35:1034(113)NG - - NFFE Locals 642, 1911, 1966, and 2024 and DOI, Oregon State Office, Bureau of Land Management - - 1990 FLRAdec NG - - v35 p1034

[ v35 p1034 ]
The decision of the Authority follows:

35 FLRA No. 113




LOCALS 642, 1911, 1966, and 2024









May 8, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of a proposal requiring the Agency to indemnify the Union in any litigation involving the Union that arises from the Agency's drug testing program.

For the following reasons, we find that the proposal is nonnegotiable.

II. The Proposal

The agency agrees to hold the union harmless and to bear any expenses arising from the agency's acts committed in accordance with the drug testing program.

III. Positions of the Parties

A. The Agency

The Agency states that the proposal is intended to insulate the Union "from any liability that might arise from the agency's drug testing of employees if employees sued the agency for an invasion of privacy or deprivation of constitutional rights and joined the union because the union had negotiated the procedure with management." Agency's Statement of Position at 2. According to the Agency, the proposal would require it to pay all the costs of litigation in such cases.

The Agency contends that the proposal violates the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1). The Agency argues that the Anti-Deficiency Act prohibits indemnification of the Union because the proposal would require the Agency to obligate funds which have not yet been appropriated. The Agency states that, under the Anti-Deficiency Act, Agency officials do not have the authority to include an indemnification provision in a collective bargaining agreement in the absence of express prior statutory authorization.

The Agency provided an affidavit from its Director of Budget stating that "there has been no specific appropriation made for the indemnification of any party, including a union, for the costs of litigation (including attorney fees) involving the Department's drug testing program." Statement of Position at Exhibit A. Accordingly, the Agency asserts that the proposal violates the Anti-Deficiency Act and is nonnegotiable under section 7117(a)(1) of the Statute.

The Agency also contends that "there is no other specific statute making the Government absolutely liable for the litigation costs (which would include attorney fees) and payment of a judgment against another party (other than the United States) joined as a defendant (including a Union) in a suit by employees against the United States." Statement of Position at 5. The Agency argues that under the "American rule" and the doctrine of sovereign immunity, "attorney fees are not available in an action at law against the United States" unless specifically authorized by statute. Id. at 6. The Agency concludes that as there is no statutory authorization of attorney fees in the circumstances covered by the proposal, "the proposal is barred from negotiation by the doctrine of sovereign immunity." Id.

The Agency also contends that because the proposal pertains to a suit against the Agency, joining the Union as a party-defendant, jurisdiction would lie under the Tucker Act, 28 U.S.C. § 1346(a)(2). The Agency argues that the Tucker Act does not authorize awards of attorney fees. Id.

The Agency further asserts that, under the Equal Access to Justice Act, 28 U.S.C. § 2412(b), (c), and (d) (EAJA), the Union may recover costs and attorney fees only if the court determines that the Union is the prevailing party, "unless the court finds that the position of the United States was substantially justified or special circumstances make an award unjust." Id. at 7. Because the proposal provides for "an absolute obligation by the Agency to indemnify the Union" without regard to the statutory requirements, the Agency argues that it is inconsistent with the EAJA and outside the duty to bargain under section 7117(a)(1) of the Statute. Id. at 7-8 (emphasis in original).

Finally, the Agency contends that because the proposal concerns circumstances in which unit employees would be plaintiffs and the Union a defendant, the proposal relates to the Union's own "internal operations" and not to the working conditions of unit employees. Id. at 8. The Agency asserts that, because there is no connection between indemnification of the Union and employee working conditions, the proposal does not concern "conditions of employment" within the meaning of section 7103(a)(14) and is nonnegotiable. In the alternative, the Agency argues that even if the proposal concerns conditions of employment, the proposal is nonnegotiable under section 7103(a)(14)(C) of the Statute because the requirements for recovery of costs and attorney fees are specifically provided for by statute. Id. at 10.

B. The Union

The Union states that the proposal seeks to ins