40:0056(8)NG - - NAGE Local R4-45 and Navy Resale and Service Support Office, Norfolk, Virginia - - 1991 FLRAdec NG - - v40 p56

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40 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVY RESALE AND SERVICES SUPPORT OFFICE

NORFOLK, VIRGINIA

(Agency)

0-NG-1859

DECISION AND ORDER ON NEGOTIABILITY ISSUE

April 9, 1991

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) by the Union. The dispute concerns the negotiability of a proposal establishing a Schedule of Disciplinary Offenses and Recommended Remedies. For the following reasons we find the proposal to be nonnegotiable.

II. Proposal

The proposal is set forth in Appendix A attached to this decision.

III. Positions of the Parties

1. Agency

According to the Agency, this negotiability dispute arose during negotiations over the adoption of a schedule of disciplinary offenses and penalties at the local installation. The Agency claims that the proposal is a "modification" of its own proposed schedule. Agency's Statement of Position at 2. The Agency notes that the categories of offenses in the proposal are "generally consistent with" the Agency's schedule, but that the proposed penalties are not. Id. The Agency states that the proposal "typically provides for less severe disciplinary measures." Id.

The Agency contends that the proposal is nonnegotiable because it directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency notes that the Authority has held to be nonnegotiable proposals that incorporate into the parties' agreement terms governing the range of disciplinary actions that were drawn from existing agency regulations. Id. at 3-4, citing New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706, 732-35 (1987), reversed as to other matters sub nom. Veterans Administration Bronx Medical Center v. FLRA, No. 88-1150 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 377 (1988), request for reconsideration denied, 34 FLRA 805 (1990), petition for review dismissed sub nom. New York State Nurses Association v. FLRA, No. 88-1893 (D.C. Cir. April 11, 1989); 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), affirmed on other grounds sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2d Cir. 1988) (West Point Elementary School); National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 399-410 (1988), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 349 (1988). The Agency argues that the proposal in this case is "more intrusive" because the Union "is attempting to negotiate the penalties that may be imposed for various infractions." Id. at 4.

The Agency notes, for example, that, under the proposal, the penalties for "[u]nauthorized sale or transfer of a narcotic or dangerous drug on [G]overnment property or during duty hours" range from "[r]eprimand to removal" for a first offense, "5-day suspension to removal" for a second offense, and "10-day suspension to removal" for a third offense. Id. at 5. The Agency states that, under its own schedule of discipline, the penalty is simply "removal." Id. See Appendix B for the Agency's "Schedule of Offenses and Recommended Remedies." The Agency concludes that the proposal interferes with "managerial discretion with respect to determining appropriate disciplinary action for various infractions." Id. The Agency cites National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (Fort Eustis), in which a proposal prescribing a lesser penalty than that established by local installation regulations was held to be nonnegotiable.

The Agency also contends that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency argues that management's right to determine its internal security practices includes the right to take "those measures necessary to exclude or remove personnel who pose a danger to [A]gency employees, property or operations." Id. at 6. The Agency concludes that because the proposal would interfere with management's ability to "expeditiously remove" employees for drug trafficking, the proposal interferes with management's right to determine its internal security practices. Id.

2. Union

The Union contends that the intent of the proposal is "to provide reasonable guidelines to be used in determining remedies for disciplinary offenses." Union's Petition for Review at 1. According to the Union, the proposal "provides a table of offenses and recommended remedies as well as preserving the Agency right to effect remedies outside the general range depending on the gravity of the offense, the past record, and the position of the employee." Id. The Union states that the proposal is essentially the same as the existing disciplinary schedule, which was itself the result of an impasse in negotiations that went to the Federal Service Impasses Panel and culminated in an interest arbitration award. Id.

The Union claims that the proposal in this case is distinguishable from the proposals at issue in the cases cited by the Agency because it "provides for remedies outside the general range." Union's Response at 1. The Union notes that the proposed schedule "permits the Agency to consider such factors as the nature of the offense and whether an employee had previously committed the offense" in determining the appropriate penalty. Id. at 1-2. The Union concludes that, because "specific levels of discipline are not mandated" by the proposal, the proposal does not interfere with management's right to discipline. Id. at 2.

The Union also argues that the proposal would not interfere with management's right to determine its internal security practices because it would "preserve [management's] right to remove personnel who pose a danger to Agency employees, property or operations" and because it would not preclude management from invoking the "crime provisions" set forth in 5 U.S.C. § 7513(b)(1) and 5 C.F.R. § 752.404(d).

IV. Analysis and Conclusions

The proposal in dispute in this case prescribes the range of penalties that can be imposed on an employee for specified types of offenses. The proposal does not purport to "cover every possible type of offense." Appendix A. Rather, the proposal reserves to the discretion of management, consistent with the guidelines established by the proposal, the penalties to be imposed for offenses that are not listed in the proposal. However, the proposal does contemplate that the penalty imposed for a given offense "will generally range from the minimum remedy to the maximum" prescribed, except that, "depending on the gravity of the offense, the past record, and the position of the employee," penalties outside the prescribed range may be imposed. Id. We find that the disputed proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and, absent a claim that the proposal constitutes an appropriate arrangement under section 7106(b)(3), we conclude that the proposal is nonnegotiable.

Proposals that restrict the penalty that can be imposed on employees for a given offense directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina, 36 FLRA 28, 32-36 (1990) (Marine Corps Air Station); American Federation of Government Employees, Local 1770 and U.S. Department of the Army Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903, 906-07 (1990) (Fort Bragg); West Point Elementary School, 29 FLRA at 1538-40; and Fort Eustis, 29 FLRA at 968-70.

The schedule of penalties prescribed by the proposal for various offenses modifies the Agency's schedule of penalties by limiting the range of penalties that can be imposed for a given offense. For example, the range of penalties for the offense of "careless workmanship resulting in delay in production or spoilage or waste of materials" under the Agency's schedule of penalties ranges from reprimand to removal for a first offense, 5-day suspension to removal for a second offense, and 10-day suspension to removal for a third offense. See Appendix B. Under the proposed disciplinary schedule, however, the penalties for "careless workmanship" range from reprimand to 5-day suspension for a first offense, 5- to 10-day suspension for a second offense, and 10-day suspension to removal for a third offense. See Appendix A. The effect of the proposal, therefore, is to more narrowly limit the range of penalties that can be imposed for that offense and, thereby, to modify the penalties prescribed by the Agency. Compare Appendix A and Appendix B as to such offenses as "unexcused or unauthorized absence," "unexcused tardiness," "disobedience to constituted authorities," gambling or betting, and unauthorized possession, use, loss or damage to Government property, for other examples of the way in which the proposal modifies the penalties prescribed by the Agency by reducing their range.

In Fort Eustis, the Authority held that a proposal reducing the minimum penalty that could be imposed for a given offense directly interfered with management's right to discipline employees. See also Marine Corps Air Station, 36 FLRA at 34. We note that the proposal in Fort Eustis, like the proposal in this case, modified the penalty prescribed by the agency's regulation. However, the proposal in this case not only reduces some of the minimum penalties prescribed in the Agency's schedule of penalties, for example, the penalty for a second offense of "unexcused or unauthorized absence," but it reduces the maximum penalty for many offenses as well, for example, the penalty for a third offense of "unexcused tardiness."

In our opinion, there is no difference, in terms of the effect on management's right to discipline, between a proposal that reduces the minimum penalty that management can impose for a given offense and a proposal that reduces the maximum penalty. In either case, a limitation is imposed on management's determination of the appropriate penalty. Consequently, consistent with Fort Eustis, the proposal would directly interfere with management's right to discipline employees under section 7106(a)(2)(A).

However, as we noted at the outset, the proposal permits management to impose penalties outside the range prescribed by the proposal "depending on the gravity of the offense, the past record, and the position of the employee." Union Response at 1. Appendix A. The proposal, that is, requires management to impose a penalty within the range prescribed by the proposal unless the offense is sufficiently serious to, or the employee's past record or the nature of the employee's position would, warrant a penalty outside the prescribed range. We turn, then, to the question of whether this exception to the limitations prescribed by the proposal is sufficient to render the proposal negotiable. We conclude that it is not.

Under the exception to the proposal, management would be unable to impose more than a 2-day suspension for a first offense of "unexcused or unauthorized absence" unless the offense was sufficiently serious, or the employee's past record or position was such, as to warrant that penalty, instead of the reprimand to 2-day suspension prescribed by the proposal. Thus, where the factors stated in the exception are not present, management would be precluded from imposing a penalty that is outside the range prescribed by the proposal. The effect of the exception to the proposal, therefore, is to establish a substantive restriction on management's determination of the appropriate penalty for a given offense.

As we noted above, proposals that establish substantive restrictions on management's determination of the penalty to be imposed for a given offense directly interfere with management's right to discipline employees. See, for example, Marine Corps Air Station, Fort Bragg, West Point Elementary School, and Fort Eustis. Because the proposed schedule of penalties, including the exception to that schedule, would substantively restrict management's determination of the penalty to be imposed for a given offense, we find that the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

We note that the Agency's schedule of offenses and penalties contains a similar exception: "Remedies for offenses should normally fall within the range shown in the schedule unless mitigating or aggravating factors justify a remedy outside the range." See Appendix B. However, the fact that the proposal adopts an exception to the schedule of penalties that is substantively the same as that prescribed by the Agency does not affect the negotiability of the proposal. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 402, 406 (1987), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

Finally, we note that the Union did not specifically claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Moreover, even if we considered the proposal as a proposed arrangement, there is an insufficient record on which to determine whether the arrangement is appropriate under section 7106(b)(3). Accordingly, we conclude that the proposal is nonnegotiable because it directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. In light of our conclusion, we need not address the Agency's additional claim that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

V. Order

The petition for review is dismissed.

 

APPENDIX A

SCHEDULE OF DISCIPLINARY OFFENSES AND RECOMMENDED REMEDIES

INSTRUCTION FOR USE OF SCHEDULE

1. This list is not intended to cover every possible type of offense. Remedies for offenses not listed will be prescribed by the head of the activity consistent with the guidelines contained herein.

2. Many of the items listed on this schedule combine several offenses in one statement, connected by the word "OR." Usage of the word "OR" in a charge makes it nonspecific. Use only the items which describe the employee's actual conduct and leave out parts which do not apply.

3. Remedies for disciplinary offenses will generally range from the minimum remedy to the maximum indicated. However, depending on the gravity of the offense, the past record, and the position of the employee, a remedy outside the general range may be imposed.

4. Suspension remedies on this schedule refer to CALENDAR DAYS.

5. For information concerning other offenses for which employees may be disciplined by removal, fine or imprisonment, see FPM Chapter 735.

OFFENSES AND RANGES OF REMEDIES (PENALTIES)

OFFENSES	FIRST OFFENSE	SECOND OFFENSE	THIRD OFFENSE
ATTENDANCE
EXCESSIVE  UNAUTHORIZED ABSENCE (MORE THAN 5  CONSECUTIVE WORK DAYS)	Reprimand to  removal	5-day suspension to removal	10-day  suspension to  removal
FALSIFYING ATTENDANCE RECORD FOR ONESELF OR ANOTHER EMPLOYEE	Reprimand to 5-day suspension	5-day suspension to  removal	10-day suspension to removal

LEAVING JOB TO WHICH ASSIGNED OR NAVY PREMISES AT ANY TIME DURING WORKING HOURS WITHOUT PROPER PERMISSION	Reprimand to   5-day   suspension	Reprimand to  10-day  suspension	Reprimand to  removal

UNEXCUSED OR UNAUTHORIZED ABSENCE ON ONE OR MORE SCHEDULED DAYS OF WORK OR ASSIGNED OVERTIME	Reprimand to  2-day  suspension	1 to 5-day  suspension	5-day  suspension to  removal

UNEXCUSED TARDINESS	Reprimand	Reprimand to	Reprimand to
		1-day	2-day
		suspension	suspension

CONDUCT

ACTUAL OR ATTEMPTED	Reprimand to	5-day	10-day
THEFT OF GOVERNMENT	removal	suspension to	suspension to
PROPERTY OR THE		removal	removal
PROPERTY OF OTHERS

CRIMINAL, DISHONEST,	Reprimand to	5-day	10-day
INFAMOUS OR NOTORI-	removal	suspension to	suspension to
OULSLY DISGRACEFUL		removal	removal
CONDUCT ADVERSELY
AFFECTING THE
EMPLOYEE/EMPLOYER
RELATIONSHIP (ON
DUTY OR OFF DUTY)

DISOBEDIENCE TO	Reprimand to	5-day	10-day
CONSTITUTED	5-day suspension	suspension	suspension to
AUTHORITIES, OR		to removal	removal
DELIBERATE REFUSAL
TO CARRY OUT ANY
PROPER ORDER FROM
ANY SUPERVISOR
HAVING RESPONSI-
BILITY FOR THE WORK
OF THE EMPLOYEE; INSUBORDINATION, INCLUDING FAILURE TO FOLLOW KNOWN LOCAL OR HIGHER LEVEL POLICY

DISORDERLY CONDUCT;	Reprimand to	5-day	10-day
FIGHTING;	removal	suspension to	suspension to
THREATENING OR		removal	removal
ATTEMPTING TO
INFLICT BODILY
INJURY TO ANOTHER:
ENGAGING IN
DANGEROUS HORSEPLAY;
OR RESISTING
COMPETENT AUTHORITY

DISRESPECTFUL	Reprimand to	5-day	10-day
CONDUCT; USE OF	5-day	suspension to	suspension to
INSULTING, ABUSIVE	suspension	30-day	removal
OR OBSCENE LANGUAGE		suspension
TO OR ABOUT OTHER
PERSONNEL

FALSIFICATION	Reprimand to	5-day	10-day
MISSTATEMENT, OR	removal	suspension to	suspension to
CONCEALMENT OF		removal	removal
MATERIAL FACT IN
CONNECTION WITH ANY
OFFICIAL RECORD

FALSE TESTIMONY OR	Reprimand to	5-day	10-day
REFUSAL TO TESTIFY	removal	suspension to	suspension to
IN AN INQUIRY, IN-		removal removal
VESTIGATION OR OTHER
OFFICIAL PROCEEDING
EXCEPT REFUSAL TO
ADMIT/DENY COMMIS-
SION OF AN OFFENSE
WILL NOT BE GROUNDS
FOR DISCIPLINE

FILING FALSE CLAIMS	Reprimand to	5-day	10-day
AGAINST THE	removal	suspension to	suspension to
GOVERNMENT OR		removal	removal
KNOWINGLY AIDING AND
ASSISTING IN THE
PROSECUTION OF SUCH
CLAIMS (SEE 18 USC
287, 1001)

GAMBLING OR UNLAWFUL	Reprimand to	Reprimand to	Reprimand to
BETTING DURING	2-day	5-day	removal
WORKING HOURS	suspension	suspension

PROMOTION OF	Reprimand to	5-day	10-day
GAMBLING ON NAVY	removal	suspension to	suspension to
PREMISES		removal	removal

WILLFUL DAMAGE TO	Reprimand to	5-day	10-day
GOVERNMENT PROPERTY	5-day	suspension to	suspension to
OR THE PROPERTY OF	suspension	removal	removal
OTHERS

MISUSE OF A GOVERN-	Reprimand to	30-day	removal
MENT VEHICLE	removal	suspension to
		removal

RECKLESS DRIVING
OR IMPROPER
OPERATION OF MOTOR
VEHICLE:

CAUSING PERSONAL	Reprimand to	14-day	30-day
INJURY TO SELF OR	removal	suspension to	suspension to
OTHERS OR DAMAGE TO		removal	removal
GOVERNMENT PROPERTY
NO PERSONAL INJURY TO	Reprimand to	Reprimand to	14-day
SELF OR OTHERS OR	5-day	to 10-day	suspension to
DAMAGE TO GOVERN-	suspension	suspension	removal
MENT PROPERTY

PERFORMANCE

CARELESS WORKMAN-	Reprimand to	5 to 10-day	10-day suspension
SHIP RESULTING IN	5-day	suspension	to removal
SPOILAGE OR WASTE OF	suspension
MATERIALS OR DELAY
IN PRODUCTION

COVERING UP OR	Reprimand to	1 to 5-day	5-day
ATTEMPTING TO CON-	2-day	suspension	suspension to
CEAL DEFECTIVE WORK;	suspension		removal
DESTROYING SAME
WITHOUT PERMISSION

FAILURE OR DELAY IN	Reprimand to	1 to 5-day	5-day
CARRYING OUT ORDERS,	2-day	suspension	suspension to
WORK ASSIGNMENTS, OR	suspension		removal
INSTRUCTIONS OF
SUPERIORS

LOAFING, WASTING	Reprimand to	1 to 5-day	5-day
TIME, OR INATTENTION	2-day	suspension	suspension to
TO DUTY	suspension		removal

SLEEPING ON DUTY	Reprimand to	5-day	10-day suspension
	5-day	suspension to	to removal
	suspension	30-day
		suspension

a. WHERE LIFE OR	Reprimand to	5-day	10-day
PROPERTY IS EN-	removal	suspension to	suspension to
DANGERED		removal	removal

UNAUTHORIZED USE OF	Reprimand to	5-day	10-day suspension
OR POSSESSION OF	2-day	suspension to	to removal
LOSS OF OR DAMAGE TO	suspension	30-day
		suspension

SAFETY

FAILURE TO OBSERVE	Reprimand to	1 to 5-day	10-day suspension
PRECAUTIONS FOR	2-day	suspension	to removal
PERSONAL SAFETY	suspension
POSTED RULES, SIGNS,
WRITTEN OR ORAL
SAFETY INSTRUCTIONS
OR TO USE PROTECTIVE
CLOTHING OR
EQUIPMENT

VIOLATION OF SAFETY	Reprimand to	5-day	10-day suspension
REGULATION WHICH	5-day	suspension to	to removal
ENDANGERS LIFE OR	suspension	30-day
PROPERTY		suspension

ENDANGERING THE	Reprimand to	5-day	10-day suspension
SAFETY OF OR CAUSING	removal	suspension to	to removal
INJURY TO PERSONNEL		removal
THROUGH CARELESSNESS

FAILURE TO OBSERVE	Reprimand to	5-day	10-day suspension
NO SMOKING	removal	suspension to	to removal
REGULATIONS OR		removal
CARRYING MATCHES IN
RESTRICTED AREAS

VIOLATING TRAFFIC	Reprimand to	Reprimand to	5 to 10-day
REGULATIONS,	2-day	5-day	suspension
RECKLESS DRIVING ON	suspension	suspension
NAVY PREMISES, OR
IMPROPER OPERATION
OF MOTOR VEHICLE

SECURITY

FAILURE TO SAFEGUARD	Reprimand to	Reprimand to	10-day suspension
CLASSIFIED MATTER OR	5-day	14-day	to removal
OTHER SECURITY	suspension	suspension
VIOLATIONS

A. WHEN CLASSIFIED	Reprimand to	5-day	10-day suspension
MATERIAL HAS BEEN	removal	suspension to	to removal
COMPROMISED		removal

PROHIBITED PERSONNEL
PRACTICE

COMMITTING	Reprimand to	5-day	10-day suspension
PROHIBITED PERSONNEL	removal	suspension to	to removal
PRACTICE IN		removal
VIOLATION OF 5 USC
2302

UNAUTHORIZED DISCLOSURE
OR USE OF PROTECTED
MATERIAL

UNAUTHORIZED DISCLOSURE	Reprimand to	14-day	30-day suspension
OR USE OF INFORMATION	removal	suspension to	to removal
OR OTHER PROTECTED		removal
MATERIAL (e.g., RECORDS
COVERED BY THE PRIVACY
ACT OR UNDER 42
CFR PART 2 (CEAP
RECORDS)

DISCRIMINATION

DISCRIMINATION AGAINST	Reprimand to	14-day	30-day suspension
AN EMPLOYEE OR APPLICANT	removal	suspension to	to removal
BASED ON RACE COLOR
RELIGION, SEX, HANDICAP,
NATIONAL, ORIGIN, OR
AGE, OR ANY REPRISAL
OR RETALIATION
ACTION AGAINST A
COMPLAINANT,
REPRESENTATIVE, No Fear Act | FOIA | 508 Compliance