Office of Personnel Management, Washington, D.C. (Authority decision, March 21, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. 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

OPM's agency head disapproved a negotiated clause allowing employees to remain silent during management discussions they reasonably believed might lead to discipline, with a stated exception. AFGE Local 2849 alleged that the disapproval was an unlawful refusal to bargain. Applying intervening case law, the Authority held that the clause would prevent management from requiring employees to account for their conduct and work, interfering with statutory management rights. It dismissed the complaint, noting that the later law supported OPM's position even though earlier Authority decisions had differed.

Decision snapshot

• Authority: Management rights over discipline and work under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Unfair labor practice complaint dismissed.
• Key point: Under the law applied here, OPM could disapprove a clause broadly allowing employee silence in possible disciplinary discussions.

Full text (FLRA public release)

[ v17 p302 ]

17:0302(41)CA

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.