27:0404(56)NG - NFFE Local 29 and Army, Kansas City District, Army Corps of Engineers, Kansas City, MO -- 1987 FLRAdec NG
[ v27 p404 ]
The decision of the Authority follows:
27 FLRA No. 56 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 21 FLRA No. 32 DECISION ON REMAND I. Statement of the Case This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The question involved is whether two proposals interfere with the management right under section 7106(a)(1) to determine internal security practices. II. The Proposals 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 arrears 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 is in dispute.) 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 ation taken will be in accordance with applicable laws and higher authority regulation and the negotiated Agreement. If the Employer will provide the employee a hearing before an arbitrator. (Only the underlined portion is in dispute). III. Analysis and Conclusions 1. Background In the previous decision in this case, 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. 23 (1986), the Authority held that both proposals were nonnegotiable: the first because it directly interfered with the Agency's right to determine its internal security practices; the second because it directly interfered with the Agency's right to take disciplinary action against employees. The Authority rejected the Agency's argument that the second proposal was nonnegotiable for the additional reason that it also conflicted with management's right to determine its internal security practices. On appeal, the court noted that the Authority's characterization of the Agency's internal security plan as encompassing pecuniary liability was "reasonable enough." National Federation of Federal Employees, Local 29 v. FLRA, No. 86-1308 (D.C. Cir. Mar. 6, 1987). It went on to state however that the application of that finding to the two proposals seemed inconsistent. It remanded the decision to us to resolve the apparent conflict between the findings that Proposal 1 conflicts with the right to determine internal security practices and that Proposal does not. 2. Both Proposals Interfere with the Right to Determine Internal Security Practices On reconsideration, we find that the determinations of when to hold employees pecuniarily liable as well as of the amount of such liability are both directly related to the Agency's adoption of pecuniary liability as an internal security practice. They are substantive determinations as opposed to being merely procedural in nature. The proposals to limit the extent of liability on the one hand, and to foreclose it under certain circumstances on the other, are inconsistent with the Agency's right under the Federal Service Labor-Management Relations Statute to determine the substance of its internal security practices, that is, whether and to what extent to impose pecuniary liability. Additionally, on reconsideration, we find that Proposal 2 interferes with the Agency's right to determine its internal security practices by conditioning the exercise of that right, that is, the imposition of pecuniary liability, on the relinquishment of its right to impose discipline. As noted in our original decision in this case, a proposal which establishes a condition on the exercise of a management right interferes with the exercise of that right.