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51 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

FEDERAL PRISON COUNCIL 33

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

(Agency)

0-NG-2218

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 10, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on an appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the Agency's duty to bargain over five proposals, submitted during negotiations over revision of an Agency program statement (hereinafter "Guidance"). The Guidance provides instructions for investigators of the Agency's Office of Internal Affairs (OIA) to follow when investigating employee misconduct. The proposals are additions to, and/or deletions from, the wording of certain portions of the Agency's Guidance.

For the reasons which follow, we find that Proposal 1, requiring that investigators read the content of a particular form to certain employees being interviewed, is outside the duty to bargain because it affects the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We find that the remaining four proposals are within the duty to bargain. Proposals 2 and 3 allow an employee to discuss with his or her "representative" the subject matter of the employee's investigatory interview. Proposal 4 deletes the instruction to investigators that affidavits include statements concerning employees' willingness to take polygraph tests. Proposal 5 provides, consistent with Agency policy, that polygraph examinations will be administered only with an employee's consent.

II. Proposal 1

a. Interviewing Subjects. The field investigator must exercise extreme care to ensure that all subjects implicated in wrongdoing are afforded the opportunity to read and sign a Warning and Assurance to Employee Required to Provide Information, Form B (BP-5194), . . . prior to being questioned. OIA shall encourage staff to read Form B aloud to each subject prior to questioning. Victims, witnesses, and other individuals who are sources of collateral information should not be required to review and sign Form B, as it may inhibit their willingness to assist in the investigation. If, during the course of the investigation, these sources provide information implicating themselves in wrongdoing, the investigator shall stop the interview and execute a Form B.

[The Union proposes deletion of the text through which a line is drawn. Emphasis in original.]

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 1 affects the exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that, as "an investigative technique," it advises investigators not to require interviewees who are not suspected of misconduct to sign Form B. Statement of Position at 4. The Agency states that, among other matters, Form B includes its version of the warning described in Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973) (Kalkines). In particular, the Agency asserts that it contains the type of notice that agency investigators are directed to use when they question those employees who "would have foreseeable criminal prosecution exposure, and who would, therefore, have a Fifth Amendment right to refuse to answer potentially incriminating questions." Statement of Position at 3-4. The Agency asserts that, "in those situations where the employee being questioned has no reason to believe that she will be disciplined if she answers the investigator's questions truthfully, requiring her to sign Form B not only serves no useful constitutional or investigative purpose, but is counterproductive." Id. at 5. According to the Agency, that requirement would tend to lead all interviewees "to believe that they, themselves, might be suspected of engaging not only in misconduct, but criminal misconduct." Id. The Agency argues that a consequence of requiring that Form B be read to all interviewees "will be to discourage candid responses to investigators' questions and create an adversarial relationship which will inhibit their willingness to cooperate fully with the investigator." Id.

2. Union

The Union contends that the Agency's practice to forgo reading Form B to certain interviewees is not an investigative technique. The Union asserts that the form serves "only to advise the employees of their rights and obligations, it does not lead an employee to believe anything other than what is stated." Reply Brief at 2 (emphasis in original). The Union maintains that, "[a]s the Agency has shown an expectation," reflected in the second sentence proposed to be deleted by the Union, "that any investigation could lead to disciplinary action, this issue is a proper subject for negotiation." Id. at 5 (emphasis in original). The Union asserts that the proposal, i.e., the paragraph as modified to delete the final two sentences, is intended to provide "notice to all employees being questioned of their right to representation" by requiring that investigators ask them to read and sign Form B. Id. at 1 (emphasis in original).

B. Analysis and Conclusions

The Union's interpretation that the proposal applies, and thereby provides notice, to all employees being interviewed is not inconsistent with its plain wording and, as such, is adopted for the purposes of this decision. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996) (Laurel Bay). However, as discussed below, the Union's interpretation that the proposal provides notice only of employees' rights to representation is not consistent with the proposal's terms and, therefore, is not adopted.⁽¹⁾ By requiring that all interviewees be given the opportunity to read and sign Form B, the notice received by interviewees under the proposal extends beyond employees' representational rights; it includes other matters addressed in the form.

In addition to advising interviewees of their statutory representational rights, Form B informs them that: (1) they are participating in an administrative inquiry concerning misconduct or improper performance of official duties; (2) they have a duty to answer fully and truthfully and may be subject to discipline for failure to do so; and (3) their answers will not be used against them in criminal proceedings, but knowingly and willfully providing false statements or information may result in criminal sanctions. Among other matters, Form B includes the Kalkines warning that agency investigators use when they question employees who may be subject to criminal prosecution and, therefore, have a Fifth Amendment right to refuse to answer potentially incriminating questions.

It is well-established that management's right to determine its internal security practices under section 7106(a)(1) includes the authority to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. E.g., National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992). The Authority has concluded that, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that "conflicts with" the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id. at 961. The right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. Id. at 960. In addition, techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1). E.g., National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 798 (1985) (GSA) (proposal barring sworn statements in certain circumstances held to directly interfere with management's right to determine internal security practices).

The Agency has determined that requiring employees who are victims, witnesses, or sources of collateral information to review and sign Form B at the beginning of the interview will discourage their candid responses to investigators' questions. Accordingly, the Agency has established, as an investigative technique, the requirement that investigators not ask those employees to review and sign Form B. The Agency's conclusion regarding the potential effect of reading and signing Form B on an interviewee's candor is not the only one that could be drawn. However, the conclusion is reasoned and supportable. Further, there is a clear and logical connection between techniques designed to promote candid and truthful answers during investigations of employee wrongdoing and the Agency's objective to safeguard its personnel, property, or operations. As such, the Agency has shown a reasonable link between its determination that investigators should not require all interviewees to read and sign Form B and that objective. Therefore, by requiring that all interviewees review and sign Form B, the proposal affects the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

The Union's assertion that its proposal requires only that interviewees be apprised of their preexisting rights and obligations, as embodied in Form B, is misplaced. There is no basis to conclude that an employee who is a victim, witness, or other source of collateral information has a right to the warning embodied in Form B at the start of every interview. In this regard, the warning contained in Form B is required by the Kalkines decision only when the Agency seeks to elicit information from an interviewee who is also directly implicated in, or suspected of, criminal wrongdoing. See Kalkines, 473 F.2d at 1393. There is no contention or other reason to conclude that victims, witnesses, and other sources of collateral information necessarily will be implicated in criminal wrongdoing. Thus, there is no existing requirement in law or regulation that the Agency inform all such employees of rights under Kalkines.⁽²⁾

In these circumstances, the proposal affects the exercise of the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. As the Union does not assert that Proposal 1 is within the duty to bargain on any other grounds, there is no basis for finding it within the duty to bargain, and we do not need to address the Agency's additional arguments that the proposal affects the exercise of its right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

III. Proposals 2 and 3

Proposal 2

Victims, witnesses, collateral sources and subjects shall be advised at an interview's conclusion that the subject matter of the interview and any information exchanged with the investigator is confidential and may not . . . be discussed with others individuals other than the employee's representative.

Proposal 3

c. Staff, Inmate, and Evidence Availability. It is imperative that field personnel cooperate fully with all investigative personnel. Staff, inmates, and all documents related to the investigation should be made available to the investigator. Employees who are questioned during the course of an investigation shall cooperate fully, pursuant to the provisions of the Employee Code of Conduct. They may not discuss the investigation's subject matter with other individuals, other than the employee's representative, as to do so may impede the investigation.

[The Union proposes deletion of the words through which a line is drawn and insertion of the shaded wording.]

A. Positions of the Parties

1. Agency

The Agency asserts that Proposals 2 and 3 apply to representatives other than those afforded employees by section 7114(a)(2)(B) of the Statute. Therefore, even though the Agency does not object to the proposals insofar as they apply to Union representatives present under that section of the Statute,⁽³⁾ in its view, the proposals would allow dissemination of the substance of an inquiry "to the Union itself[.]"⁽⁴⁾ Statement of Position at 9 (emphasis deleted). Consequently, the Agency argues that the proposals would affect its right to determine its internal security practices by allowing disclosure of information concerning ongoing investigations. In particular, the Agency contends that the proposals would:

preclude management from directing those employee victims, witnesses, and other employee sources who are questioned, as well [as] those . . . who are entitled to and call for representation under [the Statute] (and the representatives who serve them), not to reveal either the fact that they were questioned or the subject of the questions to anyone, including their union.

Id. at 9-10 (footnote omitted). As such, the Agency argues, the proposals affect the exercise of its right under section 7106(a)(1) to determine its internal security practices. The Agency also asserts that the proposals violate 5 U.S.C. §§ 552a(b)(2) and 552(b)(6).

2. Union

The Union states that, in Proposals 2 and 3, it "addressed the employee's right to a representative, as provided by [the] [S]tatute." Reply Brief at 9. The Union further explains that, under the proposals, "the employee must request representation, and once that representative is present, the employee would be free to discuss the matter of the investigation, as it pertains to him/her, with the representative who was present during the course of the interview." Id. at 10. The Union asserts that its "only intention in these proposals was to insure that employees who were represented during the course of an investigation would be advised that it was permissible to discuss their particular circumstances with the representative who was present during the investigation." Id. at 8 (emphasis in original).

B. Analysis and Conclusions

The Agency Guidance prevents interviewees from discussing the subject matter of investigations with "other individuals[.]" The Union's proposed modifications would permit an interviewee to discuss such subject matter with his or her "representative." The proposals are silent as to the meaning of the term "employee's representative." When a proposal is silent as to a particular matter, a union statement clarifying the matter is considered consistent with the proposal, so long as the statement does not conflict with the proposal's plain wording. E.g., Laurel Bay, 51 FLRA at 737. The Union's statement that the term "employee's representative" means a Union representative present at an interview under section 7114(a)(2)(B) does not conflict with the proposals' plain wording. As such, in accordance with Laurel Bay, the Union's interpretation is adopted for the purpose of determining whether the proposals are within the duty to bargain.

Construing Proposals 2 and 3 consistent with the Union's interpretation leaves no remaining dispute as to the Agency's duty to bargain over the proposals. The Agency explains that its Guidance is not intended to limit employees in discussing what transpired at an interview with their Union representatives. Moreover, the proposals' plain wording does not prevent the Agency from requiring anyone, including an employee's representative, to maintain confidentiality concerning an investigation's subject matter.

The Agency's arguments do not dispute the negotiability of Proposals 2 and 3 as interpreted by the Union, and no other basis for finding them outside the duty to bargain is apparent. In this regard, the Agency's additional assertions that the proposals violate 5 U.S.C. §§ 552a(b)(2) and 552(b)(6) are also based on its interpretation of "representative," which differs from what we have construed the proposal to mean. Therefore, these additional assertions need not be addressed further. Accordingly, we conclude that, as construed herein, the proposals do not affect the exercise of management's right to determine its internal security practices under section 7106(a)(1) and are within the duty to bargain under the Statute.

IV. Proposal 4

d. Affidavits. During an investigation, written statements, in affidavit form, ordinarily shall be obtained. The affidavit should address the subject's willingness to take a polygraph examination. The affiant should be administered the following oath or affirmation: "I declare, under pain and penalty of perjury, that the foregoing statement consisting of ___ page(s) is true and accurate to the best of my knowledge and belief." 5 U.S.C. 303 authorizes agency investigators to administer oaths, including OIA and other specifically designated BOP employees.

[The Union proposes deletion of the sentence through which a line is drawn.]

A. Positions of the Parties

1. Agency

The Agency objects to Proposal 4 on two bases. First, the Agency argues that the proposal is outside the duty to bargain because the Authority "has routinely found that proposals which would prohibit employers from using polygraph tests directly interfere with management's right to determine [its] internal security practices . . . ." Statement of Position at 17. Second, the Agency asserts that the proposal affects its right to determine its internal security practices because it could not include employees' statements concerning their willingness to take polygraph tests in affidavits.

2. Union

Responding to the Agency's first objection, the Union states that it does not "have any objection to an employee voluntarily taking a polygraph examination or signing the 'Polygraph Authorization' form." Reply Brief at 11. As to the Agency's other objection, the Union states that Proposal 4 reflects its concern that negative inferences would be drawn from an affidavit declaring an employee's unwillingness to undergo polygraph testing. The Union states that its intention "is not to stop" investigators from asking whether employees are willing to take polygraph examinations, "but to insure that the question and the response not be included in the affidavit, thereby insuring that the employee is not needlessly prejudiced." Id. According to the Union, its proposal mandates that affidavits omit employees' positions on undergoing polygraph testing, but does not prohibit inquiries into employees' willingness to undergo such testing.

B. Analysis and Conclusions

The disputed sentence of the Agency's Guidance advises investigators to include in affidavits the interviewees' position on undergoing polygraph examinations. The Union's modification would delete that aspect of the Agency's Guidance and thereby would leave the Guidance silent concerning the inclusion or omission of such information. As the Guidance would be silent on this point, we adopt the Union's interpretation that, under the proposal, affidavits could not include such information and we will apply that interpretation in determining whether the proposal is within the duty to bargain. Laurel Bay, 51 FLRA at 737.

With regard to the Agency's first objection, the plain wording of Proposal 4 concerns only the content of affidavits and is silent concerning the administration of polygraph tests. The Authority has adopted the Union's explanations that the proposal would not preclude the Agency from asking employees to take polygraph examinations or signing forms authorizing such examinations. Accordingly, the Agency's position that the proposal bars polygraph examinations and written employee consent to undergo polygraph testing is without foundation.

In addition, the Agency's reliance on American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 899 (1991) (National Park Service), which concerned a proposal preventing the agency from requiring employees to sign forms indicating their consent to drug testing, is misplaced. In National Park Service, management decided to subject certain employees to mandatory drug testing as a condition of employment and to require written consent to the testing. In this case, the Agency does not assert that the covered employees are subject to mandatory polygraph testing as a condition of employment. In fact, the record indicates that employees are asked to undergo polygraph testing only when management believes they possess information relevant to misconduct investigations. Moreover, the Guidance elsewhere points out that employees cannot "be compelled to take a polygraph examination." See Proposal 5, discussed below. Consequently, the circumstances surrounding Proposal 8 in National Park Service, and the cases relied upon there, including American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45 (1988), make the negotiability of the proposals involved in those cases distinguishable from the proposal in this case.

With regard to the Agency's second objection, the Authority has previously determined in American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 361-62 (1982), that an agency's decision to require sworn statements to ensure obtaining truthful and reliable information in conflict of interest situations is an internal security practice. Here, the Agency has neither asserted that, nor explained how, its practice of having employees state under oath their position on undergoing polygraph testing relates to internal security. Moreover, the Agency has not explained how or whether a sworn statement would be more reliable or truthful than the same statement appearing on a "Polygraph Authorization" form, which the Union expressly states it has no objection to employees signing. As the Agency has failed to show the required nexus between its practice of requiring that employees' positions on taking polygraph examinations be sworn and its internal security practices, Proposal 4 does not affect the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute and is within the duty to bargain.

V. Proposal 5

a. Circumstances. Occasionally, it may be appropriate to employ a polygraph examination as an investigative tool, at the election of the employee. Polygraph examinations may be employed during an investigation of employee misconduct when the allegation is serious and/or sensitive, and all other efforts to resolve the matter have failed. Polygraph examinations also may be employed to test the credibility any [sic] person(s) making allegations when no other evidence is available to support the person's claims. Neither staff nor inmates can be compelled to take a polygraph examination. The FBI Polygraph Section's use is encouraged. Another source for polygraph examinations is OIG. All requests for polygraph examinations should be coordinated through OIA.

[The Union proposes addition of the shaded wording.]

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 5 interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute by preventing it from asking employees to submit to polygraph testing.

2. Union

The Union states that it does not "have any objection to an employee voluntarily taking a polygraph examination or signing the 'Polygraph Authorization' form." Reply Brief at 11. In addition, the Union asserts that Proposal 5 "is intended as further notification, to investigators and employees alike" of the statement, contained in the unmodified portion of Proposal 5, that polygraph examinations are not compulsory.

B. Analysis and Conclusions

The Agency's Guidance describes the circumstances when "it may be appropriate to employ a polygraph examination" and notes that such examinations are not compulsory. As modified by the Union, the Agency's Guidance states that the use of polygraph testing is at an employee's election. The Union explains that its modification serves as further notification to investigators and employees that polygraph testing is voluntary and that it has no objection to an employee voluntarily taking a polygraph examination or signing a form consenting to a polygraph test. We find that the Union's explanation of Proposal 5 is consistent with its plain wording. Therefore, the Union's explanation is adopted in determining whether the proposal is within the duty to bargain. E.g., Laurel Bay, 51 FLRA at 737.

Construing Proposal 5 consistent with the Union's interpretation leaves no remaining dispute over the proposal, which does nothing more than reaffirm to employees and investigators that polygraph examinations require the employee's consent. Nothing in the proposal prevents the Agency from asking interviewees whether they are willing to undergo polygraph testing. As the Agency has raised no other grounds on which to find that the proposal affects the exercise of its right to determine its internal security practices, and none is otherwise apparent, Proposal 5 is within the duty to bargain.⁽⁵⁾

In so concluding, we note that Proposal 5 does not seek to alter the Agency's policy that employees are not required to submit to polygraph examinations. Instead, on this point, the proposal does nothing more than advise investigators and interviewees of that policy. As such, the proposal is distinguishable both from the provision in American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1239-40 (1988), and the part of the proposal in GSA, 18 FLRA at 797-98, that was relied on in Sierra Army Depot. In particular, the provision and proposal in those cases would have changed agency policy to completely preclude the use of polygraph tests and were, as a result, held to be outside the duty to bargain.

VI. Order

The petition for review, as it pertains to Proposal 1, is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposals 2 through 5.⁽⁶⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. We note, in this regard, that the Agency specifically states that it does not assert that a proposal obligating it to notify interviewees only of their right to representation under the Statute would be outside the duty to bargain. Statement of Position at 3. Therefore, it appears that the Agency does not dispute the negotiability of the proposal that the Union's interpretation suggests it wishes to advance.

2. Even if the proposal incorporated existing law, it would be found to affect the Agency's right to determine its internal security practices. Unlike the management rights set forth in section 7106(a)(2) of the Statute, the right to determine internal security practices--like the other rights in section 7106(a)(1) of the Statute--is not expressly subject to "applicable law" constraints. American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1076 (1990) (Member Talkin dissenting as to other matters), decision on reconsideration, 39 FLRA 1241 (1991), rev'd as to other matters sub nom. United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992).

3. The Agency explains that:

the union officer who is called to represent a questioned employee who reasonably fear[s] discipline, and who, therefore has invoked his/her section 7114(a)(2)(B) right to union representation, necessarily [learns] what the employee learns during the course of the examination. Further, we will assume that such employees may discuss the examination with the union officer who represented them during the examination after the examination is ended. [The Agency's Guidance] is obviously not intended to limit such communications; nor does it preclude in any other way such representatives from carrying out their legitimate functions.

Statement of Position at 10 n.3.

4. The reasoning supporting this conclusion appears to be based on the Agency's construction of the term "representative." In this regard, the Agency claims that the Union seeks to amend the Guidance so that any interviewee "will be free to convey to their representative--i.e., not only Weingarten representatives but the representatives which the Union is assuming every employee who is questioned has a right to have present--and, through those representatives to the Union itself," information gained in the course of the interview. Statement of Position at 8-9 (emphasis in original). Consequently, in the Agency's view, such information could be disseminated before the Agency deems it appropriate to do so.

5. We note that the expenditure of resources to adjudicate the disputed negotiability of this and the preceding proposals could have been avoided had the parties discussed their interests and differences, rather than litigated the question of whether the proposals, as worded, are within the duty to bargain.

6. In finding Proposals 2 through 5 to be negotiable, we make no judgment as to their merits.

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