The Department of Commerce may have the most expensive disposable cups and eating utensils in the country. Not that the items cost that much to buy, but the cost of the resulting litigation for the agency after it stopped providing these items must have been expensive. (Plastic spoons are $12.39 for a box of 500 at Costco.)
For whatever reason, it is not uncommon for minor issues to become a major issue in the federal labor relations program. The disposable utensils now falls within this category of cases.
Like many apparently minor issues that lead to extensive litigation, this case started a few years ago. In this instance, the date was September 26, 2009. The agency signed an agreement with the National Weather Service Employees Organization stating that it would provide these disposable items to employees. The agency originally bought the items but, in 2013, the agency decided it could not use appropriated funds for this purpose.
The union objected and the case went to arbitration. The union apparently prevailed in arbitration so the agency took the issue to the Federal Labor Relations Authority (FLRA) and requested that agency to hold its decision on the exceptions while the agency sought a decision from the General Accountability Office (GAO) on the legality of spending appropriated funds for the disposable dishes and other eating utensils.
In December 2014, the GAO issued a decision concluding that the Department of Commerce may not use appropriated funds to purchase disposable cups, plates, and cutlery for employee use because such items constitute personal expenses of employees. (B-326021, Dec. 23, 2014) The union asked the GAO to reconsider its decision on the disposable cutlery, etc., asserting that GAO lacked jurisdiction to consider this matter as it was subject to arbitration and to resolution by the Federal Labor Relations Authority (FLRA).
On August 6, 2015, GAO issued its final decision (published below). In effect, it still concluded that spending the money for disposable dishes and cutlery was not an essential part of accomplishing a statutory mission of the agency. In short, spending the money for this purpose was not authorized.
GAO concluded that Commerce had no authority to spend money on these items, so the question was not properly before the arbitrator or FLRA. In the words of the GAO: “The law does not allow Commerce to use public funds to provide personal items under this circumstance. The collective bargaining process gives Commerce no mechanism to circumvent this prohibition. Therefore, we decline to reconsider the decision and stand by the holding.”
Labor relations practitioners will not be surprised to know that issues similar to this have come before the courts and the FLRA before.
In a case involving purchasing bottled water, the DC Circuit relied on Comptroller General decisions in concluding that appropriated funds were not available for the purchase of bottled water. Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012). The FLRA had concluded that the Navy was obligated to bargain before ceasing to provide bottled water. The D.C. Circuit noted that appropriations are available for bottled water only if tap water is unavailable or unwholesome, and pointed out that the “line of Comptroller General decisions articulating this rule dates back at least to 1923.” Id., at 1350 (citing 2 Comp. Gen. 776 (1923)).
The GAO stated that the FLRA is entitled to deference when applying the federal labor relations statute but that federal appropriations are not within its area of expertise. The GAO stated in its latest decision that “The D.C. Circuit (stated) it regards the Comptroller General’s decisions as an ‘expert opinion, which we should prudently consider.’ ”
So, after several years of litigation, the issue of whether agencies are not authorized to purchase disposable cutlery, etc. for employees with appropriated funds has now been decided.