File 2: Opinion of Member Cabaniss

[ v56 p110 ]

Dissenting Opinion of Member Cabaniss:

      I respectfully dissent from the majority regarding Proposals 20, 24, 29 and 30. Article 20 requires that, before an employee can be disciplined for failing to report automated system problems or equipment failures, the Agency must first have included that problem or failure in a pre-defined "set of standards as to what the [Agency] considers an automated system problem or equipment failure." Requiring the Agency to, in effect, predefine conduct subject to discipline makes no sense and is at odds with an agency's right to discipline employees.

      Merit Systems Protection Board precedent makes clear that there is no requirement that an employee must violate a predefined rule such as a specific written policy before he or she can be disciplined under 5 U.S.C. Chapter 75: the criteria is "for such cause as will promote the efficiency of the service." [n1]  See Fontes v. Department of Transportation, 51 MSPR 655, 663 (1991). The inappropriateness of attempting to limit an agency's right to discipline to just those matters already specifically defined is well-reflected in various court precedent as well. See, e.g., Schlegel v. United States, 416 F.2d 1372, 1377 (Ct. Cl. 1969) ("No regulatory scheme can anticipate every particular instance where employee misconduct might occur."); Pascal v. United States, 543 F.2d 1284, 1287-88) (Ct. Cl. 1976) ("But it is not the principle of the government world that everything is permissible which is not specifically prohibited by regulation or statute."); Meehan v. Macy, 392 F.2d 822, 835, modified 425 F.2d 469 (1968), aff'd en banc, 425 F.2d 472 (D.C. Cir. 1969) ("[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation.").

      Although not as specifically set forth in Authority precedent, prior Authority notes that:

Proposals that preclude management from taking disciplinary action against employees for a particular offense directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute.

See International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516, 535 (1993). In the present case, the "particular offense" would be for failure to report matters not yet defined, where the failure to do so rises to the level of conduct for which discipline would promote the efficiency of the service. In the case cited, supra, the "particular offense" pertained primarily to drug use, and the restriction on discipline was held not to constitute an appropriate arrangement.

      Authority precedent has recognized that absolute prohibitions on the exercise of a management right do not constitute an appropriate arrangement. Commencing with the judicial decision in American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983), the Authority has found that "[a] proposed amelioration which totally abrogates the exercise of a management right clearly does not constitute an appropriate arrangement within the meaning of section 7106(b)(3)." American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 173 (1986) (right to assign work). This holding has also been applied to the right to discipline employees. United States Customs Service, Washington, D.C. and United States Customs Service, Pacific Region and National Treasury Employees Union, 25 FLRA 248, 255 (1987); and Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 689 (1987).

      Authority precedent properly recognizes the necessary balancing between the proposed benefit for employees and the impact on an agency's rights under section 7106. However, to the extent that the Authority would find proposed bargaining language to be an appropriate arrangement, even where (as here) there is a total abrogation of the management right involved, I would find such language to be outside the duty to bargain, and do so as to Proposal 20.

      Regarding Proposal 24, the majority acknowledges that subsection (c) of that provision, standing alone, impermissibly affects the Agency's rights under section 7106(a)(2)(A) and (B). While the proposal, as interpreted by the majority, does not require the Agency to ever utilize this nonnegotiable option, the Agency has no ability to disregard its section 7106(a) rights by permitting this course of action to take place. Therefore, in accordance with Authority precedent regarding severance of portions of proposals, I would direct that either subsection (c) or the entire proposal, as appropriate, be struck from the duty to bargain.

      Regarding Proposal 29, the majority's assessment of the burden on management's rights misses the point being made by the Agency. There are going to be employee-desired documents, that comply with the Agency-defined "legitimate need" or "use" standards, that are still subject to significant concerns (o