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39 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 3732

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

UNITED STATES MERCHANT MARINE ACADEMY

KINGS POINT, NEW YORK

(Agency)

O-NG-1558

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of nine provisions of a negotiated agreement disapproved by the Department of Transportation under section 7114(c) of the Statute.

Provision 1 establishes a salary schedule for bargaining unit employees. Provision 2 requires that discipline be administered in a progressive manner. Provisions 3 and 8 require that disciplinary and adverse actions normally be initiated within a specified time period. Provision 4 requires the Agency to provide employees with a written decision on a proposed adverse action normally not later than 45 days after receipt of the employee's reply to the proposed adverse action. Provisions 5, 6, and 7 establish an ad hoc faculty review committee to review and make recommendations to the deciding official concerning proposed removal actions against bargaining unit employees. Provision 9 concerns procedures for, and limits on, the use of supervisory notes to support disciplinary and adverse actions.

We find Provisions 1, 4, 5, 6, and 7 and subsection a of Provision 9 to be negotiable. Provision 2 is nonnegotiable because it excessively interferes with management's rights under section 7106(a)(2)(A) to discipline and remove employees. Provisions 3 and 8 are nonnegotiable because they directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Subsections b, c, and d of Provision 9 are nonnegotiable because they excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

II. Provision 1

Article 13, Faculty Salary

Section 1. The U.S. Merchant Marine Academy Faculty Salary Schedule shall be the same as the Faculty Salary Schedule at the U.S. Naval Academy with the exception of the first six steps of the Professor Scale (Steps 25 to 30).

Section 2. Movement to the upper salary category from the last step of the lower salary category in each rank shall be granted provided the employee's performance has been satisfactory during each of the three previous years.

Section 3. On [p]romotion to a higher academic rank, a faculty member will be advanced three steps on the faculty salary schedule or to the lowest step of the higher rank, whichever is greater, in addition to any annual step increase to which otherwise entitled.

A. Positions of the Parties

1. The Agency

The Agency notes first that members of the faculty of the U.S. Merchant Marine Academy are paid pursuant to Section 1308(d) of the Maritime Education and Training Act of 1980 (META), Pub. L. No. 96-453, 94 Stat. 1997, 2007 (codified at 46 U.S.C. App. 1295g(d)), which provides as follows:

To carry out this title, the Secretary [of Transportation] may employ at the Academy any individual as a professor, lecturer, or instructor, without regard to the provisions of title 5, United States Code (governing appointments in the competitive service), and may pay such individual without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title (relating to classification and General Schedule pay rates).

The Agency contends that the legislative history of section 1308(d) of the META and the legislative history of section 216(e) of the Merchant Marine Act of 1936, which was replaced by section 1308(d) of the META, require the Agency to provide a compensation system for faculty at the U.S. Merchant Marine Academy similar to that provided faculty at the U.S. Naval Academy and appropriate to the requirements of an accredited educational institution. The Agency claims that "[i]n keeping with this legislative intent, [it] has . . . designed a pay system which, while similar to that of the Naval Academy, is tailored to the needs of the U.S. Merchant Marine Academy and which is appropriate to the requirements of an accredited educational institution." Statement of Position at 2.

The Agency also contends that except for those employees who are covered by the statutory prevailing rate system and who are, thereby, permitted to bargain over pay by section 9(b) of Public Law 92-392 (reprinted in 5 U.S.C. º 5343 note) and section 704 of the Civil Service Reform Act of 1978, matters concerning pay and pay practices of Federal employees are outside the duty to bargain under the Statute. The Agency claims, in this regard, that the United States Court of Appeals for the Third Circuit, in Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988) (Military Sealift Command), held that the subject of pay for Federal employees is not negotiable under the Statute because unlike other statutes, such as the National Labor Relations Act, which expressly include the subject of pay within the duty to bargain, the Statute makes no specific reference to pay as being a matter subject to negotiation.

Further, according to the Agency, the Third Circuit's reasoning in Military Sealift Command was subsequently adopted by the United States Court of Appeals for the District of Columbia Circuit in Department of the Treasury, Bureau of Engraving and Printing v. FLRA, 838 F.2d 1341 (D.C. Cir. 1988) (per curiam) (Bureau of Engraving and Printing). Based on those court decisions, the Agency contends that Provision 1 is nonnegotiable.

The Agency rejects the Union's claims that Provision 1: (1) incorporates the procedures for determining the pay of the civilian faculty of the Merchant Marine Academy set out in the META and implementing Agency regulations; and (2) was formulated and maintained throughout proceedings before the Federal Service Impasses Panel. The Agency argues that these claims "are both factually incorrect and irrelevant to the issue of negotiability." Statement of Position at 3.

The Agency notes that section 1308(d) of the META "authorizing the setting of pay at the Academy does not contain any specific guidelines as to the salary schedule, and therefore [Provision 1] reflects no legislative requirement." Id. In addition, the Agency states that the proposed pay schedule has not been adopted by the Agency and is, therefore, not part of Agency regulations. Finally, the Agency rejects the Union's statement that Provision 1 was formulated and maintained throughout proceedings before the Federal Service Impasses Panel. The Agency claims that its ability "to unilaterally modify the pay schedule at the [Merchant Marine] Academy is the central issue with respect to the negotiability question, not whether a proposal reflects management's pay policy at any given time." Id. at 3-4.

2. The Union

The Union contends that Provision 1 is intended "to incorporate into the [collective bargaining] agreement what is essentially set forth in the legislation and regulations of the agency authorizing the setting of faculty salary at the Merchant Marine Academy." Petition for Review at 2. The Union argues, based on portions of the legislative history of section 216(e) of the Merchant Marine Act of 1936, that Congress clearly intended the Secretary of Transportation to pay faculty at the Merchant Marine Academy in the same manner as the civilian faculty at the U.S. Naval Academy are paid.

According to the Union, Provision 1 "incorporates the intent of the law . . . that the faculty of the Merchant Marine Academy will be paid according [to the] manner in which the faculty is paid at the U.S. Naval Academy." Reply Brief at 20. The Union asserts, therefore, that Provision 1 does not concern the negotiation of employee salaries, but rather, reflects the Union's intention to satisfy the requirement that members of the faculty of the Merchant Marine Academy be placed in the same status as civilian faculty members of the U.S. Naval Academy. The Union asserts, in this regard, that the Agency's action in adopting essentially the same pay practice as is set forth in Provision 1 shows the Agency's recognition of its obligation to pay faculty at the Merchant Marine Academy in the same manner as faculty at the U.S. Naval Academy are paid.

Alternatively, the Union contends that even if Provision 1 concerns the negotiation of pay, Provision 1 is still negotiable under Authority precedent because it does not concern matters specifically provided for by law. In support of its position, the Union relies on a number of Authority decisions including American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986) (Chairman Calhoun dissenting) (Eglin Air Force Base).

B. Analysis and Conclusions

For the reasons discussed below, we find that Provision 1 is within the duty to bargain.

In our decision in American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894 (1990) (Air Logistics Center), we noted that the Authority applies a basic analytical framework to negotiability questions that are presented to it, including those involving wages and fringe benefits. We stated that under the Statute, parties are obligated to bargain over proposals concerning conditions of employment, provided that the proposals do not violate law, Government-wide regulation, or an agency regulation for which there is a compelling need. Conditions of employment are defined as personnel policies, practices, and matters--whether established by rule, regulation, or otherwise--affecting working conditions. 5 U.S.C. º 7103(a)(14). Matters which are specifically provided for by Federal statute are excluded from the definition of conditions of employment. 5 U.S.C. º 7103(a)(14)(C).

In Air Logistics Center, we also stated that the Supreme Court upheld the Authority's determination that proposals concerning pay and fringe benefits concern "conditions of employment" in circumstances where pay and fringe benefits are not specifically provided for by statute. Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990) (Fort Stewart). In Fort Stewart, the Court held that the Authority's determination that three proposals involving mileage reimbursement, leave, and salary increases concerned "conditions of employment" within the meaning of section 7103 of the Statute.

In reaching its conclusion, the Court rejected the argument, also advanced by the Agency in this case, that the absence of a specific reference to pay matters being included within the duty to bargain in the Statute indicated that Congress intended pay matters to be excluded from the duty to bargain under the Statute. The Court stated that other statutes expressly authorizing bargaining over pay "deal with labor-management relations in entirely different fields of employment, and the [Statute] contains no indication that it is to be [construed together] with them." 110 S. Ct. at 2047. The Court also found that statements in the legislative history of the Statute indicating that wage and fringe benefits would not be subject to bargaining "may reflect nothing more than the speakers' incomplete understanding of the world upon which the [S]tatute will operate." Id. at 2049. Consistent with the Court's decision in Fort Stewart, we reject the Agency's contention that all matters related to pay and pay practices are outside the duty to bargain under the Statute.

Further, applying the analytical framework discussed above, we find nothing in section 1308(d) of the META of 1980, or in its legislative history, which mandates the establishment of specific pay rates for Merchant Marine Academy faculty. We note in this regard, that in rejecting the Union's claim that Provision 1 merely incorporated pay setting requirements set out in section 1308(d), the Agency stated that "the statute authorizing the setting of pay at the Academy does not contain any specific guidelines as to the salary schedule[.]" Statement of Position at 3.

Consequently, we find that under section 1308(d) of the META, the Agency has the discretion to establish a pay system for Merchant Marine Academy employees so long as the pay system is similar to the pay system provided faculty at the U.S. Naval Academy and is appropriate to the requirements of an accredited educational institution. We note that the Agency does not claim that Provision 1 would establish a pay system: (1) dissimilar to the pay system provided faculty at the U.S. Naval Academy; or (2) inappropriate to the requirements of an accredited education institution. Nor does the Agency claim that Provision 1 otherwise violates law, rule, or regulation. Therefore, we conclude that as pay and pay procedures for faculty of the Merchant Marine Academy are not specifically provided for by statute, but are left to the Agency's discretion, Provision 1 is within the duty to bargain.

Finally, in concluding that Provision 1 is within the Agency's duty to bargain, we find that the Agency's reliance on the courts' decisions in Military Sealift Command and Bureau of Engraving and Printing to support its claim that Congress intended to exclude matters relating to pay and pay matters from the duty to bargain under the Statute is misplaced.

Military Sealift Command concerned wages established under 5 U.S.C. º 5348 for civilian mariners in the Department of the Navy, Military Sealift Command. The court first found that the Navy had been vested with the discretion by Congress to set the wages of the civilian mariners under 5 U.S.C. º 5348 which provides that "the pay of officers and members of crews of vessels . . . shall be fixed and adjusted from time to time as nearly as is consistent with the pubic interest in accordance with prevailing rates and practices in the maritime industry." The court found, however, that the language and legislative history of the Statute indicated "that Congress did not intend to subject the pay of Federal employees to collective bargaining under the . . . Statute." 836 F.2d at 1419. Consequently, the court concluded that the Navy's discretion to establish the wages of civilian mariners was not subject to collective bargaining under the Statute. 836 F.2d at 1420.

Bureau of Engraving and Printing concerned the pay of certain employees of the Bureau of Engraving and Printing determined under 5 U.S.C. º 5349. In Bureau of Engraving and Printing, the court noted first that the case before it was "not rationally distinguishable from" Military Sealift Command. 838 F.2d at 1342. The court stated that 5 U.S.C. º 5349, requiring that the wages of prevailing rate employees in the Bureau of Engraving and Printing be established "consistent with the public interest," was nearly identical to the language of 5 U.S.C. º 5348. The court concluded:

The reasoning of the Third Circuit with regard to the Navy, civilian mariners, and 5 U.S.C. º 5348 fully applies to . . . electricians in the Bureau of Engraving and Printing, and 5 U.S.C. º 5349. We find the Third Circuit's analysis of the statutory language and history entirely persuasive and we adopt that court's reasoning as our own.

838 F.2d at 1343. Consequently, the court reversed the Authority's decision requiring the Department of Treasury to bargain over the wages of electricians in the Bureau of Engraving and Printing.

This case does not concern pay fixing under either 5 U.S.C. º 5348 or º 5349. Rather, as noted above, pay fixing for the faculty at the Merchant Marine Academy is within the discretion of the Agency under section 1308(d) of the META. Moreover, in our view, the court's analysis of the legislative history of the Statute in Military Sealift Command, which was subsequently adopted by the court in Bureau of Engraving and Printing, is no longer valid in view of the Supreme Court's decision in Fort Stewart. Accordingly, we reject the Agency's claim that Military Sealift Command and Bureau of Engraving and Printing support a conclusion that Congress intended to exclude matters relating to pay and pay matters from the duty to bargain under the Statute.

In summary, we conclude that as pay and pay procedures for faculty of the Merchant Marine Academy are not specifically provided for by statute, but, rather, are left to the Agency's discretion under section 1308(d) of the META, Provision 1 is within the duty to bargain.

III. Provision 2

Article 22, Disciplinary and Adverse Actions

Section 2. General: An employee shall be subject to disciplinary/adverse actions whenever it is warranted by the employee's conduct or unsatisfactory performance. Such actions shall be taken only for just and sufficient cause as shall promote the efficiency of the service and will be administered in a constructive, progressive, consistent, reasonable and timely manner. Nothing in this Article is meant to infringe upon management's statutory right to remove an employee as a result of an egregious offense for which removal is provided.

A. Positions of the Parties

1. The Agency

The Agency contends that because Provision 2 requires disciplinary and adverse actions to be administered in a progressive manner, it violates management's right to discipline employees under section 7106(a)(2)(A) of the Statute. In support of its position, the Agency relies on International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Bureau of Engraving and Printing) (Provision 22) and American Federation of Government Employees, AFL-CIO, Local 2786 and Defense Mapping Agency, 20 FLRA 193 (1985) (Defense Mapping Agency) (Provision 1).

The Agency also objects to the portion of the provision which permits the Agency to remove an employee, as an exception to the requirement to impose discipline in a progressive manner, only if the employee commits an egregious offense and then only if the offense is one for which removal is provided. According to the Agency, however, a removal action may be taken against an employee under 5 U.S.C. º 7513(a) "for such cause as will promote the efficiency of the service." The Agency notes that the question of whether an egregious offense has been committed concerns the determination of whether a presumption of nexus exists between off duty conduct and the efficiency of the service. Consequently, the Agency contends that by establishing criteria for removal actions beyond that required by 5 U.S.C. º 7513(a), Provision 2 is: (1) inconsistent with 5 U.S.C. º 7513(a); and (2) violative of the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Finally, the Agency claims that by prohibiting the removal of an employee, even for an egregious offense, unless removal is provided as a penalty for that offense, Provision 1 requires "the establishment of a Table of Penalties and Offenses." Statement of Position at 5. The Agency argues that because a Table of Penalties and Offenses is merely a guide in determining appropriate penalties, a limitation on the Agency's discretion to remove an employee for an egregious offense to only those offenses for which the penalty of removal is specified directly interferes with the Agency's rights under section 7106(a)(2)(A) of the Statute to discipline and remove employees.

2. The Union

The Union states that Provision 2 "is intended to provide routine and fair management procedures and due process in the administration of discipline[]" and to require "that management will normally follow fair procedures which also include exceptions to . . . 'progressive discipline' where circumstances require either a harsher than usual penalty or rapid removal of an employee from the workplace." Petition for Review at 2.

The Union argues that the wording in Provision 2 providing that disciplinary actions will be taken for "just and sufficient cause as shall promote the efficiency of the service and will be administered in a constructive, progressive, consistent, reasonable and timely manner[]" is consistent with provision 8, which was found negotiable in American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3 (1987) (Provision 8) (Office of the U.S. Attorney). According to the Union, "the Authority held that the terms 'just cause' and 'such cause as will promote the efficiency of the service' were synonymous." Reply Brief at 23 (footnote omitted). Thus, the Union claims that Provision 2 states general standards by which management will discipline employees.

The Union also alleges that Provision 2 is distinguishable from proposals found nonnegotiable by the Authority because they required progressive discipline. The Union claims that unlike the proposals found nonnegotiable by the Authority, Provision 2 "is drafted to specifically preserve management's flexibility to determine when and what discipline to apply." Id. at 24 (footnote omitted).

Finally, the Union contends, without elaboration, that to the extent that Provision 2 is found to be inconsistent with management rights, it is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

For the reasons that follow, we find that Provision 2 does not conflict with 5 U.S.C. º 7513(a). Nevertheless, we conclude that Provision 2 is nonnegotiable because it excessively interferes with management's rights under section 7106(a)(2)(A) of the Statute to remove or take other disciplinary actions against employees.

1. Provision 2 Does Not Conflict With 5 U.S.C. º 7513(a)

As stated above, the Agency claims that as Provision 2 precludes the removal of an employee unless the employee committed an egregious offense, the provision conflicts with 5 U.S.C. º 7513(a) because the provision establishes a criterion for removing employees beyond that required for removing employees in 5 U.S.C. º 7513(a). In our view, however, the Agency has misconstrued this portion of Provision 2.

That is, the record in this case establishes that by including the clause permitting the Agency "to remove an employee as a result of an egregious offense" as an exception to the requirement to impose discipline in a progressive manner, the Union merely intended to recognize the Agency's right to immediately remove employees from the workplace in circumstances where employees commit egregious offenses. See, Reply Brief at 11 (The Union stated "[w]ith respect to the provisions for 'progressive discipline' . . . [Provision 2] specifically provides for management's ability to immediately remove employees under the same circumstances as those provided by applicable statutes."). See also id. at 23. In this respect, we note that under 5 U.S.C. º 7513 an employee may be indefinitely suspended in circumstances where an agency has reasonable cause to believe the employee committed a crime for which a sentence of imprisonment may be imposed. See, for example, Dunnington v. Department of Justice, 36 MSPR 122 (1988). Among the examples of circumstances that will establish reasonable cause are certain egregious acts such as murder or national security offenses which are detrimental to the agency's mission and which are brought to the agency's attention by the media. Id. at 124.

Finally, we note that Provision 2 does not concern the standard the Agency must establish to justify a proposed removal action. That is, nothing in Provision 2 requires the Agency to establish anything more than a proposed removal is "for such cause as will promote the efficiency of the service." Rather, Provision 2 concerns the circumstances when the Agency may propose a removal action.

Consequently, we conclude that the Agency has not established that Provision 2 is inconsistent 5 U.S.C. º 7513.

2. Provision 2 Directly Interferes With the Agency's Rights to Remove or Take Other Disciplinary Actions

Provision 2 requires the Agency to administer discipline in, among other things, a progressive and consistent manner. It is apparent from the record that Provision 2 is intended to obligate the Agency to impose consistent penalties throughout the bargaining unit for particular offenses with subsequent offenses being subject to more stringent, but also consistent penalties. In addition, this provision would limit the Agency's discretion to remove an employee to situations where removal was consistent with progressive discipline or where the employee committed an egregious offense for which removal is listed as a penalty.

Restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 32-35 (1990) (Marine Corps Air Station, Cherry Point) (Provision 2, which limited the agency's choice of an appropriate disciplinary penalty to the minimum reasonably necessary expected to correct the employee, and required the agency to impose consistent disciplinary penalties for a particular offense throughout the bargaining unit, found to directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute); American Federation of Government Employees, Local 1770 and U.S. Department of the Army Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903, 906-07 (1990) (Fort Bragg) (proposal requiring management to consider only like offenses when determining whether an employee's actions constituted first, second or third offenses found to conflict with management's right to discipline under section 7106(a)(2)(A) because it limited management's discretion to determine the discipline that is warranted in individual cases).

Because Provision 2 limits the Agency's discretion to remove or take other disciplinary action it deems appropriate for a particular offense, the provision directly interferes with management's rights to remove or take other disciplinary action under section 7106(a)(2)(A) of the Statute. In addition, by requiring consistent penalties for particular offenses, the provision limits the Agency's discretion to tailor the discipline it deems appropriate based on the circumstances giving rise to the disciplinary action and, thereby, also directly interferes with management's rights to remove or take other disciplinary action under section 7106(a)(2)(A) of the Statute.

3. Provision 2 Is Not an Appropriate Arrangement

We note first that Provision 2 concerns employees who are removed or otherwise disciplined based on conduct or unsatisfactory performance warranting such actions. By requiring the Agency to impose discipline in a constructive, progressive, consistent, reasonable and timely manner and by restricting the Agency's right to remove employees, Provision 2 limits the Agency's discretion to determine the penalty it deems appropriate in each individual circumstance giving rise to a disciplinary action.

Provision 2's restrictions on the Agency's ability to remove employees or otherwise determine appropriate disciplinary penalties for employee misconduct constitute a benefit to employees. However, these employee benefits are obtained only through significant restrictions on the Agency's right to remove or take other disciplinary actions. In the circumstances of this case, we conclude that the limitations Provision 2 places on the penalties the Agency may impose for misconduct outweigh the benefits to employees and, thereby, excessively interfere with management's rights to remove or take other disciplinary action under section 7106(a)(2)(A) of the Statute. See also Marine Corps Air Station, Cherry Point, 36 FLRA at 35-36. Consequently, we find that Provision 2 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

IV. Provisions 3 and 8

[Provision 3]

Article 22, Disciplinary and Adverse Actions

Section 9: Processing of Adverse Action

a. The proposal of an adverse action, i.e., removal, suspension, reduction in grade or pay, or a furlough of thirty days or less, will be done in a timely manner, normally not more than thirty days after the employer becomes aware of the incident giving rise to the action.

[Provision 8]

Article 22, Disciplinary and Adverse Actions

Section 10: Processing Disciplinary Actions

a. Reprimand will be done in a timely manner, normally not more than 30 calendar days after the employer becomes aware of the incident giving rise to the action. Before a letter of reprimand is issued to an employee, the supervisor will meet with the employee and inform him/her of the nature of the offense being addressed by the reprimand. The employee will be given a reasonable time to respond.

A. Positions of the Parties

The Agency contends that Provisions 3 and 8 establish a contractual "statute of limitations" and, thus, violate the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. In support, the Agency cites American Federation of Government Employees, AFL-CIO, Local 2298 and Department of the Navy, Naval Weapons Station, Charleston, South Carolina, 26 FLRA 174 (1987) (Naval Weapons Station) and 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) (Provision 2) (Sequoia and Kings Canyon National Parks), affirmed sub nom. National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986).

As to Provision 3, the Union contends that it did not intend "to establish a contractual 'statute of limitations.'" Reply Brief at 24. Rather, according to the Union, Provision 3 is "intended to give timely notice of actions against the employee. It does not require that untimely actions be set aside." Id. at 4. The Union claims that "[i]n cases where management is remiss in making a timely notice within the thirty-day period, only those actions meeting the 'harmful error' rule . . . would cause any action to be set aside." Id. According to the Union, "the parties' use of the term 'normally' is intended to reflect this flexibility." Id. The Union concludes that the failure to comply with the time limits is not critical to the ultimate processing of the disciplinary action because such failure only "would possibly require the timely rerunning of the action." Id. at 38.

The Union contends that Provision 8 also does not interfere with management's right to discipline even if management fails to comply with the time limits. Rather, according to the Union, Provision 8 "ensures enough time to . . . inform the employee sufficiently in advance of any hearing or other consideration before a final decision is made[.]" Id. at 40. In addition, the Union argues that Provision 8 "keeps the rational connection between the act or incident used as the basis for the disciplinary action and the corrective action or punishment so as to have them reasonably related to each other." Id.

B. Analysis and Conclusions

Proposals establishing a time limit on management's ability to initiate disciplinary or adverse actions against employees have been held to directly interfere with management's right under section 7106(a)(2)(A) to discipline employees because such proposals establish a contractual "statute of limitations" which prevents management from disciplining employees after the time limit has expired. See American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ, 90th Combat Support Group, F.E. Warren AFB, Wyoming, 30 FLRA 1130 (1988) (Provision 6) (F.E. Warren AFB, Wyoming); Office of the U.S. Attorney, 29 FLRA 3 (Provisions 10 and 11); Joint Council of Unions, GPO and United States Government Printing Office, 25 FLRA 1033 (1987) (Proposal 2). Further, proposals requiring management to commence disciplinary investigations or to initiate disciplinary actions against employees normally within a specified time period also have been held nonnegotiable because they similarly establish a contractual "statute of limitations." See, for example, Naval Weapons Station and Sequoia and Kings Canyon National Parks.

In this case, Provision 3 requires that a proposed adverse action be taken "normally not more than thirty days after the [Agency] becomes aware of the incident giving rise to the action." Provision 8 requires that a reprimand be taken "normally not more than thirty calendar days after the [Agency] becomes aware of the incident giving rise to the action." We conclude, notwithstanding the Union's claim to the contrary, that like the proposals and provisions in the above-cited decisions, the time constraints contained in Provisions 3 and 8 establish a contractual "statute of limitations" and, thereby, directly interfere with the Agency's right under section 7106(a)(2)(A) to discipline employees. Therefore, as the Union does not contend that the provisions are appropriate arrangements, we find that Provisions 3 and 8 are outside the duty to bargain.

V. Provision 4

Article 22

Section f. An employee who has received notice of proposed adverse action under the provisions of this Article is entitled to a written decision and the reasons for the decision at the earliest possible date, normally not later than 45 days after the receipt of the employee's reply by management, but not later than three working days prior to the effective date of the adverse action. If no action is to be taken against the employee, a written statement withdrawing the advance notice will be given to the employee.

A. Positions of the Parties

The Agency contends that Provision 4 establishes a contractual "statute of limitations" within which management must take the steps necessary to effectuate adverse actions. Statement of Position at 6. Therefore, the Agency argues, the provision is nonnegotiable based on several Authority decisions, "as violative of management's rights under section 7106(a)(2)(A) of the Statute." Id. Based on the Union's explanation that a failure to meet the time limits in Provision 4 would mean that a new notice would be required, the Agency asserts that "management's authority to take final action on the initial proposed notice would be negated." Id. at 7. In addition, the Agency states that the proposed requirement to provide the affected employee with a decision no later than 3 working days prior to the effective date is nonnegotiable based on National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Eastern Mapping Agency).

The Union states that Provision 4 "requires only notification to the affected employee so the employee can have an adequate time to respond to the actions." Reply Brief at 25. The Union points out that "where the required notice is not timely made, a new notice would be required to be issued, refreshing all time limits for response." Id.

The Union also contends that Provision 4 is negotiable for the reasons stated concerning Provisions 1 through 3. Those reasons are set forth above.

B. Analysis and Conclusions

Provision 4 requires, in part, that a written decision be provided to the affected employee within 45 days after receipt of the employee's response to the notice of proposed adverse action. The Agency incorrectly characterizes that requirement as a contractual "statute of limitations." Statement of Position at 6.

Proposed contractual time limits have been held to be nonnegotiable where failure to meet those limits would result in an agency's inability to take any action at all with respect to a potential disciplinary matter. For example, in Sequoia and Kings Canyon National Parks, 17 FLRA 318, the Authority found Provision 2 to be nonnegotiable because it required that, if management intended to investigate an incident for which disciplinary action might be taken, that investigation had to be initiated within the prescribed time limits, if at all. Similarly, in F.E. Warren AFB, Wyoming, 30 FLRA at 1140-42, Provision 6 was found to be nonnegotiable because management's failure to serve a notice of proposed disciplinary or adverse action within the prescribed time limit would have precluded the imposition of disciplinary or adverse action. See also our discussion of Provisions 3 and 8 in this case.

Nothing in the plain wording of Provision 4 supports the Agency's conclusion that the 45-day time limit is tantamount to a contractual statute of limitations. The provision does not state that untimely delivery of the written decision would bar the imposition of an adverse action. To the contrary, the Union states in both its petition for review and its reply brief that failure to adhere to the 45-day time limit would obligate the Agency only to reissue its notice of proposed adverse action and revive the procedures required by the provision.

The time limit imposed by Provision 4 is significantly different from those imposed by Provisions 3 and 8. In Provisions 3 and 8, the time limits begin to run from the time the Agency becomes aware of the incident on which the proposed action is based. The time limit in Provision 4 commences from the date management receives an employee's reply to the notice of proposed action. If the time limits in Provisions 3 and 8 expire, disciplinary or adverse action based on that particular incident is barred. In contrast, the running of the time limit imposed by Provision 4 does not bar the action. Instead, under Provision 4, management is free to reinstitute the discipline by reissuing the notice of proposed adverse action. Accordingly, we find that as the time limit established by Provision 4 does not directly interfere with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute, because failure to meet the prescribed time limit does not prevent the Agency from acting on the underlying disciplinary matter, the prescribed time limit constitutes a procedure within the meaning of section 7106(b)(2) of the Statute.

Provision 4 also requires that the Agency's decision on the adverse action be furnished to the affected employee no later than 3 days prior to the action's effective date. That is, Provision 4 requires that affected employees receive 3 days' notice of the effective date of the action. For the following reasons, we reject the Agency's argument that this portion of the provision is nonnegotiable based on Eastern Mapping Agency.

Provision 1 in Eastern Mapping Agency required that employees who had received a final notice of separation for cause, after having exhausted "all avenues of appeal . . . ," remain on the job for the 10 days following receipt of the notice. Eastern Mapping Agency, 21 FLRA at 1107. The Authority found first that the provision did not enable the agency to exercise its right under 5 U.S.C. º 7513(b) to suspend the usual advance notice of an intent to take action against an employee when there is reasonable cause to believe that the employee has committed a crime punishable by imprisonment. The Authority found also that the provision excessively interfered with the agency's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) because it left management with "no effective method of holding those employees accountable for their failure or refusal to carry out assigned work during the prescribed period of ten additional workdays." Id. In so deciding, the Authority noted that "[i]n the circumstances addressed by [the provision], the concerned employees are on notice that management has decided, after all avenues of appeal have been followed, to terminate them and that their separation date has been fixed." Id.

Unlike the provision in Eastern Mapping Agency, it is clear that Provision 4 here preserves the Agency's right under 5 U.S.C. º 7513(b) to suspend the usual notice period when there is reasonable cause to conclude that the affected employee has committed a crime punishable by imprisonment. The provision expressly applies to employees who have received notice of a proposed adverse action "under the provisions of this Article . . . ." The Article to which the provision refers includes Provision 2, which, as previously found, does not conflict with, and preserves the Agency's rights under, 5 U.S.C. º 7513(b).

In addition, Provision 4 does not apply solely to removal actions. Instead, by its plain terms, Provision 4 applies to "proposed adverse actions," which, in the absence of an indication in the record to the contrary, we interpret to include the "adverse actions" defined in 5 U.S.C. º 7512: removals, suspensions for more than 14 days, reductions in grade, reductions in pay, and furloughs of 30 days or less. As Provision 4 does not apply solely to removals, and as the other actions to which the provision applies entail the affected employee's continued employment by the Agency, the Authority's analysis of the effect of the disputed provision in Eastern Mapping Agency on the agency's ability to hold employees accountable for their work would not apply to all actions encompassed by Provision 4.

Similarly, Provision 4 does not expressly apply to situations where the Agency's decision to remove an employee has been sustained on appeal and, consequently, no possibility exists for the employee's continued employment in the Agency. As such, it is not reasonable to conclude that, in all situations, affected employees' would "refuse, with impunity, to carry out their assignments . . . ." Eastern Mapping Agency, 21 FLRA at 1107.

Nevertheless, in limited circumstances, Provision 4 would have the same practical consequences as the disputed provision in Eastern Mapping Agency. Provision 4 would, in this regard, apply in situations where the Agency had decided to remove an employee and that employee had not appealed, and did not intend to appeal, the action. In this situation, the proposal is analagous to Eastern Mapping.

Recognizing the existence of these situations, we have reexamined, and now reject, the Authority's conclusion in Eastern Mapping Agency that a proposal providing affected employees with notice of an agency's decision to take adverse action against them directly interferes with management's rights to assign work and direct employees because management would have no effective method of holding those employees accountable for their work during the notice period. We note the following.

First, the effect of the proposal is only that the Agency is required to provide affected employees with notice of the decision to take an adverse action. The proposal is not aimed at, or focussed on, the assignment of work or the direction of employees. The proposal does not, for example, require the Agency to assign any particular work to employees and does not, as plainly worded, address or limit the Agency's ability to direct employees to accomplish that work.

It is clear, in this regard, that unless the Agency placed affected employees in a non-work, pay status, the proposal would require the Agency to provide some work to employees during the 3-day period. The requirement to assign some work, however, flows solely from the requirement that the Agency provide notice of its decision to take adverse action. That is, the obvious and necessary consequence of a removal of an employee is the cessation of the assignment of work to that employee. The fact that the assignment of work ceases when an employee is removed, however, does not support a conclusion that all proposals affecting the timing of a removal action interfere with the rights to assign work and direct employees.

Moreover, it is not clear that employees would, in the circumstances of the proposal, refuse to perform work. Instead, it is reasonable to conclude that employees' individual responses to removal actions would vary depending on such factors as the events surrounding the removal action and the employees' desires to gain employment in the Agency or elsewhere.

Put simply, it is speculative to assume that, as employees could take certain actions, they would do so. Further, even assuming that, in the limited circumstances where an employee who is being removed has decided not to appeal that removal action, the employee would refuse to perform work, nothing in the proposal affects, or limits in any way, the Agency's rights to respond appropriately to such refusal. It may be more difficult for Agency managers effectively to assign and direct the work of such employees, but the existence and extent of such difficulties depend on the particular facts and circumstances of each case--not on the proposal.

On reexamination, therefore, we hold that the proposed 3-day notice of decisions involving adverse actions does not directly interfere with the Agency's rights to direct employees and assign work. To the extent that the Authority's decision in Eastern Mapping Agency holds to the contrary, we will no longer adhere to it.

We conclude also that Provision 4 does not directly interfere with the Agency's rights to discipline and/or remove employees. It is clear and we reemphasize that the provision establishes only a 3-day notice period of the Agency's decision to take adverse action. The provision does not affect the Agency's right, under 5 U.S.C. º 7513, to suspend the notice period in cases where there is reasonable cause to believe that the affected employee may have committed a crime punishable by imprisonment and does not bar the Agency from disciplining or removing employees.

The provision affects only the timing of the Agency's decision. As stated by the U.S. Court of Appeals for the D.C. Circuit, "timing in matters of discipline is procedural and therefore subject to negotiation . . . ." Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1510 (D.C. Cir. 1989), enforcing in relevant part, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1525-26 (1987) (provision stating that the effective date of a suspension would be not less than 10 days from the date of the agency's decision to suspend held negotiable). See also National Federation of Federal Employees, Local 1380 and U.S. Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 36 FLRA 725, 736 (1990) (Authority held that "a delay of 3 days in the Agency's ability to implement the removal of an employee reasonably believed to have committed a crime so as to afford the employee additional time to respond to the charges involved" constituted a negotiable procedure); American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 131-34 (1990) (proposal prohibiting agency, with certain exceptions, from effecting suspension or removal until grievant had exhausted review procedures of the parties' agreement held to constitute a negotiable procedure).

Consistent with the foregoing, we conclude that Provision 4 does not directly interfere with the Agency's rights to assign work or to direct, discipline, or remove employees. Rather, Provision 4 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

VI. Provisions 5, 6, and 7

Article 22, Disciplinary and Adverse Actions

Section 9: Processing of Adverse Actions

[Provision 5]

Section g. In arriving at a decision, the deciding official shall consider only the reasons specified in the notice of proposed adverse action and shall consider any answers made to the deciding official by the employee and his or her designated representative and recommendations made by the special ad hoc faculty review committee (Select Committee), described in [Provision 6, Section h].

[Provision 6]

Section h. If a faculty member receives a proposal to remove him/her for cause, the faculty member may request a review before a special ad hoc faculty review committee (the "Select Committee"). The faculty member must request such a review, in writing, not later than five calendar days after receipt of the removal proposal. The request must be made to the Assistant Superintendent for Academic Affairs. Use of this review procedure does not preclude the faculty member from following the procedure in Section 9d. of this Article for providing an answer to the removal proposal to the deciding official. Adjustments to time frames in this section will be made if use of Section 9e. of this article is necessary and the employee will be informed of any such adjustments.

Provision 7

Section h [continued]

(1) The Select Committee shall consist of five (5) full professors on the faculty panel. The senior professor shall serve as chairperson.

(2) The Select Committee shall conduct a review of the case considering all relevant information available from the record and submitted by the faculty member. The committee shall interview the faculty member and department head and may, at its discretion, interview other faculty members and/or staff members.

(3) During the review by the committee the faculty member shall be permitted to have an advisor present, but the advisor must be an employee of the Academy and shall not be permitted to serve as an advocate during the hearing.

(4) The committee recommendations shall be determined by an affirmative vote of a simple majority with all five (5) members constituting a quorum.

(5) Upon completion of the review, the committee shall submit its recommendations to the deciding official via the Assistant Superintendent for Academic Affairs. The review shall be completed and a recommendation made, in writing, within twelve (12) working days of receipt of the faculty members' request for a review.

[Provisions 5 through 7 are set out as submitted by the parties.]

A. Positions of the Parties

1. The Agency

The Agency contends that those aspects of Provisions 5, 6, and 7 requiring an ad hoc select committee to review proposed removal actions "violate" the following: (1) the Agency's right, under section 7106(b)(1) of the Statute, to determine the methods and means of performing work; (2) the Agency's rights to take disciplinary actions and to assign work under section 7106(a)(2)(A) and (B); and (3) 5 U.S.C. º 7513(b)(3), which concerns employee representation during adverse action proceedings. Statement of Position at 8-9. Consequently, the Agency argues that the requirement to establish an ad hoc committee is nonnegotiable.

The Agency contends that the Authority's decision in Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA 815 (1986) (Proposal 3) (Fort Knox Dependent Schools) "supports the [A]gency's position that these [provisions] are nonnegotiable." Statement of Position at 9. The Agency notes that the disputed provision in Fort Knox Dependent Schools, which established a committee to make recommendations on acquisition of textbooks, grade cards, parent conference forms and other items or programs to be implemented in the school district, was found to be nonnegotiable because it interfered with the rights to assign work under section 7106(a)(2)(B) and to determine the methods and means by which agency work will be carried out under section 7106(b)(1).

In the Agency's view, the requirement to establish an ad hoc committee, at the affected employee's option:

clearly sets forth a requirement to assign particular duties (review of a proposed removal), to particular bargaining unit employees and determines part of the deliberation process by which management will make a purely managerial decision, i.e., whether or not to remove an employee, a clear management right. This runs contrary to section 7106(a)(2) of the Statute pertaining to the rights to assign, to remove, to assign work and to determine the personnel by which agency operations shall be conducted.

Id. The Agency argues that "the designated bargaining unit employees, through the recommendations of the committee become integrally involved in the disciplinary decision itself, and the [provisions] therefore violate[] section 7106(a)(2)(A) of the Statute." Id.

Finally, the Agency contends that the portion of Provision 7 limiting an employee's choice of representative before the committee to another Academy employee is inconsistent with Federal law. The Agency points out that 5 U.S.C. º 7513(b)(3) "in essence provides that an employee is entitled to a representative of his/her own choosing when an adverse action is proposed." Id. at 10. The Agency concludes, therefore, that Provision 7 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with law.

2. The Union

The Union characterizes positions on the ad hoc faculty review committee as "creatures of the labor management process, . . . not 'positions in the agency.' The 'Select Committee' is actually an entity within the negotiated grievance procedure and, therefore, does not involve the right to assign employees to positions." Reply Brief at 28 (footnotes omitted). The Union argues further that, because the positions on the Select Committee are not Agency positions, identifying the members of the Committee does not violate the right to assign employees under section 7106(a)(2)(A) of the Statute. The Union also disagrees with the Agency's contention that the provisions interfere with management's right to determine the methods and means of performing work under section 7106(b)(1). The Union argues that committee positions are not positions in the Agency. Therefore, the Union contends, the committee's work "is not 'work of the Agency.'" Id. at 30.

The Union asserts that the Select Committee makes only recommendations, which the deciding official may or may not accept, and "the acceptance or rejection by the deciding official is not subject to any criteria of the committee." Id. at 31. Therefore, in the Union's view, the provisions do not interfere with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute.

Finally, the Union argues that those portions of Section g. of Provision 5 which limit the matters which may be considered by the deciding official in rendering a decision reflect a basic element of due process. The Union contends that these portions of the provision constitute an appropriate arrangement, within the meaning of section 7106(b)(3), for employees adversely affected by management's exercise of the right to discipline. The Union further contends that these portions would not only ensure fairness and equity in disciplinary actions, but also would help retain employee confidence that discipline will be applied in an even and fair manner.

B. Analysis and Conclusions

For the following reasons, we find that Provisions 5 through 7 are within the Agency's duty to bargain.

1. Section 7106(b)(1) Does Not Provide a Basis for Disapproval

Preliminarily, we reject the Agency's argument that Provisions 5 through 7 are nonnegotiable because they conflict with the management right to determine methods and means of performing work under section 7106(b)(1) of the Statute. Matters set out in section 7106(b)(1) may be negotiated at an agency's election. Once such matters have been negotiated and included in an executed agreement, an agency cannot disapprove them on the basis of section 7106(b)(1) of the Statute in the course of review under section 7114(c) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1738 and Veterans Administration Medical Center, Salisbury, North Carolina, 27 FLRA 52, 61 (1987). In this instance, the dispute arises from the Agency head's disapproval of parts of the parties' negotiated agreement. Consequently, the Agency is without authority under section 7114(c) to disapprove these provisions based on an alleged conflict with section 7106(b)(1).

2. The Provisions Do Not Interfere With the Right to Discipline

Management's rights under section 7106 include more than just the right to decide to take final actions. The rights contained in section 7106 encompass actions integral to the exercise of those rights, including discussion and deliberation on the factors bearing upon the final decisions. National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 365 (1990) (Naval Plant Representative Office). Union presence, whether active or passive, at such discussions and deliberations interferes with an agency's right to engage freely in internal discussions and deliberations prior to deciding to take actions within the scope of section 7106. Id. at 366.

However, the ad hoc committee in question has not been established by the Agency as an integral part of its decision-making process concerning the removal of employees under section 7106(a)(2)(A) of the Statute. Rather, the record indicates that the committee would be created by the parties' agreement as an adjunct to whatever other procedures are available under the negotiated grievance procedure. As the committee would function exclusively in an advisory capacity, making nonbinding recommendations to management on proposed removals before management, itself, deliberates on the proposed actions, we reject the Agency's contention that the provisions would improperly interject the Union into the Agency's deliberative process. Consequently, we find that the provisions do not interfere with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. See Marine Corps Air Station, Cherry Point, 36 FLRA at 36-39 (provision establishing committee to make recommendations to commander concerning resolution of performance appraisal appeals held not to interfere with agency's rights to direct employees and to assign work).

3. The Provisions Constitute a Negotiable Procedure Under Section 7106(b)(2)

We find that Provisions 5 through 7 establish a negotiable procedure, within the meaning of section 7106(b)(2), to be followed by management in exercising its right to remove employees. In this regard, the provisions are similar to Provision 6 in American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69, 80-82 (1987) (Redstone Arsenal Commissary). In Redstone Arsenal Commissary, the Authority found that the requirement in Provision 6 to complete an investigation before imposing discipline constituted a negotiable procedure under section 7106(b)(2). In our view, the hearing before an ad hoc committee, as required by the disputed provisions, is an investigative process, in that it gathers testimony and facts to be submitted to the deciding official prior to the decision on imposing discipline. Specifically, we note that section h(2) of Provision 7 describes the operation of the committee, requiring that it consider "all relevant information available from the record and submitted by the faculty member." In addition, under section h(2), the committee is required to conduct interviews with individuals who may shed light on the proposed action. Accordingly, as the portions of Provisions 5 through 7 establishing an ad hoc committee concern investigative steps to be followed by management prior to exercising its right to remove, those parts constitute a negotiable procedure under section 7106(b)(2).

4. The Provisions Do Not Interfere With the Right to Assign Work

The Agency asserts that Provisions 5 through 7 interfere with its right to assign work because the provisions would "require management to establish, at the option of the employee, an ad hoc Special Committee, composed of five professors who are otherwise serving on the faculty panel to review a proposed removal action." Statement of Position at 9. We note that whatever work is performed by members of the committee would be intermittent and would not obligate the Agency to assign the same employees to the committee in each instance.

Section 7106(b) of the Statute provides that "nothing" in section 7106 shall preclude negotiation over "procedures which management officials of the agency will observe in exercising any authority" under section 7106. Many procedures necessitate the assignment of work to fulfill their requirements. To bar the negotiation of procedures otherwise negotiable under section 7106(b)(2) because they involve the assignment of work to agency personnel would nullify section 7106(b)(2) and overlook the explicit purpose and intent of that section. Naval Plant Representative Office, 35 FLRA at 368. Consequently, procedures entailing some assignment of work to employees do not necessarily directly interfere with the Agency's right to assign work. See, for example, National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 564-65 (1988).

In addition, membership on the committee proposed by the Union does not involve the official prescribed duties of unit employees. As the name "ad hoc" connotes, the committee is organized for a single purpose and, once that purpose is served, is dissolved. The Authority has held that where participation on a committee does not involve official, prescribed duties of employees, membership on the committee does not concern the assignment of work within the meaning of section 7106(a)(2)(B) of the Statute. See Local 3, International Federation of Professional and Technical Engineers, AFL-CIO and Naval Sea Systems Command Detachment, PERA (CRUDES) Philadelphia, 25 FLRA 714, 717-18 (1987).

The provisions here are distinguishable from Proposal 3 in Fort Knox Dependent Schools, 22 FLRA at 817-19, relied on by the Agency. The proposal in Fort Knox Dependent Schools involved union membership on committees previously established by management to make recommendations concerning such matters as textbook adoptions, grade cards, parent conference forms, and other items or programs to be implemented in particular school districts. The Authority concluded that the work of the committees concerned the "means" by which agency work would be carried out within the meaning of section 7106(b)(1) of the Statute. The Authority further concluded that "[s]ince these committees are an integral part of the process by which management determines the 'means' of performing its work, the tasks associated with carrying out the functions of those committees involve the assignment of work." Id. at 819. By contrast, the committee involved here is not created by management, nor is it an integral part of the Agency's decision-making process.

Based on the foregoing, we conclude that Provisions 5 through 7 establish a negotiable procedure to be followed by the Agency in deciding whether to remove an employee and, consequently do not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

5. Provision 7 Is Not Inconsistent With Law

The Agency contends that the portion of Provision 7 dealing with an employee's right to representation before the ad hoc committee is inconsistent with 5 U.S.C. º 7513(b)(3). 5 U.S.C. º 7513(b)(3) provides that an employee "against whom an [adverse] action [under 5 U.S.C. º 7512] is proposed is entitled to--. . . (3) be represented by an attorney or other representative[.]" As we previously found, Provisions 5 through 7 establish an independent, advisory committee in circumstances where removal of an employee has been proposed. The committee would supplement, not replace, whatever procedures otherwise apply to the proposed removal. Although Provision 7 limits an affected employee's choice of a representative before the committee to an Academy employee, this limitation would not affect the employee's right to representation in any proceeding authorized by 5 U.S.C. º 7513(b)(3), which applies to management actions initiated pursuant to 5 U.S.C. º 7512. Consequently, we conclude that the portion of Provision 7 limiting an employee's right to representation before the ad hoc committee established by these provisions does not divest employees of any right to representation afforded by 5 U.S.C. º 7513(b)(3). Consequently, Provision 7 is not inconsistent with the employees' rights under 5 U.S.C. º 7513(b)(3).

C. Summary

Provisions 5 through 7 do not conflict with the Agency's rights to remove employees or to assign work under section 7106(a)(2)(A) and (B) of the Statute, and Provision 7 does not conflict with Federal law. Rather, the provisions establish a negotiable procedure under section 7106(b)(2) of the Statute. In addition, the question of whether the provisions conflict with rights set out in section 7106(b)(1) of the Statute is irrelevant in the circumstances of this dispute.

VII. Provision 9

Article 22, Disciplinary and Adverse Actions

Section 11 Supervisory Notes:

a. If supervisors make a personal decision to keep notes on employees, the notes will be maintained in a secure fashion and will not be circulated or reviewed outside the employee's chain of command.

b. If any supervisor keeps a personal log containing entries which could adversely affect an employee, the supervisor shall promptly inform the employee that such a log is being kept and the nature of the entries. The employee may be shown such log entry solely at the discretion of the supervisor. Any entries used to support a disciplinary or adverse action are subject to the provisions of Section 11c.

c. Supervisory notes may be used to support a disciplinary or adverse action to an employee only if such notes have been shown to and initialed by the employee at the earliest practicable time but not later than 15 work days after such notes are made. A copy of the initialed notes will be furnished to the employee upon request.

d. Supervisory notes may be used for only eighteen months to support a disciplinary or adverse action against an employee and retention of supervisory notes shall be consistent with the provisions of Section 9l and Section 10b.

A. Positions of the Parties

1. The Agency

The Agency contends that subsection a of Provision 9 is nonnegotiable because it limits management's access to its own files. The Agency argues that similar proposals have been found by the Authority to be outside the duty to bargain because they do not relate to conditions of employment under section 7103(a)(14) of the Statute.

The Agency asserts that the limitations imposed by subsections c and d on the use of supervisory notes in disciplinary and adverse actions "excessively interfere[] with management's exercise of its right to discipline, which inherently includes its right to present all relevant evidence to support its case upon appeal." Statement of Position at 11. The Agency points out that an affected employee could appeal the adverse action to the Merit Systems Protection Board (MSPB). In the Agency's view, where an Agency action is being reviewed by the MSPB, the prescribed limitations "would usurp the authority of the presiding official to rule on the relevance of evidence, and prohibit the [A]gency from producing certain relevant evidence needed to meet its burden of proof." Id. Consequently, the Agency contends, the provision excessively interferes with its right to discipline.

The Agency also contends that the provision is inconsistent with an applicable Government-wide regulation, 5 C.F.R. º 1201.63. Specifically, the Agency asserts that the provision's exclusion of certain supervisory notes nullifies the MSPB presiding official's authority to require the presentation of further evidence concerning an issue. Therefore, the Agency asserts, the provision is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation.

Finally, the Agency argues that subsections c and d of the provision are nonnegotiable under section 7106(a)(2)(A) of the Statute because the "statute of limitations" established by the provision could preclude the use of supervisory notes to support disciplinary actions. Id. at 12. The Agency adds that subsection c makes no allowances for situations where the concerned employee either is unavailable or refuses to initial the supervisor's notes during the 15-day period established by the provision. The Agency contends that, even in such situations, management would be barred from imposing discipline supported by the notes.

2. The Union

The Union asserts that the provision is intended to inform employees "that where a supervisor keeps notes on an employee, the employee may be subject to possible disciplinary action and that the notes may be considered in any subsequent action. The supervisor's notes are not proscribed[,] but safeguards are provided from careless disclosure to unauthorized persons." Reply Brief at 33.

The Union contends that the obligation to give employees copies of supervisory notes when they are to be used in disciplinary proceedings is consistent with Provision 5, with section 7114(b)(4) of the Statute, and "with the 'due process' notions of fair play seen in most administrative and arbitral proceedings." Id. The Union emphasizes that the supervisory notes in question are not part of "an official system of records or other regulatory or statutory record system." Id. According to the Union, "[t]hey are informal notes taken and retained at the option of the supervisor, and only become 'official' when they form the basis, or part of the basis, of disciplinary action." Id. Therefore, the Union reasons, the provision imposes no limitation on the Agency's access to its files.

The Union also contends that, "[w]ith respect to the 18-month limitation, the clause is procedural; it requires the cleansing of the record after a year and a half." Id. at 34. Furthermore, the Union asserts that, "[w]ith respect to performance-based actions, we know of no performance actions which are allowed which are based on events older than one year." Id. The Union asserts that the 18-month limitation

does not preclude the keeping of official notes reflecting any legal aspect of an employee's conduct or performance. The [provision] is directed solely to the use of informal and unofficial personal notes of a supervisor. The provision does not preclude such notes, it limits the retention of such notes (as they may be used as evidence). This in no way hampers the proper recording of performance or conduct of employees.

Id. at 35.

Finally, the Union contends that Provision 9 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In the Union's view, the impact of the provision on the Agency's ability to discipline employees would be slight because any significant incidents recorded in such notes normally would be formalized prior to their use in a disciplinary proceeding.

B. Analysis

As the parties address the subsections of Provision 9 separately, we will also.

1. Subsection a

Subsection a of Provision 9 would prohibit the circulation or review of any supervisor's personal notes, outside an employee's chain of command, concerning the conduct or performance of the employee. We reject the Agency's argument, based on two Authority decisions discussed immediately below, that the subsection does not concern conditions of employment of unit employees.

In American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 348 (1982) (INS), reversed as to other matters sub nom. U.S. Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), the Authority found a proposal which restricted management's access to its own investigative files to be nonnegotiable because it did not concern conditions of employment of unit employees. In so finding, the Authority specifically noted that the proposal, as drafted, was "directed toward management's access to the Agency files in question rather than management's consideration of or other use of such information." Id. Relying on INS, the Authority subsequently found that a proposal, which restricted management's access to information and records under the agency's Employee Assistance Program, was outside the duty to bargain because the proposal did not concern conditions of employment. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632, 634 (1983) (Library of Congress). Further, in a case not cited by the Agency, American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA 778, 783-84 (1985) (Fort Knox), the Authority found that a proposal restricting management's access to the driving records of unit employees maintained by the agency, as well as prescribing the content of those records and the manner in which they were to be maintained by management, did not concern conditions of employment of unit employees and was not within the duty to bargain.

The three cases summarized above predated the issuance of Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles). In Antilles, the Authority stated that it would resolve the issue of whether a proposal involves a condition of employment of bargaining unit employees by applying a 2-part test. The two parts of the test require determinations as to whether: (1) the proposal pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. Id. at 237. Subsection a of Provision 9 would limit the access which management officials outside an employee's chain of command could have to any supervisory notes concerning unit employees. As there is no allegation that subsection a does not pertain to bargaining unit employees, we will consider only the second part of the Antilles test, that is, whether there is a "direct connection" between the disputed subsection and "the work situation or employment relationship" of unit employees. Id.

In American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals for the District of Columbia Circuit examined the Authority's application of the second part of the Antilles test. The court noted that under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In deciding whether the matters there at issue were conditions of employment, the court examined whether there was a "link" or "nexus" between those matters and the workers' employment. Id. at 1447, 1449. The court found that, where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449.

Subsection a would limit the circulation of informal supervisory notes to the affected employee's chain of command. The Union points out that the supervisory notes "are not proscribed[,] but safeguards are provided from careless disclosure to unauthorized persons." Reply Brief at 33. Such notes, particularly those reflecting adversely on an employee's performance or conduct, have a direct impact on the employee's working relationship with management and also affect the employee's potential for career advancement. We find that subsection a, limiting the circulation of informal supervisory notes, is directly connected to the work situation of unit employees and that the subsection, therefore, concerns conditions of employment of employees in the bargaining unit. To the extent that INS, Library of Congress and Fort Knox indicate that any proposal addressing access to agency files does not concern a condition of employment, we will no longer adhere to those decisions.

Consequently, as the provision concerns conditions of employment of bargaining unit employees, and as the Agency raises no other reasons for finding subsection a to be nonnegotiable, and none are apparent to us, we conclude that subsection a is negotiable.

2. Subsections b and c

Subsections b and c of the provision, read together, require that the supervisory notes be shown to, and initialed by, the affected employees no later than 15 days after their creation. Failure to meet that deadline prevents use of such notes against the employees in disciplinary or adverse actions.

The Union contends that Provision 9, "covering informal supervisory notes, is procedural[.]" Reply Brief at 40. A proposal barring use of documents which may adversely affect employees, unless the employees are shown the notes within a prescribed time limit, is not a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. Failure to meet the time limit would prevent management from using information it has decided is necessary to support the appropriate disciplinary or adverse action. Consequently, such a proposal directly interferes with the underlying management right to discipline. See National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 38 FLRA No. 5, slip op. at 28-33 (1991) (Provision 12) (IRS). In this instance, subsections b and c would directly interfere with the Agency's right to discipline under section 7106(a)(2)(A).

Subsections b and c also authorize use of supervisory notes in support of disciplinary and adverse actions "only if" the notes have been initialed by the affected employee within the 15-day time limit. The Agency points out that the subsections would disqualify notes that were not initialed by the employee, even where the notes were shown to the affected employee within the 15-day limit and where the absence of the initials was attributable to employee action or inaction. The Union does not challenge the Agency's interpretation of the effect of the 15-day limit. Consistent with the plain wording of the subsections, therefore, if an employee was shown supervisory notes but failed or refused to initial them, the notes could not be used to support discipline. As a result, subsections b and c could negate management's ability to use supervisory notes to support the imposition of disciplinary or adverse actions. We conclude, therefore, that subsections b and c directly interfere with the exercise of management's right to discipline under section 7106(a)(2)(A). As subsections b and c directly interfere with the right to discipline, they are not negotiable procedures under section 7106(b)(2).

The Union argues that the subsections constitute appropriate arrangements under section 7106(b)(3) of the Statute. To determine whether the subsections constitute appropriate arrangements, we apply the principles set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 30-33 (1986) (Kansas Army National Guard). Initially, we find that subsections b and c constitute an arrangement for adversely affected employees. The subsections provide an opportunity for employees to become aware of adverse supervisory comments, to respond to them with clarifications or explanations, and to modify their performance and behavior in accordance with the criticisms.

Next, to determine whether the proposed arrangement is "appropriate," we determine whether the negative impact on management's right to discipline is disproportionate to the subsections' benefits to employees. In other words, we must determine whether the subsections excessively interfere with management's right.

On balance, we conclude that the benefit accorded to employees outweighs the limitations imposed on the Agency's exercise of its right to discipline. The disclosure to employees of adverse supervisory comments confers a benefit in that the employees are informed of perceived problems with their conduct and performance and have an opportunity to rectify the situations. Imposition of the 15-day time limit ensures that employees will be made aware promptly of the problems reflected in the supervisory notes and have the opportunity to establish that the notes are inaccurate or, if accurate, to improve conduct or performance accordingly. The requirement that supervisory notes be shown to the affected employee by a supervisor within 15 days after they are made, if they are to be used in support of disciplinary or adverse actions, does not, in our view, excessively interfere with the Agency's right to discipline. Accordingly, except for the reason discussed below, the proposed 15-day time limit could be found, consistent with IRS, to constitute an appropriate arrangement. IRS, 38 FLRA No. 5, slip op. at 28-33 (Provision 12).

Unlike the provision found to be an appropriate arrangement in IRS, however, subsections b and c not only require that the notes be disclosed to an employee within 15 days. The subsections also specify a single form of evidence--the employee's initials--to establish that the Agency has complied with the disclosure requirement. Thus, a supervisor's notes could not be used in a disciplinary or adverse action, if the affected employee failed or declined to initial them.

We note, in this regard, that it is not clear that the Union intended the provision to have this result. Nevertheless, as plainly worded, subsection c provides that supervisory notes may be used "only if such notes have been shown to and initialed by the employee . . . ." (Emphasis added.) In our view, the requirement that notes be initialed effectively transfers from management to the employee the discretion to determine whether supervisory notes will be used to support a disciplinary or adverse action. This transfer of authority excessively interferes with the Agency's authority to decide and act with respect to its right under section 7106(a)(2)(A) to decide whether it will use supervisory notes as evidence supporting disciplinary or adverse actions. Consequently, subsections b and c do not constitute appropriate arrangements within the meaning of section 7106(b)(3) and are nonnegotiable. See, for example, American Federation of Government Employees, AFL-CIO, Local 3006 and Idaho Army and Air National Guard, 32 FLRA 539, 542 (1988).

The Agency also contends that subsections b and c of Provision 9 are nonnegotiable under section 7117(a)(1) of the Statute because they conflict with certain MSPB procedural rules, as published in 5 C.F.R. part 1201, a Government-wide regulation. However, nothing in the plain wording of the subsections supports the Agency's view that they affect a presiding MSPB official's authority, under 5 C.F.R. part 1201, to rule on proffered evidence or to request additional evidence. Accordingly, we reject the Agency's argument that subsections b and c of Provision 9 are nonnegotiable under section 7117(a)(1).

Therefore, we find that subsections b and c, in combination, are nonnegotiable because they excessively interfere with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute.

3. Subsection d

Subsection d prevents the use of supervisory notes over 18 months old in supporting disciplinary and adverse actions. The prohibition on the use of such notes directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. As the Authority found in American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1049 (1988) (Naval Weapons Station), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989) "[t]he decision to initiate disciplinary action based upon available evidence, whatever the quality of that evidence, is committed to management's discretion under section 7106(a)(2)(A)." Subsection d directly interferes with that discretion by preventing use of certain evidence solely because of its age. By interfering with the decision to initiate disciplinary and adverse actions, the subsection directly interferes with the right to discipline.

Contrary to the Union's position, a proposal which directly interferes with the right to discipline under section 7106(a)(2)(A) does not constitute a negotiable procedure under section 7106(b)(2). See, for example, Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1157 (1990). Consequently, as subsection d directly interferes with the Agency's right to discipline, it is not a negotiable procedure.

Under the principles set out in Kansas Army National Guard, we find that subsection d is an arrangement for employees adversely affected by management's exercise of its right to discipline under section 7106(a)(2)(A). By precluding the use of supervisory notes over 18 months old to support disciplinary or adverse actions, the subsection benefits employees by relieving them of the burden of responding to evidence that is more than 18 months old.

We find, however, that subsection d excessively interferes with management's right to discipline and, therefore, is not an appropriate arrangement. Although the Union argues, and we agree, that subsection d would overcome the difficulty in challenging older supervisory notes, subsection d overcomes that difficulty by banning completely the introduction of all supervisory notes over 18 months old. In our view, the subsection's blanket exclusion of supervisory notes over 18 months old affords a benefit to employees which is outweighed by the burden on management's ability to determine, based on available evidence whether disciplinary or adverse action is appropriate and supportable. Although "old" evidence may well be entitled to less weight in a disciplinary proceeding, we conclude that the outright ban on the notes is nonnegotiable because it excessively interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. See Naval Weapons Station at 1049-50.

C. Conclusions

Subsection a of Provision 9 is negotiable because it concerns a condition of employment of bargaining unit employees. Subsections b, c, and d are nonnegotiable because they excessively interfere with management's right to discipline under section 7106(a)(2)(A).

VIII. Order

The petition for review as to Provisions 2, 3 and 8 and subsections b, c, and d of Provision 9 is dismissed. The Agency must rescind its disapproval of Provisions 1, 4, 5, 6, and 7 and subsection a of Provision 9. ^(*)

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In finding these matters to be negotiable, we make no judgment as to their merits.

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