shaw bransford & roth case law update

Appeals Court Vacates FLRA Order to Air Force

After the Air Force appealed a Federal Labor Relations Authority decision and order to bargain collectively with Air Force civilian employees over access to on-base commissaries and exchanges, the United States Court of Appeals for the District of Columbia circuit granted the Air Force’s petition and vacated FLRA’s order.

Eight hundred civilian employees of Luke Air Force Base in Arizona sought access to the base’s commissaries, which sell “reduced-price food and merchandise” to military members, as well as some retirees, dependents, and survivors, and access to the base’s exchanges, which are retail stores, service providers, and food franchises that exist on-base. Under the prior rules, civilian employees could only buy food and beverages if they consumed those items on base. The Air Force filed a “negotiability appeal” with the FLRA, arguing that the proposal was “nonnegotiable because it lacked a connection to employee working conditions.” The FLRA disagreed with the Air Force’s position, and ordered the Air Force to negotiate with the union representing the 800 civilian employees.

After rapid impasse, the matter went before a Panel, which “ordered the parties to participate in mediation-arbitration before an arbitrator. The union revised its proposal at this point to only seek shopping privileges at the “Shopette.” Mediation failed on the limited proposal, and the arbitrator sided with the union, ordering the Air Force to give civilian employees access to the “Shopette.” The Air Force refused to implement the arbitrator’s decision, and the union responded with filing a second negotiability appeal with the FLRA. This time, the Air Force, in addition to its previous argument, argued that the proposal was not a proper subject of bargaining because Title 10 gives the Secretary of Defense “unfettered discretion” over commissaries and exchanges.” Despite the citation to the statute and case law, the FLRA ordered the Air Force to implement the proposal and the arbitrator’s decision. However, one of the FLRA members dissented, stating that “read in its entirety and in its historical context,” Title 10 leaves the question of “authoriz[ing] access to military exchanges…to the sole discretion of the Secretary of Defense. Although the Air Force sought reconsideration by the FLRA, the FLRA denied that request. The Air Force appealed the FLRA’s decision to the Court of Appeals for the District of Columbia. 

The appeals court agreed that Congress “has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges,” though “for reasons that are slightly different from those offered by the Air Force.” The appeals court cited Title 10 to conclude that Congress intended commissaries and exchanges to advance the objectives of recruiting, administering, and maintaining the armed forces, giving the Branch Secretaries authority to decide how best to achieve those objectives, subject “only to direction by the Secretary of Defense.”

The appeals court stated that “[g]iven these legislative directives, we cannot imagine that Congress intended to empower a civilian agency like the Federal Labor Relations Authority to second-guess the military’s judgment about non-military access to commissaries and exchanges.” Citing the Supreme Court decision in Brown v. Gines, 444 U.S. 348 (1980), the appeals court stated that “in construing a statute that touches on matters of internal military governance, like troop morale or discipline, courts must be careful not to circumscribe the authority of military commanders to an extent never intended by Congress.” The appeals court concluded that “by requiring negotiation over the Shoppette proposal, the Authority has similarly second-guesses the Secretary’s judgment in deciding how best to use a military benefit to achieve military purposes.”

The Court noted that although it had previously concluded in a 1989 case that access to a military exchange fell within the duty to bargain, that decision predated Congress’s 2004 enactment of Title 10’s commissary-and-exchange provisions which “vest the Secretary with sole discretion over civilian-employee access to commissaries and exchanges.”

Additionally, the appeals court found that the Authority’s decision had not established the required factual link between Shopette access and employee working conditions. The appeals court stated that “[a]lthough our role in reviewing negotiability determinations is limited, the Authority must find facts to give us something to review. Because it failed to do so in this case, we would grant the Air Force’s petition for review on this ground were we not granting it on the antecedent ground that access to commissaries and exchanges falls outside the scope of collective bargaining.”

For the above stated reasons, the United States Court of Appeals for the District of Columbia Circuit granted the Air Force’s petition for review and vacated the Authority’s order.

Read the full case: United States Department of the Air Force, Luke Air Force Base, Arizona v. Federal Labor Relations Authority.


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: Air Force, FLRA



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