26:0174(19)NG AFGE, LOCAL 2298 VS NAVY, NAVAL WEAPONS STATION -- 1987 FLRAdec NG



[ v26 p174 ]
26:0174(19)NG
The decision of the Authority follows:


26 FLRA NO. 19

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,  LOCAL 2298

              Union

      and

DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION
CHARLESTON, SOUTH CAROLINA

              Agency

Case No. 0-NG-1321

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 and concerns the negotiability of the following provision of a locally negotiated agreement disapproved by the Agency head under section 7114(c) of the Statute:

Disciplinary action will normally be initiated within thirty (30) calendar days after the event or occurrence warranting such discipline, or of the employer's becoming aware of such event or occurrence. It is understood that initiation of disciplinary action may be delayed pending com-pletion of an investigation.

We find the provision to be nonnegotiable.

II. Positions of the Parties

The Agency contends that this provision is outside the duty to bargain because it would effectively preclude management from acting at all to take disciplinary action under section 7106(a)(2)(A). The union contends that the provision does not preclude management from acting to take disciplinary action because the word "normally" permits reasonable extensions of time. Further, the Union contends the provision constitutes a negotiable procedure under section 7106(b)(2) for management to follow when it decides to take disciplinary action against an employee and an appropriate arrangement under section 7106(b)(3) for employees affected by the exercise of management's right to discipline.

III. Analysis and conclusion

The provision in this case prohibits the Agency from taking disciplinary action against employees for offenses which occurred more than 30 days earlier or more than 30 days after the employer became aware of the alleged offense. In our opinion, this provision is to the same effect as a provision found nonnegotiable in National Federation of Federal Employees, Local 618 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 Federation Employees, Local 615 v. FLRA, 801 F.2d 77 (D.C. Cir. 1986). The provision in Sequoia and Kings Canyon National Parks required that investigations of incidents for which disciplinary action may be taken must normally be initiated within 60 days of the incident or within 60 days after the employer becomes aware of the incident. The Authority determined that the 60-day time limit constituted a contractual "statute of limitations" which would preclude the agency 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 State, County and municipal Employees, Local 2478 and U.S. Commission on Civil Rights, 24 FLRA No. 10 (1986); American Federation of Government Employees, AFL - CIO, Local 1770 and Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Proposal 3).

The provision in this case, likewise, would establish a contractual limitation which would prevent the Agency from disciplining employees when the 30-day period was exceeded. Thus, this provision substantively interferes with management's rights 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