821 (D.C. Cir. 1988) (quoting Bureau of Alcohol, Tobacco, and
Firearms v. FLRA, 464 U.S. 89, 97(1983); citing Chevron U.S.A.
Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844
(1984))).