MADAME CAROL’S BANGED UP CRYSTAL BALL AND THE MAGIC “S”
J. K. Rowling should be writing this given the elements of wizardry in a recent FLRA decision making it look like it is right out of the Department of Magical Law Enforcement. The Authority confronted an interesting question, namely, should an agency that is excluded from the provisions of the labor law be required to respect the rights that act guarantees to covered employees. When a bargaining unit employee was accused of viewing porn on an agency computer, his employing agency, Hill Air Force Base, sent in the Air Force Office of Special Investigations (AFOSI) to interview him. AFOSI promptly refused to let the employee bring a union rep on the grounds that AFOSI was excluded from the labor law’s obligations. FLRA had to decide whether the employee’s right were violated, and by a 2 to 1 decision it held they were not. AFGE, 68 FLRA 460 (2015)
We think the world of FLRA Chair Carol Pope. As far as we are concerned, she is FLRA’s Joan of Arc—pre-roasting, of course. But in this case, the only image that came through was that of a fortune telling Madame bent crookedly over a dusty, dinged, and dented crystal ball seeing things that no LR practitioner on either side of the table can see. She concluded that Congress intended that excluded agencies are not required to respect the statutory rights of bargaining unit employees. How? She relied on the placement of a single letter in the statute, an “S,” which was apparently loaded with enough power to overcome more than a half- dozen indications that AFOSI should have complied with the law.
Here is Pope’s reasoning, which was joined by Patrick Pizzella, a Lord Voldemort-like character seeking to rid the world of the union-loving Muggles. The decision turns on Section 7103(b)(1), which provides:
(b)(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—
(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national[‑]security work, and
(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national[‑]security requirements and considerations.
Pope wrote that Executive Orders issued under § 7103(b)(1) “remove agencies or subdivisions like AFOSI from all of Chapter 71 of Title 5” based on a presidential finding in an Executive Order that the “provisions of th[e] chapter cannot be applied” to those agencies or subdivisions. “Section 7103(b)(1)’s reference to the statutory ‘chapter’ as a whole, and the section’s use of the plural word ‘provisions,’ support the conclusion the affected agencies and subdivisions are excluded from the entirety of the Statute.”
She went on to write, “The next subsection of the Statute – § 7103(b)(2) – reinforces our understanding of § 7103(b)(1), insofar as § 7103(b)(2) allows the President to ‘issue an order suspending any provision’ of the Statute. The use of the singular ‘provision’ in § 7103(b)(2) indicates that Congress could have granted the President authority in § 7103(b)(1) to suspend particular provisions of the Statute without suspending others. But Congress did not include such wording in § 7103(b)(1).”
As you can see that is one magically powerful “S.” It is right up there with Jack’s beans, D&D’s fish dust, and Harry P’s wand. With a single placement in a law with tens of thousands of letters it settled this complex legal question.
But the Harry Potter similarities do not end there. This case also has a Professor Dumbledore, namely, Member Dubester, who wrote a piercing dissent listing all the forces opposing domination by the Magic S. They were–
- The fundamental nature of the statute is to protect employee rights. (7101(a)) Only a statutory provision “of compelling clarity should suffice to nullify” the fundamental purpose of the law
- Despite the Pope-Pizzella pronouncement that the Magic S revealed the answer to the question clearly and unambiguously, Dubester finds that language is not clear enough to support such a profound, multi-level finding.
- While the statute does exclude AFOSI employees from the benefits of the labor law, thereby relieving AFOSI as those employees’ employer from any labor law obligations, that is very different than finding in the Magic S that it also means that when AFOSI is not acting as an employer and not dealing with its own employees it can ignore the statutory rights of employees.
- Dubester believes that in the Hill AFB case AFOSI was acting as a representative of the employer and pursuant to a recent Supreme Court decision as a representative it is obligated to follow any obligations the primary employer has to its employees. (See NASA v. FLRA, 527 U.S. 229, 234 (1995)) (Pope’s crystal ball also told her that the Magic S meant that agencies excluded by Executive Order can never be representatives of the agency. (As we said, that is one mother-powerful S.)
- Just last year, the D.C. Circuit stated: “The Weingarten right embodied in § 7114(a)(2)(B) is an overriding federal protection that takes precedence over the [investigator’s] right to engage in collective bargaining under the [Statute] and the OIG’s authority to pursue investigations under the IG Act.” When the issue is whether an investigator is “a representative of the agency,” the relevant inquiry, in the Supreme Court’s view, is simply whether the investigator’s work “is performed with regard to, and on behalf of, the particular agency in which [the IG] is stationed. (See U.S. DHS, U.S. CBP v. FLRA, 751 F.3d 665, 670 (2014)) Numerous other FLRA and court decision hold that investigators used by an agency to investigate can be “representatives of the agency.”
- The same agency and union were involved in a prior case where the Authority agreed that the agency committed a ULP by violating § 7114(a)(2)(A) of the Statute because the agency did not provide the union with an opportunity to be present during a formal discussion involving an AFOSI investigator functioning as a “representative of the agency.” The Air Force did not even appeal that case to the courts. AFGE, 36 FLRA 746 (1990). Dubester then cited a second case between the parties that had the same result. It was only recently that AF management decided to disavow the practice of allowing union reps into AFOSI interviews.
- “Finally, the majority’s conclusion that an AFOSI investigator may not act as ‘a representative of the agency’ is also wrong as a matter of policy and common sense. AFOSI’s mission is ‘[t]o identify, exploit[,] and neutralize criminal, terrorist[,] and intelligence threats to the Air Force, Department of Defense[,] and U.S. Government.’ Most, if not all, of the dozens of agency subdivisions ‘excluded’ from the Statute along with AFOSI by EO 12,271 have similar missions. And their ‘exclusion’ reflects a common concern – to protect national security….This case does not involve national security issues.” (One again, the Magic S effectively made clear that an excluded agency does not have to follow the labor law even if it is doing something other than the function which was the basis for its exclusion. In most agencies, a first line manager would sit down with this employee, view his computer records, ask the employee to explain and end the investigation.)
That is seven strong reasons why the “Magic S” is not so magical, which just happens to be the number of players on a standard Hogwarts Quidditch team.
But as electrifying as it was to see Professor Dumbledore’s arguments enter the arena, we wish he and the majority had bothered to consider the practical aspects of this case. After all, the law does provide, “The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter,” which we assume means leadership with an eye to one of the other fundamental findings of the law, namely, to contribute “to the effective conduct of public business.”
Here are five that will mean a lot to practitioners. First, although the statute might guarantee Weingarten rights, a lot of unions have negotiated separate contract entitlements to union reps in all interviews. Those clauses will be interpreted by Arbitrators who might not read a contract entitlement like a statutory entitlement. After all, as the majority said, 7103 only excludes certain agencies from the “statutory” obligations of the law; it said nothing about regulatory obligations. So, now we will have to wait to see how contract interpretation deference squares with statutory interpretations. Coupled with the fact that this case is probably going to the Court of Appeals for review if not the Supreme Court, it could be years before anyone knows the outcome of this. That means escalating potential reinstatement and back pay liabilities every time an agency denies a union rep.
Second, why isn’t anyone considering the fact that if an employee’s employer orders him/her to the interview, pays the employee for the time in the interview, selects the interviewer, provides the interview space, selects the topic of the interview, and uses the product of the interview, then the interview carries a Weingarten entitlement? Those are very easy elements for practitioners to apply. In contrast, if AFOSI shows up on an employee’s day off without his/her employer’s knowledge to conduct a criminal matter interview unrelated to his job duties, Weingarten would not apply. Why doesn’t all this turn on whether the interview is work related? We are not big fans of the 11 or 12 part criteria FLRA uses to determine whether a discussion is formal for purposes of inviting the union, but at least they are all work-related measures.
Third, FLRA has created a too fine a distinction for practitioners to make this determination confidently. The majority says that the employee does not have a 5 USC 7101 statutory right to a union rep in an interview by an excluded agency. But in most cases where an agency excluded for purposes of national security investigations is involved, the interview is probably going to involve Kalkines, Beckwith, Garrity or Miranda rights. Do LR and union practitioners now have to know Supreme Court case law to decide whether to allow a rep of any kind. For example, how soon before an LR specialist is asking himself is this one of those situations where I can deny her a union rep, but must allow an attorney before or after I give her immunity to try to get an answer out of her as to whether she knew there would be pictures of hot, sweaty, mostly-naked, man-hunks in a locker room on the ESPN.com web site when she went to check on the recent scores of the women’s college softball championship series?
Fourth, if management refuses an employee a union rep, the chances go way down that the employee is going to answer any questions. In all likelihood the union rep is going to tell the employee to assert his Miranda rights to silence if a national security agency is involved. If so, the agency gets no early information from the employee. In contrast, an attending union rep might have helped the employee explain how something legitimately happened or even encourage the employee to quickly resign once s/he heard the employee’s responses to the interviewer. That is a big benefit for the agency that is now virtually gone thanks to FLRA. No one expects Voltemort to accept there is anything good about unions, but Madame Pope should have known the mutual vale unions can bring to these interviews.
Fifth, could not Madame Pope see the evil her ruling awakens? If an excluded agency does not have to respect employees’ labor law rights, can an AFOSI investigator threaten employees with more investigations of him and his family if he does not drop out of the union? Could it spy on all the union reps to see if they ever talk to the employee again? Could they deny the union officers security clearances, which is a near-unreviewable decision, just to drive the union away? It sure looks like that is the practical effect of the Magic S.
It seems only fitting that with all the allusions to the mystical, we should be allowed to end this post with a wish, which is that AFGE, NTEU and the other general counsel powerhouses of the federal sector unions team up to continue the fight in a court. That is certainly what Harry, Hermione, and Ron would have done.