Defense Criminal Investigative Service (Dcis), Department of Defense (Dod), in No. 87-3758 v. Federal Labor Relations Authority, American Federation of Government Employees (Afge), Intervenor. Defense Criminal Investigative Service, Department of Defense v. Federal Labor Relations Authority, in No. 87-3863
Docket: 87-3758
Court: Court of Appeals for the Third Circuit; August 18, 1988; Federal Appellate Court
The Defense Criminal Investigative Service (DCIS) petitioned for review of a Federal Labor Relations Authority (FLRA) decision, which classified a DCIS investigator as "a representative of the agency" under 5 U.S.C. Sec. 7114(a)(2). This statute entitles federal employees in a bargaining unit to union representation during questioning that may lead to disciplinary action. The FLRA's interpretation of this statute was deemed reasonable by the court, leading to the denial of the DCIS's review request and the granting of enforcement for the FLRA’s order.
The DCIS operates under the Department of Defense's Office of the Inspector General (DOD-OIG), established by a 1982 amendment to the Inspector General Act of 1978. Its primary role is to investigate fraud, waste, and abuse within DOD programs. The DCIS shares investigative information with other DOD subdivisions but is not mandated to do so and does not provide recommendations on its use. The DCIS Director reports directly to the DOD Inspector General, who operates independently, as outlined in 5 U.S.C. app. 3 Sec. 3(a). However, the Secretary of Defense has the authority to intervene in DOD-OIG matters under specific conditions related to national security. Notably, the DCIS does not have a collective bargaining agreement with any labor union.
The Defense Logistics Agency (DLA), part of the Department of Defense (DOD), operates under the authority of the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics. It has a collective bargaining agreement with the American Federation of Government Employees (AFGE). Employees Raymond Nazare and Irene Fedoriw, both AFGE members, were implicated in a January 1985 incident involving a gunshot fired at the home of DLA supervisor Otto Miller. Miller reported the incident to the police and DLA superiors, who referred the matter to the regional office of the Defense Criminal Investigative Service (DCIS), indicating Nazare and Fedoriw's potential involvement.
DCIS agent Katherine Johnson was assigned to the investigation. During interviews at the DLA office, both Nazare and Fedoriw requested union representation, citing their rights under the DLA-AFGE agreement. However, Johnson denied their requests, claiming the agreement did not extend to DCIS interviews. Following this, the Federal Labor Relations Authority (FLRA) issued an unfair labor practice complaint against the DCIS for refusing union representation.
Under the Federal Labor-Management Relations Act (FLMRA), specifically 5 U.S.C. § 7114(a)(2)(B), federal employees have the right to union representation during investigatory interviews if they reasonably believe such questioning could lead to disciplinary action. This provision aligns with the Weingarten rule established by the Supreme Court, which allows employees to refuse interviews without union representation. Violations of this right are deemed unfair labor practices under 5 U.S.C. § 7116.
Interference, restraint, or coercion against employees exercising rights under the relevant chapter is prohibited, and compliance with its provisions is mandatory. The key issue is whether DCIS investigator Johnson qualifies as "a representative of the agency" under Section 7114(a)(2)(B). The FLRA Administrative Law Judge (ALJ) concluded that DCIS did not violate this section, asserting that the Defense Logistics Agency (DLA) was the relevant "agency" and that DCIS's independence within the Department of Defense (DOD) excluded it from being considered a representative of the DLA. Thus, the ALJ recommended dismissing the unfair labor practice complaint.
However, the FLRA disagreed, determining that the DOD itself was the "agency" referenced in Section 7114(a)(2)(B) and classified the DCIS investigator as a "representative of the agency." This conclusion was based on the definition of "agency" in Section 7103(a)(3) and the nature of the interviews conducted by Johnson. The FLRA noted that DCIS, as part of DOD, was investigating alleged criminal activity involving DLA employees, which constituted an "examination in connection with an investigation." Therefore, employees were entitled to union representation during these interviews.
To remedy the violation, the FLRA ordered DCIS to cease its actions and notify employees of its obligations under Section 7114(a)(2)(B). In challenging the FLRA's decision, DCIS argued that the "agency" should refer to the DLA, positing that its independence precluded it from being a representative of the DOD. DCIS also claimed that allowing union representatives during investigations would hinder its operations. The matter falls under the jurisdiction of 5 U.S.C. Section 7123, and judicial review of FLRA decisions follows the standards of Section 706 of the Administrative Procedure Act, where agency actions can only be set aside if deemed arbitrary or not in accordance with the law, with deference given to FLRA interpretations.
The primary issue in *United States Dep't of the Navy v. FLRA* concerns the interpretation of "representative of the agency" as stated in Section 7114(a)(2)(B) of the Federal Labor-Management Relations Act (FLMRA). The Federal Labor Relations Authority's (FLRA) interpretation of this phrase is entitled to deference as long as it is a reasonable understanding of the FLMRA, as established in *Bureau of Alcohol, Tobacco and Firearms v. FLRA*. However, when an agency interprets its statute in relation to other federal statutes or resolves conflicts between them, courts are not required to defer to the agency’s interpretation.
The Defense Criminal Investigative Service (DCIS) argues that it is not a "representative" of the Department of Defense (DOD) and that the FLRA's interpretation conflicts with the Inspector General Act (IG Act). The DCIS cites provisions that aim to ensure the independence of the Inspector General from DOD influence, suggesting these provisions were meant to shield the Inspector General from interference, including from labor relations. Although the FLRA did not explicitly address this argument, it is assumed that the FLRA rejected it. The court agrees with the DCIS that deference should not be given to this rejection, but it finds the DCIS's interpretation of the IG Act unsupported by its text and legislative history.
The court emphasizes that the purpose of the IG Act is to protect Inspectors General from management pressure that might conceal misconduct. Thus, while it defers to the FLRA’s interpretation of the FLMRA, it does not extend that deference to the FLRA’s reading of other statutes.
The definition of "agency" under the FLMRA is outlined, specifying that it includes executive agencies but excludes certain entities like the General Accounting Office and the Central Intelligence Agency, among others. The term "Executive agency" is further clarified as encompassing executive departments, government corporations, and independent establishments as defined in 5 U.S.C. Sec. 105.
The definitions of "Executive departments," "government corporations," and "independent establishments" outlined in 5 U.S.C. Sections 101, 103, and 104 clarify that the Department of Defense (DOD) is considered an agency for the purposes of Section 7114(a)(2)(B), while the Defense Logistics Agency (DLA) is not. The Federal Labor Relations Authority (FLRA) reasonably concluded that the DOD qualifies as the relevant agency, aligning with the legislative intent of Section 7114(a)(2)(B) to ensure federal employees have union representation when providing potentially self-incriminating information. The statute aims to protect employees from disciplinary action, and it would be illogical to restrict union representation to only those management representatives within the bargaining unit.
Section 7114(a)(2) differentiates between the bargaining unit and the agency, supporting the FLRA's interpretation. The DOD Criminal Investigative Service (DCIS) argues against this interpretation, citing that the CIA, which is not an Executive department, is also excluded from the definition of "agency." However, the FLRA's approach remains reasonable despite this point. Additionally, the DCIS contends that Congress did not intend for a rigid interpretation of "agency" in Section 7114(a)(2)(B), referencing other parts of the Federal Labor Management Relations Act (FLMRA) that use the term "agency" differently.
The DCIS contends that the statutory definition of "agency" does not apply to Section 7103(a)(12) and that the bargaining referenced therein is intended to occur between a union and a management representative within the bargaining unit. However, the interpretation that the statutory definition is incompatible with Section 7103(a)(12) is rejected. The FLMRA, modeled after federal labor-management relations statutes, allows for an agency structure where personnel relations departments negotiate collective bargaining agreements, thus the definition of "agency" can be flexible within this context.
The fact that "agency" might be used differently in other FLMRA sections does not negate its specific definition in Section 7103. The FLRA is tasked with interpreting the FLMRA and has determined that the definition should apply where appropriate.
Regarding the independence of the DCIS from the DOD, the DCIS argues that Agent Johnson did not act as a DOD representative during interviews. This view is countered by asserting that "representative" should be viewed in light of the statute's objectives; the degree of DOD supervision over the DCIS is irrelevant. DCIS investigators are DOD employees conducting interviews to gather information on possible DOD employee misconduct, and therefore are considered representatives of the DOD.
Lastly, the DCIS argues that its mission implies that employees should not have representation rights during its investigations. While a policy argument exists for DCIS investigations to be exempt from Weingarten rights, the language of Section 7114(a)(2)(B) clearly confers these rights to all federal employees in a bargaining unit. The argument for an implied exception based solely on the establishment of inspector general offices is dismissed, maintaining that Congress did not intend to repeal these rights.
Justice Brennan outlines the role of a Weingarten representative during investigatory interviews, emphasizing that while the representative is there to support the employee—helping clarify facts or suggest additional witnesses—the employer is not obligated to negotiate with them. The employer can focus solely on the employee's account, as the employee may lack the confidence or knowledge to adequately present their case. The presence of a knowledgeable representative can facilitate the process by highlighting favorable facts and improving efficiency, without turning the meeting into an adversarial situation.
The text suggests that Congress might determine that an employee's right to representation may outweigh any minor disruptions caused by the representative's presence in DCIS interviews, though this remains a matter for legislative decision. The excerpt denies a petition for review and upholds the FLRA's order, referencing a prior case to assert that representatives of the agency include those from the DCIS, despite arguments regarding independence from the DOD. The interpretation of "agency" under the FLRA is flexible, allowing its definition to adapt to the context of collective bargaining, and the FLRA has effectively executed this interpretative role in its rulings.
DCIS investigators, as Department of Defense (DOD) employees, are tasked with gathering information regarding potential misconduct by DOD employees during interviews. The information collected may be shared with supervisors for DOD purposes, which establishes the DCIS investigator as a representative of the DOD according to Congressional intent. The DCIS contends that the nature of its mission precludes the right of employees to have representation during such interviews. Although there is a strong policy argument for excluding DCIS investigations from the Weingarten rule, the court finds no clear contradiction between Section 7114(a)(2)(B) and the DCIS's mandate that would justify an implied exception. Section 7114(a)(2)(B), enacted shortly after the Weingarten decision, grants Weingarten rights to all federal employees in bargaining units. The DCIS's request for a partial repeal of this section based on the establishment of inspector general offices is rejected.
Justice Brennan's description of a Weingarten representative highlights the representative's supportive role during investigatory interviews, which should not transform the process into an adversarial one. The presence of a knowledgeable representative can assist the employee in articulating their account, potentially benefiting both the employee and the employer. While it is possible for Congress to determine that employee representation is more important than the limited disruption caused by a representative in DCIS interviews, this is not a necessary conclusion. The court sees no indication that Congress intended to deny federal employees this right when enacting the IG Act. Therefore, the petition for review is denied, and the enforcement of the FLRA's order is granted. The DCIS's reference to a prior case concerning agency representation does not negate the FLRA's finding that DCIS agents are representatives of the DOD, as they are also DOD employees.
