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American Federation of Government Employees v. Federal Labor Relations Authority

United States Court of Appeals, Tenth Circuit

September 7, 2016


         Appeal from the Federal Labor Relations Authority (FLRA No. DE-CA-08-0046)

          Judith Galat, Assistant General Counsel (David A. Borer, General Counsel, with him on the briefs), American Federation of Government Employees, AFL-CIO, Washington, D.C., for Petitioner.

          Zachary R. Henige, Deputy Solicitor (Fred B. Jacob, Solicitor, and Stephanie J. Fouse, Attorney, with him on the brief), Federal Labor Relations Authority, Washington, D.C., for Respondent.

          Gregory O'Duden, General Counsel, Julie M. Wilson, Associate General Counsel, Matthew D. Ross, Assistant Counsel, filed an Amicus Curiae brief for the National Treasury Employees Union, Washington, D.C., in support of Petitioner.

          Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.

          HARTZ, Circuit Judge.

         Petitioner American Federation of Government Employees Local 1592 (the Union) seeks review of a decision of the Federal Labor Relations Authority (FLRA) in favor of the Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah (Hill Air Force Base or Hill). The FLRA rejected the Union's claim that Hill committed an unfair labor practice when it denied the request of its then-employee Joseph Ptacek Jr. to have a union representative present during questioning by the Air Force Office of Special Investigations (AFOSI) about his misuse of a work computer. The claim rested on a provision of the Federal Service Labor-Management Relations Statute (the Labor-Management Statute), 5 U.S.C. § 7101 et seq., that provides federal employees who belong to a union with the right to the presence of a union representative when questioned about matters that could lead to discipline. See id. § 7114(a)(2)(B). The FLRA relied on President Carter's Executive Order 12, 171, which exempts AFOSI from coverage under the Labor-Management Statute. See 5 U.S.C. § 7103(b)(1) (granting President power to exclude certain kinds of agencies from coverage under the Labor-Management Statute). We have jurisdiction under 5 U.S.C. § 7123(a). Because § 7103(b)(1) and Executive Order 12, 171 extinguished any right to have a union representative present during a proper AFOSI interrogation, we deny the Union's petition.

         I. BACKGROUND

         A. The Investigation

         The present dispute began in August 2007 when Ptacek, an employee of Hill Air Force Base and a member of the Union, was accused of viewing pornography on his work computer. One of his supervisors placed him on administrative leave while Hill's information-technology department investigated the accusation. When that investigation indicated that Ptacek may have accessed child pornography, AFOSI, which investigates felony-level crimes for the Air Force, took over the investigation.

         An analysis of Ptacek's computer failed to find any stored child pornography, but it did reveal explicit search terms that may have referenced child pornography. At the request of AFOSI, one of Ptacek's supervisors, Kenneth Williams, directed him to come to Hill Air Force Base for an interview with AFOSI. Ptacek agreed and arrived at the base accompanied by his union representative, Richard Thomas. Williams then drove Ptacek to the AFOSI building, with Thomas following in his own vehicle.

         Ptacek asked the AFOSI special agent in charge of the investigation if Thomas could attend the interview as his union representative. The agent denied the request and interviewed him outside the presence of both Williams and Thomas. After the investigation concluded in January 2008, Hill proposed terminating Ptacek's employment. But further discussion persuaded it to allow him to keep his job, with the understanding that he would be terminated if he continued inappropriate use of the computer. About a month later, Ptacek again misused his computer. He resigned to avoid termination.

         B. The Statutory Framework

         The Labor-Management Statute provides a comprehensive framework for labor relations between the federal government and its employees. See 5 U.S.C. § 7101 et seq. (1978). It regulates employees' rights to join a public-sector union, see id. § 7102; the formation and recognition of unions, see id. § 7111; collective bargaining, see, e.g., id. §§ 7117, 7119; and the rights and duties of management and unions, see, e.g., id. §§ 7106, 7113, 7114. It also identifies actions by either an agency or a union that constitute unfair labor practices, such as interfering with the rights granted by the statute, see id. § 7116(a)(1), encouraging or discouraging union membership by discrimination in conditions of employment, see id. § 7116(a)(2), or otherwise violating the statute, see id. § 7116(a)(8). The FLRA has authority to determine whether an unfair labor practice occurred, see id. § 7118, subject to judicial review by a federal court of appeals, see id. § 7123(a). The Labor-Management Statute provides a variety of remedies for unfair labor practices, including orders to cease and desist, orders to renegotiate a collective-bargaining agreement, orders to reinstate an aggrieved employee with backpay, or "such other action as will carry out the purpose of [the Labor-Management Statute]." Id. § 7118(a)(7).

         Not all federal employees are covered by the Labor-Management Statute. The statute explicitly excludes certain agencies, such as the Government Accountability Office, the Federal Bureau of Investigation, the Central Intelligence Agency, and the Secret Service. See id. § 7103(a)(3). And "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security" is barred from belonging to a union. Id. § 7112(b)(6). In addition, Congress provided the President with authority to exclude other agencies from coverage under all or some of the provisions of the statute. The President may suspend portions of the Labor-Management Statute for agencies and activities outside the United States if the President deems it necessary for national security. See id. § 7103(b)(2). Or, relevant here, the President may exclude an agency from the entire statute if the agency "has as a primary function intelligence, counterintelligence, investigative, or national security work, " and the statute "cannot be applied to that agency . . . in a manner consistent with national security requirements and considerations." Id. § 7103(b)(1). President Carter exercised this latter authority in Executive Order No. 12, 171, 44 Fed. Reg. 66565 (Nov. 19, 1979), which stated that certain agencies satisfied the requirements of § 7103(b)(1). Id. ¶ 1-101. The Order listed AFOSI as an excluded agency. See id. ¶ 1-206(k).

         This appeal concerns whether as a result of this exclusion Ptacek had no right to a union representative when being interviewed by AFOSI despite § 7114(a)(2), which states:

[The union representing employees in a unit] 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 representation.

5 U.S.C. § 7114(a)(2).

         C. Administrative Proceedings

          The Union filed an unfair-labor-practice charge against Hill Air Force Base, asserting that Hill violated § 7114(a)(2)(B) by denying Ptacek's request for union representation during the interview by AFOSI, which allegedly was acting as "a representative of [Hill], " 5 U.S.C. § 7114(a)(2)(B). An administrative law judge (ALJ) concluded that because Executive Order 12, 171 excluded AFOSI from coverage under the statute, AFOSI could not be a "representative" of Hill under § 7114(a)(2)(B). He found no violation of the statute and recommended that the FLRA dismiss the complaint. The FLRA agreed. See U.S. Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 68 FLRA 460 (Apr. 16, 2015). The majority of the three-member panel ruled that the plain meaning of § 7103(b)(1) authorized the President to exclude AFOSI from the entirety of the statute. See id. at 462-63. They contrasted § 7103(b)(1)'s text with that of § 7103(b)(2), which authorizes the President to suspend individual provisions of the Labor-Management Statute, see id. at 462-63, and held that AFOSI was precluded from being a representative of Hill for purposes of § 7114(a)(2)(B), see id. at 464-65. We affirm, though we express the point somewhat differently. Rather than saying that AFOSI was not a "representative" of Hill, we simply hold that there was no violation of the statute because it does not apply to proper investigations by AFOSI.


         A. Standards of Review

         We review FLRA decisions to determine "if they are arbitrary, capricious, or an abuse of discretion or otherwise not in accordance with law." Am. Fed'n of Gov't Emps.,AFL CIO Local 1592 v. FLRA., 288 F.3d 1238, 1240 (10th Cir. 2002) (internal quotation marks omitted). In assessing whether it properly interpreted the Labor-Management Statute, we proceed under the Chevron framework, which governs our review of "an agency's construction of the statute which it administers." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). We ask first whether Congress has spoken to "the precise question at issue." Id. at 843 n.9. If so, we must apply the unambiguous meaning of the statute. See id. If, however, the statute is ambiguous on the issue, we will defer to an agency's reasonable interpretation. See id. at 843-44; Nat'l Fed'n of Fed. Emps., Local 1309 v. Dep't of Interior, 526 U.S. 86, 92 (1999) (When "the [s]tatute's language [is] sufficiently ambiguous or open on the point, " courts must defer "to reasonable interpretation or elaboration by the ...

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