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54 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

OFFICE OF THE ADJUTANT GENERAL

GEORGIA DEPARTMENT OF DEFENSE

ATLANTA, GEORGIA

(Respondent)

and

GEORGIA STATE CHAPTER

ASSOCIATION OF CIVILIAN TECHNICIANS

(Charging Party/Union)

AT-CA-60432

_____

DECISION AND ORDER

July 31, 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 complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by repudiating a provision of the parties' collective bargaining agreement regarding the use of official time for lobbying activities.

For the reasons explained below, we conclude that the Respondent did not violate the Statute, as alleged. Accordingly, we dismiss the complaint.

II. Stipulation

Pursuant to section 7131(d) of the Statute, the parties negotiated the following provision in their agreement:⁽²⁾

[Section 5.2] a. The Labor Organization is authorized two thousand two hundred (2200) hours of administrative leave 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.

Stip. Para. 14. The parties stipulated that "[f]or purposes of the request and denial of administrative leave/official time in the circumstances giving rise to this unfair labor practice complaint, the terms 'administrative leave' and 'official time,' were used by the Union and by the Respondent interchangeably and had the same meaning." Stip Para. 19.⁽³⁾

On or about August 25, 1995, the Union requested 40 hours of official time pursuant to Article 5.2 of the agreement for each of 11 Union representatives to attend training in Washington, D.C. at the "National ACT (Union) conference." Stip. Para. 15. The Union thereafter notified the Respondent that part of the requested 40 hours "would be used to meet with Members of the U.S. Congress to discuss matters of interest to the Union and the employees it represents." Stip. Para. 16.

On September 15, 1995, the Respondent denied the Union's request, with the exception of 10 hours that each employee could use for training. The Respondent based its denial on two memoranda from the National Guard Bureau (NGB) regarding the use of official time for lobbying activities. The 11 employees for whom the official time was requested attended the conference. Each used 10 hours of official time granted by the Respondent. The remaining 30 hours were taken as either "compensatory or annual leave" for purposes of lobbying members of Congress. Stip. Para. 20.

The parties stipulated that since September 1995, and continuing to date, the Respondent has taken the position that Article 5.2 "is unlawful and unenforceable" and has denied requests for "official time and/or administrative leave" for Union officials to present views to Congress. Stip. Para. 21. By way of example, the stipulation refers to requests for official time, dated September 4, 1996 and April 23, 1997, that were denied. The parties stipulated that the Respondent has taken this position even though the Authority's decision 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), issued subsequent to the NGB memoranda on which the Respondent relied.

III. Positions of the Parties

A. Respondent

The Respondent takes the position that this case presents an opportunity for the Authority to reexamine its holdings 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) and Corps of Engineers, 52 FLRA 920. The Respondent asserts that 18 U.S.C. § 1913,⁽⁴⁾ and yearly Defense Department (DOD) appropriations acts prohibit the use of official time by Union representatives for lobbying activities.

More particularly as to Corps of Engineers, the Respondent argues that the Authority's examination of the legislative history of 18 U.S.C. § 1913 was improper in that case because the language of that provision is clear and unambiguous. The Respondent asserts that it contains "no expressly stated exception for lobbying by Federal employees." Respondent's Brief at 3. The Respondent adds that, although there are two exceptions to the prohibition against the use of funds for lobbying, if neither of the exceptions applies, "the communication is prohibited." Id.

In addition, the Respondent states that opinions of the Department of Justice's (DOJ) Office of Legal Counsel that espouse a narrow construction of the ban on lobbying activities raised prudential considerations that are not present here. In particular, the Respondent claims that the lobbying activities in this case support "the agenda of a special interest group" and do not "support or elaborate on the policies of the agency or administration." Id.

The Respondent also maintains that "there is no express exception to 18 U.S.C. § 1913 in the statutory authorization for representational lobbying in 5 U.S.C. § 7131(d)." Id. While acknowledging that section 7102 of the Statute authorizes union officials to engage in lobbying activities, the Respondent argues that the section does not authorize the use of "official hours" for those activities. Id. at 5.

The Respondent further contends that the use of official time for lobbying activities is prohibited by recurring provisions in DOD appropriations acts. Specifically, the Respondent cites sections 8001 and 8015 of the FY 96 DOD Appropriations Act.⁽⁵⁾ The Respondent states that the DOD Appropriations Act "is a self-standing prohibition that must be interpreted separately from 18 U.S.C. § 1913." Id. at 6. The Respondent maintains that a failure to adhere to the anti-lobbying provision in the DOD Appropriations Act would violate "the purpose statute, 31 U.S.C. § 1301(a)[,]" and the Anti-Deficiency Act, 31 U.S.C. § 1341.⁽⁶⁾ Respondent's Brief at 8.

The Respondent also states that any interpretations by the General Accounting Office (GAO) of appropriations act restrictions on lobbying, which construed restrictions narrowly, are distinguishable from the type of lobbying at issue in this case. The Respondent asserts that the lobbying here is "grass roots" lobbying, which has been defined by GAO as "an indirect attempt to influence pending legislation by urging members of the public to contact legislators to express support of, or opposition to the legislation or to request them to vote in a particular manner." Id. at 7.

B. General Counsel

The General Counsel contends that the Respondent repudiated the parties' collective bargaining agreement by failing to comply with Article 5.2a. The General Counsel cites Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858 (1996) (Scott AFB) and Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991) (Warner Robins), in support. According to the General Counsel, the Respondent breached the agreement on several occasions by denying requests for official time and stating that it would no longer honor section 5.2a.(3). This breach, the General Counsel asserts, "goes to the heart of the parties' agreement." General Counsel's Brief at 8. The General Counsel explains that section 7102 of the Statute guarantees the right of employees to act in a representational capacity and, in that capacity, to present the views of the labor organization to Congress. When viewed in conjunction with the granting of official time under section 7131(d), the General Counsel contends that the "Respondent's refusal to grant agreed-upon official time to present the Union's views to Congress, and instead, to force the employees to use their own time, renders meaningless the 7102 right." Id.

The General Counsel also argues that the Respondent's reliance on 18 U.S.C. § 1913 for its position that section 5.2a.(3) of the agreement is unenforceable must be rejected. The General Counsel maintains that section 7102 of the Statute constitutes an express statutory authorization permitting the use of funds for lobbying under § 1913 and that the Authority reached this very result in Corps of Engineers. Further, applying principles of statutory construction, the General Counsel states that "the more specific provisions of Section 7102 govern the more general provisions of Section 1913." General Counsel's Brief at 11. The General Counsel adds that a 1994 amendment to 18 U.S.C. § 1913, which was effected after the Authority held that the use of official time for lobbying was appropriate, "did not alter its provisions to specifically cover Federal unions' exercise of [s]ection 7102 rights." Id. at 11-12. Finally, the General Counsel cites Authority precedent, including Corps of Engineers, for the proposition that section 7131(d) of the Statute authorizes negotiations over the use of official time for lobbying and representational activities.

To remedy the Respondent's unlawful conduct, the General Counsel requests, in addition to the traditional cease and desist order, a make whole order directing the Respondent to restore all annual leave and compensatory time as used in lieu of official time. Furthermore, to the extent the repudiation has been continuous, the General Counsel requests that the make whole remedy cover all denials of official time from September 1995 to the date of the Authority's decision. The General Counsel also requests that the Authority direct the Respondent to issue "policy memoranda to all of its managers specifically disavowing any and all memoranda from the National Guard Bureau purporting to advise Respondent to deny the Union official time for lobbying." General Counsel's Brief at 17. According to the General Counsel, this action is necessary to "avoid the likelihood of continued repetitive conduct, and to avoid any potential future confusion a manager may have when faced with internal legal advice that conflicts with Authority precedent[.]" Id. Finally, the General Counsel asks that the Notice posting be signed by the Respondent's Commanding Officer, posted throughout the state of Georgia and specifically identify the individuals who unlawfully denied official time "[b]ecause of the wilful nature of Respondent's conduct[.]" Id.

IV. Analysis and Conclusion

A. The Analytical Framework for Resolving the Unfair Labor Practice Complaint in This Case

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute when it repudiated Section 5.2a.(3) of the parties' collective bargaining agreement.

In Scott AFB, 51 FLRA 858, the Authority clarified the analytical framework it will follow for determining whether a party's failure or refusal to honor an agreement constitutes a repudiation of a collective bargaining agreement. Consistent with its previous decision in Warner Robins, 40 FLRA at 1218-19, the Authority held that it will examine two elements in analyzing an allegation of repudiation: (1) the nature and scope of the alleged breach of an agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). The examination of either element may require an inquiry into the meaning of the agreement provision allegedly breached.

The Authority also has held that collective bargaining agreement provisions that are contrary to law are not enforceable under the Statute. Therefore, a respondent's refusal to comply with such a provision it is not an unlawful repudiation of the agreement. See, e.g., General Services Administration, Washington, D.C., 50 FLRA 136 (1995) (respondent's refusal to honor portion of agreement that authorized combination of work schedules held not to constitute an unlawful repudiation because agreement portion was contrary to Work Schedules Act); Department of the Navy, United States Marine Corps, 34 FLRA 635 (1990) (respondent's repudiation of memorandum of understanding that required it to pay for reflective safety vests that were not used in the performance of work held not unlawful as payment for vests was inconsistent with law). The Authority dismisses the unfair labor practice complaints in such cases without regard to whether the law was in existence at the time the agreement was entered into or was enacted subsequent to the agreement's effective date.

B. The Respondent's Denial of Official Time Did Not Constitute an Unlawful Repudiation of Section 5.2a.3 of the Parties' Collective Bargaining Agreement

Section 5.2a.(3) of the parties' agreement authorizes the use of official time for the purpose of "visiting elected representatives in support or opposition to pending or desired legislation which would impact the working conditions" of bargaining unit employees. Stip. Para. 14. The Respondent argues that this provision is unenforceable because it is contrary to law and, therefore, its failure to comply with the provision is not an unfair labor practice. The arguments presented by the Respondent in this case are essentially the same arguments the Authority recently addressed in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (Member Wasserman dissenting in part) (New Hampshire National Guard), 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 316 (1998) (Member Wasserman dissenting in part) (Nevada Air National Guard), decision on reconsideration, 54 FLRA No. 62 (1998).

For the reasons explained below, we find that section 5.2a.(3) is not inconsistent with 18 U.S.C. § 1913, or section 8001 of the 1996 DOD Appropriations Act. However, as section 5.2a.(3) is contrary to section 8015 of the 1996 DOD Appropriations Act, the provision is unenforceable. Consequently, the Respondent's denial of official time requests did not constitute an unlawful repudiation of that section of the parties' agreement.

1. Section 5.2a.(3) is not inconsistent with 18 U.S.C. § 1913

In New Hampshire National Guard, the Authority addressed a refusal to bargain over a proposal that would have authorized official time for union officials to visit, phone or write to elected representatives in support of or opposition to pending legislation impacting unit employees' conditions of employment. The Authority concluded that the proposal was not contrary to 18 U.S.C. § 1913, for the same reasons it had previously expressed in Corps of Engineers. In particular, the Authority noted that in Corps of Engineers, the plain wording of 18 U.S.C. § 1913, its legislative history, relevant court decisions and administrative opinions of the Department of Justice and the General Accounting Office had been considered in concluding that the authorization of official time for union officials to lobby on representational issues did not violate § 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, that section 7131(d) is an exception to the prohibition against lobbying contained in 18 U.S.C. § 1913. The Authority reaffirmed this holding in Nevada Air National Guard. See also Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 54 FLRA No. 63 (1998) (award sustaining portion of grievance challenging denial of official time for union representatives to attend legislative conferences found not to conflict with 18 U.S.C. § 1913).

The Respondent argues here, as the respondent argued in New Hampshire National Guard, that the plain wording of 18 U.S.C. § 1913 contains 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. We reject this claim. By its express terms, 18 U.S.C. § 1913 contains an additional exception to the restriction on lobbying, which is for conduct that is expressly authorized by Congress. As stated above, section 7131(d) of the Statute constitutes an express authorization.

The Respondent has advanced no additional arguments, not previously considered, supporting a conclusion that the granting of official time to Union officials to lobby Congress violates 18 U.S.C. § 1913. Similarly, the Respondent has presented no basis warranting reconsideration of Corps of Engineers and VA, Atlanta.⁽⁷⁾ The only additional support for its position are DOJ and GAO opinions that were not expressly addressed in New Hampshire National Guard. Neither of the cited decisions leads to a different conclusion with respect to the applicability of 18 U.S.C. § 1913.

In 5 U.S. Op. Off. Legal Counsel 180 (1981), DOJ addressed anti-lobbying provisions in a Community Services Administration appropriations act. As relevant here, DOJ found that recipients of grants or contracts were prohibited from using appropriated funds to engage in any activity that was designed to influence legislation or appropriations before Congress. Although the Respondent quotes the portion of the opinion in which DOJ stated that "private persons and organizations . . . can be expected . . . to do their lobbying at their own expense[,]" DOJ further stated that such persons and organizations "have no inherent or implicit right to use federal funds for that purpose unless Congress has given them that right." Id. at 185 (emphasis added). Since Congress has expressly provided for the use of official time for lobbying activities under the Statute, this opinion supports our conclusion with respect to the authorization for official time under 18 U.S.C. § 1913. The Respondent also cites B-226449 (1987), where the Comptroller General determined, among other things, that remarks made by the Secretary of Agriculture with regard to a poll of wheat producers were not designed to influence or defeat the passage of any legislation in a manner prohibited by 18 U.S.C. § 1913. We see nothing in that opinion that leads to a conclusion that the official time requested in this case was contrary to 18 U.S.C. § 1913.

In sum, we find that section 5.2a.(3) of the parties' agreement does not violate 18 U.S.C. § 1913.

2. Section 5.2a.(3) is not inconsistent with section 8001 of the 1996 DOD Appropriations Act ⁽⁸⁾

In New Hampshire National Guard, the Authority also determined that the proposal seeking official time for lobbying activities was not contrary to section 8001 of the 1996 DOD Appropriations Act. Section 8001 expressly prohibits the expenditure of Federal funds for purposes "not authorized by Congress." Relying, again, on Corps of Engineers, we stated that sections 7102(1) and 7131(d) of the Statute constitute express congressional authorization for agencies to grant official time for employee union representatives to lobby Congress on representational issues. 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. 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.

In this case, the parties agreed to the use of official time for lobbying activities in section 5.2a.(3). Accordingly, that agreement provision is consistent with section 8001 of the 1996 DOD Appropriations Act. The Respondent presents no new arguments warranting a different result in this case than that reached in New Hampshire National Guard. See also Nevada National Guard, 54 FLRA at 324-25.

3. Section 5.2a.(3) is inconsistent with section 8015 of the 1996 DOD Appropriations Act

As set forth in note 5, supra, 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.

In New Hampshire National Guard, the Authority found, with Member Wasserman dissenting, that section 8015 of the 1996 Appropriations Act contained an express prohibition on the expenditure of funds for lobbying activities of the sort encompassed by the union's proposal. Specifically, the Authority held that:

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. 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)).

54 FLRA 310 (footnote omitted).

Section 5.2a.(3) of the parties' agreement clearly authorizes the use of official time for the purpose of "visiting elected representatives in support or opposition to pending or desired legislation which would impact the working conditions" of bargaining unit employees. Stip. Para. 14. Because this provision requires the use of appropriated funds to influence congressional action on pending or desired legislation, and because section 8015 plainly prohibits the use of appropriated funds for such a purpose, we find that section 5.2a.(3) is inconsistent with section 8015 of the 1996 DOD Appropriations Act.

C. Summary

We conclude that the use of official time for the lobbying activities at issue in this case is neither inconsistent with 18 U.S.C. § 1913 nor section 8001 of the 1996 DOD Appropriations Act. However, as the official time was requested in order to lobby Congress in support or opposition to pending or desired legislation, we further conclude that the use of such time is inconsistent with section 8015 of the 1996 DOD Appropriations Act. As such, section 5.2a.(3) is unenforceable and the Respondent did not violate the Statute when it denied the requests for official time to be used for that purpose.⁽⁹⁾

V. Decision

The complaint is dismissed.

Member Wasserman, concurring in part and dissenting in part:

I agree with my colleagues that section 5.2a.(3) of the parties' collective bargaining agreement is neither inconsistent with 18 U.S.C. § 1913 nor section 8001 of the 1996 DOD Appropriations Act.

I dissent with respect to their conclusion regarding the agreement provision's consistency with section 8015 of the 1996 DOD Appropriations Act. As I explained in my separate opinion in New Hampshire National Guard, I believe that the language of section 8015 precludes neither agency officials nor union officials from direct contact with Congress while on the clock. Because the provision is not contrary to law, and because official time goes to the heart of the parties' agreement, I would find that the Respondent's repeated conduct in denying requests for official time violated the Statute.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Wasserman's separate opinion, dissenting in part, is set forth at the end of this decision.

2. Section 7131(d) of the Statute provides:

(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.

3. Given the parties' stipulation that the "administrative leave" provision was negotiated pursuant to section 7131(d) of the Statute and their further stipulation that the terms "administrative leave" and "official time" are interchangeable, we find that Section 5.2a.(3) authorizes the use of official time.

4. 18 U.S.C. § 1913 provides, in pertinent part:

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress . . . ; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business.

5. 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.

6. 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[.]

7. In VA, Atlanta, 47 FLRA 1118, the Authority found negotiable a proposal that authorized official time for union officials to lobby Congress on representational matters. The applicability of 18 U.S.C. § 1913 was neither raised nor addressed in that decision.

8. We apply the 1996 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 Respondent raises the provisions of that Act as a defense to its conduct. We would reach the same result, however, were we to apply the 1995 DOD Appropriations Act to the denials of official time that occurred during the pendency of that Act, such as the September 1995 denial, because the 1995 Act contained restrictions that are identical to sections 8001 and 8015 of the 1996 Act. See DOD Appropriations Act, Pub. L. No. 103-335, §§ 8001, 8014, 108 Stat. 2616, 2620. Similarly, the 1997 Appropriations Act contains the same type of restrictions. See New Hampshire National Guard, 54 FLRA at 306, n.5. As such, it would apply to any denials by the Respondent that occurred during the relevant time period.

9. In view of this conclusion, it is unnecessary to address the Respondent's assertion that the activities for which official time was sought in this case are a form of "grass roots" lobbying, as defined by GAO, for which the use of appropriated funds is prohibited. We also find it unnecessary to address the Respondent's additional contention that the failure to comply with the anti-lobbying provision in the DOD Appropriations Act would violate 31 U.S.C. § 1301(a) and 31 U.S.C. § 1341.

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