[ v21 p233 ]
21:0233(32)NG
The decision of the Authority follows:
21 FLRA No. 32
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
DEPARTMENT OF THE ARMY,
KANSAS CITY DISTRICT,
U.S. ARMY CORPS OF ENGINEERS,
KANSAS CITY, MISSOURI
Agency
Case No. 0-NG-731
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of three
Union proposals.
II. Union Proposal 1
The Employer recognizes that all employees have a statutorily
created right to their pay, retirement fund and annuities derived
therefrom. The Employer further recognizes that
charges/allegations of pecuniary liability shall not be construed
to be indebtedness or appears to the United States until the
affected employee has had the opportunity to fully exercise
his/her rights of due process; wherein due process shall provide
equal protection to all employees and shall require a hearing
before an unbiased, unprejudiced and impartial tribunal, free from
any command pressure or influence. All claims by the Government
for pecuniary liability shall be capped at a maximum of $150.00.
Only the underlined portion is in dispute.)
A. Positions of the Parties
Union Proposal 1 would limit an employee's liability for the loss,
damage to or destruction of government property to $150.00, whereas,
under the Agency's existing regulations, an employee's liability is now
limited to an employee's basic monthly pay. The Agency has refused to
negotiate over the proposal contending that the proposal is inconsistent
with the Federal Claims Collection Act of 1966 ("Claims Act"), Pub.L.
No. 89-508, 80 Stat. 309 (1966) and violates its management right to
determine its internal security practices pursuant to section 7106(a)(1)
of the Statute.
The Union disputes the Agency's contentions.
B. Analysis
1. Management Rights
In agreement with the Agency, the Authority finds that the proposal
violates the Agency's right to establish its internal security practices
pursuant to section 7106(a)(1) of the Statute. An agency's right to
determine its internal security practices includes those policies and
actions which are part of the agency's plan to secure or safeguard its
physical property against internal or external risks, to prevent
improper or unauthorized disclosure of information, or to prevent the
disruption of the agency's activities. See American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 14 FLRA 6 (1984) (Union Proposal 2),
appeal docketed sub nom. Federal Labor Relations Authority v. Office of
Personnel Management, No. 84-1325 (D.C. Cir. July 18, 1984). The
Agency's plan as set forth in its regulation provides that an employee's
pecuniary liability will be one month's pay or the amount of the loss to
the Government, whichever is less. The Agency contends that this
regulation acts as a deterrent and encourages employees to exercise due
care when dealing with government property. Hence, it constitutes a
management plan which is intended to eliminate or minimize risks to
government property by making clear the consequences of property
destruction, loss or damage, and is within the Agency's right to
determine its internal security practices. /1/
Even if, as the Union argues, the Agency's plan is designed primarily
as a means of recouping government loss, in the Authority's view the
Agency's statutory authority includes determining that the plan has,
also, the effect of minimizing the risk of the loss occurring in the
first place. Similarly, the Union's argument that the Agency's plan is
not an effective deterrent is beside the point. It is not appropriate
for the Authority to adjudge the relative merits of the Agency's
determination to adopt one from among various possible internal security
practices, where the Statute vests the Agency with authority to make
that choice. In this regard, the Union's contention that its proposal
limiting liability to $150.00 is merely a procedural proposal under
section 7106(b)(2) of the Statute is not persuasive. The proposal
directly impinges on management's right to establish its internal
security practices.
2. Inconsistent with Federal Law
The Claims Act specifically states that the Act does not diminish the
existing authority of a head of an agency to litigate, settle,
compromise or close claims. /2/ Pursuant to 10 U.S.C. 4831, et seq.,
the Secretary of the Army was vested with the existing authority to
compromise, settle or close claims when the Claims Act was enacted. /3/
There is no provision in 10 U.S.C. 4831 which limits the Secretary's
right to settle, compromise or close claims in fulfilling his
responsibilities under the Act. We find that insofar as the Secretary
has unrestricted authority to close, settle and compromise on claims for
destroyed or damaged property, the Union's proposal is not inconsistent
with the Claims Act.
C. Conclusion
Based on the arguments of the parties, the Authority finds that Union
Proposal 1 violates section 7106(a)(1) of the Statute and, thus, is
outside the duty to bargain. We also find that the proposal is not
inconsistent with the Federal Claims Collection Act.
III. Union Proposal 2
When the Employer determines it is necessary to hold an
employee(s) liable for loss, damage, or destruction of property,
the Employer may take appropriate disciplinary action or charge
the employee pecuniarily liable, but not both. Under either
action, the Agency's allegation will only be sustained if the
Agency proves its charge with a preponderance of evidence. Any
disciplinary action taken will be in accordance with applicable
laws and higher authority regulation and the negotiated Agreement.
If the Employer decides to hold the employee pecuniarily liable,
the Employer will provide the employee a hearing before an
arbitrator. (Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the proposal violates management's right to
discipline employees under section 7106(a)(2)(A) and/or management's
right to determine its internal security practices under section
7106(a)(1).
The Union disputes the Agency's contentions, arguing that the
proposal is a procedure.
B. Analysis
This proposal would require the Agency to choose between holding an
employee financially liable or imposing disciplinary action for loss,
damage or destruction of property caused by the employee, but not both.
The proposal therefore expressly would condition management's right to
discipline an employee upon its decision not to hold an employee
financially liable. Pursuant to section 7106(a)(2)(A) of the Statute,
management has the right to take disciplinary action against its
employees. The disputed proposal would interfere with this right by
conditioning the Agency's exercise of this right upon the Agency's
relinquishment of its right to impose financial liability. Contrary to
the Union's contention that this proposal is procedural in nature, the
Authority finds that the proposal instead concerns the substantive
exercise of management's rights. Professional Air Traffic Controllers
Organization and Federal Aviation Administration, 5 FLRA 763 (1981).
See also National Labor Relations Board Union, Local 19 and National
Labor Relations Board, Region 19, 2 FLRA 775 (1980) (proposal
establishing a condition upon management's ability to assign specified
duties to an identified employee is inconsistent with the agency's right
"to assign work").
We also find that the decision to hold an employee financially liable
concerns only the application of the Agency's internal security
practices. It does not affect the determination of what those practices
will be. The proposal would not also directly interfere with
management's right to determine its internal security practices under
section 7106(a)(1).
C. Conclusion
Union Proposal 2 directly interferes with management's right to
discipline employees under section 7106(a)(2)(A) and outside the
Agency's duty to bargain. Because it would infringe on the substance of
the right it is not a negotiable procedure under section 7106(b)(2).
The proposal would not be nonnegotiable under section 7106(a)(1).
IV. Union Proposal 3
In any event, the Employer will apprise the employee(s), in
writing, prior to the Employer's formal investigation, of any
instance requiring a report of survey, of his/her rights. At a
minimum, the Employer will inform the employee(s) of his/her right
to have a representative present during the investigation, the
right to remain silent, and in the event a recommendation is made
to hold the employee liable, the right to review any and all
evidence and statements relative to the report, and the right to
an impartial hearing. The procedures for selecting an arbitrator
shall be similar to those contained in the negotiated Agreement
and all fees and expenses will be borne by the employer. (Only
the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the proposal violates management's rights to
discipline employees under section 7106(a)(2)(A) and to assign work
under section 7106(a)(2)(B).
The Union disputes the Agency's contentions.
B. Analysis
In agreement with the parties, the Authority finds that the issue
raised by Union Proposal 3 is essentially the same as that presented in
International Brotherhood of Electrical Workers, AFL-CIO, Local 1186 and
Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217 (1980),
enforcement denied sub nom. Navy Public Works Center, Pearl Harbor,
Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d 97 (9th
Cir. 1982). See also Tidewater Virginia Federal Employees Metal Trades
Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA No. 73
(1984): In the Tidewater case, the Authority, in agreement with the
1982 decision of the 9th Circuit Court of Appeals in Navy Public Works
Center, Honolulu, Hawaii, found that a proposed contract provision
concerning an employee's right to remain silent during any discussion
with management in which the employee believed disciplinary action may
be taken against his or her was outside the duty to bargain, as the
provision prevented management from acting at all with regard to its
substantive rights under section 7106(a)(2)(A) and (B) of the Statute to
take disciplinary action against employees and to direct employees and
assign work by having employees account for their conduct and work
performance.
C. Conclusion
Based upon our decision in the Tidewater case, we find that Union
Proposal 3 directly interferes with management's rights to direct and
discipline employees under section 7106(a)(2)(A) and to assign work
under section 7106(a)(2)(D).
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., March 31, 1986.
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ See American Federation of Government Employees, AFL-CIO, Local
15 and Department of the Treasury, Internal Revenue Service, North
Atlantic Region, 2 FLRA 875 (1980), in which the Authority found that a
regulation, which directly related to and was part of the agency's plan
to prevent disruption, disclosure or property destruction at its
facilities, concerned the internal security practices of the agency.
/2/ Section 953 of the Federal Claims Collection Act provides as
follows:
953. Existing agency authority to litigate, settle, compromise,
or close claims
Nothing in this chapter shall increase or diminish the existing
authority of the head of agency to litigate claims, or diminish
his existing authority to settle, compromise, or close claims.
/3/ Section 4832 of title 10 of the U.S. Code provides as follows:
4832. Property accountability: regulations
The Secretary of the Army may prescribe regulations for the
accounting for Army property and the fixing of responsibility for
that property.