National Treasury Employees Union (Union) and United States, Department of the Treasury, Office of the Comptroller of Currency, Washington, D.C. (Agency)

[ v61 p871 ]

61 FLRA No. 176

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
OFFICE OF THE
COMPTROLLER OF CURRENCY
WASHINGTON, D.C.
(Agency)

0-NG-2840

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

December 5, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 5 proposals. The Agency filed a Statement of Position, to which the Union filed a response (Response). The Agency also filed a reply (Reply) to the Union's response.

      For the reasons set forth below, we find that Proposal 1 is within the duty to bargain and Proposals 2, 3, 4, and 5 are outside the duty to bargain.

II.     Background

      The Agency is responsible for the supervision of national banks scattered throughout the country. Record of Conference (Record) at 1. There are approximately 2100 unit employees, the majority of whom are commissioned bank examiners. Id. The "rest of the unit is comprised primarily of attorneys, IT personnel, financial analyst[s] . . . and administrative and support positions." Statement of Position at 2. Approximately, "700 bargaining unit employees are located in Washington, D.C., while the others are dispersed in district [and field] offices, and in large bank facilities across the country." Id.

      The proposals were submitted to the Agency during the course of the parties' negotiations over their first term collective bargaining agreement that became effective in March 2005. Record at 1. The parties reached agreement on all matters except the proposals involved here.

III.      Proposal l

In implementing any rules, regulation or policies affecting personnel policies or procedures which involve the exercise of management rights under 5 U.S.C. section 7106(a) and (b)(1), the Employer will apply such rules, regulations, or policies fairly and consistently so as to avoid adverse impact on the working conditions of unit employees. However, this does not in any way affect the Employer's rights to establish, maintain or modify such rules, regulation or policies, consistent with applicable law, rule and regulation and the terms of this Agreement. [e.g., management has the statutory right to establish substantive policies exercising management rights, subject to the Union's right to bargain over procedures and appropriate arrangements].

A.      Positions of the Parties

1.     Agency

      In its Statement of Position, the Agency states that although the particular "rules, regulation, or policies" that Proposal 1 would make "enforceable through the negotiated grievance [procedure]" are not identified, the "Agency presumes that this proposal pertains mainly to policies contained in the Agency's Policies and Procedures Manual." Statement of Position at 5. According to the Agency, this manual "comprises more than 140 written policies, referred to as PPMs, on a variety of subjects, including personnel matters, administrative issues, and bank supervision procedures." [n2]  Id. The Agency asserts that because the proposal "does not specify the Agency policies that would be enforceable under this proposal, it is not possible to identify the particular management rights that would be affected . . . ." Id. However, the Agency contends that, "given the [ v61 p872 ] breadth of issues addressed by PPMs . . ., it is likely that every one of the [§] 7106(a) rights is affected." [n3]  Id. As such, the Agency contends that Proposal 1 would constitute a substantive restriction on the exercise of management rights under § 7106(a) of the Statute and thus "directly interferes with these management rights." Id. at 6. In support, the Agency cites to Authority precedent, including NFFE, Local 1214, 51 FLRA 1362 (1996) and United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Additionally, relying on IRS v. FLRA, 494 U.S. 922 (1990), the Agency argues that Agency "policies that affect management rights may not be enforced by an arbitrator unless they constitute an applicable law, or have been negotiated pursuant to [§] 7106(b)." Id. at 7.

      The Agency asserts that even "assuming" the proposal is intended as an arrangement for employees who have been adversely affected by its application of Agency policies, it is not clear that the proposal is "sufficiently tailored to provide a balm only to the hurts arising as a consequence of management actions under [§] 7106." Id. at 6. According to the Agency, the language of Proposal 1 is "so broad that it is impossible to determine under what circumstances and to which employees the proposal would apply." Id. The Agency also contends that "without knowing the specific policy . . . that the Union is seeking to enforce, it is impossible to . . . assess the degree of intrusion on management's rights." Id. The Agency asserts that in the absence of such information there can be no determination that the proposal is an appropriate arrangement. Therefore, according to the Agency, the "proposal is nonnegotiable because it interferes with management rights under [§] 7106(a) and it does not meet the standards for the exceptions to [§] 7106(a) set forth in [§] 7106(b)." Id. at 6-7.

      In its reply brief to the Union's opposition, the Agency asserts that the cases relied on by the Union, to argue that the Authority has found proposals that require the "fair,' "objective," or "equitable" application of policies affecting the exercise of management rights to be negotiable procedures, are distinguishable from the instant case because, unlike the proposal here which is "very broad," the proposals in those cases were "narrowly drawn" so that the management rights involved could be identified. Reply Brief at 2. Also, for reasons stated in its Statement of Position, the Agency contends that Proposal 1 does not constitute an appropriate arrangement. The Agency states that the proposal "could authorize an arbitrator to impose his or her judgment of `fairness' and `consistency' in ways which would intrude impermissibly on management's rights under [§] 7106(a) and (b) of the Statute." Id. at 3.

2.      Union

      In its petition for review (Petition), the Union asserts that Proposal 1 "is intended to ensure the fair and consistent application of Agency rules, regulations, and policies, to prevent favoritism, inconsistent application or compliance, or arbitrary treatment of employees with respect to rules, regulations or policies which involve the exercise of management rights." Petition at 4. The Union contends that the proposal "explicitly recognizes the [Agency's] rights under § 7106(a) and (b)(1) of the Statute, and its authority to establish, maintain or modify agency rules, regulations or policies in exercising these rights." [n4]  Id. The Union notes that the Authority has held that proposals that require the "fair and equitable" application of policies are negotiable procedures under § 7106(b)(2) of the Statute. However, the Union asserts that the proposal is intended as an "appropriate arrangement affecting the Agency's exercise of [management's] rights . . . by requiring that the [Agency] apply whatever rules, regulations or policies it does establish fairly and consistently." Id.

      At the post-petition conference, the Union explained that "under the proposal, the application of Agency rules, regulations, and policies would be enforceable through the negotiated grievance procedure and arbitration." Record at 2. The Union "emphasized that the proposal does not seek to address the Agency's right[] to establish its policies, rules[,] and regulations, simply [their] application . . . ." Id. According to the Union, under the "first sentence of the proposal, the Agency would determine whether the respective, rules, regulations, or policies involve an exercise of management rights under the Statute." Id. The Union also stated that the second sentence of the proposal concerning "applicable law, rule and regulation" refers to other requirements under law by which the Agency must abide. Id. The Union further stated that the second sentence [ v61 p873 ] "merely affirms the Agency's obligation to act in accordance with law . . . ." Id.

      The Union argues that Proposal 1 would, in effect, incorporate all Agencies policies involving the exercise of management's rights into the parties' collective bargaining agreement and make such policies enforceable under the negotiated grievance and arbitration procedure. In this way it contends that the "scope of the Union's proposal is much more limited." Response at 3. According to the Union, the proposal does not implicate the substantive content of the Agency's policies in any way, but "merely addresses the application of these policies," by requiring that the Agency apply them "fairly and consistently so as to avoid adverse impact on the working conditions of unit employees." Id. at 3-4 (emphasis in original). The Union claims that the proposal is "sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of [a] management right, and thus constitutes an appropriate arrangement . . . ." Id. at 5. The Union states that the Agency "could apply such policies to one employee or group of employees but not to another, based on favoritism, arbitrariness or other non-merit or non-business-related factors." Id.

B.      Analysis and Conclusions

1.      The Meaning of the Proposal

      Proposal 1 requires the Agency to apply "Agency rules, regulations[,] and policies in a fair and consistent manner with respect to employees." Record at 2. The Union "emphasized that the proposal does not seek to address the Agency's right[] to establish its policies, rules[,] and regulations, simply the application of these policies, rules[,] and regulations." Id. According to the Union, the proposal is "intended as a catch-all . . . that would apply to the Agency's policies involving an exercise of [a] management right[] that were not specifically addressed and covered in the collective bargaining agreement." Id. The Union explains that under the "first sentence of the proposal, the Agency would determine whether the respective rules, regulations or policies involve an exercise of management rights under the Statute." Id. The Union stated that the second sentence of the proposal concerning "applicable law, rule and regulation" refers to other applicable legal requirements. Id. The Agency does not dispute any of these interpretations.

      Additionally, in the Petition, the Union explained "fair and consistent application" by stating that the proposal seeks to "prevent favoritism, inconsistent application or compliance, or arbitrary treatment of employees" so as to avoid adverse impact on the working conditions of unit employees with respect to Agency "rules, regulations or policies which involve the exercise of management rights." Petition at 4.

      Based on the proposal's wording and the Union's explanation, we interpret the proposal as requiring "once the [Agency] establishes its substantive policy" involving the exercise of a management right, such policy "be applied fairly and consistently so as to avoid adverse impact." Response at 4. That is, "the proposal does not require that the policy itself be `fair and equitable' on its face; rather, the proposal simply requires that it be applied, or followed, fairly and equitably, i.e., once the Agency establishes a policy or rule, it will be consistently applied (or not applied) to similarly situated bargaining unit employees, without bias, favoritism, arbitrariness or consideration of reasons not relating to merit or mission." [n5]  Id.

2.      The Proposal Affects the Agency's Rights under § 7106(a) of the Statute

      The proposal encompasses Agency rules, regulations, or policies concerning the Agency's exercise of its rights under § 7106(a) of the Statute. The proposal, as the Union concedes, affects § 7106(a) because it requires the Agency to apply, in a fair and consistent manner, its rules, regulations, or policies that constitute the exercise of management's rights.

      Proposals that restrict the range of management action under § 7106(a) of the Statute constitute limitations on the exercise of that right and for that reason have been held to directly interfere with the exercise of the right. NTEU, 53 FLRA 539, 597 (1997). The Authority has held that terms such as "fair and equitable," "equitable," and "equitably," when used in proposals that govern the exercise of a management right, constitute substantive limitations on the exercise of that right, and thus affect the right. E.g., id. (citing AFGE, Local 3258, 48 FLRA 232, 234 (1993)).

      In this case, the proposal requires the Agency to apply Agency rules, regulations, or policies that affect personnel policies or procedures concerning employees' conditions of employment "fairly and consistently." To the extent that the proposal encompasses Agency rules, [ v61 p874 ] regulations, or policies, affecting the exercise of management's rights under § 7106(a) of the Statute and requires the Agency to apply such rules, regulations, or policies "fairly and consistently," the proposal affects § 7106(a) by imposing a substantive limitation on the Agency's exercise of its § 7106(a) rights. See NTEU, 53 FLRA at 597.

      Based on the above, the proposal affects the Agency's exercise of management's rights under § 7106(a) of the Statute.

3.      The Proposal Constitutes an Appropriate Arrangement

      The test for determining whether a proposal is within the duty to bargain under § 7106(b)(3) is set out in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether a proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address speculative or hypothetical concerns do not constitute arrangements. See, e.g., NFFE, Local 2015, 53 FLRA 967, 973 (1997). The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., AFGE, Local 2280, Iron Mountain, Mich., 57 FLRA 742,743 (2002); AFGE, Local 1687, 52 FLRA 521, 523 (1996). If a proposal is an arrangement, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management rights. KANG, 21 FLRA at 31-33.

      The Agency does not argue that Proposal 1 is not an arrangement for employees adversely affected by its application of Agency rules, regulations, or policies requiring the exercise of a management right, but rather, asserts that the proposal is not sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. As the Agency does not claim that Proposal 1 is not an arrangement, we find that the proposal constitutes an arrangement.

      As to whether the proposal is sufficiently tailored, Proposal 1 "does not require that the policy [requiring the exercise of a management right] itself be `fair and equitable' on its face; rather, the proposal simply requires that [such policy, rule or regulation] be applied, or followed, fairly and equitably, i.e., once the Agency establishes [such policy, rule, or regulation], it will be consistently applied (or not applied) to similarly situated bargaining unit employees, without bias, favoritism, arbitrariness or consideration of reasons not relating to merit or mission." Response at 4. It is reasonable to anticipate that some employees will not be adversely affected by the Agency's exercise of its management rights through application of its policies, regulations, or rules. However, the proposal targets employees adversely affected by any unfair or inconsistent application of such policies, regulations, or rules that, as the Union explained, involves favoritism, arbitrariness or consideration of reasons not relating to merit or mission. We find, therefore, that the proposal is sufficiently tailored because it is targeted to avoid adverse impact by unfair and inconsistent application of management's rights, and by its terms, it would not apply to employees who do not suffer adverse impact. See id.

      With regard to whether the proposal excessively interferes with management's rights, the Agency asserts (1) that the proposal is "so broad that it is impossible to determine under what circumstances and to which employees the proposal would apply[;]" and (2) that "without knowing the specific policy . . . that the Union is seeking to enforce, it is impossible to . . . assess the degree of intrusion on management's rights." Statement of Position at 7. As discussed above, consistent with its wording and the Union's explanation, the proposal targets employees adversely affected by any unfair or inconsistent application of the Agency's policies, regulations, or rules that, as the Union explained, involves favoritism, arbitrariness or consideration of reasons not relating to merit or mission. The Agency thus would be able to determine the circumstances and the employees to which the proposal would apply.

      Based on the above, the Agency has not established that Proposal 1 would substantially burden the Agency's exercise of its management rights in the application of its policies, regulations, and rules. The Agency has not argued that it is burdened by treating employees fairly and consistently and thereby avoiding favoritism, arbitrariness or consideration of reasons not relating to merit or mission. Rather, the Agency asserts that the proposal is "too broad" to assess the extent of the intrusion into management rights. Reply at 3. However, as we found above, the proposal is targeted. The [ v61 p875 ] proposal ensures employees that Agency's policies, rules, and regulations will be applied in a fair and consistent manner and that those employees adversely affected by any unfair or inconsistent application of such policies, rules and regulations, that as the Union explained, involve favoritism, arbitrariness or consideration of reasons not relating to merit or mission, could challenge any alleged unfair or inconsistent application through the negotiated grievance and arbitration procedure. See, e.g., AFGE, Local 3258, 48 FLRA 232, 233-37 (1993) (proposal that workload be redistributed in a fair and equitable manner, consistent with the union's explanation, found negotiable as an appropriate arrangement); AFGE, AFL-CIO, Local 32, 3 FLRA 784, 789-793 (1980) (proposal that required management to apply performance standards it had established in a fair and equitable manner, consistent with union's explanation, found negotiable as an appropriate arrangement). Further, the Agency claimed only that "it is likely that every one of the [§] 7106(a) rights is affected." Statement of Position at 5. The Agency did not explain how any particular one of its rights would be excessively interfered with by requiring the Agency to apply such regulation in the manner described above. The Agency has the burden to provide a record to support and demonstrate its assertion that the proposal is outside the duty to bargain under the Statute. See AFGE, Local 3062, 51 FLRA 229, 232 (1995) (citing NFFE, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982)).

      As there is no basis in the record on which to find that Proposal 1 would excessively burden the Agency's exercise of its management rights, the proposal does not excessively interfere with the exercise of a management right under § 7106(a) of the Statute and thus constitutes a negotiable appropriate arrangement under § 7106(b)(3) of the Statute.  [n6] 

IV.     Proposals 2-5

Proposal 2
The Employer agrees that a qualified employee who is detailed to a position at a higher pay band for more than two consecutive pay periods will be temporarily promoted to that position and receive the rate of pay for the position to which he or she is temporarily promoted retroactively effective on the day the detail began. However, if the employee is not eligible for a temporary promotion, the employee's performance at an acceptable level in a higher band will be cause for recommending the issuance of a special act or service award, unless the employee has already received an award which would preclude it. [n7] 
Proposal 3
Except as required by law, an [Fair Labor Standards Act] FLSA-exempt employee whose rate of overtime pay is less than his/her "straight time" basic pay rate will receive compensatory time off in lieu of overtime pay for overtime worked. Those employees who are exempt from FLSA, but who nonetheless work more than their 40 hour work week in a way that meets the "suffered and permits" test of FLSA, but without overtime compensation or compensatory time will receive a straight time hourly wage for the extra time worked.
Proposal 4
For travel of more than 12 hours, but not exceeding 24 hours, when lodging is not required, employees will be reimbursed at a flat three-fourths of the applicable M&IE [meals and incidental expenses].
Proposal 5
The Employer will use to the maximum extent practical a variety of tools to mitigate the need to conduct a Reduction in Force (RIF). These include:
· Noncompetitive reassignment into other OCC vacancies for which an employee is qualified, absent just cause;
· Career transition assistance services;
· Relocation bonuses;
· Offering buyouts to affected employees;
· Retirement counseling; [ v61 p876 ]
· Saved grade and pay for employees willing to take a voluntary change to lower grade
· Reasonable administrative time to search of positions outside the Office;
· Requesting voluntary early out authority from the Office of Personnel Management when a large number of employees are affected. [Only the three items highlighted in bold are in dispute in Proposal 5].

See Record at 4.

A.      Positions of the Parties

1.     Agency

      The Agency asserts that Proposal 2 would require the Agency to increase the rate of pay of an employee who is detailed to a position in a higher pay band [n8]  for more than two consecutive pay periods or to recommend that the employee receive a monetary award. The Agency contends that such requirement clearly concerns the compensation of Agency employees. Concerning Proposal 3, the Agency asserts that this proposal would establish an entitlement to compensation, either through the payment of compensatory time or straight time pay, for employees who would not otherwise be entitled to such compensation. As to Proposal 4, the Agency asserts that this proposal would require it to pay an employee three-fourths of the applicable daily "M&IE" rate whenever the employee is in travel status for more than 12 hours, but less than 24 hours, and returns home at the end of the day so that lodging is not required. According to the Agency, M&IE incurred during same-day travel are personal expenses and payment to an employee for such personal expenses constitutes compensation. Lastly, the Agency asserts that Proposal 5 would require the Agency to offer employees relocation bonuses, buyouts, and saved grade and pay for employees willing to take a voluntary downgrade, to the maximum extent practicable in order to mitigate the need to conduct a RIF.

      Citing NTEU, 59 FLRA 815 (2004) (NTEU) (Member Pope dissenting), [n9] the Agency asserts that Proposals 2, 3, 4, and 5 are outside the duty to bargain because the Authority has ruled that the Comptroller of the Currency (Comptroller) has sole and exclusive authority, pursuant to 12 U.S.C. §§ 481 and 482, over the compensation of Agency employees and that it would be contrary to law to require the Comptroller to subject this authority to collective bargaining. [n10]  Also, citing AFGE v. FLRA, 46 F.3d 73, 77 (D.C. Cir. 1995), the Agency claims that "[r]elocation bonuses, buyouts, and saved grade and pay are things of value constituting compensation and [thus] are outside the Agency's duty to bargain." Statement of Position at 14.

      In its Reply to the Union Response to its Statement of Position, the Agency notes that the Union does not dispute its assertion that Proposals 2, 3, 4, and 5 concern compensation or that the Authority has found that the Agency has sole and exclusive authority to set compensation. According to the Agency, the only matter disputed by the Union is the correctness of the Authority's decision in NTEU. The Agency claims that NTEU was decided correctly and, therefore, the Union's arguments to the contrary must be rejected. The Agency asserts, therefore, that Proposals 2, 3, 4, and 5 are outside its duty to bargain.

      In a supplemental submission, the Agency requested permission to file a supplemental statement concerning NTEU v. FLRA, which was issued after the Agency's Reply was filed. The Agency asserts that the court decision involves the same parties and relates directly to the issues involved in the instant case. The Agency asserts that the decision in NTEU v. FLRA establishes that Proposals 2, 3, 4, and 5 are not negotiable. [n11] 

2.      Union

      The Union asserts that the Agency's reliance on the Authority's decision NTEU provides no basis for finding Proposals 2, 3, 4, and 5 outside the duty to bargain because that case "was wrongly decided[.]" Response at 5. According to the Union, contrary to the Authority's holding in NTEU, the "Comptroller's enabling legislation grants him only limited pay discretion, [ v61 p877 ] which does not relieve the Agency of its statutory bargaining obligations." Id. at 6.

      The Union contends that the "plain language of the pay authority given to the Comptroller in 12 U.S.C. § 482, which expressly overrides anything contrary in 12 U.S.C. § 481, "preempts only Title 5's chapter 51 and part of chapter 53 and leaves untouched the collective bargaining obligations of chapter 71." Id. The Union claims that the "plain text of the relevant provisions of Title 12 refutes the notion that the Comptroller has `sole and exclusive' authority over compensation." Id. at 7. Additionally, the Union refers to legislative history of the most recent grant of pay authority to the Agency and argues that such history confirms Congressional intent to leave the Comptroller's decisions subject to collective bargaining.

B.     Analysis and Conclusions

1.     The Meaning of the Proposals

      The Union does not dispute the Agency's claim that the subject matter involved in Proposals 2, 3, 4, and 5 concern compensation. In the absence of such dispute, we find that Proposals 2, 3, 4, and 5 concern compensation. [n12] 

2.     Whether Proposals 2, 3, 4, and 5 Are Contrary to Law

      The Union's sole argument is that the Agency's reliance on the Authority's decision in NTEU provides no basis for finding Proposals 2, 3, 4, and 5 outside the duty to bargain because NTEU "was wrongly decided." Response at 5. In NTEU, the Authority found that a proposal that concerned compensation--geographically based pay differential--was outside the duty to bargain. In so concluding, the Authority found that based on the "plain wording and legislative history" of 2 U.S.C. §§ 481 and 482, "the Comptroller of the OCC [Office of the Comptroller] exercises sole and exclusive jurisdiction in appointing employees and setting their compensation." Id., 59 FLRA at 818. In NTEU v. FLRA, the court affirmed the Authority's decision. The court found that "pursuant to §§ 481 and 482, the Comptroller has sole and exclusive discretion over compensation issues for OCC employees." NTEU v. FLRA, 435 F.3d at 1053. The court thus concluded that the geographically based pay differential was outside the Comptroller's duty to bargain. Accordingly, based on the court's decision in NTEU v. FLRA, we reject the Union's assertion that NTEU was wrongly decided.

      Turning to the instant case, the subject matter of Proposals 2, 3, 4, and 5 concern compensation. As the Authority found in NTEU, based on the "plain wording and legislative history" of 12 U.S.C. §§ 481 and 482, the Comptroller of the OCC "exercises sole and exclusive jurisdiction in appointing employees and setting their compensation." Id., 59 FLRA at 818. Because Proposal 2, 3, 4, and 5 concern compensation, we find, consistent with NTEU and NTEU v. FLRA, that the Comptroller of the OCC "exercises sole and exclusive jurisdiction in appointing employees and setting their compensation." Id. Thus, the proposals are outside the Comptroller's duty to bargain.

V.     Order

      The petition for review as to Proposals 2, 3, 4, and 5 are dismissed. The Agency shall, upon request, bargain with respect to Proposal 1. [ v61 p878 ]


APPENDIX

1.     12 U.S.C. § 481 provides, in pertinent part, that certain groups of Office of the Comptroller of the Currency (OCC) employees, including those affected by the proposal, "shall be employed by the Comptroller of the Currency with the approval of the Secretary of the Treasury[,]" and that "the employment and compensation" of the employees "shall be without regard to the provisions of other laws applicable to officers or employees of the United States."

2.     12 U.S.C. § 482 provides, in pertinent part:

Notwithstanding any of the provisions of section 481 of this title or section 301(f)(1) of Title 31 to the contrary, the Comptroller of the Currency shall fix the compensation and number of, and appoint and direct, all employees of the Office of the Comptroller of the Currency. Rates of basic pay for all employees of the Office may be set and adjusted by the Comptroller without regard to the provisions of chapter 51 or subchapter III of chapter 53 of Title 5. The Comptroller may provide additional compensation and benefits to employees of the Office if the same type of compensation or benefits are then being provided by any other Federal bank regulatory agency or, if not then being provided, could be provided by such an agency under applicable provisions of law, rule, or regulation. In setting and adjusting the total amount of compensation and benefits for employees of the Office, the Comptroller shall consult with, and seek to maintain comparability with, other Federal banking agencies.

Separate Opinion of Member Carol Waller Pope:

      Ordinarily, I would dissent from a decision finding that Proposals 2 through 5 are outside the duty to bargain. For the reasons set forth in my dissenting opinion in NTEU, 59 FLRA 815, 818-19 (2004), I would find that the Comptroller does not have sole and exclusive authority to determine compensation of the employees involved in this case and, as a result, that the proposals are within the Agency's duty to bargain. I note, in this regard, that the Union does not dispute that Proposals 2 through 5 involve compensation.

      However, there is currently a vacancy in the membership of the Authority. Until that vacancy is filled, the issuance of decisions requires agreement between Chairman Cabaniss and me. Moreover, in NTEU v. FLRA, 435 F.3d 1049 (9th Cir. 2006), the court affirmed the Authority majority's decision that the Comptroller has sole and exclusive authority over compensation matters. In these circumstances, I do not believe it is prudent to delay resolution of the case. For that reason, in order to avoid an impasse in the Authority's disposition of this case, I will agree that Proposals 2 through 5 are outside the Agency's obligation to bargain. See United States Dep't of the Interior, National Park Service, Gettysburg National Military Park, 61 FLRA 849, 853 (2006) (Member Pope agreeing to avoid an impasse); United States Dep't of Labor, Wash., D.C., 61 FLRA 603, 607 (2006) (same); Dep't of Homeland Sec., Bureau of Immigration & Customs Enforcement, 60 FLRA 131, 138 (2004) (Member Armendariz agreeing to resolve an issue to avoid an impasse); Fort Bragg Ass'n of Educators, NEA, 30 FLRA 508, 552 (1987) (Chairman Calhoun agreeing to avoid an impasse where only two members sitting).



Footnote # 1 for 61 FLRA No. 176 - Authority's Decision

   Member Pope's separate opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 176 - Authority's Decision

   The Agency included a list of PPMs referenced, such as PPMs on "Equal Employment Opportunity Policy;" "Dress Code Policy;" "Internet;" Workers Compensation Program;" "Parking Policy;" etc. See Statement of Position, Attachment 1.


Footnote # 3 for 61 FLRA No. 176 - Authority's Decision

   In its Statement of Position, in response to the question of whether the Union had claimed that the proposal is a "permissive subject of bargaining under 5 U.S.C. § 7106(b)(1)[,]" the Agency responded that this section was not applicable. Statement of Position at 6. Therefore, we find that there is no claim that Proposal 1 affects the Agency's rights under that section.


Footnote # 4 for 61 FLRA No. 176 - Authority's Decision

   In its response to the Agency's Statement of Position, in response to the question of whether the Union "claim[ed] that the proposal concerns a matter negotiable at the election of the Agency under [§] 7106(b)(1)[,]" the Union responded "no." Response at 2.


Footnote # 5 for 61 FLRA No. 176 - Authority's Decision

   Our interpretation of the meaning of this proposal, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of the proposal is at issue. See Ass'n of Civilian Technicians, Evergreen and Rainier Chapters, 57 FLRA 475, 477 n.11 (2001) (citing Nat'l Education Ass'n, Overseas Education Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 741-42 (1996)).


Footnote # 6 for 61 FLRA No. 176 - Authority's Decision

   As indicated in footnotes 3 and 4, the parties' responses indicate that their arguments do not concern § 7106(b)(1) of the Statute. Therefore, that section is not addressed in this decision. Additionally, in view of the determination that the proposal constitutes a negotiable appropriate arrangement, we need not address the question of whether the proposal constitutes a negotiable procedure.


Footnote # 7 for 61 FLRA No. 176 - Authority's Decision

   At the post-petition conference, the Union modified the second sentence of the proposal by deleting the words "of competence" and "graded position" and inserting the word "band." Record at 3. The Agency did not object to this modification.


Footnote # 8 for 61 FLRA No. 176 - Authority's Decision

   The Agency's pay and classification system is based on a total of 9 "bands," and band 6 is potentially the highest band for most unit employees although there are some unit employees in band 7. Record at 2.


Footnote # 9 for 61 FLRA No. 176 - Authority's Decision

   Subsequently, NTEU was affirmed in NTEU v. FLRA, 435 F.3d 1049 (9th Cir. 2006) (NTEU v. FLRA).


Footnote # 10 for 61 FLRA No. 176 - Authority's Decision

   The relevant portion of title 12 is set forth in the Appendix to this decision.


Footnote # 11 for 61 FLRA No. 176 - Authority's Decision

   The Agency's supplemental submissio