IGs represent management, Supreme Court rules

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Federal employees have the right to union representation during inspector general investigations, because the IGs are acting as representatives of agency management, the Supreme Court ruled Thursday.

In a 5-4 decision, the court held in NASA vs. Federal Labor Relations Authority (98-369) that employees must be allowed union counsel when IG investigations could lead to disciplinary action.

"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," Justice John Paul Stevens wrote for the court. But not giving employees the right to union help during IG investigations when they face discipline "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."

The court's decision centered around the question of whether inspector general offices represent agency management. Under federal labor relations law, employees have the right to request union representation during investigations that may lead to discipline, but only when the investigators represent agency management.

NASA argued that IGs are independent of an agency's management hierarchy, and said the confidentiality of investigations would be compromised by allowing union representatives to participate. The Federal Labor Relations Authority (FLRA) contended that since IGs share their findings with agency management, they in effect represent management. The FLRA also argued that if NASA prevailed, agency managers could circumvent union representation rules by relying on IG investigations for even routine misconduct interviews.

"The investigators employed in NASA's [Office of the Inspector General] are unquestionably 'representatives' of NASA when acting within the scope of their employment," the court ruled.

In a dissenting opinion, Justice Clarence Thomas said agency managers cannot control much of IGs' work. Thomas said IG offices perform investigatory roles similar to that of law enforcement agencies.

"Surely it would not be reasonable to consider an FBI agent to be a 'representative' of agency management just because information developed in the course of his investigation of a union employee may be provided to agency management," Thomas said. "Merely providing information does not establish an agency relationship between management and the provider."

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