26:0192(22)AR - NAGE, Security Guard Local R4-19, Portsmouth, Virginia and Norfolk Naval Shipyard -- 1987 FLRAdec AR



[ v26 p192 ]
26:0192(22)AR
The decision of the Authority follows:


 26 FLRA No. 22
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, SECURITY GUARD LOCAL R4-19 
 PORTSMOUTH, VIRGINIA
 Union
 
 and
 
 NORFOLK NAVAL SHIPYARD
 Activity
 
                                            Case No. 0-AR-1187
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator William M. Edgett filed by the Activity under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.  The Union filed an
 opposition.  /*/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this matter concerns the Activity's five-day
 suspension of the grievant.  The grievant, a guard in the Activity's
 Police Protection Branch, was suspended because, while on duty at the
 Activity's main gate, he refused to give directions to a naval petty
 officer who was to report for duty the next day and ordered the petty
 officer to leave the base.  A grievance over the suspension was filed
 and submitted to arbitration.
 
    At arbitration the Union alleged the Activity did not adhere to the
 procedural requirements of the parties' agreement, specifically Article
 21, section 2. Article 21, section 2 of the parties' agreement provides
 that:  (1) preaction investigations must be initiated within 10 working
 days of the alleged incident or within 10 working days after the
 charging party becomes aware of the incident;  and (2) disciplinary
 actions must be initiated within 10 working days after completion of the
 preaction investigation.
 
    As his award, the Arbitrator sustained the grievance and directed the
 Activity to reimburse the grievant for any monetary loss resulting from
 the suspension.  First, the Arbitrator found that the investigation was
 initiated within 10 working days of the time the petty officer filed his
 written report and was timely under Article 21, section 2.  Second, he
 found that the disciplinary action was untimely under Article 21,
 section 2 because it was not initiated within 10 working days after
 completion of the preaction investigation.  The Arbitrator reasoned that
 in agreeing to these time limits the parties understood the consequence
 of failure to adhere to them would be the reversal of an improper
 disciplinary action and that the Activity's untimeliness constituted
 harmful error.  Moreover, the Arbitrator found that the Agency's
 regulations, NAVSHIPYDNOR Instruction 12750.3A, also provided for
 timeliness in disciplinary actions and that the Activity, by its delay,
 had failed to comply with its own regulations.  The Arbitrator concluded
 that the action against the grievant was procedurally defective and did
 not meet the just cause standard of the parties' agreement.
 
                              III.  EXCEPTION
 
    The Activity contends the award is contrary to section 7106(a)(2)(A)
 of the Statute.  In support of its contention the Activity argues that
 the award enforces an agreement provision in such a way as to prevent
 the Activity from exercising its right under section 7106(a)(A) of the
 Statute to discipline the grievant solely because the disciplinary
 action was not initiated within the contractual limitations.
 
                       IV.  ANALYSIS AND CONCLUSION
 
    We conclude that the Activity's exception fails to establish that the
 Arbitrator's award is deficient.
 
    In National Federation of Federal Employees, Local 615 and National
 Park Service, Sequoia and Kings Canyon National Parks, U.S. Department
 of the Interior, 17 FLRA 318 (1985), aff'd. sub. nom. NFFE Local 615 v.
 FLRA, 801 F.2d 477 (D.C. Cir. 1986), the Authority addressed the
 question of whether a contractual statute of limitation denied an agency
 its authority to exercise its rights under section 7106 of the Statute.
 In that case the Authority found a union proposal, which set a 60 day
 time limit on the initiation of investigations of incidents which might
 lead to disciplinary action, to be outside the duty to bargain because
 the time limit, if enforced, would have prevented the agency from
 exercising its right to discipline employees under section
 7106(a)(2)(A).  Id. at 321.  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
 XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA
 752, 755 (1985).
 
    In Immigration and Naturalization Service and American Federation of
 Government Employees, Local 505, 22 FLRA No. 70 (1986), the Authority
 applied its decision in Sequoia and Kings Canyon National Parks in
 resolving an exception to an arbitrator's award.  In that case, the
 Immigration and Naturalization Service (INS) had filed exceptions to an
 arbitrator's award asserting that under the Authority's decision in
 Sequoia and Kings Canyon National Parks, the award was contrary to
 management's right to take disciplinary action under section
 7106(a)(2)(A).  The collective bargaining agreement provided that
 employees would be given notices of proposed disciplinary action at the
 earliest practicable date after the alleged offense had been committed
 and made known to the agency.  In resolving the exceptions, the
 Authority rejected INS's reliance on Sequoia and Kings Canyon National
 Parks, stating:
 
          In this case, the Agency was in no manner prevented by a
       statute of limitation provision from investigating the alleged
       incident of misconduct and from acting to propose and suspend the
       grievant for 5 days.  Instead, as stated by the Arbitrator, this
       case involves review of final disciplinary action to determine
       whether the Agency's eight-month delay in imposing discipline
       resulted in an action which was arbitrary, capricious, and
       unreasonable and which did not promote the efficiency of the
       service.  As noted, the Arbitrator determined that the suspension
       of the grievant had resulted in such an unwarranted disciplinary
       action and on that basis ruled that the suspension was not for
       just and sufficient cause.  We conclude that such an award is not
       precluded by the decision in Sequoia and Kings Canyon National
       Parks and that therefore the Agency's argument provides no basis
       for finding the award deficient.
 
    Immigration and Naturalization Service, slip op. at 4.
 
    In Sequoia and Kings Canyon National Parks the Authority emphasized
 that the proposal at issue was outside the duty to bargain because
 preventing the initiation of an investigation would, in some
 circumstances, prohibit the agency from acting at all.  By contrast, in
 Immigration and Naturalization Service the Authority emphasized that the
 issue before it was the arbitrator's review of a final disciplinary
 action in which the arbitrator found that the agency's extraordinary
 delay in imposing discipline rendered the discipline arbitrary,
 capricious and unreasonable and not for just cause.  In Immigration and
 Naturalization Service the Authority also emphasized that the agency was
 not precluded from investigating the proposed misconduct and from acting
 to propose and execute discipline.
 
    Moreover, in Immigration and Naturalization Service, the arbitrator
 based his award on applicable agency regulations, the statutory language
 of 5 U.S.C. Section 7503, and the parties' collective bargaining
 agreement which all contained provisions for timeliness.  Immigration
 and Naturalization Service, slip op. at 1-2.  Likewise, in this case,
 the Arbitrator based his award on the limitation provision of the
 parties' collective bargaining agreement and on the Agency's
 regulations:
 
          The agency did not comply with its own regulations, nor did it
       comply with the procedural requirements of the agreement.
 
    Award at 7.  In both ca