New FLRA Policy Announced: Everything’s Negotiable!

In what must have been a big surprise to the Department of Defense, the Federal Labor Relations Authority finds civilian access to commissaries and exchanges to be a negotiable working condition. The Author suggests a political payback may be involved in the decision. You be the judge.

In the forty years since the Federal Labor Relations Authority (FLRA) and its predecessor have been making negotiability decisions, the application of military benefits to civilian workers has either been off the table completely or severely limited.

Historically, the Defense Department (DOD) and the Congress have reserved access to exchanges and commissaries to military members, their spouses and minor children and to military retirees. Exceptions were made in hardship locations with very limited commercial access to food or other goods or when civilian employees were in travel status and staying in government quarters.

In 64 FLRA No. 118,  the FLRA decided, despite what the law says and what courts have held, to strike out into new territory. The two members supporting this venture into the ozone lay out a new definition of “conditions of employment”:

“…the Authority determines whether: (1) the proposal pertains to bargaining-unit employees; and (2) “the record establishes that there is a direct con­nection between the proposal and the work situation or employment relationship of bargaining unit employees.” To identify a direct connection, the Authority “inquires into the extent and nature of the effect of the [proposal] on working conditions[,]” determining whether there is a “link” or “nexus” between the subject matter of the proposal and unit members’ work situation or employment relationship.”

In this case, they find:

“…the Authority has consistently held that proposals related to the provision of food ser­vices at the workplace concern conditions of employ­ment and are, therefore, within the scope of mandatory bargaining.”

They follow this up with:

“As there is no dispute that sales of edible products – i.e., one example of “food services” – occur at the commissary, the BX, and various satellite stores (the facilities), the above-cited precedent supports a conclusion that Pro­posals 1 and 2 concern conditions of employment of unit employees.”

Ignoring the previous precedent involving limited rights to purchase such products in Puerto Rico, the fearless duo has decided, on their own, that it doesn’t matter that there are many other “food service” providers available both on and off base. In an amazing turn of logic, they proceed to hold,

“Therefore, the mere fact that the proposals may not implicate three particular factors that the Authority has relied on to find other proposals negotiable does not establish that Proposals 1 and 2 are outside the duty to bargain.”

This is not just a Department of Defense case. There are many other situations affecting the Federal workforce that could be covered by the above fuzzy logic. Think for a minute about what Federal agencies do and how this FLRA could make their work the subject of negotiations.

How about expedited tax refunds for IRS employees? Or maybe better, waiver of fees for late filings? If you work at the Bureau of Public Debt, how about higher interests rates? Hey GSA, how about providing that government truck to employees for weekend moves? Bureau of Prisons, will the convicts be repairing and refinishing your bargaining unit employees’ furniture? FEMA, got a trailer or two sitting around you can lend for a summer outing? DVA, plan on bringing the meal cart to the employee’s workstations.

By now some of you are saying Bob is overreacting, again. Remember, unless the law forbids it, FLRA now thinks it’s discretionary with the Agency head.

During the Bush years, DOD and DHS were well on the way to creating their own, more Agency specific substitutes for the FLRA before getting stopped by a DC judge. One can only wonder whether the current foray into DOD’s business is a payback for that attempt or a warning not to try such funny business in the future. You be the judge.

Fortunately the courts including the Supreme Court recognize, as one circuit court judge opined, that the FLRA is, after all, a “minor administrative body.”   My bet is that either one of the courts will call FLRA’s so called “logic” to task or perhaps the Armed Services Committees of House and Senate might decide to legislate a fix or even take a swipe at this gnat.

As that great modern philosopher, Yogi Berra, said and Lenny Kravitz put to music, “it ain’t over ‘til it’s over”. This one is long from over. Many in this nation, during these tight economic times, consider Federal employees quite privileged. The idea of Feds tapping into privileges designed to benefit our fighting men and women for no other reason than they are in a bargaining unit may get some real political attention from both sides of the aisle.

But since the current FLRA Chair told us early on that she was abandoning neutrality to lead the Obama Administrations labor relations policies, who’s surprised that the Authority is making political decisions?

As an aside, did you notice that the Chair’s face and commitment to the President no longer rotates at the top of the first page of the FLRA website. Has something changed? Maybe it was too blatant for the folks at 1600 PA, 725 17th, or 1900 E? Did it look too much like a facebook page, after all? You decide.

One of the messages, that still rotates, tells us to engage the FLRA by writing to them at, if we:

  • Have ideas about what kind of training or other assistance would result in better labor-management relations in your workplace or the government?
  • Have ideas about what improvements can be made in the Federal labor-management relations program that will improve your agency’s ability to fulfill its statutory mission?
  • Have a success story — or not — that you want to share and you think will benefit the labor-management relations community and the FLRA to know about?

You might want to do so from your home email address and please have some really good suggestions for the second bullet above.

As always, and in particular here, everything of opinion above represents my views and not those of anyone who I work with or for.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.