18:0789(97)NG - NFFE Local 1300 and GSA -- 1985 FLRAdec NG
[ v18 p789 ]
The decision of the Authority follows:
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1300 Union and GENERAL SERVICES ADMINISTRATION Agency Case No. 0-NG-870 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents issues relating to the negotiability of six sections of the following Union proposal. /1/ Union Proposal Inspector General Investigations a) The Parties recognize the Employer's right to conduct investigations into charges against Employees, as well as the Employees' rights to fair and equitable treatment during and after such investigation. Prior to questioning an Employee, he/she will be advised of his/her rights, including the right to union representation as outlined in Article 8, both verbally and in writing. b) Employees will be informed of any investigations concerning themselves, unless the Employer reasonably believes such knowledge would hinder the investigation. If the Employee is informed of the investigation, he/she will be furnished with a projected completion date, not to exceed 60 days from the initiation of the investigation. Upon request, by the Employee or Union representative, regular progress reports (on a weekly basis) will be arranged, as well as meetings to discuss the reports. In the event the targeted completion date cannot be met, the Employee, and Union representative if desired, will be informed of the new target date and reasons for the extension. * * * * d) The Employer will be free to contact anyone who could reasonable be expected to have useful information directly related to the investigation. Prior to contacting the Employee's family members or personal friends and acquaintances, the Employer will obtain the written consent of the Employee. This requirement may be waived, if the Employer reasonably believes that such notification would alter the validity of the information obtained. e) Polygraphic testing will not be conducted without the consent of the Employee and presence of a Union representative, if desired. The Employee will have the right to have present any or all of the following: a family doctor, a clergyman, a psychologist, an attorney, and a Union representative. Any of these individuals who are Federal employees will participate on official time. Costs incurred in providing any of these people will be reimbursed pursuant to subsection (i) below. The Employee will have the right to request that his/her accuser(s) undergo a similar polygraph examination. If the accuser(s) refuses, the refusal will become part of the investigation report. f) The Employee will be permitted to respond to various elements of the complaint. The Employee will not be required to make sworn statements on information not relevant to the care or about which he/she does not have knowledge. g) A formal finding will be issued within ten days of completion of the investigation. If an investigation is dismissed, or the Employee exonerated, all parties to the investigation will be notified in writing. If the formal findings differ from the division director's report, a copy of the division director's report will be furnished to the Employee. h) The Employer will furnish to the Union, on a quarterly basis, sanitized statistics concerning investigations conducted during the previous quarter involving Employees. The statistics will include number of cases opened, number carried over from previous quarter, number of cases resolved, summary of issues in each case, agency, work areas involved, findings in cases resolved, as well as action based on those findings. i) If an Employee is proven innocent, or the case is dropped, the Employee shall be reimbursed for expenses incurred in defending him/herself. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. First of all, the Agency argues generally that it has no duty to bargain over any of the Union's proposals pertaining to investigations by the Office of the Inspector General (OIG) which involve unit employees because the OIG, an independent entity within the Agency, is not a party to the bargaining relationship at the level of exclusive recognition. The Union contends in this regard, citing the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61, 63-4 (1982), that the fact that authority as to otherwise negotiable matters /2/ resides at a level of the Agency apart from the level of exclusive recognition does not provide a basis for finding the disputed proposals outside the duty to bargain. Rather, the Union argues, under Board of Immigration Appeals, the Agency is obligated, pursuant to section 7114(b)(2) of the Statute, to provide representatives at the negotiations who are authorized to bargain on all matters within the scope of negotiations. /3/ However, the circumstances of this case are distinguishable from Board of Immigration Appeals. In that case, authority regarding the subject matter of the proposal, i.e., purchase of a motor vehicle, had been delegated from a higher level in the agency to an organizational entity within the agency other than that which existed at the level of exclusive recognition, although it was within the discretion of the agency to delegate such authority to the level of exclusive recognition. See, for example, 5 U.S.C. 302. Thus, the underlying theory of the decision is that an agency cannot narrow the statutorily defined scope of bargaining by withholding authority which it could, under law, delegate to the level of exclusive recognition. In the instant case, on the other hand, Sec. 3(a) of the Inspector General Act of 1978, Pub. L. 95-452, 92 Stat. 1101, 5 U.S.C.App. 3, provides that the Inspector General shall report to and be under the general supervision of the head of the agency, or the officer next in rank below the head of the agency to the extent such authority is delegated, but shall not report to or be subject to supervision by any other official of the agency. /4/ That is, no authority over the IG can be exercised below the level of the officer next in rank to the agency head: such authority cannot be delegated below that level. Thus, unlike Board of Immigration Appeals, the Agency here is precluded by law from authorizing representatives at the level of exclusive recognition, i.e., a level below the officer next in rank to the Agency head, to exercise any authority over the IG. It must therefore follow that the Agency cannot be obligated under the Statute to provide representatives authorized to negotiate at the level of exclusive recognition on procedures governing the conduct of IG investigations. The proposals in dispute herein are therefore outside the duty to bargain at the level of recognition insofar as the matters at issue are not matters concerning which the Agency can, under law, authorize representatives to negotiate at that level. The Union next contends that despite the limitations on the Agency's authority over the IG, under the Authority's decision in American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477; American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910; Congressional Research Employees Association; and Law Library of Congress United Association of Employees and Library of Congress, Washington, D.C. and American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), affirmed sub nom. Library of Congress v. FLRA, 688 F.2d 1280 (D.C. Cir. 1983), the Agency is nevertheless obligated to bargain with the exclusive representative to the extent it possesses any discretion to affect the operations of the IG, e.g., to recommend that the IG follow the procedures set forth in the Union's proposal. Since, as indicated above, any authority of the Agency head with respect to the IG is not delegable, the most the Union's proposal could accomplish in the circumstances is local management's agreement to request the Agency head to make such a recommendation. However, even if the proposal is construed in this restricted manner, the object sought thereby, i.e., the Agency head's recommendation, is inconsistent with the intent of Sec. 3(a) of the Inspector General Act of 1978. In this regard, the legislative history indicates that Sec. 3(a) is intended to preserve the independence of IG operations and to enable that official to conduct investigations without interference by the managers of the programs which are under scrutiny. The Senate Committee Report accompanying the bill which was enacted by Congress and signed into law by the President stated as follows: /5/ Above all, the Inspector and Auditors General created in this legislation would have the requisite independence to do an effective job. There is a natural tendency for an agency administrator to be protective of the programs that he administers. In some cases, frank recognition of waste, mismanagement or wrongdoing reflects on him personally. Even if he is not personally implicated, revelations of wrongdoing or waste may reflect adversely on his programs and undercut public and congressional support for them. Under these circumstances, it is a fact of life that agency managers and supervisors in the executive branch do not always identify or come forward with evidence of failings in the programs they administer. For that reason, the audit and investigative functions should be assigned to an individual whose independence is clear and whose responsibility runs directly to the agency head and ultimately to the Congress. This legislation accomplishes that, removing the inherent conflict of interest which exists when audit and investigative operations are under the authority of an individual whose programs are being audited. The Inspector and Auditor General would be under the general supervision of the head of the agency or his deputy, but not under the supervision of any other official in the agency. Even the agency head would have no authority to prevent the Inspector and Auditor General from initiating and completing audits and investigations he believes necessary. Hence, insofar as the proposal would seek to have the Agency head utilize his general supervisory authority over the IG to influence the manner in which that official conducts investigations it impermissibly infringes upon the independence of the IG to undertake such investigations. The intent of Congress, as represented by the quote set forth above, is that agency officials respect the freedom of the IG to determine what, when, and how to investigate agency operations and that the IG not be subjected to pressure by any part of the agency. Thus, the independence of the IG under law precludes negotiation on proposals purporting to influence the conduct of IG investigations. In any event, as to the individual sections of the Union's proposal which are disputed herein, the Agency contends that Section (b) is outside the duty to bargain under section 7106(a)(1) of the Statute because it would violate the Agency's right to determine its internal security practices. /6/ Specifically, the Agency argues that by providing for regular progress reports on the conduct of an investigation to be made to an employee who is a subject of the investigation, and to the employee's Union representative, Section (b) would require the OIG to reveal privileged and confidential information to persons who are not authorized to receive it. The Agency cites to American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 362 (1982), in which it was contended that the proposal at issue therein would compromise the confidentiality necessary to insure the integrity of the investigation, contrary to the agency's right, under section 7106(a)(1), to prescribe the policies which it determines are essential to achieve that objective. In the Immigration & Naturalization Service case, the Authority ruled that management's right to determine internal security practices extends to the establishment of rules applicable to internal agency investigations into the conduct of agency operations, i.e., the type of investigations the OIG is charged with making. /7/ Moreover, the Authority has held that rules and policies pertaining to the disclosure of privileged and confidential information constitute internal security practices within the discretion of management to determine under section 7106(a)(1). See National Labor Relations Board Union and General Counsel of the National Labor Relations Board, 5 FLRA 696 (1981) (proposal permitting employees and union officials access to and photocopying of files pertaining to investigation of unfair labor practices held nonnegotiable under section 7106(a)(1)); National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981) (proposal permitting union access to security areas contrary to agency right under 7106(a)(1) to prohibit such access so as to protect against unauthorized disclosure of confidential information stored in those areas); Immigration & Naturalization Service, supra, at 363-64 (proposal permitting union representatives to maintain tapes and transcripts of investigatory interviews which contain confidential information held nonnegotiable under section 7106(a)(1)). In particular, the Authority indicated, in agreement with the agency's claim in Immigration & Naturalization Service, that the purpose of preserving the confidentiality of information concerning an on-going investigation through the adoption of such policies by management is, among other things, to prevent premature disclosure of information which might impede the investigation. Thus, for example, should information concerning an investigation become available to interested parties it could affect the testimony of subsequent witnesses or otherwise limit the availability of relevant evidence. Contrary to the Union's arguments, therefore, as to the negotiability of a proposal providing for access to information regarding internal investigations, it is irrelevant whether the proposal concerns disclosure only to an employee who is a subject of the investigation, or only to the employee and his representative, or to the Union. Similarly, it is irrelevant what information concerning the investigation management is required to disclose. As discussed above, the right to determine the nature and extent of the information concerning an investigation which it will disclose, and to whom it will disclose that information, is reserved to management under the Statute. Consequently, as Section (b) of the Union's proposal would prescribe the conditions under which such information must be disclosed, it directly interferes with management's right to determine the Agency's internal security practice and is outside the duty to bargain under section 7106(a)(1) of the Statute. Section (d) of the Union's proposal concerns the conditions under which the OIG may contact friends and relatives of an employee su0ject to an investigation in order to gather information from them relating to that investigation. In particular, the OIG would be required to notify the employee of such proposed contacts, and procure his consent thereto, unless it reasonably believes that to do so would compromise the validity of the information it seeks. Because the OIG retains this discretion as to whether to notify the employee, the Union argues, Section (d) does not interfere with the Agency's right to determine its internal security practices, i.e., to conduct any given interview. As indicated above, however, section 7106(a)(1) reserves to management the right to establish the rules whereby it will conduct its internal investigations. As such, it protects management's right to determine the conditions under which those investigations, including investigatory interviews, will take place. In the circumstances of the case, that right extends to the determination of the conditions under which an employee who is the subject of an investigation will receive advance notice of an attempt to contact possible witnesses. That is, contrary to the Union's argument, rather than preserving the discretion of the OIG to conduct such interviews, Section (d) would prescribe a policy or rule which would govern the conduct of the investigation. In thus mandating a particular internal security practice, Section (d) directly interferes with management's right under Section 7106(a)(1) to determine those practices and is outside the duty to bargain. As to Section (e) of the proposal, the Agency alleges that by permitting an employee who is a subject of an investigation to refuse a polygraphic test, Section (e) is contrary to its right to determine its internal security practices under section 7106(a)(1) of the Statute. In thus limiting management's use of the polygraph, Section (e) has the same effect as Union Proposal 1 in American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 10 (1984), which prohibited the use of polygraphs. In that case, the Authority relying on its decision in American Federation of Government Employees, AFL-CIO, Local 1898 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982), held that by preventing management from utilizing the investigative techniques which it had adopted the proposal at issue violated management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Similarly, Section (e) at issue herein, by conditioning use of a polygraph on the consent of the employee, would effectively preclude the OIG from using that device to conduct its investigation. /8/ Cf. National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255, 257-60 (1979) (proposal providing for program regarding nameplates to be voluntary was found to be nonnegotiable because it would prevent implementation of the program). Thus, for the reasons set forth in the Office of Personnel Management and Redstone Arsenal decisions, the Authority finds that Section (e) of the Union's proposal directly interferes with management's right under section 7106(a)(1), to determine its internal security practices and is outside the duty to bargain. /9/ Section (f) would preclude the OIG from requiring sworn statements from employees on matters which are not relevant or about which the employee has no knowledge. In thus limiting the use of sworn statements Section (f) has the same effect as Union Proposal 8 in Immigration & Naturalization Service, supra, at 361-62, which provided that no employee would be required to give a statement under oath except as required by law. The Authority held in that case that "the Agency's decision to require oaths to ensure its obtaining truthful and reliable information in conducting investigations . . . is an internal security practice under section 7106(a)(1)" and that by preventing management from administering oaths, except as required by law, the proposal violated management's right to determine such practices. Similarly, Section (f) herein, by prescribing the conditions under which the OIG may require sworn statements, would directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Thus, for the reasons set forth in the Immigration & Naturalization Service decision, Section (f) is outside the duty to bargain. The Agency alleges that Section (g) is outside the duty to bargain because it does not concern the conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. /10/ In particular, the Agency argues that by requiring the OIG to notify all "parties" to an investigation that an employee has been exonerated, or that an investigation has been dismissed, Section (g) would concern management action with respect to persons outside the bargaining unit and not the "conditions of employment" of unit employees. /11/ In this regard, Section (g) has the same effect as Union Proposal VI in National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522, 528-29 (1981). The proposal at issue in that case provided that agency management, when monitoring employee conversations with taxpayers, must notify the taxpayer that the call is subject to monitoring. The Authority determined that the proposal pertained to management action concerning the taxpayer and did not have any direct effect on the employee. Consequently, the Authority determined that the proposal was outside the duty to bargain because it did not directly relate to the conditions of employment of unit employees. Similarly, by requiring the OIG to notify all "parties" to an investigation, Section (g) at issue herein concerns management action with respect to those parties, i.e., providing them with information, rather than the conditions of employment of unit employees. Therefore, for the reasons set forth in the Internal Revenue Service decision, Section (g) herein does not directly relate to the conditions of employment of unit employees and is outside the duty to bargain under the Statute. Section (i) of the Union's proposal would require the Agency to reimburse employees for expenses incurred in defending themselves in connection with an OIG investigation, if those employees are shown to be innocent or charges against them are dropped. In this regard, the Union states that Section (i) is intended to provide for, among other things, reimbursement of attorney fees and legal costs. /12/ The Agency contends that, in the absence of express statutory authority, it is prevented from making such expenditures and, thus, that Section (i) is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with law. /13/ In agreement with the Agency, the Authority finds that the expenditure of funds by a Federal Government agency to reimburse litigation costs of a party prevailing against the Government must be pursuant to a statutory authorization. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Howatt v. United States, 657 F.2d 1204, 1209 (Ct. Cl. 1981); Nibali v. United States, 634 F.2d 494, 496 (Ct. Cl. 1980). However, the Union has not indicated, and the Authority has not discovered, any statutory authority permitting an agency to reimburse attorney fees and legal costs incurred by an employee in connection with an internal agency investigation involving that employee. /14/ Such expenses are the personal responsibility of the employee. Thus, by requiring the Agency to expend funds in the absence of statutory authority, Section (i) is inconsistent with law and outside the duty to bargain under section 7117(a)(1) of the Statute. Accord Matter of Julian C. Patterson, 61 Comp.Gen. 412 (1982); Matter of Manzano and Marston, 55 Comp.Gen. 1418 (1976); 52 Comp.Gen. 859 (1973); Comptroller General Decision No. B-186763 (March 28, 1977). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to Sections (a), (b), (e), (f), (g), (h) and (i) of the Union's proposal be, and it hereby is, dismissed. /15/ Issued, Washington, D.C., June 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Based on the record in this case, it does not appear the Agency has alleged or otherwise disputed the negotiability of Section (c). /2/ The Union claims that its proposals are negotiable under section 7106(b)(2) of the Statute as procedures governing the conduct of Inspector General (IG) investigations. /3/ Section 7114(b)(2) provides: Sec. 7114. Representation rights and duties * * * * (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- * * * * (2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment(.) /4/ Sec. 3(a) of the Inspector General Act of 1978 provides as follows: Sec. 3. Appointment of Inspector General; supervision; removal; political activities; appointment of Assistant Inspector General for Auditing and Assistant Inspector General for Investigations (a) There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation. /5/ S. REP. NO. 95-1071, 95th Cong., 2nd Sess. 7 (1978). See also at 2 of the Report the following statement. The Inspector and Auditor General reports to, and is under the general supervision of the head of the agency. However, the head of the agency may not prohibit, prevent or limit the Inspector and Auditor General from undertaking and completing any audits and investigations which the Inspector and Auditor General deems necessary, or from issuing any subpoenas deemed necessary in the course of such audits and investigations. See generally to the same effect remarks of congressional supporters of the bill at 124 Cong. Rec. S 15870-1; 124 Cong. Rec. H 2949-50. /6/ Section 7106(a)(1) provides, in relevant part, as follows: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (1) to determine the . . . internal security practices of the agency(.) /7/ The Union, citing the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Treasury v. Federal Labor Relations Authority, 707 F.2d 574 (D.C. Cir. 1983), asserts that there is an inconsistency between the Authority's decision as to the proposal cited above in the Immigration & Naturalization Service case and its decision as to a proposal in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 8 FLRA 136 (1982), remanded sub nom. Department of the Treasury, supra. In its Department of the Treasury decision, the Court remanded the proposals at issue therein to the Authority for reconsideration in light of the Authority's Immigration & Naturalization Service decision. During the pendency of the decision on remand before the Authority, the Union withdrew the disputed proposals and the Authority, as to those proposals, vacated its Decision and Order in the case. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, Order Vacating Decision and Order (August 10, 1983). Consequently, it is not necessary to consider further the effect of that decision upon matters at issue herein. /8/ The Union notes that employees have a constitutional right to remain silent during an investigation which involves possible criminal action against them. The Authority has acknowledged this right. National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 986 (1982). However, contrary to the Union, Section (e) is not limited to criminal investigations. /9/ Cf. Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA No. 73 (1984) (provision providing for employees to remain silent when they believe a discussion with management may result in action against them is outside the duty to bargain under section 7106(a)(2)(A) and (B) because it would preclude management from requiring employees to account for work performance and conduct, as well as immunize employees from discipline for refusing to account for such work performance or conduct). /10/ "Conditions of employment" is defined in section 7103(a)(14) of the Statute as follows: Sec. 7103. Definitions; application (a) For the purpose of this chapter-- * * * * (14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters-- (A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any position; or (C) to the extent such matters are specifically provided for by Federal statute(.) /11/ The Union acknowledges that Section (g) concerns matters pertaining to persons outside the bargaining unit: "(T)he effect on non-bargaining unit employees is de minimus (sic), because they are simply receiving written notification." Union Brief at 13-14. /12/ Union Petition for Review at third unnumbered page: "These (expenses) could include everything from copying costs to lawyers' fees." The Union's subsequent disclaimer of an intent to cover such expenses, Union Brief at 14, is not sufficient to alter the result herein, since the plain language of the section clearly would include them. In this regard, the Authority has consistently stated that it will not adopt an interpretation of a proposal which is contrary to the explicit language of that proposal. See, e.g., American Federation of State, County and Municipal Employees, AFL-CIO, Local 2027 and ACTION, Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 2). /13/ Section 7117(a)(1) of the Statute 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 regulations. /14/ Cf. 5 U.S.C. 7701(g) (payment of attorney fees for employee who is prevailing party in case before Merit Systems Protection Board); 5 U.S.C. 504 (award of attorney fees and other expenses to a party prevailing against United States in "adversary adjudication" before Federal agency). /15/ Based upon the result herein, it is unnecessary to consider the Agency's additional contentions as to the nonnegotiability of the Union's proposal.