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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 of statute. (c) An increase in rate of basic pay established under this section is not an equivalent increase in pay within the meaning of section 5335(a) of this title. (d) The rate of basic pay established under this section and received by an individual immediately before a statutory increase, which becomes effective prior to, on, or after the date of enactment of the statute, in the pay schedule applicable to such individual of any pay system specified in subsection (a) of this section, shall be initially adjusted, effective on the effective date of the statutory increase, under conversion rules prescribed by the President or by such agency as the President may designate. /5/ In this regard, Section 303 of Executive Order 11721, 3 CFR 770 (1973), provides as follows: The Civil Service Commission (now the Office of Personnel Management) shall review, at least annually, higher rates of pay established under section 5303(a) of title 5, United States Code, and shall continue, abolish, or revise the higher rates in consideration of the facts and pertinent criteria under the law and this order. /6/ The parties stipulated that 5 CFR 530.307(a) (1982) as set forth herein, was in effect at all times material herein. The Authority notes that section was amended subsequent to the events herein. /7/ FPM Basic Installment 272 contains a list of new special minimum rates and rate ranges for various occupations which were adjusted to reflect a statutory pay increase. Appendix A to this document provides, as here relevant, as follows: * * * * (b) Adjustment of schedules and rates based on statutory revisions of the pay schedules. (1) Special rate range adjustments. OPM regulation 530.307(a) provides for automatic adjustment of the special minimum rates to the nearest rate in the new statutory pay schedule which does not result in a decrease. Other special rates in the special rate range are adjusted on the basis of the new special minimum rate.