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U.S. Federal Labor Relations Authority

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16:0308(48)NG - AFGE Local 1812 and Information Agency -- 1984 FLRAdec NG

[ v16 p308 ]
The decision of the Authority follows:

 16 FLRA No. 48
                                            Case No. O-NG-739
    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 three provisions of an agreement
 disapproved by the Agency head pursuant to section 7114(c) of the
 Statute.  Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
                                Provision 1
          Article V, Section 1(d)
          Right to Representation.  An employee has the right to request
       a Union representative at all stages of a grievance, appeal, or
       disciplinary action (other than an oral admonishment or oral
       reprimand), or at any examination by a representative of the
       Agency in connection with an investigation if the employee
       reasonably believes that the examination may result in
       disciplinary action against the employee.  The employee shall be
       given reasonable notice prior to such examination.  The notice
       action shall be based on the employee's option to request Union
       representation.  Once the employee requests a representative and a
       determination is made to continue the the investigation or
       examination, the Agency will not engage in any examination of the
       employee without first informing the representative and providing
       the opportunity for the representative's presence.  The employee
       has the right to remain silent if he/she chooses.  (Only the last
       sentence is in dispute.)
    The Authority finds that the issue raised by Provision 1 is
 essentially the same as that which was presented in Tidewater Virginia
 Federal Employees Metal Trades Council and Navy Public Works Center,
 Norfolk, Virginia, 15 FLRA No. 73 (1984).  In that case the Authority
 found that Provision 1 therein concerning an employee's right to remain
 silent during any discussion with management in which the employee
 believed disciplinary action may be taken against him or her was outside
 the duty to bargain as the provision prevented management from acting at
 all in regard to its substantive right under section 7106(a)(2)(A) to
 take disciplinary action against employees.  /1/ The Authority noted the
 effect of the provision would have been to insulate employees from
 disciplinary action should they decline to account for their work or
 conduct during investigations which the employees believed might lead to
 disciplinary proceedings.  Moreover, the Authority has also held in Navy
 Public Works Center that management's exercise of its rights to direct
 employees and assign work pursuant to section 7106(a)(2)(A) and (B) of
 the Statute includes the right to have employees account for their
 conduct and work performance.  Therefore, the Authority concluded that
 granting employees the right to remain silent would interfere with these
 management rights.  /2/
    Since Provision 1 herein would have the same effect as the provision
 referenced in Navy Public Works Center, the provision is for the reasons
 stated therein, outside the duty to bargain.
                                Provision 2
          Article XIV, Section 3-- Employee-- Agency Responsibility
          a.  Any employee with such concerns as his/her drinking,
       marital situation, interpersonal relationships, depression,
       children's school difficulties, or financial difficulties would
       receive strictly confidential help through this comprehensive
       service (ARCS).
          b.  When an employee's problem interferes with the efficient
       and proper performance of his/her duties, reduces his/her
       dependability, or whose disgraceful conduct reflects discredit
       upon the Agency, supervisors will attempt to implement the
       procedures of the Advisory, Referral and Counseling Service before
       considering disciplinary or other corrective action.
          Only after the refusal of the employee to participate or upon
       failure of the employee to progress toward the renewal of
       acceptable work performance will management take adverse action as
       a corrective measure.
    In National Treasury Employees Union and Internal Revenue Service, 6
 FLRA 522 (1981) the Authority considered the negotiability of a union
 proposal which would have restricted the Agency in taking disciplinary
 action against an employee having work performance problems while the
 employee was an active participant in a recognized drug/alcoholism
 program.  The Authority found the proposal was inconsistent with the
 agency's right to discipline employees under section 7106(a)(2)(A) of
 the Statute and, therefore, was outside the duty to bargain.  The
 Authority noted the proposal would have had the effect of completely
 immunizing employees who enter the program from discipline since the
 Agency would have been prevented from taking disciplinary action so long
 as the employees remained active participants in the rehabilitation
 program.  The Authority held in Internal Revenue Service:
          Thus, the proposal would grant employees the option to totally
       deny the Agency's statutory authority by participating in such a
       program and hence even if considered to be procedural in nature,
       the proposal would have the effect of preventing the Agency from
       acting at all in the exercise of its authority to discipline
       employees under section 7106(a)(2)(A) of the Statute.  (Footnote
    In the instant case, the provision would similarly prevent the Agency
 from taking disciplinary measures against an employee so long as the
 employee continued to participate in the Advisory, Referral and
 Counseling Service program and to progress toward an acceptable work
 performance level.  Thus, under the provision, an employee would
 completely avoid disciplinary action for his or her conduct or
 unacceptable work performance by remaining a participant in the program
 and making progress, however slight, towards acceptable performance.
 Hence, as in Internal Revenue Service, the Agency's right to discipline
 such an employee would be permanently restricted, rather than having the
 effect of merely delaying the imposition of disciplinary action.  /3/
 The proposal, therefore, directly affects management's right to
 discipline employees under section 7106(a)(2)(A) of the Statute and is
 not within the duty to bargain.
                                Provision 3
          3) An employee shall be given a temporary promotion if the
       assignment to higher level work is for more than thirty (30)
       consecutive calendar days and the employee is eligible for
       promotion.  Requests for temporary promotions are to be submitted
       by the element of assignment to the appropriate Personnel Office
       in advance of the proposed effective date.  When it is known at
       the beginning of a detail that the detail will last for more than
       thirty (30) days, the employee should be temporarily promoted from
       the first day of the detail if the employee is eligible for
       promotion.  Should, through inadvertence or oversight, the Request
       for Personnel Action, SF-52, not be submitted before an employee
       has completed thirty (30) days in an assignment at a higher level
       of work, the promotion shall be made retroactive to the
       thirty-first (31st) day in the higher graded assignment if the
       employee is otherwise eligible for promotion.
    The Union states that it believes that the Agency has withdrawn its
 section 7117(c) claim regarding Provision 3.  The Agency does not
 controvert this statement.  Moreover, there is no argument in the record
 by either party concerning the negotiability of the Provision.  Finally,
 it appears that language substantially identical to Provision 3 has been
 included in the parties' master collective bargaining agreement which
 was approved by the Agency.  In light of the above, the Authority finds
 that any issue as to the negotiability of Provision 3 is therefore moot.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Provisions 1, 2, and 3 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., November 6, 1984
                                       Henry B. Frazier III, Acting
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ See International Brotherhood of Electrical Workers, AFL-CIO,
 Local 1186 and Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217
 (1980), enforcement denied sub nom. Navy Public Works Center, Pearl
 Harbor, Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d
 97 (9th Cir. 1982), wherein the Court of Appeals in refusing to enforce
 an Authority Order held the right to remain silent during disciplinary
 investigations was not a negotiable procedural rule but, rather, dealt
 with the right to discipline employees and to assign work.
    /2/ Section 7106(a)(2) provides, in relevant part:
    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 . . . direct . . . employees in the Agency .  . . to
       suspend, remove, reduce in grade or pay, or take other
       disciplinary action against such employees;
          (B) to assign work(.)
    /3/ Cf. American Federation of State, County and Municipal Employees,
 AFL-CIO, Local 2910 and Library of Congress, 11 FLRA No. 109 (1983),
 (proposal to give employees who accepted assistance in the Alcoholism
 and Drug Abuse Assistance Program a reasonable opportunity to improve
 their performance before being subjected to adverse action was found to
 be negotiable, as the only effect of the proposed procedure would be to
 delay the imposition of performance-based discipline for those employees
 whose performance does not improve to a satisfactory level after having
 accepted assistance in the program.