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). 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. 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, 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. The panel established an abbreviated briefing schedule with the Authority, as the movant, filing first. 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." (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." 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. 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). 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. 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. 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. The panel's sua sponte holding 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, 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). 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. 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, 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, 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, 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  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)).  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).  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).  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.)  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.  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.  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").  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).  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).  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.  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.)  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).  This position was not urged before the panel by either party in this case.  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.  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.").  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 suspected of theft. 420 U.S. at 254-55.  An employee questioned about another employee is provided specific representation rights under Article 30 of the DOJ/INS collective bargaining agreement. (J.A. 328.)  The panel asserted jurisdiction in this case by finding that "the Authority has made clear its position" OIG agents are subject to section 7114(a) (2)(B), p. 4, supra. By contrast, however, the Authority has never even had the opportunity to consider the "context of the interrogation" standard, much less "[make] clear its position" on the issue.  Counsel for the agency provided the panel with the agreement's cover page, table of contents, and signature page.