[ v18 p348 ]
18:0348(46)NG
The decision of the Authority follows:
18 FLRA No. 46
POLICE ASSOCIATION OF THE
DISTRICT OF COLUMBIA
Union
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, U.S.
PARK POLICE
Agency
Case No. 0-NG-560
DECISION AND ORDER ON NEGOTIABILITY ISSUE
The petition for review in this case comes before 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 the Union proposal set forth below.
Upon careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations. /1/
Section 1. For the purposes of this Contract, a Disciplinary
Action is a letter of reprimand, a suspension for 14 days or less.
Summary Hearings or Trial Boards of the Chief of the United
States Park Police shall be appealable at step 3 of the Grievance
Procedure, or to the Secretary of the Interior. Actions of the
Regional Director shall be appealable through the Arbitration
Procedures. (Only the underlined portion of the proposal is in
dispute.)
Insofar as it is in dispute herein, the Union's proposal provides
unit employees the option, in cases of proposed disciplinary action, of
appealing from the decisions of summary hearings or trial boards either
to the Secretary of the Interior or at the third step of the negotiated
grievance procedure. The Agency contends that this portion of the
proposal is nonnegotiably under section 7117(a)(1) of the Statute /2/
because it is inconsistent with law, i.e., Pub. L. No. 87-797, 76 Stat.
907 (1962). /3/ In particular, the Agency argues that, under Pub. L.
87-797, the sole appeal from summary hearings or trial boards involving
"disciplinary actions" against U.S. Park Police employees lies with the
Secretary of the Interior. Therefore, the Agency concludes, it is
prohibited by law from including disputes as to "disciplinary actions"
within the scope of the negotiated grievance procedure. The Union
contends, in essence, that, under section 7121 of the Statute,
"disciplinary actions" are mandatorily within the scope of the
negotiated grievance procedure and, further, to the extent Pub. L.
87-797 is in conflict with the Statute at this point, it is the Statute
which takes precedence. Thus, the issues presented herein are whether
the Union's proposal is inconsistent with Pub. L. 87-797, and, if so,
whether section 7121 of the Statute renders the proposal bargainable
notwithstanding Pub. L. 87-797.
As to the first issue, Pub. L. 87-797 authorizes the Secretary of the
Interior to prescribe penalties, e.g., fines of $100 or less and
suspensions without pay not to exceed seven (7) days, for minor
violations of the rules and regulations governing the conduct of U.S.
Park Police employees. For the protection of those employees, the law
also establishes certain hearing procedures for the trial of proposed
disciplinary actions, e.g., summary hearings by the Chief of the Park
Police and trial boards, with a right of appeal to the Secretary of the
Interior. More specifically, as relevant herein, the law provides that,
"notwithstanding . . . any other law," the decision of the Secretary on
appeal as to those penalties which are within his authority, i.e., fines
of $100 or less or suspensions of seven days or less, is final and
conclusive. /4/
As indicated by the legislative history, the purpose of Pub. L.
87-797 was, generally speaking, to improve the administration of the
Park Police by providing both more flexibility in the enforcement of
regulations governing employee conduct and also fairer and quicker
procedures for prosecuting disciplinary actions. /5/ Congress concluded
that the disciplinary authority and appeals procedures available to Park
Police management under existing law were not sufficient to deal with
minor infractions of such regulations and involved protracted review.
Congress intended, therefore, in enacting Pub. L. 87-797, to provide a
simple, expeditious procedure whereby disciplinary action for minor
infractions would be processed to completion within the Agency. /6/
The Agency contends that Pub. L. 87-797 creates an exclusive
procedure for minor disciplinary actions and that, by providing
employees an option to avoid that procedure in favor of the negotiated
grievance procedure, the proposal at issue herein is inconsistent with
law. The Authority agrees. In particular, as indicated above, Pub. L.
87-797 provides that "notwithstanding . . . any other law" the decision
of the Secretary of the Interior as to the fines and suspensions within
his authority under the law" the decision of the Secretary of the
Interior as to the fines and suspensions within his authority under the
law will be "final and conclusive." Thus, by its plain language, Pub. L.
87-797 requires that appeals from summary hearings and trial boards go
only to the Secretary of the Interior and that no appeals be taken from
his decision, as to penalties within his authority, regardless of
appeals procedures which might otherwise be available under law.
Therefore, by in effect substituting the decision of an arbitrator for
that of the Secretary of the Interior and, in addition, subjecting the
arbitrator's decision to further review by the Authority under section
7122 of the Statute, /7/ the proposal is inconsistent with Pub. L.
87-797, which provides that the decision of the Secretary of the
Interior as to such matters shall be "final and conclusive."
This conclusion is supported by the legislative history of Pub. L.
87-797. As indicated above, Congress intended to provide the Agency
with authority to establish minor disciplinary penalties and procedures
to enforce those penalties. The procedures provided were designed to be
both fair to employees and expeditious. To achieve the latter purpose,
the appeals process was to be completed entirely within the Agency, so
as to preclude resort to civil service appeals procedures. See note 6,
supra. In the same manner as those civil service appeals procedures,
the grievance and arbitration process for minor disciplinary penalties
provided by the Union's proposal would conflict with the express
congressional intent to preclude prolonged review of minor disciplinary
action and to confine such review as is available entirely within the
Agency. That is, the grievance and arbitration process established by
the proposal at issue herein, by involving a third party outside the
Agency, i.e., the arbitrator, as a substitute for the Secretary of the
Interior and subjecting thereby the decision of that third party to
further review, i.e., appeal to the Authority from an arbitration award,
would undercut the purposes Congress sought to achieve by providing the
Park Police with a system of limited appeals procedures for enforcing
minor disciplinary actions. Thus, the proposal conflicts with Pub. L.
87-797.
The Union contends, however, that even if the proposal conflicts with
Pub. L. 87-797, Section 7121 of the Statute has, by implication,
repealed that law. In particular, the Union argues, the comprehensive
purpose of the Civil Service Reform Act of 1978, of which the Statute
was a part, was to change or modify existing law governing the
conditions of employment of Federal employees. Thus, enactment of the
provisions pertaining to grievance procedures removed any exclusivity
which may have attached to the appeals procedures under Pub. L. 87-797.
In this regard, the Authority has consistently held that section 7121
provides for broad scope grievance procedures. That is, in the
Authority's view, Congress intended that the grievance procedures
required by the Statute shall extend to all matters which might lawfully
be covered unless the parties agree through the collective bargaining
process to narrower coverage. Interpretation and Guidance, 2 FLRA 273,
277 (1979). The Authority has also held that where an appeals procedure
regarding a particular subject matter has been established by law as the
exclusive procedure for that subject matter, issues covered by such a
procedure are not within the scope of the negotiated grievance
procedure. Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center, Minneapolis, Minnesota and American
Federation of Government Employees, Local 3669, AFL-CIO, 15 FLRA No. 176
(1984); Association of Civilian Technicians, Pennsylvania State Council
and Pennsylvania Army and Air National Guard, 14 FLRA 38, 43-44 (1984).
Contrary to the Union, therefore, section 7121 does not override an
appeals procedure established by law as the exclusive procedure for a
subject matter which otherwise would be within the scope of the
negotiated grievance procedure.
Moreover, as to the Union's interpretation of the purposes of the
Civil Service Reform Act of 1978, such a general statement of an intent
to change existing law is not sufficient to support a finding of a
repeal by implication. This must particularly be the case when the
terms of the law claimed to be repealed provides that it takes effect
"notwithstanding . . . any other law," as does the portion Pub. L.
87-797 at issue herein. In such circumstances, a more specific
indication of a legislative intent to repeal the conflicting law is
required. See, e.g., New Jersey Air National Guard v. Federal Labor
Relations Authority, 677 F.2d 276, 283 (3rd Cir. 1982), reversing
American Federation of Government Employees, AFL-CIO, Local 3486 and New
Jersey National Guard, 177th Fighter Interceptor Group, Pomona, New
Jersey, 5 FLRA 209 (1981). Even when conflicting statutes deal with the
same subject matter, as is the case herein, the more general provision
will not be found to have superseded a provision treating that matter in
a specific and well-defined manner unless that general provision
otherwise would have no effect. Radzanower v. Touche Ross & Co., 426
U.S. 148, 153, 96 S.Ct. 1989, 1992 (1976). Clearly, this result would
give effect to the exclusivity of the appeals procedures for minor
disciplinary actions established under Pub. L. 87-797, while at the same
time preserving the applicability of section 7121 of the Statute as to
other matters pertaining to the conditions of employment of Park Police
employees. /8/
This result is similar to the conclusion uniformly reached by the
courts which have considered the analogous question of the negotiability
of grievance procedures covering adverse actions involving National
Guard technicians. Under the National Guard Technicians Act of 1968, 32
U.S.C. 709, adverse actions must be appealed to the adjutant general of
the state involved, from whose decision there can be no further appeal.
32 U.S.C. 709(e)(5). Based on the language of the Technicians Act /9/
and its legislative history, /10/ the courts have held that proposals
which would include adverse actions against technicians within the scope
of the negotiated grievance procedure under the Statute conflict with
the provision of the Technicians Act which prohibits appeals beyond the
adjutant general. As to the resolution of the conflict between the
Statute and the Technicians Act, the courts, taking into account section
7121(e)(1) of the Statute and the legislative history thereof, have
nevertheless ruled that the Technicians Act takes precedence over the
Statute. Thus, the courts have concluded, the appeals procedures
established by the Technicians Act, which terminate with the adjutant
general, constitute an exception to the negotiated grievance procedures
mandated by the Statute. New Jersey Air National Guard v. Federal Labor
Relations Authority, 677 F.2d 276 (3rd Cir. 1982), reversing American
Federation of Government Employees, AFL-CIO, Local 3486 and New Jersey
Air National Guard, 177th Fighter Interceptor Group, Pomona, New Jersey,
5 FLRA 209 (1981); California National Guard v. Federal Labor Relations
Authority, 697 F.2d 874 (9th Cir. 1983), reversing National Association
of Government Employees, Local R12-132 and California National Guard, 5
FLRA 201 (1981); State of Nebraska, Military Department, Office of the
Adjutant General v. Federal Labor Relations Authority, 705 F.2d 945 (8th
Cir. 1983), reversing American Federation of Government Employees,
AFL-CIO, Local 2953 and State of Nebraska, Military Department, Office
of the Adjutant General, Lincoln, Nebraska, 7 FLRA 712 (1982); Indiana
Air National Guard, Hulman Field, Terre Haute, Indiana v. Federal Labor
Relations Authority, 712 F.2d 1187 (7th Cir. 1983), reversing American
Federation of Government Employees, Local 3098 and Indiana Air National
Guard, Hulman Field, Terre Haute, Indiana, 7 FLRA 750 (1982). Cf.
Veterans Administration Medical Center, Minneapolis v. Federal Labor
Relations Authority, 705 F.2d 953 (8th Cir. 1983), reversing American
Federation of Government Employees, Local 3669, AFL-CIO and Veterans
Administration Medical Center, Minneapolis, Minnesota, 4 FLRA 391 (1980)
(legislation enacted after Statute precludes negotiated grievance
procedure which would have allowed binding arbitration of matters
pertaining to employment of Department of Medicine and Surgery employees
under 38 U.S.C. 4110). Thus, in considering the effect of other
provisions of law upon section 7121 of the Statute, which provisions of
law, in providing for the finality of the decision of the adjutant
general on appeal, are directly analogous to Pub. L. 87-797 at issue
herein, the courts have given precedence to that law over the Statute.
Because of the close similarity of the instant case to those cases, the
Authority finds the reasoning of the courts persuasive and supportive of
the disposition reached herein.
Therefore, for the foregoing reasons, the Authority finds that the
Union proposal, by providing Park Police employees the option of
invoking the negotiated grievance procedure to contest the imposition of
minor disciplinary penalties, which is a matter within the exclusive
authority of the Secretary of the Interior, is inconsistent with Pub. L.
87-797 and, pursuant to section 7117(a)(1) of the Statute, is outside
the Agency's duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as to the
Union's proposal be, and it hereby is, dismissed. Issued, Washington,
D.C., June 6, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union requested a hearing on this matter. The Union's
request is hereby denied. In the opinion of the Authority, the
positions of the parties are adequately reflected in the record.
/2/ Section 7117(a)(1) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/3/ As relevant herein, Pub. L. No. 87-797, Sec. 2(b) provides:
(b) The findings and sentence of a trial board with respect to
fines and suspensions within the limits authorized by this Act
shall be final and conclusive unless notice of an appeal therefrom
in writing is given within ten days to the Secretary of the
Interior. If such notice is given, the accused may present his
appeal to the Secretary in writing. The Secretary may grant or
request an oral presentation of such appeal. The Secretary is
authorized, but is not required, in his review of the evidence and
findings of a trial board to receive new evidence, either oral,
written or documentary: Provided, That if any new evidence is
received, the accused shall be accorded the right of such
submission, and he is authorized to confirm or modify the findings
and sentence of a trial board, to dismiss the charges, or to
remand the case to the trial board for such further proceedings as
he may deem necessary, but no such modification shall increase the
severity of the sentence of the trial board. Notwithstanding the
provisions of this or any other law, the decision of the Secretary
on appeal with respect to fines and suspensions within the limits
authorized by this Act shall be final and conclusive. Any other
decision of the Secretary shall be subject to such appeal, if any,
as may otherwise by authorized by law.
/4/ It is noted that Pub. L. 87-797 pertains, as relevant herein, to
suspensions of 7 days or less. Thus, the proposal is in dispute only
insofar as it concerns suspensions of 1 to 7 days. As to suspensions of
8 to 14 days, the parties do not argue, nor does it appear, that such
matters would not be subject to the negotiated grievance procedure.
/5/ H.R. REP. NO. 1490, accompanying H.R. 8567, 87th Cong., 2nd Sess.
(1962) at 3 states as follows:
PURPOSE
The purposes of H.R. 8567 are to define the punishments for
minor breaches of discipline which may be imposed on members of
the U.S. Park Police by summary procedure and trial boards and to
provide for the setting up of such trial boards by the Secretary
of the Interior.
* * * *
DISCUSSION
The U.S. Park Police, a body of about 225 men, are responsible
for maintaining law and order in the 783 units that make up the
National Capital Parks system. Most of these units are in the
District of Columbia, but others are in the nearby parts of
Maryland and Virginia.
In any police force, it is important to the commander that he
have available quick and effective means of enforcing discipline
and it is important to the men under his command that they have
protection against erratic and unfair treatment. Existing law
provides neither of these assurances for the U.S. Park Police.
Disciplinary measures available to its chief, other than
reprimands and suspensions without pay, are limited to those
provided by the civil service laws, the procedure under which is
ill suited to good police force administration.
See also the following comments of Congressman Rutherford who introduced
the legislation in the House:
Mr. RUTHERFORD. Mr. Speaker, the purpose of this bill is to
furnish the Secretary of the Interior with a means for handling
minor disciplinary problems in the U.S. Park Police comparable to
that which exists for other police forces.
All of us realize, I think, that a police chief who does not
have the means with which to enforce, quickly and fairly, the
rules and regulations applicable to his force is in a pretty
helpless condition. That is the situation today with the U.S.
Park Police-- a 225-man body which is in charge of the 783 units
which make up the National Capital Parks System here in the
District of Columbia and in adjacent parts of Maryland and
Virginia. Good as it may be for other types of cases, the
disciplinary procedure which the civil service laws sets up is too
slow-moving for a police force. In addition, in the Washington
atmosphere, it lends itself too readily to abusive delays.
/6/ The executive communication from the Department of the Interior
which accompanied the proposed legislation, substantially enacted and
signed into law as Pub. L. 87-797, stated as follows:
The authority to impose small fines and short suspensions,
without time-consuming appeals beyond the Secretary, is important
to the efficient administration of the police force. The U.S. Park
Police force is a quasi-military organization, and the most common
disciplinary action taken for minor violations is a fine
equivalent to 1 or 2 days' pay. Such action should be handled
within the police force by personnel who are familiar with the
peculiar needs of a police organization, subject to one appeal
outside that organization to the Secretary. Further appeals to
the Civil Service Commission on the basis of a contention that a
fine is a reduction in pay could create serious morale problems
within the force, involve long delays, and cause unnecessary
expense.
H.R. REP. NO. 1490, 87th Cong., 2nd Sess. (1962) at 5.
See also the Comments of the Department of the Interior on the
committee draft of H.R. 8567, H.R. REP. NO. 1490, at 8:
We believe that summary proceedings for minor infractions of
the rules are very important to the efficient administration of
the police force. As we pointed out in our executive
communication, the most common disciplinary action taken for minor
violations is a fine equivalent to 1 or 2 days' pay. Such action
should be handled within the police force by personnel who are
familiar with the peculiar needs of a police organization, subject
to one appeal outside that organization to the Secretary. The use
of trial board proceedings for these minor violations would be
more cumbersome, time-consuming, and less efficient.
While the committee draft did not provide for such summary
proceedings, the bill as enacted and signed into law did so provide.
Pub. L. 87-797, Sec. 1(b).
/7/ Section 7122(a) of the Statute provides:
Sec. 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any arbitrator's award pursuant
to the arbitration (other than an award relating to a matter
described in section 7121(f) of this title). If upon review the
Authority finds that the award is deficient--
(1) because it is contrary to any law, rule or regulation; or
(2) on other grounds similar to those applied by Federal courts
in private sector labor-management relations;
the Authority may take such action and make such
recommendations concerning the award as it considers necessary,
consistent with applicable laws, rules, or regulations.
/8/ Generally speaking, where there are two statutory provisions
pertaining to the same subject matter, it is a rule of statutory
construction that effect be given to both provisions, if possible. See
New Jersey National Guard v. Federal Labor Relations Authority, 677 F.2d
276, 282 (3rd Cir. 1982), citing Morton v. Moncari, 417 U.S. 535, 551,
94 S.Ct. 2474, 2483 (1974).
/9/ In particular, 32 U.S.C. 709(e)(5) provides that
"(n)otwithstanding any other law . . . a right of appeal . . . shall not
extend beyond the adjutant general of the jurisdiction concerned(.)"
Compare the similar terms of Pub. L. 87-797, Sec. 2(b), cited above at
note 3.
/10/ In this regard, the courts, noting the dual federal/state status
of National Guard technicians, have emphasized the congressional intent,
in 32 U.S.C. 709(e)(5) to preserve state authority to control technician
employment. See, e.g., New Jersey Air National Guard v. Federal Labor
Relations Authority, 677 F.2d 276, 283-85 (3rd Cir. 1982). Compare
statements in the legislative history of Pub. L. 87-797 which indicate a
congressional intent, in creating a limited appeal procedure for minor
Park Police disciplinary actions, to enhance management's control of the
police force. See notes 5 and 6, supra.