36:0130(15)NG - - AFGE, Education Council of Locals and Education - - 1990 FLRAdec NG - - v36 p130
[ v36 p130 ]
The decision of the Authority follows:
36 FLRA No. 15
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DEPARTMENT OF EDUCATION COUNCIL OF LOCALS
U.S. DEPARTMENT OF EDUCATION
DECISION AND ORDER ON NEGOTIABILITY ISSUES
June 22, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals which concern, respectively, the effectuation of suspensions or removals all procedures have been exhausted and the raising of questions of grievability or arbitrability under the negotiated grievance procedure.(1) For the reasons discussed below, we conclude that Proposal 2 is a and that Proposal 3 is not properly before us for a negotiability determination.
II. Proposal 2
Article 36--Disciplinary and Adverse Action Procedures
Section 36.05(c)(3) In the event of a suspension or removal, the grievant will exhaust the review provisions contained in this Agreement before the suspension or removal is effectuated, and the employee will remain in a pay status until a final determination is rendered, except as provided under procedures referred to in Section 36.06.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable when applied to removals or actions taken under the "crime provision" of 5 U.S.C. § 7513(b)(1). The Agency relies on the Authority's decision in National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Eastern Mapping). It contends that Proposal 2 would establish an indefinite stay of disciplinary actions. The Agency maintains that, like Provision 1 in Eastern Mapping, Proposal 2 is nonnegotiable because it: (1) contravenes the legislative intent that actions under 5 U.S.C. § 7513 be taken immediately; (2) interferes with management's rights under section 7106(a)(2)(A) of the Statute to take disciplinary action and to remove employees; (3) is "inimical" to the effective conduct of public business because management would have no effective method of holding employees accountable during the stay period; (4) prevents "the agency from acting at all to direct employees and assign work" during the stay period; and (5) is not an appropriate arrangement because it excessively interferes with management's rights as noted above. Agency Statement of Position at 4.
The Union contends that the Agency has misinterpreted the proposal. It states that the proposal specifically provides that management may take immediate disciplinary action under "Section 36.06 as referred to in the proposal . . ." which would allow for actions to be taken under the "crime provision" of 5 U.S.C. § 7513(b)(1). Union Response at 4-5. The Union asserts that the proposal is a negotiable procedure under Authority case law.
B. Analysis and Conclusions
The Authority has held that a proposal to stay a disciplinary suspension or removal pending the completion of the grievance and arbitration process is negotiable as a procedure under section 7106(b)(2). American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), (Dix-McGuire) enforced 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 (1983). The Authority has found, however, that a provision to retain employees on duty for an additional 10 days beyond the date established for their terminations was nonnegotiable. Eastern Mapping. The Authority found that the provision in Eastern Mapping was nonnegotiable because: (1) it applied to employees whom management had decided to remove after all avenues of appeal had been followed; and (2) it did not allow any exceptions to the required 10-day delay in circumstances governed by 5 U.S.C. § 7513(b)(1). As to the first point, the Authority found that management would have no effective method for holding those employees covered by the provision accountable for failure or refusal to carry out work assignments during the 10-day period and that, therefore, it was not a negotiable procedure. Id. at 1106-07. As to the second point, the Authority found that 5 U.S.C. § 7513(b)(1) constituted a legislative mandate that employees reasonably believed to have committed certain crimes be terminated without delay. Id. at 1106. Based on these circumstances, the Authority found that the provision in Eastern Mapping was not an appropriate arrangement because it excessively interfered with management's rights to take disciplinary actions and remove employees as well as to assign work and direct employees and was, therefore, nonnegotiable.
Here the Agency's reliance on Eastern Mapping is
misplaced. Provision 1
, in Eastern Mapping precluded,
without exception, the removal of an employee during a period of 10 working
days from the date established for his or her termination. In this case,
Proposal 2 oreover, Proposal 2
expressly preserves management's right to take appropriate action immediately
in a variety of circumstances. an employee will
remain in pay status while the procedural review of a suspension or removal
continues "except as provided under procedures referred to in section 36.06."
Section 36.06, which is not in dispute, provides in relevant part:
In instances where public or employee health, safety, or welfare may be impaired or endangered or there may be a serious breach of the Department's Standards of Conduct or it is necessary to invoke the emergency or exception provisions of Chapter 752 of the Federal Personnel Manual (FPM), the Employer reserves the right to take appropriate action immediately and before the procedures set forth herein are initiated or exhausted.
Proposal 2 is clearly distinguishable from the provision
that the Authority found nonnegotiable in Eastern Mapping. Proposal 2
permits management to take immediate disciplinary action in the circumstances
set forth in section 36.06. The wording of section 36.06 is sufficiently broad
in our opinion to encompass circumstances where there is reasonable cause to
believe that an employee has committed a crime punishable by imprisonment. The
provision in Eastern Mapping, in contrast, did not permit management to
take immediate action under any circumstances. Therefore, we find that the
reasoning in Eastern Mapping is inapposite here and we reject the
Agency's contentions, based on Eastern Mapping, that Proposal 2
contravenes the "crime provision" of 5 U.S.C. § 7513(b)(1), and,
consequently, interferes with management rights to take disciplinary action and
to remove employees, and
otherwise conflicts with the
effective conduct of public business. Rather, Proposal 2 allows management to
take immediate disciplinary action where warranted.
Additionally, the proposal here is distinguishable from that found nonnegotiable in Eastern Mapping in that, contrary to the Agency's suggestion that the second sentence of the proposal may be read as providing a stay through judicial proceedings, we find that the proposal here only requires that certain disciplinary or adverse actions be stayed until the review procedures provided for in the collective bargaining agreement are exhausted. The provision in Eastern Mapping would have stayed action for a 10-day period "after all avenues of appeal have been followed . . . ." Id. at 1107. Moreover, under the proposal in this case the delay in effectuating a suspension or removal would occur prior to the suspension or removal becoming a foregone conclusion and presumably only when an employee had invoked the contractual appeal procedures in an effort to avert the proposed removal or suspension. Given the possibility that the proposed suspension or removal could be overturned in the appeal process, the employee would have no incentive to, or assurance that he or she could, refuse with impunity to carry out work assignments during the period of the stay. Accordingly, in our view, the proposal would not deprive the Agency of an effective method of holding employees accountable during the stay period and would not prevent the Agency from directing employees and assigning work.
For the foregoing reasons we reject the Agency's arguments that, based on Eastern Mapping, the proposal in this case is nonnegotiable. Rather, we find that, like the proposal in Dix-McGuire, the proposal in this case is negotiable as a procedure under section 7106(b)(2). See also Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1510-11 (D.C. Cir. 1989), enforcing in part, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987), which upheld the Authority's conclusion that a provision establishing a 10-day delay in effecting employee suspensions was negotiable. The court noted that "timing in matters of discipline is procedural and therefore subject to negotiation[.]" Consequently, we find Proposal 2 to be within the duty to bargain.
III. Proposal 3
Article 37--Grievance Procedure
Section 37.05, Questions of Grievability
 In the event either party should declare a grievance non-grievable or non-arbitrable, the original grievance shall be considered amended to include this issue.  The employer agrees to raise any question of grievability or arbitrability of a grievance prior to the time limit for the written answer in step 2 of this procedure.  All disputes of grievability or arbitrability shall be referred to arbitration as a threshold issue in the related qrievance. [Sentence numbering added for reference purposes.]
A. Positions of the Parties
As a preliminary matter, the Agency claims that Proposal 3 is not properly before the Authority and should be dismissed. It asserts that Proposal 3 set forth in the Union's appeal is not the proposal the Agency alleged to be nonnegotiable. The Agency states that the proposal it alleged to be nonnegotiable consisted of the second and third sentences of Proposal 3 and a fourth sentence as follows:
 The employer agrees to raise any question of grievability or arbitrability of a grievance prior to the time limit for the written answer in Step 2 of this procedure.  All disputes of grievability or arbitrability shall be referred to arbitration as a threshold issue.  Any such question not timely raised shall be considered waived unless the matter relied upon for the question could not have been raised in Step 2. [Sentence numbering added for reference purposes.]
Agency Statement of Position at 5-6, note 6.
The Agency asserts that "[t]he language submitted by the Union for review [by the Authority] was neither submitted to the Agency in its last proposals, nor has it been declared by the Agency to be nonnegotiable." Id. at 5. The Agency contends that, as a consequence, the Union has not fulfilled all conditions for review required by the Authority's rules and, therefore, the Union's petition should be dismissed. The Agency also contends that the petition for review should be dismissed because the Union has failed to present a "proper record" upon which a negotiability determination can be based.
The Union contends that the proposal is properly before the Authority. It "recognizes that the first sentence of the proposal is omitted." Union Response at 7. The Union asserts, however, that the negotiability dispute arises from sentences 2 and 3 of Proposal 3 and that, as these sentences are "identical to the portion alleged by the agency to be nonnegotiable," Proposal 3 is properly before the Authority. Finally, it contends that the Authority precedent cited by the Agency is not pertinent to the facts of this case because Proposal 3 has not been revised and is sufficiently specific in form and content for a determination regarding its negotiability.
On the merits, Agency Statement of Position at 6. The Agency contends that subject-matter jurisdiction may be raised at any time during the negotiated grievance process and asserts thl 3 is contrary to law. Agency Statement of Position at 6-7.
The Union further
contends furtherthat this proposal is merely intended to "bar belated arbitrability
claims in arbitrations." Union Response at 3. It further
contends that the Agency has misinterpreted the proposal and has
failed to establish that it is outside the duty to bargain. It states that the
proposal is not meant "to be applied in any fashion which would violate
applicable laws or regulations." Id. at 8. The Union notes that
underthe proposal the
Agency may still file exceptions to any
awards which it believes are contrary to law, rule or
B. Analysis and Conclusions
For the reasons stated below, we find that Proposal 3 is not properly before us and we dismiss the Union's petition for review concerning Proposal 3 without prejudice to its right to file a new appeal if the conditions governing review are met.
The Union does not controvert the Agency's assertion that the proposal which the Agency alleged to be nonnegotiable contained a fourth sentence, relating to the waiver of arbitrability or grievability disputes not presented by Step 2 of the parties' negotiated grievance procedure. Agency Statement of Position at 5-6. Consequently, we find that sentence four was part of the proposal which the Agency disapproved. Moreover, sentence four established waiver as the consequence of the Agency's failure to raise arbitrability and grievability issues at the proper time. Because sentence four established a penalty--waiver--for the Agency's failure to comply with the other sentences in the proposal, we conclude that sentence four constituted a substantive, integral part of the proposal the Agency alleged to be nonnegotiable. Compare American Federation of Government Employees, AFL-CIO, Local 2303 and Metropolitan Washington Airports, Federal Aviation Administration, U.S. Department of Transportation, 17 FLRA 17 (1985), affirmed sub nom. American Federation of Government Employees, AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987) (the Authority found a proposal to be a recombination, without substantive change, of the parts of an earlier proposal and, consequently, within the scope of the agency's original allegation of nonnegotiability).
We conclude that Proposal 3, which does not include the fourth sentence, is a substantively different proposal from the one the Agency alleged to be nonnegotiable. Therefore, we reject the Union's contentions that: (1) the only difference between Proposal 3 and the proposal that the Agency alleged to be nonnegotiable is that the first sentence of Proposal 3 was not before the Agency; and (2) only the second and third sentences of Proposal 3 are in dispute.
The record does not indicate that the Union requested an Agency allegation of nonnegotiability concerning Proposal 3. For this reason, the petition for review of Proposal 3 is not properly before us and will be dismissed without prejudice to the Union's refiling at a later date should it meet the conditions for review. International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 270 (1988).
The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposal 2.(2) The petition for review as to Proposal 3 is dismissed without prejudice to the Union's right to file a negotiability petition as to this proposal if the conditions governing review of negotiability issues are