“Can a disciplinary action be challenged for timeliness if the employee has been on administrative duty for two years awaiting the completion of a misconduct investigation and presentation of the actual charges.”
We will give you one of our more common responses, it depends, but generally no. Unless explicitly contained in a Master Agreement (Union contract), if covered by one, there are no hard and fast rules concerning the timeliness of an Agency’s actions in proposing or effecting a disciplinary or adverse action.
As a general rule, as long as the Agency can demonstrate the investigation was incomplete and that it’s decision was based on the results of the investigation, it is largely immune from claims of timeliness. The Authority (FLRA) has generally held that untimely delivery of a written decision would not prevent imposition of disciplinary action as such a limitation would be analogous to a “Statute of Limitations” and thus interfere with management in exercising its right to discipline employees under Title 5 USC 7106(a)(2)(A).
It is important to note that in Merchant Marine Academy (39 FLRA 187, 201 (1991), the Authority held, proposals that would bar an underlying disciplinary action upon the expiration of specified time limits are nonnegotiable and that proposals establishing timeliness standards governing completion of the various stages of the disciplinary process, but not precluding management from imposing discipline, are negotiable as procedures under section 7106(b)(2) of the FSLMR Statute.