34:0903(151)NG - - AFGE Local 1770 and Army HQ, XVII Airborne Corps and Fort Bragg, Fort Bragg, NC - - 1990 FLRAdec NG - - v34 p903

[ v34 p903 ]
The decision of the Authority follows:

34 FLRA No. 151




LOCAL 1770









February 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The petition for review in this case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves a single proposal. The proposal requires the Agency to consider only like prior offenses when determining appropriate disciplinary action for subsequent offenses.

For the reasons discussed below, we find this proposal to be outside the duty to bargain because it would interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute and it is not an appropriate arrangement under section 7106(b)(3).

II. Preliminary Matter

The Agency contends that the proposal in dispute in this case (Proposal 6) is moot, and, therefore, the petition for review should be dismissed. The Agency bases its contention on the Union's acceptance of a counterproposal to a separate Union proposal (Proposal 8), which is not in dispute in this case. The Agency claims that when the Union accepted a counterproposal to Union Proposal 8, the Union also accepted it as a counterproposal to Proposal 6. The Agency also asserts that its agreement to publish a portion of an Agency regulation in a memorandum to employees responds to Proposal 6 as well as to Proposal 8. The Union maintains that it accepted the counterproposal to Proposal 8 "with the understanding that Proposal 6 would remain on the table." Petition for Review at 1.

There is no dispute that the Agency asserted that Proposal 6 was nonnegotiable. Therefore, based on the Union's assertion that Proposal 6 was to remain on the table and in the absence of evidence to support the Agency's claim that agreement was reached on Proposal 6, we reject the Agency's claim that the dispute over Proposal 6 is moot. Accordingly, we conclude that the petition for review is properly before us. Compare American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright Patterson Air Force Base, Ohio, 21 FLRA 575, 577-78 (1986) (section of union's petition for review found moot because the evidence showed that the parties previously agreed to the substance of that section).

III. Proposal 6

The Employer agrees to consider only like offenses in determining first, second, and third offenses.

IV. Positions of the Parties

A. The Agency

The Agency states that it "has decided to use progressive penalties for continued infractions, whether those violations are the same or different." Statement of Position at 6. That is, a prior offense of any type may form the basis for an enhanced penalty for a subsequent offense of a different type. See Attachment to Statement of Position at 1.

The Agency contends that the proposal limits the Agency's consideration of certain offenses previously committed by an employee when determining the appropriate disciplinary action to be taken for a subsequent offense of any type committed by that employee. According to the Agency, "[r]estricting and dictating what previous offenses may be used to determine penalties for subsequent disciplinary actions establishes what consistency must be followed to show progressive discipline." Statement of Position at 5. The Agency concludes that by limiting the Agency's discretion to consider prior offenses committed by an employee in determining the appropriate disciplinary penalty for a subsequent offense, the proposal interferes with its right to discipline under section 7106(a)(2)(A) of the Statute.

The Agency also contends that the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency argues that contrary to the requirements set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas National Guard), the Union did not establish how employees will be adversely affected by management's exercise of its right to discipline or how the proposal in dispute ameliorates the claimed adverse effects.

The Agency argues further that, even if the proposal benefits employees, it excessively interferes with the Agency's right to impose discipline under section 7106(a)(2)(A) of the Statute. The Agency notes, for example, that an employee who committed a series of different offenses during a short period of time would be treated under the proposal as a first offender for each offense. According to the Agency, the proposal would prevent the Agency from responding to the employee's habitual unacceptable behavior until the employee committed another offense identical to one committed earlier. The Agency concludes that, as a result, the "agency's mission and the morale of the other employees suffer immeasurably waiting for the unsatisfactory employee to incur identical second and third offenses." Id. at 6-7.

B. The Union

The Union claims that the proposal does not interfere with management's right to discipline under section 7106 of the Statute. To support this claim, the Union maintains that the proposal was intended to set general standards to ensure that disciplinary matters are effected in a "fair and equitable manner." Petition for Review at 2.

In addition, the Union argues that the proposal does not prevent the Agency from selecting appropriate discipline because the Table of Penalties allows the Agency to enhance a penalty if the situation warrants that action. The Union argues that under this provision, the Agency "can use any prior discipline to enhance any penalty" it imposes. Id. The Union asserts that the "proposal only prohibits using prior dissimilar offenses to arbitrary [sic] and capriciously excessively enhance the discipline[.]" Union's Reply Brief at 2.

The Union also argues that even if the proposal interferes with management's right to discipline, "the interference would not be excessive and the proposed language would be an appropriate arrangement[.]" Petition for Review at 3. The Union asserts that employees are adversely affected "by the Agency's use of any prior unrelated offense to move to a second offense in a different type of offense", by creating disproportionate penalties "based only on the sequence of occurance [sic] of the offenses[.]" Union's Reply Brief at 2-3. As an example, the Union states that if an employee with no prior discipline knowingly makes a false statement and subsequently makes a deliberate misrepresentation, the Table of Penalties suggests "for a second offense 5 day suspension to removal." Petition for Review at 2. The Union asserts that the employee "could conceivably receive only a 5 day suspension." Id. However, if an employee with no prior discipline makes a deliberate misrepresentation and then knowingly makes a false statement, the Union argues that the employee "probably will be removed" because "the second offense for this infraction [making a false statement] is removal." Id.

V. Analysis and Conclusion

A. The Proposal Violates Section 7106(a)(2)(A) of the Statute by Directly Interfering with Management's Right to Discipline

This proposal requires that management consider only like offenses when determining whether an employee's actions constitute first, second, or third offenses. By requiring that management only consider like offenses, the Agency is prevented from imposing a harsher penalty for repeated disciplinary problems where the employee commits different types of offenses. This requirement limits the Agency's discretion to determine the discipline that is warranted in individual cases. Proposals which limit the Agency's discretion to determine an appropriate penalty are outside the duty to bargain because they interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. As this proposal limits the Agency's discretion to determine appropriate penalties, it interferes with management's right to discipline and, therefore, is outside the duty to bargain. See West Point Elementary School Teachers Association, NEA and the United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1538-40 (1987) (Proposal 4, section 2), reviewed as to other matters sub nom., West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2d Cir. 1988) (proposal which limited agency in imposing discipline, including requirement that management use guide to actions contained in its regulation, held to directly interfere with management's right to discipline); 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, 129-34 (1987) (Bureau of Engraving and Printing) (proposal placing various restrictions on the agency's discretion to impose discipline held nonnegotiable because it interfered with management's right to discipline under section 7106(a)

(2)(A) of the Statute).

B. The Proposal is Not an Appropriate Arrangement Under Section 7106(b)(3) of the Statute

Contrary to the Union's argument, we find that the proposal is not an appropriate arrangement. We find that the proposal is similar to subsection (a) of Provision 22 in Bureau of Engraving and Printing, which placed various restrictions on the Agency's discretion to impose discipline for unacceptable conduct. As noted above,