U.S. Federal Labor Relations Authority

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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 of the Ninth Circuit's decision in Naval
 Public Works Center, supra, the Authority finds Provision 1 to be
 outside the Agency's duty to bargain.
                                Provision 2
          Article 20, Section 3.
          Performance standards and critical elements shall be fair and
       equitable, job related and consistent with the classification
       standards for the job.  Any employee who believes the application
       of a standard or critical element does not meet the above criteria
       shall be allowed to grieve through the grievance procedure of this
       agreement.  In resolving grievances involving critical elements
       and standards the Council representatives may direct requests for
       access to said elements and standards to the supervisor, to aid in
       resolving the complaint.  Such record of critical elements and
       performance standards for all employees within the area concerned
       in the complaint shall be made available.  The appropriate Council
       representative will limit such requests to cases in which there is
       a bona fide complaint regarding critical elements and performance
       standards.  (Only the underscored sentence of the provision is in
    The Agency contends that insertion of the words "the application of"
 immediately before the words "critical elements" in the disputed
 sentence is necessary to bring Provision 2 into compliance with the
 Authority's holding in American Federation of Government Employees,
 AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence
 Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981),
 enforced sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
 1982, cert. denied, 103 S.Ct. 2085 (1983).  In that decision the
 Authority stated that a negotiated grievance procedure may extend to
 actions resulting from the application of management-established
 critical elements and performance standards to an employee.  In this
 respect, the Union asserts that the disputed sentence is not intended to
 extend the reach of the negotiated grievance procedure beyond the
 boundaries established in the immediately preceding standards.  Such an
 interpretation is consistent with the language of the provision itself
 and is adopted for purposes of this decision.  Hence, contrary to the
 Agency's contention, the Authority finds that the provision would not
 extend the coverage of the grievance procedure beyond those matters
 found to be appropriate in Saint Lawrence Seaway Development
 Corporation.  Therefore, based on Saint Lawrence Seaway Development
 Corporation and the reasons stated therein, Provision 2 is within the
 Agency's obligation to bargain.  See also American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C., 3 FLRA 784 (1980) (Union Proposal 5).
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review, as it
 relates to Provision 1 be, and it hereby is, dismissed.  IT IS FURTHER
 ORDERED that the Agency shall rescind its disapproval of Provision 2,
 which was bargained and agreed to by the parties at the local level.
    Issued, Washington, D.C., July 24, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency withdrew a declaration of nonnegotiability concerning
 a third provision of the agreement.
    /2/ The Union's contention that the collective bargaining agreement
 is binding on the parties as executed because the Agency head's
 disapproval was not served on the Union within 30 days from the date the
 agreement was executed cannot be sustained.  The record indicates that
 the agreement was executed on August 5, 1981, and that the Agency head's
 disapproval was served on the Union, within the meaning of sections
 2429.27(b) and (d) of the Authority's Rules and Regulations (i.e.,
 deposited in the mail by certified mail) on September 4, 1981, exactly
 30 days from the date the agreement was executed.  The Union's
 contention that the Agency's statement of position was untimely filed
 also cannot be sustained.  Section 2424.6 of the Authority's Rules and
 Regulations provides that the time limit for filing a statement of
 position is 30 days after the date of receipt of a copy of the petition
 by the Agency head.  In this case, the Union's petition was received by
 the Agency head on September 17, 1981, and the statement was filed on
 October 16, 1981.
    /3/ The right to receive an explanation for substandard performance
 or conduct does not, under appropriate circumstances, vitiate an
 employee's right to representation pursuant to section 7114(a)(2)(B) of
 the Statute.
    /4/ In finding Provision 2 to be within the duty to bargain, the
 Authority makes no judgment as to its merits.