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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 ‘‘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 Stat-
3

ute. 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 griev-
4

ance 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. § 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 Union 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 representatives by their civilian titles or by their first names. See id. at

*2, App. 14.

The Guard refused to negotiate over the proposal, declaring 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 labormanagement 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 management officials’’ and falls outside the duty to bargain within

the meaning of Cherry Point. Id.

ACT filed a motion for reconsideration before the Authority, arguing that the Authority had misinterpreted this court’s

decision in Cherry Point. The Authority denied reconsideration. 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 collective 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 employment. 5 U.S.C. § 7102. Management officials and supervisors 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 negotiability determination, because the FLRA purported to interpret 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 administering, 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 decision 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 reviewed 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 bargaining 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 employees in other bargaining units and supervisory personnel.’’

Id. at 1441. The proposals therefore exceeded the representation 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 proposal is nonnegotiable if it ‘‘would govern the working conditions of supervisors and employees in other bargaining

units’’).

Because ‘‘a union is the exclusive representative of employees 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 policies 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 dictating 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 Statute 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 collective 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 capacities 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 substantive conditions of employment of non-unit persons; rather, 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 negotiations 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 negotiations.’’ 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 bargaining 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 proposal in bad faith. Nor can it be said that the proposal would

hinder the bargaining process. To the contrary, by prohibiting references to Union representatives’ subordinate military
9

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. 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 positions 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 negotiable under the literal terms of Cherry Point. 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. 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, management 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 personnel are obligated to conform their behavior during negotiations 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 proposal 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 bargain 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 grievances, 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 minutiae, 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 employment. 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 statutory 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))).