American Federation of Government Employees, Local 2544 v. Federal Labor Relations Authority
Docket: No. 84-1479
Court: Court of Appeals for the D.C. Circuit; December 23, 1985; Federal Appellate Court
The American Federation of Government Employees, Local 2544, challenged a Federal Labor Relations Authority (FLRA) ruling that dismissed an unfair labor practice complaint against the Immigration and Naturalization Service (INS). The FLRA concluded that the INS did not engage in unfair labor practices by conducting an investigatory interview with an employee, Gregory Reed, after denying his request for union representation. The court reversed this decision, finding insufficient evidence to support the FLRA's assertion that Reed could not reasonably fear disciplinary action from the interview.
The case arose from an investigation into alleged misconduct by INS border patrol agents, including theft and inappropriate behavior. The Office of Professional Responsibility (OPR) conducted interviews with relevant personnel in April 1981. Reed, called to speak with OPR investigators, anticipated being questioned about alleged misconduct by other agents and was aware of the requirement to report such misconduct, which could lead to disciplinary action against him for non-compliance.
Upon arriving, Reed requested representation from Marvin Foust, the union's local president. The OPR investigators acknowledged Foust as Reed's representative but insisted that, due to a grant of immunity from disciplinary action for Reed's statement, Foust could not be present during the interview. They provided Reed with a document stating that no administrative proceedings would follow based on his statement. Reed and Foust had not been informed about the concept of administrative immunity prior to this incident.
Despite Foust's attempts to re-enter the interview room and advocate for Reed, he was repeatedly denied access, leading him to seek guidance from a superior. The denial of union representation during the investigatory interview was a central issue in the case, as it raised concerns about the employee's rights and the potential for disciplinary repercussions resulting from the interview.
Barnette informed Foust that he was the disciplinary officer and that Medici and Comey, the OPR investigators, lacked the authority to grant administrative immunity. They consulted OPR Associate Deputy Director Howard Dobbs, who provided a written statement regarding OPR's position on immunity from an agenda item for union discussions. Dobbs later confirmed to Reed that immunity had been explained to him, although he did not disclose that he relied on a 1979 memo from OPR Director Paul Kirby, which criticized a previous misuse of immunity that undermined employees' rights to union representation.
The American Federation of Government Employees (AFGE) filed an unfair labor practice charge claiming entitlement to represent Reed during the interview under 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (FLMR), which allows representation if an employee believes disciplinary action might result from an examination. The Administrative Law Judge (AU) determined that AFGE had no right to representation because the offer of immunity alleviated any reasonable fear of discipline. The AU noted Reed's effective request for union representation but concluded that the assurance of no administrative action negated any basis for his fear.
The AU also addressed the General Counsel's argument against the legal basis for granting immunity, asserting that specific statutory authorization is not required. The powers vested in the Attorney General and Commissioner included the authority to manage employees and implied the right to grant immunity. The AU found the Kirby Memorandum provided sufficient authorization for the investigators' actions, concluding that the immunity granted to Reed was valid and binding.
The FLRA accepted the findings of the Administrative Law Judge (AU) regarding Reed's case, but the union sought a review. The court found that the FLRA's conclusion that Reed could not reasonably fear disciplinary action was not supported by substantial evidence. Consequently, the case is reversed and remanded to the FLRA to instruct the INS to stop its unfair labor practice.
Key to the case is the assessment of whether Reed reasonably believed that the investigatory interview by the Office of Professional Responsibility (OPR) could lead to disciplinary action. The AU and FLRA affirmed that Reed effectively requested union representation, with the right to such representation hinging on the reasonableness of his fear of discipline. According to the FLRA’s interpretation of 7114(a)(2)(B), the right to union representation arises whenever circumstances suggest that an employee's responses could result in discipline, focusing on the possibility of discipline rather than its certainty.
The FLRA has defined the 'reasonably believes' standard as objective, evaluating whether a reasonable person, based on external evidence, would think that discipline could arise from the interview. This standard, established in NLRB v. J. Weingarten, Inc., is applicable to federal employees through Section 7114(a)(2)(B). The FLRA's analysis involves two inquiries: one considers what a reasonable employee would perceive regarding the interview's context, while the other examines the actual risk of discipline associated with the interview itself.
Although the AU and FLRA applied these two inquiries correctly, the court concluded that their specific findings lacked substantial evidence.
The Administrative Law Judge (AU) and the Federal Labor Relations Authority (FLRA) determined that the grant of immunity to Reed did not alleviate a reasonable employee's fear of disciplinary action. Although immunity could generally assuage concerns about discipline, the specific circumstances surrounding Reed's case indicated that he could reasonably doubt the efficacy of the purported immunity. Reed faced potential disciplinary action for failing to report misconduct by other agents, which heightened his apprehension. The FLRA did not contest the possibility for employees to question immunity grants; instead, the focus was on whether Reed had reasonable grounds to doubt the immunity's protective scope. The decision emphasized that the statutory right to union representation under 7114(a)(2)(B) applies when an employee has a reasonable belief that they may face discipline. The dissent's arguments, which referenced Heckler v. Chaney regarding agency discretion in internal personnel policy, were found to misinterpret the protections established by Congress in the Civil Service Reform Act of 1978. The record revealed that neither Reed nor the union local president had knowledge of the immunity, and the Deputy Chief Patrol Agent Barnette challenged the authority of those who supposedly granted it. Consequently, the evidence supported the conclusion that Reed retained a reasonable fear of discipline, affirming his right to union representation during the investigatory interview.
Ignorance about the grant of immunity from all parties involved—employee, union representative, and disciplinary officer—is acknowledged as reasonable due to a lack of evidence showing that such immunity was part of any formal INS policy or procedure. No prior instances of this type of immunity being granted at the Tucson station were established, further explaining the unfamiliarity of the employees. The absence of procedural regularity surrounding the immunity granted to Reed is highlighted, with OPR agents acting in a disorganized and improvised manner rather than following standardized procedures. Testimony from Dobbs and Medici reveals that their decisions to grant immunity were based solely on informal documents without any statutory or regulatory backing, indicating a lack of adherence to established protocols. Additionally, there was no prior communication to employees about any immunity policy, and the explanation provided to Reed regarding the immunity was insufficient. Consequently, Reed had valid reasons to fear disciplinary action despite the immunity claim, particularly concerning potential independent investigations into his conduct. The FLRA's previous determination that the immunity grant would alleviate any reasonable fear of discipline is found to lack substantial evidence. The dissenting opinion misinterprets the ruling, which does not contest the reasonableness of INS granting immunity in an informal manner, but rather emphasizes the importance of formal procedures in addressing an employee's apprehensions regarding disciplinary action.
An agency-employer's decision to grant immunity informally, without established policies, poses a risk that employees may fear disciplinary action and thus invoke their right to union representation during investigatory interviews. In this case, Reed's lack of prior knowledge about immunity, the confusion among management regarding its existence and scope, and the absence of evidence regarding the immunity's source necessitated the reversal of the FLRA’s conclusion for lack of substantial evidence. The dissent suggested that employees must accept claims of immunity from unfamiliar investigators, overlooking the context of Reed's situation, which involved distinct factions within management—OPR and the Regional Commissioner. Reed faced conflicting messages about authority, as the OPR agents did not clarify that their immunity would protect him from potential disciplinary actions from the deputy chief patrol agent. The Operations Instructions indicated that both OPR and the Regional Commissioner had separate responsibilities for disciplinary infractions, raising doubts about the legitimacy of the immunity. Additionally, the authority of OPR to grant immunity was questioned, as the deputy chief patrol agent explicitly denied OPR's power to issue such immunity, which AFGE presented as evidence relevant to Reed's reasonable fear of discipline.
The legitimacy of the immunity grant was a crucial issue for the AU and FLRA, but the FLRA's determination that the immunity was sufficiently authorized lacks substantial evidentiary support. The FLRA failed to address the deputy chief patrol agent's assertion that OPR officials lacked the authority to grant administrative immunity. Testimonies from Dobbs and Medici indicated they believed the Kirby Memorandum and a bargaining agenda item authorized such immunity. However, Dobbs acknowledged no other statutory or administrative regulation empowered him to grant immunity.
At the AU hearing, the INS did not present evidence showing OPR's authority to confer binding administrative immunity. The Kirby Memorandum, which referred to a specific incident as a potential 'misuse' of Weingarten rights, does not substantiate a policy for granting immunity. It suggests caution in applying any informal INS or OPR immunity practices. The bargaining agenda item referenced by Dobbs was merely a proposal, not a binding contract, and offered no authoritative power.
While the FLRA attempted to support its conclusion with 8 U.S.C. 1103, which outlines the Commissioner of INS's general powers, there is no evidence that the Commissioner delegated the power to grant immunity to OPR or that OPR had a consistent policy for such immunity. Dobbs did not cite any inherent power from the Commissioner; instead, he relied on dubious sources. The evidence indicated that the deputy chief patrol agent typically held disciplinary authority, suggesting he, rather than OPR, would be the one to grant immunity.
Furthermore, the FLRA incorrectly concluded that the absence of disciplinary action against Reed proved the validity of the immunity grant. This assumption contradicts the FLRA's own interpretation of 7114(a)(2)(B), which asserts that employees are entitled to union representation when there is a risk of future discipline during interrogations.
Dobbs incorrectly relied on the Kirby Memorandum and a bargaining agenda item to assert authority for granting immunity, leading to the conclusion that this purported immunity did not alleviate any reasonable fear of disciplinary action for the employee involved. The chief disciplinary officer denied OPR's power to grant immunity, and there was no evidence of an official policy for such immunity. Thus, the FLRA's assertion that immunity negated the risk of discipline was not supported by substantial evidence.
Even if immunity effectively protected the employee, this fact does not change the analysis of the risk of discipline during the investigatory interview, as 7114(a)(2)(B) focuses on that risk at the time of the interview. Arguments based on equitable estoppel do not negate a violation of 7114(a)(2)(B) and would not restore the union's right to representation. Given the uncertainty regarding the applicability of estoppel against the government, it is unjust to place the burden of such a risk on the employee.
In conclusion, the record demonstrates that the employee could reasonably fear discipline, contradicting the FLRA’s determination. The decision to dismiss the unfair labor practice complaint from AFGE is reversed, and the case is remanded to the FLRA to direct the Immigration and Naturalization Service to cease its unfair labor practices. The record indicates a tense atmosphere during the interview, highlighting the employee's desire for representation amidst procedural confusion.
An investigation is underway, during which Mr. Reed expresses a desire for union representation but also indicates he is willing to continue without it. Investigators, particularly Inv. Comey, assert that Mr. Reed cannot have representation at that moment, despite background voices insisting he is requesting it. The dialogue captures tension around Mr. Reed's rights and the implications of his statements. The Kirby Memorandum is referenced, highlighting "Weingarten" rights, which entitle a witness to representation if they fear disciplinary action. However, in a previous case, a witness's fears were alleviated by clarifying that no disciplinary action would result from their testimony, effectively negating their claim to representation. This is contrasted with Mr. Reed's situation, where the Administrative Law Judge (ALJ) concluded that Mr. Reed's willingness to testify did not eliminate his request for union representation. The excerpt also notes that non-compliance with union representation rights constitutes an unfair labor practice under FLMR provisions. The relevant statutory framework for appellate review of FLRA decisions is outlined as well.
The court must set aside agency actions that are not supported by substantial evidence, as stipulated in 5 U.S.C. 706(2)(E). The FLRA's definition of "reasonably believes" lacks a clear distinction between its two components, considering both the impact of Medici and Comey's words on Reed and the legitimacy of the immunity itself as relevant evidence. Despite the FLRA's authority to interpret this standard, remanding for clarification is unnecessary because the FLRA's decision is unsupported by substantial evidence under either interpretation. Relevant case law, including Spartan Stores, Inc. v. NLRB, illustrates that a reasonable fear of discipline can exist even when an employee is familiar with disciplinary procedures. The record indicates potential misuse of immunity, highlighted by INS counsel's argument that Reed's immunity was motivated by a desire to exclude union representation during the investigatory interview. Misapplying the "reasonably inheres" prong would undermine employee protections at critical moments, particularly when an agency misrepresents immunity to create a false sense of security. The court interprets the FLRA’s opinion to align with reasonable standards and congressional intent. Additionally, neither the FLRA nor INS provided evidence of a policy regarding the granting of administrative use immunity.
