U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. (Respondents) and American Federation of Government Employees, Local 709 (Charging Party/Union) and U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. (Respondents) and American Federation of Government, Employees, AFL-CIO (Charging Party/Union) (Authority decision, August 11, 2000)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

DOJ inspector-general agents denied requested union representation to employees questioned in separate prison and immigration-service investigations. The Authority upheld both unfair-labor-practice findings under the Supreme Court’s NASA decision. The criminal character of one investigation did not remove the agents from their role as agency representatives, particularly when the agency admitted that the employee reasonably feared discipline. The Authority rejected new remedy objections because the respondents had not raised them before the judges or in their exceptions. It adopted the judges’ remedies without precedential significance, including compliance directives and nationwide notices for the affected components. In the immigration-service case, it also ordered that no discipline result from information obtained during the examination conducted without requested representation.

Decision snapshot

• Authority: Union representation during investigatory examinations and preservation of remedy objections.
• Outcome: Both violations upheld; judges’ remedies adopted without precedential significance.
• Key point: An OIG investigation’s criminal label did not defeat representation rights where the statutory conditions were met.

Full text (FLRA public release)

[ v56 p556 ]

56 FLRA No. 87

U.S. DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE INSPECTOR GENERAL

WASHINGTON, D.C

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 709

(Charging Party/Union)

DE-CA-80076

and

U.S. DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE INSPECTOR GENERAL

WASHINGTON, D.C.

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

(Charging Party/Union)

WA-CA-80156

DECISION AND ORDER

August 11, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I. Statement of the Case

These unfair labor practice (ULP) cases are before the Authority on exceptions filed by Respondents U.S. Department of Justice, Washington, D.C. (DOJ) and U.S. Department of Justice, Office of the Inspector General (DOJ-OIG). The complaints allege that Respondents violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by failing to comply with section 7114(a)(2)(B) of the Statute. Specifically at issue is whether special agents of DOJ-OIG constitute "representatives" of the agency when conducting an examination of an employee under section 7114(a)(2)(B).

In both cases, the General Counsel moved for summary judgment, which the Administrative Law Judges (Judge(s)) granted. The Judges held that Respondents failed to comply with section 7114(a)(2)(B) when the DOJ-OIG special agents denied the bargaining unit employees' requests for union representation during the agents' examinations of the employees.

Upon consideration of the Judges' decisions and orders, and the entire record of proceedings before the Authority, we adopt the Judges' findings, conclusions, and recommended orders to the extent consistent with this decision. In agreement with the Judges' conclusions, we find that Respondents violated the Statute as charged. We also adopt, without precedential significance, the Judges' recommended remedies.

II. Preliminary Matter

Case Nos. DE-CA-80076 and WA-CA-80156 involve similar facts, the same issues, and allege that the same agency violated the Statute. Further, the agency's representative, who is the same in both cases, presents the same arguments before the Authority in both cases. Because the cases are so closely related, we have consolidated them for decision. See Association of Civilian Technicians, Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department, 55 FLRA 1226 (2000); National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Central Region, Virginia Beach, Virginia, 54 FLRA 218, 219 (1998); U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482 (1992).

III. Background and the Judges' Decisions

A. Case No. DE-CA-80076

1. The Facts

The facts, which are not at issue, are fully set forth in the Judge's decision and are only briefly summarized here.

The ULP charge arose from the interview of a bargaining unit employee of the Federal Correctional Institution Englewood, Littleton, Colorado (FCI Englewood) by two DOJ-OIG special agents. Prior to commencing the interview, the DOJ-OIG special agents informed the [ v56 p557 ] employee that they were conducting a criminal investigation regarding allegations that the employee brought illegal drugs into FCI Englewood. The employee immediately requested union representation, but the DOJ-OIG special agents denied his request and informed him that he was not entitled to union representation because they were conducting a criminal investigation. Approximately three weeks after the interview, the warden of FCI Englewood wrote a letter to the employee stating that "`there was nothing to substantiate the allegations, and that there would be no further investigation.'" Judge's Decision at 5.

The General Counsel issued a ULP complaint contending that the DOJ-OIG special agents failed to comply with section 7114(a)(2)(B) by not granting the employee's request for union representation and, as a result, both DOJ and DOJ-OIG violated section 7116(a)(1) and (8). Respondents' answer to the complaint admitted to the above-stated facts. As a result, the General Counsel moved for summary judgment.

2. The Judge's Decision

The Judge granted the General Counsel's motion for summary judgment. Prior to reaching this conclusion, the Judge determined that the parties had agreed that the pleadings accurately reflected the facts in this case. The Judge also found that the "parties agree[d] that the interrogation of [the] bargaining unit employee . . . was an `examination' within the meaning of [section 71]14(a)(2)(B); that [the employee] reasonably believe[d] that the examination might result in disciplinary action against him, and that [the employee] requested representation by the exclusive representative." Judge's Decision at 5.

The Judge dealt with Respondents' three principal arguments in opposition to summary judgment. First, contrary to Respondents' assertion, the Judge found there was no dispute with respect to the material facts necessary to prove the violation of section 7114(a)(2)(B); second, relying on Headquarters, National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., 50 FLRA 601 (1995) (HQ, NASA), and the Eleventh Circuit's enforcement of that decision in FLRA v. NASA,120 F.3d 1208 (11th Cir. 1997) (FLRA v. NASA), the Judge rejected Respondents' claim that the complaint should be dismissed based on Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) (DOJ); and third, again relying on HQ, NASA and FLRA v. NASA, the Judge determined that DOJ liability for the conduct of its OIG was appropriate.

To remedy the ULP, the Judge ordered Respondents to "post[] at all facilities of the Federal Bureau of Prisons, nationwide, where bargaining unit employees of the Federal Bureau of Prisons are located" copies of the ordered notice. Judge's Decision at 20. The Judge directed that the Attorney General and Inspector General sign the notice. Also, the remedy mandated that DOJ require DOJ-OIG to comply with section 7114(a)(2)(B) when investigating bargaining unit employees. The Judge further ordered Respondents to cease and desist from requiring bargaining unit employees to take part in any examination conducted pursuant to section 7114(a)(2)(B) without allowing union representation.

B. Case No. WA-CA-80156

1. The Facts

As with Case No. DE-CA-80076 above, the facts, which are not at issue, are fully set forth in the Judge's decision and are only briefly summarized here.

The ULP charge arose from the interview of a bargaining unit employee of the Immigration and Naturalization Service (INS) by two DOJ-OIG special agents. Based upon a report from INS, DOJ-OIG initiated a criminal investigation into the theft of money from an INS safe. After the United States Attorney declined criminal prosecution of the matter, DOJ-OIG converted the investigation to an administrative investigation. A DOJ-OIG special agent instructed the bargaining unit employee to report to the DOJ-OIG Washington, D.C. field office for an interview. The employee requested union representation, but the two DOJ-OIG special agents conducting the interview denied his request on the grounds that the D.C. Circuit's decision in DOJ, was controlling. As a result, the employee was without union representation when interviewed and polygraphed by the DOJ-OIG special agents.

The General Counsel's complaint alleged that DOJ and DOJ-OIG violated section 7116(a)(1) and (8) of the Statute by denying the bargaining unit employee requested union representation in violation of section 7114(a)(2)(B). Subsequent to the filing of the complaint and Respondents' answer, the General Counsel moved for summary judgment.

2. The Judge's Decision

As in case No. DE-CA-80076, the Judge granted the General Counsel's motion for summary judgment. [n1] The Judge reached this decision only after finding that there was no genuine issue as to any material fact and that the elements of a section 7114(a)(2)(B) examination [ v56 p558 ] were met. Relying on HQ, NASA and FLRA v. NASA, the Judge rejected the argument that DOJ-OIG should not be found to have violated section 7114(a)(2)(B) based upon the D.C. Circuit's decision in DOJ. The Judge also concluded that in light of the Authority's decision in HQ, NASA, DOJ liability for the conduct of its OIG was appropriate.

To remedy the ULP, the Judge ordered Respondents to "[p]ost at all locations of the Immigration and Naturalization Service copies of the . . . Notice," which he directed the Attorney General and Inspector General to sign. Judge's Decision at 9. Also, the remedy mandated that DOJ require DOJ-OIG to comply with section 7114(a)(2)(B) when investigating bargaining unit employees. The Judge further ordered Respondents to cease and desist from requiring bargaining unit employees to take part in any examination conducted pursuant to section 7114(a)(2)(B) without allowing union representation. Finally, the Judge required DOJ to ensure that no disciplinary action be taken against the bargaining unit employee questioned by DOJ-OIG.

IV. Original Positions of the Parties

Subsequent to the parties' filing of their exceptions and oppositions thereto, the Supreme Court issued its decision in National Aeronautics and Space Administration v. FLRA, 119 S. Ct. 1979 (1999) (NASA). The NASA decision resolves the arguments raised by Respondents' Exceptions in these two cases. [n2] In their responses to the Authority's Orders to Show Cause (Section V. below), Respondents neither reassert their previous exceptions nor contend that those original arguments are not resolved by NASA. Accordingly, Respondents' original exceptions and the General Counsel's responses thereto will not be addressed further herein.

V. Parties' Responses to the Order to Show Cause

In light of the Supreme Court's NASA decision, on July 23, 1999, the Authority issued to the parties Orders to Show Cause why the issues in these cases have not been resolved by NASA such that the Authority should not adopt the Judges' decisions and orders. In the Orders, the Authority highlighted the Judges' reliance upon the Authority's HQ, NASA decision in reaching their decisions in the instant cases.

A. Case No. DE-CA-80076

1. Respondents DOJ and DOJ-OIG

Respondents DOJ and DOJ-OIG argue that NASA does not resolve the issues in this case for two reasons: first, the facts in this case are different from NASA in that this case involves a criminal investigation, not an administrative investigation as in NASA; second, if the Authority does determine that NASA controls and the Judge's decision is adopted, then the remedy recommended by the Judge should not be adopted. With regard to the first argument, Respondents contend that because the DOJ-OIG special agents questioned the employee in connection with a criminal investigation wherein no administrative action was contemplated, the agents were acting independent of the agency and were not "representatives of the agency" under section 7114(a)(2)(B). In support of this argument, Respondents rely upon a footnote in NASA which provides that the application of section 7114(a)(2)(B) "to law enforcement officials with a broader charge" was not before and therefore not decided by the Court. NASA, 119 S. Ct. at 1988 n.8.

As for their second argument, Respondents assert that if the Authority concludes that the Judge's decision should be adopted, then the proposed remedy should be rejected because it is inconsistent with the Authority's remedial standards and Authority cases involving similar facts. Respondents also argue that the Judge erred in requiring posting at all BOP facilities because BOP had been dismissed as a party in the case.

2. The General Counsel

The General Counsel maintains that the Court's NASA decision fully resolves the issues before the Authority in this case. Thus, the General Counsel requests that the Authority adopt the Judge's decision and order. [ v56 p559 ]

B. Case No. WA-CA-80156

1. Respondents DOJ and DOJ-OIG

In the response to the Authority's Order in this case, Respondents challenge only the Judge's ruling regarding the remedy. Their remedy arguments are identical in all material respects to the remedy arguments in the response in Case No. DE-CA-80076. As a result, they are not set forth again herein.

2. The General Counsel

The General Counsel did not submit a timely response to the Authority's Order, although the General Counsel did file an Opposition to Respondents' Response to Show Cause Order. In it, the General Counsel requests that the Authority disregard the issues and arguments raised in the response because they were not raised in exceptions and were raised for the first time in responding to the show cause order. Thereafter, Respondents filed a Motion to Strike the General Counsel's Opposition, maintaining that the Authority should not consider the General Counsel's Opposition as it was untimely. [n3]

VI. Analysis and Conclusions

A. Authority Consideration of Claims Raised for the First Time in the Responses to the Orders to Show Cause

In their Responses, Respondents have raised two claims that were not raised before the Judges or in their exceptions to the Authority: 1) that the Judges' proposed remedies are inappropriate and should not be adopted by the Authority; and 2) that the facts of Case No. DE-CA-80076 distinguish it from NASA, specifically because of the criminal aspect of the DOJ-OIG investigation as opposed to the administrative nature of the investigation in NASA.

We have carefully analyzed these newly-raised matters in light of both 5 C.F.R. §§ 2429.5 and 2423.40(d) [n4] and the Show Cause Orders issued in these cases. Having actively solicited Respondents' views concerning the applicability of the NASA decision, we conclude that only the claim regarding the criminal aspect of the investigation is properly before the Authority.

1. Respondents' Arguments Regarding the Propriety of the Judges' Remedies Are Not Properly Before the Authority

Respondents' failure to raise the remedy issue before the Judges and in their exceptions to the Authority exceptions precludes the Authority from considering this issue. In both cases, the remedy proposed by the Judges was submitted in the General Counsel's motion for summary judgment and was not challenged by the Respondents in their oppositions to the motions for summary judgment. Well-established Authority precedent provides that "evidence or issues that could have been, but were not, raised before the Judge will not be considered by the Authority." Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, 55 FLRA 951, 956 (1999); see also U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, 55 FLRA 201, 204 (1999); Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021, 1036 (1992). Similarly, Respondents failed to challenge the proposed remedy in their exceptions to the Authority. [n5]

Finally and significantly, there is no colorable claim that the NASA decision invites the remedy argument raised by Respondents. The NASA decision itself does not directly involve any remedial issues. [n6] As such, neither the record in this case nor the NASA decision provides Respondents with any justification for belatedly raising the remedy issue at this time.

Thus, in the absence of any exception properly before the Authority, we adopt, without precedential significance, the remedies ordered by the Judges. 5 C.F.R. § 2423.41(a). [ v56 p560 ]

2. Respondents' Arguments Regarding the Criminal Aspect of the OIG Investigation in Case No. DE-CA-80076 Are Properly Before the Authority

Respondents make a colorable claim that the Supreme Court's decision invites them to make an argument regarding the criminal/administrative distinction. In this regard, Respondents rely upon a quote from NASA regarding the Court's unwillingness to discuss application of section 7114(a)(2)(B) to "law enforcement officials with a broader charge" and suggest that this refers to OIG investigators conducting a criminal investigation. Response at 3. Moreover, Respondents also argue that at the time of the investigation in Case No. DE-CA-80076, the DOJ-OIG special agents justified their denial of the bargaining unit employee's request for representation because of the criminal nature of their investigation. Accordingly, unlike the remedy issue discussed in the preceding section, the NASA decision and the record in this case offer support for consideration of Respondents' argument at this time.

B. NASA Controls Despite the Criminal Aspect of the DOJ-OIG Investigation in Case No. DE-CA-80076

Respondents contend that NASA is not controlling in Case No. DE-CA-80076 because the criminal aspect of the DOJ-OIG investigation, as opposed to the administrative aspect of the investigation in NASA, requires a different outcome. This contention fails for a number of reasons, including: 1) Respondents misinterpret the Supreme Court's language distinguishing law enforcement officials from OIG investigators; and, 2) Respondents have continually acknowledged that the employee reasonably feared that discipline might result from the investigation.

1. Respondents Misinterpret NASA

Responding to NASA's concerns about "joint or independent FBI investigations of federal employees," the Supreme Court noted that "the application of [section 7114(a)(2)(B)] to law enforcement officials with a broader charge" was not before it. NASA, 119 S. Ct. at 1988 n.8. By seeking to apply this comment by the Court to OIG investigations involving criminal matters, Respondents misinterpret the Court's statement. The phrase "law enforcement officials with a broader charge" clearly refers to the FBI -- not OIG investigators.

Although the NASA case did involve an administrative rather than a criminal investigation, this was not the focal point of the Supreme Court's decision. The Court, instead, focused on the OIG's undeniable role within the agency and noted that "unlike the jurisdiction of many law enforcement agencies, an OIG's investigative office, as contemplated by the [IG Act], is performed with regard to, and on behalf of, the particular agency in which it is stationed." NASA, 119 S. Ct. at 1986. That is, "as far as the [IG Act] is concerned, [OIG] investigators are employed by, act on behalf of, and operate for the benefit of" the agency. Id. at 1987. Because of this role of the OIG within the agency, the Court found that section 7114(a)(2)(B) applies to OIG investigations.

Thus, Respondents' claim that the DOJ-OIG special agents were "conducting an independent investigation to determine whether any criminal activity had occurred with the intent of referring the matter to the appropriate authorities for criminal prosecution" (Response at 3) is undercut by the Supreme Court's reliance on the fact that OIG agents are stationed within and act on behalf of the agency. See NASA, 119 S. Ct. at 1986-7. Nothing in the NASA decision indicates that this interrelationship between the agency and OIG changes when a criminal matter is investigated. [n7]

2. The Employee Reasonably Feared Discipline

Not only does the NASA decision fail to provide support for Respondents' position, but Respondents' own factual admission undermines their argument regarding how the criminal nature of this case makes it distinct. Respondents admitted that it was reasonable for the employee in this case to fear disciplinary action might result from the investigation. See Judge's Decision at 3. Having acknowledged the satisfaction of this element of section 7114(a)(2)(B)'s requirements, Respondents cannot claim that labeling the investigation "criminal" somehow takes it outside of the section 7114(a)(2)(B) context.

Respondents' attempt to distinguish this case from NASA based upon the criminal nature of this investigation is unpersuasive. Having previously noted that the NASA decision resolves Respondents original exceptions, we conclude that the Respondents failure to comply with section 7114(a)(2)(B) violated sections 7116(a)(1) and (8) of the Statute. [ v56 p561 ]

VII. Order in Case No. DE-CA-80076

Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Washington, D.C. and the U.S. Department of Justice, Office of the Inspector General, Washington, D.C., shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the U.S. Department of Justice, Federal Bureau of Prisons, to take part in any investigatory examination conducted pursuant to section 7114(a)(2)(B) of the Statute without allowing the employee's exclusive representative to represent him, or her, when the employee requests such representation and when the employee reasonably believes that the examination may result in disciplinary action.

(b) In any like or related manner, interfering with, restraining, or coercing employees of the Federal Bureau of Prisons in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) The U.S. Department of Justice shall order its Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of employees of the Federal Bureau of Prisons.

(b) The U.S. Department of Justice, Washington, D.C., shall order posted at all facilities of the Federal Bureau of Prisons, nationwide, where bargaining unit employees of the Federal Bureau of Prisons are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Attorney General and by the Inspector General and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.41(e) of our Regulations, notify the Regional Director of the Denver Region, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Office of the Inspector General, Washington, D.C. and the U.S. Department of Justice, Washington, D.C. have violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT require any bargaining unit employee of the Federal Bureau of Prisons, to take part in any examination in connection with an investigation without allowing the exclusive representative of such employee to be present if: the employee reasonably believes that the examination may result in disciplinary action against the employee; and the employee requests representation.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees of the Federal Bureau of Prisons in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

U.S. Department of Justice

Washington, D.C.

By:____ Date:___

Attorney General

Office of the Inspector General

Washington, D.C.

By:____ Date:___

Inspector General

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Region, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844- 5224. [ v56 p562 ]

VIII. Order in Case No. WA-CA-80156

Pursuant to section 2423.41(c) of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the U.S. Department of Justice, Washington, D.C., and the U.S. Department of Justice, Office of the Inspector General, Washington, D.C., shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the U.S. Department of Justice, Immigration and Naturalization Service to take part in any examination conducted by the U.S. Department of Justice, Office of the Inspector General, without allowing the American Federation of Government Employees, National Immigration and Naturalization Service Council, or any other exclusive collective bargaining representative of the employee, to participate in such examination, when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) U.S. Department of Justice shall order the U.S. Department of Justice, Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of U.S. Department of Justice, Immigration and Naturalization Service, bargaining unit employees.

(b) U.S. Department of Justice, Office of the Inspector General shall comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of bargaining unit employees.

(c) U.S. Department of Justice, Washington, D.C., shall ensure that no disciplinary action is taken against Immigration and Naturalization Service employee Tae Johnson as a result of any information obtained as a result of the examination by agents of the Office of the Inspector General on October 22, 1997, when Tae Johnson requested and was denied union representation by the American Federation of Government Employees, Local 2756, AFL-CIO.

(d) Post at all locations of the Immigration and Naturalization Service copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Attorney General, U.S. Department of Justice and by the Inspector General, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees of the Immigration and Naturalization Service are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.41(e) of our Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v56 p563 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Washington, D.C., and U.S. Department of Justice, Office of the Inspector General, Washington, D.C., violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit that:

WE WILL NOT require any bargaining unit employee of the U.S. Department of Justice, Immigration and Naturalization Service to take part in any examination conducted by the U.S. Department of Justice, Office of the Inspector General, without allowing the American Federation of Government Employees, National Immigration and Naturalization Service Council, or any other exclusive collective bargaining representative of the employee, to participate in such examination, when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

THE ATTORNEY GENERAL WILL order the U.S. Department of Justice, Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of U.S. Department of Justice, Immigration and Naturalization Service bargaining unit employees.

U.S. Department of Justice

Washington, DC

By:____ Date:___

Attorney General

Office of the Inspector General

Washington, DC

By:_____ Date:__

Inspector General

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, whose address is: Tech World Plaza, 800 K Street, NW., Suite 910N, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.

File 1: Authority's Decision in 56 FLRA No.
87

File 2: ALJ's Decision in Case No. DE-CA-80076

File 3: ALJ's Decision in Case No. WA-CA-80156

Footnote # 1 for
56 FLRA No. 87

• Authority's Decision

Respondents' position before the Judge was identical in all material respects to its position, detailed above, in Case No. DE- CA-80076.

Footnote # 2 for
56 FLRA No. 87

• Authority's Decision

Respondents' Exceptions, which are identical in all material respects, assert that the Authority's HQ, NASA decision was wrongly decided, that DOJ-OIGs are not "representatives of the agency" within the meaning of section 7114(a)(2)(B), and that, in any event, DOJ cannot be liable for DOJ-OIG actions.

Footnote # 3 for
56 FLRA No. 87

• Authority's Decision

Because the General Counsel did not seek permission to file its Opposition, the Authority will not consider the General Counsel's untimely response. See Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7, 9-10 (1995). As a result, Respondents' Motion to Strike is moot.

Footnote # 4 for
56 FLRA No. 87

• Authority's Decision

Section 2429.5 provides in relevant part that the Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge." 5 C.F.R. § 2429.5 (1999). Section 2423.40(d) provides that "[a]ny exception not specifically argued shall be deemed to have been waived." 5 C.F.R. § 2423.40(d).

Footnote # 5 for
56 FLRA No. 87

• Authority's Decision

In Case No. DE-CA-80076, the General Counsel noted Respondents' failure to challenge the remedy in his opposition to exceptions. See General Counsel's Opposition to Exceptions at 9.

Footnote # 6 for
56 FLRA No. 87

• Authority's Decision

In affirming the Authority's HQ, NASA decision, the Court affirmed the Authority's remedial action in HQ, NASA, but did so without considering the specific aspects of the remedy. See NASA, 119 S. Ct. at 1989.

Footnote # 7 for
56 FLRA No. 87

• Authority's Decision

In addition, the Authority has long held that section 7114(a)(2)(B) applies to OIG investigations that involve allegations of criminal activity, to include when an investigation is jointly conducted by the OIG and local police. See, e.g., Department of Defense, Defense Criminal Investigative Service; Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145, 1149 (1987) (DOD, DCIS), enforced sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93 (3d Cir. 1988) (DCIS).

[ v56 p564 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF JUSTICE

WASHINGTON, DC AND U.S.

DEPARTMENT OF JUSTICE

OFFICE OF THE INSPECTOR GENERAL

WASHINGTON, D.C.

Respondents [n1]

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

LOCAL 709, AFL-CIO

Charging Party

Case No. DE-CA-80076

Harry E. Jones, Esquire

Ms. Vivian B. Jarcho

For the Respondents

Lisa Belasco, Esquire

For the General Counsel

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

The charge was filed On October 29, 1997 (G.C. Exh. 1(a)), alleging violation of §§ 7116(a)(1), and (8) of the Statute [n2] ; a First Amended charge was filed on April 13, 1998 (G.C. Exh. 1(b)), alleging violation of §§ 16(a)(1), (5) and (8) of the Statute; a Second Amended charge was filed on May 7, 1998 (G.C. Exh. 1(c)), alleging violation of §§ 16(a)(1), and (8); and the Complaint and Notice of Hearing issued on May 8, 1998 (G.C. Exh. 2), alleging violation of §§ 16(a)(1), and (8), and set the hearing for July 15, 1998. Respondent timely filed an answer (G.C. Exh. 3).

The Complaint alleged an examination for an employee by Agents of the Office of the Inspector General, that Respondents failed to comply with § 14(a)(2)(B) of the Statute, by denying the request of the employee for Union representation, and that Respondents thereby violated §§ 16(a)(1) and (8) of the Statute. The Complaint alleged that, The United States Department of Justice is an agency within the meaning of § 3(a)(3) of the Statute; that, "The Department of Justice Office of the Inspector General . . . is an activity and/or component of the U.S. Department of Justice as defined in 5 C.F.R. § 2421.4, [n3] ; that, inter alia, Agents of the Office of the Inspector General were management officials within the meaning of § 3(a)(11) of the Statute; and that the Agents, ". . . were representatives of and were acting on behalf of the Respondents, i.e., the Department of Justice and its Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado (hereinafter, "FCI" Englewood").

In its Answer, Respondent's denied that the Department of Justice Office of the Inspector General is an activity and/or component of the U.S. Department of Justice as defined in 5 C.F.R. § 2421.4; corrected the title of the Inspector General's "Agents" to, "Special Agents" and corrected the name of Special Agent Trautner; denied that the Special Agents were management officials within the meaning of § 3(a)(11) of the Statute; denied that the Special Agents were representative of, or were acting on behalf of, the Department of Justice or FCI Englewood, asserting affirmatively that the Special Agents were representatives only of the Inspector General and that Warden Brooks was a representative only of the Bureau of Prisons; and, of course, denied failure to comply with § 14(a)(2)(B) of the Statute and denied violation of 16(a)(1) or (8) of the Statute. Nevertheless, Respondents admitted that on October 15, 1997, Special Agents Trautner and Sullivan conducted an examination of Leonard Vigil, an employee of FCI Englewood; that the Special Agents told Mr. Vigil that the examination concerned a criminal investigation of him; that it was reasonable for Mr. Vigil to believe that disciplinary action could result from the examination; that before the examination Mr. Vigil requested that a union representative be present at the examination and Special Agents Trautner and Sullivan denied Mr. Vigil's request for a Union representative and examined Mr. Vigil concerning an allegation that he had smuggled drugs into FCI Englewood; and that on, or about, November 7, 1997, [ v56 p565 ] Warden Brooks wrote a memorandum to Mr. Vigil advising him that the allegation of drug introduction had not been sustained and the case was closed.

Because Respondents admitted all material factual allegations except as to FCI Englewood [n4] , the asserted liability of which posed issues of fact, General Counsel on June 25, 1998, moved:

a) To withdraw the allegations of the Complaint involving FCI Englewood; and

b) For Summary Judgment as to Respondent U.S. Department of Justice and Respondent U.S. Department of Justice, Office of the Inspector General, Washington, D.C.

On July 2, 1998, Respondents filed a Response to General Counsel's Motion for Summary Judgment and a Cross- Motion to Dismiss the Complaint.

The Complaint and Notice of Hearing had set the hearing for July 15, 1998; on June 3, 1998, Respondents moved to postpone the hearing. By Order dated June 4, 1998, the date of hearing was rescheduled for July 21, 1998; on July 7, 1998, the parties filed a Joint Motion to Postpone Hearing; the pre-hearing Conference Call was duly held by the undersigned as scheduled, on July 14, 1998, at which time: a) Respondents affirmed that they had no objection to the dismissal of the Complaint as to FCI Englewood and General Counsel, while confident that the Charging Party had no objection to the dismissal of the Complaint as to FCI Englewood, agreed to ascertain and advise the undersigned of the Charging Party's position; b) after discussion, Respondents agreed they did not object to the sworn statement of Mr. Leonard Virgil, submitted as General Counsel Exhibit 4 to General Counsel's Brief in Support of her Motion for Summary Judgment; General Counsel agreed that she had no objection to the sworn statement of Special Agent Paul Sullivan, attached as Respondent's Exhibit 1 to Respondents' Response and Cross-Motion to Dismiss Complaint; both parties agreed that the facts are as stated in the pleadings and the respective sworn statements and declaration; and both parties agreed that there are no genuine issues of material fact. Following the conference call, General Counsel advised the undersigned that the Charging Party had advised that it had no objection to the dismissal of the Complaint as to FCI Englewood. Accordingly, on July 14, 1998, the undersigned issued an Order which, in pertinent part, ordered:

"1. The Complaint as it relates to Respondent Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, be, and the same is hereby, Dismissed."

2. This case is hereby submitted for decision on Motion of the parties and, accordingly, the hearing,
   now scheduled for July 21, 1998, is Canceled."

FINDINGS

1. The AFGE Council of Prison Locals is the exclusive representative of a nationwide consolidated bargaining unit of Bureau of Prisons employees appropriate for collective bargaining, including employees of FCI Englewood, and AFGE, Local 709 (hereinafter, "Union") is an agent and affiliate of AFGE Council of Prison Locals for the representation of employees of FCI Englewood.

2. The U.S. Department of Justice (hereinafter, "Dept. of Justice") is an agency within the meaning of § 3(a)(3) of the Statute and The U.S. Department of Justice, Office of The Inspector General (hereinafter, "OIG"), is an organizational entity of the Dept. of Justice, within the meaning of 5 C.F.R. § 2421.4, but Respondents assert that OIG is neither an agency nor a representative of an agency (Dept. of Justice) within the meaning of § 14(a)(2)(B) of the Statute.

3. Mr. Leonard Virgil is employed as a Recreation Specialist at FCI Englewood, is a member of the Union and has served as a Steward for about three years (G.C. Exh. 4).

4. On October 15, 1997, Mr. Vigil, while at work in the recreation yard, received a call from a Special Investigating Agent and was told to report to Personnel. When he arrived at Personnel, he went into a conference room and was met by two Special Agents of the Office of the Inspector General, Messrs. Craig Trautner and Paul Sullivan (G.C. Exh. 3), one of whom told Mr. Vigil they were there to conduct a criminal [ v56 p566 ] investigation, at which point Mr. Vigil realized that he was not there to represent another employee and requested a Union representative because he knew he could lose his job or incur other disciplinary action if he were found guilty; but one of the Special Agents told him that because this was a criminal investigation, the Union did not have the right to represent him; however, he told Mr. Vigil that they were not there to accuse him, only to investigate allegations that had been made (G.C. Exh. 2 and 4). Special Agent Sullivan stated that as part of his official duties he was assigned to investigate allegations that Bureau of Prisons employee Leonard Vigil was involved in a plan to bring illegal drugs into FCI Englewood and that, consistent with OIG policy, Mr. Vigil was not permitted to have a Union representative (Res. Exh. 1).

5. The parties agree that the interrogation of bargaining unit employee Vigil, by Special Agents Trautner and Sullivan, was an "examination" within the meaning of § 14(a)(2)(B); that Mr. Vigil reasonably believe that the examination might result in disciplinary action against him, and that Mr. Vigil requested representation by the exclusive representative.

6. On, or about, November 7, 1997, Mr. Joseph M. Brooks, Warden, FCI Englewood, wrote Mr. Vigil a letter which stated, ". . . there was nothing to substantiate the allegations, and that there would be no further investigation" (G.C. Exh. 4) and the case was closed (G.C. Exh. 2).

CONCLUSIONS

In its Cross-Motion to Dismiss, Respondents make three assertion: a) The facts as to which there is no dispute do not establish that Dept. of Justice violated the Statute by failing to comply with § 14(a)(2)(B) of the Statute because, ". . . the only undisputed fact that the General Counsel has identified that relates to Respondent DOJ is that '[t]he U.S. Department of Justice . . . is an agency as defined in 5 U.S.C. § 7103(a)(3).'" (Respondent's Response and Cross-Motion, p. 4); however, in footnote 4, Respondents further state, "The only other statement . . . which might possibly relate to Respondent DOJ is that 'the Department of Justice Office of the Inspector General . . . is an activity and/or component of the U.S. Department of Justice as defined in 5 C.F.R. § 2421.4.' . . . However, this statement is not undisputed. . . ." (id., n.4, p. 4).

Respondents' denial that OIG is an organizational entity of the Dept. of Justice is rejected as a nullity for the reasons: 1) from the name alone it is plain that it is a component of the Dept. of Justice; 2) the affidavit of Special Agent Sullivan states, in part, that the IG, ". . . is subject to the general supervision of the Attorney General . . . and Deputy Attorney General . . . ." (Res. Exh. 1, p. 1); 3) Section 2 of the Inspector General Act specifically provides, in part, as follows:

". . . there is hereby established in each of such establishments [i.e., here, the Department of Justice (§ 11(2))] an office of Inspector General." (5 U.S.C.A. App. 3, § 2) (See, also, §§ 3(a) ". . . Each Inspector General shall report to and be under the general supervision of the head of the establishment involved . . . ."; and 8E(a)(1)).

Moreover, whether the Special Agents were representative of the Dept. of Justice within the meaning of § 14(a)(2)(B) of the Statute is a question of law.

b) That General Counsel has not established any facts which demonstrate that the Dept. of Justice had any involvement in, or responsibility for, the examination of employee Vigil; and c) On the basis of United States Department of Justice; Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, Office of Inspector General, Washington, D.C., et al. v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) (hereinafter, "Twin Cities"), complaint as to OIG should be dismissed as a matter of law.

Each of Respondents' assertions is rejected for reasons set forth hereinafter:

1. The undisputed facts show that OIG is, as alleged in Paragraph 5 of the Complaint, ". . . an activity and/or component of the U.S. Department of Justice as defined in 5 C.F.R. § 2421.4."

Notwithstanding Respondents denial of paragraph 5 of the Complaint in their Answer, which answer has been rejected as a nullity because Respondent asserts other undisputed facts which are to the contrary, the undisputed facts show beyond cavil that the OIG is, as alleged in the Complaint, an organizational component of the Dept. of Justice. As noted above, at the outset, the name alone, i.e., "Department of Justice Office of the Inspector General", shows that it is a component of the Dept. of Justice or, as stated in 5 C.F.R. § 2421.4 that it is an "organizational entity" of the Dept. of Justice. Further, as also noted above, the Inspector General Act, which Respondents cite in part, as to which there can be no dispute as to its terms, albeit there well may be disagreement as to their meaning, defines "establishment" to mean, inter alia, the Department of Justice (5 U.S.C.A. App. 3, § 11(2)) and in § 2, provides that, ". . . there is hereby established in each of such establishments an office of Inspector General." (id. § 2); [ v56 p567 ] Respondents concede that the IG, ". . . is subject to the general supervision of the Attorney General . . . and Deputy Attorney General . . . ." (Res. Exh. 1, p. 1). Indeed, § 3(a) of the Inspector General Act, provides, in part, that, ". . . 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 . . . ." (5 U.S.C.A., App. 3, § 3(a)). Moreover, while § 3 provides that, "Neither the head of the establishment [here, The Attorney General] nor the officer next in rank . . . shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation . . . ." (Id.), Section 8E, which applies only to the Department of Justice, provides that notwithstanding § 3, ". . . the Inspector General shall be under the authority, direction and control of the Attorney General with respect to audits or investigations . . . which require access to sensitive information concerning": ongoing civil or criminal investigations or proceedings; undercover operations; identity of confidential sources; intelligence or counterintelligence; or or other matters the disclosure of which would constitute a serious threat of national security. Further, with respect to such information, the Attorney General, ". . . may prohibit the Inspector General from carrying out or completing any audit or investigation . . ." (id., § 8E) (Emphasis supplied). In addition, Section 11 provides, in part, that,

"(3) the term 'Inspector General' means the Inspector General of an establishment;

"(4) the term 'Office' means the Office of Inspector General of an establishment . . . ." (id., § 11(3) and (4)) (Emphasis supplied).

Accordingly, as I have found, the undisputed facts show that the OIG is an organizational entity of the Dept. of Justice. To be sure, OIG, obviously, is not an "agency", as it is simply an organizational entity of the Dept. of Justice, and it is a question of law, not of fact, whether it was a representative of the Dept. of Justice, within the meaning of § 14(a)(2)(B) of the Statute, when it conducted an examination of a bargaining unit employee.

2. Dept. of Justice is liable for violation by OIG.

It is true that the Dept. of Justice, ". . . did nothing, either actively or passively, to deny Leonard Vigil his right to representation. . . ." (Respondent's Response, p. 7) and it is quite correct that, in United States Department of Agriculture, Farm Service Agency, Kansas City, Missouri and United States Department of Agriculture, Office of Inspector General, Kansas City, Missouri, et al., (hereinafter "Farm Service") Case No. DE-CA-60399 (June 13, 1997), 130 Adm. Law Judge Dec. Rep., November 13, 1997, I held that, because Farm Service, which was not an "agency" but an "activity" of the Department of Agriculture, had no involvement with the examination and had no control over the OIG special agents who conducted the examination, it did not violate either 16(a)(1) or (8) of the Statute and, accordingly, dismissed the allegation of the Complaint as to Farm Service. However, I specifically noted that, where charged, liability of an agency for the conduct of its Inspector General is wholly different, for the Authority in Headquarters, National Aeronautics and Space Administration, Washington, D.C., et al., 50 FLRA 601 (1995), enf'd sub nom. FLRA v. National Aeronautics and Space Administration, 120 F.3d 1208 (11th Cir. 1997) cert. granted, No. 98-369 (November 2, 1998) 1998 WL 596670, 67 USLW 3170 (hereinafter "NASA"), had stated, in part, that:

" . . . the Authority also has noted in prior decisions that it is appropriate for agency headquarters with administrative responsibility for the Office of Inspector General to advise IGs 'of the pertinent rights and obligations established by Congress in enacting the Federal Service Labor-Management Relations Statute. More particularly,
. . . investigators should be advised that they may not engage in conduct which interferes with the rights of employees under the Statute.' DOD, DCIS, 28 FLRA at 1151. It is with this objective in mind--ensuring that the Office of Inspector General is advised by its statutory superior of the obligation to comply with the Statute-- that we find the purposes underlying the Statute will be effectuated by holding NASA, HQ liable for the actions of its Inspector General. As set forth in this decision, despite a degree of independence, the IG is nevertheless under the direct supervision of the head of the agency. Accordingly, we will no longer follow Authority precedent declining to hold an agency headquarters responsible for the statutory violations of its Inspector General." (Slip opinion, p. 23) (50 FLRA at 622)

In enforcing the Authority's decision, the Court of Appeals for the Eleventh Circuit, as to this issue, stated, in part, as follows:

". . . In § 7103(a)(3), Congress defined 'agency' to include executive agencies, and it is undisputed that NASA-HQ falls within the statutory definition of 'agency.' 5 U.S.C. § 7103(a)(3). Nothing in the text of
§ 7114(a)(2)(B) indicates to us that Congress intended a different meaning when it used [ v56 p568 ] 'agency' in § 7114(a)(2)(B). The fact that Congress elsewhere used 'representative of the agency' and 'representative of an agency' in the context of collective bargaining matters does not establish in our view that Congress must have intended to depart from the statutory definition of 'agency' and to imply a collective bargaining requirement in
§ 7114(a)(2)(B). Accord DCIS, 855 F.2d at 100.

"Moreover, we agree with the Authority that reading such a requirement into 'representative of the agency' in § 7114(a)(2)(B) would undermine Congress's purpose in enacting this section. Congress enacted
§ 7114(a)(2)(B) to extend Weingarten protection to federal employees. See 124 Cong. Rec. 29, 184 (daily ed. Sept. 13, 1978) (statement of Rep. Udall). In Weingarten, the Court upheld the NLRB's ruling entitling employees who 'seek[ ] "aid or protection" against a perceived threat to employment security' to union representation during intimidating investigatory confrontations. 420 U.S. at 260, 95 S.Ct. at 965. In enacting § 7114(a)(2)(B), Congress also sought to provide for 'union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him.' 124 Cong. Rec. 29, 184 (daily ed. Sept. 13, 1978) (statement of Rep. Udall) (quoting Weingarten, 420 U.S. at 267, 95 S.Ct. at 968). The Statute, like the Weingarten rule itself, focuses on the risk of adverse employment action to the employee. Because this risk does not disappear or diminish significantly when an investigator is employed in an agency component that has no collective bargaining relationship with the employee's union, we see no reason why the protection afforded by Congress should be eliminated in such situations. See DCIS, 855 F.2d at 99 ('[W]e doubt that Congress intended that union representation be denied to the employee solely because [the investigator was] employed outside the bargaining unit.'). (120 F.3d at 1213)

. . . .

"In this case, the Authority found NASA-HQ guilty of an unfair labor practice because, as the parent agency, it failed to ensure that NASA-OIG complied with § 7114(a)(2)(B). The Authority found that investigative information obtained by NASA-OIG can be a basis upon which NASA-HQ disciplinary action is taken and that NASA-OIG reports to and is under the general supervision of NASA-HQ. Based on these findings, the Authority concluded that the purposes of § 7114(a)(2)(B) would be served by requiring NASA-HQ to advise NASA-OIG of its obligation to comply with the Statute.

"Although NASA-OIG is an 'independent and objective' unit of NASA-HQ, see 5 U.S.C. app. 3 § 2, NASA-OIG is subject to the general supervision of the agency head. 5 U.S.C. app. 3 § 3(a). In conducting investigations within the agency, NASA-OIG serves the interest of NASA-HQ by soliciting information of possible misconduct committed by NASA employees. . . . We therefore find no clear error in the Authority's determination that NASA-HQ should be held responsible for the investigator's violation of § 7114(a)(2)(B)." (id., at 1216-1217)

Further, with respect to Respondents argument that, ". . . even if OIG did fail to comply, the fact that OIG is an independent entity defeats any attempt to extend liability for such a violation to DOJ." (Response, p. 8), the Authority rejected a like assertion in NASA, supra, stating, in part, as follows:

"To be sure, the IG Act grants an IG a degree of freedom and independence from the parent agency that employs him or her. However, this statutory recognition of autonomy is not absolute, and becomes nonexistent when the IG's purpose in 'conducting interviews . . . is to solicit information concern-ing possible misconduct of
[agency] employees in connection with their work,' and 'the information secured may be disseminated to supervisors in affected subdivisions of the [agency] to be utilized by those supervisors for [agency] purposes.' DCIS, 855 F.2d at 100. (50 FLRA at 615)

. . . .

"We conclude that the requirements of section 7114(a)(2)(B) do not conflict with the IG Act. In reaching this conclusion, we have examined the language of both statutes and their legislative histories and considered the interrelationship between these two enactments. (id. at 616)

. . . .

". . . the expressed legislative intent in enacting section 7114(a)(2)(B) was to provide rights to Federal sector bargaining unit employees consistent with those provided in the private sector under Weingarten. See IV.A.1., above. We agree with the Third Circuit that the purpose of the IG Act is [ v56 p569 ] 'to insulate Inspector Generals [sic] from pressure from agency management which might attempt to cover up its own fraud, waste, ineffectiveness, or abuse.' DCIS, 855 F.2d at 98 (emphasis added). We find that this conclusion is entirely consistent with the statement of purpose in the legislative history of the IG Act: 'The purpose of this legislation is to create Offices
. . . to more effectively combat fraud, abuse, waste and mismanagement in agency programs and operations.' S. Rep. No. 1071, 95th Cong., 2d Sess. 1 (1978), reprinted in 1978 U.S.C.C.A.N. 2676. Thus, we agree with the Third Circuit's rejection of the argument that the IG Act was "intended to create "an independent investigatory office at the [agency] which would not be subject to interference by any other agency programmatic concerns, including federal labor relations.'" DCIS, 855 F.2d at 98. This broad reading is 'unsupported by the text and legislative history of the IG Act.' (id., at 617-618).

. . . .

". . . Our examination of the IG Act does not reveal any irreconcilable conflict with section 7114(a)(2)(B) of the Statute. In particular, no provision in the IG Act . . . would be rendered ineffective by the right to have a union representative present during an OIG investigative interview. For example, compliance with the Statute does not prevent an agency IG from 'conduct[ing] audits and civil and criminal investigations relating to the Department's operations. 5 U.S.C. app. § 4(a)(1).' Id. Nor does compliance with the Statute preclude an IG from 'notify[ing] the Attorney General directly, without notice to other agency officials, upon discovery of 'reasonable grounds to believe there has been a violation of Federal criminal law" [5 U.S.C. app. § 4(d)].' Id. Rather than hindering such investigations, we find that providing section 7114(a)(2)(B) rights to Federal bargaining unit employees will serve in this context as well the salutary purposes the Supreme Court envisioned in its Weingarten decision, e.g., clarifying issues or facts, raising extenuating factors, suggesting other employees having knowledge, and protecting the interests of the entire bargaining unit. Weingarten, 420 U.S. at 260-61.

"Moreover, as we have held, and as the Third Circuit noted in DCIS, 855 F.2d at 100-01, the representational function of a Weingarten representative is limited. Among other things, the employer may insist on hearing the employee's own account of the matter under investigation and the union's presence need not transform the examination into an adversary proceeding. Id. (relying upon Weingarten, 420 U.S. at 260, 262-63); see also Norfolk Naval Shipyard, 9 FLRA 458 (1982) (agency management may have need, under certain circumstances, to place reasonable restrictions on the exclusive representative's participation at a section 7114(a)(2)(B) examination). 'Given the limited function of a Weingarten representative, it is conceivable to us that Congress might conclude that the employee's interest in representation outweighs the limited interference that his or her representative's presence might occasion in [IG] interviews.' DCIS, 855 F.2d at 101.

In sum, we agree with the Third Circuit and 'do not find section 7114(a)(2)(B) and the mandate of the [IG] so clearly irreconcilable that we are willing to imply an exception based solely on the enactment of the IG Act.' Id. at 100." (id., at 618-619)

The Eleventh Circuit Court of Appeals agreed fully, stating, in part, as follows:

"We find nothing in the text or legislative history of the IG Act, however, to justify exempting OIG investigators from compliance with the federal Weingarten provision. No provision of the IG Act suggests that Congress intended to excuse OIG investigators from honoring otherwise applicable federal statutes. [footnote omitted] Moreover, we do not find a sufficient conflict between the purpose of the IG Act and the mandate of
§ 7114(a)(2)(B) so that we would imply such an exemption into the text of the IG Act. See DCIS, 855 F.2d at 100.

"Congress created the Offices of the Inspector General in order 'to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations' of certain specified federal agencies. S.Rep. No. 95-1071, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 2676, 2676 (1978); see also 5 U.S.C. app. 3 § 2. In order to accomplish these goals, Congress believed it necessary to grant OIGs a significant degree of independence from the agencies they were charged with investigating. For example, even though Inspector Generals are under the 'general supervision' of the agency head, only the President, not the agency head, may remove an Inspector General. 5 U.S.C. app. 3 § 3(a),(b). Neither the agency head nor the deputy may 'prevent or prohibit
[ v56 p570 ] the Inspector General from initiating, carrying out, or completing any audit or investi-gation.' 5 U.S.C. app. 3 § 3(a). And apart from the limited supervision of the top two agency heads, no one else in the agency may provide any supervi-sion to the Inspector General. Id. ('[The Inspector General] shall not report to, or be subject to supervision by, any other officer of [the agency].'); see also NRC 25 F.3d at 233-35 (characterizing agency head supervision of OIG as 'nominal'); [footnote omitted] DOJ, 39 F.3d at 367 (discussing independence of OIG).

"In Congress's view, such independence was necessary to prevent agency managers from covering up wrongdoing within their agencies in order to protect their personal reputations and the reputations of their agencies. In light of the potentially conflicting agendas of agency management and Inspector Generals, Congress created the safeguards necessary to ensure that Inspector Generals could conduct their investigations without interference from agency management personnel. See S.Rep. No. 95-1071, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 2676, 2682; DCIS, 855 F.2d at 98 ('[T]he purpose of these provisions was to insulate Inspector Generals from pressure from agency management which might attempt to cover up its own fraud, waste, ineffectiveness or abuse.'). We do not believe that the presence of a union representative at OIG interviews, as mandated by federal statute, creates the type of interference from which Congress sought to insulate OIG investigators. The employees' statutory right to union representation does not provide management with an opportunity to interfere with OIG investigations or to cover up fraud or waste within its own agency.

"Moreover, we do not believe that the presence of a union representative will impermissibly hinder the OIG's ability to perform its essential function of detecting and preventing fraud and abuse within the agencies. The Weingarten representative is present only to assist the employee, and the employer is free to insist in hearing only the employee's own account of the matter under investigation. See Weingarten, 420 U.S. at 260, 95 S.Ct. at 965. The representative's presence 'need not transform the interview into an adversary process.' Id. at 263, 95 S.Ct. at 966. . . . Moreover, we do not see how the right of an employee to be represented by a union representative presents a significantly greater interference with OIG interviews than the existing right of an employee to be represented at such interviews by an attorney. See 5 U.S.C. § 555(b) (providing for the right to be advised and represented by counsel for anyone compelled to appear in person before an agency or agency representative).

"We therefore conclude that allowing a union employee to exercise the full rights granted to him or her by
§ 7114(a)(2)(B) is not sufficiently inconsistent with the IG Act to justify an implied exemption for OIG investigators. . . ." (120 F.3d at 1214-1215) (Emphasis supplied)

3. D.C. Circuit's Decision in Twin Cities is Rejected as Controlling Precedent.

For reasons already set forth, it must be apparent, with all due deference, that I consider Twin Cities, 39 F.3d 361 (D.C. Cir. 1994), wrongly decided; but my opinion is of no moment. The controlling consideration is that the Authority has respectfully declined to follow Twin Cities and the decision of the Authority would, in any event, be binding on me. Thus, in NASA the Authority held, in part, as follows:

"Consistent with our decision in DOD, DCIS [28 FLRA 1145 (1987)], and the Third Circuit's affirmance of this decision in DCIS [855 F.2d 93 (3d Cir. 1988)], we find that investigator Dill was acting as a 'representative of the agency'--NASA, HQ--within the meaning of section 7114(a)(2)(B). We reach this conclusion based upon our determination that: (1) the term 'representative of the agency' under section 7114(a)(2)(B) should not be so narrowly construed as to exclude management personnel employed in other subcomponents of the agency; (2) the statutory independence of agency OIGs is not determinative of whether the investi-gatory interviews implicate section 7114(a)(2)(B) rights; and (3) section 7114(a)(2)(B) and the IG Act are not irreconcilable. See DCIS, 855 F.2d at 99, 100. . . ." (50 FLRA at 614)

. . . .

". . . Contrary to the D.C. Circuit's determination that '[t]he Inspector General does not stand in the shoes of management,' DOJ, 39 F.3d at 368, under these circumstances we conclude, in agreement with the Third Circuit, that 'Congress would regard [an OIG] investigator as a "representative of the [agency]."' DCIS, 855 F.2d at

100. [footnote omitted]" (id. at 616) [ v56 p571 ]

. . . .

"The D.C. Circuit concluded in DOJ that if required to comply with 5 U.S.C. § 7114(a)(2)(B), 'the Inspector General's independence and authority would necessarily be compromised.' DOJ, 39 F.3d at 361. With all due respect, we disagree. . . ." (id. at 618)

. . . .

"In sum, we agree with the Third Circuit and 'do not find section 7114(a)(2)(B) and the mandate of the
[IG] so clearly irreconcilable that we are willing to imply an exception based solely on the enactment of the IG Act.' Id. at 100.

"Even if we were to find a conflict between these two statutes, given the absence of statutory language evidencing a legislative intent that one is preemptive of the other, [footnote omitted] we find no support for the D.C. Circuit's determination that the IG Act should trump the Statute in general, or section 7114(a)(2)(B) in particular.
. . .

"Our reading of the Statute and the IG Act is consistent with the canons of statutory construction because it gives effect to each law while preserving their sense and purpose. . . . (id. at 619)

In granting enforcement of NASA, the Eleventh Circuit Court of Appeals stated, in part, as follows:

"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 'agency' Congress intended under § 7114(a)(2)(B) because it had no collective bargaining relationship with the union. Id. at 365-66 In holding that interviews with DOJ's OIG investigators are not governed by the federal Weingarten provision, the DOJ court relied on the independence and authority granted Inspector Generals by the Inspector General Act of 1978, 5 U.S.C. app. 3
§§ 1-12 ('IG Act'). '[T]he Inspector General's independence and authority would necessarily be compromised if another agency of government-the Federal Labor Relations Authority-influenced the Inspector General's performance of his duties on the basis of its view of what constitutes an unfair labor practice.' Id. at 367.

"In the face of these conflicting opinions, the Authority independently analyzed the terms of
§ 7114(a)(2)(B). It first determined that NASA-HQ was the relevant agency under this section. See 5 U.S.C. § 7103(a)(3) (defining 'agency' to mean an 'Executive agency'). The Authority then concluded that NASA-OIG should be considered a representative of NASA-HQ for the purposes of § 7114(a)(2)(B) because it is a subcomponent of NASA-HQ and provides investigatory information to NASAHQ and to other agency subcomponents for use in disciplinary proceedings.

"The Authority rejected NASA-OIG's assertion that § 7114(a)(2)(B) applies only to examinations conducted by an employee of a component of the agency that has a collective bargaining relationship with the union. . . ." (120 F.3d at 1212)

. . . .

"After a careful examination of the text and motivating purposes of § 7114(a)(2)(B), we find no error in the Authority's interpretation of 'representative of the agency.'

. . . .

"Moreover, we agree with the Authority that reading such a requirement into 'representative of the agency' in § 7114(a)(2)(B) would undermine Congress's purpose in enacting this section. . . .

. . . . [ v56 p572 ]

". . . Under these circumstances, we conclude that the Authority's determination that the NASA-OIG investigator was a 'representative of the agency' within the meaning of § 7114(a)(2)(B) is a permissible construction of the Statute. [footnote omitted]" (id. at 1213)

. . . .

"We find nothing in the text or legislative history of the IG Act, however, to justify exempting OIG investigators from compliance with the federal Weingarten provision. . . ." (id. at 1214).

Indeed, the Second Circuit Court of Appeals, in FLRA v. U.S. Department of Justice, Washington, D.C. et al., [INS and OIG], 125 F.3d 106 (2d Cir. 1997), has rejected the underpinnings of the D.C. Circuit's decision, in pertinent part, as follows:

". . . The District of Columbia Circuit has concluded that the OIG of the DOJ 'plainly qualifies as an "agency" because it is an "independent establishment" and "not an Executive department" (5 U.S.C. § 104(1)).' United States Department of Justice v. FLRA, 39 F.3d 361, 365 (D.C. Cir. 1994) ("DOJ/FLRA"). The Third Circuit has interpreted the definition quite differently, reasoning that "'[i]ndependent establishments' are defined by 5 U.S.C. § 104 in such a way as to exclude any Executive departments or parts thereof.' Defense Criminal Investigative Services v. FLRA, 855 F.2d 93, 98 (3d Cir. 1988) (emphasis added) ("DCIS/FLRA"). Based on this interpretation, the Third Circuit upheld the FLRA's view that the pertinent "agency" in a dispute similar to ours was the Department of Defense ("DOD") . . . The Eleventh Circuit has also held that the pertinent 'agency' was the parent agency (NASA) in which the component that employed the interrogated employees was located. See NASA/FLRA, 120 F.3d at 1212-13.

"On this aspect of the pending controversy, we agree with the Third and Eleventh Circuits. The definition of 'independent establishment' excludes 'parts' of an Executive department, 5 U.S.C. § 104(1), and the OIG of the DOJ therefore cannot be an 'independent establishment,' as the D.C. Circuit believed. . . ." (id. at 111-112).

. . . .

"We agree with the Third and Eleventh Circuits that the pertinent agency for purposes of section 7114(a)(2)(B) is the department or parent agency employing the interrogated employees (here, the DOJ). See DCIS/FLRA, 855 F.2d at 98-100 (pertinent agency is Department of Defense); NASA/FLRA, 120 F.3d at 1212- 13 (pertinent agency is NASA). That conclusion comports with the statutory definition of 'agency.'7

_______

"7. To this extent, we disagree with the D.C. Circuit, which concluded that the DOJ was not the 'agency' within the meaning of section 7114(a)(2)(B) because, in the case reviewed by that Court, the FLRA had dismissed the DOJ as a respondent on the ground that it was not responsible for the OIG's violation. See DOJ/FLRA, 39 F.3d at 365. The fact that the DOJ might not have acted in such a way as to be responsible for an unfair labor practice that the FLRA believed the OIG had committed is no indication that the DOJ is not the pertinent 'agency' for purposes of determining whether an OIG agent is a 'representative' of the 'agency' within the meaning of section 7114(a)(2)(B)." (id. at 112).

. . . .

"The Third and Eleventh Circuits have ruled that an OIG agent employed by a cabinet department (DOJ) or an agency (NASA) is a 'representative of the agency' within the meaning of section 7114(a)(2)(B). See DCIS/ FLRA, 855 F.2d at 100; NASA/FLRA, 120 F.3d at 1212-13. The D.C. Circuit has ruled that section 7114(a)(2)(B) does not apply to interrogation by an OIG agent, see DOJ/FLRA, 39 F.3d at 364-68, a conclusion premised on that Circuit's view that only the OIG itself, rather than the parent cabinet department, might be the 'agency' for purposes of section 7114(a)(2)(B), id. at 365." (id. at 112-113). [n5]

By denying employee Vigil's request for Union representation during its examination of him, OIG failed to comply with the requirements of § 14(a)(2)(B) of the Statute and thereby violated §§ 16(a)(1) and (8) of the Statute. Because OIG was a representative of DOJ in connection with the investigation, DOJ was responsible for the unfair labor practice committed by OIG. Accordingly, it is recommended that the Authority adopt the following: [ v56 p573 ]

ORDER

Pursuant to § 2423.41 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41, and § 18 of the Statute 5 U.S.C. § 7118, the United States Department of Justice, Washington, D.C. and the United States Department of Justice Office of the Inspector General, Washington, D.C., shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the United States Department of Justice, Federal Bureau of Prisons, to take part in any investigatory examination conducted pursuant to § 14(a)(2)(B) of the Statute without allowing the employee's exclusive representative to represent him, or her, when the employee requests such representation and when the employee reasonably believes that the examination may result in disciplinary action.

(b) In any like or related manner, interfering with, restraining, or coercing employees of the Federal Bureau of Prisons in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) The United States Department of Justice shall order its Office of the Inspector General to comply with the requirements of § 14(a)(2)(B) of the Statute when conducting investigatory examinations of employees of the Federal Bureau of Prisons.

(b) The United States Department of Justice, Washington, D.C., shall order posted at all facilities of the Federal Bureau of Prisons, nationwide, where bargaining unit employees of the Federal Bureau of Prisons are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Attorney General and by the Inspector General and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notice to employees are customarily posted. Reasonable step shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41(e), notify the Regional Director of the Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: November 10, 1998

Washington, DC [ v56 p574 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Justice, Office of the Inspector General, Washington, D.C. and the United States Department of Justice, Washington, D.C. have violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY ALL EMPLOYEES OF THE FEDERAL BUREAU OF PRISONS THAT:

WE WILL NOT require any bargaining unit employee of the Federal Bureau of Prisons, to take part in any examination in connection with an investigation without allowing the exclusive representative of such employee to be present if: the employee reasonably believes that the examination may result in disciplinary against the employee; and the employee requests representation.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees of the Federal Bureau of Prisons in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

______

Attorney General

United States Department of Justice

______

Inspector General

United States Department of Justice

Dated: _____

Washington, D.C.

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Region, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844- 5224.

File 1: Authority's Decision in 56 FLRA No. 87

File 2: ALJ's Decision in Case No. DE-CA-80076

File 3: ALJ's Decision in Case No. WA-CA-80156

Footnote # 1 for
56 FLRA No. 87

• ALJ's Decision in Case No. DE-CA-80076

Initially, Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, also, was a party; but, as part of her Motion for Summary Judgment, General Counsel moved to dismiss the Complaint as to Respondent Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, to which the Charging Party did not object, and, by Order dated July 14, 1998, the Complaint as it related to Respondent Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, was dismissed.

Footnote # 2 for
56 FLRA No. 87

• ALJ's Decision in Case No. DE-CA-80076

For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(1) will be referred to, simply, as "§ 16(a)(1)".

Footnote # 3 for
56 FLRA No. 87

• ALJ's Decision in Case No. DE-CA-80076

"2421.4 Activity"

Activity means any facility, organizational entity, or geographical subdivision or combination thereof, of any agency." (5 C.F.R. § 2421.4).

Footnote # 4 for
56 FLRA No. 87

• ALJ's Decision in Case No. DE-CA-80076

Liability of an activity is highly questionable in the absence of the activity's involvement in its denial of § 14(a)(2)(B) representation, which was not alleged as to FCI Englewood, Headquarters, National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of The Inspector General, Washington, D.C., 50 FLRA 601, 621 (1995) (hereinafter "NASA, Hq."); United States Department of Agriculture, Farm Service Agency Kansas City, Missouri, and United States Department of Agriculture, Office of Inspector General, Kansas City, Missouri, 130 Adm. Law Judges Dec. Rep., November 13, 1997, Case No. DE-CA-60399 (June 13, 1997, slip op. pp. 21-24); although, in a perverted sense of logic and reason, the Authority countenances liability of an activity when, as the result of inept pleading, neither the agency nor its Inspector General has been made a party. NASA, Hq., 50 FLRA at 622, citing: U.S. Department of Labor, Mine Safety and Health Administration
, 35 FLRA 790, (1990).

Footnote # 5 for
56 FLRA No. 87

• ALJ's Decision in Case No. DE-CA-80076

The Court's conclusion that,

"In our view, whether an OIG agent is a 'representative' of the DOJ for purposes of section 7114(a)(2)(B) depends on the context in which the interrogation arises." (id. at 113)

is seriously flawed. The Court explained,

". . . if OIG agents were called in to question the INS-NY employees about excessive use of sick leave, section 7114(a)(2)(B) would apply to require attendance of a union representative." (id.)

But,

". . . if an . . . agent was questioning a DOJ employee concerning the employee's alleged criminal conduct [". . . the acceptance of bribes. . . purchasing or carrying personal firearms"], we do not believe that the Weingarten provision would apply to assure the presence of a union representative at the examination." (id.)

The Authority consistently has rejected any distinction between administrative and criminal examinations, as did the Third Circuit Court of Appeals in enforcing DCIS, 855 F.2d 93 (3d Cir. 1998), and, even though the Eleventh Circuit Court of Appeals in n.6 of its NASA decision noted, in part, that

"6. Because this case involved only potential administrative rather than criminal consequences for the employee, we need not determine the availability or scope of § 7114(a)(2)(B) protection in the context of criminal investigatory examinations . . . ." (120 F. 3d at 1213, n.6),

its discussion of the text and motivating purposes of § 7114(a)(2)(B) clearly suggest that it would, in agreement with the Authority, extend § 14(a)(2)(B) to criminal examinations of employees because ". . . The Statute, like the Weingarten rule itself, focuses on the risk of adverse employment action to the employee. . . ." (120 F.3d at 1213).

[ v56 p575 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF JUSTICE

WASHINGTON, DC

and

U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE INSPECTOR GENERAL

WASHINGTON, DC

Respondents

And

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

Charging Party/Union

Case No. WA-CA-80156

Harry E. Jones

Counsel for the Respondent

Christopher M. Feldenzer

Patricia Armstrong

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The issue in this unfair labor practice case is whether the Respondents failed to comply with section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7114(a)(2)(B), in violation of section 7116(a)(1) and (8) of the Statute, when the U.S. Department of Justice, Office of the Inspector General special agents denied the request of Immigration and Naturalization Service bargaining unit employee Tae Johnson for Union representation at an examination in connection with an investigation.

Subsequent to the filing of the complaint and the answer, Counsel for the General Counsel moved for summary judgment [n1] , and Counsel for the Respondents filed a response to the motion and a cross-motion to dismiss the complaint.

Considering all the pleadings, affidavits, and exhibits, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to summary judgment as a matter of law. Accordingly, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The Parties and Their Components

The Respondent, U.S. Department of Justice, Washington, DC, (DOJ), is an agency under 5 U.S.C. § 7103(a)(3). The Respondent, U.S. Department of Justice, Office of the Inspector General (OIG), Washington, DC and the U.S. Department of Justice, Immigration and Naturalization Service (INS), Baltimore, Maryland, are components and organizational entities of DOJ.

The American Federation of Government Employees, AFL-CIO (AFGE), National Immigration and Naturalization Service Council (Immigration Council), is the exclusive representative of a unit of INS employees appropriate for collective bargaining. AFGE, Local 2756 is an agent of the AFGE, Immigration Council for purposes of representing employees of the INS facility in Baltimore, Maryland.

OIG Investigation of Theft from INS

Based upon a report from INS in August 1996, OIG initiated a criminal investigation into the apparent theft of approximately $2,600 from a safe at the INS Caton Center detention facility. The missing money belonged to individuals who had been detained there by the INS.

As part of its investigation from April to July 1997, OIG interviewed and administered polygraph examinations to several individuals including Tae Johnson, an employee under 5 U.S.C. § 7103(a)(2) and a member of the bargaining unit. Johnson is employed as an INS Detention Enforcement Officer.

Criminal Prosecution Declined; Administrative Investigation Continues

On or about October 15, 1997, the results of the investigation were presented to the U.S. Attorney, who declined prosecution. At that point, OIG converted the criminal investigation into an administrative investigation.

OIG Special Agent Mari McCann arranged with INS Baltimore for another interview of Johnson. Early on the morning of October 22, 1997, INS Baltimore told [ v56 p576 ] Johnson to report to the OIG Washington, DC, field office for an interview. Johnson immediately contacted AFGE, Local 2756 shop steward Gary Neuerburg and asked Neuerburg to accompany him to the interview. Johnson picked up Neuerburg at the INS Baltimore office and the two proceeded to Washington, DC.

Union Representation Not Allowed

Johnson and Neuerburg were met in the OIG Washington field office reception area by OIG Special Agent McCann. Johnson introduced Neuerburg to McCann as his Union representative.

McCann ascertained that Neuerburg was a representative of AFGE, Local 2756 and then informed Johnson and Neuerburg that Johnson was not permitted to have a union representative present during the interview in accord with U.S. Department of Justice, Washington, DC et al. v. FLRA, 39 F.3d 361 (D.C. Cir. 1994)(DOJ). Neuerburg responded that a Fifth Circuit decision allowed such union representation. McCann replied that they were not within the Fifth Circuit's jurisdiction and were following the decision of the D.C. Circuit. McCann provided Neuerburg with a copy of relevant portions of the Inspector General's Manual, which explained that, due to the conflicting court decisions, OIG's obligation to honor an employee's request for union representation depended in part on where the interview took place. McCann also furnished Neuerburg an article from the Federal Times newspaper, which discussed the D.C. Circuit opinion.

Neuerburg advised Johnson that OIG would not allow him to represent Johnson during the interview. Neuerburg then left the office and waited in the lounge near the entrance to the building.

The Johnson Examination

The interview of Johnson was conducted by both OIG Special Agent McCann and OIG polygrapher Glenn Powell and lasted approximately 1 ½ hours. The meeting was an examination in connection with an investigation surrounding the theft of property from the safe at the Caton Center facility. It was reasonable for Johnson to believe that the examination could result in disciplinary action. Johnson was required to sign a form which provided that failure to answer any question could be used for disciplinary action or termination of his employment. During the course of the interview, Johnson repeatedly denied any involvement in the theft.

OIG Jurisdiction

OIG investigates waste, fraud, and abuse in DOJ programs and operations as well as allegations of misconduct and criminal wrongdoing on the part of DOJ employees in components other than the Drug Enforcement Administration and the Federal Bureau of Investigation. In this case, the employee being investigated worked for INS, a DOJ component, and INS could use the OIG report of the allegations and facts collected during the investigation as the basis for taking administrative action against the employee.

OIG within DOJ, as within other specified agencies, was established by the Inspector General Act of 1978, as amended, 5 U.S.C. app. §§ 1-12 (1988), to, among other things, "create independent and objective units -- (1) to conduct and supervise audits and investigations relating to the programs and operations" and "(3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies[.]" 5 U.S.C. app. § 2(1) and (3). The Inspector General (IG) is appointed by the President with the consent of the Senate. 5 U.S.C. app. § 3. The IG has the duty and responsibility "to provide policy direction for and to conduct, supervise, and coordinate" investigations. 5 U.S.C. app. § 4(a)(1). The IG reports to and is under the general supervision of the Attorney General and Deputy Attorney General, but neither they nor anyone else in the Department can "prevent or prohibit the Inspector General from initiating, carrying out, or completing" any investigation. 5 U.S.C. app. § 3(a). Further, the Attorney General may intervene in an OIG investigation only in specific circumstances set forth in the Inspector General Act, generally involving national security, 5 U.S.C. app. § 8E(a)(1) and (2), none of which is present in the instant case.

Special Agent McCann, as the lead agent on the case, was at no time directed to take any action or to defer from taking any action by anyone outside of the OIG. [ v56 p577 ]

Discussion and Conclusions

Sections 7114(a)(2)(B) and 7116(a)(1) & (8) of the Statute

Section 7114(a)(2)(B) provides:

(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 repre-sentation. . . .

Section 7116(a)(1) and (8) provides:

(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.

Elements of the Examination

There is no dispute that Johnson, an INS employee in the unit represented by ··__ was examined by OIG_··AFGE, Local 2756, was examined by OIG agents in connection with an investigation and reasonably believed that his examination by OIG agents could result in disciplinary action against him.

Further, the record establishes that Johnson effectively requested representation and that it was denied by an OIG agent. Consistent with section 7114(a)(2)(B), an employee's request for representation need not be made in a specific form, but must be sufficient to put the respondent on notice of the employee's desire for representation. Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1073-74 (1990); U.S. Immigration and Naturalization Service, U.S. Border Patrol, Del Rio, Texas, 46 FLRA 363, 373 (1992); U.S. Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA 874, 879-80 (1987). In this case, Johnson brought Union representative Neuerburg from Baltimore to Washington, DC, for the interview and specifically introduced Neuerburg to OIG Agent McCann as his Union representative. After McCann ascertained that Neuerburg was a representative of AFGE, Local 2756, McCann made clear that Johnson was not permitted to have a union representative present during the interview. The totality of the circumstances leave no doubt that OIG was on notice of Johnson's desire for representation and denied that representation based on its policy of following the decision of the D.C. Circuit in DOJ, supra.

OIG Violated the Statute as Representative of the Agency

The fundamental issue presented is whether the OIG Special Agents who conducted the examination of employee Johnson on October 22, 1997, were acting as representatives of DOJ, the agency that was the employer of the appropriate unit in which Johnson was employed.

Respondent OIG's position is that it complied with section 7114(a)(2)(B) as interpreted by the D.C. Circuit in DOJ. In that case, the court held that the OIG is not the "agency" for purposes of section 7114(a)(2)(B) and that no right to union representation attaches when an OIG agent conducts an investigatory interview.

In Headquarters, National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., 50 FLRA 601 (1995)(NASA), enf'd sub nom. FLRA v. National Aeronautics and Space Administration, Washington, DC et al. v. FLRA, 120 F.3d 1208 (11th Cir. 1997), the Authority, after a thorough analysis of the Statute, rejected the D.C. Circuit's position in DOJ, and held that NASA-OIG was a "representative of the agency" within the meaning of section 7114(a)(2)(B). The Authority in NASA concluded:

(1) the term "representative of the agency" under section 7114(a)(2)(B) should not be so narrowly construed as to exclude management personnel employed in other subcomponents of the agency; (2) the statutory independence of agency OIGs is not determinative of whether the investigatory interviews implicate section 7114(a)(2)(B) rights; and (3) section 7114(a)(2)(B) and the IG Act are not irreconcilable.

50 FLRA at 614.

It is also noted that the OIG examination at issue was conducted as part of an administrative investigation, and the OIG report of that investigation could be [ v56 p578 ] furnished to INS, Baltimore for its use in determining whether to proceed with disciplinary action. See also Department of Defense, Defense Criminal Investigative Service, Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145 (1987), enf'd sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93, 100 (3rd Cir. 1988) and U.S. Department of Justice, Office of the Inspector General, Washington, DC, and U.S. Immigration and Naturalization Service, El Paso, Texas, 47 FLRA 1254, 1261 (1993). But see Federal Labor Relations Authority v. U.S. Department of Justice, Washington, DC et al., 137 F.3d 683 (2nd Cir. 1997).

Accordingly, in this case, I conclude that OIG is a representative of DOJ within the meaning of section 7114(a)(2)(B), and unit employee Johnson of INS, Baltimore, another component of DOJ, was entitled to have union representation at the examination conducted by OIG agents. By denying the requested union representation, OIG failed to comply with section 7114(a)(2)(B), interfered with this right under the Statute, and violated section 7116(a)(1) and (8) of the Statute, as alleged.

DOJ Violated the Statute

Respondent DOJ urges that no violation can be found against DOJ because the General Counsel has not established any facts which demonstrate that DOJ had any involvement in, or responsibility for, the examination of Tae Johnson on October 22, 1997. Respondent asserts that dismissal of DOJ would be consistent with the Authority's holding in U.S. Department of Justice, Washington, DC and U.S. Immigration and Naturalization Service, Northern Region, et al., 46 FLRA 1526 (1993), vacated and remanded on other grounds sub nom. U.S. Department of Justice, Washington, DC et al. v. FLRA, 39 F.3d 361 (D.C. Cir. 1994).

In NASA, the Authority announced that it would no longer follow Authority precedent declining to hold an agency headquarters responsible for the statutory violations of its Inspector General. The Authority stated, in part:

[OIG's][i]nvestigative information is shared with the agency head and other subcomponents of the agency and is a basis upon which disciplinary action is taken. Thus, the OIG represents not only the interests of the OIG, but ultimately NASA, HQ and its subcomponent offices.

Moreover, the IG Act specifically provides that IGs report to and are under the supervision of the head of the agency. 5 U.S.C. app. § 3(a). . . Accordingly, NASA, HQ is responsible for the statutory violations committed by its OIG in this case.

50 FLRA at 621.

As noted, the OIG information obtained in this case may be similarly shared with DOJ, INS for administrative purposes. In light of the Authority decision in NASA, I conclude DOJ was responsible for the manner in which OIG conducted the examinations in the subject case. Id. at 622. Accordingly, I conclude that DOJ violated section 7116(a)(1) and (8) of the Statute, as alleged.

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.41(c) of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Justice, Washington, DC, and the U.S. Department of Justice, Office of the Inspector General, Washington, DC, shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the U.S. Department of Justice, Immigration and Naturalization Service to take part in any examination conducted by the U.S. Department of Justice, Office of the Inspector General, without allowing the American Federation of Government Employees, National Immigration and Naturalization Service Council, or any other exclusive collective bargaining representative of the employee, to participate in such examination, when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) U.S. Department of Justice shall order the U.S. Department of Justice, Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory [ v56 p579 ] examinations of U.S. Department of Justice, Immigration and Naturalization Service, bargaining unit employees.

(b) U.S. Department of Justice, Office of the Inspector General shall comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of bargaining unit employees.

(c) U.S. Department of Justice, Washington, DC, shall ensure that no disciplinary action is taken against Immigration and Naturalization Service employee Tae Johnson as a result of any information obtained as a result of the examination by agents of the Office of the Inspector General on October 22, 1997, when Tae Johnson requested and was denied union representation by the American Federation of Government Employees, Local 2756, AFL-CIO.

(d) Post at all locations of the Immigration and Naturalization Service copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Attorney General, U.S. Department of Justice and by the Inspector General, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees of the Immigration and Naturalization Service are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

3. Respondents' cross-motion to dismiss the complaint is denied.

Issued, Washington, DC, September 16, 1998.

_____

GARVIN LEE OLIVER

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Washington, DC and U.S. Department of Justice, Office of the Inspector General, Washington, DC, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees of the U.S. Department of Justice, Immigration and Naturalization Service, that:

WE WILL NOT require any bargaining unit employee of the U.S. Department of Justice, Immigration and Naturalization Service to take part in any examination conducted by the U.S. Department of Justice, Office of the Inspector General, without allowing the American Federation of Government Employees, National Immigration and Naturalization Service Council, or any other exclusive collective bargaining representative of the employee, to participate in such examination, when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

THE ATTORNEY GENERAL WILL order the U.S. Department of Justice, Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of U.S. Department of Justice, Immigration and Naturalization Service bargaining unit employees.

U.S. Department of Justice

Washington, DC

By:___ Date:____

ATTORNEY GENERAL

Office of the Inspector

General, Washington, DC

By:___ Date:____

INSPECTOR GENERAL

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, NW., Suite 400, Washington, DC 20037, and whose telephone number is: (202) 653- 8500.

File 1: Authority's Decision in 56 FLRA No. 87

File 2: ALJ's Decision in Case No. DE-CA-80076

File 3: ALJ's Decision in Case No. WA-CA-80156

Footnote # 1 for
56 FLRA No. 87

• ALJ's Decision in Case No. WA-CA-80156

The General Counsel also moved to withdraw the allegations of the complaint involving the Respondent Immigration and Naturalization Service. The General Counsel's unopposed motion is granted, and the caption of the case is changed accordingly to remove INS as a Respondent.