[ v21 p233 ]
The decision of the Authority follows:
21 FLRA No. 32 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and DEPARTMENT OF THE ARMY, KANSAS CITY DISTRICT, U.S. ARMY CORPS OF ENGINEERS, KANSAS CITY, MISSOURI Agency Case No. 0-NG-731 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of three Union proposals. II. Union Proposal 1 The Employer recognizes that all employees have a statutorily created right to their pay, retirement fund and annuities derived therefrom. The Employer further recognizes that charges/allegations of pecuniary liability shall not be construed to be indebtedness or appears to the United States until the affected employee has had the opportunity to fully exercise his/her rights of due process; wherein due process shall provide equal protection to all employees and shall require a hearing before an unbiased, unprejudiced and impartial tribunal, free from any command pressure or influence. All claims by the Government for pecuniary liability shall be capped at a maximum of $150.00. Only the underlined portion is in dispute.) A. Positions of the Parties Union Proposal 1 would limit an employee's liability for the loss, damage to or destruction of government property to $150.00, whereas, under the Agency's existing regulations, an employee's liability is now limited to an employee's basic monthly pay. The Agency has refused to negotiate over the proposal contending that the proposal is inconsistent with the Federal Claims Collection Act of 1966 ("Claims Act"), Pub.L. No. 89-508, 80 Stat. 309 (1966) and violates its management right to determine its internal security practices pursuant to section 7106(a)(1) of the Statute. The Union disputes the Agency's contentions. B. Analysis 1. Management Rights In agreement with the Agency, the Authority finds that the proposal violates the Agency's right to establish its internal security practices pursuant to section 7106(a)(1) of the Statute. An agency's right to determine its internal security practices includes those policies and actions which are part of the agency's plan to secure or safeguard its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of the agency's activities. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6 (1984) (Union Proposal 2), appeal docketed sub nom. Federal Labor Relations Authority v. Office of Personnel Management, No. 84-1325 (D.C. Cir. July 18, 1984). The Agency's plan as set forth in its regulation provides that an employee's pecuniary liability will be one month's pay or the amount of the loss to the Government, whichever is less. The Agency contends that this regulation acts as a deterrent and encourages employees to exercise due care when dealing with government property. Hence, it constitutes a management plan which is intended to eliminate or minimize risks to government property by making clear the consequences of property destruction, loss or damage, and is within the Agency's right to determine its internal security practices. /1/ Even if, as the Union argues, the Agency's plan is designed primarily as a means of recouping government loss, in the Authority's view the Agency's statutory authority includes determining that the plan has, also, the effect of minimizing the risk of the loss occurring in the first place. Similarly, the Union's argument that the Agency's plan is not an effective deterrent is beside the point. It is not appropriate for the Authority to adjudge the relative merits of the Agency's determination to adopt one from among various possible internal security practices, where the Statute vests the Agency with authority to make that choice. In this regard, the Union's contention that its proposal limiting liability to $150.00 is merely a procedural proposal under section 7106(b)(2) of the Statute is not persuasive. The proposal directly impinges on management's right to establish its internal security practices. 2. Inconsistent with Federal Law The Claims Act specifically states that the Act does not diminish the existing authority of a head of an agency to litigate, settle, compromise or close claims. /2/ Pursuant to 10 U.S.C. 4831, et seq., the Secretary of the Army was vested with the existing authority to compromise, settle or close claims when the Claims Act was enacted. /3/ There is no provision in 10 U.S.C. 4831 which limits the Secretary's right to settle, compromise or close claims in fulfilling his responsibilities under the Act. We find that insofar as the Secretary has unrestricted authority to close, settle and compromise on claims for destroyed or damaged property, the Union's proposal is not inconsistent with the Claims Act. C. Conclusion Based on the arguments of the parties, the Authority finds that Union Proposal 1 violates section 7106(a)(1) of the Statute and, thus, is outside the duty to bargain. We also find that the proposal is not inconsistent with the Federal Claims Collection Act. III. Union Proposal 2 When the Employer determines it is necessary to hold an employee(s) liable for loss, damage, or destruction of property, the Employer may take appropriate disciplinary action or charge the employee pecuniarily liable, but not both. Under either action, the Agency's allegation will only be sustained if the Agency proves its charge with a preponderance of evidence. Any disciplinary action taken will be in accordance with applicable laws and higher authority regulation and the negotiated Agreement. If the Employer decides to hold the employee pecuniarily liable, the Employer will provide the employee a hearing before an arbitrator. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency contends that the proposal violates management's right to discipline employees under section 7106(a)(2)(A) and/or management's right to determine its internal security practices under section 7106(a)(1). The Union disputes the Agency's contentions, arguing that the proposal is a procedure. B. Analysis This proposal would require the Agency to choose between holding an employee financially liable or imposing disciplinary action for loss, damage or destruction of property caused by the employee, but not both. The proposal therefore expressly would condition management's right to discipline an employee upon its decision not to hold an employee financially liable. Pursuant to section 7106(a)(2)(A) of the Statute, management has the right to take disciplinary action against its employees. The disputed proposal would interfere with this right by conditioning the Agency's exercise of this right upon the Agency's relinquishment of its right to impose financial liability. Contrary to the Union's contention that this proposal is procedural in nature, the Authority finds that the proposal instead concerns the substantive exercise of management's rights. Professional Air Traffic Controllers Organization and Federal Aviation Administration, 5 FLRA 763 (1981). See also National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775 (1980) (proposal establishing a condition upon management's ability to assign specified duties to an identified employee is inconsistent with the agency's right "to assign work"). We also find that the decision to hold an employee financially liable concerns only the application of the Agency's internal security practices. It does not affect the determination of what those practices will be. The proposal would not also directly interfere with management's right to determine its internal security practices under section 7106(a)(1). C. Conclusion Union Proposal 2 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) and outside the Agency's duty to bargain. Because it would infringe on the substance of the right it is not a negotiable procedure under section 7106(b)(2). The proposal would not be nonnegotiable under section 7106(a)(1). IV. Union Proposal 3 In any event, the Employer will apprise the employee(s), in writing, prior to the Employer's formal investigation, of any instance requiring a report of survey, of his/her rights. At a minimum, the Employer will inform the employee(s) of his/her right to have a representative present during the investigation, the right to remain silent, and in the event a recommendation is made to hold the employee liable, the right to review any and all evidence and statements relative to the report, and the right to an impartial hearing. The procedures for selecting an arbitrator shall be similar to those contained in the negotiated Agreement and all fees and expenses will be borne by the employer. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency contends that the proposal violates management's rights to discipline employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). The Union disputes the Agency's contentions. B. Analysis In agreement with the parties, the Authority finds that the issue raised by Union Proposal 3 is essentially the same as that presented in International Brotherhood of Electrical Workers, AFL-CIO, Local 1186 and Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217 (1980), enforcement denied sub nom. Navy Public Works Center, Pearl Harbor, Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d 97 (9th Cir. 1982). See also Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA No. 73 (1984): In the Tidewater case, the Authority, in agreement with the 1982 decision of the 9th Circuit Court of Appeals in Navy Public Works Center, Honolulu, Hawaii, found that a proposed contract provision concerning an employee's right to remain silent during any discussion with management in which the employee believed disciplinary action may be taken against his or her was outside the duty to bargain, as the provision prevented management from acting at all with regard to its substantive rights under section 7106(a)(2)(A) and (B) of the Statute to take disciplinary action against employees and to direct employees and assign work by having employees account for their conduct and work performance. C. Conclusion Based upon our decision in the Tidewater case, we find that Union Proposal 3 directly interferes with management's rights to direct and discipline employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(D). V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., March 31, 1986. (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See American Federation of Government Employees, AFL-CIO, Local 15 and Department of the Treasury, Internal Revenue Service, North Atlantic Region, 2 FLRA 875 (1980), in which the Authority found that a regulation, which directly related to and was part of the agency's plan to prevent disruption, disclosure or property destruction at its facilities, concerned the internal security practices of the agency. /2/ Section 953 of the Federal Claims Collection Act provides as follows: 953. Existing agency authority to litigate, settle, compromise, or close claims Nothing in this chapter shall increase or diminish the existing authority of the head of agency to litigate claims, or diminish his existing authority to settle, compromise, or close claims. /3/ Section 4832 of title 10 of the U.S. Code provides as follows: 4832. Property accountability: regulations The Secretary of the Army may prescribe regulations for the accounting for Army property and the fixing of responsibility for that property.