Why Did FLRA Pick a Fight with Agency IGs?

By on January 8, 2013 in Current Events with 6 Comments

Coming as a surprise to almost no one and after repeated drubbings by the DC Circuit on the issue, the Federal Labor Relations Authority (FLRA) continues its interpretation of other Agencies’ laws.  In a series of cases in 2012, FLRA has decided that it would reinterpret the law chartering Agency Inspectors General (IGs) to require that they follow negotiated procedures when conducting investigations despite some pretty clear intent of the Congress that IGs should be free to act independently.

The cases are 66 FLRA No. 165 and cursory denial of a reconsideration at 66 FLRA No. 184 and 66 FLRA No. 166 and an also fairly cavalier denial of reconsideration at 66 FLRA No. 185.   Perhaps we will see if the DC Circuit sees so little merit in the Agency’s arguments.

First Case: Reversal of Agency Head Review Determination

The Agency Head decided that “An employee being interviewed by a representative of the Agency (e.g., [DHS] Office of Inspector General) in connection with either a criminal or non-criminal matter has certain entitlements/rights regardless of who is conducting the interview” violated the IG Act and disapproved the provision.

In 66 FLRA No. 165, the FLRA said the union (NTEU) made it clear that, “…the Union asserts that the provision would ensure that bargaining-unit employees receive “the full negotiated protections of Article 22” of the term agreement whenever any CBP representative – including a representative of DHS’s Office of Inspector General (DHS‑OIG) – interviews them regarding any criminal or noncriminal matter.”

In a thirteen year old case, NASA v. FLRA, 527 U.S. 229 (1999), the Supreme Court found, NASA and NASA—OIG offer no convincing reason to believe that the Authority’s remedy is inappropriate in view of the IGA (Inspector General Act – my clarification), or that it will be ineffective in protecting the limited right of union representation secured by §7114(a)(2)(B). You read it too, huh?  You thought the limited right of union representation secured by the statute is what the court appeared to address.  The Authority decided pretty clearly to ignore a court decision it didn’t like (in the Fourth Circuit) follow one it did like (in the Eleventh Circuit) and then decide not only Congress intent in the IG Act but the Supreme Court’s intent in NASA.  That’s pretty heady stuff for an Agency that one DC Circuit Court judge called a “minor administrative body”.

Second Case: Denial of Arbitrator’s Award Appeal

In the second case FLRA sustained an arbitrator award as follows: “The Arbitrator found that CBP violated the parties’ collective-bargaining agreement (the agreement) because personnel from DHS’s Office of Inspector General (DHS-OIG) did not follow procedural protections set forth in Article 41 of the agreement when they interviewed CBP employees.“ 

The Authority’s reasoning is similar to that in the Agency Head Review case, “CBP argues that the Arbitrator exceeded his authority by “fashioning a remedy which improperly imposed contractual obligations on” DHS-OIG, “which is neither a party to the grievance, nor a party to the expired [a]greement.” Exceptions at 13. To the extent that CBP is arguing that the Arbitrator disregarded a specific limitation under law, as discussed above, we have rejected CBP’s contrary-to-law arguments. In addition, CBP does not argue that the Arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, or awarded relief to those who are not encompassed within the grievance. Accordingly, CBP does not demonstrate that the Arbitrator exceeded his authority, and we deny the exception.”

In other words, the IGs are bound to follow any collective bargaining agreement that touches upon their interaction with a bargaining unit employee or union representative as if they were Agency management officials.  That’s pretty clearly what FLRA envisions and, as such, it’s a very big expansion of the labor statute at the expense of the IG Act.  It’s also very clear, by the timing of the decisions and relationship to one another, FLRA chose to pick this fight at this time.

So What’s Next?

I don’t know whether DHS has appealed into the courts.  Whether or not it has, it would surprise at least me if Agency IGs wouldn’t take a strong interest in the issue and sooner or later make sure the courts weigh in.  FLRA gets deference from the courts in interpreting its own statute (a sometimes shaky proposition at best as often implied in court decisions) but none in interpreting other laws.  I doubt we’ve heard the last of this.  When the Civil Service Reform Act passed in 1978, a number of Agency Labor Relations wags said it should have been subtitled: The Washington Lawyer’s Full Employment Act.  FLRA is certainly putting the truth to that claim.

As always, any opinion you discern from the above reflects my views only.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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  1. hooray says:

    any help for federal employees is long past due so I ask you-
    why is it that representation can only be for agency head?
    hooray for the employee finally to make fair and balanced is a win for democracy under this administration

    • HRGuy71 says:

      I suppose this should be translated as: “I like the outcome. Therefore, it is a win for democracy.”

      Perhaps we should ignore the role of Congress and just conclude that the executive branch makes all decisions for the rest of the country. The problem is that the actions are not a “win for democracy;” it is a “win” for doing whatever you want to do after the last election and ignoring the rule of law. 

      No rational person would think that is a win for democracy anymore than it will be when another party wins the election and just overturns everything they don’t like (and that you may not want them to undo). Will that also be a “win for democracy” or an example of ignoring the constitution and setting up a totalarian government?

      We became the most successful and richest country in the world by having a rule of law. That has been thrown out in the last few years–and not just under Obama. We have recently dropped from one of the top three most free nations in the world to number 26–and dropping faster each year. Our income is down, our debt is higher, and we are one of the most disabled nations on earth if you look at our welfare payments.

      that drop in success and prosperity must, also, must be a “win for democracy” as you choose to define it.

      Kudos to Mr. Gilson for having the self-confidence to point out the obvious problems emanating from those self-serving sycophants occupying seats as the FLRA members.

      • Author says:

        “…self-serving sycophants occupying seats as the FLRA members”.   A mite strong from a non-union commentor.   I do believe that the mission the FLRA majority is on directly results from the playing out of union gains under the current statute.  What’s currently available is tough for a union to base its membership drives.  FLRA’s political goal of expanding the scope of bargaining is perfectly understandable for those not committed to a advancing a believable reputation as a neutral .  The FLRA simply can no longer make even a surface claim to neutrality.  It’s clearly in bed with the unions which sadly undermines its ability to put a straight face on its appeals processes or even ULP prosecution.  Agency reps know the score, they interact with FLRA every day.  The fact that there is yawning gap where the middle ground should be is their fault.

  2. ATCS says:

    As usual you are incorrect Gilson, it never ceases to amaze me how you add a whole bunch of bias to try convince the reader’s you are right and the only ones that bite ,work for HR, amazing. 
    You state :”FLRA has decided that it would reinterpret the law chartering Agency Inspectors General (IGs) to require that they follow negotiated procedures when conducting investigations despite some pretty clear intent of the Congress that IGs should be free to act independently”. The IG act does not say that they are exempt from contractual obligations, and where is the clear intent? If Congress wanted the IG to not be included in contractual representational rights all they have to do is………….wait for it…….put it into law, it’s a stroke of the pen, but they didn’t and the act has been on the books for 25 years and it has not changed. So the IG does in fact fall under contractual language for representational rights. Furthermore your statement that “The Authority decided pretty clearly to ignore a court decision it didn’t like (in the Fourth Circuit) follow one it did like (in the Eleventh Circuit)”is completely laughable, that’s exactly what everyone does, we all (HR,Union, attorneys) pick cases that back up our arguments. Why anyone would pay to listen to your lectures and advise, is beyond recognition and understanding.

  3. HRguru says:

    You know what would happen if the FLRA went away entirely and arbitrators and courts worked out federal labor relations?  Nothing. It might actually improve things by taking away the political swings.

    • HRGuy71 says:

      It is unfortunate that the FLRA and NLRB appointees have taken it upon themselves to play the role of Congress is deciding what the law “should have required” rather than what Congress actually passed. It isn’t surprising since this administration obviously believes it should just issue new regulations, executive orders and case law decisions where it can do so without bothering with the Constitutional role of Congress. America is ill served by this approach and it does lead to more swings as elections come and go. We are rapidly losing our constitutional form of government with examples of government actions such as what Bob has described.

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