Nos. 98-70838 & 98-71031
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
SILVER BARONS CHAPTER, ET AL.,
Petitioners
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
STATE OF NEVADA, OFFICE OF THE MILITARY AND
THE NEVADA NATIONAL GUARD,
Intervenor
_______________________________
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
1. Jurisdiction Over the Petition for Review in No. 98-71031 2
2. Jurisdiction Over the Petition for Review in No. 98-70838 2
STATEMENT OF THE ISSUE 4
STATEMENT OF THE CASE 4
STATEMENT OF THE FACTS 5
I. Background 5
A. The Federal Service Labor-Management Relations Statute 5
B. Official Time 7
C. Prior Authority Cases on Official Time and Lobbying 9
II. The Authority's Decision 10
STANDARD OF REVIEW 14
SUMMARY OF ARGUMENT 15
ARGUMENT 17
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 17
A. The Plain Meaning of Section 8015 Prohibits the
Use of DOD Appropriations for the Lobbying
Purposes Sought by the Union 18
B. Rules of Statutory Construction Support the
Authority's Decision 19
C. The Union's Arguments as to Why the Appropriations
Act May Be Ignored in this Case Lack Legal and
Logical Support 21
1. The use of official time involves an
expenditure of federal funds 22
2. There has been no repeal by implication and
reconciliation is unnecessary 25
3. Section 8015 prevails over section 7131(d) on
the issue of use of appropriated funds for
official time for lobbying activities 29
CONCLUSION 31
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 32(e)(4), FORM OF BRIEF 32
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
Acura of Bellevue v. Reich, 90 F.3d 1403 (9th Cir. 1996),
cert. denied, 117 S. Ct. 945 (1997) 2, 3
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 14
AFGE, Local 2986 v. FLRA, 775 F.2d 1022 (9th Cir. 1985) 15
BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) 21
Brotherhood of Ry. Carmen Div., Transp. Communications
Int'l Union v. Pena, 64 F.3d 702 (D.C. Cir. 1995) 2, 3
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) 5, 6, 15, 24
California Nat'l Guard v. FLRA, 697 F.2d 874
(9th Cir. 1983) 6, 7, 19, 22
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984) 14, 15
CP Nat'l Corp. v. Bonneville Power Admin., 928 F.2d 905
(9th Cir. 1991) 2
Connecticut Nat. Bank v. Germain, 503 U.S. 249 (1992) 19
David v. U.S., 820 F.2d 1038 (9th Cir. 1987) 23
Department of the Treasury v. FLRA, 837 F.2d 1163
(D.C. Cir. 1988) 15
Department of Veterans Affairs Med. Ctr. v. FLRA,
16 F.3d 1526 (9th Cir. 1994) 14
Deteresa v. American Broadcasting Cos., Inc., 121 F.3d 460
(9th Cir. 1997) 20
Environmental Defense Ctr. v. Babbitt, 73 F.3d 867
(9th Cir. 1995) 23, 27
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 14
Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979) 28
Pritzker v. Yari, 42 F.3d 53 (1st Cir. 1994) 20
Regan v. Taxation With Representation Of Washington,
461 U.S. 540 (1983) 25
Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) 28
Stone v. Immigration and Naturalization Serv.,
514 U.S. 386 (1995) 3
Unites States v. Dickerson, 310 U.S. 554 (1940) 28
United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 20
United States v. Will, 449 U.S. 200 (1980) 28
U.S. Dep't of Interior, Bur. of Indian Affs. v. FLRA,
887 F.2d 172 (9th Cir. 1989) 6
U.S. v. Carper, 24 F.3d 1157 (9th Cir. 1994) 30
U.S. v. Trident Seafoods Corp., 92 F.3d 855 (9th Cir. 1996),
cert. denied, 117 S. Ct. 944 (1997) 19, 20
West Point Elementary Sch. Teachers Ass'n v. FLRA,
855 F.2d 936 (2d Cir. 1988) 15
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of Health & Human Servs., Social Security Admin.
and AFGE, Local 3231, 11 FLRA 7 (1983) 9
Department of the Navy, U.S. Marine Corps, 34 FLRA 635
(1990) 7
NFFE, Local 122 and U.S. Dep't of Veterans Affairs,
Regional Office, Atlanta, Georgia, 47 FLRA 1118
(1993) 9
NFFE Local 2015 & U.S. Dep't of the Interior Nat'l Park
Servs., 41 FLRA 1158 (1991) passim
NTEU and U.S. Dep't of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, 45 FLRA 339 (1992) 7
Office of the Adjutant General, New Hampshire National
Guard, Concord, New Hampshire, 54 FLRA (No. 38) 301
(May 29, 1998) passim
NTEU, Chapter 243 and U.S. Dep't of Commerce, Patent &
Trademark Office, 49 FLRA 176 (1994) 9
U.S. Dep't of Energy, Washington, D.C., 51 FLRA 124
(1995) 7
U.S. Dep't of the Army Corps of Engineers, Memphis District,
Memphis, Tennessee and NFFE, Local 259, 52 FLRA 920
(1997) 9, 10, 30
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) 8
5 U.S.C. § 7105(a)(1) 5
5 U.S.C. § 7105(a)(2) 5
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7105(a)(2)(I) 6
5 U.S.C. § 7116(a)(1) 5, 6, 7, 14
5 U.S.C. § 7116(a)(5) 5, 6, 7, 14
5 U.S.C. § 7116(a)(6) 5, 6, 7, 14
5 U.S.C. § 7116(a)(8) 5, 7, 14
5 U.S.C. § 7117(a)(1) 5, 18, 19, 26
5 U.S.C. § 7119 6
5 U.S.C. § 7123(a) 1, 2
5 U.S.C. § 7123(c) 14, 22
5 U.S.C. § 7131 7
5 U.S.C. § 7131(a) 7, 8
5 U.S.C. § 7131(b) 8, 24
5 U.S.C. § 7131(c) 7, 8
5 U.S.C. § 7131(d) passim
5 U.S.C. § 706(2)(A) 14
5 U.S.C. § 5551 (1994 & Supp. II 1996) 23
18 U.S.C. § 1913 passim
Civil Service Reform Act of 1978, Pub. L. 95-454,
92 Stat. 1214 23, 30
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) 23
5 C.F.R. § 734.306 25
5 C.F.R. § 2429.1(a) 10
MISCELLANEOUS
General Accounting Office, Principles of Federal
Appropriations Law, Chapter 4 (2d ed. 1991) 13
5 U.S. Op. Off. Legal Counsel 180 (1981) 27
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 98-70838 & 98-71031
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
SILVER BARONS CHAPTER, ET AL.,
Petitioners
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
STATE OF NEVADA, OFFICE OF THE MILITARY AND
THE NEVADA NATIONAL GUARD,
Intervenor
_______________________________
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 54 FLRA (No.
62) 595 (July 24, 1998). 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 final
decisions and orders pursuant to section 7123(a) of the Statute.
I. Jurisdiction Over the Petition for Review in No. 98-71031
On July 24, 1998, the Authority issued its decision on reconsideration,
published at 54 FLRA (No. 62) 595. This is the final decision and order in
this case. Petitioners Silver Barons Chapter and Silver Sage Chapter of the
Association of Civilian Technicians ("petitioners" or collectively "the
union") filed a petition for review (No. 98-71031) of this final order
within the 60-day time limit provided by section 7123(a) of the Statute.
Therefore, this Court has jurisdiction over No. 98-71031.
II. Jurisdiction Over the Petition for Review in No. 98-70838
The petition in No. 98-70838 seeks review of an earlier, non-final decision
and order of the FLRA, published at 54 FLRA (No. 39) 316 (May 29, 1998).
Because the petition in
No. 98-70838 does not concern review of a final decision and order, this Court
lacks jurisdiction over that petition for review. See Acura of Bellevue v.
Reich, 90 F.3d 1403, 1407 (9th Cir. 1996) (Acura) (dismissing as premature
notice of appeal from non-final agency order), cert. denied, 117 S. Ct. 945
(1997); CP Nat'l Corp. v. Bonneville Power Admin., 928 F.2d 905, 911 (9th Cir.
1991) (same).
The Authority's decision dated May 29, 1998 is not a final order because the
FLRA's General Counsel moved for reconsideration on June 16, 1998. Excerpts
of Record ("ER") 3. See Acura, 90 F.3d at 1407 ("a motion for
reconsideration renders an agency action nonfinal under Section 10(c) of the
APA"); Brotherhood of Ry. Carmen Div., Transp. Communications Int'l Union v.
Pena, 64 F.3d 702, 703 (D.C. Cir. 1995) (where there is a pending request
for reconsideration of an agency order, a petition for review of that order
is "incurably premature"). Because No. 98-70838 was prematurely filed,
the FLRA requested that the Court dismiss that petition for review and
proceed on the basis of No. 98-71031 alone. See FLRA's Response to
Petitioners' Motion to Consolidate, dated September 1998. On November 17,
1998, the Appellate Commissioner denied the FLRA's request without
prejudice. The FLRA renews its request that the Court dismiss the premature
petition for review, No. 98-70838.
Petitioners' arguments in support of their premature petition for review are
baseless. First, petitioners' reliance on Stone v. Immigration and
Naturalization Service, 514 U.S. 386 (1995) (Petitioners' Opposition to
FLRA's Motion to Dismiss
No. 98-70838 ("Pet. Opp.")) is misplaced. As this Court has recognized, Stone
is limited to judicial review of deportation orders under the Immigration and
Nationality Act (INA). See Acura, 90 F.3d at 1407 n.1. Indeed, as the Court in
Stone pointed out, "in amending the INA Congress chose to depart from the
ordinary judicial treatment of agency orders under reconsideration." 514 U.S.
at 393. This case does not involve a deportation order under the INA.
Therefore, the petitioners' suggestion that the Stone rule might apply to this
case is wrong and misleading. Second, petitioners contend that they should be
allowed to avoid the finality rule because they did not file the motion for
reconsideration. Pet. Opp. at 1. The policy behind the rule for treating
orders as non-final for purposes of review during the pendency of a motion for
reconsideration is based on judicial economy -- that is, there is the
possibility that the order complained of will be modified in a way that renders
judicial review unnecessary. Id. at 392. This policy of judicial economy
remains the same regardless of which party filed the motion for reconsideration.
STATEMENT OF THE ISSUE
Whether the Authority properly determined that a contract provision for
official time for lobbying by union representatives is not within an
agency's duty to bargain because the provision conflicts with a statute that
expressly prohibits, without exception, any use of appropriated funds for
lobbying.
STATEMENT OF THE CASE
This case arose as an unfair labor practice (ULP) proceeding concerning
allegations that the Nevada Air National Guard and Nevada Army National
Guard (collectively the "agency" or "National Guard") refused to implement a
Federal Service Impasses Panel ("FSIP" or "Panel") order to include in the
contract a union proposal for official time for lobbying. ER 6. 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. ER 9-10.
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), (5), (6), and (8) of the Statute. ER 8. The Authority concluded, and
then reaffirmed on reconsideration, that the agency did not commit the
unfair labor practice alleged and, accordingly, dismissed the complaint.
ER 14, 38.
STATEMENT OF THE FACTS
I. 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 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; U.S. Dep't of Interior, Bur. of Indian Affs. v. FLRA,
887 F.2d 172, 173 (9th Cir. 1989) (Dep't of Interior).
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.
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. See California Nat'l Guard v. FLRA, 697 F.2d 874, 876 (9th Cir.
1983).
Where the collective bargaining process between an agency and a union fails
to resolve an issue, the Statute provides for resolution through the Panel.
The Panel can suggest and, if necessary, order terms of settlement between
agencies and unions when they cannot agree. 5 U.S.C. § 7119.
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]," to refuse to "negotiate in
good faith," or to "refuse to cooperate" in Panel decisions. 5 U.S.C. §
7116(a)(1), (5) and (6). The duty to bargain over contract language exists
only "to the extent 'not inconsistent with any federal law or any
government-wide rule or regulation.'" Dep't of Interior,
887 F.2d at 173. See also California Nat'l Guard v. FLRA,
697 F.2d 874, 879 (9th Cir. 1983). Accordingly, an agency need not accept a
Panel-ordered contract provision if it is inconsistent with any federal law.
See U.S. Dep't of Energy, Washington, D.C., 51 FLRA 124, 126-27 (1995). If an
agency and union should agree on a matter not authorized by law, such an
agreement is void and unenforceable. See Department of the Navy, U.S. Marine
Corps, 34 FLRA 635, 638-39 (1990).
The instant case involves ULP allegations under section 7116(a)(1), (5),
(6), and (8), 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.
II. The Authority's Decision[3]
During collective bargaining negotiations, the union submitted, as relevant
here, a proposal for official time for lobbying. Having failed to reach
agreement with the agency, the union filed a request for assistance with the
Panel. The Panel issued an order directing the agency and the union to
incorporate the following provision into their collective bargaining
agreement:
[Official time may be granted to] Union officials when
representing Federal employees by visiting, phoning,
and writing to elected representatives in support or
opposition to pending or desired legislation which
would impact the working conditions of employees
represented by ACT.
ER 7.
The agency refused to implement the official time provision because it is
inconsistent with provisions of law, specifically 18 U.S.C. § 1913 and both
section 8001 and section 8015 of the 1996 DOD Appropriations Act, which
restrict lobbying with appropriated funds.[4] ER 8-9. Because the proposal
conflicts with these laws, the agency contended, it did not violate the
Statute by refusing to implement the Panel-imposed official time provision.
Id.
The Authority first noted that the official time provision and the parties'
arguments here were essentially the same as those in Office of the Adjutant
General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA (No.
38) 301 (May 29, 1998) (New Hampshire National Guard) (a copy of this
decision is at ER 19-33), which was decided the same day. Accordingly, the
Authority adopted the reasoning developed in New Hampshire National Guard
and dismissed the official time portion of the complaint. ER 13-14.
The Authority found the proposal consistent with
18 U.S.C. § 1913 and section 8001 of the 1996 DOD Appropriations Act.[5]
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.
ER 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. ER 24. 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.[6]
ER 28-29.
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.
ER 30. 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. ER 30-31.
Based on the above, the Authority determined[7] 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), (5), (6), or (8) of the
Statute when it refused to comply with the Panel's order to include a
provision for official time for lobbying in the collective bargaining
agreement. Accordingly, the Authority dismissed the complaint. ER 14.
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 Veterans Affairs Med. Ctr. v. FLRA,
16 F.3d 1526, 1529 (9th Cir. 1994); 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 (citation omitted). See
also AFGE, Local 2986 v. FLRA, 775 F.2d 1022, 1025 (9th Cir. 1985). 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 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
comply with a Panel decision ordering implementation of that proposal.
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., New Hampshire National Guard, ER 19;
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 appropriated
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 New Hampshire National Guard, ER 19; NFFE
Local 2015, 41 FLRA at 1185; 5 U.S.C. § 7117(a)(1). See also California
Nat'l Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983) (rejecting bargaining
proposal that conflicts with a federal statute because section 7117(a)(1)
was "designed specifically for situations where, as here, the sweeping
legislative scheme [of the Statute] may come in conflict with other federal
statutes").
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); U.S. v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir. 1996) ("[I]
f the statutory language is clear, we need look no further than that language
itself in determining the meaning of the statute."), cert. denied, 117 S. Ct.
944 (1997); 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); Deteresa v.
American Broadcasting Cos., Inc., 121 F.3d 460, 464-65 (9th Cir. 1997). As
noted in the Authority's decision in New Hampshire National Guard (ER 27-28),
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.[8] 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 14-15) 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 a
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.[9] As
explained below, each of these arguments lacks merit.[10]
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
13. The union is simply wrong: the allotment of official time results in the
use of federal funds to pay for wages. See Environmental Defense Ctr. v.
Babbitt, 73 F.3d 867, 871-72 (9th Cir. 1995) ("The use of any government
resources -- whether salaries, employees, paper, or buildings -- to accomplish
[an activity prohibited by an appropriations act] would entail government
expenditure. The government cannot make expenditures, and therefore cannot act,
other than by appropriation.")
The union's comparison of official time to annual leave (Br. at 13) 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-10). Individuals in an
approved leave status like 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 (1994 & 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 13), 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").[11]
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. See Exhibit 14 to Stipulation of Facts in this case; ER 118 (Draft
National Guard guidance to state guards recognizing that the prohibition against
lobbying on official time "does not prohibit a technician or AGR member from
lobbying while in leave status, e.g., annual leave, compensatory leave, leave
without pay.") 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 11) and that the Authority "overlooked its obligation to
reconcile the statutes" (Br. at 12). 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." New
Hampshire National Guard, ER 19; 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.[12]
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). This Court has held that an appropriations act that
precluded expenditure of funds on activities mandated by another statute did not
"repeal" that statute. Environmental Defense Ctr. v. Babbitt, 73 F.3d 867, 871
(9th Cir. 1995) ("The appropriations rider does not remove this statutory duty;
instead, it only temporarily removes the funds available for carrying out the
duty.")
The Authority has taken the position that there has been no repeal by
implication; however, 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 14-15) 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." ER 30. 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.[13]
Moreover, consistent with canons of statutory construction, when two statutes
are irreconcilable, the later-enacted statute is generally preferred. See,
e.g., U.S. v. Carper, 24 F.3d 1157, 1159 (9th Cir. 1994). 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 in No. 98-70838 should be dismissed for lack
of subject matter jurisdiction, and the union's petition for review in No.
98-71031 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
December 1998
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 32(e)(4), FORM OF BRIEF
Pursuant to Federal Rule of Appellate Procedure 32 and Ninth Circuit Rule
32(e)(4), I certify that the attached brief is monospaced, has 10.5 or less
characters per inch, and contains 7,579 words.
December 7, 1998
___________________________
Judith A. Hagley
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
SILVER BARONS CHAPTER, ET AL.,
Petitioners
v. Nos. 98-70838 & 98-71031
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
STATE OF NEVADA, OFFICE OF THE
MILITARY AND THE NEVADA NATIONAL
GUARD,
Intervenor
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon the following:
Daniel M. Schember Lt. David Pennington
Gaffney & Schember, P.C. Nevada National Guard
1666 Connecticut Ave., N.W. 2525 S. Carson St.
Suite 225 Carson City, Nevada 89701
Washington, D.C. 20009
Gina A. Taylor, Esq.
National Federation of Federal Employees
1016 16th Street, N.W.
Washington, D.C. 20036
Thelma Brown
Paralegal Specialist
December 7, 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), (6), (8)................. A-3
5. 5 U.S.C. § 7117(a)(1)................................ A-4
6. 5 U.S.C. § 7119...................................... A-5
7. 5 U.S.C. § 7123(a), (c).............................. A-7
8. 5 U.S.C. § 7131 ..................................... A-9
9. 5 C.F.R. § 551.424(b)................................ A-10
10. 5 C.F.R. § 734.306.................................. A-11
11. 5 C.F.R. § 2429.1................................... A-13
§ 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;
(6) to fail or refuse to cooperate in impasse procedures and impasse
decisions as required by this chapter;
* * * * * * * * * *
(8) to otherwise fail or refuse to comply with any provision of 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.
* * * * * * * * * *
§ 7119. Negotiation impasses; Federal Service Impasses Panel
(a) The Federal Mediation and Conciliation Service shall provide services
and assistance to agencies and exclusive representatives in the resolution
of negotiation impasses. The Service shall determine under what
circumstances and in what matter it shall provide services and assistance.
(b) If voluntary arrangements, including the services of the Federal
Mediation and Conciliation Service or any other third-party mediation, fail
to resolve a negotiation impasse-
(1) either party may request the Federal Service Impasses Panel to consider
the matter, or
(2) the parties may agree to adopt a procedure for binding arbitration of
the negotiation impasses, but only if the procedure is approved by the
Panel.
(c)(1) The Federal Service Impasses Panel is an entity within the Authority,
the function of which is to provide assistance in resolving negotiation
impasses between agencies and exclusive representatives.
(2) The Panel shall be composed of a Chairman and at least six other
members, who shall be appointed by the President, solely on the basis of
fitness to perform duties and functions involved, from among individuals who
are familiar with Government operations and knowledgeable in labor-
management relations.
(3) Of the original members of the Panel, 2 members shall be appointed for a
term of 1 year, 2 members shall be appointed for a term of 3 years, and the
Chairman and the remaining members shall be appointed for a term of 5 years.
Thereafter each member shall be appointed for a term of 5 years, except that
an individual chosen to fill a vacancy shall be appointed for the unexpired
term of the member replaced. Any member of the Panel may be removed by the
President.
(4) The Panel may appoint an Executive Director and any other individuals it
may from time to time find necessary for the proper performance of its
duties. Each member of the Panel who is not an employee (as defined in
section 2105 of this title) is entitled to pay at a rate equal to the daily
equivalent of the maximum annual rate of basic pay then currently paid under
the General Schedule for each day he is engaged in the performance of
official business of the Panel, including travel time, and is entitled to
travel expenses as provided under section 5703 of this title.
(5)(A) The Panel or its designee shall promptly investigate any impasse
presented to it under subsection (b) of this section. The Panel shall
consider the impasse and shall either-
(i) recommend to the parties procedures for the resolution of the impasse;
or
(ii) assist the parties in resolving the impasse through whatever methods
and procedures, including factfinding and recommendations, it may consider
appropriate to accomplish the purpose of this section.
(B) If the parties do not arrive at a settlement after assistance by the
Panel under subparagraph (A) of this paragraph, the Panel may-
(i) hold hearings;
(ii) administer oaths, take the testimony or deposition of any person under
oath, and issue subpenas as provided in section 7132 of this title; and
(iii) take whatever action is necessary and not inconsistent with this
chapter to resolve the impasse.
(C) Notice of any final action of the Panel under this section shall be
promptly served upon the parties, and the action shall be binding on such
parties during the term of the agreement, unless the parties agree
otherwise.
§ 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. ER 6.
[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.
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).
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).
[5] 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. ER 24 n.5.
[6] 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." ER 29 (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. ER 29-30.
[7] Member Wasserman dissented, finding no evidence that Congress intended in
section 8015 to limit the Statute's authorization of official time.
[8] The union ignores this critical difference when it claims (Brief for
Petitioner ("Br.") at 9 n.7, 15) that section 8015 and 18 U.S.C. § 1913 (which
contains essentially the same exception as section 8001) are "nearly identical."
[9] 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 12. This restriction,
however, merely reflects the nature of an appropriations act, which generally is
agency-specific. Cf. California Nat'l Guard v. FLRA, 697 F.2d 874, 879 (9th
Cir. 1983)(finding that National Guard technicians could not bargain over
certain grievance procedures, even though all other federal employees could
bargain over such a proposal). 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).
[10] 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 15-16. As the Authority
pointed out in New Hampshire National Guard (ER 29), 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. Petitioners do not challenge the Authority's
finding in this regard in their 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 17-18. As this history does not relate to
section 8015 it is irrelevant. In addition, this argument was not raised
before the Authority and, therefore, should not be considered by this Court.
5 U.S.C. § 7123(c).
[11] The union apparently ignores the fact that, as the Authority stated in
New Hampshire National Guard (ER 27 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. In contrast, an agency
grants annual leave without consideration to the purpose for which it will be
used.
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, 13-14), proposes a similarity without significance. As the
Supreme Court recognized in BATF, a case on which the union relies (Br. at
14), 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.
[12] The union's suggestion (Br. at 11-12) 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. New Hampshire National Guard, ER 19. This
authorization of labor-management agreements on the use of official time under
section 7131(d) is thus a qualified authorization, which under the Statute's own
provisions is subordinate to legal restrictions outside the Statute.
[13] 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.