United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2001 Decided November 9, 2001
No. 01-1044
Association of Civilian Technicians,
Tony Kempenich Memorial Chapter 21,
Petitioner
v.
Federal Labor Relations Authority,
Respondent
On Petition for Review of an Order of the
Federal Labor Relations Authority
Daniel M. Schember argued the cause and filed the briefs
for petitioner.
William E. Persina, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief was David M. Smith, Solicitor. William R. Tobey,
Deputy Solicitor, entered an appearance.
Before: Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: The Association of Civilian Tech-
nicians, Tony Kempenich Memorial Chapter 21 ("the Union")
petitions this Court for review of the Federal Labor Relations
Authority's ("FLRA" or "Authority") decision in which the
FLRA determined that a collective bargaining agreement
provision requiring the Department of Defense ("DOD") to
permit employees to use "official time" to lobby Congress on
pending legislation is contrary to law. In reaching this
determination, the Authority concluded that the disputed
provision would require the agency to use appropriated funds
in a manner prohibited by section 8012 of the Department of
Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat.
2279, 2299 (1998) ("Appropriations Act"). Because we agree
with the Authority, we deny the petition for review.
I. Background
The Association of Civilian Technicians, a federal employee
labor organization, filed a negotiability appeal with the FLRA
pursuant to 5 U.S.C. s 7105(a)(2)(E), concerning provisions of
a collective bargaining agreement that had been disapproved
by the head of the agency (the Department of Defense) as
contrary to law under 5 U.S.C. s 7114(c). The disputed
provision would grant official time to "Union officials when
representing Federal Employees by visiting, phoning and
writing to elected representatives in support [of] or opposition
to pending or desired legislation which would impact the
working conditions of employees represented by the labor
organization." Association of Civilian Technicians, Tony
Kempenich Memorial Ch. 21, 56 F.L.R.A. 526 (2000).
The Union argues that sections 7131 and 7102 of the
Federal Service Labor-Management Relations Act (the col-
lective bargaining laws) mandate inclusion of this provision.
5 U.S.C. ss 7102, 7131. Section 7131 governs the grant of
"official time," which allows employees performing union rep-
resentation functions to be paid as if they were at work,
without being charged for annual leave. Under that section,
union officials may be granted "official time" for a variety of
reasons, including those "in connection with any other matter
covered by [the collective bargaining laws]," so long as such
time is "reasonable, necessary, and in the public interest."
Id. at s 7131(d). Section 7102(1) provides that employees,
acting in their union representational capacity, have the right
to present the views of their labor organization to Congress.
The FLRA has read these sections together to mean that
union representatives may receive official time for lobbying
Congress in matters concerning their working conditions.
See, e.g., National Fed'n of Fed. Employees Local 259, 52
F.L.R.A. 920, 932-33 (1997).
In this case, however, the agency contends, and the Author-
ity agrees, that section 8012 of the Appropriations Act prohib-
its this application of the collective bargaining laws, at least
with respect to DOD employees. As the Authority held in
New Hampshire Nat'l Guard, 54 F.L.R.A. 301, 310 (1998),
aff'd sub nom. Granite State Chapter, Ass'n of Civilian
Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999), the autho-
rization in s 7131(d) to negotiate for official time, as with
bargaining on any other matter under the statute, is contin-
gent on the bargaining proposal being consistent with applica-
ble laws, rules, and regulations. See National Fed'n of Fed.
Employees Local 2015, 41 F.L.R.A. 1158, 1185 (1991) ("Addi-
tionally, official time may be granted for a variety of matters
and parties may negotiate under section 7131(d) for official
time, as long as it is otherwise consistent with the Statute and
other applicable laws and regulations"); American Fed'n of
Gov't Employees, Nat'l Council of Field Labor Locals, 39
F.L.R.A. 546, 553 (1991) (same). Section 8012 of the Appro-
priations 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 appropria-
tion matters pending before the Congress." Thus, the Au-
thority concluded that the Appropriations Act precluded, as a
matter of law, the granting of official time for lobbying
Congress on pending matters, though not non-pending, de-
sired, legislation. See 56 F.L.R.A. at 529. In reaching this
decision, the FLRA relied on decisions of the First and Ninth
Circuits in Granite State Chapter, Association of Civilian
Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999) ("Granite
State"), and Association of Civilian Technicians, Silver Bar-
ons Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000) ("Silver
Barons"), which addressed virtually identical collective bar-
gaining provisions and identical DOD appropriations act lan-
guage from previous years. The Authority rejected the
union's argument that similar collective bargaining agreement
provisions were held to be consistent with other anti-lobbying
laws, including 18 U.S.C. s 1913, and section 8001 of the
Appropriations Act. The FLRA observed that "[m]ost of the
Union's arguments presented in this case have been consid-
ered and rejected in prior decisions." Specifically, the Au-
thority cited its prior decision in New Hampshire Nat'l
Guard, 54 F.L.R.A. at 310-11, in which the FLRA noted that
section 8012 and its predecessors did not contain the same
exceptions to the lobbying ban as do 18 U.S.C. s 1913 and
Appropriations Act s 8001. Rather, section 8012 and its
predecessors contain an absolute ban on using appropriated
funds for lobbying.
Further, the FLRA held that section 8012 was more specif-
ic in scope than 5 U.S.C. s 7131(d), and thus rejected the
argument that the right to official time prevails as more
specific than the prohibition against using "funds made avail-
able" for lobbying. It rejected the union's argument that
official time was indistinguishable from paid leave under
section 8012, and that the agency's interpretation would nec-
essarily prohibit lobbying while on paid leave, potentially in
violation of the First Amendment. Instead, the FLRA con-
cluded, as it had previously held in Association of Civilian
Technicians, Old Hickory Chapter and U.S. Dep't of Defense,
North Carolina Nat'l Guard Bureau, 55 F.L.R.A. 811 (1999)
("North Carolina Guard"), that official time and annual leave
were distinguishable. Finally, the FLRA also rejected the
union's argument that its previous interpretation of the fore-
runner provisions to 8012 was " 'implausible' " given Con-
gress's rejection of legislation that would have banned lobby-
ing on official time for all federal employees. 56 F.L.R.A. at
529. Rather, the FLRA observed that Congress had carved
out special treatment for DOD employees through the DOD
Appropriations Act. Id.
On motion for reconsideration, the FLRA affirmed its
decision that disapproval of the provision of the collective
bargaining agreement applying to pending legislation was
proper. 56 F.L.R.A. 947 (2000). The Union sought review in
this Court.
II. Analysis
"In reviewing the FLRA's interpretation of its own en-
abling statute, we are mindful that we owe great deference to
the expertise of the Authority as it 'exercises its "special
function of applying the general provisions of the Act to the
complexities" of federal labor relations.' " NLRB Union,
Local 6 v. FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988) (quoting
Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S.
89, 97 (1983)). Were we reviewing the Authority's interpreta-
tion of the Federal Service Labor Management Relations Act,
we would review that interpretation deferentially under the
standard set forth in Chevron U.S.A. Inc. v. Natural Res.
Def. Council, 467 U.S. 837 (1984). Here, however, we are
also faced with the FLRA's interpretation of the Department
of Defense Appropriations Act, a statute not committed to the
Authority's administration. In general, this Court does not
defer to the FLRA's interpretation of a statute not committed
to the Authority's administration, but reviews such purely
legal questions de novo. See Social Sec. Admin. v. FLRA,
201 F.3d 465, 471 (D.C. Cir. 2000). We have reviewed the
Authority's interpretation of the Appropriations Act under
this de novo standard.
Congress expressed a clear intent to prohibit the use "in
any way" of "funds made available by the [DOD Appropria-
tions] Act" to "influence congressional action on any legisla-
tion or appropriation matters pending before the Congress."
Appropriations Act s 8012 (emphasis added). Twice before,
our sister circuits have addressed this very issue, involving
the same labor union, similar, if not identical bargaining
provision language, and identical predecessor DOD appropri-
ations acts. Granite State, 173 F.3d at 27-28; Silver Barons,
200 F.3d at 592-93. And unsurprisingly, twice before, our
sister circuits have affirmed the Authority's determination
that the disputed provision was contrary to law and therefore
nonnegotiable. Perhaps the Union believed the third time
would be the charm. It is not. Nothing has changed--not
the crux of the provision in dispute, and not the appropria-
tions act language, and therefore we see no reason to depart
from our sister circuits' good company. The Appropriations
Act prohibits the disputed provision because, as the FLRA
has had several occasions to reiterate, official time may only
be granted to the extent that it is consistent with all "applica-
ble laws and regulations." E.g., NFFE Local 2015, 41
F.L.R.A. at 1185. Here the granting of official time is not
consistent with the Appropriations Act. Hardly more needs
to be said.
The Union also raises a constitutional argument which we
dispense with just as summarily. The Union contends that
the FLRA's treatment of the Appropriations Act raises "seri-
ous" First Amendment concerns because it leads to the
"unacceptable conclusion that employee activities on paid
annual leave constitute use of appropriated funds, and that
s 8012 therefore prohibits employees from visiting Members
of Congress while on annual leave." However, this "unaccep-
table conclusion" is predicated on there being no difference
between annual leave and official time. That is simply not so.
The Authority has reasonably distinguished between official
time and paid annual leave. See North Carolina Guard, 55
F.L.R.A. at 813 (setting out the "critical distinction" between
employee use of official time and annual leave). The collec-
tive bargaining laws impose restrictions on the use of official
time that are not applicable to the use of paid annual leave.
Official time is a "distinct third category of time," id., and
unlike annual leave, is considered to be "hours of work." 5
C.F.R. s 551.424(b) (2001). Annual leave is compensation for
work performed at other times. This First Amendment
argument is a red herring. Section 8012, like its predeces-
sors, "does not in any way affect what Union members can do
during their annual leave." Granite State, 173 F.3d at 28 n.3.
Finally, at oral argument, the question arose whether this
interpretation of the Appropriations Act would affect lobbying
by DOD officials (i.e., the Secretary of Defense or other
agency "management") in their official capacity on behalf of
the Department and the Executive Branch. Because this
issue is not before us, rather only a union's use of "official
time," we need not address it, though we do note that
applying section 8012 to DOD officials in their official capacity
would raise constitutional separation of powers concerns not
implicated here. That question would also require us to
inquire into longstanding practices of DOD officials in lobby-
ing Congress, to determine whether their actions have placed
a "gloss" on Congress's action in enacting section 8012. See,
e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 132-33, 137 (2000); Cannon v. University of Chicago,
441 U.S. 677, 696-99 (1979). The agency's continued lobbying
of Congress in the presence of recurring appropriations act
provisions such as section 8012 provides additional back-
ground for interpreting such sections not relevant to the case
before us.
III. Conclusion
Because we agree with the Authority that section 8012 of
the Appropriations Act renders the disputed provision con-
trary to law, we deny the petition for review.