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45 FLRA No. 100

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ANTILLES CONSOLIDATED EDUCATION ASSOCIATION

(Union)

and

DEPARTMENT OF DEFENSE

OFFICE OF DEPENDENTS SCHOOLS

ANTILLES CONSOLIDATED SCHOOL SYSTEM

FORT BUCHANAN, PUERTO RICO

(Agency)

0-NG-2037

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

August 31, 1992

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal, which requires that disciplinary actions be initiated within a specified period of time. For the following reasons, we find that the proposal is nonnegotiable.

II. Proposal

The initiation of the disciplinary action shall be taken no later than thirty (30) school days after the supervisor's knowledge of the alleged infraction.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal directly and excessively interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. According to the Agency, the proposal "would completely bar discipline if the 30 day period were exceeded." Statement of Position at 3. In support, the Agency cites a number of Authority decisions including American Federation of Government Employees, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512 (1986) (Naval Weapons Station, Concord) and 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, 320-21 (1985) (Sequoia and Kings Canyon National Parks), aff'd sub nom. National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986).

B. Union

The Union contends that unit employees, who are employed pursuant to 20 U.S.C. § 241,⁽¹⁾ are entitled by this law "to incidents of employment which are enjoyed by teachers in the public schools of Washington, D.C." Reply Brief at 2. In this connection, the Union claims that "[t]eachers in the public schools of the District of Columbia . . . expressly enjoy the incident of employment described by the proposal in question[.]" Id. ⁽²⁾ Therefore, according to the Union, its proposal "is a reiteration of employee entitlements derived from the . . . incidents of employment extant for teachers in [the public schools of the District of Columbia]" and is "appropriate for inclusion in the negotiated agreement between the parties." Id. at 5. Finally, the Union argues that the Authority decisions relied on by the Agency "have no validity as they do not take into account the super[s]eding provisions of 20 U.S.C. [§] 241." Id.

IV. Analysis and Conclusions

Proposals establishing a time limit on management's ability to initiate disciplinary or adverse actions against employees have been held to directly interfere with management's right under section 7106(a)(2)(A) to discipline employees because such proposals establish a contractual "statute of limitations" which prevents management from disciplining employees after the time limit has expired. See, for example, American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 201 (1991). See also Sequoia and Kings Canyon National Parks.

In this case, the disputed proposal requires the Agency to take disciplinary action no later than 30 school days after a supervisor becomes aware of an alleged infraction by an employee. We conclude that the time constraint contained in the proposal establishes a contractual "statute of limitations" and, thereby, directly interferes with the Agency's right under section 7106(a)(2)(A) to discipline employees.

We note that the Union did not specifically contend that its proposal was intended as an appropriate arrangement. However, we also note that in Naval Weapons Station, Concord, the Authority concluded that a substantively similar proposal excessively interfered with management's right to discipline employees. In the absence of any basis in the record to establish that the benefit afforded employees by the proposal would outweigh the burden on management's right to discipline employees, we reach the same conclusion here: the proposal excessively interferes with management's right to discipline employees and is nonnegotiable.

In concluding that the proposal is nonnegotiable because it excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, we reject the Union's assertion that, notwithstanding such interference, the disputed proposal may be included in the parties' collective bargaining agreement pursuant to 20 U.S.C. § 241. We note, in this regard, that it is not clear that from the plain wording of section 241 or its legislative history that Congress intended the provision to encompass the negotiation of employment benefits notwithstanding conflicting provisions of the Statute. However, even assuming that the section encompasses such negotiations, the Union has not established that its proposal concerns such employment benefits. In particular, the Union has not established that personnel in the District of Columbia currently enjoy an employment benefit similar to that specified in the disputed proposal; the Union's sole support of its argument is a copy of a provision in an expired collective bargaining agreement. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982).

V. Order

The Union's petition for review is dismissed.

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

1.  20 U.S.C. § 241 provides in pertinent part:

In the case of children who reside on Federal property--

....

(2) if it is the judgment of the Secretary [of Education], . . . that no local educational agency is able to provide suitable free public education for such children,

the Secretary [of Education] shall make such arrangements . . . as may be necessary to provide free public education for such children. . . . To the maximum extent practicable, the local educational agency, . . . with which any arrangement is made . . . shall take such action as may be necessary to ensure that the education . . . provided under this section outside the continental United States, Alaska, and Hawaii, [is] comparable to free public education provided for children in the District of Columbia. . . . Personnel provided for under this subsection outside of the continental United States, Alaska, and Hawaii, shall receive such compensation, tenure, leave, hours of work, and other incidents of employment on the same basis as provided for similar positions in the public schools of the District of Columbia. . . .

2. In support, the Union attached a copy of Article VII. Disciplinary Action, of the March 15, 1988 to September 30, 1990, collective bargaining agreement between the Board of Education of the District of Columbia and the Washington Teachers' Union, Local 6, American Federation of Teachers, AFL-CIO.

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