No. 98-1810 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______________________________ GRANITE STATE CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ ON PETITION FOR REVIEW OF A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JUDITH A. HAGLEY Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 I. Nature of the Case 2 II. Background 3 A. The Federal Service Labor-Management Relations Statute 3 B. Official Time 4 C. Prior Authority Cases on Official Time and Lobbying 6 III. The Authority's Decision 7 STANDARD OF REVIEW 11 SUMMARY OF ARGUMENT 12 ARGUMENT 14 THE AUTHORITY PROPERLY DETERMINED THAT A PROPOSAL FOR OFFICIAL TIME FOR LOBBYING BY UNION REPRESENTATIVES IS NOT WITHIN AN AGENCY'S DUTY TO BARGAIN BECAUSE THE PROPOSAL CONFLICTS WITH A STATUTE THAT EXPRESSLY PROHIBITS, WITHOUT EXCEPTION, ANY USE OF APPROPRIATED FUNDS FOR LOBBYING 14 A. The Plain Meaning of Section 8015 Prohibits the Use of DOD Appropriations for the Lobbying Purposes Sought by the Union 15 B. Rules of Statutory Construction Support the Authority's Decision 15 C. The Union's Arguments as to Why the Appropriations Act May Be Ignored in this Case Lack Legal and Logical Support 18 1. The use of official time involves an expenditure of federal funds 19 2. There has been no repeal by implication and reconciliation is unnecessary 21 3. Section 8015 prevails over section 7131(d) on the issue of use of appropriated funds for official time for lobbying activities 24 CONCLUSION 26 ADDENDUM Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) and other pertinent regulations A-1 TABLE OF AUTHORITIES AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 11 BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) 17 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 3, 4, 11, 20 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 11 Connecticut Nat. Bank v. Germain, 503 U.S. 249 (1992) 16 David v. U.S., 820 F.2d 1038 (9th Cir. 1987) 19 Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1 (1st Cir. 1988) 3, 11 Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 12 Natural Resources Defense Council, Inc. v. United States Env. Protection Agency, 824 F.2d 1258 (1st Cir. 1987) 25 Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 11 Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979) 23 Pritzker v. Yari, 42 F.3d 53 (1st Cir. 1994) 16 Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) 21 Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) 23 United States v. Dickerson, 310 U.S. 554 (1940) 23 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 16 United States v. Will, 449 U.S. 200 (1980) 23 United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96 (1st Cir. 1994) 16 West Point Elementary Sch. Teachers Ass'n v. FLRA, 855 F.2d 936 (2d Cir. 1988) 12 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY Department of Health & Human Servs., Social Security Admin. and AFGE, Local 3231, 11 FLRA 7 (1983) 6 NFFE, Local 122 and U.S. Dep't of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993) 6 NTEU, Chapter 243 and U.S. Dep't of Commerce, Patent & Trademark Office, 49 FLRA 176 (1994) 6 NFFE Local 2015 & U.S. Dep't of the Interior Nat'l Park Servs., 41 FLRA 1158 (1991) 5, 14, 15, 22 NTEU and U.S. Dep't of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339 (1992) 4 U.S. Dep't of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and NFFE, Local 259, 52 FLRA 920 (1997) 6, 7, 25 FEDERAL STATUTES Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 1 5 U.S.C. § 7102(1) 5 5 U.S.C. § 7105(a)(1) 3 5 U.S.C. § 7105(a)(2) 3 5 U.S.C. § 7105(a)(2)(G) 1 5 U.S.C. § 7105(a)(2)(I) 3 5 U.S.C. § 7116(a)(1) 3, 4, 11 5 U.S.C. § 7116(a)(5) 3, 4, 11 5 U.S.C. § 7117(a)(1) 2, 14, 15, 22 5 U.S.C. § 7123(a) 1, 2 5 U.S.C. § 7123(c) 11, 18 5 U.S.C. § 7131 4 5 U.S.C. § 7131(a) 4, 5 5 U.S.C. § 7131(b) 5, 20 5 U.S.C. § 7131(c) 4, 5 5 U.S.C. § 7131(d) passim 5 U.S.C. § 706(2)(A) 11 5 U.S.C. § 5551 (1988 & Supp II 1996) 19 18 U.S.C. § 1913 passim Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1214 19, 25 Department of Defense Appropriations Act, 1996, Pub. L. No. 104-61, §§ 8001, 8015, 109 Stat. 636 (1996) passim CODE OF FEDERAL REGULATIONS 5 C.F.R. § 551.424(b) 19 5 C.F.R. § 734.306 21 5 C.F.R. § 2429.1(a) 7 MISCELLANEOUS General Accounting Office, Principles of Federal Appropriations Law, Chapter 4 (2d ed. 1991) 10 5 U.S. Op. Off. Legal Counsel 180 (1981) 23 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 98-1810 _______________________________ GRANITE STATE CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ ON PETITION FOR REVIEW OF A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY STATEMENT OF JURISDICTION The final decision and order under review in this case was issued by the Federal Labor Relations Authority ("FLRA" or "Authority") in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire and Granite State Chapter, Association of Civilian Technicians, 54 FLRA (No. 38) 301 (May 29, 1998) (Granite State); Joint Appendix (JA) 4-18. The Authority exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[1] This Court has jurisdiction to review the Authority's decisions and orders pursuant to section 7123(a) of the Statute. Petitioner Granite State Chapter, Association of Civilian Technicians ("petitioner" or "the union") filed a petition for review within the 60-day time limit provided by section 7123(a) of the Statute. STATEMENT OF THE ISSUE Whether the Authority properly determined that a proposal for official time for lobbying by union representatives is not within an agency's duty to bargain because the proposal conflicts with a statute that expressly prohibits, without exception, any use of appropriated funds for lobbying. STATEMENT OF THE CASE I. Nature of the Case This case arose as an unfair labor practice (ULP) proceeding concerning allegations that the Office of the Adjutant General, New Hampshire National Guard ("agency" or "National Guard") refused to bargain in good faith over a union proposal for official time for lobbying. JA 4. The National Guard believed that the proposal conflicts with several statutes that restrict the use of federal funds for lobbying and similar activities, specifically 18 U.S.C. § 1913 and both section 8001 and section 8015 of the 1996 Department of Defense (DOD) Appropriations Act. Because an agency's duty to bargain in good faith does not extend to proposals insofar as they are "inconsistent with any Federal law or any Government-wide rule or regulation," 5 U.S.C. § 7117(a)(1), the National Guard deemed the union's proposal nonnegotiable. JA 5-7. The union filed a charge with the FLRA's General Counsel, who issued a complaint. The complaint alleged that the agency violated section 7116(a) (1) and (5) of the Statute. JA 4-5. The Authority concluded that the agency did not commit the unfair labor practice alleged and, accordingly, dismissed the complaint. JA 16. II. Background A. The Federal Service Labor-Management Relations Statute The Statute governs labor-management relations in the federal service. Under the Statute, the responsibilities of the Federal Labor Relations Authority (Authority) include adjudicating unfair labor practice complaints, negotiability disputes, bargaining unit and representation election matters, and resolving exceptions to arbitration awards. See 5 U.S.C. § 7105(a)(1), (2); see also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983) (BATF). The Authority thus ensures compliance with the statutory rights and obligations of federal employees, labor organizations that represent such federal employees, and federal agencies. The Authority is further empowered to take such actions as are necessary and appropriate to effectively administer the Statute's provisions. See 5 U.S.C. § 7105(a)(2)(I); BATF, 464 U.S. at 92-93. The Authority performs a role analogous to that of the National Labor Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93; Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1, 2 (1st Cir. 1988). Congress intended the Authority, like the NLRB, "to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the [Statute]." BATF, 464 U.S. at 97. The Statute makes it a ULP for a federal agency employer to, among other things, "interfere with, restrain, or coerce any employee in the exercise by the employee of any right under [the Statute]," or to refuse to "negotiate in good faith." 5 U.S.C. § 7116(a)(1) and (5). The instant case involves ULP allegations under section 7116(a)(1) and (5), and the Authority's interpretation of its own organic statute as it relates to another agency's appropriation act. B. Official Time In the federal sector, many unions rely on employees in the agencies in which the unions hold recognition to perform representational functions either in addition to or instead of staff employed by the union. Section 7131 governs the extent to which agency employees representing a union may conduct representational activities on "official time." NTEU and U.S. Dep't of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 365 (1992). A grant of official time allows employees performing union representational functions to be paid as if they were at work, without being charged for annual leave. In subsections (a) and (c) of section 7131, not involved in this case, Congress authorized use of official time for, respectively, negotiating collective bargaining agreements, and participating in proceedings before the FLRA. 5 U.S.C. § 7131 (a) and (c). In subsection (b), also not directly involved here, Congress expressly prohibited the use of official time for conducting activities relating to internal union business and stated that such activities shall be performed only when the employee is in a non-duty status. 5 U.S.C. § 7131(b). In subsection (d), which is at the heart of this case, Congress provided that union representatives should be granted official time "in connection with any other matter covered by" the Statute "in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." 5 U.S.C. § 7131(d). Representational lobbying is one such "matter covered by" the Statute. Section 7102(1) provides that employees, acting in their representational capacity, have the right to present the views of their labor organization to Congress. 5 U.S.C. § 7102(1). Section 7131(d) supplies the authority to negotiate proposals that employees be granted official time for union-related activities. Parties may negotiate under section 7131(d) for a variety of matters, as long as they are otherwise consistent with the Statute and other applicable laws and regulations. See, e.g., NFFE Local 2015 & U.S. Dep't of the Interior Nat'l Park Servs., 41 FLRA 1158, 1185 (1991) (NFFE Local 2015) (finding proposal for official time is outside the duty to bargain because the purpose of the official time conflicted with a regulation). C. Prior Authority Cases on Official Time and Lobbying In this case the Authority considered whether the proposal for official time for representational lobbying of Congress is consistent with two other laws, 18 U.S.C. § 1913 and the 1996 DOD Appropriations Act. The Authority has addressed the use of official time for lobbying in four prior cases.[2] In NTEU Chapter 243 and VA Atlanta, the Authority found negotiable proposals for official time for lobbying purposes; in neither case, however, was the argument raised that such a proposal conflicted with an anti-lobbying statute. NTEU Chapter 243, 49 FLRA at 207; VA Atlanta, 47 FLRA at 1126-27. In the other two cases, SSA and Corps of Engineers, the Authority considered whether the official time proposal conflicted with 18 U.S.C. § 1913. In SSA, the Authority concluded, without discussion, that an award granting official time for lobbying does not conflict with 18 U.S.C. § 1913, a criminal law that restricts lobbying with federal funds without congressional authorization. SSA, 11 FLRA at 8. In Corps of Engineers, the Authority found that an arbitration award granting official time to lobby Congress is not contrary to 18 U.S.C. § 1913. Noting that section 1913 contains an exception to its prohibition if Congress has authorized the lobbying, the Authority found that the Statute constitutes "express authorization by Congress" within the meaning of section 1913's exception. Corps of Engineers, 52 FLRA at 933. None of these cases considered the question at issue in this case: whether a proposal for official time violates a prohibition against lobbying like the prohibition in the 1996 DOD Appropriations Act. III. The Authority's Decision[3] During collective bargaining negotiations, the union submitted the following proposal: Association officials will be granted not to exceed two days annually, official time to represent the bargaining unit by visiting, phoning, and writing to elected representatives in support of or opposition to pending desired legislation which would impact the working conditions of employees represented by the Association. JA 5. The agency refused to bargain over the proposal because it is inconsistent with provisions of law, specifically 18 U.S.C. § 1913[4] and both section 8001[5] and section 8015[6] of the 1996 DOD Appropriations Act, which restrict lobbying with appropriated funds. Because the proposal conflicts with these laws, the agency contended, it did not violate the Statute by refusing to bargain. Id. The Authority found the proposal consistent with 18 U.S.C. § 1913 and section 8001 of the 1996 DOD Appropriations Act.[7] However, the Authority also found the proposal inconsistent with section 8015 of the DOD Appropriations Act and, therefore, outside the agency's duty to bargain. JA 14. The Authority determined that the proposal does not conflict with section 1913 and section 8001 because both of those sections contain an exception -- they do not prohibit the expenditure of federal funds for purposes authorized by Congress. JA 9-12. In contrast, as the Authority noted, section 8015 includes no exception to its restriction. The Authority held that the plain wording of section 8015 expressly prohibits the use of appropriated funds to directly or indirectly influence legislation pending before Congress. The Authority determined that because section 8015 does not contain an exception like "except as authorized by Congress" -- language that was central to the Authority's finding that section 1913 and section 8001 do not bar official time for representational lobbying -- section 8015 bars the use of appropriated funds for official time for lobbying. The Authority noted in this regard it would refuse to create an exception that Congress had chosen not to include.[8] JA 13-14. The Authority rejected the union's claim that the Statute is more specific than section 8015 of the 1996 DOD Appropriations Act and therefore should prevail over the DOD Act. Comparing section 7131(d) of the Statute, which generally authorizes official time for any "matter covered by" the Statute, with section 8015, an "explicit and targeted prohibition," the Authority could not conclude that section 7131(d) is more specific than section 8015. JA 15. The Authority also found support in the rule of statutory construction providing that where two statutes conflict, the later and more specific statute usually controls over the earlier and more general one. Thus, the Authority concluded that the more recent 1996 DOD Appropriations Act prevails over the Statute. JA 15-16. Based on the above, the Authority determined[9] that the union's proposal is contrary to section 8015 of the 1996 DOD Appropriations Act and therefore the agency did not violate section 7116(a)(1) and (5) of the Statute when it refused to bargain over the union's proposal. Accordingly, the Authority dismissed the complaint. JA 16. STANDARD OF REVIEW The standard of review of Authority decisions is "narrow." AFGE, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Authority action shall be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A); Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1, 2 (1st Cir. 1988); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988). Under this standard, unless it appears from the Statute or its legislative history that the Authority's construction of its enabling act is not one that Congress would have sanctioned, the Authority's construction should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). A court should defer to the Authority's construction as long as it is reasonable. See id. at 845. Further, as the Supreme Court has stated, the Authority is entitled to "considerable deference" when it exercises its "'special function of applying the general provisions of the [Statute] to the complexities' of federal labor relations." BATF, 464 U.S. at 97. As the instant case demonstrates, among the "complexities of Federal labor relations" that the Authority must address as part of its everyday work is the interrelationship of the Statute and other laws, rules, and regulations governing the federal employment relationship. When the Authority's work requires interpretation of other statutes, while it is not entitled to deference, the Authority's interpretation should be given "respect." West Point Elementary Sch. Teachers Ass'n v. FLRA, 855 F.2d 936, 940 (2d Cir. 1988); Department of the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988). In its interpretation of other federal statutes, the Authority's reasoning should be followed to the extent the reasoning is "sound." Department of the Treasury, 837 F.2d at 1167. SUMMARY OF ARGUMENT The Authority properly determined that the union's proposal, that the agency agree to provide union representatives official (paid) time to lobby Congress, is contrary to law and hence not within the agency's duty to bargain. Section 8015 of the DOD Appropriations Act expressly prohibits using appropriated funds to influence "in any way" -- "directly or indirectly" -- legislation pending before Congress. The Authority correctly concluded that the union's proposal, seeking official time expressly to lobby Congress, is not negotiable because it violates the DOD Appropriations Act. The Authority's construction of section 8015 heeds the prohibition in the section's plain language that, without exception, DOD may not use any appropriated funds to support lobbying activities. In addition, the Authority's construction draws an appropriate distinction between section 8015 and another section of the DOD Appropriations Act, section 8001, which prohibits using funds for propaganda, but which also contains an exception for such activities if "authorized by the Congress." Noting that Congress expressly included an exception in section 8001, the Authority's reading of section 8015 gives meaning to Congress's omission of a comparable exception in the latter section. None of the union's arguments justifies ignoring the plain language of section 8015. First, the union is incorrect when it asserts that official time does not involve the use of federal funds. Official time is not free -- it entails the expenditure of appropriated funds to pay wages for the performance of the designated functions for which the official time is sought, here, lobbying. Second, contrary to the union's assertion, there has been no repeal by implication. Under the Statute, an agency's duty to bargain over a proposal is limited by a requirement that the proposal be consistent with other laws. Thus, finding a proposal non-negotiable because it is inconsistent with another law does not repeal any part of the Statute but only applies the Statute's own limitation on the bargaining obligation. In any event, while repeals by implication may be disfavored, they are permissible in appropriate circumstances. Finally, although the union disagrees, section 8015 prevails over section 7131(d) of the Statute, on the particular issue of official time for lobbying because section 8015 is the more specific statute on that issue. Section 8015 expressly prohibits any use of appropriated funds by DOD to support lobbying activities. The union's contentions would require the Court to rewrite a statute that Congress has enacted and eliminate a restriction on the use of appropriated funds that Congress specifically and plainly intended. For these reasons, the union's petition for review should be denied. ARGUMENT THE AUTHORITY PROPERLY DETERMINED THAT A PROPOSAL FOR OFFICIAL TIME FOR LOBBYING BY UNION REPRESENTATIVES IS NOT WITHIN AN AGENCY'S DUTY TO BARGAIN BECAUSE THE PROPOSAL CONFLICTS WITH A STATUTE THAT EXPRESSLY PROHIBITS, WITHOUT EXCEPTION, ANY USE OF APPROPRIATED FUNDS FOR LOBBYING. A party has no duty to bargain over proposals that are inconsistent with a law, rule or regulation. See, e.g., Granite State, JA 9; NFFE Local 2015, 41 FLRA at 1185; 5 U.S.C. § 7117(a)(1). The question in this case is whether a proposal for official time for representational lobbying violates a statute that prohibits, specifically and without exception, all lobbying involving in any way the expenditure of appropriated funds. The Authority correctly determined that this proposal is not within the agency's duty to bargain because it is contrary to Congress's express prohibition in section 8015 of the 1996 DOD Appropriations Act. First, the plain language of section 8015 flatly prohibits what the union asks for in its proposal. Second, rules of statutory construction support this holding. Finally, the union's arguments to avoid the express language of the 1996 DOD Appropriations Act lack merit. A. The Plain Meaning of Section 8015 Prohibits the Use of DOD Appropriations for the Lobbying Purposes Sought by the Union. The plain wording of section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of appropriated funds "in any way," "directly or indirectly," for lobbying activities. It is difficult to imagine how Congress could have drawn the restriction more clearly. The union's official time proposal would require the agency to violate the clear restriction plainly set forth in section 8015 by using appropriate funds to pay for official time for union representatives to lobby Congress. Indeed, lobbying is the sole and express purpose for which the union seeks the official time. However, it is precisely this use of appropriated funds that section 8015 prohibits. Accordingly, the proposal, requiring the agency to use appropriated funds specifically to fund the union's lobbying activities, is inconsistent with law, and not within the agency's bargaining obligation under the Statute. See Granite State, JA 9; NFFE Local 2015, 41 FLRA at 1185; 5 U.S.C. § 7117(a)(1). B. Rules of Statutory Construction Support the Authority's Decision. Principles of statutory construction support the Authority's determination that section 8015 prohibits the use of appropriated funds to support lobbying activities. First, the primary canon of statutory construction is that where the language of a statute is clear in its application, the reviewing authority must apply its plain meaning as written. See, e.g., Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'") (citations omitted); Pritzker v. Yari, 42 F.3d 53, 67 (1st Cir. 1994) ("As a fundamental principle of statutory construction, we will not depart from, or otherwise embellish, the language of a statute absent either undeniable textual ambiguity, or some other extraordinary consideration.") (citations omitted). The language of section 8015 is clear and, therefore, the Authority acted correctly when it relied on the plain wording of that section. Second, the Authority's decision is also consistent with the maxim that a statute must be interpreted to give effect to each of its provisions. See, e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 101 (1st Cir. 1994). As noted in the Authority's decision (JA 12-13), section 8001 of the 1996 DOD Appropriations Act contains an exception to that section's restriction on "publicity and propaganda"; i.e., that the restriction does not apply if such activity has been "authorized by the Congress." In contrast, section 8015 contains no such exception.[10] Thus, Congress specifically included the exception in section 8001 of the 1996 DOD Appropriations Act and specifically omitted the language in section 8015 of the very same Act. By refusing to graft section 8001's exception onto section 8015, the Authority gave meaning to Congress's action. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994) ("[I]t is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.") (citation omitted). Ignoring this critical difference between the sections, the union attempts to read section 8001's exception into section 8015 by arguing (Br. at 9) that section 8015, too, does not restrict activities that are permitted by other congressional acts. To adopt the union's interpretation of section 8015 would render superfluous the "authorized by the Congress" language in section 8001. By refusing to disregard Congress's actions, the Authority followed the plain meaning of section 8015 and gave effect to the DOD Appropriations Act as whole. The Authority's adherence to these established principles of statutory interpretation is a further indication of the correctness of the Authority's decision. C. The Union's Arguments as to Why the Appropriations Act May Be Ignored in this Case Lack Legal and Logical Support. The union makes several arguments in its efforts to side-step the express language of Congress: the use of official time does not involve an expenditure of federal funds and therefore the Appropriations Act does not apply; the Authority failed to reconcile the statutes and repeal by implication is disfavored; and even if the Appropriations Act applied, the Statute is more specific and therefore should prevail over the Appropriations Act.[11] As explained below, each of these arguments lacks merit.[12] 1. The use of official time involves an expenditure of federal funds. The union argues -- but cites no authority for the proposition -- that the use of official time does not involve the expenditure of appropriated funds. Br. at 8. The union is simply wrong: the allotment of official time results in the use of federal funds to pay for wages. The union's "common sense" comparison of official time to annual leave (Br. at 3) is inappropriate. "Official time" granted an employee by an agency to perform representational functions -- unlike annual leave -- "shall be considered hours of work." 5 C.F.R. § 551.424(b) (Add. A-8). Individuals on annual leave are not considered employees, but individuals on official time are. See David v. U.S., 820 F.2d 1038, 1043 (9th Cir. 1987) ("Since David was on official time while acting as a union stewardess, she is considered an employee for [Civil Service Reform Act of 1978] purposes.") Further, annual leave is a form of compensation that an employee earns by reason of the fact that one is a federal employee. Indeed, an employee can, upon separation from employment, receive a lump-sum payment for accrued annual leave. See 5 U.S.C. § 5551 (1988 & Supp. II 1996). The union's proposed analogy between official time and annual leave fails for an additional reason. Contrary to the union's suggestion (Br. at 8), an employee on official time is not a free agent -- controls exist as to what the employee can do. Official time can only be agreed to by the agency and granted for purposes that are consistent with the Statute. See 5 U.S.C. § 7131(d). Moreover, as discussed above, the agency and the union cannot agree on a proposal for official time for a purpose that conflicts with a law or regulation. On the other hand, the purpose for which an individual uses his or her annual leave does not have to be agreed upon. Clearly, there are activities that one may do on annual leave -- such as conduct internal union business or attend a baseball game -- that one may not do on official time. See 5 U.S.C. § 7131(b) (no official time may be allowed for internal union business, which must be performed during "nonduty status").[13] Because the union's claim that official time and annual leave are comparable uses of appropriated funds fails, its dependent claim, that the Authority's decision raises constitutional problems, should also be rejected. This case is not about restrictions on First Amendment freedoms -- rather, it concerns who will pay for the exercise of those freedoms. The Authority's decision does not bar union representatives from lobbying Congress. It does, however, recognize that the agency may not subsidize that lobbying when its appropriations act prohibits the use of funds for lobbying. See Regan v. Taxation With Representation of Washington, 461 U.S. 540, 546 (1983) (rejecting argument that congressional decision not to subsidize lobbying violates the First Amendment because "Congress is not required by the First Amendment to subsidize lobbying"). The fact that the agency may not agree under section 7131(d) to provide official time for lobbying -- because it violates the DOD Appropriations Act -- does not mean that an individual may not choose to lobby while on annual leave. Cf. 5 C.F.R. § 734.306, Examples 11 and 12 (1998) (union official on official time may not attend political event; individual on annual leave may attend political event). 2. There has been no repeal by implication and reconciliation is unnecessary. The union seeks to avoid the DOD Appropriations Act's prohibition on the use of federal funds for lobbying by arguing that "[r]epeal by implication is disfavored" (Br. at 7) and that the Authority "overlooked its obligation to reconcile the statutes" (Br. at 8). As discussed below, there has not been any repeal by implication in this case. The Authority's construction of section 7131(d)'s authorization of official time only to the extent not inconsistent with federal law does not repeal or eviscerate the Statute's official time provisions. Furthermore, even if section 8015 is viewed as suspending the Statute's official time provisions with regard to lobbying, such a result is not prohibited where, as here, Congress has clearly expressed its intentions. The Authority's application of section 8015's prohibition against the use of appropriated funds for lobbying activities in this case did not "repeal" any of the Statute's provisions. Under the Statute, an agency has a duty to bargain over a proposal, including a proposal for official time under section 7131(d), only if the proposal is "consistent with law, rule, and regulation." Granite State, JA 9; see also NFFE Local 2015, 41 FLRA at 1185; 5 U.S.C. § 7117(a)(1). Thus, the Statute itself envisions that other laws will place limitations on the duty to bargain. In ruling that the union's lobbying proposal is not within the agency's duty to bargain because it is inconsistent with section 8015's prohibition on the use of agency funds for such activities, the Authority thus merely applied the Statute's own limitation on the bargaining obligation.[14] In fact, in section 8015 Congress merely decided not to fund an activity within DOD that section 7131(d) authorizes for the government in general. In such cases, as the Justice Department has explained, the principle of reconciling statutes "carries little force in the appropriations context" because "there is no presumption that Congress has made funds available for every authorized purpose in any given fiscal year." 5 U.S. Op. Off. Legal Counsel 180, 184 (1981) (determining that, under lobbying restriction contained in appropriations act, grantees may not use appropriated funds to engage in lobbying activities, even if grantees are authorized by the organic legislation to use federal money for lobbying purposes). Even if section 8015 is viewed, arguendo, as repealing or suspending in part section 7131(d), the resulting suspension is legitimate. Although repeals by implication are disfavored, there is no requirement that a court reconcile two statutes at all costs. See Preterm, Inc. v. Dukakis, 591 F.2d 121, 133 (1st Cir. 1979) ("[T]he principle that two statutes should if possible be found capable of co-existence does not suggest that we should approach the statute with blinders and reconcile them at all costs, even when the second enactment is an appropriations measure.") Moreover, the Supreme Court has upheld modifications to existing laws found in appropriations acts. See, e.g., Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992). In Robertson, the Supreme Court noted that although repeals by implication are disfavored in the appropriations context, Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly. Id. at 440. See also United States v. Will, 449 U.S. 200, 222 (1980) ("[W]hen Congress desires to suspend or repeal a statute in force, '[t]here can be no doubt that . . . it could accomplish its purpose by an amendment to an appropriation bill.'") (omission in original) (quoting United States v. Dickerson, 310 U.S. 554, 555 (1940)). Here, Congress clearly and unequivocally stated that no funds appropriated to the Department of Defense for 1996 could be used in any way to influence pending legislation. Therefore, any right pursuant to section 7131(d) to expend such funds for this purpose has been suspended by the DOD Appropriations Act. Finally, as argued below, the DOD Appropriations Act is the more specific statute on the subject of use of appropriated funds for lobbying, and therefore prevails over section 7131(d) of the Statute. Thus, the union's contention that the Authority's decision is flawed for failing to reconcile the two statutes should be rejected. 3. Section 8015 prevails over section 7131(d) on the issue of use of appropriated funds for official time for lobbying activities. The union's claim (Br. at 9-10) that the Statute should prevail over the 1996 DOD Appropriations Act restrictions on the use of appropriated funds for lobbying is without merit. The Authority ruled that it was "unable to conclude that [section 7131(d)] is more specific than the explicit and targeted prohibition in section 8015." JA 15. The Authority's determination is correct and should be upheld. The language of section 8015 specifically addresses the core issue in the case -- the propriety of the Department of Defense's using appropriated funds for lobbying purposes. In contrast, section 7131(d) contains only a general authorization for all agencies and unions to agree on grants of official time for any "matter covered by" the Statute. The DOD Appropriations Act is clearly the more specific statute in this context.[15] Moreover, consistent with canons of statutory construction, when two statutes are irreconcilable, the later-enacted statute is generally preferred. See, e.g., Natural Resources Defense Council, Inc. v. United States Env. Protection Agency, 824 F.2d 1258, 1278 (1st Cir. 1987). Section 8015 was enacted in 1996. Section 7131(d) was enacted in 1978 as part of the original Civil Service Reform Act. Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1214. Therefore, the "explicit and targeted prohibition in section 8015" should prevail over the earlier, more general provisions of section 7131(d). CONCLUSION The union's petition for review should be denied. Respectfully submitted, DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JUDITH A. HAGLEY Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 October 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______________________________ GRANITE STATE CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, Petitioner v. No. 98-1810 FEDERAL LABOR RELATIONS AUTHORITY, Respondent _______________________________ CERTIFICATE OF SERVICE I certify that copies of the Brief For The Federal Labor Relations Authority and one copy of the brief in electronic format, have been served this day, by hand, upon the following: Daniel M. Schember Gina A. Taylor, Esq. Gaffney & Schember, P.C. National Federation of 1666 Connecticut Ave., N.W. Federal Employees Suite 225 1016 16th Street, N.W. Washington, D.C. 20009 Washington, D.C. 20036 I certify that copies of the Brief For The Federal Labor Relations Authority and one copy of the brief in electronic format, have been mailed this day by first-class mail to the Clerk of the First Circuit. Thelma Brown Paralegal Specialist October 30, 1998 STATUTORY AND REGULATORY ADDENDUM TABLE OF CONTENTS 1. 5 U.S.C. § 7102(1)................................... A-1 2. 5 U.S.C. § 7105(a)(1), (2)........................... A-2 3. 5 U.S.C. § 7105(a)(2)(G),(I)......................... A-2 4. 5 U.S.C. § 7116(a)(1), (5)........................... A-3 5. 5 U.S.C. § 7117(a)(1)................................ A-4 6. 5 U.S.C. § 7123(a), (c).............................. A-5 7. 5 U.S.C. § 7131 ..................................... A-7 8. 5 C.F.R. § 551.424(b)................................ A-8 9. 5 C.F.R. § 734.306................................... A-9 10. 5 C.F.R. § 2429.1.................................... A-11 § 7102. Employees'rights Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and * * * * * * * * * * § 7105. Powers and duties of the Authority (a)(1) The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter. (2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority- * * * * * * * * * * (G) conduct hearings and resolve complaints of unfair labor practices under section 7118 of this title; * * * * * * * * * * (I) take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter. * * * * * * * * * * § 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * * * * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; * * * * * * * * * * § 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. * * * * * * * * * * § 7123. Judicial review; enforcement (a) Any person aggrieved by any final order of the Authority other than an order under- (1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. * * * * * * * * * * (c) Upon the filing of a petition under subsection (a) of this section for judicial review or under subsection (b) of this section for enforcement, the Authority shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of the petition, the court shall cause notice thereof to be served to the parties involved, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief (including a temporary restraining order) it considers just and proper, and may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Authority. The filing of a petition under subsection (a) or (b) of this section shall not operate as a stay of the Authority's order unless the court specifically orders the stay. Review of the Authority's order shall be on the record in accordance with section 706 of this title. No objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the Authority with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any person applies to the court for leave to adduce additional evidence and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the Authority, or its designee, the court may order the additional evidence to be taken before the Authority, or its designee, and to be made a part of the record. The Authority may modify its findings as to the facts, or make new findings by reason of additional evidence so taken and filed. The Authority shall file its modified or new findings, which, with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The Authority shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the judgment and decree shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28. * * * * * * * * * * § 7131. Official time (a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes. (b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status. (c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status. (d) Except as provided in the preceding subsections of this section- (1) any employee representing an exclusive representative, or (2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. [1] Pertinent statutory and regulatory provisions are set forth in Addendum A to this brief. [2] See U.S. Dep't of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and NFFE, Local 259, 52 FLRA 920 (1997) (Corps of Engineers); NTEU, Chapter 243 and U.S. Dep't of Commerce, Patent & Trademark Office, 49 FLRA 176 (1994) (NTEU Chapter 243); NFFE, Local 122 and U.S. Dep't of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993) (VA Atlanta); and Department of Health & Human Servs., Social Security Admin. and AFGE, Local 3231, 11 FLRA 7 (1983) (SSA). [3] This unfair labor practice case was before the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. 5 C.F.R. 2429.1(a) (1997). The parties agreed that no material issue of fact existed. JA 4. [4] 18 U.S.C. § 1913 provides, in pertinent part: No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress . . . ; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business. [5] Section 8001 of the 1996 DOD Appropriations Act provides: No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress. DOD Appropriations Act, 1996, Pub. L. No. 104-61, § 8001, 109 Stat. 636, 651 (1996). [6] Section 8015 of the 1996 DOD Appropriations Act provides: None of the funds made available by this Act shall be used in any way, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before the Congress. DOD Appropriations Act, 1996, Pub. L. No. 104-61, § 8015, 109 Stat. 636, 654 (1996). [7] The Authority considered whether the proposal is contrary to only the DOD Appropriations Act for 1996 because the agency's refusal to bargain occurred in 1996. The Authority noted, however, that the DOD Appropriations Act for both 1997 and 1998 contain restrictions identical to sections 8001 and 8015 of the 1996 Act. JA 9 n.5. [8] The Authority noted that the General Accounting Office (GAO) has interpreted provisions similar to section 8015 as "applying primarily to indirect or grass roots lobbying and not to direct contact with Members of Congress." JA 14 (quoting GAO, Principles of Federal Appropriations Law 4-171 (2d ed. 1991)). The Authority found that this interpretation does not address the question presented in this case. First, as the Authority stated, GAO's description of the primary application of these provisions does not define their "exclusive" application. Second, GAO's prior interpretations were all rendered in connection with questions regarding activities by agency -- not union -- officials so that the three branches of the government could communicate with each other. JA 14-15. [9] Member Wasserman dissented, finding no evidence that Congress intended in section 8015 to limit the Statute's authorization of official time. [10] The union ignores this critical difference when it claims (Br. at 4 n.2, 9-10) that section 8015 and 18 U.S.C. § 1913 (which contains essentially the same exception as section 8001) are "nearly identical." [11] The union also suggests that there is something suspect about the fact that in the DOD Appropriations Act, Congress restricted the use of appropriated funds "solely with respect to DOD employees." Br. at. 7. This restriction, however, merely reflects the nature of an appropriations act, which generally is agency-specific. In addition, the union did not raise this argument in its brief before the Authority and, therefore, is precluded from doing so on review. 5 U.S.C. § 7123(c). [12] Amicus curiae National Federation of Federal Employees ("NFFE") raises two points in its brief, neither of which has any merit. First, NFFE points to the fact that GAO has interpreted provisions similar to section 8015 and found that they do not prohibit the direct communication between agency officials and Congress. Brief of Amicus Curiae ("NFFE Br.") at 14-15. As the Authority pointed out (JA 14), GAO's prior interpretations were all rendered in connection with questions regarding activities by agency -- not union -- officials. GAO's interpretations were necessary to ensure that the three branches of the government could communicate with each other and, thus, do not apply to the case at issue. Petitioner does not challenge the Authority's finding in this regard in its brief on appeal. Second, NFFE cites some legislative history regarding a proposed amendment to the DOD Appropriations Act that would limit the political activity of defense contractors. NFFE Br. at 16-17. As this history does not relate to section 8015 it is irrelevant. [13] In any event, as the Authority stated (JA 12 n.12), the dispositive issue is not whether employees are "on duty" during the lobbying activities for which the union seeks the official time. An agency, like DOD here, that is specifically prohibited from using appropriated funds "in any way" to support lobbying activities, simply may not -- legally -- agree to use its funds for that express purpose, regardless of when that lobbying would take place. The union's claim in this regard, that employees on official time and those on annual leave are similar because both are on what the union calls "non-duty time," (Br. at 1, 9), proposes a similarity without significance. As the Supreme Court recognized in BATF, a case on which the Union relies (Br. at 9), federal statutes that apply to employees in a duty status may be construed to apply to employees on official time. BATF, 464 U.S. at 106 n.16. The union cannot make the same claim regarding employees on annual leave. [14] The union's suggestion (Br. at 7) that the Statute grants federal employees the absolute right to use official time for lobbying is also inaccurate. As the Authority explained, section 7131(d) of the Statute authorizes agencies to agree to union proposals for official time for a variety of purposes, in an amount that the agency agrees is "reasonable, necessary, and in the public interest," as long as the union proposal is consistent with law, rule, and regulation. E.g. Granite State, JA 9. [15] The Authority's suggestion noted in an earlier decision (Corps of Engineers, 52 FLRA 920, 933-34 n.15) that section 7131(d) is more specific than the general prohibition against lobbying in section 1913 is irrelevant to the relationship between section 7131(d) and section 8015. First, the union in this case is unable to establish that the language of section 7131(d) is more specific than the explicit and targeted prohibition of section 8015. Second, section 1913 is not targeted to one agency as section 8015 is. Section 1913 is a criminal statute that applies government-wide. In contrast, section 8015 is a civil act that only applies to the Department of Defense and prohibits -- specifically -- that agency's use of appropriated funds to support actions to influence Congress on pending legislation.