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 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.