Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21 v. FLRA, 269 F.3d 1119 (D.C. Cir. 2001)

ORAL ARGUMENT SCHEDULED FOR OCTOBER 11, 2001

No. 01-1044

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS,
TONY KEMPENICH MEMORIAL, CHAPTER 21,
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY


              DAVID M. SMITH
                Solicitor

              WILLIAM E. PERSINA
                Attorney

              Federal Labor Relations Authority
              607 14th Street, N.W.
              Washington, D.C.  20424
              (202) 482-6620



ORAL ARGUMENT SCHEDULED FOR OCTOBER 11, 2001
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A.  Parties and Amici
    Appearing below in the administrative proceeding before the Federal
    Labor Relations Authority (Authority) were the Association of Civilian
    Technicians, Tony Kempenich Memorial Chapter 21 (Union) and the U.S.
    Department of Defense, National Guard Bureau, Minnesota National Guard
    (Agency).  The Union is the petitioner in this court proceeding; the
    Authority is the respondent.

B.  Ruling Under Review
    The ruling under review in this case is the Authority's Decision and
    Order on Negotiability Issues in ACT, Tony Kempenich Memorial Chapter
    21,  Case No. 0-NG-2490, decision issued on July 31, 2000, reported at
    56 F.L.R.A. (No. 82) 526, Order denying Motion for Reconsideration
    issued November 30, 2000, reported at 56 F.L.R.A. (No. 159) 947.

C.  Related Cases
    This case has not previously been before this Court or any other court.
    Counsel for the Authority are unaware of any cases pending before this
    Court which are related to this case within the meaning of Local Rule
    28(a)(1)(C).



TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUE  2

STATEMENT OF THE CASE  2

STATEMENT OF THE FACTS  3

A.  Background  3

1.  Official Time  3

2.  The Facts of the Instant Case  5

B.  The Authority's Initial Decision  7

C.  The Authority's Decision on Reconsideration  11

STANDARD OF REVIEW  13

SUMMARY OF ARGUMENT  14

ARGUMENT  17

THE AUTHORITY REASONABLY DETERMINED THAT A COLLECTIVE BARGAINING
AGREEMENT PROVISION REQUIRING AN AGENCY TO USE APPROPRIATED FUNDS
TO SUPPORT UNION LOBBYING ON LEGISLATION PENDING IN CONGRESS
CONFLICTS WITH A STATUTE PROHIBITING ANY USE OF APPROPRIATED
FUNDS FOR LOBBYING ON PENDING LEGISLATION  17

A.  The Plain Meaning of § 8012 Prohibits the Use of DOD
Appropriations for the Lobbying Purposes Sought by
the Union  18

B.  Principles of Statutory Construction Support the
Authority's Decision  20

C.  The Union's Arguments as to Why the Appropriations Act
May Be Ignored in This Case Lack Legal and Logical
Support  22

1.   The Appropriations Act restriction clearly applies
to the request for official time for lobbying at issue  22

2.  The Union's argument concerning annual leave
lacks   merit  25

3.  It is of no significance that the restriction in the
DOD  Appropriations Act applies only to DOD
employees  28

4.   The Authority has reconciled the two statutes and
there   has been no repeal by implication  30

5.  Section 8012 prevails over § 7131(d) on the issue
of use of appropriated funds for official time for
lobbying activities  33

CONCLUSION  35

CERTIFICATION PURSUANT TO FRAP RULE 32 AND
CIRCUIT RULE 32  36



ADDENDUM

Relevant portions of the Federal Service Labor-Management Relations
    Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) and other
    pertinent statutory provisions  A-1



TABLE OF AUTHORITIES

AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998)   13

AFGE, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984)    34, 35

Asiana Airlines v. Federal Aviation Admin., 134 F.3d 393
    (D.C. Cir. 1998)   20

Ass'n of Civilian Technicians v. FLRA, 250 F.3d 778 (D.C. Cir. 2001)   13, 14

      *  Ass'n of Civilian Technicians, Silver Barons Chapter and Silver
      Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000)   passim

BFP v. Resolution Trust Corp., 511 U.S. 531 (1994)   21

      *  Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89
      (1983)    14, 24

California Nat'l Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983)   29

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
    (1984)  13

Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992)   20

Dep't of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988)   14

Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994)   21, 34

Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995)   24, 32

Georgia State Chapter, Ass'n of Civilian Technicians v. FLRA,
    184 F.3d 889 (D.C. Cir. 1999)   6, 7, 18

     *  Granite State Chapter, Ass'n of Civilian  Technicians v. FLRA,
     173 F.3d 25 (1st Cir. 1999)   passim

Overseas Educ. Ass'n,  Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988)   13

Regan v. Taxation With Representation of Washington, 461 U.S.  540
    (1983)   28

Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992)   33

United States v. Lin, 101 F.3d 760 (D.C. Cir. 1996)   20

United States v. Nordic Village, Inc., 503 U.S. 30 (1992)   20

United States  v. Will, 449 U.S. 200 (1980)   33

West Point Elementary Sch. Teachers Ass'n v. FLRA, 855 F.2d 936
    (2d Cir. 1988)   13



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

*  Ass'n of Civilian Technicians, Old Hickory Chapter and U.S. Dep't
    of Defense, North Carolina Nat'l Guard Bureau, Raleigh, N.C. ,
    55 FLRA 811 (1999)   passim

Corps of Eng'rs, 52 FLRA 920 (1997)  34

Dep't of the Navy, U.S. Marine Corps, 34 FLRA 635 (1990)   5

Headquarters, Nat'l Guard Bureau, Washington, D.C., Nevada Air
    Nat'l Guard, Reno, Nev., 54 FLRA 595 (1998), aff'd sub
    nom. Ass'n of Civilian  Technicians, Silver Barons Chapter and
    Silver Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000)  7

NFFE, Local 2015 & U.S.  Dep't of the Interior, Nat'l Park Servs.,
    41 FLRA 1158 (1991)  4

Office of the Adjutant Gen., Georgia Dep't of Defense, Atlanta, Ga.,
    54 FLRA 654 (1998), pet.  for review denied sub nom. Georgia State
Chapter,  Ass'n of Civilian Technicians v. FLRA, 184 F3d 889 (D.C.
    Cir. 1999)  6, 7

*  Office of the Adjutant Gen., New Hampshire Nat'l Guard, Concord,
    N.H., 54 FLRA 301 (1998), aff'd sub nom. Granite State Chapter,
    Ass'n of Civilian Technicians v. FLRA, 173 F.3d 25
    (1st Cir. 1999)    passim



STATUTES

  Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) (Statute)   2
  5 U.S.C. § 7102   30, 33, 38
  5 U.S.C. § 7102(1)   4, 8
  5 U.S.C. § 7105(a)(2)(G)   2
  5 U.S.C. § 7114(c)   passim
  5 U.S.C. § 7117   passim
  5 U.S.C. § 7117(a)  27, 31
* 5 U.S.C. § 7117(c)  2
  5 U.S.C. § 7123(a)   2, 3
  5 U.S.C. § 7123(c)   13  TABLE OF AUTHORITIES
  5 U.S.C. § 7131   passim
  5 U.S.C. § 7131 (a)  3, 4, 26
  5 U.S.C. § 7131(b)  4, 26
  5 U.S.C. § 7131(c)   4
  5 U.S.C. § 7131(d)  passim
  5 U.S.C. § 706(2)(A)   13
  18 U.S.C. § 1913   7, 8, 34

*  Department of Defense Appropriations Act, Pub. L. No. 105-262,
  112 Stat. 2279 (1998)   passim
  § 8001   passim
  § 8012   passim

Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1214   34



CODE OF FEDERAL REGULATIONS

  5 C.F.R. § 551.424(b)   3
  5 C.F.R. § 734.306  28


MISCELLANEOUS

  5 U.S. Op. Off. Legal Counsel 180 (1981)  32

  Comp. Gen. Decision B-192746 (Mar. 7, 1979)   25

General Accounting Office, Principles of Federal Appropriations Law
    (2d ed. 1991)  29

*Authorities upon which we chiefly rely are marked by asterisks.



GLOSSARY

ACT, Georgia Chapter  Georgia State Chapter,  Ass'n of Civilian Technicians v.
FLRA, 184 F3d 889 (D.C. Cir. 1999)

ACT, Granite State  Granite State Chapter, Ass'n of Civilian Technicians v.
Chapter FLRA, 173 F.3d 25 (1st Cir. 1999)

ACT, Silver Barons  Ass'n of Civilian  Technicians, Silver Barons Chapter
Chapter and Silver Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000)

Agency      U.S. Department of Defense, National Guard Bureau,
Minnesota National Guard

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

Babbitt      Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995)

BATF      Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89 (1983)

Br.        Brief for Petitioner

FLRA or Authority  Federal Labor Relations Authority

Georgia Guard    Office of the Adjutant Gen., Georgia Dep't of Defense,
Atlanta, Ga., 54 FLRA 654 (1998)

JA        Joint Appendix

Nevada Guard    Headquarters, Nat'l Guard Bureau, Washington, D.C.,
Nevada Air Nat'l Guard, Reno, Nev., 54 FLRA 595 (1998)

New Hampshire Guard  Office of the Adjutant Gen., New Hampshire Nat'l Guard,
Concord, N.H., 54 FLRA 301 (1998),

North Carolina Guard  Ass'n of Civilian Technicians, Old Hickory Chapter and
U.S. Dep't of Defense, North Carolina Nat'l Guard
Bureau, Raleigh, N.C. , 55 FLRA 811 (1999)

Robertson      Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992)

Statute      Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999)

Union      Association of Civilian Technicians, Tony Kempenich
Memorial, Chapter 21




IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS,
TONY KEMPENICH MEMORIAL CHAPTER 21,
            Petitioner

        v.                           No. 01-1044

FEDERAL LABOR RELATIONS AUTHORITY,
            Respondent
_______________________________



SERVICE LIST

  I certify that copies of the Brief for the Federal Labor Relations Authority
  have been served this day, by mail, upon the following:

        Daniel M. Schember
        Gaffney & Schember, P.C.
        1666 Connecticut Ave., NW,
            Suite 225
        Washington, D.C. 20009



                                Thelma Brown
                                Paralegal Specialist

July 26, 2001




TABLE OF CONTENTS

1.  5 U.S.C. § 7102   A-1
2.  5 U.S.C. § 7105(a)(2) (G)   A-2
3.  5 U.S.C. § 7114(c)  A-3
4.  5 U.S.C. § 7117  A-4
5.  5 U.S.C. § 7123(a), (c)  A-7
6.  5 U.S.C. § 7131  A-9
7.  18 U.S.C. § 1913  A-10
8.  Department of Defense Appropriations Act, §§ 8001 and 8012  A-11
§ 7102. Employees' rights

  Each employee shall have the right to form, join, or assist any labor
  organization, or to refrain from any such activity, freely and without fear
  of penalty or reprisal, and each employee shall be protected in the exercise
  of such right. Except as otherwise provided under this chapter, such right
  includes the right-
  (1) to act for a labor organization in the capacity of a representative and
  the right, in that capacity, to present the views of the labor organization
  to heads of agencies and other officials of the executive branch of the
  Government, the Congress, or other appropriate authorities, and
  (2) to engage in collective bargaining with respect to conditions of
  employment through representatives chosen by employees under this chapter.

§ 7105. Powers and duties of the Authority

* * * * * * *

  (a)(2) The Authority shall, to the extent provided in this chapter and in
  accordance with regulations prescribed by the Authority-

* * * * * * *

  (G) conduct hearings and resolve complaints of unfair labor practices under
  section 7118 of this title;

* * * * * * *

§ 7114. Representation rights and duties

* * * * * * *

  (c)(1) An agreement between any agency and an exclusive representative shall
  be subject to approval by the head of the agency.
  (2) The head of the agency shall approve the agreement within 30 days from
  the date the agreement is executed if the agreement is in accordance with
  the provisions of this chapter and any other applicable law, rule, or
  regulation (unless the agency has granted an exception to the provision).
  (3) If the head of the agency does not approve or disapprove the agreement
  within the 30-day period, the agreement shall take effect and shall be
  binding on the agency and the exclusive representative subject to the
  provisions of this chapter and any other applicable law, rule, or
  regulation.
  (4) A local agreement subject to a national or other controlling agreement
  at a higher level shall be approved under the procedures of the controlling
  agreement or, if none, under regulations prescribed by the agency.
  (c)(1) An agreement between any agency and an exclusive representative shall
  be subject to approval by the head of the agency.
  (2) The head of the agency shall approve the agreement within 30 days from
  the date the agreement is executed if the agreement is in accordance with
  the provisions of this chapter and any other applicable law, rule, or
  regulation (unless the agency has granted an exception to the provision).
  (3) If the head of the agency does not approve or disapprove the agreement
  within the 30-day period, the agreement shall take effect and shall be
  binding on the agency and the exclusive representative subject to the
  provisions of this chapter and any other applicable law, rule, or
  regulation.
  (4) A local agreement subject to a national or other controlling agreement
  at a higher level shall be approved under the procedures of the controlling
  agreement or, if none, under regulations prescribed by the agency.
§ 7117. Duty to bargain in good faith; compelling need; duty to consult
  (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in
  good faith shall, to the extent not inconsistent with any Federal law or any
  Government-wide rule or regulation, extend to matters which are the subject
  of any rule or regulation only if the rule or regulation is not a
  Government-wide rule or regulation.
  (2) The duty to bargain in good faith shall, to the extent not inconsistent
  with Federal law or any Government-wide rule or regulation, extend to
  matters which are the subject of any agency rule or regulation referred to
  in paragraph (3) of this subsection only if the Authority has determined
  under subsection (b) of this section that no compelling need (as determined
  under regulations prescribed by the Authority) exists for the rule or
  regulation.
  (3) Paragraph (2) of the subsection applies to any rule or regulation issued
  by any agency or issued by any primary national subdivision of such agency,
  unless an exclusive representative represents an appropriate unit including
  not less than a majority of the employees in the issuing agency or primary
  national subdivision, as the case may be, to whom the rule or regulation is
  applicable.
  (b)(1) In any case of collective bargaining in which an exclusive
  representative alleges that no compelling need exists for any rule or
  regulation referred to in subsection (a)(3) of this section which is then in
  effect and which governs any matter at issue in such collective bargaining,
  the Authority shall determine under paragraph (2) of this subsection, in
  accordance with regulations prescribed by the Authority, whether such a
  compelling need exists.
  (2) For the purpose of this section, a compelling need shall be determined
  not to exist for any rule or regulation only if-
  (A) the agency, or primary national subdivision, as the case may be, which
  issued the rule or regulation informs the Authority in writing that a
  compelling need for the rule or regulation does not exist; or
  (B) the Authority determines that a compelling need for a rule or regulation
  does not exist.
  (3) A hearing may be held, in the discretion of the Authority, before a
  determination is made under this subsection. If a hearing is held, it shall
  be expedited to the extent practicable and shall not include the General
  Counsel as a party.
  (4) The agency, or primary national subdivision, as the case may be, which
  issued the rule or regulation shall be a necessary party at any hearing
  under this subsection.
  (c)(1) Except in any case to which subsection (b) of this section applies,
  if an agency involved in collective bargaining with an exclusive
  representative alleges that the duty to bargain in good faith does not
  extend to any matter, the exclusive representative may appeal the allegation
  to the Authority in accordance with the provisions of this subsection.
  (2) The exclusive representative may, on or before the 15th day after the
  date on which the agency first makes the allegation referred to in paragraph
  (1) of this subsection, institute an appeal under this subsection by-
  (A) filing a petition with the Authority; and
  (B) furnishing a copy of the petition to the head of the agency.
  (3) On or before the 30th day after the date of the receipt by the head of
  the agency of the copy of the petition under paragraph (2)(B) of this
  subsection, the agency shall-
  (A) file with the Authority a statement-
  (i) withdrawing the allegation; or
  (ii) setting forth in full its reasons supporting the allegation; and
  (B) furnish a copy of such statement to the exclusive representative.
  (4) On or before the 15th day after the date of the receipt by the exclusive
  representative of a copy of a statement under paragraph (3)(B) of this
  subsection, the exclusive representative shall file with the Authority its
  response to the statement.
  (5) A hearing may be held, in the discretion of the Authority, before a
  determination is made under this subsection. If a hearing is held, it shall
  not include the General Counsel as a party.
  (6) The Authority shall expedite proceedings under this subsection to the
  extent practicable and shall issue to the exclusive representative and to
  the agency a written decision on the allegation and specific reasons
  therefor at the earliest practicable date.
  (d)(1) A labor organization which is the exclusive representative of a
  substantial number of employees, determined in accordance with criteria
  prescribed by the Authority, shall be granted consultation rights by any
  agency with respect to any Government-wide rule or regulation issued by the
  agency effecting any substantive change in any condition of employment. Such
  consultation rights shall terminate when the labor organization no longer
  meets the criteria prescribed by the Authority. Any issue relating to a
  labor organization's eligibility for, or continuation of, such consultation
  rights shall be subject to determination by the Authority.
  (2) A labor organization having consultation rights under paragraph (1) of
  this subsection shall-
  (A) be informed of any substantive change in conditions of employment
  proposed by the agency, and
  (B) shall be permitted reasonable time to present its views and
  recommendations regarding the changes.
  (3) If any views or recommendations are presented under paragraph (2) of
  this subsection to an agency by any labor organization-
  (A) the agency shall consider the views or recommendations before taking
  final action on any matter with respect to which the views or
  recommendations are presented; and
  (B) the agency shall provide the labor organization a written statement of
  the reasons for taking the final action.
§ 7123. Judicial review; enforcement
  (a) Any person aggrieved by any final order of the Authority other than an
  order under-
  (1) section 7122 of this title (involving an award by an arbitrator), unless
  the order involves an unfair labor practice under section 7118 of this
  title, or
  (2) section 7112 of this title (involving an appropriate unit
  determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.

* * * * * * *

  (c) Upon the filing of a petition under subsection (a) of this section for
  judicial review or under subsection (b) of this section for enforcement, the
  Authority shall file in the court the record in the proceedings, as provided
  in section 2112 of title 28. Upon the filing of the petition, the court
  shall cause notice thereof to be served to the parties involved, and
  thereupon shall have jurisdiction of the proceeding and of the question
  determined therein and may grant any temporary relief (including a temporary
  restraining order) it considers just and proper, and may make and enter a
  decree affirming and enforcing, modifying and enforcing as so modified, or
  setting aside in whole or in part the order of the Authority. The filing of
  a petition under subsection (a) or (b) of this section shall not operate as
  a stay of the Authority's order unless the court specifically orders the
  stay. Review of the Authority's order shall be on the record in accordance
  with section 706 of this title. No objection that has not been urged before
  the Authority, or its designee, shall be considered by the court, unless the
  failure or neglect to urge the objection is excused because of extraordinary
  circumstances. The findings of the Authority with respect to questions of
  fact, if supported by substantial evidence on the record considered as a
  whole, shall be conclusive. If any person applies to the court for leave to
  adduce additional evidence and shows to the satisfaction of the court that
  the additional evidence is material and that there were reasonable grounds
  for the failure to adduce the evidence in the hearing before the Authority,
  or its designee, the court may order the additional evidence to be taken
  before the Authority, or its designee, and to be made a part of the record.
  The Authority may modify its findings as to the facts, or make new findings
  by reason of additional evidence so taken and filed. The Authority shall
  file its modified or new findings, which, with respect to questions of fact,
  if supported by substantial evidence on the record considered as a whole,
  shall be conclusive. The Authority shall file its recommendations, if any,
  for the modification or setting aside of its original order. Upon the filing
  of the record with the court, the jurisdiction of the court shall be
  exclusive and its judgment and decree shall be final, except that the
  judgment and decree shall be subject to review by the Supreme Court of the
  United States upon writ of certiorari or certification as provided in
  section 1254 of title 28.

* * * * * * *

§ 7131. Official time
  (a) Any employee representing an exclusive representative in the negotiation
  of a collective bargaining agreement under this chapter shall be authorized
  official time for such purposes, including attendance at impasse proceeding,
  during the time the employee otherwise would be in a duty status. The number
  of employees for whom official time is authorized under this subsection
  shall not exceed the number of individuals designated as representing the
  agency for such purposes.
  (b) Any activities performed by any employee relating to the internal
  business of a labor organization (including the solicitation of membership,
  elections of labor organization officials, and collection of dues) shall be
  performed during the time the employee is in a nonduty status.
  (c) Except as provided in subsection (a) of this section, the Authority
  shall determine whether any employee participating for, or on behalf of, a