Nat'l Treasury Emps. Union v. Fed. Labor Relations Auth.

• Decision Date: 17 June 2014
• Docket Number: No. 12–1199.,12–1199.
• Parties: NATIONAL TREASURY EMPLOYEES UNION, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

754 F.3d 1031

NATIONAL TREASURY EMPLOYEES UNION, Petitioner

v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 12–1199.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 18, 2014.

Decided June 17, 2014.

On Petition for Review of an Order and Decision of the Federal Labor Relations Authority.

Paras N. Shah argued the cause for the petitioner. Gregory O'Duden, Larry J. Adkins and Julie M. Wilson were on brief.

Zachary R. Henige, Attorney, Federal Labor Relations Authority, argued the cause for the respondent. Rosa M. Koppel, Solicitor, and David M. Shewchuk, Deputy Solicitor, were on brief.

Howard S. Scher, Attorney, United States Department of Justice, argued the cause for amicus curiae United States of America. Stuart F. Delery, Principal Deputy Assistant Attorney General, and Leonard Schaitman, Attorney, were on brief.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

The National Treasury Employees Union (NTEU or Union) petitions the Court for review of a Federal Labor Relations Authority (FLRA or Authority) decision finding, inter alia, that the Internal Revenue Service (IRS) did not commit an unfair labor practice when Union representatives were excluded from “suitability” interviews of “covered” IRS personnel conducted by Office of Personnel Management (OPM) investigators. Under the Federal Service Labor–Management Relations Statute (FSLMRS or Statute), union representatives are permitted to attend “any examination” of a federal employee the union represents if (1) the examination is conducted by a “representative” of the employing agency and (2) the employee requests representation and reasonably believes that the meeting may result in disciplinary action. 5 U.S.C. § 7114(a)(2)(B). The FLRA determined that covered IRS personnel are not entitled to union representation at suitability interviews conducted by OPM investigators because OPM investigators do not act as “representatives” of the IRS during the interviews. For the reasons set forth below, we deny NTEU's petition for review.

I. Background

A.

The FSLMRS “establishes a collective bargaining regime in the federal public sector,” Nat'l Treasury Emps. Union v. FLRA, 414 F.3d 50, 52 (D.C.Cir.2005) (quotation marks omitted), and codifies “various labor rights” accorded federal employees, Am. Fed'n of Gov't Emps., Local 3669 v. Shinseki, 709 F.3d 29, 30 (D.C.Cir.2013). It expressly grants a federal employee and his union certain rights, known as “ Weingarten rights,” ¹ including that

[a]n exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at ... 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. § 7114(a)(2)(B). A federal employer's failure to provide an employee his statutorily conferred Weingarten rights constitutes an unfair labor practice under the Statute. See5 U.S.C. § 7116(a)(1) (unfair labor practice for federal employer “to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter”); id. § 7116(a)(8) (unfair labor practice for federal employer “to otherwise fail or refuse to comply with any provision of this chapter”).

The question before us is whether the statutory Weingarten rights of certain “covered” IRS personnel are triggered when an OPM investigator conducts a “suitability” interview of them. A covered position is “a position in the competitive service, a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and a career appointment to a position in the Senior Executive Service.” 5 C.F.R. § 731.101(b). Notwithstanding exceptions inapplicable here, an individual seeking covered employment must undergo an investigation in order to determine his “suitability for employment.” Id.§ 731.104(a). The President, to whom the Congress has granted broad authority to regulate entry in the civil service, see, e.g.,5 U.S.C. §§ 3301, 3302, has delegated to OPM the authority to conduct the suitability investigation, see Dickson v. OPM, 828 F.2d 32, 33–34 (D.C.Cir.1987) (“[T]he President has delegated to OPM, inter alia, the authority ... to investigate and determine the suitability of persons entering or employed in nonsensitive positions within the competitive civil service.” (citing Exec. Order No. 10,450)); see also5 C.F.R. § 731.104(a) (“[A]ppointments to covered positions ... require the person to undergo an investigation by OPM or by an agency with delegated authority from OPM to conduct investigations.” (emphasis added)); id. § 736.201(a) (“[T]he investigation of persons entering or employed in the competitive service, or by career appointment in the Senior Executive Service, is the responsibility of OPM.”); id. § 5.2(a) (OPM Director may investigate “the qualifications and suitability of applicants for positions in the competitive service”). As part of the suitability investigation, the covered IRS personnel at issue here are required to participate in an interview. OPM has the authority to sanction anyone who refuses to furnish testimony during a suitability interview. See5 C.F.R. § 731.103(g).²

Until 2008, the IRS used its own investigators to investigate and interview both covered and excepted personnel. As noted, the investigation of a covered individual is an OPM prerogative but an agency may annually request a delegation of authority from OPM to conduct its own suitability investigation of an individual seeking covered employment. See id. § 736.201(b). The IRS requested and received such authority each year until 2008. When the IRS conducted its own investigations and interviews (both suitability and non-suitability), it permitted NTEU representatives to attend suitability interviews of covered personnel and background interviews of excepted personnel on official time.

In 2008, the IRS did not renew its request for authority to conduct suitability investigations and, as a result, the delegation from OPM lapsed. Subsequently, OPM investigators began conducting suitability investigations of covered IRS personnel and also took over the background investigation of excepted IRS personnel. Because OPM's policy prohibits NTEU representatives from attending investigatory interviews of both covered and excepted personnel, the IRS stopped giving Union representatives official time to attend interviews.

Although the IRS no longer conducts suitability or background investigations, it has retained a role in the investigatory process. For example, the IRS initiates investigations of all candidates for employment by requiring them to complete certain forms and, once the forms are complete, it authorizes OPM to proceed with an investigation. In addition, interviews are often conducted during IRS business hours and in IRS work space and personnel must obtain permission from IRS supervisors before attending the interviews. The IRS informs candidates that they are required to participate in the investigatory interviews as a condition of employment and are subject to discipline if they do not cooperate. Finally, the IRS typically retains the investigation file assembled by OPM at the end of an investigation. The suitability and background investigations are “management's tool” for evaluating “character, honesty, integrity and loyalty.” Joint Appendix (JA) 248, Nat'l Treasury Emps. Union v. FLRA, No. 12–1199 (D.C.Cir. Dec. 14, 2012).

At the conclusion of the suitability investigation, a covered individual receives a “suitability determination.” A “suitability determination” is “a decision by OPM or an agency with delegated authority that a person is suitable or is not suitable for employment in covered positions in the Federal Government or a specific Federal agency.” 5 C.F.R. § 731.101(b). Pursuant to a standing OPM delegation, the IRS makes the suitability determinations for “applicants” for, and “appointees” to, covered positions. See5 C.F.R. § 731.103(a). An applicant is “a person who is being considered or has been considered for employment” and an “appointee” is “a person who has entered on duty and is in the first year of a subject-to-investigation appointment.” Id.§ 731.101(b). The IRS's authority to make a suitability determination for an applicant or appointee, however, is not without limits, to wit: the IRS mustconform to OPM policies and standards in making suitability determinations, see id. § 731.103(c), and OPM reserves the right to revoke its suitability determination delegation if the IRS fails to do so, see id. § 731.103(f); OPM oversees the IRS's exercise of its authority to make suitability determinations, see5 U.S.C. § 1104(b)(2); ³ OPM retains jurisdiction of a case “where there is evidence that there has been a material, intentional false statement, or deception or fraud in examination or appointment” and of a case “involving a refusal to furnish testimony,” 5 C.F.R. § 731.103(g); the IRS must refer cases to OPM when “Governmentwide debarment by OPM ... may be an appropriate action,” id. § 731.103(b); and OPM “may, in its discretion, exercise its jurisdiction ... in any case it deems necessary,” id. § 731.103(g). Although the IRS makes the suitability determination with respect to an applicant and appointee, it does not do so with respect to another, discrete category of IRS personnel, namely, a covered IRS “ employee.” ⁴See id. § 731.105(e).

B.

In response to OPM's policy of excluding NTEU representatives from investigatory interviews and the IRS's corresponding failure to give Union representatives official time to attend the interviews, NTEU filed two grievances against the IRS. The Union...