National Treasury Employees Union and Department of the Treasury, Office of the Comptroller of the Currency, Washington, D.C., 0-NG-2730, April 12, 2004, 59 FLRA No. 148.

In a split decision (Member Pope dissenting), the Authority found nonnegotiable a proposal requiring that relocated employees continue to receive, for three years after their relocation, the geographical-based pay of the office from which transferred (if it is higher than that of the area to which the employee is transferred). In the majority's view, the Comptroller of the Currency has sole and exclusive discretion to fix employees§compensation.

The disputed proposal reads as follows:

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.

In a split decision (Member Pope dissenting) the Authority found that agency wasn't obligated to bargain over the proposal because under 12 U.S.C. §481 the Comptroller of the Currency has sole and exclusive discretion to fix employee pay. In this connection, FLRA noted that §481 (enacted in 1933) provides that "the employment and compensation" of the employees "shall be made without regard to the provisions of other laws applicable to officers or employees of the United States." Citing AFGE, Local 3295, 47 FLRA 884; Ill. Nat'l Guard v. FLRA, 854 F.2d 1396, 1401 (D.C. Cir. 1988); and Colo. Nurses Ass'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988), FLRA said "the wording of §481, when considered by itself, grants the Comptroller sole and exclusive discretion to establish compensation."

FLRA noted that 12 U.S.C. §482, enacted in 1989, authorized the Comptroller to hire staff and set their compensation. In the majority's view, the requirement in §481 that the Comptroller seek the approval of the Secretary of the Treasury was superseded by §482, under which no approval or consultation with the Secretary of Treasury is required.

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.

Member Pope, in her dissent, found that neither §481 nor §482 granted the Comptroller sole and exclusive discretion to establish compensation. Since §481 was enacted in 1933, the laws from which it was exempted did not include the Federal Service Labor-Management Relations Statute (Statute), which was enacted over 45 years later. "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."

Nor did the legislative history of §482 indicate that Congress intended to grant sole and exclusive discretion to the Comptroller. Congress had rejected a version of §482 that would have given the Comptroller discretion to fix compensation without regard to "the provisions of any other law, including any provision of Title 5." Moreover, the legislative history indicates that Congress intended to grant the Comptroller the same discretion as the FDIC. "It is undisputed that, at the time §482 was enacted, FDIC was required to bargain over pay. . . . [T]he 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."

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 with the duty to bargain and issue a bargaining order.

Given the importance of the issue, we assume that the NTEU will seek court review of this split decision.