[ v17 p318 ]
The decision of the Authority follows:
17 FLRA No. 45 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 615 Union and NATIONAL PARK SERVICE, SEQUOIA AND KINGS CANYON NATIONAL PARKS, U.S. DEPARTMENT OF INTERIOR Agency Case No. O-NG-761 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 determinations. 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 FPM. 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 FPM. /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 to: 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 itself.