United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
DECISION AND ORDER
The National Treasury Employees Union (Union or NTEU), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Securities and Exchange Commission, Washington, D.C. (Employer or SEC).
Following investigation of the Unions request for assistance, which arose from negotiations over Fiscal Year (FY) 2002 pay increases for bargaining-unit employees,(1) the Panel determined that the dispute should be resolved through an informal conference with Panel Member Mark A. Carter. The parties were advised that if no settlement was reached, the Panel Member would report to the Panel on the status of the dispute, including the parties final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Member Carter met with the parties on September 4 and 5, 2002, at the Panels offices in Washington, D.C. Although settlement options were explored during the course of the proceeding, the parties were unable to resolve their dispute. The parties subsequently were permitted to submit their final offers and supporting statements. The Panel has now considered the entire record.
The Employers primary mission is to administer and enforce the Federal securities laws to protect investors and maintain fair, honest, and efficient securities markets. It has 11 regional and district offices and is headquartered in Washington, D.C. The Union represents approximately 2,250 of SECs 3,200 employees. Unit employees are primarily lawyers, accountants, examiners, and economists, and in numerous support staff occupations. The parties reached agreement over an initial collective bargaining agreement (CBA) in July 2002.
ISSUES AT IMPASSE
disagree over numerous aspects of compensation, including: (1) how unit
employees were converted into the new pay structure, and their rates of
locality pay; (2) the type of pay-for-performance system to be implemented; (3)
the scope of grievances concerning pay, and whether they should be expedited;
and (4) the duration of the agreement, and the manner in which mid-term changes
may be effectuated.
POSITIONS OF THE PARTIES
1. The Employers Position
The Employers final offer (see Attachment A) should be adopted without modifications by the Panel because it reflects a pay structure that was well researched, based on best practices from other agencies, meets the Agencys needs, and is comparable to those of other financial regulatory agencies. In developing the new compensation system, the SEC contracted with the HayGroup, an organization with "almost 60 years of experience in compensation and benefits in both the public and private sectors" to provide consulting support. After extensive research and analysis, "the HayGroup recommended, and the Agency adopted, a pay scale that consists of 15 levels for bargaining-unit employees and up to 31 steps within each level." The SEC converted employees to the new system by using the formula identified in its final offer, adopting locality pay tables "that were almost identical to the FDIC." The SEC also set aside approximately $5.86 million of the $24.8 million it received to implement its new pay structure through FY 2002 to ensure that it could continue to compensate employees at the higher rates until at least November 15. This is because, historically, it has had to operate under continuing resolutions at the start of new fiscal years. If the Agency did not plan for this contingency, "it could be faced with furloughs or reductions in salary in order to meet payroll costs."
The new pay structure is comparable to those of other financial regulators in a number of ways, among them, wider pay ranges with the width increasing as the pay levels increase, more flexibility for movement across each level, and higher minimum base pay levels. With regard to the latter, "the average pay increase for all employees at the SEC was 14.18 percent." The HayGroup found that the lack of competitive pay was one of the major reasons for the SECs high attrition rates. The Agency believes that the new pay structure "will stem its attrition rates" at the same time as it benefits all employees, relieves pay compression, accommodates the annual appropriations process, and is acceptable to a variety of constituents. In particular, the SECs high turnover rate among employees in securities industry (SI) positions should be positively affected, since "there will be no 2-year wait for new employees before they can attain the [SI] designation." A significant aspect of its final offer is that it abolishes Within-Grade and Quality Step Increases (WIGI and QSI) in favor of "a rigorous measurement of an employee s performance or productivity." The General Schedule (GS) pay system, which relies on the WIGI, "is designed to reward time in a position with an acceptable level of performance, not excellence." Under the SECs new pay system, however, an employee with an acceptable level of competence, and his or her supervisor, would submit separate lists to a compensation committee summarizing the employees accomplishments for the previous year. The committee would then make a recommendation to the head of the Division/Office/Field Office with respect to any merit increases. The division head could then accept, reject, or modify the committees recommendations. Final decisions would be grievable in accordance with the parties CBA. In contrast to the GS system, an outstanding employee would only have a 1-year waiting period between increases and can receive up to three steps, or the equivalent of a 4.5 percent increase, on an annual basis. This part of its final offer reflects the fact that the Federal workforce of today is more highly skilled and specialized than when the GS system was established, and that "a pay system needs to be flexible and responsive so that the Agency can compete with other employers."
While the parties appear to be in general agreement over how the pay schedule will be adjusted annually, and the need to negotiate benefits after the Agencys FY 2003 appropriation is finalized, the Employer requires more time to prepare for such negotiations than the Unions proposal would permit. There is also general agreement that the CBA is the appropriate vehicle for resolving any grievances over pay. There is no need for the Unions proposal that the first step of the negotiated procedure be waived, however, because the CBA already provides a mechanism for starting at other steps if it is appropriate. With respect to the duration of the agreement, the Employer proposes approximately a 2-year term, contingent upon the appropriation of sufficient funds. If funds are insufficient, "or if compliance would negatively impact the accomplishment of the Agencys mission," it would provide its reasons to the Union, and negotiate over the termination of the agreement, if requested to do so. The Employer is opposed to the Unions proposal that the agreement have no termination date, and that negotiations on all issues be reopened when the SEC receives its FY 2003 appropriation. Further negotiations over the pay structure and its pay-for-performance plan are unnecessary given "the extraordinary amount of effort" that went in to their creation, and the Employers belief that its system is comparable to other financial regulators "and meets the needs of the SEC."
The Panel should not adopt the Unions proposal for a variety of reasons. Retroactively recalculating the conversion of several hundred special rate employees other than those under an SI designation, for example, "is impractical." Nor has the Union shown what benefits, if any, would be gained, or that they would outweigh the additional costs and inconveniences that would arise. Further, employees should not be given additional credit for time already accrued towards their next WIGI as part of the conversion process. Given the significant pay increases that were given to employees under the new pay system, they have already received such partial credit. The proposal "would do nothing but create disruption and would not be beneficial." Similarly, it is unnecessary to raise locality rates beyond the FDIC rates in the five geographical areas proposed by the Union. The SEC adopted locality pay rates different from those of the FDIC only in instances where higher rates were not needed to address its recruitment and retention concerns.
The Unions formula for providing unit employees "pro rata salary increases" with any unused funds is "unintelligible." It also would create "an administrative nightmare" and require the Panel to apply the standards found under the Back Pay Act, 5 U.S.C. § 5596. In addition, rather than a pay-for-performance proposal, the Union has submitted an "awards" proposal that would require the SEC to continue its previous practices. Because awards are covered by the parties CBA, "the Agency should not have an obligation to bargain over this subject during the life of the agreement." This is true particularly with respect to the Unions proposal on QSIs, which is also inconsistent with 5 C.F.R. § 531.504; the regulations do not require that QSIs be granted to employees, even if all specified conditions are met. On the merits of this issue, a high number of QSIs were awarded in the past because the SEC had difficulty retaining good employees. The newly-implemented compensation system is intended to supplant the need for its previous practices in this regard. Finally, in addition to other miscellaneous provisions it is proposing, the Panel should reject the portion of the Union s final offer concerning the impasse resolution procedures that would apply if the parties have not reached agreement in 60 days following enactment of the SECs FY 2003 appropriation. The Employer is satisfied with the processes specified under the Statute, particularly in a case concerning "issues of first impression" involving pay and benefits which may have "significant ramifications throughout the Federal government."
2. The Unions Position
The Panel should adopt the Unions final offer (see Attachment B) for two primary reasons. First, it would better achieve the statutory directive of providing comparability with other financial regulatory agencies in the areas of employee compensation and benefits, and provide sufficient mechanisms for improving the system to achieve comparability in the future. Secondly, it would result in a fairer allocation and distribution of funds identified for initial implementation of pay parity in FY 2002 than the Employers proposal. Additionally, the Panel should "not lose sight of the more fundamental part of this dispute." In this regard, the Employer withheld information during bargaining which "severely undercut the Unions ability to conduct certain analyses," and other data until the Panels informal conference which "hurt not only the Union, but the Panel as well." For this reason, the Panel "should not defer at all to the Agency where it might otherwise do so," and hold it "to a high standard to justify atypical actions it has taken that are not in apparent conformity" with financial regulatory agency comparability principles.
While the SEC Chairman and other Agency officials have testified before Congress that the annual cost of the Agencys plan for pay parity would be $76 million, the SECs own figures show that the cost of its plan over a full year is only $45 million. Moreover, the initial cost of its pay plan for FY 2002 is only $16.5 million of the $24.8 million available for increases in salaries and associated benefits for both unit and non-unit employees. The "significant flaw" in the Employers proposal is that it does not make any provision for how the $5.8 million it has set aside to fund the new system will be spent if, in fact, it is not needed to fund employee salaries under a Continuing Resolution. The Unions proposal would cure this defect by ensuring that, if this money becomes available, it will be devoted to its intended purpose, the funding of pay parity. It also guarantees that "bargaining-unit employees receive their fair share of these funds."
The Employers new pay system, on the other hand, "violates both the letter and the spirit" of the Pay Parity Act. As acknowledged by representatives of both the SEC and the HayGroup, the FDIC is "the most comparable" of the financial regulatory agencies, yet the minimum and maximum rates of pay for each grade under the SEC pay plan are both, on average, "about 6 percent below the rates established under the FDIC pay plan currently in place." This "might be understandable" if all available pay parity funds were being spent. In the current context, however, the Employers failure to submit any proposal regarding possible distribution of the $5.8 million being held in reserve reveals that its "true motive" is to "retain absolute discretion over whether and how the money is spent." This "runs counter to the concept of collective bargaining."
The Employers use of "local locality pay rates" when converting non-SI special rate employees to its new system "defies logic" and "violates the principle of internal equity." Inexplicably, this had the effect of reducing the base pay for these employees by up to an additional 11.4 percent as compared to the SI special rate employees. The Employer also failed to provide any of its employees with credit for time served toward their next WIGI, and unfairly reduced the locality pay rates for employees in five cities. None of these actions were justified either in the HayGroup report or the report SEC submitted to Congress in support of the pay parity legislation. The Unions final offer would rectify all of these problems relatively "inexpensively"; in any case, the Employer has never argued that it is unable to pay the costs associated with implementing the Unions proposal, nor provided any evidence in support of such an argument.
Unlike the Employers proposed pay-for-performance system, the Unions would establish defined standards for determining merit pay increases to ensure the fair treatment of employees. It does so by continuing the Employers practices of using QSIs and cash awards based on superior annual performance "as the core of the pay-for performance program." While there are some similarities in their final offers on this issue, the Employer has failed to demonstrate a need to change "acceptable level of competence" (ALOC) as the supervisory determination necessary for a single step WIGI. The Employers proposal to establish merit-pay committees, in essence, would create "a whole new level of bureaucracy to replace the current system," which in practice "is likely to turn into a writing contest," rather than an evaluation of performance in critical job functions.
Unions final offer also is intended to rectify other serious defects in
the Employers position. For example, the Employer would grant itself sole
discretion to determine whether or not any additional adjustment to the pay
structure is warranted, whereas the Union proposes further discussions and
collective bargaining to determine appropriate factors and benchmarks for
adjusting the pay scale on an annual or other basis. The Unions final
offer also would ensure that bargaining over benefits and possible future
changes to the SEC pay system occur in a timely and expeditious manner by
requiring that if no agreement is reached within 60 days of the enactment of
the FY 2003 appropriation, these matters are referred to a neutral fact-finder
for recommendations. Finally, adopting a procedure which requires the parties
to engage in fact-finding after 60 days would keep "the bargaining process
moving forward," ensure the production of all relevant data, and "maximize the
parties chances to reach a voluntary agreement." At worst, it would
provide the Panel with a more complete record if the parties reach an
Having carefully considered the evidence and arguments presented by the parties involving the numerous compensation-related issues raised in this case, we shall order that a modified version of the Employers final offer be adopted to resolve their dispute. As the record makes abundantly clear, the new compensation system implemented by the Employer on May 19, 2002, was the product of extensive research carefully tailored to meet the specific needs of the SEC, and required the expenditure of significant resources. Given these circumstances, we are not persuaded that the specific concerns identified by the Union regarding of the conversion process are substantiated so as to provide sufficient justification for expending the additional resources which would be required to adjust the compensation system. Moreover, our sympathies toward the Union s position are tempered considerably by the fact that the average pay increase for all employees at SEC was 14.18 percent, and the average increase for all SI employees was 16.94 percent.
Turning to the question of which final offer provides the greater degree of "comparability" with those of the other financial regulatory agencies, it is also clear that the objective of pay parity could be achieved by using any number of different pay schemes.(2) The parties final offers represent only two of the candidates. This observation is instructive in light of the Unions contentions that only the adoption of the FDICs compensation system would provide comparability, and that all of the $24.8 million initially set aside must be spent if that goal is to be achieved. As stated above, we believe the compensation system that was implemented was carefully designed to meet the specific interests of the SEC, and we are unwilling to require employers to adopt another agencys compensation system to accomplish "parity." The overall fairness of the conversion process was established by information provided by the Employer at the informal conference demonstrating that the share of funds distributed to unit employees during the conversion process is largely proportional to the percentage of the salary budget that was allocated to such employees prior to conversion.
Uncertainty over the SECs FY 2003 appropriations, and the lack of objective evidence that the newly-implemented compensation system will achieve its intended goals, also persuade us that additional assessment and, if necessary, negotiations by the parties, are warranted. Accordingly, we shall order wording permitting either party to reopen bargaining over the level of employee compensation within 30 days of receipt of the final FY 2003 budget, at the same time as negotiations over benefits are conducted. With respect to the issue of pay for performance, the parties also shall be directed to evaluate jointly, after 1 year of experience, whether the system has met the criterion of improving organizational effectiveness established by Employer. To address the Unions concerns about the standards to be applied, wording also shall be added requiring the Employer to act in a fair and nondiscriminatory manner in considering whether to grant merit increases, and which specifies that such decisions may be grieved under Article 32 of the parties CBA. In this connection, we note that the Unions proposal, which would result in step increases or equivalent cash awards every year based only on ALOC determinations, would constitute a mandatory entitlement of merit pay contrary to the Panels philosophy and prior Decisions and Orders.
to minor grammatical changes reflecting the fact that the compensation system
proposed by the Employer has already been implemented, we also find it prudent
to modify the last section of its final offer, entitled "Effective Date of
Changes and Duration." In this regard, if the Employer terminates the agreement
prior to September 30, 2004, the Union shall be permitted to pursue the matter
through the parties negotiated grievance procedure, or require
negotiations within 30 days, but not both. In the unlikely event that this
occurs, the Unions right to address the situation through negotiations
would be preserved, unless it decides to test the reasons the Employer has
provided for terminating the agreement (i.e., insufficient funding or
negative impact on the accomplishment of the SECs mission and goals)
before a grievance arbitrator. Granting the Union a choice of forums would
eliminate the possibility of conflicting decisions by third parties. As to the
Unions proposal that the parties be required to submit disputes to a
neutral fact-finder if agreement has not been reached within 60 days of the
enactment of the FY 2003 appropriation, we are skeptical about the Unions
contention that such a procedure would expedite the negotiations and maximize
the chances of a voluntary settlement. In our view, it is more likely to make
the parties bilateral efforts futile, and foster a culture of dependence
upon third parties for resolving their disputes.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panels regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the adoption of the following wording:
the U.S. Securities and Exchange Commission ("SEC" or "Employer")
the National Treasury Employees Union ("Union")
Pursuant to Public Law 107-123, the Investor and Capital Markets Fee Relief Act, the SEC "may appoint and fix the compensation of such officers, attorneys, economists, examiners, and other employees as may be necessary for carrying out its functions under the securities law...." The new pay structure described herein is designed to meet the SECs needs, and comply with P.L. 107-123, as well as merit system principles.
The SECs new pay scale (Appendix A) has 15 levels for bargaining unit employees (levels 1-14 and level 16) and up to 31 steps within each level. The top four steps of levels 11-14 and 16 are available only to those attorneys, accountants, and securities compliance examiners with securities industry experience.
This scale replaces the existing General Schedule pay scale of 15 grades, each with 10 steps.
This Agreement covers the compensation of bargaining unit employees. The term "employees," when used in this agreement refers only to bargaining unit employees, unless otherwise stated.
A. General Schedule and General Management (GS/GM) Employees
GS/GM employees were converted into the new structure using the following procedures:
- Any locality pay was subtracted from the employees adjusted base pay to determine the employees base pay.
- 6% was added to the employees base pay.
- The employee was converted to the new structure at the level aligned with his/her GS/GM grade. (For example, GS-1 through GS-14. GS-15 employees were converted to the new Level 16.) Within the appropriate level, the employees salary converted to the step that is closest to, but not less than, six percent above his/her GS/GM base pay.
- The result of III.A.3. above was multiplied by the appropriate locality percentage.
A GS-7, Step 5 employee in the Northeast Regional Offices total pay was $36,781.
1. Her base pay (without locality pay) was $31,920.
2. Her base pay plus 6% is 33,835.
3. On the new scale, she is a 7 step 10, with new base pay of $34,038.
4. Including the new locality percentage for New York City (21.13%), her new total pay is $41,230, a 12% increase.
A GS-13, Step 1 employee in Washington, D.C.s total pay was $66,229.
1. Her base pay (without locality pay) was $59,409.
2. Her base pay plus 6% is $62,974.
3. On the new scale, she is a 13 step 1, with a new base pay of $62,974.
4. Including the new locality percentage for Washington, D.C. (13.17%), her new total pay is $71,268, an 8% increase.
B. Securities Industry (SI) Special Rate Employees
SI employees were converted into the new structure using the following procedures:
1. "Rest of U.S." locality pay (8.64%) was subtracted from the employees adjusted base pay to determine the employees base pay. (Since SI employees do not receive separate locality pay, this formula was used to determine the base for these employees.)
2. 6% was added to the employees base pay.
3. The employee was converted to the new structure at the level aligned with his/her current grade. Within the appropriate level, the employees salary was converted to the step that is closest to, but not less than six percent above his/her base pay.
4. The result of III.B.3. above was multiplied by the appropriate locality percentage.
A GS-14, Step 5 (SI) attorney in Chicagos total pay was $100,625.
1. Her base pay (without "rest of U.S." locality pay) was $92,622.
2. Her base pay plus 6% is 98,179.
3. On the new scale, she is a 14 step 22, with a new base pay of $98,205.
4. Including the new locality percentage for Chicago, (18.66%), her new total pay is $116,530, a 16% increase.
A GS-13, Step 1 (SI) accountant in Washington, D.C.s total pay was $77,229.
1. His base pay (without "rest of U.S." locality pay) was $71,087.
2. His base pay plus 6% is $75,352.
3. On the new scale, he is a 13 step 14, with a new pay of $76,112.
4. Including the new locality percentage for Washington, D.C. (13.17%), his new total pay is $86,136, a 12% increase.
Employees on board prior to May 19, 2002, who were in a waiting period for Securities Industry pay were converted regardless of where they were in the waiting period, then converted using the method described above.
C. Other Employees
Conversion for other categories of employees, including those Economists, Computer Specialists, and other employees, with special rates, were calculated using the same procedures of subtracting out the appropriate locality factor, adding six percent, converting to the new scale, and calculating the new total salary using the appropriate locality rate.
IV. Pay for Performance
Pay-for-performance, or merit pay, is a critical component to any modern compensation system. The Agency is committed to a rigorous merit pay system, where superior performance is valued and rewarded through merit pay increases.
Pay for performance will involve supervisors, managers, and employees working together to improve organization effectiveness in the accomplishment of the Agencys mission and goals.
The Employer may provide an employee with an annual merit increase of up to three steps within the employees level based on his/her performance. All merit increases are subject to budgetary considerations. There shall be no automatic "within-grade increases." There shall be at least a 52-week waiting period from the last time a merit pay increase was effectuated before a subsequent merit pay increase is effected. In considering whether or not to grant a merit increase, the Employer will act in a fair and non-discriminatory manner. An employee may grieve the Employers decision regarding a merit increase in accordance with Article 32 (Grievance) of the parties collective bargaining agreement.
After 1 year of experience under the pay-for- performance system established in this section, the parties shall meet to evaluate whether it has improved organizational effectiveness in the accomplishment of the Agencys mission and goals. Either party may propose changes to the system at that time where there is a demonstrated need to do so. Impasses, if any, shall be resolved in accordance with the Federal Service Labor-Management Relations Statute.
In order to be eligible for a merit increase, an employee must have acceptable level of performance and must submit to the Employer a summary describing his/her accomplishments for the preceding 12 months. Similarly, the employees supervisor shall prepare a summary of the employees accomplishments. These summaries will be based on standardized factors developed and tailored for each office and division in the Agency.
B. Compensation Committee Review
The Employer will establish compensation committees within each Division/Office/Field Office to review merit increase nominations. Subject to budgetary consideration, the committees will make recommendations to Division/Office/Field Office heads regarding the suggested merit increases for employees. The committees will use an objective and consistent process for making merit pay decisions.
C. Executive Review
The Division/Office/Field Office heads or designee will consider the compensation committees recommendations and will approve, deny, or modify the committees recommendations for any merit increases.
V. Locality Pay
Locality pay percentages are attached as Appendix B.
VI. Other Adjustments
The SEC pay schedule will be adjusted annually by the same percentage as the percentage adjustment to the General Schedule (GS). This adjustment will be made in the same pay period that adjustments are made for the rest of the federal service. The SEC may conduct surveys on a periodic basis to determine whether any additional adjustment is warranted to remain comparable with Agencies covered by the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), or to otherwise support the retention of employees.
VII. Benefits and Compensation
All benefits currently available to employees will remain in effect. The parties recognize that negotiation of benefits and compensation is a time consuming and very costly process. Within 30 days of receipt of the final fiscal year 2003 budget, the parties will return to the bargaining table to negotiate benefits and, at the discretion of either party, reopen negotiations over the level of compensation provided under the compensation system implemented by SEC on May 19, 2002, pursuant to P.L. 107-123. The parties agree to establish a labor/management committee for the purpose of sharing information that is reasonably available and necessary for a full and proper discussion, understanding, and negotiations of benefits and compensation.
VIII. Grievances Procedures
Grievances concerning the terms of this Agreement may be grieved in accordance with the negotiated grievance procedure contained in the parties term agreement.
IX. Effective Date of Changes and Duration
This Pay Agreement shall remain in effect through September 30, 2004. If the Agency determines that either it does not have sufficient funds to comply with this Pay Agreement or that continued compliance with this Pay Agreement would negatively impact the accomplishment of the Agencys goals and mission, the Agency may terminate this Pay Agreement. Should the Agency terminate this agreement, it will only do so after providing the Union at least 30 calendar days notice. The notice will contain the Agencys reasons for termination of this Pay Agreement. If the Agency terminates this Pay Agreement prior to September 30, 2004, the Union may, at its discretion, pursue the matter through the parties negotiated grievance procedure, or require the parties to enter into negotiations within 30 days of the termination of this agreement, but not both.
By direction of the Panel.
H. Joseph Schimansky
November 8, 2002
1. In this regard, pursuant to recently enacted legislation, The Investors and Capital Markets Fee Relief Act, Public Law 107-123 (January 16, 2002)(Pay Parity Act), the SEC was authorized to pay higher levels of compensation that are comparable to those in other Federal financial regulatory agencies (e.g., the Federal Deposit Insurance Corporation (FDIC) and Office of the Comptroller of the Currency (OCC)), and consistent with merit system principles. The legislation did not fund those increases, but in April 2002 the SEC received permission from the Congress to reprogram approximately $24.8 million to partially implement pay parity. The employer implemented its last best offer on May 19, 2002, prior to the completion of bargaining.
2. Each of the financial regulatory agencies in question, for example, presumably has its own compensation system. In addition, to the extent the Union is claiming that the Employers compensation system violates the provisions of the Pay Parity Act, it has more appropriate forums for enforcing its interpretation of the law.