[ v18 p405 ]
18:0405(54)NG
The decision of the Authority follows:
18 FLRA No. 54
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 21
Union
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING AND PRINTING
Agency
Case No. 0-NG-558
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 two Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
No searches of personal clothing or of the body of employees
shall be conducted unless such searches are authorized by warrant
and/or incident to an arrest.
The record in this case indicates that the Bureau of Engraving and
Printing produces currency paper, postage stamps, Treasury bills and
bonds and other secure items. A high level of security in the workplace
is needed to ensure that these items and the tools used to produce them
are not removed from the premises. Since many of these items are small
and could be concealed in clothing, the Agency had determined that an
essential component of its plan to prevent the theft or misuse of its
property and products is to conduct searches of the body and clothing of
employees when necessary. Union Proposal 1, however, by expressly
limiting the Agency's right to conduct such searches to the
circumstances set out in the proposal would directly interfere with the
security plan adopted by the Agency. Thus, it conflicts with the
Agency's right to determine its internal security practices pursuant to
section 7106(a)(1) of the Statute and is outside the duty to bargain.
See Federal Employees Metal Trades Council and Department of the Navy,
Mare Island Naval Shipyard, Vallejo, California, 12 FLRA 361 (1983).
Union Proposal 2
At all entrances and exits where package inspections are to
occur, signs are to be prominently displayed which state the
employee's rights pursuant to 5 USC 7114(a)(2)(B), the employee's
right to silence and employee's Constitutional rights under the
5th Amendment. (Only the underlined portion is in dispute.)
The disputed portion of Union Proposal 2 requires the Agency to post
signs informing employees of their constitutional rights and of a
contractual right to remain silent. The Union indicates that this
contractual right would prohibit Agency officials from asking employees
any questions during a package inspection. /1/ Thus, Union Proposal 2
would have the effect of precluding management from disciplining
employees for refusing to answer questions relating to package
inspections when entering or departing the Agency's premises.
The Authority finds that the issue raised by Union Proposal 2 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 might 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. /2/ 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 held
further in Navy Public Works Center, Norfolk, Virginia, 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 as a contractual right would also interfere with these
management rights.
Since Union Proposal 2 herein would have the same effect as the
provision referred to in Navy Public Works Center, Norfolk, Virginia,
the proposal is, for the reasons stated therein, outside the duty to
bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C., June 12, 1985
Henry B. Frazier III, Acting
Chairman
FEDERAL LABOR RELATIONS AUTHORITY
MEMBER McGINNIS, CONCURRING:
I agree with Acting Chairman Frazier that for the reasons stated
above Union Proposal 2 is nonnegotiable. However, I am writing
separately to stress my position that the right against
self-incrimination only protects against any disclosures that a federal
employee reasonably believes could be used against him in a criminal
prosecution or could lead to other evidence that might be so used.
Otherwise, the privilege cannot be invoked. Devine v. Goodstein, 680
F.2d 243, 246 (D.C. Cir. 1982). See also Weston v. U.S. Department of
Housing and Urban Development, 724 F.2d 943, 948 (Fed. Cir. 1983).
Furthermore, a security guard can informally talk to a federal employee
at an entrance or exit from a federal facility. A guard or agency
management official has no duty to advise or notify a federal employee
of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), if the
employee is not in "custody," in the criminal law context,
notwithstanding the fact that the employee is a suspect, target, or a
prime suspect of an investigation. Beckwith v. United States, 425 U.S.
341, 344-348 (1976), and United States v. Jaskiewicz, 433 F.2d 414 (3rd
Cir. 1970). Issued, Washington, D.C.,
William J. McGinnis, Jr., Member
--------------- FOOTNOTES$ ---------------
/1/ Union Completion of Appeal dated October 9, 1981, at 2.
/2/ 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, was
inconsistent with the rights to discipline employees, to direct
employees and to assign work.