Association of Civilian Technicians, Razorback Chapter 117 (Union) and U.S. Department of Defense, National Guard Bureau, Arkansas National Guard, Camp Robinson, North Little Rock, Arkansas (Agency)

[ v56 p427 ]

56 FLRA No. 62

ASSOCIATION OF CIVILIAN TECHNICIANS
RAZORBACK CHAPTER 117
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
ARKANSAS NATIONAL GUARD, CAMP ROBINSON
NORTH LITTLE ROCK, ARKANSAS
(Agency)

0-NG-2498

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

June 6, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one provision disapproved by the Agency head under section 7114(c) of the Statute.

      For the reasons explained below, we find that the provision is not contrary to law and, therefore, direct the Agency head to rescind its disapproval of the provision.

II.     Provision

      Section 2. APPROPRIATE USES OF OFFICIAL TIME. . . . Official time provisions will be provided IAW [in accordance with] the Statute and include but shall not be limited to:

f.     Union officials when representing Technicians by visiting, phoning and writing to elected representatives in support of desired legislation which would impact the working conditions of employees represented by ACT.

III.     Positions of the Parties

A.     Agency

      According to the Agency, the provision is contrary to sections 8001 and 8012 of the 1999 Department of Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat. 2279, 2296, 2299 (1998). [n2] In this regard, the Agency maintains that the Authority has held that similar "language" allowing union officials to lobby Congress with appropriated funds regarding pending legislation was nonnegotiable. Statement of Position at 3, citing Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (Member Wasserman dissenting) (New Hampshire National Guard), aff'd sub nom. Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999) (Granite State Chapter v. FLRA); Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 595 (1998) (Member Wasserman dissenting) (Nevada Air National Guard), aff'd sub nom. Association of Civilian Technicians, Silver Barons Chapter and Silver Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000). The Agency argues that the substitution of the word "desired" for "pending" in the provision is a "minor change [that] does not alter the basic meaning and intent of the provision[,] nor does it render the language negotiable in light of the DoD Appropriations Act . . . ." Statement of Position at 7-8.

      The Agency also argues that the provision is contrary to 18 U.S.C. § 1913. [n3] The Agency maintains that [ v56 p428 ] the Authority erred when it held in National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993) (NFFE, Local 122) that a proposal permitting unions to lobby Congress on pending or desired legislation while on official time was negotiable since sections 7102 and 7131(d) of the Statute permit union officials to represent their members before Congress. In this regard, the Agency contends that the Authority's decision in NFFE, Local 122, "fail[ed] to consider the applicability of laws restricting lobbying activities such as the Anti-lobbying Act, 18 U.S.C. § 1913." Statement of Position at 5.

      The Agency maintains that the "appropriate method of interpreting 18 U.S.C. § 1913 in this case is to abide by its precise language[,]" since "th[e] language [of § 1913] is unambiguous, and therefore, recourse to legislative history to define the prohibition's scope is improper." Id. at 6, 5. The Agency claims that since "[f]ederal employees are compensated with appropriated funds during working hours, authorizing employees to use official time to engage in lobbying activities is equivalent to paying for personal services intended to influence members of Congress[,]" in violation of § 1913. Id. at 6. Moreover, the Agency argues that "neither sections 7102 or 7131 of [the Statute], nor any other provision of law, expressly authorizes the use of appropriated funds to support the types of lobbying activities in question." Id.

      Finally, the Agency argues that the union officials' lobbying activities, are "types of `grass roots' lobbying that would be prohibited even under the most narrow interpretation of 18 U.S.C. § 1913 and appropriations act restrictions." Id. In this regard, the Agency contends that as public citizens, the union officials' lobbying falls within the General Accounting Office's (GAO's) definition of prohibited grass roots lobbying 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 6-7, quoting Alleged Grass Roots by a CSA Recipient, B-202787(1) (unpublished 1981).

B.     Union

      The Union argues that the provision at issue involving desired legislation is significantly different from the provisions in prior cases that were deemed contrary to law by the Authority because they "authorize[d] official time to communicate with Members of Congress about pending legislation." Response to Statement of Position (Response) at 3, citing Office of the Adjutant General, Georgia Department of Defense, Atlanta, Georgia, 54 FLRA 654 (1998) (Member Wasserman dissenting) (Georgia Department of Defense) aff'd on other grounds sub nom. Georgia State Chapter Association of Civilian Technicians v. FLRA, 184 F.3d 889 (D.C. Cir. 1999), Nevada Air National Guard, and New Hampshire National Guard. In this regard, the Union emphasizes that the "sole basis" for the Authority's decisions is the Defense Appropriations Act's explicit prohibition against the use of appropriated funds to lobby Congress on pending legislation. The Union maintains that "[i]t is undisputed that the contract provision here does not authorize official time to lobby [C]ongress on pending legislation[; t]hus, the provision cannot be deemed to violate § 8012." Response at 3. The Union stresses that the "omission of `pending' from [the provision at issue] was an intentional decision by the parties . . . to omit the same concept that is meant by `pending' in the section of the Department of Defense [Appropriations] Act [of] 1999 upon which the head of the agency based [its] disapproval[.]" Id. at 2.

      Alternatively, in the event that the Authority finds that the provision is similar to the provisions involving pending legislation that were deemed contrary to law in Georgia Department of Defense, Nevada Air National Guard, and New Hampshire National Guard, the Union argues that these cases were incorrectly decided for a number or reasons. First, the Union maintains that the "[i]mplicit repeal or non-funding of Defense employees' right to lobby Congress on official time is not clearly required by the Appropriation Acts." Response at 4. Second, the Union argues that the Statute and the Defense Appropriations Act "reasonably can be construed not to conflict" and the Authority overlooked its duty to reconcile these statutes. Id. at 5. Third, the Union contends that the Authority's interpretation of the Defense Appropriations Act leads to the "unacceptable conclusion that employee activities on paid annual leave constitute use of appropriated funds and that § 8012 therefore prohibits employees from [exercising their First Amendment right to petition Congress for redress of grievances] while on annual leave." Id. at 5-6. Fourth, the Union argues that "[a]part from principles of statutory construction, the Authority's past interpretation of provisions like § 8012 is implausible[.]" Id. at 6. Fifth, the Union maintains that "the right to use official time for lobbying [under the Statute] prevails because it is more specific than the general prohibition against [the] use of appropriat[ed funds] for lobbying." Id. at 7.

      Lastly, the Union contends that in relation to 18 U.S.C. § 1913, the Agency's arguments "already have been rejected by the Authority[,]" and "no new arguments [ v56 p429 ] warranting reconsideration" were presented by the Agency. Id. at 3.

IV.     Meaning of the Provision

      The parties agreed to the meaning of the provision as follows:

[T]he provision would allow for the use of official time by union officials to visit, phone or write to elected representatives regarding legislation that the officials would like to see passed but that has not yet been introduced by the House of Representatives or Senate at the time the officials visit, phone or write their elected representatives.

Post-Petition Conference Record (Conference Record) at 2, citing Conference Record for Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21 and U.S. Department of Defense, National Guard Bureau, Minnesota National Guard, Case No. NG-2490 (ATC, Minnesota) at 2. Accordingly, we adopt the parties' meaning of the provision. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996) (when a proposal is silent as to a particular matter, a union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording).

V.     Analysis and Conclusions

      For the following reasons, we find that the provision is not contrary to law.

A.     Section 8012 of the 1999 DOD Appropriations Act

      This case is the Authority's first opportunity to address a proposal or provision that deals solely with granting official time to union representatives to lobby Congress regarding "desired" legislation. The Authority has previously examined proposals or provisions that involve "pending" legislation, and a majority has found that such proposals/provisions were inconsistent with the plain wording of section 8012 (or its predecessor, section 8015) of the Defense Appropriations Lobbying Statute. [n4] For example, in New Hampshire National Guard, in addressing 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 stated

Because the Union's proposal requires the use of appropriated funds to influence pending legislation, and because section 8015 plainly prohibits use of appropriate[d] funds to directly or indirectly influence pending legislation, we find that the proposal is inconsistent with section 8015 of the 1996 DOD Appropriations Act. The legislation does not authorize any exceptions to this prohibition, and there is no basis for the Authority to create an exception that Congress has not stated. [Footnote omitted.] Consequently, we conclude that the proposal is contrary to law, and that the Respondent was not obligated to bargain with the Union over it.

New Hampshire National Guard, 54 FLRA at 310-11. [n5] Unlike the proposal in New Hampshire National Guard and the other cases cited above in footnote 4, the provision in this case does not involve pending legislation in any respect. As such, on its face, the plain wording of section 8012 of the Defense Appropriations Act is not inconsistent with the use of appropriated funds to influence desired legislation that is at issue here.

      We do not view pending legislation and desired legislation as synonymous terms, and thus, disagree with the Agency's claim that the inclusion of the word "desired," as opposed to "pending," is a minor change that does not alter the basic meaning or intent of the provision. In determining whether the provision at issue should be treated in the same fashion as proposals or provisions that involved pending legislation, we adopt the parties' agreed upon meaning for the term "desired legislation," as legislation that the union officials wish to see enacted, but that has not yet been introduced by the House of Representatives or Senate at the time of the officials' lobbying activities. In this regard, we note that this definition comports with the plain meaning or dictionary definition of the word "desired" as "that [which] is longed or hoped for[.]" Webster's Unabridged Third New International Dictionary (1986) at 612.

      Desired legislation, as defined above by the parties, is separate and distinct from the plain meaning of [ v56 p430 ] "pending" as used in the DOD Appropriations Act and the proposals/provisions previously examined by the Authority. The Authority has not specifically defined the term "pending" in its prior cases regarding official time for lobbying activities. The Union explains, and it is undisputed, that "pending," as used in earlier cases, is "the same concept" as the word "pending" in the appropriation acts.

      Under principles of statutory interpretation, undefined terms in a statute are understood to have their ordinary meaning. Koyo Seiko Co., Ltd. v. United States, 36 F.3d 1565, 1571 n.9 (Fed. Cir. 1994). Black's Law Dictionary defines "pending" as "begun, but not yet completed; before the conclusion of; prior to the completion of." Black's Law Dictionary 1134 (6th ed. 1990). In line with the plain meaning of the word pending, and the Union's explanation, we find that the scope of section 8012's prohibition against the use of appropriated funds for lobbying "on any legislation or appropriation matters pending before the Congress" is limited to legislation or bills that have been introduced for consideration by Congress but have not been enacted into law or voted down (i.e., legislative process officially commenced but not yet completed). Thus, considering the plain meaning of pending legislation, demonstrated above to be distinct from desired legislation, leads us to conclude that a provision granting official time for lobbying regarding desired legislation falls outside the scope of the Appropriations Act's prohibition against lobbying regarding pending legislation. [n6] 

      Lastly, we reject the Agency's argument that the provision is contrary to section 8012 of the DOD Appropriations Act based on GAO's definition of prohibited grass roots lobbying. In New Hampshire National Guard, the majority, in response to then-Member Wasserman's dissent, noted that although GAO had interpreted provisions similar to section 8015 (predecessor to section 8012) concerning pending legislation, GAO's opinions "did not address the question presented" regarding lobbying Members of Congress by union officials since all of GAO's interpretations were "rendered in connection with questions regarding activities by agency -- not union -- officials." New Hampshire National Guard, 54 FLRA at 311 (emphasis in original) (footnote omitted). Chairman Wasserman also rejects this argument, consistent with his dissent in New Hampshire National Guard, since the union's lobbying activities (visiting, phoning and writing to Members of Congress) involve direct contact with Members of Congress and not indirect grass roots lobbying efforts that urge the public to contact Members of Congress on pending legislation. In addition, we note that the GAO opinion, B-202787(1), on which the Agency relies relates solely to lobbying concerning pending legislation and not desired legislation that is at issue in this case.

      Accordingly, we find that the provision is not contrary to section 8012 of the 1999 DOD Appropriations Act.

B.     Section 8001 of the 1999 DOD Appropriations Act and 18 U.S.C. § 1913

      We find that the provision is not contrary to either section 8001 of the 1999 DOD Appropriations Act or 18 U.S.C. § 1913. The Authority has consistently held that both section 8001 and 18 U.S.C. § 1913 contain express exceptions that permit the use of appropriated funds for representational lobbying concerning legislation or appropriations. See U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 932-33 (1997) (Corps of Engineers); Georgia Department of Defense, 54 FLRA at 662-65; New Hampshire National Guard, 54 FLRA at 306-07, 309; Nevada Air National Guard, 54 FLRA at 607. In this connection, the plain wording of section 8001 expressly prohibits the use of appropriated funds "for publicity and propaganda purposes not authorized by the Congress." Similarly, the plain wording of 18 U.S.C. § 1913 expressly prohibits the expenditure of appropriated funds for direct or indirect lobbying, unless inter alia, an express authorization by Congress" indicates otherwise.

      In Corps of Engineers, the Authority 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. Specifically, the Authority found that section 7102 provides that employees, acting in their representational capacity, have the right to present the views of their union to Congress and to engage in collective bargaining with respect to conditions of employment. Moreover, the Authority noted that in subsection (d) of section 7131, 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. [ v56 p431 ] Corps of Engineers, 52 FLRA at 933 (quoting section 7131(d) of the Statute). The Authority determined that representational lobbying is plainly a matter covered by section 7102 of the Statute, and as such, the express language of section 7131(d) permits official time for representational lobbying where the agency and the union so agree. Georgia Department of Defense, 54 FLRA at 662-65.

      The provision at issue plainly involves representational lobbying since the union officials would be lobbying regarding legislation that "would impact the working conditions of [bargaining unit] employees." The distinction between desired legislation and pending legislation demonstrated above does not call into question the representational nature of the lobbying that is the basis for exemption under section 8001 and 18 U.S.C. § 1913. [n7]  In addition, the Agency has not provided any new arguments supporting a conclusion that the granting of official time to Union officials to lobby Congress violates section 8001 of the DOD Appropriations Act or 18 U.S.C. § 1913. Therefore, for the same reasons set forth in Corps of Engineers, and subsequently reaffirmed, we find that the provision is not contrary to section 8001 of the 1999 DOD Appropriations Act or 18 U.S.C. § 1913.

VI.     Order

      The Agency shall rescind its disapproval of the provision.


Concurring Opinion of Member Cabaniss:

      I write separately to discuss the interpretation we ascribe to the legislation at issue. The language of the Department of Defense appropriations bill speaks of "legislation or appropriations matters pending before the Congress." Given its plain meaning, this language by itself unfortunately precludes our finding that lobbying on desired legislation is prohibited and, taken literally, only prohibits lobbying on matters which have actually been introduced as legislation in the House of Representatives or the Senate. I say "unfortunately" because I do not believe our interpretation in this case reflects actual congressional intent.

      While most dictionaries define "pending" to mean something that has been begun but not yet completed, that same definition concept does not comport with the reality of the legislative process. Legislation, and lobbying efforts related thereto, does not "begin" on the day of a bill's introduction, it begins when interests attempt to persuade Congress to consider introducing desired legislation or statutory changes. The actual introduction by a member of Congress of proposed legislation comes more likely at a mid-point in the legislative process. In the case of some kinds of legislation, such as appropriations bills, it is often the case that desired provisions and changes are secured at the subcommittee and full committee level, through successful lobbying efforts, before a bill is ever introduced as an actual piece of legislation.

      It is unlikely that Congress would place a ban on lobbying for legislation at a point so midway in the legislative process that much of the lobbying activity regarding a piece of legislation has already taken place. If the intent was to indeed ban the use of appropriated funds for all lobbying activities, both before and after a piece of legislation has been introduced, it needs to be more clearly and conclusively set out by Congress if the desire is to avoid the legislative interpretation I feel constrained to agree with today.



Footnote # 1 for 56 FLRA No. 62

   Member Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 56 FLRA No. 62

   These sections provide:

Sec. 8001. No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress.
Sec. 8012. None of the funds made available by this Act shall be used in any way, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before the Congress.

Footnote # 3 for 56 FLRA No. 62

   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.

Footnote # 4 for 56 FLRA No. 62

   New Hampshire National Guard; Nevada Air National Guard; Georgia Department of Defense; and ATC, North Carolina.