35:0638(71)NG - - NAGE Local R7-23 and Air Force, Scott AFB, IL - - 1990 FLRAdec NG - - v35 p638
[ v35 p638 ]
The decision of the Authority follows:
35 FLRA No. 71
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
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.
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.
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 th