Federal Manager's Daily Report

Federal employees may not use official time for grass-roots type lobbying, the FLRA has said, while adding that such use is allowable for directly communicating to members of Congress and others on workplace related issues of interest to unions.

The statement is the latest in a series of restrictive interpretations in which the three member board split 2-1 along party lines.

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While law generally prohibits using federal agency funds to lobby for or against any existing or potential policy or law, an exception in federal labor-management law grants employees acting in a union representational capacity “the right to present the views of their labor organization to Congress” while on official time, which is on-the-clock time that can be used for certain union-related activities.

The FLRA traditionally interpreted that as allowing official time for certain activities that otherwise might be considered prohibited lobbying, including grass-roots type efforts. However, it reconsidered that policy at the request of the National Right to Work Legal Defense Foundation and earlier this year solicited input on the issue.

In its statement, the FLRA majority cited a Justice Department legal opinion concluding that the law allows direct lobbying during official time but does not create a similar exception for indirect lobbying. It said the exception “cannot reasonably be said to give an express authorization for urging the public to communicate with government officials” nor even for a union to appeal to its members to personally contact members of Congress in support of the union’s positions.

“Nothing in the Act, or this policy statement, affects federal employees’ ability to lobby Congress – whether it be directly or indirectly – during their unpaid time. Instead, as we have succinctly stated, the Act precludes the use of official time – i.e., appropriated funds – for indirect lobbying,” it said.

The dissenting member said the FLRA previously rejected such a position and that the statement 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.” For example, he said, it is now questionable whether training union members to engage in lobbying is allowable or not.

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2020 Federal Employees Handbook