Appeals court affirms right to union representation during IG questioning

The U.S. Court of Appeals for the District of Columbia Circuit has upheld a 1999 decision of the U.S. Supreme Court that allows federal employees to have union representation during investigations by the government's inspectors general. The final decision in the case, Department of Justice v. FLRA and AFGE Local 709 (Docket No. 00-1433), affirmed that IG offices are representatives of agency management and that Weingarten rights, which entitle federal employees to union advice during any proceedings that could lead to disciplinary action, are applicable in IG investigations. The decision stemmed from a 1993 case at NASA's Marshall Space Flight Center in Huntsville, Ala. NASA's IG office questioned a flight center employee who co-workers claimed was plotting to attack them. The IG obtained papers describing carbon monoxide poisoning plots and other potential acts of violence against the co-workers.

While the investigator for the inspector generals office allowed the employee to have a union representative present during questioning, the investigator said the representative could not offer advice. Later, the employee was fired. The American Federation of Government Employees filed an unfair labor practice charge against NASA, contending that the agency had violated the employee's Weingarten rights. The government argued that inspectors general are independent of agency management, so Weingarten rights do not apply during their investigations. While one circuit court agreed with the government in a similar case, the 11th Circuit court, the Federal Labor Relations Authority and, in 1999, the Supreme Court agreed with AFGE. Following the Supreme Court's decision, the government filed an appeal alleging that the ruling did not apply to criminal investigations by inspectors general. However, in its decision, the Court of Appeals for the District of Columbia Circuit asserted that "many, if not most investigations will have both administrative and criminal potential." AFGE National President Bobby Harnage applauded the decision. "Federal agencies will no doubt continue to carve limitations on federal employees' Weingarten rights. AFGE will remain vigilant in defending this critical right of union representation," he said.