Federal Union of Scientists and Engineers, NAGE Local RI-144 and Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island (Authority decision, December 18, 1987)

Final FLRA decision. The Authority finds a union proposal narrowing when the Navy could discipline employees for unauthorized drug or drug paraphernalia possession outside the duty to bargain. It dismisses the petition for review. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Navy's Newport center negotiated guidelines for employee discipline with the union. The disputed proposal would allow discipline for unauthorized possession of drugs or related paraphernalia only when the possession was for personal use or intended sale. The union said the language would help avoid disciplining someone who was not responsible for the material. The Authority held that the condition would prevent discipline based on possession alone and thus set a criterion for imposing discipline. Because that interfered with management's statutory right to discipline, it found the proposal outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Management's right to discipline under 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Drug possession discipline proposal outside the duty to bargain; petition dismissed.
• Key point: A negotiated rule could not make personal use or intended sale a prerequisite to discipline for unauthorized possession.

Full text (FLRA public release)

[ v30 p494 ]

30:0494(65)NG

The decision of the Authority follows:

30 FLRA NO. 65
30 FLRA 494

18 DEC 1987

FEDERAL UNION OF SCIENTISTS
AND ENGINEERS, NAGE LOCAL RI-144

Union

and

DEPARTMENT OF THE NAVY
NAVAL UNDERWATER SYSTEMS CENTER
NEWPORT, RHODE ISLAND

Agency

Case No. 0-NG-1443

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of one proposal. The proposal would permit the Agency to take disciplinary action against an employee for unauthorized possession of marijuana, a narcotic or a controlled substance, or drug paraphernalia only if the possession is for personal use or intended sale. We find that the proposal is nonnegotiable because it establishes criteria for the imposition of discipline and therefore directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

II. Background

The Union's proposal results from negotiations over a local instruction setting forth guidelines for disciplinary offenses. The purpose of the instruction is to guide supervisors and managers in determining appropriate corrective action when disciplinary infractions occur. The instruction sets forth both the nature of the particular offense as well as a suggested range of remedies. The Agency alleged that four Union proposals seeking to narrow or qualify the kinds of employee misconduct which might form the basis for disciplinary action were nonnegotiable. The Union filed a petition for review as to all four proposals. The Union later withdrew its appeal as to three proposals.

III. Proposal

Among the various offenses which will serve as basis for disciplinary action is the following:

possession of marijuana, a narcotic or a controlled substance or drug paraphernalia for personal use or intended sale, without authorization.

(Only the underscored language is in dispute.)

IV. Positions of the Parties

The Agency contends that the underscored phrase directly interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency argues that under existing case law, management cannot be required to negotiate on the criteria which it establishes for the imposition of discipline. The Agency claims that by requiring management to show that drugs or drug paraphernalia found in an employee's possession were for the employee's personal use or intended sale, the proposal would effectively bar managers from initiating discipline concerning drug-related misconduct until this additional precondition was met.

The Agency also argues that because the proposal shields employees from disciplinary action concerning certain drug-related offenses, it interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Specifically, it alleges that maintaining the honesty and integrity of its work force is an essential element of the Agency's security practices.

The Union contends that the proposal is intended to distinguish circumstances where the possession of the drugs or drug paraphernalia is not the employee's responsibility. The Union argues that the proposal assures that there is in fact a disciplinary offense and protects employees from unjust discipline.

V. Discussion

We conclude that the proposal is outside the duty to bargain because it directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

In Joint Council of Unions, GPO and United States Government Printing Office, 25 FLRA 1033 (1987) (Proposal 3), the Authority stated that an agency cannot be required to negotiate on the criteria which it establishes for the imposition of discipline. The proposal in this case requires management to show that the material in the employee's possession was for personal use or intended sale. The effect of the proposal therefore is to preclude discipline solely for the possession of drugs or drug paraphernalia.

By precluding discipline on that basis, the proposal establishes the criteria for imposing discipline, and therefore directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See National Federation of Federal Employees, Local 15 and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA 48, 50-51 (1985) (proposal limiting charge for being AWOL to those who knowingly and willingly do not report for work held to interfere with management's right to discipline). See also American Federation of Government Employees, AFL - CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Provision 3, stating that employees obligated to be available for overtime assignments would not be disciplined when they could not be contacted through no fault of their own, held to interfere with management's right to discipline).

Because we find the proposal to be nonnegotiable under section 7106(a)(2)(A), we need not address the Agency's contentions under section 7106(a)(1).

VI. Order

The petition for review is dismissed.

Issued, Washington, D.C., December 18, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY