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The decision of the Authority follows:
41 FLRA No. 52
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 involves one proposal concerning notification to employees about and retention of supervisory notes. For the reasons that follow, we find that the first sentence of the proposal is not properly before us and we dismiss the petition as to that sentence. The second sentence is nonnegotiable because it excessively interferes with management's rights under section 7106 of the Statute to suspend, remove, reduce in grade or pay, and take other disciplinary action against employees.
II. The Proposal
Time Limitations on Counseling and Disciplinary Notices
When the supervisor makes a notation, the employee shall be informed that a record is being kept as stated in Article 12, Section 1, Master Agreement. The time frames for retention of supervisory notes related to performance evaluation will not exceed one (1) year or the duration of the rating period, whichever is longer.
III. Positions of the Parties
The Agency asserts that the first sentence of the proposal is governed by the master agreement and that therefore it has no duty to bargain over the matter. The Agency states that because it does not assert that the first sentence is inconsistent with law, rule or regulation, the Union's petition in this regard is not properly before the Authority.
The Agency contends that the second sentence is nonnegotiable because it excessively interferes with management's rights under section 7106(a)(2)(A) to suspend, remove, reduce in grade or pay, and take other disciplinary action against employees. The Agency asserts that supervisory notes related to performance evaluations are inextricably intertwined with the ability to take supportable disciplinary and adverse actions. The Agency argues that to prohibit it from retaining supervisory notes beyond the period specified in the proposal would deprive it of relevant evidence in the event of a grievance or appeal of a performance-related disciplinary or adverse action that occurs or extends beyond that period. Additionally, the Agency argues that the proposal could interfere with its ability to evaluate performance when a performance appraisal does not coincide exactly with the end of an appraisal period.
The Union asserts that the Agency's contention that negotiation of sentence one of this proposal is barred by the parties' master agreement should be rejected and that the Authority should render a negotiability determination as to that sentence of the proposal. The Union disputes the Agency's contention that sentence two of the proposal would apply to disciplinary actions. Rather, it contends that, as written, that sentence applies only to documentation of performance matters and, therefore, is limited to the performance evaluation context. The Union contends that "[s]uch performance counseling and documentation is completely distinct from disciplinary notice." Union reply brief at 3. The Union describes the proposal as providing an "additional protection" to employees. Id.
IV. Analysis and Conclusions
Under section 7117 of the Statute and section 2424.1 of the Authority's Regulations, we consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. For example, National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA 902, 903-04 (1991). Therefore, when the parties are in dispute as to whether a proposal is consistent with law, rule or regulation, that dispute is properly before us. Id. Where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision as to whether a proposal is negotiable under the Statute. See American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). However, to the extent that an agency has raised other issues, such as whether it is obligated to bargain under the terms of a master agreement, such issues should be resolved in appropriate proceedings other than a negotiability petition. Id.
The Union and the Agency are parties to a master agreement, which allows for negotiation of local supplemental agreements. This proposal arose in the context of negotiations over a local supplemental agreement. The parties' dispute as to sentence one is limited to the issue of whether that sentence concerns a matter that is controlled by the parties' master agreement. Therefore, the petition for review as to sentence one does not meet the conditions governing review of negotiability issues and must be dismissed. Accordingly, we will dismiss the Union's petition for review as to this sentence, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990). To the extent that the parties' dispute over whether the master agreement precludes negotiation of sentence one remains, that dispute should be resolved in other appropriate proceedings. See National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1275 (1991).
The second sentence of this proposal would establish a time limit of one year or the duration of the rating period, whichever is longer, for the retention of supervisory notes related to performance evaluations. The Agency asserts that this aspect of the proposal is inconsistent with law, i.e. section 7106(a)(2)(A) and, therefore, nonnegotiable. Consequently, the conditions for review of a negotiability appeal have been met with regard to sentence two and the Union is entitled to a decision as to whether this portion of the proposal is negotiable under the Statute.
In responding to the Agency's arguments concerning the effect of the proposal on its ability to take various disciplinary and adverse actions, the Union argues that the proposal would have no applicability to disciplinary actions, but concerns documentation that is strictly limited to the "performance evaluation context." Union reply brief at 2. However, documentation relating to the "performance evaluation context" cannot be divorced from the disciplinary context. In this regard, we note that performance can result in disciplinary action. Under chapter 43 of title 5, U.S. Code, an agency may reduce in grade or remove an employee based on unacceptable performance. 5 U.S.C. § 4303. An agency also may take disciplinary action against an employee for performance-based reasons under chapter 75 of title 5.(*) See, for example, Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985); Graham v. Department of the Air Force, 46 MSPR 227 (1990).
Evidence is essential in disciplinary actions, including those taken for performance-based reasons. See National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986) ("disciplinary action that is unsupported by a preponderance of the evidence . . . is reversed on appeal not because of some special evidentiary requirement applicable to appeals, but because disciplinary action that is not so supported is unlawful, whether or not it is appealed." [Emphasis in original.]). Actions taken under chapter 43 are sustainable only if they are supported by substantial evidence. 5 U.S.C. §§ 7701(c)(1) and 7121(e). Actions taken under chapter 75 are sustainable only if supported by a preponderance of the evidence. Id. Consequently, in some circumstances, agency reliance on documentation relating to performance evaluation would be essential to supporting disciplinary actions, such as suspensions, removals or reductions in grade or pay, with the appropriate quantum of evidence.
We have held previously that management's rights to discipline employees encompass the right to obtain and use evidence to support actions. See, for example, Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1156-57 (1990) (Portsmouth Naval Shipyard). In addressing proposals that would restrict an agency's use of various materials and documentation as evidence, we have concluded that those proposals directly interfere with management's rights to discipline employees under section 7106(a)(2)(A) of the Statute. For example, 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, 223-24 (1991) (Merchant Marine Academy); Portsmouth Naval Shipyard, 34 FLRA at 1156-58; American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1047-50 (1988) (Naval Weapons Station, Concord), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989).
By limiting the length of time that supervisory notes can be retained, sentence two effectively limits the extent to which they can be used as evidence to support disciplinary actions. Accordingly, sentence two, like the proposals addressed in the cases cited, directly interferes with management's rights to discipline employees under section 7106(a)(2)(A) of the Statute. See Merchant Marine Academy, 39 FLRA at 223-24. It follows that unless sentence two constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, it is nonnegotiable.
The Union asserts that by sentence two it seeks to afford employees "protection." We view this argument as an assertion that the sentence constitutes an appropriate arrangement. In previous cases the Authority has concluded that while proposals that would limit an agency's use of evidence may constitute arrangements, they are not appropriate because they excessively interfere with management's rights to discipline employees. See Merchant Marine Academy, 39 FLRA at 224; Portsmouth Naval Shipyard, 34 FLRA at 1158-60; Naval Weapons Station, Concord, 32 FLRA at 1049-50. Particularly on point is the conclusion in Merchant Marine Academy that subsection d of Provision 9 would excessively interfere with management's right to discipline. That subsection, which restricted to eighteen months the use of supervisory notes to support disciplinary or adverse action against an employee, is materially to the same effect as sentence two. In fact, sentence two is even more restrictive in that it would establish a shorter period of time during which supervisory notes would be available for use.
Here, the Union offers nothing to support a conclusion that a disposition different than that reached in Merchant Marine Academy and the other cases cited is warranted as to sentence two in this case. It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12 (1990); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990). Accordingly, we conclude that sentence two does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute and that it is nonnegotiable.
In view of our conclusion that sentence two excessively interferes with management's right to discipline employees, it is unnecessary to address the Agency's contention that this sentence could interfere with its ability to evaluate performance.
The Union's petition for review is dismissed.
(If blank, the decision does not have footnotes.)
*/ Chapter 75 governs, as relevant here, suspensions for more than 14 days, removals, and reductions in grade or pay.