OFFICE OF COMPLIANCE
LA 200, John Adams Building, 100 Second
Street, S.E.
Washington, D.C. 20540-1999
___________________________
Plumbers Local 5, United
Association of Journeymen
and Apprentices of the Plumbing
and Pipe Fitting Industry of
the United States and Canada
Petitioner,
Case Nos. 02-LMR-03
and 02-LMR-05
Office of the Architect
of the Capitol,
Employing Office
___________________________
___________________________
International Brotherhood of
Electrical Workers, Local 26
Petitioner,
Case Nos. 02-LMR-04
02-LMR-06
Office of the Architect Date: October 7, 2002
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
CONSOLIDATED DECISION OF
THE BOARD OF DIRECTORS ON NEGOTIABILITY ISSUES
I. Introduction
The petitions for review in each of these four
cases (1) come before the Board of
Directors of the Office of Compliance ("the Board") pursuant to
§ 7105(a)(2)(E) of the Federal Service Labor Management Relations
Statute ("FSLMRS"), 5 U.S.C. § 7105(a)(2)(E), as applied by
§ 220(c)(1) of the Congressional Accountability Act ("CAA")
2 U.S.C. § 1351(c)(1). Upon careful consideration of the entire
record, including the parties' contentions,
(2) the Board has determined, for reasons set forth below,
that the Unions' proposals contain non-negotiable elements.
II. Statement of the Cases
The Employing Office's ("the Architect") Construction
Management Division utilizes members of the Plumbers' and Electrical
Workers' bargaining units to perform construction work at the Capitol
Hill Campus. The Architect, Plumbers Union and Electrical Workers
Union are negotiating their initial collective bargaining agreement
and this consolidated negotiability dispute arose in that context.
The underlying Union proposals (02-LMR- 03, 02-LMR-04)
would require the Architect, on behalf of each individual bargaining
unit employee, to make pre-tax fringe benefit contributions into
the Unions' employee benefit trust funds (e.g., health & life
insurance, retirement, training, savings). When the Architect declared
those proposals to be non-negotiable the Unions made interim implementation
proposals, ostensibly to maintain the bargaining unit employees'
pay status quo ante until the Board decided the underlying
negotiability disputes. The Architect also declared those proposals
to be non-negotiable and the Unions duly filed petitions for review
with the Board (02-LMR-05, 02 LMR-06).
Earlier in the bargaining process the Board decided
the parties' negotiability dispute arising from the Unions' proposals
for holiday premium pay. (3) The
Board determined that while the Architect exercised his discretion,
under 5 U.S.C. § 5349, to adopt Labor Department wage
determinations under the Davis-Bacon Act, that "Davis-Bacon is not
a straitjacket that precludes any bargaining over holiday premium
pay" nor does it foreclose these parties "from negotiating other
components of pay independent of Davis-Bacon". See Case No. 01-LMR-01,
at page 16. These Board decisions recognized, as a general matter,
the negotiability of pay and fringe benefit issues between the Architect
and the Plumbers and Electrical Workers Unions. The Board specifically
held, in this regard, as follows:
Pay is a quintessential condition of employment
that is subject to bargaining under the FSLMRS, as the Supreme
Court has so affirmed in Fort Stewart Schools v. FLRA,
495 U.S. 641 (1990). However, a pay proposal will be found nonnegotiable
if it falls within one of the above statutory exceptions [ i.e.,
matters that concern conditions of employment, but are inconsistent
with law or regulation, See 5 U.S.C. § 7117(a)], which
is often found to be the case because the subject of pay and benefits
is so widely settled by federal law [footnote omitted]. If a pay
proposal involves a matter for which a governing statute leaves
no discretion to an employing agency, the matter is deemed
"specifically provided for by Federal statute" and therefore is
excepted from bargaining. BEP, 50 FLRA at 682. Similarly,
if a governing statute vests an employing agency with sole
and exclusive discretion over a matter, a proposal that
subjects the exercise of that discretion to collective bargaining
would e "inconsistent with law." [citation omitted]. Where a proposal
implicates a pay-specific statute or regulation, a careful examination
of the structure, purpose and operation of the statute or regulation
in question is typically required.
See Case No. 01-LMR-01, at pp., 10-11.
Accordingly, it is the Board's task to determine
whether the Unions' proposals are consistent with law or regulation,
including reserved management rights under the FSLMRS and the Architect's
specific statutory employment prerogatives.
III. Statutory Genesis for the Unions'
Proposals
The Unions and the Architect all contend that
Section 133 of the Legislative Branch Fiscal Year 2002 Appropriations
Act, (Public Law 107-68) ("Section 133") is of controlling significance
to the resolution of these cases. Each party submits that Section
133 supports its respective position. Therefore, it will be
useful to incorporate that statutory provision into this decision.
SEC. 133. (a) LIMITATION- (1) Except as provided
in paragraph (2), none of the funds provided by this Act or any
other Act may be used by the Architect of the Capitol after the
expiration of the 90-day period which begins on the date of the
enactment of this Act to employ any individual as a temporary
employee within a category of temporary employment which does
not provide employees with the same eligibility for life insurance,
health insurance, retirement, and other benefits which is provided
to temporary employees who are hired for a period exceeding 1
year in length.
(2) Paragraph (1) shall not apply with respect
to any of the following individuals:
(A) An individual who is employed under the
Architect of the Capitol Summer Employment Program.
(B) An individual who is hired for a total
of 120 days or less during any 5-year period (excluding any days
in which the individual is employed under the Architect of the
Capitol Summer Employment Program).
(C) An individual employed by the Architect
of the Capitol as a temporary employee as of the date of the enactment
of this Act who exercises in writing, not later than 90 days after
such date, an option offered by the Architect to remain under
the pay system (including benefits) provided for the individual
as of such date.
(D) An individual who becomes employed by the
Architect of the Capitol after the date of enactment of this Act
who exercises in writing, prior to the individual's employment,
an option offered by the Architect to receive pay and benefits
under an alternative system which does not provide the benefits
described in paragraph (1), except that under such an option the
Architect shall be required to provide the individual with the
benefits described in paragraph (1) as soon as the individual's
period of service as a temporary employee exceeds 1 year in length.
(3) Nothing in this subsection may be construed
to require the Architect of the Capitol to provide duplicative
benefits for any employee.
(b) ALLOTMENT AND ASSIGNMENT OF PAY- (1) Section
5525 of title 5, United States Code, is amended by adding at the
end the following new sentence: "For purposes of this section,
the term 'agency' includes the Office of the Architect of the
Capitol.
(2) The amendment made by paragraph (1) shall
apply with respect to pay periods beginning on or after the date
of the enactment of this Act.
IV. Proposals in Dispute
A. Underlying Proposals
(4)
The Unions' proposals are essentially identical.
Each Union premised its proposal upon the Section 133 requirement
to provide covered employees with the same eligibility for life
insurance, health insurance, retirement, and other benefits that
are provided to temporary employees who are hired for a period exceeding
one year in length. The elements of those proposals determined to
be non-negotiable by the Architect are identified below:
Bargaining unit employees who become employed
(5) by the Employer after November 2001, and whose period
of service as a temporary employee does not exceed one year in
length are eligible for the same life insurance, health insurance,
retirement, and other benefits that are provided to temporary
employees of the Employer who are hired for a period exceeding
one year of length.
Bargaining unit employees hereby exercise the
option (6) to receive the alternative
benefits below instead of the federal benefits described above.
Commencing on certain dates the Architect agrees
to pay identified rates for each hour worked by bargaining unit
employees to specified employee benefit Union trust funds.
(7)
Pursuant to the Internal Revenue Code the
Architect shall not treat its contributions to the Union employee
benefit trust funds as employee income subject to contributions
or taxes under federal income tax withholding, Social Security
Insurance, or Unemployment Compensation Insurance.
(8)
B. Interim Implementation of Section 133
Proposals
Again, the Unions' proposals are essentially
identical. The elements of those proposals determined non-negotiable
by the Architect are identified below:
Pending the Board's decision on the underlying
negotiability dispute, bargaining unit employees hired on or before
November 12, 2001, shall continue to be paid the Washington, D.C.
Metropolitan Area prevailing wage rate (including fringe benefit
component).
The Unions elect, on behalf of bargaining unit
employees hired after November 12, 2001, to receive the prevailing
wage rate for a period not to exceed one year. After completing
one year of service those employees shall be eligible to participate
in the Federal Employee Retirement System, Federal life insurance,
medical insurance and other benefits afforded employees of the Architect
hired for a period exceeding one year of length, subject to standard
employee deductions for the costs of the benefits.
(9)
V. Positions of the Parties, Analysis and
Conclusions
A. Underlying
Proposals
(10)
1. Architect's authority to make direct
fringe benefit payments to the Unions' Trust Funds
Architect's Position
The Architect submits that it lacks authority
to make direct payments to union trust funds and asserts that end
may only be accomplished through voluntary individual employee signed
allotments and assignments of pay. The Architect relies upon two
Comptroller General decisions specifically addressed to the Architect.
Unions' Position
The Unions contend that voluntary employee allotments
are not relevant to their proposals, which instead contemplate direct
Architect payments to union trust funds and not deductions from
individual employee wages. The Unions assert that the cited Comptroller
General decisions do not address the legality of the Architect making
employer contribution to fringe benefit funds.
ANALYSIS AND CONCLUSION
The Comptroller General is charged under 31
U.S.C. § 3529 with issuing binding decisions to disbursing
or certifying officials and heads of agencies on matters involving
the expenditure of appropriated funds, in such situations such as
this.
In 1977, the Comptroller General was requested
to decide, inter alia, whether the Architect had authority
to make fringe benefit contributions for its temporary construction
craft employees directly into employee benefit trust funds administered
by their labor organizations. The Comptroller General concluded
that the Architect lacked legal authority to make such direct payments
to the union trust funds, under 31 U.S.C. § 492(A)(1970), because
Congress had not extended that authority to the Architect. The Comptroller
General also noted that the Architect could not make such payments
through individual employee allotments or assignments because the
allotment statute (5 U.S.C. § 5525) did not at that time encompass
the Architect. The Comptroller General concluded "we are unable
to advise the Architect to make fringe benefit contributions directly
to the trust funds.
Matter of: Architect of the Capitol Contributions
to Employee Benefit Trust Funds on Behalf of Temporary Employees,
October 13, 1977, Unpublished, 1977 WL 12008 (Comp. Gen.), B-189,533.
In 2001, in connection with the enactment of
Section 133 of the Legislative Fiscal Year 2002 Appropriations
Act, the Architect sought the Comptroller General's determination
of its legal authority to make direct payments to union trust funds
on behalf of its temporary employees. The Comptroller General, acknowledging
that Section 133 brought the Architect under the coverage
of the employee allotment statute, nevertheless concluded that the
Architect could only make such payments to union trust funds on
behalf of temporary employees who individually elected to make allotments
and assignments from their pay to the trust funds.
Comptroller General Decision B-289496, 12/21/2001.
The Comptroller General exercised his statutory
authority in determining that the Architect lacked legal authority
to make direct payments to union trust funds absent individual employee
authorizing assignments or allotments. The Comptroller General's
decisions establish that the direct payment provision of the Unions'
proposal conflicts with Section 133 and 31 U.S.C. §
492(A)(1970). Inasmuch as these binding decisions preclude the
Architect's disbursing officers from making payments directly into
the Unions' trust funds, we find that portion of the proposal to
be non-negotiable.
2. Unions' proposal for the unions to
elect, on behalf of bargaining unit employees, that they receive
alternative benefits provided by the Architect in lieu of Federal
fringe benefits
Architect's Position
The Architect contends that the Unions may not
elect on behalf of bargaining unit employees whether, as individuals,
they wish to select an alternative compensation system [i.e., continue
to be paid as prevailing rate employees] or, instead, whether they
wish to receive eligibility for federal fringe benefits. The Architect
maintains that those decisions require individual elections under
Section 133(a)(2)(c) of the Legislative Fiscal Year 2002 Appropriations
Act.
Unions' Position
The Unions argue that Section 133 is silent
on whether individual employees must make an election and that the
details of an election are irrelevant to the Congressional policy,
articulated by Section 133, that the Architect provide its
temporary employees with eligibility for fringe benefits. The Unions,
citing statutory and case law authority for its entitlement to act
on behalf of bargaining unit employees, state that attempts of the
Architect to deal individually with those employees on the election
of benefits issue would subvert its role of exclusive bargaining
representative. The Unions assert that nothing in Section 133
suggests that Congress intended to overrule those basic
notions of collective bargaining, and they suggest that Section
133's individual election provision solely relates to unrepresented
employees.
ANALYSIS AND CONCLUSION
Section 133(a)(2)(C) & (D) essentially
exempts from the Architect's obligation to provide temporary employees
with federal fringe benefits:
[for current employees] An individual . . .
who exercises in writing . . . an option offered by the Architect
to remain under the pay system (including benefits) provided for
as of the date of the enactment of this Act.
[for subsequently hired employees] An individual
who becomes employed by the Architect after the date of the enactment
of this Act who exercises in writing, prior to the individual's
employment, an option offered by the Architect to receive pay
and benefits under an alternative system which does not provide
the benefits described in paragraph (1), except that under such
an option the Architect shall be required to provide the individual
with the benefits described in paragraph (1) as soon as the individual's
period of service as a temporary employee exceeds 1 year in length.
In our view, the clear import of this statutory
benefits election language affords individual employees the opportunity
to make a timely written election. The particularized nature of
this election is further emphasized by Section 133 (b), which
introduced to the Architect authority to permit its employees to
make voluntary allotments and assignments of their pay. Such does
not contemplate an exclusive bargaining representative making that
election on behalf of the individual bargaining unit members.
While, as the Unions contend, employing offices
must negotiate with their employees through their exclusive bargaining
representatives, this requirement hinges upon whether a matter constitutes
for the employer a discretionary condition of employment. In addition
to Section 133, there are Federal Sector statutes and government-wide
regulations that permit individual employees, not their exclusive
bargaining representatives, to select their fringe benefits. e.g.,
Federal Employee Health Care Insurance (5 U.S.C. § 8905); and
Federal Employee Group Life Insurance (5 U.S.C. § 8702).
Federal employers, like the Architect, are not free to negotiate
over a union proposal, for example, which would permit a union to
select for bargaining unit employees the choices reserved to individual
employees under 5 U.S.C. §§ 8702 and 8905. Yet, the sense
of the Unions' arguments in this matter would imply that collective
bargaining agents could negotiate such elections.
The cases cited by the Unions in support of their
position are inapposite. Those cases involve federal non-appropriated
fund entities not governed by specific government fringe benefit
legislation and normal federal fiscal limitations. Consequently,
any such bargaining unit fringe benefit entitlement would be the
product of collective bargaining. See United States Dep't of
the Navy, Navy Exch., 37 FLRA. 320 (1990); United States
Dep't of the Air Force, Air Logistics Ctr., 36 FLRA. 984 (1990);
United States Dep't of Defense, Army and Air Force Exch. Service,
38 FLRA. 282 (1990); Department of the Navy, 25 FLRA.
832 (1987); Dep't of the Air Force, Maxwell Air Force Base,
24 FLRA. 475 (1986); Dep't of the Air Force, Eglin Air Force
Base, 24 FLRA. 377 (1986).
If the subject matter of a proposal is already
specifically covered by statute it is non-negotiable. 5 U.S.C.
§ 7103(a)(14)(c). Maritime Metal Trades Council
and Panama Canal Comm'n, 17 FLRA 890 (1985). A matter is specifically
provided for within the meaning of 5 U.S.C. § 7103(a)(14)
only to the extent that the governing statute leaves no discretion
to the agency. Department of Justice, INS, and AFGE National
Border Patrol Council, 55 FLRA 892, 897 (1999); International
Association of Machinists and Aerospace Workers, Franklin Lodge
No. 2135, et al. And U.S. Dep't of Treasury, Bureau of Printing
and Engraving, 50 FLRA 677, 681-85 (1995).
Section 133 does not afford the Architect
the discretion, as contemplated by the Unions' proposals, to deny
bargaining unit employees their statutory right, as individuals,
to elect their choice of compensation program. Accordingly, we find
that portion of the Unions' proposal to be non-negotiable.
3. Architect's Authority to make pretax
payments to the Union Trust Funds
Architect's Position
The Architect relies upon the Comptroller General's
December 21, 2001, decision informing the Architect that it could
not treat such contributions as pretax contributions without specific
authorization in statute or regulation. The Architect notes that
the resolution of this issue is presently before the United States
Office of Personnel Management ('OPM"), which is the authority in
this area.
Unions' Position
The Unions submit that the Employee Retirement
Income Security Act ("ERISA") and the Internal Revenue Code ("IRC")
permit employers to make pretax contributions to union fringe benefit
funds in accordance with collective bargaining agreements. The Unions
support their position with references to ERISA and IRC provisions,
implementing regulations, and a Revenue Ruling.
ANALYSIS AND CONCLUSION
The Architect requested the Comptroller General's
decision regarding the Architect's authority to make the proposed
pretax contributions. The Comptroller General concluded: "With respect
to your authority to make any particular fringe benefit allotment
before deducting FICA and federal income taxes, you should consult
with the Internal Revenue Service". The Comptroller General essentially
determined that the Architect could not treat such contributions
on a pretax basis without pre-approval by the appropriate authority.
Comptroller General Decision B-289496 (December 21, 2001).
The Architect's letter, dated February 7, 2002
raised this question with the Internal Revenue Service. IRS responded,
by letter dated April 22, 2002. IRS indicated that OPM had jurisdiction
over the question and referred the Architect's letter to OPM for
decision. According to the record, OPM has not responded as of this
time.
In essence, the Architect's position is that
it lacks authority to agree that its proposed contributions to the
Unions' trust funds would be on a pretax basis. The Comptroller
General's constraining decision, and the IRS Commissioner's response
letter, confirm the Architect's view that it lacks the independent
authority that the Unions' proposals contemplate. This issue presents
the situation where another agency (apparently OPM) has control
over the working condition that the Unions are seeking to negotiate
about.
This proposal goes beyond requiring the Architect
to negotiate over making recommendations to another agency possessing
actual control over the subject working conditions. See Library
of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Accordingly,
we find that this portion of the proposal does not concern a negotiable
working condition because the adoption of the proposal would be
outside the scope of the Architect's authority.
4. Whether the Unions' proposal conflicts
with the special statutory authority of the Architect in Employment
matters?
Architect's Position
The Architect relies upon its employment authority
derived from various statutory provisions in the late 19th
and early 20th Centuries (40 U.S.C. §§
167, 174(c) & 175). The Architect contends that his foregoing
statutory authorities vest him with sole and exclusive authority
in the appointment and direction of Architect of the Capitol employees,
subject to the control of the Speaker of the House, Senate Committee
on Rules and Administration (on matters of general policy), and
regulation by the House Office Building Commission. The Architect
submits that its statutory prerogatives were not diminished by the
relevant pay setting legislation or by enactment of the Congressional
Accountability Act. The Architect concludes that it is within its
sole and exclusive authority to decide how to implement the appointment
and employment-related provisions of Section 133 of the Legislative
Fiscal Year 2002 Appropriations Act and that the Unions' proposals
are non-negotiable for infringing upon that authority.
Unions' Position
The Unions assert that 40 U.S.C. §§
167, 174(c) & 175 parallel for the Architect those management
rights also applied to the Congressional Accountability Act by the
Federal Service Labor Management Relations Statute. However, none
of these provisions is preclusive or specifically provide for the
setting of wages and/or wage-related benefits of the Architect's
employees. The Unions, citing the Board's decisions involving these
same parties (01-LMR-01, 01-LMR-02, supra), submit that wages
for bargaining unit employees must be set in accordance with 5 U.S.C
§ 5349(a), irrespective of how the Architect appoints
or classifies its employees. The Unions conclude that the statutes
relied upon by the Architect do not meet the standards set down
by FLRA case law for determining whether an agency has "sole and
exclusive" authority over a personnel matter.
ANALYSIS AND CONCLUSION
For a matter to be non-negotiable as falling
within the exclusive authority of the agency head, the authorizing
statute must refer to the unfettered agency head discretion, for
example, by excluding or limiting the application of other laws.
See Department of Veterans Affairs, Veterans Canteen Service,
Lexington and NAGE Local R5, 44 FLRA 162 (1992); Department
of Treasury, Office of Thrift Supervision, 47 FLRA 884 (1993),
aff'd 46 F.3d 73 (D.C. Cir. 1995); and Colorado Nurses Association
v. Federal Labor Relations Authority, et al., 851 F.2d 1486
(D.C. Cir. 1988).
The Architect's referenced statutory authorities
do not establish that Congress afforded it unfettered discretion
in the employment area. Instead, our review of those statutes, as
in Veterans Canteen Service, supra, discloses an intent to
imbue the Architect with described personnel- management authority
as is appropriate to an agency head. Therefore, those statutes cannot
reasonably be construed to abrogate the Architect's bargaining obligations
under the FSLMRS, as applied by Section 220 of the Congressional
Accountability Act.
5. Whether the Unions' proposals conflict
with the Architect's Management Rights under 5 U.S.C.
§ 7106?
Architect's Position
The Architect contends that the Unions' proposal
impermissibly implicates certain management rights under 5 U.S.C.
§7106(a), i.e., right to hire and retain employees and
to determine the personnel by whom agency operations will be conducted;
and 5 U.S.C.
§ 7106(b)(1), essentially management's
right to establish its organizational staffing patterns. The Architect
cites cases insulating management's prerogative against proposals
to negotiate over whether to appoint and utilize temporary employees
or to convert employees from one employment status to another. The
Architect argues that the Unions' proposal would create a new category
of employment with its own system of benefits and require the Architect
to convert employees to that system and compensate them accordingly.
The Architect also views the proposal as requiring it to negotiate
with the unions as a precondition to exercising its right to hire
and retain employees.
Unions' Position
Under FLRA case law the Architect has the burden
of establishing that a proposal is inconsistent with law, rule or
regulation. The proposal does not implicate any of the management
rights that the Architect invokes. Nothing in the proposal places
any limitation on the Architect's ability to hire or retain employees
as the Architect is entitled to do under 5 U.S.C. § 7106(a)(2).
Moreover, the proposal does not involve the determination of "types"
of employment within the sense of 5 U.S.C. § 7106(b)(1),
nor does it concern staffing patterns or the allocation of employees.
Rather, the proposal simply provides that the employees, however
allocated or characterized by the Architect, will be paid the prevailing
rate in accordance with 5 U.S.C. § 5349.
ANALYSIS AND CONCLUSION
An agency must provide record evidence in support
of its non-negotiability determinations. AFGE, Nat'l Border
Patrol Council and Department of Justice, INS, U.S. Border Patrol,
Western Region, 39 FLRA 675 (1991).
The Unions' proposal does not require the Architect
to allocate between short-term, long-term temporary or any other
tenure status in its workforce. The proposal solely relates to the
compensation of employees whom the Architect has appointed to temporary
status. Accordingly, the proposal is not foreclosed by 5 U.S.C.
§ 7106(b)(1), which relates to the "numbers, types, and
grades of employees or positions assigned to any organizational
subdivision". NAGE Local RF-184 and VAMC Lexington, KY., 55
FLRA 549, 552 (1999).
The proposal does not impinge upon the Architect's
management rights under
5 U.S.C. § 7106(a) to hire
and retain employees and to determine the personnel by whom agency
operations will be conducted. The proposal does not in any manner
constrain the Architect as to what categories or types of employees
it may hire or retain to utilize to perform its operations. International
Federation of Professional Technical Engineers Local 49 and
U.S. Department of the Army, Army Corps of Engineers, South Pacific
Division, San Francisco, 52 FLRA 813 (1996). Again, the proposal
relates solely to compensation of those bargaining unit employees
whom the Architect, in its discretion, appoints or has appointed
as temporary employees. Nor does the proposal create a new category
of employment, as the Architect contends; it instead addresses the
compensation of the existing category of temporary employees.
Based upon the foregoing, we conclude that the
proposal does not violate the Architect's management rights under
5 U.S.C. §7106.
B. Interim Implementation of Section 133
Proposal
We conclude, under the rationale discussed above,
that the Unions' interim implementation proposal conflicts
with Section 133 of the Fiscal Year 2002 Legislative Appropriations
Act inasmuch as it would deny individual employees their statutory
right to elect in writing whether (1) they wished to be provided
eligibility for federal fringe benefits, or (2) that instead they
be compensated under an alternative system established by the Architect.
However, as also explicated above, the Architect's additional non-negotiability
bases (conflict with reserved management rights and the Architect's
statutory employment authorities) lack merit.
C. Conclusion
(11)
We have determined that each of the Unions' proposals
contains non-negotiable elements. The Unions did not seek to sever
parts of their proposals to permit the Board of Directors to decide
whether negotiable portions of the proposal could stand separately.
Local 32, AFGE v. FLRA, 774 F.2d 498 (D.C. Cir. 1985); NFFE
Local 1332 and Department of Army, Army Material Command, 47
FLRA 1357 (1993); and 5 C.F.R. § 2424.22(c)(2000).
VI. ORDER
The Unions' petitions for review are dismissed.
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing
Consolidated Decision of the Board of Directors on Negotiability
Issues were delivered by facsimile mail and by first class mail
by the undersigned on this 7th day of October, 2002,
upon the following:
Margaret Cox, Esq.
Associate General Counsel
Office of the General Counsel
Architect of the Capitol
Room H2-265A
Ford House Office Building
Washington, D.C. 20515
R. Richard Hopp, Esq.
O'Donoghue & O'Donoghue
4748 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Ellen O. Boardman, Esq.
O'Donoghue & O'Donoghue
4748 Wisconsin Avenue, N.W.
Washington, D.C. 20016
_____________________
For the Board
Jacqueline Yancey-Willis
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