41:1452(114)NG - - IAM Lodge 39 and Navy, Naval Aviation Depot, Norfolk, Virginia - - 1991 FLRAdec NG - - v41 p1452

[ v41 p1452 ]
The decision of the Authority follows:

41 FLRA No. 114














August 30, 1991

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) by the Union. It involves the negotiability of a proposal concerning the consideration of prior offenses under the Agency's progressive discipline system. We find the proposal to be nonnegotiable because it excessively interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

II. Proposal

A suspension or reduction in grade or pay (if effected for disciplinary reasons) may be counted as a prior offense provided the effective date of the suspension or reduction in grade or pay is not more than 3 years before the date of the proposed adverse action in which it is to be cited.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal would interfere with its effective use of progressive discipline by limiting the amount of time that a prior disciplinary or adverse action may be used to support disciplinary action. The Agency argues that the proposal thereby interferes with its management right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency asserts that the proposal in this case is to the same effect as a provision found nonnegotiable in Bremerton Metal Trades Council and Naval Supply Center, Puget Sound, 32 FLRA 643 (1988). Finally, the Agency argues that the proposal prohibits management from freely assessing the weight to be attached to prior offenses when exercising its statutory right to discipline employees and that, therefore, the proposal directly interferes with the exercise of that right.

B. Union

The Union explains that the proposal was offered in response to the Respondent's proposed "Instruction 12751.1A", entitled "Disciplinary Actions and Nondisciplinary Adverse Actions." According to the Union, this Instruction deleted any references contained in a prior Instruction to "Reckoning Periods" for the imposition of suspensions. Union's Petition for Review at 1. The Union contends that the Agency stated that it had changed its policy in order to expedite the removal of undesirable employees and that "[t]he thoughts of possible abuse has [sic] shaken the Union." Id.

The Union argues that the "reckoning period" is discretionary with each Command and thus is negotiable. It contends that the proposal does not interfere with the right of the Agency to take whatever disciplinary action it deems necessary because the Agency retains the right to assess the penalty it wishes from the wide options set forth in the Instruction, which permits penalties ranging from reprimand to removal for most first offenses. The Union also contends that the range of penalties is set forth only as a guideline, and that the employee's official personnel file, which will contain a permanent record of all suspensions, can always be used as background information to justify a strong penalty. Thus, the Union argues that as the Agency will retain the right to determine the need to discipline and the amount of discipline to be given an employee, nothing in the proposal prevents the Agency from effectively using progressive discipline.

IV. Analysis and Conclusions

We conclude that the proposal is nonnegotiable because it excessively interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

The proposal would preclude the Agency, when determining appropriate disciplinary actions for employees, from considering as prior offenses suspensions or reductions in grade or pay that occurred more than three years before the date of a proposed adverse action. Proposals that would restrict the evidence an agency may rely on to support a disciplinary action directly interfere with the agency's right to discipline employees. See 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) (proposal prevented the use of supervisory notes over 18 months old in supporting disciplinary adverse actions); Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1157 (1990) (proposal prevented the agency from supporting disciplinary action with employee's admission made during a discussion in which management failed to inform the employee of the right to union representation); 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), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408/88-7470 (9th Cir. Feb. 7, 1989) (provision restricted the type of evidence the agency could use to establish that discipline was warranted). Similarly, proposals that restrict the penalty that can be imposed on employees for a given offense directly interfere with management's right to discipline. See National Association of Government Employees, Local R4-45 and U.S. Department of the Navy, Navy Resale and Services Support Office, Norfolk, Virginia, 40 FLRA 56 (1991) (proposal modified agency's schedule of disciplinary offenses and penalties); American Federation of Government Employees, Local 1770 and U.S. Department of the Army Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903 (1990) (Fort Bragg) (proposal required agency to consider only like offenses in determining first, second, and third offenses).

By restricting the prior offenses the Agency may rely on to enforce its progressive discipli