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Dissenting Opinion of Member Wasserman:
I disagree with the conclusion reached by my colleagues that the provision at issue is contrary to law. Rather, consistent with my separate opinions in cases involving similar proposals and provisions, I do not think that the disapproved provision in this case conflicts with section 8012 of the 1998 Department of Defense Appropriations Act. [n1] I believe that the language of section 8012 precludes neither agency officials nor union officials from direct contact with Congress. [n2]
More particularly, in New Hampshire National Guard, I found no clear expression of congressional intent in the appropriations law to preclude union officials from having the ability to communicate with Congress, as guaranteed by section 7102, on official time, as guaranteed by section 7131. As no such expression of intent has been advanced here, I disagree with my colleagues' determination that "section 7131(d) does not supercede the explicit and targeted prohibition" in the Appropriations Act. See, slip op. at 6.
I would also reject the other grounds on which the Agency contends that the provision is contrary to law, for the reasons explained in Georgia Department of Defense, 54 FLRA at 662-65, Nevada Air National Guard, 54 FLRA at 324-25, and New Hampshire National Guard, 54 FLRA at 306-09.
In sum, I would find that the provision is not contrary to law and order the Agency head to rescind its disapproval.
File 1: Authority's Decision in 55 FLRA No. 139
File 2: Opinion of Member Wasserman
Footnote # 1 for 55 FLRA No. 139 - Opinion of Member Wasserman
See Office of the Adjutant General, Georgia Department of Defense, Atlanta, Georgia, 54 FLRA 654 (1998) (Georgia Department of Defense), aff'd on other grounds sub nom. Georgia State Chapter, Association of Civilian Technicians v. FLRA, No. 98-1452 (D.C. Cir. Aug. 3, 1999); Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 316 (1998) (Nevada Air National Guard), petition for review filed sub nom. Silver Barons v. FLRA, No. 98-70838 (9th Cir. July 24); and Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (New Hampshire National Guard), aff'd sub nom. Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999). The provisions of section 8012 are identical to section 8015 of the 1996 Department of Defense Appropriations Act, which the Authority addressed in the cited cases.
Footnote # 2 for 55 FLRA No. 139 - Opinion of Member Wasserman