45:0867(79)NG - - AFGE Local 1426 and Army, Fort Sheridan, IL - - 1992 FLRAdec NG - - v45 p867



[ v45 p867 ]
45:0867(79)NG
The decision of the Authority follows:


45 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1426

(Union)

and

U.S. DEPARTMENT OF THE ARMY

FORT SHERIDAN, ILLINOIS

(Agency)

0-NG-2003

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 12, 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). The appeal concerns the negotiability of two proposals relating to discipline.

Proposal 1 concerns the administration of a table of penalties. We find that the proposal is not properly before us in this proceeding. Proposal 2 requires, among other things, that discipline be administered in a progressive manner. We find that the proposal is nonnegotiable because it excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. Accordingly, we will dismiss the petition for review.

II. Proposal 1

Article 30

DISCIPLINE

30-2.

The Table of Penalties set forth in this agreement will be used by the Employer as a guide to determine the appropriate penalty for offenses. The negotiated Table of Penalties is intended to ensure reasonable uniformity in administering like penalties for like offenses. The Table is not exhaustive. Appropriate penalties for unlisted offenses may be derived by comparing the nature and seriousness of the offense to those listed in the Table and the employee's previous history of discipline. In assessing penalties, consideration will be given to the freshness or time frame of previous offenses. Disciplinary actions must be for just and sufficient cause and promote the efficiency of the service. Actions may be taken for the purpose of either correcting the offending employee's behavior or imposing punishment necessary to maintain discipline and morale among other employees. Discipline will be taken in a timely manner unless exceptional circumstances prevail. The use of a particular penalty is not mandatory simply because it is listed in the Table. Selection of an appropriate penalty may be more or less severe than the Table penalty depending upon the relevant factors in each individual case. Relevant factors include:

a. the nature and seriousness of the offense and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;

b. the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

c. the employee's past disciplinary record;

d. the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

e. the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties;

f. consistency of the penalty with those imposed upon other employees for the same or similar offenses;

g. consistency of the penalty with the Table of Penalties;

h. the notoriety of the offense or its impact upon the reputation of the agency.

A. Positions of the Parties

1. The Agency

As a preliminary matter, the Agency contends that the petition for review regarding Proposal 1 is deficient under section 2424.4(b) of the Authority's Rules and Regulations because the Union did not submit a copy of the table of penalties referenced in the proposal. The Agency argues that the table of penalties is a "key aspect of this dispute" and that the Union's failure to include a copy of the table with the petition "results in an incomplete petition." Statement of Position at 2. Consequently, the Agency asserts that the petition for review as to this proposal should be dismissed. The Agency also disputes the Union's statement, contained in its petition for review, that the table of disciplinary penalties referenced in the proposal is the same as the Agency's established table of penalties. The Agency states that its table of penalties and a table that was proposed by the Union during bargaining differ in many respects.

Alternatively, the Agency contends that Proposal 1 directly interferes with its right to discipline under section 7106(a)(2)(A) of the Statute. The Agency claims that Proposal 1 is similar to proposals previously found nonnegotiable by the Authority that sought to restrict the type of penalty that could be imposed or, in some manner, limit the choice of disciplinary action.

2. The Union

In its petition for review, the Union stated that the table of disciplinary penalties referenced in Proposal 1 "is the same as the one already used by the [A]gency." Petition for Review at 3. However, in its response to the Agency's statement of position, the Union withdrew that assertion and, instead, claims that the referenced table of disciplinary penalties "reflect[s] the [U]nion's proposed plan, not the [Agency's] table." Response at 2. In response to the Agency's argument that the petition is deficient, the Union states that "the proposal . . . stands on its own[.]" Id. at 6. In this connection, the Union asserts that the referenced table of penalties is intended to be used "as a guide in administering discipline," and that the table of penalties proposed by the Union "is not the subject of the instant appeal." Id. at 10. Furthermore, the Union states that the table of penalties "is not defined until the parties come to a negotiated agreement as to which table they will use and incorporate into the agreement." Id. at 30. According to the Union, the table of penalties may "ultimately refer to the [Agency's] Table of Penalties, depending on what the parties themselves agree upon." Id. at 10.

The Union also maintains that the proposal is distinguishable from similar proposals previously found nonnegotiable. According to the Union, the proposal "specifically allows the flexibility to management to deviate from the plan." Id. at 7. The Union also sets forth separate arguments concerning individual sentences or sections of the proposal and asserts that this method of presenting its arguments was necessary "to properly address the negotiability of the overall proposal." Id. at 9. Finally, the Union contends that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

We find that the petition for review as to Proposal 1 does not satisfy the conditions governing review set forth in Part 2424 of the Authority's Rules and Regulations.

Proposal 1 governs the administration of discipline based on a table of penalties and clearly states that the table that will be used is "set forth in this agreement . . . ." The Union acknowledges that it proposed a table of penalties but that the table is not part of the negotiability appeal. The Union explains that the actual table of penalties that will be incorporated into the negotiated agreement has not yet been defined by the parties and ultimately may reflect the Agency's existing table.

Proposal 1 is not properly before us. The Authority's regulations require that any petition for review filed with the Authority must contain a "statement setting forth the express language of the proposal sought to be negotiated as submitted to the agency[.]" 5 C.F.R. ° 2424.4(a)(1). The conditions governing review of a negotiability issue include the requirement that there be "a matter proposed to be bargained." See American Federation of Government Employees, Local 491 and Veterans Administration Medical Center, Bath, New York, 29 FLRA 462 (1987). Absent a matter proposed to be bargained, a petition for review is prematurely filed and must be dismissed. Id. at 464.

It is clear from the parties' submissions that the Union forwarded a table of penalties to the Agency as a part of the proposal. It was that proposal, with the accompanying table of penalties, that was declared nonnegotiable by the Agency. However, the Union now claims that the table is not part of this appeal and that the specific table that will be incorporated into the parties' agreement has not yet been defined. Only when a complete proposal is submitted to the Agency and the Agency has been given an opportunity to respond can the conditions governing review contained in our regulations be satisfied. See National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 35 FLRA 1006 (1990).

In this regard, we reject the Union's assertion that the proposal can be addressed without referring to the table of penalties. We find that the administration of discipline, as contemplated by the proposal, is dependent on the content of the table of penalties. In particular, we find that although all of the sentences of the proposal do not expressly refer to the table of penalties, each portion of the proposal is intended to operate with regard to the negotiated table of penalties. We also find that the proposal is designed to operate in its entirety and that there is no basis on which to address separately each portion of the proposal.

Consequently, we conclude that the petition for review as to Proposal 1 is not properly before us. We will dismiss the petition as to this proposal without prejudice to the Union's right to file an appeal if the conditions governing review are met and the Union chooses to file such an appeal.

III. Proposal 2

Article 30

DISCIPLINE

30-3.

The parties' objective to discipline is to correct unfavorable behavior so as to promote the efficiency of the government. The employer agrees to use progressive discipline designed to improve the employee's behavior. An employee will not be subjected to disciplinary actions without just and sufficient cause.

A. Positions of the Parties

1. The Agency

The Agency contends that because the proposal requires that disciplinary actions be administered in a progressive manner, it violates management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency also notes that the Union's stated intent is identical to that expressed by the union in 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 (1991) (Provision 2) (Merchant Marine Academy), involving a proposal regarding progressive discipline that the Authority found was nonnegotiable.

2. The Union

The Union states that Proposal 2

is intended to provide routine and fair management procedures and due process in the administration of discipline and to require that management will normally follow fair procedures which also include exceptions to progressive discipline where circumstances require either harsher than usual penalty or rapid removal of an employee from the workplace.

Petition for Review at 3; Response at 24-25. The Union further explains that the Agency currently practices progressive discipline, as required by a regulation of the Department of the Army (Army), and that the proposal would require the Agency to continue the use of progressive discipline even if the regulation were to change.

The Union also acknowledges that the Authority previously has found that proposals seeking to establish progressive discipline infringe on the exercise of management's rights. However, the Union claims that the Authority has failed to take into account the concept of due process. The Union maintains that when due process is considered, along with the fact that the Union's proposals are designed to provide guidance, rather than to impose rigid rules, Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts, in this regard, that, absent the practice of progressive discipline, "[t]he adverse impact of the exercise of the management right to discipline . . . would be possible disparate treatment of employees in disciplinary actions . . . [and] having those actions being overly severe for minor offenses[.]" Response at 26. The Union adds that the adverse impact of management's right to discipline would be the "demoralization of employees to the extent that they are not motivated to excel in their careers, and [would] lower[] their production which would be reflected in their performance appraisal, which would then be detrimental to their chances for promotion and better jobs." Id. (footnote omitted). Furthermore, the Union maintains that the burden on management's right is "canceled out" because the Agency presently is using a system of progressive discipline. Id. at 27. Finally, the Union claims that progressive discipline has "been proven to be effective and more efficient than other systems[]" of discipline. Id. at 29.

B. Analysis and Conclusions

For the following reasons, we find that the proposal directly and excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

Initially, we note that the Union claims that the proposal is intended as "guidance" for the Agency and that it provides for "exceptions to progressive discipline where circumstances require either harsher than [the] usual penalty or rapid removal of an employee from the workplace." Petition for Review at 3; Response at 24-25. We find that the Union's stated intent is not consistent with the plain wording of the proposal, which requires the Agency to administer discipline in a progressive manner. Where there is an inconsistency between the language of a proposal and its stated intent, we will not base a negotiability determination on the union's stated intent. Rather, we will base our determination on the language of the proposal. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990).

As both parties acknowledge, the Authority previously has found nonnegotiable provisions and proposals seeking to establish the use of progressive discipline. See, for example, American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 496-98 (1991), petition for review filed as to other matters sub nom. U.S. Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991) (proposal that discipline for on-the-job infractions will be progressive and proportional to the infraction and hazard presented); Merchant Marine Academy, 39 FLRA at 198-99 (provision requiring agency to administer discipline in progressive and consistent manner). See also 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) (provision limiting agency's choice of an appropriate disciplinary penalty to the minimum reasonably expected to correct the employee, and requiring imposition of consistent disciplinary penalties for a particular offense throughout the bargaining unit). In those cases, we held that restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Because Proposal 2 would have the same substantive effect of limiting the Agency's discretion to determine an appropriate disciplinary penalty, we conclude, for the reasons stated in those cases, that Proposal 2 directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

Additionally, in those cases, we found that the proposed matters did not constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. We reach the same result here.

To determine whether a proposal constitutes an appropriate arrangement, we address whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986). We find that by requiring the Agency to administer discipline in a progressive manner, the proposal is intended as an arrangement for employees adversely affected by the exercise of management's right to discipline.

We further find, on balance, that the proposal would excessively interfere with the exercise of that right. In terms of the benefits afforded to employees under the proposal, it is clear that any restriction on the Agency's ability to impose harsh or severe penalties on employees constitutes a benefit to those employees. However, this benefit would be obtained only through a significant intrusion on the exercise of management's right to discipline. In this regard, we note that although the Union states that the Agency practices progressive discipline, as required under the terms of an Army regulation, the Union also explains that the intent of the proposal is to ensure the continued use of progress