18:0348(46)NG - Police Association of the District of Columbia and Interior, National Park Service, Park Police -- 1985 FLRAdec NG



[ 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,