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61 FLRA No. 49
UNITED STATES SECURITIES AND EXCHANGE COMMISSION, WASHINGTON, D.C. AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 293 (Hockenberry, Arbitrator) Case No. 0-AR-3946 (September 16, 2005)
The Arbitrator found that the Agency reduced unit employees' base pay in violation of the Investor and Capital Markets Fee Relief Act. Accordingly, he sustained the grievance. The Authority found that the award was not contrary to §7121(c)(5) of the Statute, but was contrary to the Act.
The Authority found that the grievance and award in this case concerned only the amount of pay provided to employees, and not the Agency's determination regarding the appropriate grade levels at which duties should be classified, thus the Authority found that the grievance and the award did not involve a classification matter and were not contrary to § 7121(c)(5).
However, the Authority found that the award violated the Capital Markets Fee Relief Act. The Act provides that the Agency may set rates of basic pay of employees without regard to the provisions of chapter 51 or subchapter III of chapter 53 of title 5 of the United States Code. The Act also provides that with regard to employees who are represented by an exclusive representative under the Statute, no reduction in base pay of such employee shall be made by reason of enactment of this section (including the amendments made by this section). The Authority further found that nothing in the plain wording or legislative history indicated that locality pay may not be considered part of base pay. The Authority found that nothing in the Act indicated that the Agency was required to apply a formula resulting in an 18.64 percent pay raise, which was what the Union sought. Thus, the Authority found that the Arbitrator's finding that the Agency violated the Act was contrary to law and set aside the award.