Federal labor experts know that just because a decision has been issued, it does not preclude more litigation on the same topic. A new decision from a Court of Appeals is a case in point.
The latest example is Department of Homeland Security v. Federal Labor Relations Authority and National Treasury Employees Union. The full decision is displayed at the end of this article.
Inspector General offices are separate organizations from the agencies they are assigned to investigate. These offices are also outside the coverage of the federal labor management relations statute, 5 USC Chapter 71. (See U.S. Dep’t of Justice v. FLRA, 39 F.3d 361, 365 & n.5 (D.C. Cir. 1994))
Moreover, it has previously been settled that union proposals concerning Inspector General investigative procedures are not “appropriately the subject of bargaining,” because to allow such bargaining “would impinge on the statutory independence of the IG.”
In this latest case, the FLRA ruled a union proposal to require an Inspector General’s office to allow for union representation during an investigation was a proper bargaining topic. While the issue had previously been made by a court that this was outside the scope of bargaining, the current FLRA has been inclined to find issues negotiable despite previous decisions to the contrary. That was done in this instance.
The FLRA had concluded that a broad U.S. Supreme Court decision opened up the subject for bargaining with another shot at expanding federal labor relations bargaining. The Court of Appeals for the DC Circuit disagreed. Instead, it reinforced the original prohibition against bargaining restrictions on an investigation by an IG office. As noted in this new case decision, the court adopted “the reasoning of our sister circuit:
[P]roposals which concern investigations conducted by the Inspector General, such as those at issue here, are not appropriately the subject of bargaining between an agency and a union.”
It isn’t surprising that federal employee unions would seek to become involved in this issue and restrict the actions of the IG while investigating a federal employee. Generally, a union wants to be able to attend and participate in such an investigation while the agency is opposed to including such provisions in a collective bargaining agreement. While one may hope the latest case would settle the issue, no doubt it will be re-litigated under a different fact situation.