21:0233(32)NG - NFFE Local 29 and Army, Kansas City District, Army Corps of Engineers, Kansas City, MO -- 1986 FLRAdec NG



[ v21 p233 ]
21:0233(32)NG
The decision of the Authority follows:


 21 FLRA No. 32
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, 
 KANSAS CITY DISTRICT, 
 U.S. ARMY CORPS OF ENGINEERS, 
 KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. 0-NG-731
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 under section 7105(a)(2)(E) of the Federal Service Labor-Management
 Relations Statute (the Statute) and concerns the negotiability of three
 Union proposals.
 
    II.  Union Proposal 1
 
       The Employer recognizes that all employees have a statutorily
       created right to their pay, retirement fund and annuities derived
       therefrom.  The Employer further recognizes that
       charges/allegations of pecuniary liability shall not be construed
       to be indebtedness or appears to the United States until the
       affected employee has had the opportunity to fully exercise
       his/her rights of due process;  wherein due process shall provide
       equal protection to all employees and shall require a hearing
       before an unbiased, unprejudiced and impartial tribunal, free from
       any command pressure or influence.  All claims by the Government
       for pecuniary liability shall be capped at a maximum of $150.00.
       Only the underlined portion is in dispute.)
 
    A. Positions of the Parties
 
    Union Proposal 1 would limit an employee's liability for the loss,
 damage to or destruction of government property to $150.00, whereas,
 under the Agency's existing regulations, an employee's liability is now
 limited to an employee's basic monthly pay.  The Agency has refused to
 negotiate over the proposal contending that the proposal is inconsistent
 with the Federal Claims Collection Act of 1966 ("Claims Act"), Pub.L.
 No. 89-508, 80 Stat. 309 (1966) and violates its management right to
 determine its internal security practices pursuant to section 7106(a)(1)
 of the Statute.
 
    The Union disputes the Agency's contentions.
 
    B. Analysis
 
    1. Management Rights
 
    In agreement with the Agency, the Authority finds that the proposal
 violates the Agency's right to establish its internal security practices
 pursuant to section 7106(a)(1) of the Statute.  An agency's right to
 determine its internal security practices includes those policies and
 actions which are part of the agency's plan to secure or safeguard its
 physical property against internal or external risks, to prevent
 improper or unauthorized disclosure of information, or to prevent the
 disruption of the agency's activities.  See American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C., 14 FLRA 6 (1984) (Union Proposal 2),
 appeal docketed sub nom.  Federal Labor Relations Authority v. Office of
 Personnel Management, No. 84-1325 (D.C. Cir. July 18, 1984).  The
 Agency's plan as set forth in its regulation provides that an employee's
 pecuniary liability will be one month's pay or the amount of the loss to
 the Government, whichever is less.  The Agency contends that this
 regulation acts as a deterrent and encourages employees to exercise due
 care when dealing with government property.  Hence, it constitutes a
 management plan which is intended to eliminate or minimize risks to
 government property by making clear the consequences of property
 destruction, loss or damage, and is within the Agency's right to
 determine its internal security practices.  /1/
 
    Even if, as the Union argues, the Agency's plan is designed primarily
 as a means of recouping government loss, in the Authority's view the
 Agency's statutory authority includes determining that the plan has,
 also, the effect of minimizing the risk of the loss occurring in the
 first place.  Similarly, the Union's argument that the Agency's plan is
 not an effective deterrent is beside the point.  It is not appropriate
 for the Authority to adjudge the relative merits of the Agency's
 determination to adopt one from among various possible internal security
 practices, where the Statute vests the Agency with authority to make
 that choice.  In this regard, the Union's contention that its proposal
 limiting liability to $150.00 is merely a procedural proposal under
 section 7106(b)(2) of the Statute is not persuasive.  The proposal
 directly impinges on management's right to establish its internal
 security practices.
 
    2. Inconsistent with Federal Law
 
    The Claims Act specifically states that the Act does not diminish the
 existing authority of a head of an agency to litigate, settle,
 compromise or close claims.  /2/ Pursuant to 10 U.S.C. 4831, et seq.,
 the Secretary of the Army was vested with the existing authority to
 compromise, settle or close claims when the Claims Act was enacted.  /3/
 
    There is no provision in 10 U.S.C. 4831 which limits the Secretary's
 right to settle, compromise or close claims in fulfilling his
 responsibilities under the Act.  We find that insofar as the Secretary
 has unrestricted authority to close, settle and compromise on claims for
 destroyed or damaged property, the Union's proposal is not inconsistent
 with the Claims Act.
 
    C. Conclusion
 
    Based on the arguments of the parties, the Authority finds that Union
 Proposal 1 violates section 7106(a)(1) of the Statute and, thus, is
 outside the duty to bargain.  We also find that the proposal is not
 inconsistent with the Federal Claims Collection Act.
 
    III.  Union Proposal 2
 
       When the Employer determines it is necessary to hold an
       employee(s) liable for loss, damage, or destruction of property,
       the Employer may take appropriate disciplinary action or charge
       the employee pecuniarily liable, but not both.  Under either
       action, the Agency's allegation will only be sustained if the
       Agency proves its charge with a preponderance of evidence.  Any
       disciplinary action taken will be in accordance with applicable
       laws and higher authority regulation and the negotiated Agreement.
        If the Employer decides to hold the employee pecuniarily liable,
       the Employer will provide the employee a hearing before an
       arbitrator.  (Only the underlined portion is in dispute.)
 
    A. Positions of the Parties
 
    The Agency contends that the proposal violates management's right to
 discipline employees under section 7106(a)(2)(A) and/or management's
 right to determine its internal security practices under section
 7106(a)(1).
 
    The Union disputes the Agency's contentions, arguing that the
 proposal is a procedure.
 
    B. Analysis
 
    This proposal would require the Agency to choose between holding an
 employee financially liable or imposing disciplinary action for loss,
 damage or destruction of property caused by the employee, but not both.
 The proposal therefore expressly would condition management's right to
 discipline an employee upon its decision not to hold an employee
 financially liable.  Pursuant to section 7106(a)(2)(A) of the Statute,
 management has the right to take disciplinary action against its
 employees.  The disputed proposal would interfere with this right by
 conditioning the Agency's exercise of this right upon the Agency's
 relinquishment of its right to impose financial liability.  Contrary to
 the Union's contention that this proposal is procedural in nature, the
 Authority finds that the proposal instead concerns the substantive
 exercise of management's rights.  Professional Air Traffic Controllers
 Organization and Federal Aviation Administration, 5 FLRA 763 (1981).
 See also National Labor Relations Board Union, Local 19 and National
 Labor Relations Board, Region 19, 2 FLRA 775 (1980) (proposal
 establishing a condition upon management's ability to assign specified
 duties to an identified employee is inconsistent with the agency's right
 "to assign work").
 
    We also find that the decision to hold an employee financially liable
 concerns only the application of the Agency's internal security
 practices.  It does not affect the determination of what those practices
 will be.  The proposal would not also directly interfere with
 management's right to determine its internal security practices under
 section 7106(a)(1).
 
    C. Conclusion
 
    Union Proposal 2 directly interferes with management's right to
 discipline employees under section 7106(a)(2)(A) and outside the
 Agency's duty to bargain.  Because it would infringe on the substance of
 the right it is not a negotiable procedure under section 7106(b)(2).
 The proposal would not be nonnegotiable under section 7106(a)(1).
 
    IV.  Union Proposal 3
 
       In any event, the Employer will apprise the employee(s), in
       writing, prior to the Employer's formal investigation, of any
       instance requiring a report of survey, of his/her rights.  At a
       minimum, the Employer will inform the employee(s) of his/her right
       to have a representative present during the investigation, the
       right to remain silent, and in the event a recommendation is made
       to hold the employee liable, the right to review any and all
       evidence and statements relative to the report, and the right to
       an impartial hearing.  The procedures for selecting an arbitrator
       shall be similar to those contained in the negotiated Agreement
       and all fees and expenses will be borne by the employer.  (Only
       the underlined portion is in dispute.)
 
    A. Positions of the Parties
 
    The Agency contends that the proposal violates management's rights to
 discipline employees under section 7106(a)(2)(A) and to assign work
 under section 7106(a)(2)(B).
 
    The Union disputes the Agency's contentions.
 
    B. Analysis
 
    In agreement with the parties, the Authority finds that the issue
 raised by Union Proposal 3 is essentially the same as that presented in
 International Brotherhood of Electrical Workers, AFL-CIO, Local 1186 and
 Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217 (1980),
 enforcement denied sub nom.  Navy Public Works Center, Pearl Harbor,
 Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d 97 (9th
 Cir. 1982).  See also Tidewater Virginia Federal Employees Metal Trades
 Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA No. 73
 (1984):  In the Tidewater case, the Authority, in agreement with the
 1982 decision of the 9th Circuit Court of Appeals in Navy Public Works
 Center, Honolulu, Hawaii, found that a proposed contract provision
 concerning an employee's right to remain silent during any discussion
 with management in which the employee believed disciplinary action may
 be taken against his or her was outside the duty to bargain, as the
 provision prevented management from acting at all with regard to its
 substantive rights under section 7106(a)(2)(A) and (B) of the Statute to
 take disciplinary action against employees and to direct employees and
 assign work by having employees account for their conduct and work
 performance.
 
    C. Conclusion
 
    Based upon our decision in the Tidewater case, we find that Union
 Proposal 3 directly interferes with management's rights to direct and
 discipline employees under section 7106(a)(2)(A) and to assign work
 under section 7106(a)(2)(D).
 
    V. Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.
 
    Issued, Washington, D.C., March 31, 1986.
                                       (s)---
                                       Jerry L. Calhoun, Chairman
                                       (s)---
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ See American Federation of Government Employees, AFL-CIO, Local
 15 and Department of the Treasury, Internal Revenue Service, North
 Atlantic Re