Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and United States Department of Defense, National Guard Bureau, Kansas National Guard (Agency)

[ v57 p939 ]

57 FLRA No. 200

ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
KANSAS NATIONAL GUARD
(Agency)

0-NG-2618

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

July 24, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal relating to how management officials will address unit employees serving as labor organization representatives (union officials) and other unit employees engaged in labor-management relations matters. The Agency filed a statement of position to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons that follow, we find that the proposal is outside the duty to bargain and dismiss the petition for review.

II.     Proposal

Terms of Address
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." [ v57 p940 ]
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 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, 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."

III.     Meaning of the Proposal

      As clarified at the post-petition conference, the proposal provides that the Agency will address union officials and other unit employees engaged in labor-management relations matters by their civilian title in written and oral communications.

      In its response, the Union clarifies the meaning of the proposal in several respects, none of which are disputed by the Agency. As relevant here, the Union states that paragraphs A and B apply only to communications with labor organization representatives in connection with 5 U.S.C. Chapter 71 matters. In addition, according to the Union, the proposal does not require use of civilian titles, only that the Agency will not refer to military status or rank. In this regard, the Union states that the proposal does not prohibit the use of first names "by mutual consent." Petition for Review at 3. As the proposal specifically requires that the appropriate address "will be Mr., or Mrs., or Ms.," we interpret the Union's clarification to mean that those civilian titles are required unless individuals agree to use first names.

IV.     Positions of the Parties

A.     Agency

      The Agency contends that the proposal is outside the duty to bargain because it directly determines conditions of employment of management officials. In particular, the Agency asserts that the proposal regulates "specific wording to be used or not used" by management officials in performing their labor relations duties. Reply at 10. The Agency also contends that the proposal is contrary to 32 U.S.C. § 709(b)(3), affects the Agency's right to determine the methods and means of performing its work under § 7106(b)(1), and affects a military aspect of unit employees' employment. [n1] 

B.     Union

      The Union asserts that the Agency's argument that the proposal is outside the duty to bargain because it directly determines working conditions of management officials should be rejected because accepting the argument would invalidate all proposals establishing procedures to be observed by management. The Union contends that the working conditions of management officials are not directly determined if those officials are "merely . . . . called upon to implement" a proposal concerning unit employees' conditions of employment. Response at 14.

      The Union contends that the Agency's argument that the proposal violates 32 U.S.C. § 709(b)(3) is based on dissenting opinions that were properly rejected in several Authority decisions, including ACT, Alabama Air Chapter, 57 FLRA 67, 72 (2001). The Union further asserts that the proposal does not affect the Agency's right to determine the methods and means of performing work and does not concern a military condition of employment. [ v57 p941 ]

V.     Preliminary Issue

      The Union contends that each paragraph of the proposal is severable from the rest of the proposal and that within paragraphs C and D, "proposals resulting from deletion" of certain words or phrases contained in these paragraphs "are severable." Petition for Review at 4. In its response, the Union contends that the severable proposals could "stand alone" and present "distinct factual circumstances." Response at 16. The Agency opposes the Union's request for severance because the proposal "still is attempting to negotiate the military conditions of employment" of unit employees. Statement of Position at 6.

      Under § 2424.22(c) of the Authority's Regulations, a union "must support its [severance] request with an explanation of how each severed portion of the proposal . . . may stand alone, and how such severed portion would operate." The Union's explanation set forth above does not demonstrate or show how the proposal, as severed in the many ways the Union has requested, would operate. As such, we deny the Union's request for severance.

VI.     Analysis and Conclusion

The proposal directly determines conditions of employment of management officials.

      Under Authority and judicial precedent, proposals that purport to directly determine the conditions of employment of managers and supervisors are outside the duty to bargain. United States Dep't of the Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d 1434, 1441, 1443 (D.C. Cir. 1992) (Cherry Point); see AFGE, Local 32, 51 FLRA 491, 501 (1995), petition for review denied, 110 F.3d 810 (D.C. Cir. 1997). Proposals that principally relate to the conditions of employment of unit employees are not removed from the mandatory scope of bargaining simply because they indirectly affect non-unit personnel, such as management officials. See IFPTE, Local 49, 52 FLRA 830, 835-36 (1996). The Authority has noted in this regard that "[n]early every bargaining proposal, if accepted, will have some effect on non-unit personnel." AFSCME, Local 2910, 53 FLRA 1334, 1338 (1998).

      In applying this standard, the exact wording of the proposal is critical. For example, in Cherry Point, the court found a proposal that all parking spaces in a particular location be open to "all employees . . . without regards to whether or not they are in the unit" to be outside the duty to bargain, while noting that a proposal that "all parking . . . be reserved for employees in the [bargaining] unit" would be within the duty to bargain. 952 F.2d at 1441, 1444; see also AFSCME, Local 2910, 53 FLRA at 1338 (proposal that a proportionate number of parking spaces be allotted to unit members was negotiable). The Authority has found, on the one hand, that proposals directly determined management officials' conditions of employment (and were, therefore, outside the duty to bargain) where the proposals mandated training for certain supervisors and required an agency to hold supervisors and managers accountable for successful implementation of a particular program. See NFFE, Local 1482, 45 FLRA 640, 644-45 (1992); AFGE, Local 1923, 44 FLRA 1405, 1422-24 (1992). The Authority has also found, on the other hand, that a proposal establishing a methodology for selecting unit employees to serve as backups to absent supervisors did not directly determine management officials' conditions of employment (and was not, therefore, outside the duty to bargain) because, among other things, the proposal did not mandate that management assign supervisory duties to unit employees. See NFFE, Local 1482, 45 FLRA 1132, 1136-38 (1992) (NFFE).

      The proposal here requires management officials to use certain terms -- and prohibits those officials from using other terms -- in addressing unit employees while conducting labor-management relations. That is, the proposal regulates specific words managers may use in conducting labor-management relations aspects of their work. On its face, the proposal plainly establishes a job requirement applying only to management officials and, in this regard, the proposal is not "indirect" in any way. It therefore directly determines the conditions of employment of management officials.

      The Union asserts that if the proposal is outside the duty to bargain because it directly determines the conditions of employment of management personnel, then all proposals establishing procedures to be observed by management would be outside the duty to bargain. However, the Authority's decision in NFFE, 45 FLRA at 1136-37, discussed above, demonstrates that this assertion is not correct. As the Authority has clearly recognized, "[n]early every bargaining proposal, if accepted, will have some effect on non-unit personnel," and that this fact does not automatically render a proposal outside the duty to bargain. AFSCME, Local 2910, 53 FLRA at 1338. In this regard, Cherry Point demonstrates that the precise wording of the proposal controls. Here, the Union constructed its proposal in a manner that directly determines a working condition of management officials, and its broad generalization regarding the implications of finding the proposal outside the duty to bargain provides no basis for reaching a contrary conclusion. [ v57 p942 ]

      Accordingly, we find that the proposal is outside the duty to bargain because it directly determines the conditions of employment of management officials. In view of this, we do not address whether the proposal is contrary to law, see PASS, District No. 6, PASS/NMEBA, 54 FLRA 1130, 1136 (1998), addresses matters concerning the methods and means of performing work, or concerns a military condition of employment. [n2] 

VII.     Order

      The petition for review is dismissed.



Footnote # 1 for 57 FLRA No. 200

   The Union points out that, in its statement of position, the Agency asserted that the proposal is outside the duty to bargain because technicians are military members of the National Guard and military customs and courtesies are required of military members at all times. In its reply, the Agency clarified that these statements are not separate arguments; they simply support its assertion that the proposal concerns a military condition of employment.


Footnote # 2 for 57 FLRA No. 200

   We note that, in AFGE, AFL-CIO, Local 3006, 34 FLRA 816, 820-22 (1990), the Authority found that a proposal precluding management from referring to technicians