34:0716(124)NG - - AFGE Local 1426 and Army, Fort Sheridan, IL - - 1990 FLRAdec NG - - v34 p716

[ v34 p716 ]
The decision of the Authority follows:

34 FLRA No. 124










February 2, 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 offered by the American Federation of Government Employees, AFL-CIO, Local 1426 (the Union) during contract negotiations with the Department of the Army, Fort Sheridan, Illinois (the Agency).

The proposal relates to the Agency's consideration of prior disciplinary actions in assessing the appropriate penalty to impose on an employee for a current offense. For the reasons discussed below, we find that the proposal is negotiable because it does not conflict with the Federal Personnel Manual (FPM) or interfere with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute.

II. The Proposal

Article 13, Section 3

The Table of Penalties set forth in Army Regulation 690-700 should be used by the Employer

as a guide to determine the appropriate penalty for offenses. The Agency 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 [employees'] previous history of discipline. In assessing penalties, consideration will be given to the freshness or time frame of previous offenses.

Freshness will be Determined as follows:

 Adverse Actions  3 years
 Suspensions  2 years
 Letters of Reprimand  6 months

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.

[Only the underlined portion of the proposal is in dispute.]

III. Positions of the Parties

A. The Agency

The Agency contends that the proposal interferes with its right to discipline under section 7106(a)(2)(A) of the Statute by "limit{ing} the amount of time that a prior disciplinary or adverse action may be used to support a case of progressive discipline." Agency's Statement of Position (Agency's Statement) at 2. The Agency argues that the proposal would require it "to remove any letter of reprimand from the official personnel folder [OPF], after a period of six months." Id. According to the Agency, this requirement restricts the degree of discipline the Agency could impose because it precludes the Agency from referring to infractions or breaches of conduct which occurred more than 6 months in the past when determining an appropriate penalty.

The Agency cites Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643 (1988) (Provision 5), in which the Authority held that a provision limiting the information which could be used to substantiate a disciplinary action against an employee to that contained in an official folder directly interfered with management's right to take disciplinary actions against employees under section 7106(A)(2)(A) of the Statute. The Agency claims that the instant proposal is to the same effect as the provision in that case because "{b}y stipulating a specific period of time that prior actions may be maintained on file {it} limits the source of information that the agency can use to substantiate a case of progressive discipline." Agency's Statement at 3.

The Agency also contends that the proposal is inconsistent with FPM Supplement 293-31, subchapter 4, Figure 2.1e. The Agency argues that "{r}emoval of disciplinary papers on the basis of contract language [would not be] appropriate" under the FPM. Agency's Statement at 3. The Agency also states that its arguments concerning the "'letters at issue' . . . refer only to letters of reprimand" because in "cases of adverse actions and suspensions, a Notice of Personnel Action, SF-50, rather than a letter, is permanently filed in an employee's official personnel folder." Id. at 2 n.1. The Agency states that the removal of such personnel actions is governed by "[FPM] Supplement 293-31, [subchapter 4], Figure 1.3," which restricts the removal of these actions from the official personnel folder. Id.

B. The Union

The Union states that "only the underlined language [of the proposal as indicated by the Agency] is in dispute," and that that portion of the proposal is within the duty to bargain. Union's Response to the Agency's Statement of Position (Union's Response) at 2. In its petition for review, the Union stated that the proposal is intended to ensure that the "reckoning period for offenses will be reasonable," and that, therefore, "{t}he letters at issue will not remain in an employee{'}s official personnel file for extensive periods of time." Union's Petition for Rev