FLRA v. U.S. Department of Justice, 125 F.3d 106 (2d Cir. Oct. 7, 1999)

No. 97-4001

IN THE UNITED
STATES COURT
OF APPEALS
FOR THE SECOND CIRCUIT

_______________________________

FEDERAL LABOR RELATIONS AUTHORITY,
                  Petitioner

v.

U. S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.,
AND U.S. DEPARTMENT OF JUSTICE, INS, NEW YORK, NEW YORK,
AND U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE
INSPECTOR GENERAL, WASHINGTON, D.C.,
                  Respondents
_______________________________



ON APPLICATION FOR SUMMARY ENTRY
OF A JUDGMENT ENFORCING AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



PETITIONER'S PETITION FOR REHEARING
WITH SUGGESTION FOR REHEARING IN BANC



            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Deputy Solicitor

            ANN M. BOEHM
              Attorney

            Federal Labor Relations Authority
            607 14th Street, N.W.
            Washington, D.C.  20424
            (202) 482-6620




TABLE OF CONTENTS

I.  Preliminary Statement in Support of Rehearing  1

II.  Background  2

III.  Argument  5

A.  The atypical procedural aspects of this case
resulted in erroneous decision making by the panel  5

B.  The panel's decision overlooks and misapprehends material issues of law and
fact with regard to
section 7114(a)(2)(B)  8

C.  The panel's disregard for the administrative
process is an issue of exceptional importance that merits rehearing  14

IV.  Conclusion  15



ADDENDA

FLRA v. U.S. Department of Justice, Washington, D.C.,
  U.S. Department of Justice, Immigration and
  Naturalization Service, New York District, New York,
  and Department of Justice, Office of the Inspector
  General, Washington, D.C., No. 97-4001
  (2nd Cir. Sept. 25, 1997)  A

Letter from the Clerk, Court of Appeals for the Second
  Circuit, to the parties, dated February 10, 1997,
  directing the parties to appear on the Court's motion
  calendar and orally argue the motion  B

Department of Veterans Affairs, Los Angeles Regional Office,
  Los Angeles, Cal. v. FLRA, 1992 WL 391167 (D.C. Cir.
  Dec. 10, 1992)  C

Portions of the Collective Bargaining Agreement between
  U.S. Immigration and Naturalization Service and National
  Immigration and Naturalization Service Council  D



TABLE OF AUTHORITIES

Cascade Broadcasting Group, Ltd. V. FCC, 822 F.2d 1172
  (D.C. Cir. 1987)  6

Defense Criminal Investigative Service, Department of Defense
  v. FLRA, 855 F.2d 93 (3d Cir. 1988)  5

Department of Veterans Affairs, Los Angeles Regional Office,
  Los Angeles, Cal. V. FLRA, 1992 WL 391167
  (D.C. Cir. Dec. 10, 1992).   8

EEOC v. FLRA, 476 U.S. 19 (1986)  14

FLRA v. U.S. Dep't of Veterans Affairs, 958 F.2d 503
  (2d Cir. 1992)  7

FLRA v. United States Dep't of Commerce, 962 F.2d 1055
  (D.C. Cir. 1992)  6, 7

NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)  passim

FLRA v. National Aeronautics and Space Administration,   Washington, D.C., and
  National Aeronautics and Space   Administration, Office of the Inspector General,
  Washington, D.C.,120 F.3d 1208 (11th Cir. 1997)  5

Sills v. Bureau of Prisons, 761 F.2d 792 (D.C. Cir. 1985).  6

U.S. Postal Serv. v. NLRB, 969 F.2d 1064 (D.C. Cir. 1992)  11

United States Dep't of Justice v. FLRA, 39 F.3d 361
  (D.C. Cir. 1994)  5



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

AFGE, Local 2986 and U.S. Dep't of Defense, NGB, The Adjutant
  General, State of Oregon, 51 FLRA 1549 (1996)  4

Department of Justice, Immigration and Naturalization
  Service, Border Patrol, El Paso, Texas, 36 FLRA 41
  (1990)  11



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

General Services Administration, National Capital Region,
  Federal Protective Serv. Div., Washington, D.C.,
  52 FLRA 563 (1996)  14



FEDERAL STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)  1
  5 U.S.C. § 7114  5, 10
  5 U.S.C. § 7114(a)(2)(B)  passim
  5 U.S.C. § 7123(c)  passim
  5 U.S.C. § 706(2)(A)  11

National Labor Relations Act, 29 U.S.C. § 160(e)  6



CODE OF FEDERAL REGULATIONS

5 C.F.R. § 2423.29(a)  1
5 C.F.R. § 2423.41(a)  1



LEGISLATIVE HISTORY

124 Cong. Rec. 29,184 (1978), reprinted in Subcommittee on
  Postal Personnel and Modernization of the Committee on
  Post Office and Civil Service, 96th Cong., 1st Sess.,
  Legislative History of the Federal Service Labor-
  Management Relations Statute, Title VII of the Civil
  Service Reform Act of 1978, at 926 (1979)  9



MISCELLANEOUS

Circuit Rule 15.1 of the U.S. Court of Appeals for the D.C. Circuit  7
Fed. R. App. P. 15.1  7
Fed. R. App. P. 31  7
Fed. R. App. P. 35  1
Fed. R. App. P. 40  1
Local Rule 27(b)  6




I.  Preliminary Statement in Support of Rehearing

  Pursuant to Fed. R. App. P. 35 and 40, the petitioner Federal Labor
  Relations Authority ("FLRA" or "Authority") respectfully petitions the Court
  for rehearing, and suggests rehearing in banc, with respect to the decision
  of a panel of the Court (Circuit Judges Newman, Kearse, and Friedman) issued
  September 25, 1997.  (Addendum (Add.) A.)  In response to the Authority's
  application for summary enforcement, the panel denied enforcement of an
  Authority order determining that the Department of Justice (DOJ), Department
  of Justice Office of Inspector General (DOJ/OIG), and New York Immigration
  and Naturalization Service (NY INS) (collectively the "agency") had
  committed unfair labor practices (ULPs).[1]  Specifically, the decision and
  order found that the agency had failed to comply with section 7114(a)(2)(B)
  of the Federal Service Labor-Management Relations Statute, as amended, 5
  U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) ("Statute") in denying bargaining
  unit employees union representation at examinations conducted by DOJ/OIG
  personnel from which the employees reasonably feared disciplinary action
  might result.[2]
  In the decision denying enforcement of the Authority's order, the panel, sua
  sponte and without any supporting Authority or other court of appeals
  precedent, created a new criterion for determining whether the section
  7114(a)(2)(B) right to representation applies in the particular
  investigatory situation involved.  According to the panel, the section
  7114(a)(2)(B) representation right arises only in interrogations about
  matters within the scope of collective bargaining.  The panel then
  determined that the interrogations in the instant case concerned matters
  outside the scope of collective bargaining.
  An atypical procedure preceded the panel's decision in this case and laid
  the groundwork for an erroneous decision that overlooks and misapprehends
  material points of law and fact with regard to the section 7114(a)(2)(B)
  representation right.  Moreover, the panel has created this entirely new
  factor concerning the section 7114(a)(2)(B) right to representation without
  respect for the principles of administrative exhaustion and deference to the
  expertise of the administrative agency.  Further, it has done so in its
  consideration of a legal issue of exceptional importance in federal sector
  labor law--the issue of whether the section 7114(a)(2)(B) representation
  right applies to interrogations by agency Office of Inspector General (OIG)
  agents.

II.  Background

  As noted above, the ALJ issued a recommended decision in which he concluded
  that the agency had committed ULPs by denying bargaining unit employees
  union representation at examinations conducted by DOJ/OIG personnel from
  which the employees reasonably feared disciplinary action might result.  The
  agency did not file exceptions to the ALJ's decision and order with the
  Authority.  As such, the ALJ's decision and order became the non-
  precedential findings, conclusions, and decision and order of the Authority.
  The agency was thus ordered to comply with the ALJ's order, which the agency
  refused to do.
  The Authority applied to this Court for summary entry of a judgment
  enforcing its order against the agency.  The Authority argued that pursuant
  to section 7123(c) of the Statute,[3] the agency had waived all objections
  to the order, that there were no contestable issues before the Court, and
  that the Authority was entitled to summary enforcement of its order.
  Shortly after the filing of these initial documents, the Clerk of Court
  directed the parties to appear on the Court's motion calendar and orally
  argue the motion.  (Add. B.)  The panel's questioning at oral argument
  focused on jurisdictional issues.  (Audio tape of oral argument held on
  February 18, 1997 (on file in Clerk's office).)  At the conclusion of the
  argument, the panel requested briefing.[4]  The panel established an
  abbreviated briefing schedule with the Authority, as the movant, filing
  first.[5]
  The Authority's brief argued for summary enforcement based upon the agency's
  failure to file exceptions and the language of section 7123(c).  The
  agency's brief maintained that the Authority had no jurisdiction to consider
  whether DOJ/OIG was guilty of a ULP, and further, that the extraordinary
  circumstance of "futility" excused the agency's failure to file exceptions.
  The panel determined that it had jurisdiction to consider the merits of the
  Authority's decision based upon the extraordinary circumstances exception to
  section 7123(c).  In that regard, the panel found that it would have been
  futile for the agency to file exceptions because the Authority "has
  previously made clear its position that section 7114(a)(2)(B)  applies to
  questioning by OIG agents."[6]  (Add. A 7-8.)
  With respect to the merits of the Authority's decision, the panel held, in
  virtual agreement with the Third and Eleventh Circuits, that the appropriate
  "agency" under section 7114(a)(2)(B) is the parent agency, DOJ, and that the
  DOJ/OIG is properly considered to be a "representative of the agency."[7]
  However, in contrast to those circuits' holdings, the panel then limited its
  holding to reflect that "the rights and obligations imposed by section 7114
  have no application to matters beyond the scope of collective bargaining."
  Based upon its finding that the "pending case involves interrogation about
  matters outside the scope of collective bargaining"--serious criminal
  offenses and a firearms policy--the panel held that section 7114(a)(2)(B)
  was inapplicable to the interrogation in this case.  (Add. A 12-14.)

III.  Argument

  A.  The atypical procedural aspects of this case resulted in erroneous
  decision making by the panel
  Numerous irregular procedural aspects in this case--the agency's failure to
  file exceptions, the Authority's application for summary enforcement, oral
  argument on the motion calendar and prior to briefing, an abbreviated
  briefing schedule, and an inverted briefing order--contributed to the
  panel's erroneous decision.  As a result of these unusual procedures, the
  panel's engagement in plenary review of this important federal sector labor
  issue in the context of summary enforcement proceedings was not informed by
  an administrative decision or full briefing on the merits.   The panel's
  action was inappropriate and led to an erroneous decision that requires
  rehearing or rehearing in banc.
  Based upon the agency's failure to file exceptions to the ALJ's decision and
  failure to comply with the Authority's order, the Authority sought summary
  disposition of the case in this Court.[8]  Summary disposition is
  appropriate when "the merits of the appeal or petition for review are so
  clear that 'plenary briefing, oral argument, and the traditional
  collegiality of the decisional process would not affect our decision.'"
  Cascade Broadcasting Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C. Cir.
  1987) (quoting Sills v. Bureau of Prisons, 761 F.2d 792, 793-94 (D.C. Cir.
  1985)).  The agency's failure to file exceptions rendered this case
  appropriate for summary disposition because, as set forth in section 7123(c)
  of the Statute, "[n]o objection that has not been urged before the Authority
  . . . shall be considered by the court."  5 U.S.C. § 7123(c).[9]
  This proceeding did not, in any way, resemble an Authority application for
  enforcement for which plenary review is requested or expected.  Cf. FLRA v.
  United States Dep't of Commerce, 962 F.2d 1055 (D.C. Cir. 1992) (Court
  reviewed agency's arguments in enforcement proceeding brought by Authority;
  agency had, however, filed exceptions with Authority).  The Authority's
  initial filing was its "Application for Summary Entry of a Judgment
  Enforcing an Order of the Federal Labor Relations Authority."  In its prayer
  for relief in the application (Joint Appendix (J.A.) 439), at oral argument,
  and in its briefs in support of the application filed pursuant to the
  panel's directive at oral argument (Authority Brief at 16, Reply Brief at
  17), the Authority sought summary enforcement of its order.
  In connection with the summary proceeding, the oral argument in this case
  occurred on the motion calendar.  (Add. B.)  The briefing schedule,
  established by the panel and counsel for the parties, was substantially
  abbreviated.  As noted at n.5 above, the entire briefing process lasted four
  weeks, rather than the nearly three months that would be typical under the
  briefing schedule in Fed. R. App. P. 31.
  The briefing order, with the Authority proceeding first, also varied from
  normal procedure.  The order did not reflect the application of Fed. R. App.
  P. 15.1 which provides that parties adverse to the NLRB in enforcement
  actions shall proceed first on briefing.[10]  In this case, the Authority
  filed the first brief--a procedure acceptable to the Authority based on its
  request for summary disposition.  However, had plenary review been
  contemplated, the agency should have been directed to file the first brief.
  In rendering its decision, the panel did not reference the fact that the
  Authority had applied for summary enforcement.  Instead, it expressed
  surprise at the Authority's suggestion that "it will have some later time to
  present its views on the merits, even though we are considering its petition
  for enforcement of its order."  (Add. A 11, n.6.)  The Authority, however,
  in contemplation of its motion for summary disposition, as well as the
  abbreviated and inverted briefing schedule, reasonably anticipated that the
  panel would not consider the merits of this case, at least not without
  further briefing.[11]
  In sum, these procedural abnormalities contributed significantly to the
  panel's erroneous decision and reinforce the need for rehearing in this
  case.
B.  The panel's decision overlooks and misapprehends material issues of law and
fact with regard to section 7114(a)(2)(B)
1.  The panel's denial of enforcement is premised on the mistaken concept that
the section 7114(a)(2)(B) representation right is dependent on whether the
investigation concerns a matter within the scope of collective bargaining.  In
this case, the panel not only lacked the Authority's consideration of this
concept in the first instance, but also acted without the benefit of briefing by
the parties.  The panel's unassisted venture into the section 7114(a)(2)(B)
arena resulted in misinterpretation of the law.  As set forth below, this
holding by the panel is overly restrictive because it establishes a new
criterion limiting the representation right and, for practical purposes, is
unworkable.
  Section 7114(a)(2)(B) provides that an exclusive representative "shall be
  given the opportunity to be represented at any examination of an employee in
  the unit by a representative of the agency in connection with an
  investigation" if the employee reasonably believes that discipline may
  result from the examination and the employee requests representation.  5
  U.S.C. § 7114(a)(2)(B).  This statutory provision reflects the private
  sector representational right established by the Supreme Court in
  Weingarten.  Weingarten, 420 U.S. at 257-58.[12]
  The panel's sua sponte holding[13] limiting representation rights to the
  scope of bargaining is significantly narrower than both Authority and other
  court of appeals precedent interpreting the breadth of the Weingarten right.
  The panel did not cite any Authority or other case law in support of its
  conclusion,[14] but rather premised the conclusion on the panel's
  independent determination that the "Weingarten provision is a part of
  section 7114, which is labeled 'Representation rights and duties,'" and a
  key part of section 7114 is the requirement that parties negotiate in good
  faith.  (Add. A 13.)
  With regard to OIG agents and the representation right, the crucial issue
  prior to this panel's decision has been whether an OIG agent is considered a
  "representative of the agency" within the meaning of section 7114(a)(2)(B).
  On this aspect of the section 7114(a)(2)(B) issue, the panel agreed in part
  with Authority, Third Circuit, and Eleventh Circuit precedent in determining
  that the OIG agent is indeed a "representative of the agency."  Nonetheless,
  the panel proceeded beyond any prior section 7114(a)(2)(B) or Weingarten
  holdings, and beyond any arguments raised by the parties, to create a new
  and overly restrictive criterion in the section 7114(a)(2)(B) representation
  arena--whether the context of the interrogation involved matters within the
  scope of bargaining.
  The panel's "context of the interrogation" test is inconsistent with
  established Weingarten law and is problematic from a practical standpoint.
  Of particular import to the panel in applying this factor to this case was
  the "serious criminal" nature of the offenses investigated.  (Add. A 14.)
  According to the panel, "[c]learly, such matters are not within the scope of
  collective bargaining."  Id.
  First, the panel's conclusion is inconsistent with holdings of the Authority
  in the Weingarten area.  As indicated, the panel reached this determination
  without any reliance on or reference to Authority or other case law.
  Indeed, the Authority has expressly concluded that "section 7114(a)(2)(B)
  applies to examinations arising out of criminal investigations."  Department
  of Justice, Immigration and Naturalization Service, Border Patrol, El Paso,
  Texas, 36 FLRA 41, 49 (1990), rev'd on other grounds, 939 F.2d 1170 (5th
  Cir. 1991).[15]  In this connection, the Authority found that "Congress
  intended section 7114(a)(2)(B) to apply to all examinations in connection
  with all investigations, not just to examinations of employees in connection
  with non-criminal matters."  Id.  The panel did not reference any Authority
  precedent on this matter, much less conclude that this determination was
  "arbitrary, capricious, an abuse of discretion, or otherwise not in
  accordance with law."  5 U.S.C. § 7123(c); 5 U.S.C. § 706(2)(A).  In
  addition, neither party briefed this particular issue, nor was it ever
  considered by the Authority because no exceptions were filed by the agency
  in this case.
  Second, the panel's reliance upon the "criminal" aspect of the matter being
  investigated is problematic because of the difficulty with making a valid
  and reliable distinction between "criminal" and "administrative" matters.
  Virtually any workplace matter being investigated involves conduct that
  could be characterized as a crime.[16]  Further, while the conduct being
  investigated could be considered "criminal," the investigation could be
  purely "administrative," as in this case where the employees interrogated
  were assured that the investigation was of an "administrative" and not a
  criminal nature.  (J.A. 412-414, 416.)
  Lastly, the panel's resolution of the case overlooks practical problems with
  a test dependent upon the context of the interrogation.  As evidenced by the
  record in this case, the nature of an interrogation often evolves as it
  occurs, thus making it difficult, if not impossible, under the panel's test
  to determine at what point during an investigation an employee is entitled
  to representation and at what point the employee is not.  The investigation
  of immigration inspector Mike Lixandriou, for example, began as an
  "investigation into allegations of abuse of authority." (J.A. 141.)
  However, it also included "a lot of personal questions about [himself],
  [his] spouse, and some of [his] co-workers," (J.A. 145), and inquired into
  the possibility of the taking of bribes (J.A. 146).  Employing the panel's
  test, when the inquiry focused on Lixandriou's co-workers, the interrogation
  involved matters within the scope of collective bargaining,[17] and the
  employee was entitled to representation.  According to the panel, however,
  the employee would not have been entitled to representation during that
  portion of the interrogation concerning possible acceptance of bribes.
  In short, the panel's "context of the interrogation" standard is unworkable
  for the employee, the exclusive representative of the employees, and the
  employer.  It is also contrary to Authority and other circuit precedent
  involving both private and public sector representation rights.  For these
  reasons, this determination merits rehearing by the Court.
2.  Even if the panel's establishment of the completely new standard for section
7114(a)(2)(B) rights is acceptable, the panel's determination, without
consideration of any Authority precedent or without remand to the Authority,[18]
that the case involved investigations about matters "outside the scope of
collective bargaining" is improper and merits rehearing.  As noted above, the
panel's decision proclaims, without explanation, that allegations of serious
criminal offenses and violations of a firearms policy are "clearly" outside the
scope of collective bargaining.  Contrary to the panel's determination, however,
the DOJ/INS bargaining agreement and analogous Authority precedent indicate that
firearms policies are within the scope of collective bargaining.
  First, the collective bargaining agreement for DOJ/INS--a copy of which the
  panel requested and received, in part,[19] prior to issuing this decision--
  includes Article 24, Firearms and other Weapons.  (Add. D.)  Second, the
  Authority has held that an agency's firearms policy is subject to the
  collective bargaining process.  General Services Administration, National
  Capital Region, Fed. Protective Serv. Div., Washington, D.C., 52 FLRA 563,
  568 (1996).
  C.  The panel's disregard for the administrative process is an issue of
  exceptional importance that merits rehearing
  The panel's action here falls into the trap the Supreme Court warned against
  in Weingarten.  That is, "[t]he Court of Appeals impermissibly encroached
  upon the [Authority's] function in determining for itself" the employee's
  right to representation in an investigatory interview.  Weingarten, 420 U.S.
  at 266.  The agency's failure to file exceptions resulted in no Authority
  consideration of this case.  Section 7123(c) exists to ensure administrative
  exhaustion.  EEOC v. FLRA, 476 U.S. 19, 25 (1986) ("Section 7123(c) speaks
  to courts, not parties, and its plain language evinces an intent that the
  FLRA shall pass upon issues arising under the Act, thereby bringing its
  expertise to bear on the resolution of those issues.")
  The panel has encroached upon the Authority's function in this case and in
  so doing, has issued erroneous law.  The panel issued its decision without
  any consideration of the case by the Authority and without full briefing by
  the parties.  At a minimum, the panel should have remanded the case to the
  Authority for consideration of whether the matters investigated by the
  DOJ/OIG agents fall within the scope of collective bargaining.  The
  exceptional importance both of the section 7114(a)(2)(B) representation
  right in the federal sector, and of the need for administrative exhaustion
  for proper judicial review, evidence the propriety of rehearing in banc in
  this case.

IV.  Conclusion

  For the foregoing reasons, the panel decision should be vacated and the case
  reheard either by the panel or in banc.
   Respectfully submitted.



DAVID M. SMITH           WILLIAM R. TOBEY
Solicitor                Deputy Solicitor



ANN M. BOEHM
Attorney                Federal Labor Relations Authority
                        607 14th Street, N.W., Suite 330
                        Washington, D.C.  20424

DATED: November 6, 1997    (202) 482-6620




IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

_______________________________

FEDERAL LABOR RELATIONS AUTHORITY,
            Petitioner

                      v.               No. 97-4001

U. S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C., AND U.S. DEPARTMENT
OF JUSTICE, INS, NEW YORK, NEW YORK,
AND U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE INSPECTOR GENERAL,
WASHINGTON, D.C.
                          Respondents
_______________________________



CERTIFICATE OF SERVICE

  I hereby certify that copies of the Petitioner's Petition For Rehearing With
  Suggestion For Rehearing In Banc have been served this day, by mail, upon
  the following:

        William Kanter, Esq.
        Deputy Director, Appellate Staff

        Howard S. Scher, Esq.
        Attorney, Appellate Staff

        Civil Division, Room 7415
        Department of Justice
        10th & Pennsylvania Ave., N.W.
        Washington, D.C.  20530


                          Thelma Brown
                          Paralegal Specialist

DATE: November 6, 1997



[1]      Because the agency did not file exceptions to the Administrative Law
Judge's (ALJ) decision, the Authority's decision and order adopted the findings,
conclusions, and recommendations of the ALJ.  5 C.F.R. § 2423.41(a) (1997)
(formerly 5 C.F.R. § 2423.29(a)).
[2]      Section 7114(a)(2)(B) codifies important representational rights for
federal sector employees that correspond to the rights private sector employees
enjoy under the Supreme Court's Weingarten decision.  See NLRB v. J. Weingarten,
Inc., 420 U.S. 251 (1975) (Weingarten).
[3]      Section 7123(c) of the Statute provides that "[n]o objection that has
not been urged before the Authority, or its designee, shall be considered by the
court, unless the failure or neglect to urge the objection is excused because of
extraordinary circumstances."  5 U.S.C. § 7123(c).
[4]      In response to a question from counsel regarding the intended scope of
briefing, the panel asked for a brief advising why the panel should grant the
Authority's "motion for summary judgment, bearing in mind whatever obstacles you
understand are in your way."  (Audio tape of oral argument.)
[5]      Specifically, the Authority had one week to file its initial brief,
the agency was given two weeks to respond, and the Authority was given one week
thereafter to file its reply brief.
[6]      The Authority respectfully disagrees with the panel's finding on this
issue.  The Authority has previously reconsidered and reversed its position on a
specific issue.  See, e.g., AFGE, Local 2986 and U.S. Dep't of Defense, NGB, The
Adjutant General, State of Oregon, 51 FLRA 1549 (1996) (reversing prior holding
regarding reviewability of severance pay grievances).  However, we do not
further contest the futility finding herein.
[7]      See Defense Criminal Investigative Serv., Dep't of Defense v. FLRA,
855 F.2d 93 (3d Cir. 1988) (DCIS); FLRA v. National Aeronautics and Space
Administration, Washington, D.C., and National Aeronautics and Space
Administration, Office of the Inspector General, Washington, D.C., 120 F.3d 1208
(11th Cir. 1997) (NASA). But cf. United States Dep't of Justice v. FLRA, 39 F.3d
361 (D.C. Cir. 1994) (OIG agent is not a "representative of the agency").
[8]      This Court's rules specifically provide for filing of motions for
"dismissal or summary Affirmance, including summary enforcement of an agency
order."  Local Rule 27(b).
[9]      The similar statutory provision in section 10(e) of the National Labor
Relations Act (NLRA), 29 U.S.C. § 160(e), is regularly employed by courts of
appeals in granting summary enforcement of National Labor Relations Board (NLRB
or Board) orders when the party did not properly challenge the Board's finding.
See, e.g., NLRB v. Sound One Corp., 104 F.3d 356, 1996 WL 717916, at *2 (2d Cir.
Dec. 11, 1996) (unpublished disposition).
[10]      Although the rule specifically references the NLRB, it has been
uniformly applied by courts of appeals to enforcement actions of the Authority.
See, e.g., FLRA v. U.S. Dep't of Veterans Affairs, 958 F.2d 503 (2d Cir. 1992);
Circuit Rule 15.1 of the U.S. Court of Appeals for the D.C. Circuit.
[11]      For example, in Department of Veterans Affairs, Los Angeles Regional
Office, Los Angeles, Cal. v. FLRA, 1992 WL 391167 (D.C. Cir. Dec. 10, 1992)
(unpublished), the court denied the Authority's motion for summary enforcement.
The court explained that "[t]he merits of the parties' positions are not so
clear as to warrant summary action," thus, "[b]ecause the court has determined
that summary disposition by a motions panel is not in order, the Clerk is
instructed to calendar this case for presentation to a merits panel."  Id.
(Add. C.)
[12]      See 124 Cong. Rec. 29,184 (1978), reprinted in Subcommittee on Postal
Personnel and Modernization of the Committee on Post Office and Civil Service,
96th Cong., 1st Sess., Legislative History of the Federal Service Labor-
Management Relations Statute, Title VII of the Civil Service Reform Act of 1978,
at 926 (1979).
[13]      This position was not urged before the panel by either party in this
case.
[14]      Research has revealed no Authority or circuit court precedent which
limits the section 7114(a)(2)(B) right to interrogations involving matters
within the scope of collective bargaining.
[15]      The potentially criminal nature of the conduct investigated does not
alter the Weingarten right in the private sector, either.  U.S. Postal Serv. v.
NLRB, 969 F.2d 1064, 1071-72 (D.C. Cir. 1992) ("Weingarten protections have been
consistently accorded to private sector employees suspected of criminal
conduct.").
[16]      For example, an altercation between two employees could be criminal
assault; missing property or inventory shortages could be larceny or
embezzlement; etc.  In fact, the employee interviewed in the Weingarten case was
suspe