NASA v. FLRA, 527 U.S. 229 (1999)

No. 98-369

In the Supreme Court of the United States

October Term, 1998

_______________________________

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C.,
AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
OFFICE OF THE INSPECTOR GENERAL, PETITIONERS

v.

FEDERAL LABOR RELATIONS AUTHORITY, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
_______________________________



ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT




BRIEF FOR THE RESPONDENT
FEDERAL LABOR RELATIONS AUTHORITY


        DAVID M. SMITH*
            Solicitor

        ANN M. BOEHM
            Attorney


        Federal Labor Relations Authority
        607 14th Street, N.W.
        Washington, D.C.  20424-0001
        (202) 482-6620

  *Counsel of Record



QUESTIONS PRESENTED

1.  Whether an Office of the Inspector General investigator is properly
considered a "representative of the agency" for purposes of the representation
rights set forth in 5 U.S.C. 7114(a)(2)(B).

2.  Whether the agency headquarters, in this case the National Aeronautics and
Space Administration, is responsible for an unfair labor practice committed by
the agency's Office of the Inspector General as a result of its non-compliance
with 5 U.S.C. 7114(a)(2)(B).




TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT

A.  Background - The Federal Service Labor-Management Relations Statute

B.  The Instant Case

1.  Factual Background

2.  The Administrative Law Judge's Decision

3.  The Authority's Decision

a.  The NASA-OIG Investigator Acted as a "Representative of the Agency"

b.  NASA-OIG Committed a ULP for which NASA-HQ Was Also Responsible

4.  The Court of Appeals' Decision in the Instant Case



SUMMARY OF ARGUMENT

ARGUMENT

I.  An Office of the Inspector General Investigator Is
Properly Considered a "Representative of the Agency"
within the Meaning of 5 U.S.C. 7114(a)(2)(B)

A.  The Authority's Interpretation of the Statute Is
Consistent with the Language and Purpose of the
Statute and Is Entitled to Deference

B.  Petitioners' Focus on the Collective Bargaining
Relationship Has No Foundation in the Statute or
in Case Law and Is Inconsistent with the Intent
of the Statute

1.  Neither the Statute nor Case Law Restricts
Statutory Rights Based upon the Collective Bargaining
Relationship in the Manner Suggested by Petitioners

2.  Neither the Weingarten Case Nor the Manner in
which It Has Evolved Restricts the Representation
Right Based upon a Collective Bargaining Relationship

C.  Interpreting the Phrase "Representative of the
Agency" to Include Office of the Inspector
General Investigators Does Not Conflict with
the IG Act or OIG Investigative Functions

1.  Review of the Statutory Language and
Legislative History of the IG Act and the
Language of Section 7114(a)(2)(B) Reveals
that the Provisions Do Not Conflict

a.  Statutory Language

b.  Legislative History

2.  Compliance with Section 7114(a)(2)(B) Does
Not Unduly Restrain the Conduct of OIG Investigations

a.  The Authority's Interpretation of the Union Representative's Role

b.  Criminal Investigations and Emergency
Situations

II.  NASA-HQ, in Addition to NASA-OIG, Is Properly
Responsible for the ULP Committed by NASA-OIG



TABLE OF AUTHORITIES

Cases:

Air Force Logistics Command, Wright-Patterson Air Force
  Base, Ohio and Ogden Air Logistics Center, Hill Air
  Force Base, Utah, 46 FLRA 1184 (1993)
V

  Page
Cases-Continued

American Fed'n of Gov't Employees and U.S. Air
  Force, Air Force Logistics Command, Wright-Patterson
  Air Force Base, Ohio, 4 FLRA 272 (1980)

American Fed'n of Gov't Employees, Fed.
  Prison Council 33 and U.S. Dep't of Justice, Fed.
  Bureau of Prisons, 51 FLRA 1112 (1996)

American Fed'n of Gov't Employees, Nat'l Immigration &
  Naturalization Serv. Council and U.S. Dep't of Justice,
  Immigration & Naturalization Serv., 8 FLRA 347 (1982),
  rev'd on other grounds, United States Dep't of
  Justice, Immigration & Naturalization Serv. v. FLRA,
  709 F.2d 724 (D.C. Cir. 1983)

American Fed'n of State, County and Municipal Employees,
  Local 3097 and United States Dep't of Justice,
  Justice Management Div., 42 FLRA 412 (1991)

Austin Co., 101 NLRB 1257 (1952)

Bureau of Alcohol, Tobacco and Firearms v. FLRA,
  464 U.S. 89 (1983)

Bureau of Prisons, Office of Internal Affairs, Washington,
  D.C. and Phoenix, Ariz., 52 FLRA 421 (1996))

Chevron U.S.A., Inc. v. Natural Resources Defense Council,
  Inc., 467 U.S. 837 (1984)

Department of Defense, Defense Criminal Investigative
  Serv.; Defense Logistics Agency and Defense
  Contract Admin. Servs. Region, New York,
  28 FLRA 1145 (1987), enforced sub nom. Defense Criminal
  Investigative Serv., Dep't of Defense v.
  FLRA, 855 F.2d 93 (3d Cir. 1988)

Defense Logistics Agency, Defense Depot Tracy, Tracy,
  Cal., 39 FLRA 999 (1991)

Department of Health & Human Servs., Social Security Admin.,
  Baltimore, Md. and Social Security Admin., Region X,
  Seattle, Wash., 39 FLRA 298 (1991)

Department of the Treasury, Internal Revenue Service,
  Jacksonville District and Department of the Treasury,
  Internal Revenue Service, Southeast Regional Office
  of Inspection, 23 FLRA 876 (1986)

Department of Veterans Affairs, Veterans Affairs Med.
  Ctr., Jackson, Miss., 48 FLRA 787 (1993)

Federal Aviation Admin., New England Region,
  Burlington, MA, 35 FLRA 645 (1990)

Federal Bureau of Prisons, Office of Internal Affairs,
  Washington, D.C., 54 FLRA (No. 133) 1502
  (November 20, 1998)

Federal Prison Sys., Fed. Correctional Inst., Petersburg
  Va. And AFGE, 25 FLRA 210 (1987)

FLRA v. U.S. Dep't of Justice, Washington, D.C.,
  U.S. Dep't of Justice, Immigration and
  Naturalization Serv., New York Dist., N.Y.,
  and Dep't of Justice, Office of the Inspector
  General, Washington, D.C., 137 F.3d 683 (2d Cir. 1998),
  petition for cert. filed 67 U.S.L.W. 3302
  (Oct. 22, 1998)

Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990)

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989)

Headquarters, Defense Logistics Agency, Washington, D.C.,
  22 FLRA 875 (1986)

Headquarters, U.S. Air Force, Washington, D.C. and 375th
  Combat Support Group, Scott Air Force Base, Ill.,
  44 FLRA 117 (1992), rev. denied sub nom. Headquarters,
  U.S. Air Force, Washington, D.C. v. FLRA, 10 F.3d 13
  (D.C. Cir. 1993)

Hudgens v. NLRB, 424 U.S. 507 (1976)

Internal Revenue Serv., Wash., D.C. v. FLRA, 671 F.2d 560
  (D.C. Cir. 1982)

Marine Corps Logistics Base, Barstow, Cal.,
  45 FLRA 1332 (1992)

Morton v. Mancari, 417 U.S. 535 (1974)

NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)

United Public Workers of America  v. Mitchell, 330 U.S. 75
  (1947)

United States Dep't of Justice v. FLRA, 39 F.3d 361
  (D.C. Cir. 1994)

United States Dep't of Justice, Bureau of Prisons, Safford,
  Ariz., 35 FLRA 431 (1990)

United States Nuclear Regulatory Comm'n v. FLRA, 25 F.3d 229
  (4th Cir. 1994)

United States Postal Serv. and American Postal Workers
  Union, East Bay Area Local, 303 NLRB 463 (1991),
  enforced sub nom. United States Postal Serv. v. NLRB,
  969 F.2d 1064 (D.C. Cir. 1993)

United States Postal Serv. and Eddie L. Jenkins,
  241 NLRB 141 (1979)

United States Postal Serv. and Ralph Bell,
  288 NLRB 864 (1988)

United States Postal Serv. v. NLRB, 969 F.2d 1064
  (D.C. Cir. 1992)

U.S. Department of Justice, Washington, D.C. and U.S.
  Immigration and Naturalization Serv., Northern Region,
  Twin Cities, Minnesota and Office of Inspector General,
  Washington, D.C. and Office of Professional
  Responsibility, Washington, D.C., 46 FLRA 1526 (1993),
  rev'd in part, United States Dep't of Justice v.
  FLRA, 39 F.3d 361 (D.C. Cir. 1994)

U.S. Department of Veterans Affairs, Washington, D.C.,
  Veterans Admin. Med. Ctr., Amarillo, Texas,
  42 FLRA 333 (1991), enforcement denied on other grounds U.S.   Department
  of Veterans Affairs, Washington, D.C., Veterans
  Admin. Med. Ctr., Amarillo, Texas v. FLRA
  1 F.3d 19 (D.C. Cir. 1993)

U.S. Dep't of Veterans Affairs, Washington, D.C.,
  48 FLRA 991 (1993)

U.S. Immigration and Naturalization Serv., N.Y.
  Dist. Office, N.Y., N.Y., 46 FLRA 1210 (1993),
  review denied sub nom. American Fed'n of Gov't
  Employees v. FLRA, 22 F.3d 1184 (D.C. Cir. 1994)

Veterans Admin. Med. Ctr., Long Beach,
  Cal., 41 FLRA 1370 (1991), aff'd sub nom.
  Department of Veterans Affairs Med. Ctr. v. FLRA,
  16 F.3d 1526 (9th Cir. 1994)



Statutes:

Federal Service Labor-Management Relations Statute,
  5 U.S.C. 7101-7135 (1994 & Supp. II 1996)
  5 U.S.C. 7103(a)(3)
  5 U.S.C. 7103(a)(12)
  5 U.S.C. 7105
  5 U.S.C. 7105(a)(1)
  5 U.S.C. 7105(a)(2)
  5 U.S.C. 7105(a)(2)(I)
  5 U.S.C. 7106(a)(2)(D)
  5 U.S.C. 7114
  5 U.S.C. 7114(a)(2)
  5 U.S.C. 7114(a)(2)(A)
  5 U.S.C. 7114(a)(2)(B)
  5 U.S.C. 7114(b)(4)
  5 U.S.C. 7116(a)(1)
  5 U.S.C. 7116(a)(8)
  5 U.S.C. 7123
  5 U.S.C. 7123(c)
  5 U.S.C. 555(b)
  28 U.S.C. 535(a)

Inspector General Act of 1978, 5 U.S.C. App. 3 §§ 1-12
   (1994 & Supp. II 1996)

  5 U.S.C. App. 3 § 2
  5 U.S.C. App. 3 § 2(1)
  5 U.S.C. App. 3 § 2(2)
  5 U.S.C. App. 3 § 2(3)
  5 U.S.C. App. 3 § 3(a)
  5 U.S.C. App. 3 § 3(d)(12)
  5 U.S.C. App. 3 § 4(d)
  5 U.S.C. App. 3 § 5(a)(1)
  5 U.S.C. App. 3 § 5(b)(1)
  5 U.S.C. App. 3 § 6(a)(1)
  5 U.S.C. App. 3 § 6(a)(3)

National Labor Relations Act, 29 U.S.C. 151 et seq. (1994)



Miscellaneous:

124 Cong. Rec. 29,184 (1978), reprinted in Subcommittee on Postal Personnel and
Modernization of the Committee on Post Office and Civil Service, 96th Cong., 1st
Sess., Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978

S. Rep. No. 95-1071, 95th Cong., 2d Sess., reprinted in
  1978 U.S.C.C.A.N. 2676 (1978)

Eleanor Hill, "A Message from the PCIE Vice-Chair", The
  Journal of Public Integrity, Fall/Winter 1998, at 5

Vicky L. Powell, "Why Isn't Law Enforcement Authority in
  in the Inspector General Act?", The Journal of Public
  Inquiry, Spring/Summer 1998, at 33





In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-369

_______________________________

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C.,
AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
OFFICE OF THE INSPECTOR GENERAL,
PETITIONERS

v.

FEDERAL LABOR RELATIONS AUTHORITY, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
_______________________________



ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT




BRIEF FOR THE RESPONDENT
FEDERAL LABOR RELATIONS AUTHORITY



OPINIONS BELOW

  The opinion of the court of appeals (Pet. App. 1a-20a)[1] is reported at 120
  F.3d 1208.[2]  The decision and order of the Federal Labor Relations
  Authority (Pet. App. 21a-57a) is reported at 50 FLRA 601.

JURISDICTION

  The judgment of the court of appeals was entered on September 2, 1997.  Pet.
  App. 2a.  A petition for rehearing was denied on March 31, 1998.  Id. at
  76a.  On June 22, 1998, Justice Kennedy extended the time for filing a
  petition for a writ of certiorari to July 29, 1998, and on July 24, 1998,
  further extended the time for filing to August 28, 1998.  The jurisdiction
  of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

  Relevant portions of the Federal Service Labor-Management Relations Statute,
  5 U.S.C. 7101-7135 (1994 & Supp. II 1996), and the Inspector General Act of
  1978, 5 U.S.C. App. 3 §§ 1-12 (1994 & Supp. II 1996) are reproduced in the
  appendix to petitioners' brief.  Pet. Br. App. 1a-91a.

STATEMENT

  A.  Background - The Federal Service Labor-Management Relations Statute
  The Federal Service Labor-Management Relations Statute (Statute) governs
  labor-management relations in the federal service.  Under the Statute, the
  responsibilities of the Federal Labor Relations Authority (Authority)
  include adjudicating unfair labor practice (ULP) complaints, negotiability
  disputes, bargaining unit and representational election matters, and
  resolving exceptions to arbitration awards.  See 5 U.S.C. 7105(a)(1), (2);
  see also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93
  (1983) (BATF).  The Authority thus ensures compliance with the statutory
  rights and obligations of federal employees, labor organizations that
  represent such federal employees, and federal agencies.  The Authority is
  further empowered to take such actions as are necessary and appropriate to
  effectively administer the Statute's provisions.  See 5 U.S.C. 7105(a)(2)
  (I); BATF, 464 U.S. at 92-93.
  The Authority performs a role analogous to that of the National Labor
  Relations Board (NLRB) in the private sector.  See BATF, 464 U.S. at 92-93.
  Congress intended the Authority, like the NLRB, "to develop specialized
  expertise in its field of labor relations and to use that expertise to give
  content to the principles and goals set forth in the [Statute]."  Id. at 97.
  The Statute makes it a ULP for a federal agency employer to, among other
  things, "interfere with, restrain, or coerce any employee in the exercise by
  the employee of any right under [the Statute]," or "otherwise fail or refuse
  to comply with any provision" of the Statute.  5 U.S.C. 7116(a)(1) and (8).
  The instant case involves a ULP under section 7116(a)(1) and (8) and
  concerns the Authority's interpretation of the representational right set
  forth in section 7114(a)(2)(B) of the Statute.
  Section 7114(a)(2)(B) provides that an exclusive representative "shall be
  given the opportunity to be represented at any examination of an employee in
  the unit by a representative of the agency in connection with an
  investigation" if the employee reasonably believes that discipline may
  result from the examination and the employee requests representation.  5
  U.S.C. 7114(a)(2)(B).  This statutory provision extends to federal employees
  the right to union representation provided in the private sector by the NLRB
  through its interpretation of the National Labor Relations Act, 29 U.S.C.
  151 et seq. (1994) (NLRA), and the Supreme Court's decision in NLRB v. J.
  Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten).  See 124 Cong. Rec.
  29,184 (1978), reprinted in Subcommittee on Postal Personnel and
  Modernization of the Committee on Post Office and Civil Service, 96th Cong.,
  1st Sess., Legislative History of the Federal Service Labor-Management
  Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 926
  (1979) (Legis. Hist.) (Congressman Udall explained that the House bill
  provisions that led to the enactment of section 7114(a)(2)(B) were intended
  to reflect the Supreme Court's decision in Weingarten); Internal Revenue
  Serv., Wash., D.C. v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982)(same).
  Although representational rights under section 7114(a)(2)(B) and Weingarten
  were intended to be similar, Congress also recognized that the right to
  representation might evolve differently in the private and federal sectors,
  and that NLRB decisions would not necessarily be controlling in the federal
  sector.  See Legis. Hist. at 824; U.S. Immigration & Naturalization Serv.,
  N.Y. Dist. Office, N.Y., N.Y., 46 FLRA 1210, 1218 (1993) (INS, N.Y Dist.),
  review denied sub nom. American Fed'n of Gov't Employees v. FLRA, 22 F.3d
  1184 (D.C. Cir. 1994).  Moreover, in the federal sector the Weingarten
  representation right is expressly codified in the Statute, whereas the same
  right in the private sector inheres in the employee's guarantee to act in
  concert for mutual aid and protection.  See Weingarten, 420 U.S. at 256,
  260.
  In interpreting the statutory representation right set forth in section
  7114(a)(2)(B), the Authority has determined that it considers an Office of
  the Inspector General (OIG) agent to be a "representative of the agency."
  Pet. App. 37a, 40a.  As such, when a bargaining unit employee properly seeks
  and is denied union representation in an OIG investigation, section 7114(a)
  (2)(B) is violated and a ULP has occurred.  See id. at 48a.
  B.  The Instant Case
    1.  Factual Background
  This ULP case came before the Authority due to events that occurred at the
  George C. Marshall Space Flight Center (MSFC), a component of the National
  Aeronautics and Space Administration, Headquarters (NASA-HQ), located in
  Huntsville, Alabama.  Pet. App. 23a.  NASA-HQ is headquartered in
  Washington, D.C.  Id.  The National Aeronautics and Space Administration,
  Office of the Inspector General (NASA-OIG), also headquartered in
  Washington, D.C., has NASA-OIG offices located at MSFC as well as at other
  NASA-HQ components.  Id.  The NASA-OIG investigators assigned to MSFC are
  subject to the direction of individuals in the NASA-OIG chain of command and
  are not under the supervision of any MSFC officials.  Id.  The NASA
  Inspector General reports to the Administrator of NASA-HQ--the head of the
  agency.  Id.
  In 1993, NASA-OIG received information from the Federal Bureau of
  Investigation (FBI) regarding possible illicit activities by an MSFC
  employee, P.[3]  Id.  P was linked to documents that allegedly posed threats
  to P's co-workers at MSFC.  Id.  NASA-OIG relayed this information to a
  NASA-OIG investigator at MSFC.  Id.
  The NASA-OIG investigator proceeded to conduct an investigation and
  contacted P to arrange an interview.[4]  Id. at 23a-24a.  P requested that
  his attorney and a union representative be present during the examination,
  and the NASA-OIG investigator agreed.  Id.
  The examination took place at the office of P's attorney.  Id. at 24a.
  Those present included the NASA-OIG investigator, another NASA-OIG
  investigator working out of MSFC, P's attorney, and a union representative.
  Id.  The NASA-OIG investigator established ground rules for the conduct of
  the proceeding that provided, among other things, that the union
  representative was present as a "witness"; that as union representative, he
  would not be allowed to interrupt the examination; and that the union
  representative could, in the future, be called as a witness for the
  government.  Id.  The union representative twice objected to this limitation
  on his role as union representative and stated that he was attending the
  interview in order to represent the interests of the union, the bargaining
  unit, and P.  Id.   The NASA-OIG investigator responded by threatening to
  cancel the interview and move it elsewhere if the union representative did
  not "maintain himself" and, at several points during the interrogation, the
  NASA-OIG investigator challenged the union representative's representational
  actions.  Id. at 24a-25a.
    2.  The Administrative Law Judge's Decision
  The complaint in this case, based upon the charge filed by Local 3434 of the
  American Federation of Government Employees (AFGE)--the exclusive
  representative of bargaining unit employees at MSFC--alleged that NASA-HQ
  and NASA-OIG (collectively "petitioners" or the "Agency") violated section
  7116(a)(1) and (8) of the Statute by failing to allow the union
  representative to participate in the examination of P, in contravention of
  section 7114(a)(2)(B) of the Statute.  Pet. App. 22a.  A hearing was held
  before an Administrative Law Judge (ALJ) on the complaint.  Pet. App. 59a.
  The ALJ subsequently issued a decision finding that the NASA-OIG
  investigator's actions interfered with the union's right to take an active
  role during an examination of an employee and therefore violated section
  7114(a)(2)(B).  Pet. App. 25a, 64a.  In making this decision, the ALJ found
  that the NASA-OIG investigator was a "representative of the agency" within
  the meaning of section 7114(a)(2)(B).  Id.  The ALJ found that NASA-OIG
  committed a ULP under section 7116(a)(1) and (8) of the Statute.  Pet. App.
  26a, 71a.  Finding insufficient record evidence to show that NASA-HQ was
  responsible for the violation, the ALJ recommended that the complaint
  against NASA-HQ be dismissed.  Id.
    3.  The Authority's Decision
  In its ULP decision and order, the Authority concluded that the NASA-OIG
  investigator's actions during the course of the investigation of a
  bargaining unit employee violated the Statute.[5]  Id. at 48a.  The
  Authority also reaffirmed that the NASA-OIG investigator was a
  "representative of the agency" within the meaning of section 7114(a)(2)(B)
  of the Statute.  Id. at 40a.  Finally, the Authority found that both NASA-HQ
  and NASA-OIG were responsible for NASA-OIG's violation of the Statute.  Id.
  at 48a-49a.  Accordingly, the Authority issued an appropriate remedial
  order.  Id. at 52a-53a.
  a.  The NASA-OIG Investigator Acted as a "Representative of the Agency"
  The Authority based its finding that the NASA-OIG investigator was acting as
  a "representative of the agency," NASA-HQ, on three fundamental conclusions:
  (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 [Inspector General]
  Act[6] are not irreconcilable.
  Id. at 40a-41a.  The Authority reached these conclusions only after extensively
  analyzing relevant case law.
  In Department of Defense, Defense Criminal Investigative Service; Defense
  Logistics Agency and Defense Contract Administration Services Region, New
  York, 28 FLRA 1145, 1149 (1987) (DOD, DCIS), enforced sub nom. Defense
  Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93
  (3d Cir. 1988) (DCIS), the Authority had established that an OIG
  investigator is considered to be a "representative of the agency" within the
  meaning of section 7114(a)(2)(B).  Pet. App. 37a.  Although the Third
  Circuit affirmed this conclusion in DCIS, the D.C. Circuit rejected the
  Authority's interpretation of section 7114(a)(2)(B) as it pertained to an
  OIG representative in United States Department of Justice v. FLRA, 39 F.3d
  361, 365 (D.C. Cir. 1994) (DOJ).  Pet. App. 37a.[7]
  In the instant case, the Authority carefully reviewed the factual background
  and findings in both DCIS and DOJ, to include both courts' analyses of the
  statutory language of section 7114(a)(2)(B) as well as the language and
  legislative history of the IG Act.  Pet. App. 37a-40a.  After its review of
  the two cases, the Authority reaffirmed its holding in DOD, DCIS and agreed
  with the Third Circuit's DCIS reasoning by concluding that the NASA-OIG
  investigator was acting as a "representative of the agency" under section
  7114(a)(2)(B).  Pet. App. 40a-41a.
  The Authority first considered which management personnel are obligated to
  recognize the section 7114(a)(2)(B) representational right, and concluded,
  consistent with DCIS, that the statutory right is not "dependent upon the
  organizational entity within the agency to whom the person conducting the
  examination reports."  Id. at 41a.  As such, the Authority determined that
  the phrase "representative of the agency" should not be so narrowly
  construed as to exclude management personnel employed in different
  components or subcomponents of the agency, such as the OIG.[8]  Id. at 41a-
  42a.  "If 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. n.22.
  Next, the Authority analyzed the statutory independence of OIGs, pursuant to
  the IG Act, and concluded that this independence does not necessarily exempt
  OIG investigatory examinations from the provisions of section 7114(a)(2)(B).
  Id. at 42a.  Although recognizing the OIG's statutory independence, the
  Authority noted that the independence is not absolute--and is nonexistent
  when the OIG conducts an interview of an employee concerning work-related
  misconduct, and, as in the instant case,  reports the findings to the agency
  for possible disciplinary action.  Id.
  The Authority then considered the statutory provisions and legislative
  histories of section 7114(a)(2)(B) and the IG Act and concluded that the two
  are not incompatible.  Id. at 43a.  First, the statutory language of the two
  provisions revealed no inconsistencies.  Id. at 44a.   Second, despite the
  recognized congressional intent that the OIG be independent from the agency,
  the Authority found that the purpose of this independence is to insulate the
  OIG from agency management pressure--not from compliance with federal labor
  relations requirements.  Id. at 45a.  Third, based upon the limited
  representational function of a union representative under section 7114(a)(2)
  (B), and the benefits to the investigatory process that may result from
  union presence, the Authority determined that compliance with section
  7114(a)(2)(B) would not unduly restrain the conduct of OIG investigative
  interviews.  Id. at 46a-47a.
  Finally, the Authority noted that even if the two statutes conflicted, it
  found no congressional intent suggesting that either the Statute or the IG
  Act is preemptive of the other.  Id. at 47a.  Thus, the Authority concluded
  that the IG Act should not trump the Statute.  Id. at 48a.
  b.  NASA-OIG Committed a ULP for which NASA-HQ Was Also Responsible
  Because the conduct of the NASA-OIG investigator, as a "representative of
  the agency," interfered with the rights of employees in another component of
  the agency, the Authority decided that NASA-OIG violated the Statute.  Id.
  The Authority concluded that NASA-OIG was properly held responsible for
  violating the Statute, notwithstanding the fact that NASA-OIG did not have a
  collective bargaining relationship with the bargaining unit in this case.
  This holding comports with well-established precedent that the Authority
  will find a statutory violation when a component of an agency infringes upon
  the protected rights of bargaining unit employees of another component of
  the same agency.  See Headquarters, Defense Logistics Agency, Washington,
  D.C., 22 FLRA 875, 884 (1986) (DLA).[9]  Pet. App. 48a.
  The Authority disagreed, however, with the ALJ's recommendation to dismiss
  the complaint against NASA-HQ.  Id. at 49a.  In reviewing the record
  evidence, the Authority found that NASA-OIG, in its investigative role,
  represents the interests of NASA-HQ and other NASA-HQ subcomponents.  Id. at
  50a.  NASA-OIG shares investigative information with NASA-HQ and NASA-HQ
  subcomponents, and such information is used as a basis for disciplinary
  action.  Id.  In addition, the NASA Inspector General reports to, and is
  under the supervision of, the Administrator of NASA-HQ.  Id. (citing 5
  U.S.C. App. 3 § 3(a)).  Based upon these factors, and the Authority
  precedent applying the DLA rationale to the actions of the parent agency and
  a subcomponent, see U.S. Dep't of Veterans Affairs, Washington, D.C., 48
  FLRA 991, 1000-01 (1993) (DVA), the Authority found NASA-HQ responsible for
  a statutory violation based upon its failure to ensure that NASA-OIG comply
  with the Statute.  Pet. App. 50a.[10]
  4.  The Court of Appeals' Decision in the Instant Case
  The Eleventh Circuit enforced the Authority's ULP decision and order and
  denied the Agency's petition for review.  Pet. App. 20a.  The court agreed
  with essentially every aspect of the Authority's decision.
  Deferring to the Authority's interpretation of the Statute, the court found
  no error in the Authority's determination that an OIG agent is a
  "representative of the agency" under section 7114(a)(2)(B).  Id. at 9a.
  NASA-OIG had argued to the court that the rights and duties set forth in
  section 7114(a)(2)(B) derive from the collective bargaining relationship, of
  which NASA-OIG is not a part.  Id. at 8a-9a.  However, the Eleventh Circuit,
  like the Authority and the Third Circuit, rejected this argument.  Id. at
  9a-11a.
  The court found that reading such a requirement into section 7114(a)(2)(B)
  "would undermine Congress's purpose in enacting this section."  Id. at 10a.
  Noting that section 7114(a)(2)(B) "focuses on the risk of adverse employment
  action to the employee," the court concluded that "[b]ecause this risk does
  not disappear or diminish significantly when an investigator is employed in
  an agency component that has no collective bargaining relationship with the
  employee's union, we see no reason why the protection afforded by Congress
  should be eliminated in such situations."  Id.  Because the Authority had
  determined that NASA-OIG performs an investigatory role on behalf of NASA-HQ
  and its components, the court concluded that the NASA-OIG investigator was a
  "representative of the agency."  Id. at 11a.
  With regard to the Authority's interpretation of the IG Act, the court did
  not defer to the Authority, id. at 5a, but nevertheless agreed with the
  Authority's conclusions and its reasoning, id. at 12a-15a.  The court found
  nothing in the text or legislative history of the IG Act "to justify
  exempting OIG investigators from compliance with the federal Weingarten
  provision."  Id. at 12a.
  In considering the congressional intent that OIGs be independent from the
  agencies they investigate, the court found that "the presence of a union
  representative at OIG interviews, as mandated by federal statute," is not
  the "type of interference from which Congress sought to insulate OIG
  investigators."  Id. at 14a.  The court explained that it did not foresee a
  union representative hindering an OIG agent's investigative process.  Id.
  It thus concluded that compliance with section 7114(a)(2)(B) is not
  "sufficiently inconsistent with the IG Act to justify an implied exemption
  for OIG investigators."  Id. at 15a.  Without such a conflict, the court
  could not justify ruling that the IG Act "impliedly" repealed section
  7114(a)(2)(B).  Id. (citing Morton v. Mancari, 417 U.S. 535, 551 (1974)
  (Morton).  Therefore, the court concluded that NASA-OIG committed a ULP
  because the NASA-OIG investigator was a "representative of the agency"
  within the meaning of section 7114(a)(2)(B) and the agent's conduct was in
  violation of the Statute.  Id.
  After finding that NASA-OIG violated the Statute, the court then agreed with
  the Authority's determination that NASA-HQ, as parent agency for NASA-OIG,
  was also responsible for the section 7114(a)(2)(B) violation.  Id. at 19a.
  The court acknowledged the Authority's holdings finding a parent agency
  responsible for a statutory violation by a subcomponent of the agency.  Id.
  at 18a.
  The court analyzed the Authority's finding that, because NASA-HQ "failed to
  ensure that NASA-OIG complied with § 7114(a)(2)(B)," it was guilty of a ULP.
  Id.  Although the court recognized NASA-OIG's role as an "'independent and
  objective' unit" of NASA-HQ, pursuant to 5 U.S.C. App. 3 § 2, it also
  recognized that NASA-OIG "is subject to the general supervision of the
  agency head."  Id. at 19a.  Moreover, the court highlighted the fact that
  the NASA-OIG investigator "ordered the employee to answer questions or face
  dismissal," and this suggested that the NASA-OIG investigator was acting on
  behalf of NASA-HQ.  Id. at 19a.  The court therefore found no error in the
  Authority's determination.  Id.[11]

SUMMARY OF ARGUMENT

  I.  The Authority correctly held that the NASA-OIG investigator was a
  "representative of the agency" within the meaning of section 7114(a)(2)(B) of
  the Statute.  The Authority's determination on this point, which is consistent
  with the language and purpose of the Statute, is entitled to deference because
  it rests upon a reasonable interpretation of the Statute administered by the
  Authority.
  Section 7114(a)(2)(B) codifies important representational rights for federal
  sector employees that correspond to the rights private sector employees
  enjoy under this Court's Weingarten decision.  These rights are triggered
  during investigative interviews conducted by a "representative of the
  agency" when a bargaining unit employee reasonably fears disciplinary
  action.
  It is undisputed in this case that a bargaining unit employee, who
  reasonably feared discipline, was denied effective union representation
  during an interrogation by a NASA-OIG investigator.  It is also clear that
  based on information gathered by the OIG investigator, the employee was
  subsequently disciplined by his superiors at MSFC, a component of NASA.
  Further, there is no question that NASA-HQ is an "agency," as defined in the
  Statute.  The inquiry here concerns only whether the NASA-OIG investigator
  should be considered a "representative of the agency" for the purposes of
  section 7114(a)(2)(B).  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.  Nothing in the Statute's language contradicts the
  Authority's determination in this regard, and a conclusion to the contrary
  would permit agencies to circumvent protected rights by utilizing personnel
  from other subcomponents of the agency to conduct investigative interviews
  of bargaining unit employees.
  This logical interpretation of the Statute has been affirmed by the Third
  Circuit and the court below.  These courts have noted that such an
  interpretation of the Statute is justified given the purposes of section
  7114(a)(2)(B), its focus on the risk of discipline, and the fact that the
  results of such interrogations are routinely shared with the agency entity
  capable of disciplining the employee interviewed, as NASA-OIG did in this
  case.
  Petitioners assert that rights under section 7114(a)(2) apply only to the
  management entity that engages in collective bargaining with the union at
  issue and note in this regard that  NASA-OIG and NASA-HQ have no direct
  collective bargaining relationship with the unit representing the employee
  in this case.  Petitioners claim that the Authority has interpreted the
  phrase "representative of the agency" in a manner that is inconsistent with
  both the language and purposes of the Statute and in a manner inconsistent
  with the way in which the Weingarten case has been interpreted in the
  private sector.  Both of these assertions are incorrect.
  The language of the Statute, the policies behind section 7114(a)(2)(B), and
  the case law interpreting these two directly contradict petitioners'
  argument that section 7114(a)(2)(B) rights apply only to the management
  entity that engages in collective bargaining with the union at issue.  The
  express language of section 7114(a)(2)(B) in no way restricts the phrase
  "representative of the agency" to those acting directly for the management
  entity engaged in the collective bargaining relationship with the union. To
  the contrary, and as the Third Circuit noted, section 7114(a)(2)'s express
  reference to the terms "bargaining unit" and "agency" support the
  Authority's broader interpretation of the Statute.  Further, the policy
  reasons supporting the protection of bargaining unit employees' section
  7114(a)(2) rights are directly implicated regardless of whether the agency
  official involved is assigned to the management entity having a collective
  bargaining relationship with the unit.  Finally, neither the Authority's
  case law, nor judicial review interpreting the same, requires the existence
  of a collective bargaining relationship between the agency official and the
  bargaining unit employee as a necessary element for compliance with the
  requirements of the Statute.
  Also, the Weingarten decision has not been interpreted as being restricted
  to the collective bargaining relationship.  Weingarten's progeny establish
  that the core of the Weingarten right is the concern about the risk to the
  employee of disciplinary action because of the employee's participation in
  the interview.  The Authority's case-specific determinations of the section
  7114(a)(2)(B) right are consistent with Weingarten.  Significantly, both the
  National Labor Relations Board and the United States Court of Appeals for
  the District of Columbia have concluded that the Weingarten right is
  properly applied in investigations by Postal Service Inspectors, who serve
  under the auspices of the IG Act, when conducting investigations of alleged
  criminal activity by bargaining unit employees.
  Petitioners assert that the representational requirements of section 7114(a)
  (2)(B), as interpreted by the Authority, conflict with the independence
  granted the OIG by the IG Act.  However, as  the Authority, the Third
  Circuit, and the court below have noted, nothing in the IG Act justifies
  exempting OIG investigators from the requirements of section 7114(a)(2)(B).
  Rather, the legislative history of the IG Act reveals that the purpose of
  the OIG's independence was to insulate the OIG from agency management
  pressure, not to insulate the OIG from compliance with the federal labor
  relations laws.
  Petitioners fail to point to any specific provision of the IG Act in
  conflict with the requirement of affording Weingarten protection to
  bargaining unit employees when interviewed by OIGs.  Indeed, petitioners
  acknowledge that employees are entitled to attorney representation during
  OIG interviews.  Given this Court's Morton v. Mancari principle that the
  proper course is to give effect to both laws while preserving each law's
  sense and purpose, the Authority's reconciliation of the two statutes is
  correct.
  II.  The Authority's determination that NASA-HQ is responsible, along with
  NASA-OIG, for the violation of the representation rights involved here is
  consistent with its finding that the NASA-OIG investigator was a
  "representative of the agency" within the meaning of section 7114(a)(2)(B).
  The  NASA-OIG ultimately answers to and is under the general supervision of
  NASA-HQ, which failed to ensure that its OIG complied with the Statute's
  requirements.  Holding NASA-HQ responsible for the actions of NASA-OIG in
  these circumstances effectuates the purpose of the Statute and comports with
  Authority precedent.

ARGUMENT

  I.  An Office of the Inspector General Investigator Is Properly Considered a
  "Representative of the Agency" within the Meaning of 5 U.S.C. 7114(a)(2)(B)
  A.  The Authority's Interpretation of the Statute Is Consistent with the
  Language and Purpose of the Statute and Is Entitled to Deference
  At issue in this case is the proper interpretation and application of
  section 7114(a)(2)(B) of the Statute.  The statutory language of section
  7114(a)(2)(B) provides specific representational rights to bargaining unit
  employees and their exclusive representatives:  "[a]n exclusive
  representative of an appropriate unit in an agency shall be given the
  opportunity to be represented at . . . any examination of an employee in the
  unit by a representative of the agency in connection with an investigation"
  if the employee reasonably believes that discipline may result from the
  examination and the employee requests representation.  5 U.S.C. 7114(a)(2)
  (B).
  Although the phrase "representative of the agency" is not  specifically
  defined in the Statute, one its key words--"agency"--is broadly defined as
  "an Executive agency."  5 U.S.C. 7103(a)(3).  It is undisputed, as it was
  before the Authority, that NASA-HQ "is an 'agency' under 5 U.S.C. 7103(a)
  (3)."  Pet. App. 42a.[12]  Given this controlling and expansive definition
  of "agency," the only remaining appropriate inquiry, therefore, is who is a
  "representative" of the NASA-HQ in this case.  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 Statute.  In this regard,
  nothing in the Statute suggests that an individual in the employ of either
  the agency's headquarters or of another component of an agency is entitled
  to ignore provisions in the Statute when dealing with bargaining unit
  employees.  Additionally, this construction is consistent with the purpose
  and intent of Congress in enacting section 7114(a)(2)(B) of the Statute.
  Congress intended through section 7114(a)(2)(B) for federal employees to
  enjoy the same rights available to private sector employees under Weingarten
  when they "are called upon to provide information that exposes them to the
  risk of disciplinary action."  Pet. App. 41a; see DCIS, 855 F.2d at 99.
  When, as in this case, the interrogation is being conducted by an entity
  within the "agency" which shares information obtained as a result of the
  interrogation with the agency component for which the employee works, the
  risk of disciplinary action and attendant need for representation are
  evident.  As expressed by the Third Circuit in DCIS, it is unlikely "that
  Congress intended that union representation be denied to the employee solely
  because the management representative is employed outside the bargaining
  unit."  855 F.2d at 99.
  The Authority observed that a conclusion to the contrary would allow
  agencies to circumvent bargaining unit rights and evade section 7114(a)(2)
  (B) responsibilities by utilizing personnel from other subcomponents to
  conduct investigative interviews of bargaining unit employees.  Id.  Indeed,
  the facts of this case support the reality of such circumvention of the
  section 7114(a)(2)(B) responsibilities, because the record shows that NASA-
  OIG investigators regularly provided the information obtained through
  investigations to NASA-HQ and MSFC for disciplinary action.  Pet. App. 50a.
  Thus the Authority, exercising its discretion and expertise to interpret its
  own organic statute, see 5 U.S.C. 7105(a)(2)(I), BATF, 464 U.S. at 92-93,
  properly determined that "representative of the agency" in section 7114(a)
  (2)(B) "should not be so narrowly construed as to exclude management
  personnel employed in other subcomponents of the agency."  Pet. App.
  40a-41a.  Where, as here, the Authority is directed to interpret the Statute
  that it is charged with implementing, its conclusions are reviewed under the
  standard set forth in Chevron U.S.A., Inc. v. Natural Resources Defense
  Council, Inc., 467 U.S. 837 (1984) (Chevron).  See Fort Stewart Schools v.
  FLRA, 495 U.S. 641, 644-45 (1990) (Fort Stewart Schools); see also 5 U.S.C.
  7105.  Under Chevron, if the relevant statutory language is clear, the Court
  "must give effect to the unambiguously expressed intent of Congress."  Fort
  Stewart Schools, 495 U.S. at 645 (citing Chevron, 467 U.S. at 842-43).  If,
  on the other hand, the relevant statutory provisions are "silent or
  ambiguous" on the point at issue, the Court should affirm the Authority's
  conclusions if they are based on a "permissible construction of the [S]
  tatute."  Id.  As intended, the Authority "exercise[d] its 'special function
  of applying the general provisions of the [Statute] to the complexities' of
  federal labor relations."  BATF, 464 U.S. at 97 (citation omitted).
  B.  Petitioners' Focus on the Collective Bargaining Relationship Has No
  Foundation in the Statute or in  Case Law and Is Inconsistent with the Intent of
  the Statute
  As argued unsuccessfully to the Authority, as well as to the Second, Third,
  and Eleventh Circuits,[13] petitioners assert that the phrase
  "representative of the agency" in section 7114(a)(2)(B) refers only to those
  in the employ of the "management entity that has a collective bargaining
  relationship with a union."  Pet. Br. 18.  Under petitioners' interpretation
  of the phrase, no agency official outside of the agency entity at the level
  of exclusive recognition--not even management personnel in any other agency
  component--is a "representative of the agency."  In support of their
  collective bargaining relationship claim, petitioners make two assertions,
  both of which are false:  first, the collective bargaining relationship is a
  determinative factor in all section 7114 rights and in the definition of
  collective bargaining (5 U.S.C. 7103(a)(12)); and second, limiting the
  section 7114(a)(2)(B) right to disciplinary interviews conducted by the
  management entity that has a collective bargaining relationship is
  consistent with the  Weingarten case and the manner in which the Weingarten
  right has evolved in the private sector.  Neither of these arguments finds
  support in the Statute or established precedent.  Furthermore, limiting the
  term "representative of the agency" to only those individuals assigned to
  the entity having a collective bargaining relationship with the union--MSFC
  in this case--not only undermines the purpose of the Statute, but would
  permit agencies to elude statutory responsibilities.
  1.  Neither the Statute nor Case Law Restricts Statutory Rights Based
  upon the Collective Bargaining Relationship in the Manner Suggested by
  Petitioners
  Contrary to petitioners' claim, the existence of a collective bargaining
  relationship is not a prerequisite for the invocation of protected rights
  under section 7114(a)(2) of the Statute.  Put differently, the absence of a
  collective bargaining relationship between an agency official and a
  bargaining unit employee is not a defense to what would otherwise be a
  violation of section 7114(a)(2) of the Statute.  The statutory provisions
  referenced by petitioners that include, in effect, the phrase
  "representative of the agency"--sections 7114(a)(2)(A),[14] 7114(a)(2)(B),
  and  section 7103(a)(12)--contain no language restricting established,
  protected rights to the collective bargaining relationship.  Moreover,
  neither the Authority nor reviewing courts have so narrowly interpreted
  these statutory provisions.  Indeed, if such were the case, meaningful
  protected rights could be easily avoided and enforced only in an arbitrary
  manner.
  To begin, the language of section 7114(a)(2) does not support petitioners'
  assertion.  As the DCIS court noted,   section 7114(a)(2) "makes express
  reference to the bargaining unit and appears to distinguish [the bargaining
  unit] from the 'agency.'"  855 F.2d at 99.  The Third Circuit explained that
  in reference to "formal discussions" in section 7114(a)(2)(A) and
  "examination" in section 7114(a)(2)(B), the Statute refers to the "union as
  the 'exclusive representative of an appropriate unit' and to the employee as
  the 'employee in the unit.'"  Id.  In contrast, the Statute characterizes
  "management's representative as a 'representative of the agency.'"  Id.
  Accordingly, and contrary to petitioners' argument, it is entirely
  consistent with the wording of the Statute to conclude that an employee in a
  bargaining unit is entitled to the rights enunciated in section 7114(a)(2)
  so long as the person conducting the formal discussion or interview is a
  "representative of the agency"--irrespective of where the conducting
  official and the bargaining unit employee are employed within the agency's
  organization.
  Review of the Authority's case law interpreting section 7114(a)(2) rights
  demonstrates that the existence of a collective bargaining relationship is
  unnecessary to effectuate the rights outlined therein.  See Department of
  Veterans Affairs, Veterans Affairs Med. Ctr., Jackson, Miss., 48 FLRA 787,
  793 (1993) (VAMC, Miss.) ("the rights contained in section 7114(a)(2)(B) are
  not tied to collective bargaining").  Furthermore, although not at issue in
  this case, other rights established in section 7114 are not dependent upon
  the collective bargaining relationship.  U.S. Department of Veterans
  Affairs, Washington, D.C., Veterans Admin. Med. Ctr., Amarillo, Tex., 42
  FLRA 333, 341, 342 (1991), enforcement denied on other grounds U.S.
  Department of Veterans Affairs, Washington, D.C., Veterans Admin. Med. Ctr.,
  Amarillo, Texas v. FLRA, 1 F.3d 19 (D.C. Cir. 1993) (although VA employees
  have no rights under the Statute to engage in collective bargaining, they
  are fully protected in the exercise, through their exclusive representative,
  of other rights under the Statute, including the right to representation
  under section  7114(a)(2)(A)).
  In fact, the Authority has squarely rejected the collective bargaining
  theory espoused by petitioners.  For example, the Authority has found a
  violation of section 7114 when a higher echelon agency official improperly
  bypassed an exclusive representative and communicated directly with a
  bargaining unit employee concerning a grievance.  Department of Health &
  Human Servs., Social Security Admin., Baltimore, Md. and Social Security
  Admin., Region X, Seattle, Wash., 39 FLRA 298, 311-12 (1991) ((1) rejecting
  agency's contention that because the Regional Personnel Officer was part of
  an entity that "d[id] not have a bargaining relationship with the Union at
  the regional level," he therefore was not required to comply with the
  Statute and (2) finding the agency responsible for the Regional Personnel
  Officer's acts notwithstanding the Officer's organizational location).  This
  rejection is in accord with the Authority's case law providing that "when
  higher-level management directs or requires management at a subordinate
  level to act in a manner that is inconsistent with the subordinate level's
  bargaining obligations under the Statute, the higher level entity violates"
  the Statute.  See, e.g., Air Force Logistics Command, Wright-Patterson Air
  Force Base, Ohio and Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 46
  FLRA 1184, 1186 (1993).
  With regard to section 7114(a)(2)(A), the formal discussion provision, the
  collective bargaining relationship is immaterial to the Authority's
  determination of who is a "representative of the agency."  See Veterans
  Admin. Med. Ctr., Long Beach, Cal., 41 FLRA 1370, 1389-90 (1991), aff'd sub
  nom. Department of Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526 (9th
  Cir. 1994) (interview of local, bargaining unit employee by attorney in
  agency's Office of District Counsel is a formal discussion under the
  Statute).  Even an outside private contractor has been held to be a
  "representative of the agency" for purposes of section 7114(a)(2)(A).
  Defense Logistics Agency, Defense Depot Tracy, Tracy, Cal., 39 FLRA 999,
  1001, 1013 (1991).
  Nor is the "representative of an agency" referred to in  section 7103(a)
  (12)'s definition of collective bargaining  restricted to the management
  entity in the collective bargaining relationship with the union.  Rather,
  the "representative" of that entity for bargaining purposes depends on whom
  the entity  designates as its representative.  It is axiomatic that an
  agency entity has the discretion to designate anyone it chooses to serve as
  its bargaining representative.  See American Fed'n of Gov't Employees and
  U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force
  Base, Ohio, 4 FLRA 272, 274 (1980).
  Finally, if the existence of a collective bargaining relationship between
  the agency official and the bargaining unit employee involved were the sine
  qua non petitioners claim it to be, section 7114 rights could be easily
  avoided through the simple stratagem of using an agency official from higher
  headquarters or another agency component to conduct formal discussions or
  interrogations.  Rather than inquiring into the circumstances surrounding a
  formal discussion with or an interrogation of a bargaining unit employee,
  the Authority would be obliged to examine an agency's organizational
  hierarchy to determine whether the agency official involved was under the
  direct authority of the management entity having a collective bargaining
  relationship with the bargaining unit.  Such a rule would improperly premise
  violations of protected rights on the organizational entity to which the
  agency official was assigned--a result not remotely suggested in the Statute
  nor in any precedent interpreting it.  As the Third Circuit noted, "we would
  have some difficulty understanding an interpretation of the [S]tatute
  limiting 'agency' to the subdivision comprising the collective bargaining
  unit and excluding 'representatives' of management that are employed in
  higher echelons of an 'Executive department.'"  DCIS, 855 F.2d at 99.
  2.  Neither the Weingarten Case Nor the Manner in which It Has Evolved
  Restricts the Representation Right Based upon a Collective Bargaining
  Relationship
  Petitioners assert that the Authority's interpretation of section 7114(a)(2)
  (B) is inconsistent with the Weingarten decision and the manner in which the
  representation right has evolved in the private sector.  According to
  petitioners, the Weingarten right arose out of the need to balance the power
  between the parties to collective bargaining, and absent a collective
  bargaining relationship between NASA-OIG and the bargaining unit, the power
  imbalance does not arise.  Pet. Br. 20.  However, petitioners' arguments are
  not supported by Weingarten itself or relevant private sector case law.
  What the Supreme Court actually said in Weingarten is that the NLRA itself
  is intended to eliminate the "'inequality of bargaining power between
  employees . . . and employers.'"  420 U.S. at 262 (citation omitted).  In
  light of this statutory intent, and based upon the section 7 rights of the
  NLRA, bargaining unit employees and their representatives are entitled to
  representation at disciplinary interviews.  Id.  The heart of the Weingarten
  right, and thus section 7114(a)(2)(B), as noted by the Authority and the
  Eleventh and Third Circuits, is the "risk of adverse employment action to
  the employee" (Pet. App. 10a) and the right to union representation in that
  situation.  See Pet. App. 41a; DCIS, 855 F.2d at 99.
  As their primary example of how the private sector limits  the Weingarten
  right to the existence of a collective bargaining relationship, petitioners
  assert that "when an entity other than management, such as a law enforcement
  officer, interviews a bargaining unit employee who might subsequently face
  discipline as a result of information obtained in the interview, the
  employee has no right to the presence of a union representative."  Pet. Br.
  21-22.  To the extent that petitioners suggest that the Weingarten right is
  not applicable to interrogations by law enforcement personnel inside an
  agency, this argument has already been rejected by the NLRB and the United
  States Court of Appeals for the District of Columbia.
  The NLRB has long held that United States Postal Service (USPS) employees
  are entitled to Weingarten representation when interviewed by Postal
  Inspectors.  See United States Postal Serv. and Eddie L. Jenkins, 241 NLRB
  141 (1979) (Jenkins).  Postal Inspectors, like OIG investigators, are
  employees of the parent agency, see United States Postal Serv. v. NLRB, 969
  F.2d 1064, 1066 (D.C. Cir. 1992) (opinion by then-Judge Ginsburg)  (USPS),
  but "are not under the supervision or direction of postal supervisors or
  managers," United States Postal Serv. and Ralph Bell, 288 NLRB 864 (1988).
  In Jenkins, because the employees were administratively disciplined as a
  result of the Postal Inspector investigations, the NLRB concluded that not
  allowing employees the Weingarten right in such situations would "in effect
  . . . nullify[] the Weingarten rights of any Postal Service employee who
  might be administratively disciplined as the result of a criminal
  investigation."  Jenkins, 241 NLRB at 142.  Finding the risk of disciplinary
  action to be the primary concern addressed by Weingarten, and not simply the
  elimination of inequality in bargaining power, the NLRB held that denying
  the Weingarten right in such situations would be "clearly repugnant to the
  historical development by the Board of the principle, approved by the
  Supreme Court in Weingarten, that Section 7 creates a statutory right in an
  employee to refuse to submit without union representation to an interview
  which he reasonably fears may result in his discipline."  Id.
  In sum, petitioners' arguments regarding the limitations on the breadth of
  the phrase "representative of the agency," which, of course, are not
  entitled to deference, find no support in either the Statute or applicable
  case law.  The Authority's interpretation, which is entitled to deference,
  is consistent with both the language of the Statute as well as public and
  private sector case law.  As the Third Circuit observed in DCIS, "[s]uch
  interpretation is exactly the sort of task that the [Authority] is meant to
  perform with respect to the [Statute] and has here accomplished."  855 F.2d
  at 100.
  C.  Interpreting the Phrase "Representative of the Agency" to Include Office
  of the Inspector General Investigators Does Not Conflict with the IG Act or
  OIG Investigative Functions
  Before reaching its decision in the case sub judice, the Authority carefully
  analyzed both the statutory language and legislative history of the IG Act
  to ensure that the IG Act did not conflict with the obligations set forth by
  Congress in section 7114(a)(2)(B).  Pet. App. 41a-47a.  Though recognizing
  the OIG's independence, the Authority pointed out that the OIG's autonomy is
  not absolute, particularly when OIGs conduct interviews that trigger
  employees' section 7114(a)(2)(B) rights.  Id. at 42a.  The Eleventh Circuit
  affirmed the Authority's determination that notwithstanding the NASA-OIG's
  statutory independence from NASA-HQ, the NASA-OIG investigator acted as a
  "representative of the agency" under section 7114(a)(2)(B).  As the court
  recognized, "nothing in the text or legislative history of the IG Act . . .
  justif[ies] exempting OIG investigators from compliance with the federal
  Weingarten provision."  Pet. App. 12a.
  Consistent with the Authority and the Eleventh Circuit, the DCIS court
  explained that the term "'representative' should be construed with reference
  to the objective of the [S]tatute," not based upon the independence of the
  OIG.  855 F.2d at 100.  OIG investigators are employees of the agency.  Id.
  When an OIG investigator conducts an interview in order "to solicit
  information concerning possible misconduct of [agency] employees in
  connection with their work," and the information discovered may be provided
  to the supervisors in the affected subcomponent of the agency to be utilized
  for agency purposes, the OIG investigator is a "representative" of the
  agency.  Id.
  As shown below, petitioners' argument that the IG Act establishes that the
  OIG operates independently of the agency is overbroad and "unsupported by
  [its] text and legislative history."  DCIS, 855 F.2d at 98.
  1.  Review of the Statutory Language and Legislative History of the IG
  Act and the Language of Section 7114(a)(2)(B) Reveals that the
  Provisions Do Not Conflict
      a.  Statutory Language
  Examination of the provisions of the IG Act reveals no conflict with the
  Statute, in general, or with section 7114(a)(2)(B) in particular.  As
  recognized by the court below, "[n]o provision of the IG Act suggests that
  Congress intended to excuse OIG investigators from honoring otherwise
  applicable federal statutes," such as section 7114(a)(2)(B).  Pet. App. 12a.
  Further, although the IG Act grants NASA-OIG a degree of independence from NASA-
  HQ, it also provides for NASA-OIG involvement in meeting agency objectives and
  in no way prohibits OIG cooperation with the agency.[15]
  As detailed in the Authority's decision (Pet. App. 44a), under section 2(1)
  of the IG Act, the investigations and audits that NASA-OIG is authorized to
  conduct and supervise are focused entirely on NASA-HQ's programs and
  operations.  5 U.S.C. App. 3 § 2(1).  Section 2(2) sets forth NASA-OIG's
  leadership role in promoting the "economy, efficiency, and effectiveness"
  of, and in preventing fraud and abuse in, NASA-HQ's programs and operations.
  5 U.S.C. App. 3 § 2(2).  Section 2(3) expands this theme by enabling the
  Administrator of NASA-HQ, through NASA-OIG, to continue to be "fully and
  currently informed about [agency] problems and deficiencies . . . and the
  necessity for and progress of corrective action" by NASA-HQ.  5 U.S.C. App.
  3 § 2(3).  Rather than establish absolute autonomy, these statutory
  provisions reveal that NASA-OIG routinely represents and safeguards NASA-
  HQ's interests, as it does when it investigates the actions of NASA-HQ
  employees.
      b.  Legislative History
  The goal of Congress in creating the OIGs was "'to more effectively combat
  fraud, abuse, waste and mismanagement in the programs and operations' of
  certain specified federal agencies."  Pet. App. 12a (quoting S.Rep. No.
  95-1071, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 2676 (1978)
  (IG Legis. History)).  To ensure accomplishment of this goal, "Congress
  believed it necessary to grant OIGs a significant degree of independence
  from the agencies they were charged with investigating."  Id.  That is, some
  amount of independence was "necessary to prevent agency managers from
  covering up wrongdoing within their agencies in order to protect their
  personal reputations and the reputations of their agencies."  Pet. App. 13a;
  see DCIS, 855 F.2d at 98 (OIG independence intended to "insulate Inspector
  Generals from agency management which might attempt to cover up its own
  fraud, waste, ineffectiveness, or abuse."); Pet. App. 45a.
  Although the OIG is an independent and objective unit, 5 U.S.C. App. 3 § 2,
  the OIG's independence from the agency is not unlimited.  For example,
  despite being given access to agency documents and personnel pursuant to 5
  U.S.C. App. 3, § 6(a)(1) and (3), the OIG's access is limited to that
  necessary "to do an effective job, subject, of course, to the provisions of
  other statutes, such as the Privacy Act."  IG Legis. History at 2709
  (emphasis added).  Also, the OIG's power to select and employ personnel
  necessary to conduct its business is "subject, of course, to the limits
  imposed by appropriations."  Id. at 2710.      As both the Eleventh and
  Third Circuits have noted, the congressional intent to insulate OIGs from
  interference by agency management is not frustrated by an employee's
  exercise during an interview of the rights protected by section 7114(a)(2)
  (B).  "We do not believe that the presence of a union representative at OIG
  interviews, as mandated by federal statute, creates the type of interference
  from which Congress sought to insulate OIG investigators."  Pet. App. 14a;
  see DCIS, 855 F.2d at 98.  Certainly the degree of intended independence is
  not so clearly set forth in either the statutory language or the legislative
  history so as to justify the creation of an "exemption" from section 7114(a)
  (2)(B) for OIG investigators.  See Pet. App. 15a; DCIS, 855 F.2d at 100.
  In summary, given the lack of any express statutory language in the IG Act
  or indication in the legislative history that compliance with section
  7114(a)(2)(B) would improperly interfere with the OIG's intended
  independence, section 7114(a)(2)(B) and the IG Act should be interpreted in
  a manner that gives effect to both laws while preserving each law's sense
  and purpose.  See, e.g., Morton, 417 U.S. at 551 ("it is the duty of the
  courts, absent a clearly expressed congressional intention to the contrary,
  to regard each [statute] as effective").  This is the course followed by the
  court below, which recognized that "absent a discernible present conflict
  between the IG Act and [section] 7114(a)(2)(B), we refuse to read the IG Act
  to have impliedly repealed . . . section [7114(a)(2)(B)] of the [Statute]."
  Pet. App. 15a (citing Morton, 417 U.S. at 551).
  2.  Compliance with Section 7114(a)(2)(B) Does Not Unduly Restrain the
  Conduct of OIG Investigations
  Petitioners argue that NASA-OIG's independence from agency management,
  established by the IG Act, prevents an OIG agent from being a
  "representative of the agency."  In support of this assertion petitioners
  list (Pet. Br. 25-33) numerous examples of the OIG's independent statutory
  functions.[16]  But petitioners fail to establish how the Authority's
  interpretation of this congressionally established rule threatens the OIG's
  ability to fulfill its independent obligations.
  For example, without supporting authority, petitioners suggest that the duty
  to report to the Attorney General, and the confidentiality associated
  therewith, would be compromised by attendance of union representatives at
  OIG interviews.  Petitioners do not explain how, in fact, the presence of
  the union representative would interfere with this reporting obligation, nor
  do they point to any provision in law establishing this "confidentiality"
  duty.  Further, compliance with section 7114(a)(2)(B) does not compromise
  any OIG duty to  notify the Attorney General of suspected criminal
  violations.  Pet. App. 46a.  Instead, as the Authority noted in agreement
  with this Court's Weingarten determination, the presence of a union
  representative, who could clarify facts or offer other pertinent
  information, would assist an investigation.  Id.  Such assistance, in turn,
  could lead to more thorough reporting by the OIG.
  Similarly, the presence of a union representative in an OIG interview
  provides no apparent obstacle to fulfillment of the congressional reporting
  requirements, nor have petitioners provided any such example.  In addition,
  as the Authority observed, the IG Act's congressional reporting requirements
  actually alleviate OIG concerns because the IG Act thus provides a forum to
  which OIGs may report if the presence of union representatives during the
  interview of bargaining unit employees poses significant problems for OIG
  investigators.  Pet. App. 47a-48a n.25.
  The OIG's claimed inability to perform its statutory function if a union
  representative is present during investigative interviews is further
  undermined by petitioners' acknowledgment (Pet. Br. 34) that an employee
  enjoys the right to the presence of an attorney during an OIG interrogation.
  This acknowledgment causes petitioners two significant problems.  First, the
  right to counsel, like the federal Weingarten right, is grounded in statute:
  "[a] person compelled to appear in person before an agency or representative
  thereof is entitled to be accompanied, represented, and advised by counsel."
  5 U.S.C. 555(b) (1994) (emphasis added); see Pet. App. 14a (Eleventh Circuit
  recognized 5 U.S.C. 555(b) right to counsel.)  As a result, petitioners find
  themselves in the inconsistent position of conceding that OIGs are the
  "representative" of the agency for the purposes of 5 U.S.C. 555(b), but not
  for the purposes of 5 U.S.C. 7114(a)(2)(B).
  Second, and as the Eleventh Circuit noted, it is not apparent "how the right
  of an employee to be represented by a union representative presents a
  significantly greater interference with OIG interviews than the existing
  right of an employee to be represented . . . by an attorney."  Pet. App.
  14a.  In response, petitioners attempt to distinguish an attorney, based on
  the attorney's duty of loyalty to the client, from a union representative,
  who might choose to share information concerning the interview with other
  members of the bargaining unit.  Petitioners thus assert that union
  representatives pose a greater threat to confidentiality.  Pet. Br. 34.  But
  petitioners' assertions are both unsupported and inaccurate.  Petitioners
  fail to identify any ethical or legal restriction that would preclude an
  attorney from subsequently sharing with others the matters about which the
  attorney's client was questioned in the presence of the third party OIG
  investigator.  As for union representatives, on the other hand, the
  Authority has interposed no objection to the negotiation of bargaining
  agreement proposals requiring confidentiality by bargaining unit employees
  and their representatives concerning information discussed during section
  7114(a)(2)(B) interviews.  See American Fed'n of Gov't Employees, Fed.
  Prison Council 33 and U.S. Dep't of Justice, Fed. Bureau of Prisons, 51 FLRA
  1112, 1117-1118 (1996).[17]
  Finally, petitioners' own arguments contradict the OIG's supposed total
  independence from agency management.  As explained in note 18 of their brief
  (Pet. Br. 31 n.18), OIGs rely upon agency management to threaten
  administrative discipline in order  to compel an employee's attendance and
  testimony at an IG interrogation.  Such cooperation and coordination between
  the agency and the OIG in the process of interrogating bargaining unit
  employees refutes both the agency's lack of involvement and the OIG's
  independence.
  In sum, petitioners have not demonstrated how the obligation of OIG
  investigators to comply with section 7114(a)(2)(B) poses any realistic
  threat to the IG Act's requirements.  Having failed to establish any direct
  inconsistency between the IG Act and the Statute, petitioners attack the
  manner in which the Authority has defined the role of the union
  representative and raise the specter of criminal and emergency situations.
  Neither of these efforts advances petitioners' cause.
  a.  The Authority's Interpretation of the Union Representative's Role
  According to petitioners, the role of the union representative, as construed
  by the Authority, will "impose[] major restrictions on the OIG's freedom to
  investigate" (Pet. Br. 34) because the Authority has broadly expanded the
  role of the  Weingarten representative.  Id. at 35-36.  However, as noted by
  the Eleventh Circuit, such doomsday predictions are belied by petitioners'
  failure to cite even one instance where the active participation of a
  representative has interfered with OIG investigations.  Pet. App. 14a.
  To be sure, the Authority has recognized that the purposes underlying
  section 7114(a)(2)(B)'s codification of the Weingarten right can only be
  achieved by allowing a union representative to take an active role in
  assisting an employee during an investigatory interview.  See United States
  Dep't of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 440
  (1990).  However, this right is not without limitations.  In Weingarten, the
  Supreme Court established that the union representative's presence "need not
  transform the interview into an adversary contest."  420 U.S. at 263.  At
  the same time the Court recognized that "[a] knowledgeable union
  representative could assist the employer by eliciting favorable facts, and
  save the employer production time by getting to the bottom of the incident
  occasioning the interview."  Id. at 263.  The Authority's case law is
  consistent with this theme.   See Federal Aviation Admin., New England
  Region, Burlington, MA, 35 FLRA 645, 652 (1990) (FAA).
  Contrary to petitioners' claims, the Authority has recognized limits on a
  union representative's participation in section 7114(a)(2)(B) examinations.
  See, e.g., American Fed'n of Gov't Employees, Nat'l Immigration &
  Naturalization Serv. Council and U.S. Dep't of Justice, Immigration &
  Naturalization Serv., 8 FLRA 347, 363-64 (1982), rev'd on other grounds,
  United States Dep't of Justice, Immigration & Naturalization Serv. v. FLRA,
  709 F.2d 724 (D.C. Cir. 1983) (a union representative does not have the
  right to make a recording of an investigatory interview); INS, N.Y. Dist.,
  46 FLRA at 1223 (agency need not postpone an investigatory interview until
  such time as preferred union officials are available to represent); Federal
  Prison Sys., Fed. Correctional Inst., Petersburg, Va., 25 FLRA 210, 228
  (1987) (a union representative may be rejected by management in order to
  preserve the integrity of the investigation).
  Petitioners mischaracterize Authority precedent in support of their
  assertion that the right to union representation will unduly interfere with
  investigations.  Pet. Br. 35.  For example, petitioners claim that according
  to DOJ, Twin Cities, 46 FLRA at 1553-1555, 1565-1569, a union representative
  has the "right to halt the examination and to step outside the hearing of
  investigators."  Pet. Br. 35.  On the contrary, the ruling in that case was
  that "[t]here is no indication in the record that a brief conference between
  the Union representative and the employee outside the hearing of the
  investigator would have been unduly disruptive, would have interfered with
  the objective of the examination, or would have compromised the integrity of
  the investigation."  46 FLRA at 1569.  In a subsequent decision, the
  Authority clarified that there is no per se right for an employee and a
  union representative to confer privately outside the interview room during a
  Weingarten examination.  See Bureau of Prisons, Office of Internal Affairs,
  Washington, D.C. and Phoenix, Ariz., 52 FLRA 421, 434 (1996).
  As another example, petitioners overstate problems associated with the
  Authority's recognition of the right of the employee and union
  representative to consult prior to questioning, as established in FAA, 35
  FLRA at 652-54.  Contrary to petitioners' assertion, the consultation right
  advances the purposes of Weingarten as has been recognized by the D.C.
  Circuit and the NLRB in the Postal Inspector context.  See USPS, 969 F.2d at
  1072, affirming United States Postal Serv. and American Postal Workers
  Union, East Bay Area Local, 303 NLRB 463 (1991).
  In asserting that the Authority's representation rights case law would allow
  union representatives to unduly interfere with OIG investigations,
  petitioners argue that union representatives "could do what the agency head
  cannot do--direct and limit how the Inspector General conducts an
  investigation."[18]  Pet. Br. 35; see 5 U.S.C. App. 3 § 3(a) (agency head
  may not "prevent or prohibit" OIG investigations).  As noted above,
  petitioners have yet to provide an example of union representation
  interfering in an OIG investigation.  Indeed, it is difficult to envision
  how the presence of a union representative at an interview would "prevent or
  prohibit" an OIG investigation.  5 U.S.C. App. 3 § 3(a).  How the presence
  of a union representative equates to the agency head's interference in an
  OIG investigation is likewise unclear.
  Petitioners also raise objections to the OIG's status as "representative of
  the agency" based upon the OIG's supposed law enforcement authority,[19]
  claiming that the Authority has conceded that law enforcement entities are
  exempt from the coverage of section 7114(a)(2)(B) (Pet. Br. 24, 42) and
  noting that OIGs may be involved with joint investigations with such law
  enforcement agencies.  Neither of these arguments suggests that the
  Authority's rule, as developed to date, should be rejected.  As a threshold
  matter, the IG Act does not grant any law enforcement authority to OIGs,
  save the responsibility set out in 5 U.S.C. App.3 § 4(d), to report to the
  Attorney General violations of Federal criminal law.[20]  In any event, and
  contrary to petitioners' assertion, the Authority has not conceded as a
  general matter that law enforcement entities are exempt from section 7114(a)
  (2)(B) coverage.  Rather, in the instant case, the Authority acknowledged
  that the FBI, for example, has statutory authority to "investigate any
  violation of title 18 involving Government officers and employees--(1)
  notwithstanding any other provision of law."  28 U.S.C. § 535(a) (emphasis
  added).  Pet. App. 43a n.23.  Moreover, the Authority also made clear that
  its decision "should not be construed as suggesting that [the Authority]
  would conclude in all circumstances that every employee of each subcomponent
  of agencies having government-wide, law-enforcement responsibilities, such
  as the Department of Justice, is a 'representative of the agency' for the
  purposes of section 7114(a)(2)(B)."  Id.  The Authority noted that such
  cases might well be distinguishable from the case at bar.  Id.
  The Authority's above-referenced, self-imposed limitation on the breadth of
  its decision herein also addresses petitioners' concern about joint
  investigations.  If, unlike the case at hand, an investigation were
  criminal, rather than administrative, and again unlike this case, conducted
  in coordination with a law enforcement agency, rather than solely by the
  NASA-OIG, the Authority, and in turn a United States Court of Appeals, could
  determine whether the Weingarten right should apply.  The fact that
  petitioners can envision circumstances involving OIGs where the Weingarten
  right might be inappropriate does not, however, lead to the conclusion that
  it should be denied in all instances involving OIGs.  The Authority has
  pointedly signaled that there may be circumstances where the questioner is
  not a "representative of the agency."  Id.   Such specific determinations
  are better left to the administrative expertise of the Authority and case-
  by-case adjudication, especially given this Court's "practice of deciding
  only 'concrete legal issues, presented in actual cases.'"  Fort Wayne Books,
  Inc. v. Indiana, 489 U.S. 46, 65 n.11 (1989) (quoting United Public Workers
  of America v. Mitchell, 330 U.S. 75, 89 (1947)).
  Finally, petitioners reference the Authority's determination that parties
  may negotiate representation rights beyond those provided in section 7114(a)
  (2)(B).  See American Fed'n of State, County, & Municipal Employees, Local
  3097 and United States Dep't of Justice, Justice Management Div., 42 FLRA
  412, 435 (1991).  Petitioners argue that this ruling subjects the
  representational rights to expansion.  Although their point is correct,
  petitioners ignore the statutory recourse options that exist when they are
  dissatisfied with an Authority decision regarding OIG investigations.
  First, pursuant to 5 U.S.C. 7123, such decisions are subject to judicial
  review and a court of appeals can disagree with the Authority's
  determinations.  This option was pursued successfully by the agency in NRC.
  25 F.3d 229.  Second, and as noted earlier, because the IG Act requires an
  agency Inspector General to report semiannually to Congress on, among other
  things, "significant problems . . . relating to the administration of
  programs and operations," 5 U.S.C. App. 3 § 5(a)(1), an Inspector General
  could report any significant problems resulting from compliance with section
  7114(a)(2)(B) directly to Congress.
  Rather than support petitioners' assertions, precedent  demonstrates that
  the Authority has adhered to the Court's teachings in Weingarten and
  carefully balanced the employer's right to interview its employees with the
  employee's right to be represented.  Instead of pronouncing across-the-board
  rules for circumstances not before it, the Authority has instead wisely
  indicated that it will decide specific section 7114(a)(2)(B) scenarios based
  on the facts of the cases if, and as, they arise.  Avenues are available to
  challenge Authority determinations that allegedly interfere with IG
  statutory responsibilities.
  b.  Criminal Investigations and Emergency Situations
  Petitioners argue that the Authority's ruling could improperly implicate the
  section 7114(a)(2)(B) right in a case involving criminal or emergency
  situations.  Pet. Br. 37.  Doubtless there will be investigations involving
  criminal activity, because virtually any workplace matter being investigated
  involves conduct that could be characterized as a crime.  For example, an
  altercation between two employees could be criminal assault; missing
  property or inventory shortages could be larceny or embezzlement; or drug
  use in the workplace could be possession of contraband.  In fact, the
  employee interviewed in the Weingarten case was suspected of theft.  420
  U.S. at 254-55.  In any event, the "Weingarten protections have been
  consistently accorded to private sector employees suspected of criminal
  conduct."  USPS, 969 F.2d at 1071-72; see also Department of the Treasury,
  Internal Revenue Serv., Jacksonville District and Dep't of the Treasury,
  IRS, Southeast Regional Office of Inspection, 23 FLRA 876 (1986).
  With regard to petitioners' claim that the OIG will be hindered in emergency
  circumstances, it should be noted that the Authority has not considered the
  applicability of section 7114(a)(2)(B) in an emergency situation.  As stated
  earlier, however, the Authority has determined that an agency is not
  obligated under the Statute to postpone an investigatory interview until a
  particular union representative is available.  See INS, N.Y., 46 FLRA at
  1223.  In addition, pursuant to section 7106(a)(2)(D), agencies have the
  statutory right to "take whatever actions may be necessary to carry out the
  agency mission during emergencies."
  In sum, petitioners have failed to demonstrate that compliance with section
  7114(a)(2)(B) will cause undue restraint on the OIG, particularly to any
  degree actually prohibited by the IG Act.  As stated in DCIS, "[g]iven the
  limited function of a Weingarten representative, it is conceivable to us
  that Congress might conclude that the employee's interest in representation
  outweighs the limited interference that his or her representative's presence
  might occasion" in OIG interviews.  855 F.2d at 101.
  II.  NASA-HQ, in Addition to NASA-OIG, Is Properly Responsible for the ULP
  Committed by NASA-OIG
  The Authority properly found that NASA-HQ violated section 7114(a)(2)(B),
  and, therefore, committed a ULP in violation of section 7116(a)(1) and (8)
  of the Statute.  The Eleventh Circuit, deferring to the Authority, properly
  upheld this determination.
  Contrary to petitioners' argument that the court below misconstrued the IG
  Act (Pet. Br. 46), the IG Act clearly states that NASA-OIG is "under the
  general supervision of the [agency] head."  5 U.S.C. App. 3 § 3(a).
  Although NASA-HQ may not prevent NASA-OIG from initiating, carrying out, or
  completing an audit or investigation, id., the IG Act gives no indication
  that an agency head is prohibited from directing the OIG to comply with a
  federal statute.
  As the Authority held in DOD, DCIS, it is appropriate for the agency
  headquarters with administrative responsibility for the OIG to advise
  inspectors general "of the pertinent rights and obligations established by
  Congress in enacting the [Statute].  More particularly, . . . investigators
  should be advised that they may not engage in conduct which unlawfully
  interferes with the rights of employees under the Statute."  28 FLRA at
  1151.  Holding NASA-HQ responsible for NASA-OIG's violation of section
  7114(a)(2)(B) fulfills the purposes of section 7114(a)(2)(B).
  In this regard, the Authority has long held that "when a component of an
  agency engages in conduct which unlawfully interferes with the protected
  rights of employees of another component," as did NASA-OIG in this case, "a
  violation of section 7116(a)(1) of the Statute will be found to have
  occurred."  DLA, 22 FLRA at 884.[21]  This concept has also been applied to
  sanction a parent agency that did not have a collective bargaining
  relationship with the union, as with NASA-HQ, for violations of the Statute
  based upon actions involving a subcomponent's responsibilities under the
  Statute.  See DVA, 48 FLRA at 1000-01; Headquarters, U.S. Air Force,
  Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Ill.,
  44 FLRA 117, 125 (1992), review denied sub nom. Headquarters, U.S. Air
  Force, Washington, D.C. v. FLRA, 10 F.3d 13 (D.C. Cir. 1993) (without
  opinion).
  In affirming the Authority's determination, the Eleventh Circuit recognized
  that "[i]n conducting investigations within the agency, NASA-OIG serves the
  interest of NASA-HQ by soliciting information of possible misconduct
  committed by NASA employees."  Pet. App. 19a.  Particularly persuasive to
  the court as indicative of the NASA-OIG's actions on behalf of NASA-HQ was
  "[t]he fact that the NASA-OIG agent in this case ordered the employee to
  answer questions or face dismissal."  Id.[22]  Accordingly, the court found
  "no clear error in the Authority's determination that NASA-HQ should be held
  responsible for the investigator's violation of [section] 7114(a)(2)(B)."
  Id.  The Authority urges this Court to make the same determination.
  Respectfully submitted.[23]

              DAVID M. SMITH*
              Solicitor

              ANN M. BOEHM
                Attorney

              * Counsel of Record

JANUARY 1999




[1]      "Pet. App." refers to the Appendix in the petition for a writ of
certiorari filed in this case.
[2]      The court's denial of the Agency's petition for rehearing and
suggestion of rehearing en banc is also appended to the petition.  Pet. App.
75a-76a.
[3]      For confidentiality and other reasons, the employee involved has been
referred to as  "P."  Id. n.11.
[4]      Early in the investigation, the NASA-OIG investigator determined that
P had not violated the law, and thus the investigation was administrative and
not criminal.  Id. at 23a-24a n.12.
[5]      Notwithstanding the fact that the NASA-OIG investigator allowed the
union representative to be present during the investigation of the bargaining
unit employee, the Authority concluded that restrictions on the union
representative's role prevented his effective representation during the
interrogation, and thus violated section 7114(a)(2)(B).  Id. at 33a.  In the
court below, this finding was not contested by the Agency.  Id. at 6a n.4.
Accordingly, it will not be addressed further herein.
[6]      The statutory scheme governing OIGs is set forth in the Inspector
General Act of 1978, 5 U.S.C. App. 3 §§ 1-12 (1994 & Supp. II 1996) (IG Act).
[7]      The Fourth Circuit also decided a related case that arose in the
context of a negotiability dispute.  United States Nuclear Regulatory Comm'n v.
FLRA, 25 F.3d 229 (4th Cir. 1994) (2-1 decision) (NRC).  The court reviewed and
rejected the Authority's determination that an agency was obligated to bargain
over four bargaining proposals implicating section 7114(a)(2)(B).  Id. at 236.
The court determined that the bargaining proposals, which defined employee
rights and procedures for all investigatory interviews, including those
conducted by the OIG, were non-negotiable because they interfered with the OIG's
independence as granted by the IG Act.  Id. at 235.  Decided after DCIS and
before DOJ, the NRC majority neither criticized nor viewed its decision as
inconsistent with DCIS; instead, the Fourth Circuit majority viewed the
Authority's negotiability determination as an expansion of "the limited holding
of [DCIS]."  Id.
[8]      The Authority observed that it is "clear and unchallenged that NASA is
an 'agency' under 5 U.S.C. § 7103(a)(3)."  Id. at 41a-42a.
[9]      As the Authority explained, "[t]his concept has its genesis in the
private sector."  Pet. App. 48a n.26.  Even a non-employer has been sanctioned
for violating the rights of bargaining unit employees.  See Hudgens v. NLRB, 424
U.S. 507, 510 n.3 (1976); Austin Co., 101 NLRB 1257, 1258-59 (1952).  Pet. App.
48a-49a n.26.
[10]      The Authority recognized (Pet. App. 51a) that in finding the parent
agency liable, it was deviating from its holding in the decision underlying the
D.C. Circuit's DOJ decision, U.S. Department of Justice, Washington, D.C. and
U.S. Immigration and Naturalization Service, Northern Region, Twin Cities,
Minnesota and Office of Inspector General, Washington D.C. and Office of
Professional Responsibility, Washington, D.C., 46 FLRA 1526, 1571 (1993) (DOJ,
Twin Cities).  Based upon its analysis in the instant case, however, the
Authority concluded that holding NASA-HQ, as well as NASA-OIG, responsible for
the ULP committed by NASA-OIG would effectuate the purposes of the Statute
because it is appropriate for agency headquarters to advise OIG personnel of
their responsibilities under the Statute.  Id. at 50a-51a.
[11]