14:0065(15)NG - NTEU and IRS, San Francisco, CA -- 1984 FLRAdec NG



[ 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