21:0244(34)NG - AFGE, Council 214 and Air Force, HQ AFLC,Wright-Patterson AFB, Ohio -- 1986 FLRAdec NG
[ v21 p244 ]
The decision of the Authority follows:
21 FLRA No. 34 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 214 Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Agency Case No. 0-NG-759 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105 (a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two Union proposals. /1/ II. Union Proposal 1 All AFLC employees may be held pecuniarily liable for the loss, damage, or destruction of Air Force property when it results from gross negligence, willful misconduct, or deliberate unauthorized use. If doubt exists, the individual is not held liable. (Only thy underscored language is in dispute.) A. Positions of the Parties The Agency contends that Union Proposal 1 violates its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency also argues that the proposal is inconsistent with its right to decide the methods and means it will use to carry out its internal security policy under section 7106(b)(1). The Union argues that the proposal does not violate management's rights, but is a procedure governing the exercise of those rights under section 7106(b)(2) of the Statute. B. Analysis The Union's proposal would establish the standard to be used in determining whether an employee will be required to pay, that is, be held "pecuniarily liable," for the loss, damage, or destruction of Air Force property. The Union is proposing that an employee be required to pay only when the loss, damage, or destruction of property resulted form the employee's "gross" negligence. The Agency has adopted a regulation providing that the employee will be liable where the loss results from any negligence. In National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City district, U.S. Army Corps of Engineers, Kansas city, Missouri, 21 FLRA NO. 32 (1986), the Authority considered a proposal which would have required an employee to pay no more than $150.00 when it was determined that the employee had caused the loss, damage, or destruction of Government property. The Authority found that limiting the amount an employee could be required to pay interfered with management's right to determine its internal security practices. We reached this conclusion because we found that the agency's policy concerning the amount an employee could be required to pay is a part of management's plan to eliminate or minimize risks of loss of or damage to Government property by making clear to employees the consequences of their actions. For the reasons stated in U.S. Army Corps of Engineers, we find that the proposal in this case likewise impinges on management's plan to prevent damage to or loss of Agency property. The proposal, therefore, directly interferes with management's right to determine its internal security practices. See American Federation of government Employees, AFL-CIO, Local 15 and Department of the Treasury, Internal Revenue Service, North Atlantic Region, 2 FLRA 875 (1980). We find that the proposal concerns the establishment of the Agency's internal security practices rather than the methods and means of carrying out that internal security policy. Therefore, the Agency's contention as to section 7106(b)(1) must be rejected. C. Conclusion The proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1), and it it outside the Agency's duty to bargain. III. Union Proposal 2 If a decision is made to hold a bargaining unit employee liable for the loss, damage, or destruction of Government property and/or take disciplinary action for same, that decision(s) will be stayed until an arbitrator issues an award should it be grieved. A. Positions of the Parties The Agency contends that Union Proposal 2 is inconsistent with 10 U.S.C. Section 9835, /2/ which provides that the decision of the Secretary of the Air Force with respect to an assessment of pecuniary liability shall be final. The Agency also argues that the proposal violates its rights under section 7106(a)(2)(A) to take disciplinary action against employees, its right under section 7106(a)(1) to determine its internal security practices, and its rights under section 7106(b)(1) to determine the methods and means of performing work. Finally, the Agency contends that the proposal conflicts with Article 5 of the parties' Master Agreement. The Union disputes the Agency's arguments, essentially claiming that the proposal concerns matters within the scope of the grievance procedures and that the proposal is a negotiable procedure under section 7106(b)(2). B. Analysis 1. Inconsistent with Law Union Proposal 2 provides that action against an employee because of loss, damage, or destruction of Government property will be stayed until an arbitrator issues an award in the case. Because 10 U.S.C. Section 9835 gives the Secretary of the Air Force, or his designee, final authority to decide issues of employee liability, however, the Agency claims that an arbitrator has no authority to review the Agency's action. In International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680 (1984), the Authority rules that 10 U.S.C. Section 4835 did not preclude an arbitrator from ruling on an overturning an assessment of pecuniary liability against an employee. The law relied upon in this case, 10 U.S.C. Section 9835, is essentially the same as the law involved in the Army Support Command decision. For the following reasons, we find that 10 U.S.C. Section 9835 does not prevent an arbitrator from reviewing the application of management's plan to prevent loss or damage to Agency property, ie., particular assessments of pecuniary liability against an individual employee. Collection bargaining agreements negotiated under 7121 of the Statute must contain grievance procedures which are exclusive for resolving all grievances which come within their coverage. /3/ That is, the negotiated grievance procedures may be invoked to settle disputes within its coverage despite the existence of internal agency appeals procedures or statutory appeals procedures which also cover the matter at issue. Specifically, as to internal agency procedures, Congress intended that the negotiated grievance procedure replace internal agency grievance procedures. /4/ As to statutory procedures, section 7121(e)(1) demonstrates that Congress was aware of other statutory appeals procedures when it provided in the procedures. It is clear that Congress intended the negotiated procedures to be an alternative to those other statutory procedures. /5/ Unless it can be shown that the Agency's procedures for determining pecuniary liability are intended to be the exclusive procedures for resolving that issue, /6/ such matters are within the scope of the negotiated procedures. The courts and the Authority have determined that Federal law outside the Statute can limit the scope of the negotiated grievance procedure. /7/ However, the fact that 10 U.S.C. 9835 provides that the decision of the Secretary of the Air Force as to pecuniary liability is "final" is not sufficient to demonstrate that the Air Force procedures are exclusive so as to overcome section 7121 of the Statute. With respect to 38 U.S.C. 4110, which provided for the decision of the Administrator of the Veterans Administration as to certain matters to be final, the Eighth Circuit Court of Appeals, in Veterans Administration Medical Center, supra, note 7, stated as follows: Simply declaring the decision of the Administrator "final" is insufficient to produce conflict with the Civil Service Reform Act, since Congress obviously contemplated other statutory appellate procedures, which had to end somewhere, when it created alternative grievance and arbitration procedures available at the employee's option in the Civil Service Reform Act, 5 U.S.C. 7121(e)(1)(Supp. IV 1980). Any other interpretation would render meaningless section 7121(e)(1) of the civil service reform legislation, which presupposed some nonexclusive statutory appellate procedures that could coexist with the alternative grievance and arbitration procedures made available under the Civil Service Reform Act. Veterans Administration Medical Center at 956. In those cases where the courts and the Authority have found that outside law limits the scope of the negotiated procedure there have been clear specific indications that the statutory procedures were intended to be exclusive. For example, in each instance, statutory provisions covering those procedures provided that they should take effect "notwithstanding" any other law. New Jersey Air National Guard, note 7, supra, at 283; Veterans Administration Medical Center, Minneapolis, note 7, supra, at 958; U.S. Park Police, note 7, supra, at 3 of slip decision. In this case, 10 U.S.C. 9835 does not provide that the decisions of the Secretary of the Air Force are final notwithstanding any other law. Furthermore, the legislative history of those procedures indicated that they were intended as the exclusive procedures for the matters covered. New Jersey Air National Guard at 283-84; Veterans Administration Medical Center, Minneapolis at 956-57.S. Park Police at 3-5 of slip decision. The legislative history of 10 U.S.C. 9835, and of 10 U.S.C. 4835 pertaining to the Army on which 9835 was modelled, indicates that the purpose of these provisions was primarily a matter of administrative convenience. These provisions were intended to "decentralize" final authority regarding accountability for Government property and to make the system for determining responsibility for loss or damage to that property more flexible. The objective was to expedite and facilitate settlement of such matters. /8/ There is no indication that Congress intended to make these decisions unreviewable. See, e.g., Abel v. United States, 423 F.2d 339, 344 (Ct.Cl. 1970), wherein the court held that 10 U.S.C. 9835 refers to finality within the agency and does not preclude judicial review. As the Agency notes, the Comptroller General has held that 10 U.S.C. 9835 prevents him from reviewing determinations by the Air Force as to pecuniary liability. /9/ That holding represents the determination of the Comptroller General as to the limits of his own jurisdiction. It does not require us to conclude that 10 U.S.C. 9835 limits the authority of an arbitrator to review such determinations. In sum, 10 U.S.C. 9835 establishes the final action authority in the Air Force for determining pecuniary liability. It does not prevent outside authorities from reviewing those determinations. Under the Statute, the negotiated grievance procedure, including binding arbitration, would be the exclusive procedure for resolving disputes as to pecuniary liability. 2. Management Rights The Union's proposal would delay disciplinary action, or a collection action in the case of an assessment of pecuniary liability, until a final resolution of an employee's grievance. Contrary to the Agency's arguments, the proposal's delay would not amount to interference with management's exercise of its rights. Rather, the Authority has consistently held that proposals to stay final agency action pending the outcome of the grievance procedure are negotiable procedures under section 7106(b)(2) of the Statute because they do not prevent management from acting at all with respect to its reserved rights. American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F. 2d 1140 (D.C. Cir. 1981). 3. Master Agreement The Authority has consistently held that we will only decide in a negotiability appeal issues which are before us under section 7105(a)(2)(D) and (E) of the Statute. If the parties are in dispute as to whether this proposal conflicts with the terms of their Master Agreement, they may resolve that issue under the procedures provided by that Agreement. See, e.g., Congressional Research Employees Association and Library of Congress, 18 FLRA No. 5 (1985). C. Conclusion Union Proposal 2 is not inconsistent with 10 U.S.C. 9835. It is, instead, a negotiable procedure under section 7106(b)(2) which would not prevent the Agency from acting at all pursuant to its rights under section 7106(a)(1), section 7106(a)(2)(A), or section 7106(b)(1) of the Statute. IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's appeal as to Union Proposal 1 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain on Union Proposal 2. /10/ Issued, Washington, D.C., Apri1 8, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's appeal originally involved ten proposals. In its Reply to the Agency's Statement of Position, the Union requested that eight proposals be withdrawn from its appeal. We grant the Union's request and those proposals will not be considered in this case. /2/ 10 U.S.S. 9835 provides: 9835. Reports of survey (a) Under such regulations as the Secretary of the Air Force may prescribe, any officer of the Air Force designated by him may act upon reports of surveys and vouchers pertaining to the loss, spoilage, unserviceability, unsuitability, or destruction of or damage to property of the United States under the control of the Department of the Air Force. (b) Action taken under subsection (a) is final, except that action holding a person pecuniarily liable for loss, spoilage, destruction, or damage is not final until approved by the Secretary or an officer of the Air Force designated by him. /3/ The term "grievance" is defined in section 7103(a)(9)(C) to include any complaint concerning an alleged violation or misinterpretation of a law or regulation affecting conditions of employment. Applicable law and Agency regulation provide that employees may be required to pay for any loss to or damage of Government property which results from their negligence. Any complaint by an employee about an action taken against him or her under that law and regulation would be a "grievance" and would be covered by the negotiated grievance procedure, unless excluded by law or by the parties. /4/ See, for example, H.R. REP. No. 95-1717, (95th Cong., 2d Sess. 157 (1978); S. REP. No. 95-969, 95th Cong., 2d Sess. 110 (1978). /5/ See H.R. REP. No. 95-1403, 95th Cong., 2d Sess. 56 (1978); S. REP. No. 95-969, 95th Cong., 2d Sess. 110 (1978). /6/ Pursuant to 10 U.S.C. 9831 et seq. the Air Force has established by regulation its own internal appeal system covering these matters. See Air Force REgulation 177-111 (December 21, 1978), Paragraph 31109A ff. See also DoD 7200.10-M, Department of Defense Accounting and Reporting of Government Property Lost, Damaged, or Destroyed. /7/ See, e.g., 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); Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) (wherein the Authority adopted the rationale of the court in New Jersey Air National Guard); Veterans Administration Medical Center, Minneapolis, Minnesota 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); Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Minneapolis, Minnesota and American Federation of Government Employees, Local 3669, AFL-CIO, 15 FLRA 948 (1984) (wherein the Authority adopted the rationale of the court in VA Medical Center, Minneapolis); Police Association of the District of Columbia and Department of the Interior, National Park Service, U.S. Park Police, 18 FLRA No. 46 (1985). /8/ As to 10 U.S.C. 4835, which was enacted first, see H.