10:0448(76)NG - Joint Council of Unions, GPO and Government Printing Office -- 1982 FLRAdec NG

 10 FLRA No. 76
 
 JOINT COUNCIL OF UNIONS, GPO
 Union
 
 and
 
 U. S. GOVERNMENT PRINTING OFFICE
 Agency
 
                                            Case No. O-NG-397
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND PRESENTS ISSUES
 RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL.
 
    ARTICLE XIV (CORRECTIVE ACTION)
 
    SEC. 13.  IN CASES WHERE AN EMPLOYEE RECEIVES A LETTER PROPOSING
 HIS/HER SUSPENSION (OF
 
    MORE THAN 14 DAYS), DEMOTION, REMOVAL, OR AN ACTION OF SIMILAR
 NATURE, THE UNION MAY ELECT TO
 
    USE THE FOLLOWING PROCEDURE:
 
    1.  THE EMPLOYEE HAS THE RIGHT TO ANSWER ORALLY AND/OR IN WRITING AND
 TO FURNISH AFFIDAVITS
 
    AND OTHER DOCUMENTARY EVIDENCE IN SUPPORT OF THE ANSWER.  WRITTEN OR
 ORAL REPLIES ARE TO BE
 
    MADE TO THE OFFICIAL WHO ISSUES THE PROPOSED NOTICE.  THE RIGHT TO
 ANSWER ORALLY AND/OR IN
 
    WRITING ALSO PERMITS THE EMPLOYEE TO BE REPRESENTED BY HIS UNION, AN
 ATTORNEY OR OTHER
 
    REPRESENTATIVE OF HIS CHOICE, OR
 
    2.  THE EMPLOYEE, THROUGH HIS UNION, MAY ELECT, WITHIN 10 CALENDAR
 DAYS FROM THE RECEIPT OF
 
    THE LETTER OF THE PROPOSED ACTION, TO REQUEST THAT THE FOLLOWING
 FACT-FINDING PROCEDURE BE
 
    INVOKED:
 
    (A) THE FACT-FINDING WILL BE CONDUCTED BY AN IMPARTIAL THIRD PARTY
 WHO IS SELECTED BY THE
 
    PARTIES FROM A PANEL OF ARBITRATORS.  THE UNION AND THE GPO WILL EACH
 PAY ONE-HALF THE
 
    COST.  THIS PANEL WILL CONSIST OF ARBITRATORS WHO AGREE TO CONDUCT AN
 EXPEDITED TYPE OF
 
    HEARING AND AGREE THEY WILL RENDER A FINDING OF FACT WITHIN SEVEN (7)
 DAYS AFTER COMPLETION OF
 
    THE PRESENTATION TO THEM.
 
    (B) THE FACT-FINDING WILL DEAL ONLY WITH THE CIRCUMSTANCES WHICH ARE
 RELEVANT TO THE
 
    CURRENT ALLEGED VIOLATION OR VIOLATIONS OF APPLICABLE REGULATIONS.
 THE FACT FINDER'S REPORT
 
    WILL STATE HIS FINDINGS OF FACT AND RECOMMENDATION(S) AND HIS REASONS
 THEREFOR AND BE
 
    PRESENTED TO THE PARTIES.  THE PUBLIC PRINTER WILL REVIEW THE REPORT
 AND ISSUE A FINAL
 
    DECISION AS TO WHAT ACTION WILL BE TAKEN AND NOTIFY THE EMPLOYEE AND
 HIS REPRESENTATIVE WITHIN
 
    TWO WEEKS.
 
    (C) THE LETTER OF FINAL DECISION WILL INFORM THE EMPLOYEE AND THE
 UNION OF THEIR RIGHT TO
 
    APPEAL THE LETTER OF FINAL DECISION TO EITHER THE MERIT SYSTEMS
 PROTECTION BOARD OR PROCEED TO
 
    PARAGRAPH (D) SECTION 10, ARTICLE VIII OF THIS AGREEMENT.  /1/
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATION.
 THIS PROPOSAL CONSTITUTES A NEGOTIABLE PROCEDURE UNDER SECTION
 7106(B)(2) OF THE STATUTE "WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL
 OBSERVE IN EXERCISING ANY AUTHORITY UNDER THIS SECTION," SPECIFICALLY IN
 THIS INSTANCE, THE AUTHORITY UNDER SECTION 7106(A)(2)(A) "TO SUSPEND,
 REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION"
 AGAINST EMPLOYEES IN THE BARGAINING UNIT.  THAT IS, THE PROPOSED
 PROCEDURES WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL TO EXERCISE
 ITS STATUTORY RIGHTS UNDER SECTION 7106(A)(2)(A);  THEY WOULD ONLY STAY
 THE EXERCISE OF THOSE RIGHTS UNTIL THE PROCEDURES ARE ACCOMPLISHED AND,
 HENCE, ARE WITHIN THE DUTY TO BARGAIN.  /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),
 ENFORCED SUB NOM, DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
 AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB NOM.  AFGE
 V. FLRA . . . , U.S. . . . , 102 S.CT. 1443(1982).
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE UNION
 PROPOSAL.  /3/
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 10, 1982
 
                       RONALD W.  HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ITS STATEMENT OF POSITION, THE AGENCY ALLEGES THAT THE UNION'S
 PROPOSAL, AS ORIGINALLY SUBMITTED, CONTAINED A PROVISION IN SUBSECTION
 2(B) WHICH WOULD, IN ESSENCE, REQUIRE THE AGENCY TO ISSUE A FINAL
 DECISION AS TO PROPOSED CORRECTIVE ACTION WITHIN TWO WEEKS OF THE FACT
 FINDER'S REPORT, "OTHERWISE THE DECISION OF THE FACT-FINDER SHALL BE
 FINAL." HOWEVER, INASMUCH AS THE UNION'S PROPOSAL SET FORTH ABOVE, AS
 LAST PRESENTED TO THE AGENCY AND AS CURRENTLY BEFORE THE AUTHORITY,
 CONTAINS NO SUCH PROVISION, THE AUTHORITY FINDS THAT ANY DISPUTE BETWEEN
 THE PARTIES AS TO THE NEGOTIABILITY OF THAT PROVISION HAS BEEN RENDERED
 MOOT AND THEREFORE WILL NOT BE FURTHER CONSIDERED HEREIN.
 
    /2/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /3/ THE AGENCY CLAIMS THE PROPOSAL IS ONLY PERMISSIVELY NEGOTIABLE
 BECAUSE IN EFFECT IT WOULD REQUIRE THE AGENCY TO ISSUE A REGULATION
 PURSUANT TO AUTHORITY GRANTED UNDER 5 U.S.C. 7513(C) WHICH PROVIDES
 THAT:  "AN AGENCY MAY PROVIDE, BY REGULATION, FOR A HEARING .  . . . "
 EVEN ASSUMING THE AGENCY WOULD HAVE TO ISSUE A REGULATION TO IMPLEMENT
 THE PROPOSED PROCEDURE, THE CONCLUSION IT DRAWS FROM THIS CIRCUMSTANCE,
 I.E., THAT THE QUOTED PROVISION GRANTING DISCRETION TO THE AGENCY LIMITS
 ITS DUTY TO BARGAIN UNDER THE STATUTE, IS UNSUPPORTED.  ON THE CONTRARY,
 IT IS FIRMLY ESTABLISHED THAT, EXCEPT WHERE PROVIDED OTHERWISE BY LAW OR
 REGULATION, TO THE EXTENT THAT AN AGENCY HAS DISCRETION OVER A MATTER
 AFFECTING THE CONDITIONS OF EMPLOYMENT OF ITS EMPLOYEES, THAT MATTER IS
 WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 8 FLRA NO.  87(1982).  SEE ALSO AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, MEAT GRADERS COUNCIL, AFL-CIO AND
 DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND QUALITY SERVICE, MEAT GRADING
 BRANCH, WASHINGTON, D.C., 8 FLRA NO. 25(1982) AT NOTE 9.