OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Street, S. E.
Washington, D. C. 20540-1999
______________________
AFSCME Council 26,
Petitioner,
Case No. 00-LMR-03
and
Office of the Architect
of the Capitol,
Employing Office
______________________
Before the Board of Directors; Susan S. Robfogel,
Chair; Barbara L. Camens; Alan V. Friedman; Roberta L. Holzwarth;
Barbara Childs Wallace, Members.
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.
In effect, 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.1
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.
AOC asserts that any requirement that AOC pay
monetary awards and settlements in negotiated grievance proceedings
from its own appropriated funds is inconsistent with Federal law.
Specifically, AOC contends that there is no clear and unequivocal
statutory authority for it to make back pay payments and, accordingly,
the doctrine of sovereign immunity applies. Under that doctrine,
the government is not liable for monetary awards unless its immunity
has been unequivocally waived. See, e. g., United States v. Nordic
Village, Inc., 503 U. S. 30 (1992). Further, AOC contends, the
CAA itself establishes that the sole basis and source of payment
for awards and settlements under the Act is the Section 415(a) fund
administered by the Office of Compliance.2
The Union maintains that nothing in the CAA,
or other provision of Federal law, bars AOC from submitting disputes
to binding arbitration that may result in its paying back pay or
other make-whole relief from its own funds. The Union also asserts
that Section 415(a) of the CAA should not apply to arbitration awards
or settlements under the parties' collective bargaining agreement,
as such awards and settlements do not constitute awards and settlements
"under this Act" within the meaning of Section 415(a). Rather, the
Union contends, Section 415(b) covers awards and settlements in
grievance cases because it expressly authorizes appropriations for
"administrative, personnel, and similar expenses of employing offices
which are needed to comply with this Act." 2 U. S. C. Section 1415(b).
We address, first, AOC's sovereign immunity argument.
It is true, of course, that a waiver of the Federal government's
sovereign immunity must be expressed unequivocally in statutory
text. It is also true, as AOC points out, that AOC is not one of
the agencies identified in the 1966 Back Pay Act, 5 U. S. C. 5596(a),
as authorized to make back pay payments to agency employees who
successfully challenge "unwarranted personnel actions". Id. But
the 1966 Back Pay Act is not the only statutory basis for finding
a waiver.
Section 7122 of the FSLMRS explicitly authorizes
the payment in grievance cases of back pay by covered Federal government
entities:
"An agency shall take the actions required
by an arbitrator's final award. The award may include the payment
of back pay (as provided in section 5596 of this title)." 5 U.
S. C. 7122(b)
When Congress enacted the CAA in 1995, it expressly
extended the rights, protections, and responsibilities contained
in Section 7122 of the FSLMRS to AOC and its employees. (See, Section
220(a) of the CAA, 2 U. S. C. 1351(a).) By doing so, Congress made
its intention clear to subject the employing offices to back pay
obligations in the same manner as the Federal agencies covered by
the FSLMRS and the Back Pay Act, and thereby effectively and unambiguously
waived AOC's immunity. There was, therefore, no need to amend the
Back Pay Act to accomplish an effective waiver of sovereign immunity.
Thus, we conclude, the CAA provides that AOC
employees are entitled to obtain back pay and related relief in
negotiated grievance procedures. However, the question remains as
to the proper source of payment for such relief. According to AOC,
the only proper source for such monetary relief is the U. S. Treasury
account established in Section 415(a). According to the Union, however,
the employing office may properly be required to pay such sums from
its own appropriated funds pursuant to Section 415(b). This dispute
presents the Board with an important issue of first impression:
is an arbitrator's award or settlement providing back pay or other
make-whole relief in a contract grievance one of those "awards and
settlements" which must be satisfied only from the Section 415(a)
U. S. Treasury account?
The parties have not cited and we have not found
any judicial or administrative precedent. Our task then is to discern,
as best we can, what Congress intended, as evidenced by the text
and structure of the CAA itself, and its legislative history.
Section 415(a) provides that, with certain inapplicable
exceptions, "only funds which are appropriated to an account of
the Office in the Treasury of the United States for the payment
of awards and settlements may be used for the payment of awards
and settlements under this Act." 2 U. S. C. 1415(a) (emphasis
supplied). It is argued that an arbitration award or grievance settlement
in a negotiated grievance procedure does not fit this description,
even though it is the CAA (" this Act") that imposes upon AOC and
other covered entities the duty to establish a negotiated grievance
procedure including binding arbitration. See 5 U. S. C. Section
7121, as applied by Section 220 (a)(1) of the CAA. The Union contends
that the phrase "awards and settlements under this Act" applies
only to those awards and settlements resolving violations of the
labor and employment statutes incorporated in the CAA. Given the
important and well-established distinction between contractual rights
and statutory rights under the FSLMRS, and in labor-management law
generally, there is some basis for an interpretation of Section
415(a) that would differentiate between remedies for breach of contract
and remedies for statutory violations.
Although awards and settlements in negotiated
grievance procedures are not expressly covered under Section 415(b)
of the CAA, 2 U. S. C. 1415(b), the Union proposes a broad interpretation
of Section 415(b), which authorizes appropriations for "administrative,
personnel, and similar expenses of employing offices which are needed
to comply with this Act." The quoted phrase in Section 415 (b) is,
indeed, susceptible to different meanings. Viewed out of context,
it might well be read to embrace back pay for any employees who
were paid less than their bargaining agreement--as interpreted by
an arbitrator--actually required. But we cannot adopt this broad
interpretation of Section 415(b).
First, we note that Section 415(b) appears as
one of several related subsections, which were intended to be read
together. Section 415(a), fairly read, supports a narrow reading
of Section 415(b) because it purports to govern all awards and settlements:
" ... only [Section 415(a)] funds... may be used for the payment..."
(emphasis supplied). Moreover, Section 415(a) prohibits the use
of its fund for awards and settlements involving certain specified
legislative entities (e.g., the General Accounting Office) or to
correct violation of certain substantive provisions of the CAA (e.g.,
Section 215, regarding occupational safety and health). If Congress
had intended to preclude Section 415(a) from being used to satisfy
arbitration awards, it might therefore have been expected to express
this exclusion as well.
Finally, we note that the legislative history
of Section 415(b) also supports a narrower reading than the Union
proposes. The following discussion of Section 415(b) appears in
the section-by-section analysis of the Senate version of the bill
(S. 2) that ultimately became the CAA which was introduced into
the Congressional Record by Senators Grassley and Lieberman, sponsor
and co-sponsor of the bill, respectively:
Subsection (b) provides that, except as provided
in subsection (c), there are authorized appropriations of such
sums as may be necessary for administrative, personnel and similar
expenses of employing offices which are needed to comply with
this Act. These expenses could be such items as funding management
side labor negotiations under Section 220. These expenses are
costs of adhering to the Act, but not costs of complying with
adjudicative decisions remediating violations, which are addressed
in Section 415.
141 Cong. Rec. S621-02 (January 9, 1995).
In our view, these remarks reveal that the true
function of Section 415(b) is to deal with certain on-going employer
compliance expenses which are unrelated to the costs of complying
with particular judgments and awards, such as the costs attributable
to hiring more employees to perform the labor relations functions
required by enactment of the CAA.
Since the Union's disputed contract proposal
clearly would impose responsibility upon AOC to pay a back pay award
or settlement from its own appropriated funds under certain circumstances,
and since Section 415(a), as we have construed it, requires payment
of such awards and settlements from the OOC account at the U. S.
Treasury, the disputed proposal is, to that extent, inconsistent
with Federal law. Accordingly, it is nonnegotiable.3
For the reasons set forth above, the Union's
petition/ appeal is denied.
IT IS SO ORDERED
Issued, Washington, D. C., January 29, 2001.
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