Federal Labor Relations Authority v. U.S. Department of Justice

Citation: 137 F.3d 683Docket: Docket No. 97-4001

Court: Court of Appeals for the Second Circuit; September 25, 1997; Federal Appellate Court

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The application to enforce an order of the Federal Labor Relations Authority (FLRA) relates to the Federal Labor-Management Relations Act (FLMRA). It addresses whether the FLRA properly determined that the Office of the Inspector General (OIG) of the Department of Justice (DOJ) engaged in an unfair labor practice by denying a request from employees of the Immigration and Naturalization Service's New York office for union representation during questioning by OIG agents. Additionally, it considers whether the FLRA's authority to apply the FLMRA to OIG interrogations can be challenged in this enforcement action, despite not being raised before the FLRA after an adverse ruling by an Administrative Law Judge (ALJ).

The FLRA had previously ruled that the OIG, DOJ, and INS-NY committed unfair labor practices. The court concluded that the FLRA lacks the authority to require an Inspector General to allow union representation during questioning, except in rare circumstances where the interrogation resembles traditional personnel responsibilities rather than bona fide investigative purposes. The court asserted its jurisdiction to make this ruling and subsequently denied the enforcement application.

In the background, OIG agents sought to question INS inspectors and detention officers regarding serious allegations. When these employees requested union representation, their requests were denied, leading to unfair labor practice charges filed by their union. An ALJ found that the OIG had committed an unfair labor practice by denying union representation and also found similar violations by the DOJ and INS-NY. The ALJ ordered them to cease such denials and provide affirmative relief. The respondents did not contest the ALJ's findings with the FLRA, which later adopted the ALJ's decision. Following this, the FLRA applied to the court for enforcement of its order, which prompted a review of the respondents' jurisdictional challenge.

The Federal Labor-Management Relations Act (FLMRA) establishes guidelines for collective bargaining between federal agencies and their employee representatives, specifically outlined in 5 U.S.C. §§ 7111-7114. Notably, employees engaged in investigation or audit functions related to agency internal security are excluded from the definition of "appropriate" bargaining units, as stated in § 7112(b)(7). Employees of the Office of Inspector General (OIG) fall within this exclusion and cannot participate in collective bargaining. While there is consensus on their exclusion, there is a dispute regarding whether this exclusion negates certain protections afforded to other bargaining unit employees, such as the right to representation during examinations that could lead to disciplinary action, as outlined in § 7114(a)(2)(B). This right, known as the Weingarten provision, parallels rights under the National Labor Relations Act and is enforceable as an unfair labor practice under § 7116(a).

Regarding jurisdiction, the Federal Labor Relations Authority (FLRA) argues the court lacks jurisdiction to address claims that OIG agents are not "representatives of the agency" since no exceptions to the Administrative Law Judge's (ALJ) ruling were raised before the FLRA, per 5 U.S.C. § 7123(e). The respondents counter that extraordinary circumstances justify their failure to raise this objection earlier, citing futility due to prior FLRA rulings. The Department of Justice (DOJ) has acted inconsistently by not filing exceptions to the ALJ’s ruling and delaying its opposition until after the FLRA initiated enforcement proceedings. Despite the DOJ's approach seeming contrary to its usual practices regarding procedural requirements, the court ultimately determines it has jurisdiction to consider the merits of the case, referencing past rulings that allow for exceptions when presenting issues to the FLRA would be futile.

Section 7114(a)(2)(B) of the FLRA mandates that a union representative be present during employee questioning by a "representative of the agency." The FLRA has determined that Office of Inspector General (OIG) agents qualify as "representatives" of the Department of Justice (DOJ) for this purpose. The respondents were not obligated to ask the FLRA to change this established position. Even without a petition for review from the respondents, the FLRA's enforcement petition grants the court jurisdiction to examine the case and the issues it addresses, as affirmed by the D.C. Circuit. 

The relevant "agency" under section 7114(a)(2)(B) raises two questions: the identity of the agency and whether OIG agents are representatives of that agency. Four entities are potential candidates for the "agency": INS-NY (the immediate workplace of the employees), INS (the parent entity), DOJ (the overarching department), and OIG (the entity conducting the interrogations). The FLRA defines "agency" as an Executive agency, with specific exclusions. The DOJ is included as an Executive department, but its components are not separately classified as agencies. The term "independent establishment," which could encompass the OIG, is defined broadly, leading to differing interpretations among Circuit Courts. Notably, the D.C. Circuit has affirmed that the DOJ's OIG qualifies as an "agency" under this definition.

The Third Circuit interprets "independent establishments" under 5 U.S.C. 104 as excluding any parts of Executive departments, as demonstrated in Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988). Consequently, in disputes involving the Department of Defense (DOD), the relevant "agency" is the DOD itself, not its subdivisions such as the Defense Logistical Agency or the Defense Criminal Investigative Service. Similarly, the Eleventh Circuit has determined that the pertinent "agency" in a case involving NASA is NASA itself. This interpretation aligns with the understanding that "independent establishment" specifically excludes "parts" of Executive departments, which means the Office of Inspector General (OIG) of the Department of Justice (DOJ) does not qualify as an "independent establishment" and, therefore, is not considered an "Executive agency" under the Federal Labor-Management Relations Act (FLMRA). 

The DOJ argues that the "agency" referenced in section 7114(a)(2)(B) is the component engaging in collective bargaining. While the DOJ is certain the OIG is not that entity, it is unclear whether it considers the Immigration and Naturalization Service-New York (INS-NY), INS, or DOJ itself as the relevant agency. The collective bargaining agreement indicates the INS executed it on behalf of management. The Administrative Law Judge (ALJ) and the FLRA determined that the relevant agency for section 7114(a)(2)(B) is the parent agency of the unit employing the interrogated employees, which is the DOJ in this instance. 

The question arises whether an OIG agent can be deemed a "representative" of the DOJ for section 7114(a)(2)(B) purposes. The DOJ contends that since OIG personnel cannot be part of collective bargaining units, the OIG is not subject to the FLMRA, and thus section 7114(a)(2)(B) requirements do not apply to OIG agents. This argument is challenged, suggesting that Congress may have excluded OIG agents from bargaining units while still requiring them to allow union representative attendance during interrogations of employees who are protected under the FLMRA and collective bargaining agreements.

The Third and Eleventh Circuits have determined that an Office of Inspector General (OIG) agent from a cabinet department like the DOJ or NASA qualifies as a "representative of the agency" under section 7114(a)(2)(B). In contrast, the D.C. Circuit has ruled that this section does not apply to interrogations conducted by OIG agents, viewing the OIG as distinct from its parent department. This raises a conflict between the Federal Labor-Management Relations Act (FLMRA), which aims to protect federal employee rights, and the Inspector General Act (IGA), which seeks to ensure independent investigations of federal entities. 

Imposing FLMRA protections on all OIG interrogations could undermine their independence. However, Congress likely did not intend for agency heads to bypass FLMRA protections by delegating interrogations to OIG agents. The determination of whether an OIG agent is a "representative" under section 7114(a)(2)(B) hinges on the context of the interrogation. If the OIG agent is conducting a bona fide investigation under the IGA, they are not considered a "representative" of the agency. 

For example, an FBI agent interrogating a DOJ employee regarding alleged criminal behavior might be deemed a representative for certain purposes, but not under section 7114(a)(2)(B). Similarly, OIG agents conducting legitimate IGA functions are not restricted by Weingarten protections. The Third and Eleventh Circuits' stance that section 7114(a)(2)(B) applies simply because the inquiry relates to employee misconduct is not agreed upon. The current case involves interrogations regarding serious allegations, such as bribery and policy violations, without indication that OIG agents were merely performing the role of DOJ supervisory staff. Consequently, section 7114(a)(2)(B) does not apply to the interrogations in this case, and no unfair labor practices (ULPs) occurred.

The ruling clarifies that the applicability of section 7114(a)(2)(B) hinges on the interrogation's scope, without determining if OIG agents must predefine the subject matter of their inquiries. OIG agents risk violating Weingarten protections if their questioning exceeds IGA functions, which could lead to findings of unfair labor practices and restrictions on taking action against employees based on the interrogation. Despite this, the broad scope of IGA functions suggests that the likelihood of violating section 7114(a)(2)(B) when questioning without a union representative is low. Consequently, the FLRA’s petition for enforcement is denied.

The interpretation of the pronoun "whose" in the context of the provision contains ambiguity; it likely refers to "employee," thereby excluding employees primarily engaged in investigations. The FLMRA mandates that exclusive representatives be present during investigations if the employee believes disciplinary action may result and requests representation. There is no specified time limit for the Authority’s enforcement petition. The text also discusses the precedent set by United States v. L.A. Tucker Truck Lines, Inc., clarifying that while generally, contentions must be presented to the agency for judicial review, exceptions like the "futility" doctrine apply. The Authority has chosen to focus on jurisdictional arguments without addressing the merits of the case at this time.

The Department of Justice (DOJ) did not challenge the Administrative Law Judge's (ALJ) ruling before the Federal Labor Relations Authority (FLRA) or seek a review from the Court, which surprised the authors. They also express astonishment at the FLRA's belief that it could later present its views on the merits despite the ongoing enforcement petition. The authors disagree with the D.C. Circuit's conclusion that the DOJ is not the relevant "agency" under section 7114(a)(2)(B), as the FLRA had previously dismissed the DOJ's involvement in an unfair labor practice case. The authors argue that the DOJ's lack of direct responsibility for the Office of Inspector General's (OIG) actions does not negate its status as the pertinent agency for assessing whether an OIG agent is a "representative" of the agency. They note that while the Inspector General Act (IGA) restricts the transfer of program responsibilities, agency heads can request investigations, which could potentially lead to circumvention of the IGA's intended protections. The FLRA's remedy order includes a provision preventing disciplinary action against employees based on information obtained from OIG examinations, although the authors do not express an opinion on the validity of this provision in cases related to section 7114(a)(2)(B).