[ v25 p1033 ]
25:1033(86)NG
The decision of the Authority follows:
25 FLRA No. 86
JOINT COUNCIL OF UNIONS, GPO
Union
and
UNITED STATES GOVERNMENT
PRINTING OFFICE
Agency
Case No. 0-NG-1310
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The appeal concerns
the negotiability of four proposals relating to corrective
(disciplinary) action. We find that Proposal 1 is within the duty to
bargain and that Proposals 2, 3 and 4 are outside the duty to bargain.
II. Proposal 1
Article VIII, Section 1. Corrective action means any action by
management that could result in disciplinary action; i.e., verbal
warning to suspension, removals, reduction in pay, grade, or
status against any employee. (Only the underscored portion is in
dispute.)
A. Positions of the Parties
The Union contends that this proposal simply defines the term
"corrective action" to include actions which result in employees' loss
of "status" -- that is, changes in employees' work assignments. The
Union argues that the proposal would not prevent management from
changing an employee's work assignment or from taking any other actions
affecting an employee's status, but would only include within the scope
of the negotiated grievance procedure corrective actions involving
"status." Union Petition for Review at 1.
The Agency contends that the proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B). The
Agency argues that the ultimate effect of the proposal would be to allow
an arbitrator to overturn management's work assignments, thus
interfering with the right to assign work.
B. Analysis and Conclusion
We find Proposal 1 to be negotiable. Based on the record in this
case, the term "status" refers to changes in work assignments. We agree
that the only effect of the proposal is to include within the scope of
the grievance procedure changes in work assignments which result from
disciplinary action.
The matters covered by the proposal are matters relating to the
conditions of employment of unit employees and are subject to the
negotiated grievance procedure unless otherwise excluded by the parties'
agreement. See sections 7103(a)(9) and 7121 of the Statute. By
including actions affecting employee status among the corrective actions
which would be within the scope of the grievance procedure, the proposal
simply specifies that which is already otherwise provided under the
Statute. The Agency's argument that the ultimate effect of the proposal
would be to allow an arbitrator to overturn management's work
assignments is without support. The proposal is simply definitional;
nothing in the proposal requires or suggests that it is to be enforced
in a manner which would violate management's rights or otherwise be
inconsistent with law. Of course, should the parties agree to this
proposal and include it in their agreement, management would retain the
right to challenge the grievability and arbitrability of any grievance
which sought to enforce that provision in a manner which is inconsistent
with law. Proposal 1, therefore, is consistent with law and within the
duty to bargain.
III. Proposal 2
Article VIII, Section 11. All corrective actions must be
initiated within five days after the supervisor becomes aware of
the alleged incident or upon the completion of an investigation
and the next level of authority must make a decision to concur or
disagree within ten days after the supervisor's decision to
initiate corrective action. Otherwise no corrective action can be
initiated, based on that alleged incident.
A. Positions of the Parties
The Union contends that this proposal does not interfere with
management's right to discipline employees, but only places limitations
on how long management may take to decide on corrective actions,
following the completion of any investigation. The Agency argues that
the proposal clearly precludes management from exercising its statutory
right to discipline employees.
B. Analysis and Conclusion
This proposal expressly prohibits the Agency from taking corrective
(disciplinary) action if the action is not initiated at the supervisory
level within five days after the supervisor becomes aware of the alleged
incident or within five days after completion of an investigation.
Further, it prohibits corrective action at the next level of authority
if the action is not taken within ten days of the supervisor's action.
We find that this proposal has the same effect as the proposal we
found nonnegotiable in American Federation of Government Employees,
AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station,
Concord, California, 24 FLRA No. 57 (1986). The proposal in Naval
Weapons Station required that supervisors initiate disciplinary action
within fifteen calendar days of the alleged offense or the date the
supervisor became aware of the offense. The proposal allowed for
exceptions to the 15-day limit under circumstances beyond the employer's
control. We determined that the 15-day time limit constituted a
contractual limitation which would prevent the Agency from disciplining
employees in certain circumstances when the 15-day period was exceeded.
We concluded that the proposal interfered with management's rights and
did not constitute a negotiable procedure within the meaning of section
7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the
Statute.
The proposal in this case likewise would establish a contractual
limitation which would prevent the Agency from taking corrective action
or disciplining employees in certain circumstances when the 5-day or
10-day periods were exceeded. Therefore, for the reasons in Naval
Weapons Station, Proposal 2 is outside the duty to bargain. See also
National Federation of Federal Employees, Local 615 and National Park
Service, Sequoia and Kings Canyon National Parks, U.S. Department of
Interior, 17 FLRA 318 (1985) (Provision 2), affirmed sub nom. National
Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C.
Cir. 1986).
IV. Proposal 3
Article VIII. Section 12. No corrective action will be taken
against any employee for alleged violation of any GPO Instruction
or Rule or changes thereto that have not been negotiated between
GPO and the Council.
A. Positions of the Parties
The Union states that this proposal does not prevent management from
exercising its rights to implement new policies or regulations, but only
seeks to assure that management fulfills its statutory obligation to
negotiate on conditions of employment. The Agency argues that the
proposal prevents it from taking disciplinary action against an employee
unless it has first bargained with the Union over the substance of the
policy or regulations being enforced.
B. Analysis and Conclusion
We find this proposal to be nonnegotiable. The proposal would permit
management to discipline employees for violations of regulations or
instructions only if it has negotiated with the Union over the content
of the regulation or instruction which is the basis for imposing
discipline. An agency cannot be required to negotiate on the criteria
which it establishes for the imposition of discipline. See National
Treasury Employees Union, Chapter 153 and Department of the Treasury,
U.S. Customs Service, Region II, 21 FLRA No. 102 (1986); American
Federation of Government Employees, Local 1822, AFL-CIO and Veterans
Administration Medical Center, Waco, Texas, 9 FLRA 709 (1982). Because
Proposal 3 would require negotiation on the substance of the regulations
governing the imposition of discipline as a precondition to disciplining
employees under those regulations, it directly interferes with
management's right to discipline under section 7106(a)(2)(A) and is
outside the Agency's duty to bargain.
V. Proposal 4
Article VIII, Section 14(2)(b). The fact-finding will deal
with the circumstances which are relevant to the current alleged
violations of applicable regulations. The fact-finding report
will state (the fact-finder's) findings of fact and
recommendation(s) and his reasons therefor and be presented to the
parties. The Public Printer will review the report and issue a
final decision as to what action will be taken and notify the
employee and his representative within two weeks. (Only the
underscored portion is in dispute.)
A. Positions of the Parties
The Union states that it is merely trying to make clear what action
by management will be considered final, so that such final action can
form the basis for an appeal to the Merit Systems Protection Board. The
Agency contends that this proposal, by dictating to management which of
its employees will perform a specific function, interferes with
management's reserved right to assign work.
B. Analysis and Conclusion
We find this proposal to be nonnegotiable. The disputed portion of
this proposal seeks to designate a particular individual within the
Agency who will review the reports of fact-finders, render a final
decision, and notify the employee involved and his representative, all
within a time limit of two weeks. The Authority has consistently held
that the designation of a particular management official to perform
specified tasks is inconsistent with an agency's right to assign work
under section 7106(a)(2)(B) of the Statute. National Treasury Employees
Union and Department of the Treasury, 21 FLRA No. 123 (1986) (Union
Provisions 2, 3, 4 and 5). For the reasons in National Treasury
Employees Union, Proposal 4 is therefore not within the duty to bargain.
VI. Order
The Agency must, upon request (or as otherwise agreed to by the
parties), bargain concerning Proposal 1. /*/ The petition for review as
to Proposals 2, 3 and 4 is dismissed.
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.