35:0108(14)NG - - AFGE, Council of Marine Corps Locals, Council 240 and Navy, Marine Corps - - 1990 FLRAdec NG - - v35 p108
[ v35 p108 ]
The decision of the Authority follows:
35 FLRA No. 14
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
COUNCIL OF MARINE CORPS LOCALS, COUNCIL 240
DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
March 15, 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 requires that the standard of "nexus" will apply to disciplinary actions.(1)
For the reasons discussed below, we find that the proposal reflects a statutory requirement which is applicable to adverse actions taken under 5 U.S.C. Chapter 75 and is within the duty to bargain.
II. The Proposal
Subject to applicable law, rule and regulation, employees shall have the right to direct and/or fully pursue their private lives, personal welfare and personal beliefs without interference, coercion or discrimination by the employer so long as such activities do not conflict with job responsibilities. The standard of nexus shall apply. (Only the underlined sentence is in dispute.)
III. Positions of the Parties
A. The Agency
The Agency contends that by prescribing a "nexus" standard in evaluating employee conduct, the proposal interferes with its authority to take disciplinary action under section 7106(a)(2)(A) of the Statute. The Agency maintains that, like the proposals found nonnegotiable in National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360 (1988) (Proposals 19 and 20) (NFFE), remanded sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988), the proposal in this case places substantive limitations on management's right to take disciplinary action by establishing a particular relationship between the employee's conduct and the employee's job performance which must exist in order to sustain a disciplinary action.
The Agency also contends that the proposal conflicts with Executive Order 12564, entitled "Drug-Free Federal Workplace." The Agency maintains that like Proposal 20 in NFFE, which the Authority found to conflict with Executive Order 12564, the proposal in this case would bar the Agency from disciplining an employee based on the use of drugs unless the drug usage could be shown to be job-related under the "nexus" standard. Claiming that the Executive Order's standard for disciplining employees found to be using illegal drugs is not the "conventional 'job-relatedness' test one associates with nexus," the Agency argues that the proposal conflicts with Executive Order 12564, which has the "force and effect of law." Agency's Statement of Position at 5.
B. The Union
The Union contends that the proposal is negotiable because it merely provides that the prevailing legal requirement of nexus will apply consistent with applicable laws, rules, and regulations. The Union also states that the proposal is intended to be fully consistent with 5 C.F.R. Part 735 and allows flexibility in the application of the nexus standard. The Union maintains that if the legal requirement for nexus changes, the application of the nexus standard under the wording of the proposal will change to remain consistent with applicable law, rule, or regulation.
The Union also argues that there are substantial differences between the proposal in this case and the proposals found to be nonnegotiable by the Authority in NFFE. The Union maintains that, unlike the proposals in NFFE, the proposal in this case does not prescribe an independent contractual standard which limits management's right to take disciplinary action.
IV. Analysis and Conclusions
We conclude that the proposal is within the duty to bargain.
The Union views the phrase "nexus standard" as referring to the "legal requirement . . . that a disciplinary action is for the 'efficiency of the service.'" Union's Response at 2. The Union states that it "intends the same definition and . . . the same standard as [applied by] the Merit Systems Protection Board (MSPB)." Id. at 1. The Union states that the proposal "is clearly crafted to adhere to the required legal standards." Id. at 5. The Union also states that applicable case law was carefully considered when it drafted the proposal. As an example, the Union cites the decision of the MSPB in Merritt v. Department of Justice, 6 MSPR 585 (1981), and maintains that the MSPB viewed the nexus standard in terms "of how . . . misconduct must relate to 'the efficiency of the service' before action may be warranted under Chapter 75 of Title 5, U.S. Code." Id. at 8.
Based on the Union's statement of intent, we find that the proposal is intended to apply only to adverse actions taken under 5 U.S.C. Chapter 75. Our analysis and conclusions are based on that finding.
The courts and the Merit Systems Protection Board hold that an agency must establish a "nexus" or connection between the employee's conduct and the efficiency of the service in order to support an adverse action under 5 U.S.C. Chapter 75. In Doe v. Hampton, 566 F.2d 265, 272 (D.C. Cir. 1977), the court stated that to justify an adverse action there must be "a nexus between the 'cause' asserted . . . and 'promotion of the efficiency of the service [.]'" Id. at 272. The court held that "[t]he nexus requirement . . . mandat[es] that an adverse action be taken only for reasons that are directly related to a legitimate governmental interest, such as job performance." Id. at n.20; see also Parsons v. U.S. Department of the Air Force, 707 F.2d 1406, 1408 n.5, 1409 n.7 (D.C. Cir. 1983) (where the court noted that "the question of whether there is an adequate nexus between the grounds for an adverse action and the 'efficiency of the service'" involves consideration of whether the employee's conduct affected the employee's job performance or the ability of the agency to perform its mission). The MSPB has held as follows:
This "nexus" requirement means that: "there must be a clear and direct relationship between the articulated grounds for an adverse action and either the employee's ability to accomplish his or her duties satisfactorily or some other legitimate governmental interest promoting the 'efficiency of the service.'"
Risner v. FAA, 7 MSPR 480, 486 (1981) (quoting Doe v. Hampton, 566 F.2d at 272 (footnote omitted)).
Management's right to take disciplinary action against employees under section 7106(a)(2)(A) must be exercised in accordance with law. See National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578, 586 (1988). By providing that the nexus standard shall apply consistent with applicable laws, rules, and regulations, the proposal requires only that the Agency take adverse actions in accordance with the applicable nexus requirement existing at the time of the action. Because the proposal requires only that the Agency comply with applicable legal requirements in taking an adverse action under 5 U.S.C. Chapter 75, the proposal does not interfere with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute.
The proposal is distinguishable from the proposals found to be outside the duty to bargain in NFFE based, in part, upon their contravention of management's right to take disciplinary action. Each of the proposals in NFFE established a particular relationship between off-duty conduct and the employee's job performance or conduct on the job which must exist in order to sustain the disciplinary action. Proposal 19 in NFFE required the agency to demonstrate "job relatedness." 31 FLRA at 407. Proposal 20 required the agency to demonstrate a relationship between an employee's use of alcohol or other drugs and "job performance or conduct." Id. at 410. These requirements are more restrictive than the legal requirements governing adverse actions or the standard for discipline prescribed by Executive Order 12564. Therefore, Proposals 19 and 20 in NFFE, rather than implementing applicable law, established independent, substantive, contractual limitations on management's right to take disciplinary actions based on certain conduct.(2)
The proposal in the instant case does not establish a separate contractual limitation on management's right to take disciplinary action. Therefore, unlike the proposals in NFFE, the proposal in the instant case is no more restrictive than the legal requirements governing adverse actions or the standard for discipline prescribed by Executive Order 12564.(3)
Accordingly, the disputed portion of the proposal is negotiable.
The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the disputed portion of the proposal.(4)