[ v14 p65 ]
14:0065(15)NG
The decision of the Authority follows:
14 FLRA No. 15
NATIONAL TREASURY EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE,
SAN FRANCISCO, CALIFORNIA
Agency
Case No. O-NG-535
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute) and
raises issues concerning the negotiability of four Union proposals.
Union Proposal 1
I. IRS, Western Region will act as self-insurer for any
financial liability incurred by individual account technicians by
virtue of their activity as certifying officers which has been
deemed improper, incorrect, or inaccurate certification. As
self-insurer, the Agency will assume the risk of improper,
incorrect, or inaccurate certification and thereby hold harmless
individual certifying officers. The above hold harmless provision
shall apply only to those errors which are improper, incorrect or
inaccurate certification that is not due to willful malfeasance or
fraud.
Question Before the Authority
The question presented is whether, as alleged by the Agency, Union
Proposal 1 is inconsistent with Federal law, i.e., 31 U.S.C. 82c.
Opinion
Conclusion and Order: Union Proposal 1 is inconsistent with 31
U.S.C. 82c. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations, IT IS ORDERED that the petition for review of
Union Proposal 1 be, and it hereby is, dismissed.
Reasons: Union Proposal 1 would require the Agency to assume the
risk of improper, incorrect, or inaccurate certification. Specifically,
the proposal would require the Agency to act as an insurer on behalf of
the certifying officers in the bargaining unit, assuming any financial
liability for improper payments of Agency funds. The Government by law
is a self-insurer of its contingent loss if it is unable to recover the
full amount of an improper payment from a certifying officer. /1/
Contrary to the Union's characterization of the proposal, it would not
merely require the Agency to act as a self insurer but, rather, to
insure the certifying officer's risk of loss resulting from an improper
payment. With respect to the liability of a certifying officer,
however, 31 U.S.C. 82c states that the officer certifying a voucher
shall be held accountable for and required to make good to the United
States the amount of any illegal, improper, or incorrect payment
resulting from any false, inaccurate, or misleading certificate made by
him or her as well as for any payment prohibited by law or which did not
represent a legal obligation under the appropriation or fund involved.
/2/ Since the proposal would nullify this statutory requirement, it is
clearly inconsistent with 31 U.S.C. 82c and, therefore, is outside the
duty to bargain.
Union Proposal 2
II. If an employee is not held harmless by virtue of the
self-insurance provision-- because either the error is alleged to be due
to willful malfeasance or fraud, or the Agency has not agreed to
self-insure, the following procedures shall apply to any employee who it
is alleged has made an error as a "certifying officer," and thereby
potentially is subject to financial liability:
A. No employee shall be subject to financial liability unless
it has been shown by the preponderance of the evidence that the
employee failed to follow specific official instructions.
B. An employee will upon request be provided a copy of that
portion of all written documents which contain evidence relied
upon by the Agency in alleging the basis for proposed assessed
financial liability.
C. The Employer will provide the affected employee with fifteen
(15) calendar days advance written notification for the proposed
assessed financial liability.
D. An employee will be given an opportunity to make an oral
and/or written reply, provided that the employee requests an oral
reply within seven (7) days of the receipt by the employee of the
letter of proposed action, and provided that the oral and/or
written reply must be received by the Employer within a reasonable
period of time after receipt by the employee of the letter of
proposed action. If the employee elects to make an oral reply,
the Employer will prepare a verbatim transcript of the oral reply
and will provide a copy to the Employee or his/her union
representative, upon request.
E. The Employer will issue a final decision after receipt of
the written and/or oral reply, or the termination of the fifteen
(15) calendar day notice period. The letter will state which
allegations have been sustained.
F. If the Employer's final decision is that an employee will be
assessed financial liability, the employee with the consent of the
Union may appeal the decision to binding arbitration pursuant to
the Expedited Arbitration procedures in the NORD Agreement at
Article 38. In the alternative, the employee may appeal the
matter to the Comptroller General for a decision.
G. Any assessment will be held in abeyance until a final
decision by an arbitrator or the Comptroller General.
H. The burden of proof in any arbitration will be the
preponderance of the evidence.
I. The following shall constitute affirmative defenses, that
if established by the employee, shall be part of the
decision-maker's consideration and may result in the finding of no
liability:
(1) Lack of adequate training;
(2) Lack of specific guidelines or instructions;
(3) Excessive workload pressures;
(4) Unreasonable deadline pressures;
(5) Lack of adequate staffing and/or support personnel.
J. A further consideration shall be the extent of review that
is expected of a certifying officer regarding various
classifications of invoices.
Question Before the Authority
The question presented is whether, as alleged by the Agency, Proposal
2 is inconsistent with 31 U.S.C. 82c.
Opinion
Conclusion and Order: Union Proposal 2 is inconsistent with 31
U.S.C. 82c. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations, IT IS ORDERED that the petition for review as to
this proposal be, and it hereby is, dismissed.
Reasons: As discussed in connection with Union Proposal 1, 31 U.S.C.
82c fixes the liability of certifying officers for improper payments of
Government funds. That statute requires the certifying officer to be
held accountable for and to be required to make good to the United
States the amount of any improper payment resulting from any inaccurate
certificate made by him or her. It is well settled that under this
statute a certifying officer is automatically liable as an insurer the
moment payment is made as a result of an erroneous certificate. 55
Comp.Gen. 297, 298(1975); 54 Comp.Gen. 112, 114(1974). Thereafter, if
the erroneous payment cannot be recovered, consideration is given to
relief of the accountable officer. 54 Comp.Gen. 112, 114(1974).
Prior to the enactment of 31 U.S.C. 82c, relief of certifying
officers could be granted only by Acts of Congress upon private relief
bills. 87 Cong.Rec. 10027(1941). Section 82c was enacted to reduce the
number of appeals to Congress by additionally enabling the Comptroller
General to grant relief in meritorious cases. Id.; S. Rep. No. 916,
77th Cong., 1st Sess. 2-8(1941); H.R. Rep. No. 1263, 77th Cong., 1st
Sess. 2-3(1941). Under section 82c, requests for relief are to be
presented first to the Comptroller General and, if denied by him,
thereafter to the Congress. 30 Comp.Gen. 298, 300(1951). This section
provides the exclusive means available for seeking relief in any forum.
Under section 82c, relief may be granted when the certifying officer
proves that he or she was without fault or negligence in certifying the
payment. 54 Comp.Gen. 112, 115(1974); see also Serrano v. United
States, 612 F.2d 525, 529, 531 (Ct.Cl. 1979). In that regard, the
burden of proof is placed upon the certifying officer. 54 Comp.Gen.
112, 115(1974); Serrano v. U.S., 612 F.2d at 532. The press of work
cannot be asserted as a defense to relieve a certifying officer of his
or her legal responsibilities under that provision of law. 55 Comp.Gen.
297, 299(1975). Similarly, since the certifying officer may obtain an
advance decision from the Comptroller General as to any doubtful matter,
lack of instructions or reliance on advice or instructions from Agency
personnel cannot form the basis of a defense to liability thereafter.
Id. at 300; 31 Comp.Gen. 653, 654(1952).
Although the Union characterizes its proposal as procedural, the
proposal as a whole would prescribe requirements governing the liability
of certifying officers for erroneous payments of Government funds which
are contrary to law. Specifically, parts A and H would, contrary to law
as interpreted above, shift to the Agency the burden of proving that an
employee was at fault in certifying a payment. Parts F and G of the
proposal would permit employees who have improperly certified a payment
to "appeal" the Agency's determination to binding arbitration. /3/ As
such, these parts of the proposal conflict with the exclusive means by
which certifying officers may seek relief, i.e., a request to the
Comptroller General, pursuant to section 82c. Parts A, I, and J would,
in effect, provide that the press of work, lack of instructions, or
reliance on Agency instructions could constitute a defense to liability.
As explained above, however, such defenses are inconsistent with the
liability imposed upon certifying officers by 31 U.S.C. 82c. Finally,
parts B, C, D, and E of the proposal are not explicitly made severable
from the proposal as a whole and, therefore, the Authority will not
consider them separately. American Federation of Government Employees,
Local 225 and U.S. Army Armament Research and Development Command,
Dover, New Jersey, 11 FLRA No. 108(1983). Accordingly, based upon the
foregoing, Union Proposal 2, taken in its entirety, is inconsistent with
31 U.S.C. 82c and, therefore, outside the duty to bargain.
Union Proposal 3
III. It is understood that an employee will not be held
financially liable unless he/she has undertaken a "comprehensive
audit."
Question Before the Authority
The question presented is whether, as alleged by the Agency, Union
Proposal 3 is inconsistent with 31 U.S.C. 82c.
Opinion
Conclusion and Order: Union Proposal 3 is inconsistent with the
provisions of 31 U.S.C. 82c. Accordingly, pursuant to section 2424.10
of the Authority's Rules and Regulations, IT IS ORDERED that the
petition for review of Union Proposal 3 be, and it hereby is, dismissed.
/4/
Reasons: Union Proposal 3 would preclude a certifying officer from
being held financially accountable and liable unless he or she has
undertaken a "comprehensive audit." However, 31 U.S.C. 82c provides that
the officer certifying a voucher shall be held responsible for the
existence and correctness of the facts on the certificate and the
legality of the proposed payment and that such officer shall make good
the amount of any improper payment resulting therefrom. Since under
that provision of law, an accountable officer is automatically liable at
the moment an erroneous payment is made, /5/ without regard to whether
he or she has made a "comprehensive audit," Union Proposal 3 is
inconsistent with 31 U.S.C. 82c and, therefore, is not within the duty
to bargain.
Union Proposal 4
IV. In the event a certifying officer is unwilling to certify
a particular invoice because he/she has serious doubts as to the
facts or legal liability, it shall be the responsibility of the
immediate supervisor to certify the invoice. Pursuant to 31
U.S.C. Section 82(d), the supervisor may then seek advice, if
deemed advisable, from the Comptroller General.
Question Before the Authority
The question presented is whether Union Proposal 4 is inconsistent
with management's right to assign work under section 7106(a)(2)(B) of
the Statute.
Opinion
Conclusion and Order: Union Proposal 4 is inconsistent with
management's right under section 7106(a)(2)(B) to assign work.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review of Union
proposal, 4 be, and it hereby is, dismissed. /6/
Reasons: Section 7106(a)(2)(B) of the Statute reserves to management
the right to assign work to positions in the agency. In National
Treasury Employees Union and Department of the Treasury, Internal
Revenue Service, 7 FLRA No. 35(1981) (Union Proposal 6), the Authority
held that a proposal which deprived management of its discretion to
identify the particular position to which work will be assigned was
inconsistent with management's right to assign work. The record in this
case indicates that the Agency assigned to certain Accounts Technicians
the duty of acting as certifying officers. /7/ Union Proposal 4,
however, would permit a certifying officer to unilaterally refuse to
perform the assigned work in certain cases and would require the
officer's immediate supervisor to perform that work. By giving an
employee the right to refuse to perform work, the proposal directly
interferes with management's right under section 7106(a)(2)(B) to assign
work. See International Organization of Masters, Mates and Pilots and
Panama Canal Commission, 11 FLRA No. 29(1983) (Provisions 3-6).
Accordingly, the proposal is not within the duty to bargain.
Issued, Washington, D.C., March 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ See Pub.L. No. 92-310, 86 Stat. 213 repealing provisions of 31
U.S.C. 82c which had required certifying officers to post bonds; S.
Rep. No. 92-790, 92nd Cong., 2d Sess. (1982) reprinted in (1972) U.S.
Code Cong. & Ad. News 2364-66.
/2/ Sec. 82c. Certifying officers; accountability; relief by
Comptroller General
The officer or employee certifying a voucher shall (1) be held
responsible for the existence and correctness of the facts recited
in the certificate or otherwise stated on the voucher or its
supporting papers and for the legality of the proposed payment
under the appropriation or fund involved; and (2) be held
accountable for and required to make good to the United States the
amount of any illegal, improper, or incorrect payment resulting
from any false, inaccurate, or misleading certificate made by him,
as well as for any payment prohibited by law or which did not
represent a legal obligation under the appropriation or fund
involved: Provided, That the Comptroller General may, in his
discretion, relieve such certifying officer or employee of
liability for any payment otherwise proper whenever he finds (1)
that the certification was based on official records and that such
certifying officer or employee did not know, and by reasonable
diligence and inquiry could not have ascertained, the actual
facts, or (2) that the obligation was incurred in good faith, that
the payment was not contrary to any statutory provision
specifically prohibiting payments of the character involved, and
that the United States has received value for such payment (.)
/3/ The Union argues that the proposal only concerns the
determination of whether an erroneous payment has been made and does not
address the issue of relief. On its face, however, the right to
"appeal" set forth in part F of the proposal applies only after the
Agency has made a "final decision" in part E that an employee improperly
certified a particular payment. Part F, therefore, clearly concerns
relief from liability.
/4/ In light of this conclusion, the Authority finds it unnecessary
to address the Agency's additional contention that the proposal is
inconsistent with section 7106(a)(2)(A) or (b)(1) of the Statute.
/5/ 54 Comp.Gen. 112, 114(1974).
/6/ In light of this conclusion, the Authority finds it unnecessary
to address the Agency's contentions that the proposal is inconsistent
with section 7106(a)(2)(A) or (b)(1) of the Statute.
/7/ Union petition for review at 1; Agency statement of position at
1.