[Federal Register Volume 79, Number 158 (Friday, August 15, 2014)]
[Notices]
[Pages 48156-48157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-19387]


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FEDERAL LABOR RELATIONS AUTHORITY

[FLRA Docket No. DE-CA-08-0046]


Notice of Opportunity To Submit Amici Curiae Briefs in an Unfair-
Labor-Practice Proceeding Pending Before the Federal Labor Relations 
Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice.

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SUMMARY: The Federal Labor Relations Authority provides an opportunity 
for all interested persons to submit briefs as amici curiae on a 
significant issue arising in a case pending before the Authority. The 
Authority is considering this case pursuant to its responsibilities 
under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 
7101-7135 (the Statute), and its unfair-labor-practice (ULP) 
regulations, set forth at 5 CFR part 2423. The issue concerns whether a 
presidential order, which was issued under Sec.  7103(b)(1) of the 
Statute to exclude an agency subdivision ``from coverage under'' the 
Statute, precludes the Authority from finding that an employee of the 
excluded subdivision acted as a ``representative of the agency'' under 
Sec.  7114(a)(2)(A) and (B) of the Statute. Because the Authority has 
not directly addressed this issue before, there is an absence of 
controlling precedent. And, as this matter is likely to be of concern 
to agencies, labor organizations, and other interested persons, the 
Authority finds it appropriate to provide for the filing of amici 
briefs addressing this matter.

DATES: Briefs must be received on or before September 15, 2014.

ADDRESSES: Mail or deliver briefs to Gina K. Grippando, Chief, Case 
Intake and Publication, Federal Labor Relations Authority, Docket Room, 
Suite 200, 1400 K Street NW., Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Gina K. Grippando, Chief, Case Intake 
and Publication, Federal Labor Relations Authority, (202) 218-7740.

SUPPLEMENTARY INFORMATION: In Case No. DE-CA-08-0046, the Federal Labor 
Relations Authority's (FLRA's) Chief Administrative Law Judge (ALJ) 
issued a recommended order to dismiss a ULP complaint against the U.S. 
Department of the Air Force, Ogden Air Logistics Center, Hill Air Force 
Base, Utah (the Respondent) for alleged violations of Sec. Sec.  
7114(a)(2)(B), 7116(a)(1), and 7116(a)(8) of the Statute. The FLRA's 
Office of the General Counsel (GC) filed exceptions to the recommended 
dismissal order, and those exceptions are currently pending before the 
Authority. A summary of the case follows.

1. Background and ALJ's Decision

    The Regional Director of the FLRA's Denver Regional Office, which 
is part of the Office of the GC, issued a ULP complaint alleging that 
the Respondent violated Sec. Sec.  7114(a)(2)(B), 7116(a)(1), and 
7116(a)(8) of the Statute when the Air Force Office of Special 
Investigations (AFOSI)--which is a subdivision of the same parent 
agency as the Respondent--denied union representation to one of the 
Respondent's bargaining-unit employees (the employee) during an AFOSI-
conducted investigative interview. According to the complaint, the 
Respondent and AFOSI worked closely together in the investigation and 
interview of the employee, and, consequently, when AFOSI denied the 
employee the union representation that he requested due to an allegedly 
reasonable belief that the interview might result in discipline, AFOSI 
acted as a ``representative of the [A]gency'' (i.e., the Respondent), 
within the meaning of Sec.  7114(a)(2)(B) of the Statute. As a result, 
the complaint alleged, the Respondent (but not AFOSI) committed ULPs.
    As relevant here, the Respondent denied the complaint's allegations 
on the basis that, in Executive Order 12,171, President Carter 
exercised his authority under Sec.  7103(b)(1) of the Statute to 
``exclude [AFOSI] from coverage under'' the Statute based on 
``national[-]security requirements and considerations,'' so AFOSI's 
actions could not be the basis for a ULP finding against the 
Respondent. Exec. Order No. 12,171 (Nov. 19, 1979), 44 FR 66,565 (Nov. 
20, 1979), reprinted as amended in 5 U.S.C. 7103 note at 647-48 (2012).
    The ALJ agreed with the Respondent and found that, because 
Executive Order 12,171 excludes AFOSI ``from coverage under'' the 
Statute, the order necessarily excludes AFOSI from coverage under every 
provision of the Statute, including the ``representative[-]of[-]the[-
]agency'' provision in Sec.  7114(a)(2)(B). And as the ALJ found that 
the order precludes finding that AFOSI acted as a ``representative'' of 
the Respondent under Sec.  7114(a)(2)(B), the ALJ concluded that the 
Respondent could not be found to have committed a ULP based on AFOSI's 
actions. Thus, the ALJ recommended that the Authority dismiss the 
complaint.

2. GC's Exceptions

    The GC filed, with the Authority, exceptions to the ALJ's 
recommended order. In the exceptions, the GC contends, as relevant 
here, that the ALJ erred in finding that AFOSI cannot be a 
``representative of the [A]gency'' (i.e., the Respondent), within the 
meaning of Sec.  7114(a)(2)(B). The GC argues that, just as the 
incumbent of a position specified in Sec.  7103(a)(2)(B) of the Statute 
may be excluded from the Statute's definition of ``employee'' and yet 
still act as a ``representative of [an] agency'' for purposes of Sec.  
7114(a)(2), so may an agency or subdivision that is excluded from 
coverage of the Statute under Sec.  7103(b)(1) be found to act as a 
``representative of [an] agency.'' The GC argues that a contrary 
conclusion would ``erode the right'' to representation under Sec.  
7114(a)(2)(B) ``by encouraging the use of investigative conduits 
outside the employee's bargaining unit, and would otherwise frustrate 
Congress' apparent policy of protecting certain federal employees when 
they are

[[Page 48157]]

examined and justifiably fear disciplinary action''--a concern that the 
U.S. Supreme Court found in NASA v. FLRA, 527 U.S. 229 (1999), was a 
permissible basis for the Authority to hold that an inspector general 
acted as a ``representative'' of its parent agency, for purposes of 
Sec.  7114(a)(2)(B). Id. at 234. For those reasons, the GC contends 
that the Authority should not adopt the ALJ's recommended finding that 
the Sec.  7103(b)(1)-exclusion order precludes finding that AFOSI was a 
``representative of'' the Respondent under Sec.  7114(a)(2).

3. Questions on Which Briefs Are Solicited

    Because the Authority has not directly addressed the issue raised 
in the GC's exceptions before, the exceptions involve a question of 
first impression. Consequently, in connection with the case described 
above, the Authority is providing an opportunity for the parties and 
other interested persons to file briefs addressing the following 
questions:

    When the President of the United States issues an order under 
Sec.  7103(b)(1) of the Statute and excludes an agency or 
subdivision thereof ``from coverage under'' the Statute, does such 
an order preclude the agency or subdivision from being a 
``representative of the agency'' under Sec.  7114(a)(2)(A) and (B)?
    Should the Authority interpret Executive Order 12,171 as having 
that effect with regard to the Air Force Office of Special 
Investigations?
    In answering these questions, the parties and other interested 
persons should address: (1) The wording of the Statute and Executive 
Order 12,171; (2) principles of statutory construction; (3) 
legislative history regarding Sec.  7103(b)(1), Sec.  7114(a)(2)(A) 
and (B), and any other relevant provisions of the Statute; (4) any 
information regarding the history and purposes of Executive Order 
12,171; (5) any applicable precedent, including the relevance, if 
any, of exclusions that occurred under Section 3(b)(3) of Executive 
Order 11,491; and (6) policy considerations.

4. Required Format for Briefs

    All briefs shall be captioned ``U.S. Department of the Air Force, 
Ogden Air Logistics Center, Hill Air Force Base, Utah, Case No. DE-CA-
08-0046.'' Briefs shall contain separate, numbered headings for each 
issue covered. Interested persons must submit an original and four (4) 
copies of each amicus brief, with any enclosures, on 8\1/2\ x 11 inch 
paper. Briefs must include a signed and dated statement of service that 
complies with the Authority's Regulations showing service of one copy 
of the brief on all counsel of record or other designated 
representatives, 5 CFR 2429.27(a) and (c), as well as the Federal Labor 
Relations Authority Acting Regional Director involved in this case. 
Accordingly, briefs must be served on: Tiffany Malin, Minahan & Muther, 
P.C., Attorneys at Law, 5132 W. 26th Ave., Denver, CO 80212; Phillip G. 
Tidmore, Agency Representative, AFLOA/JACL/LLFSC, Labor Law Relations 
Branch, 1500 West Perimeter Road, Suite 1370, Joint Base Andrews, MD 
20762; and Tim Sullivan, Acting Regional Director, Federal Labor 
Relations Authority, Denver Regional Office, 1244 Speer Boulevard, 
Suite 446, Denver, CO 80204-3581. Interested persons may obtain copies 
of the ALJ's recommended dismissal order in this case by contacting the 
Authority's Office of Case Intake and Publication at the address and 
telephone number set forth above.

    Dated: August 11, 2014.
Gina K. Grippando,
Chief, Case Intake and Publication.
[FR Doc. 2014-19387 Filed 8-14-14; 8:45 am]
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