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U.S. Federal Labor Relations Authority

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18:0405(54)NG - NTEU Chapter 21 and Treasury, Bureau of Engraving and Printing -- 1985 FLRAdec NG

[ v18 p405 ]
The decision of the Authority follows:

 18 FLRA No. 54
                                            Case No. 0-NG-558
    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 Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          No searches of personal clothing or of the body of employees
       shall be conducted unless such searches are authorized by warrant
       and/or incident to an arrest.
    The record in this case indicates that the Bureau of Engraving and
 Printing produces currency paper, postage stamps, Treasury bills and
 bonds and other secure items.  A high level of security in the workplace
 is needed to ensure that these items and the tools used to produce them
 are not removed from the premises.  Since many of these items are small
 and could be concealed in clothing, the Agency had determined that an
 essential component of its plan to prevent the theft or misuse of its
 property and products is to conduct searches of the body and clothing of
 employees when necessary.  Union Proposal 1, however, by expressly
 limiting the Agency's right to conduct such searches to the
 circumstances set out in the proposal would directly interfere with the
 security plan adopted by the Agency.  Thus, it conflicts with the
 Agency's right to determine its internal security practices pursuant to
 section 7106(a)(1) of the Statute and is outside the duty to bargain.
 See Federal Employees Metal Trades Council and Department of the Navy,
 Mare Island Naval Shipyard, Vallejo, California, 12 FLRA 361 (1983).
                             Union Proposal 2
          At all entrances and exits where package inspections are to
       occur, signs are to be prominently displayed which state the
       employee's rights pursuant to 5 USC 7114(a)(2)(B), the employee's
       right to silence and employee's Constitutional rights under the
       5th Amendment.  (Only the underlined portion is in dispute.)
    The disputed portion of Union Proposal 2 requires the Agency to post
 signs informing employees of their constitutional rights and of a
 contractual right to remain silent.  The Union indicates that this
 contractual right would prohibit Agency officials from asking employees
 any questions during a package inspection.  /1/ Thus, Union Proposal 2
 would have the effect of precluding management from disciplining
 employees for refusing to answer questions relating to package
 inspections when entering or departing the Agency's premises.
    The Authority finds that the issue raised by Union Proposal 2 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 might 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.  /2/ 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 held
 further in Navy Public Works Center, Norfolk, Virginia, 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 as a contractual right would also interfere with these
 management rights.
    Since Union Proposal 2 herein would have the same effect as the
 provision referred to in Navy Public Works Center, Norfolk, Virginia,
 the proposal is, for the reasons stated therein, outside the duty to
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., June 12, 1985
                                       Henry B. Frazier III, Acting
                                       FEDERAL LABOR RELATIONS AUTHORITY
    I agree with Acting Chairman Frazier that for the reasons stated
 above Union Proposal 2 is nonnegotiable.  However, I am writing
 separately to stress my position that the right against
 self-incrimination only protects against any disclosures that a federal
 employee reasonably believes could be used against him in a criminal
 prosecution or could lead to other evidence that might be so used.
 Otherwise, the privilege cannot be invoked.  Devine v. Goodstein, 680
 F.2d 243, 246 (D.C. Cir. 1982).  See also Weston v. U.S. Department of
 Housing and Urban Development, 724 F.2d 943, 948 (Fed. Cir. 1983).
 Furthermore, a security guard can informally talk to a federal employee
 at an entrance or exit from a federal facility.  A guard or agency
 management official has no duty to advise or notify a federal employee
 of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), if the
 employee is not in "custody," in the criminal law context,
 notwithstanding the fact that the employee is a suspect, target, or a
 prime suspect of an investigation.  Beckwith v. United States, 425 U.S.
 341, 344-348 (1976), and United States v. Jaskiewicz, 433 F.2d 414 (3rd
 Cir. 1970).  Issued, Washington, D.C.,
                                       William J. McGinnis, Jr., Member
 --------------- FOOTNOTES$ ---------------
    /1/ Union Completion of Appeal dated October 9, 1981, at 2.
    /2/ 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, was
 inconsistent with the rights to discipline employees, to direct
 employees and to assign work.