11:0007(5)AR - HHS, SSA and AFGE Local 3231 -- 1983 FLRAdec AR
[ v11 p7 ]
The decision of the Authority follows:
11 FLRA No. 5 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3231 Union Case No. O-AR-184 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Charles L. Mullin, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The dispute in this matter arose when the grievant in his official capacity as legislative chairperson of the Union placed telephone calls in October 1979 to various members of Congress and their staffs concerning the Agency's appropriations. When the grievant was informed by his supervisor that he would no longer be permitted to make such calls on official time, a grievance was filed and submitted to arbitration protesting management's actions. The Arbitrator stated the principal issue to be whether the grievant as legislative chairperson was entitled under the parties' collective bargaining agreement /1/ to be granted a reasonable amount of official time for the performance of the duties of that position, which duties were described by the Arbitrator as contacting on a recurring basis various members of Congress and their staffs to discuss legislative and political matters affecting the Agency and its employees. Rejecting the Activity's contention that the duties of the grievant as legislative chairperson constituted internal union business, the Arbitrator determined that these duties were proper for performance on official time. Accordingly, as his award the Arbitrator ruled that the grievant must be afforded a reasonable amount of official time to perform these official duties. The Arbitrator expressly stipulated however that the activities to be performed on official time must concern matters legitimately related to Agency employment and within the purview of Congress. In its first exception the Agency contends that the award is contrary to 18 U.S.C. 1913, /2/ which prohibits lobbying with appropriated funds, and derivatively is contrary to regulations referencing the prohibition of section 1913. However, the Agency fails to establish in its exception that the activities of the grievant for which the Arbitrator in his award ordered the granting of a reasonable amount of official time are activities prohibited by section 1913. The Agency has provided no citations of authority in support of this exception. Furthermore, no support is evident because as noted by the court in National Treasury Employees Union v. Campbell, 654 F.2d 784, 792 (D.C. Cir. 1981), apparently no violation of this statute has been adjudged in the more than sixty years since its passage. Accordingly, this exception provides no basis for finding the award deficient. In its second exception the Agency contends that the award is contrary to section 7131 of the Statute. /3/ Specifically, the Agency argues that the activities for which the Arbitrator ordered the grievant granted a reasonable amount of official time constitute internal union business which under section 7131(b) must be performed when the grievant is in a nonduty status. However, the Agency fails to establish in its exception that the award ordering under the parties' agreement a grant of a reasonable amount of official time is contrary to section 7131 of the Statute. In this respect the meaning and purpose of section 7131(b) were closely examined in American Federation of Government Employees, AFL-CIO, Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2 FLRA 3 (1979), and it was concluded that only activities which relate solely to the institutional structure of the union constituted internal union business that may not be performed on official time. See id. at 8; accord National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA No. 97 (1981). In terms of this case, the Arbitrator expressly found that the disputed activities did not pertain to the internal business of the Union as an organization, and the Agency has not demonstrated otherwise by substantiating that the disputed activities like the activities cited in the Statute (solicitation of membership, collection of dues, and election of union officials) relate solely to the institutional structure of the Union. Consequently, this exception provides no basis for finding the award deficient. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., January 7, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ According to the Arbitrator the parties' agreement, which was negotiated under Executive Order No. 11491, provides for the grant of a reasonable amount of official time to permit Union officers and stewards to carry out their appropriate duties within the scope of the agreement and the Order. /2/ 18 U.S.C. 1913 pertinently provides: 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, whether before or after the introduction of any bill or resolution proposing such legislation or appropriation; 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/ 5 U.S.C. 7131 pertinently provides: . . . . (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. . . . . (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.