FLRA WANTS INPUT ON ITS “LICENSE TO KILL” CASE
The Authority recently called for input from all interested parties on a case before it. An ALJ has recommended that an employee of an agency that is excluded from coverage under the labor statute by Presidential Executive Order can never be held liable for violating other covered employees’ labor law rights. If the FLRA upholds this recommendation, managers in every agency will have the right to call on employees from one of these government entities to come in and do any illegal dirty work for them. While we hope that unions assign their best legal minds to respond to FLRA, there is also a lot of common sense at issue here that any union leader should feel free to share with the Authority. Here are some facts of the case.
An employee’s manager started investigating an employee because of his alleged threat to “wring a supervisor’s neck” and inappropriate sexual comments to a co-worker. During that investigation someone alleged that the employee has been viewing pornography on his work computer. So, the supervisor asked the IT folks to check the computer, and they did find evidence suggesting the employee might have accessed child pornography. Now, here is where it gets interesting. The ALJ found that a “confidential source” in the IT department reported this to the Air Force Office of Special Investigations (AFOSI) which investigates potential felony-level crimes. Had the supervisor clearly asked AFOSI to continue her investigation or even just assist, common sense would support the conclusion that AFOSI was acting as an official agent of the employer. (There is no suggestion in the record of the ALJ even considered an adverse inference against the agency that the confidential source was a manager based on its refusal to disclose who the confidential source was.)
When the AFOSI investigator scheduled the employee’s interview, the employee brought a union rep and asked that the rep be allowed into the interview. The employee’s manager was also present, the interview took place during work hours, and at the same location where the employee worked, namely Hill Air Force Base. Nonetheless, the AFOSI investigator refused to let the employee’s union rep into the interview and excluded the manager as well.
During the subsequent interview, the AFOSI investigator asked the employee, “[H]ow do you think the general [ at Hill is going to] feel with somebody like you working for him? You’re not going to be able [to be] working … for very long.” The employee told the ALJ that the investigator was “very coercive, very direct[,] and very cruel.” The employee also testified that he tried to leave at one point during the interview, but that [the AFOSI investigator] stated to him: “[we’re] not done with you yet.” In fact, when the employee tried to leave anyway, he found the investigators had locked him in the room.
Here are the elements of the case that seem significant to us:
- The investigatory interview occurred on the employing agency’s premises,
- It occurred during work hours,
- The employee’s supervisor came to the interview with an intention to sit through it,
- The investigation began based as an administrative inquiry, not criminal,
- The alleged offenses occurred on the job as opposed to outside work hours and off agency premises,
- Official agency managers never referred the case to AFOSI or at least AFOSI refused to disclose who it was so that their motives and authority could be probed,
- The AFOSI investigator went beyond merely investigating and made comments about the likely administrative disciplinary outcome of the case as opposed to likely criminal outcome, as if he was speaking for the employees’ managers,
- By refusing the let the employee leave the interview the AFOSI was acting as if it was an administrative matter rather than criminal because, as all “Law and Order” fans know Miranda Rights give everyone the right to leave a criminal investigation whenever they wish, and
- The employee was ultimately fired, not criminally prosecuted. In other words, the information gathered was used by the employing agency, not the criminal prosecution arm of the agency.
Common sense suggests that the Authority should resolve this using the “duck” principle, namely, if it walks like a duck, quacks like a duck and looks like a duck, it is a duck. Everything about this interview suggests it was an administrative disciplinary matter, not criminal. The only difference was that the investigator was paid by a different part of the Air Force than the employee. We can see that if an employee is investigated by an AFOSI agent 1- outside duty hours and 2-outside his work location for an 3- alleged crime that 4- occurred outside duty hours and 5- had nothing to do with the employer, and 6- the investigator treated the interview in accord with criminal principles, the employee does not have a right to a union rep. For example, if the employee left the scene of a serious accident on a weekend while leaving a church picnic.
The Air Force, whether it be the AFOSI or the employee’s managers, had the ability to treat the matter in accordance with at least half of those concept, i.e., outside duty hours and work premises, and in strict compliance with Miranda principles. It also had the ability to refer the matter officially to AFOSI through agency managers and not mix the original administrative allegations with criminal matters, but it did not. The employee should not suffer because of the decisions his managers made. Under the facts of this case, the employee was entitled to a union rep—and we hope the Authority agrees.
Moreover, the ALJ based his recommendation on his own reading of a very ambiguous passage of the labor law.
President Carter also determined that “Chapter 71 of Title 5 of the United States Code cannot be applied to” the AFOSI in a “manner consistent with national security requirements and considerations.” (E.O. 12171, § 1-1 01). Based on these determinations, President Carter ordered that the AFOS1 be “excluded from coverage under Chapter 71 of Title 5 of the United States Code,” i.e., the Statute. (id. ). I interpret the President’s direction that the AFOSI be “excluded from coverage” under the Statute to mean that the AFOSI and its agents are excluded from coverage under§ 7I I4(a)(2)(B). The Executive Order therefore precludes a finding that the AFOSI or its agents can violate § 7114(a)(2)(B) or for that matter,§ 7116(a)(l) and (8). Cf AFMC, 66 FLRA at 596 (ALJ Decision) (E.O. 12171precludes a finding that the AFOSI violated § 7116(a) while conducting a criminal investigation). Further, I find that since an AFOSI agent is excluded from coverage under§ 7114(a)(2)(B), an AFOSI agent cannot be a “representative of the agency” under§ 7114( a)(2)(B).
A passage of law this ambiguous should not be read to void an employee’s statutory rights when there is no evidence that either the employee’s managers nor the Air Force criminal investigation arm would have been hindered from acting criminally or administratively. If FLRA adopts the ALJ’s recommendation, it is handing agencies a license to virtually kill employees so long as they use someone from one of the government entities which the President has said may not be organized or forced to engage in collective bargaining.
(P.S. Does anyone else wonder whether the AFOSI investigators were guilty of false imprisonment when they locked him in the room despite his request to leave?)