United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 16, 2014 Decided June 3, 2014

No. 12-1457

UNITED STATES DEPARTMENT OF HOMELAND SECURITY U.S.

CUSTOMS AND BORDER PROTECTION,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

NATIONAL TREASURY EMPLOYEES UNION,

INTERVENOR

Consolidated with 13-1073

On Petition for Review and 

Cross-Application for Enforcement of 

Final Decision of the Federal Labor Relations Authority

Howard S. Scher, Attorney, U.S. Department of Justice, 

argued the cause for petitioner. With him on the briefs were 

Stuart F. Delery, Deputy Attorney General, and Leonard 

Schaitman, Attorney.

Zachary R. Henige, Attorney, Federal Labor Relations 

Authority, argued the cause for respondent. On the brief were 
2

Rosa M. Koppel, Solicitor, and Douglas E. Callahan, 

Attorney.

Julie M. Wilson argued the cause for intervenor. With her 

on the brief were Gregory O’Duden, Larry J. Adkins, and 

Jacob Heyman-Kantor.

Before: HENDERSON, Circuit Judge, and EDWARDS and 

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge 

EDWARDS.

Circuit Judge HENDERSON concurs in the judgment.

EDWARDS, Senior Circuit Judge: This case presents a 

petition for review filed by the United States Department of 

Homeland Security (“DHS”) challenging a decision by the 

Federal Labor Relations Authority (“FLRA” or “Authority”). 

The dispute arose with the FLRA on a negotiability appeal 

filed by the National Treasury Employees Union (“NTEU” or 

“Union”) under 5 U.S.C. § 7105(a)(2)(E) of the Federal 

Service Labor-Management Relations Statute (“FSLMRS”).

NTEU and Customs and Border Protection (“CBP”) – an 

agency within DHS – had negotiated a collective bargaining 

agreement that included the following provision: 

An employee [in CBP] being interviewed by a 

representative of the Agency (e.g., Department of 

Homeland Security Office of Inspector General) in 

connection with either a criminal or non-criminal matter 

has certain entitlements/rights regardless of who is 

conducting the interview.
3

Article 22, Section 2 (“Section 2”). See NTEU Petition for 

Review of Negotiability Issues, May 18, 2010, at 3-4, ¶ 9, 

reprinted in Joint Appendix (“J.A.”) 10-11. NTEU explained 

that the proposed Section 2 was intended to have the 

following effects:

The impact of the proposal is to obligate all employer 

representatives to abide by Article 22. Among other 

things, Article 22 requires that union officials receive 

advance notice of employee interviews; that interviews 

be conducted at the worksite; that employer 

representatives act professionally; that the employer 

representatives provide employees with specific 

negotiated forms with their rights outlined prior to 

conducting the interview; and that employer 

representatives advise employees of their right to union 

representation if the employee may be subject to 

discipline or adverse action before the interview is 

conducted. The impact, therefore, of the provision at 

issue is to obligate all employer representatives to adhere 

to these negotiated provisions when conducting 

investigatory interviews (criminal and noncriminal) of 

CBP bargaining unit employees. It specifically identifies 

employees from DHS’s OIG as employer representatives 

when they conduct these investigations of CBP 

employees, but the provision would apply to any other 

individuals acting in that capacity, for that purpose.

NTEU Petition for Review of Negotiability Issues at 4-5, 

¶ 12, reprinted in J.A. 11-12.

DHS objected to the collective bargaining agreement 

pursuant to § 7114(c) of the FSLMRS on the ground that 

procedures followed by DHS’s Office of Inspector General 

(“OIG”) in conducting its investigations are nonnegotiable. 
4

After the Union and CBP severed Section 2 from their 

collective bargaining agreement, DHS approved the

agreement without the provision, and the Union then filed a 

negotiability appeal with the Authority.

Before the FLRA, DHS pointed out that the OIG is an 

independent entity located within the agency but excluded 

from collective bargaining. DHS also pointed out that the OIG 

did not participate in the negotiations that culminated in the 

adoption of the disputed contract provision. DHS’s principal 

argument, however, both before the Authority and in this 

court, rests on the Inspector General Act of 1978 (“IG Act”), 

5 U.S.C. App. 3 §§ 1-13:

An agency’s duty to bargain in good faith under the 

FSLMRS applies only “to the extent” that duty is “not 

inconsistent with any Federal law.” 5 U.S.C. 7117(a)(1). 

Collective bargaining for restrictions on the techniques 

and procedures employed by an OIG in conducting its 

investigations is inconsistent with federal law, namely, 

the Inspector General Act. The latter describes the OIG 

as an independent entity free from agency interference –

including restrictions arrived at through collective 

bargaining – in the investigation of agency activities. 

Br. for Pet’r at 16. In advancing this position, DHS relied 

heavily on the Fourth Circuit’s decision in U.S. Nuclear 

Regulatory Comm’n v. FLRA (“NRC”), 25 F.3d 229, 235-36

(4th Cir. 1994) (holding that the OIG is not subject to 

collective bargaining under the FSLMRS, and it may not be 

bound by the terms of an agreement negotiated by a union on 

behalf of other employees in an agency).

The Authority rejected DHS’s position and ruled that the 

disputed contract provision was negotiable. National Treasury 
5

Employees Union, 66 F.L.R.A. 892, 892 (2012) (“FLRA 

Decision”). The FLRA held that the terms of Section 2 are not 

contrary to law, and therefore ordered DHS to rescind its 

disapproval of the provision. Id. at 900. The Authority 

declined to follow the Fourth Circuit’s decision in NRC. 

FLRA Decision, 66 F.L.R.A. at 894. Instead, the Authority’s 

decision rested principally on its interpretation of the Supreme 

Court’s decision in NASA v. FLRA (NASA), 527 U.S. 229 

(1999). FLRA Decision, 66 F.L.R.A. at 895-96.

NASA holds that, because an OIG investigator is a 

“representative of the agency” in certain circumstances, an 

employee may seek union representation during an OIGconducted interview pursuant to the so-called “Weingarten

rights” embodied in 5 U.S.C. § 7114(a)(2)(B). 527 U.S. at 

246. This section of the FSLMRS was patterned after the 

decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) 

(upholding a National Labor Relations Board decision that an 

employer’s denial of an employee’s request to have a union 

representative present at an investigatory interview, which the 

employee reasonably believed might result in disciplinary 

action, was an unfair labor practice under the National Labor 

Relations Act).

The statutory Weingarten rights provide:

(2) An exclusive representative of an appropriate unit in 

an agency 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.
6

5 U.S.C. § 7114(a)(2)(B). The Authority acknowledged “that 

the statutory provision involved in NASA was § 7114(a)(2)(B) 

of the Statute, which is not at issue here.” FLRA Decision, 66 

F.L.R.A. at 895. The Authority “also acknowledge[d] that the 

Supreme Court did not resolve whether it would conflict with 

the IG Act to require bargaining over IG-investigation 

procedures.” Id. Nonetheless, it held that “one of the primary 

purposes that Congress had in enacting the [FSLMRS] was to 

protect the right to bargain collectively,” and this includes the 

right to bargain over the implementation of Weingarten rights.

Id. at 896. We disagree.

The OIG is an independent entity. Although it is situated 

within an agency, it is excluded from the collective bargaining

requirements of the FSLMRS. See U.S. Dep’t of Justice v. 

FLRA, 39 F.3d 361, 365 & n.5 (D.C. Cir. 1994) (holding that 

section 7112(b)(7) “forbids the formation of bargaining units 

containing employees primarily engaged in investigating 

other agency employees to ensure they are acting honestly—

an apt description of investigators working for the Inspector 

General”). Furthermore, proposals concerning Inspector 

General-investigation procedures are not “appropriately the 

subject of bargaining,” because to allow such bargaining 

“would impinge on the statutory independence of the IG.” 

NRC, 25 F.3d at 234. “[I]f we were to interpret the FSLMRS

to require [an agency] to bargain over rights and procedures 

for investigatory interviews conducted by the Inspector 

General, we would indirectly be authorizing the parties to 

collective bargaining to compromise, limit, and interfere with 

the independent status of the Inspector General under the [IG 

Act].” Id. at 235.

Because we conclude that the proposal in Section 2 

advanced by NTEU here would compromise the 
7

independence of the OIG and would be “inconsistent” with 

the IG Act within the meaning of 5 U.S.C. § 7117(a)(1), we 

grant DHS’s petition for review. 

* * * *

Normally, “the court’s role in reviewing the FLRA’s 

negotiability determinations is narrow.” Am. Fed’n of Gov’t 

Emps. v. FLRA, 866 F.2d 1443, 1446 (D.C. Cir. 1989). Thus, 

in a typical case of this sort, we “will only reverse a 

negotiability finding of the Authority when the finding is not 

supported by substantial evidence, is inconsistent with the 

governing statute, represents an unexplained departure from 

prior agency determinations, or is otherwise arbitrary or 

capricious or not in accordance with the law.” Id.

In this case, however, the FLRA’s order was based on its 

conclusion that NTEU’s bargaining proposal was not 

inconsistent with other federal law. In particular, the 

Authority determined that NTEU’s proposed Section 2 was

not inconsistent with the IG Act as it interpreted that Act. The

FLRA, however, has no special competence in the 

interpretation of the IG Act, so we accord no deference to its 

interpretation of that statute. See, e.g., IRS v. FLRA, 902 F.2d 

998, 1000 (D.C. Cir. 1990); Office of Pers. Mgmt. v. FLRA, 

864 F.2d 165, 171 (D.C. Cir. 1988). Therefore, we review de 

novo the Authority’s decision insofar as it purports to 

construe the requirements of the IG Act. NRC, 25 F.3d at 232-

33.

* * * *

The FLRA’s decision in this case rests on two critical 

contentions: First, the Authority argues that it “properly 

concluded that [DHS’s] claim was negated by the Supreme 
8

Court’s (post-NRC) holding in NASA . . . that IG 

independence already is constrained by employees’ 

Weingarten right under the Statute.” Br. for Resp’t at 10. 

Second, the Authority argues that NTEU’s proposed Section 2 

is not inconsistent with the IG Act in purporting to regulate 

OIG investigation procedures. Id. at 10-11. We disagree with 

both points for the reasons explained below. 

Before we address the principal issues in this case, 

however, we must first dispose of the Authority’s argument 

that a number of claims raised by DHS are not properly 

before the court. 

1. Waiver

The Authority asserts that DHS waived a number of

claims that they have presented to the court by failing to

properly raise them in the first instance with the FLRA as 

required by § 7123(c) of the FSLMRS. According to the 

FLRA, “[DHS’s] submissions to the Authority did not 

identify, much less discuss, any section of the IG Act besides 

§ 6(a)(2).” Br. for Resp’t at 23. The FLRA thus contends that 

this court is barred from considering, inter alia, whether 

sections of the IG Act other than section 6(a)(2) are 

incompatible with the collective bargaining requirements of 

the FSLMRS; whether the 2008 amendments to the IG Act 

and the legislative history of those amendments reinforce and 

strengthen the OIG’s independence; and whether 5 U.S.C. 

§ 7112(b)(7) excludes the OIG from engaging in collective 

bargaining or being bound by the terms of collective 

bargaining between the union and the agency. We find no 

merit in FLRA’s waiver argument.

DHS’s position before this court that neither CBP nor any 

other agency within DHS has authority to bargain on behalf of 
9

the OIG is surely encompassed within the DHS’s statement of 

the “issue” before the FLRA, which was “whether the 

[agency] and the [union] may negotiate the specific 

procedures to be followed by the DHS OIG when performing 

its auditing and investigating functions.” DHS Statement of 

Position on NTEU Petition for Review of Negotiability 

Issues, reprinted in J.A. 39. In addition, DHS’s argument

below was that the OIG is not a representative of the agency 

for purposes of collective bargaining, id. at J.A. 41, and that 

the OIG more generally cannot be bound by terms negotiated 

by union and agency officials because such interference with 

the OIG’s “independent status” would be “inconsistent with 

the IG Act,” id. at J.A. 40; see also Br. for Pet’r at 33. The 

FLRA obviously understood DHS’s position because it 

acknowledges that it “examined the Statute for indications 

that Congress intended to completely preclude collective 

bargaining over all IG-investigation procedures” and “found 

none.” Br. for Resp’t at 17. 

In its brief to this court, DHS points out that, before the 

Authority, it “cited NRC ‘as a case directly on point’ and 

relied on it extensively. The Authority therefore knew that the 

agency’s argument was that bargaining over [Section 2] was 

incompatible with the IG Act as a whole, and it also knew 

that that argument depended on the numerous provisions of 

the IG Act discussed in NRC. Indeed, the fact that the 

Authority rejected NRC as persuasive authority means the 

Authority was fully aware of the NRC analysis.” Reply Br. for 

Pet’r at 13 (citations and footnote omitted). We agree.

It is evident from the record in this case that, even though 

DHS did not itself cite every relevant provision in the IG Act 

in the proceedings below, the agency’s principal argument 

was that the accumulated provisions of the IG Act were 

inconsistent with collective bargaining over OIG procedures. 
10

This point could not have been lost on the FLRA because it

was the thrust of the NRC decision. Therefore, the Authority 

reasonably should have understood the full extent of DHS’s 

argument. See NetworkIP, LLC v. FCC, 548 F.3d 116, 122 

(D.C. Cir. 2008) (explaining that an issue “need not be raised 

explicitly; it is sufficient if the issue was ‘necessarily 

implicated’ in agency proceedings”). We therefore hold that 

DHS did not waive any of the claims that it has presented to 

this court.

2. The Supreme Court’s Decision in NASA v. FLRA

In NASA, the Supreme Court held that “§ 7114(a)(2)(B) 

is not limited to agency investigators representing an ‘entity’

that collectively bargains with the employee’s union.” 527 

U.S. at 237. In other words, the Court made it clear that even 

though the OIG does not engage in collective bargaining

under the FSLMRS, OIG investigators who work for an 

agency such as DHS can be “representatives of the agency” 

under § 7114(a)(2)(B). Because “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 . . . the investigators employed in [the agency’s]

OIG are unquestionably ‘representatives’ of [the agency]

when acting within the scope of their employment.” Id. at 

240.

The Court in NASA further explained that:

[T]he right Congress created in § 7114(a)(2)(B) 

vindicates obvious countervailing federal policies. It 

provides a procedural safeguard for employees who are 

under investigation by their agency, and the mere 

existence of the right can only strengthen the morale of 

the federal workforce. The interest in fair treatment for 
11

employees under investigation is equally strong whether 

they are being questioned by employees in [the agency’s]

OIG or by other representatives of the agency.

Id. at 244-45. The Court’s holding is no more surprising than 

would be a decision that OIG investigators are subject to 

proscriptions against employment discrimination based on 

race or sex. Id. at 240 n.4. The Weingarten right embodied in 

§ 7114(a)(2)(B) is an overriding federal protection that takes 

precedence over the right to engage in collective bargaining 

under the FSLMRS and the OIG’s authority to pursue 

investigations under the IG Act. Unions and federal 

employers cannot negotiate a collective bargaining agreement 

that diminishes the rights afforded by § 7114(a)(2)(B), and 

OIG investigators cannot deny federal employees their 

Weingarten rights during the course of OIG investigations.

In our view, the Supreme Court’s decision in NASA does 

not justify the Authority’s position in this case. The Authority

has essentially conceded this. FLRA Decision, 66 F.L.R.A. at 

895. Indeed, the Authority has acknowledged “that the 

Supreme Court did not resolve whether it would conflict with 

the IG Act to require bargaining over IG-investigation 

procedures.” Id. The Court in NASA found it unnecessary to 

“consider whether the outer limits of the Authority’s 

interpretation [of § 7114(a)(2)(B)] so obstruct the 

performance of an OIG’s statutory responsibilities that the 

right must be more confined.” 527 U.S. at 244. It is 

noteworthy, however, that the Court cited the Fourth Circuit’s 

decision in NRC to highlight the “OIG’s concerns that the 

reach of § 7114(a)(2)(B) will become the subject of collective 

bargaining between agencies and unions.” Id. at 244 n.8. If 

the FLRA’s decision in this case were upheld, the concerns 

noted in NASA would be realized.
12

DHS makes the telling point that the Supreme Court’s 

decision in NASA does not in any way suggest that the OIG is 

the representative of an agency for collective bargaining 

purposes under the FSLMRS:

NASA did not hold that the OIG is a “representative of 

the agency” for all purposes and, indeed, specifically 

said its decision was limited to the Weingarten right itself 

and no more. NASA found a specific textual basis for 

holding that an OIG is “a representative of the agency” 

for purposes of Section 7114(a)(2)(B), but no textual 

source exists for extending representative status to 

collective bargaining or the results of such bargaining. 

Br. for Pet’r at 9. We agree.

The holding in NASA is limited to the right of a union 

representative to attend an employee examination as specified 

in § 7114(a)(2)(B), which is only if “(i) the employee 

reasonably believes that the examination may result in 

disciplinary action against the employee; and (ii) the 

employee requests representation.” Section 7114(a)(2)(B) 

says nothing about the matters covered by the NTEU’s 

proposal in Section 2, such as “the extent to which a union 

representative may participate in the examination (by raising 

objections or asking for breaks in the examination to discuss 

questions with the employee), whether the union or the 

employee is entitled to notice of the examination, what type 

of notice is required, whether the employee is entitled to 

warnings, or what such warnings might say.” Br. for Pet’r at 

15. And the Court’s decision in NASA certainly does not 

suggest that OIG investigations can be regulated in any of 

these ways pursuant to the terms of a collective bargaining 

agreement.
13

In sum, we reject the Authority’s interpretation of the 

NASA decision. The Court’s decision in that case simply

cannot be stretched to support the Authority’s decision here.

3. Proposals to Regulate OIG Investigations

Authorized by the IG Act Are Not Proper Subjects 

of Collective Bargaining Under the FSLMRS

The OIG is not subject to collective bargaining under the 

FSLMRS. See NRC, 25 F.3d at 235; U.S. Dep’t of Justice v. 

FLRA, 39 F.3d at 365 & n.5. The Authority does not dispute 

this. Therefore, “[h]aving excluded employees of the Office 

of Inspector General from any collective bargaining, Congress 

surely could not have intended that other employees in an 

agency be given the right to negotiate the conditions of work 

for Inspector General employees.” NRC, 25 F.3d at 235. OIG 

inspectors are obliged to respect an employee’s Weingarten

rights as required by § 7114(a)(2)(B). But public sector 

unions and agencies can neither add to nor subtract from the 

OIG’s investigatory authority through collective bargaining.

Furthermore, the FSLMRS exempts from its negotiation 

requirements any provisions that are “inconsistent with any 

Federal law or any Government-wide rule or regulation.” 5 

U.S.C. § 7117(a)(1). It cannot be disputed that the intended 

reach of NTEU’s proposed Section 2 is much broader than the 

Weingarten rights embodied in § 7114(a)(2)(B). Therefore, 

Section 2 impermissibly interferes with the OIG in two ways: 

first, it requires more of OIG inspectors than Weingarten itself 

requires; second, it purports to impose contractual obligations 

on the OIG even though the OIG is not a party to the 

collective bargaining agreement and is not subject to the 

bargaining requirements of the FSLMRS.
14

Section 2 would require employee investigations to be 

conducted as the Union would prefer, not as an OIG 

investigator might think best depending upon the 

circumstances of the case. This is inconsistent with the OIG’s 

authority under the IG Act to serve as an “independent and 

objective” unit, “to conduct and supervise audits and 

investigations relating to [certain] programs and 

operations . . . [and] provide leadership and coordination and 

recommend policies for activities designed (A) to promote 

economy, efficiency, and effectiveness in the administration 

of, and (B) to prevent and detect fraud and abuse in, such 

programs and operations.” 5 U.S.C. app. 3 § 2.

The important point, however, “is not that particular 

negotiated procedures interfere with specific aspects of OIG 

authority under the Inspector General Act but, rather, that 

negotiation in and of itself is antithetical to OIG independence 

established by the Inspector General Act.” Br. for Pet’r at 30.

Under the IG Act, Inspectors General are “appointed by the 

President” with “the advice and consent of the Senate, without 

regard to political affiliation and solely on the basis of 

integrity and demonstrated ability in accounting, auditing, 

financial analysis, law, management analysis, public 

administration, or investigations.” 5 U.S.C. app. 3 § 3(a). The 

IG Act also forbids the OIG from having any “program 

operating responsibilities.” Id. § 9(a). The OIG has power to 

select and employ whatever personnel are necessary to 

conduct its business, to employ experts and consultants, and 

to enter into contracts for audits, studies, and other necessary 

services. Id. §§ 3(d), 6(a). And other than the “general 

supervision” of the agency head and one deputy, an OIG 

“shall not report to, or be subject to supervision by, any other 

officer of such [agency].” Id. § 3(a).
15

In NRC, the Fourth Circuit further explained the OIG’s 

investigatory authority under the IG Act:

[S]hielded with independence from agency interference, 

the Inspector General in each agency is entrusted with 

the responsibility of auditing and investigating the 

agency, a function which may be exercised in the 

judgment of the Inspector General as each deems it 

“necessary or desirable.” 5 U.S.C. App. 3 § 6(a)(2). To 

facilitate that function, the Act gives to each Inspector 

General access to the agency’s documents and agency 

personnel. The Inspector General may issue subpoenas, 

administer oaths, and investigate complaints and 

information from any employee of the agency 

“concerning the possible existence of an activity 

constituting a violation of law, rules, or regulations, or 

mismanagement, gross waste of funds, abuse of authority 

or a substantial and specific danger to the public health 

and safety.” 5 U.S.C. App. 3 § 7(a).

NRC, 25 F.3d at 234.

In light of the foregoing, we agree with the judgment of 

the Fourth Circuit in NRC. Because we cannot say it better, 

we adopt the reasoning of our sister circuit:

[P]roposals which concern investigations conducted by 

the Inspector General, such as those at issue here, are not 

appropriately the subject of bargaining between an 

agency and a union. Such proposals run afoul of the 

Inspector General Act’s mandate that it is the Inspector 

General who has the authority to “conduct, supervise, 

and coordinate audits and investigations” relating to the 

[agency]. Congress intended that the Inspector General’s 

investigatory authority include the power to determine 
16

when and how to investigate. To allow the [agency] and 

the Union, which represents the [agency’s] employees, to 

bargain over restrictions that would apply in the course 

of the Inspector General’s investigatory interviews in the 

agency would impinge on the statutory independence of 

the Inspector General. . . . [Proposals] establishing 

employee rights and procedures for conducting 

investigatory interviews are therefore inconsistent with 

the Inspector General’s independence and the Inspector 

General Act. 

NRC, 25 F.3d at 234. We also agree with the Fourth Circuit 

that, in reaching this conclusion, “we do not limit the right of 

the [agency] and the Union to negotiate employee rights and 

procedures for any investigations that may be conducted by 

other employees of the [agency], who are not from the Office 

of the Inspector General.” Id.

CONCLUSION

For the reasons discussed above, we hereby reverse the 

decision of the Authority and grant DHS’s petition for review.

So ordered.