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24:0512(57)NG - AFGE Local 1931 and Navy, Naval Weapons Station, Concord, CA -- 1986 FLRAdec NG

[ v24 p512 ]
The decision of the Authority follows:

 24 FLRA No. 57
                                            Case No. 0-NG-1246
                         I.  Statement of the Case
    The petition for review on 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 the followiny Union Proposal.  We find
 that this proposal is nonnegotiable.
                            II.  Union Proposal
    Based upon the concept of prompt investigation of the alleged
 offense, supervisors will initiate the disciplinary action within
 fifteen calendar days of the alleged offense, or the date he/she becomes
 aware of the alleged offense.  A Disciplinary Investigation Report will
 be completed prior to formally proposing disciplinary action.
 Exceptions to the 15-day limit may be made under circumstances that are
 beyond the Employer's control.
                       A.  Positions of the Parties
    The Agency contends that on December 3, 1985, during proceedings
 before the Federal Service Impasses Panel (FSIP), it notified the FSIP
 and served the Union with a determination that the above proposal was
 nonnegotiable.  The Agency argues that since the Union did not file an
 appeal of the determination with the Authority until March 11, 1986, the
 appeal is untimely and should be dismissed.  The Agency also argues that
 this proposal precludes the imposition of discipline if the 15-day time
 frame set out in the proposal is exceeded.  Thus, the Agency claims that
 the proposal violates section 7106(a)(2)(A) of the Statute because it
 prevents the Agency from acting at all with respect to its right to take
 disciplinary action.
    The union claims that it computed the time limits for filing its
 appeal from January 3, 1986, the date it requested a written allegation
 from the Agency, not from December 3, 1985, the date the Agency served
 the Union with an unsolicited allegation during FSIP proceedings.  The
 Union also states that this proposal incorporates into the agreement the
 well-established concept of timely discipline.  This avoids delays which
 may prejudice an employee's ability to defend himself.  Further, the
 Union asserts that the proposal does not infringe upon management's
 rights because the clause "exceptions to the 15-day limit may be made
 under circumstances that are beyond the employer's control" expressly
 permits reasonable extensions of time.  In the alternative, the Union
 claims that the proposal is either a procedure under section 7106(b)(2)
 or an appropriate arrangement under section 7106(b)(3).
                        B.  Analysis and Conclusion
    As to the procedural issue, it is well established that a union is
 not required to file a petition for review in response to an allegation
 of nonnegotiability made by an agency in the context of a FSIP
 proceeding.  Rather, the union may ignore such unsolicited allegation
 and instead elect to request in writing a written allegation of
 nonnegotiability from the Agency.  See International Brotherhood of
 Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury,
 Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982).
 If the union elects to request an allegation from the agency, the union
 must file its petition for review of such allegation within the time
 limits established in section 2424.3 of the Authority's Rules and
 Regulations.  In this case, during FSIP proceedings, the Agency on
 December 3, 1985, notified the Panel that certain proposals, including
 the proposal in dispute, were nonnegotiable and served such allegation
 to the Union.  The Union, as it is permitted to do, ignored this
 unsolicited December 3, 1985 allegation and instead on January 3, 1986,
 requested a written allegation of nonnegotiability from the Agency.  The
 Agency did not respond to such request and the Union filed its appeal
 with the Authority on March 11, 1986.  It is also well established that
 where an agency fails to respond to a request for a negotiability
 allegation the union may file a petition for review with the Authority
 without regard to the time limits set out in the Authority's Rules and
 Regulations.  American Federation of Government Employees, AFL-CIO,
 Local 2494 and Strategic Weapons Facility Pacific, Bremerton,
 Washington, 7 FLRA 590 (1982);  National Treasury Employees Union and
 NTEU Buffalo District Joint Council and Internal Revenue Service,
 Buffalo District, 3 FLRA 337 (1980).  Thus, since the Agency in this
 case did not respond to the Union's January 3, 1986, written request for
 a written allegation of nonnegotiability, the Union's appeal filed on
 March 11, 1986, is timely.
    We turn now to the proposal, which expressly prohibits the Agency
 from taking any disciplinary action against employees for offenses which
 occurred more than fifteen calendar days earlier or more than fifteen
 days after the supervisor became aware of the offense, except when
 circumstances are beyond the employer's control.  In our opinion, this
 proposal 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).  The provision in Sequoia required that investigation of
 incidents for which disciplinary action may be taken would normally be
 initiated within 60 days of the incident or within 60 days after the
 Agency became aware of the incident.  The Authority determined that the
 60-day time limit constituted a contractual "statute of limitation"
 beyond which the Agency was precluded from investigating incidents for
 which employees could be disciplined.  Thus, the Authority concluded
 that the provision would, in certain circumstances, prevent the Agency
 from acting at all with respect to its right under section 7106(a)(2)(A)
 to discipline 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 proposal in this case, likewise, would
 establish a contractual limitation which would prevent the Agency from
 disciplining employees in certain circumstances when the 15-day period
 was exceeded.  Thus, this proposal substantively interferes with
 management right's and does not constitute a negotiable procedure within
 the meaning of section 7106(b)(2) of the Statute.  See American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
 enforced as to other matters sub nom. Department of Defense v. FLRA, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
 945 (1982).
    Likewise, the proposal is not an appropriate arrangement under
 section 7106(b)(3).  The proposal would completely bar discipline if the
 15-day period was exceeded.  Such total abrogation of management's right
 to act in this regard excessively interferes with management's right to
 discipline and, therefore, is not an appropriate arrangement within the
 meaning of section 7106(b)(3) of the Statute.  See American Federation
 of Government Employees, Local 1799 and Department of the Army, Aberdeen
 Proving Ground, Maryland, 22 FLRA No. 62, slip op. at 6 (1986).
    For the reasons given here and in the cases cited in the analysis,
 the Union's Proposal is outside the duty to bargain.
                                III.  Order
    The Union's petition is dismissed.
    Issued, Washington, D.C., December 17, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       Federal Labor Relations Authority