ORAL ARGUMENT SCHEDULED FOR MAY 5, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 98-1452
_______________________________
GEORGIA 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
ORAL ARGUMENT SCHEDULED FOR MAY 5, 1999
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 Office of the Adjutant
General, Georgia Department of Defense, Atlanta, Georgia (agency) and
Georgia State Chapter, Association of Civilian Technicians (union). The
union is the petitioner in this court proceeding; the Authority is the
respondent. To date, no amicus has appeared in this case.
B. Rulings Under Review
The ruling under review in this case is the Authority's decision and
order in Office of the Adjutant General, Georgia Department of Defense,
Atlanta, Georgia and Georgia State Chapter, Association of Civilian
Technicians, Case No. AT-CA-60432, issued on July 31, 1998. The
Authority's decision is reported at 54 FLRA (No. 70) 654.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority is unaware of any cases pending before this
Court or any other court that are related to this case within the
meaning of Local Rule 28(a)(1)(C). However, counsel for the Authority
is aware of two cases that present the same issue that are pending in
other courts: Granite State Chapter, Association of Civilian
Technicians v. FLRA, No. 98-1810 (1st Cir. filed July 24, 1998, argued
Jan. 8, 1999); Association of Civilian Technicians, Silver Barons
Chapter, et al. v. FLRA, Nos. 98-70838 & 98-71031 (9th Cir. filed July
24 & Sept. 8, 1998).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
I. Background 3
A. Official Time 3
B. Prior Authority Cases on Official Time and Lobbying 4
II. The Authority's Decision 6
STANDARD OF REVIEW 9
SUMMARY OF ARGUMENT 10
ARGUMENT 12
THE AUTHORITY PROPERLY DETERMINED THAT A CONTRACT
PROVISION REQUIRING AN AGENCY TO USE APPROPRIATED
FUNDS TO SUPPORT UNION LOBBYING IS NOT ENFORCEABLE
BECAUSE THE PROVISION CONFLICTS WITH A STATUTE
THAT EXPRESSLY PROHIBITS, WITHOUT EXCEPTION, ANY
USE OF APPROPRIATED FUNDS FOR LOBBYING 12
A. The Plain Meaning of Section 8015 Prohibits the Use
of DOD Appropriations for the Lobbying Purposes Sought
by the Union 13
B. Principles of Statutory Construction Support the Authority's
Decision 14
C. The Union's Arguments as to Why the DOD Appropriations Act
May Be Ignored in This Case Are Not Within the Court's
Jurisdiction to Consider and, in Any Event, Lack Legal
and Logical Support 15
1. The Court does not have jurisdiction over the union's
arguments 16
2. The DOD Appropriations Act restriction clearly
applies to the request for official time for lobbying
at issue 18
3. The union's argument concerning annual leave lacks
merit 20
4. It is of no significance that the restriction in the DOD
Appropriations Act applies only to DOD employees 22
5. The Authority has reconciled the two statutes and
there has been no repeal by implication 22
6. Section 8015 prevails over section 7131(d) on the
issue of use of appropriated funds for official time
for lobbying activities 25
CONCLUSION 27
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT RULE 28 28
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III
1997) and pertinent regulations A-1
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 9
AFGE v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984) 26
Asiana Airlines v. Federal Aviation Admin., 134 F.3d 393
(D.C. Cir. 1998) 14
Association of Civilian Technicians, Mont. Air Chap. No. 29 v.
FLRA, 22 F.3d 1150 (D.C. Cir. 1994) 13
BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) 15
Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89
(1983) 10, 19
California Nat'l Guard v. FLRA, 697 F.2d 874
(9th Cir. 1983) 22
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) 9
Connecticut National Bank v. Germain, 503 U.S. 249 (1992) 14
Department of the Treasury v. FLRA, 837 F.2d 1163
(D.C. Cir. 1988) 9, 10
Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994) 15, 26
* EEOC v. FLRA, 476 U.S. 19 (1986) 16
Environmental Defense Ctr. v. Babbitt, 73 F.3d 867
(9th Cir. 1995) 18, 24
Overseas Educ. Ass'n, Inc. v. FLRA, 827 F.2d 814
(D.C. Cir. 1987) 16
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 9
Regan v. Taxation With Representation of Washington,
461 U.S. 540 (1983) 21
Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) 25
*Authorities upon which we chiefly rely are marked by asterisks.
UDC Chairs Chapter, Am. Ass'n of Univ. Professors v.
Board of Trustees of the Dist. of Columbia,
56 F.3d 1469 (D.C. Cir. 1995) 17
U. S. Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin.,
Nat'l Weather Serv., Silver Spring, Md. v. FLRA,
7 F.3d 243 (D.C. Cir. 1993) 16
U.S. Dep't of Interior Minerals Mgt. Serv. v. FLRA,
969 F.2d 1158 (D.C. Cir. 1992) 17
United States v. Lin, 101 F.3d 760 (D.C. Cir. 1996) 14
United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 14
United States v. Will, 449 U.S. 200 (1980) 25
West Point Elementary Sch. Teachers Ass'n v. FLRA,
855 F.2d 936 (2d Cir. 1988) 9
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of Health & Human Servs., Social Security Admin.
and AFGE, Local 3231, 11 FLRA 7 (1983) 5
* Department of the Navy, U.S. Marine Corps, 34 FLRA 635
(1990) 4, 12
* General Servs. Admin., Wash., D.C., 50 FLRA 136 (1995) 12
Headquarters, National Guard Bureau, Washington, D.C.,
Nevada Air National Guard, Reno, Nevada, 54 FLRA
(No. 39) 316 (May 29, 1998), decision on reconsideration,
54 FLRA (No. 62) 595 (July 24, 1998), petition for review
filed sub nom. Silver Barons v. FLRA, Nos. 98-70838 (9th Cir.
July 24 & Sept. 8, 1998) 4, 8, 17
NFFE, Local 122 and U.S. Dep't of Veterans Affairs, Regional
Office, Atlanta, Ga., 47 FLRA 1118 (1993) 5
NFFE Local 2015 & U.S. Dep't of the Interior Nat'l Park Servs.,
41 FLRA 1158 (1991) 4
* Office of the Adjutant General, New Hampshire National Guard,
Concord, New Hampshire, 54 FLRA (No. 38) 301
(May 29, 1998), petition for review filed sub nom. Granite
State Chapter, Association of Civilian Technicians v. FLRA,
No. 98-1810 (1st Cir. July 24, 1998) passim
U.S. Department of the Army Corps of Engineers, Memphis
District, Memphis, Tenn. and NFFE, Local 259,
52 FLRA 920 (1997) 5, 26
FEDERAL STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) 1
5 U.S.C. § 7102 23
5 U.S.C. § 7102 (1) 3
5 U.S.C. § 7105 (a)(2)(G) 1
5 U.S.C. § 7116 (a)(1) 2, 9
5 U.S.C. § 7116 (a)(5) 2, 9
5 U.S.C. § 7117 11, 22
5 U.S.C. § 7117 (a) 23
5 U.S.C. § 7123 (a) 1
5 U.S.C. § 7123(c) 9, 16
5 U.S.C. § 7131 23
5 U.S.C. § 7131(a) 3
5 U.S.C. § 7131(b) 3, 20
5 U.S.C. § 7131(c) 3
* 5 U.S.C. § 7131(d) passim
5 U.S.C. § 706(2)(A) 9
5 U.S.C. § 5551 20
* 18 U.S.C. § 1913 passim
Civil Service Reform Act of 1978, Pub. L. 95-454,
92 Stat. 1214 26
* 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) 3, 21
5 C.F.R. § 734.306 21
5 C.F.R. § 2429.1 (a) 6
5 C.F.R. § 2429.17 17
MISCELLANEOUS
General Accounting Office, 63 Comp. Gen. 624 (1984) 19
General Accounting Office, B-192746 (Mar. 7, 1979) 19
General Accounting Office, Principles of Federal Appropriations
Law, Chapter 4 (2d ed. 1991) 22
5 U.S. Op. Off. Legal Counsel 180 (1981) 24
GLOSSARY
agency or Defense National Guard Office of the Adjutant General, Georgia Department of
App. Appendix
Babbitt Environmental Defense Ctr. v. Babbitt, 73 F.3d 867 (9th Cir.
1995)
Br. Brief for Petitioner
BATF Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89 (1983)
CBA Collective Bargaining Agreement
Corps of Engineers U.S. Dep't of the Army Corps of Engineers, Memphis District,
Memphis, Tenn. And NFFE, Local 259, 52 FLRA 920 (1997)
DOD Department of Defense
Department of the Navy Department of the Navy, U.S. Marine Corps, 34 FLRA 635
(1990)
Department of the Treasury Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir.
1988)
Detweiler Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994)
FLRA or Authority Federal Labor Relations Authority
Nevada National Guard Headquarters, Nat'l Guard Bureau, Washington, D.C., Nevada
Air Nat'l Guard, Reno, Nevada, 54 FLRA (No. 39) 316 (May 29, 1998)
New Hampshire National Guard Office of the Adjutant General, New Hampshire Nat'l Guard,
Concord, New Hampshire, 54 FLRA (No. 38) 301 (May 29, 1998)
petitioner or union Georgia State Chapter, Association of Civilian Technicians
Robertson Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992)
SSA Department of Health & Human Servs., Social Security Admin.
and AFGE, Local 3231, 11 FLRA 7 (1983)
Statute Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)
ULP Unfair Labor Practice
VA Atlanta NFFE, Local 122 and U.S. Dep't of Veterans Affairs, Regional
Office, Atlanta, Ga., 47 FLRA 1118 (1993)ORAL ARGUMENT SCHEDULED FOR MAY 5, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 98-1452
_______________________________
GEORGIA 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 54 FLRA (No.
70) 654 (July 31, 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. III 1997)
(Statute).[1] This Court has jurisdiction to review the Authority's final
decisions and orders pursuant to section 7123(a) of the Statute.
STATEMENT OF THE ISSUE
Whether the Authority properly determined that a collective bargaining
agreement provision requiring an agency to use appropriated funds to support
union lobbying is not enforceable 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 Office of the Adjutant General, Georgia Department of
Defense (the "agency" or "National Guard") refused to enforce a collective
bargaining agreement (CBA) provision requiring the agency to use
appropriated funds to pay for official time for lobbying. Appendix (App.)
3. The National Guard asserted that the provision 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. App. 5-6.
Because a CBA provision that is contrary to law is unenforceable, the agency
denied requests, pursuant to the CBA, for such official time. App. 5.
Petitioner Georgia State Chapter, Association of Civilian Technicians
("petitioner" or "union") filed a ULP 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 by repudiating a
provision of the parties' CBA regarding the use of official time for
lobbying activities. App. 3. The Authority concluded that the agency had
not committed the ULP alleged and, accordingly, dismissed the complaint.
App. 3.
STATEMENT OF THE FACTS
I. Background
A. Official Time
In the federal sector, many unions rely on employees in the agencies in
which the unions hold recognition to perform representational functions. A
grant of official time allows employees to perform union representational
functions during normal duty hours and to be paid as if they were performing
work for the agency, without being charged for annual leave. Official time
is considered "hours of work." 5 C.F.R. § 551.424(b).
Section 7131 governs the extent to which agency employees representing a
union may conduct representational activities on "official time." In
subsections (a) and (c) of section 7131, not involved in this case, Congress
mandated 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"[2] 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).
Parties may negotiate under section 7131(d) for official time for a variety
of matters; however, proposals involving official time must be 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) (finding proposal for official time is outside the duty to
bargain because the purpose of the official time conflicted with a
regulation). 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) (Department of the
Navy).
B. Prior Authority Cases on Official Time and Lobbying
In this case the Authority considered whether a contract provision requiring
an agency to pay 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. A few months before the decision in this case, the
Authority considered this issue in two other cases.[3] In New Hampshire
National Guard, the Authority found that a proposal for official time for
lobbying Congress was non-negotiable because it is inconsistent with section
8015 of the 1996 DOD Appropriations Act. Similarly, in Nevada National
Guard, the Authority determined that a Federal Service Impasses Panel-
imposed contract provision for official time for lobbying was not within an
agency's duty to bargain because it is inconsistent with section 8015.
Prior to these three cases, the Authority had addressed and upheld the use
of official time for lobbying in three prior cases.[4] In VA Atlanta, the
Authority found negotiable a proposal for official time for lobbying
purposes; however, the argument that such a proposal conflicted with an
anti-lobbying statute was not raised. VA Atlanta, 47 FLRA at 1126-27. In
the other two cases, SSA and Corps of Engineers, the Authority considered
whether grants of official time for lobbying conflicted with 18 U.S.C. §
1913. In SSA, the Authority concluded, without discussion, that an
arbitration 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. These three cases did not
consider the question at issue in this case: whether a contract provision
requiring an agency to use appropriated funds to pay for official time for
lobbying conflicts with a prohibition against using appropriated funds to
lobby like the prohibition in the 1996 DOD Appropriations Act.
II. The Authority's Decision[5]
The parties' CBA contains a provision that authorizes official time for
several specific purposes. As relevant to this case, section 5.2(a) of that
agreement states:
The Labor Organization is authorized two thousand two hundred (2200)
hours of administrative leave[6] for the following purposes:
. . .
(3) Represent Technicians by visiting elected
representatives in support or opposition to pending
or desired legislation which would impact the
working conditions of Technicians represented by ACT.
App. 4.
In August of 1995, and again several times thereafter, the union requested
official time to meet with members of Congress to discuss matters of
interest to the union. App. 5. Since September 1995, the agency has denied
such requests because, in the agency's view, several federal laws,
specifically 18 U.S.C. § 1913 and both section 8001 and section 8015 of the
1996 DOD Appropriations Act, prohibit the use of federal funds to support
lobbying activities.[7] App. 5. Therefore, the agency argued, section 5.2
of the CBA is unenforceable and its failure to comply with the contract
provision is not a ULP. App. 11. However, the agency did allow union
officials to use annual leave for the purpose of lobbying Congress. App. 5,
9.
The Authority first discussed relevant precedent bearing on the contract
repudiation issue presented in this case. It noted in this regard that
"collective bargaining agreement provisions that are contrary to law are not
enforceable under the Statute" and that an agency's refusal to comply with
such a provision is not a ULP. App. 10.
Turning to the agency's arguments, the Authority found them to be
essentially the same as those raised in New Hampshire National Guard and
Nevada National Guard. App. 11. The Authority followed the reasoning
developed in New Hampshire National Guard and found the official time
provision at issue to be inconsistent with section 8015 of the 1996 DOD
Appropriations Act[8] and, therefore, unenforceable. App. 14-16.
Accordingly, the Authority dismissed the complaint.
The Authority determined that the provision does not conflict with section
1913 and section 8001 because both of those sections contain an exception to
their restrictions-- they do not prohibit the expenditure of federal funds
for purposes that have been authorized by Congress. App. 11-14. 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. 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 -- the Authority
determined that section 8015 bars the use of appropriated funds for official
time for lobbying. The Authority refused in this regard to create an
exception that Congress had chosen not to include. App. 14-15.
Based on the above, the Authority determined[9] that the contract provision
is contrary to section 8015 of the 1996 DOD Appropriations Act and therefore
the agency did not violate section 7116(a)(1) or (5) of the Statute when it
denied requests for official time for lobbying. Accordingly, the Authority
dismissed the complaint. App. 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); 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.
The instant case involves the Authority's interpretation of its own organic
statute as it relates to another agency's appropriations act. 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) (Department of the Treasury). 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.
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." Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89, 97 (1983) (BATF) (citation omitted). 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.
SUMMARY OF ARGUMENT
The Authority properly determined that the CBA's provision, setting forth
that the agency agree to provide union representatives official (paid) time
to lobby Congress, is contrary to law and hence not enforceable. Section
8015 of the DOD Appropriations Act expressly prohibits the agency from using
appropriated funds to influence "in any way" -- "directly or indirectly" --
legislation pending before Congress. The Authority correctly concluded that
the CBA's provision is not enforceable because it is contrary to the DOD
Appropriations Act.
The Authority's construction of section 8015 heeds the prohibition in that
section's plain language that, without exception, a DOD agency 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. As a threshold matter, these arguments are not properly
before the court because they were not raised first to the Authority in this
case. In any event, each of the union's arguments lacks merit. 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. Further, the agency is
paying the wages for the performance of the designated functions for which
the official time is sought -- here, lobbying.
Second, the union's argument concerning annual leave is a red herring:
neither the agency nor the Authority's interpretation of section 8015
prevents the employees from lobbying on annual leave. Third, the fact that
the restrictions in the DOD Appropriations Act apply only to DOD employees
is irrelevant. Appropriations acts, by their nature, are agency-specific.
In addition, the Statute envisions that a proposal may be negotiable for one
agency and not for another. See 5 U.S.C. § 7117.
Fourth, contrary to the union's assertion, the Authority has reconciled the
Statute and the DOD Appropriations Act, and, accordingly, there has been no
repeal by implication. Under the Statute, a contract provision that is
contrary to law is unenforceable. Thus, finding a provision unenforceable
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. Moreover, even if repeals by implication are 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 use of agency resources
for lobbying, because section 8015 is the more specific and later statute on
that issue. Section 8015 expressly prohibits any use of appropriated funds
by a DOD agency 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 CONTRACT PROVISION REQUIRING AN AGENCY
TO USE APPROPRIATED FUNDS TO SUPPORT UNION LOBBYING IS NOT ENFORCEABLE BECAUSE
THE PROVISION CONFLICTS WITH A STATUTE THAT EXPRESSLY PROHIBITS, WITHOUT
EXCEPTION, ANY USE OF APPROPRIATED FUNDS FOR LOBBYING.
Under the Statute, CBA provisions that are contrary to law are not
enforceable, and an agency's refusal to honor such a provision does not
constitute unlawful repudiation of the agreement. App. 10; General Servs.
Admin., Wash., D.C., 50 FLRA 136, 139 (1995); Department of the Navy, 34
FLRA at 638-39. The question in this case is whether a CBA provision that
grants official time for representational lobbying is contrary to a statute
that prohibits, specifically and without exception, the agency from using,
directly or indirectly, appropriated funds to support efforts to influence
pending legislation.
The Authority correctly determined that this provision is not enforceable
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 CBA provision grants. Second, rules of statutory
construction support this holding. Finally, the union's arguments to ignore
the express language of the 1996 DOD Appropriations Act are not properly
within the Court's jurisdiction to consider, and, in any event, 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," "to influence Congressional action" on pending legislation. It
is difficult to imagine how Congress could have drawn the restriction more
clearly.
The CBA's official time provision would require the agency to violate the
clear restriction plainly set forth in section 8015 by requiring the agency
to use appropriated funds to pay for official time for union representatives
to visit "elected representatives in support or opposition to pending or
desired legislation." App. 4. Indeed, lobbying is the sole and express
purpose for which the union asks the agency to use its resources in the form
of official time. However, it is precisely this use of appropriated funds
that section 8015 prohibits. Accordingly, the CBA provision, requiring the
agency to use appropriated funds specifically to fund the union's lobbying
activities, is inconsistent with law, and not enforceable under the Statute.
See New Hampshire National Guard, App. 28 (agency not obligated to bargain
over proposal for official time for lobbying purposes because proposal is
inconsistent with section 8015); see also Association of Civilian
Technicians, Mont. Air Chap. No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir.
1994) ("[N]onnegotiability can ordinarily be asserted as a defense to a
charge that the agency has violated the terms of an agreement,
notwithstanding the agency's initial failure to reject the proposal.").
B. Principles of Statutory Construction Support the Authority's Decision.
Principles of statutory construction support the Authority's determination that
section 8015 prohibits the agency's 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'l
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); United States v. Lin, 101 F.3d 760, 765-66
(D.C. Cir. 1996). 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); Asiana
Airlines v. Federal Aviation Admin., 134 F.3d 393, 398 (D.C. Cir. 1998) ("A
cardinal principle of interpretation requires us to construe a statute 'so that
no provision is rendered inoperative or superfluous, void or insignificant.'")
(citation omitted). As the Authority noted (App. 13-15), section 8001 of the
1996 DOD Appropriations Act contains an exception to that section's restriction
on "publicity and propaganda"; i.e., the restriction does not apply if such
activity has been "authorized by the Congress." In contrast, section 8015
contains no such exception. 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); Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir.
1994) (Detweiler) ("Where a statute contains explicit exceptions, the courts are
reluctant to find other implicit exceptions.").
Ignoring this critical difference between the sections, the union attempts to
read section 8001's exception into section 8015 by arguing (Brief for Petitioner
("Br.") at 12-13) 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 DOD Appropriations Act May Be Ignored in
This Case Are Not Within the Court's Jurisdiction to Consider and, in Any Event,
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 DOD Appropriations Act does not apply (Br. at
8-9); the Authority's decision is invalid because it would prohibit employees
from lobbying on annual leave (Br. at 10-11); the Authority's interpretation is
suspect because it targets defense department employees (Br. at 11-12); the
Authority failed to reconcile the statutes and repeal by implication is
disfavored (Br. at 8-9); and even if the DOD Appropriations Act applied, the
Statute is more specific and therefore should prevail over the DOD
Appropriations Act (Br. at 12-13). None of these objections was presented to
the Authority in this case and, therefore, should not be considered by this
Court. See 5 U.S.C. § 7123(c). In any event, as explained below, each of
these arguments lacks merit.
1. The Court does not have jurisdiction over
the union's arguments.
It is well-established that a party may not raise before the Court an argument
not presented to the Authority. Pursuant to 5 U.S.C. § 7123(c), "[n]o objection
that has not been urged before the Authority . . . shall be considered by the
court [of appeals] . . . ." The Supreme Court has applied the plain words of
this section and held that "under section 7123(c), review of 'issues that [a
party] never placed before the Authority' is barred absent extraordinary
circumstances." EEOC v. FLRA, 476 U.S. 19, 23 (1986) (citation omitted). Thus,
the Court will refuse to consider even arguments that encompass a "somewhat
different twist" to the argument advanced before the Authority. Overseas Educ.
Ass'n, Inc. v. FLRA, 827 F.2d 814, 820 (D.C. Cir. 1987). The requirements of
section7123(c) apply even as to issues that the Authority raises sua sponte.
See U. S. Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Weather
Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243, 245-46 (D.C. Cir. 1993) (noting
that the party should have filed a motion for reconsideration concerning an
issue raised by the Authority sua sponte).
None of the arguments regarding section 8015 urged to this Court by petitioner
was offered to the Authority in this case and, accordingly, this Court lacks
jurisdiction to consider them. Petitioner never filed a brief before the
Authority, relying instead completely on the General Counsel to prosecute the
case. See Certified List, App. at 1-2. In the FLRA proceedings, the General
Counsel, however, did not make any arguments with regard to the Appropriations
Act. In addition, petitioner failed to move the Authority for reconsideration
under the Authority's regulations. 5 C.F.R. § 2429.17. Although the bulk of
petitioner's arguments were raised in some form by other chapters of the
Association of Civilian Technicians (ACT) in New Hampshire National Guard and
Nevada National Guard, as petitioner points out in its brief's Certificate as to
Parties, Rulings, and Related Cases, "petitioner Georgia State Chapter is not
'substantially the same part[y]' as any of the other chapters" of ACT.
Therefore, because no arguments regarding section 8015 were made to the
Authority in this case, petitioner may not present them here.
Further, there are no extraordinary circumstances that would excuse petitioner's
failure to exhaust its administrative remedies. In June 1997, when the parties
briefed the issues, the Authority had never considered the relationship between
section 8015 and representational lobbying on official time. The fact that the
Authority later found in New Hampshire National Guard and Nevada National Guard
representational lobbying to be inconsistent with section 8015 does not excuse
petitioner's failure to make objections on the basis of section 8015 in this
case.[10] Accordingly, this Court should decline jurisdiction to hear
petitioner's arguments and objections that it did not raise to the Authority.
2. The DOD Appropriations Act restriction clearly applies to the request for
official time for lobbying at issue .
Even if this Court were to find that it has jurisdiction to consider the union's
arguments concerning section 8015, it should reject them because they have no
merit. The union argues (Br. at 8-9) that section 8015 does not "clearly"
prohibit the CBA provision at issue in this case. The union is wrong. It takes
two elements to violate an appropriations act restriction like 8015 -- (1) an
agency's use of appropriated funds (2) to influence congressional action on
pending legislation. Here, the CBA provision involves both components -- money
and purpose. The agency is being asked to (1) use appropriated funds (by paying
for official time) (2) for the express purpose of supporting the union's efforts
to influence pending legislation. The union's objections as to both points are
groundless.
First, 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 10. The union is simply wrong: the allotment of official time results
in the agency's use of appropriated funds to pay for wages.[11] See New
Hampshire National Guard, App. 26; Environmental Defense Ctr. v. Babbitt, 73
F.3d 867, 871-72 (9th Cir. 1995) (Babbitt) ("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.").
Second, the union asks this court to ignore the purpose for which the official
time will be used by arguing that the agency's use of appropriated funds to pay
for employees' wages during periods when they are on official time can "be
construed to be use of appropriated funds to pay wages, period." Br. at 9.
This argument, too, lacks merit. The CBA explicitly states that the official
time will be used to influence Congress on pending legislation -- a use
specifically restricted by section 8015.
The union also argues (Br. at 11) that section 8015 does not prohibit lobbying
on official time because employees on official time are not acting in their
"official capacity" or "duty status," relying on BATF, 464 U.S. at 105. The
union's reliance on BATF is misplaced. First, the issue in BATF -- whether
employees on official time were entitled to per diem and travel expenses --
turned on whether the employees were acting in their "official capacity" because
that is what the Travel Expense Act requires. In contrast, the restrictions in
section 8015 are not limited to employees acting in their official capacity.
Its restrictions are much broader. The General Accounting Office has found, for
example, that agencies violate similar appropriations act restrictions when they
provide personnel to private associations for lobbying. See, e.g., B-192746
(Mar. 7, 1979) (Maritime Administration found to violate appropriations act
restriction by "expend[ing] appropriated funds in providing staff" to private
employer trade association with the knowledge that such support was being used
to lobby) (cited in New Hampshire National Guard, App. 28); cf. 63 Comp. Gen.
624, 630 (1984) (noting that if federal judges were to use "their official time,
clerical staff, office supplies, or facilities in support of [a private
organization's lobbying, it] would involve the use of federal funds for an
illegal purpose") (cited in New Hampshire National Guard, App. 29). Thus,
section 8015 clearly prohibits what the CBA official time provision grants --
agency subsidizing of lobbying.
3. The union's argument concerning annual leave lacks merit.
Petitioner argues that the Authority's interpretation of 8015 is wrong because
it would prevent employees from lobbying on annual leave. Br. at 10-11. The
union attacks a straw man -- the CBA provision at issue here concerns "official
time" not "annual leave." Further, it is undisputed that union officials in
this case were allowed to use annual leave to lobby. App. 5, 9.
In addition, the union's comparison of annual leave and official time is
inappropriate in the context of an appropriations act restriction, which, as
shown above, requires two elements, money and purpose. While it is true that
both annual leave and official time are "paid time," the purposes for which an
agency pays the employee while on annual leave and while on official time are
completely different. With annual leave, the agency pays the employee for
what he or she has already earned; annual leave is a form of compensation for
services rendered. The employee is not getting paid for whatever the employee
does while out on annual leave. Once the annual leave is earned, the employee
does not have to do anything further to be entitled to the annual leave.
Indeed, an employee can, upon separation from government employment, receive a
lump-sum payment for accrued, but unused, annual leave. See 5 U.S.C. § 5551
(1994 & Supp. III 1997). Further, the purpose for which an individual uses his
or her annual leave does not have to be agreed upon -- it is irrelevant.
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").
In contrast, with official time the agency is subsidizing the union's
representational activities. In that situation, the agency pays the employee
to perform union activities -- the employee is getting paid for what he or she
is doing on official time and the agency and the union agree to the purpose.
Here, the union wants personnel for lobbying purposes, a purpose inconsistent
with 8015.[12]
Because the union's claim that official time and annual leave are comparable
uses of appropriated funds fails, its dependent claim (Br. at 10-11), 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 is inconsistent with
the DOD Appropriations Act -- does not prohibit an individual from choosing 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). Indeed, in this case, union
officials have used annual leave to lobby Congress. App. 5, 9.
4. It is of no significance that the restriction in the DOD Appropriations Act
applies only to DOD employees.
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. Further, other laws have effected the Statute in ways that applied
only to one agency. See, e.g., California Nat'l Guard v. FLRA, 697 F.2d 874,
879 (9th Cir. 1983) (finding that, because of a federal law, National Guard
technicians could not bargain over certain grievance procedures, even though all
other federal employees could bargain over such matters). Indeed, the Statute
envisions that there will be agency-specific negotiability determinations. See
5 U.S.C. § 7117 (duty to bargain does not extend to proposals that are
inconsistent with an agency's regulation when the agency has a compelling need
for that regulation). Finally, as a factual matter, some other agencies'
appropriations acts contain restrictions like section 8015. See General
Accounting Office, Principles of Federal Appropriations Law at 4-170 (2d ed.
1991).
5. The Authority has reconciled the two statutes and there has been no
repeal by implication.
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 8) and that the Authority "overlooked its obligation to
reconcile the statutes" (Br. at 9). As discussed below, the Authority has
reconciled the Statute and the DOD Appropriations Act, and, therefore, there has
not been any repeal by implication in this case.[13] 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. For example, section 7102 remains intact. It is
still a protected activity for an employee "to present the views of the labor
organization to . . . the Congress." 5 U.S.C. § 7102. Likewise, section 7131
remains intact. Parties can still negotiate over proposals for official time,
as long as the specific proposal -- like any proposal under the Statute -- is
not inconsistent with federal law. See 5 U.S.C. § 7117(a); New Hampshire
National Guard, App. 23 (No duty to bargain over a proposal, including a
proposal for official time under section 7131(d), unless the proposal is
"consistent with law, rule, and regulation."). Similarly, under the Statute, an
agency has a duty to honor contract provisions -- including provisions for
official time -- only to the extent that they are consistent with federal law.
App. 10.
In addition, 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. The Statute
itself envisions that other laws will place limitations on the agency's duties
under the Statute. In ruling that the CBA's official time for lobbying
provision is not enforceable because it is inconsistent with section 8015's
prohibition on the use of agency funds for such activities, the Authority thus
merely recognized the Statute's own limitation on the bargaining obligation and,
in doing so, reconciled the two statutes.[14] Therefore, the union's
contention that the Authority's decision is flawed for failing to reconcile the
two statutes should be rejected.
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's Office of Legal Counsel 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). See also Babbitt, 73 F.3d at 871
(an appropriations act that precludes expenditure of funds on activities
mandated by another statute does not "repeal" that statute, "it only temporarily
removes the funds available for carrying out the duty").
As discussed above, 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. 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) (Robertson). 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) (citation
omitted). 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.
6. Section 8015 prevails over section 7131(d) on the issue of use of
appropriated funds for official time for lobbying activities.
If the court views the two statutes as irreconcilably in conflict, the DOD
Appropriations Act is the later and more specific statute on the subject of use
of appropriated funds for lobbying, and therefore prevails over section 7131(d)
of the Statute. The union's claim (Br. at 12-13) that the Statute should
prevail over the 1996 DOD Appropriations Act restrictions on the use of
appropriated funds for lobbying is without merit. In New Hampshire National
Guard, the Authority, responding to a union's argument, ruled that it was
"unable to conclude that [section 7131(d)] is more specific than the explicit
and targeted prohibition in section 8015." App. 29. 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 a DOD
agency 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. On
the subject of proper uses for a particular allotment of federal funds, the DOD
Appropriations Act is clearly the more specific statute.[15] See AFGE v. FLRA,
730 F.2d 1534, 1546 (D.C. Cir. 1984) (specific statute, National Guard
Technicians Act, prevails over more general statute, Federal Labor-Management
Relations Statute).
Moreover, consistent with canons of statutory construction, when two statutes
are irreconcilable, the later-enacted statute is generally preferred. See,
e.g., Detweiler, 38 F.3d at 594. 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
February 1999
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28
Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 28, I
certify that the attached brief is proportionately spaced, utilizes 14-point
serif type, and contains 7,907 words.
February 12, 1999
___________________________
Judith A. Hagley
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
GEORGIA STATE CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS,
Petitioner
v. No. 98-1452
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by first-class mail, upon the
following:
Daniel M. Schember
Gaffney & Schember, P.C.
1666 Connecticut Avenue, N.W.
Suite 225
Washington, D.C. 20009
_________________________
Jennifer A. Baker
Paralegal Specialist
February 12, 1999
STATUTORY AND REGULATORY ADDENDUM
TABLE OF CONTENTS
1. 5 U.S.C. § 7102 (1) A-1
2. 5 U.S.C. § 7105 (a) (2) (G) A-2
3. 5 U.S.C. § 7116 (a) (1), (5) A-3
4. 5 U.S.C. § 7117 (a) A-4
5. 5 U.S.C. § 7123 (a), (c) A-5
6. 5 U.S.C. § 7131 A-7
7. 5 C.F.R. § 551.424 (b) A-8
8. 5 C.F.R. § 734.306 A-9
9. 5 C.F.R. § 2429.1 (a) A-11
10. 5 C.F.R. § 2429.17 A-12
§ 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;
§ 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;§ 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.
(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.§ 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.
Code of Federal Regulations
Title 5, Volume 1, Parts 1 to 699
Revised as of January 1, 1998
From the U.S. Government Printing Office via GPO Access
CITE: 5CFR551.424
[Page 548]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT--Table of
Contents
Subpart D--Hours of Work
Sec. 551.424 Time spent adjusting grievances or performing representational
functions.
* * * * * * * * * * * * *
(b) ''Official time'' granted an employee by an agency to perform
representational functions during those hours when the employee is otherwise
in a duty status shall be considered hours of work. This includes time spent
by an employee performing such functions during regular working hours
(including regularly scheduled overtime hours), or during a period of
irregular, unscheduled overtime work, provided an
event arises incident to representational functions that must be dealt with
during the irregular, unscheduled overtime period.Code of Federal Regulations
Title 5, Volume 2, Parts 700 to 1199
Revised as of January 1, 1998
From the U.S. Government Printing Office via GPO Access
CITE: 5CFR734.306
[Page 39-40]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES--Table of Contents
Subpart C--Prohibited Activities
Sec. 734.306 Participation in political activities while on duty, in uniform,
in any room or building occupied in the discharge of official duties, or using a
Federal vehicle.
(a) An employee may not participate in political activities subject to the
provisions of subpart E of this part:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, insignia, or other similar
item that identifies the employing agency or instrumentality or the position
of the employee;
(3) While he or she is in any room or building occupied in the discharge of
official duties by an individual employed or holding office in the
Government of the United States or any agency or instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using a
privately-owned vehicle in the discharge of official duties.
(b) The prohibitions in paragraph (a) of this section do not apply to
employees covered under subpart E of this part.
* * * * * * * * * * * * *
Example 11: If a political event begins while an employee is on duty and
continues into the time when he or she is not on duty, the employee must
wait until he or she is not on duty to attend the event. Alternatively, an
employee may request annual leave to attend the political event when it
begins.
Example 12: Officials of labor organizations who have been given official
time to perform representational duties are on duty.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]Code of
Federal Regulations
Title 5, Volume 3, Parts 1200 to end
Revised as of January 1, 1998
From the U.S. Government Printing Office via GPO Access
CITE: 5CFR2429.17
[Page 403-404]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS--Table of Contents
Subpart A--Miscellaneous
Sec. 2429.17 Reconsideration.
After a final decision or order of the Authority has been issued, a party to
the proceeding before the Authority who can establish in its moving papers
extraordinary circumstances for so doing, may move for reconsideration of
such final decision or order. The motion shall be filed within ten (10) days
after service of the Authority's decision or order. A motion for
reconsideration shall state with particularity the extraordinary
circumstances claimed and shall be supported by appropriate citations. The
filing and pendency of a motion under this provision shall not operate to
stay the effectiveness of the action of the Authority, unless so ordered by
the Authority. A motion for reconsideration need not be filed in order to
exhaust administrative remedies.
[46 FR 40675, Aug. 11, 1981]
[1] Pertinent statutory and regulatory provisions are set forth in Addendum
A to this brief.
[2] 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).
[3] See Office of the Adjutant General, New Hampshire Nat'l Guard, Concord,
New Hampshire, 54 FLRA (No. 38) 301 (May 29, 1998) (New Hampshire National
Guard) (a copy of this decision is at App. 18-32), petition for review filed sub
nom. Granite State Chapter, Association of Civilian Technicians v. FLRA, No.
98-1810 (1st Cir. July 24, 1998) and Headquarters, National Guard Bureau,
Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA (No. 39) 316
(May 29, 1998), decision on reconsideration, 54 FLRA (No. 62) 595 (July 24,
1998) (Nevada National Guard), petition for review filed sub nom. Silver Barons
v. FLRA, Nos. 98-70838 & 98-71031 (9th Cir. July 24 & Sept. 8, 1998).
[4] See U.S. Dep't of the Army Corps of Engineers, Memphis District, Memphis,
Tenn. and NFFE, Local 259, 52 FLRA 920 (1997) (Corps of Engineers); NFFE, Local
122 and U.S. Dep't of Veterans Affairs, Regional Office, Atlanta, Ga., 47 FLRA
1118 (1993) (VA Atlanta); and Department of Health & Human Servs., Social
Security Admin. and AFGE, Local 3231, 11 FLRA 7 (1983) (SSA).
[5] This ULP 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.
App. 3.
[6] As the Authority noted, although the CBA uses the term "administrative
leave," the parties had stipulated that this provision was negotiated pursuant
to section 7131(d) of the Statute and that the terms "administrative leave" and
"official time" are interchangeable. App. 4 n. 3. For the sake of clarity,
this brief will use the term "official time."
[7] 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).
[8] The Authority applied the 1996 DOD Appropriations Act in this case because
at least one of the denials of official time occurred during the pendency of
that Act and because the agency raised the provisions of the 1996 Act as a
defense to its conduct. The DOD Appropriations Act for both 1997 and 1995
contain restrictions identical to sections 8001 and 8015 of the 1996 Act, and
the Authority noted that it would reach the same result under both the 1995 and
1997 Acts. App. 13 n.8.
[9] Member Wasserman dissented, finding that section 8015 precludes neither
agency officials nor union officials from direct contact with Congress "while on
the clock." App. 17.
[10] The union cannot establish the extraordinary circumstance of futility.
Futility will not be found unless "'an agency has articulated a very clear
position on the issue which it has demonstrated it would be unwilling to
reconsider.'" UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Board of
Trustees of the Dist. of Columbia, 56 F.3d 1469, 1475 (D.C. Cir. 1995) (citation
omitted); but see U.S. Dep't of Interior Minerals Mgt. Serv. v. FLRA, 969 F.2d
1158, 1161 (D.C. Cir. 1992). At the time that this case was briefed to the
Authority, there were no Authority cases, let alone well-established and long-
standing precedent, regarding the consistency of official time provisions and
appropriation act restrictions like section 8015.
[11] The union creates some confusion on this issue by ignoring the distinction
between an agency's use of appropriated funds and the employees' use of their
salaries. The union argues in this regard (e.g., Br. at 5-6, 9, 10) that
section 8015 does not cover "each purchase that is made with wages" and that the
employees' "receipt of pay" is not a "use of appropriated funds." The question
in this case, however, is not what the employee does with his or her money --
the question is what the agency does with its money, that is, the appropriated
funds.
[12] The union is mistaken when it posits that there are two different types
of time -- duty time and non-duty time -- and states that "official time, like
annual leave, is non-duty time." E.g. Br. at 1. Section 7131 envisions three,
not two, different situations -- (1) duty status, when the employee is
performing duties for the agency; (2) official time, when the employee is
performing representational functions for the union; and (3) "non-duty" time,
like annual leave, when the employee may perform internal union business and is
prohibited from being on official time. 5 U.S.C. § 7131. Official time and
duty status -- unlike annual leave -- "shall be considered hours of work." 5
C.F.R. § 551.424(b).
[13] The union incorrectly states (Br. at 9) that the Authority concluded in
this case that section 8015 conflicts with the Statute. This is not accurate.
The Authority found that section 8015 conflicts with the CBA provision, and,
therefore, the provision is unenforceable. App. 15.
[14] The union's suggestion (e.g., Br. at 10) that the Statute grants federal
employees the absolute right to use official time for lobbying is also
inaccurate. As the Authority has 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, App. 23. 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.
[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 8015
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.