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17:0318(45)NG - NFFE Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, Interior -- 1985 FLRAdec NG

[ v17 p318 ]
The decision of the Authority follows:

 17 FLRA No. 45
                                            Case No. O-NG-761
    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 raises issues
 concerning the negotiability of two provisions of a negotiated agreement
 which were disapproved by the Agency head pursuant to section 7114(c) of
 the Statute.  Upon careful consideration of the entire record, including
 the parties' contentions, the Authority makes the following
                                Provision 1
    1.  Article XII, Section 8:
          A. In the interest of effective employee utilization, details
       to positions or work assignments requiring higher or different
       skills will be based upon bonafide needs and will be consonant
       with the spirit and intent of this Article, applicable regulations
       and the merit system.  Details may be used to meet emergency
       situations, or situations occasioned by abnormal workload, changes
       in mission or organization, or absences of personnel.
                                .  .  .  .
          C. The detail into a higher level or different line of work
       procedure shall not be utilized to afford certain employees an
       undue opportunity to gain qualifying experience or to prevent
       others from gaining such experience.
    Subsection A of Provision 1 expressly limits management's ability to
 assign specified types of work to bargaining unit employees to certain
 prescribed circumstances.  That is, employees may only be assigned work
 requiring higher level or different skills in the listed situations.  In
 this regard, subsection A is to the same effect as the proposal,
 limiting the assignment of "non-nursing functions" to nurses only to
 "urgent or needful situations," which was before the Authority in New
 York State Nurses Association and Veterans Administration Medical
 Center, Bronx, New York, 11 FLRA 578 (1983).  In that case the Authority
 found the proposal to be inconsistent with the management right,
 pursuant to section 7106(a)(2)(B) of the Statute, "to assign work,"
 Hence, based on Veterans Administration Medical Center, Bronx, and the
 reasons and case cited therein, subsection A of Provision 1 is outside
 the duty to bargain.
    As to the Union's contention that subsection A of Provision 1 is
 merely intended to require management's compliance with provisions of
 the Federal Personnel Manual (FPM) governing details, the Authority
 notes that subsection A does not reflect the limitations imposed by
 subchapter 8 of FPM chapter 300 upon management's use of details.  In
 this regard, subsection A requires that details be limited to "emergency
 situations" and several other described circumstances.  The FPM,
 however, in addition to "emergency details," /1/ provides for the use of
 details in other circumstances.  Specifically, details may be used
 pending official assignment, pending description and classification of a
 new position, pending security clearance, and for training purposes,
 especially where the training is part of an established plan.  /2/
 Consequently, subsection A of Provision 1 imposes stricter limitations
 on management's ability to detail employees than those prescribed by the
    Contrary to the Agency's view, subsection C of Provision 1 is not
 inconsistent with its right "to assign." /3/ Rather, the Union asserts
 with regard to this disputed subsection:
          The Union acknowledges that management has the right to select
       employees for details based on "the unique skills and personal
       attributes appropriate for such a detail." We seek only to prevent
       undue advantage for some employees.  /4/ (Footnote added.)
 Further, the Union contends that subsection C is intended to prevent the
 prohibited personnel practices enumerated in 5 U.S.C. 2302(b)(6).  /5/
 Thus, in view of the Union's explanation of subsection C, which is
 consistent with its plain language, the Authority concludes that this
 subsection does not restrain management's ability to detail.  Rather,
 the subsection is negotiable because it establishes a general,
 nonquantitative requirement by which management's exercise of its right
 to assign work could subsequently be evaluated in a grievance proceeding
 brought by an employee who believes he or she has been adversely
 affected by the exercise of that right.  In American Federation of
 Government Employees, AFL-CIO, International Council of U.S. Marshals
 Service Locals and U.S. Department of Justice, U.S. Marshals Service, 8
 FLRA 268 (1982), Union Proposal 5, prohibiting assigning employees as a
 reward or penalty or effecting such assignments in an arbitrary or
 capricious manner, was found by the Authority to constitute a general,
 nonquantitative requirement and was determined to be negotiable.  In
 like manner, subsection C herein constitutes a procedure, within the
 meaning of section 7106(b)(2) of the Statute, to be followed by
 management in exercising its right to assign employees.  /6/
                                Provision 2
          Investigation of the incident for which a disciplinary action
       may be taken, if at all, will normally be initiated within sixty
       (60) days after the incident in question, or within sixty (60)
       days after the Employer becomes aware of the incident.
    With regard to Provision 2, the Union explains " . . . the proposal
 clearly states that if management intends to investigate an incident for
 which disciplinary action may be taken, such investigation must normally
 be initiated within sixty (60) days after the alleged incident." /7/
 Further, the Union asserts that the Provision "includes the caveat
 'normally' to allow management the authority to exceed the sixty (60)
 days limit in extraordinary cases when it is necessary to do so." /8/
 Thus, Provision 2 establishes a contractual "statute of limitations"
 upon the Agency's ability to investigate incidents which may result in
 the disciplining of employees, i.e., except in "extraordinary"
 circumstances, since an investigation, if it is to be undertaken at all,
 must be initiated within the prescribed period.  While there is no legal
 or regulatory requirement that an investigation be the condition
 precedent to the imposition of discipline, the standard of proof
 management must meet, i.e., a "preponderance of the evidence," /9/ to
 prevail upon appellate review of an adverse action, makes a thorough
 investigation the necessary precursor to disciplinary action in most
 instances.  Moreover, FPM chapter 752 subchapter 3-3.1(2) contemplates
 that documentation upon which an agency bases its decision to impose
 discipline may include, inter alia, statements of witnesses, affidavits,
 and investigative reports or extracts from such reports.  Thus, it is
 clear that in many situations investigations are the essential first
 step to disciplinary action and preventing the initiation of
 investigations, as would Provision 2 upon expiration of the prescribed
 period of time, effectively precludes the imposition of discipline.
 /10/ Consequently, Provision 2 is outside the duty to bargain in that it
 would, in certain circumstances, prevent the Agency from acting at all
 with respect to its right to take disciplinary action against employees
 pursuant to section 7106(a)(2)(A) of the Statute.  See National Treasury
 Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Union
 Proposal I).
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review, as it relates
 to subsection A of Provision 1 and Provision 2, be, and it hereby is,
 dismissed.  IT IS FURTHER ORDERED that the Agency shall rescind the
 disapproval of subsection C of Provision 1 which was bargained on and
 agreed to by the parties.  Issued, Washington, D.C., March 26, 1985
                                       Henry B. Frazier, Acting Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ FPM chapter 300.8-3.a provides:
          (1) Emergency details.  To meet emergencies occasioned by
       abnormal workload, special projects or studies, change in mission
       or organization, or unanticipated absences.
 Subsection A, therefore, would effectively limit details only to most,
 but not all, of the situations defined as emergencies by the governing
    /2/ FPM chapter 300.8-3a(2).
    /3/ Presumably, the Agency's use of this term is intended to convey
 that subsection C of Provision 1 is inconsistent with its rights,
 pursuant to section 7106(a)(2)(A) and (B) of the Statute to assign
 employees and to assign work.  However, the assertion of either or both
 of those management rights does not alter the Authority's determination
 with respect to subsection C.
    /4/ Union Reply Brief at 3.
    /5/ Under 5 U.S.C. 2302(b)(6), it is a prohibited personnel practice
          grant any preference or advantage not authorized by law, rule,
       or regulation to any employee or applicant for employment . . .
       for the purpose of improving or injuring the prospects of any
       particular person for employment(.)
    /6/ In finding subsection C of Provision 1 within the duty to
 bargain, the Authority makes no judgment as to its merits.
    /7/ Union Reply Brief at 4.
    /8/ Petition for Review at 2.
    /9/ 5 U.S.C. 7701(c)( 1)(B).
    /10/ It is pertinent to note that under law or regulation there is no
 time limit imposed on the initiation of investigations leading to the
 imposition of discipline or upon the initiation of disciplinary action