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FLRA PROVIDES GUIDANCE LIMITING OFFICIAL TIME FOR LOBBYING EFFORTS
The Authority, following an advisory opinion of the DOJ Office of Legal Counsel, and interpreting provisions of the Reform Act on protected union activities and official time, as well as the "anti-lobbying" provision of the federal criminal code, followed a 2005 opinion of the DOJ Office of Legal Counsel to distinguish permitted uses of official time (union officers contacting legislators or others associated with development or enforcement of law and policy) and uses of official time that are not permitted (union officers encouraging employees to engage in similar efforts to persuade decisionmakers or legislators [characterized as grass-roots lobbying]). The FLRA's position was in a decision on a request for a General Statement of Policy and Guidance submitted by the National Right to Work Legal Defense Foundation, Inc., published at 71 FLRA 923 (August 19, 2020) (Member DuBester dissenting), following receipt by FLRA of public comment on the issue.
FEDERAL CIRCUIT DECISION CONSIDERS OFF-DUTY COMMENTS CAUSING WORKPLACE IMPACT
Using a personal cellphone, a supervisor sent text messages to a subordinate who revealed them to management. Some of the messages disparaged the supervisor's colleagues, including "senior officials," and some of the messages contained derogatory comments about the race and gender of those colleagues. The supervisor was removed based on the deciding official's concerns about the appellant's reliability and judgment. The subordinate who received the messages complained they contributed to a hostile environment. The Board rejected the argument that the misconduct was insulated by the fact that the messages were sent using a personal phone rather than government property and amounted to off-duty private speech. The Circuit affirmed the Board's determination that the texts had an adverse impact on the workplace, establishing a nexus and a basis for adverse action. Reviewing the factual background, the Circuit sustained the Board's decision: "substantial evidence supports the Board's finding that such prolonged and persistent misconduct--whether achieved through text messages, in person, or by carrier pigeon-has a nexus to the work of the Agency."
Jenkins v. Dept. of Transportation (Fed. Cir. 2019-2015 NP) (August 6, 2020): http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2075.OPINION.8-6-2020_1632021.pdf