Giving Federal Employee Unions Official Time to Lobby Congress

Unions have a “duty of fair representation” to those who do not pay dues. The taxpayer should not foot the bill for union representation. Perhaps Congress should require federal employees who are part of the bargaining unit to pay union dues.

Much has been written about the amount of official time that the unions consume each year.  Since federal unions cannot negotiate salary or benefits for federal employees, official time is their sacred cow.  According to the last official time report by the Office of Personnel Management for 2011, unions that year consumed 3,395,187 hours, at a reported cost of $155,573,739.

There are 2087 total hours in a staff year, of which approximately 1,600 hours is considered the amount of direct time that a person can devote to their work and the mission of their agency.  The rest is indirect time associated with all forms of leave, attending meetings, training, etc.  Using the direct time as your denominator, the total amount of official time used in 2011 equates to roughly 2,122 staff years of direct effort.  This figure is just slightly less than the total number of employees allocated to OSHA by the Department of Labor, and approximately 40 percent of DCAA’s total workforce.

In DCAA’s 2012 Report to Congress it stated that: “We examined over $150 billion in defense contractor costs and issued over 6,700 audit reports. These reports recommended $12.4 billion in cost reductions. Overall, our efforts assisted contracting officials achieve $4.2 billion in documented savings to the Government. Based on these savings, the return on taxpayers’ investment in DCAA was approximately $6.70 for each dollar invested.” The total hours OPM’s report of the official time used in 2011 is not insignificant.  What more could DCAA, OSHA, NIH, the CDC or some other agency achieve with an additional 2,122 staff years of direct effort.

Bob Gilson’s article on February 20, 2013, Interesting Twists in OPM’s Official Time Report opined that the above total hours of official time is understated.  This author agrees with him for three reasons.

When it comes to official time, management adopts a very laissez faire approach to enforcing contract provisions on its use because, like electricity, human behavior will always take the path of least resistance.  Trying to enforce contract provisions on official time will always invoke a struggle with the union, and management would rather have labor peace by surrender.

Secondly, labor relations specialists in human resources offices, who are very experienced, are retiring at a rate faster than their replacements can acquire the training and strategic/tactical experience to be proficient. I was recently conducting a two-day labor relations seminar for a couple of federal installations whose local LRO’s advice in both organizations on a major area was completely wrong.  Following this advice would have put senior management in a disadvantageous position.  One person in the class using her smart phone went out to the union’s website and found that its guidance on the topic was exactly the same as what I had just presented.

And third, unions are also very conscious that the increasing amount of official time is garnering the interests of Congress.  Thus, the amount of time being reported is conservative and does not include all of the hours these officials use.

I have no doubt that many readers of this will view this as union-bashing. It is not union-bashing to care about how public money is being spent.  I do not have an issue with unions ensuring fair treatment in the workplace.  But the taxpayers have every right to expect public services to be well run and cost effective.

Taxpayers get upset when they read how their monies are being spent foolishly and extravagantly on conferences and other junkets that have lately embarrassed agencies.  One AFGE official was very upset recently with his labor relations officer who opposed his flying to Washington, DC for a meet and greet with a new Assistant Secretary, when video teleconferencing could achieve the same result at far less expense.  It is also within this same agency where travel has been extremely curtailed, that the union wanted to hold its annual meeting, at agency expense, at a resort location.

Unions have a lawful place in this country’s economic society, but if Congress is concerned with the amount of official time that unions are consuming each year, as they look to streamline the cost of government, then it is overdue for them to act.  Perhaps they should put federal unions on the same footing as their private sector counterparts by requiring federal employees who are part of the bargaining unit to pay dues.

Presently, this is not a mandate, and unions still have a “duty of fair representation” to those who do not pay dues. In exchange, the American taxpayer should not have to foot the bill for union representation at the opportunity cost of lost time and productivity associated with the amount of union time it subsidizes every year.

The cost of union representation should be borne by the unions and paid for through the dues they collect.  When New Jersey’s Governor Christie took office he proposed that New Jersey follow California, whereas under the New Jersey Employer-Employee Relations Act, nonmembers of public-sector unions could be required to pay as much as 85 percent of the regular membership dues, fees and assessments if an employee wished to opt out of the union.

There is an argument that forcing a public employee to join or support a labor union as a condition of employment violates the rights guaranteed to that employee by the Constitution of the United States.  Yet, the Supreme Court has created confusion where it has held that there are “legitimate state interests” to justify the violation of an individual’s Constitutional rights to preserve the broader interests of society.

While we all enjoy a Constitutional right of free speech, this right does not permit us to phone in a bomb scare because we are not prepared to take a final exam.  In the case of compulsory union dues, the Court ruled that the state’s interest in “labor peace” and avoiding “free riders” was sufficient to justify the violation of the individual public employees Constitutional right to freedom of association guaranteed by the 1st Amendment.

This leads me to the point of federal unions lobbying Congress while on official time and per diem paid for by the American taxpayer.

As I have travelled among federal agencies since I have retired and taught courses on federal labor relations, I have noticed on union bulletin boards newsletters of federal union officials attending Congressional meetings and breakfasts while on official time and in some cases per diem.  In 1919 Congress passed the Anti-Lobbying Act with a key provision of the Act (18 USC 1913) that reads:

“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, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counterintelligence, intelligence, or national security activities. Violations of this section shall constitute violations of section 1352(a) of title 31.”

In 1989 and 1995 the Department of Justice issued guidelines calling for a narrow application of this law.  Its guidelines mirrored the legislative intent of the legislation in 1919 Act. While it expressly permitted government agencies to make direct communication to other federal officials, including Congress, in support of Administration or agency positions, its interpretation of the statute, it prohibited federal employees from participating in “substantial grass roots” lobbying campaigns, consisting of private communications designed to encourage the public to contact Members of Congress and pressure them on legislative matters.

The Department of Defense has been fortunate inasmuch as the annual DoD Appropriations Act has contained language prohibiting the use of official time and appropriations for the expressed purpose of lobbying Congress.  This nevertheless did not stop unions from floating proposals to permit such activities.

The Authority has been reasonably consistent, for the most part within DoD, in its rulings that these proposals were not negotiable.   But the Authority is not always consistent.  A union proposal that would allow the use of official time for DoD union representatives to lobby Congress on desired legislation was not contrary to the appropriations statute. Arkansas National Guard, 100 FLRR 1-1104 , 56 FLRA 427 (FLRA 2000) – Really!

Since there is a specific anti-lobbying act, and language in the DoD appropriations acts that official time and travel for the purpose of lobbying Congress is prohibited, one might reasonably conclude that similar proposals within civilian agencies would also be precluded – not so.  In Broida’s Guide to FLRA Law and Practice: “As a general proposition, and with particular statutory exceptions, discussed below, unions may negotiate for official time to lobby Congress on employment-related matters, as AFGE Local 12 and Dept. of Labor, 61 FLRA 209 , 216 (2005), explained concerning Proposal 6, “lobbying Congress. Union representatives shall be granted official time to lobby Congress concerning pending or desired legislation affecting conditions of employment of bargaining unit employees.”

It goes on that:  “The Authority has consistently held that 18 U.S.C. 1913  does not preclude bargaining over proposals requiring agencies to grant union representatives official time to lobby Congress concerning desired or pending legislation relating to unit members’ conditions of employment. Additionally, in National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 45 FLRA 289 (1992) (EPA), we held that official time for representational activities involving the exercise of employee rights under section 7102 of the Statute was negotiable under section 7131(d) of the Statute.  In that case, we found that employees, acting as union representatives, who publicize matters affecting unit employees’ conditions of employment, are engaged in representational activity that is protected under section 7102 of the Statute.”

Just when you think you have an understanding – SURPRISE.  This will continue to be a terribly confusing and inconsistent area of labor relations.  It escapes me how the Authority can contravene through its decisions the intent of Congress as expressed in 18 USC 1913 and the DoD Appropriations Act, but it does.

Appropriations Acts are only valid for the Fiscal Year for which it is passed.  Thus, it important that each year’s Act is reviewed for any changes that may affect a bargaining agreement. My advice to agencies is when faced with proposals to grant official time for the purpose of lobbying, find out what is in your agency’s specific appropriations act. Even if your agency’s appropriations act is silent, negotiate that such provisions are in opposition to the Anti Lobbying Act, and if necessary, push these proposals to impasse or before the Authority if you declare them to be non-negotiable.  If the Authority rules against you, take the case to court.

What is clear is that unions will continue to push the edges of the envelop at every opportunity to seek greater advantage on the use of official time to the detriment of productivity and agency efficiency.  If Congress and agency management are upset with the never ending increase in the use official time, they can find a good part of the problem if they stop to look in the mirror.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.