[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]


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 Proposed Rules
                                                 Federal Register
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 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.
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  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.

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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.
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    \1\ Section 7105(a)(1).
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    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\
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    \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.
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    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.
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    \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.''
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    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.''
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    \7\ E.O. 13,837, 83 FR at 25,337.
    \8\ Id. at 25,338.
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    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.
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    \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.
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    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