[ v11 p7 ]
11:0007(5)AR
The decision of the Authority follows:
11 FLRA No. 5
DEPARTMENT OF HEALTH
AND HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3231
Union
Case No. O-AR-184
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Charles L. Mullin, Jr. filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union filed an opposition.
The dispute in this matter arose when the grievant in his official
capacity as legislative chairperson of the Union placed telephone calls
in October 1979 to various members of Congress and their staffs
concerning the Agency's appropriations. When the grievant was informed
by his supervisor that he would no longer be permitted to make such
calls on official time, a grievance was filed and submitted to
arbitration protesting management's actions.
The Arbitrator stated the principal issue to be whether the grievant
as legislative chairperson was entitled under the parties' collective
bargaining agreement /1/ to be granted a reasonable amount of official
time for the performance of the duties of that position, which duties
were described by the Arbitrator as contacting on a recurring basis
various members of Congress and their staffs to discuss legislative and
political matters affecting the Agency and its employees. Rejecting the
Activity's contention that the duties of the grievant as legislative
chairperson constituted internal union business, the Arbitrator
determined that these duties were proper for performance on official
time. Accordingly, as his award the Arbitrator ruled that the grievant
must be afforded a reasonable amount of official time to perform these
official duties. The Arbitrator expressly stipulated however that the
activities to be performed on official time must concern matters
legitimately related to Agency employment and within the purview of
Congress.
In its first exception the Agency contends that the award is contrary
to 18 U.S.C. 1913, /2/ which prohibits lobbying with appropriated funds,
and derivatively is contrary to regulations referencing the prohibition
of section 1913. However, the Agency fails to establish in its
exception that the activities of the grievant for which the Arbitrator
in his award ordered the granting of a reasonable amount of official
time are activities prohibited by section 1913. The Agency has provided
no citations of authority in support of this exception. Furthermore, no
support is evident because as noted by the court in National Treasury
Employees Union v. Campbell, 654 F.2d 784, 792 (D.C. Cir. 1981),
apparently no violation of this statute has been adjudged in the more
than sixty years since its passage. Accordingly, this exception
provides no basis for finding the award deficient.
In its second exception the Agency contends that the award is
contrary to section 7131 of the Statute. /3/ Specifically, the Agency
argues that the activities for which the Arbitrator ordered the grievant
granted a reasonable amount of official time constitute internal union
business which under section 7131(b) must be performed when the grievant
is in a nonduty status. However, the Agency fails to establish in its
exception that the award ordering under the parties' agreement a grant
of a reasonable amount of official time is contrary to section 7131 of
the Statute. In this respect the meaning and purpose of section 7131(b)
were closely examined in American Federation of Government Employees,
AFL-CIO, Local 2823 and Veterans Administration Regional Office,
Cleveland, Ohio, 2 FLRA 3 (1979), and it was concluded that only
activities which relate solely to the institutional structure of the
union constituted internal union business that may not be performed on
official time. See id. at 8; accord National Treasury Employees Union
and Department of the Treasury, Internal Revenue Service, 6 FLRA No. 97
(1981). In terms of this case, the Arbitrator expressly found that the
disputed activities did not pertain to the internal business of the
Union as an organization, and the Agency has not demonstrated otherwise
by substantiating that the disputed activities like the activities cited
in the Statute (solicitation of membership, collection of dues, and
election of union officials) relate solely to the institutional
structure of the Union. Consequently, this exception provides no basis
for finding the award deficient.
Accordingly, the Agency's exceptions are denied. Issued, Washington,
D.C., January 7, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ According to the Arbitrator the parties' agreement, which was
negotiated under Executive Order No. 11491, provides for the grant of a
reasonable amount of official time to permit Union officers and stewards
to carry out their appropriate duties within the scope of the agreement
and the Order.
/2/ 18 U.S.C. 1913 pertinently provides:
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, to favor or oppose, by vote or
otherwise, any legislation or appropriation by Congress, whether
before or after the introduction of any bill or resolution
proposing such legislation or appropriation; but this shall not
prevent officers or employees of the United States or of its
departments or agencies from communicating to Members of Congress
on the request of any Member or to Congress, through the proper
official channels, requests for legislation or appropriations
which they deem necessary for the efficient conduct of the public
business.
/3/ 5 U.S.C. 7131 pertinently provides:
. . . .
(b) 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 nonduty status.
. . . .
(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.