NASA v FLRA

• Citation: 119 S.Ct. 1979,527 U.S. 229,144 L.Ed.2d 258
• Decision Date: 17 June 1999
• Docket Number: 98369
• Parties: 120 F.3d 1208. SUPREME COURT OF THE UNITED STATES369 NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, etc., et al., PETITIONERS v. FEDERAL LABOR RELATIONS AUTHORITY et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [
• Court: United States Supreme Court

527 U.S. 229

119 S.Ct. 1979

144 L.Ed.2d 258

120 F.3d 1208. affirmed

SUPREME COURT OF THE UNITED STATES

No. 98 369

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, etc., et al., PETITIONERS v FEDERAL LABOR RELATIONS AUTHORITY et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[June 17, 1999]

Justice Stevens delivered the opinion of the Court.

On October 12, 1978, Congress enacted the Inspector General Act (IGA), 5 U.S.C. App. §1 et seq., p. 1381, which created an Office of Inspector General (OIG) in each of several federal agencies, including the National Aeronautics and Space Administration (NASA). The following day, Congress enacted the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. § 7101 et seq., which provides certain protections, including union representation, to a variety of federal employees. The question presented by this case is whether an investigator employed in NASA's Office of Inspector General (NASA OIG) can be considered a "representative" of NASA when examining a NASA employee, such that the right to union representation in the FSLMRS may be invoked. §7114(a)(2)(B). Although certain arguments of policy may support a negative answer to that question, the plain text of the two statutes, buttressed by administrative deference and Congress' countervailing policy concerns, dictates an affirmative answer.

I

In January 1993, in response to information supplied by the Federal Bureau of Investigation (FBI), NASA's OIG conducted an investigation of certain threatening activities of an employee of the George C. Marshall Space Flight Center in Huntsville, Alabama, which is also a component of NASA. A NASA OIG investigator contacted the employee to arrange for an interview and, in response to the employee's request, agreed that both the employee's lawyer and union representative could attend. The conduct of the interview gave rise to a complaint by the union representative that the investigator had improperly limited his participation. The union filed a charge with the Federal Labor Relations Authority (Authority) alleging that NASA and its OIG had committed an unfair labor practice. See 5 U.S.C. § 7116(a)(1), (8).

The Administrative Law Judge (ALJ) ruled for the union with respect to its complaint against NASA OIG. See App. to Pet. for Cert. 71a. The ALJ concluded that the OIG investigator was a "representative" of NASA within the meaning of §7114(a)(2)(B), and that certain aspects of the investigator's behavior had violated the right to union representation under that section. Id., at 64a 65a, 69a 70a. On review, the Authority agreed that the NASA OIG investigator prevented the union representative from actively participating in the examination and (1) ordered both NASA and NASA OIG to cease and desist (a) requiring bargaining unit employees to participate in OIG interviews under §7114(a)(2)(B) without allowing active participation of a union representative, and (b) likewise interfering with, coercing, or restraining employees in exercising their rights under the statute; and (2) directed NASA to (a) order NASA OIG to comply with §7114(a)(2)(B), and (b) post appropriate notices at the Huntsville facility. NASA, 50 F. L. R. A. 601, 602, 609, 622 623 (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 Authority's application for enforcement of its order. 120 F.3d 1208, 1215 1217 (CA11 1997). Because of disagreement among the Circuit Courts over the applicability of §7114(a)(2)(B) in such circumstances, see FLRA v. United States Dept. of Justice, 137 F.3d 683 (CA2 1997); United States Dept. of Justice v. FLRA, 39 F.3d 361 (CADC 1994); Defense Criminal Investigative Serv. v. FLRA, 855 F.2d 93 (CA3 1988), we granted certiorari. 525 U.S. __ (1998).

II

The FSLMRS provides, in relevant part,

"(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at

. . . . .

"(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if

"(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

"(ii) the employee requests representation." 5 U.S.C. § 7114(a).

In this case it is undisputed that the employee reasonably believed the investigation could result in discipline against him, that he requested union representation, that NASA is the relevant "agency," and that, if the provision applies, a violation of §7114(a)(2)(B) occurred. The contested issue is whether a NASA OIG investigator can be considered a "representative" of NASA when conducting an employee examination covered by §7114(a)(2)(B).

NASA and its OIG argue that, when §7114(a)(2)(B) is read in context and compared with the similar right to union representation protected in the private sector by the National Labor Relations Act, the term "representative" refers only to a representative of agency management "i.e., the entity that has a collective bargaining relationship with the employee's union." Brief for Petitioners 13. Neither NASA nor NASA OIG has such a relationship with the employee's union at the Huntsville facility, see 5 U.S.C. § 7112(b)(7) (excluding certain agency investigators and auditors from "appropriate" bargaining units), and so the investigator in this case could not have been a "representative" of the relevant "entity."

By its terms, §7114(a)(2)(B) is not limited to investigations conducted by certain "entit[ies]" within the agency in question. It simply refers to representatives of "the agency," which, all agree, means NASA. Cf. §7114(a)(2) (referring to employees "in the unit" and an exclusive representative "of an appropriate unit in an agency"). Thus, relying on prior rulings, the Authority found no basis in the FSLMRS or its legislative history to support the limited reading advocated by NASA and its OIG. The Authority reasoned that adopting their proposal might erode the right by encouraging the use of investigative conduits outside the employee's bargaining unit, and would otherwise frustrate Congress' apparent policy of protecting certain federal employees when they are examined and justifiably fear disciplinary action. 50 F. L. R. A., at 615, and n. 12. That is, the risk to the employee is not necessarily related to which component of an agency conducts the examination. See App. to Pet. for Cert. 65a (information obtained by NASA OIG is referred to agency officials for administrative or disciplinary action).

In resolving this issue, the Authority was interpreting the statute Congress directed it to implement and administer. 5 U.S.C. § 7105. The Authority's conclusion is certainly consistent with the FSLMRS and, to the extent the statute and congressional intent are unclear, we may rely on the Authority's reasonable judgment. See Federal Employees v. Department of Interior, 526 U.S. __, __ (1999) (slip op., at 5); Fort Stewart Schools v. FLRA, 495 U.S. 641, 644 645 (1990).

Despite the text of the statute and the Authority's views, NASA and NASA OIG advance three reasons for their narrow reading. First, the language at issue is contained in a larger section addressing rights and duties related to collective bargaining; indeed, 5 U.S.C. § 7114 is entitled "Representation rights and duties." Thus, other subsections define the union's right to exclusive representation of employees in the bargaining unit, §7114(a)(1); its right to participate in grievance proceedings, §7114(a)(2)(A); and its right and duty to engage in good-faith collective bargaining with the agency, §§7114(a)(4), (b). That context helps explain why the right granted in §7114(a)(2)(B) is limited to situations in which the employee "reasonably believes that the examination may result in disciplinary action" a condition restricting the right to union presence or participation in investigatory examinations that do not threaten the witness' employment. We find nothing in this context, however, suggesting that an examination that obviously presents the risk of employee discipline is nevertheless outside the coverage of the section because it is conducted by an investigator housed in one office of NASA rather than another. On this point, NASA's internal organization is irrelevant.

Second, the phrase "representative of the agency" is used in two other places in the FSLMRS where it may refer to representatives of agency management acting in their capacity as actual or prospective parties to a 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 and NASA OIG's characterization of §§7114(a)(2)(A) and 7103(a)(12), the fact that some "representative[s] of the agency" may perform functions relating to grievances and bargaining does not mean that other personnel who conduct examinations covered by §7114(a)(2)(B) are not also fairly characterized as agency "representative[s]." As an organization, an agency must rely on a variety of representatives to carry out its functions and, though acting in different capacities, each may be acting for, and on behalf of, the agency.

Third, NASA and NASA OIG assert that their narrow construction is supported by the history and purpose of §7114(a)(2)(B). As is evident from statements by the author of the provision1 as well as similar text in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), this section of the FSLMRS was patterned after that decision. In Weingarten, we...