266 F.3d 1228 (D.C. Cir. 2001)
U.S. Department of Justice, Washington, D.C. and Office of Inspector General, U.S. Department of Justice, Petitionersv.Federal Labor Relations Authority, RespondentAmerican Federation of Government Employees Local 709, Intervenor
No. 00-1433
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2001Decided October 9, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority
Howard S. Scher, Attorney, U.S. Department of Justice,  argued the cause for petitioners.  With him on the briefs was  William Kanter, Deputy Director.
Ann M. Boehm, Attorney, Federal Labor Relations Authority, argued the cause for respondent.  With her on the  brief was David M. Smith, Solicitor.  William R. Tobey,  Deputy Solicitor, entered an appearance.
Stuart A. Kirsch and Mark D. Roth were on the brief for  intervenor.
Before:  Tatel and Garland, Circuit Judges, and Williams,  Senior Circuit Judge*.
Opinion for the Court filed by Senior Judge Williams.
Williams, Senior Circuit Judge:


1
This is an appeal from the  Federal Labor Relations Authority's finding of an unfair  labor practice on the part of the Department of Justice's  Office of the Inspector General ("OIG").  The FLRA found  that the OIG had violated the so-called Weingarten rule  during its investigation of a Department employee, see NLRB  v. J. Weingarten, Inc., 420 U.S. 251 (1975) (codified as to  federal employees in 5 U.S.C.  7114(a)(2)(B)), by refusing  the employee's request for the assistance of a union representative.  Believing the case to be controlled by Supreme Court  precedent, we uphold the FLRA's decision.


2
*  *  *


3
The OIG received a report that an employee of the Federal  Correctional Institution Englewood, in Littleton, Colorado  had smuggled illegal drugs into that facility.  The employee,  a member of a bargaining unit, asked for union representation, but the investigating agents denied the request and  interviewed him anyway.  The criminal investigation was  later closed when the prison warden wrote a memorandum to  the employee informing him that "there was nothing to  substantiate the allegations, and that there would be no  further investigation."


4
The union representing the employee filed an unfair labor  practice charge, claiming that the agents' denial of the employee's request had violated 5 U.S.C.  7114(a)(2)(B).  That  section requires an agency to give an employee the opportunity to have a union representative at an interrogation under  certain circumstances.  The FLRA's General Counsel issued  a complaint.  The ALJ granted summary judgment for the  FLRA, and the Department and OIG filed exceptions.  In the  meantime the Supreme Court issued an opinion upholding a  prior FLRA decision that a NASA Inspector General was a  "representative of the agency" within the meaning of   7114(a)(2)(B), and that he therefore violated that section  when he interviewed a NASA employee without allowing  adequate union representation.  National Aeronautics and  Space Administration v. FLRA, 527 U.S. 229 (1999)  ("NASA").  Following that decision, the FLRA adopted the  ALJ's decision and order.  U.S. Department of Justice v.  Federal Labor Relations Authority, 56 FLRA 556 (2000).  It  rejected the Department's argument that, in view of the  Court's statement in NASA that it was not considering the  applicability of  7114(a)(2)(B) to "law enforcement officials  with a broader charge," 527 U.S. at 244 n.8, the section could  not properly be applied to the OIG's criminal investigations--as distinct from the administrative investigation at  issue in NASA.  Like the FLRA, we find no basis for carving  out such an exception from NASA.


5
*  *  *


6
The statutory provision at issue here provides in relevant  part:


7
(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at -


8
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if -


9
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee;  and


10
(ii) the employee requests representation. 5 U.S.C.  7114(a)(2)(B) (emphasis added).  As the section is  part of the FLRA's organic statute, we owe its interpretation  deference under Chevron U.S.A., Inc. v. Natural Resources  Defense Council, Inc., 467 U.S. 837 (1984).  See NASA, 527  U.S. at 234.  To the extent that the FLRA decision is simply  an interpretation of NASA itself, however, we owe the FLRA  no deference.  See New York v. Shalala, 119 F.3d 175, 180  (2d Cir. 1997) (holding that "an agency has no special competence or role in interpreting a judicial decision");  cf. Professional Reactor Operator Society v. United States Nuclear  Regulatory Commission, 939 F.2d 1047, 1051 (D.C. Cir. 1991)  (deference is inappropriate when the agency interprets a  statute it is not charged to administer).  In fact the case  turns on the force of the Department's efforts to distinguish  NASA, and we agree with the Authority's conclusion that the  attempted distinctions are flawed.  Like the Court in NASA  itself, we need not consider whether  7114(a)(2)(B) permits  other readings.  See NASA, 527 U.S. at 234.


11
As in NASA, no one here questions that there was an  "examination" of a bargaining unit employee, that the examination was "in connection with an investigation," that the  employee requested representation, or that the employee  reasonably believed that he might be subject to disciplinary  action.  See NASA, 527 U.S. at 233.  Thus, the only issue in  dispute is whether, as the Court found there, the Authority  could find that the OIG agents were "representative[s] of the  agency" when they conducted the interview.


12
To support the proposed distinction between criminal and  administrative investigations, the Department points to a  provision of the Inspector General Statute that it says creates  special consequences for an investigation's being criminal.  5  U.S.C. App.  4(d) requires any OIG agent to "report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a  violation of Federal criminal law."  Id.  According to the  Department, this implies that whenever a criminal investigation is underway, the OIG agent is for purposes of   7114(a)(2)(B) no longer a "representative of the agency" but  rather answers to the Attorney General.


13
First we note that  4(d) is triggered whenever an Inspector General comes upon "reasonable grounds to believe" that  federal criminal law was violated.  This is a broader test than  what the Department regards as the key distinction of this  case from NASA, namely the OIG's own classification of the  investigation as criminal;  our acceptance of it as controlling  would thus sweep an unknown number of administrative  inquiries into the exception.  More important, nothing in   4(d) overrides 5 U.S.C. App.  3(a), which requires that  each Inspector General shall "report to and be under the  general supervision of the head of the establishment involved...."  The NASA Court relied at least in part on this  provision in holding that OIG agents are "representatives" of  their respective agencies.  527 U.S. at 239.  Section 4(d)'s  extra reporting requirement does not extract OIG agents  from the organizational spot that is assigned them by   3(a)--under the head of the relevant agency.


14
Thus the Department's effort at a statutory distinction  between criminal and administrative investigations fails.  Its  remaining argument is mostly that the NASA decision rested  on factors that are peculiar to administrative investigations  and therefore it does not apply to criminal ones.  None of the  distinctions seems convincing.


15
First, the Department argues that NASA was based on the  fear that agency managers might hand off their dirty work to  OIG agents, thus circumventing  7114(a)(2)(B) by using the  OIG to conduct investigations for their own purposes.  See  NASA, 527 U.S. at 234.  With criminal investigations, the  Department says, this concern is "totally absent" because  agency managers have no "criminal investigative duties" in  the first place.  But the NASA decision rested (in part) on a  recognition that the overlaps between "pure" management  activities and OIG duties would naturally generate cooperation between agency managers and OIGs.  527 U.S. at 242. It would be astonishing for us to ignore the parallel, and  equally obvious, overlap of administrative and criminal enforcement goals and to create an exception resting on this  ignorance.  In fact, we once observed that "the results of  inspections, when no criminal proceedings ensue, are routinely turned over to management for possible use in disciplinary  actions."  U.S. Postal Service v. NLRB, 969 F.2d 1064, 1072  (D.C. Cir. 1992).


16
Second, the Department argues that NASA was in part  compelled by the fact that Inspectors General, when conducting an administrative investigation, need the cooperation of  agency managers, who can direct the employee's use of his  time--here, to attend the interview and answer questions. See NASA, 527 U.S. at 242.  The Department attributes this  power to the fact that the employee's refusal to answer  questions related to his duties may be used against him in an  administrative investigation.  See Kalkines v. United States,  473 F.2d 1391, 1393 n.4 (Ct. Cl. 1973).  In contrast, says the  Department, the employee's refusal to answer questions in a  criminal investigation may not be used against him.  See  Garrity v. New Jersey, 385 U.S. 493 (1967).  It follows that  the agency manager has "no role" to play in forcing the  employee to answer questions in a criminal investigation.


17
We cannot see that the "no role" consequence follows.  In  both administrative and criminal investigations, the employee  enjoys a Fifth Amendment right not to incriminate himself in  his answers to a government investigator.  The only difference appears to be that in administrative investigations, the  investigators usually grant criminal immunity to the employee, see Kalkines, 473 F.2d at 1393 n.4, so that they may  threaten the employee with administrative penalties unhampered by the Fifth Amendment.  But this is a choice made by  the Inspector General in a given case, depending on what  penalties he or she wishes to seek.  In other words, the  difference between administrative and criminal investigations  in this respect is one of investigative strategy, not one of law. In either case, both OIG and agency management can benefit  by mutual cooperation, and it was the likelihood of such  cooperation that the NASA Court saw as militating in favor  of treating OIG interrogators as "representatives of the agency."


18
Third, the Department argues that in a criminal investigation an employee has the right to an attorney and therefore doesn't need a union representative.  But nothing in the  language of the statute or of NASA suggests that the application of  7114(a)(2)(B) depends on whether a particular employee "needs" union representation.  Moreover, the section  implicates the union's rights as well.  See Weingarten, 420  U.S. at 260-61.  In fact, we've already rejected a suggestion  that an interrogatee's right to counsel could render   7114(a)(2)(B) inapplicable.  American Federation of Government Employees, Local 1941, AFL-CIO v. FLRA, 837  F.2d 495, 499 n.5 (D.C. Cir. 1988).


19
Apart from the supposedly distinguishing "factors" and the  reference to  4(d), the Department relies heavily on the  NASA Court's statement that it was not deciding the applicability of  7114(a)(2)(B) to "law enforcement officials with a  broader charge."  NASA, 527 U.S. at 244 n.8.  But the  reference doesn't appear to address OIG agents at all.  In the  previous sentence the Court mentioned the concern that  applying  7114(a)(2)(B) to the OIG might hinder "joint or  independent FBI investigations of federal employees."  Id. Thus the later reference to "law enforcement officials" clearly  means "FBI officials" or the like, not an agency's OIG  officials pursuing a criminal investigation on their own.  As  was true for the Court in NASA, we need not address the  possible application of  7114(a)(2)(B) to a joint OIG/FBI  investigation.


20
The Department also argues that application of   7114(a)(2)(B) to criminal investigations is "simply unworkable."  Specifically, it says, the union representative might be  called to testify at a trial, thereby working against the  employee's true interests.  But where an administrative investigation turns out to uncover criminality, the union representative may equally be called to testify.  And if the employee is concerned about the possible testimony of the union  representative, he can simply decide not to ask for one.  Cf.  U.S. Postal Service, 969 F.2d at 1072 n.5 (rejecting idea that  risks of a union representative's testimony against an employee could enable the employer to deny the Weingarten right). Perhaps inconsistently, the Department also says that application of  7114(a)(2)(B) will impede criminal investigations.   We have no doubt that there is a risk of such impediments,  but it presumably closely parallels the risks to effective  management (and successful criminal prosecutions) that flow  from application of  7114(a)(2)(B) to administrative investigations, risks that the Court regarded as "not weighty  enough to justify a nontextual construction of  7114(a)(2)(B)  rejected by the Authority."  NASA, 527 U.S. at 243-44.


21
Further, on the score of workability, the Department's  approach presents problems of its own.  Many if not most  investigations will have both administrative and criminal potential.  Classification appears to depend--as one would expect--on the ongoing flow of information.  The investigation  at issue in NASA, for instance, was instigated by information  from the FBI, see 527 U.S. at 231-32, and according to the  FLRA decision involved "a serious threat to co-workers,"  NASA, 50 F.L.R.A. 601, 1995 FLRA LEXIS 82, at *3 (1995). See also id. at *48 (ALJ decision, noting that documents "set  forth potential threats and plans for violence").  The investigator determined, "after consulting appropriate investigative  agencies," that the employee "had not violated the law and, as  a result, that the matter would be administratively, rather  than criminally, investigated."  Id. at *3 n.2.  At what point,  then, would the agent's investigation have become subject to   7114(a)(2)(B)?  When the agent--to some degree independently--decided to treat it administratively?  What if he had  viewed the matter as unclassified, and interviewed the employee in part in order to decide on the classification?  Such  possibilities erode the likelihood of any bright-line distinction  between administrative and criminal investigations.


22
*  *  *

Accordingly, the order of the FLRA is

23
Affirmed.



Notes:


*
 Senior Circuit Judge Williams was in regular active service at  the time of oral argument.


