37:0500(38)NG - - NAGE Local R1-109 and Veterans Affairs, VA Medical Center, Newington, CT - - 1990 FLRAdec NG - - v37 p500
[ v37 p500 ]
The decision of the Authority follows:
37 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS ADMINISTRATION MEDICAL CENTER
DECISION AND ORDER ON NEGOTIABILITY ISSUES
September 25, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority 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 appeal concerns the negotiability of two proposals, each of which has a number of subparts.(1)
Proposal 1 prescribes procedures to be followed by the Agency prior to collecting, through deductions from pay, debts owed to the Federal Government by bargaining unit employees. Proposal 2 prevents the Agency from withholding any pay from unit employees to cover debts owed to the Government until completion of negotiations over procedures to be followed in collecting such debts. After negotiations are completed, Proposal 2 requires the Agency to notify the Union and all employees of their rights under the Debt Collection Act of 1982, 5 U.S.C. 5514, and to permit the employees to exercise those statutory rights.
For the reasons that follow, we find that Proposal 1 is nonnegotiable to the extent that it concerns: (1) procedures to be followed by the Agency in determining and collecting debts owed by unit employees to other Federal agencies; (2) resolution by an arbitrator or an administrative law judge of the existence and amount of debts owed by unit employees to the Agency as a result of veterans' benefits; and (3) designation by the Union as the sole qualification necessary to serve as a unit employee's representative at debt collection proceeding concerning an alleged veterans' benefit debt. To the extent that Proposal 1 covers employment-related debts owed by unit employees to the Agency, it is negotiable.
We find that the requirement in Proposal 2 that debt collections be suspended pending completion of bargaining over procedures to determine the existence and amount of debts is nonnegotiable to the extent that it would require suspension of ongoing deductions from employees' pay to satisfy debts. The requirement is nonnegotiable under section 7117(a) of the Statute because it is inconsistent with a Government-wide regulation governing suspension of debt collection. The remaining disputed portions of Proposal 2 are negotiable.
II. Proposal 1
COLLECTION OF DEBTS OWED THE U.S. GOVERNMENT
SECTION I PURPOSE: The purpose of this agreement is to define the procedures for the collection of debts owed the United States Government by bargaining unit employees. This agreement will not, in any way, abridge employees['] rights under any appropriate law, rule or regulation, nor will it abridge an employee[']s right to file a grievance under the procedure of article 13, or any appropriate statutory appeal.
SECTION II NOTIFICATION: When the head of an agency or his/her designee determines that an employee is indebted to the agency for debts which the government is entitled to be repaid, the following procedures will apply:
a. the employee will be notified, in writing, by the agency that a debt is owed. The union will receive similar and simultaneous notification as is given to the employee.
b. the employee will be given a minimum of forty-five days written notice; this notice will contain at a minimum, the following information:
1. Nature of the indebtedness
2. Amount of the indebtedness
3. Notice of the agency's intent to initiate proceedings to collect the debt through payroll deduction; not to exceed fifteen percent of the employee[']s disposable pay, per pay period.
4. An explanation of the employee[']s rights under appropriate laws, rules and regulations, and the negotiated agreement.
5. An opportunity to review, inspect and/or copy any relevant government record or document relative to the debt, and the location of such records and documents, and if such records are not reasonably available, that such records will be made available and that all time frames will be extended until such records are reasonably available.
6. The opportunity to request a hearing, along with an explanation of the hearing procedures.
7. The opportunity to request a waiver of the debt, along with an explanation of waiver procedures.
SECTION III HEARING: The hearing refer[r]ed to in section II(6.) will, if requested in a timely manner, be held within the employee[']s commuting area. The hearing will be conducted by an impartial individual who is not under the supervision or control of the agency, normally a recognized arbitrator, if selected by procedures similar to those of article 14, or an administrative law judge. The hearing officer's fees and expenses shall be borne by the agency. The hearing officer shall issue a final decision within sixty days of the receipt of the request for the hearing.
SECTION IV REPRESENTATION: Consistent with the collective bargaining agreements employees will be advised of their right, and the agency's obligation to have a representative of NAGE present at any debt collection proceeding involving a unit employee.
(Only the underscored parts of the proposal are in dispute.)
A. Positions of the Parties
Except for the disputed portions of sections IIb.7 and IV, the Agency does not object to Proposal 1 to the extent that it concerns employment-related debts owed to it by unit employees. The Agency contends, however, that Proposal 1, in its entirety, is nonnegotiable to the extent that it concerns (1) debts owed to Government entities other than the Agency, and/or (2) debts owed to the Agency by unit employees as a result of veterans' benefits. The Agency contends, in this regard, that (1) it has no authority to negotiate over procedures to be provided by other agencies; and (2) to the extent that the proposal encompasses debts resulting from veterans' benefits, the proposal conflicts with various provisions in title 38 of the United States Code, a provision in the Debt Collection Act, and Agency regulations for which there is a compelling need.
The Agency asserts that sections IIb.7 and IV of the proposal are nonnegotiable, even as applied to employment-related debts owed by unit employees to the Agency. According to the Agency, section IIb.7 is nonnegotiable because it would apply to debts which, under applicable law and regulation, are not eligible for waiver. The Agency maintains that section IV of the proposal is nonnegotiable because it is "inconsistent with the provisions of the . . . Statute that state the circumstances in which an obligation arises to have a representative of the Union present." Statement of Position at 12.
The Union did not file a reply brief. Its position is taken from the description of the proposal's meaning contained in its petition for review. The Union describes the objective of Proposal 1 as seeking "to secure through contractual agreement, those protections guaranteed to employees by law and regulation when the Agency intends to collect debts[.]" Petition for Review at 1.
B. Analysis and Conclusions
1. Debts Owed by Unit Employees to Other Agencies
Under the Debt Collection Act of 1982, 5 U.S.C. 5514 (the Act), an agency may make deductions from an employee's pay to satisfy debts owed by the employee to the Government, including other Federal agencies. For example, the Department of Education may determine that an employee of the Department of Veterans Affairs has defaulted on a student loan. In these circumstances, the creditor agency (the Department of Education) must notify the employer (the Department of Veterans Affairs) of the indebtedness. 5 U.S.C. 5514(a)(1). Under 5 U.S.C. 5514(a)(2), before an employing agency may make deductions from an employee's pay, "the agency holding the debt" (the creditor agency) must afford the employee: notice of the determination of indebtedness, opportunities to inspect and copy relevant records and to enter into a repayment arrangement, and a hearing on the initial determination of indebtedness, if so requested by the employee. Relevant legislative history of the Act fully supports the conclusion that Congress intended the creditor agency to provide the procedures required by the Act. See S. Rep. No. 378, 97th Cong., 2d Sess. 24, reprinted in 1982 U.S. Code Cong. & Admin. News 3377, 3400.
As noted above, the Agency objects to Proposal 1, in part, because it views the proposal as binding agencies other than the employer to the proposed procedures. We agree with the Agency's interpretation of the proposal. The proposal covers "the collection of debts owed to the United States Government by bargaining unit employees." The notification requirements apply when "the head of an agency or his/her designee determines that an employee is indebted to the agency[.]" Consistent with the plain wording of the proposal, and in the absence of any Union assertion to the contrary, we find that the Union seeks to negotiate a procedure with the Agency to be used in determining debts owed to other agencies, as well as to the Agency itself.
The Act requires that procedures applicable to determining the existence of, and collecting, debts be provided by the agency to which the employee is allegedly indebted. 5 U.S.C. 5514(a)(2). Proposal 1 would require the Agency to provide the applicable procedures when the debt is owed to another agency. Accordingly, the proposal conflicts with 5 U.S.C. 5514(a)(2) and is nonnegotiable. See National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 32 FLRA 721, 724-25 (1988).
2. Veterans' Benefits Debts
The Agency contends that Proposal 1 is nonnegotiable to the extent that it covers "benefit debts" owed to the Agency by unit employees. Statement of Position at 4. According to the Agency, benefit debts do not arise from the employment relationship, but rather, are related to the status of bargaining unit employees as veterans and the benefits paid to those employees solely because of their status as veterans. The benefits administered by the Agency for which unit employees may be eligible as veterans are listed in the U.S. GOVERNMENT MANUAL, 1989/90 at 517-20 and include: disability compensation and pensions, educational assistance, mortgage loan guaranties, and other forms of financial assistance.
The proposal applies, by its terms, to "debts owed the United States Government by bargaining unit employees." As plainly worded, therefore, the proposal would encompass debts resulting from overpayments of veterans' benefits. Further, the Union does not assert that the proposal should be interpreted in any other manner. Accordingly, as an initial matter, we agree with the Agency that the proposal would apply to the collection of debts related to veterans' benefits.
Section 5514(a)(2)(D) of the Act affords alleged debtors "an opportunity for a hearing on the determination of the agency concerning the existence or the amount of the debt[.]" Accordingly, alleged debtors may challenge not only the procedures by which debts are collected; alleged debtors also may contest the existence of the underlying debt. With regard to veterans' benefits, resolution of questions concerning the existence or amount of the alleged underlying debt would necessitate determinations as to the alleged debtor's basic entitlement, or amount of entitlement, to veterans' benefits. Stated simply, if an alleged debtor had, in fact, received only the amount of veterans' benefits to which the debtor was entitled, no debt would arise, because there would have been no overpayment.
The Union states that its proposal resulted from its discovery that the Agency was not affording employees the rights guaranteed them by the Debt Collection Act. The Act enables alleged debtors to challenge the existence and amount of alleged debts. There is no indication in the proposal or the record of this case that the Union intends the proposal to apply in any different manner to alleged debts arising from overpayment of veterans' benefits than to debts arising from other alleged overpayments. Accordingly, we conclude that, as Proposal 1 would encompass alleged debts arising from overpayment of veterans' benefits, Proposal 1 also would encompass disputes over entitlements to the payment of veterans' benefits underlying the alleged debts.
Disputes over entitlements to, or amount of, veterans' benefits are resolved in accordance with procedures set forth in title 38 of the United States Code. Under 38 U.S.C. 211(a)(1), the Secretary of Veterans Affairs decides "all questions of law and fact necessary to a decision by the [Secretary] under a law that affects the provision of benefits by the [Secretary] to veterans or the dependents or survivors of veterans." 38 U.S.C. 4004 provides that a recipient of veterans' benefits may obtain one review of a decision by the Secretary of Veterans Affairs under section 211(a). The Board of Veterans' Appeals is assigned responsibility for making the final decision on such requests for review after affording a claimant an opportunity for a hearing. Authority to review the decisions of the Board of Veterans' Appeals is assigned exclusively to the Court of Veterans Appeals by 38 U.S.C. 4052(a). Review of a decision of the Court of Veterans Appeals concerning the validity or interpretation of any statute or regulation relied on in the court's decision may be obtained in the United States Court of Appeals for the Federal Circuit. 38 U.S.C. 4092. In addition, 38 U.S.C. 3401-04 provide that a representative, unless he or she is a member in good standing of the bar of the highest court of a state, may not represent a claimant before the Department unless he or she has been recognized for that purpose by the Secretary of Veterans Affairs.
The foregoing provisions of title 38 establish procedures for resolving disputes over the entitlement to, or amount of, veterans' benefit payments. These procedures include notification, hearing, appeal, and administrative and judicial review. We note, in this regard, that section 5514(a)(3) of the Debt Collection Act states that the collection of any amount under the Act shall be "in accordance with any other statutory authority for the collection of claims of the United States or any agency thereof." It is clear, therefore, that the provisions of the Debt Collection Act were not intended to supersede other procedures established by law, including those prescribed by title 38 relating to veterans benefits. See S. Rep. No. 378, 97th Cong., 2d Sess. 21, reprinted in 1982 U.S. Code Cong. & Admin. News 3377, 3397 (the Senate Governmental Affairs Committee stated that it did not intend the Debt Collection Act "to establish an additional and duplicative procedure").
Procedures governing the resolution of disputes over entitlements to, and amounts of, veterans' benefits are prescribed by Federal law. Section III of Proposal 1 would establish procedures encompassing review of a determination by the Secretary of Veterans Affairs as to the existence and amount of indebtedness to the Agency which is attributable to overpayment of veterans' benefits. Under section III, review of the Secretary's determinations as to the existence and/or amount of indebtedness would be undertaken either by an arbitrator or an administrative law judge. However, the applicable laws limit the authority to review the decisions concerning veterans' benefits of the Secretary of Veterans Affairs to specified administrative and judicial bodies. The entities authorized by law to review the Secretary's decisions do not include either arbitrators or administrative law judges. Consequently, to the extent that section III of Proposal 1 would require resolution by an arbitrator or administrative law judge of the existence or amount of an alleged veterans' benefit debt, it is inconsistent with Federal law and is not within the duty to bargain under section 7117(a)(1) of the Statute.
Applicable law also limits who may represent a veteran in prosecuting claims before the Department of Veterans Affairs under any laws administered by the Department. As applicable here, a representative must be a member in good standing of a state bar or an individual recognized by the Secretary for the purpose of acting as an agent or attorney. 38 U.S.C. 3401-04. Section IV of Proposal 1, however, would authorize "a representative of NAGE" to represent an employee "at any debt collection proceeding involving a unit employee." As section IV fails to take into account the additional requirements necessary for a representative to prosecute before the Department a claim involving veterans' benefits, it is inconsistent with the applicable Federal law imposing those requirements and is nonnegotiable under section 7117(a)(1) of the Statute.
In view of our determination that sections III and IV of Proposal 1 are inconsistent with Federal law to the extent that they concern disputes over the existence and/or amount of veterans' benefit debts and representation in resolving such disputes, we do not address whether those sections of the proposal are inconsistent with an Agency regulation for which a compelling need exists.
Section I of Proposal 1 provides that the proposed procedures apply to disputes over the collection of debts. As noted above, Proposal 1 encompasses disputes over the existence and/or amount of veterans' benefits. Accordingly, consistent with our findings concerning sections III and IV of Proposal 1, we conclude that section I also is nonnegotiable to the extent that it applies to disputes over the existence and/or amount of veterans' benefits.
We note that the Agency objects to section II of Proposal 1 solely on the basis that it would encompass debts owed by unit employees to other agencies. Veterans' benefit debts are, by nature, owed to the Agency. Accordingly, there is no dispute over the negotiability of section II as it relates to veterans' benefit debts. Therefore, as it is not otherwise apparent that section II is inconsistent with the provisions of title 38 concerning veterans' benefit debts, we conclude that section II is negotiable as it relates to these debts.
Finally, our findings regarding the nonnegotiability of sections I, III, and IV of Proposal 1 as they relate to veterans' benefit debts are confined to disputes over the existence and/or amount of such debts. The Agency has established no legal or regulatory grounds, nor is any basis otherwise apparent to us, for finding that Proposal 1 is nonnegotiable as it applies to disputes limited to determining the amount to be deducted from each paycheck to offset veterans' benefit debts.
3. Employment-Related Debts of Unit Employees
a. Section IIb.7
The Agency asserts that section IIb.7 of Proposal 1 is nonnegotiable to the extent that it concerns debts which are no longer eligible for waiver. Section IIb.7 does not obligate the Agency to waive a debt when there is no legal basis for doing so, however. The disputed section requires only that the Agency afford employees the "opportunity to request a waiver[.]" Nothing in the plain wording of section IIb.7 supports the conclusion that it would require the Agency to provide an "opportunity" where none exists under applicable law. Accordingly, we find that, to the extent that section IIb.7 applies to employment-related debts owed by unit employees to the Agency, it is negotiable.
b. Section IV
Section IV would establish unit employees' right to Union representation during debt proceedings. Section IV would also require the Agency to advise employees of the rights and obligations created by that section. The Agency contends that section IV is inconsistent with provisions of the Statute concerning employee rights to Union representation. We disagree.
Section 7114(a)(2) of the Statute establishes employee rights to union representation. Section 7114(a)(2) provides that a union is entitled to be present at meetings between an agency and employees which constitute formal discussions and at certain examinations of employees in connection with investigations, if so requested by the employees involved. However, nothing in section 7114(a)(2) precludes a union from negotiating to represent employees in situations other than those listed in section 7114(a)(2). Accordingly, an agency's obligation to negotiate over union representation is not limited to the rights granted by section 7114(a)(2). See American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA 919, 923 (1990) and cases and legislative material cited there.
As section 7114(a)(2) does not preclude the establishment of rights to representation in situations other than those listed in that section, negotiation by the Union for the right to be present at debt collection proceedings is not inconsistent with section 7114(a)(2). Consequently, to the extent that section IV establishes a right to representation at proceedings concerning employment-related debts owed by unit employees to the Agency and an obligation on the part of the Agency to notify unit employees of that right, it is negotiable.
III. Proposal 2
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY IMPACTED BY THE EMPLOYER'S COLLECTION OF DEBTS, PRECEDENT TO BARGAINING REGARDING 5 USC 5514, THE DEBT COLLECTION ACT OF 1982.
SECTION I PURPOSE: The purpose of this agreement is to provide appropriate arrangements for bargaining unit employees adversely impacted by the employer's collection of debts, precedent to bargaining with the exclusive representative, regarding provisions of 5 USC 5514, also known as the [D]ebt [C]ollection [A]ct of 1982.
SECTION II ARRANGEMENTS: The following arrangements will be applied to all bargaining unit employees to insure past, current, and future employees are afforded those rights and protections as guaranteed by law, rule or regulation, and contractual agreement:
a. The Employer will refrain from withholding any monies from salaries of bargaining unit employees, owed to the agency, except in cases of termination of employment, to offset debts owed by them to the United States Government until such time as the Parties have concluded negotiations on procedures to be followed in collection of employee indebtedness; including negotiations over a form letter to be used to advise employees of their rights and obligations regarding debts owed by them to the United States Government.
b. Upon completion of the aforementioned negotiations the employer will notify all bargaining unit employees from whom collections were made retroactively to 1982, regarding their rights as outlined in the [D]ebt [C]ollection [A]ct of 1982, 5 USC 5514, and allow those employees to exercise those rights.
c. The [U]nion will be given similar and simultaneous notice as that given to those employees in item (b.) above.
(Only the underscored parts of Proposal 2 are in dispute.)
A. Positions of the Parties
The Agency contends that section IIa of Proposal 2 is nonnegotiable because "it would interfere with a statutory mandate to collect debts owed." Statement of Position at 5. Section IIb is nonnegotiable, according to the Agency, to the extent that it concerns past employees and prior debts because "[s]alary offset began in 1987. Collection actions prior to 1987 would have been garnishments pursuant to court order and the employee could not elect to exercise rights under the salary offset regulations." Id. The Agency further argues that, because section IIb is nonnegotiable, section IIc is "moot." Id.
The Union contends that Proposal 2 seeks "to provide appropriate arrangements for employees adversely impacted by the Agency's unilateral implementation of debt collection procedures." Petition for Review at 1.
B. Analysis and Conclusions
1. Appropriate Arrangements
Initially, we note that the Union's argument that Proposal 2 is an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute is misplaced. Section 7106(b)(3) addresses appropriate arrangements for employees adversely affected by the exercise of a management right under section 7106. See, for example, American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 25 FLRA 958, 961 (1987). In this case, any adverse effect on employees would flow from the Agency's compliance with the requirements of the Debt Collection Act, rather than from the exercise of a management right. Consequently, section 7106(b)(3) does not apply, and it is unnecessary to address the Union's claim that Proposal 2 constitutes an appropriate arrangement.
2. Section IIa.
Section 5514(a)(3) of the Act requires that debt deductions from the pay of Federal employees be accomplished "in accordance with standards promulgated pursuant to sections 3711 and 3716-3718 of title 31 or in accordance with any other statutory authority for the collection of claims of the United States or any agency thereof." Under 31 U.S.C. 3711(e), the Comptroller General and the Attorney General are charged with responsibility for prescribing standards, which must be followed by agency heads, governing the collection and compromise of claims by the Government. These standards, the Federal Claims Collection Standards, are codified at 4 C.F.R. 101-105 and apply generally to civil claims by the Federal Government for money and property. The Authority has previously found that, "given their scope and nature," the Federal Claims Collection Standards, are Government-wide rules and regulations within the meaning of section 7117 of the Statute. American Federation of Government Employees, AFL-CIO, Local 225 and Department of the Army, USARRADCOM, Dover, New Jersey, 15 FLRA 607, 608 (1984) (USARRADCOM).
4 C.F.R. 104.1(a) provides that agency heads may suspend or terminate ongoing collection actions if certain specific standards are met. The standards to be applied in determining whether suspension of collection activities is appropriate are contained in 4 C.F.R. 104.2. Under section 104.2, collection activities may be suspended when: (1) the debtor cannot be located after diligent effort; (2) the debtor's temporary financial condition is such as to temporarily prevent him or her from making payments on the Government's claim; (3) the debtor has sought waiver or administrative review of the claim under a statute which makes both the consideration of such request and