AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1592, Petitioner,
FEDERAL LABOR RELATIONS AUTHORITY, Respondent. NATIONAL TREASURY EMPLOYEES UNION, Amicus Curiae.
from the Federal Labor Relations Authority (FLRA No.
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
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.,
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
HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
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.
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
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.
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
The Statutory Framework
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).
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).
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).
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.
Standards of Review
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 ...