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Sept. 7 — A federal worker accused of watching child pornography while working at an Air Force base in Utah didn’t have the right to have a union representative present during a subsequent interrogation, the U.S. Court of Appeals for the Tenth Circuit ruled 2-1 ( Am. Fed'n of Gov't Emps., Local 1592 v. Fed. Labor Relations Auth. , 10th Cir., No. 15-9542, 9/7/16 ).
The decision definitively establishes that federal workers in the Tenth Circuit have no right to a union representative during AFOSI investigations that may lead to discipline—otherwise known as Weingarten rights.
Joseph Ptacek was investigated by the Air Force Office of Special Investigations, an independent federal law enforcement agency that investigates felony-level crimes for the Air Force. The investigation found that his computer didn’t contain any child porn but that Ptacek had searched for a number of pornographic terms.
He was allowed to keep his job initially, but resigned to avoid termination after misusing his computer again. Ptacek’s union challenged Hill Air Force Base’s decision as an unfair labor practice, arguing that he had a right to a union representative under federal labor relations laws.
Writing for the court, Judge Harris Hartz found that an executive order issued by President Jimmy Carter in 1979 excluded the AFOSI from the labor relations laws, and therefore that union members don’t have the right to union representation during investigations by that agency.
Judge Gregory Phillips dissented, arguing that the more accurate interpretation is that the order simply excludes AFOSI employees from availing themselves of federal labor relations rights, due to national security concerns.
The real issue, which the majority declined to decide, is whether AFOSI was acting as a representative of the Air Force base—Ptacek’s true employer—or exercising its own “independent authority and responsibility to investigate national-security matters,” Phillips wrote.
As an employee who is allowed by federal law to join a union, unlike AFOSI workers, Ptacek should have a right to representation if he’s being investigated for a personnel matter rather than a felony, Phillips said.
The ruling leaves open the possibility that agencies could engage AFOSI or other exempted law enforcement agencies routinely in order to systematically avoid the Weingarten rights of certain workers, like civilian employees at military agencies. The court acknowledged the legal questions that remain there, but said it would leave the issue for another day.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/American_Federation_of_Government_Employees_Local_1592_v_Fed_Labo.
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