47:0812(77)NG - - NFFE Local 1438 and Commerce, Bureau of the Census, Jeffersonville, IN - - 1993 FLRAdec NG - - v47 p812

[ v47 p812 ]
The decision of the Authority follows:

47 FLRA No. 77





LOCAL 1438










June 9, 1993


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).(1) The appeal concerns the negotiability of one provision of a collective bargaining agreement that was disapproved by the Agency head under section 7114(c) of the Statute. The provision concerns the timeliness with which management effectuates disciplinary actions against employees. For the following reasons, we find that the provision is negotiable.

II. Provision

Article 17, Section 17.4, second paragraph

The employee will be given up to 3 workdays to respond to the charge(s). If discipline is not warranted, the record of infraction will be destroyed and the employee or representative, if any, will be notified immediately. If discipline is warranted, branch management will make a timely decision following the employee's response and return a copy of the record of infraction to the employee or representative, if any. In the case of oral admonishments, they will be decided upon at the branch level. All remaining actions listed in 17.1 and 17.2 above will be forwarded to the Personnel Management Staff where an expeditious recommendation for appropriate discipline will be made.

[Only the underscored portions are in dispute.]

III. Positions of the Parties

A. Agency

The Agency interprets the provision as requiring that management's initial decision that discipline is warranted be timely and that the recommendation by the Personnel Management Staff for appropriate discipline be expeditious. According to the Agency, under the provision, if an arbitrator concluded that management did not timely decide that discipline was warranted or that a recommendation of appropriate discipline was not expeditious, the arbitrator could revoke the discipline. The Agency claims that such an arbitrator's award would have the effect of establishing a statute of limitations and would directly interfere with management's right under section 7106(a)(2)(A) of the Statute to take disciplinary action against employees.

The Agency asserts that a contractual statute of limitations on the initiation of disciplinary action is nonnegotiable because it precludes management from exercising its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency cites, among others, the Authority's decisions in Antilles Consolidated Education Association and Department of Defense, Office of Dependents Schools, Antilles Consolidated School System, Fort Buchanan, Puerto Rico, 45 FLRA 989 (1992) (Antilles) and American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 201 (1991) (Merchant Marine Academy). Specifically, the Agency notes that, in Merchant Marine Academy, the Authority rejected "a [u]nion's explanation that a contractual provision was merely intended to assure timely notice to employees and that untimeliness would not require that the action be set aside, unless there was 'harmful error'[.]" Statement at 6. The Agency states that, notwithstanding the union's explanation, the Authority found that the provision imposed a statute of limitations on discipline and, therefore, was nonnegotiable.

The Agency acknowledges that, in National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 988-90 (1991) (Food and Nutrition Service), the Authority found that a provision containing a timeliness limitation on management's right to discipline that was phrased in general terms, rather than specifying a specific number of days, was negotiable. The Agency also notes that the decision in Food and Nutrition Service cited National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94 (1987) (Eastern District) (Provision 1), in which the Authority found that a provision requiring that disciplinary action be taken within a reasonable period of time did not directly interfere with management's right to discipline. The Agency argues, however, that Eastern District concerned application of the harmful error rule and did not constitute a repudiation of the "principle that a contractual statute of limitations was nonnegotiable[.]" Statement at 9.

The Agency argues that the Authority's rationale in Food and Nutrition Service "flies in the face of reality." Id. at 7. According to the Agency, the only reason for an employee in a grievance challenging discipline to assert the "procedural defense of untimeliness" is to demonstrate that he or she should not be disciplined because of the untimeliness. Id. at 8. The Agency also argues that Food and Nutrition Service is inconsistent with Antilles and Merchant Marine Academy. The Agency states that the only difference between the Antilles and Merchant Marine Academy cases and the Food and Nutrition Service case is that, in Antilles and Merchant Marine Academy, the proposals themselves specified the limitations on management and, under Food and Nutrition Service, an arbitrator would be allowed to specify the limitations. The Agency maintains that this "is a distinction without significance" and contends that the effect of the provision in dispute "remains as a direct interference with management's right to discipline by creating contractual time limits enforceable via arbitration." Id. at 11.

B. Union

The Union argues, citing Immigration and Naturalization Service and American Federation of Government Employees, Local 505, 22 FLRA 643 (1986) (INS) and United States Customs Service and National Treasury Employees Union, 22 FLRA 607 (1986), that "an arbitrator can reverse or mitigate a disciplinary action because of management's dilatoriness." Response at 4. The Union states that in INS the Authority held that an arbitrator could find that an agency's delay in initiating disciplinary action "does not actually promote the efficiency of the service." Id. at 5. The Union claims that the Agency "makes no effort to show that it may, in accordance with 5 U.S.C. Chapter 75, proceed dilatorily and effect untimely disciplinary actions." Id.

The Union states that "[a]s the [A]gency concedes, the Authority has found that proposals essentially identical to the [provision] in dispute here do not affect the authority of management officials to take disciplinary actions within the meaning of 5 U.S.C. § 7106(a)(2)(A)." Id. Citing Food and Nutrition Service and Eastern District, the Union asserts that the Agency "makes no persuasive case for abandoning these precedents." Id.

The Union claims that the provision "is obviously a procedure which management officials would observe in exercising their right to discipline" under section 7106(a)(2)(A) of the Statute. Id. The Union claims that, "[b]y the plain terms of [section] 7106(b)(2)," proposals that establish procedures governing the exercise of management's rights under section 7106(a) are negotiable. Id. at 6. The Union also asserts that "[a]bsent a showing that the [provision] is procedural in form only," the provision cannot be found to be nonnegotiable under section 7106(a)(2)(A). Id. (footnote omitted). The Union contends, in this connection, that the Agency has not "identif[ied] a single hypothetical situation in which compliance with the [provision] would be tantamount to rendering meaningless [the Agency's] authority, in accordance with applicable law, to take disciplinary action." Id. The Union states that the provision is intended to "reduce the number of stale, untimely disciplinary actions management successfully takes." Id. at 5-6.

IV. Analysis and Conclusions

For the following reasons, we find that the provision is negotiable as a procedure under section 7106(b)(2) of the Statute.

A. The Meaning of the Provision

The provision prescribes the steps that management will take after it notifies an employee that the employee is subject to discipline. Once an employee has had an opportunity to respond to disciplinary charges, the provision requires the Agency to timely decide that discipline is warranted and to expeditiously recommend an appropriate penalty. The provision does not prescribe the consequences that would result from management's failure to timely decide that discipline is warranted or to expeditiously recommend an appropriate penalty. Rather, the proposal simply establishes a standard of timeliness governing the Agency's completion of the steps of the disciplinary process.

B. The Provision Does Not Directly Interfere with Management's Right to Discipline Employees under Section 7106(a)(2)(A) of the Statute

In Merchant Marine Academy, we found that Provision 4, which required that a written decision be provided to an employee subject to disciplinary charges within 45 days after receipt of the employee's response to the notice of proposed discipline, was negotiable. Specifically, we found that the provision was incorrectly characterized as a "statute of limitations" on disciplinary action. We noted that the Authority had held proposed contractual time limits on disciplinary actions to be nonnegotiable "where failure to meet those limits would result in an agency's inability to take any action at all with respect to a potential disciplinary matter." Merchant Marine Academy, 39 FLRA at 203.

We found that Provision 4 in Merchant Marine Academy did not state that the untimely delivery of the written decision would bar the imposition of disciplinary action. We also found that Provision 4 was distinguishable from Provisions 3 and 8, which were found to be nonnegotiable, because expiration of the time limits in Provisions 3 and 8 barred disciplinary action based on the incident involved, while the time limit in Provision 4 did not bar disciplinary action. We found that Provision 4 did not directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and concluded, therefore, that Provision 4 was a negotiable procedure under section 7106(b