U.S. Dept. of Justice v. Federal Labor Relations Authority

• Decision Date: 06 January 1995
• Docket Number: AFL-CI,I,No. 93-1284,93-1284
• Citation: 39 F.3d 361
• Parties: 147 L.R.R.M. (BNA) 2712, 309 U.S.App.D.C. 84, 63 USLW 2305 UNITED STATES DEPARTMENT OF JUSTICE; Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota; Office of Inspector General, Washington, D.C.; and Office of Professional Responsibility, Washington, D.C., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Border Patrol Council; American Federation of Government Employees,ntervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 361

39 F.3d 361

147 L.R.R.M. (BNA) 2712, 309 U.S.App.D.C.

84, 63 USLW 2305

UNITED STATES DEPARTMENT OF JUSTICE; Immigration and

Naturalization Service, Northern Region, Twin Cities, Minnesota; Office of Inspector General, Washington, D.C.; and Office of Professional Responsibility, Washington, D.C., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent,

National Border Patrol Council; American Federation of

Government Employees, AFL-CIO, Intervenors.

No. 93-1284.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 8, 1994.

Decided Nov. 4, 1994.

Rehearing Denied Jan. 6, 1995.

Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority.

Howard S. Scher, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause, for petitioners. With him on the briefs were Frank W. Hunger, Asst. Atty. Gen., and William Kanter, William C. Owen and Scott D. Cooper, Attys., U.S. Dept. of Justice, Washington, DC. Wendy M. Keats, Washington, DC, entered an appearance.

David M. Smith, Sol., Federal Labor Relations Authority, Washington, DC, argued the cause, for respondent. With him on the brief were William R. Tobey, Deputy Sol., and Richard Zorn, Atty., Federal Labor Relations Authority, Washington, DC.

Alexia F. McCaskill, Charles A. Hobbie, Washington, DC, and Mark D. Roth, Chicago, IL, entered appearances, for intervenors Nat. Border Patrol Council and American Federation of Government Employees, AFL-CIO.

Before: BUCKLEY, SENTELLE, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

A federal law enforcement officer came under investigation by his department's Office of Inspector General. A collective bargaining agreement existed between the officer's union and a departmental agency for whom the officer worked. The Inspector General operated independently of the agency. The principal questions are whether the Inspector General, during formal questioning of the law enforcement officer, committed unfair labor practices by denying the officer permission to consult privately with his union representative and by forcing the officer to testify about his conversations with his union representative.

I

In early 1990, the Office of Inspector General in the Department of Justice opened an investigation of Border Patrol Agent Jason S. Wood of the Immigration and Naturalization Service, an agency within the Justice Department. Wood, who worked at the Plentywood, Montana, Border Patrol Office, was suspected of selling government-owned ammunition, falsifying his time and attendance records, and gambling and abusing alcohol.

The statutory authority to investigate law enforcement personnel employed at the Justice Department rests with the Department's Office of Professional Responsibility (OPR) (see 5 U.S.C.App. Sec. 8E(b)(3) (Supp. V 1993)). The Office of Inspector General conducts investigations of such individuals for OPR pursuant to a memorandum of understanding between the two offices.

The Inspector General utilized Edward L. Nelson, an assistant Chief Patrol Agent of the Service, to conduct the investigation of Wood. It is agreed that while Nelson performed his duties for the Inspector General, the Immigration and Naturalization Service could not direct or control him.

The National Border Patrol Council, American Federation of Government Employees, AFL-CIO, served as the collective bargaining representative of a bargaining unit including Wood and other agents in the region. The union had a collective bargaining agreement with the Service. When Wood got wind of the investigation, he spoke with Jerry Gillies, a vice president of the union and, like Wood, a Border Patrol Agent. During their conversations in January 1990 and on July 15 and 16, 1990, Wood supplied details about his conduct. Gillies gave advice to Wood, told him that Nelson--who was in town--was an investigator for the Inspector General, and informed Wood of the procedures that would be followed when he submitted to an interview.

On July 15, 1990, while Wood and Gillies were talking on the telephone, Nelson arrived at Wood's home. Nelson told Wood that he was under investigation and instructed him to appear for an "investigative examination." The next day, Nelson spoke with an Assistant United States Attorney regarding the possibility of prosecuting Wood for stealing government property. The prosecutor believed he did not have enough evidence to prove that the government owned the ammunition Wood sold. When Nelson mentioned that Wood may have talked to Gillies about the ammunition, the prosecutor requested Nelson to interview Gillies. Nelson did so by telephone on July 17, 1990, with another special agent of the Office of Inspector General.

Gillies was reluctant to give any information to Nelson. He said he had been acting as a union representative when Wood talked with him and thought their conversations were privileged. Nelson responded that no such privilege existed and warned Gillies that if he refused to answer, his security clearance might be revoked, and he could be subject to disciplinary action. Answering Nelson's questions, Gillies supplied information about Wood's selling ammunition, falsifying time and attendance records, gambling and other matters, all of which Gillies had learned from Wood in their talks.

On July 18, 1990, Nelson conducted his "investigative examination" of Wood under oath and on the record. (By then, the Assistant United States Attorney had reviewed the results of the Gillies interview and had determined not to prosecute Wood.) William Hagen, another Border Patrol Agent, accompanied Wood as his union representative. Nelson advised Wood that he would be required to testify about allegations of misconduct. He warned Wood that anything he said could be used against him in administrative disciplinary proceedings but not in criminal proceedings unless he testified falsely, and that if he refused to answer, "this may subject you to revocation of any security clearance you may hold as well as disciplinary action up to and including removal from the Service." After administering an oath to Wood, Nelson questioned him about the ammunition sales and other matters, including Wood's conversations with Gillies and Wood's conducting an unauthorized investigation of Nelson. Twice Hagen requested an adjournment so that he could meet privately with Wood. Both times Nelson denied the request.

Nelson provided the results of his investigation to an Office of Inspector General "coordinator" in the Service's regional office. Thereafter, the Inspector General supplied a copy of Nelson's written report to the Service. The Service notified Wood that it proposed to remove him on the grounds that he had stolen government property; had falsified, misstated, exaggerated, or concealed material facts in connection with an investigation or other proper proceeding; and had engaged in conduct unbecoming an officer. Representing Wood in the disciplinary proceeding, the union forwarded requests to the Service for five different types of documentary material " '[i]n order to properly respond to the allegations set forth in the notice' of proposed removal." The Service provided some, but not all, of the information. At the conclusion of proceedings, the Service decided to suspend Wood for five days.

On a complaint brought by the General Counsel of the Federal Labor Relations Authority at the union's urging, the Administrative Law Judge ruled that the Office of Inspector General and OPR had committed unfair labor practices in violation of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Sec. 7116(a)(1) and (8), by Nelson's refusing to permit Wood and his union representative to have private conferences during Wood's examination; by generally restricting the union representative during the examination; and by questioning Wood and Gillies about their "privileged" conversations. As to the Office of Inspector General and OPR, the Federal Labor Relations Authority adopted the ALJ's findings and conclusions as its own. With respect to the Immigration and Naturalization Service, the Authority agreed with the ALJ that the Service violated section 7116(a)(1), (5), and (8) by failing to provide the union with information it had requested pursuant to 5 U.S.C. Sec. 7114(b)(4). U.S. Department of Justice & National Border Patrol Council, 46 F.L.R.A. 1526 (1993).

The case is here on a petition for review brought by the Office of Inspector General, OPR and the Service, and on the Authority's cross-application for enforcement.

II

The first issue is whether the Office of Inspector General (and OPR) committed an unfair labor practice when its investigator, Nelson, refused to allow the union representative to confer privately with Wood during the interrogation. ¹

The Federal Service Labor-Management Relations Statute makes it an unfair labor practice "for an agency--(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under" that Statute. 5 U.S.C. Sec. 7116(a)(1). As the Authority saw the case, the "right" the Office of Inspector General (and OPR) transgressed was that secured by section 7114(a)(2)(B), which states (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if--

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.

5 U.S.C. Sec. 7114(a)(2)(B).

We take as givens that the examination of Wood was, in section 7114(a)(2)(B)'s terms, "in connection with an investigation"; that Wood had "request[ed union] representation"; and that he "reasonably believe[d] ... disciplinary...