EDWARDS, Senior Circuit Judge:
This case presents a petition for review filed by the United States Department of Homeland Security ("DHS") challenging a decision by the Federal Labor Relations Authority ("FLRA" or "Authority"). The dispute arose with the FLRA on a negotiability appeal filed by the National Treasury Employees Union ("NTEU" or "Union") under 5 U.S.C. § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute ("FSLMRS").
NTEU and Customs and Border Protection ("CBP") — an agency within DHS — had negotiated a collective bargaining agreement that included the following provision:
Article 22, Section 2 ("Section 2"). See NTEU Petition for Review of Negotiability Issues, May 18, 2010, at 3-4, ¶ 9, reprinted in Joint Appendix ("J.A.") 10-11. NTEU explained that the proposed Section 2 was intended to have the following effects:
NTEU Petition for Review of Negotiability Issues at 4-5, ¶ 12, reprinted in J.A. 11-12.
DHS objected to the collective bargaining agreement pursuant to § 7114(c) of the FSLMRS on the ground that procedures followed by DHS's Office of Inspector
Before the FLRA, DHS pointed out that the OIG is an independent entity located within the agency but excluded from collective bargaining. DHS also pointed out that the OIG did not participate in the negotiations that culminated in the adoption of the disputed contract provision. DHS's principal argument, however, both before the Authority and in this court, rests on the Inspector General Act of 1978 ("IG Act"), 5 U.S.C. App. 3 §§ 1-13:
Br. for Pet'r at 16. In advancing this position, DHS relied heavily on the Fourth Circuit's decision in U.S. Nuclear Regulatory Comm'n v. FLRA ("NRC"), 25 F.3d 229, 235-36 (4th Cir.1994) (holding that the OIG is not subject to collective bargaining under the FSLMRS, and it may not be bound by the terms of an agreement negotiated by a union on behalf of other employees in an agency).
The Authority rejected DHS's position and ruled that the disputed contract provision was negotiable. National Treasury Employees Union, 66 F.L.R.A. 892, 892 (2012) ("FLRA Decision"). The FLRA held that the terms of Section 2 are not contrary to law, and therefore ordered DHS to rescind its disapproval of the provision. Id. at 900. The Authority declined to follow the Fourth Circuit's decision in NRC. FLRA Decision, 66 F.L.R.A. at 894. Instead, the Authority's decision rested principally on its interpretation of the Supreme Court's decision in NASA v. FLRA (NASA), 527 U.S. 229, 119 S.Ct. 1979, 144 L.Ed.2d 258 (1999). FLRA Decision, 66 F.L.R.A. at 895-96.
NASA holds that, because an OIG investigator is a "representative of the agency" in certain circumstances, an employee may seek union representation during an OIG-conducted interview pursuant to the so-called "Weingarten rights" embodied in 5 U.S.C. § 7114(a)(2)(B). 527 U.S. at 246, 119 S.Ct. 1979. This section of the FSLMRS was patterned after the decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975) (upholding a National Labor Relations Board decision that an employer's denial of an employee's request to have a union representative present at an investigatory interview, which the employee reasonably believed might result in disciplinary action, was an unfair labor practice under the National Labor Relations Act).
The statutory Weingarten rights provide:
The OIG is an independent entity. Although it is situated within an agency, it is excluded from the collective bargaining requirements of the FSLMRS. See U.S. Dep't of Justice v. FLRA, 39 F.3d 361, 365 & n. 5 (D.C.Cir.1994) (holding that section 7112(b)(7) "forbids the formation of bargaining units containing employees primarily engaged in investigating other agency employees to ensure they are acting honestly — an apt description of investigators working for the Inspector General"). Furthermore, proposals concerning Inspector General-investigation procedures are not "appropriately the subject of bargaining," because to allow such bargaining "would impinge on the statutory independence of the IG." NRC, 25 F.3d at 234. "[I]f we were to interpret the FSLMRS to require [an agency] to bargain over rights and procedures for investigatory interviews conducted by the Inspector General, we would indirectly be authorizing the parties to collective bargaining to compromise, limit, and interfere with the independent status of the Inspector General under the [IG Act]." Id. at 235.
Because we conclude that the proposal in Section 2 advanced by NTEU here would compromise the independence of the OIG and would be "inconsistent" with the IG Act within the meaning of 5 U.S.C. § 7117(a)(1), we grant DHS's petition for review.
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Normally, "the court's role in reviewing the FLRA's negotiability determinations is narrow." Am. Fed'n of Gov't Emps. v. FLRA, 866 F.2d 1443, 1446 (D.C.Cir.1989). Thus, in a typical case of this sort, we "will only reverse a negotiability finding of the Authority when the finding is not supported by substantial evidence, is inconsistent with the governing statute, represents an unexplained departure from prior agency determinations, or is otherwise arbitrary or capricious or not in accordance with the law." Id.
In this case, however, the FLRA's order was based on its conclusion that NTEU's bargaining proposal was not inconsistent with other federal law. In particular, the Authority determined that NTEU's proposed Section 2 was not inconsistent with the IG Act as it interpreted that Act. The FLRA, however, has no special competence in the interpretation of the IG Act, so we accord no deference to its interpretation of that statute. See, e.g., IRS v. FLRA, 902 F.2d 998, 1000 (D.C.Cir.1990); Office of Pers. Mgmt. v. FLRA, 864 F.2d 165, 171 (D.C.Cir.1988). Therefore, we review de novo the Authority's decision insofar as it purports to construe the requirements of the IG Act. NRC, 25 F.3d at 232-33.
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The FLRA's decision in this case rests on two critical contentions: First, the Authority argues that it "properly concluded that [DHS's] claim was negated by the Supreme Court's (post-NRC) holding in NASA ... that IG independence already is constrained by employees' Weingarten right under the Statute." Br. for Resp't at
Before we address the principal issues in this case, however, we must first dispose of the Authority's argument that a number of claims raised by DHS are not properly before the court.
The Authority asserts that DHS waived a number of claims that they have presented to the court by failing to properly raise them in the first instance with the FLRA as required by § 7123(c) of the FSLMRS. According to the FLRA, "[DHS's] submissions to the Authority did not identify, much less discuss, any section of the IG Act besides § 6(a)(2)." Br. for Resp't at 23. The FLRA thus contends that this court is barred from considering, inter alia, whether sections of the IG Act other than section 6(a)(2) are incompatible with the collective bargaining requirements of the FSLMRS; whether the 2008 amendments to the IG Act and the legislative history of those amendments reinforce and strengthen the OIG's independence; and whether 5 U.S.C. § 7112(b)(7) excludes the OIG from engaging in collective bargaining or being bound by the terms of collective bargaining between the union and the agency. We find no merit in FLRA's waiver argument.
DHS's position before this court that neither CBP nor any other agency within DHS has authority to bargain on behalf of the OIG is surely encompassed within the DHS's statement of the "issue" before the FLRA, which was "whether the [agency] and the [union] may negotiate the specific procedures to be followed by the DHS OIG when performing its auditing and investigating functions." DHS Statement of Position on NTEU Petition for Review of Negotiability Issues, reprinted in J.A. 39. In addition, DHS's argument below was that the OIG is not a representative of the agency for purposes of collective bargaining, id. at J.A. 41, and that the OIG more generally cannot be bound by terms negotiated by union and agency officials because such interference with the OIG's "independent status" would be "inconsistent with the IG Act," id. at J.A. 40; see also Br. for Pet'r at 33. The FLRA obviously understood DHS's position because it acknowledges that it "examined the Statute for indications that Congress intended to completely preclude collective bargaining over all IG-investigation procedures" and "found none." Br. for Resp't at 17.
In its brief to this court, DHS points out that, before the Authority, it "cited NRC `as a case directly on point' and relied on it extensively. The Authority therefore knew that the agency's argument was that bargaining over [Section 2] was incompatible with the IG Act as a whole, and it also knew that that argument depended on the numerous provisions of the IG Act discussed in NRC. Indeed, the fact that the Authority rejected NRC as persuasive authority means the Authority was fully aware of the NRC analysis." Reply Br. for Pet'r at 13 (citations and footnote omitted). We agree.
It is evident from the record in this case that, even though DHS did not itself cite every relevant provision in the IG Act in the proceedings below, the agency's principal argument was that the accumulated provisions of the IG Act were inconsistent with collective bargaining over OIG procedures. This point could not have been lost on the FLRA because it was the thrust of the NRC decision. Therefore, the Authority reasonably should have understood the
2. The Supreme Court's Decision in NASA v. FLRA
In NASA, the Supreme Court held that "§ 7114(a)(2)(B) is not limited to agency investigators representing an `entity' that collectively bargains with the employee's union." 527 U.S. at 237, 119 S.Ct. 1979. In other words, the Court made it clear that even though the OIG does not engage in collective bargaining under the FSLMRS, OIG investigators who work for an agency such as DHS can be "representatives of the agency" under § 7114(a)(2)(B). Because "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 ... the investigators employed in [the agency's] OIG are unquestionably `representatives' of [the agency] when acting within the scope of their employment." Id. at 240, 119 S.Ct. 1979.
The Court in NASA further explained that:
Id. at 244-45, 119 S.Ct. 1979. The Court's holding is no more surprising than would be a decision that OIG investigators are subject to proscriptions against employment discrimination based on race or sex. Id. at 240 n. 4, 119 S.Ct. 1979. The Weingarten right embodied in § 7114(a)(2)(B) is an overriding federal protection that takes precedence over the right to engage in collective bargaining under the FSLMRS and the OIG's authority to pursue investigations under the IG Act. Unions and federal employers cannot negotiate a collective bargaining agreement that diminishes the rights afforded by § 7114(a)(2)(B), and OIG investigators cannot deny federal employees their Weingarten rights during the course of OIG investigations.
In our view, the Supreme Court's decision in NASA does not justify the Authority's position in this case. The Authority has essentially conceded this. FLRA Decision, 66 F.L.R.A. at 895. Indeed, the Authority has acknowledged "that the Supreme Court did not resolve whether it would conflict with the IG Act to require bargaining over IG-investigation procedures." Id. The Court in NASA found it unnecessary to "consider whether the outer limits of the Authority's interpretation [of § 7114(a)(2)(B)] so obstruct the performance of an OIG's statutory responsibilities that the right must be more confined." 527 U.S. at 244, 119 S.Ct. 1979. It is noteworthy, however, that the Court cited the Fourth Circuit's decision in NRC to highlight the "OIG's concerns that the reach of § 7114(a)(2)(B) will become the subject of collective bargaining between agencies and unions." Id. at 244 n. 8, 119 S.Ct. 1979. If the FLRA's decision in this case were upheld, the concerns noted in NASA would be realized.
DHS makes the telling point that the Supreme Court's decision in NASA does not in any way suggest that the OIG is the
Br. for Pet'r at 9. We agree.
The holding in NASA is limited to the right of a union representative to attend an employee examination as specified in § 7114(a)(2)(B), which is only if "(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation." Section 7114(a)(2)(B) says nothing about the matters covered by the NTEU's proposal in Section 2, such as "the extent to which a union representative may participate in the examination (by raising objections or asking for breaks in the examination to discuss questions with the employee), whether the union or the employee is entitled to notice of the examination, what type of notice is required, whether the employee is entitled to warnings, or what such warnings might say." Br. for Pet'r at 15. And the Court's decision in NASA certainly does not suggest that OIG investigations can be regulated in any of these ways pursuant to the terms of a collective bargaining agreement.
In sum, we reject the Authority's interpretation of the NASA decision. The Court's decision in that case simply cannot be stretched to support the Authority's decision here.
3. Proposals to Regulate OIG Investigations Authorized by the IG Act Are Not Proper Subjects of Collective Bargaining Under the FSLMRS
The OIG is not subject to collective bargaining under the FSLMRS. See NRC, 25 F.3d at 235; U.S. Dep't of Justice v. FLRA, 39 F.3d at 365 & n. 5. The Authority does not dispute this. Therefore, "[h]aving excluded employees of the Office of Inspector General from any collective bargaining, Congress surely could not have intended that other employees in an agency be given the right to negotiate the conditions of work for Inspector General employees." NRC, 25 F.3d at 235. OIG inspectors are obliged to respect an employee's Weingarten rights as required by § 7114(a)(2)(B). But public sector unions and agencies can neither add to nor subtract from the OIG's investigatory authority through collective bargaining.
Furthermore, the FSLMRS exempts from its negotiation requirements any provisions that are "inconsistent with any Federal law or any Government-wide rule or regulation." 5 U.S.C. § 7117(a)(1). It cannot be disputed that the intended reach of NTEU's proposed Section 2 is much broader than the Weingarten rights embodied in § 7114(a)(2)(B). Therefore, Section 2 impermissibly interferes with the OIG in two ways: first, it requires more of OIG inspectors than Weingarten itself requires; second, it purports to impose contractual obligations on the OIG even though the OIG is not a party to the collective bargaining agreement and is not subject to the bargaining requirements of the FSLMRS.
Section 2 would require employee investigations to be conducted as the Union would prefer, not as an OIG investigator might think best depending upon the circumstances of the case. This is inconsistent
The important point, however, "is not that particular negotiated procedures interfere with specific aspects of OIG authority under the Inspector General Act but, rather, that negotiation in and of itself is antithetical to OIG independence established by the Inspector General Act." Br. for Pet'r at 30. Under the IG Act, Inspectors General are "appointed by the President" with "the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations." 5 U.S.C. app. 3 § 3(a). The IG Act also forbids the OIG from having any "program operating responsibilities." Id. § 9(a). The OIG has power to select and employ whatever personnel are necessary to conduct its business, to employ experts and consultants, and to enter into contracts for audits, studies, and other necessary services. Id. §§ 3(d), 6(a). And other than the "general supervision" of the agency head and one deputy, an OIG "shall not report to, or be subject to supervision by, any other officer of such [agency]." Id. § 3(a).
In NRC, the Fourth Circuit further explained the OIG's investigatory authority under the IG Act:
NRC, 25 F.3d at 234.
In light of the foregoing, we agree with the judgment of the Fourth Circuit in NRC. Because we cannot say it better, we adopt the reasoning of our sister circuit:
NRC, 25 F.3d at 234. We also agree with the Fourth Circuit that, in reaching this conclusion, "we do not limit the right of the [agency] and the Union to negotiate employee rights and procedures for any investigations that may be conducted by other employees of the [agency], who are not from the Office of the Inspector General." Id.
For the reasons discussed above, we hereby reverse the decision of the Authority and grant DHS's petition for review.