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The decision of the Authority follows:
16 FLRA No. 48 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1812, AFL-CIO Union and UNITED STATES INFORMATION AGENCY Agency Case No. O-NG-739 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 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 omitted.) 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 Chairman 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.