U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. (Respondents) and American Federation of Government Employees, Local 709 (Charging Party/Union) and U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C. (Respondents) and American Federation of Government, Employees, AFL-CIO (Charging Party/Union)

[ v56 p556 ]

56 FLRA No. 87

U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF JUSTICE
OFFICE OF THE INSPECTOR GENERAL
WASHINGTON, D.C
(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 709
(Charging Party/Union)

DE-CA-80076

and

U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF JUSTICE
OFFICE OF THE INSPECTOR GENERAL
WASHINGTON, D.C.
(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Charging Party/Union)

WA-CA-80156

DECISION AND ORDER

August 11, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      These unfair labor practice (ULP) cases are before the Authority on exceptions filed by Respondents U.S. Department of Justice, Washington, D.C. (DOJ) and U.S. Department of Justice, Office of the Inspector General (DOJ-OIG). The complaints allege that Respondents violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by failing to comply with section 7114(a)(2)(B) of the Statute. Specifically at issue is whether special agents of DOJ-OIG constitute "representatives" of the agency when conducting an examination of an employee under section 7114(a)(2)(B).

      In both cases, the General Counsel moved for summary judgment, which the Administrative Law Judges (Judge(s)) granted. The Judges held that Respondents failed to comply with section 7114(a)(2)(B) when the DOJ-OIG special agents denied the bargaining unit employees' requests for union representation during the agents' examinations of the employees.

      Upon consideration of the Judges' decisions and orders, and the entire record of proceedings before the Authority, we adopt the Judges' findings, conclusions, and recommended orders to the extent consistent with this decision. In agreement with the Judges' conclusions, we find that Respondents violated the Statute as charged. We also adopt, without precedential significance, the Judges' recommended remedies.

II.     Preliminary Matter

      Case Nos. DE-CA-80076 and WA-CA-80156 involve similar facts, the same issues, and allege that the same agency violated the Statute. Further, the agency's representative, who is the same in both cases, presents the same arguments before the Authority in both cases. Because the cases are so closely related, we have consolidated them for decision. See Association of Civilian Technicians, Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department, 55 FLRA 1226 (2000); National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Central Region, Virginia Beach, Virginia, 54 FLRA 218, 219 (1998); U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482 (1992).

III. Background and the Judges' Decisions

A.     Case No. DE-CA-80076

1.     The Facts

      The facts, which are not at issue, are fully set forth in the Judge's decision and are only briefly summarized here.

      The ULP charge arose from the interview of a bargaining unit employee of the Federal Correctional Institution Englewood, Littleton, Colorado (FCI Englewood) by two DOJ-OIG special agents. Prior to commencing the interview, the DOJ-OIG special agents informed the [ v56 p557 ] employee that they were conducting a criminal investigation regarding allegations that the employee brought illegal drugs into FCI Englewood. The employee immediately requested union representation, but the DOJ-OIG special agents denied his request and informed him that he was not entitled to union representation because they were conducting a criminal investigation. Approximately three weeks after the interview, the warden of FCI Englewood wrote a letter to the employee stating that "`there was nothing to substantiate the allegations, and that there would be no further investigation.'" Judge's Decision at 5.

      The General Counsel issued a ULP complaint contending that the DOJ-OIG special agents failed to comply with section 7114(a)(2)(B) by not granting the employee's request for union representation and, as a result, both DOJ and DOJ-OIG violated section 7116(a)(1) and (8). Respondents' answer to the complaint admitted to the above-stated facts. As a result, the General Counsel moved for summary judgment.

2.     The Judge's Decision

      The Judge granted the General Counsel's motion for summary judgment. Prior to reaching this conclusion, the Judge determined that the parties had agreed that the pleadings accurately reflected the facts in this case. The Judge also found that the "parties agree[d] that the interrogation of [the] bargaining unit employee . . . was an `examination' within the meaning of [section 71]14(a)(2)(B); that [the employee] reasonably believe[d] that the examination might result in disciplinary action against him, and that [the employee] requested representation by the exclusive representative." Judge's Decision at 5.

      The Judge dealt with Respondents' three principal arguments in opposition to summary judgment. First, contrary to Respondents' assertion, the Judge found there was no dispute with respect to the material facts necessary to prove the violation of section 7114(a)(2)(B); second, relying on Headquarters, National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., 50 FLRA 601 (1995) (HQ, NASA), and the Eleventh Circuit's enforcement of that decision in FLRA v. NASA,120 F.3d 1208 (11th Cir. 1997) (FLRA v. NASA), the Judge rejected Respondents' claim that the complaint should be dismissed based on Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) (DOJ); and third, again relying on HQ, NASA and FLRA v. NASA, the Judge determined that DOJ liability for the conduct of its OIG was appropriate.

      To remedy the ULP, the Judge ordered Respondents to "post[] at all facilities of the Federal Bureau of Prisons, nationwide, where bargaining unit employees of the Federal Bureau of Prisons are located" copies of the ordered notice. Judge's Decision at 20. The Judge directed that the Attorney General and Inspector General sign the notice. Also, the remedy mandated that DOJ require DOJ-OIG to comply with section 7114(a)(2)(B) when investigating bargaining unit employees. The Judge further ordered Respondents to cease and desist from requiring bargaining unit employees to take part in any examination conducted pursuant to section 7114(a)(2)(B) without allowing union representation.

B.     Case No. WA-CA-80156

1.     The Facts

      As with Case No. DE-CA-80076 above, the facts, which are not at issue, are fully set forth in the Judge's decision and are only briefly summarized here.

      The ULP charge arose from the interview of a bargaining unit employee of the Immigration and Naturalization Service (INS) by two DOJ-OIG special agents. Based upon a report from INS, DOJ-OIG initiated a criminal investigation into the theft of money from an INS safe. After the United States Attorney declined criminal prosecution of the matter, DOJ-OIG converted the investigation to an administrative investigation. A DOJ-OIG special agent instructed the bargaining unit employee to report to the DOJ-OIG Washington, D.C. field office for an interview. The employee requested union representation, but the two DOJ-OIG special agents conducting the interview denied his request on the grounds that the D.C. Circuit's decision in DOJ, was controlling. As a result, the employee was without union representation when interviewed and polygraphed by the DOJ-OIG special agents.

      The General Counsel's complaint alleged that DOJ and DOJ-OIG violated section 7116(a)(1) and (8) of the Statute by denying the bargaining unit employee requested union representation in violation of section 7114(a)(2)(B). Subsequent to the filing of the complaint and Respondents' answer, the General Counsel moved for summary judgment.

2.     The Judge's Decision

      As in case No. DE-CA-80076, the Judge granted the General Counsel's motion for summary judgment. [n1]  The Judge reached this decision only after finding that there was no genuine issue as to any material fact and that the elements of a section 7114(a)(2)(B) examination [ v56 p558 ] were met. Relying on HQ, NASA and FLRA v. NASA, the Judge rejected the argument that DOJ-OIG should not be found to have violated section 7114(a)(2)(B) based upon the D.C. Circuit's decision in DOJ. The Judge also concluded that in light of the Authority's decision in HQ, NASA, DOJ liability for the conduct of its OIG was appropriate.

      To remedy the ULP, the Judge ordered Respondents to "[p]ost at all locations of the Immigration and Naturalization Service copies of the . . . Notice," which he directed the Attorney General and Inspector General to sign. Judge's Decision at 9. Also, the remedy mandated that DOJ require DOJ-OIG to comply with section 7114(a)(2)(B) when investigating bargaining unit employees. The Judge further ordered Respondents to cease and desist from requiring bargaining unit employees to take part in any examination conducted pursuant to section 7114(a)(2)(B) without allowing union representation. Finally, the Judge required DOJ to ensure that no disciplinary action be taken against the bargaining unit employee questioned by DOJ-OIG.

IV.     Original Positions of the Parties

      Subsequent to the parties' filing of their exceptions and oppositions thereto, the Supreme Court issued its decision in National Aeronautics and Space Administration v. FLRA, 119 S. Ct. 1979 (1999) (NASA). The NASA decision resolves the arguments raised by Respondents' Exceptions in these two cases. [n2]  In their responses to the Authority's Orders to Show Cause (Section V. below), Respondents neither reassert their previous exceptions nor contend that those original arguments are not resolved by NASA. Accordingly, Respondents' original exceptions and the General Counsel's responses thereto will not be addressed further herein.

V.     Parties' Responses to the Order to Show Cause

      In light of the Supreme Court's NASA decision, on July 23, 1999, the Authority issued to the parties Orders to Show Cause why the issues in these cases have not been resolved by NASA such that the Authority should not adopt the Judges' decisions and orders. In the Orders, the Authority highlighted the Judges' reliance upon the Authority's HQ, NASA decision in reaching their decisions in the instant cases.

A.     Case No. DE-CA-80076

1.     Respondents DOJ and DOJ-OIG

      Respondents DOJ and DOJ-OIG argue that NASA does not resolve the issues in this case for two reasons: first, the facts in this case are different from NASA in that this case involves a criminal investigation, not an administrative investigation as in NASA; second, if the Authority does determine that NASA controls and the Judge's decision is adopted, then the remedy recommended by the Judge should not be adopted. With regard to the first argument, Respondents contend that because the DOJ-OIG special agents questioned the employee in connection with a criminal investigation wherein no administrative action was contemplated, the agents were acting independent of the agency and were not "representatives of the agency" under section 7114(a)(2)(B). In support of this argument, Respondents rely upon a footnote in NASA which provides that the application of section 7114(a)(2)(B) "to law enforcement officials with a broader charge" was not before and therefore not decided by the Court. NASA, 119 S. Ct. at 1988 n.8.

      As for their second argument, Respondents assert that if the Authority concludes that the Judge's decision should be adopted, then the proposed remedy should be rejected because it is inconsistent with the Authority's remedial standards and Authority cases involving similar facts. Respondents also argue that the Judge erred in requiring posting at all BOP facilities because BOP had been dismissed as a party in the case.

2.     The General Counsel

      The General Counsel maintains that the Court's NASA decision fully resolves the issues before the Authority in this case. Thus, the General Counsel requests that the Authority adopt the Judge's decision and order. [ v56 p559 ]

B.     Case No. WA-CA-80156

1.     Respondents DOJ and DOJ-OIG

      In the response to the Authority's Order in this case, Respondents challenge only the Judge's ruling regarding the remedy. Their remedy arguments are identical in all material respects to the remedy arguments in the response in Case No. DE-CA-80076. As a result, they are not set forth again herein.

2.     The General Counsel

      The General Counsel did not submit a timely response to the Authority's Order, although the General Counsel did file an Opposition to Respondents' Response to Show Cause Order. In it, the General Counsel requests that the Authority disregard the issues and arguments raised in the response because they were not raised in exceptions and were raised for the first time in responding to the show cause order. Thereafter, Respondents filed a Motion to Strike the General Counsel's Opposition, maintaining that the Authority should not consider the General Counsel's Opposition as it was untimely. [n3] 

VI.     Analysis and Conclusions

A.     Authority Consideration of Claims Raised for the First Time in the Responses to the Orders to Show Cause

      In their Responses, Respondents have raised two claims that were not raised before the Judges or in their exceptions to the Authority: 1) that the Judges' proposed remedies are inappropriate and should not be adopted by the Authority; and 2) that the facts of Case No. DE-CA-80076 distinguish it from NASA, specifically because of the criminal aspect of the DOJ-OIG investigation as opposed to the administrative nature of the investigation in NASA.

      We have carefully analyzed these newly-raised matters in light of both 5 C.F.R. §§ 2429.5 and 2423.40(d) [n4]  and the Show Cause Orders issued in these cases. Having actively solicited Respondents' views concerning the applicability of the NASA decision, we conclude that only the claim regarding the criminal aspect of the investigation is properly before the Authority.

1.     Respondents' Arguments Regarding the Propriety of the Judges' Remedies Are Not Properly Before the Authority

      Respondents' failure to raise the remedy issue before the Judges and in their exceptions to the Authority exceptions precludes the Authority from considering this issue. In both cases, the remedy proposed by the Judges was submitted in the General Counsel's motion for summary judgment and was not challenged by the Respondents in their oppositions to the motions for summary judgment. Well-established Authority precedent provides that "evidence or issues that could have been, but were not, raised before the Judge will not be considered by the Authority." Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, 55 FLRA 951, 956 (1999); see also U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut, 55 FLRA 201, 204 (1999); Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021, 1036 (1992). Similarly, Respondents failed to challenge the proposed remedy in their exceptions to the Authority. [n5] 

      Finally and significantly, there is no colorable claim that the NASA decision invites the remedy argument raised by Respondents. The NASA decision itself does not directly involve any remedial issues. [n6]  As such, neither the record in this case nor the NASA decision provides Respondents with any justification for belatedly raising the remedy issue at this time.

      Thus, in the absence of any exception properly before the Authority, we adopt, without precedential significance, the remedies ordered by the Judges. 5 C.F.R. § 2423.41(a). [ v56 p560 ]

2.     Respondents' Arguments Regarding the Criminal Aspect of the OIG Investigation in Case No. DE-CA-80076 Are Properly Before the Authority

      Respondents make a colorable claim that the Supreme Court's decision invites them to make an argument regarding the criminal/administrative distinction. In this regard, Respondents rely upon a quote from NASA regarding the Court's unwillingness to discuss application of section 7114(a)(2)(B) to "law enforcement officials with a broader charge" and suggest that this refers to OIG investigators conducting a criminal investigation. Response at 3. Moreover, Respondents also argue that at the time of the investigation in Case No. DE-CA-80076, the DOJ-OIG special agents justified their denial of the bargaining unit employee's request for representation because of the criminal nature of their investigation. Accordingly, unlike the remedy issue discussed in the preceding section, the NASA decision and the record in this case offer support for consideration of Respondents' argument at this time.

B.     NASA Controls Despite the Criminal Aspect of the DOJ-OIG Investigation in Case No. DE-CA-80076

      Respondents contend that NASA is not controlling in Case No. DE-CA-80076 because the criminal aspect of the DOJ-OIG investigation, as opposed to the administrative aspect of the investigation in NASA, requires a different outcome. This contention fails for a number of reasons, including: 1) Respondents misinterpret the Supreme Court's language distinguishing law enforcement officials from OIG investigators; and, 2) Respondents have continually acknowledged that the employee reasonably feared that discipline might result from the investigation.

1.     Respondents Misinterpret NASA

      Responding to NASA's concerns about "joint or independent FBI investigations of federal employees," the Supreme Court noted that "the application of [section 7114(a)(2)(B)] to law enforcement officials with a broader charge" was not before it. NASA, 119 S. Ct. at 1988 n.8. By seeking to apply this comment by the Court to OIG investigations involving criminal matters, Respondents misinterpret the Court's statement. The phrase "law enforcement officials with a broader charge" clearly refers to the FBI -- not OIG investigators.

      Although the NASA case did involve an administrative rather than a criminal investigation, this was not the focal point of the Supreme Court's decision. The Court, instead, focused on the OIG's undeniable role within the agency and noted that "unlike the jurisdiction of many law enforcement agencies, 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." NASA, 119 S. Ct. at 1986. That is, "as far as the [IG Act] is concerned, [OIG] investigators are employed by, act on behalf of, and operate for the benefit of" the agency. Id. at 1987. Because of this role of the OIG within the agency, the Court found that section 7114(a)(2)(B) applies to OIG investigations.

      Thus, Respondents' claim that the DOJ-OIG special agents were "conducting an independent investigation to determine whether any criminal activity had occurred with the intent of referring the matter to the appropriate authorities for criminal prosecution" (Response at 3) is undercut by the Supreme Court's reliance on the fact that OIG agents are stationed within and act on behalf of the agency. See NASA, 119 S. Ct. at 1986-7. Nothing in the NASA decision indicates that this interrelationship between the agency and OIG changes when a criminal matter is investigated. [n7] 

2.     The Employee Reasonably Feared Discipline

      Not only does the NASA decision fail to provide support for Respondents' position, but Respondents' own factual admission undermines their argument regarding how the criminal nature of this case makes it distinct. Respondents admitted that it was reasonable for the employee in this case to fear disciplinary action might result from the investigation. See Judge's Decision at 3. Having acknowledged the satisfaction of this element of section 7114(a)(2)(B)'s requirements, Respondents cannot claim that labeling the investigation "criminal" somehow takes it outside of the section 7114(a)(2)(B) context.

      Respondents' attempt to distinguish this case from NASA based upon the criminal nature of this investigation is unpersuasive. Having previously noted that the NASA decision resolves Respondents original exceptions, we conclude that the Respondents failure to comply with section 7114(a)(2)(B) violated sections 7116(a)(1) and (8) of the Statute. [ v56 p561 ]

VII.     Order in Case No. DE-CA-80076

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Justice, Washington, D.C. and the U.S. Department of Justice, Office of the Inspector General, Washington, D.C., shall:

      1.     Cease and desist from:

           (a)     Requiring any bargaining unit employee of the U.S. Department of Justice, Federal Bureau of Prisons, to take part in any investigatory examination conducted pursuant to section 7114(a)(2)(B) of the Statute without allowing the employee's exclusive representative to represent him, or her, when the employee requests such representation and when the employee reasonably believes that the examination may result in disciplinary action.

           (b)     In any like or related manner, interfering with, restraining, or coercing employees of the Federal Bureau of Prisons in the exercise of their rights assured by the Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     The U.S. Department of Justice shall order its Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of employees of the Federal Bureau of Prisons.

           (b)     The U.S. Department of Justice, Washington, D.C., shall order posted at all facilities of the Federal Bureau of Prisons, nationwide, where bargaining unit employees of the Federal Bureau of Prisons are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Attorney General and by the Inspector General and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

           (c)     Pursuant to section 2423.41(e) of our Regulations, notify the Regional Director of the Denver Region, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Office of the Inspector General, Washington, D.C. and the U.S. Department of Justice, Washington, D.C. have violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT require any bargaining unit employee of the Federal Bureau of Prisons, to take part in any examination in connection with an investigation without allowing the exclusive representative of such employee to be present if: the employee reasonably believes that the examination may result in disciplinary action against the employee; and the employee requests representation.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees of the Federal Bureau of Prisons in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

U.S. Department of Justice
Washington, D.C.

By:__________________________ Date:___________
     Attorney General

Office of the Inspector General
Washington, D.C.

By:__________________________ Date:___________
     Inspector General

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Region, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844- 5224. [ v56 p562 ]

VIII.     Order in Case No. WA-CA-80156

      Pursuant to section 2423.41(c) of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the U.S. Department of Justice, Washington, D.C., and the U.S. Department of Justice, Office of the Inspector General, Washington, D.C., shall:

      1.     Cease and desist from:

           (a)     Requiring any bargaining unit employee of the U.S. Department of Justice, Immigration and Naturalization Service to take part in any examination conducted by the U.S. Department of Justice, Office of the Inspector General, without allowing the American Federation of Government Employees, National Immigration and Naturalization Service Council, or any other exclusive collective bargaining representative of the employee, to participate in such examination, when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

           (b)     In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     U.S. Department of Justice shall order the U.S. Department of Justice, Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of U.S. Department of Justice, Immigration and Naturalization Service, bargaining unit employees.

           (b)     U.S. Department of Justice, Office of the Inspector General shall comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of bargaining unit employees.

           (c)     U.S. Department of Justice, Washington, D.C., shall ensure that no disciplinary action is taken against Immigration and Naturalization Service employee Tae Johnson as a result of any information obtained as a result of the examination by agents of the Office of the Inspector General on October 22, 1997, when Tae Johnson requested and was denied union representation by the American Federation of Government Employees, Local 2756, AFL-CIO.

           (d)     Post at all locations of the Immigration and Naturalization Service copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Attorney General, U.S. Department of Justice and by the Inspector General, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees of the Immigration and Naturalization Service are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (e)     Pursuant to section 2423.41(e) of our Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v56 p563 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

      The Federal Labor Relations Authority has found that the U.S. Department of Justice, Washington, D.C., and U.S. Department of Justice, Office of the Inspector General, Washington, D.C., violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit that:

WE WILL NOT require any bargaining unit employee of the U.S. Department of Justice, Immigration and Naturalization Service to take part in any examination conducted by the U.S. Department of Justice, Office of the Inspector General, without allowing the American Federation of Government Employees, National Immigration and Naturalization Service Council, or any other exclusive collective bargaining representative of the employee, to participate in such examination, when such representation has been requested by the employee and the employee reasonably believes that the examination may result in disciplinary action against him or her.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

THE ATTORNEY GENERAL WILL order the U.S. Department of Justice, Office of the Inspector General to comply with the requirements of section 7114(a)(2)(B) of the Statute when conducting investigatory examinations of U.S. Department of Justice, Immigration and Naturalization Service bargaining unit employees.

U.S. Department of Justice
Washington, DC

By:__________________________ Date:___________
     Attorney General

Office of the Inspector General
Washington, DC

By:___________________________ Date:__________
     Inspector General

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, whose address is: Tech World Plaza, 800 K Street, NW., Suite 910N, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.


File 1: Authority's Decision in 56 FLRA No. 87
File 2: ALJ's Decision in Case No. DE-CA-80076
File 3: ALJ's Decision in Case No. WA-CA-80156


Footnote # 1 for 56 FLRA No. 87 - Authority's Decision

   Respondents' position before the Judge was identical in all material respects to its position, detailed above, in Case No. DE- CA-80076.


Footnote # 2 for 56 FLRA No. 87 - Authority's Decision

   Respondents' Exceptions, which are identical in all material respects, assert that the Authority's HQ, NASA decision was wrongly decided, that DOJ-OIGs are not "representatives of the agency" within the meaning of section 7114(a)(2)(B), and that, in any event, DOJ cannot be liable for DOJ-OIG actions.


Footnote # 3 for 56 FLRA No. 87 - Authority's Decision

   Because the General Counsel did not seek permission to file its Opposition, the Authority will not consider the General Counsel's untimely response. See Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7, 9-10 (1995). As a result, Respondents' Motion to Strike is moot.


Footnote # 4 for 56 FLRA No. 87 - Authority's Decision

   Section 2429.5 provides in relevant part that the Authority will not consider "any issue, which was not presented in the proceedings before the . . . Administrative Law Judge." 5 C.F.R. § 2429.5 (1999). Section 2423.40(d) provides that "[a]ny excepti