ORAL ARGUMENT SCHEDULED FOR OCTOBER 11, 2001
No. 01-1044
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
TONY KEMPENICH MEMORIAL, CHAPTER 21,
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 E. PERSINA
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR OCTOBER 11, 2001
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the Association of Civilian
Technicians, Tony Kempenich Memorial Chapter 21 (Union) and the U.S.
Department of Defense, National Guard Bureau, Minnesota National Guard
(Agency). The Union is the petitioner in this court proceeding; the
Authority is the respondent.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order on Negotiability Issues in ACT, Tony Kempenich Memorial Chapter
21, Case No. 0-NG-2490, decision issued on July 31, 2000, reported at
56 F.L.R.A. (No. 82) 526, Order denying Motion for Reconsideration
issued November 30, 2000, reported at 56 F.L.R.A. (No. 159) 947.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority are unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
A. Background 3
1. Official Time 3
2. The Facts of the Instant Case 5
B. The Authority's Initial Decision 7
C. The Authority's Decision on Reconsideration 11
STANDARD OF REVIEW 13
SUMMARY OF ARGUMENT 14
ARGUMENT 17
THE AUTHORITY REASONABLY DETERMINED THAT A COLLECTIVE BARGAINING
AGREEMENT PROVISION REQUIRING AN AGENCY TO USE APPROPRIATED FUNDS
TO SUPPORT UNION LOBBYING ON LEGISLATION PENDING IN CONGRESS
CONFLICTS WITH A STATUTE PROHIBITING ANY USE OF APPROPRIATED
FUNDS FOR LOBBYING ON PENDING LEGISLATION 17
A. The Plain Meaning of § 8012 Prohibits the Use of DOD
Appropriations for the Lobbying Purposes Sought by
the Union 18
B. Principles of Statutory Construction Support the
Authority's Decision 20
C. The Union's Arguments as to Why the Appropriations Act
May Be Ignored in This Case Lack Legal and Logical
Support 22
1. The Appropriations Act restriction clearly applies
to the request for official time for lobbying at issue 22
2. The Union's argument concerning annual leave
lacks merit 25
3. It is of no significance that the restriction in the
DOD Appropriations Act applies only to DOD
employees 28
4. The Authority has reconciled the two statutes and
there has been no repeal by implication 30
5. Section 8012 prevails over § 7131(d) on the issue
of use of appropriated funds for official time for
lobbying activities 33
CONCLUSION 35
CERTIFICATION PURSUANT TO FRAP RULE 32 AND
CIRCUIT RULE 32 36
ADDENDUM
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) and other
pertinent statutory provisions A-1
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 13
AFGE, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984) 34, 35
Asiana Airlines v. Federal Aviation Admin., 134 F.3d 393
(D.C. Cir. 1998) 20
Ass'n of Civilian Technicians v. FLRA, 250 F.3d 778 (D.C. Cir. 2001) 13, 14
* Ass'n of Civilian Technicians, Silver Barons Chapter and Silver
Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000) passim
BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) 21
* Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89
(1983) 14, 24
California Nat'l Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983) 29
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984) 13
Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) 20
Dep't of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 14
Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994) 21, 34
Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995) 24, 32
Georgia State Chapter, Ass'n of Civilian Technicians v. FLRA,
184 F.3d 889 (D.C. Cir. 1999) 6, 7, 18
* Granite State Chapter, Ass'n of Civilian Technicians v. FLRA,
173 F.3d 25 (1st Cir. 1999) passim
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 13
Regan v. Taxation With Representation of Washington, 461 U.S. 540
(1983) 28
Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992) 33
United States v. Lin, 101 F.3d 760 (D.C. Cir. 1996) 20
United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 20
United States v. Will, 449 U.S. 200 (1980) 33
West Point Elementary Sch. Teachers Ass'n v. FLRA, 855 F.2d 936
(2d Cir. 1988) 13
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
* Ass'n of Civilian Technicians, Old Hickory Chapter and U.S. Dep't
of Defense, North Carolina Nat'l Guard Bureau, Raleigh, N.C. ,
55 FLRA 811 (1999) passim
Corps of Eng'rs, 52 FLRA 920 (1997) 34
Dep't of the Navy, U.S. Marine Corps, 34 FLRA 635 (1990) 5
Headquarters, Nat'l Guard Bureau, Washington, D.C., Nevada Air
Nat'l Guard, Reno, Nev., 54 FLRA 595 (1998), aff'd sub
nom. Ass'n of Civilian Technicians, Silver Barons Chapter and
Silver Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000) 7
NFFE, Local 2015 & U.S. Dep't of the Interior, Nat'l Park Servs.,
41 FLRA 1158 (1991) 4
Office of the Adjutant Gen., Georgia Dep't of Defense, Atlanta, Ga.,
54 FLRA 654 (1998), pet. for review denied sub nom. Georgia State
Chapter, Ass'n of Civilian Technicians v. FLRA, 184 F3d 889 (D.C.
Cir. 1999) 6, 7
* Office of the Adjutant Gen., New Hampshire Nat'l Guard, Concord,
N.H., 54 FLRA 301 (1998), aff'd sub nom. Granite State Chapter,
Ass'n of Civilian Technicians v. FLRA, 173 F.3d 25
(1st Cir. 1999) passim
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) (Statute) 2
5 U.S.C. § 7102 30, 33, 38
5 U.S.C. § 7102(1) 4, 8
5 U.S.C. § 7105(a)(2)(G) 2
5 U.S.C. § 7114(c) passim
5 U.S.C. § 7117 passim
5 U.S.C. § 7117(a) 27, 31
* 5 U.S.C. § 7117(c) 2
5 U.S.C. § 7123(a) 2, 3
5 U.S.C. § 7123(c) 13 TABLE OF AUTHORITIES
5 U.S.C. § 7131 passim
5 U.S.C. § 7131 (a) 3, 4, 26
5 U.S.C. § 7131(b) 4, 26
5 U.S.C. § 7131(c) 4
5 U.S.C. § 7131(d) passim
5 U.S.C. § 706(2)(A) 13
18 U.S.C. § 1913 7, 8, 34
* Department of Defense Appropriations Act, Pub. L. No. 105-262,
112 Stat. 2279 (1998) passim
§ 8001 passim
§ 8012 passim
Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1214 34
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 551.424(b) 3
5 C.F.R. § 734.306 28
MISCELLANEOUS
5 U.S. Op. Off. Legal Counsel 180 (1981) 32
Comp. Gen. Decision B-192746 (Mar. 7, 1979) 25
General Accounting Office, Principles of Federal Appropriations Law
(2d ed. 1991) 29
*Authorities upon which we chiefly rely are marked by asterisks.
GLOSSARY
ACT, Georgia Chapter Georgia State Chapter, Ass'n of Civilian Technicians v.
FLRA, 184 F3d 889 (D.C. Cir. 1999)
ACT, Granite State Granite State Chapter, Ass'n of Civilian Technicians v.
Chapter FLRA, 173 F.3d 25 (1st Cir. 1999)
ACT, Silver Barons Ass'n of Civilian Technicians, Silver Barons Chapter
Chapter and Silver Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000)
Agency U.S. Department of Defense, National Guard Bureau,
Minnesota National Guard
Appropriations Act Department of Defense Appropriations Act, Pub L.
No. 105-262, § 8012, 112 Stat. 2279, 2299 (1998)
Babbitt Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995)
BATF Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89 (1983)
Br. Brief for Petitioner
FLRA or Authority Federal Labor Relations Authority
Georgia Guard Office of the Adjutant Gen., Georgia Dep't of Defense,
Atlanta, Ga., 54 FLRA 654 (1998)
JA Joint Appendix
Nevada Guard Headquarters, Nat'l Guard Bureau, Washington, D.C.,
Nevada Air Nat'l Guard, Reno, Nev., 54 FLRA 595 (1998)
New Hampshire Guard Office of the Adjutant Gen., New Hampshire Nat'l Guard,
Concord, N.H., 54 FLRA 301 (1998),
North Carolina Guard Ass'n of Civilian Technicians, Old Hickory Chapter and
U.S. Dep't of Defense, North Carolina Nat'l Guard
Bureau, Raleigh, N.C. , 55 FLRA 811 (1999)
Robertson Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992)
Statute Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999)
Union Association of Civilian Technicians, Tony Kempenich
Memorial, Chapter 21
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
TONY KEMPENICH MEMORIAL CHAPTER 21,
Petitioner
v. No. 01-1044
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
SERVICE LIST
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
Gaffney & Schember, P.C.
1666 Connecticut Ave., NW,
Suite 225
Washington, D.C. 20009
Thelma Brown
Paralegal Specialist
July 26, 2001
TABLE OF CONTENTS
1. 5 U.S.C. § 7102 A-1
2. 5 U.S.C. § 7105(a)(2) (G) A-2
3. 5 U.S.C. § 7114(c) A-3
4. 5 U.S.C. § 7117 A-4
5. 5 U.S.C. § 7123(a), (c) A-7
6. 5 U.S.C. § 7131 A-9
7. 18 U.S.C. § 1913 A-10
8. Department of Defense Appropriations Act, §§ 8001 and 8012 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
(2) to engage in collective bargaining with respect to conditions of
employment through representatives chosen by employees under this chapter.
§ 7105. Powers and duties of the Authority
* * * * * * *
(a)(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;
* * * * * * *
§ 7114. Representation rights and duties
* * * * * * *
(c)(1) An agreement between any agency and an exclusive representative shall
be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from
the date the agreement is executed if the agreement is in accordance with
the provisions of this chapter and any other applicable law, rule, or
regulation (unless the agency has granted an exception to the provision).
(3) If the head of the agency does not approve or disapprove the agreement
within the 30-day period, the agreement shall take effect and shall be
binding on the agency and the exclusive representative subject to the
provisions of this chapter and any other applicable law, rule, or
regulation.
(4) A local agreement subject to a national or other controlling agreement
at a higher level shall be approved under the procedures of the controlling
agreement or, if none, under regulations prescribed by the agency.
(c)(1) An agreement between any agency and an exclusive representative shall
be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from
the date the agreement is executed if the agreement is in accordance with
the provisions of this chapter and any other applicable law, rule, or
regulation (unless the agency has granted an exception to the provision).
(3) If the head of the agency does not approve or disapprove the agreement
within the 30-day period, the agreement shall take effect and shall be
binding on the agency and the exclusive representative subject to the
provisions of this chapter and any other applicable law, rule, or
regulation.
(4) A local agreement subject to a national or other controlling agreement
at a higher level shall be approved under the procedures of the controlling
agreement or, if none, under regulations prescribed by the agency.
§ 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.
(2) The duty to bargain in good faith shall, to the extent not inconsistent
with Federal law or any Government-wide rule or regulation, extend to
matters which are the subject of any agency rule or regulation referred to
in paragraph (3) of this subsection only if the Authority has determined
under subsection (b) of this section that no compelling need (as determined
under regulations prescribed by the Authority) exists for the rule or
regulation.
(3) Paragraph (2) of the subsection applies to any rule or regulation issued
by any agency or issued by any primary national subdivision of such agency,
unless an exclusive representative represents an appropriate unit including
not less than a majority of the employees in the issuing agency or primary
national subdivision, as the case may be, to whom the rule or regulation is
applicable.
(b)(1) In any case of collective bargaining in which an exclusive
representative alleges that no compelling need exists for any rule or
regulation referred to in subsection (a)(3) of this section which is then in
effect and which governs any matter at issue in such collective bargaining,
the Authority shall determine under paragraph (2) of this subsection, in
accordance with regulations prescribed by the Authority, whether such a
compelling need exists.
(2) For the purpose of this section, a compelling need shall be determined
not to exist for any rule or regulation only if-
(A) the agency, or primary national subdivision, as the case may be, which
issued the rule or regulation informs the Authority in writing that a
compelling need for the rule or regulation does not exist; or
(B) the Authority determines that a compelling need for a rule or regulation
does not exist.
(3) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
be expedited to the extent practicable and shall not include the General
Counsel as a party.
(4) The agency, or primary national subdivision, as the case may be, which
issued the rule or regulation shall be a necessary party at any hearing
under this subsection.
(c)(1) Except in any case to which subsection (b) of this section applies,
if an agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the exclusive representative may appeal the allegation
to the Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in paragraph
(1) of this subsection, institute an appeal under this subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head of
the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to the
extent practicable and shall issue to the exclusive representative and to
the agency a written decision on the allegation and specific reasons
therefor at the earliest practicable date.
(d)(1) A labor organization which is the exclusive representative of a
substantial number of employees, determined in accordance with criteria
prescribed by the Authority, shall be granted consultation rights by any
agency with respect to any Government-wide rule or regulation issued by the
agency effecting any substantive change in any condition of employment. Such
consultation rights shall terminate when the labor organization no longer
meets the criteria prescribed by the Authority. Any issue relating to a
labor organization's eligibility for, or continuation of, such consultation
rights shall be subject to determination by the Authority.
(2) A labor organization having consultation rights under paragraph (1) of
this subsection shall-
(A) be informed of any substantive change in conditions of employment
proposed by the agency, and
(B) shall be permitted reasonable time to present its views and
recommendations regarding the changes.
(3) If any views or recommendations are presented under paragraph (2) of
this subsection to an agency by any labor organization-
(A) the agency shall consider the views or recommendations before taking
final action on any matter with respect to which the views or
recommendations are presented; and
(B) the agency shall provide the labor organization a written statement of
the reasons for taking the final action.
§ 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.
Sec. 1913. Lobbying with appropriated moneys
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, whether before or after the introduction of any bill or
resolution proposing such legislation or appropriation; 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. Whoever, being an officer
or employee of the United States or of any department or agency thereof,
violates or attempts to violate this section, shall be fined under this
title or imprisoned not more than one year, or both; and after notice and
hearing by the superior officer vested with the power of removing him,
shall be removed from office or employment.