Defense Criminal Investigative Service (DCIS), Dept. of Defense (DOD) v. Federal Labor Relations Authority, 87-3758

• Citation: 855 F.2d 93
• Decision Date: 18 August 1988
• Docket Number: No. 87-3863,87-3863,Nos. 87-3758,No. 87-3758,87-3758,s. 87-3758
• Parties: 129 L.R.R.M. (BNA) 2233 DEFENSE CRIMINAL INVESTIGATIVE SERVICE (DCIS), DEPARTMENT OF DEFENSE (DOD), Petitioner in, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees (AFGE), Intervenor. DEFENSE CRIMINAL INVESTIGATIVE SERVICE, DEPARTMENT OF DEFENSE, Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner in
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 93

855 F.2d 93

129 L.R.R.M. (BNA) 2233

DEFENSE CRIMINAL INVESTIGATIVE SERVICE (DCIS), DEPARTMENT OF

DEFENSE (DOD), Petitioner in No. 87-3758, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees (AFGE), Intervenor.

DEFENSE CRIMINAL INVESTIGATIVE SERVICE, DEPARTMENT OF

DEFENSE, Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner in No. 87-3863.

Nos. 87-3758, 87-3863.

United States Court of Appeals Third Circuit.

Argued June 9, 1988.

Decided Aug. 18, 1988.

Richard K. Willard, Asst. Atty. Gen., William Kanter, John P. Schnitker (argued), Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for petitioner in No. 87-3758 and respondent in No. 87-3863.

Ruth E. Peters, Sol., William E. Persina, Deputy Sol., Arthur A. Horowitz, Associate Sol., William R. Tobey (argued), Federal Labor Relations Authority, Washington, D.C., for respondent in No. 87-3758 and petitioner in No. 87-3863.

Martin R. Cohen (argued), Staff Counsel, American Federation of Government Employees, AFL-CIO, Local 2567, Philadelphia, Pa., Mark D. Roth, Gen. Counsel, American Federation of Government Employees, AFL-CIO, Local 2567, Washington, D.C., for intervenor.

Before BECKER, STAPLETON and GREENBERG, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

The Defense Criminal Investigative Services (DCIS) petitions for review of a Federal Labor Relations Authority (FLRA) decision that a DCIS investigator is "a representative of the agency" for purposes of 5 U.S.C. Sec. 7114(a)(2), a statute which entitles any federal employee in a bargaining unit to the presence of a representative from his or her union when being questioned by a representative of the employing agency about a matter that could lead to the imposition of disciplinary sanctions. The FLRA cross-petitions for enforcement of its order. We find the FLRA's interpretation of Sec. 7114(a)(2)(B) reasonable, and will therefore deny review and grant enforcement.

I.

The DCIS, one of the myriad subdivisions of the Department of Defense (DOD), is under the authority of the DOD's Office of the Inspector General (DOD-OIG). Established by a 1982 amendment to the Inspector General Act of 1978 (IG Act), 5 U.S.C. app. 3, the DOD-OIG's main purpose is to combat fraud, waste, and abuse in DOD programs and operations. It does this by means of investigations and audits. Within the DOD-OIG, the DCIS has the main responsibility for criminal investigations. The DCIS regularly furnishes the information it obtains in investigative interviews to other subdivisions within the DOD which might be affected by such information, though it is not required to do so and does not make any recommendations as to appropriate use of the information. The DCIS Director reports directly to the DOD Inspector General. The DOD Inspector General, like every other Inspector General, has a great deal of independence. Under 5 U.S.C. app. 3 Sec. 3(a):

Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.

The DOD Inspector General is subject to a specific exception to Sec. 3(a) in that the Secretary of Defense may interfere with DOD-OIG affairs under specified circumstances, in connection with national security issues. 5 U.S.C. app. 3 Sec. 8(b). The DCIS has no collective bargaining agreement with any labor union.

The Defense Logistics Agency (DLA), another subdivision of the DOD, is under the authority of the Assistant Secretary of Defense for Manpower, Reserve Affairs and Logistics. The DLA has a collective bargaining agreement with the American Federation of Government Employees (AFGE). Raymond Nazare and Irene Fedoriw are employed by the DLA and are AFGE members.

In January of 1985, a gunshot was allegedly fired through a window of the home of Otto Miller, a supervisor of a subdivision of the DLA. Miller notified both the local police department and a superior in the DLA of this incident. In accordance with established procedure, the matter was referred by Miller's DLA superiors to the regional office of the DCIS. The DCIS was also told by the DLA that Nazare and Fedoriw were thought to have been involved in the gunshot incident.

DCIS agent Katherine Johnson was assigned to investigate the case. Accompanied by a member of the local police force, Johnson went to question Nazare and Fedoriw at the DLA office where they worked. At this time, a DLA official told Johnson that under the collective bargaining agreement between the DLA and the AFGE, a DLA employee was entitled to have union representation during questioning if the employee so requested and if the employee reasonably believed the questioning could lead to disciplinary action. Johnson, after consulting by telephone with a DCIS superior, informed the DLA official that the DLA-AFGE collective bargaining agreement did not give Nazare and Fedoriw any right to union representation at interviews conducted by the DCIS.

The DLA provided Johnson with a room in which to conduct the interviews, and summoned the employees for questioning. At their interviews, which were conducted separately, Nazare and Fedoriw each requested union representation. In each case Johnson denied the request and proceeded with the interview. An unfair labor practice complaint was subsequently issued by the FLRA against the DCIS based on Johnson's refusal to permit union representation at the interviews of Nazare and Fedoriw.

Under the Federal Labor-Management Relations Act (FLMRA), 5 U.S.C. Sec. 7101 et seq.:

(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--

(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or

(B) An exclusive 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).

The purpose of Sec. 7114(a)(2)(B) was to confer upon federal employees the same rights that employees in the private sector enjoy under NLRB v. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). See Internal Revenue Service v. FLRA, 671 F.2d 560, 563 (D.C.Cir.1982). In Weingarten, the Supreme Court held that Sec. 7 of the National Labor Relations Act entitles employees in the private sector to refuse to submit to an investigatory interview without a union representative being present. After Weingarten, employer representatives investigating employee conduct must, when an employee makes a valid request for union representation, grant the request, discontinue the interview, or offer the employee the choice of continuing the interview unrepresented or having no interview. This is known as the Weingarten rule.

A violation of Sec. 7114(a)(2)(B) constitutes an unfair labor practice under Sec. 7116 of the FLMRA, which provides that:

(a) For the purpose of this chapter, it shall be 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 this chapter;

* * *

(8) to otherwise fail or refuse to comply with any provision of this chapter.

The only provision of these statutes at issue here is whether DCIS investigator Johnson was "a representative of the agency" within the meaning of Sec. 7114(a)(2)(B).

The FLRA Administrative Law Judge who heard the unfair labor practice complaint found that the DCIS had not violatedSec. 7114(a)(2)(B). In the ALJ's view, the DLA was the "agency" referred to by Sec. 7114(a)(2)(B) and the DCIS was "so independent within DOD" that it could not be considered a "representative" of the DLA. The ALJ therefore found that no unfair labor practice had occurred, and recommended dismissal of the complaint.

While the FLRA agreed with the ALJ that the DCIS and the DLA were separate organizations within the DOD and that the DCIS was not a "representative" of the DLA, the FLRA construed the statute to mean that the DOD was the "agency" referred to by Sec. 7114(a)(2)(B), and accordingly found that a DCIS investigator was a "representative of the agency." The bases for the FLRA's conclusion were the definition of "agency" given by Sec. 7103(a)(3), and the nature of the interviews conducted by Johnson. According to the FLRA:

DCIS, as an organizational component of the Department of Defense was acting as a "representative of the agency," that is, DOD, within the meaning of section 7114(a)(2)(B). Clearly, DOD is an "agency" within the definition of that term in section 7103(a)(3) of the Statute as the parties have acknowledged in the complaint and answers in this case. As the investigative arm of DOD, DCIS was conducting an investigation into alleged criminal activity involving DLA employees. That a criminal investigation may constitute an "examination in connection with an investigation" was recognized by the Authority in the Internal Revenue Service case [23 FLRA No. 108 (1986) ] ... and is not in dispute in this case. Accordingly, we find that each of the interviews with the employees constituted an examination in connection with an investigation within the meaning of section 7114(a)(2)(B...