USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1810



                      GRANITE STATE CHAPTER,

               ASSOCIATION OF CIVILIAN TECHNICIANS,



                           Petitioner,



                                v.



                FEDERAL LABOR RELATIONS AUTHORITY,



                           Respondent.



                       ____________________



          ON PETITION FOR REVIEW OF A DECISION AND ORDER

             OF THE FEDERAL LABOR RELATIONS AUTHORITY



                       ____________________



                              Before



                     Torruella, Chief Judge,



Aldrich and Cudahy, Senior Circuit Judges.



                      _____________________



     Daniel M. Schember, with whom Gaffney & Schember, P.C. was on

brief, for petitioner.

     Gina A. Taylor on brief, for National Federation of Federal

Employees, amicus curiae.

     Judith A. Hagley, Attorney, Federal Labor Relations Authority,

with whom David M. Smith, Solicitor, and William R. Tobey, Deputy

Solicitor, Federal Labor Relations Authority, were on brief, for

respondent.





                       ____________________



                         April 1, 1999

                       ____________________          CUDAHY, Senior Circuit Judge.  New Hampshire takes

politics seriously.  Every four years, presidential hopefuls

coffee-and-chili their way through the Granite State, giving New

Hampshirites unparalleled personal access to the political elite. 

The local chapter of the Association of Civilian Technicians (the

Union) apparently wanted a piece of this action and, during

collective bargaining negotiations with the New Hampshire National

Guard in 1996, submitted a proposal which would have allowed union

representatives to lobby these and other politicians:

          Association officials will be granted not to

          exceed two days annually, official time to

          represent the bargaining unit by visiting,

          phoning, and writing to elected

          representatives in support of or opposition to

          pending desired legislation which would impact

          the working conditions of employees

          represented by the [union].



The Union cited 5 U.S.C.  7102(1) and 7131(d) (effective Jan. 11,

1979) as support for their proposal.  Section 7102(1) provides in

pertinent part that unionized government employees have the right

          to act for a labor organization in the

          capacity of a representative and the right, in

          that capacity, to present 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.



Section 7131(d), which defines permissible uses of "official time,"

further provides that any employee:

          in connection with any other matter covered by

          this chapter . . . shall be granted official

          time in any amount the agency and the [union]

          agree to be reasonable, necessary, and in the

          public interest.



The Union claimed these provisions read together guaranteed its

representatives a reasonable amount of official time to lobby. 

          The National Guard refused to bargain over the proposal,

also citing statutory support for its decision.  Specifically, it

argued that pursuant to 5 U.S.C.  7117(a)(1) its obligation to

negotiate did not extend to proposals which violated the law.  The

Guard contended that the Union's request, if granted, would violate

three separate anti-lobbying statutory provisions -- sections 8001

and 8015 of the 1996 Department of Defense Appropriations Act, Pub.

L. No. 104-61, 109 Stat. 636, 651, 654 (1996) (the Act) and 18

U.S.C.  1913.  The Union filed an unfair labor practice claim,

charging failure to bargain in good faith, which the parties

submitted to the Federal Labor Relations Authority (the Authority)

on stipulated facts.

          The Authority dismissed the complaint with one member

dissenting.  See Office of the Adjutant General, New Hampshire

National Guard, 54 F.L.R.A. 301 (1998) (slip op.).  It first found

that the Union's proposal was consistent with both  1913 and

 8001.   The Authority did find, however, that the proposal

conflicted with  8015, which provides in pertinent part:

     None of the funds made available by this Act

     shall be used in any way, directly or

     indirectly, to influence congressional action

     on any legislation or appropriation matters

     pending before the Congress.



The Authority held that the unambiguous and unqualified language of

this section barred official- time lobbying by Department of

Defense employees in 1996.  It also rejected as inapposite the

dissenting member's reliance on General Accounting Office (GAO)

interpretations of other similar provisions and determined that

resort to other indicia of Congressional intent was unnecessary

given the clarity of  8015's language.  See New Hampshire National

Guard, slip op. at 10-13.  Because the Union's proposal conflicted

with  8015, the National Guard was under no obligation to

negotiate over it, and the Authority therefore dismissed the

complaint.  

     The Union appeals, and, as an initial matter, the parties

contest our standard of review.  The Union argues that because the

Authority has no special competence interpreting Department of

Defense appropriations acts, its construction of the Act is due no

deference.  Review should be de novo, the Union concludes.  The

Authority claims that our review is more limited; we should

"respect" its reading of the Act and defer to it so long as it is

reasonable.  Frequently, the resolution of this standards debate

disposes of the substantive issue.  Not so here:  whatever standard

we apply, we reach the conclusion that the Authority's decision was

not in error.

     We begin with the elementary proposition that one

Congress is not bound by the decisions of a previous Congress. 

See, e.g., Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932);

Passamaquoddy Tribe v. Maine, 75 F.3d 784, 789 (1st Cir. 1996). 

Times change, and  Congress repeals some laws, adjusts others and

passes new legislation to meet the challenges of the day and of its

own policy preferences.  In most instances, Congress is explicit

about its intent to change the law.  In other cases, however,

Congress is not so clear; the repeal is not explicit.  Although

repeal by implication is disfavored, especially in instances in

which an appropriations bill is claimed to have repealed

substantive law, United States v. Will, 449 U.S. 200, 221-22

(1980), it is not forbidden.  See id. at 222-24; Metlife Capital

Corp. v. M/V Emily S., 132 F.3d 818, 821-22 (1st Cir. 1997).  If

one Congress clearly and manifestly makes known its intent to

supplant an existing law, a court can find repeal by implication. 

See, e.g., Metlife Capital, 132 F.3d at 822.  Where, for example,

two statutes are in irreconcilable conflict, the later law, in

whole or in part, constitutes a repeal of the former.  See id.  

     This is such a case.  The 104th Congress picked its terms

carefully, and we must give them their full effect.  See, e.g., BFPv. Resolution Trust Corp., 511 U.S. 531, 537 (1994).  It chose

unambiguous and unqualified language -- "none," "in any way,"

"directly or indirectly."  This pleonasm leaves no room for doubt;

Congress simply changed its mind.  The presence of exceptions in

other anti-lobbying provisions, including 18 U.S.C.  1913 and

 8001 of the Act, only bolsters this conclusion.  See, e.g.,

United Technologies Corp. v. Browning-Ferris Ind., Inc., 33 F.3d

96, 100-101 (1st Cir. 1994).

     Even after some prodding at oral argument, neither the

Authority (for reasons we do not fully understand) nor the Union

(because it would lose) fully endorsed this conclusion.   Instead,

the parties bickered over which statute was more specific (and

which two should be compared), whether reliance on sources other

than the statutory language might compel a different result and

whether the case implicated constitutional concerns.  These

arguments are red herrings.  Whether  8015 is more specific than

 7102 -- and in one sense it is -- is part-and-parcel of the

initial textual inquiry.  Section 8015's specificity is a clear and

manifest expression of Congress's intent to repeal the Union's

right to lobby.  The Union also argues that Congress was not

concerned about unions lobbying, pointing to the legislative

history of  8015 and GAO interpretations of similar provisions

which suggest that Congress intended  8015 to bar only defense

contractors from lobbying the Department for more funds.  None of

these sources, however, can explain the absence of any

qualifications in the clear language of  8015; Congress plainly

did not distinguish between defense contractors and unions

consisting of Defense Department employees.  And, in any event, we

need not consult extrinsic sources when the plain meaning of the

statutory language is clear.  See, e.g., Pritzker v. Yari, 42 F.3d

53, 67 (1st Cir. 1994).  Finally, the Union's derivative

constitutional arguments are unpersuasive.

     In 1996, Congress decided that Department of Defense

funds should not be used for lobbying and drafted and passed an

appropriations act to make this clear.  For that fiscal year,

 8015 repealed the Union's right to lobby Congress on official

time as otherwise guaranteed by 5 U.S.C.  7102.  Thus, the Union's

proposal conflicted with  8015; the National Guard was under no

obligation to negotiate over the proposal; and the Authority's

dismissal of the unfair labor practice charge is AFFIRMED.