[ v15 p343 ]
The decision of the Authority follows:
15 FLRA No. 73 TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL Union and NAVY PUBLIC WORKS CENTER NORFOLK, VIRGINIA Agency Case No. O-NG-561 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of two 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 appropriate. 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 dispute.) 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. /4/ 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.