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22:0142(14)AR
The decision of the Authority follows:
22 FLRA No. 14
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
Agency
and
OVERSEAS EDUCATION ASSOCIATION
Union
Case No. 0-AR-1024
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Roger Kaplan filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations. The Union filed an opposition.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerns the administratively determined
indebtedness of the grievant, a school counselor, in the amount of
$7,574. The amount represents two years of tuition-free education the
Activity claimed was provided a student as the result of
misrepresentations by the grievant. According to the Arbitrator, the
grievant and the grievant's mother had entered into an agreement
transferring guardianship of the student from the mother to the grievant
in order for the student to be eligible for tuition-free education at
Bitburg American High School. When the grievant failed to submit a
court decree approving the guardianship agreement, the grievant was
required to submit a sworn statement that he had assumed "in loco
parentis" status and was supporting the student. On the basis of the
grievant's statements, the student was provided the two years of
tuition-free education. Subsequently, after an investigation, the
Activity proposed to remove the grievant based upon charges that his
statements regarding his support of the student had been false. The
charges against the grievant were sustained and he was ultimately
suspended for 14 days and reassigned. It was on the basis of these
sustained charges that the indebtedness of the grievant was determined.
The grievant thereafter filed the grievance contesting the claim of
indebtedness and the grievance was submitted to arbitration. As his
award, the Arbitrator sustained the grievance, finding that the grievant
was not indebted for the student's tuition costs, and ordered management
to cancel the demand for payment.
III. EXCEPTION
A. Contentions of the Agency
in its exception the Agency contends that the award is contrary to
law and regulation pertaining to the recovery through salary offset of
certain debts owed the United States by Federal employees. The Agency
argues that administratively determined indebtedness is not subject to
resolution under a grievance procedure negotiated in accordance with the
Statute and must be determined pursuant to 5 U.S.C. section 5514. /1/
In particular, the Agency argues that to permit the grievance and
arbitration over such indebtedness is contrary to section 5514. The
Agency also argues that to permit the grievance and arbitration of such
matters is contrary to 5 CFR part 55, subpart K, providing for
collection by salary offset from indebted employees. Specifically, the
Agency maintains that the use of the negotiated grievance procedure is
contrary to 5 CFR section 550.1104 which requires each agency to assure
that its regulations governing the collection of debts are uniformly and
consistently applied to all employees. The Agency asserts that because
the negotiated grievance procedure is available only to bargaining-unit
employees, use of the negotiated grievance procedure necessarily
precludes uniformity and consistency of application in violation of 5
CFR section 550.1104.
B. Opposition of the Union
In its opposition to the Agency's exception, the Union primarily
argues that 5 U.S.C. section 5514 and 5 CFR part 550, subpart K are not
applicable to bar the grievance or the Arbitrator's award because
collection of the claimed indebtedness was not sought by salary offset.
IV. ANALYSIS AND CONCLUSIONS
For the reasons which follow, the Authority finds that the provisions
of 4 U.S.C. section 5514 do not preclude an arbitrator from ruling on
and overturning an assessment of administratively determined
indebtedness against an employee. Collective bargaining agreements
negotiated under section 7121 of the Statute must contain a grievance
procedure and that procedure, except as provided in section 7121(d) and
(e), /2/ is the exclusive procedure for resolving grievances which fall
within its coverage. /3/ Thus, the negotiated grievance procedure may
be invoked to settle disputes within its coverage despite the existence
of internal agency appeal procedures or statutory appeal procedures
which also cover the matter at issue. As to certain statutory or
appellate procedures, section 7121(d) and (e) of the Statute, as noted,
demonstrate that Congress was aware of other statutory appeal procedures
when it provided in the Statute for negotiated grievance and arbitration
procedures. It is clear that Congress intended the negotiated
procedures to be an alternative to those specified statutory and
appellate procedures. /4/ As to internal agency procedures and
statutory procedures not specified in section 7121(d) and (e), Congress
intended that the negotiated grievance procedure replace those
procedures. /5/ Consequently, unless it can be shown that the
procedures governing the collection by salary offset of any debts owed
the United States are intended to be the exclusive procedures for
resolving these matters, such matters are within the scope of the
negotiated grievance procedure prescribed by the Statute.
Both the courts and the Authority have determined that Federal law
outside the Statute can limit the scope of the negotiated grievance
procedure. See American Federation of Government Employees, AFL-CIO,
Council 214 and Department of the Air Force, Headquarters Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34
(1986) (proposal 2 and cases cited in the decision). Consequently,
notwithstanding that the Activity had not expressly determined to
proceed to collect the indebtedness from the grievant by salary offset,
the Authority has examined the provisions cited by the Agency to
determine whether the provisions are the exclusive procedures available
to Federal employees to challenge indebtedness to the United States so
as to overcome section 7121 of the Statute. In disagreement with the
Union, we find that the provisions must be examined in this respect
because they generally apply to the grievant's situation of being
determined to be indebted to the United States and as a Federal
employee, at least, being subject to salary offset in the collection of
that debt.
In the cases where the courts and the Authority have found that
outside law limits the scope of the negotiated grievance procedure,
there have been clear specific indications that the statutory procedures
were intended to be exclusive. Headquarters, AFLC, slip op. at 6-7.
For example, in each instance, statutory provisions convering those
procedures provided that they should take effect "notwithstanding" any
other law. See New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3rd
Cir. 1982); Veterans Administration Medical Center, Minneapolis,
Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983). The Agency in its
exception cites no such provisions in section 5514. Therefore, the
Authority finds that none of the Agency's arguments provide a basis for
concluding that the grievance in this case protesting the Activity's
determination of indebtedness is excluded by law from the coverage of
the negotiated grievance procedure.
Simiarly, the Authority finds that the Agency's arguments provide no
basis for finding the award contrary to 5 CFR part 550, subpart K. The
Agency has argued in its exception that permitting the use of the
negotiated grievance procedure in these matters, which is available only
to bargaining-unit employees under a collective bargaining agreement,
necessarily precludes uniformity and consistency of application of
agency regulations to all employees as required by 5 CFR section
550.1104. However, the means of dispute resolution that may be
available to individual employees has not been shown to preclude the
uniform and consistent application to all employees of the substantive
terms of agency regulations governing the collection of debts.
Furthermore, the Agency's argument that there cannot be uniformity and
consistency because grievance and arbitration is not available to
nonbargaining-unit employees is without merit and provides no basis for
finding the award deficient. Such an effect is precisely the result
contemplated by the terms and provisions of the Statute.
DECISION
Accordingly, for these reasons, the Agency's exception provides no
basis for finding the award deficient as contrary to law or regulation,
and the exception is denied.
Issued, Washington, D.C., June 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 5 U.S.C. section 5514 is set forth in the Appendix.
(2) Section 7121(d) and (e) provide the aggrieved employee in the
specified matters, none of which include the matter involved in this
case, an option of raising the matter under the negotiated grievance
procedure, if the matter has not been excluded by the parties, or under
applicable statutory or appellate procedures.
(3) The term "grievance" is defined in section 7103(a)(9) to include
any complaint by any employee concerning any matter relating to the
employment of the employee or concerning any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment. Section 5 of the Debt Collection
Act of 1982 amended 5 U.S.C. section 5514 to provide the Government with
the authority to take offset against the salaries of Federal employees
in order to collect any debts owed the United States, and the Office of
Personnel Management has prescribed regulations governing the collection
of such debts by salary offset. Pub. L. No. 97-365, 96 Stat. 1749; 5
U.S.C. section 5514; 5 CFR part 550, subpart K. Any complaint by an
employee about such an indebtedness or collection action would be a
"grievance" and would be covered by the negotiated grievance unless
excluded by law or by the parties.
(4) See H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 56 (1978); S.
Rep. No. 95-969, 95th Cong., 2d Sess. 110 (1978).
(5) See H.R. Rep. No. 95-171, 95th Cong., 2d Sess. 157 (1978); S.
Rep. No. 95-969, 95th Cong. 2d Sess. 110 (1978).
APPENDIX
5 U.S.C. Section 5514 provides:
Section 5514. Installment deduction for indebtedness to the
United States
(a)(1) When the head of an agency or his designee determines
that an employee, member of the Armed Forces or Reserve of the
Armed Forces, is indebted to the United States for debts which the
United States is entitled to be repaid at the time of the
determination by the head of an agency or his designee, or is
notified of such a debt by the head of another agency or his
designee the amount of indebtedness may be collected in monthly
installments, or at officially established pay intervals, by
deduction from the current pay account of the individual. The
deductions may be made from basic pay, special pay, incentive pay,
retired pay, retainer pay, or, in the case of individual not
entitled to basic pay, other authorized pay. The amount deducted
for any period may not exceed 15 percent of disposable pay, except
that a greater percentage may be deducted upon the written consent
of the individual involved. If the individual retires or resigns,
or if his employment or period of active duty otherwise ends,
before collection of the amount of the indebtedness is completed,
deduction shall be made from subsequent payments of any nature due
the individual from the agency concerned.
(2) Except as provided in paragraph (3) of this subsection,
prior to initiating any proceedings under paragraph (1) of this
subsection to collect any indebtedness of an individual, the head
of the agency holding the debt or his designee, shall provide the
individual with --
(A) a minimum of thirty days written notice, informing such
individual of the nature and amount of the indebtedness determined
by such agency to be due, the intention of the agency to initiate
proceedings to collect the debt through deductions from pay, and
an explanation of the rights of the individual under this
subsection;
(B) an opportunity to inspect and copy Government records
relating to the debt;
(C) an opportunity to enter into a written agreement with the
agency, under terms agreeable to the head of the agency or his
designee, to establish a schedule for the repayment of the debt;
and
(D) an opportunity for a hearing on the determination of the
agency concerning the existence or the amount of the debt, and in
the case of an individual whose repayment schedule is established
other than by a written agreement pursuant to subparagraph (C),
concerning the terms of the repayment schedule.
A hearing, described in subparagraph (D), shall be provided if the
individual, on or before the fifteenth day following receipt of the
notice described in subparagraph (A), and in accordance with such
procedures as the head of the agency may prescribe, files a petition
requesting such a hearing. The timely filing of a petition for hearing
shall stay the commencement of collection proceedings. A hearing under
subparagraph (D) may not be conducted by an individual under the
supervision or control of the head of the agency, except that nothing in
this sentence shall be construed to prohibit the appointment of an
administrative law judge. The hearing official shall issue a final
decision at the earliest practicable date, but not later than sixty days
after the filing of the petition requesting the hearing.
(3) The collection of any amount under this section shall be in
accordance with the 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.
(4) For the purposes of this subsection --
(A) "disposable pay" means that part of pay of any individual
remaining after the deduction from those earnings of any amounts
required by law to be withheld; and
(B) "agency" includes the United States Postal Service and the
Postal Rate Commission.
(b)(1) The head of each agency shall prescribe regulations;
subject to the approval of the President, to carry out this
section and section 3530(d) of title 31. Regulations prescribed
by the Secretaries of the military departments shall be uniform
for the military services insofar as practicable.
(2) For purposes of section 7117(a) of this title, no
regulation prescribed to carry out subsection (a)(2) of this
section shall be considered to be a Government-wide rule or
regulation.
(c) Subsection (a) of this section does not modify existing
statutes which provide for forfeiture of pay or allowances. This
section and section 3530(d) of title 31 do not repeal, modify, or
amend section 4837(d) or 9837(d) of title 10 or section 1007(b),
(c) of title 37.