NASA v. FLRA, 527 U.S. 229, 14 (1999)

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Opinion of the Court

Thus, not all OIG examinations subject to 7114(a)(2)(B) will implicate an actual or apparent conflict of interest with the rest of the agency; and in many cases we can expect honest cooperation between an OIG and management-level agency personnel. That conclusion becomes more obvious when the practical operation of OIG interviews and 7114(a)(2)(B) rights are considered. The IGA grants Inspectors General the authority to subpoena documents and information, but not witnesses. 5 U. S. C. App. 6(a)(4). Nor does the IGA allow an OIG to discipline an agency employee, as all parties to this case agree. There may be other incentives for employee cooperation with OIG investigations, but formal sanctions for refusing to submit to an OIG interview cannot be pursued by the OIG alone. Such limitations on OIG authority enhance the likelihood and importance of cooperation between the agency and its OIG. See generally 6(a)(3), (b)(1)-(2) (addressing an Inspector General's authority to request assistance from others in the agency, and their duty to respond); 4(a)(5), (d); 50 F. L. R. A., at 616; App. to Pet. for Cert. 65a (noting information sharing between NASA-OIG and other agency officials). Thus, if the NASA-OIG investigator in this case told the employee that he would face dismissal if he refused to answer questions, 120 F. 3d, at 1210, n. 2, the investigator invoked NASA's authority, not his own.7

7 In fact, a violation of 7114(a)(2)(B) seems less likely to occur when the agency and its OIG are not acting in concert. Under the Authority's construction of the FSLMRS, when an employee within the unit makes a valid request for union representation, an OIG investigator does not commit an unfair labor practice by (1) halting the examination, or (2) offering the employee a choice between proceeding without representation and discontinuing the examination altogether. United States Dept. of Justice, Bureau of Prisons, 27 F. L. R. A. 874, 879-880 (1987); see also NLRB v. J. Weingarten, Inc., 420 U. S. 251, 258-260 (1975). Disciplining an employee for his or her choice to demand union participation or to discontinue an examination would presumably violate the statute, but such responses require more authority than Congress granted the OIG's in the IGA.

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