11:0007(5)AR - HHS, SSA and AFGE Local 3231 -- 1983 FLRAdec AR

 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.