ASSOCIATION OF CIVILIAN TECHNICIANS, SILVER BARONS CHAPTER and SILVER SAGE CHAPTER, Petitioner, v. FEDERAL LABOR RELATIONS


Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Case Name:
ASSOCIATION V FLRA 9871031
Case Number: Date Filed:
98-70838 01/10/00


FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSOCIATION OF CIVILIAN
TECHNICIANS, SILVER BARONS
CHAPTER and SILVER SAGE
CHAPTER,
Petitioner,
v.
                                                     Nos. 98-70838
FEDERAL LABOR RELATIONS
                                                          98-71031
AUTHORITY,
                                                     OPINION
Respondent,
and
STATE OF NEVADA, OFFICE OF THE
MILITARY AND THE NEVADA
NATIONAL GUARD,
Intervenor.
On Petition for Review of a Decision and Order of the
Federal Labor Relations Authority
Argued and Submitted
December 8, 1999--San Francisco, California
Filed January 10, 2000
Before: Charles Wiggins, Diarmuid F. O'Scannlain and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
                               217


COUNSEL
Daniel M. Schember, Gaffney & Schember, Washington,
D.C., for the petitioner.
Judith A. Hagley, Federal Labor Relations Authority, Wash-
ington, D.C., for the respondent.
David S. Pennington, Carson City, Nevada, for the intervenor.
_________________________________________________________________
                               219

OPINION
HAWKINS, Circuit Judge:
The Association of Civilian Technicians, Silver Barons
Chapter (the "Union") complains that the Nevada Air
National Guard and the Nevada Army National Guard (collec-
tively the "Agency") failed to include a provision in the col-
lective bargaining agreement which would allow union
officers to use "official time" to lobby Congress concerning
working conditions. The Federal Labor Relations Authority
("FLRA") found that the Agency did not have to bargain over
the provision because it was contrary to section 8015 of the
1996 Department of Defense ("DOD") Appropriations Act.
We uphold the FLRA's decision and deny the petition to
review.
At collective bargaining, the Union sought to require the
Agency to include a provision in the collective bargaining
agreement which would grant official time to "Union officials
when representing Federal employees by visiting, phoning,
and writing to elected representatives in support of or opposi-
tion to pending or desired legislation which would impact the
working conditions of employees represented by [the
Union]." [ER at 7.] The Agency refused to bargain over this
provision, and the Union filed an unfair labor practice charge.
[1] The Union argues that sections 7131 and 7102 of the
Federal Service Labor-Management Relations Act (the
"FSLMRA") mandate inclusion of this provision. Section
7131 of the FSLMRA governs the grant of official time. See
5 U.S.C. S 7131 (1994 & Supp. II 1996). Official time allows
employees performing union representational functions to be
paid as if they were at work, without being charged for annual
leave. Under section 7131, union officials may be granted
official time for a variety of reasons including those "in con-
nection with any other matter covered by [the FSLMRA]." Id.
Section 7102(1) provides that employees, acting in their union
                               220

representational capacity, have the right to present the views
of their labor organization to Congress. 5 U.S.C.S 7102(1).
The FLRA has read these sections together to mean that union
representatives may receive official time for lobbying Con-
gress in matters concerning their working conditions. See,
e.g., U.S. Dept. of Army Corps. of Engineers v. National Fed-
eration of Fed. Employees Local 259, 52 FLRA 920, 932-33
(1997).
[2] The Agency contends, however, that section 8015 of the
1996 DOD Appropriations Act repeals this interpretation of
sections 7131 and 7102 of the FSLMRA, at least with respect
to DOD employees. Section 8015 provides that "[n]one 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
Congress." Pub. L. No. 104-61, 109 Stat. 636, 654 (1996).
The FLRA agreed and the Union appealed.
As an issue of law, we review this case de novo. See
Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).
Although courts owe Chevron deference to an agency's con-
struction of a statute it is charged with administering, courts
do not owe deference to an agency's interpretation of a statute
it is not charged with administering or when an agency
resolves a conflict between its statute and another statute. See
California National Guard v. FLRA, 697 F.2d 874, 879 (9th
Cir. 1983). Because the FLRA is not charged with administer-
ing the DOD Appropriations Act and we are resolving a con-
flict between the FSLMRA and the DOD Appropriations Act,
we review this case de novo.
[3] Although it is disfavored as a matter of policy, repeal
by implication can be found where Congress's intent to
replace the existing statute is unambiguous. See United States
v. Will, 449 U.S. 200, 221, 224 (1980) (repeal by implication
is possible even in context of appropriations bills).
                               221

[4] Here, Congress expressed a clear intent to repeal sec-<