ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 13, 2001
No. 00-1433
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.,
AND U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE INSPECTOR GENERAL,
WASHINGTON, D.C.,
Petitioners,
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent,
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 709,
Intervenor.
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 13, 2001
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the United States Department
of Justice, Washington, D.C. and United States Department of Justice,
Office of the Inspector General, Washington, D.C. (Agency) and the
American Federation of Government Employees, Local 709. The Agency is
the petitioner in this court proceeding; the Authority is the
respondent.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order on an Unfair Labor Practice (ULP) case in United States Department
of Justice, Washington, D.C. and United States Department of Justice,
Office of the Inspector General, Washington, D.C. and American
Federation of Government Employees, Local 709, Case No. DE-CA-80076,
decision issued on August 11, 2000, reported at 56 F.L.R.A. (No. 87)
556.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority are unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
A. Background 3
B. The ALJ's Decision and Recommended Order 4
C. The Supreme Court's Decision in NASA 5
D. The Authority's Decision and Order 5
STANDARD OF REVIEW 8
SUMMARY OF ARGUMENT 9
ARGUMENT 12
THE 5 U.S.C. § 7114(A)(2)(B) REPRESENTATION RIGHT OF
EMPLOYEES AND UNIONS APPLIES TO AN AGENCY OIG
INVESTIGATION INTO ALLEGATIONS OF CRIMINAL
ACTIVITY 12
A. Section 7114(a)(2)(B) Provides for the Right to Union
Representation During OIG Investigations of Criminal
Activity 12
1. The Language and Purpose of § 7114(a)(2)(B) 12
2. The NASA Court's Agreement with and
Deference to the Authority's Interpretation
of § 7114(a)(2)(B) 14
3. The IG Act 15
B. Relevant Precedent Indicates that OIG Investigations
into Criminal Activity Do Not Merit Different Treatment
under 7114(a)(2)(B) 17
C. There Is No Meaningful Distinction Between an
Administrative and a Criminal OIG Investigation 19
1. Denomination of Investigations as Criminal or Administrative 20
2. Reasonable Fear of Discipline - the Employee
and the Union 20
3. Agency's Involvement and Interest 21
4. Harm to Criminal Investigations 22
5. Employee's Rights 23
CONCLUSION 25
ADDENDA
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) A-1
Inspector General Act of 1978, 5 U.S.C. app. § 5d
(1994 & Supp. V 1999) B-1
Agency's Reply Brief in NASA v. FLRA C-1
TABLE OF AUTHORITIES
American Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85
(D.C. Cir. 1998) 8
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) 8
* Def. Criminal Investigative Serv., Dep't of Def. v. FLRA, 855 F.2d 93
(3rd Cir. 1988) 6, 19
Dep't of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 9
FLRA v. NASA, 120 F.3d 1208 (11th Cir. 1997), aff'd 527 U.S. 229
(2001) 4, 23, 24
Morton v. Mancari, 417 U.S. 535 (1974) 15
NFFE & FLRA v. Dep't of the Interior, 526 U.S. 86 (1999) 9
* NLRB v. J. Weingarten, Inc. , 420 U.S. 251 (1975) 2, 14
NRC v. FLRA , 25 F.3d 229 (4th Cir. 1994) 16
* Nat'l Aeronautics & Space Admin. v. FLRA , 527 U.S. 229 (1999) passim
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 8
United States Dep't of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) 18
* United States Postal Serv. v. NLRB, 969 F.2d 1064 (D.C. Cir. 1992) 18, 19
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Amer. Fed'n of Gov. Employees, Fed. Prison Council 33, 51 F.L.R.A. 1112 (1996)
22
* Dep't of the Treasury, Internal Revenue Serv.,
23 F.L.R.A. 876 (1986) 13
Headquarters, Nat'l Aeronautics & Space Admin., Washington, D.C.,
50 F.L.R.A. 601 (1995), enforced sub nom. FLRA v. NASA,
120 F.3d 1208 (11th Cir. 1997), aff'd 557 U.S. 229 (2001) 4, 13, 15
United States Immigration & Naturalization Serv.,
46 F.L.R.A. 1210 (1993), petition for review denied, 22 F.3d 1184
(D.C. Cir. 1994) (Table) 14
* Dep't of Def., Def. Criminal Investigative Serv., Def. Logistics Agency,
28 F.L.R.A. 1145 (1987), enforced sub nom. Def. Criminal Investigative
Serv., Dep't of Def. v. FLRA, 855 F.2d 93 (3rd Cir. 1988) 6, 19
DECISIONS OF OTHER ADMINISTRATIVE AGENCIES
Pope v. Dep't of the Navy, 63 M.S.P.R. 51 (1994) 23
United States Postal Serv., 241 N.L.R.B. 141 (1979) 19
United States Postal Serv., 288 N.L.R.B. 864 (1988) 19
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) 1
5 U.S.C. § 7105(a)(2)(G) 1
* 5 U.S.C. § 7114(a)(2)(B) passim
5 U.S.C. § 7116(a)(1), (8) 2, 3, 4
5 U.S.C. § 7118 2
5 U.S.C. § 7123(a) 2, 3
5 U.S.C. § 7123(b) 3
5 U.S.C. § 7123(c) 8
5 U.S.C. § 706(2)(A) 8
*Inspector General Act of 1978,
5 U.S.C. app. § 1 et. seq. (1994 and Supp. V 1999) 5, 24
§ 2 18
§ 4(a) 18
§ 4(d) 16, 17
§ 5(d) 17
§ 6(a)(2) 18
*Authorities upon which we chiefly rely are marked by asterisks.
GLOSSARY
Add. Addendum
Agency United States Department of Justice, Washington, D.C. And United
States Department of Justice, Office of the Inspector General, Washington, D.C.
ALJ Administrative Law Judge
App. Appendix
Authority Federal Labor Relations Authority
DCIS Defense Criminal Investigative Serv., Dep't of Defense v.
FLRA, 855 F.2d 93 (3rd Cir. 1988)
DOD, DCIS Dep't of Defense, Defense Criminal Investigative Serv.;
Defense Logistics Agency, 28 F.L.R.A. 1145 (1987)
DOJ U.S. Department of Justice
DOJ United States Dep't of Justice v. FLRA, 39 F.3d 361 (D.C. Cir.
1994)
DOJ-OIG U.S. Department of Justice, Office of the Inspector General
FCI Englewood Federal Correctional Institution Englewood, Littleton,
Colorado
IG Act Inspector General Act of 1978, 5 U.S.C. app. § 1 et seq. (1994
and Supp. V 1999)
IRS Dep't of the Treasury, Internal Revenue Serv., 23 F.L.R.A. 876
(1986)
Local 709 American Federation of Government Employees, Local 709
NASA Nat'l Aeronautics and Space Admin. v. FLRA, 527 U.S. 229
(1999)
OIG Office of the Inspector General
Pet. Petitioners
Petitioners United States Department of Justice, Washington, D.C. and
United States Department of Justice, Office of the Inspector General,
Washington, D.C.
Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. V 1999)
Weingarten NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)
ULP unfair labor practice
USPS United States Postal Serv. v. NLRB, 969 F.2d 1064 (D.C. Cir.
1992)
ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 13, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 00-1433
_______________________________
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.,
AND U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE INSPECTOR GENERAL,
WASHINGTON, D.C.,
Petitioners,
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent,
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 709,
Intervenor.
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The decision and order under review in this case was issued by the Federal
Labor Relations Authority (Authority) in 56 F.L.R.A. 556 (2000), a copy of
which is found at Appendix (App.) 166 - 173. The Authority exercised
jurisdiction over the case pursuant to § 7105(a)(2)(G) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 &
Supp. V 1999) (Statute).[1] This Court has jurisdiction to review the
Authority's final decisions and orders pursuant to § 7123(a) of the Statute.
STATEMENT OF THE ISSUE
Whether the 5 U.S.C. § 7114(a)(2)(B) representation right of employees and
unions applies to an agency Office of the Inspector General investigation
into allegations of criminal activity.
STATEMENT OF THE CASE
This case arose as an unfair labor practice (ULP) proceeding brought under §
7118 of the Statute.[2] The American Federation of Government Employees,
Local 709 (Local 709) filed ULP charges with the Authority's General Counsel
alleging that the U.S. Department of Justice (DOJ) and the U.S. Department
of Justice, Office of the Inspector General (DOJ-OIG) (collectively
"petitioners" or "Agency") violated § 7116(a)(1) and (8) of the Statute.
App. 68-70. Specifically, Local 709 alleged that DOJ-OIG agents failed to
comply with 5 U.S.C. § 7114(a)(2)(B)[3] by not granting an employee's
request for union representation during an investigation by the agents.
App. 68-70. The General Counsel issued a complaint, and the Administrative
Law Judge (ALJ) found that the Agency had violated the Statute as alleged.
App. 13, 31. The Agency filed exceptions to the ALJ's decision and
recommended remedial order. App. 90-100.
On July 23, 1999, the Authority issued an Order to Show Cause (App. 119)
noting that the issues raised in the Agency's exceptions appeared to have
been resolved by the Supreme Court's decision in National Aeronautics &
Space Administration v. FLRA, 527 U.S. 229 (1999) (NASA) (a copy of which is
at App. 121), and directing the parties to show cause why the Authority
should not adopt the ALJ's decision and order. After considering the
parties' responses, the Authority determined that NASA supported the
Authority's long held interpretation of § 7114(a)(2)(B). App. 170. Thus,
the Authority determined, the Agency's failure to comply with § 7114(a)(2)
(B) violated § 7116(a)(1) and (8) of the Statute. Id. Accordingly, the
Authority issued an appropriate remedial order. App. 171.
Petitioners seek review, and the Authority seeks enforcement of the
Authority's decision and order pursuant to 5 U.S.C. § 7123(a) and (b).
Local 709 has intervened in this proceeding.
STATEMENT OF THE FACTS
A. Background
This case arose from the interview of a bargaining unit employee of the
Federal Correctional Institution Englewood, Littleton, Colorado (FCI
Englewood) by two DOJ-OIG agents. App. 166. The DOJ-OIG agents were
conducting an investigation regarding allegations that the employee brought
illegal drugs into FCI Englewood. App. 167.
An OIG agent contacted the employee and instructed him to report to
Personnel. App. 16. The employee was next met by the two DOJ-OIG agents in
an Agency conference room. Id. Prior to commencing the interview, the DOJ-
OIG agents informed the employee that they were conducting a criminal
investigation into the drug allegations. App. 16, 167. The employee
requested union representation, but the DOJ-OIG agents denied the request.
Id. One of the agents told the employee that he was not entitled to
representation because this was a criminal investigation. Id. The agents
proceeded with the interview of the employee. Several weeks after the
investigation, the warden of FCI Englewood wrote a letter to the employee
explaining that the allegations had not been substantiated and the
investigation was complete. Id.
Local 709 filed the ULP charges (an original and two amended charges) that
form the basis of this case. App. 68-70. Based on those charges, the
Authority's General Counsel issued a complaint alleging that the Agency
violated § 7116(a)(1) and (8) of the Statute by denying the employee's
request for union representation in violation of § 7114(a)(2)(B). App.
71-77. The General Counsel moved for summary judgment (App. 53-55), and the
Agency opposed the motion (App. 35-51).
B. The ALJ's Decision and Recommended Order
On November 10, 1998, the ALJ granted the General Counsel's motion for
summary judgment, finding that the Agency had committed a ULP as charged.
App. 31. Relying on the Authority's decision in Headquarters, National
Aeronautics & Space Administration, Washington, D.C., 50 F.L.R.A. 601
(1995) (HQ, NASA), and the Eleventh Circuit's enforcement of that decision
in FLRA v. NASA, 120 F.3d 1208 (11th Cir. 1997),[4] the ALJ concluded that
the DOJ-OIG agents were "representatives of the agency" within the meaning
of § 7114(a)(2)(B). App. 10-31. In light of the Agency's admission that
the employee reasonably feared discipline (App. 16), the ALJ concluded that
all of § 7114(a)(2)(B)'s requirements were satisfied and that the DOJ-OIG
agents violated the § 7114(a)(2)(B) representation rights by denying the
employee's request for union representation. App. 31. Following
established precedent, the ALJ determined that both DOJ and DOJ-OIG
committed ULPs. Id. The ALJ recommended that the Authority order the
Agency to cease and desist from its unlawful conduct and to post,
nationwide, an appropriate notice. Id. The Agency timely excepted to the
ALJ's decision on December 11, 1998, raising issues that were at that time
pending before the Supreme Court in NASA. App. 90-100.
C. The Supreme Court's Decision in NASA
On June 17, 1999, the Supreme Court issued its decision in NASA, holding
that an investigator from an agency's Office of the Inspector General (OIG)
is a "representative" of the agency "when conducting an employee examination
covered by § 7114(a)(2)(B)." App. 125. In reaching this conclusion, the
Court explained that "NASA-OIG's investigators are employed by, act on
behalf of, and operate for the benefit of NASA." App. 129. Recognizing
policy arguments that support an opposite conclusion, the Court nevertheless
determined that its holding was necessitated by "the plain text of" the
Statute and the Inspector General Act of 1978, 5 U.S.C. app. § 1 et seq.
(1994 and Supp. V 1999) (IG Act), as well as "administrative deference and
Congress' countervailing policy concerns." App. 124.
The Court also upheld NASA's liability for the ULP committed by NASA-OIG.
According to the Court, "our conclusion that the investigator in this case
was acting as a 'representative' of NASA for purposes of § 7114(a)(2)(B)
makes it appropriate to charge NASA-OIG, as well as the parent agency to
which it reports and for which it acts, with responsibility for ensuring
that such investigations are conducted in compliance with the [Statute]."
App. 131.
D. The Authority's Decision and Order
Initially, the Authority determined that the arguments raised in the
Agency's exceptions had been resolved by NASA. App. 168. As a result, on
July 23, 1999, the Authority issued to the parties an Order to Show Cause
why the Authority should not adopt the ALJ's decision and order due to
NASA's resolution of the issues in the case.
App. 119, 168. In response, the Agency argued that the instant case was not
resolved by NASA because the investigation was criminal in nature, whereas the
investigation in NASA was administrative in nature.[5] App. 170.
The Agency asserted that because the DOJ-OIG agents questioned the employee
in connection with a criminal investigation in which no administrative
action was contemplated, the agents were acting independent of the Agency
and were not "representatives of the agency" within the meaning of § 7114(a)
(2)(B). Id. In support of this position, the Agency relied primarily upon
a footnote in NASA (App. 130 n.8) in which the Court stated that the
application of § 7114(a)(2)(B) "to law enforcement officials with a broader
charge" was not before and therefore not decided by the Court. App. 170.
Following established precedent applying the § 7114(a)(2)(B) right to
criminal investigations, the Authority rejected the Agency's argument. Id.
The Authority noted in this regard that it had held that § 7114(a)(2)(B)
applies to OIG investigations that involve allegations of criminal activity,
including a case involving a joint investigation by the OIG and local
police. Id. n.7 (citing Dep't of Def., Def. Criminal Investigative Serv.;
Def. Logistics Agency, 28 F.L.R.A. 1145, 1149 (1987) (DOD, DCIS), enforced
sub nom. Def. Criminal Investigative Serv., Dep't of Def. v. FLRA, 855 F.2d
93 (3d Cir. 1988) (DCIS)).
Turning to the Agency's NASA argument, the Authority determined that the
Agency failed to demonstrate that NASA distinguishes between criminal and
administrative investigations with regard to whether an OIG investigator is
a "representative of the agency" within the meaning of § 7114(a)(2)(B).
Although the investigation in NASA was "administrative," the Court did not
focus on that aspect of the investigation. Rather, the Court focused on the
OIG's role within the agency. App. 170.
The Authority highlighted the Court's statement that "'unlike the
jurisdiction of many law enforcement agencies, an OIG's investigative
office, as contemplated by the [IG Act], is performed with regard to, and on
behalf of, the particular agency in which it is stationed.'" App. 170
(quoting NASA, App. 128). To further explain, the Authority noted that the
Court found that "'as far as the [IG Act] is concerned, [OIG] investigators
are employed by, act on behalf of, and operate for the benefit of'" the
agency. App. 170 (quoting NASA, App. 129). The Authority observed that
this role of OIGs within the agency prompted the Court to find that §
7114(a)(2)(B) applies to OIG investigations. App. 170. Thus, the Authority
concluded that nothing in the NASA decision indicates that this
interrelationship between the agency and OIG changes when a criminal matter
is investigated. Id.
The Authority analyzed the Supreme Court's footnote comment regarding "law
enforcement officials with a broader charge" where the Court addressed
NASA's concerns about "joint or independent FBI investigations of federal
employees" (NASA, App. 130 n.8). App. 170. Based upon that analysis, the
Authority determined that it was only in this specific context that the
Supreme Court stated that "the application of [§ 7114(a)(2)(B)] to law
enforcement officials with a broader charge" was not before it. Id. Thus,
the Authority concluded that the Agency misinterpreted the Court's statement
by seeking to apply it to OIG investigations involving criminal matters.
Id. The Authority held that the phrase "law enforcement officials with a
broader charge" clearly refers to the FBI, and given the Supreme Court's
above-noted distinction between OIG investigators and law enforcement
agencies, this footnote in NASA does not support Respondents' asserted
distinction between criminal and administrative OIG investigations. Id.
Finally, the Authority concluded that the Agency's own factual admission
undercut its argument regarding how the criminal nature of this case makes
it distinct. Id. Specifically, the Authority found that the Agency
admitted that it was reasonable for the employee in this case to fear that
disciplinary action might result from the investigation. Id.; see also App.
14. The Authority reasoned that the Agency would not have acknowledged that
the employee had reason to fear disciplinary action if this had been an
independent investigation into criminal activity as the Agency claimed.
App. 170. In light of this admission, the Authority found that the Agency
could not then claim that labeling the investigation "criminal" takes it
outside of the § 7114(a)(2)(B) context. Id.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." American Fed'n of
Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).
Authority action shall be set aside only if "arbitrary, capricious, or an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
7123(c), incorporating 5 U.S.C. § 706(2)(A); Overseas Educ. Ass'n, Inc. v.
FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988). Under this standard, unless it
appears from the Statute or its legislative history that the Authority's
construction of its enabling act is not one that Congress would have
sanctioned, the Authority's construction should be upheld. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
A court should defer to the Authority's construction as long as it is
reasonable. See id. at 845.
This case also concerns the Authority's interpretation of its own organic
statute as it relates to another statute, the IG Act. When the Authority's
work requires interpretation of other statutes, while it is not entitled to
deference, the Authority's interpretation should be given "respect." Dep't
of the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988) (Dep't of the
Treasury). In its interpretation of other federal statutes, the Authority's
reasoning should be followed to the extent the reasoning is "sound." Dep't
of the Treasury, 837 F.2d at 1167.
Further, as the Supreme Court has stated, the Authority is entitled to
"considerable deference" when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities of
federal labor relations.'" NFFE & FLRA v. Dep't of the Interior, 526 U.S.
86, 99 (1999) (internal citations omitted). As the instant case
demonstrates, among the "complexities of Federal labor relations" that the
Authority must address as part of its everyday work is the interrelationship
of the Statute and other laws governing the federal employment relationship.
SUMMARY OF ARGUMENT
The Authority correctly adhered to its established precedent holding that
the § 7114(a)(2)(B) right to representation applies to an OIG investigation
involving allegations of criminal matters. The Authority's determination on
this point is entitled to deference because it is premised upon a reasonable
interpretation of the Authority's own statute and consistent with the
Supreme Court's decision in NASA holding that OIGs are "representatives of
the agency" for whom they are employed.
The plain language of § 7114(a)(2)(B) protects the interests of both federal
employees and the unions that represent them during investigative
examinations conducted by a "representative of the agency" when a bargaining
unit employee reasonably fears disciplinary action. It is undisputed in
this case that the employee reasonably feared discipline. Nevertheless,
petitioners contend that the criminal rather than administrative nature of
this investigation eliminates the § 7114(a)(2)(B) representational rights of
both the employee and the union. Nothing in the plain language of the
Statute or the NASA decision suggests that these statutory representation
rights are lost in an investigation involving allegations of criminal
activity. To the contrary, the need to protect both an employee fearful of
discipline and a union's institutional interest in ensuring, for example,
fair treatment of employees, exist regardless of whether an investigation
is labeled as "criminal."
The Supreme Court in NASA agreed with the Authority's interpretation of §
7114(a)(2)(B), noting both the Authority's "reasonable judgment" and the
unique nature of OIGs because of their role within the agency. The Court
also expressly rejected a theory petitioners reargue here - that a
collective bargaining relationship implicating the investigating entity is
required to trigger the § 7114(a)(2)(B) rights. The IG Act offers no
support for petitioners' assertion that OIGs are not representatives of the
agency, within the meaning of § 7114(a)(2)(B), during investigations
involving a criminal matter. The Authority and the Supreme Court carefully
analyzed the language and legislative history of the IG Act, and found no
inconsistency between the two that would negate the obligations of §
7114(a)(2)(B). Other than a duty to report violations of criminal law,
petitioners point to nothing in the IG Act that compels the exemption of OIG
investigators from § 7114(a)(2)(B).
The Authority's application of § 7114(a)(2)(B) to OIGs in this case is
consistent with important and unchallenged precedent of this and another
court of appeals. Reviewing a determination of the National Labor Relations
Board, this Court concluded that the private sector analogue to § 7114(a)(2)
(B), the Weingarten right, is properly afforded to bargaining unit employees
during a criminal investigation conducted by Postal Service Inspectors.
These Inspectors, like OIGs agents, enjoy a degree of autonomy from the
Postal Service when conducting investigations of alleged criminal activity
by bargaining unit employees. Petitioners make no attempt to distinguish
this persuasive precedent or to address the Third Circuit's affirmance of
the Authority's application of the § 7114(a)(2)(B) to investigations
involving criminal matters.
Undercutting petitioners' argument here is the impracticality of premising
important rights on the characterization of an investigation as
administrative or criminal. Because virtually any workplace incident can be
characterized as a crime, exempting so-called criminal investigations from §
7114(a)(2)(B) could lead to attempts to designate investigations as
"criminal" in order to evade § 7114(a)(2)(B)'s requirements. If, as is
conceded in this case, an employee reasonably fears discipline, it is
irrelevant whether an investigation is labeled "criminal" or
"administrative."
Nor is an agency likely to be any less involved or interested in an
investigation into criminal matters. Here, the employee was on duty when
summoned to agency personnel for the interview, the agency provided a room
for the examination, and the agency notified the employee of the results of
the investigation. Moreover, an agency has an undeniably significant
interest in an investigation of one of its employees involving allegations
of criminal activity.
Finally, petitioners have not established that the application of § 7114(a)
(2)(B) in cases such as this will compromise investigations in any
meaningful way. Nor have they demonstrated that the § 7114(a)(2)(B)
representation right is unnecessary because of additional rights that may
be afforded an employee during investigations designated as criminal.
ARGUMENT
THE 5 U.S.C. § 7114(A)(2)(B) REPRESENTATION RIGHT OF EMPLOYEES AND UNIONS
APPLIES TO AN AGENCY OIG INVESTIGATION INTO ALLEGATIONS OF CRIMINAL ACTIVITY
The Authority properly determined that the DOJ-OIG agents were
"representatives" of the agency when conducting what the agents
characterized as a "criminal" investigation. In this case, the Authority
reaffirmed its long-standing interpretation of § 7114(a)(2)(B) as applying
in OIG investigations in light of the Supreme Court's agreement with that
interpretation in NASA. In NASA, the Supreme Court looked carefully at the
language of both § 7114(a)(2)(B) and the IG Act, as well as congressional
intent behind both, and determined that "the plain text of the two statutes,
buttressed by administrative deference" and Congress's policy concerns,
"dictates" finding that an OIG investigator is a "representative of the
agency" under § 7114(a)(2)(B). App. 124. To prevail here, petitioners
must demonstrate that the Statute or IG Act "dictates" a different result
for criminal investigations, even though this and another court of appeal
have applied the representation right to investigations into criminal
activity. This the petitioners cannot do.
A. Section 7114(a)(2)(B) Provides for the Right to Union Representation During
OIG Investigations of Criminal Activity
1. The Language and Purpose of § 7114(a)(2)(B)
Section 7114(a)(2)(B) provides that an exclusive representative "shall be
given the opportunity to be represented at any examination of an employee in
the unit by a representative of the agency in connection with an
investigation" if the employee "reasonably believes that the examination may
result in disciplinary action against the employee" and "the employee
requests representation." 5 U.S.C. § 7114(a)(2)(B). Here, petitioners
concede that all of these elements are satisfied save whether the DOJ-OIG
agents may be considered "representative[s] of the agency." Pet. Brief at
13. Petitioners assert that "'representative of the agency' cannot mean an
investigator from an Inspector General office conducting a criminal
investigation." Id. Neither the language of the Statute nor the
Authority's interpretation thereof supports this assertion.
The plain language of § 7114(a)(2)(B) is broadly drafted. It refers to "any
examination" in connection with "an investigation," without further
explication. The Authority long ago recognized that § 7114(a)(2)(B)
"applies to requests by an employee for union representation at an
examination by an agency representative in connection with a criminal
investigation." Dep't of the Treasury, Internal Revenue Serv., 23 F.L.R.A.
876, 879 (1986). The Authority observed that "[s]ection 7114(a)(2)(B) . . .
does not exclude or refer in any way to criminal investigations," and thus
concluded that "Congress intended section 7114(a)(2)(B) to apply to all
investigations, not just to examinations of employees in connection with
non-criminal matters." Id. at 878. The Authority noted that in drafting
this section "Congress was undoubtedly aware that, unlike the private
sector, many Federal agencies . . . conduct criminal investigations that
sometimes . . . include their own employees." Id. The Authority has
consistently applied the §7114(a)(2)(B) right to criminal investigations,
including criminal investigations conducted by OIG agents. App. 170 n.7.
The Authority's interpretation of § 7114(a)(2)(B) is consistent with the
purpose of the representation right afforded to both the employee and the
bargaining unit as a whole. With regard to employee protection, the
Authority has recognized that through § 7114(a)(2)(B), "Congress intended
that Federal employees have the same rights as their counterparts in the
private sector-the assistance of a union representative when they are called
upon to provide information that exposes them to the risk of disciplinary
action." HQ, NASA, 50 F.L.R.A. at 615. The Supreme Court stated in
Weingarten that such representation is necessary during an investigatory
examination that may result in discipline because the employee "may be too
fearful or inarticulate to relate accurately the incident being
investigated, or too ignorant to raise extenuating factors." Weingarten,
420 U.S. at 263. A union representative, present at the examination, "could
assist" both the employer and the employee by "eliciting favorable facts"
and "getting to the bottom of the incident occasioning the interview." Id.
The Authority's interpretation of § 7114(a)(2)(B) is also consistent with
the "express Congressional recognition" in that section "of a union's
institutional right to be represented at examinations." United States
Immigration and Naturalization Serv., 46 F.L.R.A. 1210, 1221 (1993),
petition for review denied, 22 F.3d 1184 (D.C. Cir. 1994) (Table).
Weingarten recognized that an exclusive representative "protects the
interests of the entire bargaining unit." 420 U.S. at 260. Through his or
her presence at the examination of an employee, a union representative can
"make certain that the employer does not initiate or continue a practice of
imposing punishment unjustly." Id. at 260-61. These significant interests
and rights of both the employee and the union are implicated every bit as
much in a criminal as in an administrative investigation.
2. The NASA Court's Agreement with and Deference to the Authority's
Interpretation of § 7114(a)(2)(B)
The Supreme Court agreed with the Authority's view that § 7114(a)(2)(B)
applies to OIG investigations. The Court observed that "[i]n resolving this
issue, the Authority was interpreting the statute Congress directed it to
implement and administer." NASA, App. 126. The Court then determined that
the Authority's conclusion was "certainly consistent with the [Statute]" and
noted, that "to the extent the statute and congressional intent are unclear,
we may rely on the Authority's reasonable judgment." Id.
In NASA, the agency challenged the Authority's interpretation of § 7114(a)
(2)(B) by arguing that the term "'representative' refers only to 'the entity
that has a collective bargaining relationship with the employee's union.'"
(App. 125 (quoting Brief for Petitioners)). The Supreme Court rejected this
theory, holding that "[b]y its terms, § 7114(a)(2)(B) is not limited to
investigations conducted by certain 'entit[ies]' within the agency in
question." App. 125. Petitioners reassert that argument to this Court,
claiming that in a criminal investigation a collective bargaining
relationship involving the OIG is required. Pet. Brief 15-16. But after
examining what it described as the congressional "endorsement of a
government employee's right to union representation" through the drafting of
§ 7114(a)(2)(B), the Supreme Court refused to restrict the representation
right by adding this same "uncodified limitation proposed by NASA and its
OIG." App. 127 (emphasis added). In short, petitioners' argument fails
because the Court's analysis of and ultimate conclusion regarding § 7114(a)
(2)(B)'s plain language in this regard did not focus on the type of
investigation being conducted.
3. The IG Act
The IG Act does not provide any justification for treating investigations
into criminal activity differently than administrative investigations.
Previously, the Authority carefully considered the language and legislative
history of the IG Act and concluded that nothing in the IG Act justifies
exempting OIG investigators from the requirements of § 7114(a)(2)(B). HQ,
NASA, 50 F.L.R.A. at 616-619. Following the standard set forth in Morton v.
Mancari, 417 U.S. 535, 551 (1974), the Authority interpreted § 7114(a)(2)(B)
and the IG Act in a manner giving effect to both laws - applying § 7114(a)
(2)(B) to OIG investigations.
The Supreme Court agreed with the Authority's determination that the
requirements of the IG Act do not conflict with the application of § 7114(a)
(2)(B) to OIG investigations. NASA, App. 127. Contrary to petitioners'
suggestion (Pet. Brief at 16), the Supreme Court's determination in this
regard was not premised on the administrative nature of the examination in
NASA. Instead, the Court reached this conclusion based upon careful
analysis of the IG Act in light of the independence undeniably granted OIGs
by the IG Act. In the final analysis, the Court recognized the OIG's
"statutorily defined role within the agency," App. 130, and relied on that
factor in finding that no statutory incongruities resulted from applying §
7114(a)(2)(B) to OIG investigations.
In arguing that the IG Act presents a justification for distinguishing
between criminal and administrative OIG investigations, petitioners rely
upon § 4(d) of the IG Act. 5 U.S.C. app. § 4(d). Petitioners' reliance is
misplaced. Section 4(d) states: "In carrying out the duties and
responsibilities established under this Act, each Inspector General shall
report expeditiously to the Attorney General whenever the Inspector General
has reasonable grounds to believe there has been a violation of Federal
criminal law." But petitioners offer no reason why this reporting
requirement is affected by the rights contained in §7114(a)(2)(B).
Instead, petitioners mistakenly assert that the IG Act requires OIGs to
report to the Attorney General "'directly, without notice to other agency
officials.'" Pet. Brief at 23. This quotation is not found in the IG Act
or its legislative history. Instead, the quotation comes from the Fourth
Circuit's unsubstantiated interpretation of § 4(d) in NRC v. FLRA, 25 F.3d
229, 234 (4th Cir. 1994).
Moreover, § 5(d) of the IG Act[6] undercuts petitioners' assertion. That
section requires that the "Inspector General shall report immediately to the
head of the establishment involved whenever the Inspector General becomes
aware of particularly serious or flagrant problems, abuses, or deficiencies
relating to the administration of programs and operations of such
establishment." 5 U.S.C. App. § 5(d) (emphasis added). The obligation to
"immediately" report "serious or flagrant problems" to the agency head
presumably includes significant criminal violations. Thus, petitioners
cannot rely on § 4(d) to support their position that OIG criminal
investigations are excluded from § 7114(a)(2)(B) coverage.
B. Relevant Precedent Indicates that OIG Investigations into Criminal Activity
Do Not Merit Different Treatment under § 7114(a)(2)(B)
Relevant precedent also supports the Authority's determination in this case
that the DOJ-OIG agents were "representatives of the agency" within the
meaning of § 7114(a)(2)(B). Specifically, determinations of the Supreme
Court and United States Courts of Appeals reviewing decisions of the
Authority and the National Labor Relations Board (NLRB) establish that OIGs
are "representatives of the agency" during investigations into allegations
of criminal activity.
As discussed previously, notwithstanding the unique nature of OIGs, in NASA
the Supreme Court held that OIG investigations were covered by § 7114(a)(2)
(B). In reaching this conclusion, the Court was well aware of IGs' law
enforcement authority, but based its decision on other considerations. It
observed, "unlike the jurisdiction of many law enforcement agencies, an
OIG's investigative office, as contemplated by the IG [Act], is performed
with regard to, and on behalf of, the particular agency in which it is
stationed." NASA, App. 128 (citing 5 U.S.C. App. §§ 2, 4(a), 6(a)(2)).
Hence, the Court concluded that OIG's are "unquestionably 'representatives'
of [the agency] when acting within the scope of their employment." Id. As
a result, regardless of their law enforcement authority (Pet. Br. at 14-15,
22-25), OIGs remain representatives of the agency for the purposes of §
7114(a)(2)(B).
Petitioners correctly point out that the investigation in NASA was
administrative, but ignore the important distinction drawn by the Supreme
Court between the jurisdiction of "law enforcement agencies" and OIGs. As
pertinent here, § 7114(a)(2)(B) is applicable to OIG investigations because
"[a]s far as the IG [Act] is concerned, [OIG] investigators are employed by,
act on behalf of, and operate for the benefit" of the agency. App. 128.
This statutory fact remains true whether an OIG is conducting a criminal or
an administrative investigation.
Petitioners incorrectly assert that this Court's decision in United States
Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) (DOJ), supports
their position that the § 7114(a)(2)(B) right does not apply to OIG criminal
investigations. Pet. Brief at 13-15. This argument has no merit in light
of this Court's clarification in DOJ that "[o]ur analysis does not turn on
the fact . . . that when investigator Nelson questioned Gillies, Nelson was
in the midst of a criminal investigation, sanctioned by the Assistant United
States Attorney." 39 F.3d at 369 n.12 (emphasis added). Rather, the DOJ
decision turned on this Court's determination that "in light of the language
of § 7114(a)(2)(B) and the autonomy of the [OIG]" under the IG Act, an OIG
investigator is not a "representative of the agency." Id. at 368. That
specific determination of the DOJ Court was rejected by the Supreme Court in
NASA.
The more applicable and unchallenged precedent from this Court is United
States Postal Service v. NLRB, 969 F.2d 1064 (D.C. Cir. 1992) (USPS). In
that case, this Court reviewed the NLRB's application of the private sector
Weingarten right to a criminal investigation of a United States Postal
Service employee by Postal Inspectors. Postal Inspectors, like OIG
investigators, are employees of the parent agency, USPS, 969 F.2d at 1066,
but "are not under the supervision or direction of postal supervisors or
managers." United States Postal Serv., 288 N.L.R.B. 864, 865 (1988). Postal
Inspectors "undertake[] investigations only when criminal conduct is
suspected." USPS, 969 F.2d at 1066. Regardless, this Court held that there
is no obligation "to except Postal Inspector interrogations from the
[Weingarten] consultation right at issue based on the potentially criminal
character of the conduct that Inspectors investigate," because "Weingarten
protections have been consistently accorded to private sector employees
suspected of criminal conduct." Id. at 1072. Further, "neither 'public
safety' nor 'legitimate employer prerogatives' necessitate the suggested
exemption of Inspector interviews and the attendant 'sacrifice' of the
statutory right of postal employees." Id. at 1072 (quoting United States
Postal Serv., 241 N.L.R.B. 141, 142 & n.12 (1979)).
Petitioners ignore this precedent. Instead, they wrongly assert without
any support that "[t]he Weingarten rule was never intended to apply in the
criminal context." Pet. Brief at 26. Nor do petitioners address the fact
that the Authority's application of the § 7114(a)(2)(B) right to an OIG
investigation into criminal activity (DOD, DCIS) has been upheld by the
United States Court of Appeals for the Third Circuit (DCIS).
C. There Is No Meaningful Distinction Between an Administrative and a Criminal
OIG Investigation
Petitioners' arguments are further undercut by the fact that for purposes of
§ 7114(a)(2)(B), there is no meaningful distinction between an
administrative and a criminal investigation by an OIG. Specifically, and
contrary to petitioners' assertions, an investigation into alleged criminal
activity triggers §7114(a)(2)(B) and implicates interests of the employee,
union, and agency just as much as an administrative investigation.
1. Denomination of Investigations as Criminal or Administrative
To begin, almost any workplace incident can be characterized as a crime.
For example, an altercation between employees could be criminal assault, and
missing property or inventory shortages could be larceny or embezzlement.
Contrary to petitioners' arguments (Pet. Brief at 16-18), this reality could
encourage the designation of investigations as "criminal." As a
consequence, virtually any OIG investigation could be labeled as "criminal"
and effectively trump the rights set out in § 7114(a)(2)(B). A ruling that
permitted such a practice would, as the Supreme Court noted in a related
context, "frustrate Congress' apparent policy of protecting certain federal
employees when they are examined and justifiably fear disciplin[e]." NASA,
App. 125.
Moreover, before the Supreme Court, the agency conceded that making the
application of § 7114(a)(2)(B) to OIG investigations dependent upon whether
the investigation is criminal or administrative is "unworkable" from a
practical standpoint. In the agency's view, in that case, linking the §
7114(a)(2)(B) right to representation to the nature of the investigation
would result in "intolerable" uncertainty where "the OIG cannot be certain
whether its investigation of the facts will culminate in a criminal
prosecution or disciplinary proceedings." (See Add. C, Agency's Reply
Brief in NASA at 19).
2. Reasonable Fear of Discipline - the Employee and the Union
An employee's reasonable fear of discipline, a key element of the § 7114(a)
(2)(B) representation right, is equally present in "criminal" and
"administrative" investigations. The Agency has admitted throughout this
case that notwithstanding the fact that this investigation was assertedly
"criminal," the employee reasonably feared discipline within the meaning of
§ 7114(a)(2)(B). This admission is not based on any special characteristics
of this case. Moreover, as petitioners acknowledge, an agency OIG may turn
over the results of a criminal investigation to the agency at the close of
the investigation. (Pet. Brief at 22, n.10). In addition, petitioners
fail completely to explain why such a criminal investigation does not
implicate a union's institutional rights just as much as would an
administrative investigation during which a bargaining unit employee
developed a reasonable fear of discipline.
3. Agency's Involvement and Interest
Petitioners also incorrectly assert that criminal and administrative
investigations are distinct because agencies and OIGs do not have the close
working relationship in criminal investigations that they have in
administrative investigations. Pet. Br. 18-19. The facts of this case do
not support petitioners' contention. The NASA Court found that "honest
cooperation between an OIG and management-level agency personnel" can be
expected in "many cases." NASA, App. 129. Here, cooperation manifested
itself in at least three ways. First, the employee being questioned was
told to report to the agency's "Personnel" for the examination. App. 16.
Second, the employee was questioned by the DOJ-OIG agents in a regular
agency facility, the FCI Englewood conference room. App. 16. Third, after
the investigation was completed, the employee received a letter from an
agency management official, the warden of FCI Englewood, informing him that
"'there was nothing to substantiate the allegations, and that there would be
no further investigation.'" Id. These facts exemplify the NASA Court's
important recognition that, in the final analysis, OIG investigators still
are "employed by, act on behalf of, and operate for the benefit of" the
agency. NASA, App. 129.
Nor is it correct, as petitioners suggest, that the agency has any less
interest in a criminal investigation than it does in an administrative one.
Pet. Brief at 21-22. An agency's interest in ferreting out criminal
misconduct within its workforce cannot be gainsaid. An OIG agent who is
conducting any type of investigation is acting in the agency's interest and,
as such, is a "representative of the agency."
4. Harm to Criminal Investigations
Petitioners erroneously posit a number of reasons why application of the §
7114(a)(2)(B) right to criminal OIG investigations could compromise such
investigations. On close scrutiny, none of these assertions has merit in
this case.
First, petitioners claim that in light of a union representative's duty to
the whole bargaining unit, there exists the possibility of disclosure of
information regarding the investigation. Pet. Brief at 28. However, the
Supreme Court expressly rejected this argument in NASA. The Court reached
its conclusion even while recognizing the likelihood of disclosure of
investigation information, because there is "no legal authority restricting
an employee's ability to discuss the matter with others." NASA, App. 130.
Moreover, the Authority has interposed no objection to the negotiation of
bargaining agreement proposals requiring confidentiality by bargaining unit
employees and their representatives concerning information discussed during
§ 7114(a)(2)(B) examinations. Amer. Fed'n of Gov. Employees, Fed. Prison
Council 33, 51 F.L.R.A. 1112, 1117-1118 (1996).
Second, petitioners contend that joint investigations by the OIG and the FBI
could be hampered by applying § 7114(a)(2)(B) to investigations involving a
criminal matter. Pet. Brief at 31. This contention does not present any
basis for objecting to the Authority's decision in this case. There is no
joint investigation here - nor was there one in NASA. As the Supreme Court
explained: "joint or independent FBI investigations of federal employees"
are cases that "present distinct questions not now before us." App. 130
n.8. Thus, the question of whether the Authority would or could extend §
7114(a)(2)(B) to such an investigation is not before this Court.
Third, petitioners argue that the Authority has interpreted the § 7114(a)(2)
(B) right to include additional rights (e.g., consultation, breaks, notice)
that could hamper a criminal investigation. Pet. Brief at 29-30. Again,
these additional rights are not at issue here nor were they present in NASA.
As the Supreme Court recognized, "representation is not the equivalent of
obstruction," and "[i]n many cases, the participation of a union
representative will facilitate the factfinding process and a fair resolution
of an agency investigation." App. at 130-31. In any event, as chronicled
in petitioners' brief (Pet. Brief at 29-30), the Authority's
interpretations of the scope of §7114(a)(2)(B) can be subjected to judicial
review.
5. Employee's Rights
Petitioners' argument that the nature of the agency's involvement in a
criminal investigation distinguishes it from an administrative investigation
is also without merit. Petitioners assert in this regard that an agency is
less involved because, for example, employees cannot be compelled, on threat
of discipline, to answer questions in a criminal investigation. Pet. Brief
at 19. Contrary to the petitioners' assertion, this is not a distinguishing
consideration. Regardless of who is conducting a criminal investigation
within an agency, "[a]n agency may not discipline an employee for refusing
to answer questions about conduct that the employee reasonably believes
could serve as the basis for criminal charges." Pope v. Dep't of the Navy,
63 M.S.P.R. 51, 53 (1994).
Petitioners also try to distinguish administrative and criminal
investigations based upon an employee's right to an attorney in a criminal
investigation, suggesting that this ameliorates the denial of § 7114(a)(2)
(B) representation. Pet. Brief 19-20, 27. However, in NASA v. FLRA, the
Eleventh Circuit determined that employees have the right to be represented
by an attorney during administrative investigations. 120 F.3d at 1215.
Notwithstanding the fact that the employee interrogated in the NASA case had
an attorney present during the examination, both the Eleventh Circuit and
the Supreme Court still found a § 7114(a)(2)(B) right to representation.
NASA, App. 124. Moreover, even assuming that the individual employee's
representational interests are protected through outside counsel, the
petitioners fail to address how the union's interests would be so protected.
Finally, petitioners mistakenly contend that a union representative during a
criminal investigation could harm an employee if called as a witness before
a grand jury or trial. Pet. Brief at 28. This contention is without merit.
A union representative could always be called as a witness in such
proceedings regardless of the nature of the investigation conducted by OIG
agents.
In sum, petitioners' attempt to exclude investigations into criminal
activity from the application of § 7114(a)(2)(B) finds no support in the
Statute, the IG Act, or judicial interpretations of these statutes. As
such, petitioners have failed to demonstrate that the Authority's
construction is erroneous.
CONCLUSION
The Authority's decision and order should be enforced.
Respectfully submitted,
DAVID M. SMITH
Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
June 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.,
AND U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE INSPECTOR GENERAL,
WASHINGTON, D.C.,
Petitioners,
v. No. 00-1433
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 709,
Intervenor
_______________________________
SERVICE LIST
I certify that copies of the Brief for the Federal Labor Relations
Authority have been served this day, by mail, upon the following:
William Kanter Mark D. Roth
Howard S. Scher General Counsel
Attorneys, Appellate Staff American Federation of
Civil Division, Room 9102 Government Employees
601 D Street, NW (PHB) 80 F Street, NW
Washington, DC 20530-0001 Washington, DC 20001
Stuart Kirsch
Assistant General Counsel
American Federation of
Government Employees
6724 Church Street, Suite 2
Riverdale, GA 30274
Thelma Brown
Paralegal Specialist
June 14, 2001
RELEVANT PORTIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, 5 U.S.C. §§ 7101-7135 (1994 & SUPP. V 1999)
TABLE OF CONTENTS
1. 5 U.S.C. § 7105(a)(2)(G) A-1
2. 5 U.S.C. § 7114(a)(2)(B) A-2
3. 5 U.S.C. § 7116(a)(1), (8) A-3
4. 5 U.S.C. § 7118 A-4
5. 5 U.S.C. § 7123(a), (b), (c) A-9
§ 7105. Powers and duties of the Authority
* * * * * * *
(a)(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
* * * * * * *
§ 7114. Representation rights and duties
* * * * * * *
(a)(2) An exclusive representative of an appropriate unit in an agency shall
be given the opportunity to be represented at-
* * * * * * *
(B) any examination of an employee in the unit by a representative of the
agency in connection with an investigation if-
(i) the employee reasonably believes that the examination may result in
disciplinary action against the employee; and
(ii) the employee requests representation.
* * * * * * *
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * *
(8) to otherwise fail or refuse to comply with any provision of this
chapter.
* * * * * * * § 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by any person with
having engaged in or engaging in an unfair labor practice, the General
Counsel shall investigate the charge and may issue and cause to be served
upon the agency or labor organization a complaint. In any case in which the
General Counsel does not issue a complaint because the charge fails to state
an unfair labor practice, the General Counsel shall provide the person
making the charge a written statement of the reasons for not issuing a
complaint.
(2) Any complaint under paragraph (1) of this subsection shall contain a
notice-
(A) of the charge;
(B) that a hearing will be held before the Authority (or any member thereof
or before an individual employed by the authority and designated for such
purpose); and
(C) of the time and place fixed for the hearing.
(3) The labor organization or agency involved shall have the right to file
an answer to the original and any amended complaint and to appear in person
or otherwise and give testimony at the time and place fixed in the complaint
for the hearing.
(4)(A) Except as provided in subparagraph (B) of this paragraph, no
complaint shall be issued on any alleged unfair labor practice which
occurred more than 6 months before the filing of the charge with the
Authority.
(B) If the General Counsel determines that the person filing any charge was
prevented from filing the charge during the 6-month period referred to in
subparagraph (A) of this paragraph by reason of-
(i) any failure of the agency or labor organization against which the charge
is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged unfair labor
practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if the charge was
filed during the 6-month period beginning on the day of the discovery by the
person of the alleged unfair labor practice.
(5) The General Counsel may prescribe regulations providing for informal
methods by which the alleged unfair labor practice may be resolved prior to
the issuance of a complaint.
(6) The Authority (or any member thereof or any individual employed by the
Authority and designated for such purpose) shall conduct a hearing on the
complaint not earlier than 5 days after the date on which the complaint is
served. In the discretion of the individual or individuals conducting the
hearing, any person involved may be allowed to intervene in the hearing and
to present testimony. Any such hearing shall, to the extent practicable, be
conducted in accordance with the provisions of subchapter II of chapter 5 of
this title, except that the parties shall not be bound by rules of evidence,
whether statutory, common law, or adopted by a court. A transcript shall be
kept of the hearing. After such a hearing the Authority, in its discretion,
may upon notice receive further evidence or hear argument.
(7) If the Authority (or any member thereof or any individual employed by
the Authority and designated for such purpose) determines after any hearing
on a complaint under paragraph (5) of this subsection that the preponderance
of the evidence received demonstrates that the agency or labor organization
named in the complaint has engaged in or is engaging in an unfair labor
practice, then the individual or individuals conducting the hearing shall
state in writing their findings of fact and shall issue and cause to be
served on the agency or labor organization an order-
(A) to cease and desist from any such unfair labor practice in which the
agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement
in accordance with the order of the Authority and requiring that the
agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with
section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A)
through (C) of this paragraph or such other action as will carry out the
purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay
may be required of the agency (as provided in section 5596 of this title) or of
the labor organization, as the case may be, which is found to have engaged in
the unfair labor practice involved.
(8) If the individual or individuals conducting the hearing determine that
the preponderance of the evidence received fails to demonstrate that the
agency or labor organization named in the complaint has engaged in or is
engaging in an unfair labor practice, the individual or individuals shall
state in writing their findings of fact and shall issue an order dismissing
the complaint.
(b) In connection with any matter before the Authority in any proceeding
under this section, the Authority may request, in accordance with the
provisions of section 7105(i) of this title, from the Director of the Office
of Personnel Management an advisory opinion concerning the proper
interpretation of rules, regulations, or other policy directives issued by
the Office of Personnel Management.
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
(b) The Authority may petition any appropriate United States court of
appeals for the enforcement of any order of the Authority and for
appropriate temporary relief or restraining order.
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * *
[1] Pertinent statutory provisions are set forth in Addendum (Add.) A to
this brief.
[2] As explained in footnote 1 of petitioners' brief (Petitioners' (Pet.)
Brief at 4 n.1), the Authority's decision below involved two separate ULP cases.
Petitioners are not challenging the decision regarding Case No. WA-CA-80156;
therefore it is not discussed herein.
[3] This statutory provision extends to federal employees the right to union
representation recognized for private sector employees by the Supreme Court's
decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten).
[4] Subsequent to the ALJ's recommended decision, the Authority and Eleventh
Circuit determinations were affirmed by the Supreme Court in NASA.
[5] The Agency's challenge to the ALJ's recommended remedy, which was
rejected by the Authority (App. 169), is not raised by petitioners here. Pet.
Brief at 6 n.2.
[6] Add. B. Petitioners' statutory addendum does not include this provision
of the IG Act.