24:0512(57)NG - AFGE Local 1931 and Navy, Naval Weapons Station, Concord, CA -- 1986 FLRAdec NG
[ v24 p512 ]
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.