OCTOBER TERM, 1998
Syllabus
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION ET AL.
v.
FEDERAL LABOR RELATIONS AUTHORITY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 98-369. Argued March 23, 1999-Decided June 17, 1999
The day after enacting the Inspector General Act (IGA), which
created an Office of Inspector General (OIG) in the National
Aeronautics and Space Administration (NASA) and other federal
agencies, Congress enacted the Federal Service Labor-Management
Relations Statute (FSLMRS), which,
inter alia, permits union
participation at an employee examination conducted "by a
representative of the agency" if the employee believes that the
examination will result in disciplinary action and requests such
representation, 5 U. S. C. § 7114(a)(2)(B). When NASA's OIG
(NASA-OIG) began investigating a NASA employee's activities, a
NASA-OIG investigator interviewed the employee and permitted,
inter alios, the employee's union representative to attend.
The union subsequently filed a charge with the Federal Labor
Relations Authority (Authority), alleging that NASA and its OIG had
committed an unfair labor practice when the investigator limited
the union representative's participation in the interview. In
ruling for the union, the Administrative Law Judge concluded that
the OIG investigator was a "representative" of NASA within §
7114(a)(2)(B)'s meaning, and that the investigator's behavior had
violated the employee's right to union representation. On review,
the Authority agreed and granted relief against both NASA and
NASA-OIG. The Eleventh Circuit granted the Authority's application
for enforcement of its order.
Held: A NASA-OIG investigator is a "representative" of
NASA when conducting an employee examination covered by §
7114(a)(2)(B). Pp. 233-246.
(a) Contrary to NASA's and NASA-OIG's argument, ordinary tools
of statutory construction, combined with the Authority's position,
lead to the conclusion that the term "representative" is not
limited to a representative of the "entity" that collectively
bargains with the employee's union. By its terms, § 7114(a)(2)(B)
refers simply to representatives of "the agency," which, all agree,
means NASA. The Authority's conclusion is consistent with the
FSLMRS and, to the extent the statute and congressional intent are
unclear, the Court may rely on the Authority's reasonable judgment.
See,
e. g., Federal Employees v.
Depart-
230
Syllabus
ment of Interior, 526 U. S. 86, 98-100. The
Court rejects additional reasons that NASA and NASA-OIG advance for
their narrow reading. pp. 233-237.
(b) The IGA does not preclude, and in fact favors, treating OIG
personnel as representatives of the agencies they are duty-bound to
audit and investigate. The IGA created no central office or officer
to supervise, direct, or coordinate the work of all OIG's and their
respective staffs. Other than congressional committees and the
President, each Inspector General has no supervisor other than the
head of the agency of which the OIG is part. Congress certainly
intended that the OIGs would enjoy a great deal of autonomy, but an
OIG's investigative office, as contemplated by the IGA, is
performed with regard to, and on behalf of, the particular agency
in which it is stationed. See 5 U. S. C. App. §§ 2, 4(a), 6(a)(2).
Any potentially divergent interests of the OIGs and their parent
agencies--e.
g., an OIG has authority to initiate and
conduct investigations and audits without interference from the
agency head, § 3(a)-do not make NASA-OIG any less a NASA
representative when it investigates a NASA employee. Furthermore,
not all OIG examinations subject to § 7114(a)(2)(B) will implicate
an actual or apparent conflict of interest with the rest of the
agency; and in many cases honest cooperation can be expected
between an OIG and agency management. Pp. 237-243.
(c) NASA's and NASA-OIG's additional policy arguments against
applying § 7114(a)(2)(B) to OIG investigations-that enforcing §
7114(a)(2)(B) in situations similar to this case would undermine
NASA-OIG's ability to maintain the confidentiality of
investigations, and that the Authority has construed §
7114(a)(2)(B) so broadly in other instances that it will impair
NASA-OIG's ability to perform its responsibilities-are ultimately
unpersuasive. It is presumed that Congress took account of the
relevant policy concerns when it decided to enact the IGA and, on
that statute's heels, § 7114(a)(2)(B). Pp. 243-245.
(d) That the investigator in this case was acting as a NASA
representative for § 7114(a)(2)(B) purposes makes it appropriate to
charge NASA-OIG, as well as its parent agency, with responsibility
for ensuring that investigations are conducted in compliance with
the FSLMRS. P.246.
120 F.3d
1208, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR
and SCALIA, JJ., joined,
post, p. 246.
231
David C.
Frederick argued the cause for
petitioners.
With him on the brief were Solicitor General Waxman, Assistant
Attorney General Hunger, Deputy Solicitor General Underwood,
William Kanter, and Howard S. Scher.
David M. Smith argued the cause for respondent Federal
Labor Relations Authority. With him on the brief was
Ann M.
Boehm. Stuart A. Kirsch argued the cause for respondent
American Federation of Government Employees, AFLCIO. With him on
the brief were
Mark D. Roth, Jonathan
JUSTICE STEVENS delivered the opinion of the Court.
On October 12, 1978, Congress enacted the Inspector General Act
(IGA), 5 U. S. C. App. § 1
et seq., p. 1381, which created
an Office of Inspector General (OIG) in each of several federal
agencies, including the National Aeronautics and Space
Administration (NASA). The following day, Congress enacted the
Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.
S. C. § 7101
et seq., which provides certain protections,
including union representation, to a variety of federal employees.
The question presented by this case is whether 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 FSLMRS
may be invoked. § 7114(a)(2)(B). Although certain arguments of
policy may support a negative answer to that question, the plain
text of the two statutes, buttressed by administrative deference
and Congress' countervailing policy concerns, dictates an
affirmative answer.
I
In January 1993, in response to information supplied by the
Federal Bureau of Investigation (FBI), NASA's OIG con-
*Gregory O'Duden and
Barbara A. Atkin filed a
brief for the National Treasury Employees Union as
amicus
curiae urging affirmance.
232
ducted an investigation of certain threatening activities of an
employee of the George C. Marshall Space Flight Center in
Huntsville, Alabama, which is also a component of NASA. A NASA-OIG
investigator contacted the employee to arrange for an interview
and, in response to the employee's request, agreed that both the
employee's lawyer and union representative could attend. The
conduct of the interview gave rise to a complaint by the union
representative that the investigator had improperly limited his
participation. The union filed a charge with the Federal Labor
Relations Authority (Authority) alleging that NASA and its OIG had
committed an unfair labor practice. See §§ 7116(a)(1), (8).
The Administrative Law Judge (ALJ) ruled for the union with
respect to its complaint against NASA-OIG. See App. to Pet. for
Cert. 71a. The ALJ concluded that the OIG investigator was a
"representative" of NASA within the meaning of § 7114(a)(2)(B), and
that certain aspects of the investigator's behavior had violated
the right to union representation under that section.
Id.,
at 64a-65a, 69a-70a. On review, the Authority agreed that the
NASA-OIG investigator prevented the union representative from
actively participating in the examination and (1) ordered both NASA
and NASA-OIG to cease and desist (a) requiring bargaining unit
employees to participate in OIG interviews under § 7114(a)(2)(B)
without allowing active participation of a union representative,
and (b) likewise interfering with, coercing, or restraining
employees in exercising their rights under the statute; and (2)
directed NASA to (a) order NASA-OIG to comply with § 7114(a)(2)(B),
and (b) post appropriate notices at the Huntsville facility.
NASA, 50
NASA and NASA-OIG petitioned for review, asking whether the
NASA-OIG investigator was a "representative" of NASA, and whether
it was proper to grant relief against NASA as well as its OIG. The
Court of Appeals upheld the Authority's rulings on both questions
and granted the
233
Authority's application for enforcement of its order.
120 F.3d
1208, 1215-1217 (CAll 1997). Because of disagreement among the
Circuit Courts over the applicability of § 7114(a)(2)(B) in such
circumstances, see
FLRA v.
United States Dept. of
Justice, 137 F.3d
683 (CA2 1997);
United States Dept. of Justice v.
FLRA, 39 F.3d
361 (CADC 1994); Defense Criminal Investigative
Servo v.
FLRA, 855 F.2d
93 (CA3 1988), we granted certiorari. 525 U. S. 960
(1998).
II
The FSLMRS provides, in relevant part,
"(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." 5 U. S. C. §
7114(a).
In this case it is undisputed that the employee reasonably
believed the investigation could result in discipline against him,
that he requested union representation, that NASA is the relevant
"agency," and that, if the provision applies, a violation of §
7114(a)(2)(B) occurred. The contested issue is whether a NASA-OIG
investigator can be considered a "representative" of NASA when
conducting an employee examination covered by § 7114(a)(2)(B).
NASA and its OIG argue that, when § 7114(a)(2)(B) is read in
context and compared with the similar right to union representation
protected in the private sector by the National Labor Relations Act
(NLRA), the term "representative"
234
refers only to a representative of agency management"i.
e., the entity that has a collective bargaining relationship
with the employee's union." Brief for Petitioners 13. Neither NASA
nor NASA-OIG has such a relationship with the employee's union at
the Huntsville facility, see 5 U. S. C. § 7112(b)(7) (excluding
certain agency investigators and auditors from "appropriate"
bargaining units), and so the investigator in this case could not
have been a "representative" of the relevant "entity."
By its terms, § 7114(a)(2)(B) is not limited to investigations
conducted by certain "entit[ies]" within the agency in question. It
simply refers to representatives of "the agency," which, all agree,
means NASA. Cf. § 7114(a)(2) (referring to employees "in the unit"
and an exclusive representative "of an appropriate unit in an
agency"). Thus, relying on prior rulings, the Authority found no
basis in the FSLMRS or its legislative history to support the
limited reading advocated by NASA and its OIG. The Authority
reasoned that adopting their proposal might erode the right by
encouraging the use of investigative conduits outside the
employee's bargaining unit, and would otherwise frustrate Congress'
apparent policy of protecting certain federal employees when they
are examined and justifiably fear disciplinary action. 50 F. L. R.
A., at 615, and n. 12. That is, the risk to the employee is not
necessarily related to which component of an agency conducts the
examination. See App. to Pet. for Cert. 65a (information obtained
by NASA-OIG is referred to agency officials for administrative or
disciplinary action).
In resolving this issue, the Authority was interpreting the
statute Congress directed it to implement and administer. 5 U. S.
C. § 7105. The Authority's conclusion is certainly consistent with
the FSLMRS and, to the extent the statute and congressional intent
are unclear, we may rely on the Authority's reasonable judgment.
See
Federal Employees v.
Department of Interior,
526 U. S. 86,
98-100 (1999);
Fort Stewart Schools v.
FLRA, 495 U. S. 641, 644-645
(1990).
235
Despite the text of the statute and the Authority's views, NASA
and NASA-OIG advance three reasons for their narrow reading. First,
the language at issue is contained in a larger section addressing
rights and duties related to collective bargaining; indeed, 5 U. S.
C. § 7114 is entitled "Representation rights and duties." Thus,
other subsections define the union's right to exclusive
representation of employees in the bargaining unit, § 7114(a)(1);
its right to participate in grievance proceedings, § 7114(a)(2)(A);
and its right and duty to engage in good-faith collective
bargaining with the agency, §§ 7114(a)(4), (b). That context helps
explain why the right granted in § 7114(a)(2)(B) is limited to
situations in which the employee "reasonably believes that the
examination may result in disciplinary action"-a condition
restricting the right to union presence or participation in
investigatory examinations that do not threaten the witness'
employment. We find nothing in this context, however, suggesting
that an examination that obviously presents the risk of employee
discipline is nevertheless outside the coverage of the section
because it is conducted by an investigator housed in one office of
NASA rather than another. On this point, NASA's internal
organization is irrelevant.
Second, the phrase "representative of the agency" is used in two
other places in the FSLMRS where it may refer to representatives of
agency management acting in their capacity as actual or prospective
parties to a collectivebargaining agreement. One reference pertains
to grievances, § 7114(a)(2)(A), and the other to the bargaining
process itself, § 7103(a)(12) (defining "collective bargaining").
NASA and NASA-OIG submit that the phrase at issue should ordinarily
retain the same meaning wherever used in the same statute, and we
agree. But even accepting NASA's and NASA-OIG's characterization of
§§ 7114(a)(2)(A) and 7103(a)(12), the fact that some
"representative[s] of the agency" may perform functions relating to
grievances and bargaining does not mean that other personnel who
conduct
236
examinations covered by § 7114(a)(2)(B) are not also fairly
characterized as agency "representative[sJ." As an organization, an
agency must rely on a variety of representatives to carry out its
functions and, though acting in different capacities, each may be
acting for, and on behalf of, the agency.
Third, NASA and NASA-OIG assert that their narrow construction
is supported by the history and purpose of § 7114(a)(2)(B). As is
evident from statements by the author of the provision 1 as well as
similar text in
NLRB v.
J. Weingarten, Inc.,
420 U. S. 251
(1975), this section of the FSLMRS was patterned after that
decision. In
Weingarten, we upheld the National Labor
Relations Board's conclusion 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.
Id., at 252-253, 256. We reasoned that the Board's position
was consistent with the employee's right under § 7 of the NLRA to
engage in concerted activities.
Id., at 260. Given that
history, NASA and its OIG contend that the comparable provision in
the FSLMRS should be limited to investigations by representatives
of that part of agency management with responsibility for
collectively bargaining with the employee's union.
This argument ignores the important difference between the text
of the NLRA and the text of the FSLMRS. That the general protection
afforded to employees by § 7 of the NLRA provided a sufficient
basis for the Board's recognition of a novel right in the private
sector, see
id., at 260-262,
1 Congressman Udall, whose substitute contained the section at
issue, explained that the "provisions concerning investigatory
interviews reflect the ... holding in"
Weingarten. 124 Congo
Rec. 29184 (1978); Legislative History of the Federal Service
Labor-Management Relations Statute, Title VII of the Civil Service
Reform Act of 1978 (Committee Print compiled for the House
Subcommittee on Postal Personnel and Modernization of the Committee
on Post Office and Civil Service), Ser. No. 96-7, p. 926 (1979)
(hereinafter FSLMRS Leg. Hist.); see
NASA, 50 F. L. R. A.
601, 606 (1995).
237
266-267, does not justify the conclusion that the text of the
FSLMRS-which expressly grants a comparable right to employees in
the public sector-should be narrowly construed to cover some, but
not all, interviews conducted by agency representatives that have a
disciplinary potential. Congress' specific endorsement of a
Government employee's right to union representation by
incorporating it in the text of the FSLMRS gives that right a
different foundation than if it were merely the product of an
agency's attempt to elaborate on a more general provision in light
of broad statutory purposes.2 The basis for the right to union
representation in this context cannot compel the uncodified
limitation proposed by NASA and its OIG.
Employing ordinary tools of statutory construction, in
combination with the Authority's position on the matter, we have no
difficulty concluding that § 7114(a)(2)(B) is not limited to agency
investigators representing an "entity" that collectively bargains
with the employee's union.
III
Much of the disagreement in this case involves the interplay
between the FSLMRS and the IGA. On NASA's and NASA-OIG's view, a
proper understanding of the IGA precludes treating OIG personnel as
"representative[s]" of the agencies they are duty-bound to audit
and investigate. They add that the Authority has no congressional
mandate or expertise with respect to the IGA, and thus we owe the
Authority no deference on this score. It is unnecessary for us to
defer, however, because a careful review of the relevant IGA
provisions plainly favors the Authority's position.
2 See
id., at 608, n. 5 (Congress recognized that the
right to union representation might evolve differently in the
federal and private sectors); R. R. Conf. Rep. No. 95-1717, p. 156
(1978), FSLMRS Leg. Rist. 824; cf.
Karahalios v.
Federal
Employees, 489 U.
S. 527, 534 (1989) (the FSLMRS "is not a carbon copy of the
NLRA").
238
Section 2 of the IGA explains the purpose of the Act and
establishes "an office of Inspector General" in each of a list of
identified federal agencies, thereby consolidating audit and
investigation responsibilities into one agency component. It
provides:
"In order to create independent and objective units"(1) to
conduct and supervise audits and investigations relating to the
programs and operations of the establishments listed in section
11(2);
"(2) to 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; and
"(3) to provide a means for keeping the head of the
establishment and the Congress fully and currently informed about
problems and deficiencies relating to the administration of such
programs and operations and the necessity for and progress of
corrective action;
"there is hereby established in each of such establishments an
office of Inspector General." 5 U. S. C. App. §2, p. 1381.
NASA is one of more than 20 "establishment[sJ" now listed in §
11(2).3
Section 3 of the IGA provides that each of the offices created
by § 2 shall be headed by an Inspector General appointed by the
President, and confirmed by 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 adminis-
3 Such establishments are described as "agencies" in other
federal legislation, such as the FSLMRS. See 5 U. S. C. §§ 101-105,
7103(a)(3). Note also that other OIG's were created by subsequent
amendments to the IGA and may be structured differently than those
OIGs, such as NASA's, discussed in the text. See,
e.
g., 5 U. S. C. App. §§8, 8E, 8G.
239
tration, or investigations." § 3(a). Each of these Inspectors
General "shall report to and be under the general supervision of
the head of the establishment involved or, to the extent such
authority is delegated, the officer next in rank below such head,"
but shall not be subject to supervision by any lesser officer.
Ibid. Moreover, an Inspector General's seniors within the
agency may not "prevent or prohibit" the Inspector General from
initiating or conducting any audit or investigation.
Ibid.;
see also § 6(a)(2). The President retains the power to remove an
Inspector General from office. § 3(b).
Section 4 contains a detailed description of the duties of each
Inspector General with respect to the agency "within which his
Office is established." § 4(a). Those duties include conducting
audits and investigations, recommending new policies, reviewing
legislation, and keeping the head of the agency and the Congress
"fully and currently informed" through such means as detailed,
semiannual reports. §§ 4(a)(1)-(5). Pursuant to § 5, those reports
must be furnished to the head of the agency, who, in turn, must
forward them to the appropriate committee or subcommittee of
Congress with such comment as the agency head deems appropriate. §
5(b)(1); see also § 5(d). Section 6 grants the Inspectors General
specific authority in a variety of areas to facilitate the mission
of their offices. Accordingly, Inspectors General possess
discretion to conduct investigations "relating to the
administration of the programs and operations of the applicable"
agency, § 6(a)(2); the ability to request information and
assistance from Government agencies, § 6(a)(3); access to the head
of the agency, § 6(a)(6); and the power to hire employees, enter
into contracts, and spend congressionally appropriated funds, §§
6(a)(7), (9); see also § 3(d). Finally, § 9(a)(1)(P) provides for
the transfer of the functions previously performed by NASA's"
'Management Audit Office' and the 'Office of Inspections and
Security''' to NASA-OIG.
240
The IGA created no central office or officer to supervise,
direct, or coordinate the work of all OIG's and their respective
staffs. Other than congressional committees (which are the
recipients of the reports prepared by each Inspector General) and
the President (who has the power to remove an Inspector General),
each Inspector General has no supervising authority-except the head
of the agency of which the OIG is a part. There is no "OIG-OIG."
Thus, for example, NASA-OIG maintains an office at NASA's
Huntsville facility, which reports to NASA-OIG in Washington, and
then to the NASA Administrator, who is the head of the agency. §
11(1); 50 F. L. R. A., at 602.4 In conducting their work, Congress
certainly intended that the various OIG's would enjoy a great deal
of autonomy. But unlike the jurisdiction of many law enforcement
agencies, an OIG's investigative office, as contemplated by the
IGA, is performed with regard to, and on behalf of, the particular
agency in which it is stationed. See 5 U. S. C. App. §§ 2, 4(a),
6(a)(2). In common parlance, the investigators employed in NASA's
OIG are unquestionably "representatives" of NASA when acting within
the scope of their employment.
Minimizing the significance of this statutory plan, NASA and
NASA-OIG emphasize the potentially divergent interests of the OIG's
and their parent agencies. To be sure, OIG's maintain authority to
initiate and conduct investigations and audits without interference
from the head of the agency. § 3(a). And the ability to proceed
without consent from agency higher-ups is vital to effectuating
Congress' intent and maintaining an opportunity for objective
inquiries into bureaucratic waste, fraud, abuse, and
mismanagement.5
4 At oral argument, NASA and NASA-OIG indicated that the
Administrator's general supervision authority includes the ability
to require its Inspector General to comply with,
inter alia,
equal employment opportunity regulations. Tr. of Oral Arg. 5.
5See §2; S. Rep. No. 95-1071, pp. 1,5-7,9 (1978); H. R. Rep. No.
95-584, pp. 2, 5-6 (1977).
241
But those characteristics do not make NASA-OIG any less a
representative of NASA when it investigates a NASA employee. That
certain officials within an agency, based on their views of the
agency's best interests or their own, might oppose an OIG
investigation does not tell us whether the investigators are
"representatives" of the agency during the course of their duties.
As far as the IGA is concerned, NASA-OIG's investigators are
employed by, act on behalf of, and operate for the benefit of
NASA.
Furthermore, NASA and NASA-OIG overstate the inherent conflict
between an OIG and its agency. The investigation in this case was
initiated by NASA's OIG on the basis of information provided by the
FBI, but nothing in the IGA indicates that, if the information had
been supplied by the Administrator of NASA rather than the FBI,
NASA-OIG would have had any lesser obligation to pursue an
investigation. See §§ 4(a)(1), (d), 7; S. Rep. No. 95-1071, p. 26
(1978). The statute does not suggest that one can determine whether
the OIG personnel engaged in such an investigation are
"representatives" of NASA based on the source of the information
prompting an investigation. Therefore, it must be NASA's and
NASA-OIG's position that even when an OIG conducts an investigation
in response to a specific request from the head of an agency, an
employee engaged in that assignment is not a "representative" of
the agency within the meaning of § 7114(a)(2)(B) of the FSLMRS.
Such management-prompted investigations are not rare.6
6 See, e. g., United States INS, 46 F. L. R. A. 1210, 1226-1231
(1993), review den. sub nom. American Federation of Govt.
Employees, AFLCIO, Local 1917 v. FLRA,
22 F.3d
1184 (CADC 1994); United States Dept. of Justice, INS, 46 F. L.
R. A. 1526, 1549 (1993), review granted sub nom. United States
Dept. of Justice v. FLRA,
39 F.3d
361 (CADC 1994); Department of Defense, Defense Criminal
Investigative Serv., 28 F. L. R. A. 1145, 1157-1159 (1987), enf'd
sub nom. Defense Criminal Investigative Servo V. FLRA,
855 F.2d
93 (CA3 1988); see also Martin V. United States, 20 Cl. Ct.
738, 740-741 (1990).
242
Thus, not all OIG examinations subject to § 7114(a)(2)(B) will
implicate an actual or apparent conflict of interest with the rest
of the agency; and in many cases we can expect honest cooperation
between an OIG and management-level agency personnel. That
conclusion becomes more obvious when the practical operation of OIG
interviews and § 7114(a)(2)(B) rights are considered. The IGA
grants Inspectors General the authority to subpoena documents and
information, but not witnesses. 5 U. S. C. App. § 6(a)(4). Nor does
the IGA allow an OIG to discipline an agency employee, as all
parties to this case agree. There may be other incentives for
employee cooperation with OIG investigations, but formal sanctions
for refusing to submit to an OIG interview cannot be pursued by the
OIG alone. Such limitations on OIG authority enhance the likelihood
and importance of cooperation between the agency and its OIG. See
generally §§ 6(a)(3), (b)(1)-(2) (addressing an Inspector General's
authority to request assistance from others in the agency, and
their duty to respond); §§ 4(a)(5), (d); 50 F. L. R. A., at 616;
App. to Pet. for Cert. 65a (noting information sharing between
NASA-OIG and other agency officials). Thus, if the NASA-OIG
investigator in this case told the employee that he would face
dismissal if he refused to answer questions, 120 F. 3d, at 1210, n.
2, the investigator invoked NASA's authority, not his own.7
7 In fact, a violation of § 7114(a)(2)(B) seems less likely to
occur when the agency and its OIG are not acting in concert. Under
the Authority's construction of the FSLMRS, when an employee within
the unit makes a valid request for union representation, an OIG
investigator does
not commit an unfair labor practice by (1)
halting the examination, or (2) offering the employee a choice
between proceeding without representation and discontinuing the
examination altogether.
United States Dept. of Justice, Bureau
of Prisons, 27 F. L. R. A. 874, 879-880 (1987); see also
NLRB v.
J. Weingarten, Inc., 420 U. S. 251, 258-260
(1975). Disciplining an employee for his or her choice to demand
union participation or to discontinue an examination would
presumably violate the statute, but such responses require more
authority than Congress granted the OIG's in the IGA.
243
Considering NASA-OIG's statutorily defined role within the
agency, we cannot conclude that the proper operation of the IGA
requires nullification of § 7114(a)(2)(B) in all OIG
examinations.
IV
Although NASA's and NASA-OIG's narrow reading of the phrase
"representative of the agency" is supported by the text of neither
the FSLMRS nor the IGA, they also present broader-but ultimately
unpersuasive-arguments of policy to defeat the application of §
7114(a)(2)(B) to OIG investigations.
First, NASA and NASA-OIG contend that enforcing § 7114(a)(2)(B)
in situations similar to this case would undermine NASA-OIG's
ability to maintain the confidentiality of investigations,
particularly those investigations conducted jointly with law
enforcement agencies. Cf. 5 U. S. C. App. §§ 5(e)(1)(C), (e)(2)
(restricting OIG disclosure of information that is part of an
ongoing criminal investigation). NASA and its OIG are no doubt
correct in suggesting that the presence of a union representative
at an examination will increase the likelihood that its contents
will be disclosed to third parties. That possibility is, however,
always present:
NASA and NASA-OIG identify no legal authority restricting an
employee's ability to discuss the matter with others. Furthermore,
an employee cannot demand the attendance of a union representative
when an OIG examination does not involve reasonably apparent
potential discipline for that employee. Interviewing an employee
who may have information relating to agency maladministration, but
who is not himself under suspicion, ordinarily will not trigger the
right to union representation. Thus, a variety of OIG
investigations and interviews-and many in which confidentiality
concerns are heightened-will not implicate § 7114(a)(2)(B) at all.
Though legitimate, NASA's and NASA-OIG's confidentiality concerns
are not weighty enough to justify a
244
nontextual construction of § 7114(a)(2)(B) rejected by the
Authority.
Second, NASA and its OIG submit that, in other instances, the
Authority has construed § 7114(a)(2)(B) so broadly that it will
impair NASA-OIG's ability to perform its investigatory
responsibilities. The Authority responds that it has been sensitive
to agencies' investigative needs in other cases, and that union
representation is unrelated to OIG independence from agency
interference. Whatever the propriety of the Authority's rulings in
other cases, NASA and NASA-OIG elected not to challenge the
Authority's conclusion that the NASA-OIG examiner's attempt to
limit union representative participation constituted an unfair
labor practice. To resolve the question presented in this case, we
need not agree or disagree with the Authority's various rulings
regarding the scope of § 7114(a)(2)(B), nor must we consider
whether the outer limits of the Authority's interpretation so
obstruct the performance of an OIG's statutory responsibilities
that the right must be more confined in this context.8
In any event, the 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 work force. The interest in
fair treatment for employees under
8The same can be said of NASA's and NASA-OIG's concerns that the
reach of § 7114(a)(2)(B) will become the subject of collective
bargaining between agencies and unions, or hinder joint or
independent FBI investigations of federal employees. See
United
States Nuclear Regulatory Comm'n v.
FLRA,
25 F.3d
229 (CA4 1994) (adopting the agency's position that it
could not bargain over certain procedures by which its OIG conducts
investigatory interviews); 50 F. L. R. A., at 616, n. 13
(distinguishing FBI investigations). The process by which the scope
of § 7114(a)(2)(B) may properly be determined, and the application
of that section to law enforcement officials with a broader charge,
present distinct questions not now before us.
245
investigation is equally strong whether they are being
questioned by employees in NASA's OIG or by other representatives
of the agency. And, as we indicated in
Weingarten,
representation is not the equivalent of obstruction. See 420 U. S.,
at 262-264. In many cases the participation of a union
representative will facilitate the factfinding process and a fair
resolution of an agency investigation-or at least Congress must
have thought so.
Whenever a procedural protection plays a meaningful role in an
investigation, it may impose some burden on the investigators or
agency managers in pursuing their mission. We must presume,
however, that Congress took account of the policy concerns on both
sides of the balance when it decided to enact the IGA and, on the
heels of that statute, § 7114(a)(2)(B).9
9 The dissent does not dispute much of our analysis; it
indicates that NASA-OIG is an "ar[m]" of NASA "work[ing] to promote
overall agency concerns."
Post, at 260. The dissent's
premise is that the Authority determined that the phrase
"representative of the agency" means "representative of ... agency
[management]," and that this issue is now uncontested. See
post, at 246-247, 248-259, 262. But see
post, at 251,
n. 3. Putting aside the fact that NASA's and NASA-OIG's
construction of the statute-however one interprets their
argument-is very much in dispute, see Brief for Respondent American
Federation of Government Employees, AFL-CIO 26-32; Brieffor
Respondent FLRA 23-25, 31, and the rule that litigants cannot bind
us to an erroneous interpretation of federal legislation, see
Roberts v.
Galen of Va., Inc., 525 U. S. 249, 253
(1999), we have ignored neither the actual rationale of the
Authority's decision in this case nor NASA's and NASA-OIG's
arguments before this Court. Focusing on its plain reasoning, we
cannot fairly read the Authority's decision as turning on whether
NASA "management" was involved. The Authority emphasized that
FSLMRS rights do not depend on "the organizational entity within
the agency to whom the person conducting the examination reports";
and in discussing NASA-OIG's role within the agency, the
Authority's decision repeatedly refers to NASA headquarters
together with its components-that is, to the agency as a whole. 50
F. L. R. A., at 615-616;
id., at 621 (noting "the
investigative role that OIG's perform for the agency" and
concluding that NASA-OIG "represents" not only its own interests,
"but ultimately NASA [headquarters] and its subcomponent of-
246
V
Finally, NASA argues that it was error for the Authority to make
NASA itself, as well as NASA's OIG, a party to the enforcement
order because NASA has no authority over the manner in which
NASA-OIG conducts its investigations. However, our conclusion that
the investigator in this case was acting as a "representative" of
NASA for purposes of § 7114(a)(2)(B) makes it appropriate to charge
NASA-OIG, as well as the parent agency to which it reports and for
which it acts, with responsibility for ensuring that such
investigations are conducted in compliance with the FSLMRS. NASA's
Administrator retains general supervisory authority over NASA's
OIG, 5 U. S. C. App. § 3(a), and the remedy imposed by the
Authority does not require NASA to interfere unduly with OIG
prerogatives. NASA and NASA-OIG offer no convincing reason to
believe that the Authority's remedy is inappropriate in view of the
IGA, or that it will be ineffective in protecting the limited right
of union representation secured by § 7114(a)(2)(B). See generally 5
U. S. C. §§ 706, 7123(c).
The judgment of the Court of Appeals is
Affirmed.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,
and JUSTICE SCALIA join, dissenting.
In light of the independence guaranteed Inspectors General by
the Inspector General Act of 1978, 5 U. S. C. App. § 1
et
seq., p. 1381, investigators employed in the Office of
Inspector General (OIG) will not represent agency management in the
typical case. There is no basis for concluding, as the Federal
Labor Relations Authority (Authority)
fices"). Nowhere did the Authority rely on the assertion that
OIG's act as "agency management's agent," a term coined by the
dissent.
Post, at 253.
247
did, that in this case the investigator from OIG for the
National Aeronautics and Space Administration
was a
"representative of the agency" within the meaning of 5 U. S. C. §
7114(a)(2)(B). I respectfully dissent.
I
The National Aeronautics and Space Administration is
headquartered in Washington, D. C. Among other agency subcomponents
are the George C. Marshall Space Flight Center (Marshall Center),
located in Huntsville, Alabama, and the Office of Inspector
General, which is headquartered in Washington, D.
C., but
maintains offices in all of the agency's other subcomponents,
including the Marshall Center. In January 1993, the Federal Bureau
of Investigation received information that an employee of the
Marshall Center, who is referred to in the record only as "P," was
suspected of spying upon and threatening various co-workers. The
FBI referred the matter directly to NASA's OIG, and an investigator
for that Office who was stationed at the Marshall Center was
assigned the case. He contacted P, who agreed to be interviewed so
long as his attorney and a union representative were present; the
investigator accepted P's conditions. App. to Pet. for Cert. 61a.
At the interview, OIG's investigator read certain ground rules,
which provided,
inter alia, that the union representative
was" 'not to interrupt the question and answer process.'"
Ibid.1 The union filed an unfair labor practice charge,
claiming that the interview was not conducted in accordance with
the requirements of 5 U. S. C. § 7114(a)(2)(B), as the Authority
has interpreted that provision. The Authority's General Counsel
issued a complaint to that effect, and the Authority found that
1 It appears that OIG's inspector informed P that he would face
dismissal if he did not answer the questions put to him. See
120 F.3d
1208, 1210, n. 2 (CAll 1997).
248
NASA headquarters and NASA's OIG had committed unfair labor
practices. On review, the Court of Appeals for the Eleventh Circuit
granted the Authority's application for enforcement of its order.
120 F.3d
1208 (1997).
As the Court correctly recognizes,
ante, at 233, several
points are not in dispute at this stage of the litigation. The fact
that P requested union representation and reasonably believed that
disciplinary action might be taken against him on the basis of
information developed during the examination has never been in
dispute in this case. See
NASA, 50 F. L. R. A. 601, 606, n.
4 (1995). Although petitioners contested the matter before the
Authority, on review in the Eleventh Circuit, they conceded that
OIG's investigator conducted the interview of P in a way that did
not comport with what § 7114(a)(2)(B) requires. See 120 F. 3d, at
1211. And all parties agree that the relevant "agency" for purposes
of § 7114(a)(2)(B) is NASA. One other point is not disputedthe
"representative" to which § 7114(a)(2)(B) refers must represent
agency management, not just the agency in some general sense as the
Court suggests,
ante, at 233-234, 240. See 50 F. L. R. A.,
at 614 (" '[R]epresentative of the agency' under section
7114(a)(2)(B) should not be so narrowly construed as to exclude
management personnel employed in other subcomponents of the
agency");
id., at 615 (" 'We doubt that Congress intended
that union representation be denied to the employee solely because
the management representative is employed outside the bargaining
unit''') (quoting
Defense Criminal Investigative Servo v.
FLRA, 855 F.2d
93, 99
(CA3 1988)); Brief for Respondent FLRA 16 ("The
Authority has determined that the phrase 'representative of the
agency' should not be so narrowly construed as to exclude
management personnel, such as the OIG, who are located in other
components of the agency");
id., at 21; Reply Brief for
Petitioners 1 ("[A] 'representative of the agency' in Section
7114(a)(2)(B) must be a representative of agency
management").
249
Since an agency's stated reasons for decision are important in
any case reviewing agency action, I summarize in some detail what
the Authority actually said in this case. It began by stating its
conclusion:
"We reach this conclusion based upon our determination that: (1)
the term 'representative of the agency' under section 7114(a)(2)(B)
should not be so narrowly construed as to exclude management
personnel employed in other subcomponents of the agency; (2) the
statutory independence of agency OIGs is not determinative of
whether the investigatory interviews implicate section
7114(a)(2)(B) rights; and (3) section 7114(a)(2)(B) and the IG Act
are not irreconcilable." 50 F. L. R. A., at 614.
The Authority headed its discussion of its first determination
"Section 7114(a)(2)(B) Covers the Actions of Management Personnel
Employed in Other Subcomponents of the Agency."
Id., at 615.
This statement appears to suggest OIG itself is part of agency
management. But the remainder of the Authority's discussion appears
to advance a different theory-one that OIG serves as agency
management's
agent because OIG inspectors ultimately report
to NASA's Administrator, see
ibid. (OIG's investigator,
"although employed in a separate component from the MSFC, is an
employee of and ultimately reports to the head of NASA"), and
because OIG provides information to management that sometimes
results in discipline to union employees,
ibid. ("OIG not
only provides investigatory information to NASA [headquarters] but
also to other NASA subcomponent offices"); see also
id., at
616 (Congress would regard an OIG investigator as a representative
of the agency because "[t]he information obtained during the course
of an OIG investigatory examination may be released to, and used
by, other subcomponents of NASA to support administrative or
disci-
250
plinary actions taken against unit employees").2 The Authority
recognized that the Inspector General Act grants an Inspector
General, or IG, "a degree of freedom and independence from the
parent agency."
Id., at 615. It thought, however, that the
Inspector General's autonomy "becomes nonexistent" when the IG's
investigation concerns allegations of misconduct by agency
employees in connection with their work and the information
obtained during the investigation possibly would be shared with
agency management.
Ibid. As it further explained: "[I]n some
circumstances, NASA, OIG
performs an investigatory role for
NASA [headquarters] and its subcomponents, specifically [the
Marshall Center]."
Id., at 616 (emphasis added). Moreover,
the Authority reasoned, the Inspector General "plays an integral
role in assisting the agency and its subcomponent offices in
meeting the agency's objectives."
Id., at 617. In light of
all this, the Authority concluded:
"Plainly, the IG represents and safeguards the entire agency's
interests when it investigates the actions of the agency's
employees. Such activities support, rather than threaten, broader
agency interests and make the IG a participant, with other agency
components, in meeting various statutory obligations, including the
agency's labor relations obligations under the Statute."
Ibid.
2 The Authority also relied on a policy ground here. It asserted
that there was "no basis in the Statute or its legislative history
to make the existence of [the representational rights provided by §
7114] dependent upon the organizational entity within the agency to
whom the person conducting the examination reports." 50 F. L. R.
A., at 615. It elaborated, in a footnote, that "[i]f such were the
case, agencies could abridge bargaining unit rights and evade
statutory responsibilities under section 7114(a)(2)(B), and thus
thwart the intent of Congress, by utilizing personnel from other
subcomponents (such as the OIG) to conduct investigative interviews
of bargaining unit employees."
Id., at 615, n. 12.
251
II
The Authority's recognition that § 7114(a)(2)(B) protections are
only triggered when an investigation is conducted by, or on behalf
of, agency management, is important and hardly surprising. See,
e. g., 50 F. L. R. A., at 614 ("section 7114(a)(2)(B)
should not be so narrowly construed as to exclude
management
personnel employed in other subcomponents of the agency"
(emphasis added)); Brief for Respondent FLRA 21 ("The Authority's
conclusion that the word 'representative,' or phrase
'representative of the agency,' includes
management
personnel in other subcomponents of the 'agency' is entirely
consistent with the language of the [Federal Service
Labor-Management Relations Statute]" (emphasis added)). It is
important because the Court seems to think it enough that NASA's
OIG represent NASA in some broad and general sense. But as the
Authority's own opinion makes clear, that is not enough-NASA's OIG
must represent NASA's management to qualify as a "representative of
the agency" within the meaning of § 7114(a)(2)(B). The Authority's
position is hardly surprising in that the Federal Service
Labor-Management Relations Statute (FSLMRS) plainly means just
that.3 The FSLMRS governs labormanagement relations in the federal
sector. Section 7114(a)(2)(B) is captioned "[r]epresentation rights
and duties," and every employee right contained therein flows from
the collective-bargaining relationship.4 As petitioners note,
3 Although it is significant that the Authority recognized below
and recognizes here that the statutory phrase "representative of
the agency" refers to a representative of agency management, I do
not, as the Court asserts,
ante, at 245-246, n. 9, rest the
argument on the premise that the point is conceded. Rather, in
light of the context in which the phrase appears, and in light of
the very subject matter of the statute, the phrase plainly has that
meaning.
4 Section 7114(a)(1) details what "[a] labor organization which
has been accorded exclusive recognition" is entitled to and must
do; § 7114(a)(2) indicates when an exclusive representative may be
present at discussions or examinations conducted by agency
management; § 7114(a)(3) requires
252
in each of the three instances where the FSLMRS refers to an
agency representative, it does so in the context of the
collective-bargaining relationship between management and labor.
See §§ 7103(a)(12), 7114(a)(2)(A), 7114(a)(2)(B).5
Investigators within NASA's OIG might be "representatives of the
agency" in two ways. First, if NASA's Inspector General and NASA's
OIG itself were part of agency management, I suppose that employees
of the Office necessarily would be representatives of agency
management. But, to the extent that the Authority meant to hold
that, there is no
agency management annually to inform its employees of their
rights under § 7114(a)(2)(B); § 7114(a)(4) obligates management and
the exclusive representative to bargain in good faith for purposes
of arriving at a collectivebargaining agreement; § 7114(a)(5)
provides that the rights of an exclusive representative do not
limit an employee's right to seek other representation, for
example, legal counsel; § 7114(b) speaks to the duty of good faith
imposed on management and the exclusive representative under §
7114(a)(4); and § 7114(c) requires the head of the agency to
approve all collective-bargaining agreements.
5 I disagree with the Court as to the proper reading of
petitioners' argument that the phrase "representative of the
agency" refers only to the entity that has a collective-bargaining
relationship with a union. I do not take petitioners to mean that
OIG's representative did not represent the "agency," NASA, for the
simple reason that only Space Center management had a
collective-bargaining relationship with P's union. If that were
truly petitioners' view, its later argument that OIG cannot
represent NASA because the IG is substantially independent from the
agency head would not make sense-it would be enough for petitioners
to argue that OIG is not under the control of the Marshall Center's
management. Rather, as petitioners make clear in their reply brief,
they are simply arguing that "a 'representative of the agency' must
be a representative of agency management, as opposed to just
another employee." Reply Brief for Petitioners 2, and n. 4. It
appears that they would agree, in accordance with the Authority's
precedent, see,
e. g., Air Force Logistics Command, 46 F. L.
R. A. 1184, 1186 (1993);
Department of Health and Human
Services, 39 F. L. R. A. 298, 311-312 (1991), that NASA
headquarters also qualifies as agency management under the FSLMRS,
even though it lacks a direct collective-bargaining relationship
with a union, because it directs its subordinate managers who have
such a collective-bargaining relationship.
253
basis for its conclusion. OIG has no authority over persons
employed within the agency outside of its Office and similarly has
no authority to direct agency personnel outside of the Office.
Inspectors General, moreover, have no authority under the Inspector
General Act to punish agency employees, to take corrective action
with respect to agency programs, or to implement any reforms in
agency programs that they might recommend on their own. See
generally
Inspector General Authority to Conduct Regulatory
Investigations, 13 Op. Off. Legal Counsel 54, 55 (1989);
Congressional Research Service, Report for Congress, Statutory
Offices of Inspector General: A 20th Anniversary Review 7 (Nov.
1998). The Inspector General is charged with,
inter alia,
investigating suspected waste, fraud, and abuse, see 5 U. S. C.
App. §§ 2, 4, 6, and making policy recommendations (which the
agency head is not obliged to accept), see §§ 4(a)(3), (4), but the
Inspector General Act bars the Inspector General from participating
in the performance of agency management functions, see § 9(a).
Moreover, OIG is not permitted to be party to a
collective-bargaining relationship. See 5 U. S. C. § 7112(b)(7)
(prohibiting "any employee primarily engaged in investigation or
audit functions" from participating in a bargaining unit).
Investigators within NASA's OIG might "represent" the agency if
they acted as agency management's representative-essentially, if
OIG was agency management's agent or somehow derived its authority
from agency management when investigating union employees. And
something akin to an agency theory appears to be the primary basis
for the Authority's decision. The agency theory does have a textual
basis-§ 7114(a)(2)(B)'s term "representative," as is relevant in
this context, can mean "standing for or in the place of another:
acting for another or others: constituting the agent for another
esp[ecially] through delegated authority," or "one that represents
another as agent, deputy, substitute, or delegate usu[ally] being
invested with the authority of the princi-
254
pal." Webster's Third New International Dictionary 19261927
(1976); see also Webster's New International Dictionary 2114 (2d
ed. 1957) ("[b]eing, or acting as, the agent for another, esp.
through delegated authority"). The agency notion, though, is
counterintuitive, given that, as the majority acknowledges,
ante, at 238, the stated purpose of the Inspector General
Act was to establish
"independent and objective units"
within agencies to conduct audits and investigations, see 5 U. S.
C. App. § 2 (emphasis added).
To be sure, NASA's OIG is a subcomponent of NASA and the
Inspector General is subject to the "general supervision," § 3(a),
of NASA's Administrator (or of the "officer next in rank below" the
Administrator,
ibid.).6 But, as the Fourth Circuit has
observed, it is hard to see how this "general supervision" amounts
to much more than "nominal" supervision. See
NRC v.
FLRA, 25 F.3d
229, 235 (1994). NASA's Inspector General does not depend upon
the Administrator's approval to obtain or to keep her job. NASA's
Inspector General must be appointed by the President and confirmed
by 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(a). Only
the President, and not NASA's Administrator, may remove the
Inspector General, and even then the President must provide
Congress with his reasons for doing so. § 3(b).7 In addition, the
Administrator has no
6 The Act provides that the Inspector General "shall not report
to, or be subject to supervision by," any other agency officer. 5
U. S. C. App. § 3(a).
7 The Court,
ante, at 240, does not report the full story
with respect to Inspector General supervision. We were told at oral
argument that Executive Order 12993, 3 CFR 171 (1996), governs the
procedures to be followed in those instances where the Inspector
General and NASA's Administrator are in conflict. Tr. of Oral Arg.
51-52. Complaints against an Inspector General are referred to a
body known as the "Integrity Committee," which is composed "of at
least the following members": an official of the FBI, who serves as
Chair of the Integrity Committee; the Special
255
control over who works for the Inspector General. Inspectors
General have the authority to appoint an Assistant Inspector
General for Auditing and another Assistant Inspector General for
Investigations, §§ 3(d)(1), (2), may "select, appoint, and employ
such officers and employees as may be necessary," § 6(a)(7), and
also are authorized to employ experts and consultants and enter
into contracts for audits, studies, and other necessary services,
see §§ 6(a)(8), (9); see generally P. Light, Monitoring Government:
Inspectors General and the Search for Accountability 175-185 (1993)
(describing the "unprecedented freedom" that IG's have under the
Inspector General Act in organizing their offices and how IG's have
enhanced their independence by exercising their statutory authority
in this regard to the fullest).
Inspectors General do not derive their authority to conduct
audits and investigate agency affairs from agency management. They
are authorized to do so directly under the Inspector General Act. 5
U. S. C. App. § 2(1). Neither NASA's Administrator, nor any other
agency official, may "prevent or prohibit the Inspector General
from initiating, carrying out, or completing any audit or
investigation, or from issuing any subpoena during the course of
any audit or investigation." § 3(a). The Administrator also may not
direct the Inspector General to undertake a particular
investigation; the Inspector General Act commits to the IG's
discretion the decision whether to investigate or report upon the
agency's programs and operations. § 6(a)(2). The Authority's
counsel argued to the contrary, but could not provide a single
example of an instance where an agency head
Counsel of the Office of Special Counsel; the Director of the
Office of Government Ethics; and three or more Inspectors General,
representing both the President's Council on Integrity and
Efficiency and the Executive Council on Integrity and Efficiency.
The Chief of the Public Integrity Section of the Criminal Division
of the Department of Justice, or his designee, serves as an advisor
to the Integrity Committee with respect to its responsibilities and
functions under the Executive Order.
256
has directed an Inspector General to conduct an investigation in
a particular manner. Tr. of Oral Arg. 40, see also
id., at
46-48 (counsel for respondent American Federation of Government
Employees (AFGE) also unable to provide an example of agency head
direction of OIG investigation). The Authority's counsel also could
not support his assertion that agency heads have the power to
direct the Inspector General to comply with laws such as the
FSLMRS.
I d., at 41-43.
Inspectors General, furthermore, are provided a broad range of
investigatory powers under the Act. They are given access to "all
records, reports, audits, reviews, documents, papers,
recommendations, or other material" of the agency. 5 U. S. C. App.
§ 6(a)(1). They may issue subpoenas to obtain such information if
necessary, and any such subpoena is enforceable by an appropriate
United States district court. § 6(a)(4).8 The Inspector General
also may "administer to or take from any person an oath,
affirmation, or affidavit, whenever necessary." § 6(a)(5).
Inspectors General do not have the statutory authority to compel an
employee's attendance at an interview. But if an employee refuses
to attend an interview voluntarily, the Inspector General may
request assistance, § 6(a)(3), and the agency head "shall ...
furnish ... information or assistance" to OIG, § 6(b)(1).
NASA's Inspector General does, as the Authority claimed, provide
information developed in the course of her audits and
investigations to the Administrator. §§ 2(3), 4(a)(5). But she has
outside reporting obligations as well. Inspectors General must
prepare semiannual reports to Congress "summarizing the activities
of the Office." § 5. Those reports first are delivered to the
agency head, § 5(b), and the Administrator may add comments to the
report, § 5(b)(1), but
8The Inspector General, however, does not have the authority to
subpoena documents and information from other federal agencies. See
5 U. S. C. App. §§ 6(a)(4), 6(b)(1).
257
the Administrator may not prevent the report from going to
Congress and may not change or order the Inspector General to
change his report. Moreover, the Inspector General must notify the
Attorney General directly,
without notice to other agency
officials, upon discovery of "reasonable grounds to believe
there has been a violation of Federal criminal law." § 4(d).
As a practical matter, the Inspector General's independence from
agency management is understood by Members of Congress and
Executive Branch officials alike. This understanding was on display
at the recent congressional hearing on the occasion of the
Inspector General Act's 20th anniversary. For example, Senator
Thompson, Chairman of the Senate Government Affairs Committee,
stated that "[t]he overarching question we need to explore is
whether the Executive Branch is providing IGs with support and
attention adequate to ensure their independence and effectiveness."
Hearings on "The Inspector General Act: 20 Years Later" before the
Senate Committee on Governmental Affairs, 105th Cong., 2d Sess., 2
(1998). He further explained that "[t]he IGs ... are paid to give
[Congress] an independent and objective version [of] events."
Ibid. Senator Glenn, then the ranking minority member,
opined that "the IG's first responsibility continues to be program
and fiscal integrity; they are not 'tools' of management."
Id., at 7.
At those hearings, testimony was received from several
Inspectors General. June Gibbs Brown, the Inspector General for the
United States Department of Health and Human Services, praised
Secretary Shalala for "never, not even once, [seeking] to encroach
on [her] independence."
Id., at 4. In her written testimony,
she offered: "A key component of OIG independence is our direct
communication with the Members and staff of the Congress. Frankly,
I suspect that no agency head relishes the fact that IGs have, by
law, an independent relationship with oversight Committees.
Information can and must go directly from the Inspectors Gen-
258
eral to the Hill, without prior agency and administration
clearance."
Id., at 45. The testimony of Susan Gaffney, the
Inspector General for the United States Department of Housing and
Urban Development, revealed that agency managers know all too well
that the Inspector General is independent of agency management:
"[I]t is to me somewhat jolting, maybe shocking, that the
current Secretary of HUD has exhibited an extremely hostile
attitude toward the independence of the HUD OIG, and, as I have
detailed in my written testimony, he has, in fact, let this
hostility lead to a series of attacks and dirty tricks against the
HUD OIG." Id., at 6.
In her written testimony, Ms. Gaffney further explained that,
while, "[i]deally, the relationship between an IG and the agency
head is characterized by mutual respect, a common commitment to the
agency mission, and a thorough understanding and acceptance of the
vastly different roles of the IG and the agency head," the current
Secretary, in her view, was "uncomfortable with the concept of an
independent Inspector General who is not subject to his control and
who has a dual reporting responsibility."
Id., at 48-49.
The Authority essentially provided four reasons why OIG
represented agency management in this case: because OIG is a
subcomponent of NASA and subject to the "general supervision" of
its Administrator; because it provides information obtained during
the course of its investigations to NASA headquarters and its
subcomponents; because that information is sometimes used for
administrative and disciplinary purposes; and because OIG's
functions support broader agency objectives. In my view, the fact
that OIG is housed in the agency and subject to supervision (an
example of which neither the Authority nor the Court can provide)
is an insufficient basis upon which to rest the conclusion that
OIG's employees are "representatives" of agency management. It is
hard to see how OIG serves as agency management's agent
259
or representative when the Inspector General is given the
discretion to decide whether, when, and how to conduct
investigations. See 5 U. S. C. App. §§ 3(a), 6(a).9
The fact that information obtained in the course of OIG
interviews is shared with agency management and sometimes forms the
basis for employee discipline is similarly unimpressive. The Court
suggests that when this happens, OIG and agency management act in
"concert."
Ante, at 242, n. 7. The truth of the matter is
that upon receipt of information from OIG, agency management has
the
discretion to impose discipline but it need not do so.
And OIG has no determinative role in agency management's decision.
See 5 U. S. C. App. § 9(a) (Inspector General may not participate
in the performance of agency management functions). Although OIG
may provide information developed in the course of an investigation
to agency management, so, apparently, does the FBI, the DEA, and
local police departments. See,
e. g., 63 Fed. Reg.
8682 (1998) (FBI's disclosure policy); 62 Fed. Reg. 36572 (1997)
(Immigration and Naturalization Service (INS) Alien File and
Central Index System); 62 Fed. Reg. 26555 (1997) (INS Law
Enforcement Support Center
9 The Court posits,
ante, at 241, that "nothing in the
[Inspector General Act] indicates that, if the information had been
supplied by the Administrator of NASA rather than the FBI, NASA-OIG
would have had any lesser obligation to pursue an investigation."
It appears shocked at the proposition that petitioners might think
that "even when an OIG conducts an investigation in response to a
specific request from the head of an agency, an employee engaged in
that assignment is not a 'representative' of the agency within the
meaning of [5 U. S.
C.] § 7114(a)(2)(B)."
Ibid. The
answer to the Court is quite simple. So far as the Inspector
General Act reveals, OIG has no obligation to pursue any particular
investigation. And presumably the Court would agree that if NASA's
Administrator referred a matter to the FBI or the Drug Enforcement
Administration (DEA) (who also, we are told, rely on agency
management to compel an employee's appearance at an interview,
Reply Brief for Petitioners 5-6), those independent agencies would
not "represent" the agency. I fail to see how it is different when
the investigatory unit, although independent from agency
management, is housed within the agency.
260
Database); 61 Fed. Reg. 54219 (1996) (DEA); 60 Fed. Reg. 56648
(1995) (Secret Service, Bureau of Alcohol, Tobacco, and Firearms,
and other Treasury components); 60 Fed. Reg. 18853 (1995) (United
States Marshals Service (USMS)); 54 Fed. Reg. 42060 (1989) (FBI,
USMS, and various Department of Justice record systems); see also
31 CFR § 1.36 (1998) (listing routine uses and other exemptions in
disclosure of Treasury agencies' records). Surely it would not be
reasonable to consider an FBI agent to be a "representative" of
agency management just because information developed in the course
of his investigation of a union employee may be provided to agency
management. Merely providing information does not establish an
agency relationship between management and the provider.
Similarly, the fact that OIG may promote broader agency
objectives does not mean that it acts as management's agent. To be
sure, as the Court points out,
ante, at 240, OIG's mission
is to conduct audits and investigations of the
agency's
programs and operations. See 5 U. S. C. App. §§ 2, 4(a). But just
because two arms of the same agency work to promote overall agency
concerns does not make one the other's representative. In any
event, OIG serves more than just agency concerns. It also provides
the separate function of keeping Congress aware of agency
developments, a function that is of substantial assistance to the
congressional oversight function.
The Court mentions,
ante, at 242, that the Inspector
General lacks the authority to compel witnesses to appear at an
interview as if that provided support for the Authority's decision.
Perhaps it is of the view that because the Inspector General must
rely upon the agency head to compel an employee's attendance at an
interview, management's authority is somehow imputed to OIG, or OIG
somehow derives its authority from the agency. This proposition
seems dubious at best. The Inspector General is provided the
authority to investigate under the Inspector General Act, and
is
261
given power to effectuate her responsibilities through,
inter
alia, requesting assistance as may be necessary in carrying out
her duties. 5 U. S. C. App. § 6(a)(3). The head of the agency must
furnish information and assistance to the IG, "insofar as is
practicable and not in contravention" of law. § 6(b)(1). Perhaps,
then, when agency management directs an employee to appear at an
OIG interview,
management acts as OIG's agent.
The proposition seems especially dubious in this case, as P
agreed to be interviewed. The record does not reveal that
NASA's management compelled him to attend the interview nor does it
reveal that P was threatened with discipline if he did not attend
the interview. The Eleventh Circuit, to be sure, indicated that
OIG's investigator threatened P with discipline if he did not
answer the questions put to him. But that threat, assuming it
indeed was made, had little to do with attendance and more to do
with the conduct of the interview. As the Authority has interpreted
§ 7114(a)(2)(B), as the Court notes,
ante, at 242, n. 7, no
unfair labor practice is committed if an employee who requests
representation is given the choice of proceeding without
representation and discontinuing the interview altogether. Perhaps
it could be argued that by threatening P with discipline if he did
not answer the questions put to him, rather than giving P the
choice of proceeding without representation, that OIG's
investigator invoked agency management's authority to compel
(continued) attendance. Along those lines, respondent AFGE contends
that OIG's representative must have been acting for agency
management by threatening P with discipline because only NASA's
Administrator and his delegates, 5 U. S. C. § 302(b)(1); 42 u. S.
C. § 2472(a), have the authority to discipline agency employees.
Brief for Respondent AFGE 15-16. If OIG's investigator did mention
that P could face discipline, he was either simply stating a fact
or clearly acting ultra vires. OIG has no authority to discipline
or otherwise control agency employees. Since the mere in-
262
vocation of agency management's authority is not enough to vest
that authority with OIG's investigator, the argument, then, must be
that it was reasonable for P to believe that OIG's investigator
might have the ability to exercise agency management's authority.
That is a question we simply cannot answer on this record. And more
important, I do not think that § 7114(a)(2)(B) can be read to have
its applicability turn on an after-the-fact assessment of
interviewees' subjective perceptions, or even an assessment of
their reasonable beliefs.
***
In light of the Inspector General's independence-guaranteed by
statute and commonly understood as a practical reality-an
investigator employed within NASA's OIG will not, in the usual
course, represent NASA's management within the meaning of §
7114(a)(2)(B). Perhaps there are exceptional cases where, under
some unusual combination of facts, investigators of the OIG might
be said to represent agency management, as the statute requires.
Cf.
FLRA v.
United States Dept. of Justice, 137 F.3d
683, 690-691
(CA2 1997) ("So long as the OIG agent is
questioning an employee for bona fide purposes within the authority
of the [Inspector General Act] and not merely accommodating the
agency by conducting interrogation of the sort traditionally
performed by agency supervisory staff in the course of carrying out
their personnel responsibilities, the OIG agent is not a
'representative' of the employee's agency for purposes of section
7114(a)(2)(B)"), cert. pending, No. 98-667. This case, however,
certainly does not present such facts. For the foregoing reasons, I
respectfully dissent.
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