[ v26 p192 ]
The decision of the Authority follows:
26 FLRA No. 22 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SECURITY GUARD LOCAL R4-19 PORTSMOUTH, VIRGINIA Union and NORFOLK NAVAL SHIPYARD Activity Case No. 0-AR-1187 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator William M. Edgett filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. /*/ II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this matter concerns the Activity's five-day suspension of the grievant. The grievant, a guard in the Activity's Police Protection Branch, was suspended because, while on duty at the Activity's main gate, he refused to give directions to a naval petty officer who was to report for duty the next day and ordered the petty officer to leave the base. A grievance over the suspension was filed and submitted to arbitration. At arbitration the Union alleged the Activity did not adhere to the procedural requirements of the parties' agreement, specifically Article 21, section 2. Article 21, section 2 of the parties' agreement provides that: (1) preaction investigations must be initiated within 10 working days of the alleged incident or within 10 working days after the charging party becomes aware of the incident; and (2) disciplinary actions must be initiated within 10 working days after completion of the preaction investigation. As his award, the Arbitrator sustained the grievance and directed the Activity to reimburse the grievant for any monetary loss resulting from the suspension. First, the Arbitrator found that the investigation was initiated within 10 working days of the time the petty officer filed his written report and was timely under Article 21, section 2. Second, he found that the disciplinary action was untimely under Article 21, section 2 because it was not initiated within 10 working days after completion of the preaction investigation. The Arbitrator reasoned that in agreeing to these time limits the parties understood the consequence of failure to adhere to them would be the reversal of an improper disciplinary action and that the Activity's untimeliness constituted harmful error. Moreover, the Arbitrator found that the Agency's regulations, NAVSHIPYDNOR Instruction 12750.3A, also provided for timeliness in disciplinary actions and that the Activity, by its delay, had failed to comply with its own regulations. The Arbitrator concluded that the action against the grievant was procedurally defective and did not meet the just cause standard of the parties' agreement. III. EXCEPTION The Activity contends the award is contrary to section 7106(a)(2)(A) of the Statute. In support of its contention the Activity argues that the award enforces an agreement provision in such a way as to prevent the Activity from exercising its right under section 7106(a)(A) of the Statute to discipline the grievant solely because the disciplinary action was not initiated within the contractual limitations. IV. ANALYSIS AND CONCLUSION We conclude that the Activity's exception fails to establish that the Arbitrator's award is deficient. In National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of the Interior, 17 FLRA 318 (1985), aff'd. sub. nom. NFFE Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986), the Authority addressed the question of whether a contractual statute of limitation denied an agency its authority to exercise its rights under section 7106 of the Statute. In that case the Authority found a union proposal, which set a 60 day time limit on the initiation of investigations of incidents which might lead to disciplinary action, to be outside the duty to bargain because the time limit, if enforced, would have prevented the agency from exercising its right to discipline employees under section 7106(a)(2)(A). Id. at 321. See also American Federation of State, County and Municipal Employees, Local 2478 and U.S. Commission on Civil Rights, 24 FLRA No. 10 (1986); 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, 755 (1985). In Immigration and Naturalization Service and American Federation of Government Employees, Local 505, 22 FLRA No. 70 (1986), the Authority applied its decision in Sequoia and Kings Canyon National Parks in resolving an exception to an arbitrator's award. In that case, the Immigration and Naturalization Service (INS) had filed exceptions to an arbitrator's award asserting that under the Authority's decision in Sequoia and Kings Canyon National Parks, the award was contrary to management's right to take disciplinary action under section 7106(a)(2)(A). The collective bargaining agreement provided that employees would be given notices of proposed disciplinary action at the earliest practicable date after the alleged offense had been committed and made known to the agency. In resolving the exceptions, the Authority rejected INS's reliance on Sequoia and Kings Canyon National Parks, stating: In this case, the Agency was in no manner prevented by a statute of limitation provision from investigating the alleged incident of misconduct and from acting to propose and suspend the grievant for 5 days. Instead, as stated by the Arbitrator, this case involves review of final disciplinary action to determine whether the Agency's eight-month delay in imposing discipline resulted in an action which was arbitrary, capricious, and unreasonable and which did not promote the efficiency of the service. As noted, the Arbitrator determined that the suspension of the grievant had resulted in such an unwarranted disciplinary action and on that basis ruled that the suspension was not for just and sufficient cause. We conclude that such an award is not precluded by the decision in Sequoia and Kings Canyon National Parks and that therefore the Agency's argument provides no basis for finding the award deficient. Immigration and Naturalization Service, slip op. at 4. In Sequoia and Kings Canyon National Parks the Authority emphasized that the proposal at issue was outside the duty to bargain because preventing the initiation of an investigation would, in some circumstances, prohibit the agency from acting at all. By contrast, in Immigration and Naturalization Service the Authority emphasized that the issue before it was the arbitrator's review of a final disciplinary action in which the arbitrator found that the agency's extraordinary delay in imposing discipline rendered the discipline arbitrary, capricious and unreasonable and not for just cause. In Immigration and Naturalization Service the Authority also emphasized that the agency was not precluded from investigating the proposed misconduct and from acting to propose and execute discipline. Moreover, in Immigration and Naturalization Service, the arbitrator based his award on applicable agency regulations, the statutory language of 5 U.S.C. Section 7503, and the parties' collective bargaining agreement which all contained provisions for timeliness. Immigration and Naturalization Service, slip op. at 1-2. Likewise, in this case, the Arbitrator based his award on the limitation provision of the parties' collective bargaining agreement and on the Agency's regulations: The agency did not comply with its own regulations, nor did it comply with the procedural requirements of the agreement. Award at 7. In both cases, management was subject to a timeliness limitation in its own regulations as well as the collective bargaining agreement. Further, in this case, as in Immigration and Naturalization Service, the Arbitrator concluded that the disciplinary action taken against the grievant was not for just cause under the parties' agreement. We conclude based on the Authority's decision in Immigration and Naturalization Service and contrary to the Activity's argument, that the Arbitrator's award in this case does not violate management's right to discipline under section 7106(a)(2)(A) of the Statute. V. DECISION For these reasons, the Activity's exception is denied. Issued, Washington, D.C., March 13, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In its opposition, the Union contends the Activity's exception was untimely. However, we have determined that the exception was timely filed under sections 2425.1 and 2429.22 of the Authority's Rules and Regulations.