[ v47 p370 ]
47:0370(29)NG
The decision of the Authority follows:
47 FLRA No. 29
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. NUCLEAR REGULATORY COMMISSION
WASHINGTON, D.C.
(Agency)
0-NG-2051
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 9, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of six proposals.(1)
Proposal 1 describes the role of a Union representative in criminal and noncriminal investigatory interviews of unit employees conducted by the Agency. Proposal 2 requires an Agency investigator conducting an investigatory interview that might lead to discipline to advise an affected employee of the general nature of the interview and of his or her representational rights prior to taking an oral or written statement. Proposals 3 and 4 concern the manner in which employees must be notified of certain procedures, privileges and obligations in relation to Agency-conducted criminal interrogations. We find that Proposals 1, 2, 3 and 4 are negotiable.
Proposal 5 concerns the Agency's decision to reassign resident inspectors at nuclear power plants to another work site before the end of their tours of duty where there is a question concerning those inspectors' objectivity in the performance of their duties. We find that Proposal 5 is negotiable.
Proposal 6 prescribes certain conditions governing the reassignment of a resident inspector to another work site based on a determination as to the inspector's loss of objectivity. We find that the first five sentences of Proposal 6 are negotiable. However, we find that the sixth sentence of Proposal 6, which would require the Agency to reassign an employee to one of the five work sites designated by the employee, directly and excessively interferes with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and, therefore, is nonnegotiable.
II. Preliminary Matter
The Agency contends that the Union's petition should be dismissed because it was untimely filed. The Agency notes that because the Union initially failed to file a complete petition for review, the Authority issued an order directing the Union to file a corrected petition by May 20, 1992. The Agency asserts that to comply with the Authority's Order and the Authority's Rules and Regulations, the corrected petition had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than May 20, 1992.
The Agency states that the Authority did not receive the petition until May 26, 1992. According to the Agency, the May 20, 1992 date stamped on the envelope containing the Union's corrected petition was affixed "by a Union[-]controlled [date] stamp machine." Statement at 4. Relying on National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 36 FLRA 271 (1990) (Rock Island Arsenal), the Agency contends that "a date stamp from the U.S. Postal Service is required to determine the date which the document was deposited in the mail." Id. (emphasis in original). The Agency asserts that because the corrected petition "was neither postmarked by the U.S. Postal Service nor received by the Authority by May 20, 1992, [the petition] must be dismissed." Id. at 3 (footnote omitted).
The Union contends that, pursuant to section 2429.21(b) of the Authority's Regulations, its petition was filed in a timely manner. The Union states that a review of the documents in the record "makes it clear that the Union's [corrected petition] was in fact filed on May 20, 1992 by virtue [of] the postmark" on the envelope that contained the petition. Response at 3. The Union asserts that the Agency's reliance on Rock Island Arsenal is misplaced. According to the Union, Rock Island Arsenal "affirm[s] [the Union's] position by stating that two of the methods of filing documents with the Authority are by mail (U.S. Postal Service) or in person[.]" Id. The Union contends that because it filed "its petition by mailing it via [the] U.S. Postal Service[,]" it "fully complied with the regulatory scheme governing the filing requirements of the [Authority]." Id.
We find that the Union's petition was timely filed. Under section 2429.21(b) of the Authority's Regulations, a document that is mailed and properly addressed to the Authority is filed with the Authority when a party places it in the U.S. mail, not when it is received. See U.S. Department of Labor, Mine Safety and Health Administration and National Council of Field Labor Locals, American Federation of Government Employees, 32 FLRA 302 (1988) (Department of Labor). There are only two ways to determine the date of mailing: (1) by the postmark on the mailing; and (2) in the absence of a postmark, by the date of receipt minus 5 days. Department of Labor, 32 FLRA at 302-03.
In this case, the Union's corrected petition was sent through the U.S. mail. A postmark of May 20, 1992, is stamped on the envelope containing the corrected petition. The Agency argues that because that date was affixed on the envelope by a Union-controlled postal meter rather than by the U.S. Postal Service, such date is not determinative of the date that the corrected petition was filed. We disagree. The fact that the postmark date was placed on the envelope by an approved postal meter establishes the date of filing in this case. We note that under the U.S. Postal Service Regulations, the date shown in a meter postmark is presumed to be the actual date of deposit, unless the U.S. Postal Service indicates that the date is incorrect. See U.S. Postal Service Domestic Mail Manual, §§ 144.532, 144.54, (Sept. 1992). See also Hunt v. U.S. Postal Service, 41 MSPR 381, 383 (1989). In this case, there is no evidence to show that the U.S. Postal Service determined that the date on the envelope containing the Union's corrected petition was incorrect. We conclude, therefore, based on the date on the envelope containing the Union's corrected petition, that the corrected petition was filed on May 20, 1992, and, therefore, is timely filed within the meaning of section 2421.21(b) of the Authority's Regulations.
III. Proposals 1-4
Proposal 1
Article 3 - Employee Rights
Section 3.3.2
When the person being interviewed is accompanied by a Union representative, in both criminal and non[]criminal cases, the role of the representative includes, but is not limited to[,] the following rights:
(1) to clarify the questions;
(2) to clarify the answers;
(3) to assist the employee in providing favorable or extenuating facts;
(4) to suggest other employees who have knowledge of relevant facts; and
(5) to advise the employee.
Proposal 2
Section 3.4
The NRC [Nuclear Regulatory Commission] shall advise the employees annually of their rights to Union representation under Section 3.3. In addition, when an investigation is being conducted and where the employee is a potential recipient of disciplinary action, the employee shall be advised by the investigator of the general nature of the interview, and of his/her right to be represented by the Union in accordance with Section 3.3.1 and 3.3.2 above, prior to taking any oral or written statement from that employee. [Only the underlined portion of the proposal is in dispute.]
Proposal 3
Section 3.4.1
Where the subject of an investigation is being interviewed regarding possible criminal conduct and prosecution, at the beginning of the interview the employee shall be given a statement of Miranda rights. The warning shall contain the language listed in Appendix A to this Agreement. If the employee waives his/her rights, the employee shall so indicate in writing and will be given a copy for his/her records.
Proposal 4
Section 3.4.2
In an interview involving possible criminal conduct where prosecution has been declined by appropriate authority, at the beginning of the interview the employee shall be given a statement of the Kalkines warning in writing. Further, the employee will acknowledge receipt of the warning in writing and shall receive a copy for his/her records.
A. Positions of the Parties
1. Agency
The Agency asserts that Proposals 1-4 "give a variety of 'rights' to [an] employee during Agency investigations into potential criminal and non[]criminal wrongdoing by bargaining unit employees." Statement at 9.
According to the Agency, "an independent Office of the Inspector General (OIG) is in charge of both criminal and non[]criminal investigations" at the Agency. Id. at 10 (footnote omitted). The Agency contends that Proposals 1-4 establish a number of requirements for the Agency's independent Inspector General (IG) and that the proposals are inconsistent with "provisions of the Inspector General Act of 1978[]" (IG Act). Id. The Agency claims, therefore, that the proposals are inconsistent with law and are nonnegotiable under section 7117(a)(1) of the Statute.
Relying on National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789 (1985) (GSA), the Agency asserts that, as interpreted by the Authority in GSA, "the independence of the IG under law precludes negotiation on proposals purporting to influence the conduct of IG investigations." Id. at 11. The Agency also contends that the court's decision in Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988) (DCIS) is not applicable to this case. According to the Agency, DCIS "simply held that [section] 7114(a)(2)(B) gives the employee a right to union representation during an investigatory interview by the [agency's office of inspector general]." Id. at 11. The Agency asserts that DCIS "in no way indicate[s] that the [U]nion could negotiate with the OIG or that the OIG would be bound by negotiations between the [A]gency and the [U]nion." Id.
Further, the Agency contends that reading DCIS with GSA, the Authority "has established a clear precedent that if the employee's right is specifically authorized by the Statute then it must be followed by the OIG. If, on the other hand, the employee right is one which can only be achieved through negotiations, then . . . the IG cannot be bound by any such negotiations." Id. at 11-12 (emphasis in original). The Agency asserts that Proposals 1-4 seek to bind the OIG to a number of procedures that are not specifically required under the Statute. The Agency notes that although procedures involving warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda) and Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973) (Kalkines) "are often negotiated between agencies and unions, such agreements are not possible with the OIG due to [the OIG's] statutory independence." Id. at 12 (footnote omitted).(2) The Agency further asserts that there is nothing in the Statute or its legislative history that suggests that the Statute offers employees rights beyond those established in NLRB v. Weingarten, 420 U.S. 251 (1975) (Weingarten). The Agency claims, therefore, that the "holding in DCIS is not applicable to this matter and the holding in [GSA] is determinative." Id. at 13.
2. Union
The Union asserts that the Agency has misinterpreted the plain meaning of the proposals. The Union states that its proposals are not intended to contravene the provisions of the IG Act. Rather, according to the Union, the proposals merely seek to establish procedures to protect the rights of employees in accordance with the representational role of the Union described in Weingarten.
Specifically, the Union contends that Proposal 1 explains the role of the Union representative in criminal and noncriminal cases. The Union asserts that Proposal 1 "fully complies with the negotiable role of the union representative as envisioned in Weingarten." Response at 5.
As to Proposal 2, the Union asserts that it "requires investigators to notify employees of their right to representation prior to taking any oral or written statement from an employee when the employee is the potential recipient of a disciplinary action." Id. at 6. According to the Union, the Agency's assertion that the Union is seeking to influence the manner in which the IG conducts an investigation is a "gross misrepresentation of fact." Id. The Union states that the proposal does not require anything of the IG. Rather, according to the Union, the proposal seeks to require an Agency representative to inform employees of their rights consistent with Weingarten. The Union notes that during bargaining, management "represented that [A]gency representatives are always present during [IG] investigations." Id.
The Union contends that Proposal 3 requires that employees being interviewed regarding possible criminal misconduct be given their Miranda rights in writing. The Union asserts that such rights are required by the Fifth and Sixth Amendments of the U.S. Constitution in situations described in Proposal 3. The Union further contends that a proposal requiring an agency to exercise its management rights in accordance with applicable law, regulation or the U.S. Constitution is negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Citing National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Union contends that Proposal 3 constitutes an appropriate arrangement. The Union contends that: (1) the proposal guarantees that employees will be given their Miranda rights when being interviewed regarding criminal conduct; (2) the circumstances that trigger the interviews are totally outside employees' control; (3) management's right to determine its internal security practices under section 7106(a)(1) of the Statute must be measured against the procedural constitutional rights of employees; (4) the negative impact on management's right is minor while the benefit to employees is "enormous"; and (5) the impact of the proposal on effective and efficient Government operations is minimal. Id. at 8.
The Union asserts that Proposal 4 requires that a Kalkines warning be given to an employee in writing when an administrative investigation is taking place and that the employee acknowledge receipt of the warning in writing and be given a copy. The Union notes that the Agency admits that it routinely gives employees Kalkines warnings. The Union states that Proposal 4 merely incorporates the rights of the employee under section 7114(a)(2)(B) of the Statute and the rights afforded by Kalkines into the contract. The Union further asserts that the proposal is consistent with the Authority's decision in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982) (Customs).
B. Analysis and Conclusions
We find that Proposals 1-4 are negotiable.
As explained by the Union, Proposals 1-4 apply to criminal and noncriminal investigatory interviews and are intended to codify and supplement employees' rights to Union representation under section 7114(a)(2)(B) of the Statute. Under Proposals 1-4, in criminal and noncriminal investigatory interviews, where the employee subject to an examination reasonably believes that the interview may result in discipline, not only would the employee be entitled, upon request, under section 7114(a)(2)(B), to Union representation, but also to the additional protections provided by the proposals. The protections provided by the proposals would apply only in those situations in which an employee is entitled to Union representation under section 7114(a)(2)(B) of the Statute.(3) We find that the Union's explanation of the proposals is consistent with the wording of those proposals and we will adopt that interpretation for purposes of this decision.
The Agency contends that all criminal and noncriminal investigations within the Agency are conducted by the OIG. Relying on GSA, in which the Authority held that proposals pertaining to IG investigations are nonnegotiable under section 3(a) of the IG Act, the Agency contends that Proposals 1-4 pertain to investigations by the OIG and, therefore, are nonnegotiable. The Union does not dispute the Agency's contention that all criminal and noncriminal investigations within the Agency are conducted by the OIG. However, the Union asserts that the proposals would not affect the actions of IG personnel because the proposals apply to Agency representatives, other than IG personnel, who are present at the interviews.
We find that the absence of any reference to IG personnel in Proposals 1-4 does not change the fact that the proposals concern IG investigations. However, on reconsideration of GSA in light of the court's decision in DCIS, we conclude that we will no longer follow GSA to the extent that it holds that an agency is not obligated to bargain on a proposal merely because the proposal concerns the conduct of IG investigations under the IG Act. Rather, proposals that concern the conduct of IG investigations under the IG Act will be found nonnegotiable if they are inconsistent with the IG Act or are nonnegotiable on other grounds.
In GSA, the Authority concluded that because, under section 3(a) of the IG Act, an IG is subject only to the head of the agency or the officer next in rank below the head of the agency, an agency is not obligated to provide representatives to bargain over the conduct of IG investigations at a local level. In short, the Authority held that the independence of the IG precluded negotiations on any proposals concerning the conduct of IG investigations. In our view, this aspect of GSA can no longer be supported in light of our decision to adopt the court's reasoning and findings in DCIS.
In DCIS, in affirming the underlying decision of the Authority, the court rejected an agency's claim that, under the IG Act, an element of the IG's office was sufficiently independent within the agency that its representatives did not conduct employee interviews as the representatives of the agency. See DCIS, 855 F.2d at 100. The court found that investigators who were part of the IG's office were employees of the agency. The court stated that the "degree of supervision" exercised by management of that agency over the IG's office was "irrelevant." Id.
Consistent with DCIS, we find that because IG representatives are employees of an agency and, thus, are subject to the agency's obligations under the Statute, an agency cannot declare proposals concerning IG investigations nonnegotiable solely on the ground that, under section 3(a) of the IG Act, all proposals concerning IG investigations are outside the duty to bargain. Consequently, we conclude that, insofar as GSA holds that an agency is not obligated to bargain on a proposal merely because the proposal concerns the conduct of IG investigations, we will no longer follow that decision. Rather, proposals that concern the conduct of IG investigations under the IG Act will be found nonnegotiable if they are inconsistent with the IG Act or are nonnegotiable on other grounds.
The Agency's sole contention as to the negotiability of Proposals 1-4 under the IG Act is based on the Authority's holding in GSA. The Agency has provided no other reasons to support its claim that the "requirements" of the proposals are inconsistent with the IG Act. Statement at 10. That is, the Agency has not explained how any of the proposals, by their terms, are inconsistent with any provision of the IG Act and it is not otherwise apparent to us that Proposals 1-4 are inconsistent with the IG Act or are nonnegotiable on other grounds. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 820-821 (1991); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril.
Finally, we note that the Authority has consistently held that proposals which supplement employees' rights to union representation under section 7114(a)(2)(B) of the Statute are negotiable, if they are otherwise consistent with law and regulation. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1445 (1992), petition for review filed, No. 92-1161 (D.C. Cir. Apr. 10, 1992). The Authority has also held that proposals requiring an agency, in appropriate circumstances, to give Miranda and Kalkines warnings are negotiable. See Customs, 9 FLRA at 986.
Accordingly, we conclude that Proposals 1-4 are negotiable.
IV. Proposal 5
Article 25 - Reassignments
Section 25.7
The NRC has determined that it will not reassign any resident inspector before the end of his/her duty, based on an assumed loss of objectivity criteria without providing the employee involved with an opportunity to present his/her response to charges of loss of objectivity. Whenever the NRC obtains evidence that an inspector is no longer performing his/her duties in an objective manner, it shall provide the employee with a formal notice containing a listing of all known examples where the employee's conduct, judgement, and/or performance are not compatible with the standards of the resident inspector program, with specific[] cites to the areas of the program where a deficiency was found. The employee will be given reasonable official time to prepare a timely response to those charges. Within ten (10) days of the receipt of the employee's response to the charges of loss of objectivity, the NRC will provide the employee with a final determination. The NRC agrees that before issuing a final determination, it will fully consider all of the employees's responses to the charges.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 5 is nonnegotiable under section 7106(a)(2)(A) and (B) of the Statute because the proposal restricts management's ability to reassign resident inspectors.
According to the Agency, in 1977 the Agency began a program of placing resident inspectors at all operating reactor facilities. The Agency asserts that resident inspectors provide the major on-site Agency presence for direct observation and verification of licensee activities. The Agency states that resident inspectors' duties include: (1) in-depth inspections of control room activities; (2) maintenance and surveillance testing carried out by the licensee; (3) "periodic walkdown inspections" to verify the correctness of system lineups for nuclear systems important to safe operation; and (4) plant tours to generally assess radiation control, security, and equipment condition. Statement at 14. The Agency states that to perform these duties, resident inspectors are required to live within a limited distance from the reactor. The Agency further contends that in formulating its resident program, it was under "constant Congressional scrutiny[,]" because Congress was especially concerned that the Agency "ensur[e] that resident inspectors maintain their objectivity." Id. at 15.
The Agency asserts that to "ensure objectivity[] the Agency has specified [in its policy manual] that resident inspectors will automatically be relocated after serving at a site for . . . 5 years." Id. The Agency also asserts that it reserves the right to reassign an employee at any time if there is a question concerning the employee's ability to perform his or her duties in an objective manner or if the Agency determines that a reassignment is otherwise in the best interest of the Agency.
The Agency contends that by "requir[ing] the Agency to give the employee an opportunity to respond to [its] determination to reassign [the employee] and further requir[ing] [it] to 'fully consider' all of the employee's responses to the charges before reassigning the employee[,]" the proposal places restrictions on the exercise of management's rights to assign employees and work. Id. at 13 (emphasis in original). Citing Authority cases, the Agency asserts that Proposal 5 "not only impermissibly delays a reassignment, but also places a substantive condition on the exercise of management['s] right to reassign the employee." Id. at 16. The Agency states that by claiming that the Agency did not "'fully consider'" the employee's response under the proposal, the employee could challenge the Agency's decision to reassign the employee, and relief could require the Agency to return the employee to the position from which the employee was reassigned. Id.
2. Union
The Union explains that Proposal 5 establishes a procedure for resident inspector employees to respond to their assumed loss of objectivity if they are to be reassigned before the end of their 5-year tour of duty. According to the Union, although the proposal may arguably infringe on management's right to assign work, it nevertheless constitutes an appropriate arrangement.
The Union asserts that under the test established in KANG: (1) the proposal "affords employees an opportunity to respond to an assumed loss of objectivity for which they are punished without an opportunity to clear their name"; (2) the circumstances that trigger the reassignment are totally outside the employee's control; (3) management's rights are "minimally impacted" by the proposal because the "hearing envisioned would not delay the relocation, if at all, more than 20 days"; (4) the negative impact on management's rights are minimal, while the benefit to employees, who must uproot themselves and their families, are "enormous"; and (5) management would "suffer no significant costs by allowing employees to defend their name and professional reputation against an assumption that disrupts the peace and tranquility of the employees['] home and family." Response at 10.
B. Analysis and Conclusions
We find that Proposal 5 is negotiable.
According to the Agency, to ensure objectivity, resident inspectors assigned to a nuclear power plant site are automatically relocated after serving at a site for 5 years. However, if the Agency determines, during the course of an inspector's assignment to a site, that there is a question concerning that inspector's objectivity, the inspector may be reassigned to another work site before the end of the 5-year tour. Proposal 5 addresses the Agency's finding that an inspector has lost his or her objectivity and the decision, based on that finding, to reassign the inspector to another work site before the end of a 5-year tour.
Specifically, Proposal 5 prescribes the steps that an inspector can take to respond to a management finding that the inspector is no longer sufficiently objective to function appropriately as an inspector at the currently assigned nuclear power plant. As a result of management's finding, the inspector may be reassigned to a different power plant. The purpose of the proposal is to provide the inspector with an opportunity to rebut the alleged loss of objectivity before management makes its final determination and, based thereon, its decision to reassign the inspector. The question is whether the process required by the proposal would directly interfere with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
The right to assign employees under section 7106(a)(2)(A) of the Statute encompasses the assignment of employees to positions, including the initial assignment and reassignments. American Federation of Government Employees, AFL-CIO, Local 738 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380, 382 (1988) (Fort Leavenworth). The right to assign work to employees under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties and work to be assigned and the particular employees to whom or positions to which it will be assigned. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed, 691 F.2d 553 (D.C. Cir. 1982).
Based on the record, we find that the reassignment referenced in the proposal involves an assignment to a different position rather than just a change of location. See Statement at 15 and 16. We also find that the process required by the proposal would not prevent management from reassigning an inspector to a different position at another nuclear power plant site or from determining the particular duties to be assigned to the inspector at that site. Rather, the proposal does nothing more than provide a mechanism which will allow inspectors an opportunity to defend themselves against an Agency allegation that they have lost their objectivity. See, for example, National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1322-23 (1992) (Nuclear Regulatory Commission) (sections of a proposal requiring that employees required to undergo reasonable suspicion drug testing be given notice and the basis for the testing, and an opportunity to respond to the office director, did not preclude the agency from exercising its right under section 7106(a)(1) of the Statute). The decision to reassign the inspector--after providing the inspector with notice, with a statement of the reasons supporting a conclusion of loss of objectivity, and with an opportunity to respond to those reasons--would remain with management.
We reject the Agency's contention that, by requiring it to fully consider all of the inspector's responses, the last sentence of the proposal would directly interfere with management's rights to assign employees and assign work because it would restrict management's ability to reassign resident inspectors and result in relief requiring the Agency to return the inspector to the position from which he or she was reassigned. Proposals requiring only that an agency consider exercising its management rights in a particular manner do not interfere with those rights. National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 563 (1988). Moreover, to the extent that the Agency's argument constitutes a claim that the proposal would permit the substitution of an arbitrator's judgment for that of the Agency in the exercise of management rights, we have consistently held that an agency's "concern that an arbitrator's judgment may be substituted for its own is not a basis for finding [a proposal] nonnegotiable." National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 350 (1991). See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 636 (1987) ("[t]he question of any impermissible arbitral interference with management's rights must be directed to the merits, including remedy, of an arbitration decision").
We find that the proposal simply provides procedures, under section 7106(b)(2) of the Statute, in connection with management's decision to reassign employees based on an asserted loss of objectivity. In so finding, we reject the Agency's argument that the procedural steps established by the proposal would delay a reassignment and thereby directly interfere with the Agency's exercise of its management rights. The fact that it would take a period of time to complete the required steps prior to making a final decision on reassigning the employee does not mean that the proposal directly interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute. See, for example, Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989) (proposal requiring a 10-day delay in imposition of any suspension of 14 days found to constitute a negotiable procedure). However, even assuming that compliance with the procedures set out in the proposal would result in the delay of a reassignment that would directly interfere with management's rights to assign employees and assign work, we find that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
To determine whether a proposal is an appropriate arrangement, we first decide whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. KANG, 21 FLRA at 31. In deciding whether a proposal constitutes an arrangement, we examine whether the proposal is intended to address or compensate for the adverse effects on unit employees that result from management's exercise of its rights under the Statute. See, for example, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1601 (1993) (South Carolina District). If we determine that the proposal is an arrangement, we examine whether the arrangement is appropriate. To make this determination, we examine the competing practical needs of employees and managers. KANG, 21 FLRA at 31-32.
As to whether the proposal constitutes an arrangement, the Union explains that the proposal is an arrangement for resident inspectors who are alleged to have lost their objectivity and who, based on that allegation, are reassigned to a position at another work site before the end of a 5-year tour. According to the Union, the proposal provides the inspector with an opportunity to respond to that allegation, which could adversely affect the employee's professional reputation and family life. The Union contends that a reassignment based on a determination of loss of objectivity would cause "enormous" disruption to an inspector and to the inspector's family, who would have to be uprooted. Response at 10.
Applying the analytical framework set forth in KANG, we find, for the reasons that follow, that the proposal constitutes an arrangement, under section 7106(b)(3) of the Statute, for employees who are adversely affected by the exercise of management's rights to direct employees and assign work, under section 7106(a)(2)(A) and (B) of the Statute, through the evaluation of employee performance. Specifically, under section 7106(a)(2)(A) and (B), management has the right to prescribe criteria governing employees' performance of their duties. See National Association of Government Employees, Local R14-52 and U.S. Department of Defense, Defense Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 913 (1992) (Defense Finance and Accounting Service). Management also has the right under section 7106(a)(2)(A) and (B) to evaluate employees' performance under the criteria that it has established. See, for example, American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 679 (1990).
Moreover, management's right to prescribe criteria governing employees' performance is not limited to the identification of critical elements and the establishment of performance standards as part of a performance appraisal system under chapter 43 of title 5 of the United States Code. See Defense Finance and Accounting Service, 45 FLRA at 913. It is clear that the criterion of objectivity involved in this case is a criterion governing inspectors' performance of their duties. Consequently, regardless of whether that criterion is a part of the Agency's performance appraisal system for inspectors, we find that it constitutes an exercise of management's rights to direct employees and assign work, under section 7106(a)(2)(A) and (B) of the Statute. We also find that management's evaluation of inspectors' performance under that criterion constitutes an exercise of management's rights under section 7106(a)(2)(A) and (B).
We find, based on the record in this case, that it is reasonably foreseeable that some inspectors who are evaluated as to the objectivity with which they perform the duties of their positions will be found by management to have lost their objectivity. We also find that inspectors who are the subjects of such a finding would be adversely affected by that finding, within the meaning of section 7106(b)(3) of the Statute. In particular, inspectors who have been unfairly or wrongly accused by management of having lost their objectivity would be adversely affected by that charge. Proposal 5 would mitigate these adverse effects by providing inspectors with the opportunity to rebut management's finding of loss of objectivity before the decision is made to reassign them. Consequently, we conclude that Proposal 5 is an arrangement for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3).
As to the burden imposed by the proposal on management's exercise of its rights, we noted above that the proposal does not preclude management from reassigning an inspector. Management retains the discretion to permanently reassign the inspector after the steps described in the proposal have been followed. Moreover, except for the reasonable time required for an inspector to prepare a response, the time required to complete the process is within management's control. Thus, we find that the proposal contemplates that a minimal delay is all that would be necessary to accomplish the objective of affording inspectors the opportunity to defend themselves against an Agency charge that they have lost their objectivity.
We also note that the proposal does not preclude the Agency from temporarily assigning other duties to the inspector alleged to have lost objectivity. Moreover, the proposal would not preclude the Agency from temporarily reassigning that inspector's duties during the time required to complete the prescribed procedures, if the Agency has concerns about the inspector's work performance.
We find that the benefit to inspectors of being afforded an opportunity to respond to an Agency decision to reassign them to a position at another work site based on an alleged loss of objectivity, and of the requirement that the Agency fully consider that response before making a final determination, outweighs the burden imposed on the Agency's right to assign employees and assign work by the delay resulting from the requirements of the proposal. Additionally, we note that the proposal could benefit the Agency by saving it from expenses resulting from unnecessary or unwarranted reassignments. We find, therefore, that the proposal would not excessively interfere with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Consequently, we conclude that Proposal 5 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Accordingly, we find that Proposal 5 is negotiable.
V. Proposal 6
Section 25.8
New Proposal
[1] In the event that the NRC determines that a resident inspector must be reassigned to another location for reasons related to loss of objectivity, the NRC will provide a "list of vacant sites for which the employee is qualified." [2] From these vacant sites, the inspector shall be allowed to submit his/her top three (3) choices for reassignment. [3] The NRC shall reassign the inspector to one of his/her top three (3) choices if at all possible. [4] If the NRC determines it cannot grant one of the inspector's top three (3) choices, it shall document the reasons why. [5] Absent just cause, the inspector will be permitted to select two additional choices from the above referenced "list". [6] The final reassignment decision will be made from among the employees['] selections off of the "list of vacant sites".
[The sentences in the proposal have been numbered for the convenience of the reader.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 6 is nonnegotiable because it interferes with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency asserts that the "essential portion of the . . . proposal requires that the [Agency] provide a list of vacant sites for which the employee is qualified and [from] this list 'if at all possible' the employee will be assigned one of his or her top three selections." Statement at 17. The Agency states that, in any event, the proposal provides that "the employee 'will' be reassigned to one of his or her top five choices." Id.
The Agency asserts that the proposal "could require the Agency to place an employee in a position which the Agency otherwise would not have placed the employee." Id. at 16-17 (emphasis in original). The Agency states that requiring the Agency to reassign a resident inspector to his or her choice "if at all possible" imposes a substantive condition on management's right to assign employees. The Agency explains that Proposal 6 could force the Agency to place an employee in a position for which the employee might be qualified but, nevertheless, not the best person for the job. To illustrate this contention, the Agency describes a situation in which an employee selects locations that have plants with pressurized water reactors (PWRs). The Agency asserts that while experienced with PWRs, the employee is an expert in boiling-water reactors (BWRs) and there is a vacancy at a plant that has a BWR, but that plant is not one of those selected by the employee. The Agency contends that for "mission[-]related reasons," the Agency might want to assign the employee to the BWR plant even though that plant was not one of the employee's top three choices. Id. at 18. The Agency asserts that this determination is for the Agency to make. The Agency claims that an arbitrator should not determine whether it is possible for the resident inspector to work elsewhere, especially as it concerns nuclear power plants.
The Agency also contends that, by requiring that an employee be provided with a list of vacant sites only for which the employee is qualified, the proposal precludes management from assigning the resident inspector to a site which does not currently have a vacancy, if management decides such a move would be appropriate. The Agency states that by requiring management to assign the employee to one of five positions selected by the employee, Proposal 6 would force the Agency to reassign employees to positions which are not necessarily desired by management and which may not meet mission requirements.
The Agency further asserts that because the site to which the employee is assigned dictates the work which the employee must perform, Proposal 6 interferes with management's ability to assign work. According to the Agency, a resident inspector must perform his or her duties at the plant where he or she is assigned. The Agency states that the proposal would "directly dictate which job and thus what duties the employee would be assigned." Id. at 20-21 (emphasis in original).
The Agency also contends that the proposal is not an appropriate arrangement. The Agency asserts that the proposal does not address the effects of the exercise of a management right and, therefore, does not meet the first part of the test under KANG.
2. Union
The Union states that Proposal 6 "permits employee inspectors who are the subject of a directed reassignment due to an assumed loss of objectivity . . . to have input into where they are reassigned." Response at 11 (emphasis in original). According to the Union, the Agency mistakenly asserts that this proposal would apply when resident inspectors are reassigned at the end of their 5-year tour of duty. The Union asserts that the plain language of the proposal would only require the selection procedures to be used in very limited situations. The Union states that the "scenario [presented] by management is preposterous." Id. The Union explains that under the proposal management would provide affected employees with a list of vacant sites for which the Agency has determined that the employee is qualified. According to the Union, if management determines that an employee is most qualified to work at BWR reactors, then the Agency would create a list comprised of only those reactors. Moreover, if management determines that an employee is most qualified for the PWR reactors, then, consistent with the Agency's mission, management would give the employee a list of those reactors.
The Union also claims that even though this proposal may arguably infringe on management's right to assign work, it sets forth a procedure for resident inspectors to maintain some control over their lives when they are being reassigned because of an assumed loss of objectivity. The Union contends, therefore, that the proposal constitutes an appropriate arrangement. The Union asserts that: (1) the impact of reassignments based on an alleged loss of objectivity is enormous because such reassignments cast a shadow on the career and professional reputation of employees and cause disruption in employees' personal lives; (2) the circumstances that give rise to a reassignment are not within the employee's control; and (3) the impact on management is minimal because an employee's input into where he or she will be located is limited to the parameters developed by management.
B. Analysis and Conclusions
1. First, Second, Fourth and Fifth Sentences
Proposal 6 establishes procedures that the Agency will observe in reassigning to another work site employees whose objectivity has been questioned. The first, second, fourth, and fifth sentences of Proposal 6 merely prescribe certain steps that management will take to afford inspectors an opportunity to indicate to management their preferences for reassignment. These sentences, respectively, would only: (1) require the Agency, when it decides that an inspector must be reassigned to another location based on a loss-of-objectivity determination, to provide the inspector with a list of vacant sites for which the employee is qualified; (2) permit the inspector to submit his or her top three choices for reassignment to the Agency; (3) require the Agency, if it cannot grant one of the inspector's three choices, to provide an explanation; and (4) permit the inspector, should the Agency reject the three choices, to select two additional choices from the list of vacant sites, absent just cause by the Agency for denying the request.
These portions of the proposal do not require the assignment of inspectors to positions at work sites chosen by the inspectors. Rather, they simply establish procedures that allow an affected inspector a chance to review a list of vacancies compiled by the Agency for which management has determined that the employee is qualified, and to inform the Agency of the vacancies on the list where he or she prefers to be reassigned. See, for example, American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA 384, 389-90 (1980) (proposal establishing procedures for the consideration of employees for lateral transfer or reassignment constituted negotiable procedures under section 7106(b)(2) of the Statute). Under the first, second, fourth and fifth sentences of the proposal, after management has provided inspectors with the opportunity to designate the work sites to which they wish to be reassigned, the Agency would still have the discretion to assign the inspector to a position, and to work at any work site. That is, under these sentences, management could assign an inspector to work sites other than those on the list of vacancies. Consequently, we conclude that the first, second, fourth, and fifth sentences of Proposal 6 do not directly interfere with management's right to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We find that those sentences constitute negotiable procedures under section 7106(b)(2) of the Statute.
2. The Third Sentence
Proposals which impose substantive conditions on management's rights directly interfere with management's exercise of those rights. Specifically, proposals that condition the exercise of a management right on whether the exercise of the right is "possible" directly interfere with that right. See National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 35-36 (1991) (provision limiting management in the selection of a candidate for promotion from outside the bargaining unit to situations where, it was not "possible" to promote from within, directly interfered with management's exercise of its right to select employees). The third sentence of Proposal 6 requires the Agency to reassign a resident inspector to one of his or her top three choices, "if at all possible." As worded, the third sentence of Proposal 6 obligates management to assign a resident inspector to one of the employee's three choices, if it could do so, and as such, dictates to management, in some situations, the positions and the work to which management can reassign an inspector. By so dictating, the proposal imposes a substantive condition on management's exercise of its rights to assign employees and assign work and, thus, directly interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute.
Because the third sentence of Proposal 6 directly interferes with management's right to assign employees and assign work, it is negotiable only if it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Applying the analytical framework established in KANG, we find that the third sentence is an arrangement for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute. Specifically, we find that it is reasonably foreseeable that the employees to whom the proposal applies are employees who would be adversely affected by the exercise of management's rights. Office of the Chief Counsel, IRS, 960 F.2d at 1071. The Union explains that the proposal is intended as an arrangement for resident inspectors who are subject to reassignment based on an Agency determination that the inspector has lost the requisite objectivity to perform his or her duties at the current work site. The Union asserts that the proposal affords unit inspectors who are adversely affected by management's decision to reassign them input into where they will be relocated.
We find, consistent with the Union's statements, that the employees to whom the third sentence of Proposal 6 would apply are inspectors who, it is reasonably foreseeable, would be adversely affected by management's decision, based on an evaluation of the objectivity with which they have performed their duties, to reassign them to another work site. We also find that the third sentence is designed to benefit those inspectors by allowing them an opportunity to provide input into where they will be relocated. The third sentence of Proposal 6 would ameliorate the adverse effect of the reassignment on inspectors' professional and personal lives by requiring management, if at all possible, to reassign the inspectors to one of their three choices. Specifically, the proposal allows the inspector to attempt to affect the Agency's decision and, thus, possibly avoid assignment to an undesirable work site. Accordingly, for the reasons stated in connection with our analysis of Proposal 5, we find that the third sentence of Proposal 6 constitutes an arrangement for employees adversely affected by management's exercise of its rights to direct employees and assign work, under section 7106(a)(2)(A) and (B) of the Statute, through the evaluation of employees' performance.
As to the burden imposed by the proposal on the exercise of management's rights, we note that although the third sentence obligates the Agency to reassign an inspector to a work site among those which the inspector has designated, if it is possible to do so, the judgment as to the availability of the position and the qualifications of inspectors needed to perform the work of the position is reserved to management. In this regard, we note the Union's explanation that under the proposal management would create the list of vacant sites for which the Agency has determined that an inspector is qualified. The Union's explanation is consistent with the wording of the proposal. Consequently, we will adopt that interpretation for purposes of this decision.
Interpreted in this manner, we find that the work sites designated by an inspector would come from a list of vacancies for which management has determined the inspector is qualified. That is, the list of vacant sites from which an inspector designates his or her three choices reflects management's determination as to the availability of positions and the qualifications of inspectors needed to perform the work of those positions. Thus, the burden imposed by the third sentence on management's rights is reduced because, at the point that the inspector is allowed to designate three work sites, management already has determined appropriate vacancies for which the inspector is qualified.
Moreover, the sentence would not impose on management an absolute requirement that it reassign the inspector to one of the work sites which the inspector has designated. That is, in situations where it may not be possible to assign an inspector to one of his or her designated choices because the employee has specialized skills that are needed elsewhere, including sites that are not on the list prepared by management, management would not be obligated to reassign the inspector to one of those designated choices. For example, in a case where an inspector has designated his or her three choices and prior to management acting on these choices an emergency situation arises at a work site not on the list prepared by management which management determines requires that inspector's specialized skills, management could determine that it was not at all possible to reassign the inspector to his or her designated choices. Also, if management determines after having examined the inspector's three choices that for mission-related reasons the employee's skills were more suited for a work site not included in the employee's three choices, management could determine that it was not at all possible to reassign the employee to those three choices. Thus, if management demonstrates that it is not possible to reassign the inspector to one of the three designated work sites, management would not be obligated to do so. See, for example, American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 253-58 (1990).
On the other hand, by requiring the Agency, if it is at all possible, to reassign a resident inspector to one of the designated work sites, the third sentence of Proposal 6 affords a substantial benefit to affected inspectors. The reassignment of an inspector based on a determination of loss of objectivity affects not only the inspector, but also that inspector's family.
The inspector would be uprooted by the reassignment and would incur the disruption and hardships associated with moving in such circumstances. By requiring the Agency, if at all possible, to reassign the inspector to one of the work sites designated by the inspector, the third sentence would benefit the inspector by giving him or her significant input into where he or she will be relocated. In this manner, the third sentence would benefit employees by possibly avoiding their assignment to undesirable work sites and thereby reducing the disruption and hardships associated with such an involuntary move.
Balancing the competing interests of the inspectors and the Agency, we conclude that the benefit to inspectors afforded by the proposal outweighs the burden placed by the proposal on the Agency. Consequently, we find that the third sentence of Proposal 6 does not excessively interfere with management's rights and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387-89 (1991) (provision providing that, insofar as possible, the agency would normally avoid the assignment of incidental duties that are inappropriate to an employee's position and qualifications found to constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute); American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1035-37 (1988)(provision requiring management to make a reasonable effort to reassign employees, whose positions were eliminated, to vacant positions that management decided to fill and to train employees who had the aptitude for the vacant positions and reassign them to those positions when they were trained, found to constitute a negotiable appropriate arrangement), reversed as to other matters, No. 88-7408 (9th Cir. Feb. 7, 1989).
3. The Sixth Sentence
The sixth sentence would require the Agency to reassign the inspector to one of the five work sites designated by that inspector, under the second and fourth sentences, from among the list of vacant sites. Because the sixth sentence requires the Agency to assign the inspector to one of the five sites selected by that inspector from the list of vacant sites, the sentence limits the positions to which an inspector can be reassigned to those at the five work sites designated by the inspector and requires management to assign the inspector to a position at one of the five work sites. Thus, if management determined that the inspector's particular qualifications and skills were needed to perform the duties of a position at a work site not listed as one of the inspector's five choices, management could not assign the inspector to that position.
Proposals that limit the positions to which management can reassign an employee to those chosen by an employee directly interfere with management's right to assign employees. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 626-627 (1980), affirmed sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (proposal requiring an agency to reassign employees who were subject to a reduction-in-force on the basis of employee preference found to directly interfere with management's right to assign employees). Similarly, proposals that limit the duties that management can assign an employee directly interfere with management's right to assign work. See Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871, 880 (1987). Consequently, we conclude that, by limiting management to reassigning the inspector to positions and to duties only at the five work sites selected by the inspector, the sixth sentence of the proposal directly interferes with management's right to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
We turn next to the Union's contention that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Applying the analytical framework established by KANG, we find that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute.
For the purposes of this decision, we will assume, without deciding, that the proposal constitutes an arrangement. See, for example, American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1289 (1993). Consequently, we next determine whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3) because it does not excessively interfere with the exercise of management's rights or whether it excessively interferes with management's rights under the Statute. KANG, 21 FLRA at 31-32.
After balancing the competing interests of the employees and the Agency, we conclude that the sixth sentence would excessively interfere with the exercise of management's rights to assign employees and assign work. The sixth sentence of Proposal 6 restricts the positions to which the Agency could assign the inspector to those located at only the five vacant sites designated by the inspector. Thus, the Agency could not assign the inspector to perform the work of positions at work sites which the inspector has not designated. If, for example, the Agency decided that the inspector was most qualified to work at a particular plant and that it needed to assign the inspector to perform the work of a position located at a particular plant that was not designated by the inspector, the sixth sentence would prevent the Agency from doing so. Therefore, the sixth sentence would seriously impair the Agency's ability to manage its work force and determine the sites at which Agency personnel are needed.
We note that the sixth sentence is different from the third sentence of Proposal 6. The third sentence of Proposal 6, unlike the sixth sentence, would not impose on management an absolute requirement that it reassign the inspector to one of the work sites designated by the inspector. Rather, under the third sentence, if management demonstrates that it is not at all possible to reassign the employee to one of the work sites designated by the inspector, management would not be obligated to do so. Thus, under the third sentence, if management concludes that it is not at all possible to reassign an inspector to one of the three locations chosen by the inspector because that inspector has skills that are needed at a different location, the Agency would not be obligated to reassign the inspector. The sixth sentence does not allow management any discretion. The sixth sentence would obligate management to reassign an inspector to one of the five work sites designated by that inspector regardless of whether management demonstrated that it would not be at all possible to do so.
We recognize that a reassignment under the circumstances of this proposal would disrupt the lives of the inspector and his or her family. The sixth sentence of Proposal 6 benefits inspectors by giving them some control over where they are reassigned. The sixth sentence would ameliorate the adverse affect of the reassignment, which resulted from a determination of loss of objectivity, on those inspectors' professional and personal lives by requiring management to reassign the inspectors to one of five work sites designated by the inspectors. We find, however that the benefit to inspectors of limiting the work sites to which they can be reassigned does not outweigh the burden imposed on management's ability to use inspectors' skills where they are needed. Consequently, we find that the sixth sentence of Proposal 6 excessively interferes with management's rights to assign employees and assign work. We conclude, therefore, that this sentence is not an appropriate arrangement under section 7106(b)(3) of the Statute.
We conclude that the first, second, third, fourth, and fifth sentences of Proposal 6 are negotiable. The sixth sentence is nonnegotiable because it directly and excessively interferes with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
VI. Order
The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 1, 2, 3, 4, 5, and the first five sentences of Proposal 6.(4)
We dismiss the petition for review as to the sixth sentence of Proposal 6.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. In its Statement of Position (Statement), the Agency withdrew its allegation of nonnegotiability with respect to the second paragraph of Article 25, Section 25.8. In its response, the Union withdrew the portion of Article 1, Section 1.5 that was in dispute. These proposals will not be considered in this decision.
2. Under Miranda, in a criminal case, statements obtained during custodial interrogation of a defendant may not be utilized unless prior to the questioning the person is "warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him[ or her,] and that he [or she] has a right to the presence of an attorney, either retained or appointed." Miranda, 384 U.S. at 444. Under Kalkines, a Federal employee can be discharged for not answering a question if adequately informed both that the employee is subject to discharge for not answering and that the employee's replies and the "fruits" of such replies cannot be employed against the employee in a criminal case. Kalkines, 473 F.2d at 1383.
3. An employee's right to union representation under section 7114(a)(2)(B) of the Statute applies to all investigations, including criminal investigations, conducted by an agency. See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA 834, 840 (1991).
4. In finding that these proposals are negotiable, we make no judgment as to their merits.