Federal Labor Relations Authority v. National Aeronautics and Space Admin.

• Citation: 120 F.3d 1208
• Decision Date: 02 September 1997
• Docket Number: I,AFL-CI,95-6690,Nos. 95-6630,s. 95-6630
• Parties: 156 L.R.R.M. (BNA) 2237, 11 Fla. L. Weekly Fed. C 484 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Washington, D.C., and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., Respondents, American Federation of Government Employees,ntervenor. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Washington, D.C., and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees,ntervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1208

120 F.3d 1208

156 L.R.R.M. (BNA) 2237, 11 Fla. L. Weekly Fed. C 484

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Washington,

D.C., and National Aeronautics and Space

Administration, Office of the Inspector

General, Washington, D.C., Respondents,

American Federation of Government Employees, AFL-CIO, Intervenor.

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Washington,

D.C., and National Aeronautics and Space

Administration, Office of the Inspector

General, Washington, D.C., Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Intervenor.

Nos. 95-6630, 95-6690.

United States Court of Appeals Eleventh Circuit.

Sept. 2, 1997.

David M. Smith, Solicitor, FLRA, Ann Boehm, Washington, DC, Howard S. Scher, U.S. Dept. of Justice, Appellate Staff, Civil Division, Washington, DC, for Federal Labor Relations Authority.

William Kanter, John P. Schnitker, U.S. Dept. of Justice, Appellate Staff Civil Division, Washington, DC, for N.A.S.A.

Mark D. Roth, General Counsel, Alexia F. McCaskill, Asst. General Counsel, Charles A. Hobbie, Deputy General Counsel, American Federation of Government Employees, Washington, DC, for Intervenor American Federation of Government Employees.

Stuart A. Kirsch, Assistant General Counsel Litigation, American Federation of Government Employees, College Park, GA, for Intervenor in No. 95-6630.

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

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and STAGG ^*, Senior District Judge.

KRAVITCH, Senior Circuit Judge:

The Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101, et seq., ("FSLMRS" or the "Statute") grants federal employees the right to be represented by a union representative at an investigatory examination conducted by "a representative of the agency" if the employee reasonably believes that the examination may result in disciplinary action. 5 U.S.C. § 7114(a)(2)(B). We must decide, in the face of conflicting circuit authority, whether the Federal Labor Relations Authority ("FLRA" or the "Authority") properly concluded that an investigator from an agency's Office of the Inspector General ("OIG") is "a representative of the agency" within the meaning of § 7114(a)(2)(B).

I.

This case arose out of an investigation of an employee of the George C. Marshall Space Flight Center ("MSFC"), a component of the National Aeronautics and Space Administration ("NASA-HQ") that is located in Huntsville, Alabama. The NASA Office of the Inspector General ("NASA-OIG"), which is also a component of NASA-HQ, received information from the Federal Bureau of Investigation ("FBI") in January 1993 linking the MSFC employee to several documents that set forth potential threats and plans for violence against his MSFC co-workers. NASA-OIG immediately began to investigate whether the employee had in fact authored these documents. When NASA-OIG Special Agent Larry Dill contacted the employee to arrange an interview, the employee requested both legal and union representation, and Dill agreed to this request. ¹

At the outset of the interview, Dill stated that the union representative was present only to serve as a witness and was not to interrupt questions or answers. ² Dill further informed the union representative, Patrick Tays, that he could be called as a witness for the government in the future. Tays objected to these ground rules, and Dill responded by stating that he would cancel the interview if Tays did not comply with them. On a number of occasions during the examination, Dill challenged Tays's efforts to represent the employee.

Local 3434 of the American Federation of Government Employees ("AFGE"), the exclusive representative of the bargaining unit employees at the MSFC, filed a complaint pursuant to 5 U.S.C. § 7116(a)(1),(8) charging NASA-OIG and NASA-HQ with committing an unfair labor practice. ³ The complaint alleged that NASA-OIG and NASA-HQ violated 5 U.S.C. § 7114(a)(2)(B) by interfering with the union's representation of the employee at the interview with Dill. After a hearing, the Administrative Law Judge ("ALJ") determined that Dill's actions violated the union's right to take an active role at the investigatory examination. It therefore found NASA-OIG guilty of an unfair labor practice, but concluded that NASA-HQ was not responsible for the actions of the OIG investigator. NASA-OIG filed exceptions to the ALJ's rulings.

Upon review of the ALJ's order, the Authority determined that the ALJ had properly concluded that Special Agent Dill was a "representative of the agency" and that NASA-OIG was guilty of an unfair labor practice. The Authority disagreed, however, with the ALJ's ruling with respect to NASA- HQ, concluding that NASA-HQ, as the parent agency of NASA-OIG, was also responsible for the violation of § 7114(a)(2)(B). The Authority therefore ordered NASA-OIG and NASA-HQ to cease and desist from interfering with the representational rights granted by § 7114(a)(2)(B). It further directed NASA-HQ to post appropriate notice forms and to order NASA-OIG to comply with the requirements of § 7114(a)(2)(B) when conducting investigatory examinations.

NASA-HQ and NASA-OIG petitioned for review of the Authority's determination, and the Authority filed a cross-application for enforcement of its order. We subsequently granted AFGE's motion for leave to intervene in this appeal.

II.

We review decisions of the FLRA in accordance with § 706 of the Administrative Procedure Act, see 5 U.S.C. § 7123(c), and will set aside only those Authority actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In determining whether an action is in "accordance with law," we defer to the Authority's interpretation of the FSLMRS because of its specialized expertise in the field of federal labor relations. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 96, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) ("ATF "); Fort Stewart Sch. v. FLRA, 860 F.2d 396, 405 (11th Cir.1988), aff'd, 495 U.S. 641, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990). Thus, in considering an ambiguous provision of the FSLMRS, we are bound to uphold the Authority's construction as long as it is "reasonable and defensible." ATF, 464 U.S. at 96, 104 S.Ct. at 444.

In contrast, we grant no deference to the Authority's construction of a federal statute outside the field of federal labor relations. See United States Nuclear Regulatory Commission v. FLRA, 25 F.3d 229, 232 (4th Cir.1994) ("NRC "); FLRA v. Department of Defense, 977 F.2d 545, 547 n. 2 (11th Cir.1992). Similarly, when the Authority "resolves an arguable conflict between another statute and its own, we are required to make a wholly independent analysis of that issue." Defense Criminal Investigative Service v. FLRA, 855 F.2d 93, 98 (3d Cir.1988) ("DCIS ").

Accordingly, we undertake a bifurcated review of the Authority's decision in this case. We will review with deference the Authority's interpretation of § 7114(a)(2)(B) and will uphold its conclusions with respect to this section as long as they are reasonable and defensible. We will determine independently, however, whether the Authority's construction of this section of its own statute impermissibly conflicts with another federal statute, namely the Inspector General Act of 1978, 5 U.S.C. app. 3 §§ 1-12. Accord NRC, 25 F.3d at 232; DCIS, 855 F.2d at 97-98.

III.

Congress enacted § 7114(a)(2)(B) to extend the rights established for private sector employees in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), to federal employees. See 124 Cong. Rec. 29, 184 (daily ed. Sept. 13, 1978) (statement of Rep. Udall); DCIS, 855 F.2d at 96. Section 7114(a)(2) provides:

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.

In this case, it is undisputed that the employee reasonably believed that the examination would result in disciplinary action and that he requested representation. Moreover, NASA-OIG now concedes that the actions of Special Agent Dill interfered with the union's right to be represented at the investigatory interview. ⁴ Whether or not NASA-OIG violated § 7114(a)(2)(B) thus depends solely on whether Special Agent Dill was a "representative of the agency" when he conducted the examination.

Two circuits have considered the status of OIG investigators under § 7114(a)(2)(B) and have reached opposite conclusions. In Defense Criminal Investigative Service v. FLRA, the Third Circuit held that investigators of the Defense Criminal Investigative Services ("DCIS"), a subdivision of the Department of Defense ("DOD") under the authority of that agency's Inspector General, are bound by the terms of this section. 855 F.2d 93 (3d Cir.1988) ("DCIS "). The court concluded that "[i]t is apparent from the face of the statute that Congress wanted federal employees to have the assistance of a union representative when they were placed in a position of being called upon to supply information that would expose them to the risk of disciplinary action." Id. at 98-99. The court expressly rejected DCIS's contention that "representative of the agency" referred only to members of the bargaining unit with which the employee's union has a collective bargaining agreement. Id. at 99-100.

In Department of Justice v. FLRA, 39 F.3d 361 (D.C.Cir.1994) ("DOJ "), the D.C. Circuit concluded that the DOJ's Office of the Inspector General was not the...