DC Circuit Reverses FLRA Again For Exceeding Its Authority

On June 3, the D.C. Circuit again reversed the FLRA for interpreting a law other than its own. The case, involving the negotiability of union proposals limiting Agency Inspector General investigations to procedures bargained with a union, demonstrated the Court’s continuing refusal to defer to an FLRA interpretation of a law other than the one it administers. The author suggests practitioners read the complete decision but addresses the highlights in his article.

On June 3, 2014, the U.S. Circuit Court of Appeals for the District of Columbia Circuit (DC Circuit) handed the Federal Labor Relations Authority (FLRA) another reversal finding that FLRA had once again misinterpreted a Federal statute.  The twist this time is that the DC Circuit also found that FLRA had misinterpreted not only a Fourth Circuit Court of Appeals Decision but hit the big time by misinterpreting a Supreme Court case involving a related issue in the Federal labor statute FLRA is supposed to administer.

The Case (reported earlier on FedSmith) involved a negotiability case between Department of Homeland Security specifically Customs and Border Protection and the National Treasury Employees Union (NTEU).  NTEU was seeking to address how an investigative meeting would operate procedurally including what required notices, negotiated rights forms and other bargained constraints on the meeting.  This kind of proposal is predictable from a Federal employee union.

The rub in this case had to do with the statutory scope of the Inspector General Act of 1978.  The Supreme Court in a 1999 decision had ruled that a “Weingarten” right (the right of an employee in a bargaining unit to have a union representative present in an interview if the interview was investigative in nature, the employee could reasonably fear discipline and asked for the union) was s statutory right under the Federal labor statute that didn’t go away if the employee was investigated by an inspector general investigator (IG.).  The Fourth circuit held in 1994 that the IG was not subject to collective bargaining procedures due to the independence the IG Act had conferred on that office.

Throughout the current decision, the DC Circuit seemed to say over and over to FLRA, really?  It took FLRA’s entire case apart starting with its typical claim that arguments that weren’t made before the FLRA couldn’t be raised before the court.  The DC Circuit asked the question of how FLRA could have missed the Agency argument as the Agency cited a case FLRA relied upon.  It appeared obvious, at least to this reader, that the DC Circuit thought the FLRA was saying it had its mind made up and didn’t want to be confused with the facts or didn’t want a contrary view considered because it was contrary.

To cut to the chase, the case holds that no collective bargaining proposals are negotiable if they will place any constraints on how an IG investigator manages an interview with the employee.  This is critical because had the union won, it not only would have been squarely in the IG’s business but would have sought to create a legal restriction on the use of the evidence obtained in the interview for a failure to follow bargained procedures.

This case also raises an interesting question.

Since the FLRA has an IG, should that IG be looking into the fraud waste and abuse of repeated decisions in which FLRA has been reversed for the same exact reason?  In virtually every case in which the current FLRA has relied on its interpretation of a Federal statute, the DC Circuit has found their interpretation not only exceeded FLRA’s authority but was wrong.  Over and over the DC Circuit has found this FLRA’s decisions to be without merit.  Isn’t an IG supposed to assess the appropriateness of an Agency administration of the laws it enforces.  Ostensibly, the administration of the Federal labor statute is FLRA’s responsibility.

We hear a lot from FLRA about procedures i.e., timeliness, settlements, etc. in this regard but nothing examining whether FLRA has abused its authority by pursuing frivolous cases at taxpayer expense.  Of course, that’s exactly what Member Pizzella has stressed since his appointment criticizing both Agencies and unions for wasting money on frivolous cases.  The taxpayer interests appear to only be a minority concern at FLRA.  In fact, after Member Pizzella first mention of taxpayer concerns, the other two members actually said that that wasn’t their concern.  No surprise, huh?

Any opinion of mine expressed above, and there are a number of them, are my sole responsibility and hopefully won’t be held against anyone else.

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.