National Treasury Employees Union, Chapters 103 and 111 (Union) and U.S. Customs Service, Region VII (Activity)  

 2 FLRA No. 15
 
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTERS 103 AND 111
 (Union)
 
 and
 
 U.S. CUSTOMS SERVICE,
 REGION VII
 (Activity)
 
                                            Case No. 0-NG-16
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                                 PROPOSAL
    ARTICLE 33, SECTION 2
    A.  (NO CHANGE)
    B.  (NO CHANGE)
    C.  (NO CHANGE)
    D.  (NO CHANGE)
    E.  (NO CHANGE)
 
    F.  DELETE:  " . . . FIFTEEN (15) DAYS TO FILE BY CERTIFIED MAIL OR
 BY HAND DELIVERY, A
 
    GRIEVANCE PURSUANT TO ARTICLE 35.  IF THE EMPLOYEE FILES A GRIEVANCE
 OF A SUSPENSION THE
 
    DISCIPLINARY ACTION SHALL BE STAYED PENDING EXHAUSTION OF THE
 GRIEVANCE PROCEDURE."
 
    INSERT:  " . . . FIVE (5) DAYS TO INVOKE ARBITRATION AS PROVIDED IN
 PARAGRAPH G OF THIS
 
    SECTION BY CERTIFIED MAIL OR BY HAND DELIVERY.  IF THE UNION INVOKES
 ARBITRATION OF A
 
    SUSPENSION THE DISCIPLINARY ACTION SHALL BE STAYED.  DISCIPLINARY
 ACTIONS NOT APPEALED UNDER
 
    PARAGRAPH F AND G OF THIS SECTION MAY BE APPEALED BY FILING A
 GRIEVANCE PURSUANT TO ARTICLE
 
    35."
 
    G.  DELETE FIRST SENTENCE
 
    1.  DELETE FIRST SENTENCE AND INSERT:  "THE FOLLOWING FIVE (5)
 PERSONS SHALL SERVE AS
 
    ARBITRATORS FOR CASES UNDER THIS ARTICLE:
 
    1.
 
    2.
 
    3.
 
    4.
 
    5.
 
    THEY SHALL SERVE ON A ROTATING BASIS AND IF THE ARBITRATOR WHO WOULD
 BE SELECTED UNDER THE
 
    ROTATIONAL SYSTEM FOR A PARTICULAR CASE IS UNABLE TO HOLD THE
 ARBITRATION WITHIN THE TIME
 
    LIMITS OF SUBSECTION 4 OF THIS PARAGRAPH THE NEXT ARBITRATOR WILL BE
 CONTACTED IN TURN."
 
    2.  (NO CHANGE)
 
    3.  (NO CHANGE)
 
    4. INSERT:  "A HEARING SHALL BE SCHEDULED TO COMMENCE WITHIN FIFTEEN
 (15) DAYS OF THE
 
    SELECTION OF THE ARBITRATOR.  THE HEARING SHALL BE CONCLUDED WITHIN
 TEN (10) DAYS OF ITS
 
    OPENING DATE.  THE ARBITRATOR'S DECISION SHALL BE RENDERED WITHIN
 TWENTY (20) DAYS OF THE
 
    CLOSE OF THE HEARING.
 
    5.  INSERT:  "IF THE ARBITRATION AWARD IS NOT RENDERED WITHIN FIFTY
 (50) DAYS FOLLOWING
 
    RECEIPT BY THE EMPLOYEE OF THE EMPLOYER'S DECISION TO SUSPEND THE
 EMPLOYEE, THE EMPLOYER MAY
 
    IMPLEMENT THE SUSPENSION, NOTWITHSTANDING A STAY OF SUSPENSION.  IT
 IS UNDERSTOOD BY THE
 
    PARTIES THAT THE ARBITRATOR MAY AWARD BACK PAY IF APPROPRIATE IN SUCH
 A CASE.  FOR PURPOSES OF
 
    COMPUTING THE FIFTY (50) DAY PERIOD, DELAYS AND/OR EXTENSIONS WITHIN
 THE CONTROL OF THE
 
    EMPLOYER WILL TOLL THE COUNTING PERIOD."
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL VIOLATES SECTION 7106(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) OR
 ESTABLISHES A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
 STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL ESTABLISHES A NEGOTIABLE PROCEDURE WITHIN
 THE MEANING OF SECTION 7106(B)(2) OF THE STATUTE.  ACCORDINGLY, PURSUANT
 TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG.
 44740 ET SEQ. (1979)), THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT VIOLATES SECTION
 7106 OF THE STATUTE IS SET ASIDE.  /2/
 
    REASONS:  THE DISPUTED PROPOSAL IN THE INSTANT CASE ESTABLISHES A
 PROCEDURE FOR THE ARBITRATION OF THE SUSPENSION OF EMPLOYEES.  IN
 PARTICULAR, THE PROPOSAL PROVIDES FOR STAYING THE AGENCY'S SUSPENSION
 ACTION FOR A MAXIMUM OF 50 DAYS PENDING EXHAUSTION OF THE GRIEVANCE
 PROCEDURE BY THE EMPLOYEE.  IT ESTABLISHES DEFINITE TIME LIMITS FOR THE
 COMPLETION OF THE STEPS OF THE ARBITRATION PROCESS, AND ALLOWS THE
 AGENCY TO IMPLEMENT THE SUSPENSION ACTION IF THE ARBITRATION DECISION IS
 NOT RENDERED WITHIN 50 DAYS OF THE EMPLOYEE'S RECEIPT OF THE NOTICE OF
 SUSPENSION.
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
 AND ARMY-AIR FORCE EXCHANGE , FORT DIX, NEW JERSEY, CASE NO. O-NG-20,
 DECIDED ON THIS DATE, THE AUTHORITY CONSIDERED THE NEGOTIABILITY UNDER
 SECTION 7106(B)(2) OF THE STATUTE OF A PROCEDURE GOVERNING THE EXERCISE
 OF MANAGEMENT'S RIGHT TO SUSPEND OR REMOVE EMPLOYEES SIMILAR TO THE ONE
 AT ISSUE IN THE PRESENT CASE.  THE PROPOSAL AT ISSUE IN DIX-MCGUIRE
 EXCHANGE PROVIDED FOR A STAY OF AGENCY ACTION PENDING EXHAUSTION OF THE
 GRIEVANCE AND ARBITRATION PROCESS, BUT IN CONTRAST TO THE DISPUTED
 PROPOSAL HEREIN DID NOT ESTABLISH TIME LIMITS FOR COMPLETING THE
 ARBITRATION PROCESS OR PROVIDE FOR AGENCY ACTION WITHIN A DEFINITE TIME
 PERIOD.  THE AUTHORITY, BASED ON THE LEGISLATIVE HISTORY OF SECTION
 7106(B)(2) OF THE STATUTE, /3/ CONCLUDED THAT THE PROPOSAL IN THAT CASE
 WAS NEGOTIABLE BECAUSE IT WOULD NOT PREVENT THE AGENCY FROM ACTING AT
 ALL IN THE EXERCISE OF ITS STATUTORY RIGHT TO SUSPEND OR REMOVE
 EMPLOYEES.  SINCE THE PROPOSAL HEREIN, WHICH IS NOT MATERIALLY DIFFERENT
 FROM THE PROPOSAL AT ISSUE IN DIX-MCGUIRE EXCHANGE, WOULD PERMIT THE
 AGENCY TO IMPLEMENT THE SUSPENSION OF THE EMPLOYEE WITHIN A DEFINITE
 TIME PERIOD, EVEN IN THE ABSENCE OF AN ARBITRATION DECISION, IT WOULD
 HAVE A MORE LIMITED EFFECT ON THE EXERCISE OF MANAGEMENT'S STATUTORY
 RIGHT TO SUSPEND EMPLOYEES.  A FORTIORI, IT MUST BE FOUND NEGOTIABLE.
 THAT IS, THE PROPOSAL HEREIN CLEARLY DOES NOT PREVENT THE AGENCY FROM
 ACTING AT ALL PURSUANT TO ITS RIGHT TO SUSPEND EMPLOYEES.
 
    ACCORDINGLY, BASED ON THE DECISION IN DIX-MCGUIRE EXCHANGE, THE
 PROPOSAL IN THE INSTANT CASE SETS FORTH A NEGOTIABLE PROCEDURE UNDER
 SECTION 7106(B)(2) OF THE STATUTE AND, THEREFORE, THE AGENCY'S
 ALLEGATION TO THE CONTRARY IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /4/
 
    /1/ SECTION 7106 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1198) PROVIDES, IN PART, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY;  AND
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE
 
    OTHER DISCIPLINARY ACTION AGAINST SUCH EMPLOYEES . . . .
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION . . . .
 
    /2/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /3/ SEE S. REP. NO. 95-1272, 95TH CONG., 2ND SESS. 158(1978).
 
    /4/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.