18:0789(97)NG - NFFE Local 1300 and GSA -- 1985 FLRAdec NG



[ v18 p789 ]
18:0789(97)NG
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 Ci