American Federation of Government Employees, Local 1978 (Union) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada (Agency)

[ v56 p894 ]

56 FLRA No. 149

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1978
(Union)

and

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
LOWER COLORADO REGIONAL OFFICE
BOULDER CITY, NEVADA
(Agency)

0-NG-1986 REC
(51 FLRA 637 (1995)

_____

DECISION AND ORDER
ON RECONSIDERATION

September 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chair and Dale Cabaniss, Member.

I.     Statement of the Case

      This case is before the Authority, under section 2429.17 of the Authority's Regulations, pursuant to an Order Granting Motion for Reconsideration and Directing Additional Briefing with respect to Proposals 3 and 4 in 51 FLRA 637. [n1]  Proposal 3 provides pay retention for employees who are selected for an apprentice position. Proposal 4 provides pay retention for employees subject to a reduction-in-force (RIF).

      For the following reasons, we conclude that the proposals are not within the duty to bargain under the Statute and not preserved for bargaining under section 704 of the Civil Service Reform Act (CSRA) of 1978 (section 704). Accordingly, we dismiss the Union's petition for review.

II.     Background and Authority's Grant of the Agency's Motion for Reconsideration of the Decision in 51 FLRA 637

      The parties bargain terms and conditions of employment, including pay and pay practices, in accordance with section 9(b) of the Prevailing Rate Systems Act (PRSA), which is set forth at 5 U.S.C. § 5343 note (section 9(b)), and with section 704. [n2] 

      In American Federation of Government Employees, Local 3062 and U.S. Department of the Interior, National Park Service, Lake Mead National Recreation Area, Boulder City, Nevada, 51 FLRA 229 (1995) (Boulder City), the Authority clarified the framework for analyzing claims that a proposal is within the duty to bargain under section 704. Because section 704 is an exception to the Statute, the Authority first examines whether the proposal is within the duty to bargain under the Federal Service Labor-Management Relations Statute (the Statute) and, if it is not, thereafter considers whether it is preserved for bargaining under section 704. Id. at 231-37.

      The Authority applied the Boulder City framework to Proposals 3 and 4 in its initial decision in this case. American Federation of Government Employees, Local 1978 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 51 FLRA 637, 645-47 (1995) (Lower Colorado Regional Office). Because the Agency did not meet its burden of demonstrating that Proposals 3 and 4 were outside the duty to bargain under the Statute, the Authority concluded that the proposals were within the duty to bargain. The Authority found in this connection that the Agency had not demonstrated that the proposals were inconsistent with law or applicable regulation. The Authority noted that the Agency had not argued that employees covered by the proposals are not entitled to pay retention under 5 U.S.C. § 5363 (section 5363) and 5 C.F.R. Part 536 (Part 536), or that the proposals are inconsistent with those provisions. Id. at 646 n.11. [n3] 

      The Agency filed a motion for reconsideration as to Proposals 3 and 4, claiming that the Authority erred by failing to analyze whether employees subject to those proposals are entitled to pay retention under section 5363 and Part 536 before concluding that the proposals [ v56 p895 ] are within the duty to bargain. The Authority granted the Agency's motion for reconsideration and directed the parties to file briefs.

      The Authority's preliminary review of sections 5363 and 5365 led to the conclusion that although employees affected by Proposals 3 and 4 are not covered by section 5363, the Office of Personnel Management (OPM), under section 5365, has discretion to extend such coverage to those employees by regulation. The applicable regulations are set forth in Part 536. Those regulations provide for pay retention in various circumstances in which covered employees suffer a reduction in their basic rate of pay as a result of management action. Because Part 536 was promulgated by OPM to implement subchapter VI of chapter 53 of title 5 of the United States Code concerning grade and pay retention, which includes sections 5363 and 5365, the Authority sought an advisory opinion from OPM. OPM responded to our requests for clarification. The substance of OPM's response is set forth in the discussion below. Pursuant to section 2429.15(b) of the Authority's Regulations, both parties were served with copies of OPM's clarification and the Agency timely filed comments on that clarification. [n4] 

III.     Proposals

Proposal 3
When employees are selected for an apprentice position, their current rate will be frozen (if it is greater than the rate of the new position) until normal adjustment and/or step increase equal[s] or exceeds their normal rate.
Proposal 4
Employees subject to a Project reduction-in-force will retain their pay, and thereafter, he or she will receive 50 percent of the cents per hour increase of the position assigned until the rates equalize.

IV.     Positions of the Parties

A.     Agency

      According to the Agency, the pay retention provisions of section 5363 do not apply to employees affected by Proposals 3 and 4. For that reason, the Agency contends generally that: (1) Agency management has no discretion to provide pay retention under section 5363 and, thus, that pay retention is a matter specifically provided for by statute under section 7103(a)(14)(C) of the Statute; and (2) the proposals are inconsistent with law and Government-wide regulation within the meaning of section 7117(a)(1).

      With respect to section 7103(a)(14)(C), in particular, the Agency asserts that because sections 5361, 5363, and 5365 allow it no discretion as to pay retention for the subject employees, the proposals concern matters that are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C). The Agency also claims that "[s]ince there is no statute authorizing the expenditure of appropriated funds to pay or negotiate for retained pay," the Authority must find that the proposals are outside the duty to bargain under section 7117(a)(1). Agency Supplemental Brief at 12.

      As to sections 9(b) and 704, the Agency maintains that Proposals 3 and 4 are not preserved for bargaining under those sections because: (1) pay retention was not the subject of bargaining by the parties prior to August 19, 1972; and (2) pay retention is not currently a prevailing practice in the industry surveyed by the parties.

B.     Union  [n5] 

      The Union contends that Proposals 3 and 4 are not excepted from the duty to bargain under section 7103(a)(14)(C) because "[they] address a matter . . . that is generally provided for by law." Union Response at 27. According to the Union, under section 7103(a)(14)(C), "[t]he fact that [F]ederal law generally covers a matter does not stand as a bar to negotiation of a more specific aspect of such matter as long as a proposal . . . does not conflict with such law." Id.

      The Union also claims that the pay retention provisions of section 5363 and Part 536 apply to employees affected by Proposals 3 and 4 and, thus, that the proposals constitute a restatement of existing statutory or regulatory entitlement. See Union Brief in response to Authority Order Granting Reconsideration at 29-31. See also 5 C.F.R. § 536.104(a)(2) and (6) (cited regulations [ v56 p896 ] provide pay retention for employees whose rate of basic pay would otherwise be reduced as a result of a RIF or as a result of placement in an apprenticeship program). The Union claims, in addition, that Agency management has discretion under section 5365 and Part 536 to negotiate on pay retention for employees affected by Proposals 3 and 4. For these reasons, the Union contends that the proposals are not inconsistent with law and Government-wide regulation within the meaning of section 7117(a)(1).

      The Union states that the subject matter of Proposals 3 and 4 was negotiated by the parties prior to August 19, 1972. The Union states that pay retention in the circumstances specified in Proposals 3 and 4 is currently a prevailing practice in the relevant industry. Thus, the Union argues that even if employees affected by Proposals 3 and 4 are not entitled to pay retention under law and regulation, under sections 9(b) and 704 the proposals "are mandatory subjects of bargaining if they concern matters negotiated prior to August 19, 1972, and reflect prevailing rates and practices." Union Response at 4.

V.     Meaning of the Proposals

      Proposal 3 provides that the current pay rate of an employee who is selected for an apprentice position will be frozen, if it is greater than the pay rate of the new position, until normal pay adjustments exceed the frozen rate. Proposal 4 provides that employees who are subject to a RIF will retain their rate of pay and receive half of the pay increase for their assigned position until the previous rate and the current rate are equal. Both the Agency and the Union interpret the proposals as providing pay retention rights for employees in the circumstances specified therein. The Union's claim that the proposals reflect the requirements of existing OPM regulations comports with the wording of the proposals and is adopted for purposes of this decision.

VI.     Analysis and Conclusions

A.     Section 5363 Does Not Provide Pay Retention to Employees Affected by Proposals 3 and 4

      The first part of the Boulder City framework concerns whether a proposal is negotiable under the Statute or whether it is subject to any limitations on bargaining under the Statute. In this regard, generally speaking, expenditure of appropriated funds for a particular purpose is permitted only if there is statutory or regulatory authority for such expenditure. See, e.g., Downs v. Office of Personnel Management, 69 F.3d 1141, 1143 (Fed. Cir. 1995) ("The United States Constitution limits payments of monies from the Federal Treasury to those authorized by statute."), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 416 (1990). Proposals 3 and 4 require the Agency to pay employees who are subject to specified actions which otherwise would result in a reduction of pay, the rate of pay they received prior to those actions. The issue presented by these proposals, under the first part of the Boulder City framework, therefore, is whether there is statutory or regulatory authority for such pay retention for employees who are affected by Proposals 3 and 4.

      As to statutory authority, we must first determine whether Congress expressed a clear intent on the question. If we determine that Congress has spoken directly and had an intention on the precise issue, we must give that intention effect, "and that is the end of the matter." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (Chevron). If the statute is silent or ambiguous with respect to the specific issue, we must determine whether the interpretation of an agency charged with administering the statute is based on a permissible construction of the statute. If a question is not directly addressed, we may not substitute our own construction of a statutory provision for a reasonable interpretation made by the agency. Thus, in such a case, we must defer to the agency's construction if it is reasonable. See id. at 843-44.

      In this regard, employees in positions "subject to" section 5363 are entitled to pay retention if they are "employees" in a position under a "covered pay schedule." 5 U.S.C. §§ 5361(5) and (6). Covered pay schedules include the General Schedule, a prevailing rate pay schedule under subchapter IV of chapter 53 of title 5 of the United States Code, or a special occupational pay schedule under subchapter IX. 5 U.S.C. § 5361(5). The definition of "employee" in section 5361(1) does not directly address the status of employees who, though trade and craft employees, are covered by sections 9(b) and 704. Nor does section 5361(5) and (6) clearly resolve whether pay schedules of such employees are prevailing rate schedules within the meaning of that section. It is not possible to derive Congressional intent as to whether those employees are covered by section 5363 from the provisions themselves.

      In responding to our request for clarification of its guidance, OPM set forth its interpretation of section 5363 insofar as it concerned employees covered by sections 9(b) and 704. OPM concluded that employees covered by sections 9(b) and 704 "are not entitled to the grade and pay retention provisions in title 5, United States Code, that are found at 5 U.S.C. § 5361 et seq." OPM Clarification at 1-2. OPM noted that "grade and pay retention statutes at issue here . . . involve the types [ v56 p897 ] of wages, terms and conditions of employment traditionally negotiated in the private sector." Id. at 2. OPM found that those statutes did not apply to employees covered by sections 9(b) and 704 because those employees retained the ability to resort "to the collective bargaining process to resolve wage and compensation matters[.]" Id. at 3. As such, any authorization for these employees to receive pay retention rights must be derived from the collective bargaining process under sections 9(b) and 704. We find that OPM's opinion is a reasonable interpretation of section 5363 and is entitled to our deference. See, e.g., United States Department of the Interior, Bureau of Reclamation v. FLRA, 23 F.3d 518, 521 (D.C. Cir. 1994) (sections 9(b) and 704 "preserve historical subjects of collective bargaining that otherwise would be preempted by the PRSA or CSRA, or by other federal labor statutes.") [n6] 

B.     Proposals 3 and 4 Are Inconsistent with Part 536  [n7] 

      Although employees affected by Proposals 3 and 4 are not covered by section 5363, OPM has authority, under section 5365(b)(2), to provide for the application of all or portions of section 5363 to individuals to whom the subchapter does not otherwise apply. See Georgia Air National Guard, 165th Tactical Airlift Group, Savannah, Georgia and Georgia Association of Civilian Technicians, 15 FLRA 442, 443 n.2 (1984). Under Part 536, OPM has provided that "any employee . . . whose rate of basic pay would otherwise be reduced" as a result of a management action is entitled to pay retention if a reduction in his or her rate of pay would result from: (1) one or more of the agency actions specified in the regulation; or (2) agency actions in addition to those referenced in law and regulation that are specified by agency heads pursuant to authority delegated by OPM. 5 C.F.R. § 536.104.

      In its request for an advisory opinion, the Authority asked OPM whether Part 536 authorized pay retention for sections 9(b) and 704 employees, such as those affected by Proposals 3 and 4. OPM stated as follows:

     Congress provided in 5 U.S.C. § 5365(b) that OPM may, by regulation, extend pay retention to individuals not otherwise covered. In accordance with this authority, OPM has promulgated regulations that extended coverage to eligible employees who move from a noncovered . . . to a covered pay schedule. See 5 C.F.R. § 536.102 (definition of employee). However, OPM has not exercised its authority to extend grade and pay retention to 9(b) employees.
     Pursuant to 5 U.S.C. § 5363, OPM has delegated to agency heads to grant grade and pay retention to eligible employees in circumstances that otherwise do not qualify for grade and pay retention. . . . This regulation, however, is expressly limited to "eligible employees." . . . [F]or the reasons noted above, employees covered by section 9(b) are excluded. Further, section 536.104(b) does not authorize agency heads to grant grade and pay retention to 9(b) employees. Accordingly, it is OPM's view that 9(b) employees are not covered by either the statutory or regulatory grade and pay retention provisions.

OPM Letter of Clarification at 3.                                   In sum, OPM has not, in Part 536, exercised its discretion under section 5365 to extend the pay retention provisions of section 5363 to employees covered by sections 9(b) and 704; nor has it delegated authority to agency heads to extend pay retention to such employees. [n8] 

      We will defer to an agency's interpretation of its own regulations unless it "'is plainly erroneous or inconsistent with the regulation.'" U.S. Department of Transportation, Federal Aviation Administration and Federal [ v56 p898 ] Air Traffic Controllers Association, 55 FLRA 797, 802 (1999) (quoting Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)). We find that OPM's interpretation of Part 536 is not plainly erroneous or inconsistent with the terms of that regulation. In particular, there is no evidence that OPM's interpretation is inconsistent with prior interpretations of Part 536. Cf. U.S. Department of Transportation, Federal Aviation Administration and Professional Airways Systems Specialists, 56 FLRA No. 99 (2000), slip op. at 4-5 (agency offers interpretation of its regulations that is inconsistent with its interpretation in other contexts). Rather, OPM's interpretation of the scope of its regulations is consistent with its interpretation of the scope of section 5363. According to OPM, employees covered by sections 9(b) and 704 are excluded from section 5363 and from the regulations issued by OPM to implement section 5363. Consequently, we find that OPM's interpretation is not plainly erroneous or inconsistent with Part 536 and so we defer to OPM's interpretation.

      Proposals 3 and 4 require the Agency to grant pay retention to employees to whom OPM has not, in Part 536, extended pay retention. Moreover, because OPM has not delegated to agency heads authority to extend pay retention to those employees, the Agency has no discretion to provide that benefit. Consequently, Part 536 does not, in either respect, authorize pay retention benefits for employees affected by Proposals 3 and 4, and the proposals are inconsistent with that provision. See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 682-83 (1997) (where discretion as to an action pertaining to conditions of employment resides with a third party outside the bargaining relationship, a proposal requiring an agency to take that action is outside the duty to bargain). Cf. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983); Treasury, IRS, 37 FLRA at 152 (1990) (proposals requiring an agency to request a third party with authority to do so to take some action pursuant to that authority are within the duty to bargain). [n9]  Because OPM regulations do not authorize pay retention for employees affected by Proposals 3 and 4, those proposals are not within the duty to bargain on grounds that they reflect existing regulatory authorizations, as claimed by the Union.

C.     The Proposals Are Not Preserved for Bargaining under Section 704

      Under the Boulder City framework, because the proposals are outside the duty to bargain under the Statute, payment of pay retention for employees affected by Proposals 3 and 4 may only be authorized if the matter is preserved for bargaining under sections 9(b) and 704. In order for proposals pertaining to pay and pay practices within the meaning of section 704(b) to be within the duty to bargain under section 704, they must concern a matter that was subject to negotiations between the parties prior to August 19, 1972, as required by section 704(a), and be in accordance with prevailing rates and pay practices, as required by section 704(b). See Lower Colorado Regional Office, 51 FLRA at 640. If a proposal fails to satisfy the requirements of either subsection, it is outside the duty to bargain and it is not necessary for the Authority to address the other subsection. Id. at 641 n.7. The parties do not dispute that Proposals 3 and 4 pertain to pay practices within the meaning of section 704(b). Thus, if the proposals are not in accordance with prevailing pay practices as required by section 704(b), they are outside the duty to bargain and we will not need to address the parties' contentions as to section 704(a).

      It is the Union's burden to establish that pay retention in the circumstances specified in Proposals 3 and 4 is a prevailing pay practice in the relevant industry. Boulder City, 51 FLRA at 233. See also United States Information Agency v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990). The Union correctly states that the proposals are within the duty to bargain under section 704(b) if they are consistent with prevailing pay practices in the industry. However, the Union has not argued, and has provided no evidence, that pay retention in the specified circumstances is in accord with the pay practices in the relevant industry. Accordingly, the Union has failed to meet its burden of demonstrating that Proposals 3 and 4 are in accordance with prevailing pay practices within the meaning of section 704(b). See, e.g., Lower Colorado Regional Office, 51 FLRA at 640-41; National Association of Government Employees, Local R14-143 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Yuma Projects Office, Yuma, Arizona, 47 FLRA 103, 105 (1993). Consequently, it is not necessary for us to determine whether Proposals 3 and 4 were subject to bargaining prior to August 19, 1972, within the meaning of section 704(a). See Lower Colorado Regional Office, 51 FLRA at 641. We find, therefore, that Proposals 3 and 4 are not preserved for bargaining under section 704(b). [ v56 p899 ]

VII.     Order

      The petition for review as to Proposals 3 and 4 is dismissed.


APPENDIX

      This Appendix includes the following provisions:

1.     Section 9(b) of the PRSA
2.     Section 704
3.     5 U.S.C. § 5342(a)(2)
4.     5 U.S.C. § 5361(1),(4)-(6)
5.     5 U.S.C. § 5365
6.     5 C.F.R. § 536.102
7.     5 C.F.R. § 536.104
8.     5 C.F.R. § 536.105

1.     Section 9(b) of the PRSA provides as follows:

      Sec. 9 (b)     The amendments made by this Act shall not be construed to--

1)     abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act . . . pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees;
(2)     nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act . . . for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or
(3)     nullify, change, or otherwise affect in any way after such date of enactment . . . any agreement, arrangement, or understanding in effect on such date with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date . . . is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date.

2.     Section 704 of the Civil Service Reform Act of 1978 provides as follows:

Sec. 704.     (a)     Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph.
     (b)     The pay and pay practices relating to employees referred to in paragraph (1) of this subsection shall be negotiated in accordance with prevailing rates and pay practices without regard to any provision of--
     (A)     chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph;
     (B)     subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5, United States Code; or
     (C)     any rule, regulation, decision or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code.

3.     5 U.S.C. § 5342(a)(2) provides, in relevant part, as follows:

(a)     For the purpose of this subchapter--
. . . . 
(2)     "prevailing rate employee" means--
(A)     an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual-labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement[.]

Subsections (B) and (C), which apply to nonappropriated fund instrumentalities and the Veterans Canteen Service, respectively, are not applicable here. The [ v56 p900 ] Department of the Interior is not excluded from the definition of the term "agency" set forth in section 5342(a)(1).

4.     5 U.S.C. § 5361 provides, in relevant part, as follows:

      For the purpose of this subchapter--

(1)     "employee" means an employee to whom chapter 51 of this title applies, and a prevailing rate employee, as defined by section 5342(a)(2) of this title, whose employment is other than on a temporary or term basis;
. . . . 
(4)     "rate of basic pay" means, in the case of a prevailing rate employee, the scheduled rate of pay determined under section 5343 of this title;
(5)     "covered pay schedule" means the General Schedule, any prevailing rate schedule established under subchapter IV of this chapter, or a special occupational pay system under subchapter IX;
(6)     "position subject to this subchapter" means any position under a covered pay schedule[.]

5.     5 U.S.C. § 5365 provides, as relevant herein, as follows:

(a)     The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.
(b)     Under such regulations, the Office may provide for the application of all or portions of the provisions of this subchapter--
(1)     to any individual reduced to a grade of a covered pay schedule from a position not subject to this subchapter;
(2)     to individuals to whom such provisions do not otherwise apply; and
(3)     to situations the application to which is justified for purposes of carrying out the mission of the agency or agencies involved.

6.     5 C.F.R. § 536.102 defines "employee" and "rate of basic pay" as follows:

      For the purposes of this part:

. . . . 
Employee means an employee as defined in 5 U.S.C. 5361 and also an individual who is moved from a position which is not under a covered pay schedule to a position which is under a covered pay schedule provided that the individual's employment immediately prior to the move was on other than a temporary or term basis.
. . . . 
Rate of basic pay means, for any pay system, the rate of pay fixed by law or administrative action for the position held by an employee before any deductions and exclusive of additional pay of any kind such as night or environmental differentials in the case of a prevailing rate employee.

7.     5 C.F.R. § 536.104 provides, in relevant part, as follows:

      § 536.104 Coverage and applicability of pay retention.

(a)     Pay retention shall apply to any employee whose rate of basic pay would otherwise be reduced:
. . . . 
(2)     As a result of reduction-in-force or reclassification when the employee does not meet the eligibility requirement for grade retention; or
. . . . 
(6)     As a result of the placement of the employee in a formal employee development program generally utilized Government wide: Upward Mobility, Apprenticeship, and Career Intern Programs.
. . . . 
(b)     Except as otherwise covered in paragraph (a) of this section, the head of the agency may provide pay retention to eligible employees whose rates of basic pay would otherwise be reduced as the result of a management action.

8.     5 C.F.R. § 536.105 provides, in relevant part, as follows:

      § 536.105          Exclusions

(a)     Grade and pay retention shall not apply to an employee who--
(1)     Moves from a position that is not in an agency as defined in 5 U.S.C. 5102; [ v56 p901 ]
(2)     Is identified under 5 U.S.C. 2105(c), except prevailing rate employees included under 5 U.S.C. 5361;
(3)     Is reduced in grade or pay for personal cause or at the employee's request;
(4)     Does not satisfactorily complete the probationary period prescribed by 5 U.S.C. 3321(a)(2), and, as a result, is removed from a supervisory or managerial position; or
(5)     Is entitled to receive basic pay under 5 U.S.C. 3594(c) because of removal from the Senior Executive Service and placement in a civil service position (other than a Senior Executive Service position) under 5 U.S.C. 3594(b)(2).
. . . .



Footnote # 1 for 56 FLRA No. 149

   1/ The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As the petition in this case was filed before that date, we apply the prior regulations.


Footnote # 2 for 56 FLRA No. 149

   2/ Section 9(b) of the PRSA and section 704 are set forth in the Appendix to this decision. In addition, as relevant, the text of other statutes and regulations cited in this decision, aside from the Statute, is set forth in the Appendix.


Footnote # 3 for 56 FLRA No. 149

   3/ The Authority raised the applicability of section 5363 and Part 536 sua sponte.


Footnote # 4 for 56 FLRA No. 149

   Both parties had filed comments on OPM's initial response to our questions.


Footnote # 5 for 56 FLRA No. 149

   In addition to the arguments described in the text, the Union disputes the Authority's decision to grant the Agency's request for reconsideration. The Authority granted reconsideration because it determined that its initial decision in this case as to Proposals 3 and 4 may be inconsistent with law and regulation and, thus, that extraordinary circumstances warranting reconsideration had been demonstrated by the Agency.See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995). The Union provides no basis for questioning those determinations. Accordingly, we find that the request for reconsideration is properly before us on the merits.


Footnote # 6 for 56 FLRA No. 149

   Based on OPM's interpretation that section 5363 concerns a matter that does not cover the employees in this case, we reject the Agency's arguments that the proposal is specifically provided for by section 5363 within the meaning of section 7103(a)(14)(C) and inconsistent with section 5363 under section 7117(a)(1). Further, we note that OPM has discretion to extend pay retention to individuals to whom section 5363 does not apply, including the employees in this case. Accordingly, section 5363 does not preclude the extension of pay retention to employees affected by Proposals 3 and 4. In addition, if discretion with respect to a matter resides with a third party outside the bargaining relationship, that is a sufficient basis for concluding that the matter is not specifically provided for within the meaning of section 7103(a)(14)(C). See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 37 FLRA 147, 152 (1990) (Treasury, IRS) (fact that prerogative to establish special salary rates (SSRs) is granted to President by statute, and redelegated to OPM, means that SSRs are not a matter that is specifically provided for under section 7103(a)(14)(C) of the Statute). To the extent that March Air Force Base, Riverside, California , 13 FLRA 255, 260 (1983), suggests otherwise, we will no longer follow that case.


Footnote # 7 for 56 FLRA No. 149

   Part 536 constitutes a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 38 FLRA 1605, 1616 (1991).


Footnote # 8 for 56 FLRA No. 149