35:0638(71)NG - - NAGE Local R7-23 and Air Force, Scott AFB, IL - - 1990 FLRAdec NG - - v35 p638



[ v35 p638 ]
35:0638(71)NG
The decision of the Authority follows:


35 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

SCOTT AIR FORCE BASE, ILLINOIS

(Agency)

0-NG-1745

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The proposal in dispute requires the Agency to reimburse unit employees for all expenses, including attorney's fees, court costs, and leave, resulting from civil or criminal actions against unit employees where: (1) those actions arise out of the employees' employment by the Agency and (2) the employee is found to be innocent of or not liable for major charges. The proposal would also give retroactive effect to these requirements.

We find that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it would require the reimbursement of employee attorney expenses in the absence of a statutory authorization for the expenditure of Federal funds for that purpose.

II. Proposal

a. The Employer shall reimburse unit employees for all attorney, court costs, leave, fees and any miscellaneous expenses involved with the prosecution of unit employees in any court by the Federal government or by any other governmental body because of charges or suit brought against that employee, when such charges would not have been made had that employee not been an employee of Scott Air Force Base (covered by the CBA [collective bargaining agreement]) or that arise out of that employee's employment at Scott AFB. Such charges shall include, but are not limited to: theft, traffic offenses, assault, battery, and any other civil or criminal proceedings. In order to be reimbursed, the employee must be found innocent of major charges and/or not liable for major charges and/or not liable for major claims in civil proceedings.

b. This proposal shall be retroactive to the case in Federal Court involving Mr. Raymon Frierson and all future cases.

III. Positions of the Parties

The Agency contends that reimbursement for litigation expenses by a Federal agency can be made only where there is statutory authorization to do so. The Agency notes that the Union does not point to any such authorization and the Agency further asserts that none exists.

The Agency also contends that the proposal does not concern conditions of employment as defined in the Statute. The Agency argues that there is no relationship between prosecution by competent authorities and the employee's work situation or the employment relationship.

Finally, the Agency contends that the proposal interferes with its right to determine its budget under section 7106(a)(1) of the Statute.

The Union's petition for review contained no arguments in support of the negotiability of the proposal and the Union did not submit a reply to the Agency's statement of position.

IV. Analysis

We find that the proposal is contrary to law because it would require the reimbursement of attorney fees in the absence of statutory authority for the expenditure of Federal funds for that purpose. Consequently, we conclude that the proposal is nonnegotiable under section 7117(a)(1) of the Statute.

Generally, payment of attorney fees can only be made pursuant to specific statutory authorization. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) and cases cited therein. Applying that principle, the Authority has held to be nonnegotiable a proposal requiring an agency to reimburse an employee for the costs of defending that employee in cases which result from actions taken by the employee at the direction of the agency, Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 335-336 (1987) (Congressional Research Service), and a proposal requiring the agency to reimburse employees for expenses, including attorney's fees, incurred by employees in defending themselves in investigations conducted by an agency's Inspector General, National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789 (1985) (General Services Administration). The Authority found the proposal in Congressional Research Service nonnegotiable because it would have required the payment of attorney fees without regard to statutory authorization for such payment. As to the proposal in General Services Administration, the Authority found that it was nonnegotiable because there was no statutory authorization for the reimbursement of employee litigation expenses in the circumstances of that case.

The Union cites no statutory authority for reimbursement of employee litigation expenses, including attorney fees, in the circumstances covered by the proposal in this case. Consequently, consistent with Congressional Research Service and General Services Administration, we conclude that, by requiring the reimbursement of attorney fees in the absence of statutory authority, the proposal is inconsistent with law and outside the duty to bargain under section 7117(a)(1) of the Statute. This conclusion applies to both the first and the second parts of the proposal. Because expenses in the circumstances covered by the proposal are not statutorily authorized, they cannot be authorized retroactively in a specific court proceeding.

In finding the Union's proposal nonnegotiable because it could require the payment of attorney fees without the necessary statutory authorization, we recognize that the proposal also encompasses other circumstances that would not be rendered nonnegotiable under Alyeska. We note in this connection that proposals requiring reimbursement of employees for expenses, including leave, might be negotiable under appropriate circumstances. See Congressional Research Service, 25 FLRA at 335 ("An agency has discretion to use appropriated funds to provide representation for an employee when the agency determines