NASA v. FLRA, 527 U.S. 229, 15 (1999)

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

Opinion of the Court

Considering NASA-OIG's statutorily defined role within the agency, we cannot conclude that the proper operation of the IGA requires nullification of 7114(a)(2)(B) in all OIG examinations.

IV

Although NASA's and NASA-OIG's narrow reading of the phrase "representative of the agency" is supported by the text of neither the FSLMRS nor the IGA, they also present broader—but ultimately unpersuasive—arguments of policy to defeat the application of 7114(a)(2)(B) to OIG investigations.

First, NASA and NASA-OIG contend that enforcing 7114(a)(2)(B) in situations similar to this case would undermine NASA-OIG's ability to maintain the confidentiality of investigations, particularly those investigations conducted jointly with law enforcement agencies. Cf. 5 U. S. C. App. 5(e)(1)(C), (e)(2) (restricting OIG disclosure of information that is part of an ongoing criminal investigation). NASA and its OIG are no doubt correct in suggesting that the presence of a union representative at an examination will increase the likelihood that its contents will be disclosed to third parties. That possibility is, however, always present: NASA and NASA-OIG identify no legal authority restricting an employee's ability to discuss the matter with others. Furthermore, an employee cannot demand the attendance of a union representative when an OIG examination does not involve reasonably apparent potential discipline for that employee. Interviewing an employee who may have information relating to agency maladministration, but who is not himself under suspicion, ordinarily will not trigger the right to union representation. Thus, a variety of OIG investigations and interviews—and many in which confidentiality concerns are heightened—will not implicate 7114(a)(2)(B) at all. Though legitimate, NASA's and NASA-OIG's confidentiality concerns are not weighty enough to justify a

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