[ v17 p302 ]
The decision of the Authority follows:
17 FLRA No. 41 OFFICE OF PERSONNEL MANAGEMENT WASHINGTON, D.C. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2849, AFL-CIO Charging Party/Union Case No. 2-CA-20154 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts and accompanying exhibits, and the contentions of the parties, the Authority finds: The complaint herein alleges that based upon Authority law as it existed in 1981, at the time of the probative facts in this case, the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when the Agency head, pursuant to section 7114(c) of the Statute, disapproved a provision of an agreement negotiated between the Charging Party and Respondent's Eastern Region. This provision had provided: Article III Section C paragraph 3: If at any time Management holds a discussion with an employee and the employee reasonably believes the matter may lead to disciplinary action, he/she has the right to speak or remain silent and to refuse to give a written statement except in matters connected with investigations and inquiries into the integrity or effectiveness of the Merit System covered by Civil Service Rule 5.4. The Authority finds that the provision set forth in Article III, Section C paragraph 3 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) and American Federation of Government Employees, Local 1812, AFL-CIO and United States Information Agency, 16 FLRA No. 48 (1984). In these cases the Authority, in agreement with a 1982 decision of the 9th Circuit Court of Appeals, /1/ found that a proposed contract provision 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 with regard to its substantive rights under section 7106(a)(2)(A) and (B) of the Statute to take disciplinary action against employees and to direct employees and assign work by having employees account for their conduct and work performance. Based on the above cases and the rationale contained therein, the Authority concludes that the provision involved in this case is outside the duty to bargain. It follows that the Respondent's refusal to approve the specified provision of the collective bargaining agreement did not constitute a failure or refusal to negotiate in good faith, in violation of section 7116(a)(1) and (5) of the Statute. /2/ ORDER IT IS ORDERED that the complaint in Case No. 2-CA-20154 be, and it hereby is, dismissed. Issued, Washington, D.C., March 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See Navy Public Works Center, Pearl Harbor, Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d 97 (9th Cir. 1982), denying enforcement of International Brotherhood of Electrical Workers, AFL-CIO, Local 1186 and Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217 (1980). /2/ In so ruling, the Authority notes that the disputed provision was similar to proposals held negotiable by the Authority prior to Navy Public Works, supra. While an agency acts at its peril when it refuses to negotiate under those circumstances, the Authority will not find an unfair labor practice where subsequently established law supports the agency position.