FLRA CUFFS IG INVESTIGATORS—AND SLAMS CBP LR’S INCOMPETENCE

For far too long IG Investigators have been able to ignore virtually every union negotiated protection against unfair, intimidating, underhanded investigatory interviews of employees. But FLRA just changed that in with NTEU and Customs & Border Protection decisions. (See NTEU and CBP, 66 FLRA 904 (2012))

In the second of the two decisions, the union convinced an arbitrator to rule that the IG investigators had failed to follow the contract provisions about employee interviews.  When management filed exceptions with FLRA, the Authority smacked them down hard and publicly.  FLRA opened its analysis by calling management’s case superficial because BP did not explain how any of the contract terms were inconsistent with Inspector General Act or any other law, rule or regulation or cite a single precedential case for its assertions.  (This kind of representation is typical of CBP’s LR staff which has earned our honor as the Biggest Loser in the federal LR community.)

FLRA then pointed out that it will assess whether particular provisions of  agreements are contrary to specific terms of the IG Act and that agreements that are not contrary to law, rule, or regulation are enforceable in arbitration.

In addition, CBP argued that the award was contrary to law because DHS-OIG is not a party to the agreement, and that the Arbitrator erred by imposing contractual obligations on DHS-OIG.  FLRA responded by noting that the Arbitrator found that CBP violated Article 41 and directed CBP to take certain actions, see id. at 27; he did not find that DHS-OIG violated the agreement or direct DHS-OIG to take any actions.

Finally, the Authority held that DHS‑OIG investigators are representatives of CBP because by being charged with investigating the conduct of all DHS employees – including CBP employees – it serves as CBP’s own OIG. Moreover, the Authority has stated that “there is no basis for finding that the result of . . . bargaining” between the Union and CBP “is unenforceable merely because DHS-OIG allegedly controls the conditions of employment that were the subject of that bargaining.”

This and the companion NTEU case (66 FLRA 892) overturned precedent arising from U.S. Nuclear Regulatory Commission v. FLRA, 25 F.3d 229 (4th Cir. 1994) which held negotiated provisions were not binding on IG investigators.

The bottom line is that union will now be able to negotiate investigatory protections that apply to departmental IG staff when they are acting as representatives of the employer with which the union bargains.

While our compliments go to NTEU for setting up these cases, we cannot deny that all union advocates owe a debt of gratitude to the clowns running the CBP LR program which consistently makes such ridiculously superficial arguments that result in expanded union rights.  It has been a rough month for CBP at the Authority.  In another NTEU case (66 FLRA 865), FLRA dismissed its exceptions because it had failed to raise the argument with the arbitrator before making it to FLRA on exemptions.  That is yet another rookie mistake for an agency that is almost single-handedly keeping FLRA busy.