Department of Treasury v. Federal Labor Relations Authority, 82-1397

• Decision Date: 06 May 1983
• Docket Number: No. 82-1397,82-1397
• Citation: 707 F.2d 574
• Parties: 113 L.R.R.M. (BNA) 2388, 227 U.S.App.D.C. 377 DEPARTMENT OF the TREASURY, Internal Revenue Service, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Treasury Employees Union, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 574

707 F.2d 574

113 L.R.R.M. (BNA) 2388, 227 U.S.App.D.C. 377

DEPARTMENT OF the TREASURY, Internal Revenue Service, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Treasury Employees Union, Intervenor.

No. 82-1397.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 11, 1983.

Decided May 6, 1983.

Petition for Review of an Order of the Federal Labor Relations Authority/Cross-application for Enforcement.

Marc Richman, Atty., Dept. of Justice, Washington, D.C., with whom William Kanter, Atty., Dept. of Justice, Washington, D.C., was on the brief, for petitioner.

William R. Tobey, Atty., Federal Labor Relations Authority, Washington, D.C., with whom Steven H. Svartz, Acting Sol., Federal Labor Relations Authority, Washington, D.C., was on the brief, for respondent.

Robert M. Tobias, Washington, D.C., with whom John F. Bufe, Lois G. Williams and James R. Lawrence, Washington, D.C., were on the brief, for intervenor. William F. White, Washington, D.C., also entered an appearance for intervenor.

Before TAMM and GINSBURG, Circuit Judges and PECK, ^* Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case concerns the duty of a federal agency to negotiate with its employees' collective bargaining representative about the conduct of internal security interviews that may expose the interviewed employee to disciplinary action. Petitioner Internal Revenue Service (IRS or Service) challenges a decision of the Federal Labor Relations Authority (FLRA or Authority) ordering the IRS to negotiate with the National Treasury Employees Union (NTEU or Union) on twelve Union proposals, all of them relating to investigatory interrogations of employees. See National Treasury Employees Union, 8 FLRA 136 (1982). The IRS resists the FLRA's order with respect to two of the twelve proposals. One of the two interrelated proposals concerns the advice the IRS must give to an employee "who refuses to respond or shows any reluctance to respond" to an inquiry in a non-criminal investigation, Joint Appendix (J.A.) 5; the other concerns the course the Service should follow when an employee "[refuses] to answer questions based upon lack of relevancy and/or materiality to the performance of duty." J.A. 5-6. Negotiation over these proposals, the IRS contends, would interfere impermissibly with its "management right" to determine the Service's internal security practices. See 5 U.S.C. Sec. 7106(a)(1).

The IRS attacked all twelve proposals before the Authority without differentiating among them; the Service broadly maintained that "[t]he security program ... embodied in [its] Inspector's Handbook" ¹ was not a bargainable matter. J.A. 15-16. In a terse opinion, the FLRA rejected this sweeping but unspecific challenge. ² Before this court, the Service has abandoned its highly general charge; instead, it has explained with particularity why it continues to resist placement of two of the twelve proposals on the bargaining table.

Ordinarily, we would turn away an agency that presented initially in court the full and detailed statement of position it should have furnished in its appearance before the Authority. See 5 U.S.C. Sec. 7123(c); 5 C.F.R. Sec. 2424.6(a)(2). However, an intervening FLRA decision renders this case exceptional. After time had expired to move for FLRA reconsideration, the Authority issued an opinion that is at least arguably inconsistent, in result and rationale, with the decision the IRS challenges here. See American Federation of Government Employees, 8 FLRA 347 (1982), petition for review pending on other grounds, No. 82-1622 (D.C.Cir. filed June 3, 1982). To avoid uncertainty and confusion in an area significant to agencies and their employees, and

to afford the FLRA an opportunity to provide more secure guidance, we remand the case so that the Authority may address the Service's now precisely stated objections.

I. BACKGROUND

A. Statutory Duty to Bargain

The Federal Service Labor-Management Relations Act ³ accords federal employees an encompassing right "to engage in collective bargaining [through representatives chosen by them] with respect to conditions of employment." 5 U.S.C. Sec. 7102(2). See also id. Secs. 7103(a)(12) ("collective bargaining" defined) & 7103(a)(14) ("conditions of employment" defined). Federal agencies have a corresponding duty "[to] negotiate in good faith [with the exclusive representative of their employees] for the purposes of arriving at a collective bargaining agreement." Id. Sec. 7114(a)(4). See also id. Sec. 7114(b) (obligations included in "duty to negotiate in good faith"). With several exceptions stated in the Act, ⁴ the agency's expansive obligation to bargain includes "matters which are the subject of ... [an agency] rule or regulation." Id. Sec. 7117(a)(1). The exception relevant here is the major one the Act specifies, the "management rights" clause set out in section 7106(a). ⁵

The "management rights" clause exempts from negotiation, inter alia, agency determinations about its "mission, budget, organization, number of employees," and, of concern in this case, "internal security practices." Id. Sec. 7106(a)(1). While "management rights" themselves are nonnegotiable, bargaining is nonetheless authorized on "procedures which ... the agency will observe in exercising [its nonbargainable prerogatives]." Id. Sec. 7106(b)(2). ⁶

If an agency asserts that a matter proposed for bargaining is nonnegotiable, the employees' representative may ask the FLRA to resolve the issue. Id. Secs. 7105(a)(2)(E) & 7117(c); see 5 C.F.R. pt. 2424 (1982) (procedures for Authority resolution of negotiability issues). The FLRA may order an agency to bargain in good faith on a proposal, 5 C.F.R. Sec. 2424.10(b), but it may not "compel either party to agree to a proposal or to make a concession." 5 U.S.C. Sec. 7103(a)(12). ⁷

B. Facts

In November 1979 the NTEU, as exclusive representative of consolidated units of IRS employees, ⁸ requested notice from the IRS of changes the Service planned to make in certain sections of the IRS Inspector's Handbook. The Service sent the Union copies of the amended sections and invited submission of any proposals the NTEU might have. In December 1979 the Union sent the IRS a set of twelve proposed alterations for Handbook sections relating to employee internal security interviews. J.A. 2-6. The Service eventually alleged that all twelve proposals were nonnegotiable because they involved "matters which are an integral part of the internal security practices of the Agency as defined in 5 U.S.C. [Sec.] 7106(a)(1)." J.A. 8 (letter from IRS to NTEU (June 4, 1980)). The NTEU thereupon appealed to the FLRA. J.A. 1 (letter from NTEU to FLRA (June 19, 1980)).

The Authority determined that the Union's proposals, without exception, were bargainable. See National Treasury Employees Union, supra. Based upon the record before it, the FLRA viewed the twelve proposals as "procedures," negotiable under 5 U.S.C. Sec. 7106(b)(2), ⁹ intended "to ensure that an employee who is about to be interrogated is notified of the circumstances under which questioning will occur." National Treasury Employees Union, supra, 8 FLRA at 137. Nothing in the NTEU's submissions to the IRS, the Authority said, encroached upon "the Agency's determination whether to interview a particular employee." Id. No argument had been made by the IRS, the FLRA observed, "that any of the particular procedures set forth in the proposals are prohibited by law." Id. Nor did the Authority discern "that the proposals would specify substantive criteria pursuant to which management must determine its internal security practices." Id. The IRS itself had provided no "specific support" for its position, the Authority stressed, nor did the FLRA find such support "otherwise apparent." Id.

The Service's petition for review, filed pursuant to 5 U.S.C. Sec. 7123(a), ¹⁰ narrows the controversy to NTEU Proposals 10 and 11. See Brief for Petitioner 6 n. 2. Proposal 10 would add to section 634.6(1) of the IRS Inspector's Handbook: ¹¹Further, the employee who refuses to respond or shows any reluctance to respond in a non-criminal conduct type case shall be advised orally and in writing:

"You are here to be asked questions pertaining to your employment with the Internal Revenue Service and the duties that you perform for the IRS. You have the option to remain silent, although you may be subject to removal from your employment by the Service if you fail to answer material and relevant questions relating to the performance of your duties as an employee. You are further advised that the answers you may give to the questions propounded to you at this interview, or any information or evidence which is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to a criminal prosecution for any false answer that you may give."

J.A. 5. Proposal 11 would substitute in place of current section 634.6(3): ¹²

Refusal to answer questions based upon lack of relevancy and/or materiality to the performance of duty.

(1.) An employee may refuse to answer questions which are not relevant or material to the performance of his/her duty. Such questions will be withdrawn when asked as well as avoided at all cost.

(2.) [I]f an employee refuses to answer for this reason and the Inspector disagrees with the employees's [sic] conclusions concerning the materiality or revelance [sic] of a question, the question will be written down by Inspections and the employee will be given a reasonable time to respond in writing at a later date.

(3.) A bargaining unit employee will also have the right to grieve the question on the grounds of materiality and relevance through the negotiated grievance procedure. If the employee's position concerning the question is...