22:0142(14)AR - DOD Dependents Schools and Overseas Education Association -- 1986 FLRAdec AR
[ v22 p142 ]
The decision of the Authority follows:
22 FLRA No. 14 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Agency and OVERSEAS EDUCATION ASSOCIATION Union Case No. 0-AR-1024 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Roger Kaplan filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case concerns the administratively determined indebtedness of the grievant, a school counselor, in the amount of $7,574. The amount represents two years of tuition-free education the Activity claimed was provided a student as the result of misrepresentations by the grievant. According to the Arbitrator, the grievant and the grievant's mother had entered into an agreement transferring guardianship of the student from the mother to the grievant in order for the student to be eligible for tuition-free education at Bitburg American High School. When the grievant failed to submit a court decree approving the guardianship agreement, the grievant was required to submit a sworn statement that he had assumed "in loco parentis" status and was supporting the student. On the basis of the grievant's statements, the student was provided the two years of tuition-free education. Subsequently, after an investigation, the Activity proposed to remove the grievant based upon charges that his statements regarding his support of the student had been false. The charges against the grievant were sustained and he was ultimately suspended for 14 days and reassigned. It was on the basis of these sustained charges that the indebtedness of the grievant was determined. The grievant thereafter filed the grievance contesting the claim of indebtedness and the grievance was submitted to arbitration. As his award, the Arbitrator sustained the grievance, finding that the grievant was not indebted for the student's tuition costs, and ordered management to cancel the demand for payment. III. EXCEPTION A. Contentions of the Agency in its exception the Agency contends that the award is contrary to law and regulation pertaining to the recovery through salary offset of certain debts owed the United States by Federal employees. The Agency argues that administratively determined indebtedness is not subject to resolution under a grievance procedure negotiated in accordance with the Statute and must be determined pursuant to 5 U.S.C. section 5514. /1/ In particular, the Agency argues that to permit the grievance and arbitration over such indebtedness is contrary to section 5514. The Agency also argues that to permit the grievance and arbitration of such matters is contrary to 5 CFR part 55, subpart K, providing for collection by salary offset from indebted employees. Specifically, the Agency maintains that the use of the negotiated grievance procedure is contrary to 5 CFR section 550.1104 which requires each agency to assure that its regulations governing the collection of debts are uniformly and consistently applied to all employees. The Agency asserts that because the negotiated grievance procedure is available only to bargaining-unit employees, use of the negotiated grievance procedure necessarily precludes uniformity and consistency of application in violation of 5 CFR section 550.1104. B. Opposition of the Union In its opposition to the Agency's exception, the Union primarily argues that 5 U.S.C. section 5514 and 5 CFR part 550, subpart K are not applicable to bar the grievance or the Arbitrator's award because collection of the claimed indebtedness was not sought by salary offset. IV. ANALYSIS AND CONCLUSIONS For the reasons which follow, the Authority finds that the provisions of 4 U.S.C. section 5514 do not preclude an arbitrator from ruling on and overturning an assessment of administratively determined indebtedness against an employee. Collective bargaining agreements negotiated under section 7121 of the Statute must contain a grievance procedure and that procedure, except as provided in section 7121(d) and (e), /2/ is the exclusive procedure for resolving grievances which fall within its coverage. /3/ Thus, the negotiated grievance procedure may be invoked to settle disputes within its coverage despite the existence of internal agency appeal procedures or statutory appeal procedures which also cover the matter at issue. As to certain statutory or appellate procedures, section 7121(d) and (e) of the Statute, as noted, demonstrate that Congress was aware of other statutory appeal procedures when it provided in the Statute for negotiated grievance and arbitration procedures. It is clear that Congress intended the negotiated procedures to be an alternative to those specified statutory and appellate procedures. /4/ As to internal agency procedures and statutory procedures not specified in section 7121(d) and (e), Congress intended that the negotiated grievance procedure replace those procedures. /5/ Consequently, unless it can be shown that the procedures governing the collection by salary offset of any debts owed the United States are intended to be the exclusive procedures for resolving these matters, such matters are within the scope of the negotiated grievance procedure prescribed by the Statute. Both the courts and the Authority have determined that Federal law outside the Statute can limit the scope of the negotiated grievance procedure. See American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34 (1986) (proposal 2 and cases cited in the decision). Consequently, notwithstanding that the Activity had not expressly determined to proceed to collect the indebtedness from the grievant by salary offset, the Authority has examined the provisions cited by the Agency to determine whether the provisions are the exclusive procedures available to Federal employees to challenge indebtedness to the United States so as to overcome section 7121 of the Statute. In disagreement with the Union, we find that the provisions must be examined in this respect because they generally apply to the grievant's situation of being determined to be indebted to the United States and as a Federal employee, at least, being subject to salary offset in the collection of that debt. In the cases where the courts and the Authority have found that outside law limits the scope of the negotiated grievance procedure, there have been clear specific indications that the statutory procedures were intended to be exclusive. Headquarters, AFLC, slip op. at 6-7. For example, in each instance, statutory provisions convering those procedures provided that they should take effect "notwithstanding" any other law. See New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3rd Cir. 1982); Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983). The Agency in its exception cites no such provisions in section 5514. Therefore, the Authority finds that none of the Agency's arguments provide a basis for concluding that the grievance in this case protesting the Activity's determination of indebtedness is excluded by law from the coverage of the negotiated grievance procedure. Simiarly, the Authority finds that the Agency's arguments provide no basis for finding the award contrary to 5 CFR part 550, subpart K. The Agency has argued in its exception that permitting the use of the negotiated grievance procedure in these matters, which is available only to bargaining-unit employees under a collective bargaining agreement, necessarily precludes uniformity and consistency of application of agency regulations to all employees as required by 5 CFR section 550.1104. However, the means of dispute resolution that may be available to individual employees has not been shown to preclude the uniform and consistent application to all employees of the substantive terms of agency regulations governing the collection of debts. Furthermore, the Agency's argument that there cannot be uniformity and consistency because grievance and arbitration is not available to nonbargaining-unit employees is without merit and provides no basis for finding the award deficient. Such an effect is precisely the result contemplated by the terms and provisions of the Statute. DECISION Accordingly, for these reasons, the Agency's exception provides no basis for finding the award deficient as contrary to law or regulation, and the exception is denied. Issued, Washington, D.C., June 13, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 5 U.S.C. section 5514 is set forth in the Appendix. (2) Section 7121(d) and (e) provide the aggrieved employee in the specified matters, none of which include the matter involved in this case, an option of raising the matter under the negotiated grievance procedure, if the matter has not been excluded by the parties, or under applicable statutory or appellate procedures. (3) The term "grievance" is defined in section 7103(a)(9) to include any complaint by any employee concerning any matter relating to the employment of the employee or concerning any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. Section 5 of the Debt Collection Act of 1982 amended 5 U.S.C. section 5514 to provide the Government with the authority to take offset against the salaries of Federal employees in order to collect any debts owed the United States, and the Office of Personnel Management has prescribed regulations governing the collection of such debts by salary offset. Pub. L. No. 97-365, 96 Stat. 1749; 5 U.S.C. section 5514; 5 CFR part 550, subpart K. Any complaint by an employee about such an indebtedness or collection action would be a "grievance" and would be covered by the negotiated grievance unless excluded by law or by the parties. (4) See H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 56 (1978); S. Rep. No. 95-969, 95th Cong., 2d Sess. 110 (1978). (5) See H.R. Rep. No. 95-171, 95th Cong., 2d Sess. 157 (1978); S. Rep. No. 95-969, 95th Cong. 2d Sess. 110 (1978). APPENDIX 5 U.S.C. Section 5514 provides: Section 5514. Installment deduction for indebtedness to the United States (a)(1) When the head of an agency or his designee determines that an employee, member of the Armed Forces or Reserve of the Armed Forces, is indebted to the United States for debts which the United States is entitled to be repaid at the time of the determination by the head of an agency or his designee, or is notified of such a debt by the head of another agency or his designee the amount of indebtedness may be collected in monthly installments, or at officially established pay intervals, by deduction from the current pay account of the individual. The deductions may be made from basic pay, special pay, incentive pay, retired pay, retainer pay, or, in the case of individual not entitled to basic pay, other authorized pay. The amount deducted for any period may not exceed 15 percent of disposable pay, except that a greater percentage may be deducted upon the written consent of the individual involved. If the individual retires or resigns, or if his employment or period of active duty otherwise ends, before collection of the amount of the indebtedness is completed, deduction shall be made from subsequent payments of any nature due the individual from the agency concerned. (2) Except as provided in paragraph (3) of this subsection, prior to initiating any proceedings under paragraph (1) of this subsection to collect any indebtedness of an individual, the head of the agency holding the debt or his designee, shall provide the individual with -- (A) a minimum of thirty days written notice, informing such individual of the nature and amount of the indebtedness determined by such agency to be due, the intention of the agency to initiate proceedings to collect the debt through deductions from pay, and an explanation of the rights of the individual under this subsection; (B) an opportunity to inspect and copy Government records relating to the debt; (C) an opportunity to enter into a written agreement with the agency, under terms agreeable to the head of the agency or his designee, to establish a schedule for the repayment of the debt; and (D) an opportunity for a hearing on the determination of the agency concerning the existence or the amount of the debt, and in the case of an individual whose repayment schedule is established other than by a written agreement pursuant to subparagraph (C), concerning the terms of the repayment schedule. A hearing, described in subparagraph (D), shall be provided if the individual, on or before the fifteenth day following receipt of the notice described in subparagraph (A), and in accordance with such procedures as the head of the agency may prescribe, files a petition requesting such a hearing. The timely filing of a petition for hearing shall stay the commencement of collection proceedings. A hearing under subparagraph (D) may not be conducted by an individual under the supervision or control of the head of the agency, except that nothing in this sentence shall be construed to prohibit the appointment of an administrative law judge. The hearing official shall issue a final decision at the earliest practicable date, but not later than sixty days after the filing of the petition requesting the hearing. (3) The collection of any amount under this section shall be in accordance with the standards promulgated pursuant to sections 3711 and 3716-3718 of title 31 or in accordance with any other statutory authority for the collection of claims of the United States or any agency thereof. (4) For the purposes of this subsection -- (A) "disposable pay" means that part of pay of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld; and (B) "agency" includes the United States Postal Service and the Postal Rate Commission. (b)(1) The head of each agency shall prescribe regulations; subject to the approval of the President, to carry out this section and section 3530(d) of title 31. Regulations prescribed by the Secretaries of the military departments shall be uniform for the military services insofar as practicable. (2) For purposes of section 7117(a) of this title, no regulation prescribed to carry out subsection (a)(2) of this section shall be considered to be a Government-wide rule or regulation. (c) Subsection (a) of this section does not modify existing statutes which provide for forfeiture of pay or allowances. This section and section 3530(d) of title 31 do not repeal, modify, or amend section 4837(d) or 9837(d) of title 10 or section 1007(b), (c) of title 37.