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The decision of the Authority follows:
38 FLRA No. 87
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
STRATEGIC WEAPONS FACILITY, PACIFIC
DECISION AND ORDER ON NEGOTIABILITY ISSUE
December 18, 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). It concerns the negotiability of a single proposal which requires that Positive Action Contracts, which are also called "last chance agreements," not be proposed or used without the prior agreement of the Union.(1) We conclude that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it interferes with employees' rights under section 7121(b)(3)(B) to represent themselves in grievances pursued through the negotiated procedure and, in other matters, to choose their own representatives under section 7114(a)(5)(A). Accordingly, we will dismiss the petition for review.
Section 7. Positive Action Contracts will not be proposed or used without the prior agreement of the Union.
III. Positions of the Parties
A. The Agency
The Agency argues that the proposal is nonnegotiable because: (1) it interferes with the Agency's right to discipline employees under section 7106(a)(2)(A); (2) it violates employees' rights under the Statute; (3) it violates the Privacy Act because the Union would have access to all information in an employee's disciplinary file; (4) there is no duty to bargain over Positive Action Contracts (PAC's) under the Statute; and (5) it violates section 503(e) of the Supplemental Appropriations Act of 1987.
In support of its argument that the proposal would infringe on the Agency's right to discipline employees under section 7106(a)(2)(A), the Agency asserts that "[p]ositive action contracts directly involve the relevant factors upon which  decision[s] to discipline are made. Consequently, management is under no obligation to negotiate with the union over such agreements." Statement of Position at 9-10. Additionally, the Agency asserts that "management is prohibited from negotiating with a union over the basis for imposing discipline and over the criteria it establishes for [the] imposing [of] discipline." Id. at 8.
The Agency also argues that the proposal interferes with employee rights under sections 7102, 7114(a)(5), 7116(a)(1), 7116(b)(1), and 7121(b)(3)(B) of the Statute and that it conflicts with 5 U.S.C. § 7701(a) and 5 C.F.R. § 752.404(e) and (f). The Agency asserts that "[e]mployees have the right to be represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action . . . ." Id. at 11. According to the Agency, "[a] requirement that only the Union can be that representative, . . . , clearly abrogates an employee's statutory rights . . . ." Id. at 12. The Agency asserts that the proposal "has the effect of making the union the affected employee's representative for purposes of determining whether or not such [positive action] contracts shall be applied." Id. at 11.
In addition, the Agency argues that the proposal violates the Privacy Act because it "would effectively require that the union have access to all information pertinent to a disciplinary file, including the notices of proposed action and final decision." Id. at 12-13. Relying on the Supreme Court's decision in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Agency asserts that such information may not be disclosed to the Union. The Agency asserts that "access to specific information concerning disciplinary situations involving specific individuals, without the consent of the affected individual," would "work a clearly unwarranted invasion of personal privacy." Id. at 15.
Next, the Agency asserts that "positive action contracts are not collective bargaining agreements and there is no statutory duty to bargain over such contracts." Id. at 17. According to the Agency, it may decide whether to "impose the terms [of a positive action contract] unilaterally or through negotiations with the employee or the employee's representative." Id. at 16. Additionally, the Agency notes that "[e]ven where the union is the employee's representative, and the agency chose to negotiate a positive action contract, the union would be acting as the employee's representative and not in its own right." Id. at 17.
Finally, the Agency argues that the proposal violates section 503(e) of the Supplemental Appropriations Act of 1987. According to the Agency, section 503(e) provides that the results of a drug test of a Federal employee may not be disclosed without the prior written consent of such employee except in certain circumstances. Because the proposal "seeks to interpose the union as the employee's spokesperson with respect to all positive action contracts. . . . this role would enable the union to interfere with the employee's right to confidentiality with respect to drug test results . . . ." Id. at 18.
B. The Union
The Union asserts that a PAC is "a condition of employment and comes within the obligation to bargain as a mandatory subject." Petition for Review at 2. The Union argues that PAC's "must be proposed according to the terms of the collective bargaining agreement[,]" and, therefore, "such a contract or arrangement could not be imposed upon an employee without the union's consent." Reply Brief at 6 (emphasis in original).
The Union also argues that "[s]ince the waiver proviso of the PAC necessarily requires that the employee waive rights to the negotiated grievance procedure, the employer is dealing directly; i.e., bypassing the union, with the employee on a negotiable matter." Id. at 8. According to the Union, "[t]he employee may not waive the negotiated grievance procedure without the union's consent." Id.
Additionally, the Union asserts that PAC's are mandatory subjects for bargaining because a PAC may be proposed as a resolution of an employee's grievance or appeal. The Union argues that "the PAC, requiring an admission of misconduct and waiver of appeal rights, could be construed as a confession on the part of the employee prior to any due process." Id. at 7. Citing court decisions, the Union asserts that PAC's are not "universally accepted by the courts." Id. at 12. Consequently, the Union argues that "[t]his militates strongly in favor of union intervention and, in some cases, objection and prevention of the statutory waivers express in the PAC." Id. at 13. Additionally, the Union argues that a PAC "must be consistent with law, rule and regulation." Id. at 14. According to the Union, "if the PAC's waiver is too broad, . . . or it is coerced, or used as a pretext for appropriate discipline, then there is no 'management right to break the law.'" Id. at 15.
The Union also rejects the Agency's argument that the proposal conflicts with employees' rights under the Statute. Citing section 7114(a)(5)(A) and (B), the Union asserts that "[t]he above statutory text readily discounts the agency's argument that the union's proposal violates any employee's rights to designate a representative under a negotiated grievance procedure." Id. at 8.
The Union also argues that PAC's violate public policy. Citing section 7101 of the Statute, the Union asserts that the proposal "restates and supports the expressed public interest in [section 7101] of the law." Id. at 19. The Union asserts that:
The right to represent employees in disciplinary proceedings is actually an extension of [a union's] collective bargaining rights. This right to negotiate, even on a case-by-case basis on each disciplinary charge is protected by statute and an employee may not waive the union's rights.
Id. at 21. Additionally, the Union asserts that "a union may negotiate to require that a representative be provided whenever an employee is subject to discipline." Id. at 20 (emphasis in original). The Union notes that the Statute "requires the exclusive representative to represent all employees, regardless of union membership. As important, or more so, is the responsibility of the union to guard the interests of the entire bargaining unit. Leaving the agency unfettered in imposing 'last chance agreements' such as the PAC perils the rights of employees." Id. at 15.
The Union argues that its proposal does not directly interfere with the Agency's right to discipline employees under section 7106(a)(2)(A) because, according to the Union, PAC's are not disciplinary actions. In this regard, the Union rejects "the presumption that the failure to propose discipline, and/or the failure to carry out discipline is a disciplinary action in itself." Reply Brief at 9. The Union also argues that PAC's are not disciplinary actions because, under 5 U.S.C. § 7513(d), "an employee may not appeal a proposal or, as is pertinent here, an offer of alternative discipline, to the Merit Systems Protection Board because neither the Board nor Congress considers anything prior to imposition of the penalty a disciplinary action." Id. at 11 (emphasis in original).
The Union asserts, however, that even if its proposal were found to directly interfere with the right to discipline, the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. According to the Union, employees are adversely affected by waiving appeal rights in a PAC. The Union states that "[t]he employee loses every avenue in which he or she may have the merits of the original or subsequent charges examined." Id. at 17. The employee benefits, according to the Union, if the Union "is allowed to apply its expertise" so that the employee "may make a more informed decision whether to proceed with the waiver agreement." Id. The Union asserts that the impact on the Agency is "minimal" because management "is in no way obstructed from proceeding with what it threatened to do in the first place . . . ." Id.
The Union also asserts that PAC's are "proposals or offers of alternatives [which] are not acts of discipline but, rather, procedural matters subject to bargaining." Id. at 11. Accordingly, the Union argues that its proposal is negotiable under section 7106(b)(2) of the Statute because "[i]t merely requires union agreement for the particular procedures management wishes to implement." Id. at 6.
IV. Analysis and Conclusion
This proposal resulted from negotiations between the parties for a collective bargaining agreement. According to the Union, the Agency sought to establish a program called "Positive Action Contracts" which "called for employees to be offered an opportunity to negotiate with management, without the agreement with the exclusive representative, when the likelihood of discipline was present for attendance-related reasons." Reply Brief at 1. The Agency describes PAC's as "administrative devices which are used to address a variety of disciplinary or behavioral problems. Typically, they are intended to permit an employee subject to disciplinary action an opportunity to demonstrate that he or she can be successfully rehabilitated[.]" Statement of Position at 2.
The Authority has held that proposals concerning last chance agreements involve conditions of employment that are within the duty to bargain under the Statute to the extent that they comply with applicable laws and regulations. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA No. 34, slip op. at 4 (1990) (AFLC). The PAC's described in this case relate to the circumstances under which an individual's employment relationship with the Agency will continue. They also may address an employee's appeal rights in the future. Therefore, we find that this proposal concerns conditions of employment which are negotiable under the Statute.
In AFLC, the Authority found that Proposal 4, which granted the union the right to negotiate the terms of all last chance agreements, was nonnegotiable. Id. at 17-21. The Authority found that Proposal 4 prohibited employees from exercising their rights under sections 7114(a)(5)(A) and 7121(b)(3)(B) of the Statute to choose their representatives or to represent themselves in the negotiation of a positive action agreement.
Inasmuch as the negotiation of a last chance agreement may occur while the discipline is being challenged through the negotiated grievance procedure, or through the statutory appeals procedures, the requirement that the Union negotiate the terms of such an agreement would deprive employees of their right to choose their own representatives or to represent themselves.
Id. at 20. Accordingly, the Authority held that Proposal 4 in AFLC was inconsistent with the Statute and, therefore, that it was nonnegotiable.
The proposal in this case is similar to Proposal 4 in AFLC because it would, without exception, require that the Agency negotiate with the Union before proposing or using PAC's. Even if an employee chose to represent himself or herself in a disciplinary action or selected a representative who was not a Union representative, under this proposal, a PAC between that employee and the Agency would require the Union's agreement. This requirement would deprive employees of their right to proceed through the negotiated grievance procedure or statutory appeals procedures without the Union's assistance. Contrary to the Union's assertion, under the Statute, an exclusive representative does not have the right to negotiate "to require that a representative be provided whenever an employee is subject to discipline." Reply Brief at 20 (emphasis in original). Rather, the Statute protects an employee's right to choose not to be represented by an exclusive representative. This proposal would negate that right. Accordingly, we find that this proposal is inconsistent with sections 7121(b)(3)(B) and 7114(a)(5)(A) of the Statute and is, therefore, outside the duty to bargain.
In view of our conclusion that the proposal violates sections 7121(b)(3)(B) and 7114(a)(5)(A) of the Statute, we will not consider the Union's arguments that the proposal is a negotiable procedure under section 7106(b)(2) or that it is an appropriate arrangement under section 7106(b)(3). Section 7106(b)(2) or (b)(3) applies only when management exercises one of the reserved rights set out elsewhere in section 7106. See National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 750 (1990).(2)
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1. In general, a "last chance agreement" is a contract between an employee and an employer that gives the employee an opportunity to conform his/her conduct or performance to the employer's requirements in exchange for the retraction of disciplinary or adverse actions.
2. Based on our finding that Proposal 4 violates sections 7114(a)(5)(A) and 7121(b)(3)(B) of the Statute, it is unnecessary to address the Agency's assertions that the proposal (1) violates the Agency's right to discipline employees under section 7106(a)(2)(A), (2) interferes with employee rights under sections 7102 and 7116(a)(1) and (b)(1) of the Statute and under 5 U.S.C. § 7701(a) and 5 C.F.R. § 752.404(e) and (f), and (3) violates the Privacy Act and section 503(e) of the Supplemental Appropriations Act of 1987. Compare AFLC, 38 FLRA No. 34, slip op. at 10-16 and 24-26 (where the Authority found that proposals concerning last chance agreements did not directly interfere with management's right to discipline employees under section 7106(a)(2)(A) and that a proposal giving the union the right to be notified of the agency's intent to offer an employee a last chance agreement and to be present when the offer is made did not violate the Privacy Act).