The Federal Labor Relations Authority (FLRA or Authority) is asking for written comments on a request for a general statement of policy. The issue is whether FLRA should issue a statement of policy on whether the Federal labor relations statute permits unions to bargain for using official time for lobbying activities governed by Federal law.
The request for FLRA action on the issue was submitted by the National Right to Work Legal Defense Foundation (Foundation). Comments are due by April 24th.
Rationale for Policy Decision from FLRA
The Foundation made a case to the FLRA that bringing a case challenging the current precedent would be difficult. A union has no reason to bring a suit because the current official time precedent directly benefits unions.
An agency would be unlikely to challenge an agreement to allow official time for lobbying as it voluntarily entered into the arrangement. An employee would have significant procedural hurdles to overcome in any challenge to this policy.
In other words, a statement of policy would allow the Authority to clarify its position on this issue without waiting for an appropriate case, which may never come.
The argument was apparently persuasive as the FLRA has now requested comments from interested parties on this issue.
What is “Official Time”?
Official time is the time used by a federal employee working on behalf of a federal employee union. While on “official time”, the employee continues to receive full salary and benefits just as if the employee were performing the duties for which the employee was hired to perform.
The labor relations statute states a federal agency and a union “may negotiate any amount of official time that they agree ‘to be reasonable, necessary, and in the public interest.’”
The Foundation notes that in a report from the Office of Personnel Management (OPM) for fiscal year 2016 on usage of official time in government, there is a category for “lobbying Congress concerning pending or desired legislation” in the General Labor-Management Relations category of official time. In that fiscal year, union officials spent 2,738,363.88 hours of official time in this category according to the OPM report.
Prohibition on Lobbying Congress
Another federal law, 5 USC 1913, is relevant. This law prohibits using federal money to lobby Congress. This law reads, in part:
[n]o 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.https://www.govinfo.gov/content/pkg/USCODE-2018-title18/html/USCODE-2018-title18-partI-chap93-sec1913.htm
In 1997, the FLRA considered whether a federal employee representing a union could use official time to lobby Congress. In other words, the question in that case was whether federal money could be used to pay a federal employee’s salary and benefits when an employee lobbies Congress on behalf of a federal employee union.
On its face, such activity appears to violate the law that prohibits using federal appropriations to lobby Congress, but that has not been the view of the FLRA in the past.
1997 Conclusion of the FLRA
In U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 52 FLRA 920 (1997), the FLRA concluded “…the (Labor Relations) Statute constitutes ‘an express authorization by Congress’ for using Federal funds to grant official time to employees to lobby Congress on representational matters, in such amount as the employing Federal agency and the exclusive representative agree.”
The Foundation notes that there is no specific authorization for using official time to lobby Congress. There is no mention of lobbying in the labor relations statute but, instead, only allows using official time for activities not otherwise permitted by federal law.
The Foundation makes an argument to the FLRA that the sentence in the labor relations statute stating “employees 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” does not amount to the required “express authorization by Congress” to pay federal funds to employees to lobby the government under 18 U.S.C. § 1913.
Dissenting View Within the FLRA
FLRA Member James T. Abbott issued a dissenting opinion with regard to the FLRA move seeking public comments.
He noted that, in this instance, he believes “seeking comment from the labor-management relations community will not change the fact that Authority precedent on the use of official time for lobbying activities rests upon interpretations of the Statute which can only be described as strained and contorted and which run counter to the plain language of an Executive Order and the Statute.”
In other words, it is his opinion that the prior precedent as outlined in the 1997 FLRA decision is faulty as existing legal restrictions make it clear that “official time may not be granted for any activities ‘intended or designed to influence in any manner a Member of Congress . . . to favor, adopt, or oppose, by vote or otherwise, any legislation, law ratification, policy, or appropriation.’”
The Federal Register notice was published on March 25. As of this writing, federal employee unions have not published a position on the issue but will undoubtedly be coming out with a position very soon.
Request for Policy Statement
In the Federal Register of March 25, 2020, the Authority is inviting written comments on whether issuing a general statement of policy or guidance is warranted, and, if it is warranted, what the Authority’s policy or guidance should be.
Comments submitted to the FLRA must include the subject “National Right to Work Legal Defense Foundation (Petitioner), Case No. 0-PS-39”. Comments are to be submitted as follows:
- Email: FedRegComments@flra.gov. Include “National Right to Work Legal Defense Foundation (Petitioner), Case No. 0-PS-39” in the subject line of the message.
- Mail or express mail: Emily Sloop, Chief, Case Intake and Publication, Federal Labor Relations Authority, Docket Room, Suite 200, 1400 K Street NW, Washington, DC 20424-0001.