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17:0318(45)NG
The decision of the Authority follows:
17 FLRA No. 45
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 615
Union
and
NATIONAL PARK SERVICE,
SEQUOIA AND KINGS CANYON
NATIONAL PARKS, U.S. DEPARTMENT
OF INTERIOR
Agency
Case No. O-NG-761
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 raises issues
concerning the negotiability of two provisions of a negotiated agreement
which were disapproved by the Agency head pursuant to section 7114(c) of
the Statute. Upon careful consideration of the entire record, including
the parties' contentions, the Authority makes the following
determinations.
Provision 1
1. Article XII, Section 8:
A. In the interest of effective employee utilization, details
to positions or work assignments requiring higher or different
skills will be based upon bonafide needs and will be consonant
with the spirit and intent of this Article, applicable regulations
and the merit system. Details may be used to meet emergency
situations, or situations occasioned by abnormal workload, changes
in mission or organization, or absences of personnel.
. . . .
C. The detail into a higher level or different line of work
procedure shall not be utilized to afford certain employees an
undue opportunity to gain qualifying experience or to prevent
others from gaining such experience.
Subsection A of Provision 1 expressly limits management's ability to
assign specified types of work to bargaining unit employees to certain
prescribed circumstances. That is, employees may only be assigned work
requiring higher level or different skills in the listed situations. In
this regard, subsection A is to the same effect as the proposal,
limiting the assignment of "non-nursing functions" to nurses only to
"urgent or needful situations," which was before the Authority in New
York State Nurses Association and Veterans Administration Medical
Center, Bronx, New York, 11 FLRA 578 (1983). In that case the Authority
found the proposal to be inconsistent with the management right,
pursuant to section 7106(a)(2)(B) of the Statute, "to assign work,"
Hence, based on Veterans Administration Medical Center, Bronx, and the
reasons and case cited therein, subsection A of Provision 1 is outside
the duty to bargain.
As to the Union's contention that subsection A of Provision 1 is
merely intended to require management's compliance with provisions of
the Federal Personnel Manual (FPM) governing details, the Authority
notes that subsection A does not reflect the limitations imposed by
subchapter 8 of FPM chapter 300 upon management's use of details. In
this regard, subsection A requires that details be limited to "emergency
situations" and several other described circumstances. The FPM,
however, in addition to "emergency details," /1/ provides for the use of
details in other circumstances. Specifically, details may be used
pending official assignment, pending description and classification of a
new position, pending security clearance, and for training purposes,
especially where the training is part of an established plan. /2/
Consequently, subsection A of Provision 1 imposes stricter limitations
on management's ability to detail employees than those prescribed by the
FPM.
Contrary to the Agency's view, subsection C of Provision 1 is not
inconsistent with its right "to assign." /3/ Rather, the Union asserts
with regard to this disputed subsection:
The Union acknowledges that management has the right to select
employees for details based on "the unique skills and personal
attributes appropriate for such a detail." We seek only to prevent
undue advantage for some employees. /4/ (Footnote added.)
Further, the Union contends that subsection C is intended to prevent the
prohibited personnel practices enumerated in 5 U.S.C. 2302(b)(6). /5/
Thus, in view of the Union's explanation of subsection C, which is
consistent with its plain language, the Authority concludes that this
subsection does not restrain management's ability to detail. Rather,
the subsection is negotiable because it establishes a general,
nonquantitative requirement by which management's exercise of its right
to assign work could subsequently be evaluated in a grievance proceeding
brought by an employee who believes he or she has been adversely
affected by the exercise of that right. In American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and U.S. Department of Justice, U.S. Marshals Service, 8
FLRA 268 (1982), Union Proposal 5, prohibiting assigning employees as a
reward or penalty or effecting such assignments in an arbitrary or
capricious manner, was found by the Authority to constitute a general,
nonquantitative requirement and was determined to be negotiable. In
like manner, subsection C herein constitutes a procedure, within the
meaning of section 7106(b)(2) of the Statute, to be followed by
management in exercising its right to assign employees. /6/
Provision 2
Investigation of the incident for which a disciplinary action
may be taken, if at all, will normally be initiated within sixty
(60) days after the incident in question, or within sixty (60)
days after the Employer becomes aware of the incident.
With regard to Provision 2, the Union explains " . . . the proposal
clearly states that if management intends to investigate an incident for
which disciplinary action may be taken, such investigation must normally
be initiated within sixty (60) days after the alleged incident." /7/
Further, the Union asserts that the Provision "includes the caveat
'normally' to allow management the authority to exceed the sixty (60)
days limit in extraordinary cases when it is necessary to do so." /8/
Thus, Provision 2 establishes a contractual "statute of limitations"
upon the Agency's ability to investigate incidents which may result in
the disciplining of employees, i.e., except in "extraordinary"
circumstances, since an investigation, if it is to be undertaken at all,
must be initiated within the prescribed period. While there is no legal
or regulatory requirement that an investigation be the condition
precedent to the imposition of discipline, the standard of proof
management must meet, i.e., a "preponderance of the evidence," /9/ to
prevail upon appellate review of an adverse action, makes a thorough
investigation the necessary precursor to disciplinary action in most
instances. Moreover, FPM chapter 752 subchapter 3-3.1(2) contemplates
that documentation upon which an agency bases its decision to impose
discipline may include, inter alia, statements of witnesses, affidavits,
and investigative reports or extracts from such reports. Thus, it is
clear that in many situations investigations are the essential first
step to disciplinary action and preventing the initiation of
investigations, as would Provision 2 upon expiration of the prescribed
period of time, effectively precludes the imposition of discipline.
/10/ Consequently, Provision 2 is outside the duty to bargain in that it
would, in certain circumstances, prevent the Agency from acting at all
with respect to its right to take disciplinary action against employees
pursuant to section 7106(a)(2)(A) of the Statute. See National Treasury
Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Union
Proposal I).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review, as it relates
to subsection A of Provision 1 and Provision 2, be, and it hereby is,
dismissed. IT IS FURTHER ORDERED that the Agency shall rescind the
disapproval of subsection C of Provision 1 which was bargained on and
agreed to by the parties. Issued, Washington, D.C., March 26, 1985
Henry B. Frazier, Acting Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ FPM chapter 300.8-3.a provides:
(1) Emergency details. To meet emergencies occasioned by
abnormal workload, special projects or studies, change in mission
or organization, or unanticipated absences.
Subsection A, therefore, would effectively limit details only to most,
but not all, of the situations defined as emergencies by the governing
FPM.
/2/ FPM chapter 300.8-3a(2).
/3/ Presumably, the Agency's use of this term is intended to convey
that subsection C of Provision 1 is inconsistent with its rights,
pursuant to section 7106(a)(2)(A) and (B) of the Statute to assign
employees and to assign work. However, the assertion of either or both
of those management rights does not alter the Authority's determination
with respect to subsection C.
/4/ Union Reply Brief at 3.
/5/ Under 5 U.S.C. 2302(b)(6), it is a prohibited personnel practice
to:
grant any preference or advantage not authorized by law, rule,
or regulation to any employee or applicant for employment . . .
for the purpose of improving or injuring the prospects of any
particular person for employment(.)
/6/ In finding subsection C of Provision 1 within the duty to
bargain, the Authority makes no judgment as to its merits.
/7/ Union Reply Brief at 4.
/8/ Petition for Review at 2.
/9/ 5 U.S.C. 7701(c)( 1)(B).
/10/ It is pertinent to note that under law or regulation there is no
time limit imposed on the initiation of investigations leading to the
imposition of discipline or upon the initiation of disciplinary action
itself.