42:0192(14)NG - - IAM, Dist. Lodge 110, Locals 1859, 2296, 2297 2316 and Navy, Marine Corps Air Station and Naval Aviation Depot, Cherry Point, NC - - 1991 FLRAdec NG - - v42 p192

[ v42 p192 ]
The decision of the Authority follows:

42 FLRA No. 14






LOCAL LODGES 1859, 2296, 2297, 2316











September 16, 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). It involves the negotiability of a proposal concerning the consideration of prior offenses under the Agency's progressive discipline system. For the reasons discussed below, we find that the proposal is nonnegotiable because it excessively interferes with management'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 three (3) years before the date of the propos[ed] adverse action in which it is cited.

III. Positions of the Parties

A. Agency

The Agency states that the "concept of progressive discipline is followed for many offenses" by Agency supervisors and managers. Statement at 1. According to the Agency, a proposal "to limit the time period that prior actions may be used to determine the appropriate penalty to one, two, or even three years would improperly interfere with management's use of progressive discipline." Id. The Agency contends, therefore, that the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute because the proposal "limit[s] the amount of time that a prior disciplinary or adverse action may be used to support disciplinary action." Id. Citing Bremerton Metal Trades Council and Navy Supply Center Puget Sound, 32 FLRA 643 (1988), the Agency argues that the instant proposal has the same effect as the provision found nonnegotiable in that case.

The Agency contends that the proposal is distinguishable from a proposal found negotiable in American Federation of Government Employees, AFL-CIO, Local 1426 and Department of the Army, Fort Sheridan, Illinois, 34 FLRA 716 (1990) (Fort Sheridan, Illinois), where "management had only to consider the time frames or reckoning periods before determining the penalty." Id. at 2 (emphasis in original). The Agency distinguishes Fort Sheridan, Illinois by asserting that "the proposal in this case prohibits management from freely assessing the weight which should be attached to prior offenses when exercising its statutory right to discipline employees." Id. (emphasis in original). Relying on 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 (1991), the Agency argues that proposals restricting management's discretion to initiate disciplinary action based upon available evidence directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute.

B. Union

According to the Union, the Agency's previous policy governing the use of a prior suspension in determining appropriate discipline was not to consider any suspension that was older than 3 years. The Union states that the proposal was offered in response to the Agency's decision to consider any and all prior suspensions, regardless of how old, when determining appropriate discipline. The Union explains that the proposal is "not intended to prevent, hinder, or delay the Agency from [its] statutory right to take disciplinary action or to prevent [the Agency] from setting any penalty." Response at 1. Rather, the Union contends, the proposal is intended to establish "the maximum time such actions could be used against an employee to title [a prior offense] the second, third or fourth offense." Id. Specifically, the Union states that the "only intent of the . . . proposal is to establish a reasonable time (held to be the three year established past practice)" for computing the "frequency or number of offenses." Petition at 3.

The Union claims that the omission of the 3-year reckoning period from the Agency's Instruction, "OCPMINST 12752.1," concerning the schedule of offenses and recommended remedies is a change of the established past practice. See id., Enclosure, Reference (a). The Union claims that the wording of this Instruction "leaves to the discretion of the Agenc[y] the reckoning period that past offenses will be considered" when the Agency exercises its right to discipline employees under section 7106(a)(2)(A) of the Statute." Id. The Union states that the Authority has "consistently ruled that [matters] that are discretionary with the Agency are negotiable." Id.

The Union contends that the Agency's new policy is an "unreasonable practice" and is also "arbitrary, capricious and an abuse of authority." Id. at 4. The Union asserts that if the Agency is permitted to consider past offenses indefinitely, an employee could be held responsible and ultimately charged with "an additional offense occurring 10, 20, 30, or more years later[.]" Id. at 3. The Union states that unit employees "cannot accept a mistake being held against [them] forever with no chance of having the record cleared." Id. at 4. Further, the Union asserts that management has adopted a policy that "if any employee has a current disciplinary action that has not been removed from the records, they canno