[ v21 p244 ]
21:0244(34)NG
The decision of the Authority follows:
21 FLRA No. 34
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 214
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS AIR FORCE
LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Agency
Case No. 0-NG-759
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 two Union proposals. /1/
II. Union Proposal 1
All AFLC employees may be held pecuniarily liable for the loss,
damage, or destruction of Air Force property when it results from
gross negligence, willful misconduct, or deliberate unauthorized
use. If doubt exists, the individual is not held liable. (Only
thy underscored language is in dispute.)
A. Positions of the Parties
The Agency contends that Union Proposal 1 violates its right to
determine its internal security practices under section 7106(a)(1) of
the Statute. The Agency also argues that the proposal is inconsistent
with its right to decide the methods and means it will use to carry out
its internal security policy under section 7106(b)(1).
The Union argues that the proposal does not violate management's
rights, but is a procedure governing the exercise of those rights under
section 7106(b)(2) of the Statute.
B. Analysis
The Union's proposal would establish the standard to be used in
determining whether an employee will be required to pay, that is, be
held "pecuniarily liable," for the loss, damage, or destruction of Air
Force property. The Union is proposing that an employee be required to
pay only when the loss, damage, or destruction of property resulted form
the employee's "gross" negligence. The Agency has adopted a regulation
providing that the employee will be liable where the loss results from
any negligence.
In National Federation of Federal Employees, Local 29 and Department
of the Army, Kansas City district, U.S. Army Corps of Engineers, Kansas
city, Missouri, 21 FLRA NO. 32 (1986), the Authority considered a
proposal which would have required an employee to pay no more than
$150.00 when it was determined that the employee had caused the loss,
damage, or destruction of Government property. The Authority found that
limiting the amount an employee could be required to pay interfered with
management's right to determine its internal security practices. We
reached this conclusion because we found that the agency's policy
concerning the amount an employee could be required to pay is a part of
management's plan to eliminate or minimize risks of loss of or damage to
Government property by making clear to employees the consequences of
their actions.
For the reasons stated in U.S. Army Corps of Engineers, we find that
the proposal in this case likewise impinges on management's plan to
prevent damage to or loss of Agency property. The proposal, therefore,
directly interferes with management's right to determine its internal
security practices. 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).
We find that the proposal concerns the establishment of the Agency's
internal security practices rather than the methods and means of
carrying out that internal security policy. Therefore, the Agency's
contention as to section 7106(b)(1) must be rejected.
C. Conclusion
The proposal directly interferes with management's right to determine
its internal security practices under section 7106(a)(1), and it it
outside the Agency's duty to bargain.
III. Union Proposal 2
If a decision is made to hold a bargaining unit employee liable
for the loss, damage, or destruction of Government property and/or
take disciplinary action for same, that decision(s) will be stayed
until an arbitrator issues an award should it be grieved.
A. Positions of the Parties
The Agency contends that Union Proposal 2 is inconsistent with 10
U.S.C. Section 9835, /2/ which provides that the decision of the
Secretary of the Air Force with respect to an assessment of pecuniary
liability shall be final. The Agency also argues that the proposal
violates its rights under section 7106(a)(2)(A) to take disciplinary
action against employees, its right under section 7106(a)(1) to
determine its internal security practices, and its rights under section
7106(b)(1) to determine the methods and means of performing work.
Finally, the Agency contends that the proposal conflicts with Article 5
of the parties' Master Agreement.
The Union disputes the Agency's arguments, essentially claiming that
the proposal concerns matters within the scope of the grievance
procedures and that the proposal is a negotiable procedure under section
7106(b)(2).
B. Analysis
1. Inconsistent with Law
Union Proposal 2 provides that action against an employee because of
loss, damage, or destruction of Government property will be stayed until
an arbitrator issues an award in the case. Because 10 U.S.C. Section
9835 gives the Secretary of the Air Force, or his designee, final
authority to decide issues of employee liability, however, the Agency
claims that an arbitrator has no authority to review the Agency's
action.
In International Brotherhood of Electrical Workers and United States
Army Support Command, Hawaii, 14 FLRA 680 (1984), the Authority rules
that 10 U.S.C. Section 4835 did not preclude an arbitrator from ruling
on an overturning an assessment of pecuniary liability against an
employee. The law relied upon in this case, 10 U.S.C. Section 9835, is
essentially the same as the law involved in the Army Support Command
decision. For the following reasons, we find that 10 U.S.C. Section
9835 does not prevent an arbitrator from reviewing the application of
management's plan to prevent loss or damage to Agency property, ie.,
particular assessments of pecuniary liability against an individual
employee.
Collection bargaining agreements negotiated under 7121 of the Statute
must contain grievance procedures which are exclusive for resolving all
grievances which come within their coverage. /3/ That is, the
negotiated grievance procedures may be invoked to settle disputes within
its coverage despite the existence of internal agency appeals procedures
or statutory appeals procedures which also cover the matter at issue.
Specifically, as to internal agency procedures, Congress intended that
the negotiated grievance procedure replace internal agency grievance
procedures. /4/ As to statutory procedures, section 7121(e)(1)
demonstrates that Congress was aware of other statutory appeals
procedures when it provided in the procedures. It is clear that
Congress intended the negotiated procedures to be an alternative to
those other statutory procedures. /5/ Unless it can be shown that the
Agency's procedures for determining pecuniary liability are intended to
be the exclusive procedures for resolving that issue, /6/ such matters
are within the scope of the negotiated procedures.
The courts and the Authority have determined that Federal law outside
the Statute can limit the scope of the negotiated grievance procedure.
/7/ However, the fact that 10 U.S.C. 9835 provides that the decision of
the Secretary of the Air Force as to pecuniary liability is "final" is
not sufficient to demonstrate that the Air Force procedures are
exclusive so as to overcome section 7121 of the Statute. With respect
to 38 U.S.C. 4110, which provided for the decision of the Administrator
of the Veterans Administration as to certain matters to be final, the
Eighth Circuit Court of Appeals, in Veterans Administration Medical
Center, supra, note 7, stated as follows:
Simply declaring the decision of the Administrator "final" is
insufficient to produce conflict with the Civil Service Reform
Act, since Congress obviously contemplated other statutory
appellate procedures, which had to end somewhere, when it created
alternative grievance and arbitration procedures available at the
employee's option in the Civil Service Reform Act, 5 U.S.C.
7121(e)(1)(Supp. IV 1980). Any other interpretation would render
meaningless section 7121(e)(1) of the civil service reform
legislation, which presupposed some nonexclusive statutory
appellate procedures that could coexist with the alternative
grievance and arbitration procedures made available under the
Civil Service Reform Act.
Veterans Administration Medical Center at 956.
In those cases where the courts and the Authority have found that
outside law limits the scope of the negotiated procedure there have been
clear specific indications that the statutory procedures were intended
to be exclusive. For example, in each instance, statutory provisions
covering those procedures provided that they should take effect
"notwithstanding" any other law. New Jersey Air National Guard, note 7,
supra, at 283; Veterans Administration Medical Center, Minneapolis,
note 7, supra, at 958; U.S. Park Police, note 7, supra, at 3 of slip
decision. In this case, 10 U.S.C. 9835 does not provide that the
decisions of the Secretary of the Air Force are final notwithstanding
any other law.
Furthermore, the legislative history of those procedures indicated
that they were intended as the exclusive procedures for the matters
covered. New Jersey Air National Guard at 283-84; Veterans
Administration Medical Center, Minneapolis at 956-57.S. Park Police at
3-5 of slip decision. The legislative history of 10 U.S.C. 9835, and of
10 U.S.C. 4835 pertaining to the Army on which 9835 was modelled,
indicates that the purpose of these provisions was primarily a matter of
administrative convenience. These provisions were intended to
"decentralize" final authority regarding accountability for Government
property and to make the system for determining responsibility for loss
or damage to that property more flexible. The objective was to expedite
and facilitate settlement of such matters. /8/ There is no indication
that Congress intended to make these decisions unreviewable. See, e.g.,
Abel v. United States, 423 F.2d 339, 344 (Ct.Cl. 1970), wherein the
court held that 10 U.S.C. 9835 refers to finality within the agency and
does not preclude judicial review.
As the Agency notes, the Comptroller General has held that 10 U.S.C.
9835 prevents him from reviewing determinations by the Air Force as to
pecuniary liability. /9/ That holding represents the determination of
the Comptroller General as to the limits of his own jurisdiction. It
does not require us to conclude that 10 U.S.C. 9835 limits the authority
of an arbitrator to review such determinations.
In sum, 10 U.S.C. 9835 establishes the final action authority in the
Air Force for determining pecuniary liability. It does not prevent
outside authorities from reviewing those determinations. Under the
Statute, the negotiated grievance procedure, including binding
arbitration, would be the exclusive procedure for resolving disputes as
to pecuniary liability.
2. Management Rights
The Union's proposal would delay disciplinary action, or a collection
action in the case of an assessment of pecuniary liability, until a
final resolution of an employee's grievance. Contrary to the Agency's
arguments, the proposal's delay would not amount to interference with
management's exercise of its rights. Rather, the Authority has
consistently held that proposals to stay final agency action pending the
outcome of the grievance procedure are negotiable procedures under
section 7106(b)(2) of the Statute because they do not prevent management
from acting at all with respect to its reserved rights. American
Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2
FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659
F. 2d 1140 (D.C. Cir. 1981).
3. Master Agreement
The Authority has consistently held that we will only decide in a
negotiability appeal issues which are before us under section
7105(a)(2)(D) and (E) of the Statute. If the parties are in dispute as
to whether this proposal conflicts with the terms of their Master
Agreement, they may resolve that issue under the procedures provided by
that Agreement. See, e.g., Congressional Research Employees Association
and Library of Congress, 18 FLRA No. 5 (1985).
C. Conclusion
Union Proposal 2 is not inconsistent with 10 U.S.C. 9835. It is,
instead, a negotiable procedure under section 7106(b)(2) which would not
prevent the Agency from acting at all pursuant to its rights under
section 7106(a)(1), section 7106(a)(2)(A), or section 7106(b)(1) of the
Statute.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's appeal as to Union Proposal
1 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the
Agency shall upon request, or as otherwise agreed to by the parties,
bargain on Union Proposal 2. /10/
Issued, Washington, D.C., Apri1 8, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union's appeal originally involved ten proposals. In its
Reply to the Agency's Statement of Position, the Union requested that
eight proposals be withdrawn from its appeal. We grant the Union's
request and those proposals will not be considered in this case.
/2/ 10 U.S.S. 9835 provides:
9835. Reports of survey
(a) Under such regulations as the Secretary of the Air Force
may prescribe, any officer of the Air Force designated by him may
act upon reports of surveys and vouchers pertaining to the loss,
spoilage, unserviceability, unsuitability, or destruction of or
damage to property of the United States under the control of the
Department of the Air Force.
(b) Action taken under subsection (a) is final, except that
action holding a person pecuniarily liable for loss, spoilage,
destruction, or damage is not final until approved by the
Secretary or an officer of the Air Force designated by him.
/3/ The term "grievance" is defined in section 7103(a)(9)(C) to
include any complaint concerning an alleged violation or
misinterpretation of a law or regulation affecting conditions of
employment. Applicable law and Agency regulation provide that employees
may be required to pay for any loss to or damage of Government property
which results from their negligence. Any complaint by an employee about
an action taken against him or her under that law and regulation would
be a "grievance" and would be covered by the negotiated grievance
procedure, unless excluded by law or by the parties.
/4/ See, for example, H.R. REP. No. 95-1717, (95th Cong., 2d Sess.
157 (1978); S. REP. No. 95-969, 95th Cong., 2d Sess. 110 (1978).
/5/ See H.R. REP. No. 95-1403, 95th Cong., 2d Sess. 56 (1978); S.
REP. No. 95-969, 95th Cong., 2d Sess. 110 (1978).
/6/ Pursuant to 10 U.S.C. 9831 et seq. the Air Force has established
by regulation its own internal appeal system covering these matters.
See Air Force REgulation 177-111 (December 21, 1978), Paragraph 31109A
ff. See also DoD 7200.10-M, Department of Defense Accounting and
Reporting of Government Property Lost, Damaged, or Destroyed.
/7/ See, e.g., 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); Association of Civilian Technicians, Pennsylvania
State Council and Pennsylvania Army and Air National Guard, State
Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984)
(wherein the Authority adopted the rationale of the court in New Jersey
Air National Guard); Veterans Administration Medical Center,
Minneapolis, Minnesota 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); Veterans
Administration, Washington, D.C. and Veterans Administration Medical
Center, Minneapolis, Minnesota and American Federation of Government
Employees, Local 3669, AFL-CIO, 15 FLRA 948 (1984) (wherein the
Authority adopted the rationale of the court in VA Medical Center,
Minneapolis); Police Association of the District of Columbia and
Department of the Interior, National Park Service, U.S. Park Police, 18
FLRA No. 46 (1985).
/8/ As to 10 U.S.C. 4835, which was enacted first, see H.R. Rep. No.
1224, 77th Cong., 1st Sess. 1 (1941); S. REP. No. 602, 77th Cong., 1st
Sess. 1-2 (1941). As to 10 U.S.C. 9835, see S. REP. No. 836, 82nd
Cong., 1st Sess. 1-2 (1951).
/9/ See Comptroller General Decision No. B-192609 (September 18,
1978); Comptroller General Decision No. B-135297 (March 28, 1958); 43
Comp.Gen. 162, 163 (1963).
/10/ In finding Union Proposal 2 to be negotiable, the Authority
expresses no opinion as to its merits.