[00:00:01] Speaker 01:
Case number 15-1208, United States Department of the Air Force, Luke Air Force Base, Arizona, Petitioner versus Federal Labor Relations Authority.

[00:00:10] Speaker 01:
Mr. Penick for the petitioner, Mr. Hennegie for the respondent.

[00:00:23] Speaker 02:
Mr. Duck, you can do the privacy one since you like that.

[00:00:27] Speaker 02:
The privacy one that you like.

[00:00:31] Speaker 02:
I'll do this one.

[00:00:32] Speaker 02:
Okay.

[00:00:36] Speaker 02:
Is that the one you want to do anyway?

[00:00:38] Speaker 02:
Yeah, no, that's the one.

[00:00:39] Speaker 02:
Yes.

[00:00:39] Speaker 02:
Okay.

[00:00:49] Speaker 02:
Yes.

[00:00:49] Speaker 02:
Go ahead.

[00:00:51] Speaker 04:
May I place the question?

[00:00:51] Speaker 02:
Judge Ginsburg will be back in a moment.

[00:00:54] Speaker 04:
Thank you, Your Honor.

[00:00:54] Speaker 02:
We will repeat everything for him.

[00:00:58] Speaker 04:
I represent the Air Force in this case.

[00:01:07] Speaker 04:
The case before you presents the question of whether or not the Secretary of Defense has the exclusive authority to operate the chape at Luke Air Force Base.

[00:01:20] Speaker 04:
The case is actually broader than that.

[00:01:22] Speaker 04:
The question that's really before you is whether or not Secretary of Defense has the exclusive authority to operate commissaries and exchanges all over the country and the world.

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and the Secretary of Defense has that authority only by tradition but also because Congress in 2004 the very first time enacted legislation now embodied in section 2481 and 2484 of Title X that specifically defined the exchange system and the commissary system and very specifically gave

[00:01:58] Speaker 04:
the Secretary of Defense, the exclusive right to operate, I have to quote, chapezz, and the entire military resale system.

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That includes commissaries and exchanges.

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The stakes in this case are very, very large.

[00:02:16] Speaker 04:
This may just involve Luke, but let's make no mistake.

[00:02:20] Speaker 04:
This involves every single military base worldwide and the secretary's authority to regulate them.

[00:02:27] Speaker 02:
Why is it that, I'm curious, there's a whole series of cases decided by the authority and by this court involving civilian access to commissaries, right?

[00:02:38] Speaker 04:
There is.

[00:02:39] Speaker 02:
So how come nobody's made this argument before?

[00:02:42] Speaker 04:
Those cases all predate this 2004 legislation that was enacted by Congress and public law won away.

[00:02:49] Speaker 02:
There's nothing after 2004?

[00:02:51] Speaker 04:
No, there is not, Your Honor.

[00:02:54] Speaker 02:
When was our decision in Griffiths?

[00:02:56] Speaker 04:
I'm sorry?

[00:02:56] Speaker 02:
When was our decision in Griffiths?

[00:02:58] Speaker 04:
That was before.

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That was 1988.

[00:03:00] Speaker 02:
All right.

[00:03:01] Speaker 02:
I see.

[00:03:02] Speaker 04:
And Your Honor's decision in 2761 was 1988.

[00:03:04] Speaker 04:
So you didn't think you were under federal law?

[00:03:10] Speaker 04:
I'm sorry?

[00:03:10] Speaker 05:
You think under federal law the agency is foreclosed from allowing this to happen?

[00:03:15] Speaker 05:
No.

[00:03:15] Speaker 05:
If they choose to bargain it, they can, right?

[00:03:18] Speaker 04:
I think the Secretary of Defense has basically the unfettered discretion to decide how to operate those.

[00:03:24] Speaker 04:
To do it or not.

[00:03:25] Speaker 04:
To do it or not.

[00:03:26] Speaker 05:
And to distinguish between different bases, right?

[00:03:29] Speaker 05:
And it's, right now... Because the statute doesn't say anything about that.

[00:03:32] Speaker 04:
What it does give the Secretary of Defense the authority to operate in any way he has, and we know he has exercised that authority because he has issued instructions binding orders on the chain of command, if you will, that directs when civilian, domestic civilian employees may have access to these exchange facilities.

[00:03:52] Speaker 04:
And he has stated in these instructions, orders,

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that they may not in the 50 states of the United States, they may outside the continental United States.

[00:04:03] Speaker 05:
Are these the instructions that you're arguing about, instructions that were not raised below?

[00:04:09] Speaker 05:
They were raised below, Your Honor.

[00:04:10] Speaker 05:
I can't find it.

[00:04:11] Speaker 04:
Well, if you look at the mediator's decision, you'll see a link discussion of these very instructions.

[00:04:17] Speaker 04:
That's 1330.21.

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And the mediator's discussion of the particular subsection involved in this case, 6.5.3.

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They were raised with the authority?

[00:04:25] Speaker 04:
They were raised with the authority.

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The authority itself discussed it.

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in its opinion.

[00:04:30] Speaker 03:
This is the opinion after the mediation?

[00:04:33] Speaker 03:
Yes.

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So would they raise the mediation and then you discuss them and put them before the authority when you came back from the mediation?

[00:04:41] Speaker 03:
Yes, because all the matters that were... And the authority said it was too late?

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Is that right?

[00:04:44] Speaker 03:
I'm sorry, Your Honor.

[00:04:45] Speaker 03:
And the authority said it was too late?

[00:04:47] Speaker 04:
The authority said, and I don't understand this, the authority said that we're asking for a deference to the instructions but didn't cite the instructions.

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But what we asked for in our papers was a deference to the Secretary of Defense's interpretations of these statutory provisions.

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And the only interpretations, the only implementation of these statutory provisions, were the instructions, instructions 1330.21.

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That was ways before the mediator herself

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It's discussed by the mediator's opinion at length, and it is the only thing that the authority had before them.

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And indeed, they discussed these instructions expressly.

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in their opinion, is rejecting the arguments, claiming deference to the Secretary of Defense's authority.

[00:05:35] Speaker 04:
Can you do me a favor?

[00:05:36] Speaker 02:
Go ahead, Dave.

[00:05:38] Speaker 02:
You're relying on Section 2484, right?

[00:05:44] Speaker 02:
And 2481, yes.

[00:05:47] Speaker 02:
It's used as a phrase, exclusive right to operate shopettes, right?

[00:05:52] Speaker 04:
Correct, good.

[00:05:54] Speaker 04:
And that's in context with the, I'm sorry.

[00:05:57] Speaker 02:
No, go ahead.

[00:05:57] Speaker 04:
Well, remember, that phrase, that's in C4 of 2484, was adopted by Congress on the same day it adopted the language, all the language that appears in 2481.

[00:06:08] Speaker 04:
And that language bears all of the red together because they were obviously adopted together.

[00:06:14] Speaker 04:
But 2481 informs the scope of that delegation as well, because for the very first time,

[00:06:21] Speaker 04:
and the history of exchanges, Congress has now defined what the exchanges are and what the military resale system was.

[00:06:29] Speaker 04:
And it has defined them by giving the authority to the Secretary of Defense to operate it for a very specific class of beneficiaries, all of whom exclude domestic.

[00:06:38] Speaker 02:
Well, are you suggesting that because

[00:06:48] Speaker 02:
Because this section that lists who the stores can sell to, it lists members of the uniformed services on active duty, members of the uniformed service entitled retirement pay, dependents.

[00:07:06] Speaker 02:
So is it your theory that – and it doesn't list civilians, right?

[00:07:11] Speaker 02:
That's your point.

[00:07:12] Speaker 04:
It does not list any civilians.

[00:07:14] Speaker 02:
So is your point that the Secretary can't?

[00:07:19] Speaker 04:
What Congress said to the Secretary is that you may operate these in terms of what is necessary to carry out the purposes.

[00:07:28] Speaker 04:
The purposes are now set forth for the very first time in Section 2481B, and that is for the benefit of these beneficiaries, these statutorily defined beneficiaries.

[00:07:42] Speaker 02:
I understand you're arguing about exclusive authority.

[00:07:46] Speaker 02:
I got that language, right?

[00:07:47] Speaker 04:
Yes, Your Honor.

[00:07:48] Speaker 02:
It says exclusive authority.

[00:07:49] Speaker 02:
And I assume by that you meant, well, they have exclusive authority, and it's totally up to him about who can use it.

[00:07:57] Speaker 02:
Right?

[00:07:58] Speaker 04:
It is totally up to him.

[00:07:59] Speaker 02:
But now you're telling me that this section, which lists the four beneficiaries, is it limited to that?

[00:08:06] Speaker 04:
No, and I was about to answer that, Your Honor.

[00:08:10] Speaker 04:
The authority that he has is the authority to operate these facilities by reference to military readiness, military recruitment, and military retention.

[00:08:22] Speaker 04:
That's military affairs we're talking about.

[00:08:26] Speaker 04:
He may well have this discretion to – and he has exercised that discretion to allow civilian access to exchanges in foreign bases because that promotes military readiness.

[00:08:40] Speaker 03:
And some domestic bases as well, like I think it's Ellefson Air Force in Alaska.

[00:08:46] Speaker 04:
He has that discretion if it's for hardship.

[00:08:49] Speaker 04:
Actually, each of the branch secretaries have a discretion for severe hardship, an isolated, geographically isolated post.

[00:08:57] Speaker 04:
And that's a non-delegable discretion that each branch has that has to be justified every single year.

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and is strictly construed.

[00:09:05] Speaker 04:
We have the Section 2012.

[00:09:07] Speaker 04:
There was a military regulation that came out.

[00:09:10] Speaker 04:
We cite it in our brief.

[00:09:11] Speaker 04:
It's attached to our brief as a statutory addendum.

[00:09:14] Speaker 04:
It is very strictly construed.

[00:09:16] Speaker 04:
Now, the authority simply ignored all that.

[00:09:19] Speaker 04:
They ignored the language associated with C2 instead of the reply.

[00:09:23] Speaker 02:
I just want to be totally sure.

[00:09:24] Speaker 02:
This is the very first case to arise after passage of that statute?

[00:09:28] Speaker 05:
That's correct.

[00:09:30] Speaker 05:
And that makes a difference.

[00:09:32] Speaker 05:
Can you spend a few moments on your not a condition of employment argument?

[00:09:37] Speaker 05:
As I understand it, you're essentially saying there's no connection between

[00:09:45] Speaker 05:
what's being requested, and there's no relationship between work and what's being requested.

[00:09:53] Speaker 04:
Is that it?

[00:09:54] Speaker 04:
Well, the test that this Court has articulated, and Your Honor did this as well in 2761, and this Court did it in Griffiths, is that there has to be a direct link, or explicit link, is the terminology that the Court has used.

[00:10:07] Speaker 04:
And we think you don't need to get there at all, but even if you assume that there is authority to – that there is an absolute authority that the Secretary of Defense has, you still have to address this particular point as to whether or not this particular proposal – All right, so it's got – I understand all of that.

[00:10:23] Speaker 04:
That's why I wanted to get you – Okay, the point on that is we don't think it is.

[00:10:28] Speaker 03:
This is actually the threshold issue, correct?

[00:10:29] Speaker 04:
Well, it's not the threshold issue, because the threshold issue is whether or not the authority of the Secretary of Defense is absolute.

[00:10:36] Speaker 04:
And thus, you don't ever have to get to the conditions of appointment question at all, because it's contrary to law to force bargaining where the Secretary has complete discretion.

[00:10:46] Speaker 04:
That's this court's cases, and the authority acknowledges that.

[00:10:48] Speaker 03:
But if the court were to say this did not have the requisite connection,

[00:10:53] Speaker 03:
It would not imply anything about the Secretary's authority.

[00:11:01] Speaker 04:
You could set it the other way around and not reach the question of the thought you simply say.

[00:11:05] Speaker 05:
Because if we want to hesitate, we may.

[00:11:08] Speaker 05:
And so we'd like to hear your argument.

[00:11:10] Speaker 04:
I understand.

[00:11:11] Speaker 04:
I'll get to that.

[00:11:11] Speaker 04:
I'm sorry.

[00:11:13] Speaker 02:
No, you go ahead.

[00:11:14] Speaker 04:
I don't think there is the requisite explicit link.

[00:11:17] Speaker 04:
Certainly under the test that this court adopted in 2761, there's no explicit link.

[00:11:22] Speaker 04:
There is no connection between any of the duties.

[00:11:24] Speaker 04:
All this access that they are seeking for is off duty.

[00:11:27] Speaker 04:
That's not controlling, but it's certainly relevant.

[00:11:29] Speaker 05:
It has nothing to do with— Well, there have been cases in which it has occurred.

[00:11:35] Speaker 05:
Not this sort of access.

[00:11:37] Speaker 05:
But that's exactly what I'm asking.

[00:11:38] Speaker 05:
What's different here?

[00:11:39] Speaker 05:
Now, the union offered some explanations why it would be important to the employees, and I thought your position was that that really wasn't in play.

[00:11:49] Speaker 04:
Their position is that they would like it as a matter of convenience.

[00:11:53] Speaker 04:
Right.

[00:11:54] Speaker 04:
And our position is that as a matter of mere convenience and off-duty of employees, it's not sufficient.

[00:12:00] Speaker 04:
Because there's no explicit link between the on-duty employment conditions of employment.

[00:12:05] Speaker 05:
And you're saying the authority in this case, as opposed to Antilles and other cases, didn't make such a finding.

[00:12:11] Speaker 05:
The union has argued it.

[00:12:13] Speaker 04:
But the authorities did not make any connection.

[00:12:17] Speaker 04:
No, the authorities said convenience is sufficient.

[00:12:20] Speaker 04:
We think that's wrong.

[00:12:21] Speaker 02:
Well, no, they didn't.

[00:12:22] Speaker 02:
The way I read the authorities' position is they simply cited previous cases.

[00:12:28] Speaker 04:
Well, none of those cases actually stand for the proposition that convenience is sufficient.

[00:12:32] Speaker 04:
What can be sufficient?

[00:12:35] Speaker 02:
I'm sorry, Your Honor.

[00:12:37] Speaker 04:
I'm sorry.

[00:12:37] Speaker 05:
The fact is, like, I have to work all the time.

[00:12:42] Speaker 05:
I'm on the base, things like that.

[00:12:43] Speaker 05:
And I thought what was happening here was the union tried to raise those, and the authority was not resting on that.

[00:12:50] Speaker 05:
The authority simply seemed to take all the prior cases and say, because they involve

[00:12:56] Speaker 05:
Civilian employees, these are civilian employees, too.

[00:13:00] Speaker 05:
It's convenient.

[00:13:01] Speaker 05:
We'll do it."

[00:13:01] Speaker 05:
And I thought your argument was that it had never been the precedent.

[00:13:05] Speaker 05:
Mere convenience is not the precedent.

[00:13:07] Speaker 05:
That's correct.

[00:13:08] Speaker 05:
That is our argument.

[00:13:09] Speaker 05:
And, in fact, the authority... Why don't you go ahead and make that argument?

[00:13:11] Speaker 05:
Because that's what we're trying to figure out, how you distinct... Because there clearly have been cases where this has been allowed.

[00:13:18] Speaker 04:
Why is this case different?

[00:13:21] Speaker 04:
Your Honor's opinion in 2761 illustrates the point.

[00:13:25] Speaker 04:
That situation involved a cancellation of a picnic by the organization.

[00:13:30] Speaker 04:
The picnic was conducted on agency time paid for by the agency and rewards given to employees.

[00:13:39] Speaker 04:
Those in this case doesn't have any of those.

[00:13:43] Speaker 04:
Those were the explicit links that this court in Griffiths said provided the explicit link.

[00:13:48] Speaker 04:
There's nothing like that here.

[00:13:50] Speaker 04:
If you compare this to the case called Vandenberg, which is an old authority decision, where they thought recreational use to on-base facilities and on-base recreation, then that was not

[00:14:02] Speaker 04:
a condition of employment.

[00:14:04] Speaker 04:
That's what we have here.

[00:14:05] Speaker 04:
What's next?

[00:14:05] Speaker 04:
Access to the firing range, the obstacle course, the exercise facilities?

[00:14:10] Speaker 04:
You can justify anything in terms of convenience to employees, none of which have anything to do with the things for which they were hired.

[00:14:17] Speaker 04:
I return to the point.

[00:14:18] Speaker 04:
These facilities are maintained for purposes of military readiness, recruitment, and retention for the statutory beneficiaries.

[00:14:27] Speaker 04:
None of these individuals fall within that group.

[00:14:30] Speaker 04:
Thank you, Your Honor.

[00:14:40] Speaker 00:
May it please the court, my name is Zachary Henegy.

[00:14:42] Speaker 00:
I'm here on behalf of the Federal Labor Relations Authority.

[00:14:45] Speaker 00:
With me, I have Stephanie Fowles and Solicitor Fred Jacob.

[00:14:48] Speaker 00:
We're also on the brief.

[00:14:51] Speaker 00:
This case involves two issues, working conditions and conditions of work.

[00:14:55] Speaker 00:
We should refer to the authority's decades-long practice of requiring bargaining over access to military exchanges.

[00:15:03] Speaker 00:
In this case, it's a subset of those exchanges, the shop that, it's a convenience store.

[00:15:07] Speaker 00:
The second issue involves the principle that there's a presumption of bargaining over such conditions, and there are only limited circumstances to overcome that presumption.

[00:15:20] Speaker 00:
Under 7117A, to avoid the obligation, the agency needs to show

[00:15:25] Speaker 00:
that bargaining is contrary to federal law, not to its interpretations, not to some regulation, not to some instruction.

[00:15:32] Speaker 00:
Another option is if there's an agent or a government-wide regulation, and that'd be like an OPM regulation.

[00:15:38] Speaker 02:
Well, in this case, we had a statute.

[00:15:40] Speaker 02:
Correct.

[00:15:41] Speaker 02:
So we're not dealing with a regulation, and the Air Force points to the statute which says that, talks about the secretary, the secretary's, quote, exclusive right to operate shopettes.

[00:15:56] Speaker 00:
Correct.

[00:15:57] Speaker 02:
So why doesn't it just kind of, and combined with the fact that the rest of the statute says the purpose of these things is to support the military and military readiness.

[00:16:14] Speaker 02:
And therefore, it's up to the secretary to decide that.

[00:16:17] Speaker 02:
It's exclusive, or in the words of our courts, unfettered discretion.

[00:16:22] Speaker 02:
Therefore, it's not bargainable.

[00:16:25] Speaker 02:
That's their argument.

[00:16:26] Speaker 00:
I understand, Your Honor.

[00:16:27] Speaker 00:
Thank you for pointing to those provisions.

[00:16:29] Speaker 00:
This court, different circuits, have looked for a clear indication from Congress.

[00:16:35] Speaker 00:
And though it's not definitive, they often look for words like, notwithstanding any other provision of law, without regard to any provision of other laws.

[00:16:46] Speaker 02:
But the problem with that for this case is that in every one of those cases that I've found, every case that's cited, every case I've seen,

[00:16:53] Speaker 02:
It's a conflict between a statute that relates to employment in a federal agency and Title V. So it's natural that if a statute is establishing hiring priorities for a particular agency, you would look for something like notwithstanding anything in Title V. But this is the only case I've ever seen where the statute that the government relies on is not an employment statute.

[00:17:20] Speaker 02:
When Congress passed this in 2004 and made clear that this was the exclusive discretion of the secretary and what the purposes of these were, they weren't thinking about Title V, right?

[00:17:35] Speaker 02:
Why would they have thought about it?

[00:17:38] Speaker 02:
If we're talking about access... And besides, excuse me, do you know a case which says, I don't know of any case that says notwithstanding any other law is required for us to find?

[00:17:49] Speaker 00:
Not necessarily required.

[00:17:50] Speaker 00:
Okay, right, okay.

[00:17:51] Speaker 02:
But do you see my point about the difference between this case and all those other ones?

[00:17:54] Speaker 00:
I do, but for the bargaining obligation to think that this will preclude bargaining, something that was established in 1978.

[00:18:00] Speaker 00:
Since 1978, we had a number of cases.

[00:18:04] Speaker 00:
We had local 3295.

[00:18:06] Speaker 00:
That was in 1995, this court's saying.

[00:18:08] Speaker 02:
Well, but we have a new statute.

[00:18:10] Speaker 02:
2004.

[00:18:10] Speaker 02:
We have to figure out what that new statute means.

[00:18:13] Speaker 02:
And Congress could have passed a statute which changed the obligation to bargain by the way

[00:18:19] Speaker 02:
It spoke about the Secretary's, quote, exclusive right to operate.

[00:18:26] Speaker 02:
That's not the point.

[00:18:27] Speaker 02:
The history is irrelevant at this point.

[00:18:29] Speaker 02:
We have a statute.

[00:18:30] Speaker 02:
What does it mean?

[00:18:31] Speaker 00:
A new statute.

[00:18:32] Speaker 02:
Notwithstanding, it doesn't help you because Congress wasn't thinking about it.

[00:18:36] Speaker 00:
I wish they would have been thinking about it, knowing the previous case law on the matter and how these laws play between other laws.

[00:18:43] Speaker 00:
But digging into that statute.

[00:18:45] Speaker 00:
You give too much.

[00:18:46] Speaker 00:
Digging into that statute.

[00:18:48] Speaker 02:
Nobody thinks Congress functions that way.

[00:18:50] Speaker 00:
I want to give them a little bit of credit.

[00:18:53] Speaker 00:
But looking at 2481 under Title X, I won't disagree with you there.

[00:18:58] Speaker 00:
2481, it clearly says that this exchange and the commissary are separate systems.

[00:19:03] Speaker 00:
It's not just the heading, it's in the text of that provision.

[00:19:06] Speaker 02:
Yeah, but the section refers to Chappettes.

[00:19:08] Speaker 02:
It says exclusive authority.

[00:19:11] Speaker 00:
Exclusive right to operate shopettes and in and you're right about the title, but this the language of the section We don't we don't rely on titles anyway, usually Okay, so big again the section says exclusive right to operate shopettes the meat of section 2481 a in the section in the in the text says that these are separate systems the meat in 2484 is talking completely about the commissary system and

[00:19:36] Speaker 00:
a b and c all refer to the commissary and specifically talking about goods to be bought, purchased, and resold.

[00:19:46] Speaker 00:
And what those goods are in 2484b is a laundry list, a shopping list of goods like

[00:19:53] Speaker 00:
meat, potatoes, and various other things.

[00:19:55] Speaker 00:
2484B talks about if the military is going to go off of that shopping list, it's going to need to tell Congress and let them know what's going on.

[00:20:05] Speaker 00:
24C says, notwithstanding B, despite that, if it's one of these smaller, and I would argue commissary stores, a commissary shop, commissary

[00:20:18] Speaker 00:
convenience store, because everything in this section is about the commissary, you're not going to have to worry about going to Congress.

[00:20:25] Speaker 00:
And it doesn't mean that we're going to preclude any other statute that's out there from applying to this area of the law.

[00:20:36] Speaker 02:
Can I ask you about the other issue?

[00:20:39] Speaker 02:
Of course.

[00:20:39] Speaker 02:
I mean, unless my colleagues had a question about that, did you?

[00:20:42] Speaker 02:
No.

[00:20:43] Speaker 02:
So you agree, because you stated quite nicely in your brief, in Griffith and in the FLRA's own decisions, it's very clear that this question of whether something relates to employment is a fact question, right?

[00:20:56] Speaker 02:
Correct.

[00:20:57] Speaker 02:
OK.

[00:20:58] Speaker 02:
So do you have 15?

[00:21:02] Speaker 02:
local 1547, and do you have the two decisions there in front of you?

[00:21:08] Speaker 02:
I want to ask you a question about it.

[00:21:09] Speaker 00:
I do, Your Honor.

[00:21:10] Speaker 02:
Okay, so where, let's start with 1547-2, okay?

[00:21:13] Speaker 02:
Yes, this is the 2014... Yeah, I'm at Joint Appendix 70, okay?

[00:21:22] Speaker 00:
70?

[00:21:22] Speaker 02:
Yeah, where...

[00:21:24] Speaker 02:
It cites 1547-1, and it cites long-standing precedent.

[00:21:32] Speaker 02:
But I don't see any fact-finding in this at all about the conditions here.

[00:21:37] Speaker 02:
There's nothing in there, is there?

[00:21:41] Speaker 02:
They're relying on precedent.

[00:21:43] Speaker 00:
They are relying on precedent.

[00:21:45] Speaker 00:
Make no mistake about that.

[00:21:48] Speaker 02:
That would be OK if 1547-1.

[00:21:52] Speaker 02:
One, did some fact finding, right?

[00:21:56] Speaker 02:
But I don't see it there either.

[00:21:58] Speaker 02:
It's just everything in this opinion is, they say the authority has consistently held that proposals relating to food services, no fact analysis.

[00:22:11] Speaker 02:
Then they reject each argument that the Air Force makes, but the only thing they cite is precedent.

[00:22:17] Speaker 02:
In other words, in fact, it's kind of interesting.

[00:22:19] Speaker 02:
Every paragraph is sort of the same.

[00:22:21] Speaker 02:
They say, OK, they argue that convenience.

[00:22:26] Speaker 02:
They argue convenience.

[00:22:27] Speaker 02:
The answer is the authority has rejected similar arguments in the past.

[00:22:33] Speaker 02:
They say this only involves employee personal choices.

[00:22:39] Speaker 02:
Quote, the authority has previously rejected a similar.

[00:22:42] Speaker 02:
It goes on like six of those, right?

[00:22:43] Speaker 00:
That's right.

[00:22:44] Speaker 02:
So there's no fact-finding in here.

[00:22:46] Speaker 00:
In 2010, that's exactly.

[00:22:47] Speaker 00:
They went through and refuted all of the agency's arguments.

[00:22:51] Speaker 02:
Correct.

[00:22:53] Speaker 02:
So doesn't that just fail the Griffith standard that these are fact-based cases?

[00:23:00] Speaker 02:
In each case, there has to be specific fact-finding about why

[00:23:05] Speaker 02:
access to the particular commissary or shop at is is necessary.

[00:23:12] Speaker 05:
Is work related.

[00:23:13] Speaker 05:
That's what the prior cases say.

[00:23:15] Speaker 05:
The access has to be tied to work related activities and there are no findings here.

[00:23:20] Speaker 00:
There's nothing.

[00:23:20] Speaker 00:
That is the intelligence test.

[00:23:22] Speaker 00:
By the time we get to the 2014 decision, Your Honor, we've gone through a hearing in front of an arbitrator and facts were developed that the authority points to in its background describing the time that it takes to get on and off base, the fact that they only have 30 minutes for lunch,

[00:23:42] Speaker 00:
the ability to deal with the bottlenecks that resulted from the closure of the gates, relying on those type of facts, and looking back to its prior decision as precedent, the authority found that there was a tie to it.

[00:23:55] Speaker 02:
Where in the decision does it rely on that?

[00:23:57] Speaker 02:
In fact, I thought it was told as they didn't rely on those facts.

[00:23:59] Speaker 00:
If you look at Joint Appendix 68, it talks about the shop at being part of the base exchange.

[00:24:05] Speaker 00:
It talks about the employees working various shifts during the weeks and on the weekends.

[00:24:10] Speaker 00:
Many have limited break periods, often having to drive off the base during the breaks to satisfy their shopping needs.

[00:24:17] Speaker 00:
These facts help the authority determine that there is a link to the workplace conditions.

[00:24:23] Speaker 00:
There is something going on at the work situation.

[00:24:25] Speaker 05:
This case just looks completely different than the prior cases where the authority is always relying on specific work related requirements or activities.

[00:24:34] Speaker 05:
to support a decision that they should have access to the shop at.

[00:24:41] Speaker 05:
And here it's just about you saying convenience, and that has never been, the authority has never gone that far before.

[00:24:47] Speaker 05:
You're just talking about convenience.

[00:24:49] Speaker 00:
I don't think that it is just convenience, Your Honor.

[00:24:52] Speaker 05:
I don't know what else it is.

[00:24:54] Speaker 05:
I think the ability for the... Because they have access otherwise while they're at work.

[00:24:59] Speaker 05:
They don't have to leave at lunch.

[00:25:02] Speaker 00:
The authority, they don't.

[00:25:04] Speaker 05:
Civilian employees have access while they're there, right?

[00:25:08] Speaker 00:
Well, they have access to the shopette.

[00:25:10] Speaker 05:
Yes, right.

[00:25:11] Speaker 00:
Absolutely, Your Honor.

[00:25:12] Speaker 00:
But they don't have access to walk around to the next aisle and pick up aspirins if they have a headache during the day.

[00:25:18] Speaker 00:
If they cut their hand during the day while they're at work, to get a Band-Aid at that shopette.

[00:25:23] Speaker 03:
And if they need gas, they can get gas there, right?

[00:25:26] Speaker 00:
They could get gas there as well, Your Honor.

[00:25:28] Speaker 03:
So why is that more than a convenience?

[00:25:30] Speaker 03:
I mean, they can get gas off bases.

[00:25:32] Speaker 00:
They could.

[00:25:33] Speaker 03:
It's just more convenient, correct?

[00:25:35] Speaker 00:
There is a convenience factor for sure, but even in this court in 2761 referenced access to the break room and taking away the conveniences in the break room was a problem and that that was a bargainable subject.

[00:25:53] Speaker 03:
is pretty closely related to the work that precedes and follows the break, right?

[00:26:02] Speaker 03:
I mean, if this were an NLRA case, there'd be no question that that would be a condition of employment.

[00:26:08] Speaker 03:
But we're not talking about that here.

[00:26:09] Speaker 03:
We're talking about off duty access to the employer's stores.

[00:26:14] Speaker 00:
The proposal – and you can see that in the union's argument in front of the impasse's panel, this is about the breaks.

[00:26:21] Speaker 00:
It's about their 30-minute lunch period.

[00:26:23] Speaker 00:
It's about their ability to use the breaks.

[00:26:24] Speaker 03:
Well, that's because you've suggested that that's their only time when they can get something, right?

[00:26:28] Speaker 00:
No, they have ancillary benefits to derive from that as well.

[00:26:32] Speaker 00:
On their way into work, they could stop the shop and the proposal would also include that.

[00:26:35] Speaker 00:
Yeah, exactly.

[00:26:35] Speaker 03:
It's just more convenient to do it on base.

[00:26:38] Speaker 02:
Were you – a few minutes ago, you were talking about the mediator's – the mediator's statements about the benefit this would have for employees, right?

[00:26:48] Speaker 02:
Right.

[00:26:49] Speaker 02:
Okay, but you say in your brief that – you say in your brief – I'm just leaving for my notes here – you say these don't represent the findings – you say these don't represent the findings of the authority, given that the mediator was tasked only with

[00:27:05] Speaker 02:
with determining whether the proposal was in the public interest, not whether it involved conditions of employment.

[00:27:10] Speaker 02:
That's what you say at your brief page 27.

[00:27:13] Speaker 00:
The point there, Your Honor, and I apologize if that was confusing.

[00:27:17] Speaker 02:
It wasn't.

[00:27:17] Speaker 02:
It seems pretty clear to me.

[00:27:19] Speaker 02:
You're saying don't rely on this.

[00:27:21] Speaker 00:
Don't rely on.

[00:27:22] Speaker 00:
That point was don't rely on the reference to the instructions, I believe.

[00:27:32] Speaker 00:
Because the authority in J.A., during appendix 69, lists what happened in front of the arbitrator and talks about working

[00:27:43] Speaker 00:
on base and the convenience and the gate closures due to September 11, looks to those facts in making the link to the working conditions.

[00:27:53] Speaker 02:
See, I still haven't found any place in the opinion where it does anything other.

[00:27:57] Speaker 02:
It recites what happened in the media.

[00:28:00] Speaker 02:
But when it gets around to its analysis, it just talks about prior cases.

[00:28:07] Speaker 00:
It flows from the facts section, Your Honor.

[00:28:10] Speaker 00:
That's the best I can say to you.

[00:28:11] Speaker 02:
Okay.

[00:28:11] Speaker 02:
All right.

[00:28:12] Speaker 02:
I got your argument.

[00:28:13] Speaker 02:
Okay.

[00:28:14] Speaker 02:
You got anything else?

[00:28:15] Speaker 00:
No.

[00:28:16] Speaker 02:
Okay.

[00:28:16] Speaker 00:
Thank you.

[00:28:17] Speaker 00:
Any other questions?

[00:28:17] Speaker 00:
We ask that the petition is dismissed.

[00:28:19] Speaker 00:
Thank you.

[00:28:21] Speaker 02:
Council, have any time left?

[00:28:23] Speaker 02:
Okay.

[00:28:24] Speaker 02:
You can take two minutes.

[00:28:29] Speaker 04:
Thank you, Your Honor.

[00:28:31] Speaker 04:
I'd like to leave the court with this one thought.

[00:28:33] Speaker 04:
There's 800-some odds to the employees at Luke.

[00:28:37] Speaker 04:
and 3,500 active duty military personnel.

[00:28:41] Speaker 04:
At Wright-Patterson, there are 6,100 civilian employees who are a bargaining unit eligible.

[00:28:47] Speaker 04:
There's 5,300 service.

[00:28:55] Speaker 04:
holding were to be sustained, it would mean that those 6,100 civilian employees who now have no access to the exchange facilities would now be competing with every single one of those 5,300 active duty service personnel.

[00:29:11] Speaker 04:
Those service personnel are the intended beneficiaries of the system, not the civilian personnel.

[00:29:19] Speaker 04:
And on a personal note, if I may, I'm retiring from the federal government at the end of this month after 34 years of service.

[00:29:25] Speaker 04:
It's been my great privilege and honor to appear before this court, and I thank you.

[00:29:30] Speaker 02:
Congratulations on your retirement.

[00:29:32] Speaker 02:
Thank you.

[00:29:33] Speaker 02:
We've appreciated your assistance over the years.

[00:29:35] Speaker 04:
Thank you.

[00:29:36] Speaker 02:
Thank you.

[00:29:37] Speaker 02:
Case is submitted.