52:0920(93)AR - - Army Corps of Engineers, Memphis District, Memphis TN and NFFE Local 259 - - 1997 FLRAdec AR - - v52 p920
[ v52 p920 ]
The decision of the Authority follows:
52 FLRA No. 93
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
January 31, 1997
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Barry J. Baroni 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance claiming that the Agency violated the parties' collective bargaining agreement by denying the grievant: (1) official time to lobby Congress during the Union's annual Lobby Week in Washington, D.C.; and (2) leave without pay (LWOP) to attend a series of Union meetings in connection with Lobby Week.
For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
After the Agency denied the grievant's requests for: (1) official time to lobby Congress during the Union's annual Lobby Week in Washington, D.C.; and (2) LWOP to attend a series of Union meetings in connection with Lobby Week, the grievant requested, and was granted, annual leave for these purposes. The grievant's lobbying covered the following topics: protection of Federal pay and benefits; Government downsizing and reorganization; health care reform; civil service reform; protection of temporary employees; and EEO reform. When the grievant returned from Washington, he filed a grievance alleging that "[he] was denied LWOP to attend Washington [sic] in the performance of [his] duties as a National Vice President of NFFE, and . . . was further denied time to present the views of the bargaining unit . . . to [his] Congressional Representatives." Exceptions, Enclosure 3 at 14.
The grievance was denied and proceeded to arbitration. The parties did not stipulate the issues and, as relevant here, the Arbitrator framed them as:
ISSUE NO. 1 - Was the grievance timely filed?
ISSUE NO. 2 - Did management violate the Labor Management Agreement (LMA) by denying [the grievant] . . . [o]fficial [t]ime to lobby Congress?
Award at 2.
The Arbitrator determined that the grievance was timely filed. Although the grievant missed the LMA's filing deadline, the Arbitrator reasoned that extending the deadline until after the grievant returned from Washington was more appropriate than requiring strict compliance with it.(2) According to the Arbitrator: "A 'good faith' attempt to comply with the time limits set out in the LMA is, in the opinion of this [A]rbitrator, under the unique circumstances of this case, all that should be required of the Union in the filing of its grievance." Id. at 6. Among the "unique circumstances" were the Arbitrator's findings that: (1) only the grievant, as Union president, had authority to file the grievance; and (2) the grievant's trip to Washington, which overlapped with the time period prescribed by the LMA for filing the grievance, was a "required absence." Id. On the merits, the Arbitrator found, without discussing his reasons therefor, that the Agency "violate[d] the LMA by denying [the grievant] official time to lobby Congress[.]" Id. at 11.(3) As relevant here, the Arbitrator's award ordered the Agency to retroactively substitute official time for 24 hours of annual leave.
III. Positions of the Parties
The Agency contends that the Arbitrator's determination that the grievance was timely filed is deficient under section 7122(a)(2) of the Statute because it fails to draw its essence from the parties' agreement and is based on a nonfact. According to the Agency, the Arbitrator's decision to apply a "good faith" standard to the LMA's filing requirements was based on his findings that: (1) the grievant, as Union president, was the only person authorized to file the grievance; and (2) the grievant was required to attend Lobby Week during the time period prescribed by the LMA for filing the grievance. In the Agency's view, the first finding does not draw its essence from Article VII, Section 5 of the LMA, and the second finding is a nonfact. Accordingly, the Agency asserts, the Arbitrator should have required strict compliance with the filing requirements and dismissed the grievance as untimely.
On the merits, the Agency contends that the award is deficient under section 7122(a)(1) and (2) of the Statute because: (1) "official time . . . was never an issue in the grievance or the arbitration," and, therefore, the Arbitrator exceeded his authority by addressing it; (2) the LMA restricts official time for off-site purposes to activities related to a complaint, grievance, or appeal and, therefore, the award fails to draw its essence from the LMA; (3) the Union's act of lobbying Congress on representational issues is a prohibited "political activity" within the meaning of the Hatch Act (5 U.S.C. § 7321 et seq.); and (4) "any direct or indirect use" of appropriated funds to lobby Congress violates 18 U.S.C. § 1913. Exceptions at 8, 14.
The Union contends that the Arbitrator had an adequate basis for concluding that the grievance was timely filed. According to the Union, the Arbitrator's finding that "the [U]nion president [was] the only person with authority to file a grievance" in this case was "based on the record as a whole and [was] not a misinterpretation of . . . [the] LMA[.]" Opposition at 7-8. In the Union's view, "[t]he [A]rbitrator, having found wrongful conduct by [A]gency officials," appropriately tolled the time period for filing the grievance until after the grievant returned from Washington. Id. at 8.
In response to the Agency's arguments on the merits, the Union contends that: (1) the Arbitrator had authority to address the issue of official time because it was raised in the grievance; (2) the award draws its essence from the agreement because the LMA "encompassed official time for Lobby Week"; (3) the grievant's lobbying activity was not a "political activity" within the meaning of the Hatch Act; and (4) 18 U.S.C. § 1913 prohibits Agency officials from using Federal funds to support third party lobbying efforts which present Agency officials' views. Id. at 10.
IV. Analysis and Conclusions
A. The Agency's Challenge to the Arbitrator's Timeliness Determination Is Not Properly Before the Authority
Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge the Arbitrator's determination of procedural arbitrability itself. U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996). Such grounds include bias on the part of the Arbitrator or a showing that the Arbitrator exceeded his authority. Id. The Agency's exceptions directly challenge the Arbitrator's determination of who may file grievances, and when they may do so, under Article VII, Section 5 of the LMA. As such, the exceptions directly challenge the Arbitrator's determination of procedural arbitrability and, therefore, are not properly before the Authority. Accordingly, we deny this exception.
B. Challenges Under Section 7122(a)(2) of the Statute to the Portion of the Award Concerning Official Time
1. The Arbitrator Did Not Exceed His Authority By Addressing the Subject of Official Time
It is well-established that an arbitrator exceeds his or her authority by resolving an issue not submitted to arbitration and that, in the absence of a stipulated issue, the arbitrator's formulation is accorded substantial deference. Sport Air Traffic Controllers Organization and U.S. Department of the Air Force, Headquarters, Air Force Flight Test Center, Edwards Air Force Base, California, 51 FLRA 1634, 1638 (1996).
The record shows that, although the parties did not stipulate the issues, the subject of official time was included in the grievance. As the Union points out, the first paragraph of the grievance states that "[the grievant] was denied . . . time to present the views of the bargaining unit . . . to [his] Congressional Representatives." Opposition at 9 (emphasis added). It is clear from the record, which contains copies of the grievant's requests concerning Lobby Week, that the "time" the grievant sought for the purpose of lobbying Congress was official time. E.g., Exceptions, Enclosure 3 at 3 ("I am . . . [requesting] . . . official time in order to represent the views of the bargaining unit to our congressional representatives."); id., Enclosure 3 at 8 ("Please reference . . . the local[']s request for official time to present our views to our congressional representatives.").
The facts of this case support a finding that the Arbitrator did not exceed his authority by addressing official time. Accordingly, we deny the exception.
2. The Award Draws Its Essence From the Parties' Agreement
The Agency contends that the Arbitrator's award is based on a misinterpretation of Article V, Section 5 of the LMA. The Agency acknowledges that, under the first paragraph of Article V, Section 5, "[u]se of official time will not be limited to the confines of the activity, but will allow the representative to travel in accordance with the needs of the individual case." Exceptions at 9. However, the Agency contends that the first paragraph must be read in conjunction with Subsection c, which provides: "Reasonable time for receiving, investigating, preparing and presenting a complaint, grievance or appeal must necessarily depend on the facts and circumstances of each case[.]" Id. In light of Subsection c, the Agency asserts, "the intent of [the] term 'individual case' in the [first] paragraph means a case involving a 'complaint, grievance or appeal' and not the lobbying of Congress." Id.
Although the Agency's interpretation of Article V, Section 5 is plausible, so too is the Arbitrator's. In finding that the Agency's denial of official time violated the LMA, the Arbitrator cited to the first sentence of the first paragraph of Article V, Section 5, which provides: "Union officers and officials shall be permitted reasonable time during working hours without loss of leave or pay to represent employees in accordance with this agreement." Exceptions, Enclosure 4 at 8 (emphasis added). The first paragraph also permits the use of official time for "representational duties." Id. As the grievant's lobbying activity concerned subjects relating to the representation of unit employees, e.g., pay, health benefits, and protection of temporary employees, the Arbitrator had a basis for concluding that the lobbying activity was contemplated by Article V, Section 5.
It is clear that Article V, Section 5 is susceptible to different interpretations. However, the Agency has not demonstrated that the Arbitrator's interpretation is implausible, irrational, or unconnected to the wording of the agreement. Under these circumstances, the award does not fail to draw its essence from the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). Accordingly, we deny this exception.
C. Challenges Under Section 7122(a)(1) of the Statute to the Portion of the Award Concerning Official Time
The Agency argues that the Hatch Act and 18 U.S.C. § 1913 qualify and limit sections 7102(1) and 7131(d) of the Statute.(4) As these exceptions involve the award's consistency with law and regulation, we review the questions of law and regulation raised by the exceptions and the Arbitrator's award de novo. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996) (citing National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995)). In doing so, we note that the Authority has addressed the use of official time for lobbying Congress in three prior decisions. However, none of these decisions fully resolve the arguments presented here.(5)
1. The Award Does Not Violate the Hatch Act or 5 C.F.R. § 733.111(b)
The Hatch Act prohibits Federal employees' participation in certain political activities. See 5 U.S.C. § 7321 et seq. Relevant legislative history indicates that Congress' underlying rationale in enacting the Hatch Act was to establish a nonpartisan civil service. See S. Rep. No. 57, 103d Cong., 1st Sess. 3 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1803. Consistent with Congress' intent, and as pertinent here, 5 U.S.C. § 7324(a)(1) provides that Federal employees "may not engage in political activity" while on duty. The Hatch Act's implementing regulations define "political activity" as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." 5 C.F.R. § 734.101 (emphasis added).
The record in this case indicates that the grievant lobbied Congress on issues including pay, downsizing and reorganization, health benefits, civil service reform, protection for temporary employees, and EEO reform. Exceptions, Enclosure 3 at 8-9. The Agency does not argue, and it is not apparent from the record, that the Union's lobbying activity was directed at the success or failure of any political party, partisan political candidate, or partisan political group. As such, the grievant's lobbying activities do not fall within the regulation's definition of "political activity," and we conclude that the award is not inconsistent with the Hatch Act. Cf. Blaylock v. U.S. Merit Systems Protection Board, 851 F.2d 1348, 1352-54 (11th Cir. 1988) (Hatch Act's prohibition against taking part in political management or political campaign encompasses only active participation in, on behalf of, or in connection with organized efforts of political parties, political clubs, and political candidates).
The Agency also relies on 5 C.F.R. § 733.111(b). However, as a result of the Hatch Act Reform Amendments of 1993, the regulation was eliminated 1 month prior to Lobby Week. Therefore, it does not provide a basis on which to find the award deficient.
Based on the foregoing, we deny the Agency's exception.
2. The Award Does Not Violate 18 U.S.C. § 1913
18 U.S.C. § 1913 is a criminal statute that 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.
Our determination of whether the award is contrary to 18 U.S.C. § 1913 is aided by consideration of the provision's plain wording,(6) its legislative history,(7) relevant court decisions,(8) and administrative opinions of the Department of Justice (DOJ)(9) and the General Accounting Office (GAO)(10).
The plain wording of 18 U.S.C. § 1913 makes it a crime for any employee or officer of a Federal agency to use money appropriated by Congress to "pay for" certain items. In particular, the prohibition encompasses paying for: (1) specified items (personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device); that are (2) "intended or designed to influence in any manner" a Member of Congress on any legislation or appropriation. There are two exceptions to the prohibition:
(a) the personal service or other item is a response to a request of any Member of Congress or to Congress through proper official channels and relates to matters necessary for the efficient conduct of public business; or
(b) Congress has expressly authorized a statutory exception to the otherwise prohibited payment.
The allotment of official time results in use of Federal funds to "pay for" wages or salary. Therefore, in the circumstances of this case, it is clearly subject to 18 U.S.C. § 1913. See PFA at 4-23. Moreover, the parties agree, and the record reflects, that the Union's efforts during Lobby Week were aimed at influencing Members of Congress on pending legislation affecting the terms and conditions of bargaining unit employees' employment. Therefore, it is necessary to determine whether these particular activities are within the definition of the items prohibited by 18 U.S.C. § 1913.
a. Whether the Union's Activities are Within the Definition of Items Prohibited by 18 U.S.C. § 1913
We are not aware of any precedent squarely deciding whether the Union's lobbying activities constitute a "personal service, telegram, telephone, letter, printed or written matter, or other device," within the meaning of 18 U.S.C. § 1913,(11) and the statute does not define these terms. We note, however, the legislative history addressed above, which indicates that, when Congress enacted 18 U.S.C. § 1913, it intended to protect its Members from indirect lobbying by agency officials. See also NTEU v. Campbell, 654 F.2d at 792. There is no evidence or assertion that the Union representatives in this case were lobbying indirectly on behalf of agency officials. We note also that, in construing section 1913, the Department of Justice has stated that:
[T]he Statute prohibits only lobbying that is conducted in the form of the provision of a personal service or advertisement, that is presented in written form, or that is communicated by telephone or "other device." Read in context, the prohibition on other "devices[s]" does not appear to prohibit speeches or other verbal communications that are not relayed by telephone.
13 U.S. Op. Off. Legal Counsel 361, 363 (1989). DOJ concluded that the statute did not prohibit "public speeches by Executive Branch employees aimed at generating public support for [a]dministrative policies and legislative proposals." Id. The same reasoning supports a conclusion that the statute does not prohibit the Union's lobbying activities -- its oral communications not relayed by telephone -- in this case. There also is reason, as set forth by DOJ, for narrowly construing this criminal statute. See id. at 366.
Consistent with the foregoing, there are significant questions whether the Union's lobbying activities are within the definition of the items that Congress prohibited in 18 U.S.C. § 1913. However, it is unnecessary to determine whether the Union's activities are encompassed by the statute if one of the two aforementioned exceptions to the prohibition apply.
b. Whether the Exceptions to the General Prohibition Apply
With regard to the first exception, the parties do not claim, and the record does not reflect, that the Union's lobbying activities were in response to any Congressional request. In addition, there is no assertion, or other apparent basis on which to conclude, that the lobbying activities were conducted through "proper official channels." This exception has been interpreted as permitting communications that are cleared through agency officials' supervisors and that represent the official views of the agency. See 5 U.S. Op. Off. Legal Counsel 30, 32 (1978) (citing 58 Cong. Rec. 425 (1919)). In this case, it is uncontroverted that the Agency did not authorize the Union to present the Agency's views, and that the Union presented the views of bargaining unit employees. As such, the first exception does not apply.
Resolving whether the second exception applies requires examining the Federal Service Labor-Management Relations Statute to determine whether it constitutes an "express authorization by Congress." In this regard, the parties dispute whether the Statute expressly authorizes payment, through the grant of official time, for the type of activities engaged in by the Union. For the following reasons, we conclude that it does.(12)
When Congress enacted the Statute, it recognized that labor organizations and collective bargaining promote an effective and efficient Federal Government. See 5 U.S.C. § 7101. Consistent with this purpose, sections 7102(1) and 7102(2) provide 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.(13) In subsections (a) and (c) of section 7131 of the Statute, Congress authorized use of official time for, respectively, negotiating collective bargaining agreements, and participating in proceedings before the Federal Labor Relations Authority; in subsection (b), Congress expressly prohibited the use of official time for conducting activities relating to internal Union business.(14) Congress also provided in subsection (d) of section 7131 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. (Emphasis added).
Representational lobbying is plainly a matter covered by section 7102(1) 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 regard, the fact that Congress expressly authorized official time for matters covered by the Statute persuades us that Congress expressly authorized the use of appropriated funds for lobbying activities. Cf. 13 U.S. Op. Off. Legal Counsel 361, 363-64 (1989) (continued appropriations of funds by Congress for positions whose incumbents engage in lobbying activities constitutes authorization for such activities).
For these reasons, we conclude that the Statute constitutes "an express authorization by Congress" for using Federal funds to grant official time to employees to lobby Congress on representational matters, in such amount as the employing Federal agency and the exclusive representative agree. In this case, the Arbitrator found that the Agency and the Union had agreed in Article V, Section 5 of the parties' collective bargaining agreement to authorize employees "reasonable time during working hours . . . to represent employees[,]" and the Arbitrator concluded that the grievant was entitled to official time under the agreement. Exceptions, Enclosure 4 at 8. For reasons set forth in section IV.B.2 of this decision, the Arbitrator's interpretation of the agreement is not deficient under section 7122(a)(2) of the Statute. As such, we find that the granting of official time in the circumstances of this case is authorized by the Statute and, consequently, is excepted from the sanctions of 18 U.S.C. § 1913.(15)
In sum, we conclude that award is not contrary to 18 U.S.C. § 1913. For the same reasons, the award does not violate, as the Agency claims, 5 C.F.R. § 1001.735-207(b) and § 1001.735-214(c), which direct employees to abide by the prohibition against lobbying codified in 18 U.S.C. § 1913. Accordingly, we deny this exception.
The exceptions are denied.
Member Armendariz, concurring in part and dissenting in part:
I agree with my colleagues, for the reasons stated, that the Agency's exceptions claiming that the Arbitrator exceeded his authority, that the award does not draw its essence from parties' agreement, and that the award is inconsistent with 5 U.S.C. § 7321 and 5 C.F.R. § 733.111(b) should be denied. I disagree with my colleagues in that, rather than addressing the Agency's claim that the award is deficient under section 7122(a)(1) of the Statute because it is inconsistent with 18 U.S.C. § 1913, I would request an advisory opinion of the Office of Legal Counsel (OLC) of the Department of Justice (DOJ) as to whether 18 U.S.C. § 1913 precludes the Agency from permitting bargaining unit representatives to lobby Members of Congress, on official time, concerning matters pertaining to unit employees' conditions of employment.
Where laws administered by, and regulations issued by, other agencies have been involved in a case, we have often sought advisory opinions from those agencies. E.g., National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 843 (1995) (Office of Personnel Management); National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614, 623-26 (1991) (Department of Labor); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 756-59 (1980) (General Services Administration). I note, moreover, that the courts have made clear over the years, e.g., United States Department of Justice v. FLRA, 709 F.2d 724, 729 n.21 (D.C. Cir. 1983), and most recently in General Services Administration v. FLRA, 86 F.3d 1185 (D.C. Cir. 1996), that the Authority is not entitled to deference when it is interpreting a law other than the Statute. Because 18 U.S.C. § 1913 is a criminal statute, DOJ is responsible for prosecuting violations of that statute. Under 28 U.S.C. § 512, DOJ is authorized to provide advice to executive departments on questions of law within its jurisdiction. This responsibility has been delegated to OLC. 28 C.F.R. § 0.25.
Although, as noted by my colleagues, OLC has previously issued interpretations of 18 U.S.C. § 1913 at the request of Federal agencies, those interpretations have not addressed the particular questions presented by this case. Moreover, I do not agree with my colleagues that the terms of 18 U.S.C. § 1913 are clear. In particular, I do not believe that the phrase "expressly authorized a statutory exception" is sufficiently clear so as to lead to the conclusion that section 7131(d) is an express exception. Given the lack of clarity in 18 U.S.C. § 1913, and the fact that our interpretation would not be entitled to deference should it subsequently be subject to judicial review, I would seek an advisory opinion from OLC as to whether, in OLC's view, that statute precludes the Agency from permitting bargaining unit representatives to lobby Members of Congress, on official time, concerning matters pertaining to unit employees' conditions of employment.
Upon receipt of such an advisory opinion from OLC, I would provide the parties in this case, upon request, with an opportunity to supplement their views. See section 2429.26 of the Authority's Regulations. I would then decide the case based on the entire record, including the OLC opinion and any supplemental submissions.
Article V, Section 5 of the LMA provides in pertinent part:
5. Authorized Official Time. Union officers and officials shall be permitted reasonable time during working hours without loss of leave or pay to represent employees in accordance with this agreement. (This shall include time to review working conditions in their areas.) Use of official time will not be limited to the confines of the activity, but will allow the representatives to travel in accordance with the needs of the individual case. Union representatives may request and may be granted Government transportation when circumstances dictate such transportation is the most feasible, economical, and is the only reasonable transportation available. Overtime pay and premium pay are not authorized for negotiations or representational duties.
. . . .
c. Reasonable time for receiving, investigating, preparing and presenting a complaint, grievance or appeal must necessarily depend on the facts and circumstances of each case, i.e., number and nature of allegations, number and complexity of supporting specifics, the volume of supporting evidence, availability of documents and witnesses and similar considerations.
. . . .
Opposition, Enclosure 4 at 9.
Article VII, Section 5 of the LMA provides in pertinent part:
[G]rievance[s] must be presented in writing to the District Engineer or their [sic] designee if initiated by the Union or if initiated by the Employer to the Union President. Such grievance[s] must be presented within ten (10) work days from the occurrence [giving rise to the grievance] or the time the grieving party became award of the incidence or occurrence . . . .
Id., Enclosure 4 at 15.
(If blank, the decision does not have footnotes.)
1. Member Armendariz' opinion, concurring in part and dissenting in part, is set forth at the end of this decision.
2. The LMA addresses procedures for filing grievances in Article VII, Section 5. The pertinent text of Article VII, Section 5 is set forth in the Appendix.
3. The LMA addresses official time in Article V, Section 5. The pertinent text of Article V, Section 5 is set forth in the Appendix.
4. Section 7102(1) provides that employees' rights include 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[.]
Section 7131(d) provides that, except as provided in preceding subsections of section 7131:
(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.
5. The Authority concluded, without providing its reasoning, that an arbitration award granting official time to lobby Congress was not deficient as contrary to 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) (SSA). In two other decisions, the Authority found that bargaining proposals for use of official time to lobby Congress were within the duty to bargain under the Statute. National Treasury Employees Union, Chapter 243, and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 207 (1994); National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118, 1126-27 (1993). In the latter two decisions, neither the Hatch Act nor 18 U.S.C. § 1913 was raised.
6. In this connection, we note that, when examining issues of statutory construction, courts will give effect to the expressed intent of Congress where the intent is clear and unambiguous on the precise question at issue. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., et al., 467 U.S. 837, 843 n.9 (1984). However, a court will depart from the plain language of a statute where "the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters." Genentech, Inc. v. Eli Lilly and Co., 998 F.2d 931, 942 (Fed. Cir. 1993) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
7. The legislative history of 18 U.S.C. § 1913 suggests that its enactment was spurred by the use of Federal funds by an agency head urging citizens to contact Congressional representatives in support of legislation benefitting the agency. See 58 Cong. Rec. 403 (1919) (remarks of Rep. Good).
8. It is not asserted that there are judicial decisions examining alleged violations of 18 U.S.C. § 1913 on the merits. However, there are judicial decisions addressing, in dicta, what Congress intended to remedy when it enacted the statutory provision. See, e.g., National Association for Community Development, et al. v. Hodgson, 356 F. Supp. 1399, 1404 (D.D.C. 1973), rev'd, 482 F. Supp. 122 (D.D.C. 1980) (Congress intended to prevent "corruption of the legislative processes" by denying Federal financial support directed at influencing Congress' vote on legislation or appropriations); National Treasury Employees Union v. Campbell, 654 F.2d 784, 792 (D.C. Cir. 1981) (statute was intended to prevent indirect lobbying of Congress by agency heads) (NTEU v. Campbell).
9. DOJ's Office of Legal Counsel, in an advisory opinion issued in 1989, expressed its view that the statute was enacted "to restrict the use of appropriated funds for large-scale, high-expenditure campaigns specifically urging private recipients to contact Members of Congress about pending legislative matters on behalf of an Administrative position." 13 U.S. Op. Off. Legal Counsel 361, 365 (1989). DOJ opined that "Congress' continued appropriation of funds for positions held by Executive Branch officials whose duties historically have included seeking support for the Administration's legislative program constitutes 'express authorization by Congress' for the lobbying activities of these officials[.]" Id. at 364. In addition, DOJ stated that because section 1913 is a criminal statute, it is appropriate to construe its provisions narrowly and resolve ambiguities in favor of a more lenient construction. Id. at 366.
10. Where the use of public funds is an element of a violation of a statute, such as 18 U.S.C. § 1913, GAO is authorized to determine whether Federal funds were used properly. Principles of Federal Appropriations Law, 1-26 (2d ed. 1991) (PFA). In carrying out this responsibility, GAO has stated that 18 U.S.C. § 1913 "does not prohibit direct communication, solicited or unsolicited[,] between agency officials and Members of Congress . . . even where the contact is an obvious attempt to influence legislation." Id. at 4-175. See also, id. at 4-176 (citing B-145883, October 10, 1967 where agency head's letter to Members of Congress urging support for continuation of agency programs did not violate the anti-lobbying statute); and 63 Comp. Gen. 624, 627 (1984) (contacts by federal judges and legislative liaison activities by the Judicial Conference to Members of Congress did not violate the anti-lobbying statute).
11. As noted above, supra note 5, the Authority did not explain the reasons it concluded in SSA that an award granting official time for lobbying did not conflict with section 1913.
12. Contrary to our dissenting colleague, the fact that the Authority has, on occasion, sought advisory opinions from agencies on interpretations of external laws and regulations does not, in our view, make it appropriate in this case to seek an advisory opinion from DOJ's Office of Legal Counsel. In this regard, the particular terms of 18 U.S.C. § 1913 on which our analysis relies are not ambiguous. In addition, we are not aware of any Office of Legal Counsel opinions that are in any way inconsistent with the interpretation we apply herein. The one area of uncertain interpretation pointed out above does not affect, and in fact provides an alternative ground that supports, the conclusions we reach. Accordingly, we are not persuaded that it is either necessary or prudent to expend Government resources and delay the disposition of this case by seeking an opinion, especially when the Agency was capable of seeking such an opinion and chose not to do so. Instead, we believe that the Authority's responsibility here, like in so many other cases that require interpretation of external laws and regulations, is properly exercised by resolution of the dispute at this time. Of course, if 18 U.S.C. § 1913 is raised in a future case, then we would consider any additional or different arguments or evidence concerning its proper interpretation.
13. The Supreme Court has recognized, in decisions addressing the Constitutionality of expenditures made under agency-shop arrangements, that "[t]he dual roles of government as employer and policymaker . . . makes the analogy between lobbying and collective bargaining . . . a close one" requiring public sector unions to be concerned "not only with negotiations at the bargaining table but also with advancing their members' interest in legislative and other 'political' arenas." Lehnert v. Ferris Faculty Association, 500 U.S. 507, 520 (1991). The Authority has held, and there is no dispute in this case, that Federal employees have a Constitutional right to express their views on terms and conditions of employment to Congress. Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 671 n.6 (1991) (citing Thomas v. Collins, 323 U.S. 516 (1945); Thornhill v. Alabama, 310 U.S. 88 (1940); Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471, 478 (2d Cir. 1976)).
14. There is no contention that any of these three subsections is relevant in this case.
15. Even if we did not conclude that the Statute is an "express authorization by Congress," we would be left with a conflict between the general prohibition against lobbying contained in 18 U.S.C. § 1913 and the specific authorization for representational lobbying contained in 5 U.S.C. § 7131(d). In this connection, applying general principles of statutory construction, the specific is to prevail over the general. See, e.g., Todd v. M.S.P.B., 55 F.3d 1574, 1578 (D.C. Cir. 1995) (a statute addressing a narrow, precise, and specific subject is not absorbed by a statute covering a more generalized subject); Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (if two statutes are capable of coexistence, absent congressional intent to the contrary, each should be regarded as effective); and Mail Order Ass'n of America v. U.S. Postal Service, 986 F.2d 509, 515 (D.C. Cir. 1993) ("we are to prefer the more specific statute over a conflicting general one.").