[ v38 p1605 ]
38:1605(128)NG
The decision of the Authority follows:
38 FLRA No. 128
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
CHICAGO, ILLINOIS
(Agency)
0-NG-1709
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 18, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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). The appeal concerns the negotiability of three proposals concerning special salary rates. The Agency asserts that the proposals are not negotiable because they do not concern conditions of employment, conflict with Federal law and Government-wide regulation and directly interfere with management's right to determine its budget.
For the reasons stated later in this decision, we find as follows. Proposal 1 is inconsistent with a Government-wide regulation and is nonnegotiable. Proposal 2 is inconsistent with Government-wide regulations and is nonnegotiable insofar as it concerns details; however, to the extent it concerns reassignments, it is negotiable. Proposal 3 is inconsistent with Government-wide regulations and is nonnegotiable insofar as it concerns reassignments; however, to the extent it concerns details, it is negotiable.
II. Background
The special salary rates to which the proposals in this case relate are governed by 5 U.S.C. § 5303. Under that provision, the President is authorized to establish special minimum rates of basic pay for one or more grades, occupational groups, series, classes, or subdivisions of classes subject to, as relevant here,(1) the General Schedule pay system. The President also is authorized to make corresponding increases in the remaining rates of the steps for the affected grade(s) in one or more areas or locations. The special salary rate provisions may be applied when the pay rates in private enterprise are so substantially above the statutory pay rates for the positions concerned as to handicap significantly the Government's recruitment or retention of well-qualified persons. Executive Order 11721, as amended, delegated to the Office of Personnel Management (OPM) the authority conferred on the President by 5 U.S.C. § 5303. OPM has issued implementing regulations, which are codified at 5 C.F.R. Part 530.
III. Proposal 1
Employees in the same occupational classifications and grades who are assigned to the Chicago District, but in posts of duty that are not covered by existing special salary rates as approved by OPM[,] shall be granted an annual incentive award equal to the special salary rate approved by OPM for their grade and occupational classification.
A. Positions of the Parties
The Agency contends that special salary rates are a "pay issue" and, as such, are not conditions of employment because, under the Statute, that term does not encompass wages. The Agency asserts that the proposal does not concern conditions of employment for the additional reason that "special salary rates are . . . specifically provided for in Federal statutes[.]" Agency statement of position at 8.
The Agency argues that Proposal 1 is nonnegotiable for the additional reason that it conflicts with a Federal statute and Government-wide regulations. Specifically, it contends that, under 5 U.S.C. § 5303, Executive Order 11721, and 5 C.F.R. Part 530, only OPM has the authority to establish special salary rates and that the proposal conflicts with that authority by "attempt[ing] to apply the special salary rates to employees not covered by the existing rates." Id. The Agency further asserts that Proposal 1 uses incentive awards as a substitute for pay and, thus, is inconsistent with 5 C.F.R. § 451.104, a Government-wide regulation.
The Agency argues that the issue of incentive awards is addressed by a provision in the parties' national collective bargaining agreement (NORD III) and that the Union is, therefore, barred from "arguing that these funds should also be used to supplement special salary rates." Id. at 15. Finally, the Agency contends that this proposal is nonnegotiable for the additional reason that it infringes upon management's right to determine the budget of the Agency.
The Union argues that Proposal 1 concerns a negotiable condition of employment and does not conflict with any Federal law or Government-wide regulation. The Union asserts that this proposal "provides for the issuance of incentive awards for certain positions and classifications determined to be special rate but not located in the covered geographic area." Union reply brief at 4-5. The Union states that "the proposal does not attempt to extend special pay rates beyond those employees for whom the rates have been approved, but merely attempts to reward the efforts of employees which benefit the government in a manner consistent with 5 U.S.C. Section 4506 and 5 C.F.R. [Part] 451." Id. at 9. The Union denies that the proposal seeks to substitute an incentive award for pay.
The Union asserts that the presence of provisions concerning incentive awards in the parties' national agreement does not preclude the negotiability of the proposal and that this proposal would be "governed by the master and local agreement." Id. at 10. As to management's right to determine its budget, the Union contends that the Agency has failed to demonstrate that the proposal meets the Authority's test for determining whether a proposal infringes on that management right, which was articulated in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 607-08 (1980) (Wright-Patterson), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).
B. Analysis and Conclusions
1. Conditions of Employment
At the outset, we note that the Agency's argument that, under the Statute, the term "conditions of employment" does not encompass "pay issues," in general, has been rejected in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 37 FLRA 147, 151 (1990) (Internal Revenue Service). In that decision, we relied on the Supreme Court's decision in Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990) (Fort Stewart) to reject the same argument that the Agency makes here that Congress did not intend the duty to bargain under the Statute to extend to proposals relating to wages and fringe benefits. For the reasons relied on in Internal Revenue Service, we reject the Agency's argument here that special salary rates are not conditions of employment based solely on the fact that they are a "pay issue."
Also, based on Internal Revenue Service, we reject the Agency's assertion that "special salary rates are . . . specifically provided for in Federal statutes." Agency statement of position at 8. As we stated in Internal Revenue Service:
[a]lthough 5 U.S.C. § 5303 provides for the establishment of [special salary rates] and their adjustment, the statute does not specifically provide either the rate to be paid under the [special salary rates], or the level of any revisions to the rate of [special salary rates] which the President may periodically establish. The prerogative to establish specific [special salary rates] or to revise them is left to the President, who has delegated this responsibility to OPM.
37 FLRA at 151. Consistent with our decision in Internal Revenue Service, we conclude that not all matters concerning special salary rates are specifically provided for by Federal statute. See 37 FLRA at 151-52.
2. The Proposal Concerns Incentive Awards, Not Special Salary Rates
Special salary rates and incentive awards involve two distinct programs: the former is governed by 5 U.S.C. § 5303 and the latter is governed by Chapter 45 of title 5, U.S. Code. Proposal 1, as written, does not directly address special salary rates. Rather, it requires that certain employees be given an incentive award of an amount equivalent to the special salary rate to which they would be entitled if they were assigned to a post of duty in which special salary rates apply. The Union's interpretation that this proposal concerns incentive awards, and not special salary rates, is consistent with the language of the proposal and is adopted for purposes of this decision. See, for example, American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276, 1285 (1990). The Agency's interpretation of Proposal 1 as seeking to "apply the special salary rates to employees not covered by the existing rates" is rejected. See Agency statement of position at 8. Consequently, it is unnecessary to address the Agency's arguments that are based on that interpretation. Instead, we focus on the parties' arguments that characterize the proposal as relating to incentive awards.
3. Applicability of 5 C.F.R. Part 451
The Union's claim that the proposal does not substitute incentive awards for pay is unconvincing and inconsistent with the language of the proposal. The proposal explicitly bases eligibility for an incentive award on ineligibility for a special salary rate and pegs the amount of the award to special salary rates. Thus, although, as we have stated above, the proposal does not directly involve special salary rates, the express language of the proposal leads to the unavoidable conclusion that the proposal seeks an incentive award as a substitute for a special salary rate. We do not base negotiability determinations on a union's statement of intent that is inconsistent with the language of the proposal. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990). For the reasons that follow, we conclude that Proposal 1 is inconsistent with a Government-wide regulation.
The Authority has construed the term "Government-wide regulation" to include regulations and official declarations of policy that apply to the Federal civilian work force as a whole and are binding on the Federal agencies and officials to which they apply. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980). The Authority has emphasized that a requirement that a regulation apply, literally, to all Federal civilian employees in order to constitute a Government-wide regulation under section 7117 would render that provision virtually meaningless, as few, if any, regulations affect every civilian employee of the Federal Government. The Authority has found from the legislative history of the Statute that Congress understood "Government-wide regulation" to constitute a significant limitation on the scope of bargaining and intended the term to include more than the inconsequential number of regulations that might fall within a literal definition. Thus, the Authority has concluded that a regulation is a Government-wide regulation under section 7117 if it is generally applicable throughout the Federal sector. See, for example, Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 354 (1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) (OEA).
Incentive awards for superior accomplishment are governed by 5 C.F.R. Part 451,(2) which issued pursuant to, among other things, a requirement in 5 U.S.C. § 4506 that OPM prescribe regulations under which agency programs for superior accomplishments awards shall be carried out. 5 C.F.R. Part 451 applies to employees as defined in 5 U.S.C. § 2105 and agencies as defined in 5 U.S.C. § 4501 and contains the "regulatory requirements" of OPM for establishing and conducting the superior accomplishment awards program. See 5 C.F.R. § 451.101. By its terms,
5 C.F.R. Part 451 applies to Federal employees in general and, with minor exceptions, Federal agencies and is binding on the Federal agencies and officials to which it applies. Based on its nature and scope, we conclude that 5 C.F.R. Part 451 is a Government-wide regulation within the meaning of section 7117 of the Statute. See OEA.
5 C.F.R. § 451.104(d) states that "[a]n award under this part shall not be used . . . as a substitute for pay." As we have concluded above that Proposal 1 essentially seeks an incentive award as a substitute for a special salary rate, or pay, it follows that the proposal is inconsistent with 5 C.F.R. § 451.104(d), a Government-wide regulation, and is not negotiable.
4. Relevance of NORD III
The Agency's assertion that the parties' national agreement poses a bar to the negotiability of this proposal raises an issue that we do not entertain in negotiability proceedings. Under part 2424 of the Authority's regulations, our review is limited to questions of whether a matter proposed for bargaining is inconsistent with law, rule or regulation. Questions such as those concerning the effect of a controlling agreement should be resolved in other appropriate proceedings. See, for example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 770 (1987).
5. Management's Right to Determine Its Budget
The arguments that the Agency has submitted in support of its assertion that Proposal 1 conflicts with management's right to determine its budget are substantially identical to those submitted and rejected in Internal Revenue Service. 37 FLRA at 152-54. We reject them here for the same reasons that we rejected them in Internal Revenue Service. That is, the Agency has not supported its contention that, based on increased costs or the impact of the proposal on its budget, this proposal would directly interfere with management's right to determine its budget under section 7106 of the Statute.
6. Summary
In summary, we conclude that Proposal 1 is nonnegotiable because it is inconsistent with 5 C.F.R. § 451.104(d), a Government-wide regulation. However, we reject the Agency's argument that Proposal 1 is nonnegotiable for the additional reasons that: "pay issues" do not concern conditions of employment; special salary rates are matters specifically provided for by Federal statute; and this proposal directly interferes with its management right to determine budget.
IV. Proposals 2 and 3
[Proposal 2]
The Employer agrees to compensate an employee who is detailed or reassigned for more than ten (10) work days to perform the duties of a position for which special salary rates have been implemented, at the special salary rate.
[Proposal 3]
The Employer agrees that employees who are receiving special salary rates, but are detailed or reassigned to a post of duty where special salary rates have not been implemented, shall continue to receive such special salary rates.
A. Positions of the Parties
The Agency argues here, as it did with respect to Proposal 1, that because these proposals concern a "pay issue" they do not come within the ambit of conditions of employment that Congress intended to be negotiable under the Statute. Additionally, the Agency contends that these two proposals are inconsistent with law and Government-wide regulation.
More specifically as to Proposal 2, the Agency asserts that under 5 U.S.C. § 5303, OPM has "exclusive authority . . . to specify how the special salary rates will be established" and that "[a]llowing the Union to determine how a special salary rate would be paid is contrary to 5 U.S.C. § 5303 and 5 C.F.R. Part 530." Agency statement of position at 9-10. As to Proposal 3, the Agency argues that "[i]n accordance with 5 U.S.C. §§ 5334 and 5363, and 5 C.F.R. §§ 531.203 and 536.104, OPM has exclusive authority to determine the criteria for whether an employee, who is reassigned from a special salary rate position to a non-rate position, is still entitled to the special salary rate level." Id. at 10. Moreover, the Agency contends that the determination of an employee's pay entitlements upon reassignment from a special salary rate position to a non-special salary rate position is governed by 5 C.F.R. §§ 531.203 and 536.104. According to the Agency, these provisions limit the circumstances under which an employee reassigned out of a special salary rate position may continue to be paid at the special salary rates. The Agency contends that 5 C.F.R. § 530.306(d)-(e) specifies how special salary rates will be established for employees reassigned into or out of special salary rate positions. As to employees who are on detail, the Agency contends that an employee's official position of record governs salary he/she may receive while on detail.
The Agency also argues that, based on the same reasons as Proposal 1, these two proposals infringe on management's right to determine its budget.
The Union contends that these two proposals concern conditions of employment within the meaning of section 7103(a)(14) of the Statute and do not conflict with Federal law or Government-wide regulations. It asserts that Proposals 2 and 3 do not set special salary rates or specify the positions that are to be considered special salary rate positions. Rather, the Union describes the proposals as providing that employees who are detailed or reassigned to and from special salary rate positions be compensated at the special salary rates established by OPM. Union reply brief at 4, 10-12. It argues that these two proposals are analogous to proposals that require agencies to compensate employees who are temporarily assigned to perform the duties of a higher-graded position at the rate of pay for the higher-graded position. In support of this contention, the Union cites American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Health Care Financing Administration, 31 FLRA 789 (1988) (HCFA) and National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987) (BLM) petition for review granted in part and denied in part as to other matters sub nom. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). The Union asserts that 5 U.S.C. § 5303 does not result in a blanket prohibition of negotiation over all proposals relating to special salary rates.
The Union contends that the Agency's reliance on 5 C.F.R. § 530.306(d)-(e) is misplaced because that provision "merely instructs where in the special salary rate an employee permanently transferred or re-assigned [sic] is to be placed." Union reply brief at 11-12. The Union also contends that 5 C.F.R. § 531.203(c)(1)(ii), relied upon by the Agency, is inapplicable to Proposal 3 because that regulation "does not apply to situations where an employee is re-assigned [sic] from one location to another without a change in position." Id. at 12-13. Moreover, the Union asserts that Proposal 3 is consistent with 5 C.F.R. § 536.104(a)(4) and the Agency's own regulation, IRM 0536.33, which allow for pay retention for employees "placed from a special rate position to a non-special rate position." Id. at 13.
Finally, the Union asserts that, as with Proposal 1, the Agency has failed to demonstrate that these two proposals meet the Authority's test for determining whether a proposal infringes on management's right to determine the budget of the Agency as set forth in Wright-Patterson.
B. Analysis and Conclusions
1. Conditions of Employment
For the reasons expressed in conjunction with Proposal 1, we reject the Agency's contention that the term "conditions of employment" does not encompass "pay issues," in general.
2. Proposals 2 and 3 Are Consistent with Law
We also reject the Agency's contention that these proposals seek negotiation over matters that are within OPM's "exclusive authority." Without reaching the question of the extent to which OPM may have "exclusive authority" over matters relating to special salary rates, we find that the Union's proposals do not seek to negotiate over OPM's exercise of whatever prerogatives or regulatory authority it may possess, under law, in the area of special salary rates. Rather, these proposals seek negotiation over the implementation and administration of special salary rates within the Agency.
We do not view the assignment by a governing law of overall regulatory authority concerning a particular matter to OPM as rendering all proposals relating to the Agency's implementation and administration of that matter within the Agency nonnegotiable. Rather, the appropriate analysis to be applied in determining whether proposals concerning the implementation and administration of the matter within the Agency are negotiable is whether those proposals are inconsistent with governing law and any Government-wide regulations issued by OPM, or are otherwise inconsistent with the Statute. Under Authority precedent, the Agency is obligated to bargain over such proposals to the extent that it possesses discretion over the matter. See Internal Revenue Service, 37 FLRA 147, 151-52 and n.1; American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 585-88 (1982), aff'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) (agency is obligated to bargain over a matter to the extent it has discretion notwithstanding its claim that another agency possesses "exclusive discretion" over the matter). Compare Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) (because the National Guard Technicians Act grants the Secretary of the Army unfettered discretion to establish work hours of National Guard technicians, a proposal to allow technicians to work a compressed schedule of four 10-hour days a week is excepted from the obligation to bargain).
Other than contending that under 5 U.S.C. §§ 5303, 5334 and 5363 OPM has "exclusive authority" concerning the establishment of special salary rates and employee entitlements to pay at the special salary rate level, the Agency asserts no further basis in support of its contention that Proposals 2 and 3 are inconsistent with those provisions. As we have rejected the argument proffered by the Agency and no other basis is apparent to us for concluding that Proposals 2 and 3 are inconsistent with 5 U.S.C. §§ 5303, 5334 and 5363, we find that the Agency's argument that these two proposals are inconsistent with law has not been sustained.
3. Whether Proposals 2 and 3 Are Inconsistent with Government-wide Regulations
a. The Regulatory Provisions Relied on Are Government-wide Regulations
Initially, following the framework that was set out in conjunction with our discussion of Proposal 1, we determine whether the provisions of OPM's regulations that are relevant to this dispute are Government-wide regulations within the meaning of section 7117(a) of the Statute. The specific regulatory provisions on which the Agency relies are: (1) 5 C.F.R. Part 530 (special salary rates); (2) 5 C.F.R. Part 531, subpart B (determining rate of basic pay); and (3) 5 C.F.R. Part 536 (pay retention).
OPM issued 5 C.F.R. Part 530 pursuant to the authority vested in it by 5 U.S.C. § 5303 and Executive Order 11721 to establish special salary rates. As relevant here, Part 530 applies generally to agencies having positions that would otherwise be covered by the General Schedule under 5 U.S.C. § 5332(a). 5 C.F.R. § 530.301. Under Part 530, OPM may establish and mandate the payment of special salary rates authorized by 5 U.S.C. § 5303. 5 C.F.R. § 530.302(a). By its terms, 5 C.F.R. Part 530 applies to positions in the General Schedule generally throughout the Federal sector and is binding on Federal agencies and officials. Based on its nature and scope, we conclude that 5 C.F.R. Part 530 is a Government-wide regulation within the meaning of section 7117(a) of the Statute. See OEA.
Under 5 U.S.C. § 5334, OPM is authorized to prescribe regulations governing the rate of basic pay to which employees are entitled under the General Schedule pay system when they change positions. The regulations that OPM has issued are codified at 5 C.F.R. Part 531, subpart B, and apply to employees and positions, other than Senior Executive Service positions, to which the General Schedule pay system, as provided by chapter 51 of title 5 of the U.S. Code, applies. See 5 C.F.R. § 531.201. 5 C.F.R. Part 531, subpart B, is applicable generally throughout the Federal sector and is binding on Federal agencies and officials. We conclude that, based on its nature and scope, 5 C.F.R. Part 531, subpart B, is a Government-wide regulation within the meaning of section 7117(a) of the Statute. See OEA.
Under 5 U.S.C. §§ 5361-66 and section 801(b) of Pub. L. 95-454, codified at 5 U.S.C. § 5362 (note), OPM is authorized to prescribe regulations governing the administration of pay retention. Those regulations are codified at 5 C.F.R. Part 536 and apply to employees eligible for pay retention under the above-cited provisions of law. 5 C.F.R. §§ 536.101-536.102. We find that 5 C.F.R. Part 536 is generally applicable throughout the Federal sector and is binding on Federal agencies and officials. See 5 U.S.C. §§ 5361-66 and 5 C.F.R. § 536.101. Consequently, we conclude that 5 C.F.R. Part 536 is a Government-wide regulation within the meaning of section 7117(a) of the Statute. See OEA.
b. Applicability of Government-wide Regulations to Proposal 2
Proposal 2 requires that employees who are detailed or reassigned for more than 10 workdays to perform the duties of a special salary rate position be compensated at the special salary rate. Insofar as reassignment is concerned, we conclude that this proposal is consistent with 5 C.F.R. Part 530. Specifically, 5 C.F.R. § 530.306(d) and (e) provides:
(d) General exception. Except as provided in paragraphs (e), (f), and (g) of this section, all other actions of promotion, reduction in grade, transfer, or reassignment are governed by the pay-fixing rules established for the appropriate pay system to which, or in which, the personnel action is taken.
(e) Reassignments and transfers. When an employee is reassigned or transferred at the same pay system to a position to which a special salary rate schedule applies, the agency shall fix the employee's rate in the special salary rate schedule at the step or rate in the special salary rate schedule for the employee's grade or level which corresponds to the employee's existing numerical step or rate in the salary rate schedule for the employee's grade or level.
In our view, under 5 U.S.C. § 530.306(e), an employee who is reassigned to a position to which a special salary rate applies is entitled to compensation at a special salary rate. See also Federal Personnel Manual (FPM) Supplement 990-2, Book 530, Appendix C, 530-C-3(5.).
Where employees are only detailed to a position to which a special salary rate applies, however, we conclude that, under OPM's regulations, they are not eligible for the special salary rate. 5 C.F.R. Part 530 does not make explicit reference to eligibility for special salary rates when employees have been detailed. However, as a general matter, an employee's eligibility for special salary rates under that Part is dependent upon his/her being in or occupying a position to which a special salary rate applies. See 5 C.F.R. § 530.306; see also, FPM Supplement 990-2, Book 530, subchapter S3, S3-3(1) ("Special salary rates may be authorized for positions classified under the General Schedule . . . ." [emphasis supplied]); Unpublished decision of the Comptroller General, B-229316 (Apr. 18, 1988) (position did not entitle incumbent to special salary rates). Thus, the question becomes one of whether an employee who is detailed to a position to which a special salary rate applies is "in" or "occupies" that position.
Although Part 530 does not contain a definition of the term "detail," it is a general principle in the Federal personnel system that details do not entail a change of position and that the employee continues to hold the position from which detailed. See FPM Chapter 300, subchapter 8(8-3); FPM Chapter 531, subchapter 2(2-7.f); see also Spagnola v. Stockman, 732 F.2d 908 (Fed. Cir. 1984) (Spagnola). Compare 5 U.S.C. § 3343(a) ("detail" of employees to international organizations defined as "the assignment or loan of an employee . . . without a change of position . . ."). Applying this widely held principle to Part 530, we conclude that employees who are only detailed to positions to which special salary rates apply are not in, or do not occupy, the positions to which they are detailed. Compare Spagnola, 732 F.2d at 912 (employee did not have an "appointment" to a position merely by virtue of his detail to that position and had no entitlement to the salary of that position). To require, as Proposal 2 does, that an employee who is detailed to a position to which a special salary rate applies be compensated at the special salary rate is inconsistent with 5 C.F.R. Part 530, a Government-wide regulation.
The circumstances in this case are distinguishable from those in HCFA, 31 FLRA 789, and Provision 3 in BLM, 29 FLRA 1491, on which the Union relies. In HCFA, the Authority decided the case based on the arguments presented to it. Thus, its consideration was limited to whether a proposal that an employee detailed to a special rate position should receive the special pay rate was inconsistent with 5 C.F.R. § 532.411 or directly interfered with management's rights. The Authority was not presented with, and did not address, the question of the applicability of 5 C.F.R. Part 530 in that case.
In BLM, the Authority found negotiable a provision that required that an employee be given a temporary promotion when placed in a higher-graded position or assigned to perform higher-graded duties. BLM and similar Authority decisions rely on an exception to the general rule that an employee is entitled to pay only for the position to which the employee is actually appointed. See, for example, U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155 (1990). Under that exception, parties may enter into an enforceable collective bargaining agreement to make temporary promotions mandatory for details to higher-graded positions, thus entitling an employee to compensation at the higher grade. See also Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. -- (B-232695) (Dec. 15, 1989).
The proposal in this case is distinguishable from those in BLM and similar cases in that it does not seek a temporary promotion but, rather, compensation at special salary rates. "Promotion" is generally defined as the change of an employee to a position at a higher-grade level within the same job classification system and pay schedule or to a position with a higher rate of basic pay in a different job classification system and pay schedule. See, for example, FPM Chapter 335, subchapter 1, 1-2; FPM Supplement 296-33, subchapter 35, 35-9. Under the special salary rate provisions, an employee does not change grade or classification system, but simply receives a salary rate higher than the regular statutory schedule for his/her grade. See 5 C.F.R. § 530.306; FPM Supplement 990-2, Book 530.
To summarize, Proposal 2 is consistent with Government-wide regulations insofar as it concerns reassignments; however, it is inconsistent with Government-wide regulations insofar as it concerns details.
c. Applicability of Government-wide Regulation to Proposal 3
Proposal 3 requires that employees who are receiving special salary rates and are detailed or reassigned to a post of duty where special salary rates do not apply shall continue to receive the special salary rates. Insofar as this proposal concerns details, we conclude that it is not inconsistent with 5 C.F.R. Part 530. For the reasons set forth in our discussion of Proposal 2, we conclude that the detailed employee would continue to be in, or occupy, a position to which special salary rates apply and, therefore, be entitled to the special salary rate under Part 530.
As for reassignment, we reach a different conclusion. Even though, as the Union suggests, an employee's reassignment may be to a like position in a different post of duty the applicability of special salary rates to the new position is dependent on whether OPM has authorized special salary rates for that position in the particular geographic location of the position. This is because special salary rates are established based on both the position and the geographic location of the position. See 5 U.S.C. § 5303(a); 5 C.F.R. § 530.303(a); and FPM Chapter 530, subchapter 3(3-3). A reassignment to a position in a location, or post of duty, for which special salary rates have not been authorized is encompassed by 5 C.F.R. § 530.306(d), which is quoted above. Under that provision, the pay-fixing rules that govern are those established for the pay system to which, or in which, the reassignment is taken. Thus, an employee reassigned to a non-special salary rate position is no longer eligible for special salary rates pursuant to the operation of 5 C.F.R. Part 530 and becomes subject to the pay-fixing rules that govern the General Schedule. Consequently, the rate of basic pay upon reassignment would be subject to 5 C.F.R. § 531.203 or 5 C.F.R. Part 536, as appropriate.
Under 5 C.F.R. § 531.203, an employee who is reassigned within an agency is subject to the "highest previous rate" provisions set forth in that section. Where an employee is reassigned from a special salary rate position to a non-special salary rate position within an agency his/her "highest previous rate" may not be based on his/her special salary rate except in limited circumstances. Those circumstances are as follows:
(A) The special rate of pay is the employee's current rate of basic pay; and
(B) An agency official specially designated to make such determinations finds that the need for the services of the employee, and his or her contribution to the program of the agency, will be greater in the position to which he or she is being reassigned. Such determinations shall be made on a case-by-case basis, and in each case the agency shall make a written record of its positive determination to use the special rate as an employee's highest previous rate.
55 Fed. Reg. 14827, 14829-30 (Apr. 19, 1990) (to be codified at 5 C.F.R. § 531.203(d)).
Under 5 C.F.R. Part 536, employees who would otherwise suffer a reduction in their rate of basic pay as a result of placement into a non-special salary rate position from a special salary rate position are eligible for pay retention. 5 C.F.R. § 536.104. However, pay retention does not apply to an employee who is reduced in pay for personal cause or at the employee's request. 5 C.F.R. § 536.105(a)(3). Thus, an employee's entitlement to pay retention in the event of reassignment to a non-special salary rate position from a special salary rate position is limited to those circumstances where management directs the employee's movement between the two positions. See 55 Fed. Reg. 14827, 14828-29.
Proposal 3 requires that when employees are reassigned from a position to which special salary rates apply to one in a post of duty to which special salary rates do not apply, those employees will continue to receive the special salary rates. As set forth above, this is inconsistent with 5 C.F.R. § 530.306(d) insofar as it contemplates the continued applicability of the special salary rate schedules to the employee. Insofar as it may contemplate continuation of pay at the special salary rate level based on the employee's highest previous rate, it is inconsistent with 5 C.F.R. § 531.203 because it does not allow for the requisite determination to be made on a case-by-case basis as specified at 5 C.F.R. § 531.203(d). Insofar as Proposal 3 requires continuation of the pay at the special salary rate as retained pay, it is inconsistent with 5 C.F.R. §§ 536.105 because it makes no allowances for exceptions to the requirement based on the limitations on eligibility for pay retention that are set forth in that section.
d. Summary
To summarize, Proposal 2 is inconsistent with Government-wide regulations insofar as it concerns details. However, it is not inconsistent with Government-wide regulations insofar as it concerns reassignments. Proposal 3 is inconsistent with Government-wide regulations insofar as it concerns reassignments; however, it is not inconsistent with Government-wide regulations insofar as it concerns details.
4. Management's Right to Determine Its Budget
As stated in conjunction with Proposal 1, we reject, as unsupported, the Agency's assertion that these proposals, like Proposal 1, directly interfere with management's right to determine its budget.
5. Summary and Conclusions
Based on the foregoing, we reject the Agency's arguments that Proposals 2 and 3 are nonnegotiable because they do not concern "conditions of employment" and are inconsistent with law. We also reject, as unsupported, the argument that these proposals directly interfere with management's right to determine its budget. We find that Proposal 2 is inconsistent with Government-wide regulations and is nonnegotiable to the extent that it concerns details. However, to the extent that it concerns reassignments it is negotiable because it is not inconsistent with Government-wide regulations. We find that Proposal 3 is inconsistent with Government-wide regulations and is nonnegotiable to the extent that it concerns reassignments. However, to the extent that it concerns details it is negotiable because it is not inconsistent with Government-wide regulations.
V. Order
The Union's petition for review is dismissed insofar as it concerns Proposal 1; Proposal 2, to the extent that proposal concerns details; and Proposal 3, to the extent that proposal concerns reassignments. The Agency must negotiate upon request, or as otherwise agreed to by the parties, concerning Proposal 2, to the extent that it concerns reassignments, and Proposal 3, to the extent that it concerns details.(3)
FOOTNOTES:
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have footnotes.)
1. Special salary rates under 5 U.S.C. § 5303 apply to three groups: General Schedule employees; certain employees in the Department of Veterans Affairs; and personnel paid under section 403 of the Foreign Service Act of 1980. 5 U.S.C. § 5303(a); 5 C.F.R. § 530.301. Based on the record, we conclude that the employees to which the proposals in this case apply fall within the first group.
2. "Performance awards," which are defined as a performance-based cash payment to an employee based on the employee's rating of record, are governed by 5 C.F.R. Part 430, subpart E. The parties, in their arguments as to this proposal, focus on 5 C.F.R. Part 451. Moreover, there is nothing in either the language of the proposal or the Union's statements concerning the intent of this proposal that suggests a link between the incentive awards proposed and the employee's "rating of record." Therefore, for purposes of this decision, we will interpret the incentive awards to which the proposal refers as being "superior accomplishment awards" rather than "performance awards."
3. In finding these portions of the proposals to be within the duty to bargain, we make no judgment as to their merits.