No. 98-1810
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________________________
GRANITE STATE CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
I. Nature of the Case 2
II. Background 3
A. The Federal Service Labor-Management Relations Statute 3
B. Official Time 4
C. Prior Authority Cases on Official Time and Lobbying 6
III. The Authority's Decision 7
STANDARD OF REVIEW 11
SUMMARY OF ARGUMENT 12
ARGUMENT 14
THE AUTHORITY PROPERLY DETERMINED THAT A PROPOSAL FOR
OFFICIAL TIME FOR LOBBYING BY UNION REPRESENTATIVES IS NOT
WITHIN AN AGENCY'S DUTY TO BARGAIN BECAUSE THE PROPOSAL
CONFLICTS WITH A STATUTE THAT EXPRESSLY PROHIBITS,
WITHOUT EXCEPTION, ANY USE OF APPROPRIATED FUNDS FOR
LOBBYING 14
A. The Plain Meaning of Section 8015 Prohibits
the Use of DOD Appropriations for the Lobbying
Purposes Sought by the Union 15
B. Rules of Statutory Construction Support the
Authority's Decision 15
C. The Union's Arguments as to Why the Appropriations Act
May Be Ignored in this Case Lack Legal and Logical Support 18
1. The use of official time involves an
expenditure of federal funds 19
2. There has been no repeal by implication and
reconciliation is unnecessary 21
3. Section 8015 prevails over section 7131(d)
on the issue of use of appropriated funds
for official time for lobbying activities 24
CONCLUSION 26
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135
(1994 & Supp. II 1996) and other pertinent regulations A-1
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 11
BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) 17
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) 3, 4, 11, 20
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984) 11
Connecticut Nat. Bank v. Germain, 503 U.S. 249 (1992) 16
David v. U.S., 820 F.2d 1038 (9th Cir. 1987) 19
Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA,
854 F.2d 1 (1st Cir. 1988) 3, 11
Department of the Treasury v. FLRA, 837 F.2d 1163
(D.C. Cir. 1988) 12
Natural Resources Defense Council, Inc. v. United States
Env. Protection Agency, 824 F.2d 1258 (1st Cir. 1987) 25
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 11
Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979) 23
Pritzker v. Yari, 42 F.3d 53 (1st Cir. 1994) 16
Regan v. Taxation With Representation of Washington,
461 U.S. 540 (1983) 21
Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) 23
United States v. Dickerson, 310 U.S. 554 (1940) 23
United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 16
United States v. Will, 449 U.S. 200 (1980) 23
United Techs. Corp. v. Browning-Ferris Indus., Inc.,
33 F.3d 96 (1st Cir. 1994) 16
West Point Elementary Sch. Teachers Ass'n v. FLRA,
855 F.2d 936 (2d Cir. 1988) 12
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of Health & Human Servs., Social Security Admin.
and AFGE, Local 3231, 11 FLRA 7 (1983) 6
NFFE, Local 122 and U.S. Dep't of Veterans Affairs, Regional
Office, Atlanta, Georgia, 47 FLRA 1118 (1993) 6
NTEU, Chapter 243 and U.S. Dep't of Commerce, Patent &
Trademark Office, 49 FLRA 176 (1994) 6
NFFE Local 2015 & U.S. Dep't of the Interior Nat'l Park
Servs., 41 FLRA 1158 (1991) 5, 14, 15, 22
NTEU and U.S. Dep't of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, 45 FLRA 339 (1992) 4
U.S. Dep't of the Army Corps of Engineers, Memphis District,
Memphis, Tennessee and NFFE, Local 259, 52 FLRA 920
(1997) 6, 7, 25
FEDERAL STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 1
5 U.S.C. § 7102(1) 5
5 U.S.C. § 7105(a)(1) 3
5 U.S.C. § 7105(a)(2) 3
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7105(a)(2)(I) 3
5 U.S.C. § 7116(a)(1) 3, 4, 11
5 U.S.C. § 7116(a)(5) 3, 4, 11
5 U.S.C. § 7117(a)(1) 2, 14, 15, 22
5 U.S.C. § 7123(a) 1, 2
5 U.S.C. § 7123(c) 11, 18
5 U.S.C. § 7131 4
5 U.S.C. § 7131(a) 4, 5
5 U.S.C. § 7131(b) 5, 20
5 U.S.C. § 7131(c) 4, 5
5 U.S.C. § 7131(d) passim
5 U.S.C. § 706(2)(A) 11
5 U.S.C. § 5551 (1988 & Supp II 1996) 19
18 U.S.C. § 1913 passim
Civil Service Reform Act of 1978, Pub. L. 95-454,
92 Stat. 1214 19, 25
Department of Defense Appropriations Act, 1996, Pub. L.
No. 104-61, §§ 8001, 8015, 109 Stat. 636 (1996) passim
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 551.424(b) 19
5 C.F.R. § 734.306 21
5 C.F.R. § 2429.1(a) 7
MISCELLANEOUS
General Accounting Office, Principles of Federal
Appropriations Law, Chapter 4 (2d ed. 1991) 10
5 U.S. Op. Off. Legal Counsel 180 (1981) 23
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 98-1810
_______________________________
GRANITE STATE CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decision and order under review in this case was issued by the
Federal Labor Relations Authority ("FLRA" or "Authority") in Office of the
Adjutant General, New Hampshire National Guard, Concord, New Hampshire and
Granite State Chapter, Association of Civilian Technicians, 54 FLRA (No. 38)
301 (May 29, 1998) (Granite State); Joint Appendix (JA) 4-18. The Authority
exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of
the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. II 1996) (Statute).[1]
This Court has jurisdiction to review the Authority's decisions and orders
pursuant to section 7123(a) of the Statute. Petitioner Granite State
Chapter, Association of Civilian Technicians ("petitioner" or "the union")
filed a petition for review within the 60-day time limit provided by section
7123(a) of the Statute.
STATEMENT OF THE ISSUE
Whether the Authority properly determined that a proposal for official time
for lobbying by union representatives is not within an agency's duty to
bargain because the proposal conflicts with a statute that expressly
prohibits, without exception, any use of appropriated funds for lobbying.
STATEMENT OF THE CASE
I. Nature of the Case
This case arose as an unfair labor practice (ULP) proceeding concerning
allegations that the Office of the Adjutant General, New Hampshire National
Guard ("agency" or "National Guard") refused to bargain in good faith over a
union proposal for official time for lobbying. JA 4. The National Guard
believed that the proposal conflicts with several statutes that restrict the
use of federal funds for lobbying and similar activities, specifically 18
U.S.C. § 1913 and both section 8001 and section 8015 of the 1996 Department
of Defense (DOD) Appropriations Act. Because an agency's duty to bargain in
good faith does not extend to proposals insofar as they are "inconsistent
with any Federal law or any Government-wide rule or regulation," 5 U.S.C.
§ 7117(a)(1), the National Guard deemed the union's proposal nonnegotiable. JA
5-7.
The union filed a charge with the FLRA's General Counsel, who issued a
complaint. The complaint alleged that the agency violated section 7116(a)
(1) and (5) of the Statute. JA 4-5. The Authority concluded that the
agency did not commit the unfair labor practice alleged and, accordingly,
dismissed the complaint. JA 16.
II. Background
A. The Federal Service Labor-Management Relations Statute
The Statute governs labor-management relations in the federal service.
Under the Statute, the responsibilities of the Federal Labor Relations
Authority (Authority) include adjudicating unfair labor practice complaints,
negotiability disputes, bargaining unit and representation election matters,
and resolving exceptions to arbitration awards. See 5 U.S.C.
§ 7105(a)(1), (2); see also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464
U.S. 89, 93 (1983) (BATF). The Authority thus ensures compliance with the
statutory rights and obligations of federal employees, labor organizations that
represent such federal employees, and federal agencies. The Authority is
further empowered to take such actions as are necessary and appropriate to
effectively administer the Statute's provisions. See 5 U.S.C. § 7105(a)(2)(I);
BATF, 464 U.S. at 92-93.
The Authority performs a role analogous to that of the National Labor
Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93;
Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1, 2
(1st Cir. 1988). Congress intended the Authority, like the NLRB, "to
develop specialized expertise in its field of labor relations and to use
that expertise to give content to the principles and goals set forth in the
[Statute]." BATF, 464 U.S. at 97.
The Statute makes it a ULP for a federal agency employer to, among other
things, "interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under [the Statute]," or to refuse to "negotiate
in good faith." 5 U.S.C. § 7116(a)(1) and (5). The instant case involves
ULP allegations under section 7116(a)(1) and (5), and the Authority's
interpretation of its own organic statute as it relates to another agency's
appropriation act.
B. Official Time
In the federal sector, many unions rely on employees in the agencies in
which the unions hold recognition to perform representational functions
either in addition to or instead of staff employed by the union. Section
7131 governs the extent to which agency employees representing a union may
conduct representational activities on "official time." NTEU and U.S. Dep't
of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 365
(1992). A grant of official time allows employees performing union
representational functions to be paid as if they were at work, without being
charged for annual leave.
In subsections (a) and (c) of section 7131, not involved in this case,
Congress authorized use of official time for, respectively, negotiating
collective bargaining agreements, and participating in proceedings before
the FLRA. 5 U.S.C. § 7131 (a) and (c). In subsection (b), also not
directly involved here, Congress expressly prohibited the use of official
time for conducting activities relating to internal union business and
stated that such activities shall be performed only when the employee is in
a non-duty status. 5 U.S.C. § 7131(b). In subsection (d), which is at the
heart of this case, Congress provided that union representatives should be
granted official time "in connection with any other matter covered by" the
Statute "in any amount the agency and the exclusive representative involved
agree to be reasonable, necessary, and in the public interest." 5 U.S.C. §
7131(d).
Representational lobbying is one such "matter covered by" the Statute.
Section 7102(1) provides that employees, acting in their representational
capacity, have the right to present the views of their labor organization to
Congress. 5 U.S.C. § 7102(1).
Section 7131(d) supplies the authority to negotiate proposals that employees
be granted official time for union-related activities. Parties may
negotiate under section 7131(d) for a variety of matters, as long as they
are otherwise consistent with the Statute and other applicable laws and
regulations. See, e.g., NFFE Local 2015 & U.S. Dep't of the Interior Nat'l
Park Servs., 41 FLRA 1158, 1185 (1991) (NFFE Local 2015) (finding proposal
for official time is outside the duty to bargain because the purpose of the
official time conflicted with a regulation).
C. Prior Authority Cases on Official Time and Lobbying
In this case the Authority considered whether the proposal for official time
for representational lobbying of Congress is consistent with two other laws,
18 U.S.C. § 1913 and the 1996 DOD Appropriations Act. The Authority has
addressed the use of official time for lobbying in four prior cases.[2] In
NTEU Chapter 243 and VA Atlanta, the Authority found negotiable proposals
for official time for lobbying purposes; in neither case, however, was the
argument raised that such a proposal conflicted with an anti-lobbying
statute. NTEU Chapter 243, 49 FLRA at 207; VA Atlanta, 47 FLRA at 1126-27.
In the other two cases, SSA and Corps of Engineers, the Authority considered
whether the official time proposal conflicted with 18 U.S.C. § 1913. In
SSA, the Authority concluded, without discussion, that an award granting
official time for lobbying does not conflict with 18 U.S.C. § 1913, a
criminal law that restricts lobbying with federal funds without
congressional authorization. SSA, 11 FLRA at 8. In Corps of Engineers, the
Authority found that an arbitration award granting official time to lobby
Congress is not contrary to 18 U.S.C. § 1913. Noting that section 1913
contains an exception to its prohibition if Congress has authorized the
lobbying, the Authority found that the Statute constitutes "express
authorization by Congress" within the meaning of section 1913's exception.
Corps of Engineers, 52 FLRA at 933. None of these cases considered the
question at issue in this case: whether a proposal for official
time violates a prohibition against lobbying like the prohibition in the 1996
DOD Appropriations Act.
III. The Authority's Decision[3]
During collective bargaining negotiations, the union submitted the
following proposal:
Association officials will be granted not to exceed two days
annually, official time to represent the bargaining unit by
visiting, phoning, and writing to elected representatives
in support of or opposition to pending desired legislation
which would impact the working conditions of employees
represented by the Association.
JA 5.
The agency refused to bargain over the proposal because it is inconsistent
with provisions of law, specifically 18 U.S.C. § 1913[4] and both section
8001[5] and section 8015[6] of the 1996 DOD Appropriations Act, which
restrict lobbying with appropriated funds. Because the proposal conflicts
with these laws, the agency contended, it did not violate the Statute by
refusing to bargain. Id.
The Authority found the proposal consistent with
18 U.S.C. § 1913 and section 8001 of the 1996 DOD Appropriations Act.[7]
However, the Authority also found the proposal inconsistent with section 8015 of
the DOD Appropriations Act and, therefore, outside the agency's duty to bargain.
JA 14.
The Authority determined that the proposal does not conflict with section
1913 and section 8001 because both of those sections contain an exception --
they do not prohibit the expenditure of federal funds for purposes
authorized by Congress. JA 9-12. In contrast, as the Authority noted,
section 8015 includes no exception to its restriction. The Authority held
that the plain wording of section 8015 expressly prohibits the use of
appropriated funds to directly or indirectly influence legislation pending
before Congress. The Authority determined that because section 8015 does
not contain an exception like "except as authorized by Congress" -- language
that was central to the Authority's finding that section 1913 and section
8001 do not bar official time for representational lobbying -- section 8015
bars the use of appropriated funds for official time for lobbying. The
Authority noted in this regard it would refuse to create an exception that
Congress had chosen not to include.[8]
JA 13-14.
The Authority rejected the union's claim that the Statute is more specific
than section 8015 of the 1996 DOD Appropriations Act and therefore should
prevail over the DOD Act. Comparing section 7131(d) of the Statute, which
generally authorizes official time for any "matter covered by" the Statute,
with section 8015, an "explicit and targeted prohibition," the Authority
could not conclude that section 7131(d) is more specific than section 8015.
JA 15. The Authority also found support in the rule of statutory
construction providing that where two statutes conflict, the later and more
specific statute usually controls over the earlier and more general one.
Thus, the Authority concluded that the more recent 1996 DOD Appropriations
Act prevails over the Statute. JA 15-16.
Based on the above, the Authority determined[9] that the union's proposal is
contrary to section 8015 of the 1996 DOD Appropriations Act and therefore
the agency did not violate section 7116(a)(1) and (5) of the Statute when it
refused to bargain over the union's proposal. Accordingly, the Authority
dismissed the complaint. JA 16.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." AFGE, Local 2343
v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Authority action shall be set
aside only if "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
706(2)(A); Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854
F.2d 1, 2 (1st Cir. 1988); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769,
771-72 (D.C. Cir. 1988). Under this standard, unless it appears from the
Statute or its legislative history that the Authority's construction of its
enabling act is not one that Congress would have sanctioned, the Authority's
construction should be upheld. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). A court should
defer to the Authority's construction as long as it is reasonable. See id.
at 845.
Further, as the Supreme Court has stated, the Authority is entitled to
"considerable deference" when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities' of
federal labor relations." BATF, 464 U.S. at 97. As the instant case
demonstrates, among the "complexities of Federal labor relations" that the
Authority must address as part of its everyday work is the interrelationship
of the Statute and other laws, rules, and regulations governing the federal
employment relationship. When the Authority's work requires interpretation
of other statutes, while it is not entitled to deference, the Authority's
interpretation should be given "respect." West Point Elementary Sch.
Teachers Ass'n v. FLRA, 855 F.2d 936, 940 (2d Cir. 1988); Department of the
Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988). In its
interpretation of other federal statutes, the Authority's reasoning should
be followed to the extent the reasoning is "sound." Department of the
Treasury, 837 F.2d at 1167.
SUMMARY OF ARGUMENT
The Authority properly determined that the union's proposal, that the agency
agree to provide union representatives official (paid) time to lobby
Congress, is contrary to law and hence not within the agency's duty to
bargain. Section 8015 of the DOD Appropriations Act expressly prohibits
using appropriated funds to influence "in any way" -- "directly or
indirectly" -- legislation pending before Congress. The Authority correctly
concluded that the union's proposal, seeking official time expressly to
lobby Congress, is not negotiable because it violates the DOD Appropriations
Act.
The Authority's construction of section 8015 heeds the prohibition in the
section's plain language that, without exception, DOD may not use any
appropriated funds to support lobbying activities. In addition, the
Authority's construction draws an appropriate distinction between section
8015 and another section of the DOD Appropriations Act, section 8001, which
prohibits using funds for propaganda, but which also contains an exception
for such activities if "authorized by the Congress." Noting that Congress
expressly included an exception in section 8001, the Authority's reading of
section 8015 gives meaning to Congress's omission of a comparable exception
in the latter section.
None of the union's arguments justifies ignoring the plain language of
section 8015. First, the union is incorrect when it asserts that official
time does not involve the use of federal funds. Official time is not free
-- it entails the expenditure of appropriated funds to pay wages for the
performance of the designated functions for which the official time is
sought, here, lobbying.
Second, contrary to the union's assertion, there has been no repeal by
implication. Under the Statute, an agency's duty to bargain over a proposal
is limited by a requirement that the proposal be consistent with other laws.
Thus, finding a proposal non-negotiable because it is inconsistent with
another law does not repeal any part of the Statute but only applies the
Statute's own limitation on the bargaining obligation. In any event, while
repeals by implication may be disfavored, they are permissible in
appropriate circumstances.
Finally, although the union disagrees, section 8015 prevails over section
7131(d) of the Statute, on the particular issue of official time for
lobbying because section 8015 is the more specific statute on that issue.
Section 8015 expressly prohibits any use of appropriated funds by DOD to
support lobbying activities. The union's contentions would require the
Court to rewrite a statute that Congress has enacted and eliminate a
restriction on the use of appropriated funds that Congress specifically and
plainly intended. For these reasons, the union's petition for review should
be denied.
ARGUMENT
THE AUTHORITY PROPERLY DETERMINED THAT A PROPOSAL
FOR OFFICIAL TIME FOR LOBBYING BY UNION REPRESENTATIVES
IS NOT WITHIN AN AGENCY'S DUTY TO BARGAIN BECAUSE THE
PROPOSAL CONFLICTS WITH A STATUTE THAT EXPRESSLY
PROHIBITS, WITHOUT EXCEPTION, ANY USE OF APPROPRIATED
FUNDS FOR LOBBYING.
A party has no duty to bargain over proposals that are inconsistent with a
law, rule or regulation. See, e.g., Granite State, JA 9; NFFE Local 2015,
41 FLRA at 1185; 5 U.S.C. § 7117(a)(1). The question in this case is whether
a proposal for official time for representational lobbying violates a statute
that prohibits, specifically and without exception, all lobbying involving in
any way the expenditure of appropriated funds.
The Authority correctly determined that this proposal is not within the
agency's duty to bargain because it is contrary to Congress's express
prohibition in section 8015 of the 1996 DOD Appropriations Act. First, the
plain language of section 8015 flatly prohibits what the union asks for in
its proposal. Second, rules of statutory construction support this holding.
Finally, the union's arguments to avoid the express language of the 1996 DOD
Appropriations Act lack merit.
A. The Plain Meaning of Section 8015 Prohibits the Use of DOD
Appropriations for the Lobbying Purposes Sought by the Union.
The plain wording of section 8015 of the 1996 DOD Appropriations Act
expressly prohibits the use of appropriated funds "in any way," "directly or
indirectly," for lobbying activities. It is difficult to imagine how
Congress could have drawn the restriction more clearly.
The union's official time proposal would require the agency to violate the
clear restriction plainly set forth in section 8015 by using appropriate
funds to pay for official time for union representatives to lobby Congress.
Indeed, lobbying is the sole and express purpose for which the union seeks
the official time. However, it is precisely this use of appropriated funds
that section 8015 prohibits. Accordingly, the proposal, requiring the
agency to use appropriated funds specifically to fund the union's lobbying
activities, is inconsistent with law, and not within the agency's bargaining
obligation under the Statute. See Granite State, JA 9; NFFE Local 2015, 41
FLRA at 1185; 5 U.S.C. § 7117(a)(1).
B. Rules of Statutory Construction Support the Authority's Decision.
Principles of statutory construction support the Authority's determination that
section 8015 prohibits the use of appropriated funds to support lobbying
activities. First, the primary canon of statutory construction is that where
the language of a statute is clear in its application, the reviewing authority
must apply its plain meaning as written. See, e.g., Connecticut Nat. Bank v.
Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts
must presume that a legislature says in a statute what it means and means in a
statute what it says there. When the words of a statute are unambiguous, then,
this first canon is also the last: 'judicial inquiry is complete.'") (citations
omitted); Pritzker v. Yari, 42 F.3d 53, 67 (1st Cir. 1994) ("As a fundamental
principle of statutory construction, we will not depart from, or otherwise
embellish, the language of a statute absent either undeniable textual ambiguity,
or some other extraordinary consideration.") (citations omitted). The language
of section 8015 is clear and, therefore, the Authority acted correctly when it
relied on the plain wording of that section.
Second, the Authority's decision is also consistent with the maxim that a
statute must be interpreted to give effect to each of its provisions. See,
e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); United
Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 101 (1st Cir. 1994).
As noted in the Authority's decision (JA 12-13), section 8001 of the 1996 DOD
Appropriations Act contains an exception to that section's restriction on
"publicity and propaganda"; i.e., that the restriction does not apply if such
activity has been "authorized by the Congress." In contrast, section 8015
contains no such exception.[10] Thus, Congress specifically included the
exception in section 8001 of the 1996 DOD Appropriations Act and specifically
omitted the language in section 8015 of the very same Act. By refusing to graft
section 8001's exception onto section 8015, the Authority gave meaning to
Congress's action. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994)
("[I]t is generally presumed that Congress acts intentionally and purposely when
it includes particular language in one section of a statute but omits it in
another.") (citation omitted).
Ignoring this critical difference between the sections, the union attempts to
read section 8001's exception into section 8015 by arguing (Br. at 9) that
section 8015, too, does not restrict activities that are permitted by other
congressional acts. To adopt the union's interpretation of section 8015 would
render superfluous the "authorized by the Congress" language in section 8001.
By refusing to disregard Congress's actions, the Authority followed the plain
meaning of section 8015 and gave effect to the DOD Appropriations Act as whole.
The Authority's adherence to these established principles of statutory
interpretation is a further indication of the correctness of the Authority's
decision.
C. The Union's Arguments as to Why the Appropriations Act May Be Ignored
in this Case Lack Legal and Logical Support.
The union makes several arguments in its efforts to side-step the express
language of Congress: the use of official time does not involve an expenditure
of federal funds and therefore the Appropriations Act does not apply; the
Authority failed to reconcile the statutes and repeal by implication is
disfavored; and even if the Appropriations Act applied, the Statute is more
specific and therefore should prevail over the Appropriations Act.[11] As
explained below, each of these arguments lacks merit.[12]
1. The use of official time involves an expenditure of federal funds.
The union argues -- but cites no authority for the proposition -- that the use
of official time does not involve the expenditure of appropriated funds. Br. at
8. The union is simply wrong: the allotment of official time results in the
use of federal funds to pay for wages.
The union's "common sense" comparison of official time to annual leave (Br. at
3) is inappropriate. "Official time" granted an employee by an agency to
perform representational functions -- unlike annual leave -- "shall be
considered hours of work." 5 C.F.R. § 551.424(b) (Add. A-8). Individuals on
annual leave are not considered employees, but individuals on official time are.
See David v. U.S., 820 F.2d 1038, 1043 (9th Cir. 1987) ("Since David was on
official time while acting as a union stewardess, she is considered an employee
for [Civil Service Reform Act of 1978] purposes.") Further, annual leave is a
form of compensation that an employee earns by reason of the fact that one is a
federal employee. Indeed, an employee can, upon separation from employment,
receive a lump-sum payment for accrued annual leave. See 5 U.S.C. § 5551 (1988 &
Supp. II 1996).
The union's proposed analogy between official time and annual leave fails for an
additional reason. Contrary to the union's suggestion (Br. at 8), an employee
on official time is not a free agent -- controls exist as to what the employee
can do. Official time can only be agreed to by the agency and granted for
purposes that are consistent with the Statute. See
5 U.S.C. § 7131(d). Moreover, as discussed above, the agency and the union
cannot agree on a proposal for official time for a purpose that conflicts with a
law or regulation.
On the other hand, the purpose for which an individual uses his or her annual
leave does not have to be agreed upon. Clearly, there are activities that one
may do on annual leave -- such as conduct internal union business or attend a
baseball game -- that one may not do on official time. See 5 U.S.C. § 7131(b)
(no official time may be allowed for internal union business, which must be
performed during "nonduty status").[13]
Because the union's claim that official time and annual leave are comparable
uses of appropriated funds fails, its dependent claim, that the Authority's
decision raises constitutional problems, should also be rejected. This case is
not about restrictions on First Amendment freedoms -- rather, it concerns who
will pay for the exercise of those freedoms. The Authority's decision does not
bar union representatives from lobbying Congress. It does, however, recognize
that the agency may not subsidize that lobbying when its appropriations act
prohibits the use of funds for lobbying. See Regan v. Taxation With
Representation of Washington, 461 U.S. 540, 546 (1983) (rejecting argument that
congressional decision not to subsidize lobbying violates the First Amendment
because "Congress is not required by the First Amendment to subsidize
lobbying"). The fact that the agency may not agree under section 7131(d) to
provide official time for lobbying -- because it violates the DOD Appropriations
Act -- does not mean that an individual may not choose to lobby while on annual
leave. Cf. 5 C.F.R. § 734.306, Examples 11 and 12 (1998) (union official on
official time may not attend political event; individual on annual leave may
attend political event).
2. There has been no repeal by implication and reconciliation is unnecessary.
The union seeks to avoid the DOD Appropriations Act's prohibition on the use of
federal funds for lobbying by arguing that "[r]epeal by implication is
disfavored" (Br. at 7) and that the Authority "overlooked its obligation to
reconcile the statutes" (Br. at 8). As discussed below, there has not been any
repeal by implication in this case. The Authority's construction of section
7131(d)'s authorization of official time only to the extent not inconsistent
with federal law does not repeal or eviscerate the Statute's official time
provisions. Furthermore, even if section 8015 is viewed as suspending the
Statute's official time provisions with regard to lobbying, such a result is not
prohibited where, as here, Congress has clearly expressed its intentions.
The Authority's application of section 8015's prohibition against the use of
appropriated funds for lobbying activities in this case did not "repeal" any of
the Statute's provisions. Under the Statute, an agency has a duty to bargain
over a proposal, including a proposal for official time under section 7131(d),
only if the proposal is "consistent with law, rule, and regulation." Granite
State, JA 9; see also NFFE Local 2015,
41 FLRA at 1185; 5 U.S.C. § 7117(a)(1). Thus, the Statute itself envisions that
other laws will place limitations on the duty to bargain. In ruling that the
union's lobbying proposal is not within the agency's duty to bargain because it
is inconsistent with section 8015's prohibition on the use of agency funds for
such activities, the Authority thus merely applied the Statute's own limitation
on the bargaining obligation.[14]
In fact, in section 8015 Congress merely decided not to fund an activity within
DOD that section 7131(d) authorizes for the government in general. In such
cases, as the Justice Department has explained, the principle of reconciling
statutes "carries little force in the appropriations context" because "there is
no presumption that Congress has made funds available for every authorized
purpose in any given fiscal year." 5 U.S. Op. Off. Legal Counsel 180, 184
(1981) (determining that, under lobbying restriction contained in appropriations
act, grantees may not use appropriated funds to engage in lobbying activities,
even if grantees are authorized by the organic legislation to use federal money
for lobbying purposes).
Even if section 8015 is viewed, arguendo, as repealing or suspending in part
section 7131(d), the resulting suspension is legitimate. Although repeals by
implication are disfavored, there is no requirement that a court reconcile two
statutes at all costs. See Preterm, Inc. v. Dukakis, 591 F.2d 121, 133 (1st
Cir. 1979) ("[T]he principle that two statutes should if possible be found
capable of co-existence does not suggest that we should approach the statute
with blinders and reconcile them at all costs, even when the second enactment is
an appropriations measure.")
Moreover, the Supreme Court has upheld modifications to existing laws found in
appropriations acts. See, e.g., Robertson v. Seattle Audubon Society, 503 U.S.
429 (1992). In Robertson, the Supreme Court noted that although repeals by
implication are disfavored in the appropriations context, Congress nonetheless
may amend substantive law in an appropriations statute, as long as it does so
clearly. Id. at 440. See also United States v. Will, 449 U.S. 200, 222 (1980)
("[W]hen Congress desires to suspend or repeal a statute in force, '[t]here can
be no doubt that . . . it could accomplish its purpose by an amendment to an
appropriation bill.'") (omission in original) (quoting United States v.
Dickerson, 310 U.S. 554, 555 (1940)). Here, Congress clearly and unequivocally
stated that no funds appropriated to the Department of Defense for 1996 could be
used in any way to influence pending legislation. Therefore, any right pursuant
to section 7131(d) to expend such funds for this purpose has been suspended by
the DOD Appropriations Act.
Finally, as argued below, the DOD Appropriations Act is the more specific
statute on the subject of use of appropriated funds for lobbying, and therefore
prevails over section 7131(d) of the Statute. Thus, the union's contention that
the Authority's decision is flawed for failing to reconcile the two statutes
should be rejected.
3. Section 8015 prevails over section 7131(d) on the issue of use
of appropriated funds for official time for lobbying activities.
The union's claim (Br. at 9-10) that the Statute should prevail over the 1996
DOD Appropriations Act restrictions on the use of appropriated funds for
lobbying is without merit. The Authority ruled that it was "unable to conclude
that [section 7131(d)] is more specific than the explicit and targeted
prohibition in section 8015." JA 15. The Authority's determination is correct
and should be upheld.
The language of section 8015 specifically addresses the core issue in the case
-- the propriety of the Department of Defense's using appropriated funds for
lobbying purposes. In contrast, section 7131(d) contains only a general
authorization for all agencies and unions to agree on grants of official time
for any "matter covered by" the Statute. The DOD Appropriations Act is clearly
the more specific statute in this context.[15]
Moreover, consistent with canons of statutory construction, when two statutes
are irreconcilable, the later-enacted statute is generally preferred. See,
e.g., Natural Resources Defense Council, Inc. v. United States Env. Protection
Agency, 824 F.2d 1258, 1278 (1st Cir. 1987). Section 8015 was enacted in 1996.
Section 7131(d) was enacted in 1978 as part of the original Civil Service Reform
Act. Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1214.
Therefore, the "explicit and targeted prohibition in section 8015" should
prevail over the earlier, more general provisions of section 7131(d).
CONCLUSION
The union's petition for review should be denied.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations
Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
October 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________________________
GRANITE STATE CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS,
Petitioner
v. No. 98-1810
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations Authority
and one copy of the brief in electronic format, have been served this day,
by hand, upon the following:
Daniel M. Schember Gina A. Taylor, Esq.
Gaffney & Schember, P.C. National Federation of
1666 Connecticut Ave., N.W. Federal Employees
Suite 225 1016 16th Street, N.W.
Washington, D.C. 20009 Washington, D.C. 20036
I certify that copies of the Brief For The Federal Labor Relations Authority
and one copy of the brief in electronic format, have been mailed this day by
first-class mail to the Clerk of the First Circuit.
Thelma Brown
Paralegal Specialist
October 30, 1998
STATUTORY AND REGULATORY ADDENDUM
TABLE OF CONTENTS
1. 5 U.S.C. § 7102(1)................................... A-1
2. 5 U.S.C. § 7105(a)(1), (2)........................... A-2
3. 5 U.S.C. § 7105(a)(2)(G),(I)......................... A-2
4. 5 U.S.C. § 7116(a)(1), (5)........................... A-3
5. 5 U.S.C. § 7117(a)(1)................................ A-4
6. 5 U.S.C. § 7123(a), (c).............................. A-5
7. 5 U.S.C. § 7131 ..................................... A-7
8. 5 C.F.R. § 551.424(b)................................ A-8
9. 5 C.F.R. § 734.306................................... A-9
10. 5 C.F.R. § 2429.1.................................... A-11
§ 7102. Employees'rights
Each employee shall have the right to form, join, or assist any labor
organization, or to refrain from any such activity, freely and without fear
of penalty or reprisal, and each employee shall be protected in the exercise
of such right. Except as otherwise provided under this chapter, such right
includes the right-
(1) 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 officials of the executive branch of the
Government, the Congress, or other appropriate authorities, and
* * * * * * * * * *
§ 7105. Powers and duties of the Authority
(a)(1) The Authority shall provide leadership in establishing policies and
guidance relating to matters under this chapter, and, except as otherwise
provided, shall be responsible for carrying out the purpose of this chapter.
(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
* * * * * * * * * *
(I) take such other actions as are necessary and appropriate to effectively
administer the provisions of this chapter.
* * * * * * * * * *
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * * * * *
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter;
* * * * * * * * * *
§ 7117. Duty to bargain in good faith; compelling need; duty
to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in
good faith shall, to the extent not inconsistent with any Federal law or any
Government-wide rule or regulation, extend to matters which are the subject
of any rule or regulation only if the rule or regulation is not a
Government-wide rule or regulation.
* * * * * * * * * *
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
* * * * * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * * * * *
§ 7131. Official time
(a) Any employee representing an exclusive representative in the negotiation
of a collective bargaining agreement under this chapter shall be authorized
official time for such purposes, including attendance at impasse proceeding,
during the time the employee otherwise would be in a duty status. The number
of employees for whom official time is authorized under this subsection
shall not exceed the number of individuals designated as representing the
agency for such purposes.
(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.
(c) Except as provided in subsection (a) of this section, the Authority
shall determine whether any employee participating for, or on behalf of, a
labor organization in any phase of proceedings before the Authority shall be
authorized official time for such purpose during the time the employee
otherwise would be in a duty 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.
[1] Pertinent statutory and regulatory provisions are set forth in Addendum
A to this brief.
[2] See U.S. Dep't of the Army Corps of Engineers, Memphis District, Memphis,
Tennessee and NFFE, Local 259, 52 FLRA 920 (1997) (Corps of Engineers); NTEU,
Chapter 243 and U.S. Dep't of Commerce, Patent & Trademark Office, 49 FLRA 176
(1994) (NTEU Chapter 243); NFFE, Local 122 and U.S. Dep't of Veterans Affairs,
Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993) (VA Atlanta); and
Department of Health & Human Servs., Social Security Admin. and AFGE, Local
3231, 11 FLRA 7 (1983) (SSA).
[3] This unfair labor practice case was before the Authority based on
the parties' stipulation of facts under section 2429.1(a) of the Authority's
Regulations. 5 C.F.R. 2429.1(a) (1997). The parties agreed that no material
issue of fact existed. JA 4.
[4] 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.
[5] Section 8001 of the 1996 DOD Appropriations Act provides:
No part of any appropriation contained in this Act
shall be used for publicity or propaganda purposes
not authorized by the Congress.
DOD Appropriations Act, 1996, Pub. L. No. 104-61, § 8001, 109 Stat. 636, 651
(1996).
[6] Section 8015 of the 1996 DOD Appropriations Act provides:
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.
DOD Appropriations Act, 1996, Pub. L. No. 104-61, § 8015, 109 Stat. 636, 654
(1996).
[7] The Authority considered whether the proposal is contrary to only the DOD
Appropriations Act for 1996 because the agency's refusal to bargain occurred in
1996. The Authority noted, however, that the DOD Appropriations Act for both
1997 and 1998 contain restrictions identical to sections 8001 and 8015 of the
1996 Act. JA 9 n.5.
[8] The Authority noted that the General Accounting Office (GAO) has
interpreted provisions similar to section 8015 as "applying primarily to
indirect or grass roots lobbying and not to direct contact with Members of
Congress." JA 14 (quoting GAO, Principles of Federal Appropriations Law 4-171
(2d ed. 1991)). The Authority found that this interpretation does not address
the question presented in this case. First, as the Authority stated, GAO's
description of the primary application of these provisions does not define their
"exclusive" application. Second, GAO's prior interpretations were all rendered
in connection with questions regarding activities by agency -- not union --
officials so that the three branches of the government could communicate with
each other. JA 14-15.
[9] Member Wasserman dissented, finding no evidence that Congress intended in
section 8015 to limit the Statute's authorization of official time.
[10] The union ignores this critical difference when it claims (Br. at 4 n.2,
9-10) that section 8015 and 18 U.S.C. § 1913 (which contains essentially the
same exception as section 8001) are "nearly identical."
[11] The union also suggests that there is something suspect about the fact
that in the DOD Appropriations Act, Congress restricted the use of appropriated
funds "solely with respect to DOD employees." Br. at. 7. This restriction,
however, merely reflects the nature of an appropriations act, which generally is
agency-specific. In addition, the union did not raise this argument in its
brief before the Authority and, therefore, is precluded from doing so on review.
5 U.S.C. § 7123(c).
[12] Amicus curiae National Federation of Federal Employees ("NFFE") raises
two points in its brief, neither of which has any merit. First, NFFE points to
the fact that GAO has interpreted provisions similar to section 8015 and found
that they do not prohibit the direct communication between agency officials and
Congress. Brief of Amicus Curiae ("NFFE Br.") at 14-15. As the Authority
pointed out (JA 14), GAO's prior interpretations were all rendered in connection
with questions regarding activities by agency -- not union -- officials. GAO's
interpretations were necessary to ensure that the three branches of the
government could communicate with each other and, thus, do not apply to the case
at issue. Petitioner does not challenge the Authority's finding in this regard
in its brief on appeal.
Second, NFFE cites some legislative history regarding a proposed amendment
to the DOD Appropriations Act that would limit the political activity of
defense contractors. NFFE Br. at 16-17. As this history does not relate to
section 8015 it is irrelevant.
[13] In any event, as the Authority stated (JA 12 n.12), the dispositive issue
is not whether employees are "on duty" during the lobbying activities for which
the union seeks the official time. An agency, like DOD here, that is
specifically prohibited from using appropriated funds "in any way" to support
lobbying activities, simply may not -- legally -- agree to use its funds for
that express purpose, regardless of when that lobbying would take place.
The union's claim in this regard, that employees on official time and those on
annual leave are similar because both are on what the union calls "non-duty
time," (Br. at 1, 9), proposes a similarity without significance. As the
Supreme Court recognized in BATF, a case on which the Union relies (Br. at 9),
federal statutes that apply to employees in a duty status may be construed to
apply to employees on official time. BATF, 464 U.S. at 106 n.16. The union
cannot make the same claim regarding employees on annual leave.
[14] The union's suggestion (Br. at 7) that the Statute grants federal
employees the absolute right to use official time for lobbying is also
inaccurate. As the Authority explained, section 7131(d) of the Statute
authorizes agencies to agree to union proposals for official time for a variety
of purposes, in an amount that the agency agrees is "reasonable, necessary, and
in the public interest," as long as the union proposal is consistent with law,
rule, and regulation. E.g. Granite State, JA 9.
[15] The Authority's suggestion noted in an earlier decision (Corps of
Engineers, 52 FLRA 920, 933-34 n.15) that section 7131(d) is more specific than
the general prohibition against lobbying in section 1913 is irrelevant to the
relationship between section 7131(d) and section 8015. First, the union in this
case is unable to establish that the language of section 7131(d) is more
specific than the explicit and targeted prohibition of section 8015. Second,
section 1913 is not targeted to one agency as section 8015 is. Section 1913 is
a criminal statute that applies government-wide. In contrast, section 8015 is a
civil act that only applies to the Department of Defense and prohibits --
specifically -- that agency's use of appropriated funds to support actions to
influence Congress on pending legislation.
