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

[ v59 p815 ]

59 FLRA No. 148

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

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

(Agency)

0-NG-2730

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

April 12, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members  [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons which follow, we find that the proposal, which concerns geographically-based pay (geo pay), is outside the Agency's duty to bargain.

II.     Proposal

All affected employees who relocate pursuant to the District Restructuring will continue to receive the geo rate of their current location, if that rate is higher than that of the location to which they will move, for three (3) years from [the] date of relocation, in order to mitigate the adverse impact of the relocation.

Petition at ¶ 10.

III.     Meaning of the Proposal

      The parties agree that the proposal concerns compensation and has the following meaning: For 3 years after an employee is transferred pursuant to the Agency's plan to consolidate certain offices, the employee will continue to receive the geographically-based pay differential of the office from which he or she is transferred, as long as that pay differential is higher than that of the area to which he or she is transferred. See Record of Post-Petition Conference at 1.

IV.     Positions of the Parties

A.     Agency

      The Agency contends that the proposal is outside the duty to bargain because 12 U.S.C. § 481 (§ 481) grants the Comptroller of the Currency (the Comptroller) sole and exclusive discretion to fix employees' compensation. [n2]  According to the Agency, the narrower wording contained in 12 U.S.C. § 482 (§ 482), enacted subsequent to § 481, was intended only to confirm the Comptroller's independence from the Department of the Treasury in exercising the existing, sole and exclusive discretion set forth in § 481. [n3]  In addition, the Agency claims that the court's decision in AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995) (AFGE v. FLRA), in which a majority of the court stated that the Comptroller has sole and exclusive discretion to establish compensation for employees of OCC, is controlling in this case. [ v59 p816 ]

B.     Union

      The Union argues that § 481 must be read in conjunction with § 482, which indicates that the Comptroller does not have sole and exclusive discretion to establish employees' compensation. According to the Union, reading § 481 as providing sole and exclusive discretion to the Comptroller to do so would render meaningless the narrower wording of § 482. The Union contends that § 482 must govern over § 481 because § 482 is more specific, and was enacted more recently than § 481. Further, the Union asserts that Congress could not have contemplated excluding the Comptroller from bargaining requirements when it passed § 481 because the Union was not certified until 2002.

      Moreover, the Union argues that the legislative history of § 482 supports a conclusion that the Comptroller's discretion is not sole and exclusive. According to the Union, the fact that § 482 was enacted due to concerns about Department of the Treasury oversight of the Comptroller's pay setting practices indicates that the Comptroller did not have sole and exclusive discretion under § 481. In addition, the Union contends that the fact that Congress rejected a version of § 482 that would have exempted the Comptroller from more statutory provisions than those ultimately specified in § 482 indicates that Congress did not intend the Comptroller to have sole and exclusive discretion. The Union also contends that the Conference Report accompanying § 482 indicates that Congress intended the Comptroller to have the same pay-setting discretion as the Federal Deposit Insurance Corporation (FDIC). In this connection, the Union claims that, at the time § 482 was enacted, Congress was aware that FDIC was required to bargain over compensation.

      Finally, the Union disputes the Agency's assertion that AFGE v. FLRA, 46 F.3d 73, is controlling in this case. In this connection, the Union claims that AFGE v. FLRA involved the Office of Thrift Supervision (OTS), not the Comptroller, and, thus, the majority's statements regarding the Comptroller were dicta. The Union also claims that the majority in that case erroneously relied on legislative history concerning wording that was never ultimately enacted.

V.     Analysis and Conclusions

      If a law indicates that an agency's discretion over a matter affecting employees' conditions of employment is intended to be sole and exclusive, i.e., that it is intended to be exercised only by the agency, then the agency is not obligated under the Statute to exercise that discretion through collective bargaining. See United States Dep't of the Interior, Bureau of Indian Affairs, S.W. Indian Polytechnic Inst., Albuquerque, N.M., 58 FLRA 246, 248 (2002); United States Dep't of Def., Nat'l Imagery & Mapping Agency, St. Louis, Mo., 57 FLRA 837, 841-43 (2002) (Member Pope dissenting). In determining whether discretion is sole and exclusive, the Authority examines the plain wording of the relevant statute, and if it is unclear from that wording whether the discretion is sole and exclusive, then the Authority considers the legislative history of the statute. See., e.g., AFGE, Local 3295, 47 FLRA 884, 893-95 (1993).

A.     Plain Wording

      Section 481 states that certain groups of OCC employees, including those affected by this 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." In AFGE, Local 3295, the Authority held that, where a statute provides an official with the right to pay employees "without regard to the provisions of other laws applicable to officers or employees of the United States[,]" that wording grants the official sole and exclusive discretion to establish compensation. 47 FLRA at 894-99. See also Ill. Nat'l Guard v. FLRA, 854 F.2d 1396, 1401 (D.C. Cir. 1988) (authority to make certain determinations "[n]otwithstanding sections 5544(a) and 6101(a) of title 5 or any other provision of law," and to take certain actions "[n]otwithstanding section 5542 and 5543 of title 5 or any other provision of law," held to establish sole and exclusive discretion); Colo. Nurses Ass'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988) (authority to determine condition of employment "[n]otwithstanding any law" held to establish sole and exclusive discretion). Consistent with this precedent, the wording of § 481, when considered by itself, grants the Comptroller sole and exclusive discretion to establish compensation.

      Congress enacted § 481 in 1933, and in 1989 Congress enacted § 482 as part of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), Pub. L. No. 101-73, 103 Stat. 183 (1989). Although FIRREA was enacted by Congress primarily to respond to a financial crisis in the savings and loan industry, at the same time, Congress addressed the compensation authority of various federal banking agencies to make certain that each federal banking regulatory agency could attract and retain qualified staff to ensure the safe and sound operation of federally insured depository institutions. See H.R. Conf. Rep. No. 101-222, [ v59 p817 ] 101st Cong., 1st Sess., Title XII, at 457 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 496. The compensation provisions also sought to avoid competition among the agencies for experienced and competent staff with specialized expertise by encouraging the federal bank regulatory agencies to consult and seek to maintain comparability in compensation paid to their employees. Id.

      Under § 482, the Comptroller is authorized to hire staff and set their compensation. No approval or consultation with the Secretary of the Treasury is required. Thus, § 482 makes it clear that the Comptroller exercises sole and exclusive discretion to appoint staff and set their compensation. The requirement, set forth in § 481, that the Comptroller seek the approval of the Secretary of the Treasury was superseded by § 482, which confers sole and exclusive jurisdiction to appoint staff and set their compensation upon the Comptroller. In 1994, Congress amended § 482, in part, so that it now reads "Notwithstanding any of the provisions of section 481 of this title. . .to the contrary." Pub. L. 103-325, Title III, § 331(b)(1), 108 Stat. 2232 (1994). Therefore, there can be no doubt that the Comptroller exercises sole and exclusive jurisdiction to appoint staff and set their compensation.

      Additionally, § 481 provides the Comptroller the authority to appoint employees and set their compensation "without regard to the provisions of other laws applicable to officers or employees of the United States." Nothing in § 482 changes the unfettered discretion of the Comptroller to appoint employees or set their compensation. Rather, § 482 provides broader authority to the Comptroller to exercise the existing discretion to appoint employees and set their compensation without the approval of, or consultation with, the Secretary of the Treasury.

B.     Legislative History

      With respect to the compensation provisions concerning the Comptroller, FIRREA enacted a provision now codified at § 482. The new provision was designed to enhance the Comptroller's authority by giving the Comptroller the authority to appoint staff and to fix their compensation. See H.R. Conf. Rep. No. 101-222, 101st Cong., 1st Sess., Title XII, at 457 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 496. The earlier-enacted § 481 had given such authority to the Comptroller, with the approval of the Secretary of the Treasury. The FIRREA House Conference Report emphasized that while many of the activities of OCC are subject to the general direction of the Secretary of the Treasury, all personnel-related matters including determinations regarding pay are within the "exclusive authority of the Comptroller to determine." See id. Confirming the Comptroller's exclusive authority over such matters, the Conference Report noted further that "Treasury may not veto or block the implementation of the Comptroller's decisions on these matters." Id.

      During the process of enacting § 482, various versions of the provision were introduced. An earlier version would have required the Comptroller to consult with the Secretary of the Treasury in setting compensation for the OCC staff. See H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess. at 409 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 205. However, the final version of § 482 deleted the requirement for the Comptroller to consult with the Secretary of the Treasury, thus leaving the Comptroller with broader authority and completely independent and totally unfettered in setting compensation for the OCC staff. See H.R. Conf. Rep. No. 101-222, 101st Cong., 1st Sess., Title XII, at 457 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 496.

      Among other things, FIRREA also established the Office of Thrift Supervision (OTS), whose Director was granted compensation authority parallel to that of the Comptroller. See H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess. at 340 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 136. See also AFGE v. FLRA, 46 F.3d at 76-79 (court determined, after reviewing the Comptroller's authority, that the Director of OTS was to have the same unfettered authority to appoint staff and set compensation of employees as the Comptroller of OCC).

      We note that the court, in AFGE v. FLRA, referenced the legislative history of that earlier version of § 482 which had required the Comptroller to consult with the Secretary of the Treasury and which permitted the Comptroller to set compensation "without regard to the provisions of any other law, including any provision of Title 5 of the United States Code." See AFGE v. FLRA, 46 F.3d at 78; H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess. at 409 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 205. The court relied, in part, on this legislative history in finding that Congress intended that the Comptroller be free to set employee's compensation. Although § 482 as enacted did not include the language quoted above, the plain text and pertinent legislative history of §§ 481 and 482 nevertheless conclusively demonstrate that the Comptroller has sole an exclusive authority to determine employees' compensation. Indeed, as noted above, the final version of § 482 enacted into law actually provides the Comptroller even more autonomy than the earlier version of the legislation, because the requirement that the Comptroller consult [ v59 p818 ] with the Secretary of the Treasury had been deleted. See H.R. Conf. Rep. No. 101-222, 101st Cong., 1st Sess., Title XII, at 457 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 496. Accordingly, the pertinent statutes and legislative history unmistakably establish that the Comptroller is to have sole and exclusive jurisdiction in hiring staff and setting their compensation.

      Moreover, when considering §§ 481 and 482 together, nothing in the legislative history of § 482 indicates that Congress ever contemplated the removal of the exemption of OCC from the provisions of other laws applicable to employees of the United States as set forth in § 481. Congress would have been totally aware of statutes enacted since § 481 was codified in 1933, and had the opportunity to make OCC subject to any subsequent statute, but did not do so. While some other components of the Department of the Treasury may be subject to various employment and personnel statutes [n4]  nothing in the pertinent statutes or legislative history indicates that OCC is subject to them. In fact, in AFGE v. FLRA, the court specifically concluded that, unlike FDIC, OCC is exempt from federal classification and wage schedules. See 46 F.3d at 78 n.6.

C.     Summary

      Accordingly, based on the above discussion of the plain wording and legislative history of §§ 481 and 482, we conclude that the Comptroller of OCC exercises sole and exclusive jurisdiction in appointing employees and setting their compensation. Therefore, the proposal is outside the duty to bargain.

VI.     Order

      The petition for review is dismissed.


File 1: Authority's Decision in 59 FLRA No. 148
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 148 - Authority's Decision

   Member Pope's dissenting opinion is set forth after this decision.


Footnote # 2 for 59 FLRA No. 148 - Authority's Decision

   Section 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 pro