NASA v. FLRA, 527 U.S. 229, 5 (1999)

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Cite as: 527 U. S. 229 (1999)

Opinion of the Court

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. 960 (1998).

II

The FSLMRS provides, in relevant part,

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

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

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

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

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

NASA and its OIG argue that, when 7114(a)(2)(B) is read in context and compared with the similar right to union representation protected in the private sector by the National Labor Relations Act (NLRA), the term "representative"

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