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16:0308(48)NG
The decision of the Authority follows:
16 FLRA No. 48
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1812, AFL-CIO
Union
and
UNITED STATES INFORMATION
AGENCY
Agency
Case No. O-NG-739
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of three provisions of an agreement
disapproved by the Agency head pursuant to section 7114(c) of the
Statute. Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
Provision 1
Article V, Section 1(d)
Right to Representation. An employee has the right to request
a Union representative at all stages of a grievance, appeal, or
disciplinary action (other than an oral admonishment or oral
reprimand), or at any examination by a representative of the
Agency in connection with an investigation if the employee
reasonably believes that the examination may result in
disciplinary action against the employee. The employee shall be
given reasonable notice prior to such examination. The notice
action shall be based on the employee's option to request Union
representation. Once the employee requests a representative and a
determination is made to continue the the investigation or
examination, the Agency will not engage in any examination of the
employee without first informing the representative and providing
the opportunity for the representative's presence. The employee
has the right to remain silent if he/she chooses. (Only the last
sentence is in dispute.)
The Authority finds that the issue raised by Provision 1 is
essentially the same as that which was presented in Tidewater Virginia
Federal Employees Metal Trades Council and Navy Public Works Center,
Norfolk, Virginia, 15 FLRA No. 73 (1984). In that case the Authority
found that Provision 1 therein concerning an employee's right to remain
silent during any discussion with management in which the employee
believed disciplinary action may be taken against him or her was outside
the duty to bargain as the provision prevented management from acting at
all in regard to its substantive right under section 7106(a)(2)(A) to
take disciplinary action against employees. /1/ The Authority noted the
effect of the provision would have been to insulate employees from
disciplinary action should they decline to account for their work or
conduct during investigations which the employees believed might lead to
disciplinary proceedings. Moreover, the Authority has also held in Navy
Public Works Center that management's exercise of its rights to direct
employees and assign work pursuant to section 7106(a)(2)(A) and (B) of
the Statute includes the right to have employees account for their
conduct and work performance. Therefore, the Authority concluded that
granting employees the right to remain silent would interfere with these
management rights. /2/
Since Provision 1 herein would have the same effect as the provision
referenced in Navy Public Works Center, the provision is for the reasons
stated therein, outside the duty to bargain.
Provision 2
Article XIV, Section 3-- Employee-- Agency Responsibility
a. Any employee with such concerns as his/her drinking,
marital situation, interpersonal relationships, depression,
children's school difficulties, or financial difficulties would
receive strictly confidential help through this comprehensive
service (ARCS).
b. When an employee's problem interferes with the efficient
and proper performance of his/her duties, reduces his/her
dependability, or whose disgraceful conduct reflects discredit
upon the Agency, supervisors will attempt to implement the
procedures of the Advisory, Referral and Counseling Service before
considering disciplinary or other corrective action.
Only after the refusal of the employee to participate or upon
failure of the employee to progress toward the renewal of
acceptable work performance will management take adverse action as
a corrective measure.
In National Treasury Employees Union and Internal Revenue Service, 6
FLRA 522 (1981) the Authority considered the negotiability of a union
proposal which would have restricted the Agency in taking disciplinary
action against an employee having work performance problems while the
employee was an active participant in a recognized drug/alcoholism
program. The Authority found the proposal was inconsistent with the
agency's right to discipline employees under section 7106(a)(2)(A) of
the Statute and, therefore, was outside the duty to bargain. The
Authority noted the proposal would have had the effect of completely
immunizing employees who enter the program from discipline since the
Agency would have been prevented from taking disciplinary action so long
as the employees remained active participants in the rehabilitation
program. The Authority held in Internal Revenue Service:
Thus, the proposal would grant employees the option to totally
deny the Agency's statutory authority by participating in such a
program and hence even if considered to be procedural in nature,
the proposal would have the effect of preventing the Agency from
acting at all in the exercise of its authority to discipline
employees under section 7106(a)(2)(A) of the Statute. (Footnote
omitted.)
In the instant case, the provision would similarly prevent the Agency
from taking disciplinary measures against an employee so long as the
employee continued to participate in the Advisory, Referral and
Counseling Service program and to progress toward an acceptable work
performance level. Thus, under the provision, an employee would
completely avoid disciplinary action for his or her conduct or
unacceptable work performance by remaining a participant in the program
and making progress, however slight, towards acceptable performance.
Hence, as in Internal Revenue Service, the Agency's right to discipline
such an employee would be permanently restricted, rather than having the
effect of merely delaying the imposition of disciplinary action. /3/
The proposal, therefore, directly affects management's right to
discipline employees under section 7106(a)(2)(A) of the Statute and is
not within the duty to bargain.
Provision 3
3) An employee shall be given a temporary promotion if the
assignment to higher level work is for more than thirty (30)
consecutive calendar days and the employee is eligible for
promotion. Requests for temporary promotions are to be submitted
by the element of assignment to the appropriate Personnel Office
in advance of the proposed effective date. When it is known at
the beginning of a detail that the detail will last for more than
thirty (30) days, the employee should be temporarily promoted from
the first day of the detail if the employee is eligible for
promotion. Should, through inadvertence or oversight, the Request
for Personnel Action, SF-52, not be submitted before an employee
has completed thirty (30) days in an assignment at a higher level
of work, the promotion shall be made retroactive to the
thirty-first (31st) day in the higher graded assignment if the
employee is otherwise eligible for promotion.
The Union states that it believes that the Agency has withdrawn its
section 7117(c) claim regarding Provision 3. The Agency does not
controvert this statement. Moreover, there is no argument in the record
by either party concerning the negotiability of the Provision. Finally,
it appears that language substantially identical to Provision 3 has been
included in the parties' master collective bargaining agreement which
was approved by the Agency. In light of the above, the Authority finds
that any issue as to the negotiability of Provision 3 is therefore moot.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Provisions 1, 2, and 3 be, and it hereby is, dismissed. Issued,
Washington, D.C., November 6, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ See International Brotherhood of Electrical Workers, AFL-CIO,
Local 1186 and Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217
(1980), enforcement denied sub nom. Navy Public Works Center, Pearl
Harbor, Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d
97 (9th Cir. 1982), wherein the Court of Appeals in refusing to enforce
an Authority Order held the right to remain silent during disciplinary
investigations was not a negotiable procedural rule but, rather, dealt
with the right to discipline employees and to assign work.
/2/ Section 7106(a)(2) provides, in relevant part:
Sec. 7106. Management Rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
* * * *
(A) to . . . direct . . . employees in the Agency . . . to
suspend, remove, reduce in grade or pay, or take other
disciplinary action against such employees;
(B) to assign work(.)
/3/ Cf. American Federation of State, County and Municipal Employees,
AFL-CIO, Local 2910 and Library of Congress, 11 FLRA No. 109 (1983),
(proposal to give employees who accepted assistance in the Alcoholism
and Drug Abuse Assistance Program a reasonable opportunity to improve
their performance before being subjected to adverse action was found to
be negotiable, as the only effect of the proposed procedure would be to
delay the imposition of performance-based discipline for those employees
whose performance does not improve to a satisfactory level after having
accepted assistance in the program.