American Federation of Government Employees, Local 3529 (Union) and United States Department of Defense, Defense Contract Agency, Central Region, Irving, Texas (Agency)

[ v57 p456 ]

57 FLRA No. 84

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AGENCY, CENTRAL
REGION, IRVING, TEXAS
(Agency)

0-NG-2583

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

September 13, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal, which would establish a standard of employee liability for loss of or damage to government property.

      For the reasons that follow, we find that the proposal is outside the duty to bargain. Therefore, we dismiss the petition for review.

II.     The Proposal

Wherever the term "gross negligence" is used in the CRI,[ [n1] ] it means "an extreme departure from the course of action to be expected of a reasonably prudent person, all circumstances being considered." The act is characterized by a reckless, deliberate, or wanton disregard of foreseeable consequences. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. The Union or individual employees reserve the right to file grievances, or any other actions deemed necessary, [ v57 p457 ] if disagreements exist over the Agency's application of this CRI/agreement.
4.2.5.12. [An employee will b]e subject to financial liability if through failure to perform required procedures as outlined in this CRI, or through his/her gross negligence, willful misconduct or deliberate unauthorized use, property was lost, stolen, damaged, or destroyed.
4.2.6.5. [An employee will b]e subject to financial liability if property was lost, stolen, damaged, or destroyed through his/her gross negligence, willful misconduct or deliberate unauthorized use.

III.     Meaning of the Proposal

      The proposal was submitted to the Agency as a replacement for language in the current CRI. The CRI is an Agency instruction that governs a specific geographical region. One of the standards used in the CRI for determining employees' financial liability for lost, stolen, damaged, or destroyed property is simple negligence. The Union's proposal, specifically its second and third paragraphs, would replace this standard with a standard of "gross negligence." [n2]  The second and third paragraphs, which are to much the same effect, pertain to two separate sections of the CRI, covering different types of employees - respectively, property managers and employees generally.

IV.     Positions of the Parties

A.     Agency

      The Agency argues that the proposal interferes with management's right to determine its internal security practices under § 7106(a)(1) of the Statute. The Agency cites "well-settled" Authority case law holding that proposals that establish a "gross negligence" standard for determining employee financial liability directly interfere with management's right to determine its internal security practices. Statement of Position at 3-4 (citing NAGE, Local R7-23, 21 FLRA 978 (1986) and AFGE, AFL-CIO, Council 214, 21 FLRA 244 (1986), aff'd on remand, 27 FLRA 814 (1987)).

B.     Union

      The Union does not address the case law relied upon by the Agency. The Union makes two points. First, the Union argues that the mere existence of an agency regulation does not prevent the agency from negotiating concerning a conflicting proposal (citing United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 194 (1990) (Fort Campbell)). Thus, the Union asserts, the mere existence of an agency regulation establishing simple negligence as a standard for employee financial liability should not per se foreclose bargaining.

      Second, the Union contends that the Authority has implicitly held that the standard for determining employee financial liability is negotiable. The Union cites in this connection the Authority's decision on exceptions to an arbitrator's award in United States Dep't of the Army, Blue Grass Army Depot, Lexington, Ky., 41 FLRA1206, 1210 (1991) (Blue Grass Army Depot). The Union argues that the Authority's action in Blue Grass Army Depot sustaining the award implies that the Authority did not view the contract provision involved in that case, establishing a "negligence" standard for determining employee financial liability, as violative of management's right to determine its internal security practices under § 7106(a)(1). The Union contends that the proposal at issue in this case is to the same effect.

      The Union also maintains that the proposal constitutes a procedure under § 7106(b)(2) and an appropriate arrangement under § 7106(b)(3) of the Statute. As to these claims, the Union states that the proposal would limit an employee's exposure to liability for loss or destruction of government property.

V.     Analysis and Conclusions

      Both parties agree that the proposal is intended to establish a standard to be used in determining whether an employee will be held financially liable for property that is lost, stolen, damaged, or destroyed. As pertinent here, the proposal would limit that liability to losses resulting from an employee's "gross negligence."

      The Authority has held in a number of cases that proposals substantively identical to the proposal in this case affect management's right to determine its internal security practices under § 7106(a)(1) of the Statute. See NAGE, Local R7-23, 23 FLRA 753, 758-59 (1986) (ruling nonnegotiable a proposal that would establish a "gross negligence" standard for determining employee financial liability for damage to government property); NAGE, Local R7-23, 21 FLRA at 981-82 (same); AFGE, AFL-CIO, Council 214, 21 FLRA at 245-46 (same); see also United States Air Force, Washington, D.C. and United States Air Force, Electronic Systems Division, Hanscom Air Force Base, Bedford, Massachusetts, [ v57 p458 ] 21 FLRA 957, 960 (1986) (same, in the context of holding that an agency did not commit an unfair labor practice when it issued a revised regulation establishing a simple negligence standard for employee financial liability, without bargaining over the substance of the change). As the Authority explained in AFGE, Council 214, an agency's right to determine its internal security practices under § 7106(a)(1) includes the right to determine the "plan to prevent damage to or loss of Agency property." 21 FLRA at 245. The standard for determining employee financial liability for damage or loss is part of that plan. See id. Therefore, consistent with Authority precedent, we find that the Union proposal affects the Agency's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      The Union's reliance on the Authority's decisions in Fort Campbell and Blue Grass Army Depot is misplaced. The Union relies on Fort Campbell for the proposition that the existence of an agency regulation does not automatically render a conflicting bargaining proposal nonnegotiable. Fort Campbell is inapposite because the Agency relies on management rights, not Agency regulations, as a bar to negotiating concerning the Union's proposal.

      Blue Grass Army Depot is also inapplicable. The initial decision issued by the Authority in Blue Grass Army Depot involved an arbitrator's award in which the arbitrator examined a contract provision that established negligence as the standard for determining employees' financial liability for property damage. United States Dep't of the Army, Blue Grass Army Depot, Lexington, Ky., 38 FLRA 1232, 1237 (1990). In denying the agency's exception that the award violated its right to determine its internal security practices, the Authority concluded that the arbitrator's application of the provision did not abrogate this right. The Authority did not hold, as the Union implies, that the contract provision at issue did not affect management's right to determine internal security practices. [n3]  The Authority's additional ruling, in its second Blue Grass Army Depot decision, denying an agency exception that its regulations superseded the definition of negligence contained in the contract, addresses an unrelated matter. See Blue Grass Army Depot, 41 FLRA at 1210.

      Finally, the Union asserts that the proposal is a negotiable procedure or an appropriate arrangement under § 7106(b)(2) and (3) of the Statute. The Union cites no precedent in support of its claims, stating only that the proposal "would limit the employee's exposure to liability for loss or destruction of government property." Response