International Brotherhood of Electrical Workers, Local 1186, AFL-CIO (Union) and Navy Public Works Center, Pearl Harbor, Honolulu, Hawaii (Activity)




[ v04 p217 ]
04:0217(32)NG
The decision of the Authority follows:


 4 FLRA No. 32
 
 INTERNATIONAL BROTHERHOOD OF ELECTRICAL
 WORKERS, AFL-CIO, LOCAL 1186
 (Union)
 
 and
 
 NAVY PUBLIC WORKS CENTER,
 PEARL HARBOR, HONOLULU, HAWAII
 (Activity)
 
                                            Case No. O-NG-31
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
               ARTICLE 20, SECTION 1-- DISCIPLINARY ACTIONS
 
    SUBJECT TO PROVISION OF RIGHTS OF UNION AND EMPLOYEE, DISCUSSIONS
 THAT MAY LEAD TO
 
    DISCIPLINARY ACTION WILL BE HELD BETWEEN A SUPERVISOR HAVING HAD
 AUTHORITY TO PROPOSE THE
 
    ACTION, THE EMPLOYEE CONCERNED, AND HIS STEWARD IF REQUESTED BY THE
 EMPLOYEE.  THE EMPLOYEE
 
    HAS THE RIGHT TO SPEAK OR REMAIN SILENT OR REFUSE TO GIVE A WRITTEN
 STATEMENT AND SHALL BE SO
 
    INFORMED BY THE EMPLOYER AT THE OUTSET OF THE INQUIRY OR
 INVESTIGATION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE PRINCIPAL QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES THE
 RIGHT OF THE AGENCY TO DIRECT AND ASSIGN WORK TO ITS EMPLOYEES OR TAKE
 DISCIPLINARY ACTION AGAINST THEM UNDER SECTION 7106(A)(2) OF THE
 STATUTE, /1/ OR WHETHER THE PROPOSAL ESTABLISHES A NEGOTIABLE PROCEDURE
 UNDER SECTION 7106(B)(2) OF THE STATUTE.  /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL ESTABLISHES A NEGOTIABLE
 PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10, AS AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT
 THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING THE SUBJECT PROPOSAL.  /3/
 
    REASONS:  THE UNION'S PROPOSAL PROVIDES, ESSENTIALLY, THAT WHERE A
 SUPERVISOR WITH THE AUTHORITY TO PROPOSE DISCIPLINE IS HOLDING AN
 INVESTIGATORY DISCUSSION WITH AN EMPLOYEE AND HIS UNION REPRESENTATIVE
 (IF REQUESTED), WHICH DISCUSSION MAY LEAD TO DISCIPLINARY ACTION AGAINST
 SUCH EMPLOYEE, THE LATTER MUST BE ADVISED BY MANAGEMENT AT THE START OF
 THE DISCUSSION THAT HE MAY REMAIN SILENT AND GIVE NO WRITTEN STATEMENT.
 THE AGENCY'S BASIC POSITION IS THAT THE UNION'S PROPOSAL IS OUTSIDE THE
 DUTY TO BARGAIN BECAUSE IT WOULD DIRECTLY IMPAIR OR UNREASONABLY DELAY
 MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO TAKE
 DISCIPLINARY ACTION AGAINST EMPLOYEES.  THE OFFICE OF PERSONNEL
 MANAGEMENT (OPM), IN ITS BRIEF AMICUS CURIAE FILED PURSUANT TO
 PERMISSION GRANTED BY THE AUTHORITY UNDER SEC. 2429.9 OF ITS RULES AND
 REGULATIONS (5 CFR 2429.9), SUPPORTS THE AGENCY'S CONTENTION THAT THE
 DISPUTED PROPOSAL CONFLICTS WITH MANAGEMENT'S RIGHT TO DISCIPLINE ITS
 EMPLOYEES, ARGUING THAT AN EMPLOYEE'S FAILURE TO RESPOND DURING AN
 INVESTIGATION CONSTITUTES INSUBORDINATION.  /4/ OPM ADDITIONALLY
 CONTENDS THAT THE UNION'S PROPOSAL WOULD VIOLATE MANAGEMENT'S RIGHT
 UNDER SECTION 7106(A)(2) TO ASSIGN AND DIRECT THE WORK OF EMPLOYEES BY
 ESTABLISHING THE RIGHT OF AN EMPLOYEE TO REMAIN SILENT DURING AN
 INVESTIGATION CONCERNING THE PERFORMANCE OF ASSIGNED DUTIES, AND
 SIMILARLY "WOULD VIOLATE MANAGEMENT'S RIGHT AND OBLIGATION TO PROTECT
 THE PUBLIC INTEREST IN THE MAINTENANCE OF EFFECTIVE GOVERNMENT
 FUNCTIONS," CITING AND RELYING UPON SECTION 7101 OF THE STATUTE /5/ AS
 SUPPORT FOR SUCH CONTENTION.  THE AGENCY AND OPM FURTHER CONTEND THAT
 THE UNION'S PROPOSAL IS INCONSISTENT WITH A "GOVERNMENT-WIDE RULE OR
 REGULATION" WITHIN THE MEANING OF SECTION 7117(A) OF THE STATUTE, MORE
 SPECIFICALLY 5 CFR 5.3, /6/ AND THAT THE DUTY TO BARGAIN THEREFORE DOES
 NOT EXTEND TO SUCH MATTER.  HOWEVER, INASMUCH AS THE FOREGOING
 REGULATION SPECIFICALLY APPLIES ONLY TO INQUIRIES CONDUCTED BY THE OPM
 OR ITS AUTHORIZED REPRESENTATIVES "ARISING UNDER THE LAWS, RULES OR
 REGULATIONS ADMINISTERED BY THE (OPM)," RATHER THAN TO OTHER DISCUSSIONS
 HELD BY AGENCY MANAGEMENT AS CONTEMPLATED BY THE UNION'S PROPOSAL, THE
 CITED REGULATION IS DEEMED INAPPOSITE TO THE INSTANT DISPUTE.  IN
 ADDITION, FOR THE REASONS STATED BELOW, THE RESPECTIVE CONTENTIONS BY
 THE AGENCY AND OPM THAT THE PROPOSAL HEREIN IS NOT WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE CANNOT BE SUSTAINED.
 
    SECTION 7106 OF THE STATUTE SPECIFIES, IN SUBSECTION (A), VARIOUS
 RIGHTS RESERVED TO AGENCY MANAGEMENT.  SECTION 7106(B)(2), HOWEVER,
 PROVIDES THAT THE ENUMERATION OF THE SPECIFIED MANAGEMENT RIGHTS IN
 SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION OF PROCEDURES WHICH
 MANAGEMENT WILL OBSERVE IN EXERCISING THOSE RIGHTS.  THE LEGISLATIVE
 HISTORY OF THE STATUTE, AS IT PERTAINS TO SUBSECTION (B)(2), REVEALS
 THAT THE COMMITTEE ON CONFERENCE, IN ADOPTING THE BILL WHICH
 SUBSEQUENTLY WAS ENACTED BY CONGRESS AND SIGNED INTO LAW BY THE
 PRESIDENT, SPECIFICALLY REJECTED A PROVISION OF THE SENATE BILL (S.
 2640) WHICH STATED THAT NEGOTIATION ON PROCEDURES SHOULD NOT
 "UNREASONABLY DELAY" SO AS TO "NEGATE" THE EXERCISE OF MANAGEMENT'S
 RESERVED RIGHTS.  /7/ IT IS THEREFORE JUSTIFIABLE TO CONCLUDE THAT
 CONGRESS DID NOT INTEND SUBSECTION (B)(2) TO PRECLUDE NEGOTIATION ON A
 PROPOSAL MERELY BECAUSE IT MAY IMPOSE ON MANAGEMENT A REQUIREMENT WHICH
 WOULD DELAY IMPLEMENTATION OF A PARTICULAR ACTION INVOLVING THE EXERCISE
 OF A SPECIFIED MANAGEMENT RIGHT.  RATHER, AS THE CONFERENCE REPORT
 INDICATES, SUBSECTION (B)(2) IS INTENDED TO AUTHORIZE AN EXCLUSIVE
 REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO THE EXTENT
 THAT SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT
 ALL.  /8/
 
    IN THE INSTANT CASE, WHILE THE AGENCY AND OPM CONTEND THAT THE
 UNION'S PROPOSAL WOULD DIRECTLY IMPAIR AS WELL AS UNREASONABLY DELAY
 MANAGEMENT'S RESERVED RIGHT UNDER SECTION 7106(A)(2)(A) TO "TAKE . . .
 DISCIPLINARY ACTION AGAINST . . . EMPLOYEES," THERE IS NO INDICATION
 THAT COMPLIANCE WITH THE DISPUTED PROPOSAL WOULD MAKE IT IMPOSSIBLE FOR
 THE AGENCY TO IMPLEMENT SUCH DISCIPLINARY ACTIONS.  INDEED, THE PROPOSAL
 HEREIN DOES NOT DIRECTLY INVOLVE AGENCY MANAGEMENT'S RIGHT TO TAKE
 DISCIPLINARY ACTION.  RATHER, IT PROVIDES THAT WHERE MANAGEMENT CONDUCTS
 AN INQUIRY OR INVESTIGATION INVOLVING A DISCUSSION WITH A BARGAINING
 UNIT EMPLOYEE BEFORE DECIDING TO TAKE DISCIPLINARY ACTION, SUCH EMPLOYEE
 FIRST MUST BE INFORMED OF A CONTRACTUALLY CREATED RIGHT TO REMAIN
 SILENT.  THAT IS, NOTHING IN THE UNION'S PROPOSAL WOULD PREVENT
 MANAGEMENT FROM TAKING DISCIPLINARY ACTION AGAINST AN EMPLOYEE (WITH OR
 WITHOUT DISCUSSIONS) BASED UPON INFORMATION DERIVED FROM SOURCES OTHER
 THAN THE EMPLOYEE DIRECTLY INVOLVED.  MOREOVER, AS PREVIOUSLY STATED,
 INASMUCH AS THE UNION'S PROPOSAL WOULD CREATE A CONTRACTUAL RIGHT FOR
 UNIT EMPLOYEES TO REMAIN SILENT DURING AN INVESTIGATION CONDUCTED BY
 MANAGEMENT, IT IS UNNECESSARY TO REACH OR PASS UPON THE GENERAL QUESTION
 RAISED BY OPM AS TO WHETHER OR UNDER WHAT CIRCUMSTANCES AN EMPLOYEE'S
 REFUSAL TO RESPOND MIGHT OTHERWISE CONSTITUTE INSUBORDINATION UNDER THE
 STATUTE.  SIMILARLY, NOTHING IN THE UNION'S PROPOSAL WOULD PREVENT
 MANAGEMENT FROM DIRECTING ITS EMPLOYEES AND ASSIGNING WORK TO THEM UNDER
 SECTION 7106(A)(2) OF THE STATUTE, AS ASSERTED BY OPM IN ITS BRIEF
 AMICUS CURIAE.  CONTRARY TO OPM'S CONTENTION, MANAGEMENT WOULD NO MORE
 BE RESTRICTED IN HOLDING EMPLOYEES ACCOUNTABLE FOR THE MANNER IN WHICH
 WORK IS PERFORMED THAN IT WOULD BE IN DISCIPLINING EMPLOYEES FOR
 IMPROPER PERFORMANCE OF THEIR WORK OR FOR ANY OTHER REASON.  MOREOVER,
 FOR THE REASONS SET FORTH ABOVE, IT HAS NOT BEEN DEMONSTRATED AND DOES
 NOT OTHERWISE APPEAR FROM THE UNION'S PROPOSAL IS INCONSISTENT WITH THE
 PUBLIC INTEREST OR "THE REQUIREMENT OF AN EFFECTIVE AND EFFICIENT
 GOVERNMENT" AS STATED IN SECTION 7101 OF THE STATUTE (NOTE 5, SUPRA).
 
    IT IS ASSERTED BY THE AGENCY AND OPM, HOWEVER, THAT SECTION
 7114(A)(2)(B) OF THE STATUTE, /9/ WHILE ACCORDING AN EMPLOYEE THE RIGHT
 TO HAVE A UNION REPRESENTATIVE AT AN INVESTIGATORY EXAMINATION CONDUCTED
 BY MANAGEMENT, DOES NOT GRANT SUCH EMPLOYEE THE RIGHT TO REMAIN SILENT
 ONCE THE UNION REPRESENTATIVE IS PRESENT.  THE FOREGOING ARGUMENT IS
 MISPLACED, INASMUCH AS THE UNION'S PROPOSAL WOULD CREATE A CONTRACTUAL
 RIGHT FOR UNIT EMPLOYEES TO REMAIN SILENT DURING INVESTIGATORY
 EXAMINATIONS AND IS NOT BASED UPON THE INTERPRETATION AND APPLICATION OF
 SECTION 7114(A)(2)(B) OF THE STATUTE.  STATED OTHERWISE, ASSUMING
 WITHOUT DECIDING THAT THE AGENCY AND OPM HAVE CORRECTLY INTERPRETED
 SECTION 7114(A)(2)(B) OF THE STATUTE, NOTHING CONTAINED THEREIN WOULD
 PRECLUDE THE UNION FROM SEEKING TO NEGOTIATE CERTAIN PROCEDURAL
 PROTECTIONS FOR UNIT EMPLOYEES BEYOND THOSE CREATED BY STATUTE.
 
    SIMILARLY MISPLACED IS THE AGENCY'S RELIANCE UPON SEVERAL COURT
 DECISIONS INVOLVING THE CONSTITUTIONALITY OF DISCHARGING PUBLIC
 EMPLOYEES WHO REFUSE TO ANSWER PERTINENT QUESTIONS CONCERNING THEIR
 OFFICIAL CONDUCT.  /10/ THE CASES CITED BY THE AGENCY CONCERN THE
 LIMITATIONS ON THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION,
 AND PROVIDE GENERALLY THAT THE CONSTITUTION DOES NOT EXTEND PROTECTION
 TO A PUBLIC EMPLOYEE WHO REFUSES TO ANSWER QUESTIONS NARROWLY DIRECTED
 TO THE PERFORMANCE OF HIS OFFICIAL DUTIES WHERE THE EMPLOYEE HAS
 RECEIVED ASSURANCE THAT HIS ANSWERS WILL NOT BE USED IN ANY CRIMINAL
 PROSECUTION.  HOWEVER, THE CITED DECISIONS NEITHER ADDRESS NOR CONTROL
 WHETHER AN EXCLUSIVE BARGAINING REPRESENTATIVE MAY NEGOTIATE AN
 AGREEMENT CONSISTENT WITH THE STATUTE WHICH ESTABLISHES PROCEDURAL
 RIGHTS FOR UNIT EMPLOYEES BY CONTRACT.  FOR THE REASONS PREVIOUSLY
 STATED, THE AUTHORITY CONCLUDES THAT THE PROPOSAL AT ISSUE HEREIN IS A
 PROCEDURAL MATTER WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF
 THE STATUTE.
 
    ACCORDINGLY, THE PROPOSAL AT ISSUE IS WITHIN THE DUTY TO BARGAIN
 UNDER SECTION 7106(B)(2) OF THE STATUTE, AND THE ALLEGATION THAT SUCH
 PROPOSAL IS NOT OF THE STATUTE, AND THE ALLEGATION THAT SUCH PROPOSAL IS
 NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT VIOLATES SECTION 7106(A)(2) OF
 THE STATUTE MUST BE SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 19, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106(A)(2) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    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 HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK . . .
 
    /2/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION . . .
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ OPM CITES FEDERAL AVIATION ADMINISTRATION, ALASKA REGION, A/SLMR
 NO. 1046(MAY 17, 1978), IN THIS REGARD, WHEREIN THE ASSISTANT SECRETARY
 OF LABOR FOR LABOR-MANAGEMENT RELATIONS, NOTING THE ABSENCE OF
 EXCEPTIONS, ADOPTED WITHOUT COMMENT THE FINDINGS, CONCLUSIONS AND
 RECOMMENDATION OF AN ADMINISTRATIVE LAW JUDGE THAT THE FAA HAD NOT
 VIOLATED EXECUTIVE ORDER 11491, AS AMENDED, DURING THE COURSE OF
 INVESTIGATING THE CAUSES OF AN AIR CRASH, BY THREATENING TO DISCIPLINE
 AIR TRAFFIC CONTROLLERS WHO REFUSED TO MAKE WRITTEN STATEMENTS AS
 REQUIRED BY THE FAA HANDBOOK.
 
    /5/ SECTION 7101 OF THE STATUTE PROVIDES:
 
    SEC. 7101.  FINDINGS AND PURPOSE
 
    (A) THE CONGRESS FINDS THAT--
 
    (1) EXPERIENCE IN BOTH PRIVATE AND PUBLIC EMPLOYMENT INDICATES THAT
 THE STATUTORY
 
    PROTECTION OF THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN
 COLLECTIVELY, AND PARTICIPATE
 
    THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISIONS WHICH
 AFFECT THEM--
 
    (A) SAFEGUARDS THE PUBLIC INTEREST,
 
    (B) CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND
 
    (C) FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES
 BETWEEN EMPLOYEES AND
 
    THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT;  AND
 
    (2) THE PUBLIC INTEREST DEMANDS THE HIGHEST STANDARDS OF EMPLOYEE
 PERFORMANCE AND THE
 
    CONTINUED DEVELOPMENT AND IMPLEMENTATION OF MODERN AND PROGRESSIVE
 WORK PRACTICES TO
 
    FACILITATE AND IMPROVE EMPLOYEE PERFORMANCE AND THE EFFICIENT
 ACCOMPLISHMENT OF THE OPERATIONS
 
    OF THE GOVERNMENT.
 
    THEREFORE, LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL
 SERVICE ARE IN THE PUBLIC INTEREST.
 
    (B) IT IS THE PURPOSE OF THIS CHAPTER TO PRESCRIBE CERTAIN RIGHTS AND
 OBLIGATIONS OF THE
 
    EMPLOYEES OF THE FEDERAL GOVERNMENT AND TO ESTABLISH PROCEDURES WHICH
 ARE DESIGNED TO MEET THE
 
    SPECIAL REQUIREMENTS AND NEEDS OF THE GOVERNMENT.  THE PROVISIONS OF
 THIS CHAPTER SHOULD BE
 
    INTERPRETED IN A MANNER CONSISTENT WITH THE REQUIREMENT OF AN
 EFFECTIVE AND EFFICIENT
 
    GOVERNMENT.
 
    /6/ 5 CFR 5.3 PROVIDES AS FOLLOWS:
 
    SECTION 5.3-- OFFICERS AND EMPLOYEES TO FURNISH TESTIMONY--
 
    ALL OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH, AND APPLICANTS OR
 ELIGIBLES FOR
 
    POSITIONS THEREIN, SHALL GIVE TO THE (OFFICE OF PERSONNEL MANAGEMENT)
 OR ITS AUTHORIZED
 
    REPRESENTATIVES ALL INFORMATION AND TESTIMONY IN REGARD TO MATTERS
 INQUIRED OF ARISING UNDER
 
    THE LAWS, RULES OR REGULATIONS ADMINISTERED BY THE (OPM).  WHENEVER
 REQUIRED BY THE (OPM),
 
    SUCH PERSONS SHALL SUBSCRIBE SUCH TESTIMONY AND MAKE OATH OR
 AFFIRMATION THERETO BEFORE AN
 
    OFFICER AUTHORIZED BY LAW TO ADMINISTER OATHS.
 
    /7/ SECTION 7218 OF THE SENATE BILL PROVIDED AS FOLLOWS:
 
    SEC. 7218.  BASIC PROVISIONS OF AGREEMENTS
 
   *          *          *          *
 
 
    (B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
 PARTIES FROM NEGOTIATING--
 
    (1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
 AUTHORITY TO DECIDE OR ACT
 
    IN MATTERS RESERVED UNDER SUCH SUBSECTION;  OR
 
    (2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 IMPACT OF MANAGEMENT'S
 
    EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
 SUCH SUBSECTION, EXCEPT
 
    THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE EXERCISE BY
 MANAGEMENT OF ITS
 
    AUTHORITY TO DECIDE OR ACT, AND SUCH PROCEDURES AND ARRANGEMENTS
 SHALL BE CONSISTENT WITH THE
 
    PROVISIONS OF ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS
 TITLE, AND SHALL NOT HAVE THE
 
    EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).
 
    /8/ SEE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
 REVENUE SERVICE, NEW ORLEANS DISTRICT OFFICE, 1 FLRA NO. 102(1979), AT
 N. 9, AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
 DIX, NEW JERSEY, 2 FLRA NO. 16(1979), CITING THE JOINT EXPLANATORY
 STATEMENT OF THE COMMITTEE ON CONFERENCE, S. REP. NO. 95-1272, 95TH
 CONG., 2ND SESS. 158(1978).
 
    /9/ SECTION 7114(A)(2)(B) PROVIDES:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    (A)(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
 AGENCY SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
   *          *          *          *
 
 
    (B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
 THE AGENCY IN
 
    CONNECTION WITH AN INVESTIGATION IF--
 
    (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST THE EMPLOYEE;  AND
 
    (II) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    /10/ THE AGENCY CITES GARDNER V. BRODERICK, 392 U.S. 273(1968);
 UNIFORMED SANITATION MEN ASSOCIATION, INC. V. COMMISSIONER OF SANITATION
 OF NEW YORK, 392 U.S.  280(1968);  426 F.2ND 619 (C.A. 2, 1970), CERT.
 DENIED 406 U.S. 961(1972);  AND KALKINES V.  UNITED STATES,