May 100% Official Time for Union Officials be a Per Se Statutory Violation?

By on March 26, 2015 in Court Cases, Current Events with 96 Comments

Federal sector union negotiators often put on the bargaining table proposals that would require the release of union representatives on a full time basis at Agency expense claiming that these individuals are engaged in representational functions.

The DC Circuit first addressed this issue in a 1986 case involving American Federation of Government Employees (AFGE) and the Air Force.  That case addressed whether the number of union representatives able to use 100% official time was mandatorily negotiable or bargainable only at the Agency’s option.  The Court found that since Congress had written the language of the law to say the following it must have understood that Agencies could agree to time and therefore couldn’t claim it wasn’t negotiable.

“5 U.S. Code 7131 (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. (My Emphasis)”

The “rub” comes because earlier in Section (b) of the same provision addressing official time (5 USC 7131), the law reads, “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 non-duty status.”

A Clear Distinction & Unanswered Questions

So, it would seem pretty clear that unions can bargain for official time to represent employees but not for time to engage in internal union business as that use of the time is clearly prohibited by the same provision of the law.  The Circuit’s decision is understandable and logical in light of the statute involved but left questions that haven’t been addressed in the more than 35 years since the law’s passage.  Those questions include:

  • What constitutes “representing an exclusive representative”?
  • What doesn’t, if anything?
  • What does “internal union business” mean?

Internal Union Business

Let’s look at the idea of “internal union business” first.  The law provides an insight to the definition in saying that “the solicitation of membership, elections of labor organization officials, and collection of dues” were included in that definition.  No case I’ve read has ever looked into the scope of internal business except by saying something wasn’t.  We’ve had surprises over the years. Such matters as the lobbying, filing union reports with Department of Labor and union training classes being excluded by the Federal Labor Relations Authority (FLRA) from the definition.  Over the years, the result has been that the listed items became the definition not merely exemplary of what constituted “internal union business”.

For those union reps who have gotten this far without hitting the comment button, I’m not disputing the use of official time for representational activities is negotiable merely trying to get a handle on what’s not covered for those on 100% official time.

So I looked around on the web and discovered that national unions provide guidance for local officers on what is expected of them in that role.  AFGE, for example, publishes “AFGE Local Officers – Resource Guide” which consists of 145 pages of guidance on how to run a local union.  The table of contents lists 19 chapters, most of which have nothing to do with representation, so one may only assume that the national expects local officers on 100% official time to get these things done at home on nights and weekends.   I think it would also be fair to assume that most of the matters listed in this guidance would constitute, by definition, internal union business.

By the way, Chapter One is titled “Primary Goal of Local Officers: Building a Strong Local Union” with subheadings: “Involving and Educating the Membership”, Identifying and Encouraging New Leaders, and the Three Key Functions of AFGE: Organizing, Representation, and Legislative and Political Action.”  Does this indicate that two of the three key functions excluding representation constitute internal union business and may not be purposed as Official Time?  One would think so, wouldn’t one?  Also wouldn’t one think that since two thirds of the key duties of union officials are internal union business by at least AFGE’s reckoning, federal unions might want to monitor such matters to avoid violating the law?

Given the above, would it be prudent for Agency negotiators dealing with AFGE or other Federal unions to whip out their copy of each union’s local officer guide, if they can find one, and ask when all of this is getting done, if not on the clock.  It appears to me that union officers such as presidents, vice presidents, secretaries and treasurers, at least, would be hard pressed to meet at least AFGE’s requirements without encroaching on their 100% official time if they want to get any sleep at all.  So how do they handle it?  Are those responsible for signing off on timesheets being asked for annual leave or leave without pay on a regular basis so the officials can carry out these weighty responsibilities?  Do collective bargaining agreements address how these responsibilities will be handled by those on 100% official time?  Seems only fair, not to say, legal, wouldn’t you think?

Representing an Exclusive Representative

FLRA has been loath since its inception to place limits on what constitutes “representation.”  We know that the term does not include such activities as these below but little else except the examples given in 5 USC 7131 (d).

  • Representing an employee in another bargaining unit from that rep.
  • Representing a former employee.
  • Attending meetings as an officer of a neutral labor relations organization.

What else might be excluded can be a risky business for an Agency to inquire since a veritably huge body of Federal labor relations case law is about union institutional issues as opposed to seeking to enhance employee working conditions.  Any Agency inquiry would likely result in an unfair labor practice claiming interference with the union’s right to represent many would agree.

Most federal sector union locals operate on a no cost to them basis.  The Agency pays for union official’s time, office space, meeting space, phones, computers, software, email, office furniture, copy service, paper, mail, travel, training, attending conferences, and on and on.  Is it time Federal Agencies took a careful look at what those on 100% official time are doing with that time?  I think an IG would investigate an employee’s use of time for work on an outside enterprise, wouldn’t you?  Where does running a local union versus representing employees fit in if the use of time is either clearly out or ambiguous?

In the title I asked whether 100% Official Time for Union Officials be a Per Se Statutory Violation.  Based on the above, what do you think for at least part of the time?

The above raises other unasked questions as to how a union official’s engagement as a 100% official time user squares with each of the subparts in 5 C.F.R. Part 2635.  Let’s save that one for another article.

As in every article I write, the above reflects opinions (if extant as opposed to truths) that are my sole responsibility.  By the way, I’ve been doing a bunch of bargaining and bargaining assistance lately.  If you need help to prepare for negotiations, train a team or meet your always crazy workload, drop me an email and let’s get you some of that help.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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