18:0659(78)CA - OPM and NFFE, Independent -- 1985 FLRAdec CA



[ v18 p659 ]
18:0659(78)CA
The decision of the Authority follows:


 18 FLRA No. 78
 
 OFFICE OF PERSONNEL MANAGEMENT 
 Respondent 
 
 and 
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, INDEPENDENT 
 Charging Party
 
                                            Case No. 3-CA-20201
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits, and briefs submitted by the
 Respondent, Office of Personnel Management, the National Federation of
 Federal Employees, Independent (the Charging Party) and the General
 Counsel, /1/ the Authority finds:
 
    The complaint herein alleges that in promulgating FPM Basic
 Installment 272, and thereby changing the Respondent's practice of
 according the full amount of statutory pay increases to special salary
 rate employees, the Respondent failed to consult with the Union, as
 required by the provisions of section 7117(d), /2/ in violation of
 section 7116(a)(1), (5) and (8) of the Statute.  /3/ Thus, the sole
 issue presented by the complaint is whether the Respondent's acts, as
 described more fully below, were in derogation of its obligation to
 consult with the Charging Party pursuant to section 7117(d) of the
 Statute.
 
    The stipulated facts show that since January 11, 1979, the Union has
 been granted consultation rights pursuant to section 7117(d) of the
 Statute as to Government-wide rules and regulations issued by Respondent
 effecting any substantive change in any condition of employment.
 
    Section 5303 of title 5 of the United States Code provides in
 pertinent part that the President or "such agency as he may designate"
 is empowered to establish a special salary rate program which applies to
 Federal agencies and departments which experience difficulty in
 recruiting and retaining well-qualified individuals in various positions
 because of higher pay rates connected with those positions in private
 enterprise.  /4/ It further provides that special salary rates "may be
 revised from time to time by the President or such agency as he may
 designate," and that these "revisions have the force and effect of
 statute."
 
    Since 1962, the Respondent and its predecessor, the Civil Service
 Commission, have been designated under executive orders as the
 President's agents to establish and administer the special salary rate
 program and to review each special rate, at least once a year on an
 individual basis, to determine what adjustments, if any, are warranted.
 In this connection, the parties stipulated that, "(u)nder Section 303 of
 Executive Order 11721, the Office of Personnel Management reviews each
 special rate schedule at least once a year to determine what, if any,
 adjustment is warranted." /5/ Also since 1962, regulations have existed,
 first promulgated by the Civil Service Commission, which further
 describe the special salary rate program established under 5 U.S.C.
 5303.  With regard to pay increases for positions covered by the
 program, 5 CFR 530.307 provided as follows:  /6/
 
          Sec. 530.307 Effect of statutory pay increase.
 
          (a) A statutory revision of the pay schedule of the pay system
       for which special rates are authorized under section 5303 of title
       5, United States Code, automatically changes the special minimum
       rate (if more than the minimum rate for the new pay schedule for
       the grade or level concerned) to the nearest rate in the new pay
       schedule which does not result in a decrease and the other special
       rates for the special rate range are changed to similar rates in
       the new schedule adjusted on the basis of the new special minimum
       rate.
 
          (b) When an employee was receiving a special rate immediately
       before the effective date of a statutory pay increase, he shall
       receive on that effective date the rate of basic pay for:
 
          (1) The numerical rank in the new special rate range for his
       grade or level that corresponds with the numerical rank of the
       special rate he was receiving immediately before that effective
       date;  or
 
          (2) If there is no new special rate range, the numerical rank
       in the new statutory pay schedule for his grade or level that
       corresponds with the numerical rank of the special rate he was
       receiving immediately before that effective date.
 
    The parties stipulated that on October 22, 1981, the Respondent
 issued Federal Personnel Manual (FPM) Basic Installment 272.  /7/ Among
 other things, it restated the requirement of OPM regulation 5 CFR
 530.307(a) authorizing all agencies employing employees at special
 salary rates to adjust such employees' rates, in accordance with the
 1981 increases in the General Schedule, to the nearest rate in the
 revised General Schedule which would not result in a loss of pay for the
 special salary rate employees.  The parties stipulated that the
 Respondent did not notify the Union or provide it an opportunity to
 consult prior to the issuance of the FPM Installment.  The stipulated
 record also indicates that from 1970 to 1980 all employees receiving
 special salary rates were afforded the full amount of the statutory
 increase granted to employees under the General Schedule.  In 1981,
 employees in 36 special rate classifications were increased by an amount
 equivalent to the General Schedule increase, employees in 20
 classifications received more than the general pay increase and
 employees in 76 classifications received less than the general pay
 increase.  All of these employees experienced an increase in
 compensation.
 
    The General Counsel alleges that FPM Basic Installment 272 is a
 Government-wide rule or regulation, and by its issuance the Respondent
 altered a ten-year practice of according the full amount of statutory
 salary increases to special salary rate employees, thereby effecting a
 substantive change in a condition of employment without notifying or
 affording the Union the opportunity to consult prior thereto as required
 by section 7117(d) in violation of section 7116(a)(1), (5) and (8) of
 the Statute.  Essentially, the Respondent contends that it was not
 required under section 7117(d) to consult prior to issuance of FPM Basic
 Installment because, among other things, it did not effect a change in a
 condition of employment.
 
    In order to sustain the burden of proof that Respondent's failure to
 consult violated the Statute, the General Counsel would have to show,
 inter alia, that Respondent's issuance of FPM Basic Installment 272
 effected a substantive change in a condition of employment.  The
 Authority's review of the entire record in this case leads to the
 conclusion that such burden has not been met because the General Counsel
 has not established that issuance of the aforementioned FPM Basic
 Installment effected such a change.
 
    The record shows that the Respondent each year reviewed special
 salary rate authorizations to determine whether special salary rate
 employees would be afforded the full amount of statutory pay increases
 granted to General Schedule employees, and in each of the years from
 1970 to 1980, OPM and its predecessor, the Civil Service Commission,
 concluded, pursuant to its statutory authority, that there was
 justification for increasing the pay of special salary rate employees by
 an amount equivalent to the General Schedule pay adjustment.
 
    In examining the provisions of the version of 5 CFR 530.307 which was
 in effect at all times material herein, and FPM Basic Installment 272,
 the Authority finds that 5 CFR 530.307(a) provided, as here relevant,
 that where there was a statutory revision in the pay schedule which
 affected the pay system for which special salary rates are authorized
 under 5 U.S.C. 5303, there was an automatic change in the special
 minimum rate to the nearest rate in the new pay schedule which did not
 result in a decrease of pay.  The FPM Basic Installment 272 essentially
 contains a restatement of this provision of 5 CFR 530.307(a).
 Therefore, the Authority finds that issuance of FPM Basic Installment
 272 in 1981 did not alter such provisions and hence did not effect a
 substantive change in conditions of employment, as alleged, so as to
 give rise to a duty to consult under section 7117(d) of the Statute.
 Rather, both documents reference the same type of pay adjustment for
 special salary rate employees.  As previously noted, the General Counsel
 alleges that issuance of FPM Basic Installment 272 altered a ten-year
 practice of according the full amount of statutory salary increases to
 special salary rate employees.  The Authority finds that such a
 conclusion cannot be sustained.  Thus, as indicated above, and
 consistent with the provisions of 5 CFR 530.307, there was a practice of
 reviewing each special rate authorization, at least annually, to
 determine what adjustment, if any, was warranted.  In each of the years
 from 1970 to 1980, the review process resulted in a determination that
 the full amount of the statutory increase for General Schedule employees
 would be granted to special salary rate employees.  In 1981, the review
 process resulted in a different determination.  Issuance of FPM Basic
 Installment 272 has not been shown to have changed this practice of
 independently reviewing at least on an annual basis whether pay
 adjustments for the special salary rate schedule were warranted.
 Indeed, as previously noted, the provisions of FPM Basic Installment 272
 essentially constitute a restatement of 5 CFR 530.307(a).
 
    Based on the foregoing, the Authority finds that the General Counsel
 has not established that the Respondent's failure to consult with the
 Union concerning the issuance of FPM Basic Installment 272 constituted a
 violation of section 7116(a)(1),(5) and (8) of the Statute.  Therefore,
 the Authority shall order that the complaint be dismissed in its
 entirety.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20201 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 21, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel and the Charging Party moved that the
 Respondent's "(Corrected) Brief for the Respondent" be stricken on the
 grounds that it constitutes a reply brief unauthorized by the
 Authority's Rules and Regulations and was untimely filed.  The General
 Counsel also moved to strike portions from the Respondent's earlier
 brief on the basis that facts set forth therein were not contained in
 the stipulation.  Since the Respondent's "(Corrected) Brief for the
 Respondent" was untimely filed, it has not been considered herein.
 Further, in respect to the General Counsel's motion to strike portions
 of Respondent's earlier brief, the Authority has, of course, considered
 only facts contained in the stipulation, and therefore the motion to
 strike is denied.
 
 
    /2/ Section 7117(d) of the Statute provides in pertinent part:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (d)(1) A labor organization which is the exclusive
       representative of a substantial number of employees, determined in
       accordance with criteria prescribed by the Authority, shall be
       granted consultation rights by any agency with respect to any
       Government-wide rule or regulation issued by the agency effecting
       any substantive change in any condition of employment . . . .
 
          (2) A labor organization having consultation rights under
       paragraph (1) of this subsection shall--
 
          (A) be informed of any substantive change in conditions of
       employment proposed by the agency, and
 
          (B) shall be permitted reasonable time to present its views and
       recommendations regarding the changes.
 
 
    /3/ Section 7116(a)(1), (5) and (8) of the Statute provide:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                  * * * *
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /4/ 5 U.S.C. 5303 provides as follows:
 
          Sec. 5303.  Higher minimum rates;  Presidential authority
 
          (a) When the President finds that the pay rates in private
       enterprise for one or more occupations in one or more areas or
       locations are so substantially above the pay rates of statutory
       pay schedules as to handicap significantly the Government's
       recruitment or retention of well-qualified individuals in
       positions paid under--
 
          (1) section 5332 of this title;
 
          (2) Repealed. Pub. L. 91-375, Sec. 6(c)(10). Aug. 12, 1970, 84
       Stat. 776;
 
          (3) the pay scales for physicians, dentists, and nurses in the
       Department of Medicine and Surgery, Veterans' Administration under
       chapter 73 of title 38;  or
 
          (4) section 403 of the Foreign Service Act of 1980;
 
          he may establish for the areas or locations higher minimum
       rates of basic pay for one or more grades or levels, occupational
       groups, series, classes, or subdivisions thereof, and may make
       corresponding increases in all step rates of the pay range for
       each such grade or level.  However, a minimum rate so established
       may not exceed the maximum pay rate prescribed by statute for the
       grade or level.  The President may authorize the exercise of the
       authority conferred on him by this section by the Office of
       Personnel Management or, in the case of individuals not subject to
       the provisions of this title governing appointment in the
       competitive service, by such other agency as he may designate.
 
          (b) Within the limitations of subsection (a) of this section,
       rates of basic pay established under that subsection may be
       revised from time to time by the President or by such agency as he
       may designate.  The actions and revisions have the force and
       effect