NTEU Chapter 21 and Bureau of Engraving and Printing (Authority decision, June 12, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU proposed restrictions on searches of employee clothing and bodies and signs about employee rights at package inspection points. The Authority found the proposals conflicted with the bureau's internal security authority in the circumstances presented. It dismissed the negotiability petition; a member wrote separately about the rights notice proposal.

Decision snapshot

• Authority: Internal security right under 5 U.S.C. § 7106(a)(1).
• Outcome: Both search-related proposals were held nonnegotiable, upholding the agency's position.
• Key point: Security searches and related notices could not be constrained by these proposals.

Full text (FLRA public release)

[ v18 p405 ]

18:0405(54)NG

The decision of the Authority follows:

18 FLRA No. 54

NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 21
Union

and

DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING AND PRINTING
Agency

Case No. 0-NG-558

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 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 bargain.

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 Chairman FEDERAL LABOR RELATIONS AUTHORITY

MEMBER McGINNIS, CONCURRING:

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

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/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.