Number 136                    July 2000

COURT DECISIONS  |   FLRA   |   MSPB

Association of Civilian Technicians, Razorback Chapter 117 and Arkansas National Guard, 0-NG-2498, June 6, 2000, 56 FLRA No. 62.

FLRA, noting that section 8012 of the 1999 DOD Appropriations Act prohibits use of appropriated funds to influence congressional actions on "legislation or appropriation matters pending before Congress" (emphasis added), and noting that the disapproved provision deals with official time to lobby Congress on "desired" (but not "pending") legislation, holds that the provision doesn't violate any law and orders the agency to rescind its disapproval of the provision.

The disapproved provision listed, as one of several appropriate uses of official time, the following:

Union officials when representing Technicians by visiting, phoning and writing to elected representatives in support of desired legislation which would impact the working conditions of employees by ACT.

When the agency, citing several National Guard cases, disapproved this provision on the ground that it was inconsistent with the 1999 DOD Appropriations Act, the union filed a negotiability appeal, arguing, among other things, that the case law didn't apply because the provision did not authorize official time to lobby Congress on pending legislation, but rather official time to lobby Congress on desired legislation—i.e., legislation that the union officials wish to see enacted, but that has not yet been introduced by the House of Representatives or Senate at the time of the officials' lobbying activities.

The Authority concluded that the plain wording of section 8012 of the DOD Appropriations Act isn't inconsistent with the use of appropriated funds to influence desired legislation. Citing earlier decisions, it also rejected the agency's contention that the disapproved provision was contrary to either section 8801 or the 1999 DOD Appropriations Act or 18 U.S.C. 1913. "The Authority has consistently held that both section 8001 and 18 U.S.C. 1913 contain express exceptions that permit the use of appropriated funds for representational lobbying concerning legislation or appropriations." (See Corps of Engineers, 52 FLRA No. 93, reported in Significant Cases No. 117, p. 11, where FLRA stated that 7102(1) and 7131(d) constitute congressional authorization for agencies to grant official time for employee union representatives to lobby Congress on representational issues.)

In a separate concurring opinion, Member Cabaniss said that the plain language of the DOD appropriations bill precluded FLRA from finding the disapproved provision inconsistent with it. But she added:

It is unlikely that Congress would place a ban on lobbying for legislation at a point so midway in the legislative process that much of the lobbying activity regarding a piece of legislation has already taken place. If the intent was to indeed ban the use of appropriated funds for all lobbying activities, both before and after a piece of legislation has been introduced, it needs to be more clearly and conclusively set out by Congress if the desire is to avoid the legislative interpretation I feel constrained to agree with today.

In Minnesota National Guard, 56 FLRA No. 82, decided approximately two months later, the Authority dealt with a disapproved provision that provided for official time for lobbying for "pending or desired legislation." It held that the portion dealing with "pending" legislation is contrary to law. Relying on 56 FLRA No. 62, it held that the portion dealing with "desired" legislation is not contrary to law and directed the agency to rescind its disapproval of that portion of the provision. (In that case FLRA also found that a disapproved provision allowing technicians to wear civilian attire while processing grievances isn't contrary to law. Similarly, that portion of a disapproved provision requiring the agency to use civilian terms of address in written communications with technicians involved in a dispute concerning their conditions of employment is negotiable.)