34:0716(124)NG - - AFGE Local 1426 and Army, Fort Sheridan, IL - - 1990 FLRAdec NG - - v34 p716



[ v34 p716 ]
34:0716(124)NG
The decision of the Authority follows:


34 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 1426

and

DEPARTMENT OF THE ARMY

FORT SHERIDAN, ILLINOIS

0-NG-1614

DECISION AND ORDER ON NEGOTIABILITY ISSUE

February 2, 1990

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). The case concerns the negotiability of one proposal offered by the American Federation of Government Employees, AFL-CIO, Local 1426 (the Union) during contract negotiations with the Department of the Army, Fort Sheridan, Illinois (the Agency).

The proposal relates to the Agency's consideration of prior disciplinary actions in assessing the appropriate penalty to impose on an employee for a current offense. For the reasons discussed below, we find that the proposal is negotiable because it does not conflict with the Federal Personnel Manual (FPM) or interfere with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute.

II. The Proposal

Article 13, Section 3

The Table of Penalties set forth in Army Regulation 690-700 should be used by the Employer

as a guide to determine the appropriate penalty for offenses. The Agency Table of Penalties is intended to ensure reasonable uniformity in administering like penalties for like offenses. The Table is not exhaustive. Appropriate penalties for unlisted offenses may be derived by comparing the nature and seriousness of the offense to those listed in the Table and the [employees'] previous history of discipline. In assessing penalties, consideration will be given to the freshness or time frame of previous offenses.

Freshness will be Determined as follows:

 Adverse Actions  3 years
 Suspensions  2 years
 Letters of Reprimand  6 months

The use of a particular penalty is not mandatory simply because it is listed in the Table. Selection of an appropriate penalty may be more or less severe than the Table penalty depending upon the relevant factors in each individual case.

[Only the underlined portion of the proposal is in dispute.]

III. Positions of the Parties

A. The Agency

The Agency contends that the proposal interferes with its right to discipline under section 7106(a)(2)(A) of the Statute by "limit{ing} the amount of time that a prior disciplinary or adverse action may be used to support a case of progressive discipline." Agency's Statement of Position (Agency's Statement) at 2. The Agency argues that the proposal would require it "to remove any letter of reprimand from the official personnel folder [OPF], after a period of six months." Id. According to the Agency, this requirement restricts the degree of discipline the Agency could impose because it precludes the Agency from referring to infractions or breaches of conduct which occurred more than 6 months in the past when determining an appropriate penalty.

The Agency cites Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643 (1988) (Provision 5), in which the Authority held that a provision limiting the information which could be used to substantiate a disciplinary action against an employee to that contained in an official folder directly interfered with management's right to take disciplinary actions against employees under section 7106(A)(2)(A) of the Statute. The Agency claims that the instant proposal is to the same effect as the provision in that case because "{b}y stipulating a specific period of time that prior actions may be maintained on file {it} limits the source of information that the agency can use to substantiate a case of progressive discipline." Agency's Statement at 3.

The Agency also contends that the proposal is inconsistent with FPM Supplement 293-31, subchapter 4, Figure 2.1e. The Agency argues that "{r}emoval of disciplinary papers on the basis of contract language [would not be] appropriate" under the FPM. Agency's Statement at 3. The Agency also states that its arguments concerning the "'letters at issue' . . . refer only to letters of reprimand" because in "cases of adverse actions and suspensions, a Notice of Personnel Action, SF-50, rather than a letter, is permanently filed in an employee's official personnel folder." Id. at 2 n.1. The Agency states that the removal of such personnel actions is governed by "[FPM] Supplement 293-31, [subchapter 4], Figure 1.3," which restricts the removal of these actions from the official personnel folder. Id.

B. The Union

The Union states that "only the underlined language [of the proposal as indicated by the Agency] is in dispute," and that that portion of the proposal is within the duty to bargain. Union's Response to the Agency's Statement of Position (Union's Response) at 2. In its petition for review, the Union stated that the proposal is intended to ensure that the "reckoning period for offenses will be reasonable," and that, therefore, "{t}he letters at issue will not remain in an employee{'}s official personnel file for extensive periods of time." Union's Petition for Review at 2. Subsequently, in responding to the Agency's Statement, the Union stated that the "plain language of the proposal requires only that the Agency will consider prior offenses' chronological relationship to any discipline the Agency currently chooses to impose as 'appropriate.'" Union's Response at 4. According to the Union, "[r]emoval of 'disciplinary papers' [is] not part of the disputed language." Id. at 6.

The Union contends that the proposal on its face "clearly permits the Agency to know of and utilize progressive discipline," and "requires [only] that the periods for which the employee's conduct will be considered to be fresh are the periods specified." Id. at 4. The Union states that "by defining 'freshness,' the [p]roposal merely defines one factor to be used among others in exercising the management right to discipline." Id. at 7.

The Union contends that the proposal does not interfere with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute, but rather is a negotiable procedure under section 7106(b)(2). According to the Union, the proposal "does not limit the Agency's choice of discipline," or its "duration," but is "merely a procedure that requires the Agency to consider several factors including its own Table of Penalties." Id.

IV. Discussion

We conclude that the disputed portion of the proposal is within the Agency's duty to bargain.

By its terms, the disputed portion of the proposal requires the Agency, when considering prior discipline as a part of its determination of the penalty for a current offense, to consider the "freshness" of the prior discipline based on the time frames specified in the proposal. The Union states that "the plain language of the proposal requires only that the Agency will consider prior offenses' chronological relationship to any discipline the Agency currently chooses to impose as 'appropriate'"; and that the "[r]emoval of 'disciplinary papers' [is] not part of the disputed language." Union's Response at 4 and 6 (emphasis in original). The Union's explanation is consistent with the wording of the portion of the proposal in dispute and is adopted for purposes of this decision. Based on the Union's explanation and on the wording of the proposal, we reject the Agency's claim that the proposal would require it to remove disciplinary papers from an employee's OPF.

We disagree with the Agency's claim that the disputed terms violate its right to discipline employees under section 7106(a)(2)(A) of the Statute.

The proposal would not preclude the Agency from "know[ing] of and utilizing progressive discipline." Union's Response at 4. Rather, the proposal would require the Agency only to consider the periods specified in determining the relevance of prior discipline.

Proposals which require an agency only to consider certain factors in deciding to exercise its management rights do not interfere with those rights. In requiring management to consider certain factors, such proposals do not direct a particular result. Rather, the proposals preserve management's discretion to decide how to act because they permit management to weigh and assess factors and make a decision based on management's determination of the significance of the factors. See, for example, AFSCME, Local 2027 and ACTION, 27 FLRA 191 (1987) (Proposal 2) (proposal concerning a removal action which required an agency only to consider exercising its management rights in a particular manner did not interfere with those rights).

The Union points out that the proposal leaves the Agency free to assess any penalty it decides is appropriate. We agree. The proposal does not, therefore, require the Agency to act in any manner that is inconsistent with its right to discipline under section 7106 of the Statute. See AFSCME, Local 2027 and ACTION.

The Agency relies on Naval Supply Center Puget Sound, 32 FLRA 643 (Provision 5) to support its position that the disputed proposal interferes with its right to discipline. The proposal in this case is distinguishable from Provision 5. That provision denied management the use of all appropriate sources of information to support a disciplinary action except that contained in an OPF. The proposal in this case does not limit the source of information that the Agency can use to substantiate a case of progressive discipline. The proposal requires the Agency only to consider the freshness of prior discipline based on the time frames specified in the proposal.