Association of Civilian Technicians, Wichita Air Capitol Chapter v. Federal Labor Relations Authority, No. 03-1083 (D.C. Cir. January 9, 2004)

The D.C. Circuit reversed the Authority's holding, in 57 FLRA No. 200, that a proposal prescribing how management representatives are to address union representatives during collective bargaining negotiations and in grievance proceedings is outside the duty to bargain because it directly determines the conditions of employment of management officials. The court held that the proposal doesn't deal with a substantive condition of employment of non-unit employees, but is more akin to ground rules. Even if viewed as establishing a substantive condition of employment, the court (Judge Henderson dissenting) held that "the proposal clearly relates to a condition of employment of bargaining unit employees, not their managers."

The Authority, relying on Naval Aviation Depot, Cherry Point, N.C. v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point), found that a proposal requiring the Agency to address union officials and other unit employees engaged in labor-management relations matters by their civilian title in written and oral communications is outside the duty to bargain because it directly determines the conditions of employment of management officials.

In reversing the Authority, the court said that FLRA's analysis misconstrued the court's Cherry Point decision.

Under Cherry Point, a union proposal that purports to regulate the substantive conditions of employment of management 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 officials. 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 employees; but such compliance never has been construed to be a "condition of employment" for management under the Statute.

The court, noting that the proposal applied only to collective bargaining negotiations and grievance proceedings, said that it "is akin to any ordinary ground rules proposal or routine regulation of negotiation procedures. . . . [B]y prohibiting references to Union representatives' subordinate military ranks, the proposal contributes to the equality of the parties' representatives in collective bargaining and is therefore consistent with a primary goal of the Statute."

Even if one were to view the proposal as establishing a substantive condition of employment, the court found that the proposal dealt, not with a condition of employment of managers, but rather of bargaining unit employees, and therefore is "negotiable under the literal terms of Cherry Point." In the court's view, the proposal seeks to establish a beneficial condition of employment for unit employees acting as union representatives by ensuring that "the employees' bargaining agents retain the full appearance of equal status at the bargaining table and in grievance proceedings."

The court elaborated on the meaning of its Cherry Point decision as follows:

Properly understood, 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 conditions of employment of bargaining unit employees merely because those proposals have "some effect" on managers or supervisors.

Judge Henderson concurred with the majority's decision only to the extent one regarded the disputed proposal as establishing ground rules for negotiations and grievances. If, on the other hand, the proposal is regarded as a substantive condition of employment of unit employees, she would uphold FLRA's determination that the proposal is nonnegotiable. "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 employment."