Notice of Opportunity To Comment on a Request for a General Statement of Policy or Guidance on Official Time for Certain Lobbying Activities
| Published date | 25 March 2020 |
| Citation | 85 FR 16915 |
| Record Number | 2020-05992 |
| Section | Proposed rules |
| Court | Federal Labor Relations Authority |
Federal Register, Volume 85 Issue 58 (Wednesday, March 25, 2020)
[Federal Register Volume 85, Number 58 (Wednesday, March 25, 2020)]
[Proposed Rules]
[Pages 16915-16916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05992]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 85, No. 58 / Wednesday, March 25, 2020 /
Proposed Rules
[[Page 16915]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2427
[FLRA Docket No. 0-PS-39]
Notice of Opportunity To Comment on a Request for a General
Statement of Policy or Guidance on Official Time for Certain Lobbying
Activities
AGENCY: Federal Labor Relations Authority.
ACTION: Proposed issuance of a general statement of policy or guidance.
-----------------------------------------------------------------------
SUMMARY: The Federal Labor Relations Authority (Authority) solicits
written comments on a request from the National Right to Work Legal
Defense Foundation (the Foundation) for a general statement of policy
or guidance. The Foundation asks the Authority to issue a general
statement of policy or guidance concerning whether Section 7131 of the
Federal Service Labor-Management Relations Statute (the Statute)
permits parties to bargain over, or union representatives to use,
official time for lobbying activities that are subject to Federal law.
Comments are solicited on whether the Authority should issue a general
statement of policy or guidance, and, if so, what the Authority's
policy or guidance should be.
DATES: To be considered, comments must be received on or before April
24, 2020.
ADDRESSES: You may send comments, which must include the caption
``National Right to Work Legal Defense Foundation (Petitioner), Case
No. 0-PS-39,'' by one of the following methods:
Email: [email protected]. 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.
Instructions: Do not mail or express mail written comments if they
have been submitted via email. Interested persons who mail or express
mail written comments must submit an original and 4 copies of each
written comment, with any enclosures, on 8\1/2\ x 11 inch paper. Do not
deliver your comments by hand, Federal Express, or courier.
FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and
Publication, Federal Labor Relations Authority, (202) 218-7740.
SUPPLEMENTARY INFORMATION: In Case No. 0-PS-39, the Foundation requests
that the Authority issue a general statement of policy or guidance
concerning the use of official time under Section 7131 of the Statute
for lobbying activities subject to 18 U.S.C. 1913. Interested persons
are invited to express their views in writing as to whether the
Authority should issue a general statement and, if it does, what the
Authority's policy or guidance should be.
Proposed Guidance
To Heads of Agencies, Presidents of Labor Organizations, and Other
Interested Persons:
The Foundation has requested, under Section 2427.2(a) of the
Authority's rules and regulations (5 CFR 2427.2(a)), that the Authority
issue a general statement of policy or guidance on whether Section 7131
of the Statute permits parties to bargain over, or union
representatives to use, official time for lobbying activities that are
subject to 18 U.S.C. 1913. Under Section 7131(d) of the Statute,
parties may negotiate any amount of official time that they agree ``to
be reasonable, necessary, and in the public interest.'' Section 1913
states, as relevant here, that
[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.
18 U.S.C. 1913.
In U.S. Department of the Army, Corps of Engineers, Memphis
District, Memphis, Tennessee, 52 FLRA 920 (1997), the Authority
considered whether 18 U.S.C. 1913 limits Section 7131(d) of the
Statute. The Authority found that even if certain union lobbying
activities ``are within the definition of the items that Congress
prohibited in 18 U.S.C. 1913,'' Section 7102(1) of the Statute grants
``employees, acting in their representational capacity, . . . the right
to present the views of their labor organization to Congress.'' 52 FLRA
at 931-32. And because Section 7131(d) provides that employees shall be
granted official time in connection with any matter covered by the
Statute--such as the matters in Section 7102(1)--the Authority
concluded that Congress ``expressly authorized the use of appropriated
funds for lobbying activities.'' 52 FLRA at 933.
In its request, the Foundation asks the Authority to issue a
general statement of policy or guidance holding that Congress did not
expressly authorize the use of appropriated funds for union lobbying
activities through the Statute, and, therefore, the Statute does not
permit parties to bargain over, or union representatives to use,
official time for lobbying activities that are subject to 18 U.S.C.
1913.
Regarding the matters raised by the Foundation, the Authority
invites written comments on whether issuance of a general statement of
policy or guidance is warranted, under the standards set forth in
Section 2427.5 of the Authority's rules and regulations (5 CFR 2427.5),
and, if so, what the Authority's policy or guidance should be.
Dated: March 17, 2020.
Rebecca J. Osborne,
Federal Register Liaison and Deputy Solicitor.
Member Abbott, Dissenting--PS-39 FR Notice
The Federal Service Labor-Management Relations Statute (Statute)
calls upon the Authority to ``provide leadership in establishing
policies and guidance [in] matters under [our] Statute.'' \1\
Throughout its history, the Authority has issued general statements of
policy or guidance when requested
[[Page 16916]]
and when appropriate under this Statutory mandate.
---------------------------------------------------------------------------
\1\ Section 7105(a)(1).
---------------------------------------------------------------------------
Some circumstances warrant taking the time to reach out to the
labor-management relations community for comment before issuing such a
policy or guidance. But that is not always the case. Here, for example,
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 \2\ and the Statute.\3\
---------------------------------------------------------------------------
\2\ Exec. Order No. 13,837, Ensuring Transparency,
Accountability, and Efficiency in Taxpayer-Funded Union Time Use, 83
FR 25,335, 25,337 (May 28, 2018) (E.O. 13,837).
\3\ Section 7131.
---------------------------------------------------------------------------
Under these circumstances, seeking and waiting for comment serves
no useful purpose.
The Authority and the U.S. Court of Appeals for the District of
Columbia, have held that ``official time may only be granted to the
extent that it is consistent with all `applicable laws and
regulations.' '' \4\ The Authority has also held that regulations
issued pursuant to statutory authority are to be accorded the force and
effect of law.\5\ Because E.O. 13,837 was issued pursuant to the
President's statutory authority to regulate the executive branch,\6\ it
is accorded the force and effect of law and affects the negotiability
of proposals covered by the Statute.
---------------------------------------------------------------------------
\4\ Assoc. of Civilian Technicians, Tony Kempenich Mem'l Chapter
21 v. FLRA, 269 F.3d 1119, 1122 (DC Cir.) (2001) (quoting NFFE Local
2015, 41 FLRA 1158, 1185 (1991)).
\5\ NFFE, Local 15, 30 FLRA 1046, 1070 (1988).
\6\ E.O. 13,837, 83 FR at 25,335 (citing to 5 U.S.C. 7301). 5
U.S.C. 7301 provides that ``[t]he President may prescribe
regulations for the conduct of employees in the executive branch.''
---------------------------------------------------------------------------
As relevant here, E.O. 13,837 states that ``[e]mployees may not
engage in lobbying activities during paid time, except in their
official capacities as an employee,'' \7\ and it directs agencies to
deny official time for ``lobbying activities in violation of section
1913 of title 18, United States Code.'' \8\ This language closely
parallels the plain language of 18 U.S.C. 1913 which prohibits the use
of appropriated funds to pay any federal employee for lobbying
activities. Specifically, section 1913 states that appropriated funds
may not be used ``directly or indirectly to pay for any [activities] .
. . intended or designed to influence in any manner a Member of
Congress . . . 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.'' Therefore, in reading E.O.
13,837 and section 1913 together, it is 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.''
---------------------------------------------------------------------------
\7\ E.O. 13,837, 83 FR at 25,337.
\8\ Id. at 25,338.
---------------------------------------------------------------------------
At first glance, it would appear that Executive Order 13,837 rests
on an interpretation of 18 U.S.C. 1913 and that section 1913 provides
an exception for appropriated money to be used for lobbying if there is
an ``express authorization by Congress.'' \9\ On this point, the U.S.
Department of Justice, Office of Legal Counsel (OLC), has issued two
opinions.\10\ Those opinions provide valuable perspective on the
interplay between 18 U.S.C. 1913 and section 7102 but are flawed
insofar as they interpret our Statute. According to OLC, Congress
provided express authorization in section 7102 for direct (but not
``grass roots'' \11\) lobbying--``present[ing] the views of the labor
organization to heads of agencies and other officials of the executive
branch of the Government, the Congress, or other appropriate
authorities.'' \12\ However, those conclusions were premised on
interpretations of sections 7102 and 7131 (not 18 U.S.C. 1913) and
Authority precedent that I would jettison \13\ and are thus entitled to
little deference in light of E.O. 13,837.
---------------------------------------------------------------------------
\9\ 18 U.S.C. 1913; see also 2005 Memo, 29 Op. O.L.C. at 181
(stating that 18 U.S.C. 1913 only applies ``in the absence of
express authorization by Congress'').
\10\ See Application of 18 U.S.C. 1913 to ``Grass Roots''
Lobbying, 29 Op. O.L.C. 179 (2005) (2005 Memo); Constraints Imposed
by 18 U.S.C. 1913 on Lobbying Efforts, 13 Op. O.L.C. 300 (1989).
\11\ 2005 Memo, 29 Op. O.L.C. at 181.
\12\ 2005 Memo at 184-85 (quoting section 7102).
\13\ See fn. 8.
---------------------------------------------------------------------------
Under these circumstances, I disagree that any valuable purpose is
served or insights are to be gained by seeking written comments on this
question.
I would issue a general statement of policy that the plain language
of E.O. 13,837 and 18 U.S.C. 1913 limits the scope of section 7131(d)
of the Statute, such that, a proposal that would grant the use of
official time for lobbying activities is nonnegotiable because it is
contrary to law. To the extent the cases cited above support the notion
that proposals permitting the use of official time for lobbying
activities are negotiable, I would conclude that they are not
consistent with the E.O. and are therefore no longer good law.
[FR Doc. 2020-05992 Filed 3-24-20; 8:45 am]
BILLING CODE 6727-01-P
