National Aeronautics & Space Administration v. Federal Labor Relations Authority
National Aeronautics & Space Administration v. Federal Labor Relations Authority
Dissenting Opinion
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)
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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.
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 ease. 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 disputed— the “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 (“ ‘[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”); 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 Serv. 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
“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 P. L. E. 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
“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.
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 P. L. R. A., at 614 (“section 7114(a)(2)(B) should not be so narrowly construed as to exclude management personnel employed in other subcompo-nents 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.
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
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 especially] through delegated authority,” or “one that represents another as agent, deputy, substitute, or delegate usu[ally] being invested with the authority of the princi
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.).
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 ageney head
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).
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
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 faet that IGs have, by law, an independent relationship with oversight Committees. Information can and must go directly from the Inspectors Gen
“[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 farther 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
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
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
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 ehoice 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
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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 P. 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.
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 (CA11 1997).
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.
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.
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
1 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.
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).
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
The 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).
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.
Opinion of the Court
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
The Administrative Law Judge (AU) 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 F. L. R. A. 601, 602, 609, 622-628 (1995).
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
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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 ease 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”
By its terms, § 7114(a)(2)(B) is not limited to investigations conducted by certain “entities]” 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).
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 collective-bargaining 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^] of the^ agency” may perform functions relating to grievances and bargaining does not mean that other personnel who conduct
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
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,
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 ease 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^]” 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.
“In order to ereate 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[s]” now listed in § 11(2).
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
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.
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.
Furthermore, NASA and NASA-OIG overstate the inherent conflict between an OIG and its agency. The investigation in this ease 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. Sueh management-prompted investigations are not rare.
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 agéncies. 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
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.
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
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).
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. § 8(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.
Congressman Udall, whose substitute contained the section at issue, explained that the “provisions concerning investigatory interviews reflect the ... holding in” Weingarten. 124 Cong. 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).
See id., at 608, n. 5 (Congress recognized that the right to union representation might evolve differently in the federal and private sectors); H. R. Conf. Rep. No. 95-1717, p. 156 (1978), FSLMRS Leg. Hist. 824; cf. Karahalios v. Federal Employees, 489 U. S. 527, 534 (1989) (the FSLMRS "is not a carbon copy of the NLRA”).
Such establishments are described as “agencies” in other federal legislation, such as the FSLMRS. See 5 U. S. C. §§ 101-105, 7108(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.
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.
See §2; S. Rep. No. 95-1071, pp. 1,5-7,9 (1978); H. R. Rep. No. 95-584, pp. 2, 5-6 (1977).
See, e.g., United States INS, 46 F. L. R. A. 1210, 1226-1231 (1993), review den. sub nom. American Federation of Govt. Employees, AFL-CIO, Local 1917 v. FLRA, 22 F. 3d 1184 (CADG 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 Serv. v. FLRA, 855 F. 2d 93 (CA3 1988); see also Martin v. United States, 20 Cl. Ct. 738, 740-741 (1990).
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.
The 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.
The dissent does not dispute much of our analysis; it indicates that NASA-OIG is an “ar[m]” of NASA “workftng] 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 uneon-tested. 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; Brief for 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 réad the Authority’s decision as turning on whether NASA “management” was involved. The Authority em-phasised 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
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