File 2: Opinion of Member Pope
[ v59 p818 ]
Member Carol Waller Pope, dissenting:
In my view, 12 U.S.C. §§ 481 and 482 do not grant the Comptroller sole and exclusive discretion to establish compensation. Accordingly, I dissent.
Section 481 grants the Comptroller discretion to fix compensation "without regard to the provisions or other laws" applicable to Federal employees but "with the approval of the Secretary of the Treasury." Section 482 grants the Comptroller discretion to fix compensation "[n]otwithstanding any of the provisions of section 481 of this title or section 301(f)(1) of Title 31 to the contrary," and to fix basic rates of pay "without regard to the provisions of chapter 51 or subchapter III of chapter 53 of Title 5." Although the "laws" from which the Comptroller's discretion is exempt under § 481 include the Statute, § 481 was enacted over 45 years before the Statute. On the other hand, § 482, enacted after the Statute, grants the Comptroller discretion to fix compensation without regard to specific laws only, not including the Statute.
Pertinent legislative history demonstrates that neither § 481 nor § 482 grants sole and exclusive discretion. With regard to § 481, the Comptroller's pay determinations were subject to approval by the Department of the Treasury. Indeed, as noted by the majority, § 482 was enacted at least in part to remove this approval authority from the Department of the Treasury. See Majority Opinion at 6-7. Thus, § 481 did not grant the Comptroller sole and exclusive discretion.
With regard to § 482, nothing in its legislative history indicates that Congress intended to grant the Comptroller discretion to fix compensation without regard to the Statute. In fact, the legislative history of § 482 makes clear, in two separate ways, that, consistent with its plain wording, § 482 was not intended to grant the Comptroller such discretion.
First, Congress considered and rejected a version of § 482 that would have given the Comptroller much broader discretion than that in the final version. Specifically, the rejected version would have granted the Comptroller discretion to fix compensation without regard to "the provisions of any other law, including any provision of Title 5[,]" H.R. Rep. No. 101-54(I), 1st Sess. 409, reprinted in 1989 U.S.C.C.A.N. 86, 205. As [ v59 p819 ] such, Congress rejected a broad grant of discretion [n1] See 2A Norman J. Singer, Sutherland Statutory Construction § 48.04 (6th ed. 2000) (where proposed statutory wording is "rejected by the legislature and thus not contained in the statute it provides an indication that the legislature did not want the issue considered.") Second, the legislative history indicates that Congress intended to grant the Comptroller the same discretion as the Federal Deposit Insurance Corporation (FDIC). See H.R. Conf. Rep. No. 101-222, 101st Cong., 1st Sess. 457, reprinted in 1989 U.S.C.C.A.N. 86, 496 (stating that the Comptroller is given "the same authorities as . . . the [FDIC] to establish compensation and benefits programs.") It is undisputed that, at the time § 482 was enacted, FDIC was required to bargain over pay. See NTEU, Chapter 207, 28 FLRA 625, 627-28 (1987) (Chairman Calhoun dissenting), recons. denied, 29 FLRA 1465. [n2] As Congress is presumed to have been aware of this precedent when it enacted § 482, see ACT, Mile High Chapter, 53 FLRA 1408, 1415 (1998), the fact that Congress intended the Comptroller to have the same pay-setting authorities as the FDIC further demonstrates that § 482 was not intended to grant the Comptroller sole and exclusive discretion.
Finally, the decisions in AFGE, Local 3295, 47 FLRA 884, and AFGE v. FLRA, 46 F.3d 73 (D.C. Cir. 1995), do not control here. To begin with, the unions in those cases did not assert, as the Union does here, that: (1) prior to § 482, the Comptroller did not have sole and exclusive discretion; (2) in enacting § 482, Congress rejected wording that would have exempted the Comptroller from all of title 5; and (3) Congress intended the Comptroller to have the same discretion as the FDIC, which is required to bargain over compensation. As set forth above, those arguments compel a conclusion that the Comptroller does not have sole and exclusive discretion. In addition, the statutory wording at issue in those cases was different from that at issue in this case. Those cases involved 12 U.S.C. § 1462a(g), which applies to the Office of Thrift Supervision and which contains no wording indicating that the subsection providing limited discretion is intended to govern over the subsection providing broad discretion. [n3] By contrast, § 482 specifically provides that it operates "[n]otwithstanding any" provisions of "section 481 . . . to the contrary[.]" If Congress had intended to grant the Comptroller unlimited discretion, then Congress could have provided that the broad wording of § 481 operates "notwithstanding" the narrow wording of § 482. Congress chose to do just the opposite.
In sum, neither § 481 nor § 482 grants the Comptroller sole and exclusive discretion to fix compensation. As such, I would find the Union's proposal within the duty to bargain and issue a bargaining order.
File 1: Authority's Decision in 59 FLRA No. 148
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 148 - Opinion of Member Pope
The majority notes that the rejected version of § 482 would have required the Comptroller to consult with the Secretary of the Treasury in fixing compensation, and that the final version deleted this requirement. See Majority Opinion at 7. The majority erroneously concludes from this that the final version granted the Comptroller "broader authority" that was "completely independent and totally unfettered." Id. Nothing could be further from the truth. Although the final version of § 482 eliminated the consultation requirement, it also eliminated the exemption of the Comptroller's authority from "any other law," including the Statute (as part of title 5), in favor of the much narrower exemption from specific laws only, not including the Statute.
Footnote # 2 for 59 FLRA No. 148 - Opinion of Member Pope
Footnote # 3 for 59 FLRA No. 148 - Opinion of Member Pope
(1) Appointment and compensation
The Director shall fix the compensation . . . of . . . employees of the [OTS] notwithstanding section 301(f)(1) of Title 31. Such compensation shall be paid without regard to the provisions of other laws applicable to officers or employees of the United States.
(2) Rates of basic pay