       Applicability of 18 U.S.C. § 205 to Union Organizing
          Activities of Department of Justice Employee

T he representational bar in 18 U.S.C. §205 applies to union organizing activities of a
   federal employee in which he acts as “agent or attorney” for other federal employees
   before their agency.
T he definition o f “agency” in 18 U.S.C. § 6 is an expansive one, which establishes a
   presumption that a governmental entity is an agency for purposes of a given criminal
   offense, including offenses involving a conflict of interest, and includes entities in the
   legislative branch.
Even if certain provisions in T itle V II of the Civil Service Reform Act (CSRA) specifi­
  cally protect a federal employee’s organizational and representational activities under
  that A ct, notwithstanding the general bar in § 205, those provisions do not apply in this
  case because the employee group seeking recognition is not a “labor organization”
  under the CSRA.

                                                                           June 26, 1981

                       M EM ORAN DUM OPIN IO N
               FO R THE A C T IN G G E N E R A L COUNSEL,
       O F F IC E O F JU STIC E A SSISTAN CE, RESEA RCH AN D
                               STA TISTICS

   This responds to your request that we reconsider our views on the
applicability of 18 U.S.C. §205 and the implementing Department of
Justice regulations to Mr. A ’s activities as Executive Director of the
Capitol Employees Organizing G roup (CEOG). Our conclusion in
these m emoranda was that § 205 bars Mr. A from acting as agent or
attorney before any department, agency, or court on behalf of employ­
ees of the Senate Restaurant in their efforts to organize and bargain
with their employer, the Architect o f the Capitol. Mr. A takes issue
w ith this conclusion on grounds that § 205 was not intended to prohibit
the sort o f activity in which he wishes to engage, and that his activity
is protected under Title V II of the Civil Service Reform Act of 1978
(CSRA), 92 Stat. 1111, 1191, 5 U.S.C. §7101 et seq. After a careful
review of the statutes at issue, we reaffirm our previous position.
   Mr. A ’s counsel has suggested that § 205 should not be construed to
apply to representational activities before organizational entities within
the legislative branch such as the Office of the Architect of the Capitol
(OAC). The argument, we assume, is that the OA C is not an "agency”
as that term is used in § 205. It is true that the legislative history of the
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conflict of interest laws indicates that the representational bar of § 205
was not intended to prohibit services before “Congress or its commit­
tees.” H.R. Rep. No. 748, 87th Cong. 1st Sess. 20 (1961). However, we
can find no support for the notion that a similar exemption was in­
tended to apply to other parts o f the legislative branch. Indeed, the
express extension of the § 205 representational bar to employees of the
legislative branch indicates that Congress did not intend to limit the
term “agency” to entities within the executive branch.
   Moreover, the term “agency” is defined for purposes of Title 18
generally to include
       any department, independent establishment, commission,
       administration, authority, board or bureau of the United
       States or any corporation in which the United States has a
       proprietary interest, unless the context shows that such
       term was intended to be used in a more limited sense.


18 U.S.C. §6. This Office has in the past taken the position that the
definition of “agency” in Title 18 is an expansive one which, in effect,
establishes a presumption that a governmental entity is an agency for
purposes of a given offense, including the conflict of interest statutes. We
conclude, therefore, that the OAC is an “agency” as that term is defined
in § 205 and that § 205 accordingly does apply to representational activi­
ties before that entity.
   A second point raised by Mr. A is that even if § 205 does apply
generally to representational activities before an agency of the legisla­
tive branch, the particular activities in which he wishes to engage are
specifically protected under Title VII of the CSRA. See 5 U.S.C.
§ 7102. Therefore, he argues, the more general bar of § 205 should give
way. We cannot agree that § 701 covers Mr. A ’s organizing activities
on behalf of the Senate Restaurant employees.
   Section 701 of the CSRA gives all covered employees the right “to
form, join, or assist any labor organization.” An employee’s rights
under this section include the right
       to act for a labor organization in the capacity of a repre­
       sentative 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 . . . .
While Mr. A is concededly an “employee” enjoying the protections
afforded by § 701, see 5 U.S.C. § 7103(a)(2), the CEOG does not appear
to be a “labor organization” as that term is defined in Title V II of the


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CSRA. See 5 U.S.C. § 7103(a)(4).1 Accordingly, organizational and
representational activities in its behalf are not protected under § 701.2
Thus, even if Mr. A is correct that activities which are protected under
§ 701 would escape the § 205 bar, this argument avails him nothing in
this case.
   Finally, Mr. A argues that § 205 was not intended to prohibit the sort
of representational activities in which he wishes to engage in behalf of
the C EO G . While it is true that the legislative history of § 205 makes
no specific mention of union organizing or representational activities,
we cannot assume that Congress by its silence intended to enact an
exception to the clear terms o f the statutory prohibition—a prohibition
which applies broadly to “any proceeding, application, request for a
ruling or other determination, contract, claim, controversy, charge,
accusation, arrest, or other particular matter in which the United States
is a party or has a direct and substantial interest . . . .” (Emphasis
added.) W e have been provided no information which would permit
reconsideration o f our earlier conclusion that at least some of Mr. A ’s
proposed representational activities would be included on this compre­
hensive list. N or do we understand Mr. A to contend that his role
would not be that of an “agent or attorney” as those terms are used in
the statute. W e therefore have no basis on w hich to change our earlier
conclusion that § 205 prohibits at least some of the representational
activities he wishes to undertake.
   We stress that § 205 does not bar M r. A from aiding and assisting the
Senate employees in their efforts to organize, as long as he does not act
as their “agent or attorney.” In addition, we should point out that § 205
contains an explicit exception which would allow an officer or em­
ployee to aid or assist “any person w ho is the subject of disciplinary,
loyalty, o r other personnel administration proceedings in connection
with those proceedings.” It may well be that some of the matters in
which the C E O G Executive D irector would represent Senate employ­
ees would fall into the category of a “personnel administration proceed­


    1A “labor organization” under T itle V II o f the CSR A is defined as “an organization composed in
w hole o r in part of employees . . . .” 5 U.S.C. § 7103(a)(4). The term “employee” in turn is defined as
an individual “ employed in an agency.” 5 U.S.C. § 7103(a)(2). In contrast to the expansive definition of
“agency” in the Criminal Code, an “ agency” is narrow ly defined for purposes of Title VII coverage
as “an Executive agency        . the Library of Congress, and the Governm ent Printing Office . . . ” 5
U.S.C. § 7103(a)(3). It is our understanding that the CEO G is composed exclusively of employees of
the Senate Restaurant, who are em ployed by and subject to the administration and supervision of the
A rchitect of the Capitol. If, as w e conclude, the O A C is not an “agency” for purposes of Title VII
coverage, the Senate Restaurant employees are not “ employees” and the C E O G accordingly is not a
“ labor organization” under the A ct. Mr. A might have a valid argument if the definition of the term
“agency” w ere the same in Title V II and in Title 18, but that is not the case.
    2 We note that the National L abor Relations Board has reached a similar conclusion with respect to
the analogous provisions of the N ational Labor Relations Act (NLRA). See Capital Times Co., 234
N.L.R.B. 309 (1978) (covered em ployee's refusal to cross picket line established by non-covered
employees not protected activity under § 7 of the NLRA).

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ing.” We leave it to you to discuss with Mr. A which of his activities may
be permissible under one or the other of these provisions.

                                         T h e o d o r e B. O l s o n
                                      Assistant Attorney General
                                       Office o f Legal Counsel




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