[ v24 p512 ]
24:0512(57)NG
The decision of the Authority follows:
24 FLRA No. 57
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 1931
Union
and
DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION
CONCORD, CALIFORNIA
Case No. 0-NG-1246
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review on this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of the followiny Union Proposal. We find
that this proposal is nonnegotiable.
II. Union Proposal
Based upon the concept of prompt investigation of the alleged
offense, supervisors will initiate the disciplinary action within
fifteen calendar days of the alleged offense, or the date he/she becomes
aware of the alleged offense. A Disciplinary Investigation Report will
be completed prior to formally proposing disciplinary action.
Exceptions to the 15-day limit may be made under circumstances that are
beyond the Employer's control.
A. Positions of the Parties
The Agency contends that on December 3, 1985, during proceedings
before the Federal Service Impasses Panel (FSIP), it notified the FSIP
and served the Union with a determination that the above proposal was
nonnegotiable. The Agency argues that since the Union did not file an
appeal of the determination with the Authority until March 11, 1986, the
appeal is untimely and should be dismissed. The Agency also argues that
this proposal precludes the imposition of discipline if the 15-day time
frame set out in the proposal is exceeded. Thus, the Agency claims that
the proposal violates section 7106(a)(2)(A) of the Statute because it
prevents the Agency from acting at all with respect to its right to take
disciplinary action.
The union claims that it computed the time limits for filing its
appeal from January 3, 1986, the date it requested a written allegation
from the Agency, not from December 3, 1985, the date the Agency served
the Union with an unsolicited allegation during FSIP proceedings. The
Union also states that this proposal incorporates into the agreement the
well-established concept of timely discipline. This avoids delays which
may prejudice an employee's ability to defend himself. Further, the
Union asserts that the proposal does not infringe upon management's
rights because the clause "exceptions to the 15-day limit may be made
under circumstances that are beyond the employer's control" expressly
permits reasonable extensions of time. In the alternative, the Union
claims that the proposal is either a procedure under section 7106(b)(2)
or an appropriate arrangement under section 7106(b)(3).
B. Analysis and Conclusion
As to the procedural issue, it is well established that a union is
not required to file a petition for review in response to an allegation
of nonnegotiability made by an agency in the context of a FSIP
proceeding. Rather, the union may ignore such unsolicited allegation
and instead elect to request in writing a written allegation of
nonnegotiability from the Agency. See International Brotherhood of
Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982).
If the union elects to request an allegation from the agency, the union
must file its petition for review of such allegation within the time
limits established in section 2424.3 of the Authority's Rules and
Regulations. In this case, during FSIP proceedings, the Agency on
December 3, 1985, notified the Panel that certain proposals, including
the proposal in dispute, were nonnegotiable and served such allegation
to the Union. The Union, as it is permitted to do, ignored this
unsolicited December 3, 1985 allegation and instead on January 3, 1986,
requested a written allegation of nonnegotiability from the Agency. The
Agency did not respond to such request and the Union filed its appeal
with the Authority on March 11, 1986. It is also well established that
where an agency fails to respond to a request for a negotiability
allegation the union may file a petition for review with the Authority
without regard to the time limits set out in the Authority's Rules and
Regulations. American Federation of Government Employees, AFL-CIO,
Local 2494 and Strategic Weapons Facility Pacific, Bremerton,
Washington, 7 FLRA 590 (1982); National Treasury Employees Union and
NTEU Buffalo District Joint Council and Internal Revenue Service,
Buffalo District, 3 FLRA 337 (1980). Thus, since the Agency in this
case did not respond to the Union's January 3, 1986, written request for
a written allegation of nonnegotiability, the Union's appeal filed on
March 11, 1986, is timely.
We turn now to the proposal, which expressly prohibits the Agency
from taking any disciplinary action against employees for offenses which
occurred more than fifteen calendar days earlier or more than fifteen
days after the supervisor became aware of the offense, except when
circumstances are beyond the employer's control. In our opinion, this
proposal is to the same effect as a provision found nonnegotiable in
National Federation of Federal Employees, Local 615 and National Park
Service, Sequoia and Kings Canyon National Parks, U.S. Department of
Interior, 17 FLRA 318 (1985) (Provision 2), affirmed sub. nom. National
Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C.
Cir. 1986). The provision in Sequoia required that investigation of
incidents for which disciplinary action may be taken would normally be
initiated within 60 days of the incident or within 60 days after the
Agency became aware of the incident. The Authority determined that the
60-day time limit constituted a contractual "statute of limitation"
beyond which the Agency was precluded from investigating incidents for
which employees could be disciplined. Thus, the Authority concluded
that the provision would, in certain circumstances, prevent the Agency
from acting at all with respect to its right under section 7106(a)(2)(A)
to discipline employees. See also American Federation of Government
Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters,
XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA
752 (1985) (Proposal 3). The proposal in this case, likewise, would
establish a contractual limitation which would prevent the Agency from
disciplining employees in certain circumstances when the 15-day period
was exceeded. Thus, this proposal substantively interferes with
management right's and does not constitute a negotiable procedure within
the meaning of section 7106(b)(2) of the Statute. See American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
enforced as to other matters sub nom. Department of Defense v. FLRA, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945 (1982).
Likewise, the proposal is not an appropriate arrangement under
section 7106(b)(3). The proposal would completely bar discipline if the
15-day period was exceeded. Such total abrogation of management's right
to act in this regard excessively interferes with management's right to
discipline and, therefore, is not an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute. See American Federation
of Government Employees, Local 1799 and Department of the Army, Aberdeen
Proving Ground, Maryland, 22 FLRA No. 62, slip op. at 6 (1986).
For the reasons given here and in the cases cited in the analysis,
the Union's Proposal is outside the duty to bargain.
III. Order
The Union's petition is dismissed.
Issued, Washington, D.C., December 17, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
Federal Labor Relations Authority