25:1033(86)NG - Joint Council of Unions, GPO and Government Printing Office -- 1987 FLRAdec NG

 25 FLRA No. 86
 
 JOINT COUNCIL OF UNIONS, GPO
 Union
 
 and
 
 UNITED STATES GOVERNMENT 
 PRINTING OFFICE
 Agency
 
                                            Case No. 0-NG-1310
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The appeal concerns
 the negotiability of four proposals relating to corrective
 (disciplinary) action.  We find that Proposal 1 is within the duty to
 bargain and that Proposals 2, 3 and 4 are outside the duty to bargain.
 
                              II.  Proposal 1
 
          Article VIII, Section 1.  Corrective action means any action by
       management that could result in disciplinary action;  i.e., verbal
       warning to suspension, removals, reduction in pay, grade, or
       status against any employee.  (Only the underscored portion is in
       dispute.)
 
                       A.  Positions of the Parties
 
    The Union contends that this proposal simply defines the term
 "corrective action" to include actions which result in employees' loss
 of "status" -- that is, changes in employees' work assignments.  The
 Union argues that the proposal would not prevent management from
 changing an employee's work assignment or from taking any other actions
 affecting an employee's status, but would only include within the scope
 of the negotiated grievance procedure corrective actions involving
 "status." Union Petition for Review at 1.
 
    The Agency contends that the proposal directly interferes with
 management's right to assign work under section 7106(a)(2)(B).  The
 Agency argues that the ultimate effect of the proposal would be to allow
 an arbitrator to overturn management's work assignments, thus
 interfering with the right to assign work.
 
                        B.  Analysis and Conclusion
 
    We find Proposal 1 to be negotiable.  Based on the record in this
 case, the term "status" refers to changes in work assignments.  We agree
 that the only effect of the proposal is to include within the scope of
 the grievance procedure changes in work assignments which result from
 disciplinary action.
 
    The matters covered by the proposal are matters relating to the
 conditions of employment of unit employees and are subject to the
 negotiated grievance procedure unless otherwise excluded by the parties'
 agreement.  See sections 7103(a)(9) and 7121 of the Statute.  By
 including actions affecting employee status among the corrective actions
 which would be within the scope of the grievance procedure, the proposal
 simply specifies that which is already otherwise provided under the
 Statute.  The Agency's argument that the ultimate effect of the proposal
 would be to allow an arbitrator to overturn management's work
 assignments is without support.  The proposal is simply definitional;
 nothing in the proposal requires or suggests that it is to be enforced
 in a manner which would violate management's rights or otherwise be
 inconsistent with law.  Of course, should the parties agree to this
 proposal and include it in their agreement, management would retain the
 right to challenge the grievability and arbitrability of any grievance
 which sought to enforce that provision in a manner which is inconsistent
 with law.  Proposal 1, therefore, is consistent with law and within the
 duty to bargain.
 
                             III.  Proposal 2
 
          Article VIII, Section 11.  All corrective actions must be
       initiated within five days after the supervisor becomes aware of
       the alleged incident or upon the completion of an investigation
       and the next level of authority must make a decision to concur or
       disagree within ten days after the supervisor's decision to
       initiate corrective action.  Otherwise no corrective action can be
       initiated, based on that alleged incident.
 
                       A.  Positions of the Parties
 
    The Union contends that this proposal does not interfere with
 management's right to discipline employees, but only places limitations
 on how long management may take to decide on corrective actions,
 following the completion of any investigation.  The Agency argues that
 the proposal clearly precludes management from exercising its statutory
 right to discipline employees.
 
                        B.  Analysis and Conclusion
 
    This proposal expressly prohibits the Agency from taking corrective
 (disciplinary) action if the action is not initiated at the supervisory
 level within five days after the supervisor becomes aware of the alleged
 incident or within five days after completion of an investigation.
 Further, it prohibits corrective action at the next level of authority
 if the action is not taken within ten days of the supervisor's action.
 
    We find that this proposal has the same effect as the proposal we
 found nonnegotiable in American Federation of Government Employees,
 AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station,
 Concord, California, 24 FLRA No. 57 (1986).  The proposal in Naval
 Weapons Station required that supervisors initiate disciplinary action
 within fifteen calendar days of the alleged offense or the date the
 supervisor became aware of the offense.  The proposal allowed for
 exceptions to the 15-day limit under circumstances beyond the employer's
 control.  We determined that the 15-day time limit constituted a
 contractual limitation which would prevent the Agency from disciplining
 employees in certain circumstances when the 15-day period was exceeded.
 We concluded that the proposal interfered with management's rights and
 did not constitute a negotiable procedure within the meaning of section
 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the
 Statute.
 
    The proposal in this case likewise would establish a contractual
 limitation which would prevent the Agency from taking corrective action
 or disciplining employees in certain circumstances when the 5-day or
 10-day periods were exceeded.  Therefore, for the reasons in Naval
 Weapons Station, Proposal 2 is outside the duty to bargain.  See also
 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).
 
                              IV.  Proposal 3
 
          Article VIII.  Section 12.  No corrective action will be taken
       against any employee for alleged violation of any GPO Instruction
       or Rule or changes thereto that have not been negotiated between
       GPO and the Council.
 
                       A.  Positions of the Parties
 
    The Union states that this proposal does not prevent management from
 exercising its rights to implement new policies or regulations, but only
 seeks to assure that management fulfills its statutory obligation to
 negotiate on conditions of employment.  The Agency argues that the
 proposal prevents it from taking disciplinary action against an employee
 unless it has first bargained with the Union over the substance of the
 policy or regulations being enforced.
 
                        B.  Analysis and Conclusion
 
    We find this proposal to be nonnegotiable.  The proposal would permit
 management to discipline employees for violations of regulations or
 instructions only if it has negotiated with the Union over the content
 of the regulation or instruction which is the basis for imposing
 discipline.  An agency cannot be required to negotiate on the criteria
 which it establishes for the imposition of discipline.  See National
 Treasury Employees Union, Chapter 153 and Department of the Treasury,
 U.S. Customs Service, Region II, 21 FLRA No. 102 (1986);  American
 Federation of Government Employees, Local 1822, AFL-CIO and Veterans
 Administration Medical Center, Waco, Texas, 9 FLRA 709 (1982).  Because
 Proposal 3 would require negotiation on the substance of the regulations
 governing the imposition of discipline as a precondition to disciplining
 employees under those regulations, it directly interferes with
 management's right to discipline under section 7106(a)(2)(A) and is
 outside the Agency's duty to bargain.
 
                              V.  Proposal 4
 
          Article VIII, Section 14(2)(b).  The fact-finding will deal
       with the circumstances which are relev