United States Department of Transportation, Federal Aviation Administration, Great Lakes Region, Des Plaines, Illinois (Respondent) and National Air Traffic Controllers Association, AFL-CIO (Charging Party/Union)

64 FLRA No. 209   

                                                                                                                                                                                             

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

_____

 

UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

 GREAT LAKES REGION

DES PLAINES, ILLINOIS

 (Respondent)

 

and

 

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

AFL-CIO

 (Charging Party/Union)

 

CH-CA-08-0266

 

____

 

DECISION AND ORDER

 

July 30, 2010

 

_____

 

Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

 

I.          Statement of the Case

           

            This unfair labor practice (ULP) case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the Respondent.  The General Counsel (GC) filed an opposition to the Respondent’s exceptions.

 

            The complaint alleges that the Respondent violated § 7116 (a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with employees’ and the Union’s local President in the exercise of their rights under § 7102 of the Statute.[1]  The complaint alleges that the Respondent interfered with employee rights to act for the Union as representatives in certain Union solicitation and distribution activities, and in discussing the Union’s views on legislative issues with agency employees. The Judge found that there were no disputed factual or legal issues to be resolved and granted the GC’s motion for summary judgment.  The Judge concluded that the Respondent violated the Statute, as alleged.

 

        Upon consideration of the Judge decision and the entire record, we adopt the Judge’s findings, conclusions, and recommended Order.

 

II.        Background and Judge’s Decision

 

            The GC issued a complaint that alleges that the Respondent interfered with employees in the exercise of their rights guaranteed by § 7102 of the Statute in violation of § 7116(a)(1).  The complaint alleges that the Respondent violated the Statute in three ways.  First, the complaint alleges that the Respondent improperly prohibited employees from soliciting signatures for a Union petition and from distributing Union flyers.  Second, the complaint alleges that the Respondent improperly threatened employees with disciplinary action if they solicited signatures for a Union petition or distributed Union flyers.  Third, the complaint alleges that the Respondent improperly informed the Union’s local President that he was prohibited from discussing with employees the Union’s views on legislative issues and from asking employees to support those views at any time while on the Respondent’s premises.  The Respondent did not file an answer to the complaint within the time prescribed by § 2423.20(b) of the Authority’s Regulations.[2] 

 

            The GC filed a motion for summary judgment under § 2423.27(a) of the Authority’s Regulations based on the Respondent’s failure to file an answer.  In the motion, the GC asserted that there were no factual or legal issues in dispute and that the Judge should grant summary judgment in the GC’s favor.  Motion for Summary Judgment (Motion) at 2.  The GC requested that the Judge issue a remedial order that is consistent with the remedial orders issued by the Authority in similar cases.  Id. at 2-3.

 

            The Respondent filed a response to the motion.  In its response, the Respondent contended that it did not timely file its answer because the Authority’s regional office served the complaint on the incorrect representative of the Respondent.  Response to Motion for Summary Judgment (Response) at 2.

 

            In addition, the Respondent contended that this case involves “a significant legal dispute.”  Id. at 3.  In the Respondent’s view, the activity referenced in the complaint constitutes illegal “grass roots” lobbying in violation of the Anti-Lobbying Act, 18 U.S.C. § 1903 (the Anti-Lobbying Act).[3]  Id.  As part of its opposition, the Respondent attached a copy of a memorandum by the United States Department of Justice, Office of Legal Counsel (OLC) that addresses grass roots lobbying by union representatives.  Response, Attach. 1 (OLC Memorandum).[4]  The OLC Memorandum concludes that, under 18 U.S.C. § 1913: “federal employees who are union representatives may [not] use their official time to engage in ‘grass roots’ lobbying in which, on behalf of their unions, they ask members of the public to communicate with government officials in support of, or opposition to, legislation or other measures.” OLC Memorandum at 1.  

 

            The Judge granted the GC’s motion for summary judgment.  The Judge stated that, because there was no dispute that the answer was untimely, the only issue to be determined was whether the Respondent had shown “good cause” for its late submission.  Judge’s Decision at 3.  The Judge found that the Respondent’s arguments did not support a finding of “good cause” for the delay in filing the answer.[5]  Id.  at 4, 6.

 

            The Judge found that, under § 2423.20(b) of the Authority’s Regulations, the Respondent’s failure to file an answer constituted “an admission of each of the allegations of the complaint.”  Id. at 4.  Therefore, the Judge found that “there are no disputed factual or legal matters in this matter.”  Id.  Accordingly, the Judge granted the GC’s motion for summary judgment.  Id. at 6.  The Judge did not address the Respondent’s legal argument that the conduct of employees and the Union’s local president constituted “grass roots” lobbying in violation of the Anti-Lobbying Act.

 

            As requested by the GC, the Judge recommended a remedial order, including a cease and desist order and the posting of a notice at the Respondent's relevant facilities.  Id. at 6-8.  The Judge’s recommended order directed the Respondent to “[p]ermit employees to engage in union solicitation during nonworking time and to engage in union solicitation or distribution in nonworking areas during nonworking time.”  Id. at 7.  The recommended order also required the Respondent to “[p]ermit the local [Union] President, and any other Union representative, to discuss with employees the Union’s views and positions on legislative issues and ask employees to support the Union’s views and positions on legislative issues during nonworking time.”  Id.

 

III.       Positions of the Parties

 

            A.        Respondent’s Exceptions

 

            The Respondent excepts to the Judge’s recommended remedy.  The Respondent contends that the Judge’s remedy would require the Respondent to allow employees to engage in illegal “grass roots” lobbying.  Exceptions at 1.  The Respondent argues that such “grass roots” lobbying activity violates the Anti-Lobbying Act.  Id. at 4.  As part of its exceptions, the Respondent attaches a copy of the same OLC memorandum that it attached to its response to the motion for summary judgment.  Exceptions, Attach. 1.

           

            B.        GC’s Opposition

 

The GC argues that the Respondent’s argument that the recommended remedial order permits employees and Union representatives to engage in illegal conduct is not properly before the Authority because the Respondent failed to raise that argument before the Judge in its response to the motion for summary judgment.  Opp’n at 2-3.  Alternatively, the GC argues that the Anti-Lobbying Act does not prohibit the conduct that the remedial order permits.  Id. at 3-4. 

 

IV.       Analysis and Conclusions

 

            A.        The Respondent’s exceptions are properly before the Authority.

 

            The GC contends that the Respondent is precluded from challenging the recommended remedy’s legality because the Respondent failed to present its argument to the Judge.  Opp’n at 3.  The GC asserts that the Respondent’s “sole argument on the proposed remedial order was as follows: ‘Additionally, the requested remedy would allow union representatives to engage in otherwise illegal behavior.’”  Id. (citing Response at 4).  The GC concludes that § 2429.5 of the Authority Regulations therefore bars the Respondent from raising its “grass roots” lobbying argument in its exceptions.  Id.

 

            Section 2429.5 of the Authority’s regulations provides, in pertinent part, that “[t]he Authority will not consider evidence . . . or any issue which was not presented in proceedings before the . . . Judge [.]”  5 C.F.R. § 2429.5.  Authority precedent applying § 2429.5 makes clear that the Authority will not consider any issue that could have been, but was not presented to a Judge.  See, e.g., U.S. Dep’t of Transp., FAA, Wash. D.C., 64 FLRA 410, 412-13 (2010).

 

            The GC’s objection that the Respondent’s “grass roots” lobbying exceptions are barred by § 2429.5 reflects an inaccurate view of the Respondent’s response to the GC’s motion for summary judgment.  In its response, the Respondent made clear that the allegedly “illegal behavior” that the GC’s requested remedy would allow was “grass roots” lobbying.  Response at 3.  Additionally, the Respondent argued that “[s]ection 7102 of the Statute allows an exception [to the Anti-Lobbying Act] for lobbying but no exception for ‘grass roots’ lobbying.”  Id.  Further, the Respondent asserted that “[a] violation of the Anti-Lobbying Act could result in substantial civil penalties.”  Id.  In short, we find that the Respondent adequately presented its “grass roots” lobbying argument in proceedings before the Judge, and accordingly may raise that issue in its exceptions. 

 

            Accordingly, we find that the Respondent’s exceptions are properly before the Authority.

 

            B.        The Judge’s recommended remedy is not contrary to law.

 

            The Respondent argues that the Judge’s recommended remedy is contrary to law because it would require the Respondent to permit allegedly illegal “grass roots” lobbying.  Exceptions at 5-9.  Specifically, the Respondent objects to the part of the recommended remedy that “directs the Agency to permit Union representatives to ‘ask employees to support the Union’s views and positions on legislative issues during nonworking times.’”  Id. at 5 (quoting Judge’s Decision at 7).  The Respondent asserts that “[s]uch conduct is considered grass roots lobbying and is prohibited by [the Anti-Lobbying Act].”  Exceptions at 5. 

 

            The Respondent’s argument is not supported by the OCL Memorandum it relies on, or by Comptroller General case law, to which the Memorandum refers.  The OCL Memorandum states that “grass roots” lobbying occurs when “union representatives . . . on behalf of their unions, . . . ask members of the public to communicate with government officials in support of, or opposition to, legislation or other measures.”  OLC Memorandum at 1.  Comptroller General case law is to the same effect.  The Comptroller General defines “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.”  See Ass’n of Civilian Technicians, Razorback Chapter 117, 56 FLRA 427, 428 (2000) (quoting Alleged Grass Roots by a CSA Recipient, B-202787(1) (unpublished 1981)).   

 

            The remedial provision to which the Respondent objects would only require the Respondent to “[p]ermit Union representatives to ‘ask employees to support the Union’s views and positions on legislative issues during nonworking times.’”  Exceptions at 5 (quoting Judge’s Decision at 7).  For the following two reasons, we conclude that the part of the recommended remedy to which the Respondent objects does not address “grass roots” lobbying as the OLC Memorandum defines it. 

 

            First, the provision does not mention in any way urging communications with government officials or legislators to express either support of, or opposition to, pending legislation.  Second, the remedial provision does not make any reference to contacting members of the public.  The only communications covered by the recommended remedy are between Union representatives and unit employees.  As the GC argues in support of the Judge’s recommended remedial order, “[w]hen employees serving as union representatives ask their fellow unit employees to support the union’s views and positions on legislative issues during non-work time, they are exercising a fundamental right under [§] 7102 of the Statute.”  Opp’n at 4-5.  When a union is communicating with those whom it represents, it is dealing with persons with whom it has a special relationship -- a relationship that distinguishes those persons from “members of the public.” 

 

            There is nothing in the OLC Memorandum or Comptroller General case law it cites that equates federal employees represented by a union with “members of the public.”  Soc. Sec. Admin.-Grassroots Lobby Allegations, B-304715 Comp. Gen. (April 22, 2005); Lobbying Activity in Support of China Permanent Normal Trade Relations, B-285298 Comp. Gen. (May 22 2000).  Although the OLC Memorandum discusses as “grass roots” lobbying circumstances where federal employees using official time contact members of the public, e.g., OCL Memorandum at 1, 6-8, the OLC Memorandum does not discuss as instances of “grass roots” lobbying any situations where federal employees contact other federal employees.[6]  In short, the Respondent has read into the recommended remedy’s general wording a meaning that the remedy does not require.[7]

 

            Finally, the Respondent’s reliance on evidence that was not presented in the proceeding before the Judge is misplaced.  As part of its exceptions, the Respondent cites an email message from the Union’s president, to establish that a Union representative had sought to engage in “grass roots” lobbying.  See Exceptions at 4, 8.  Consideration of such material is barred by § 2429.5 of the Authority’s regulations.  As indicated previously, § 2429.5 provides that the Authority “will not consider evidence . . . not presented in the proceeding before the . . . Judge[.]”      

 

            Accordingly, we deny the Respondent’s exceptions claiming that the Judge’s recommended remedy is contrary to law. 

 

V.        Order

 

            Pursuant to § 2423.41(c) of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the United States Department of Transportation, Federal Aviation Administration, Great Lakes Region, Des Plaines, Illinois, shall:

 

            1.         Cease and desist from:

 

                        (a) Prohibiting employees from engaging in union solicitation during nonworking time and from engaging in union solicitation or distribution in nonworking areas during nonworking time.

 

                        (b) Threatening employees with discipline for engaging in union solicitation during nonworking time or for engaging in union solicitation or distribution in nonworking areas during nonworking time.

 

                        (c) Telling the local Union President that he was prohibited from discussing with bargaining unit employees the Union’s views and positions on legislative issues during nonworking time.

 

                        (d)  In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

 

            2.         Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

 

                        (a) Permit employees to engage in union solicitation during nonworking time and to engage in union solicitation or distribution in nonworking areas during nonworking time.

 

                        (b) Permit the local Union President, and any other Union representative, to discuss with employees the Union’s views and positions on legislative issues and ask employees to support the Union’s views and positions on legislative issues during nonworking time. 

 

                        (c)  Post copies of the attached Notice for 60 days at the FAA Great Lakes Regional Office, where bargaining unit employees are located, on forms to be furnished by the Authority.  Upon receipt, the Notice is to be signed by the Regional Counsel, and is to be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted.  Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

 

                        (d)  Pursuant to § 2423.41(e) of the Authority’s Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

 

 


 

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

 

The Federal Labor Relations Authority has found that the United States Department of Transportation, Federal Aviation Administration, Great Lakes Region, Des Plaines, Illinois, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

 

WE HEREBY NOTIFY EMPLOYEES THAT:

 

WE WILL NOT prohibit employees from engaging in union solicitation during nonworking times or from engaging in union solicitation or distribution in nonworking areas during nonworking time. 

 

WE WILL NOT threaten employees with discipline for engaging in union solicitation during nonworking time or for engaging in union solicitation or distribution in nonworking areas during nonworking time.

 

WE WILL NOT prohibit the local National Air Traffic Controllers Association (NATCA) President, or any other Union representative, from discussing with employees the Union’s views and positions on legislative issues and asking employees to support the Union’s views and positions on legislative issues during nonworking time. 

 

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured them by the Statute.

 

WE WILL permit employees to engage in union solicitation during nonworking time and to engage in union solicitation or distribution in nonworking areas during nonworking time. 

 

WE WILL permit the local NATCA President, and any other Union representative, to discuss with employees the Union’s views and positions on legislative issues and ask employees to support the Union’s views and positions on legislative issues during nonworking time. 

 

 

                                                            ____________________________________

                                                                                       (Activity)

 

 

Date: ________________  By:           _____________________________________

                                                                                    (Signature)   (Title)

 

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is:  55 West Monroe Street, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is:  (312) 886-3465.

 

 



[1] Section 7102 of the Statute provides, in pertinent part:

 

Each employee shall have the right to . . . assist any labor organization, . . . freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right[,] . . . includ[ing] the right . . . 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 appropriate authorities[.] 

5 U.S.C. § 7102. 

[2]  Section 2423.20(b) of the Authority’s Regulations provides, in pertinent part:

                (b) Answer. Within 20 days after the date of service of the complaint, ... the Respondent shall file and serve, ... an answer with the Office of Administrative Law Judges. The answer shall admit, deny, or explain each allegation of the complaint.... Absent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission.

5 C.F.R. § 2423.20(b). 

[3] The Anti Lobbying Act 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, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counter-intelligence, intelligence, or national security activities.

 

18 U.S.C. § 1913.

[4] This attachment is entitled “Application of 28 U.S.C. § 1913 To ‘Grass Roots’ Lobbying by Union Representatives” and is dated November 23, 2005.  See OLC Memorandum at 1.    

[5]The Respondent does not contend that the Judge erred in finding that Respondent failed to establish “good cause” for the delay in filing its answer under § 2423.20(b) of the Authority’s Regulations.

[6]   Member Beck observes that OLC opinions are generally viewed as binding within the Executive Branch. See, e.g., OLC Memorandum for Attorneys of the Office RE: Best Practices for OLC Opinions (May 16, 2005) at 1 (asserting that “OLC opinions are controlling on questions of law within the Executive Branch”). Member Beck notes that, as an independent, quasi-judicial agency, the Authority “cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.”  Humphrey’s Executor v. U.S., 295 U.S. 602, 628 (1935).

[7]   In view of this result, there is no need to address whether the OLC Memorandum is binding on the Authority.  However, we note that decisions of the Comptroller General are not binding on the Authority.  “Although a Co