17:0302(41)CA - OPM, Washington, DC and AFGE Local 2849 -- 1985 FLRAdec CA

 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.