25:1033(86)NG - Joint Council of Unions, GPO and Government Printing Office -- 1987 FLRAdec NG
[ v25 p1033 ]
The decision of the Authority follows:
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 relevant to the current alleged violations of applicable regulations. The fact-finding report will state (the fact-finder's) findings of fact and recommendation(s) and his reasons therefor and be presented to the parties. The Public Printer will review the report and issue a final decision as to what action will be taken and notify the employee and his representative within two weeks. (Only the underscored portion is in dispute.) A. Positions of the Parties The Union states that it is merely trying to make clear what action by management will be considered final, so that such final action can form the basis for an appeal to the Merit Systems Protection Board. The Agency contends that this proposal, by dictating to management which of its employees will perform a specific function, interferes with management's reserved right to assign work. B. Analysis and Conclusion We find this proposal to be nonnegotiable. The disputed portion of this proposal seeks to designate a particular individual within the Agency who will review the reports of fact-finders, render a final decision, and notify the employee involved and his representative, all within a time limit of two weeks. The Authority has consistently held that the designation of a particular management official to perform specified tasks is inconsistent with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. National Treasury Employees Union and Department of the Treasury, 21 FLRA No. 123 (1986) (Union Provisions 2, 3, 4 and 5). For the reasons in National Treasury Employees Union, Proposal 4 is therefore not within the duty to bargain. VI. Order The Agency must, upon request (or as otherwise agreed to by the parties), bargain concerning Proposal 1. /*/ The petition for review as to Proposals 2, 3 and 4 is dismissed. Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding this proposal to be within the duty to bargain, we make no judgment as to its merits.