34:1150(173)NG - - Portsmouth FEMTC and Portsmouth Naval Shipyard - - 1990 FLRAdec NG - - v34 p1150



[ v34 p1150 ]
34:1150(173)NG
The decision of the Authority follows:


34 FLRA No. 173

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PORTSMOUTH FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

and

PORTSMOUTH NAVAL SHIPYARD

(Agency)

0-NG-1554

DECISION AND ORDER ON NEGOTIABILITY ISSUE

February 28, 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 which would prohibit the Agency from using answers provided by employees in discussions with management to support disciplinary actions when: (1) the Agency knew that the employee was involved in an infraction of work rules which could result in discipline, and (2) the employee was not afforded union representation during the discussion.

We find that the proposal is nonnegotiable because it directly and excessively interferes with the Agency's right under section 7106(a)(2)(A) of the Statute to take disciplinary action and does not constitute an appropriate arrangement under section 7106(b)(3).

II. The Proposal

Section 3. It is understood that adverse actions may be taken for either disciplinary or nondisciplinary reasons. However, when an adverse action is taken for disciplinary reasons, i.e., misconduct, the following will apply:

a. The Employer retains the right to question employees during discussions on any matter pertaining to the Employer-Employee relationship without affording the employee the right to Council representation. However, when it is known that an employee is involved in an infraction of work rules that could result in disciplinary action, the employee will be advised that he has the right to Council representation prior to any further questioning. An employee's answers to questions in discussions where Council representation was not afforded will not be used to support disciplinary action. [Only the underscored portion is in dispute.]

III. Positions of the Parties

A. The Agency

The Agency argues that the disputed sentence is nonnegotiable because: (1) it excessively interferes with the right to take disciplinary action under section 7106(a)(2)(A) of the Statute; and (2) insofar as the proposal applies to actions taken under 5 U.S.C. §§ 4303 and 7512, the sentence is inconsistent with 5 U.S.C. §§ 7701(c)(2)(A) and 7121(e)(2).

The Agency argues that the disputed sentence conflicts with its right to take disciplinary actions. The Agency maintains that the proposal would prevent it from taking disciplinary action where an employee's admission, which was crucial to the disciplinary action, was made during a discussion where management failed to inform the employee of the right to union representation or otherwise failed to afford union representation. The Agency cites the Authority's decision in Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988) (Charleston Naval Shipyard), for the proposition that disciplinary action may not be reversed based only on the failure to afford representation under section 7114(a)(2)(B) of the Statute.

The Agency contends that the proposal is not negotiable as an appropriate arrangement under section 7106(b)(3) because the proposal would make taking disciplinary action against employees more difficult and, in some cases, impossible. The Agency further contends that the proposal would apply to cases where "it can reliably be determined that the employee has engaged in conduct for which disciplinary action is appropriate." Agency's Supplemental Submission at 8. In such circumstances, the Agency argues, the proposal would not promote efficient and effective Government because the proposal would allow an employee to escape discipline for egregious misconduct because of an inadvertent mistake by management. The Agency contends that the question of whether a disciplinary action should be overturned because of the Agency's failure to afford union representation should be determined by an arbitrator on a case-by-case basis.

The Agency relies on the Supreme Court's decision in Cornelius v. Nutt, 472 U.S. 648 (1985), for its argument that the proposal conflicts with 5 U.S.C. §§ 7701(c)(2)(A) and 7121(e)(2). The Agency states that those sections provide that actions taken under 5 U.S.C. §§ 4303 and 7512 may not be overturned based on harmless procedural error. The Agency contends that because the proposal could prevent the Agency from taking a disciplinary action in situations where the Agency's failure to afford union representation constituted harmless error, the proposal conflicts with 5 U.S.C. §§ 7701(c)(2)(A) and 7121(e)(2).

Finally, the Agency contends that the proposal is prone to dispute over its application and is inconsistent with application of the "exclusionary rule" in criminal law.

B. The Union

The Union contends that the proposal is negotiable as a procedure under section 7106(b)(2) of the Statute or, alternatively, as an appropriate arrangement under section 7106(b)(3).

The Union asserts that the proposal constitutes a negotiable procedure under section 7106(b)(2) because it does not directly interfere with the Agency's right to initiate disciplinary actions. The Union also asserts that the disputed portion of the proposal simply "breathes life" into the Agency's obligation to inform the employee of, and honor, rights under section 7114(a)(2)(B) of the Statute. Union's Reply Brief at 4-5.

Alternatively, the Union asserts that the proposal constitutes an appropriate arrangement. The Union maintains that the proposal mitigates the adverse effects of the Agency's exercise of its right to conduct disciplinary interviews by ensuring that unit employees are afforded their statutory right to union representation in such interviews. The Union contends that the proposal also ameliorates the adverse effects of the Agency's exercise of its right to discipline by precluding the use of any "improperly taken" statements to support a disciplinary action. Union's Reply Brief at 10-11.

The Union argues that although the proposal might prevent the Agency from prevailing in a grievance over a disciplinary action, it does not prevent the Agency from instituting an action against an employee. Union's Supplemental Submission at 4-5. The Union points out that whether there is any interference with management's rights under the proposal is solely within the control of management; management can preserve its ability to use statements made during investigatory interviews by informing employees of their rights to union representation and honoring requests for representation.

The Union contends that the Agency's reliance on Cornelius v. Nutt is misplaced because that decision addressed the issue of whether an agency's failure to afford union representation at an investigatory interview which led to discipline should nullify the action. The Union maintains that nothing in the proposal "would nullify . . . discipline if the Agency failed to afford Weingarten representation." Union's Reply Brief at 15.

The Union argues that the Agency's reliance on Charleston Naval Shipyard, 32 FLRA 222 (1988), also is misplaced. The Union asserts that the issue in Charleston Naval Shipyard was whether, in an unfair labor practice case, a make-whole remedy should be imposed for a violation of section 7114(a)(2)(B) of the Statute. The Union contends that the proposal in this case does not dictate what discipline is appropriate in circumstances where the Agency fails to afford employees union representation. The Union states that if the discipline is determined to be for just cause, the Agency's "breach of its Weingarten obligations" will not nullify the disciplinary action. Union's Reply Brief at 13-14.

The Union also contends that the Agency misunderstands the reasons for the exceptions to the "exclusionary rule" in criminal cases. The Union argues that the exceptions were created because application of the rule in the circumstances involved in the exceptions would not further the reason for the rule--deterrence of police misconduct. The Union asserts that the proposal will deter future abridgments of employees' "Weingarten rights." Union's Reply Brief at 15-16.

The Union contends that the fact that the proposal has been in the parties' contract since 1974 undercuts the Agency's argument that the proposal would be prone to disputes over its application and demonstrates its "compatibility with Section 7106(a)(2)(A)." Union's Reply Brief at 12 n.5.(1)

IV. Analysis and Conclusions

A. The Proposal Does Not Enforce Statutory Rights

The Union asserts that the proposal "in no way interferes with management's right to discipline employees" because the proposal "does no more than reinforce the Agency's statutory obligation" to afford union representation in disciplinary meetings. Union's Reply Brief at 4-5. We reject this assertion. The Union's statement that the proposal merely reinforces the Agency's obligations to provide union representation under section 7114(a)(2)(B) of the Statute is inconsistent with the plain wording of the proposal.

The disputed portion of the proposal prohibits the Agency from supporting disciplinary action against an employee by using statements made by that employee during discussions where "Council representation was not afforded[.]" There is no reference to section 7114(a)(2)(B) of the Statute in the proposal. Further, the undisputed portion of the proposal does not restate section 7114(a)(2)(B) rights. The undisputed portion of the proposal differs from the statutory right to representation in two respects.

First, section 7114(a)(2)(B)(i) of the Statute provides that a union shall be given an opportunity to be represented at investigatory examinations when, among other things, "the employee reasonably believes that the examination may result in disciplinary action[.]" See National Treasury Employees Union v. FLRA, 835 F.2d 1446 (D.C. Cir. 1987) (an employee who was unaware of management's role in an examination could not reasonably have believed that disciplinary action could result and, therefore, had no right to union representation under section 7114(a)(2)(B)). Under the Statute, therefore, a prerequisite to the right to union representation is the employee's reasonable belief that discipline may result from the examination. The proposal, on the other hand, requires the Agency to afford an employee union representation when "it is known that an employee is involved in an infraction of work rules that could result in disciplinary action[.]" The right to representation under the proposal is premised on the Agency's "knowledge" rather than the employee's belief.

Second, the Statute requires the Agency annually to inform employees of their rights to union representation under section 7114(a)(2)(B). 5 U.S.C. § 7114(a)(3). There is no statutory requirement that the Agency inform employees of these rights before individual examinations. The proposal, however, requires the Agency to advise employees of the right to union representation before any discussion which could lead to discipline.

Because the right to representation under the proposal differs from the right to representation under the Statute, we reject the Union's assertion that the proposal reinforces statutory rights. Rather, based on the plain wording of the proposal, we find that the disputed portion of the proposal applies to information obtained during discussions where an employee's right to union representation was based on a contractual rather than a statutory right.

We do not base negotiability determinations on a union's statement of intent which is inconsistent with the plain wording of the proposal. See, for example, Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1443 (1987). Therefore, we will not base our negotiability determination on the Union's interpretation of the proposal.

B. The Proposal Does Not Conflict with 5 U.S.C. §§ 7701(c)(2)(A) and 7121(e)(2)

5 U.S.C. §§ 7701(c)(2)(A) and 7121(e)(2) provide that an agency's decision to take certain disciplinary or performance-based actions may not be sustained if the employee shows "harmful error" in the application of the agency's procedures in arriving at the decision to take action against the employee. Under 5 U.S.C. § 7701(c)(2)(A), this "harmful error" rule applies to appeals taken to the Merit Systems Protection Board (MSPB). Under 5 U.S.C. § 7121(e)(2), arbitrators are governed by the "harmful error" rule for matters covered under 5 U.S.C. §§ 4303 and 7512 which are raised under a negotiated grievance procedure. Cornelius v. Nutt, 472 U.S. 648 (1985).

The "harmful error" rule applies where the MSPB or an arbitrator is considering appeals of disciplinary or performance-based actions covered under 5 U.S.C. §§ 4303 and 7512. When addressing procedural errors made by an agency in arriving at a decision to take such actions, the MSPB and arbitrators may not sustain the action if the procedural error was "harmful." Conversely, the MSPB or an arbitrator may not set aside an agency's action based on procedural error which was "harmless." See Cornelius v. Nutt.

The proposal here addresses what evidence the Agency may rely upon to support disciplinary action when it has failed to afford an employee union representation. The proposal establishes requirements the Agency must follow in taking disciplinary actions which, as we discuss later, would affect the Agency's ability to carry out a disciplinary action. However, the proposal itself does not dictate whether a failure to follow those requirements would constitute "harmful" or "harmless" error for purposes of review of the disciplinary action by the MSPB or an arbitrator. Consequently, although we find the proposal to be nonnegotiable on other grounds, we reject the Agency's arguments that the proposal conflicts with sections 7701(c)(2)(A) and 7121(e)(2). Compare Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1418-21 (1987), affirmed sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. l989), in which the Authority found that a proposal requiring an arbitrator to disregard the "harmful error" rule was nonnegotiable because it was inconsistent with 5 U.S.C. § 7701(c)(2).

C. The Proposal Interferes with the Right To Take Disciplinary Action

The right to discipline employees under section 7106(a)(2)(A) of the Statute includes the right to investigate to determine whether discipline is justified. For example, American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 30 FLRA 837, 843-44 (1987). As noted by the court in National Federation of Federal Employees v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986):

[D]isciplinary action that is unsupported by a preponderance of the evidence before the agency is reversed on appeal not because of some special evidentiary requirement applicable to appeals, but because disciplinary action that is not so supported is unlawful, whether or not it is appealed. Thus, to prevent the agency from obtaining evidence justifying dismissal is to prevent it from dismissing. [Emphasis omitted.]

As the right to discipline employees encompasses the investigation to determine whether discipline is justified, it follows that the right also encompasses the use of the evidence obtained during the investigation. Otherwise the right to investigate would be meaningless. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1047-50 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408/88-7470 (9th Cir. Feb. 7, 1989) (the decision to initiate disciplinary action based upon available evidence, whatever the quality of that evidence, is committed to management's discretion under section 7106(a)(2)(A)).

The proposal restricts the evidence which the Agency can use to support a disciplinary action. By limiting the evidence which can be used to support a disciplinary action, the proposal directly interferes with management's right to take disciplinary action. See Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 652-53 (1988). The ability to use evidence obtained to support a disciplinary action is integral to the right to take disciplinary actions in accordance with law. Therefore, even assuming for the purposes of this decision that the proposal preserves the Agency's right to initiate discipline, it interferes with the Agency's right to investigate and use the results of an investigation to support a disciplinary action.

A proposal which directly interferes with the right to discipline employees does not constitute a negotiable procedure under section 7106(b)(2). See Department of Defense v. FLRA, 659 F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). The proposal directly interferes with the Agency's right to discipline by limiting the evidence which can be used to support disciplinary action. Therefore, it is not a negotiable procedure.

The Union's assertion that the disputed sentence has been included in previous contracts is irrelevant to determining the negotiability of the disputed sentence. The inclusion of an identical provision in a previous contract is not dispositive of the issue of whether the provision is inconsistent with applicable law and regulations. Further, the parties' arguments concerning the potential for disputes over the application of the proposal and exceptions to the "exclusionary rule" may be relevant to the desirability of the proposal. The arguments are irrelevant, however, to determining whether the proposal is negotiable.

For these reasons, we find that the disputed portion of the proposal conflicts with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute and is not a negotiable procedure under section 7106(b)(2).

D. The Disputed Portion of the Proposal Is Not Negotiable as an Appropriate Arrangement (2)

The Union states that the disputed portion of the proposal is intended as an "arrangement" for employees who are adversely affected by the Agency's exercise of its right to conduct investigations before taking disciplinary actions. According to the Union, the disputed portion of the proposal would ameliorate the effect on employees of the denial of contractual rights to union representation during investigatory interviews. Union's Reply Brief at 10-11. Based on the plain wording of the proposal and the Union's statement of intent, we find that the disputed portion of the proposal constitutes an "arrangement" within the meaning of section 7106(b)(3). We now turn to the question of whether the proposed arrangement is "appropriate."

The proposal benefits employees by preventing the Agency from using information to support disciplinary actions if the information was obtained during discussions which were held in violation of contractual rights. This preclusion or bar is a substantial benefit to employees. The proposal's effect on the Agency's right to discipline also is substantial, however. The proposed arrangement establishes a blanket prohibition on the use of evidence obtained in an interview where an employee was not afforded the contractual right to representation. In some situations, where the employee's statement was crucial to supporting discipline, the proposal could prevent an otherwise warranted disciplinary action from occurring. See National Federation of Federal Employees v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986) (disciplinary actions must be supported by a preponderance of evidence). As the Union acknowledges, the proposal may "prevent management from winning its case if the employee challenges the discipline." Union's Supplemental Statement at 5.

The proposal would apply to the Agency's "inadvertent as well as intentional failures to afford union representation . . . ." Union's Reply Brief at 2 n.l. The proposal would apply without regard to factors such as the circumstances surrounding the Agency's failure to afford union representation, the nature of the misconduct involved, or the extent to which the absence of a union representative may have enabled the Agency to obtain information that it otherwise would not have obtained. We note that employees have a duty to account for their performance and conduct in disciplinary investigations and have no statutory right to remain silent. For example, Navy Public Works