dissenting:
As stated well by the majority, the FSLMRS establishes the right of federal employees to engage in collective bargaining. The duty to bargain exists to the extent that it is “not inconsistent with any Federal law or any Government-wide rule or regulation.” 5 U.S.C. § 7117(a)(1). Since I do not believe that the process of collective bargaining per se “prevent[s] or prohibits] the Inspector General from initiating, carrying out, or completing any audit or investigation,” see 5 U.S.C. App. 3 § 3(a), and therefore is not “inconsistent” with federal law, I respectfully dissent.
It is perhaps well to underscore precisely what question we are asked to answer. We have not been asked, nor could we from the record before us determine, whether the four collective bargaining proposals on the merits are inconsistent with the Inspector General Act. Certainly, an argument might be made that each of the four proposals would so constrain the Office of Inspector General that in effect each would “prevent or prohibit” that office from conducting its investigations. Were we in a position to give an answer to the question on the merits and to answer it affirmatively, I could well agree that the four proposals cannot be the subject of collective bargaining.
In the present case, however, the Authority did not reach the merits of the proposals. Rather, because the NRC set forth no specific grounds in opposition to the four proposals and instead relied on General Services Administration to the effect that all collective bargaining matters related to Inspector General investigations are nonnegotiable, the Authority determined that there were no grounds upon which it could find that any of the proposals should be considered nonnegotiable on the merits. 47 FLRA No. 29, at 10. The NRC has urged the same all-encompassing, general theory on appeal, stating in its brief that “[t]he very process of negotiation would give both management and the union leverage over the IG.” (emphasis added).
The Authority rejected such a blanket argument, instead choosing an approach that I believe vindicates the statutory aims of both the collective bargaining statute and the Inspector General statute. It held that “proposals that concern the conduct of IG investigations under the IG Act will be found nonnegotiable if they are inconsistent with the IG Act or are nonnegotiable on other grounds.” 47 FLRA No. 29, at 10.
In my view, the Authority’s approach preserves the important independence of the Inspector General, by prohibiting collective bargaining proposals that “prevent or prohibit” the conduct of investigations. Such proposals would be “inconsistent” with federal law, and so would be improper subjects for collective bargaining. At the same time, the approach preserves the right of employees to bargain collectively over all matters not inconsistent with federal law.
Moreover, I do not share the majority’s conclusion that Defense Criminal Investigative Service is significantly distinguishable from the case before us. There, the Third Circuit plainly rejected the argument that the Inspector General Act was intended to create “an independent investigatory office ... which would not be subject to interference by any other agency programmatic concerns, including federal labor relations concerns.” 855 F.2d at 98 (internal quotation omitted). Instead, the Defense Criminal Investigative Service Court determined that the purpose of the Inspector General Act “was to insulate Inspector Generals (sic) from pressure from agency management which might attempt to cover up its own fraud, waste, ineffectiveness, or abuse.” Id. *237(citation omitted). It seems to me unlikely, and the NRC has not demonstrated, that the “very process” of collective bargaining would impermissibly intrude on the type of insulation described by the Third Circuit.
Finally, I am not persuaded by the majority’s argument that Defense Criminal Investigative Service and the instant case are distinguishable because in the former at issue was a specific statute conferring a right on employees, while here the rights would derive from collective bargaining. It is plain that federal law entitles federal employees to bargain collectively over proposals not inconsistent with federal law. Neither the Inspector General Act nor the FSLMRS nor the statute considered by the Third Circuit is deserving of more or less statutory dignity than the other. Since the Authority’s interpretation of the two statutes at issue here preserves their distinct purposes while preventing a conflict between them, I would affirm.
Accordingly, I respectfully dissent.