American Federation of Government Employees, Local 2298 and Missile Facility Atlantic, Charleston, South Carolina (Authority decision, February 4, 1987)

Final FLRA decision. The Authority dismisses a petition after finding a disputed contract provision outside the duty to bargain. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 2298 challenged an agency head's disapproval of a contract provision about the timing of employee discipline. The provision normally required disciplinary action to begin within 30 days of an incident or the agency learning of it, with a possible delay for an investigation. The Authority found that the deadline could prevent the agency from disciplining employees after the period expired. It held that the provision interfered with management's right to discipline and was neither a negotiable procedure nor an appropriate arrangement. The union's petition was dismissed.

Decision snapshot

• Authority: Management's right to discipline under 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Discipline deadline held nonnegotiable; petition dismissed.
• Key point: A contractual time limit that could bar discipline went beyond regulating the process for discipline.

Full text (FLRA public release)

[ v25 p517 ]

25:0517(38)NG

The decision of the Authority follows:

25 FLRA No. 38

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2298
Union

and

MISSILE FACILITY ATLANTIC,
CHARLESTON, SOUTH CAROLINA
Agency

Case No. 0-NG-1301

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a single provision of a negotiated agreement disapproved by the Agency head under section 7114(c) of the Statute. We find that this provision is nonnegotiable.

II. Provision

Section 6. Disciplinary action will normally be initiated within thirty (30) calendar days after the event or occurrence warranting such discipline, or of the Employer's becoming aware of such event or occurrence. It is understood that initiation of disciplinary action may be delayed pending completion of an investigation. (Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends, citing 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), that the provision is outside the duty to bargain because it interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Union contends that the provision does not prevent the Agency from acting at all and that it establishes a reasonable procedure under section 7106(b)(2) of the Statute which the Agency would follow in exercising its rights under section 7106(a)(2)(A) of the Statute. Also, the Union contends that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute because it insures that disciplinary action will be processed expeditiously by the Agency and thereby serves the interests of employees.

B. Analysis and Conclusions

1. The provision is not a procedure

The provision would require the Agency to initiate disciplinary action normally within 30 days of the event or occurrence warranting discipline or within 30 days of the Agency becoming aware of the event or occurrence. In our opinion, this provision is to the same effect as a provision found nonnegotiable in National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985) (provision 2), affirmed sub nom. National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986), which required that investigations of incidents for which disciplinary action may be taken be initiated normally within 60 days of the incident or within 60 days after the employer becomes aware of the incident. The Authority noted that by establishing a contractual "statute of limitations" which would preclude the agency from investigating incidents which may result in the disciplining of employees, the provision would, in certain circumstances, prevent the agency from disciplining employees. See also American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (proposal 3). The provision in this case, likewise, would establish a contractual limitation which would, in certain circumstances, prevent the Agency from disciplining employees. Thus, the provision substantively interferes with management's rights and does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (proposals 1, 2, and 4).

2. The provision is not an appropriate arrangement

In addition, the provision is not an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the Agency's right to discipline under section 7106(a)(2)(A). The provision would completely preclude the Agency from exercising its right to discipline if such discipline was not initiated within 30 days under normal circumstances. Such a total abrogation of management's right to discipline excessively interferes with the right and clearly does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). Id.

III. Order

The Union's petition for review is dismissed.

Issued, Washington, D.C., February 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY