30:0494(65)NG - Federal Union of Scientists and Engineers, NAGE Local R1-144 and Navy, Naval Underwater Systems Center, Newport, RI -- 1987 FLRAdec NG

 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