DECISION OF THE BOARD OF DIRECTORS
This is a negotiability appeal in which the Board must decide whether a proposed collective bargaining agreement provision is “inconsistent with any Federal law…” and therefore nonnegotiable, pursuant to Section 7117(a)(1) of the Federal Service Labor-Management Relations Statute (“FSLRMS”), 5 U.S.C. 7117 (a)(1), as applied by Section 220(c) of the Congressional Accountability Act (“CAA”), 2 U.S.C. 1351(c). The Board is authorized to resolve such negotiability appeals under Section 7105(a)(2)(E) of the FSLMRS, 5 U.S.C. 7105(a)(2)(E), as applied by Section 220(c)(1) of the CAA, 2 U.S.C. 1351(c)(1).
The proposed contract provision is deemed “inconsistent with Federal law” by the employing office, the Office of the Architect of the Capitol (hereinafter, “AOC”); AFSCME Council 26 (“the Union”) disagrees and contends that there is no inconsistency with the law. Ineffect, the proposed agreement states that make-whole relief, including back pay, may be awarded to bargaining unit employees who prevail in binding arbitration, or successfully achieve pre-arbitration settlement, under the grievance procedure to be incorporated in the parties’ collective bargaining agreement. The proposal further provides that the parties shall jointly request the Office of Compliance to approve such awards and settlements, and direct payment pursuant to Section 415(a) of the CAA. The disputed portions of the proposal provide that if the Office of Compliance fails to direct payment from its Section 415(a) account at the U.S. Treasury, AOC itself is then financially responsible for complying with the award or settlement.
The parties agree that their collective bargaining agreement must provide a negotiated grievance procedure, including binding arbitration. See Section 7121 of the FSLMRS, 5 U.S.C. Section 7121, as applied by Section 220(a) of the CAA. The parties also agree that AOC employees may obtain back pay and other make-whole relief in negotiated grievance proceedings. However, the parties disagree as to the proper source of funding to satisfy such awards and settlements.
