[ v51 p1362 ]
The decision of the Authority follows:
51 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY TRAINING CENTER
AND FORT JACKSON
FORT JACKSON, SOUTH CAROLINA
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
June 14, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one provision disapproved by the Agency head under section 7114(c) of the Statute.(2) For the reasons that follow, we find that the provision, which requires that disciplinary and adverse actions be based on just cause and be consistently applied, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
The parties agree that discipline and adverse actions will be based on just cause and be consistently applied equitably and promote the efficiency of the Federal Service. In some instances, counselling or other informal means may be used to correct the situation. Supervisor's most effective means of maintaining discipline is through the promotion of cooperation; of sustained good working relationships; and of self-discipline and reasonable performance that is inherent in the Federal workforce. [Only the underlined sentence is in dispute.]
III. Positions of the Parties
The Agency argues that by requiring the equitable application of all disciplinary and adverse actions, the provision would impose a substantive limitation on management's right to discipline in accordance with section 7106(a)(2)(A) of the Statute. Contending that, in effect, the provision would require management to impose the same penalty for all employees who commit the same offense, regardless of mitigating circumstances, the Agency claims that the provision would not allow management the flexibility to consider a range of penalties. The Agency asserts that, under Authority precedent, an agency cannot be compelled to bargain over a table of penalties.
The Agency also argues that the Union has not met its burden of establishing a record that is sufficient for the Authority to make a determination as to whether the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In the alternative, the Agency cites Authority precedent to support its assertion that the provision does not constitute an appropriate arrangement because it excessively interferes with management's right to discipline.
The Union contends that the provision requires that "all disciplinary and adverse actions should be consistently applied and with equality." Petition at 3; Response at 4. The Union further explains that because the provision requires that discipline be imposed for such cause as will promote the efficiency of the Federal service, the Agency could take into account "any viable extenuating and mitigating circumstances" and apply all of the factors set forth in Douglas v. Veterans Administration, 5 MSPR 313 (1981), in taking disciplinary action. Response at 5 (emphasis in original). It points to the same or similar language in agreements dating back to 1971 and argues that the provision in this case should be similarly negotiable.
The Union does not deny that the provision affects the Agency's right to discipline, but asserts that it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union contends that the provision was intended as an arrangement for employees adversely affected by the Agency's "heavy handed approaches to the imposition of discipline[,]" and provides two examples of bargaining unit employees whose discipline was ultimately found by arbitrators to have been imposed without just cause. Response at 4. The Union stresses that under the provision management can take into account "viable extenuating and mitigating circumstances . . . ." Id. at 5.
IV. Analysis and Conclusions
Provisions that restrict the range of management action pursuant to a right under section 7106 of the Statute constitute limitations on the exercise of that right and for that reason have been held to directly interfere with the exercise of that right. National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 718-19 (1992). As relevant to this case, restrictions on an agency's ability to choose the specific penalty that it will impose in a disciplinary action directly interfere with management's right to discipline employees under section 7106(a)(2)(A). 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, 198 (1991) (Merchant Marine Academy). Therefore, the Authority has held that a provision that requires an agency to apply "consistent" penalties for particular offenses limits the agency's discretion to take disciplinary action. Id. at 198-99 (provision required that disciplinary or adverse actions would be taken only for just and sufficient cause as would promote the efficiency of the service and would be administered in a constructive, progressive, consistent, reasonable and timely manner); cf. 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, 906-07 (1990) (Fort Bragg) (proposal required that management consider only like offenses when determining whether an employee's actions constituted first, second, or third offenses).
The Union acknowledges its intention that under the provision management would be required to apply all disciplinary and adverse actions "with equality." Petition at 3; Response at 4. Thus, the provision in this case is similar in effect to the one at issue in Merchant Marine Academy. As in that case, the provision limits the Agency's ability to take at least some actions it deems appropriate even though it permits management some flexibility in determining specific disciplinary measures. Accordingly, as in that case, we conclude that the provision impermissibly affects management's right to discipline.
In determining whether a provision constitutes an appropriate arrangement, the Authority initially determines whether the provision is intended to be an arrangement for employees adversely affected by the exercise of a management right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG). The purported arrangement must be "tailored" to compensate or benefit employees suffering adverse effects flowing from the exercise of management's rights. See, for example, International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 454 (1995). If the provision is such an arrangement, the Authority then determines whether the arrangement is appropriate or inappropriate because it excessively interferes with management's rights. KANG, 21 FLRA at 31-33.
Contrary to the Agency's contention, there is a sufficient record to determine whether the provision in this case constitutes an appropriate arrangement. Based on the plain wording of the provision and the Union's stated intent, the provision applies only to those employees against whom disciplinary and adverse actions are taken. In general, a provision that requires an agency to administer discipline in a fair or consistent manner is intended to benefit employees adversely affected by the exercise of management's right to discipline. Cf. American Federation of Government Employees, Local 1426 and U.S. Department of the Army, Fort Sheridan, Illinois, 45 FLRA 867, 875 (1992) (Fort Sheridan) (proposal requiring agency to administer discipline in progressive manner found to be arrangement). In addition, in support of its assertion that the provision would protect employees from "arbitrary and capricious disciplinary cases," the Union provided specific examples of bargaining unit employees whose discipline was overturned by arbitrators because it had not been imposed for just cause. Response at 4. Thus, as it is tailored to apply to employees who are adversely affected by management's right to discipline under section 7106(a)(2)(A), the provision is an arrangement and satisfies the first prong of the KANG analysis.
With regard to the second prong of the KANG analysis, the Union states that the provision is designed to prevent "arbitrary [and] capricious decision making." Response at 4. However, the Union also states that it is not meant to "force management to impose a table of penalties that applies the same penalty under all circumstances." Id. at 4-5. There is nothing in the language of the provision that is inconsistent with this intended effect. The provision merely requires that, insofar as it will promote the efficiency of the Federal Service, the Agency must apply discipline "equitably" and based on just cause. In addition, although the provision requires that the Agency "consistently" apply discipline in an equitable manner, it is silent with regard to specific penalties or to a progressive system for determining disciplinary actions. Accordingly, as it is consistent with the plain language of the provision, we adopt the Union's interpretation. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). Moreover, as the provision does not mandate a progressive disciplinary system, it is distinguishable from proposals and provisions the Authority has found to excessively interfere with management's right to discipline because they would have required the use of such systems. E.g., Fort Sheridan, 45 FLRA at 875; Merchant Marine Academy, 39 FLRA at 199.
Further, the Union specifically affirms that, under the provision, the Agency would continue to apply the Douglas factors and to take into account all extenuating and mitigating factors when imposing discipline. As the Union's statement of intent is consistent with the language of the provision, we adopt the Union's interpretation in this respect as well. Given the Union's assurances, there is nothing in the record to support the Agency's arguments that the provision will impinge on its right to consider a range of penalties or that it in some manner imposes on management a table of penalties. Accordingly, this provision is distinguishable from proposals and provisions found by the Authority to excessively interfere with management's right to discipline because they prevent management from considering all factors when determining appropriate discipline. E.g., Fort Bragg, 34 FLRA at 907-08; International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 133-34 (1987) (Bureau of Engraving and Printing) (Provision 22(a), which limited the disciplinary measures the agency could take, excessively interfered with agency's right to discipline).
Analyzing the provision in this case under KANG, we find that the benefits to employees in receiving consistent and equitable treatment outweigh the minimal burdens on management of complying with the provision. Specifically, although the conduct giving rise to disciplinary and adverse actions may be within the employee's control, the employee has no control over management's imposition of inconsistent or inequitable treatment. In addition to the adverse effects employees suffer from the imposition of discipline, the effects of inconsistent or inequitable discipline are particularly severe. For example, the Union describes an award in which an arbitrator found that the Agency had no just cause for its suspension of an employee who had 20 years of service and no prior disciplinary record. In contrast, the provision expressly retains the Agency's ability to act in a manner that "promote[s] the efficiency of the Federal Service" and, as explained by the Union, permits the Agency to take into account all the circumstances surrounding the disciplinary or adverse action. Thus, this provision is similar to Provision 22(b) in Bureau of Engraving and Printing, which the Authority found negotiable as an appropriate arrangement. 25 FLRA at 134. That provision required the agency to effect discipline "in a prompt, fair and equitable manner; only for specific cause; and with the employees' rights fully protected." Id. at 130. In addition, it permitted the agency to consider all the factors involved in the offense, including mitigating circumstances and the employee's previous disciplinary record. In contrast, the Authority held, as noted above, that Provision 22(a) in Bureau of Engraving and Printing was not an appropriate arrangement because it severely limited the agency's discretion to impose appropriate discipline.
As the Authority found with regard to Provision 22(b) in Bureau of Engraving and Printing, the provision in this case permits the Agency to retain the ultimate right to determine which employees will be disciplined and what discipline will be imposed. Accordingly, we find that the provision does not excessively interfere with management's right to discipline and conclude that it is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
The Agency is directed to rescind its disapproval of the provision.(3)
Member Armendariz concurring:
I write separately because, applying the standard set forth in my dissent in National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 209-14 (1994) (PTO), I conclude that the provision constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. As explained by the Union, the provision would benefit employees by protecting them against excessive or arbitrary disciplinary penalties. In particular, according to the Union, by incorporating the Douglas factors(*) and other extenuating and mitigating factors, the provision requires that discipline be imposed taking into account the varied circumstances of each case. I find that the Union's explanation of the provision is consistent with the wording thereof and I adopt it for purposes of this opinion.
Interpreted in this manner, the provision applies only after management has decided to take a disciplinary or an adverse action against an employee and provides benefits only to the employees who are subject to those actions. Specifically, the provision limits the penalty that will be imposed on those employees. Thus, the provision is tailored to benefit only those employees who will suffer an identifiable adverse effect as a result of the exercise of management's right to discipline under section 7106(a)(2)(A) of the Statute. I conclude, therefore, that the provision constitutes an arrangement within the meaning of section 7106(b)(3). See my dissent in PTO at 211.
I also agree that, interpreted in this manner, the provision is an appropriate arrangement within the meaning of section 7106(b)(3). The provision allows management flexibility in the determination of the appropriate penalty based on the circumstances of each individual case. The provision also protects employees against excessive or arbitrary disciplinary penalties. I find that the burden imposed on management's ability to discipline by the limitation on penalties is outweighed by the benefit to employees of the protection afforded by that limitation. I conclude, therefore, that the provision does not excessively interfere with management's right to discipline and is within the Agency's duty to bargain under section 7106(b)(3) of the Statute.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The separate concurring opinion of Member Armendariz appears at the end of this decision.
2. The Agency withdrew its allegation of nonnegotiability as to a second provision. Accordingly, that provision will not be considered in this decision.
3. In finding the provision to be within the duty to bargain, we make no judgment as to its merits.
Concurring Opinion Footnote Follows:
*/ The phrase "Douglas factors" refers to guidelines established by the Merit Systems Protection Board in Douglas v. Veterans Administration, 5 MSPR 280 (1981) that govern the appropriateness of penalties in actions covered by 5 U.S.C. §§ 4303 and 7512. E.g., U.S. Department of the Army, III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 46 FLRA 609, 613 (1992).