Union Appeals Ruling Limiting ‘Grass Roots’ Lobbying of Congress

The National Treasury Employees Union is challenging a labor panel’s decision that federal employees who are also union officials can’t use “official time"—paid time for union representational work—for indirect, or “grass roots,” lobbying of Congress.

The Federal Labor Relations Authority on Aug. 19 issued a 2-1 ruling that said while official time can be used for direct lobbying of Congress, it can’t be used by union members to encourage the public to put pressure on lawmakers to influence bills, laws, policies, or appropriations. The NTEU submitted a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit on Thursday.

Unions representing about half the nation’s 2.1 million federal civilian workers generally don’t bargain directly over pay and benefits but instead rely on Congress to pass legislation with annual pay increases and benefits improvements. Restricting the ability of union officials who also are federal employees to encourage others to lobby Congress could make it more difficult for the unions to gain raises and improved benefits for members.

If allowed to stand, the FLRA decision would prevent these union officials from being able to “educate their coworkers and encourage them to directly express their views to members of Congress and their staffs,” NTEU President Tony Reardon said in a statement. The FLRA majority’s “vague new distinction between direct and indirect lobbying” will lead to more labor disputes, not fewer, he said.

Guidance Request

The authority said in March that it had been asked by the National Right to Work Legal Defense Foundation to issue guidance on whether the Federal Service Labor-Management Relations Statute allows agencies and unions to bargain over or to use official time for both direct and indirect lobbying.

In its ruling, the FLRA majority—Chairman Colleen Kiko and member James Abbott—said the Department of Justice’s Office of Legal Counsel in a 2005 ruling had found that direct lobbying is allowed by the statute. But indirect lobbying is not, the majority said.

DOJ guidance, the plain text of the statute, and FLRA precedent all support the finding that indirect, or “grass roots,” lobbying by union representatives on official time isn’t authorized by the statute, the FLRA said.

Ernest DuBester, the FLRA’s Democratic member, said in a dissent that the majority “provides only confusing and contradictory guidance for determining what type of lobbying activity would be affected by its decision.” The decision isn’t consistent with FLRA precedent, contrary to what the majority said, and it “will generate confusion and uncertainty regarding an issue that, until today, did not appear to be creating confusion or uncertainty among the parties the Authority regulates,” DuBester wrote.

The National Right to Work Legal Defense Foundation, which has worked to weaken state and local government employee unions by eliminating practices such as payroll deductions of union dues and requirements that nonmembers pay for union representation, said the ruling this week represented progress but that lobbying of any kind while using official time should be halted.

“The difficulty in drawing lines between permissible and impermissible uses of union official time shows why the practice needs to be done away with entirely,” foundation Vice President Patrick Semmens said in a statement.

The FLRA declined to comment on Friday.

The case is Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth., D.C. Cir., No. 20-01322, petition for review filed 8/20/20.