U.S. Nuclear Regulatory Com'n, Washington, D.C. v. Federal Labor Relations Authority, s. 93-1704
| Decision Date | 21 June 1994 |
| Docket Number | Nos. 93-1704,93-1851,s. 93-1704 |
| Citation | 25 F.3d 229 |
| Parties | 146 L.R.R.M. (BNA) 2453 UNITED STATES NUCLEAR REGULATORY COMMISSION, WASHINGTON, D.C., Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. National Treasury Employees Union, Intervenor. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, WASHINGTON, D.C., Respondent. National Treasury Employees Union, Intervenor. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Sushma Soni, Civ. Div., U.S. Dept. of Justice, Washington, DC, for petitioner. Frederick Michael Herrera, Federal Labor Relations Authority, Washington, DC, for respondent. Timothy Brendan Hannapel, Asst. Counsel, National Treasury Employees Union, Washington, DC, for Intervenor. ON BRIEF: Frank W. Hunger, Asst. Atty. Gen., Mark B. Stern, Civ. Div., U.S. Dept. of Justice, Washington, DC, for petitioner. David M. Smith, Sol., William R. Tobey, Deputy Sol., Federal Labor Relations Authority, Washington, DC, for respondent. Gregory O'Duden, Gen. Counsel, Barbara A. Atkin, Associate Gen. Counsel for appellate Litigation, National Treasury Employees Union, Washington, DC, for intervenor.
Before MURNAGHAN and NIEMEYER, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.
Petition for review granted and application for enforcement denied by published opinion. Judge NIEMEYER wrote the opinion, in which District Judge ELLIS joined. Judge MURNAGHAN wrote a separate dissenting opinion.
The question presented in this case is whether the United States Nuclear Regulatory Commission can be compelled to negotiate with a union for proposals defining employee rights and procedures for investigatory interviews of the Commission's employees conducted by the Office of Inspector General. The National Treasury Employees Union, the authorized bargaining representative of certain Nuclear Regulatory Commission employees, advanced four proposals to the Nuclear Regulatory Commission regarding procedures to be followed during investigatory interviews of the agency's employees by the Inspector General. The Nuclear Regulatory Commission refused to negotiate with respect to these proposals, contending that to do so would infringe on the independence of the Inspector General mandated by the Inspector General Act of 1978, 5 U.S.C. App. 3 Sec. 1 et seq. On the Union's petition, filed with the Federal Labor Relations Authority the Authority found that the proposals were proper subjects for negotiation and entered an order directing the agency to negotiate. For the reasons that follow, we grant the NRC's petition for review of that order and deny the Authority's cross-application for enforcement.
The Federal Service Labor-Management Relations Statute ("the FSLMRS"), 5 U.S.C. Sec. 7101 et seq., establishes the right of federal employees to form and join labor unions and engage in collective bargaining over conditions of employment. 5 U.S.C. Sec. 7102. The statute requires federal agency officials to "meet and negotiate in good faith [with union representatives] for the purposes of arriving at a collective bargaining agreement." 5 U.S.C. Sec. 7114(a)(4). This duty to bargain exists, however, only to the extent that it is "not inconsistent with any Federal law or any Government-wide rule or regulation." 5 U.S.C. Sec. 7117(a)(1).
During the course of negotiations with the Nuclear Regulatory Commission ("NRC"), the National Treasury Employees Union ("the Union"), which represents NRC employees, submitted four proposals which have given rise to this dispute. The proposals would define employee rights and establish procedures to be followed when agency employees are interviewed or interrogated in connection with both criminal and disciplinary investigations. The parties agree that these investigations would be conducted only by the Office of Inspector General. "Proposal 1" would give union representatives the right, during investigatory interviews, to clarify questions posed to employees and answers given by them, to suggest the names of other employees with knowledge of the issue, and generally to advise the employees. "Proposal 2" would require an investigator to apprise employees subject to disciplinary action of the general nature of the interview and of the employee's right to have a union representative present at the interview. "Proposal 3" would require an investigator to provide Miranda warnings to employees being interviewed for possible criminal conduct. Finally, "Proposal 4" would require similar warnings when the criminal prosecution has been declined but the employees may be subject to dismissal for failure to answer questions. 1
The NRC refused to negotiate over the four proposals, taking the position that its negotiating contractual limitations on the conduct of investigatory interviews by the Office of Inspector General would be inconsistent with the statutory independence of the Inspector General mandated by the Inspector General Act of 1978. Therefore, according to the NRC, such proposals are not negotiable by virtue of 5 U.S.C. Sec. 7117(a)(1), which establishes the NRC's duty to bargain only to the extent that the proposals are not inconsistent with any federal law. The Union filed a petition with the Federal Labor Relations Authority ("the Authority") pursuant to 5 U.S.C. Sec. 7105(a)(2)(E), to determine whether the proposals were negotiable. In response to the petition, the NRC relied upon the Authority's prior decision in National Federation of Federal Employees, Local 1300, and General Services Administration, 18 FLRA 789 (1985) (hereinafter,"General Services Administration "), which held that an agency has no duty to bargain over any union proposals purporting to influence the conduct of investigations conducted by the Office of Inspector General. In General Services Administration, the Authority stated:
[I]nsofar as the proposal would seek to have the Agency head utilize his general supervisory authority over the IG [Inspector General] to influence the manner in which that official conducts investigations it impermissibly infringes upon the independence of the IG to undertake such investigations. The intent of Congress ... is that agency officials respect the freedom of the IG to determine what, when, and how to investigate agency operations and that the IG not be subjected to pressure by any part of the agency. Thus, the independence of the IG under law precludes negotiation on proposals purporting to influence the conduct of IG investigations.
By a decision dated April 9, 1993, the Authority found that the four proposals of the Union were negotiable, concluding that it would no longer follow its earlier decision in General Services Administration. Relying on Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir.1988) (), the Authority concluded:
[W]e find that because IG representatives are employees of an agency and, thus, are subject to the agency's obligations under the Statute, an agency cannot declare proposals concerning IG investigations non-negotiable solely on the ground that, under section 3(a) of the IG Act, all proposals concerning IG investigations are outside the duty to bargain.
47 FLRA No. 29, at 9. The Authority entered an order stating that the NRC "must negotiate" on the proposals submitted by the Union.
The NRC filed a petition for review in this Court, and the Authority filed a cross-application for enforcement of its order.
Orders of the Federal Labor Relations Authority are reviewed by the courts of appeals pursuant to a petition for review filed by an aggrieved party or by a petition for enforcement filed by the Authority, 5 U.S.C. Sec. 7123(a) & (b), and the appropriate standard of review is that specified in Sec. 706 of the Administrative Procedure Act. 5 U.S.C. Sec. 7123(c). Thus, the reviewing court will set aside an agency ruling only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). In determining whether the Authority's action is "in accordance with law," the reviewing court ordinarily gives deference to the Authority's interpretation of the FSLMRS because the Authority has specialized expertise in this field. See Social Security Administration v. FLRA, 956 F.2d 1280, 1283 (4th Cir.1992). In this case, however, the Authority's order was based on its conclusion that the Union's bargaining proposals were not inconsistent with other federal law. In particular, the Authority determined that the Union's proposals were not inconsistent with the Inspector General Act of 1978 as it interpreted that Act. Because the Authority does not have special competence in the interpretation of that Act, its legal interpretations of that Act do not deserve any particular deference. See Internal Revenue Service v. FLRA, 902 F.2d 998, 1000 (D.C.Cir.1990); Defense Criminal Investigative Service v. FLRA, 855 F.2d 93, 97 (3d Cir.1988). Hence, we review the Authority's decision in this case de novo.
In the context of the statutory mandate that federal agencies meet with representatives of unions and bargain in good faith for the purpose of arriving at a collective bargaining agreement, except on matters "inconsistent with any Federal law," we must now decide whether the four proposals advanced by the Union are matters that are inconsistent with the Inspector General Act of 1978.
Congress enacted the Inspector General Act of 1978 in order "to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations of ... departments and agencies." S.Rep. No. 1071,...
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