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The decision of the Authority follows:
41 FLRA No. 114
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.
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
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.
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 disciplinary system, the proposal directly interferes with the Agency's right to discipline its employees under section 7106(a)(2)(A) of the Statute. We disagree with the Union's argument that the Agency would retain in all situations the right to determine whether there is a need for discipline and the amount of discipline to be given. Thus, although the schedule of offenses and recommended remedies permits, as the Union asserts, a full range of remedies for most first offenses, there are instances where that is not the case. For example, the stated remedy for a first offense of "[f]ailure to safeguard classified material" if security is not compromised, calls for "[r]eprimand to 5-day suspension" whereas the stated remedy for a second offense is "[r]eprimand to 14-day suspension." Union's Petition for Review, enclosure 2 at 7. Similarly, the remedies for first offenses involving reckless driving, improper operation of a motor vehicle or violations of safety or traffic regulations on an installation where there is no personal injury or damage to government property call for "[r]eprimand to 5-day suspension" whereas the stated remedy for second offenses is "[r]eprimand to 10-day suspension." Id., enclosure 2 at 6. Remedies for first offenses involving alcohol abuse range from 14-day suspensions to removal, but remedies for second offenses range from 30-day suspensions to removal. The remedy for the first occasion of unexcused tardiness is restricted to a reprimand, while a second offense may be remedied by a 5-day suspension, and a third offense could be met with removal. Thus, the inability to use prior offenses that are older than 3 years when assessing penalties could restrict the penalty that otherwise could be imposed for a given offense. Accordingly, it is clear that the proposal directly interferes with the Agency's rights under section 7106(a)(2)(A).
We find this proposal to be distinguishable from the proposal in dispute in American Federation of Government Employees, AFL-CIO, Local 1426 and Department of the Army, Fort Sheridan, Illinois, 34 FLRA 716 (1990). In relevant part, the proposal in that case stated: "In assessing penalties, consideration will be given to the freshness or time frame of previous offenses." Id. at 717. Although the proposal contained a table by which the "freshness" of previous offenses would be determined according to the type of penalty to be imposed, it also stated that "[s]election of an appropriate penalty may be more or less severe than the Table penalty depending upon the relevant factors in each individual case." Id. We found that this proposal did not directly interfere with the agency's right to discipline its employees because it required only that the agency consider the periods specified in determining the relevance of prior discipline. In contrast, the proposal in dispute here imposes a mandatory requirement regarding the use of prior offenses.
We also conclude that the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
The Union states that the proposal was intended to counter the "possible abuse" arising from the Agency's new Instruction, which the Union understood was designed "to expedite the removal of undesirable employees." Union's Petition for Review at 1. We find that the proposal thus constitutes an arrangement for employees adversely affected by management's right to discipline its employees.
After balancing the competing interests of the Agency in formulating appropriate discipline for offenses committed by its employees and the interests of the Union in protecting the employees from unwarranted discipline, however, we find that the proposal would excessively interfere with the Agency's right to discipline. Therefore, it is not an appropriate arrangement. Although employees would benefit significantly from not being subject to penalties based on offenses committed in the distant past, the proposal's blanket exclusion from the progressive disciplinary system of all prior offenses over 3 years old places an impermissible burden on management's ability to determine, based on all available evidence, whether a particular disciplinary action is appropriate and supportable. See Merchant Marine Academy, 39 FLRA at 224; Fort Bragg, 34 FLRA at 908.
Accordingly, the proposal is outside the Agency's duty to bargain because it excessively interferes with management's right to discipline under section 7106(a)(2)(A).
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)