No. 98-369
In the Supreme Court of the United States
October Term, 1998
_______________________________
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C.,
AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
OFFICE OF THE INSPECTOR GENERAL, PETITIONERS
v.
FEDERAL LABOR RELATIONS AUTHORITY, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
_______________________________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT
FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH*
Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
(202) 482-6620
*Counsel of Record
QUESTIONS PRESENTED
1. Whether an Office of the Inspector General investigator is properly
considered a "representative of the agency" for purposes of the representation
rights set forth in 5 U.S.C. 7114(a)(2)(B).
2. Whether the agency headquarters, in this case the National Aeronautics and
Space Administration, is responsible for an unfair labor practice committed by
the agency's Office of the Inspector General as a result of its non-compliance
with 5 U.S.C. 7114(a)(2)(B).
TABLE OF CONTENTS
OPINIONS BELOW
JURISDICTION
STATUTORY PROVISIONS INVOLVED
STATEMENT
A. Background - The Federal Service Labor-Management Relations Statute
B. The Instant Case
1. Factual Background
2. The Administrative Law Judge's Decision
3. The Authority's Decision
a. The NASA-OIG Investigator Acted as a "Representative of the Agency"
b. NASA-OIG Committed a ULP for which NASA-HQ Was Also Responsible
4. The Court of Appeals' Decision in the Instant Case
SUMMARY OF ARGUMENT
ARGUMENT
I. An Office of the Inspector General Investigator Is
Properly Considered a "Representative of the Agency"
within the Meaning of 5 U.S.C. 7114(a)(2)(B)
A. The Authority's Interpretation of the Statute Is
Consistent with the Language and Purpose of the
Statute and Is Entitled to Deference
B. Petitioners' Focus on the Collective Bargaining
Relationship Has No Foundation in the Statute or
in Case Law and Is Inconsistent with the Intent
of the Statute
1. Neither the Statute nor Case Law Restricts
Statutory Rights Based upon the Collective Bargaining
Relationship in the Manner Suggested by Petitioners
2. Neither the Weingarten Case Nor the Manner in
which It Has Evolved Restricts the Representation
Right Based upon a Collective Bargaining Relationship
C. Interpreting the Phrase "Representative of the
Agency" to Include Office of the Inspector
General Investigators Does Not Conflict with
the IG Act or OIG Investigative Functions
1. Review of the Statutory Language and
Legislative History of the IG Act and the
Language of Section 7114(a)(2)(B) Reveals
that the Provisions Do Not Conflict
a. Statutory Language
b. Legislative History
2. Compliance with Section 7114(a)(2)(B) Does
Not Unduly Restrain the Conduct of OIG Investigations
a. The Authority's Interpretation of the Union Representative's Role
b. Criminal Investigations and Emergency
Situations
II. NASA-HQ, in Addition to NASA-OIG, Is Properly
Responsible for the ULP Committed by NASA-OIG
TABLE OF AUTHORITIES
Cases:
Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio and Ogden Air Logistics Center, Hill Air
Force Base, Utah, 46 FLRA 1184 (1993)
V
Page
Cases-Continued
American Fed'n of Gov't Employees and U.S. Air
Force, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 4 FLRA 272 (1980)
American Fed'n of Gov't Employees, Fed.
Prison Council 33 and U.S. Dep't of Justice, Fed.
Bureau of Prisons, 51 FLRA 1112 (1996)
American Fed'n of Gov't Employees, Nat'l Immigration &
Naturalization Serv. Council and U.S. Dep't of Justice,
Immigration & Naturalization Serv., 8 FLRA 347 (1982),
rev'd on other grounds, United States Dep't of
Justice, Immigration & Naturalization Serv. v. FLRA,
709 F.2d 724 (D.C. Cir. 1983)
American Fed'n of State, County and Municipal Employees,
Local 3097 and United States Dep't of Justice,
Justice Management Div., 42 FLRA 412 (1991)
Austin Co., 101 NLRB 1257 (1952)
Bureau of Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 89 (1983)
Bureau of Prisons, Office of Internal Affairs, Washington,
D.C. and Phoenix, Ariz., 52 FLRA 421 (1996))
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)
Department of Defense, Defense Criminal Investigative
Serv.; Defense Logistics Agency and Defense
Contract Admin. Servs. Region, New York,
28 FLRA 1145 (1987), enforced sub nom. Defense Criminal
Investigative Serv., Dep't of Defense v.
FLRA, 855 F.2d 93 (3d Cir. 1988)
Defense Logistics Agency, Defense Depot Tracy, Tracy,
Cal., 39 FLRA 999 (1991)
Department of Health & Human Servs., Social Security Admin.,
Baltimore, Md. and Social Security Admin., Region X,
Seattle, Wash., 39 FLRA 298 (1991)
Department of the Treasury, Internal Revenue Service,
Jacksonville District and Department of the Treasury,
Internal Revenue Service, Southeast Regional Office
of Inspection, 23 FLRA 876 (1986)
Department of Veterans Affairs, Veterans Affairs Med.
Ctr., Jackson, Miss., 48 FLRA 787 (1993)
Federal Aviation Admin., New England Region,
Burlington, MA, 35 FLRA 645 (1990)
Federal Bureau of Prisons, Office of Internal Affairs,
Washington, D.C., 54 FLRA (No. 133) 1502
(November 20, 1998)
Federal Prison Sys., Fed. Correctional Inst., Petersburg
Va. And AFGE, 25 FLRA 210 (1987)
FLRA v. U.S. Dep't of Justice, Washington, D.C.,
U.S. Dep't of Justice, Immigration and
Naturalization Serv., New York Dist., N.Y.,
and Dep't of Justice, Office of the Inspector
General, Washington, D.C., 137 F.3d 683 (2d Cir. 1998),
petition for cert. filed 67 U.S.L.W. 3302
(Oct. 22, 1998)
Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990)
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989)
Headquarters, Defense Logistics Agency, Washington, D.C.,
22 FLRA 875 (1986)
Headquarters, U.S. Air Force, Washington, D.C. and 375th
Combat Support Group, Scott Air Force Base, Ill.,
44 FLRA 117 (1992), rev. denied sub nom. Headquarters,
U.S. Air Force, Washington, D.C. v. FLRA, 10 F.3d 13
(D.C. Cir. 1993)
Hudgens v. NLRB, 424 U.S. 507 (1976)
Internal Revenue Serv., Wash., D.C. v. FLRA, 671 F.2d 560
(D.C. Cir. 1982)
Marine Corps Logistics Base, Barstow, Cal.,
45 FLRA 1332 (1992)
Morton v. Mancari, 417 U.S. 535 (1974)
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)
United Public Workers of America v. Mitchell, 330 U.S. 75
(1947)
United States Dep't of Justice v. FLRA, 39 F.3d 361
(D.C. Cir. 1994)
United States Dep't of Justice, Bureau of Prisons, Safford,
Ariz., 35 FLRA 431 (1990)
United States Nuclear Regulatory Comm'n v. FLRA, 25 F.3d 229
(4th Cir. 1994)
United States Postal Serv. and American Postal Workers
Union, East Bay Area Local, 303 NLRB 463 (1991),
enforced sub nom. United States Postal Serv. v. NLRB,
969 F.2d 1064 (D.C. Cir. 1993)
United States Postal Serv. and Eddie L. Jenkins,
241 NLRB 141 (1979)
United States Postal Serv. and Ralph Bell,
288 NLRB 864 (1988)
United States Postal Serv. v. NLRB, 969 F.2d 1064
(D.C. Cir. 1992)
U.S. Department of Justice, Washington, D.C. and U.S.
Immigration and Naturalization Serv., Northern Region,
Twin Cities, Minnesota and Office of Inspector General,
Washington, D.C. and Office of Professional
Responsibility, Washington, D.C., 46 FLRA 1526 (1993),
rev'd in part, United States Dep't of Justice v.
FLRA, 39 F.3d 361 (D.C. Cir. 1994)
U.S. Department of Veterans Affairs, Washington, D.C.,
Veterans Admin. Med. Ctr., Amarillo, Texas,
42 FLRA 333 (1991), enforcement denied on other grounds U.S. Department
of Veterans Affairs, Washington, D.C., Veterans
Admin. Med. Ctr., Amarillo, Texas v. FLRA
1 F.3d 19 (D.C. Cir. 1993)
U.S. Dep't of Veterans Affairs, Washington, D.C.,
48 FLRA 991 (1993)
U.S. Immigration and Naturalization Serv., N.Y.
Dist. Office, N.Y., N.Y., 46 FLRA 1210 (1993),
review denied sub nom. American Fed'n of Gov't
Employees v. FLRA, 22 F.3d 1184 (D.C. Cir. 1994)
Veterans Admin. Med. Ctr., Long Beach,
Cal., 41 FLRA 1370 (1991), aff'd sub nom.
Department of Veterans Affairs Med. Ctr. v. FLRA,
16 F.3d 1526 (9th Cir. 1994)
Statutes:
Federal Service Labor-Management Relations Statute,
5 U.S.C. 7101-7135 (1994 & Supp. II 1996)
5 U.S.C. 7103(a)(3)
5 U.S.C. 7103(a)(12)
5 U.S.C. 7105
5 U.S.C. 7105(a)(1)
5 U.S.C. 7105(a)(2)
5 U.S.C. 7105(a)(2)(I)
5 U.S.C. 7106(a)(2)(D)
5 U.S.C. 7114
5 U.S.C. 7114(a)(2)
5 U.S.C. 7114(a)(2)(A)
5 U.S.C. 7114(a)(2)(B)
5 U.S.C. 7114(b)(4)
5 U.S.C. 7116(a)(1)
5 U.S.C. 7116(a)(8)
5 U.S.C. 7123
5 U.S.C. 7123(c)
5 U.S.C. 555(b)
28 U.S.C. 535(a)
Inspector General Act of 1978, 5 U.S.C. App. 3 §§ 1-12
(1994 & Supp. II 1996)
5 U.S.C. App. 3 § 2
5 U.S.C. App. 3 § 2(1)
5 U.S.C. App. 3 § 2(2)
5 U.S.C. App. 3 § 2(3)
5 U.S.C. App. 3 § 3(a)
5 U.S.C. App. 3 § 3(d)(12)
5 U.S.C. App. 3 § 4(d)
5 U.S.C. App. 3 § 5(a)(1)
5 U.S.C. App. 3 § 5(b)(1)
5 U.S.C. App. 3 § 6(a)(1)
5 U.S.C. App. 3 § 6(a)(3)
National Labor Relations Act, 29 U.S.C. 151 et seq. (1994)
Miscellaneous:
124 Cong. Rec. 29,184 (1978), reprinted in Subcommittee on Postal Personnel and
Modernization of the Committee on Post Office and Civil Service, 96th Cong., 1st
Sess., Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978
S. Rep. No. 95-1071, 95th Cong., 2d Sess., reprinted in
1978 U.S.C.C.A.N. 2676 (1978)
Eleanor Hill, "A Message from the PCIE Vice-Chair", The
Journal of Public Integrity, Fall/Winter 1998, at 5
Vicky L. Powell, "Why Isn't Law Enforcement Authority in
in the Inspector General Act?", The Journal of Public
Inquiry, Spring/Summer 1998, at 33
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-369
_______________________________
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C.,
AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
OFFICE OF THE INSPECTOR GENERAL,
PETITIONERS
v.
FEDERAL LABOR RELATIONS AUTHORITY, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
_______________________________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT
FEDERAL LABOR RELATIONS AUTHORITY
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-20a)[1] is reported at 120
F.3d 1208.[2] The decision and order of the Federal Labor Relations
Authority (Pet. App. 21a-57a) is reported at 50 FLRA 601.
JURISDICTION
The judgment of the court of appeals was entered on September 2, 1997. Pet.
App. 2a. A petition for rehearing was denied on March 31, 1998. Id. at
76a. On June 22, 1998, Justice Kennedy extended the time for filing a
petition for a writ of certiorari to July 29, 1998, and on July 24, 1998,
further extended the time for filing to August 28, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant portions of the Federal Service Labor-Management Relations Statute,
5 U.S.C. 7101-7135 (1994 & Supp. II 1996), and the Inspector General Act of
1978, 5 U.S.C. App. 3 §§ 1-12 (1994 & Supp. II 1996) are reproduced in the
appendix to petitioners' brief. Pet. Br. App. 1a-91a.
STATEMENT
A. Background - The Federal Service Labor-Management Relations Statute
The Federal Service Labor-Management Relations Statute (Statute) governs
labor-management relations in the federal service. Under the Statute, the
responsibilities of the Federal Labor Relations Authority (Authority)
include adjudicating unfair labor practice (ULP) complaints, negotiability
disputes, bargaining unit and representational election matters, and
resolving exceptions to arbitration awards. See 5 U.S.C. 7105(a)(1), (2);
see also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93
(1983) (BATF). The Authority thus ensures compliance with the statutory
rights and obligations of federal employees, labor organizations that
represent such federal employees, and federal agencies. The Authority is
further empowered to take such actions as are necessary and appropriate to
effectively administer the Statute's provisions. See 5 U.S.C. 7105(a)(2)
(I); BATF, 464 U.S. at 92-93.
The Authority performs a role analogous to that of the National Labor
Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93.
Congress intended the Authority, like the NLRB, "to develop specialized
expertise in its field of labor relations and to use that expertise to give
content to the principles and goals set forth in the [Statute]." Id. at 97.
The Statute makes it a ULP for a federal agency employer to, among other
things, "interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under [the Statute]," or "otherwise fail or refuse
to comply with any provision" of the Statute. 5 U.S.C. 7116(a)(1) and (8).
The instant case involves a ULP under section 7116(a)(1) and (8) and
concerns the Authority's interpretation of the representational right set
forth in section 7114(a)(2)(B) of the Statute.
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 discipline may
result from the examination and the employee requests representation. 5
U.S.C. 7114(a)(2)(B). This statutory provision extends to federal employees
the right to union representation provided in the private sector by the NLRB
through its interpretation of the National Labor Relations Act, 29 U.S.C.
151 et seq. (1994) (NLRA), and the Supreme Court's decision in NLRB v. J.
Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten). See 124 Cong. Rec.
29,184 (1978), reprinted in Subcommittee on Postal Personnel and
Modernization of the Committee on Post Office and Civil Service, 96th Cong.,
1st Sess., Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 926
(1979) (Legis. Hist.) (Congressman Udall explained that the House bill
provisions that led to the enactment of section 7114(a)(2)(B) were intended
to reflect the Supreme Court's decision in Weingarten); Internal Revenue
Serv., Wash., D.C. v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982)(same).
Although representational rights under section 7114(a)(2)(B) and Weingarten
were intended to be similar, Congress also recognized that the right to
representation might evolve differently in the private and federal sectors,
and that NLRB decisions would not necessarily be controlling in the federal
sector. See Legis. Hist. at 824; U.S. Immigration & Naturalization Serv.,
N.Y. Dist. Office, N.Y., N.Y., 46 FLRA 1210, 1218 (1993) (INS, N.Y Dist.),
review denied sub nom. American Fed'n of Gov't Employees v. FLRA, 22 F.3d
1184 (D.C. Cir. 1994). Moreover, in the federal sector the Weingarten
representation right is expressly codified in the Statute, whereas the same
right in the private sector inheres in the employee's guarantee to act in
concert for mutual aid and protection. See Weingarten, 420 U.S. at 256,
260.
In interpreting the statutory representation right set forth in section
7114(a)(2)(B), the Authority has determined that it considers an Office of
the Inspector General (OIG) agent to be a "representative of the agency."
Pet. App. 37a, 40a. As such, when a bargaining unit employee properly seeks
and is denied union representation in an OIG investigation, section 7114(a)
(2)(B) is violated and a ULP has occurred. See id. at 48a.
B. The Instant Case
1. Factual Background
This ULP case came before the Authority due to events that occurred at the
George C. Marshall Space Flight Center (MSFC), a component of the National
Aeronautics and Space Administration, Headquarters (NASA-HQ), located in
Huntsville, Alabama. Pet. App. 23a. NASA-HQ is headquartered in
Washington, D.C. Id. The National Aeronautics and Space Administration,
Office of the Inspector General (NASA-OIG), also headquartered in
Washington, D.C., has NASA-OIG offices located at MSFC as well as at other
NASA-HQ components. Id. The NASA-OIG investigators assigned to MSFC are
subject to the direction of individuals in the NASA-OIG chain of command and
are not under the supervision of any MSFC officials. Id. The NASA
Inspector General reports to the Administrator of NASA-HQ--the head of the
agency. Id.
In 1993, NASA-OIG received information from the Federal Bureau of
Investigation (FBI) regarding possible illicit activities by an MSFC
employee, P.[3] Id. P was linked to documents that allegedly posed threats
to P's co-workers at MSFC. Id. NASA-OIG relayed this information to a
NASA-OIG investigator at MSFC. Id.
The NASA-OIG investigator proceeded to conduct an investigation and
contacted P to arrange an interview.[4] Id. at 23a-24a. P requested that
his attorney and a union representative be present during the examination,
and the NASA-OIG investigator agreed. Id.
The examination took place at the office of P's attorney. Id. at 24a.
Those present included the NASA-OIG investigator, another NASA-OIG
investigator working out of MSFC, P's attorney, and a union representative.
Id. The NASA-OIG investigator established ground rules for the conduct of
the proceeding that provided, among other things, that the union
representative was present as a "witness"; that as union representative, he
would not be allowed to interrupt the examination; and that the union
representative could, in the future, be called as a witness for the
government. Id. The union representative twice objected to this limitation
on his role as union representative and stated that he was attending the
interview in order to represent the interests of the union, the bargaining
unit, and P. Id. The NASA-OIG investigator responded by threatening to
cancel the interview and move it elsewhere if the union representative did
not "maintain himself" and, at several points during the interrogation, the
NASA-OIG investigator challenged the union representative's representational
actions. Id. at 24a-25a.
2. The Administrative Law Judge's Decision
The complaint in this case, based upon the charge filed by Local 3434 of the
American Federation of Government Employees (AFGE)--the exclusive
representative of bargaining unit employees at MSFC--alleged that NASA-HQ
and NASA-OIG (collectively "petitioners" or the "Agency") violated section
7116(a)(1) and (8) of the Statute by failing to allow the union
representative to participate in the examination of P, in contravention of
section 7114(a)(2)(B) of the Statute. Pet. App. 22a. A hearing was held
before an Administrative Law Judge (ALJ) on the complaint. Pet. App. 59a.
The ALJ subsequently issued a decision finding that the NASA-OIG
investigator's actions interfered with the union's right to take an active
role during an examination of an employee and therefore violated section
7114(a)(2)(B). Pet. App. 25a, 64a. In making this decision, the ALJ found
that the NASA-OIG investigator was a "representative of the agency" within
the meaning of section 7114(a)(2)(B). Id. The ALJ found that NASA-OIG
committed a ULP under section 7116(a)(1) and (8) of the Statute. Pet. App.
26a, 71a. Finding insufficient record evidence to show that NASA-HQ was
responsible for the violation, the ALJ recommended that the complaint
against NASA-HQ be dismissed. Id.
3. The Authority's Decision
In its ULP decision and order, the Authority concluded that the NASA-OIG
investigator's actions during the course of the investigation of a
bargaining unit employee violated the Statute.[5] Id. at 48a. The
Authority also reaffirmed that the NASA-OIG investigator was a
"representative of the agency" within the meaning of section 7114(a)(2)(B)
of the Statute. Id. at 40a. Finally, the Authority found that both NASA-HQ
and NASA-OIG were responsible for NASA-OIG's violation of the Statute. Id.
at 48a-49a. Accordingly, the Authority issued an appropriate remedial
order. Id. at 52a-53a.
a. The NASA-OIG Investigator Acted as a "Representative of the Agency"
The Authority based its finding that the NASA-OIG investigator was acting as
a "representative of the agency," NASA-HQ, on three fundamental conclusions:
(1) the term "representative of the agency" under section 7114(a)(2)(B) should
not be so narrowly construed as to exclude management personnel employed in
other subcomponents of the agency; (2) the statutory independence of agency OIGs
is not determinative of whether the investigatory interviews implicate section
7114(a)(2)(B) rights; and (3) section 7114(a)(2)(B) and the [Inspector General]
Act[6] are not irreconcilable.
Id. at 40a-41a. The Authority reached these conclusions only after extensively
analyzing relevant case law.
In Department of Defense, Defense Criminal Investigative Service; Defense
Logistics Agency and Defense Contract Administration Services Region, New
York, 28 FLRA 1145, 1149 (1987) (DOD, DCIS), enforced sub nom. Defense
Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93
(3d Cir. 1988) (DCIS), the Authority had established that an OIG
investigator is considered to be a "representative of the agency" within the
meaning of section 7114(a)(2)(B). Pet. App. 37a. Although the Third
Circuit affirmed this conclusion in DCIS, the D.C. Circuit rejected the
Authority's interpretation of section 7114(a)(2)(B) as it pertained to an
OIG representative in United States Department of Justice v. FLRA, 39 F.3d
361, 365 (D.C. Cir. 1994) (DOJ). Pet. App. 37a.[7]
In the instant case, the Authority carefully reviewed the factual background
and findings in both DCIS and DOJ, to include both courts' analyses of the
statutory language of section 7114(a)(2)(B) as well as the language and
legislative history of the IG Act. Pet. App. 37a-40a. After its review of
the two cases, the Authority reaffirmed its holding in DOD, DCIS and agreed
with the Third Circuit's DCIS reasoning by concluding that the NASA-OIG
investigator was acting as a "representative of the agency" under section
7114(a)(2)(B). Pet. App. 40a-41a.
The Authority first considered which management personnel are obligated to
recognize the section 7114(a)(2)(B) representational right, and concluded,
consistent with DCIS, that the statutory right is not "dependent upon the
organizational entity within the agency to whom the person conducting the
examination reports." Id. at 41a. As such, the Authority determined that
the phrase "representative of the agency" should not be so narrowly
construed as to exclude management personnel employed in different
components or subcomponents of the agency, such as the OIG.[8] Id. at 41a-
42a. "If such were the case, agencies could abridge bargaining unit rights
and evade statutory responsibilities under section 7114(a)(2)(B), and thus
thwart the intent of Congress, by utilizing personnel from other
subcomponents (such as the OIG) to conduct investigative interviews of
bargaining unit employees." Id. n.22.
Next, the Authority analyzed the statutory independence of OIGs, pursuant to
the IG Act, and concluded that this independence does not necessarily exempt
OIG investigatory examinations from the provisions of section 7114(a)(2)(B).
Id. at 42a. Although recognizing the OIG's statutory independence, the
Authority noted that the independence is not absolute--and is nonexistent
when the OIG conducts an interview of an employee concerning work-related
misconduct, and, as in the instant case, reports the findings to the agency
for possible disciplinary action. Id.
The Authority then considered the statutory provisions and legislative
histories of section 7114(a)(2)(B) and the IG Act and concluded that the two
are not incompatible. Id. at 43a. First, the statutory language of the two
provisions revealed no inconsistencies. Id. at 44a. Second, despite the
recognized congressional intent that the OIG be independent from the agency,
the Authority found that the purpose of this independence is to insulate the
OIG from agency management pressure--not from compliance with federal labor
relations requirements. Id. at 45a. Third, based upon the limited
representational function of a union representative under section 7114(a)(2)
(B), and the benefits to the investigatory process that may result from
union presence, the Authority determined that compliance with section
7114(a)(2)(B) would not unduly restrain the conduct of OIG investigative
interviews. Id. at 46a-47a.
Finally, the Authority noted that even if the two statutes conflicted, it
found no congressional intent suggesting that either the Statute or the IG
Act is preemptive of the other. Id. at 47a. Thus, the Authority concluded
that the IG Act should not trump the Statute. Id. at 48a.
b. NASA-OIG Committed a ULP for which NASA-HQ Was Also Responsible
Because the conduct of the NASA-OIG investigator, as a "representative of
the agency," interfered with the rights of employees in another component of
the agency, the Authority decided that NASA-OIG violated the Statute. Id.
The Authority concluded that NASA-OIG was properly held responsible for
violating the Statute, notwithstanding the fact that NASA-OIG did not have a
collective bargaining relationship with the bargaining unit in this case.
This holding comports with well-established precedent that the Authority
will find a statutory violation when a component of an agency infringes upon
the protected rights of bargaining unit employees of another component of
the same agency. See Headquarters, Defense Logistics Agency, Washington,
D.C., 22 FLRA 875, 884 (1986) (DLA).[9] Pet. App. 48a.
The Authority disagreed, however, with the ALJ's recommendation to dismiss
the complaint against NASA-HQ. Id. at 49a. In reviewing the record
evidence, the Authority found that NASA-OIG, in its investigative role,
represents the interests of NASA-HQ and other NASA-HQ subcomponents. Id. at
50a. NASA-OIG shares investigative information with NASA-HQ and NASA-HQ
subcomponents, and such information is used as a basis for disciplinary
action. Id. In addition, the NASA Inspector General reports to, and is
under the supervision of, the Administrator of NASA-HQ. Id. (citing 5
U.S.C. App. 3 § 3(a)). Based upon these factors, and the Authority
precedent applying the DLA rationale to the actions of the parent agency and
a subcomponent, see U.S. Dep't of Veterans Affairs, Washington, D.C., 48
FLRA 991, 1000-01 (1993) (DVA), the Authority found NASA-HQ responsible for
a statutory violation based upon its failure to ensure that NASA-OIG comply
with the Statute. Pet. App. 50a.[10]
4. The Court of Appeals' Decision in the Instant Case
The Eleventh Circuit enforced the Authority's ULP decision and order and
denied the Agency's petition for review. Pet. App. 20a. The court agreed
with essentially every aspect of the Authority's decision.
Deferring to the Authority's interpretation of the Statute, the court found
no error in the Authority's determination that an OIG agent is a
"representative of the agency" under section 7114(a)(2)(B). Id. at 9a.
NASA-OIG had argued to the court that the rights and duties set forth in
section 7114(a)(2)(B) derive from the collective bargaining relationship, of
which NASA-OIG is not a part. Id. at 8a-9a. However, the Eleventh Circuit,
like the Authority and the Third Circuit, rejected this argument. Id. at
9a-11a.
The court found that reading such a requirement into section 7114(a)(2)(B)
"would undermine Congress's purpose in enacting this section." Id. at 10a.
Noting that section 7114(a)(2)(B) "focuses on the risk of adverse employment
action to the employee," the court concluded that "[b]ecause this risk does
not disappear or diminish significantly when an investigator is employed in
an agency component that has no collective bargaining relationship with the
employee's union, we see no reason why the protection afforded by Congress
should be eliminated in such situations." Id. Because the Authority had
determined that NASA-OIG performs an investigatory role on behalf of NASA-HQ
and its components, the court concluded that the NASA-OIG investigator was a
"representative of the agency." Id. at 11a.
With regard to the Authority's interpretation of the IG Act, the court did
not defer to the Authority, id. at 5a, but nevertheless agreed with the
Authority's conclusions and its reasoning, id. at 12a-15a. The court found
nothing in the text or legislative history of the IG Act "to justify
exempting OIG investigators from compliance with the federal Weingarten
provision." Id. at 12a.
In considering the congressional intent that OIGs be independent from the
agencies they investigate, the court found that "the presence of a union
representative at OIG interviews, as mandated by federal statute," is not
the "type of interference from which Congress sought to insulate OIG
investigators." Id. at 14a. The court explained that it did not foresee a
union representative hindering an OIG agent's investigative process. Id.
It thus concluded that compliance with section 7114(a)(2)(B) is not
"sufficiently inconsistent with the IG Act to justify an implied exemption
for OIG investigators." Id. at 15a. Without such a conflict, the court
could not justify ruling that the IG Act "impliedly" repealed section
7114(a)(2)(B). Id. (citing Morton v. Mancari, 417 U.S. 535, 551 (1974)
(Morton). Therefore, the court concluded that NASA-OIG committed a ULP
because the NASA-OIG investigator was a "representative of the agency"
within the meaning of section 7114(a)(2)(B) and the agent's conduct was in
violation of the Statute. Id.
After finding that NASA-OIG violated the Statute, the court then agreed with
the Authority's determination that NASA-HQ, as parent agency for NASA-OIG,
was also responsible for the section 7114(a)(2)(B) violation. Id. at 19a.
The court acknowledged the Authority's holdings finding a parent agency
responsible for a statutory violation by a subcomponent of the agency. Id.
at 18a.
The court analyzed the Authority's finding that, because NASA-HQ "failed to
ensure that NASA-OIG complied with § 7114(a)(2)(B)," it was guilty of a ULP.
Id. Although the court recognized NASA-OIG's role as an "'independent and
objective' unit" of NASA-HQ, pursuant to 5 U.S.C. App. 3 § 2, it also
recognized that NASA-OIG "is subject to the general supervision of the
agency head." Id. at 19a. Moreover, the court highlighted the fact that
the NASA-OIG investigator "ordered the employee to answer questions or face
dismissal," and this suggested that the NASA-OIG investigator was acting on
behalf of NASA-HQ. Id. at 19a. The court therefore found no error in the
Authority's determination. Id.[11]
SUMMARY OF ARGUMENT
I. The Authority correctly held that the NASA-OIG investigator was a
"representative of the agency" within the meaning of section 7114(a)(2)(B) of
the Statute. The Authority's determination on this point, which is consistent
with the language and purpose of the Statute, is entitled to deference because
it rests upon a reasonable interpretation of the Statute administered by the
Authority.
Section 7114(a)(2)(B) codifies important representational rights for federal
sector employees that correspond to the rights private sector employees
enjoy under this Court's Weingarten decision. These rights are triggered
during investigative interviews conducted by a "representative of the
agency" when a bargaining unit employee reasonably fears disciplinary
action.
It is undisputed in this case that a bargaining unit employee, who
reasonably feared discipline, was denied effective union representation
during an interrogation by a NASA-OIG investigator. It is also clear that
based on information gathered by the OIG investigator, the employee was
subsequently disciplined by his superiors at MSFC, a component of NASA.
Further, there is no question that NASA-HQ is an "agency," as defined in the
Statute. The inquiry here concerns only whether the NASA-OIG investigator
should be considered a "representative of the agency" for the purposes of
section 7114(a)(2)(B). The Authority has determined that the phrase
"representative of the agency" should not be so narrowly construed as to
exclude management personnel, such as the OIG, who are located in other
components of the agency. Nothing in the Statute's language contradicts the
Authority's determination in this regard, and a conclusion to the contrary
would permit agencies to circumvent protected rights by utilizing personnel
from other subcomponents of the agency to conduct investigative interviews
of bargaining unit employees.
This logical interpretation of the Statute has been affirmed by the Third
Circuit and the court below. These courts have noted that such an
interpretation of the Statute is justified given the purposes of section
7114(a)(2)(B), its focus on the risk of discipline, and the fact that the
results of such interrogations are routinely shared with the agency entity
capable of disciplining the employee interviewed, as NASA-OIG did in this
case.
Petitioners assert that rights under section 7114(a)(2) apply only to the
management entity that engages in collective bargaining with the union at
issue and note in this regard that NASA-OIG and NASA-HQ have no direct
collective bargaining relationship with the unit representing the employee
in this case. Petitioners claim that the Authority has interpreted the
phrase "representative of the agency" in a manner that is inconsistent with
both the language and purposes of the Statute and in a manner inconsistent
with the way in which the Weingarten case has been interpreted in the
private sector. Both of these assertions are incorrect.
The language of the Statute, the policies behind section 7114(a)(2)(B), and
the case law interpreting these two directly contradict petitioners'
argument that section 7114(a)(2)(B) rights apply only to the management
entity that engages in collective bargaining with the union at issue. The
express language of section 7114(a)(2)(B) in no way restricts the phrase
"representative of the agency" to those acting directly for the management
entity engaged in the collective bargaining relationship with the union. To
the contrary, and as the Third Circuit noted, section 7114(a)(2)'s express
reference to the terms "bargaining unit" and "agency" support the
Authority's broader interpretation of the Statute. Further, the policy
reasons supporting the protection of bargaining unit employees' section
7114(a)(2) rights are directly implicated regardless of whether the agency
official involved is assigned to the management entity having a collective
bargaining relationship with the unit. Finally, neither the Authority's
case law, nor judicial review interpreting the same, requires the existence
of a collective bargaining relationship between the agency official and the
bargaining unit employee as a necessary element for compliance with the
requirements of the Statute.
Also, the Weingarten decision has not been interpreted as being restricted
to the collective bargaining relationship. Weingarten's progeny establish
that the core of the Weingarten right is the concern about the risk to the
employee of disciplinary action because of the employee's participation in
the interview. The Authority's case-specific determinations of the section
7114(a)(2)(B) right are consistent with Weingarten. Significantly, both the
National Labor Relations Board and the United States Court of Appeals for
the District of Columbia have concluded that the Weingarten right is
properly applied in investigations by Postal Service Inspectors, who serve
under the auspices of the IG Act, when conducting investigations of alleged
criminal activity by bargaining unit employees.
Petitioners assert that the representational requirements of section 7114(a)
(2)(B), as interpreted by the Authority, conflict with the independence
granted the OIG by the IG Act. However, as the Authority, the Third
Circuit, and the court below have noted, nothing in the IG Act justifies
exempting OIG investigators from the requirements of section 7114(a)(2)(B).
Rather, the legislative history of the IG Act reveals that the purpose of
the OIG's independence was to insulate the OIG from agency management
pressure, not to insulate the OIG from compliance with the federal labor
relations laws.
Petitioners fail to point to any specific provision of the IG Act in
conflict with the requirement of affording Weingarten protection to
bargaining unit employees when interviewed by OIGs. Indeed, petitioners
acknowledge that employees are entitled to attorney representation during
OIG interviews. Given this Court's Morton v. Mancari principle that the
proper course is to give effect to both laws while preserving each law's
sense and purpose, the Authority's reconciliation of the two statutes is
correct.
II. The Authority's determination that NASA-HQ is responsible, along with
NASA-OIG, for the violation of the representation rights involved here is
consistent with its finding that the NASA-OIG investigator was a
"representative of the agency" within the meaning of section 7114(a)(2)(B).
The NASA-OIG ultimately answers to and is under the general supervision of
NASA-HQ, which failed to ensure that its OIG complied with the Statute's
requirements. Holding NASA-HQ responsible for the actions of NASA-OIG in
these circumstances effectuates the purpose of the Statute and comports with
Authority precedent.
ARGUMENT
I. An Office of the Inspector General Investigator Is Properly Considered a
"Representative of the Agency" within the Meaning of 5 U.S.C. 7114(a)(2)(B)
A. The Authority's Interpretation of the Statute Is Consistent with the
Language and Purpose of the Statute and Is Entitled to Deference
At issue in this case is the proper interpretation and application of
section 7114(a)(2)(B) of the Statute. The statutory language of section
7114(a)(2)(B) provides specific representational rights to bargaining unit
employees and their exclusive representatives: "[a]n exclusive
representative of an appropriate unit in an agency 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 discipline may result from the
examination and the employee requests representation. 5 U.S.C. 7114(a)(2)
(B).
Although the phrase "representative of the agency" is not specifically
defined in the Statute, one its key words--"agency"--is broadly defined as
"an Executive agency." 5 U.S.C. 7103(a)(3). It is undisputed, as it was
before the Authority, that NASA-HQ "is an 'agency' under 5 U.S.C. 7103(a)
(3)." Pet. App. 42a.[12] Given this controlling and expansive definition
of "agency," the only remaining appropriate inquiry, therefore, is who is a
"representative" of the NASA-HQ in this case. The Authority's conclusion
that the word "representative," or phrase "representative of the agency,"
includes management personnel in other subcomponents of the "agency" is
entirely consistent with the language of the Statute. In this regard,
nothing in the Statute suggests that an individual in the employ of either
the agency's headquarters or of another component of an agency is entitled
to ignore provisions in the Statute when dealing with bargaining unit
employees. Additionally, this construction is consistent with the purpose
and intent of Congress in enacting section 7114(a)(2)(B) of the Statute.
Congress intended through section 7114(a)(2)(B) for federal employees to
enjoy the same rights available to private sector employees under Weingarten
when they "are called upon to provide information that exposes them to the
risk of disciplinary action." Pet. App. 41a; see DCIS, 855 F.2d at 99.
When, as in this case, the interrogation is being conducted by an entity
within the "agency" which shares information obtained as a result of the
interrogation with the agency component for which the employee works, the
risk of disciplinary action and attendant need for representation are
evident. As expressed by the Third Circuit in DCIS, it is unlikely "that
Congress intended that union representation be denied to the employee solely
because the management representative is employed outside the bargaining
unit." 855 F.2d at 99.
The Authority observed that a conclusion to the contrary would allow
agencies to circumvent bargaining unit rights and evade section 7114(a)(2)
(B) responsibilities by utilizing personnel from other subcomponents to
conduct investigative interviews of bargaining unit employees. Id. Indeed,
the facts of this case support the reality of such circumvention of the
section 7114(a)(2)(B) responsibilities, because the record shows that NASA-
OIG investigators regularly provided the information obtained through
investigations to NASA-HQ and MSFC for disciplinary action. Pet. App. 50a.
Thus the Authority, exercising its discretion and expertise to interpret its
own organic statute, see 5 U.S.C. 7105(a)(2)(I), BATF, 464 U.S. at 92-93,
properly determined that "representative of the agency" in section 7114(a)
(2)(B) "should not be so narrowly construed as to exclude management
personnel employed in other subcomponents of the agency." Pet. App.
40a-41a. Where, as here, the Authority is directed to interpret the Statute
that it is charged with implementing, its conclusions are reviewed under the
standard set forth in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) (Chevron). See Fort Stewart Schools v.
FLRA, 495 U.S. 641, 644-45 (1990) (Fort Stewart Schools); see also 5 U.S.C.
7105. Under Chevron, if the relevant statutory language is clear, the Court
"must give effect to the unambiguously expressed intent of Congress." Fort
Stewart Schools, 495 U.S. at 645 (citing Chevron, 467 U.S. at 842-43). If,
on the other hand, the relevant statutory provisions are "silent or
ambiguous" on the point at issue, the Court should affirm the Authority's
conclusions if they are based on a "permissible construction of the [S]
tatute." Id. As intended, the Authority "exercise[d] its 'special function
of applying the general provisions of the [Statute] to the complexities' of
federal labor relations." BATF, 464 U.S. at 97 (citation omitted).
B. Petitioners' Focus on the Collective Bargaining Relationship Has No
Foundation in the Statute or in Case Law and Is Inconsistent with the Intent of
the Statute
As argued unsuccessfully to the Authority, as well as to the Second, Third,
and Eleventh Circuits,[13] petitioners assert that the phrase
"representative of the agency" in section 7114(a)(2)(B) refers only to those
in the employ of the "management entity that has a collective bargaining
relationship with a union." Pet. Br. 18. Under petitioners' interpretation
of the phrase, no agency official outside of the agency entity at the level
of exclusive recognition--not even management personnel in any other agency
component--is a "representative of the agency." In support of their
collective bargaining relationship claim, petitioners make two assertions,
both of which are false: first, the collective bargaining relationship is a
determinative factor in all section 7114 rights and in the definition of
collective bargaining (5 U.S.C. 7103(a)(12)); and second, limiting the
section 7114(a)(2)(B) right to disciplinary interviews conducted by the
management entity that has a collective bargaining relationship is
consistent with the Weingarten case and the manner in which the Weingarten
right has evolved in the private sector. Neither of these arguments finds
support in the Statute or established precedent. Furthermore, limiting the
term "representative of the agency" to only those individuals assigned to
the entity having a collective bargaining relationship with the union--MSFC
in this case--not only undermines the purpose of the Statute, but would
permit agencies to elude statutory responsibilities.
1. Neither the Statute nor Case Law Restricts Statutory Rights Based
upon the Collective Bargaining Relationship in the Manner Suggested by
Petitioners
Contrary to petitioners' claim, the existence of a collective bargaining
relationship is not a prerequisite for the invocation of protected rights
under section 7114(a)(2) of the Statute. Put differently, the absence of a
collective bargaining relationship between an agency official and a
bargaining unit employee is not a defense to what would otherwise be a
violation of section 7114(a)(2) of the Statute. The statutory provisions
referenced by petitioners that include, in effect, the phrase
"representative of the agency"--sections 7114(a)(2)(A),[14] 7114(a)(2)(B),
and section 7103(a)(12)--contain no language restricting established,
protected rights to the collective bargaining relationship. Moreover,
neither the Authority nor reviewing courts have so narrowly interpreted
these statutory provisions. Indeed, if such were the case, meaningful
protected rights could be easily avoided and enforced only in an arbitrary
manner.
To begin, the language of section 7114(a)(2) does not support petitioners'
assertion. As the DCIS court noted, section 7114(a)(2) "makes express
reference to the bargaining unit and appears to distinguish [the bargaining
unit] from the 'agency.'" 855 F.2d at 99. The Third Circuit explained that
in reference to "formal discussions" in section 7114(a)(2)(A) and
"examination" in section 7114(a)(2)(B), the Statute refers to the "union as
the 'exclusive representative of an appropriate unit' and to the employee as
the 'employee in the unit.'" Id. In contrast, the Statute characterizes
"management's representative as a 'representative of the agency.'" Id.
Accordingly, and contrary to petitioners' argument, it is entirely
consistent with the wording of the Statute to conclude that an employee in a
bargaining unit is entitled to the rights enunciated in section 7114(a)(2)
so long as the person conducting the formal discussion or interview is a
"representative of the agency"--irrespective of where the conducting
official and the bargaining unit employee are employed within the agency's
organization.
Review of the Authority's case law interpreting section 7114(a)(2) rights
demonstrates that the existence of a collective bargaining relationship is
unnecessary to effectuate the rights outlined therein. See Department of
Veterans Affairs, Veterans Affairs Med. Ctr., Jackson, Miss., 48 FLRA 787,
793 (1993) (VAMC, Miss.) ("the rights contained in section 7114(a)(2)(B) are
not tied to collective bargaining"). Furthermore, although not at issue in
this case, other rights established in section 7114 are not dependent upon
the collective bargaining relationship. U.S. Department of Veterans
Affairs, Washington, D.C., Veterans Admin. Med. Ctr., Amarillo, Tex., 42
FLRA 333, 341, 342 (1991), enforcement denied on other grounds U.S.
Department of Veterans Affairs, Washington, D.C., Veterans Admin. Med. Ctr.,
Amarillo, Texas v. FLRA, 1 F.3d 19 (D.C. Cir. 1993) (although VA employees
have no rights under the Statute to engage in collective bargaining, they
are fully protected in the exercise, through their exclusive representative,
of other rights under the Statute, including the right to representation
under section 7114(a)(2)(A)).
In fact, the Authority has squarely rejected the collective bargaining
theory espoused by petitioners. For example, the Authority has found a
violation of section 7114 when a higher echelon agency official improperly
bypassed an exclusive representative and communicated directly with a
bargaining unit employee concerning a grievance. Department of Health &
Human Servs., Social Security Admin., Baltimore, Md. and Social Security
Admin., Region X, Seattle, Wash., 39 FLRA 298, 311-12 (1991) ((1) rejecting
agency's contention that because the Regional Personnel Officer was part of
an entity that "d[id] not have a bargaining relationship with the Union at
the regional level," he therefore was not required to comply with the
Statute and (2) finding the agency responsible for the Regional Personnel
Officer's acts notwithstanding the Officer's organizational location). This
rejection is in accord with the Authority's case law providing that "when
higher-level management directs or requires management at a subordinate
level to act in a manner that is inconsistent with the subordinate level's
bargaining obligations under the Statute, the higher level entity violates"
the Statute. See, e.g., Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio and Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 46
FLRA 1184, 1186 (1993).
With regard to section 7114(a)(2)(A), the formal discussion provision, the
collective bargaining relationship is immaterial to the Authority's
determination of who is a "representative of the agency." See Veterans
Admin. Med. Ctr., Long Beach, Cal., 41 FLRA 1370, 1389-90 (1991), aff'd sub
nom. Department of Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526 (9th
Cir. 1994) (interview of local, bargaining unit employee by attorney in
agency's Office of District Counsel is a formal discussion under the
Statute). Even an outside private contractor has been held to be a
"representative of the agency" for purposes of section 7114(a)(2)(A).
Defense Logistics Agency, Defense Depot Tracy, Tracy, Cal., 39 FLRA 999,
1001, 1013 (1991).
Nor is the "representative of an agency" referred to in section 7103(a)
(12)'s definition of collective bargaining restricted to the management
entity in the collective bargaining relationship with the union. Rather,
the "representative" of that entity for bargaining purposes depends on whom
the entity designates as its representative. It is axiomatic that an
agency entity has the discretion to designate anyone it chooses to serve as
its bargaining representative. See American Fed'n of Gov't Employees and
U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 4 FLRA 272, 274 (1980).
Finally, if the existence of a collective bargaining relationship between
the agency official and the bargaining unit employee involved were the sine
qua non petitioners claim it to be, section 7114 rights could be easily
avoided through the simple stratagem of using an agency official from higher
headquarters or another agency component to conduct formal discussions or
interrogations. Rather than inquiring into the circumstances surrounding a
formal discussion with or an interrogation of a bargaining unit employee,
the Authority would be obliged to examine an agency's organizational
hierarchy to determine whether the agency official involved was under the
direct authority of the management entity having a collective bargaining
relationship with the bargaining unit. Such a rule would improperly premise
violations of protected rights on the organizational entity to which the
agency official was assigned--a result not remotely suggested in the Statute
nor in any precedent interpreting it. As the Third Circuit noted, "we would
have some difficulty understanding an interpretation of the [S]tatute
limiting 'agency' to the subdivision comprising the collective bargaining
unit and excluding 'representatives' of management that are employed in
higher echelons of an 'Executive department.'" DCIS, 855 F.2d at 99.
2. Neither the Weingarten Case Nor the Manner in which It Has Evolved
Restricts the Representation Right Based upon a Collective Bargaining
Relationship
Petitioners assert that the Authority's interpretation of section 7114(a)(2)
(B) is inconsistent with the Weingarten decision and the manner in which the
representation right has evolved in the private sector. According to
petitioners, the Weingarten right arose out of the need to balance the power
between the parties to collective bargaining, and absent a collective
bargaining relationship between NASA-OIG and the bargaining unit, the power
imbalance does not arise. Pet. Br. 20. However, petitioners' arguments are
not supported by Weingarten itself or relevant private sector case law.
What the Supreme Court actually said in Weingarten is that the NLRA itself
is intended to eliminate the "'inequality of bargaining power between
employees . . . and employers.'" 420 U.S. at 262 (citation omitted). In
light of this statutory intent, and based upon the section 7 rights of the
NLRA, bargaining unit employees and their representatives are entitled to
representation at disciplinary interviews. Id. The heart of the Weingarten
right, and thus section 7114(a)(2)(B), as noted by the Authority and the
Eleventh and Third Circuits, is the "risk of adverse employment action to
the employee" (Pet. App. 10a) and the right to union representation in that
situation. See Pet. App. 41a; DCIS, 855 F.2d at 99.
As their primary example of how the private sector limits the Weingarten
right to the existence of a collective bargaining relationship, petitioners
assert that "when an entity other than management, such as a law enforcement
officer, interviews a bargaining unit employee who might subsequently face
discipline as a result of information obtained in the interview, the
employee has no right to the presence of a union representative." Pet. Br.
21-22. To the extent that petitioners suggest that the Weingarten right is
not applicable to interrogations by law enforcement personnel inside an
agency, this argument has already been rejected by the NLRB and the United
States Court of Appeals for the District of Columbia.
The NLRB has long held that United States Postal Service (USPS) employees
are entitled to Weingarten representation when interviewed by Postal
Inspectors. See United States Postal Serv. and Eddie L. Jenkins, 241 NLRB
141 (1979) (Jenkins). Postal Inspectors, like OIG investigators, are
employees of the parent agency, see United States Postal Serv. v. NLRB, 969
F.2d 1064, 1066 (D.C. Cir. 1992) (opinion by then-Judge Ginsburg) (USPS),
but "are not under the supervision or direction of postal supervisors or
managers," United States Postal Serv. and Ralph Bell, 288 NLRB 864 (1988).
In Jenkins, because the employees were administratively disciplined as a
result of the Postal Inspector investigations, the NLRB concluded that not
allowing employees the Weingarten right in such situations would "in effect
. . . nullify[] the Weingarten rights of any Postal Service employee who
might be administratively disciplined as the result of a criminal
investigation." Jenkins, 241 NLRB at 142. Finding the risk of disciplinary
action to be the primary concern addressed by Weingarten, and not simply the
elimination of inequality in bargaining power, the NLRB held that denying
the Weingarten right in such situations would be "clearly repugnant to the
historical development by the Board of the principle, approved by the
Supreme Court in Weingarten, that Section 7 creates a statutory right in an
employee to refuse to submit without union representation to an interview
which he reasonably fears may result in his discipline." Id.
In sum, petitioners' arguments regarding the limitations on the breadth of
the phrase "representative of the agency," which, of course, are not
entitled to deference, find no support in either the Statute or applicable
case law. The Authority's interpretation, which is entitled to deference,
is consistent with both the language of the Statute as well as public and
private sector case law. As the Third Circuit observed in DCIS, "[s]uch
interpretation is exactly the sort of task that the [Authority] is meant to
perform with respect to the [Statute] and has here accomplished." 855 F.2d
at 100.
C. Interpreting the Phrase "Representative of the Agency" to Include Office
of the Inspector General Investigators Does Not Conflict with the IG Act or
OIG Investigative Functions
Before reaching its decision in the case sub judice, the Authority carefully
analyzed both the statutory language and legislative history of the IG Act
to ensure that the IG Act did not conflict with the obligations set forth by
Congress in section 7114(a)(2)(B). Pet. App. 41a-47a. Though recognizing
the OIG's independence, the Authority pointed out that the OIG's autonomy is
not absolute, particularly when OIGs conduct interviews that trigger
employees' section 7114(a)(2)(B) rights. Id. at 42a. The Eleventh Circuit
affirmed the Authority's determination that notwithstanding the NASA-OIG's
statutory independence from NASA-HQ, the NASA-OIG investigator acted as a
"representative of the agency" under section 7114(a)(2)(B). As the court
recognized, "nothing in the text or legislative history of the IG Act . . .
justif[ies] exempting OIG investigators from compliance with the federal
Weingarten provision." Pet. App. 12a.
Consistent with the Authority and the Eleventh Circuit, the DCIS court
explained that the term "'representative' should be construed with reference
to the objective of the [S]tatute," not based upon the independence of the
OIG. 855 F.2d at 100. OIG investigators are employees of the agency. Id.
When an OIG investigator conducts an interview in order "to solicit
information concerning possible misconduct of [agency] employees in
connection with their work," and the information discovered may be provided
to the supervisors in the affected subcomponent of the agency to be utilized
for agency purposes, the OIG investigator is a "representative" of the
agency. Id.
As shown below, petitioners' argument that the IG Act establishes that the
OIG operates independently of the agency is overbroad and "unsupported by
[its] text and legislative history." DCIS, 855 F.2d at 98.
1. Review of the Statutory Language and Legislative History of the IG
Act and the Language of Section 7114(a)(2)(B) Reveals that the
Provisions Do Not Conflict
a. Statutory Language
Examination of the provisions of the IG Act reveals no conflict with the
Statute, in general, or with section 7114(a)(2)(B) in particular. As
recognized by the court below, "[n]o provision of the IG Act suggests that
Congress intended to excuse OIG investigators from honoring otherwise
applicable federal statutes," such as section 7114(a)(2)(B). Pet. App. 12a.
Further, although the IG Act grants NASA-OIG a degree of independence from NASA-
HQ, it also provides for NASA-OIG involvement in meeting agency objectives and
in no way prohibits OIG cooperation with the agency.[15]
As detailed in the Authority's decision (Pet. App. 44a), under section 2(1)
of the IG Act, the investigations and audits that NASA-OIG is authorized to
conduct and supervise are focused entirely on NASA-HQ's programs and
operations. 5 U.S.C. App. 3 § 2(1). Section 2(2) sets forth NASA-OIG's
leadership role in promoting the "economy, efficiency, and effectiveness"
of, and in preventing fraud and abuse in, NASA-HQ's programs and operations.
5 U.S.C. App. 3 § 2(2). Section 2(3) expands this theme by enabling the
Administrator of NASA-HQ, through NASA-OIG, to continue to be "fully and
currently informed about [agency] problems and deficiencies . . . and the
necessity for and progress of corrective action" by NASA-HQ. 5 U.S.C. App.
3 § 2(3). Rather than establish absolute autonomy, these statutory
provisions reveal that NASA-OIG routinely represents and safeguards NASA-
HQ's interests, as it does when it investigates the actions of NASA-HQ
employees.
b. Legislative History
The goal of Congress in creating the OIGs was "'to more effectively combat
fraud, abuse, waste and mismanagement in the programs and operations' of
certain specified federal agencies." Pet. App. 12a (quoting S.Rep. No.
95-1071, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 2676 (1978)
(IG Legis. History)). To ensure accomplishment of this goal, "Congress
believed it necessary to grant OIGs a significant degree of independence
from the agencies they were charged with investigating." Id. That is, some
amount of independence was "necessary to prevent agency managers from
covering up wrongdoing within their agencies in order to protect their
personal reputations and the reputations of their agencies." Pet. App. 13a;
see DCIS, 855 F.2d at 98 (OIG independence intended to "insulate Inspector
Generals from agency management which might attempt to cover up its own
fraud, waste, ineffectiveness, or abuse."); Pet. App. 45a.
Although the OIG is an independent and objective unit, 5 U.S.C. App. 3 § 2,
the OIG's independence from the agency is not unlimited. For example,
despite being given access to agency documents and personnel pursuant to 5
U.S.C. App. 3, § 6(a)(1) and (3), the OIG's access is limited to that
necessary "to do an effective job, subject, of course, to the provisions of
other statutes, such as the Privacy Act." IG Legis. History at 2709
(emphasis added). Also, the OIG's power to select and employ personnel
necessary to conduct its business is "subject, of course, to the limits
imposed by appropriations." Id. at 2710. As both the Eleventh and
Third Circuits have noted, the congressional intent to insulate OIGs from
interference by agency management is not frustrated by an employee's
exercise during an interview of the rights protected by section 7114(a)(2)
(B). "We do not believe that the presence of a union representative at OIG
interviews, as mandated by federal statute, creates the type of interference
from which Congress sought to insulate OIG investigators." Pet. App. 14a;
see DCIS, 855 F.2d at 98. Certainly the degree of intended independence is
not so clearly set forth in either the statutory language or the legislative
history so as to justify the creation of an "exemption" from section 7114(a)
(2)(B) for OIG investigators. See Pet. App. 15a; DCIS, 855 F.2d at 100.
In summary, given the lack of any express statutory language in the IG Act
or indication in the legislative history that compliance with section
7114(a)(2)(B) would improperly interfere with the OIG's intended
independence, section 7114(a)(2)(B) and the IG Act should be interpreted in
a manner that gives effect to both laws while preserving each law's sense
and purpose. See, e.g., Morton, 417 U.S. at 551 ("it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary,
to regard each [statute] as effective"). This is the course followed by the
court below, which recognized that "absent a discernible present conflict
between the IG Act and [section] 7114(a)(2)(B), we refuse to read the IG Act
to have impliedly repealed . . . section [7114(a)(2)(B)] of the [Statute]."
Pet. App. 15a (citing Morton, 417 U.S. at 551).
2. Compliance with Section 7114(a)(2)(B) Does Not Unduly Restrain the
Conduct of OIG Investigations
Petitioners argue that NASA-OIG's independence from agency management,
established by the IG Act, prevents an OIG agent from being a
"representative of the agency." In support of this assertion petitioners
list (Pet. Br. 25-33) numerous examples of the OIG's independent statutory
functions.[16] But petitioners fail to establish how the Authority's
interpretation of this congressionally established rule threatens the OIG's
ability to fulfill its independent obligations.
For example, without supporting authority, petitioners suggest that the duty
to report to the Attorney General, and the confidentiality associated
therewith, would be compromised by attendance of union representatives at
OIG interviews. Petitioners do not explain how, in fact, the presence of
the union representative would interfere with this reporting obligation, nor
do they point to any provision in law establishing this "confidentiality"
duty. Further, compliance with section 7114(a)(2)(B) does not compromise
any OIG duty to notify the Attorney General of suspected criminal
violations. Pet. App. 46a. Instead, as the Authority noted in agreement
with this Court's Weingarten determination, the presence of a union
representative, who could clarify facts or offer other pertinent
information, would assist an investigation. Id. Such assistance, in turn,
could lead to more thorough reporting by the OIG.
Similarly, the presence of a union representative in an OIG interview
provides no apparent obstacle to fulfillment of the congressional reporting
requirements, nor have petitioners provided any such example. In addition,
as the Authority observed, the IG Act's congressional reporting requirements
actually alleviate OIG concerns because the IG Act thus provides a forum to
which OIGs may report if the presence of union representatives during the
interview of bargaining unit employees poses significant problems for OIG
investigators. Pet. App. 47a-48a n.25.
The OIG's claimed inability to perform its statutory function if a union
representative is present during investigative interviews is further
undermined by petitioners' acknowledgment (Pet. Br. 34) that an employee
enjoys the right to the presence of an attorney during an OIG interrogation.
This acknowledgment causes petitioners two significant problems. First, the
right to counsel, like the federal Weingarten right, is grounded in statute:
"[a] person compelled to appear in person before an agency or representative
thereof is entitled to be accompanied, represented, and advised by counsel."
5 U.S.C. 555(b) (1994) (emphasis added); see Pet. App. 14a (Eleventh Circuit
recognized 5 U.S.C. 555(b) right to counsel.) As a result, petitioners find
themselves in the inconsistent position of conceding that OIGs are the
"representative" of the agency for the purposes of 5 U.S.C. 555(b), but not
for the purposes of 5 U.S.C. 7114(a)(2)(B).
Second, and as the Eleventh Circuit noted, it is not apparent "how the right
of an employee to be represented by a union representative presents a
significantly greater interference with OIG interviews than the existing
right of an employee to be represented . . . by an attorney." Pet. App.
14a. In response, petitioners attempt to distinguish an attorney, based on
the attorney's duty of loyalty to the client, from a union representative,
who might choose to share information concerning the interview with other
members of the bargaining unit. Petitioners thus assert that union
representatives pose a greater threat to confidentiality. Pet. Br. 34. But
petitioners' assertions are both unsupported and inaccurate. Petitioners
fail to identify any ethical or legal restriction that would preclude an
attorney from subsequently sharing with others the matters about which the
attorney's client was questioned in the presence of the third party OIG
investigator. As for union representatives, on the other hand, 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 section
7114(a)(2)(B) interviews. See American Fed'n of Gov't Employees, Fed.
Prison Council 33 and U.S. Dep't of Justice, Fed. Bureau of Prisons, 51 FLRA
1112, 1117-1118 (1996).[17]
Finally, petitioners' own arguments contradict the OIG's supposed total
independence from agency management. As explained in note 18 of their brief
(Pet. Br. 31 n.18), OIGs rely upon agency management to threaten
administrative discipline in order to compel an employee's attendance and
testimony at an IG interrogation. Such cooperation and coordination between
the agency and the OIG in the process of interrogating bargaining unit
employees refutes both the agency's lack of involvement and the OIG's
independence.
In sum, petitioners have not demonstrated how the obligation of OIG
investigators to comply with section 7114(a)(2)(B) poses any realistic
threat to the IG Act's requirements. Having failed to establish any direct
inconsistency between the IG Act and the Statute, petitioners attack the
manner in which the Authority has defined the role of the union
representative and raise the specter of criminal and emergency situations.
Neither of these efforts advances petitioners' cause.
a. The Authority's Interpretation of the Union Representative's Role
According to petitioners, the role of the union representative, as construed
by the Authority, will "impose[] major restrictions on the OIG's freedom to
investigate" (Pet. Br. 34) because the Authority has broadly expanded the
role of the Weingarten representative. Id. at 35-36. However, as noted by
the Eleventh Circuit, such doomsday predictions are belied by petitioners'
failure to cite even one instance where the active participation of a
representative has interfered with OIG investigations. Pet. App. 14a.
To be sure, the Authority has recognized that the purposes underlying
section 7114(a)(2)(B)'s codification of the Weingarten right can only be
achieved by allowing a union representative to take an active role in
assisting an employee during an investigatory interview. See United States
Dep't of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 440
(1990). However, this right is not without limitations. In Weingarten, the
Supreme Court established that the union representative's presence "need not
transform the interview into an adversary contest." 420 U.S. at 263. At
the same time the Court recognized that "[a] knowledgeable union
representative could assist the employer by eliciting favorable facts, and
save the employer production time by getting to the bottom of the incident
occasioning the interview." Id. at 263. The Authority's case law is
consistent with this theme. See Federal Aviation Admin., New England
Region, Burlington, MA, 35 FLRA 645, 652 (1990) (FAA).
Contrary to petitioners' claims, the Authority has recognized limits on a
union representative's participation in section 7114(a)(2)(B) examinations.
See, e.g., American Fed'n of Gov't Employees, Nat'l Immigration &
Naturalization Serv. Council and U.S. Dep't of Justice, Immigration &
Naturalization Serv., 8 FLRA 347, 363-64 (1982), rev'd on other grounds,
United States Dep't of Justice, Immigration & Naturalization Serv. v. FLRA,
709 F.2d 724 (D.C. Cir. 1983) (a union representative does not have the
right to make a recording of an investigatory interview); INS, N.Y. Dist.,
46 FLRA at 1223 (agency need not postpone an investigatory interview until
such time as preferred union officials are available to represent); Federal
Prison Sys., Fed. Correctional Inst., Petersburg, Va., 25 FLRA 210, 228
(1987) (a union representative may be rejected by management in order to
preserve the integrity of the investigation).
Petitioners mischaracterize Authority precedent in support of their
assertion that the right to union representation will unduly interfere with
investigations. Pet. Br. 35. For example, petitioners claim that according
to DOJ, Twin Cities, 46 FLRA at 1553-1555, 1565-1569, a union representative
has the "right to halt the examination and to step outside the hearing of
investigators." Pet. Br. 35. On the contrary, the ruling in that case was
that "[t]here is no indication in the record that a brief conference between
the Union representative and the employee outside the hearing of the
investigator would have been unduly disruptive, would have interfered with
the objective of the examination, or would have compromised the integrity of
the investigation." 46 FLRA at 1569. In a subsequent decision, the
Authority clarified that there is no per se right for an employee and a
union representative to confer privately outside the interview room during a
Weingarten examination. See Bureau of Prisons, Office of Internal Affairs,
Washington, D.C. and Phoenix, Ariz., 52 FLRA 421, 434 (1996).
As another example, petitioners overstate problems associated with the
Authority's recognition of the right of the employee and union
representative to consult prior to questioning, as established in FAA, 35
FLRA at 652-54. Contrary to petitioners' assertion, the consultation right
advances the purposes of Weingarten as has been recognized by the D.C.
Circuit and the NLRB in the Postal Inspector context. See USPS, 969 F.2d at
1072, affirming United States Postal Serv. and American Postal Workers
Union, East Bay Area Local, 303 NLRB 463 (1991).
In asserting that the Authority's representation rights case law would allow
union representatives to unduly interfere with OIG investigations,
petitioners argue that union representatives "could do what the agency head
cannot do--direct and limit how the Inspector General conducts an
investigation."[18] Pet. Br. 35; see 5 U.S.C. App. 3 § 3(a) (agency head
may not "prevent or prohibit" OIG investigations). As noted above,
petitioners have yet to provide an example of union representation
interfering in an OIG investigation. Indeed, it is difficult to envision
how the presence of a union representative at an interview would "prevent or
prohibit" an OIG investigation. 5 U.S.C. App. 3 § 3(a). How the presence
of a union representative equates to the agency head's interference in an
OIG investigation is likewise unclear.
Petitioners also raise objections to the OIG's status as "representative of
the agency" based upon the OIG's supposed law enforcement authority,[19]
claiming that the Authority has conceded that law enforcement entities are
exempt from the coverage of section 7114(a)(2)(B) (Pet. Br. 24, 42) and
noting that OIGs may be involved with joint investigations with such law
enforcement agencies. Neither of these arguments suggests that the
Authority's rule, as developed to date, should be rejected. As a threshold
matter, the IG Act does not grant any law enforcement authority to OIGs,
save the responsibility set out in 5 U.S.C. App.3 § 4(d), to report to the
Attorney General violations of Federal criminal law.[20] In any event, and
contrary to petitioners' assertion, the Authority has not conceded as a
general matter that law enforcement entities are exempt from section 7114(a)
(2)(B) coverage. Rather, in the instant case, the Authority acknowledged
that the FBI, for example, has statutory authority to "investigate any
violation of title 18 involving Government officers and employees--(1)
notwithstanding any other provision of law." 28 U.S.C. § 535(a) (emphasis
added). Pet. App. 43a n.23. Moreover, the Authority also made clear that
its decision "should not be construed as suggesting that [the Authority]
would conclude in all circumstances that every employee of each subcomponent
of agencies having government-wide, law-enforcement responsibilities, such
as the Department of Justice, is a 'representative of the agency' for the
purposes of section 7114(a)(2)(B)." Id. The Authority noted that such
cases might well be distinguishable from the case at bar. Id.
The Authority's above-referenced, self-imposed limitation on the breadth of
its decision herein also addresses petitioners' concern about joint
investigations. If, unlike the case at hand, an investigation were
criminal, rather than administrative, and again unlike this case, conducted
in coordination with a law enforcement agency, rather than solely by the
NASA-OIG, the Authority, and in turn a United States Court of Appeals, could
determine whether the Weingarten right should apply. The fact that
petitioners can envision circumstances involving OIGs where the Weingarten
right might be inappropriate does not, however, lead to the conclusion that
it should be denied in all instances involving OIGs. The Authority has
pointedly signaled that there may be circumstances where the questioner is
not a "representative of the agency." Id. Such specific determinations
are better left to the administrative expertise of the Authority and case-
by-case adjudication, especially given this Court's "practice of deciding
only 'concrete legal issues, presented in actual cases.'" Fort Wayne Books,
Inc. v. Indiana, 489 U.S. 46, 65 n.11 (1989) (quoting United Public Workers
of America v. Mitchell, 330 U.S. 75, 89 (1947)).
Finally, petitioners reference the Authority's determination that parties
may negotiate representation rights beyond those provided in section 7114(a)
(2)(B). See American Fed'n of State, County, & Municipal Employees, Local
3097 and United States Dep't of Justice, Justice Management Div., 42 FLRA
412, 435 (1991). Petitioners argue that this ruling subjects the
representational rights to expansion. Although their point is correct,
petitioners ignore the statutory recourse options that exist when they are
dissatisfied with an Authority decision regarding OIG investigations.
First, pursuant to 5 U.S.C. 7123, such decisions are subject to judicial
review and a court of appeals can disagree with the Authority's
determinations. This option was pursued successfully by the agency in NRC.
25 F.3d 229. Second, and as noted earlier, because the IG Act requires an
agency Inspector General to report semiannually to Congress on, among other
things, "significant problems . . . relating to the administration of
programs and operations," 5 U.S.C. App. 3 § 5(a)(1), an Inspector General
could report any significant problems resulting from compliance with section
7114(a)(2)(B) directly to Congress.
Rather than support petitioners' assertions, precedent demonstrates that
the Authority has adhered to the Court's teachings in Weingarten and
carefully balanced the employer's right to interview its employees with the
employee's right to be represented. Instead of pronouncing across-the-board
rules for circumstances not before it, the Authority has instead wisely
indicated that it will decide specific section 7114(a)(2)(B) scenarios based
on the facts of the cases if, and as, they arise. Avenues are available to
challenge Authority determinations that allegedly interfere with IG
statutory responsibilities.
b. Criminal Investigations and Emergency Situations
Petitioners argue that the Authority's ruling could improperly implicate the
section 7114(a)(2)(B) right in a case involving criminal or emergency
situations. Pet. Br. 37. Doubtless there will be investigations involving
criminal activity, because virtually any workplace matter being investigated
involves conduct that could be characterized as a crime. For example, an
altercation between two employees could be criminal assault; missing
property or inventory shortages could be larceny or embezzlement; or drug
use in the workplace could be possession of contraband. In fact, the
employee interviewed in the Weingarten case was suspected of theft. 420
U.S. at 254-55. In any event, the "Weingarten protections have been
consistently accorded to private sector employees suspected of criminal
conduct." USPS, 969 F.2d at 1071-72; see also Department of the Treasury,
Internal Revenue Serv., Jacksonville District and Dep't of the Treasury,
IRS, Southeast Regional Office of Inspection, 23 FLRA 876 (1986).
With regard to petitioners' claim that the OIG will be hindered in emergency
circumstances, it should be noted that the Authority has not considered the
applicability of section 7114(a)(2)(B) in an emergency situation. As stated
earlier, however, the Authority has determined that an agency is not
obligated under the Statute to postpone an investigatory interview until a
particular union representative is available. See INS, N.Y., 46 FLRA at
1223. In addition, pursuant to section 7106(a)(2)(D), agencies have the
statutory right to "take whatever actions may be necessary to carry out the
agency mission during emergencies."
In sum, petitioners have failed to demonstrate that compliance with section
7114(a)(2)(B) will cause undue restraint on the OIG, particularly to any
degree actually prohibited by the IG Act. As stated in DCIS, "[g]iven the
limited function of a Weingarten representative, it is conceivable to us
that Congress might conclude that the employee's interest in representation
outweighs the limited interference that his or her representative's presence
might occasion" in OIG interviews. 855 F.2d at 101.
II. NASA-HQ, in Addition to NASA-OIG, Is Properly Responsible for the ULP
Committed by NASA-OIG
The Authority properly found that NASA-HQ violated section 7114(a)(2)(B),
and, therefore, committed a ULP in violation of section 7116(a)(1) and (8)
of the Statute. The Eleventh Circuit, deferring to the Authority, properly
upheld this determination.
Contrary to petitioners' argument that the court below misconstrued the IG
Act (Pet. Br. 46), the IG Act clearly states that NASA-OIG is "under the
general supervision of the [agency] head." 5 U.S.C. App. 3 § 3(a).
Although NASA-HQ may not prevent NASA-OIG from initiating, carrying out, or
completing an audit or investigation, id., the IG Act gives no indication
that an agency head is prohibited from directing the OIG to comply with a
federal statute.
As the Authority held in DOD, DCIS, it is appropriate for the agency
headquarters with administrative responsibility for the OIG to advise
inspectors general "of the pertinent rights and obligations established by
Congress in enacting the [Statute]. More particularly, . . . investigators
should be advised that they may not engage in conduct which unlawfully
interferes with the rights of employees under the Statute." 28 FLRA at
1151. Holding NASA-HQ responsible for NASA-OIG's violation of section
7114(a)(2)(B) fulfills the purposes of section 7114(a)(2)(B).
In this regard, the Authority has long held that "when a component of an
agency engages in conduct which unlawfully interferes with the protected
rights of employees of another component," as did NASA-OIG in this case, "a
violation of section 7116(a)(1) of the Statute will be found to have
occurred." DLA, 22 FLRA at 884.[21] This concept has also been applied to
sanction a parent agency that did not have a collective bargaining
relationship with the union, as with NASA-HQ, for violations of the Statute
based upon actions involving a subcomponent's responsibilities under the
Statute. See DVA, 48 FLRA at 1000-01; Headquarters, U.S. Air Force,
Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Ill.,
44 FLRA 117, 125 (1992), review denied sub nom. Headquarters, U.S. Air
Force, Washington, D.C. v. FLRA, 10 F.3d 13 (D.C. Cir. 1993) (without
opinion).
In affirming the Authority's determination, the Eleventh Circuit recognized
that "[i]n conducting investigations within the agency, NASA-OIG serves the
interest of NASA-HQ by soliciting information of possible misconduct
committed by NASA employees." Pet. App. 19a. Particularly persuasive to
the court as indicative of the NASA-OIG's actions on behalf of NASA-HQ was
"[t]he fact that the NASA-OIG agent in this case ordered the employee to
answer questions or face dismissal." Id.[22] Accordingly, the court found
"no clear error in the Authority's determination that NASA-HQ should be held
responsible for the investigator's violation of [section] 7114(a)(2)(B)."
Id. The Authority urges this Court to make the same determination.
Respectfully submitted.[23]
DAVID M. SMITH*
Solicitor
ANN M. BOEHM
Attorney
* Counsel of Record
JANUARY 1999
[1] "Pet. App." refers to the Appendix in the petition for a writ of
certiorari filed in this case.
[2] The court's denial of the Agency's petition for rehearing and
suggestion of rehearing en banc is also appended to the petition. Pet. App.
75a-76a.
[3] For confidentiality and other reasons, the employee involved has been
referred to as "P." Id. n.11.
[4] Early in the investigation, the NASA-OIG investigator determined that
P had not violated the law, and thus the investigation was administrative and
not criminal. Id. at 23a-24a n.12.
[5] Notwithstanding the fact that the NASA-OIG investigator allowed the
union representative to be present during the investigation of the bargaining
unit employee, the Authority concluded that restrictions on the union
representative's role prevented his effective representation during the
interrogation, and thus violated section 7114(a)(2)(B). Id. at 33a. In the
court below, this finding was not contested by the Agency. Id. at 6a n.4.
Accordingly, it will not be addressed further herein.
[6] The statutory scheme governing OIGs is set forth in the Inspector
General Act of 1978, 5 U.S.C. App. 3 §§ 1-12 (1994 & Supp. II 1996) (IG Act).
[7] The Fourth Circuit also decided a related case that arose in the
context of a negotiability dispute. United States Nuclear Regulatory Comm'n v.
FLRA, 25 F.3d 229 (4th Cir. 1994) (2-1 decision) (NRC). The court reviewed and
rejected the Authority's determination that an agency was obligated to bargain
over four bargaining proposals implicating section 7114(a)(2)(B). Id. at 236.
The court determined that the bargaining proposals, which defined employee
rights and procedures for all investigatory interviews, including those
conducted by the OIG, were non-negotiable because they interfered with the OIG's
independence as granted by the IG Act. Id. at 235. Decided after DCIS and
before DOJ, the NRC majority neither criticized nor viewed its decision as
inconsistent with DCIS; instead, the Fourth Circuit majority viewed the
Authority's negotiability determination as an expansion of "the limited holding
of [DCIS]." Id.
[8] The Authority observed that it is "clear and unchallenged that NASA is
an 'agency' under 5 U.S.C. § 7103(a)(3)." Id. at 41a-42a.
[9] As the Authority explained, "[t]his concept has its genesis in the
private sector." Pet. App. 48a n.26. Even a non-employer has been sanctioned
for violating the rights of bargaining unit employees. See Hudgens v. NLRB, 424
U.S. 507, 510 n.3 (1976); Austin Co., 101 NLRB 1257, 1258-59 (1952). Pet. App.
48a-49a n.26.
[10] The Authority recognized (Pet. App. 51a) that in finding the parent
agency liable, it was deviating from its holding in the decision underlying the
D.C. Circuit's DOJ decision, U.S. Department of Justice, Washington, D.C. and
U.S. Immigration and Naturalization Service, Northern Region, Twin Cities,
Minnesota and Office of Inspector General, Washington D.C. and Office of
Professional Responsibility, Washington, D.C., 46 FLRA 1526, 1571 (1993) (DOJ,
Twin Cities). Based upon its analysis in the instant case, however, the
Authority concluded that holding NASA-HQ, as well as NASA-OIG, responsible for
the ULP committed by NASA-OIG would effectuate the purposes of the Statute
because it is appropriate for agency headquarters to advise OIG personnel of
their responsibilities under the Statute. Id. at 50a-51a.
[11] Subsequent to the Eleventh Circuit's decision in this case, the Second
Circuit issued a decision in a factually analogous case. FLRA v. U.S. Dep't of
Justice, Washington, D.C., U.S. Dep't of Justice, Immigration and Naturalization
Serv., New York Dist., N.Y. and Dep't of Justice, Office of the Inspector
General, Washington, D.C., 137 F.3d 683 (2d Cir. 1998) (DOJ, INS), petition for
cert. filed 67 U.S.L.W. 3302 (Oct. 22, 1998) (No. 98-667). The Second Circuit
agreed with the Authority, and the Third and Eleventh Circuits, that the
"agency" within the meaning of section 7114(a)(2)(B) is the agency headquarters.
137 F.3d at 688. With regard to whether an OIG investigator is a
"representative of the agency," the court diverged from all prior court and
Authority decisions. It concluded that an OIG investigator is a "representative
of the agency" when conducting an interrogation "traditionally performed by
agency supervisory staff," but not when questioning an employee for "bona fide
purposes" under the IG Act. Id. at 686, 690.
[12] This finding was affirmed by the court below, and also is supported by
the decisions of the Second and Third Circuits. See NASA, Pet. App. 9a; DOJ,
INS, 137 F.3d at 688; DCIS, 855 F.2d at 98. In addition, in DOJ, the D.C.
Circuit found that the parent agency, the Department of Justice (DOJ), is an
agency within the meaning of 5 U.S.C. 7103(a)(3), but because the Authority had
dismissed DOJ from the case, the D.C. Circuit focused on whether the OIG could
be the "agency" under both section 7103(a)(3) and 7114(a)(2)(B). See 39 F.3d at
365-66.
[13] See Pet. App. 42a; DOJ, INS, 137 F.3d at 690; DCIS, 855 F.2d at 99;
Pet. App. 9a.
[14] Section 7114(a)(2)(A) provides that a union is entitled to
representation at any formal discussion or meeting "between one or more
representatives of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy or practices or
other general condition of employment." In determining whether such a meeting
is a formal discussion, the Authority considers numerous factors, including
whether the individual who held the meeting is a "first-level supervisor or is
higher in the management hierarchy" and "whether any other management
representative attended." See Marine Corps Logistics Base, Barstow, Cal., 45
FLRA 1332, 1335 (1992).
[15] Eleanor Hill, Vice-Chair of the organization of presidentially
appointed Inspectors General, notes in the Inspector General community's journal
that the Department of Defense Inspector General has, over the past 5 years
"participated in over 100 management process action teams, integrated process
teams and working groups that have been the Department's principal means of
generating new ideas for reforms and process improvement." Eleanor Hill, "A
Message from the PCIE Vice-Chair," The Journal of Public Integrity, Fall/Winter
1998, at 5. Such coordination undercuts petitioners' overbroad claim that the
OIG is prohibited from involvement in "the policy and programmatic functions of
agency management." Pet. Br. 31.
[16] Among these examples, petitioners note the OIG's prohibition "from
performing the policy and programmatic functions of agency management," focusing
particularly on their inability to discipline employees. Pet. Br. 31-32. They
contend that this inability to discipline a NASA-HQ or component employee
renders Weingarten inapplicable. Pet. Br. 33. However, in the analogous case
of Postal Inspectors, the D.C. Circuit and the NLRB have determined the
Weingarten right to be triggered when information gathered by the investigator
is routinely turned over to management for possible disciplinary action. See
USPS, 969 F.2d at 1072; Jenkins, 241 NLRB at 142.
[17] Moreover, the Authority has followed private sector precedent and
ruled that on a showing of "'special circumstances,'" an agency is entitled to
"preclude a particular individual from serving as the union's designated
representative." Federal Bureau of Prisons, Office of Internal Affairs,
Washington, D.C., 54 FLRA (No. 133) 1502, 1512 (1998) (citation omitted).
[18] It should be noted that the IG Act limits only the agency head's
ability to "prevent or prohibit" an OIG investigation (5 U.S.C. App. 3 § 3(a)),
not the agency head's ability to work cooperatively with the OIG to ensure that
fraud and abuse in the agency are eliminated and prevented. For example,
nothing in the IG Act would preclude an agency head from suggesting that certain
matters or employees be investigated.
[19] Notably, Postal Inspectors "serve . . . as federal law enforcement
officers, with authority to carry weapons, make arrests, and enforce postal and
other laws of the United States." USPS, 969 F.2d at 1066. Notwithstanding
Postal Inspectors' status as federal law enforcement officers and their coverage
under the IG Act, employees interrogated by Postal Inspectors have a right to
union representation at such an investigation under Weingarten. See Jenkins,
241 NLRB at 142. The NLRB rejected USPS concerns that extending Weingarten
provisions to investigations by Postal Inspectors would interfere with
"legitimate employer prerogatives" and create public safety issues. Id.; see
also USPS, 969 F.2d at 1072 ("[W]e uphold as reasonable the NLRB's judgment that
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.")
[20] See Vicky L. Powell, "Why Isn't Law Enforcement Authority in the
Inspector General Act?", The Journal of Public Inquiry, Spring/Summer 1998, at
33.
[21] As explained at note 9 supra, this concept had its genesis in the
private sector.
[22] As noted earlier (see p.? supra), petitioners acknowledge this
cooperation between the agency and its OIG in compelling employees to
participate in OIG investigations. Pet. Br. 31 n.18.
[23] The Solicitor General authorized the filing of this memorandum and
directed the Authority to include the following statement:
I authorize the filing of this brief. Seth P. Waxman, Solicitor General.
