National Treasury Employees Union v. Federal Labor Relations Authority
754 F.3d 1031
D.C. Cir.2014Background
- NTEU petitions for review of FLRA decision upholding IRS exclusion of union reps from OPM suitability interviews.
- OPM conducts suitability interviews for IRS covered personnel; IRS had previously permitted union attendance on official time when IRS conducted its own investigations.
- OPM policy prohibits NTEU from attending these interviews; IRS retained link to the investigation process despite no longer conducting investigations.
- Arbitrator held that OPM interviews for covered personnel are not IRS functions and that IRS cannot control OPM interviews.
- FLRA partially granted exceptions: covered personnel no Weingarten rights; excepted personnel entitled to representation; remanded for remedy, then petition for review to DC Circuit
- Issue before court: whether OPM investigators are 'representatives of the agency' for purposes of 7114(a)(2)(B) and finality/jurisdiction of FLRA decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OPM investigators are 'representatives of the agency' for covered IRS personnel | NTEU: OPM investigators act as IRS representatives; perform IRS function and are under IRS control. | IRS/FLRA: OPM investigators are not IRS representatives for covered personnel; they perform an OPM function and are not controlled by IRS. | Yes, OPM investigators are not IRS representatives; court adopts FLRA's function-and-control approach and denies petition. |
| Whether the Authority correctly concluded finality and reviewability of its decision | NTEU argued the remand portions prevented final review of the entire decision. | Respondents argued final portions resolved; only remedy issue remained unsettled, thus reviewable. | Authority decision final and reviewable as to covered personnel; remand for excepted personnel resolved post-argument. |
| Whether the exclusion of union representation at suitability interviews violated the Weingarten rights for covered appointees | NTEU argues OPM interviews for covered appointees are IRS functions; thus representation is owed. | IRS/FLRA argues no IRS function and no control; no Weingarten violation for covered personnel. | Denied; covered appointees do not have Weingarten rights as to OPM interviews under the statute. |
Key Cases Cited
- Nat’l Treasury Emps. Union v. FLRA, 414 F.3d 50 (D.C. Cir. 2005) (Weingarten rights framework and deference to FLRA in labor relations)
- NASA v. FLRA, 527 U.S. 229 (U.S. 1999) (broad reading of 'representative' for agency OIG investigations)
- PBGC, 62 F.L.R.A. 223 (D.C. Cir. 2007) (outside contractor as agency representative under 7114 when performing agency function)
- SSA, 59 F.L.R.A. 875 (D.C. Cir. 2004) (contractor performing investigation under agency obligation and control)
- Department of Justice v. FLRA, 266 F.3d 1228 (D.C. Cir. 2001) (OIG authority and agency supervision considerations)
- Nat’l Treasury Emps. Union v. FLRA (finality/remand discussion), 66 F.L.R.A. 506 (D.C. Cir. 2012) (agency finality and reviewability standards at FLRA)