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Association of Civilian Technicians, Wichita Air Capitol Chapter v. Federal Labor Relations Authority

January 09, 2004

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

Before: Edwards, Sentelle, and Henderson, Circuit Judges.

The opinion of the court was delivered by: Edwards, Circuit Judge

Argued November 21, 2003

Concurring opinion filed by Circuit Judge HENDERSON.

Petitioner Association of Civilian Technicians, Wichita Air Capitol Chapter ("ACT" or "Union"), 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 management officials by dictating the terms they must use when addressing Union agents. The Union now petitions for review of the Authority's 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. Furthermore, even if the proposal is viewed as regulating a condition of employment within the meaning of Cherry Point, the only persons whose substantive employment interests 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 members of the bargaining unit are designated "dual status technicians," i.e., civilian employees who must become and remain military members of the Guard unit in which they are employed 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 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, who is on official time under 5 U.S.C. § 7131, and who is not wearing a military uniform, will not, in addressing 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 grievence procedure; Federal Labor Relations Authority, Federal Mediation and Conciliation Service, or Federal 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 military 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 grievance procedure; Federal Labor Relations Authority, Federal Mediation and Conciliation Service, or Federal 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. ยง 7131, and who is not wearing a military uniform, ...


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