25:0517(38)NG - AFGE Local 2298 and Missile Facility Atlantic, Charleston, SC -- 1987 FLRAdec NG

 25 FLRA No. 38
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2298
 Union
 
 and
 
 MISSILE FACILITY ATLANTIC,
 CHARLESTON, SOUTH CAROLINA
 Agency
 
                                            Case No. 0-NG-1301
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority under section 7105(a)(2)(E) of the
 Federal Service Labor-Management Relations Statute (the Statute) and
 concerns the negotiability of a single provision of a negotiated
 agreement disapproved by the Agency head under section 7114(c) of the
 Statute.  We find that this provision is nonnegotiable.
 
                              II.  Provision
 
          Section 6.  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 completion of an
       investigation.  (Only the underlined portion is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends, citing 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), that the provision is outside the
 duty to bargain because it interferes with management's right to
 discipline employees under section 7106(a)(2)(A) of the Statute.  The
 Union contends that the provision does not prevent the Agency from
 acting at all and that it establishes a reasonable procedure under
 section 7106(b)(2) of the Statute which the Agency would follow in
 exercising its rights under section 7106(a)(2)(A) of the Statute.  Also,
 the Union contends that the provision constitutes an appropriate
 arrangement under section 7106(b)(3) of the Statute because it insures
 that disciplinary action will be processed expeditiously by the Agency
 and thereby serves the interests of employees.
 
                       B.  Analysis and Conclusions
 
                   1.  The provision is not a procedure
 
    The provision would require the Agency to initiate disciplinary
 action normally within 30 days of the event or occurrence warranting
 discipline or within 30 days of the Agency becoming aware of the event
 or occurrence.  In our opinion, this provision is to the same effect as
 a provision found nonnegotiable in 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), which
 required that investigations of incidents for which disciplinary action
 may be taken be initiated normally within 60 days of the incident or
 within 60 days after the employer becomes aware of the incident.  The
 Authority noted that by establishing a contractual "statute of
 limitations" which would preclude the agency from investigating
 incidents which may result in the disciplining of employees, the
 provision would, in certain circumstances, prevent the agency from
 disciplining employees.  See also 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 (1985) (proposal 3).  The provision in this case, likewise, would
 establish a contractual limitation which would, in certain
 circumstances, prevent the Agency from disciplining employees.  Thus,
 the provision substantively interferes with management's rights and does
 not constitute a negotiable procedure under section 7106(b)(2) of the
 Statute.  See National Treasury Employees Union, Chapter 26 and Internal
 Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (proposals 1,
 2, and 4).
 
            2.  The provision is not an appropriate arrangement
 
    In addition, the provision is not an appropriate arrangement under
 section 7106(b)(3) for employees adversely affected by the Agency's
 right to discipline under section 7106(a)(2)(A).  The provision would
 completely preclude the Agency from exercising its right to discipline
 if such discipline was not initiated within 30 days under normal
 circumstances.  Such a total abrogation of management's right to
 discipline excessively interferes with the right and clearly does not
 constitute an appropriate arrangement within the meaning of section
 7106(b)(3).  Id.
 
                                III.  Order
 
    The Union's petition for review is dismissed.
 
    Issued, Washington, D.C., February 4, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY