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.