                                                                                FILED
                                                                    United States Court of Appeals
                                            PUBLISH                         Tenth Circuit

                          UNITED STATES COURT OF APPEALS                 September 7, 2016

                                                                       Elisabeth A. Shumaker
                                    FOR THE TENTH CIRCUIT                  Clerk of Court
                                _________________________________

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
1592,

       Petitioner,

v.
                                                             No. 15-9542
FEDERAL LABOR RELATIONS
AUTHORITY,

       Respondent.

-----------------------------

NATIONAL TREASURY EMPLOYEES
UNION,

       Amicus Curiae.
                                _________________________________

                     Appeal from the Federal Labor Relations Authority
                               (FLRA No. DE-CA-08-0046)
                          _________________________________

Judith Galat, Assistant General Counsel (David A. Borer, General Counsel, with him on
the briefs), American Federation of Government Employees, AFL-CIO, Washington,
D.C., for Petitioner.

Zachary R. Henige, Deputy Solicitor (Fred B. Jacob, Solicitor, and Stephanie J. Fouse,
Attorney, with him on the brief), Federal Labor Relations Authority, Washington, D.C.,
for Respondent.

Gregory O’Duden, General Counsel, Julie M. Wilson, Associate General Counsel,
Matthew D. Ross, Assistant Counsel, filed an Amicus Curiae brief for the National
Treasury Employees Union, Washington, D.C., in support of Petitioner.
                        _________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

HARTZ, Circuit Judge.
                        _________________________________

       Petitioner American Federation of Government Employees Local 1592 (the

Union) seeks review of a decision of the Federal Labor Relations Authority (FLRA) in

favor of the Department of the Air Force, Ogden Air Logistics Center, Hill Air Force

Base, Utah (Hill Air Force Base or Hill). The FLRA rejected the Union’s claim that Hill

committed an unfair labor practice when it denied the request of its then-employee

Joseph Ptacek Jr. to have a union representative present during questioning by the Air

Force Office of Special Investigations (AFOSI) about his misuse of a work computer.

The claim rested on a provision of the Federal Service Labor-Management Relations

Statute (the Labor-Management Statute), 5 U.S.C. § 7101 et seq., that provides federal

employees who belong to a union with the right to the presence of a union representative

when questioned about matters that could lead to discipline. See id. § 7114(a)(2)(B).

The FLRA relied on President Carter’s Executive Order 12,171, which exempts AFOSI

from coverage under the Labor-Management Statute. See 5 U.S.C. § 7103(b)(1)

(granting President power to exclude certain kinds of agencies from coverage under the

Labor-Management Statute). We have jurisdiction under 5 U.S.C. § 7123(a). Because

§ 7103(b)(1) and Executive Order 12,171 extinguished any right to have a union

representative present during a proper AFOSI interrogation, we deny the Union’s

petition.

                                            2
   I.      BACKGROUND

           A. The Investigation

        The present dispute began in August 2007 when Ptacek, an employee of Hill Air

Force Base and a member of the Union, was accused of viewing pornography on his

work computer. One of his supervisors placed him on administrative leave while Hill’s

information-technology department investigated the accusation. When that investigation

indicated that Ptacek may have accessed child pornography, AFOSI, which investigates

felony-level crimes for the Air Force, took over the investigation.

        An analysis of Ptacek’s computer failed to find any stored child pornography, but

it did reveal explicit search terms that may have referenced child pornography. At the

request of AFOSI, one of Ptacek’s supervisors, Kenneth Williams, directed him to come

to Hill Air Force Base for an interview with AFOSI. Ptacek agreed and arrived at the

base accompanied by his union representative, Richard Thomas. Williams then drove

Ptacek to the AFOSI building, with Thomas following in his own vehicle.

        Ptacek asked the AFOSI special agent in charge of the investigation if Thomas

could attend the interview as his union representative. The agent denied the request and

interviewed him outside the presence of both Williams and Thomas. After the

investigation concluded in January 2008, Hill proposed terminating Ptacek’s

employment. But further discussion persuaded it to allow him to keep his job, with the

understanding that he would be terminated if he continued inappropriate use of the

computer. About a month later, Ptacek again misused his computer. He resigned to

avoid termination.

                                             3
          B. The Statutory Framework

       The Labor-Management Statute provides a comprehensive framework for labor

relations between the federal government and its employees. See 5 U.S.C. § 7101 et seq.

(1978). It regulates employees’ rights to join a public-sector union, see id. § 7102; the

formation and recognition of unions, see id. § 7111; collective bargaining, see, e.g., id.

§§ 7117, 7119; and the rights and duties of management and unions, see, e.g., id.

§§ 7106, 7113, 7114. It also identifies actions by either an agency or a union that

constitute unfair labor practices, such as interfering with the rights granted by the statute,

see id. § 7116(a)(1), encouraging or discouraging union membership by discrimination in

conditions of employment, see id. § 7116(a)(2), or otherwise violating the statute, see id.

§ 7116(a)(8). The FLRA has authority to determine whether an unfair labor practice

occurred, see id. § 7118, subject to judicial review by a federal court of appeals, see id. §

7123(a). The Labor-Management Statute provides a variety of remedies for unfair labor

practices, including orders to cease and desist, orders to renegotiate a collective-

bargaining agreement, orders to reinstate an aggrieved employee with backpay, or “such

other action as will carry out the purpose of [the Labor-Management Statute].” Id.

§ 7118(a)(7).

       Not all federal employees are covered by the Labor-Management Statute. The

statute explicitly excludes certain agencies, such as the Government Accountability

Office, the Federal Bureau of Investigation, the Central Intelligence Agency, and the

Secret Service. See id. § 7103(a)(3). And “any employee engaged in intelligence,

counterintelligence, investigative, or security work which directly affects national

                                              4
security” is barred from belonging to a union. Id. § 7112(b)(6). In addition, Congress

provided the President with authority to exclude other agencies from coverage under all

or some of the provisions of the statute. The President may suspend portions of the

Labor-Management Statute for agencies and activities outside the United States if the

President deems it necessary for national security. See id. § 7103(b)(2). Or, relevant

here, the President may exclude an agency from the entire statute if the agency “has as a

primary function intelligence, counterintelligence, investigative, or national security

work,” and the statute “cannot be applied to that agency . . . in a manner consistent with

national security requirements and considerations.” Id. § 7103(b)(1). President Carter

exercised this latter authority in Executive Order No. 12,171, 44 Fed. Reg. 66565 (Nov.

19, 1979), which stated that certain agencies satisfied the requirements of § 7103(b)(1).

Id. ¶ 1-101. The Order listed AFOSI as an excluded agency. See id. ¶ 1-206(k).

          This appeal concerns whether as a result of this exclusion Ptacek had no right to a

union representative when being interviewed by AFOSI despite § 7114(a)(2), which

states:

          [The union representing employees in a unit] 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.

5 U.S.C. § 7114(a)(2).

             C. Administrative Proceedings


                                               5
         The Union filed an unfair-labor-practice charge against Hill Air Force Base,

asserting that Hill violated § 7114(a)(2)(B) by denying Ptacek’s request for union

representation during the interview by AFOSI, which allegedly was acting as “a

representative of [Hill],” 5 U.S.C. § 7114(a)(2)(B). An administrative law judge (ALJ)

concluded that because Executive Order 12,171 excluded AFOSI from coverage under

the statute, AFOSI could not be a “representative” of Hill under § 7114(a)(2)(B). He

found no violation of the statute and recommended that the FLRA dismiss the complaint.

The FLRA agreed. See U.S. Dep’t of the Air Force, Ogden Air Logistics Ctr., Hill Air

Force Base, Utah, 68 FLRA 460 (Apr. 16, 2015). The majority of the three-member

panel ruled that the plain meaning of § 7103(b)(1) authorized the President to exclude

AFOSI from the entirety of the statute. See id. at 462–63. They contrasted

§ 7103(b)(1)’s text with that of § 7103(b)(2), which authorizes the President to suspend

individual provisions of the Labor-Management Statute, see id. at 462–63, and held that

AFOSI was precluded from being a representative of Hill for purposes of

§ 7114(a)(2)(B), see id. at 464–65. We affirm, though we express the point somewhat

differently. Rather than saying that AFOSI was not a “representative” of Hill, we simply

hold that there was no violation of the statute because it does not apply to proper

investigations by AFOSI.

   II.      DISCUSSION

            A.     Standards of Review

         We review FLRA decisions to determine “if they are arbitrary, capricious, or an

abuse of discretion or otherwise not in accordance with law.” Am. Fed’n of Gov’t Emps.,

                                              6
AFL CIO Local 1592 v. FLRA., 288 F.3d 1238, 1240 (10th Cir. 2002) (internal quotation

marks omitted). In assessing whether it properly interpreted the Labor-Management

Statute, we proceed under the Chevron framework, which governs our review of “an

agency’s construction of the statute which it administers.” Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). We ask first whether Congress has

spoken to “the precise question at issue.” Id. at 843 n.9. If so, we must apply the

unambiguous meaning of the statute. See id. If, however, the statute is ambiguous on the

issue, we will defer to an agency’s reasonable interpretation. See id. at 843–44; Nat’l

Fed’n of Fed. Emps., Local 1309 v. Dep’t of Interior, 526 U.S. 86, 92 (1999) (When “the

[s]tatute’s language [is] sufficiently ambiguous or open on the point,” courts must defer

“to reasonable interpretation or elaboration by the agency charged with its execution.”);

Am. Fed’n of Gov’t Emps., 288 F.3d at 1240 (“FLRA is entitled to considerable deference

when interpreting and applying the provisions of its enabling statute.” (internal quotation

marks omitted)).

       This deference is justified on two grounds. First, “[u]nder Chevron, we read

Congress’ silence as a delegation of authority to [the agency] to select from among

reasonable options.” EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1604

(2014); see Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354,

381–82 (1988) (Scalia, J., concurring) (“[T]he general rationale for deference [is that]

Congress would naturally expect that the agency would be responsible, within broad

limits, for resolving ambiguities in its statutory authority or jurisdiction.”). Second, the

agency has expertise on the subject. See Pension Ben. Guar. Corp. v. LTV Corp., 496

                                              7
U.S. 633, 651–52 (1990) (“[T]he judgments about the way the real world works that have

gone into the [agency’s] policy are precisely the kind that agencies are better equipped to

make than are courts. This practical agency expertise is one of the principal justifications

behind Chevron deference.”).

       In determining whether a statute is unambiguous, courts are to “employ[]

traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. “These tools

include examination of the statute’s text, structure, purpose, history, and relationship to

other statutes.” Harbert v. Healthcare Servs. Grp., Inc., 391 F.3d 1140, 1147 (10th Cir.

2004); see Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004). Even a

statutory provision whose words might have multiple meanings is not necessarily

ambiguous. “Ambiguity is a creature not of definitional possibilities but of statutory

context.” Brown v. Gardner, 513 U.S. 115, 118 (1994).

       Our deference to the agency’s interpretation of an ambiguous statute comes with a

caveat: when an agency rests its interpretation on the erroneous view that the statute is

unambiguous, we will not defer to the agency. See PDK Labs., Inc. v. DEA, 362 F.3d

786, 798 (D.C. Cir. 2004) (“[D]eference to an agency’s interpretation of a statute is not

appropriate when the agency wrongly believes that interpretation is compelled by

Congress.” (internal quotation marks omitted)); cf. Negusie v. Holder, 555 U.S. 511, 516,

521–24 (2009) (declining to defer to agency interpretation and remanding for

reconsideration because agency erroneously believed its interpretation was compelled by

a previous Supreme Court decision). This rule follows from Chevron’s underlying

rationale. When an agency believes the statutory language leaves it no choice, it is not

                                              8
bringing its policy preferences or expertise to bear on the question, so the reasons for

Chevron deference are not present. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier

Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006) (“Chevron step 2 deference is

reserved for those instances when an agency recognizes that the Congress’s intent is not

plain from the statute’s face. In precisely those kinds of cases, it is incumbent upon the

agency not to rest simply on its parsing of the statutory language—it must bring its

experience and expertise to bear in light of competing interests at stake.” (brackets and

internal quotation marks omitted)).

       In this case the FLRA found the statute unambiguous. It wrote, “Because the plain

wording of § 7103(b)(1) excludes AFOSI from all of the Statute’s provisions, including

§ 7114(a)(2), we find that AFOSI’s investigator did not act as a representative of [Hill]

and, consequently, that [Hill] may not be held responsible under the Statute for the

investigator’s conduct in this case.” 68 FLRA at 460. It rejected the policy concerns

offered by the Union and the dissent because these concerns “must give way to the plain

wording of the Statute” when, as here, AFOSI is acting within the scope of its authority.

Id. at 464. In essence, it decided that its decision was compelled by Congress. See id.

(“[E]ven when it seems incongruous for Congress to provide rights, but deny

enforcement of those rights in particular circumstances, it is for Congress, not the

[FLRA], to correct any problems arising from plain statutory wording.” (alterations and

internal quotation marks omitted)).

       As a result, there is no room for deference to the FLRA on this appeal. If we agree

that the Labor-Management Statute is unambiguous, we will either reverse in favor of the

                                             9
Union or dismiss the petition, depending on our view of what the plain meaning requires.

If, however, we find the statute ambiguous, we must remand to the agency to interpret the

statute anew, free from its view that Congress has compelled its decision.

       We now turn to interpreting the statute. After employing traditional tools of

statutory interpretation, we hold that the statute clearly does not apply to AFOSI’s

investigation of Ptacek.

          B.     The Right to a Representative—§ 7114(a)(2)(B)

       The right to have a union representative present during employee disciplinary

investigations has been recognized as a central component of labor law for decades. In

NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court upheld the

National Labor Relations Board’s decision that it was an unfair labor practice to deny an

employee’s request for union representation at an investigatory interview that the

employee reasonably believed might result in disciplinary action. Id. at 252–53, 260.

The Court described the importance of such a right:

       Requiring a lone employee to attend an investigatory interview which he
       reasonably believes may result in the imposition of discipline perpetuates
       the inequality the [National Labor Relations] Act was designed to
       eliminate, and bars recourse to the safeguards the Act provided to redress
       the perceived imbalance of economic power between labor and
       management. . . . The Board’s construction also gives recognition to the
       right when it is most useful to both employee and employer. A single
       employee confronted by an employer investigating whether certain conduct
       deserves discipline may be too fearful or inarticulate to relate accurately the
       incident being investigated, or too ignorant to raise extenuating factors. A
       knowledgeable union representative could assist the employer by eliciting
       favorable facts, and save the employer production time by getting to the
       bottom of the incident occasioning the interview. Certainly his presence
       need not transform the interview into an adversary contest.


                                             10
Id. at 262–63 (internal quotation marks omitted). Section 7114(a)(2)(B) codifies the

Weingarten right for federal employees, providing the right to union representation when

requested at any examination by an employer representative that the “employee

reasonably believes . . . may result in disciplinary action against the employee.” 5 U.S.C.

§ 7114(a)(2)(B).

       The Supreme Court addressed the scope of § 7114(a)(2)(B) in NASA v. FLRA, 527

U.S. 229 (1999). It held that “an investigator employed in NASA’s Office of Inspector

General (NASA-OIG) can be considered a ‘representative’ of NASA when examining a

NASA employee, such that the right to union representation in the [Labor-Management

Statute] may be invoked.” Id. at 231. The employee, who worked at the NASA facility

in Huntsville, Alabama, was suspected of threatening activities and was investigated by

NASA-OIG. See id. at 231–32. Because the employee reasonably believed that the

investigation could result in his being disciplined, he requested representation by the

union at the Huntsville facility. See id. at 233. NASA and NASA-OIG argued that a

“representative” of NASA could be only “a representative of agency management—i.e.,

the entity that has a collective bargaining relationship with the employee’s union.” Id. at

233–34 (internal quotation marks omitted). They contended that because “[n]either

NASA nor NASA–OIG ha[d] such a relationship with the employee’s union[,] . . . the

investigator in this case could not have been a ‘representative’ of the relevant ‘entity.’”

Id. at 234.

       The Court rejected this interpretation of § 7114(a)(2)(B) because the provision’s

text was “not limited to investigations conducted by certain entities within the agency in

                                             11
question,” and all agreed that the relevant “agency” was NASA. Id. at 234 (brackets and

internal quotation marks omitted). It held that “[i]n common parlance, the investigators

employed in NASA’s OIG are unquestionably ‘representatives’ of NASA when acting

within the scope of their employment.” Id. at 240.

      Although there are potentially significant differences between NASA and our case,

we will assume without deciding that AFOSI was functioning as a “representative” of

Hill Air Force Base when conducting the interview of Ptacek. The question before us is

the effect of § 7103(b)(1) and Executive Order 12,171 on Ptacek’s rights during that

interview. We now turn to those provisions.

          C.      Exclusion of AFOSI under Executive Order 12,171

      Despite the mandate of § 7114(a)(2)(B), the FLRA held that Ptacek was not

entitled to the presence of a union representative during his interview by the AFOSI. It

relied on Executive Order 12,171, authorized by 5 U.S.C. § 7103(b)(1). We agree that

the statute and executive order, read in context, unambiguously withdraw the Weingarten

obligations from AFOSI investigations.

      We begin with the statutory text. See King v. St. Vincent’s Hosp., 502 U.S. 215,

218 (1991). Section 7103(b)(1) is broad:

      The President may issue an order excluding any agency or subdivision
      thereof from coverage under this chapter if the President determines that—
             (A) the agency or subdivision has as a primary function intelligence,
             counterintelligence, investigative, or national security work, and

               (B) the provisions of this chapter cannot be applied to that agency or
               subdivision in a manner consistent with national security
               requirements and considerations.


                                             12
(emphasis added). The plain language excludes covered agencies from every provision

under the chapter. There is no limiting language, for instance, that the agency would be

subject to the provisions of § 7117 (relating to the duty to bargain in good faith) but not

the provisions of § 7119 (relating to negotiation impasses). This breadth appears in sharp

relief when contrasted with the narrower scope of § 7103(b)(2). Under that section the

President may “issue an order suspending any provision of this chapter with respect to

any agency, installation, or activity” outside the United States. 5 U.S.C. § 7103(b)(2)

(emphasis added). Under § 7103(b)(2) the President can pick and choose which

provisions of the Labor-Management Statute should not apply to an agency, but under

§ 7103(b)(1) the President must exclude it from coverage under the entire statute or not at

all.

       Nevertheless, there is a potential ambiguity in the statute, depending on whose

perspective to adopt in construing the statute. The Union, naturally, looks at the matter

from the employee’s point of view. The employee seeking to assert his Weingarten right

is not an employee of the excluded agency. He faces potential work-related discipline

from his employing agency (here, Hill), not the excluded agency (here, AFOSI). Why

then should his representational rights be affected by the exclusion of that other agency

from the statute? As the Union puts it, “[A] covered agency [like Hill] . . . does not

magically become uncovered simply because it happens to choose a tool [like the

AFOSI] that [may] not itself be subject to [Labor-Management Statute] liability.” Aplt.

Br. at 22.



                                             13
       The investigator, on the other hand, is part of the excluded agency and takes it as a

given that the executive order means that the statute, including § 7114(a)(2), does not

apply to his actions. And that being the case, there was no violation of the Labor-

Management Statute by anyone—either the AFOSI investigator or Hill Air Force Base.

       To resolve this conflict, we look to the statutory structure, context, and purpose.

See Brown, 513 U.S. at 118 (“Ambiguity is a creature not of definitional possibilities but

of statutory context.”); Harbert, 391 F.3d at 1147 (traditional tools of statutory

construction include “examination of the statute’s text, structure, purpose, history, and

relationship to other statutes”). It then becomes clear that an investigator from an

excluded agency does not have any Weingarten obligations when acting within the

agency’s proper scope.

       One strong indication that AFOSI’s perspective is the proper one is that the focus

of the statutory exception and the executive order is national security. Their function is

to override the interests protected by the Labor-Management Statute when required by

national security. Congress recognized the importance of certain employee rights by

enacting the Labor-Management Statute. But by the same token it recognized that those

rights may sometimes need to give way to national security, as determined by the

President. In short, the employee’s interests are subordinate in this context.

       Further supporting this view is that the Union’s interpretation would give the

executive order no reasonable purpose and would undermine an important national-

security purpose. To begin with, the purpose of § 7103(b)(1) and the executive order

could not have been to exclude national-security investigators from the union-

                                             14
membership and collective-bargaining provisions of the Labor-Management Statute.

Such employees are already excluded from those provisions under § 7112(b)(6), which

states that a potential bargaining unit is not appropriate for labor-organization

representation if it includes “any employee engaged in intelligence, counterintelligence,

investigative, or security work which directly affects national security.” 5 U.S.C. §

7112(b)(6).

       The Union argues that the exclusion could still have the purpose of exempting

AFOSI employees who do not come under the § 7112(b)(6) exemption, such as clerical

employees. But this purpose must satisfy the requirements of § 7103(b)(1), under which

the President may exclude an agency only if the President determines that the “the agency

or subdivision has as a primary function intelligence, counterintelligence, investigative,

or national security work, and . . . the provisions of this chapter cannot be applied to that

agency or subdivision in a manner consistent with national security requirements and

considerations.” (emphasis added). The Union utterly fails to explain how limiting the

collective-bargaining rights of the nonexempt AFOSI employees could have been so

important to this country’s national security that President Carter would decide to include

AFOSI in his executive order. Nor can we think of a good reason. We note that even

without the Executive Order, § 7112(b)(6) exempts from statutory rights more than just

AFOSI’s investigators. Clerical employees may also be covered by the exemption.

“[A]n employee is engaged in ‘security work’ within the meaning of [the exemption] if

the employee’s duties include ‘the regular use of, or access to, classified information.’”

U.S. Dep’t of Justice Washington, D.C., 62 F.L.R.A 286, 292 (2007). Perhaps a strike

                                             15
by nonexempt employees could injure national security; but federal workers are

prohibited from striking anyway. See 5 U.S.C. § 7311 (“An individual may not accept or

hold a position in the Government of the United States . . . if he . . . participates in a

strike, or asserts the right to strike, against the Government of the United States . . . .”);

18 U.S.C. § 1918 (violation of § 7311 is punishable by fine or imprisonment for up to one

year).

         On the other hand, the FLRA’s interpretation of the statute has an obvious

national-security purpose. Freeing AFOSI investigators from Weingarten restrictions

when interviewing union members can serve two interests: (1) restricting access to

national-security information that might otherwise be disclosed to union representatives

attending investigatory interviews; and (2) obtaining greater cooperation in a national-

security investigation from an interviewee who cannot gain psychological strength to

resist by having a champion present during the interview. We recognize that there may

be some (perhaps many) AFOSI interviews in which such interests are not served. But

the statute does not permit the executive order to be finely tailored. The Union admitted

at oral argument that under its interpretation of § 7103(b)(1) and the executive order, a

Union member would always be entitled to have a representative present at an interview,

no matter what the national-security interests at stake. As the Union sees it, there would

be no way for the President to exclude AFOSI’s national-security interrogations from

Weingarten restrictions.

         This is not to say that Weingarten rights are not important. Certainly they are.

But they may need to yield to national-security interests. Congress allowed for that to

                                               16
happen, and the President took the step. We conclude that the sole reasonable

interpretation of § 7103(b)(1) and the executive order is that Weingarten rights are not

available to union members during AFOSI investigations within the scope of its

authority.

       The relevant administrative and judicial precedents also support our interpretation.

For instance, the Federal Circuit, in upholding the removal of an Air Force mechanic

from his position because of marijuana usage, rejected a challenge to his questioning by

the AFOSI without the presence of a union representative. See Lawson v. Dep’t of Air

Force, 215 F.3d 1347, 1999 WL 594536, at *1 (Fed. Cir. Aug. 6, 1999) (unpublished). It

explained, “[A]n executive order clearly exempts Air Force OSI and other investigative

agencies or subdivisions from [5 U.S.C. § 7114(a)(2)(B)].” Id. Likewise, in U.S. Dep’t

of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins

Air Force Base, Georgia, 66 FLRA 589, 593, 596 (Jan. 12, 2011) (ALJ Decision), an

ALJ held that a threat by an AFOSI investigator during an interrogation was not an unfair

labor practice because “it is clear that the [AFOSI] and those working within its authority

are excluded from all requirements and limitations imposed by the [Labor-Management

Statute] and not just certain provisions therein. Therefore, the General Counsel’s

argument that the inclusion of AFOSI in E.O. 12171 only excuses that subdivision from

collective bargaining with its own employees must fail.” And in U.S. Dep’t of the Air

Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, FLRA ALJ Dec. Rep. No.

130, 1997 WL 798919, at *1 (Oct. 9, 1997), an ALJ rejected an unfair-labor-practice

claim based on the refusal by AFOSI investigators to grant requests that union

                                            17
representatives be present for interviews. Relying on Executive Order 12,171, the ALJ

held that “[AFOSI] is excluded from coverage under the [Labor-Management] Statute,

. . . [and] the requirements of § [7114] (a)(2)(B) may not be imposed on [AFOSI].” Id. at

*8.

       The Union urges that two previous FLRA decisions support its position. See

Lackland Air Force Base Exch., Lackland Air Force Base, Tex., 5 FLRA 473 (1981), and

U.S. Dep’t of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 36

FLRA 748 (1990). True, in both decisions the FLRA held that an Air Force employee

had the right to union representation under § 7114(a)(2) during an examination by an

AFOSI officer. But neither decision addressed whether § 7103(b)(1) and Executive

Order 12,171 exempted AFOSI from complying with § 7114(a)(2). In fact, the alleged

violation in Lackland occurred on July 14, 1979, more than four months before the

issuance of Executive Order 12,171 on November 19, 1979. We therefore reject the

assertion by the FLRA dissenting member in this case that “[t]he only credible

explanation for the positions taken—and not taken—by the parties in Lackland is that all

of the parties—and the [FLRA]—understood clearly that EO 12,171 and § 7103(b)(1)

were not intended to preclude the AFOSI investigator from acting as a ‘representative of

the agency’ when the investigator conducted the interview.” U.S. Dep’t of the Air Force,

68 FLRA at 467 (DuBester, M., dissenting). A better explanation is that the parties

understood, if they had even noted the issuance of the executive order, that it did not

apply to conduct occurring before its issuance. And the later decision in Ogden Air

Logistics Ctr., 36 FLRA 748, contains no mention of Executive Order 12,171 in either

                                             18
the FLRA decision or the ALJ decision. In our view it is not entitled to any consideration

on the issue before us.

       Finally, we do not address whether an AFOSI interrogation would be exempt from

5 U.S.C. § 7114(a)(2)(B) if—as the Union argues could be the result of the FLRA’s

interpretation—the Air Force engaged AFOSI for routine employment disciplinary

matters in order to systematically avoid the Weingarten right or if AFOSI acted outside

the scope of its authority in conducting an investigation. The Union has not disputed,

either before the FLRA or in the argument section of its opening brief on appeal, that

AFOSI was acting within the scope of its authority in this case; and the FLRA reserved

judgment on what would happen if AFOSI was operating outside the scope of that

authority. See 68 FLRA at 464 (“[W]e note that there is no dispute that AFOSI was

acting within the scope of its legal authority in this case, and nothing in our analysis in

this case addresses situations where agencies use entities otherwise excluded from the

coverage of the Statute by executive order to conduct investigations that are outside the

scope of those entities’ legal authority.”). We leave the question for another day.

   III.     CONCLUSION

          The petition is DENIED.




                                             19
No. 15-9542, American Federation of Government Employees v. FLRA

PHILLIPS, Circuit Judge, dissenting.

       The Labor-Management Statute—combined with President Carter’s Executive

Order 12,171 in response to it—excludes AFOSI’s employees from coverage under the

Labor-Management Statute.1 This precludes even those AFOSI employees not directly

working on national-security matters from having the right “to organize, bargain

collectively, and participate through labor organizations of their own choosing in

decisions which affect them.”2 But nothing in the Labor-Management Statute or

Executive Order takes the separate step of inserting the excluded AFOSI back into the

Labor-Management Statute to defeat the rights of covered employees of other agencies.

Those covered, non-AFOSI employees should retain the full scope of their coverage

under the Labor-Management Statute.

       The Labor-Management Statute unambiguously says that when a covered

employee is examined by “a representative of the agency in connection with an

investigation,” that employee is entitled to have a union representative attend the

examination if the employee reasonably believes the examination may result in

discipline. 5 U.S.C. § 7114(a)(2)(B). By the same token, if the examining entity isn’t the

       1
          Although the Labor-Management Statute speaks of excluding agencies, its effect
is really to exclude agency employees from coverage. That’s why Congress declares that
“[i]t is the purpose of this chapter [Labor-Management Relations] to prescribe certain
rights and obligations of the employees of the Federal Government and to establish
procedures which are designed to meet the special requirements and needs of the
Government.” 5 U.S.C. § 7101(b).
       2
           These employee rights are first referenced at 5 U.S.C. § 7101.
employer agency’s representative, an employee has no corresponding right to have a

union representative attend. Id. In view of this, one would expect that the FLRA and the

ALJ would have focused on whether, in examining Ptacek, AFOSI had acted as Hill Air

Force Base’s “representative” under § 7114(a)(2)(B). But the FLRA and the ALJ

declined to answer that question.

       Instead of answering that question, the FLRA took a shortcut. It decided that when

President Carter excluded AFOSI from the Labor-Management Statute’s coverage (again,

preventing AFOSI’s own employees from unionizing), he also intended to strip covered

employees like Ptacek of their right to bring a union representative to AFOSI’s

examinations—even if AFOSI was acting as Hill Air Force Base’s “representative” under

5 U.S.C. § 7114(a)(2)(B). This goes too far. The Executive Order excludes AFOSI

employees only from organizing and collectively bargaining their own conditions of

employment—it doesn’t swing an AFOSI wrecking ball into covered employees’ existing

rights given by the Labor-Management Statute. Had President Carter intended to do that,

I’d expect that he would have said so, especially when Congress has highlighted the

societal benefits of affording the Labor-Management Statute’s rights to the non-excluded

workforce.3

       Unfortunately, the majority follows the FLRA’s shortcut. In doing so, I believe

that the majority misconstrues what the Labor-Management Statute and Executive Order

       3
        As part of its findings, Congress declared that the statutory protection of the right
of employees to organize and bargain collectively “(A) safeguards the public interest, (B)
contributes to the effective conduct of public business, and (C) facilitates and encourages
the amicable settlements of disputes between employees and their employers involving
conditions of employment.” 5 U.S.C. § 7101(a)(1)(A)–(C).
                                             2
mean when they speak of an agency’s being excluded from coverage under the Labor-

Management Statute. See 5 U.S.C. § 7103(b)(1); Exec. Order No. 12,171 § 1-1, 44 Fed.

Reg. 66,565 (Nov. 19, 1979). The Executive Order’s meaning is as plain as its

consequences—AFOSI employees can no longer avail themselves of rights under the

Labor-Management Statute. For instance, using the dispute in this case as a backdrop, the

Executive Order precludes an AFOSI employee from unionizing and from ever bringing

along a union representative to an examination the employee reasonably believes may

result in disciplinary action. But that’s a far stretch from saying that the Executive Order

silently defeats covered employees’ rights.

       What, then, justifies the majority’s view that the Executive Order impliedly

repeals Ptacek’s § 7114(a)(2)(B) right? National security, the majority says. It contends

that unless the Executive Order impliedly repeals Ptacek’s right under § 7114(a)(2)(B),

covered-agency employees throughout government can insist that union representatives

accompany them to all AFOSI examinations—even those raising national-security

matters. At first glance, the majority’s concern seems sufficiently serious to justify its

riding to the rescue. But on a more careful second look, reading all of the statutory

language together, the majority’s national-security concern reveals itself as more

imagined than real. In fact, the Labor-Management Statute already solves the majority’s

concern—it limits the employees’ right to bring along a union representative to situations

where the examining entity (here, AFOSI) is acting as the representative of the employer

agency (here, Hill Air Force Base). That sets our course. In addressing the majority’s

national-security concerns, we then know to ask whether the investigating entity has

                                              3
acted as the employer-agency’s representative when examining a covered employee

about a national-security matter. And, more particularly to our case, we know to ask

whether AFOSI acted as Hill Air Force Base’s representative in examining Ptacek about

felony possession of child pornography, or about his accessing adult pornography on his

work computer.

       Although “representing whom?” is the most important question in the case, the

FLRA and ALJ sidestepped it. We should remand for the FLRA to develop the record

and decide that question. We should not simply “assume without deciding” that AFOSI

indeed acted as Hill Air Force Base’s representative. Majority Op. at 12. In making its

national-security case, the majority apparently again assumes without deciding that a law-

enforcement agency examining a covered employee about a national-security matter will

necessarily be acting as the employer-agency’s representative. That’s hard to accept when

a law-enforcement agency like AFOSI has its own, independent authority and

responsibility to investigate national-security matters (or, as here, to investigate felonies

having nothing to do with national security). The majority’s “assuming but not deciding”

approach short-circuits the needed analysis. By assuming that AFOSI acted as Hill Air

Force Base’s representative in examining Ptacek, the majority ignores what happens if

AFOSI instead was representing itself. In that event, Ptacek would have no right to bring

a union representative to the AFOSI examination, and he would lose his appeal.

       It’s wrong for the majority to “assume without deciding” that AFOSI examined

Ptacek as Hill Air Force Base’s representative. Because the FLRA didn’t develop the

record on this point, we have no basis to assume that. And on appeal the FLRA

                                              4
acknowledges that the record isn’t developed on the degree of collaboration between

AFOSI and Hill Air Force Base. AFOSI may well have acted as Hill Air Force Base’s

representative in investigating Ptacek’s accessing adult pornography on his work

computer (that sounds like a personnel matter) but not have acted as Hill Air Force

Base’s representative when investigating felony child-pornography possession (a matter

within its own jurisdiction to investigate), R. at 333–34. We need the FLRA to develop

the record on those points.

       By assuming but not deciding the “representative” issue, the majority leaves an

unnecessary trail of “perhaps many” AFOSI non-national-security examinations at which

covered employees will lose their § 7114(a)(2)(B) right to have a union representative

attend.4 Majority Op. at 16. For instance, here, the majority’s unnecessary approach

deprives Ptacek of his statutorily guaranteed union representation even if AFOSI

switched gears during the examination to investigate him for accessing adult pornography

at work—a personnel matter rather than a felony offense. I disagree with the majority that

President Carter ever intended to strip covered employees of their § 7114(a)(2)(B) right

as the cost of doing business to protect national security.

       Nor do I think Congress or the President really need us doing their national-

security job. If Congress or the President ever feel that national security demands the


       4
         AFOSI’s authority extends well beyond investigating national-security crimes.
For instance, AFOSI is responsible for non-national-security offenses such as assault and
child endangerment; bad checks, forgery, and counterfeiting; bribery; computer crimes;
drug offenses; firearm violations such as unlawful possession, discharge, or concealment;
burglary; impersonation; improper use of government property; postal violations;
robbery; sex offenses, and traffic offenses. R. at 333–38.
                                              5
majority’s result, either Congress or the President can exclude Hill Air Force Base (or

any other agency) from the Labor-Management Statute’s coverage. That neither Congress

nor the President has done so speaks volumes. Perhaps both Congress and the President

are comfortable that law-enforcement agencies are not an employer-agency’s

“representatives” when investigating felonies, including national-security violations. I

think we shouldn’t strain statutory language to solve a “problem” that Congress and a

President could easily solve if they believe it really exists. We should leave the national-

security work to the other two branches of government, where it belongs.

       I disagree with the majority that any rival interpretation of the statute or Executive

Order would be unreasonable. In analyzing why, the majority notes that, even before

President Carter’s Executive Order, the Labor-Management Statute already excluded

“any employee engaged in intelligence, counterintelligence, investigative, or security

work which directly affects national security.” 5 U.S.C. § 7112(b)(6). From this, the

majority concludes that the Labor-Management Statute already exempts all AFOSI

investigators, and, in addition, all clerical employees engaged in “security work”—those

clerical employees whose “duties include the regular use of, or access to, classified

information.” Majority Op. at 15 (quoting U.S. Dep’t of Justice Washington, D.C., 62

F.L.R.A. 286, 292 (2007)). Having gotten that far, the majority concludes that President

Carter would not have included AFOSI in the Executive Order just to reach the remaining

clerical employees. I see two problems with this approach.

       First, as mentioned, AFOSI has broad authority to investigate a host of criminal

offenses unrelated to national security. Based on the record before us, I can’t tell whether

                                              6
all of AFOSI’s investigators even work on matters directly affecting national security. By

excluding all AFOSI employees from the Labor-Management Statute’s coverage, the

Executive Order eliminates any potential challenge from any AFOSI investigator who

doesn’t work on matters directly affecting national security (perhaps, for instance, an

investigator who exclusively investigates governmental thefts).

       Second, I find it entirely plausible that the executive branch might have legitimate

national-security concerns arising from the work that all AFOSI clerical employees do.

Presumably, all clerical employees might at least occasionally have access to information

bearing on national security since AFOSI works directly on national-security cases. After

all, clerical employees type documents, store information, and converse with each other.

For this reason, President Carter could reasonably have desired a blanket denial of the

Labor-Management Statute’s coverage to all AFOSI employees.

       Finally, the majority supports its reading by contrasting the President’s power to

wholly exclude an agency located in the United States from the Labor-Management

Statute’s coverage with the President’s power to suspend any provision of the Labor-

Management Statute for agencies “located outside the 50 States and the District of

Columbia, if the President determines that the suspension is necessary in the interest of

national security.”5 5 U.S.C. § 7103(b)(2). I can’t see how this matters. Granted, the

President did wholly exclude AFOSI from the Labor-Management Statute. But this just

means that AFOSI employees could no longer unionize or avail themselves of any of the


       5
       The Executive Order excluded just one agency under this subsection, the Drug
Enforcement Agency, Department of Justice.
                                             7
Labor-Management Statute’s benefits. It doesn’t follow that just because President Carter

intended to exclude AFOSI employees from unionizing, he also intended to limit the

rights of covered, non-AFOSI employees.

       I think the majority gives short shrift to U.S. Dep’t of the Air Force Ogden Air

Logistics Ctr. Hill Air Force Base, Utah, 36 F.L.R.A. 748 (1990). I agree that this

decision didn’t address “whether § 7103(b)(1) and Executive Order 12,171 exempted

AFOSI from complying with § 7114(a)(2).” Majority Op. at 18. But why didn’t it? I think

we can fairly assume that by 1990 the FLRA knew full well about President Carter’s

1979 Executive Order. And that being so, I think the most likely reason that the FLRA

didn’t address § 7114(a)(2) is that it reasoned that AFOSI’s exclusion didn’t operate to

defeat covered, non-AFOSI employees’ rights under the Labor-Management Statute. In

view of that, I don’t understand the majority’s position that this decision is “not entitled

to any consideration on the issue before us.” Majority Op. at 19.

       Nor am I persuaded by the majority’s own cited cases. Illustrative is Lawson v.

Dep’t of Air Force, 215 F.3d 1347, 1999 WL 594536 (Fed. Cir. 1999) (unpublished),

which the majority says “explained [that] ‘an executive order clearly exempts Air Force

OSI and other investigative agencies and subdivisions from [5 U.S.C. § 7114(a)(2)(B)].’”

Majority Op. at 17 (alteration omitted) (quoting Lawson, 1999 WL 594536, at *1). The

decision explains nothing, but, on our issue, simply offers the single conclusory sentence

the majority quotes.

       In sum, I believe the plain language of the Labor-Management Statute and

Executive Order simply precludes AFOSI employees from availing themselves of the

                                              8
benefits of Labor-Management Statute coverage. If Congress or the President ever

believe that § 7114(a)(2)(B) imperils national security by affording a union representative

at AFOSI examinations, Congress or the President can easily eliminate the threat—just

exclude the employing agency from the Labor-Management Statute.




                                            9
