15:0343(73)NG - Tidewater Virginia FEMT Council and Navy Public Works Center, Norfolk, Virginia -- 1984 FLRAdec NG

[ v15 p343 ]
The decision of the Authority follows:

 15 FLRA No. 73
                                            Case No. O-NG-561
    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 provisions of a local agreement
 disapproved by the Agency head pursuant to section 7114(c) of the
 Statute.  /1/ Upon careful consideration of the entire record, including
 the parties' contentions, the Authority makes the following
 determinations.  /2/
                                Provision 1
          Article 5, Section 6.
          In any discussion with management that an employee believes
       might result in action against himself/herself, the employee shall
       have the right to remain silent.  However, remaining silent does
       not bar the EMPLOYER from proceeding with any action deemed
    In agreement with the parties, the Authority finds that the issue
 raised by Provision 1 is essentially the same as that which was
 presented in International Brotherhood of Electrical Workers, AFL-CIO,
 Local 1186 and Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217
 (1980), enforcement denied, Navy Public Works Center, Pearl Harbor,
 Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d 97 (9th
 Cir. 1982).  That is, both the provision in this case and the proposal
 examined by the court in Navy Public Works Center would have precluded
 disciplining an employee for refusing to account for his or her actions,
 i.e., for insubordination, but would not have prevented imposition of
 discipline for the underlying conduct giving rise to the discussion.  In
 light of the decision of the Ninth Circuit, the Authority concludes that
 the instant provision does not establish a negotiable procedure under
 section 7106(b)(2) of the Statute.  Rather, by totally immunizing
 employees from disciplinary action for refusing to answer questions
 concerning their official duties in discussions which they believe may
 result in disciplinary proceedings, the provision directly interferes
 with substantive management rights.
    In this regard, in National Treasury Employees Union and Department
 of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
 nom. National Treasury Employees Union v. Federal Labor Relations
 Authority, 691 F.2d 553 (D.C. Cir. 1982), the Authority noted that there
 is "a direct relationship between the content of performance standards
 and the identification of critical elements and the right of an agency
 to direct employees under section 7106(a)(2)(A) of the Statute and to
 assign work under section 7106(a)(2)(B) of the Statute." In other words,
 management, at least in part, exercises its authority to assign work and
 to direct employees by holding the employees accountable for meeting the
 standards set by management for the performance of that work.  The
 Authority now concludes that accountability encompasses management's
 right to an explanation from an employee as to why he or she is unable
 or unwilling to meet established standards of performance, since mere
 statistical data alone may be insufficient.  Such conclusion is equally
 applicable to circumstances where an employee is called to account for
 failure to meet prescribed standards of conduct or for other
 derelictions which may result in discipline but do not rise to the level
 of criminal conduct.  /3/
    Thus, Provision 1, by giving employees the option to remain silent in
 circumstances out of which discipline may result, directly interferes
 with management's right to direct employees and assign work.  Moreover,
 by immunizing employees from discipline for refusing to account for
 their work or prior conduct, Provision 1 also prevents management from
 acting at all with respect to the right under section 7106(a)(2)(A) of
 the Statute to take disciplinary action against employees.  Hence, in
 agreement with the rationale o