NASA v. FLRA, 527 U.S. 229, 25 (1999)

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

Thomas, J., dissenting

basis for its conclusion. OIG has no authority over persons employed within the agency outside of its Office and similarly has no authority to direct agency personnel outside of the Office. Inspectors General, moreover, have no authority under the Inspector General Act to punish agency employees, to take corrective action with respect to agency programs, or to implement any reforms in agency programs that they might recommend on their own. See generally Inspector General Authority to Conduct Regulatory Investigations, 13 Op. Off. Legal Counsel 54, 55 (1989); Congressional Research Service, Report for Congress, Statutory Offices of Inspector General: A 20th Anniversary Review 7 (Nov. 1998). The Inspector General is charged with, inter alia, investigating suspected waste, fraud, and abuse, see 5 U. S. C. App. §§ 2, 4, 6, and making policy recommendations (which the agency head is not obliged to accept), see §§ 4(a)(3), (4), but the Inspector General Act bars the Inspector General from participating in the performance of agency management functions, see § 9(a). Moreover, OIG is not permitted to be party to a collective-bargaining relationship. See 5 U. S. C. § 7112(b)(7) (prohibiting "any employee primarily engaged in investigation or audit functions" from participating in a bargaining unit).

Investigators within NASA's OIG might "represent" the agency if they acted as agency management's representative—essentially, if OIG was agency management's agent or somehow derived its authority from agency management when investigating union employees. And something akin to an agency theory appears to be the primary basis for the Authority's decision. The agency theory does have a textual basis—§ 7114(a)(2)(B)'s term "representative," as is relevant in this context, can mean "standing for or in the place of another: acting for another or others: constituting the agent for another esp[ecially] through delegated authority," or "one that represents another as agent, deputy, substitute, or delegate usu[ally] being invested with the authority of the princi-

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