Association of Civilian Technicians, Tony Kempenich Memorial, Chapter 21 (Union) and U.S. Department of Defense, National Guard Bureau, Minnesota National Guard (Agency)

[ v56 p947 ]

56 FLRA No. 159

ASSOCIATION OF CIVILIAN TECHNICIANS
TONY KEMPENICH MEMORIAL
CHAPTER 21
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MINNESOTA NATIONAL GUARD
(Agency)

0-NG-2490-Rec
(56 FLRA 526 (2000))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

November 30, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on the Union's motion for reconsideration of the Authority's finding that Provision 1, as executed by the parties in ACT, Tony Kempenich Memorial, Chapter 21, 56 FLRA 526 (2000) (ACT, Minnesota),is contrary to law. [n2] The Agency did not file an opposition to the Union's motion.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to move for reconsideration of an Authority decision. For the reasons that follow, we find that the Union has not established the existence of extraordinary circumstances. We, therefore, deny the Union's motion for reconsideration.

II.     Authority's Decision in ACT, Minnesota

      In ACT, Minnesota, the Authority reaffirmed its precedent, which had been upheld by the First and Ninth Circuit Courts of Appeals, that "a proposal to grant official time for lobbying activities that include[s] `pending legislation' is inconsistent with the plain wording of the Defense Appropriation Lobbying Statute[, § 8012 or its predecessor § 8015]" and "[a]s a result, . . . outside the duty to bargain because [such proposals are] contrary to law." [n3] Id. at 528-29, citing ACT, Old Hickory Chapter, 55 FLRA 811, 812 (1999); Headquarters, National Guard Bureau, Washington, D.C., Nevada Air Nat'l Guard, 54 FLRA 316, 324-25 (1998); Office of the Adjutant General, New Hampshire Nat'l Guard; 54 FLRA 301, 310-11, 313 (1998); and Office of the Adjutant General, Georgia Dep't of Defense, Atlanta, Georgia, 54 FLRA 654, 665-66 (1998).

      As relevant here, in ACT, Minnesota, the Authority rejected the Union's claim that the interpretation of § 8012 of the Appropriations Act embodied in the precedent above, "leads to the `unacceptable' result of denying union members their First Amendment right to lobby Congress while on annual leave." Id. at 529. In particular, the Authority rejected the Union's argument that the Authority's "interpretation [of § 8012] that use of paid time is use of appropriated funds, raises this [First Amendment] question, since annual leave is [also] paid time." Union's Response at 5. As noted in ACT, Minnesota, the thrust of the Union's argument was that annual leave and official time should be treated in the same fashion under § 8012 since both constitute paid non-duty time. The Authority concluded that the Union's claim was without merit in light of certain distinctions between (1) official time and annual leave, and (2) duty time, non-duty time and official time. In this regard, the Authority highlighted that although § 7131 of the Federal Service Labor-Management Relations Statute restricts the scope of permissible activities performed on official time, such restrictions are not applicable to the use of annual leave. Consequently, activities that may not be conducted on official time, for example, internal union business, may be performed on annual leave. In addition, the Authority pointed out that it has made no finding that § 8012 prohibits the use of annual leave to lobby Congress. [ v56 p948 ]

III.     Motion for Reconsideration

      The Union argues that this case warrants reconsideration because: (1) "every `twist' of a party's legal argument [must] be presented to the Authority before it is presented in court" (Motion for Reconsideration at 1 ("Motion"), citing Overseas Education Association, Inc., v. FLRA, 827 F.2d 814,820 (D.C. Cir. 1987)); and (2) the Authority's decision is contrary to law.

      In support of its motion, the Union essentially makes three claims. First, the Union contends that the "Authority's erroneous statutory interpretation [of the Appropriations Act] cannot be defended on the ground that official time is different from annual leave, because the Authority's interpretation rests entirely on a feature that official time and annual leave have in common[,]" namely that both are paid time. Motion at 2. Therefore, the Union claims that the distinctions between official time and annual leave, on which the Authority relied, are irrelevant. As a result, the Union maintains that the Authority's "interpretation . . . rais[es] a serious constitutional question" endangering the rights of employees to lobby Congress on annual leave. Id.

      Second, the Union argues that an Agency memorandum explaining the use of federal funds for lobbying demonstrates a "blatantly-discriminatory double standard." Id. at 4. In this regard, the Union contends that,

[o]n the one hand, the [A]gency persistently has argued in its papers to the Authority that employees' use of one type of paid time -- official time -- for contacting Members of Congress on pending legislation is a use of appropriated funds prohibited by [the Appropriations Act]. On the other hand, the [A]gency maintains in the attached memo that employees' use of another type of paid time -- namely, duty time -- to contact Members of Congress is not a use of appropriated funds prohibited by the [Appropriations Act], provided the employees `support . . . the Administration's position on the legislative matter' discussed.

Id. at 3, citing Memorandum for the Adjutants General for All States, Puerto Rico, the Virgin Islands, Guam and the District of Columbia regarding Use of Federal Funds for Lobbying or Propaganda at 4, § 7 (June 9, 1999) (Agency Memo). Ultimately, the Union maintains that "[t]he Authority, having been apprised of the discriminatory underpinnings of the [A]gency's legal position, the Authority should reconsider, and reject, the foundation of the agency's argument[,]" and in turn its prior holdings. Id. at 4.

      Third, the Union maintains that reconsideration should be granted for the reasons stated in its submissions in ACT, Minnesota.

IV.     Analysis and Conclusions

      Under § 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations where a moving party has established that (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; or (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances have also been found by the Authority where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. Id. at 87 (footnote omitted).

      The Union's motion provides no basis for granting reconsideration.

      In response to the Union's first argument, we note that the Authority rested its decision on the express language of § 8012 of the Appropriations Act, which prohibits the use of appropriated funds to engage in any discussion of pending legislation. While it is true that official time and annual leave are both "paid time," the Authority's decision addressed only the use of official time to lobby Congress. The provision at issue did not involve annual leave and the Authority specifically stated that it has made no finding that § 8012 of the Appropriations Act prohibits the use of annual leave to lobby Congress. Moreover, even though official time and annual leave are both paid time, the Authority has noted certain distinctions between the two, which the Union acknowledges. See Motion at 2 ("There are, of course, differences between annual leave and official time"). In our view, the Union's disagreement with the conclusion reached by the Authority does not establish extraordinary circumstances warranting reconsideration. See United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, 54 FLRA 9, 12-13 (1998) (Bureau of Indian Affairs) (mere disagreement with the Authority or attempts to relitigate conclusions [ v56 p949 ] reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement).

      The Union's second claim also challenges the basis of our decision as resting on the adoption of the Agency's interpretation of the Appropriations Act, which the Union now claims "embraces a discriminatory double standard[,]" as revealed by the Agency Memo. Motion at 3. As noted above, our decision was based on the express language of § 8012 of the Appropriations Act as applied to a provision that sanctioned the use of official time by union officials to lobby Congress on pending legislation. Hence, this claim also provides no basis for reconsideration. [n4] See United States Dep't of the Interior, Wash., D.C., 56 FLRA 279 (2000).

      The Union's third claim that we reconsider its arguments presented in ACT, Minnesota does not satisfy the grounds for granting reconsideration. Instead, the claim is nothing more than an attempt to relitigate the merits of the case and does not provide a basis for reconsideration. See Bureau of Indian Affairs, 54 FLRA at 12-13.

V.     Order

      The Union's motion for reconsideration is denied.



Footnote # 1 for 56 FLRA No. 159

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 159

   Provision 1 in ACT, Minnesota, set forth as part of § 6-3 regarding "Granting of Official Time," provides as follows:

Union officials when representing Federal Employees by visiting, phoning and writing to elected representatives in support or opposition to pending or desired legislation which would impact the working conditions of employees represented by the labor organization.

Footnote # 3 for 56 FLRA No. 159

   Section 8012 of the 1999 Department of Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat. 2279, 2296, 2299 (1998) 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.

Footnote # 4 for 56 FLRA No. 159

   Chairman Wasserman would note that the National Guard's Chief Counsel has stated that lobbying restrictions, including the DOD Appropriations riders, would still permit

National Guard officials [to] communicate directly with a member of Congress for the purpose of providing in