44:0434(38)NG - - PASS, Chapter 252 and Navy, Marine Corps Air Station, Cherry Point, NC - - 1992 FLRAdec NG - - v44 p434



[ v44 p434 ]
44:0434(38)NG
The decision of the Authority follows:


44 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS

CHAPTER 252

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS AIR STATION

CHERRY POINT, NORTH CAROLINA

(Agency)

0-NG-1972

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

March 17, 1992

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) and concerns the negotiability of the portions of the proposed Article 5 that establish a schedule of disciplinary offenses and penalties. For the following reasons, we find that the proposal is nonnegotiable.

II. Proposal

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

III. Positions of the Parties

A. Agency

The Agency contends that the Union's petition for review is deficient under section 2424.4(a)(1) of the Authority's Rules and Regulations because the petition does not state clearly "what language the [U]nion believes to be negotiable in Article 5 . . . which the [Agency] has stated to be nonnegotiable." Agency's Statement of Position (Statement) at 1. The Agency notes that: (1) the issue of the 3-year "reckoning period" raised in the petition for review is not included in Article 5; and (2) there is no statement from the Agency that it will not bargain on issues included in Article 5 on the basis that Article 5 is inconsistent with law and applicable regulation.(1) The Agency also notes that, pursuant to the settlement of a related unfair labor practice charge in Case No. 4-CA-10676, the Agency agreed to: (1) provide the Union with a copy of existing Agency regulations regarding discipline; and (2) continue the status quo until the Agency has fulfilled its bargaining obligation over the implementation of new Agency regulations regarding discipline.

The Agency states that, if this case is properly before the Authority, the Agency "assumes" that the disputed portions of the proposal in this case concern: (1) the reestablishment of "a three (3) year reckoning period for disciplinary actions, suspensions and reductions in pay and grade for disciplinary reasons" that "was included in the [A]gency's previous regulation, OPNAVINST 12000.14 dated March 22, 1983, but not included in the new [A]gency regulation, OCPMINST 12752.1"; (2) "[the] schedule of disciplinary offenses and recommended remedies shown in Article 5"; and (3) "[the] range of penalties included in the schedule of disciplinary offenses included in Article 5[.]" Id. at 3.

The Agency contends that these portions of the proposal are nonnegotiable because they excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. According to the Agency, the Authority has found nonnegotiable proposals that establish reckoning periods that limit management's ability to consider prior disciplinary actions when determining appropriate disciplinary penalties. The Agency cites International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 41 FLRA 1452 (1991) (Naval Aviation Depot), in which the Authority found nonnegotiable a proposal that precluded management from treating as a prior offense any suspension or reduction in grade or pay effected for disciplinary reasons that occurred more than 3 years before the date of the proposed adverse action.

The Agency also cites International Association of Machinists and Aerospace Workers, Lodge 110 and U.S. Department of the Navy, United States Marine Corps Air Station and Naval Aviation Depot, Cherry Point, North Carolina, 42 FLRA 192 (1991) (Cherry Point), in which the Authority held that a proposal establishing a 3-year reckoning period excessively interfered with management's right to discipline employees notwithstanding a claim that such a proposal merely provided a reasonable period for computing the frequency or number of prior offenses. The Agency contends that a proposal to establish a reckoning period would "prevent the [A]gency from determining an appropriate penalty to use when disciplining its employees." Statement at 6.

As to the Union's attempt to negotiate changes in the Agency's policy on disciplinary actions relating to the schedule of offenses and the range of remedies, the Agency argues that the proposal attempts to modify the Agency's regulations by substituting changes in the range of penalties to "minimize the severity of some of the choices management has in determining appropriate disciplinary actions." Id. at 7. The Agency asserts that, because Article 5 would both include in the agreement the table of penalties prescribed by the Agency's disciplinary regulations and modify that table of penalties, the proposal excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency cites New York State Nurses Association and Veterans Administration Bronx Medical Center, 30 FLRA 706 (1987) (Proposal 11) and West Point Elementary School Teacher Association, NEA and the United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531 (1987) (Proposal 4).

B. Union

The Union contends that the Agency's claim that the petition for review lacks specificity is unwarranted because the Union "explicitly explained" the meaning of the proposal. Union's Response (Response) at 1. The Union states that it initiated bargaining in this case in response to the Agency's decision to delete a 3-year reckoning period from the Agency's disciplinary regulation. According to the Union, the Agency attempted to restrict bargaining to the deletion of the reckoning period. The Union notes, however, that the Agency also refused to bargain on all other matters pertaining to disciplinary policies and procedures. The Union argues that, in order to protect its rights, it filed its petition for review following the Agency's general declaration of nonnegotiability.

The Union notes the Agency's claim that the Agency cannot identify "any statement" which alleges that the Agency will not bargain on the proposal because it is outside management's duty to bargain in good faith. Id. The Union interprets the Agency's claim as a withdrawal of the allegation of nonnegotiability and states that, if the Authority agrees, the Union will withdraw its petition for review without prejudice in order to resolve the dispute pursuant to the settlement agreement in Case No. 4-CA-10676.

The Union also states, however, that if the Authority finds its petition for review "sufficient for processing," the whole of Article 5 "is negotiable because it does not 'excessively interfere" with management[']s right to discipline as defined by the [S]tatute." Id. Specifically, in response to the Agency's position regarding the deletion of the 3-year reckoning period from the Agency's disciplinary regulations, the Union argues that Article 5, Section 6(b)(3) and (4) does not hamper the Agency's ability to determine appropriate disciplinary actions for employees, but rather outlines factors for management to take into consideration in exercising its right to discipline. The Union also notes that Article 5, Section 6(b)(3) and (4) is the Union's response to the Agency's "desire to delete the reckoning period and hold past offenses against an individual throughout his career even after several years of productive service to the [G]overnment have occurred." Id.

The Union disputes the Agency's claim that portions of Article 5 are "[A]gency 'regulatory' language or a modification of the [A]gency's published 'regulations.'" Id. at 2. The Union notes that Article 5 concerns "recommended" remedies and argues that because a recommendation is not "'mandatory' or 'regulatory'," Article 5 "is discretionary in nature[.]" Id. The Union contends that, by providing "recommended" remedies and offenses, Article 5 does not limit the Agency's use of this "guide," but provides that "remedies greater than those shown may be appropriate when an aggravated offense, frequent infractions, or simultaneous offenses are established." Id.

The Union explains that Article 5, Section 3 "[s]tates the procedure for informing the employee of the utilization of a past offense in determining a corrective action or range [of] penalties." Petition for Review at 2. According to the Union, Article 5, Section 4 "deals with the 'freshness' of [a disciplinary] letter and [the] length of time [that] it shall be maintained as a 'matter of record' and may be considered as a prior offense and for determining a range of remedies[.]" Id. The Union explains that Article 5, Section 6 "[o]utlines the reasonable recommended remedies for the listed offenses." Id. The Union states that Section 6 "outlines the factors that management shall take into account when determining the offense and recommended remedy in order to show 'reasonableness' in the penalties." Id. According to the Union, Section 6 "does not limit management[']s right to exceed the recommended range but only states a more realistic 'progressive' range [than] 'recommended' by the Agency." Id.

IV. Analysis and Conclusions

A. Background and Preliminary Matters

The record indicates that on May 30, 1991, the parties met to discuss the Union's proposed Article 5, which had been submitted in response to the Agency's deletion from its regulation of a 3-year reckoning period for disciplinary offenses. On June 1, 1991, the Union wrote to the Agency and requested a written allegation of nonnegotiability as to the proposal. According to the Union, the Agency had stated at the May 30 meeting that the matter of a 3-year reckoning period and the matter of a range of penalties for offenses were nonnegotiable.

On August 1, 1991, the Agency responded to the Union's June 1 letter. The Agency stated that the Union's proposed Article 5 was a "complete rewrite" of Article 5 of the parties' collective bargaining agreement and that Article 5 had not been reopened for negotiation. See Agency Letter of August 1, 1991, attached to the Union's Petition for Review. The Agency noted that the proposed Article 5 did not contain a provision relating to the 3-year reckoning period that had been deleted from the Agency's regulation. The Agency stated that "a specific time frame for which management may consider/count a disciplinary action" would be nonnegotiable because it would interfere with management's right to discipline. Id. The Agency also stated that a proposed schedule of offenses and penalties would be nonnegotiable because it would interfere with management's right to discipline.

The Union filed its petition for review on August 14, 1991. The Union's petition for review refers to the Agency's statement that a 3-year reckoning period for prior disciplinary actions is nonnegotiable. We note that the Union specifically states that Sections 6(b)(3) and 6(b)(4) of Article 5 are intended to respond to the Agency's deletion of a 3-year reckoning period from its disciplinary regulation. We also note, however, that Sections 6(b)(3) and 6(b)(4) of Article 5 do not contain a provision establishing a 3-year reckoning period for prior disciplinary offenses. We conclude, therefore, that the dispute as to the negotiability of Article 5 does not include an issue as to the negotiability of a 3-year reckoning period for the use of prior discipline in determining the appropriate disciplinary penalty.

We also find, based on the record in this case, that the Agency stated that the portions of Article 5 establishing a schedule of offenses and penalties would be nonnegotiable under section 7106(a)(2)(A) of the Statute because they directly interfere with management's right to discipline. See Agency Letter of August 1, 1991, attached to the Union's Petition for Review. We construe the Agency's statement as an allegation that those portions of Article 5 are nonnegotiable. Consequently, we disagree with the Agency's claim that there is no Agency allegation it will not bargain with the Union because the Union's proposal is inconsistent with law. We conclude that the portions of Article 5 that concern the proposed schedule of disciplinary offenses and penalties--specifically, the Schedule of Offenses and Recommended Remedies set forth at pages 5-9 of Article 5 and Section 6 of Article 5, which references that schedule--are in dispute and are properly before us.

Finally, we note the Agency's statement that the parties' settlement agreement in Case No. 4-CA-10676 required the parties to continue the status quo until the Agency has fulfilled its bargaining obligation over the implementation of new Agency regulations regarding discipline. To the extent that the Agency is arguing that the Union's negotiability appeal is inconsistent with the terms of the settlement agreement, that issue does not concern whether a proposal is consistent with law, rule or regulation and, thus, is not an issue that we will address in a negotiability appeal filed under section 7117(c)(3) of the Statute. Rather, that issue would more properly be addressed as a matter of compliance with the settlement agreement reached in the unfair labor practice case. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA 902, 903 (1991); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).

B. The Disputed Portions of Article 5 Directly Interfere with Management's Right to Discipline Employees

The schedule of offenses and penalties established by Article 5 prescribes the range of the penalties for particular offenses. Moreover, as worded, Article 5, Section 6 provides that penalties "should normally fall within the range" specified in the schedule of offenses and penalties unless mitigating or aggravating factors--for example, an aggravated offense, frequent infractions, or simultaneous offenses--justify a remedy outside those ranges. Based on the record in this case, we conclude that Article 5 would limit the range of penalties prescribed for certain offenses by the Agency's disciplinary regulations and would require management normally to impose a penalty within the range established by Article 5 unless there are mitigating or aggravating factors.

Proposals that restrict the range of penalties prescribed for specified offenses and that require management to impose a penalty within that range except where certain factors are present directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See National Association of Government Employees, Local R4-45 and U.S. Department of the Navy, Navy Resale and Services Support Office, Norfolk, Virginia, 40 FLRA 56 (1991) (Navy Resale and Services Support Office). Such proposals establish substantive restrictions on management's determination of the penalty it will impose for a given offense. Id. at 61. Because the disputed portions of Article 5 would have the same substantive effect as the proposal at issue in Navy Resale and Services Support Office, we conclude, for the reasons stated in that case, that Article 5 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

C. The Disputed Portions of Article 5 Excessively Interfere with Management's Right to Discipline Employees

The Union claims that the disputed portions of Article 5 do not excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. We interpret the Union's claim as an assertion that those portions of Article 5 constitute an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees who are adversely affected by the exercise of a management right.

In determining whether a proposal is an appropriate arrangement, we determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). We determine whether a proposal excessively interferes with a management right by weighing the benefits of the proposal to unit employees against the burden on management's rights imposed by the proposal. Id. We conclude that the disputed portions of Article 5 excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

The disputed portions of Article 5 concern the penalties that may be imposed on employees who are disciplined for alleged misconduct. The proposal would benefit those employees by limiting the range of the penalties that management normally would impose for a specified offense and by restricting the circumstances in which management would be able to impose a penalty outside that range. Because the disputed portions of Article 5 would mitigate the adverse consequences of management's determination of what penalty to impose by limiting management's decision as to the severity of that penalty, we find that the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3).

We also find, however, that the benefits afforded employees by the disputed portions of Article 5 are obtained by imposing a significant burden on management's right to discipline employees. The proposal would severely restrict management's decision as to the appropriate disciplinary penalty to impose under the circumstances of each case. Management would normally be required to impose a penalty within the ranges specified in the proposal, unless it could show mitigating or aggravating factors. Thus, in certain circumstances, management would be unable to impose the penalty that it determines is necessary to achieve its disciplinary purposes. See American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 199 (1991) (Merchant Marine Academy); U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 32-35 (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).

Weighing the benefits afforded employees by the disputed portions of Article 5 against the burden imposed on management's right to discipline, we find that the burden on management's determination of the appropriate penalty to impose for a specified offense is disproportionate to the benefit afforded employees by those portions of Article 5. We find, therefore, that the disputed portions of Article 5 excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Consequently, consistent with Merchant Marine Academy, Marine Corps Air Station and Fort Bragg, we conclude that the disputed portions of Article 5 do not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Accordingly, we find that the disputed portions of Article 5 are nonnegotiable.(2)

V. Order

The petition for review as to the disputed portions of Article 5 is dismissed.

APPENDIX

ARTICLE 5

Disciplinary/Adverse Actions

Section 1. For the purpose of this Article, a disciplinary action is defined as a written warning, oral or written reprimand, or a suspension of (14) days or less and is grievable under Article 4 of this Agreement; an adverse action is defined as a removal, a suspension of more than fourteen (14) days, a reduction in pay or grade, or a furlough of thirty (30) days or less. The removal of probationers is an exceptions to this Article and shall be governed by the Federal Personnel Manual Chapter 315, subchapter 8-4. Reductions in grade or removals under 5 U.S.C. 4303 (unacceptable performance) are excluded from this Article and are governed by the Provisions of Article 4 of this Agreement. No bargaining unit employee shall be removed or suspended from his pay status or job until completion of all review procedures provided under this Agreement.

Section 2. Disciplinary and adverse actions shall be taken only for just cause and will be fair and equitable and shall be governed by 5 U.S.C. Chapter 75 and the regulations of the Office of Personnel Management.

Section 3. In utilizing past offenses in determining a corrective action, the notice of the proposed adverse action shall cite specifically the past offense/s in sufficient detail to allow the employee or his/her representative to understand and respond. Past offenses may only be counted as a prior offense and towards determining an appropriate remedy for a subsequent offense if:

(a) the employee was disciplined in writing,

(b) the employee had the right to dispute the action to a higher level, and

(c) the action was made a matter or record.

Neither an oral admonishment nor a letter of caution will be counted as a prior offense in determining a range or remedies under Appendix B of CPI-752-B. Nor shall they be considered in determining an appropriate remedy should an offense later occur.

Section 4. Grievable Actions. Grievable actions include letters of requirement, letters of reprimand, and written warnings, and suspensions of 14 calendar days or less.

a. A letter of requirement must state:

(1) the reason(s) for issuance

(2) the specific requirement(s) the employee must meet.

(3) That failure to meet a requirement may lead to disciplinary action.

(4) The length of time a requirement is in effect.

(5) The employee's right to file a grievance under Article 4 of this Agreement.

(6) That it will not be made a matter of record in the employee's OPF, nor be counted as a prior offense when determining a range of remedies under Appendix B of CPI-752-B.

b. A letter of reprimand must state:

(1) the reason(s) for issuance.

(2) the employee's right to file a grievance under Article 4 of this Agreement.

(3) the length of time (no more than one year) that it will be retained in the employee's OPF, and during which it may be counted for subsequent offenses under Appendix B.

c. A suspension of 14 days or less entitles the affected employee to:

(1) An advance written notice stating:

(a) The specific reason(s) for the proposed action.

(b) The name and title of the official designated to hear an oral reply and/or receive a written reply.

(c) The employee's ability to exercise his/her rights under Article 4 of this agreement.

(d) The right to review, or have a representative review, the material relied upon to support the reason(s) given in the notice of the proposed suspension.

(2) The right to be represented by an attorney or other representative.

(3) A written decision in accordance with Article 4 of this Agreement.

Section 5. Appealable Actions

a. Appealable actions (removal, suspension for more than 14 days or indefinite suspension [including forced annual or sick leave], reduction in grade or pay, or furlough for thirty days or less) entitle a bargaining unit employee to procedures outlined in OCPMINST 12752.1, Section 10 and this Agreement when applicable.

Section 6. Schedule of Offenses and Recommended Remedies

a. The Parties agree to the following schedule as a guide to the selection of a reasonable remedy for the listed offenses. Remedies for offenses should normally fall within the range shown in the schedule unless mitigating or aggravating factors justify a remedy outside the range. For example, remedies greater than those shown may be appropriate when an aggravated offense, frequent infractions, or simultaneous multiple offenses are established.

b. In determining the appropriateness of a penalty, the Employer shall take into account the following factors:

(1) The nature and seriousness of the offense

(2) The nature of the job

(3) The employee's past disciplinary record

(4) The employee's past work record, including length of service

(5) The effect of the offense on the employee's ability to perform

(6) Consistence of the penalty with that levied on other employees committing similar offenses.

(7) notoriety of offense, if any

(8) potential for rehabilitation

(9) mitigating circumstances

(10) adequacy of alternative sanctions to deter such actions in the future.