54:0301(38)CA - - Office of the Adjutant General, NH NG, Concord NH & Granite State Chapter, ACT - - 1998 FLRAdec CA - - v54 p301
[ v54 p301 ]
The decision of the Authority follows:
54 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF THE ADJUTANT GENERAL
NEW HAMPSHIRE NATIONAL GUARD
CONCORD, NEW HAMPSHIRE
GRANITE STATE CHAPTER
ASSOCIATION OF CIVILIAN TECHNICIANS
DECISION AND ORDER
May 29, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. The parties have agreed that no material issue of fact exists. The General Counsel, the Charging Party (or Union) and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over a proposal that is substantially identical to a proposal found negotiable by the Authority in National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993) (VA Atlanta).
For the reasons explained below, we conclude that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we dismiss the complaint.
During collective bargaining negotiations, the Charging Party submitted the following proposal:
Association officials will be granted not to exceed two days annually, official time to represent the bargaining unit by visiting, phoning, and writing to elected representatives in support of or opposition to pending desired legislation which would impact the working conditions of employees represented by the Association.
Stipulation at 3.
The Respondent refused to bargain over the proposal on the ground that the proposal was inconsistent with the anti-lobbying provisions of both 18 U.S.C. § 1913 and the DOD Appropriations Act, Pub. L. No. 104-61, §§ 8001, 8015, 109 Stat. 636, 651-54 (1996). The Respondent claimed that the Authority's decision in VA Atlanta did not consider the anti-lobbying provisions of either statute.
Following the Respondent's refusal to bargain, the General Counsel issued an unfair labor practice complaint alleging that the Respondent violated the Statute by refusing to bargain over a proposal substantially identical to a proposal previously found negotiable by the Authority.
III. Positions of the Parties
A. The Respondent's Position
The Respondent asserts that it did not violate the Statute because the Union's proposal is inconsistent with law. The Respondent argues that the Authority's decision in VA Atlanta "conflicts with provisions of law, specifically 18 U.S.C. 1913, . . . 31 U.S.C. 1341 . . . [and the] recurring anti-lobbying provisions in [the] Department of Defense (DOD) Appropriations Act." Respondent's Brief at 2-3.
First, the Respondent claims that 18 U.S.C. § 1913 does not allow the use of appropriated funds in any manner intended to influence a Member of Congress.(2) According to the Respondent, communications by Agency personnel are prohibited unless such communications are "through the proper official channels" or "on a request of Congress." Id. at 5. The Respondent contends that the Union's lobbying activities do not constitute communications through proper official channels, that there is no request by Congress for such activities, and that neither section 7102 nor section 7131 of the Statute expressly authorize Union officials to lobby Congress. Thus, the Respondent argues that granting official time under the circumstances presented would violate 18 U.S.C. § 1913. The Respondent maintains that the language of 18 U.S.C. § 1913 is unambiguous and, therefore, "recourse to legislative history to define the prohibition's scope is improper." Id.
Second, the Respondent asserts that both section 8001 and section 8015 of the 1996 DOD Appropriations Act contain provisions restricting lobbying with appropriated funds.(3) The Respondent claims that a "failure to adhere to the anti-lobbying provisions in the DOD Appropriations Act would be a violation of [t]he Purpose Statute, 31 U.S.C. § 1301(a), . . . [which] could cause a violation of the Antideficiency Act, 31 U.S.C. § 1341."(4) Id. at 12.
B. The General Counsel's Position
The General Counsel maintains that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the Union's proposal because it is substantially identical to the proposal found negotiable in VA Atlanta, 47 FLRA at 1121-22. The General Counsel requests as a remedy that the Authority direct the Respondent to negotiate in good faith.
C. The Charging Party's Position
The Charging Party asserts that the Authority examined and rejected the Agency's arguments regarding 18 U.S.C. § 1913 in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3231, 11 FLRA 7 (1983) (HHS). The Charging Party argues that "[w]hen representing employees under § 7131 [of the Statute], union representatives are not acting in their 'official capacity,' 'on the job,' or in a 'duty status'" and, therefore, are not barred from using such appropriated funds to lobby Congress. Charging Party's Brief at 3. The Charging Party further claims that, even if the Statute conflicts with the anti-lobbying statutes relied on by the Respondent, the Statute would prevail because it is a more specific statute. Id. at 3 n.3.
IV. Analysis and Conclusions
A. The Basis for the Unfair Labor Practice Complaint in This Case
It is an unfair labor practice for an agency to refuse to bargain over a proposal that is substantially identical to one previously found negotiable by the Authority. See U.S. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475, 479 (1996). A respondent acts at its peril in such cases "without regard to whether [the] respondent raises 'new' or 'old' arguments" and will be found to have violated the Statute as long as the proposal is within the duty to bargain. Id. (quoting U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 420 (1990)).
B. The Charging Party's Proposal Is Substantially Identical to a Proposal Found Negotiable by the Authority
In VA Atlanta, 47 FLRA at 1121-22, the Authority found negotiable the following proposal:
[U]nion officials shall be permitted a reasonable amount of Official time to represent Federal Employees by visiting, phoning and writing to elected representatives in support or opposition to pending or desired legislation which would impact the working conditions of employees represented by NFFE.
The Authority found, on the basis of sections 7102(1) and 7131(d) of the Statute, that the proposal was within the duty to bargain, provided that: (1) the employees subject to the proposal functioned as union representatives; (2) the subject of the lobbying pertained to unit employees' conditions of employment; and (3) the grant of official time related to labor management activities. Id. at 1126-27.
Both the proposal in this case and the proposal in VA Atlanta authorize official time to union officials to lobby Congress on representational matters. No substantive differences are asserted, or apparent, between the proposals. Accordingly, we conclude that the Charging Party's proposal is substantially identical to the proposal the Authority found negotiable in VA Atlanta.
C. The Respondent's Duty to Bargain Under the Statute
It is well-established that proposals that affect conditions of employment and that are otherwise consistent with law, rule, and regulation are encompassed by a party's duty to bargain under the Statute. See Department of Defense Dependents Schools (Alexandria, Virginia) and Overseas Federation of Teachers, AFT, AFL-CIO, 27 FLRA 586, 601 (1987) (Overseas Federation of Teachers). The question presented in this case is whether the proposal is outside the Respondent's duty to bargain because it is contrary to the anti-lobbying provisions of either 18 U.S.C. § 1913 or the 1996 DOD Appropriations Act.(5)
1. The Proposal is Not Contrary to 18 U.S.C. § 1913
In HHS, 11 FLRA 7, the Authority rejected an agency argument that 18 U.S.C. § 1913 prohibits Union representatives from conducting lobbying activities on official time. Recently, in U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920 (1997) (Member Armendariz dissenting in part) (Corps of Engineers), the Authority once again examined whether 18 U.S.C. § 1913 prohibits the use of official time for union officials to lobby Congress. After considering the plain wording of the statute,(6) its legislative history, relevant court decisions, and the administrative opinions of the Department of Justice and the General Accounting Office, the Authority concluded that authorizing official time for union officials to lobby on representational issues does not violate 18 U.S.C. § 1913. Specifically, the Authority determined that section 7131(d) of the Statute constitutes an express authorization to grant official time for representational lobbying and, therefore, section 7131(d) is an exception to the prohibition against lobbying contained in 18 U.S.C. § 1913.
In this case, the Respondent has not provided any new arguments supporting a conclusion that the granting of official time to Union officials to lobby Congress violates 18 U.S.C. § 1913.(7) Therefore, for the same reasons set forth in Corps of Engineers, we conclude that the proposal is not contrary to 18 U.S.C. § 1913.
2. The Proposal is Contrary to the 1996 DOD Appropriations Act
The particular appropriation act provisions at issue here -- sections 8001 and 8015 of the 1996 DOD Appropriations Act -- are general provisions that restrict lobbying and related matters.(8) As the Respondent is subject to the lobbying restrictions contained in the 1996 DOD Appropriations Act,(9) it is appropriate to examine whether the proposal is consistent with these provisions. Our examination is aided by consideration of the plain wording of these provisions(10) and the administrative opinions of the General Accounting Office (GAO).(11)
a. § 8001 of the 1996 DOD Appropriations Act
Section 8001 of the 1996 DOD Appropriations Act provides:
No part of any appropriation contained in this Act shall be used for publicity and propaganda purposes not authorized by the Congress.
Department of Defense Appropriations Act, 1996, Pub. L. No, 104-61, § 8001, 109 Stat. 636, 651 (1996) (emphasis added).
The plain wording of section 8001 expressly prohibits the expenditure of Federal funds for purposes "not authorized by Congress." Id. As the allotment of official time results in payment of wages or salary, it is an expenditure of appropriated funds.(12) Id. at 4-23. Thus, unless the proposed conduct either does not constitute "publicity and propaganda," or is for a purpose expressly authorized by Congress, the provision of official time would be contrary to section 8001 of the 1996 DOD Appropriations Act.
For the reasons explained more fully in Corps of Engineers, 52 FLRA 920, sections 7102(1) and 7131(d) constitute express Congressional authorization for agencies to grant official time for employee union representatives to lobby Congress on representational issues. See Corps of Engineers, 52 FLRA at 932. Section 7102 provides that employees, acting in their representational capacity, have the right to present the views of their labor organization to Congress and to engage in collective bargaining with respect to conditions of employment. Id. In subsection (d) of section 7131 of the Statute, Congress provided that union representatives should be granted official time in any amount that the parties agreed to be reasonable, necessary and in the public interest "in connection with any other matter covered" by the Statute. Id. at 933 (quoting 5 U.S.C. § 7131(d)). Representation lobbying is plainly a matter covered by section 7102 of the Statute. As such, the express language of section 7131(d) permits official time for this purpose where the agency and the union agree. The fact that Congress expressly authorized official time for matters covered by the Statute demonstrates that Congress expressly authorized the use of appropriated funds for the proposed activities in this case as long as the parties agree that 2 days is a reasonable amount of time. Accordingly, based on the Authority's decision in Corps of Engineers, we find that the proposal in this case is not inconsistent with section 8001 of the 1996 DOD Appropriations Act.
b. § 8015 of the 1996 DOD Appropriations Act
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.
Department of Defense Appropriations Act, 1996, Pub. L. No. 104-61, § 8015, 636, 654 (1996).
The plain wording of section 8015 expressly prohibits the use of appropriated funds to engage in any discussion referring to pending legislation or appropriations. Unlike section 8001 of the 1996 DOD Appropriations Act, section 8015 does not contain any express exceptions. In particular, there is no exception permitting the use of appropriated funds for discussions concerning pending legislation or appropriations. As such, this provision does not contain the language that was central to our finding that 18 U.S.C. § 1913 and section 8001 of the 1996 DOD Appropriations Act do not bar representational lobbying.(13) Moreover, the fact that Congress included the exception in section 8001 of the 1996 DOD Appropriations Act and not in section 8015 of that Act must be given meaning. 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[.]'") (citing Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994)).
The Union's proposal clearly states that union officials "will be granted official time . . . [to contact Congress] in support of or opposition to pending desired legislation[.]" Stipulation at 3 (emphasis added). Because the Union's proposal requires the use of appropriated funds to influence pending legislation, and because section 8015 plainly prohibits use of appropriate funds to directly or indirectly influence pending legislation, we find that the proposal is inconsistent with section 8015 of the 1996 DOD Appropriations Act. The legislation does not authorize any exceptions to this prohibition, and there is no basis for the Authority to create an exception that Congress has not stated.(14) Consequently, we conclude that the proposal is contrary to law, and that the Respondent was not obligated to bargain with the Union over it.
We do not find that GAO's interpretations of provisions similar to section 8015 support the conclusion reached by our dissenting colleague. In this regard, GAO has interpreted such provisions as "applying primarily to indirect or grass roots lobbying and not to direct contact with Members of Congress." PFA at 4-171. However, GAO's description of the primary application of these provisions does not define their "exclusive" application. Moreover, GAO's prior interpretations of provisions similar to section 8015 were all rendered in connection with questions regarding activities by agency -- not union -- officials.(15) In particular, GAO's interpretation was based on its view that Congress did not intend by creating such provisions to restrict the normal course of communication among the three branches of government. See 63 Comp. Gen. 624 (1984) (contact by federal judges and legislative liaison activities by the Judicial Conference of the United States did not violate publicity and propaganda provisions; contrary interpretation of such provisions would "preclude virtually any comment by Government officials on the policies of their agencies[.]"). See also PFA at 4-171 ("an interpretation of a 'pending legislation' statute which strictly prohibited expenditures of public funds for dissemination of views on pending legislation would preclude virtually any comment by officials on agency or administration policy or activities.").
Here, the proposal does not concern communications among the three branches of government. Rather, the proposal concerns communications by union -- not agency -- officials acting in their role as bargaining unit representatives. Union expressions of bargaining unit views on pending legislation are not part of the normal course of communication between officials of the Executive and Legislative branches of Government on agency or administrative policy and activities. In these circumstances, we do not read GAO's previous interpretations of similar pending legislation provisions to address the question presented here.
Finally, we find no merit to the Charging Party's assertion that the Statute should prevail over the 1996 DOD Appropriations Act because it is a more specific statute. Section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of appropriations for any purpose intended to influence Congress on pending legislation or appropriations. In contrast, section 7131(d) authorizes official time for any "matter covered by" the Statute, including, among others, presenting the views of the union to Congress as authorized by section 7102 of the Statute. We are unable to conclude that this language in the Statute is more specific than the explicit and targeted prohibition in section 8015. In addition, canons of statutory construction provide that, where two statutes conflict, the later and more specific statute usually controls over the earlier and more general one. See Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 824 F.2d 1258, 1278 (1st Cir. 1987); see also Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994). Thus, the 1996 DOD Appropriations Act prevails over the Statute.
Based on the foregoing, we are compelled to conclude that the Union's proposal is contrary to section 8015 of the 1996 DOD Appropriations Act.(16) Accordingly, the Respondent did not violate sections 7116(a)(1) and (5) of the Statute when it refused to bargain over the Union's proposal. See Overseas Federation of Teachers, 27 FLRA at 601.
The complaint is dismissed.
Member Wasserman, concurring in part and dissenting in part:
I agree with my colleagues regarding their conclusions that the proposal is substantially identical to a proposal found negotiable by the Authority, and that it is not contrary to 18 U.S.C. § 1913. Furthermore, I agree that the proposal is consistent with section 8001 of the 1996 DOD Appropriations Act. I part ways with the majority with respect to the consistency of the proposal with section 8015 of the 1996 DOD Appropriations Act.
As noted by the majority, supra at 11, GAO has interpreted provisions similar to those stated in section 8015. Specifically, GAO has interpreted the restrictions as "applying primarily to indirect or grass roots lobbying and not to direct contact with Members of Congress." PFA at 4-171. It is clear from the wording of the proposal that the union is not asking for appropriated funds to be used to work on grass roots lobbying efforts. The proposal would have management grant official time to union officials to "represent the bargaining unit by visiting, phoning and writing to elected representatives in support of or opposition to pending desired legislation" affecting working conditions. Stipulation at 3. Thus, the prohibitions encompassed by provisions such as section 8015 are not applicable to the proposal at issue.
The majority declines to apply GAO's guidance because the Comptroller General's reasoning on this point was in the context of evaluating the propriety of agency officials' communications regarding pending legislation. In contrast, I believe that the communications by union officials should be given the same credibility and protection as that of agency officials. GAO found that Congress did not intend to limit communications between executive and legislative branch officials by virtue of language similar to that found in section 8015. There is no evidence that Congress intended through section 8015 to limit communications between union representatives serving on official time and legislators.( * ) Indeed, the statutory grant of official time to union officials is predicated on representational activities being in the public interest. See 5 U.S.C. § 7101(a)(1).
Finally, I do not believe that Congress in effect limited the broad grant of official time found in the Statute. The law states that "any employee representing an exclusive representative . . . shall be granted official time" for matters falling within the parameters of the Statute. 5 U.S.C. § 7131(d) (emphasis added). The restrictions in the 1996 DOD Appropriations Act are viewed by my colleagues as the more specific and later enactment which must prevail over the Statute. I take another view. While I recognize the ability of Congress to restrict federal expenditures, the suspension or repeal of a law by appropriations bill language "depends on the intention of Congress as expressed in the statutes." United States v. Will, 449 U.S. 200, 222 (1980). Such a clear expression of intent is missing in this case. In United States v. Will, the court evaluated explicit appropriations bill language which repealed or delayed the implementation of pay increases that were authorized by law. Id. In contrast, in this case, there is no expression that Congress intended to preclude union officials from having the ability to communicate with Congress, as guaranteed by section 7102, on official time, as guaranteed by section 7131. Instead, there is only a general prohibition that previously was interpreted by GAO to apply to grass roots lobbying.
According to the above analysis, I would find that the proposal is not contrary to law, and that the Agency committed an unfair labor practice by its refusal to bargain over the proposal.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. Member Wasserman's dissenting opinion is set forth at the end of this decision.
2. 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.
3. Section 8001 of the 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.
Department of Defense Appropriation Act, Pub. L. No. 104-61, § 8001, 109 Stat. 636, 651 (1996).
Section 8015 of the 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.
Id., § 8015, 109 Stat. at 654.
4. 31 U.S.C. § 1301 provides, in relevant part:
(a) Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.
31 U.S.C. § 1341 provides, in relevant part:
(a) An officer or employee of the United States Government or of the District of Columbia government may not--
(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;
(B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law[.]
5. Although the proposal in this case concerns a multi-year collective bargaining agreement, precedent compels us to examine whether the proposal was lawful at the time the alleged unfair labor practice occurred. See Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629, 640 n.9 (1996); Action, 26 FLRA 299, 301-02 (1987). The Respondent's refusal to bargain occurred in 1996. See Complaint 11, 13. Therefore, we examine whether the proposal is contrary to the 1996 DOD Appropriations Act. We note, however, that the DOD Appropriations Act for both 1997 and 1998 contain restrictions identical to sections 8001 and 8015 of the 1996 Act. See DOD Appropriations Act, Pub. L. No. 105-56, § 8012, 111 Stat. 1203, 1222 (1997); § 8013 (1998).
6. The Respondent describes the plain wording of 18 U.S.C. § 1913 as containing only two exceptions to the restriction on lobbying -- where the views are presented at the request of a member of Congress or where the views are presented through proper official channels. See Respondent's Brief at 5. However, by its express terms, 18 U.S.C. § 1913 contains an additional exception to the restriction on lobbying: for conduct that is expressly authorized by Congress. The Authority's holding in Corps of Engineers relied on this exception. The Authority has already considered essentially the same arguments raised by the Respondent herein in the Corps of Engineers decision and has rejected viewing the plain wording of 18 U.S.C. § 1913 as prohibiting the conduct proposed in the instant case.
7. The Respondent relies on Appendix B of Chapter 711 of the Federal Personnel Manual (FPM) to support its claim under section 7131 of the Statute. However, the FPM was abolished effective December 31, 1994. Accordingly, as the events that give rise to this unfair labor practice case occurred during 1996, the FPM is not relevant to this dispute.
8. Appropriation acts often contain conditions either "restricting the availability of the appropriations or making them available for some particular use." Principles of Federal Appropriations Law 2-28 (2d ed. 1991) (PFA). These conditions are found in two forms: provisos and general provisions. As relevant here, a general provision is separate from the appropriating language of the legislation and "may apply solely to the act in which it is contained . . . or it may have general applicability[.]" Id. General provisions may be phrased as either "restrictions or positive authority." Id.
9. There is no dispute among the parties that the Respondent's funding is derived from the 1996 DOD Appropriations Act and that, as a result, section 8001 and section 8015 of the 1996 DOD Appropriations Act are applicable.
10. As the Supreme Court recently explained, in construing statutes "[w]e do not start from the premise that th[e] language is imprecise. Instead, we assume that in drafting th[e] legislation, Congress said what it meant." U.S. v. LaBonte, 117 S. Ct. 1673, 1677 (1997).
11. GAO is the investigative arm of Congress and is charged with examining all matters relating to the receipt and disbursement of appropriated funds. See 31 U.S.C. § 712. One of the functions of the Comptroller General, the head of GAO, is to render legal decisions in advance of payments of appropriated funds when requested by officers or heads of Federal agencies who are uncertain as to whether they have the authority to make or authorize particular payments. See PFA, at 1-26.
12. None of the parties dispute that the payment of official time is an expenditure of Federal funds. In this regard, the Charging Party offers no support, and none is otherwise apparent, for its claim that the dispositive issue is whether employees are "on duty" during the lobbying activities for which official time would be granted. Charging Party's Brief at 2.
13. We note that GAO refers to provisions concerning "pending legislation," such as section 8015, as "narrow" and states that "the broader 'publicity or propaganda not authorized by Congress' v