National Treasury v. Federal Labor Relations Authority

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL TREASURY EMPLOYEES  UNION (NTEU), Petitioner, OFFICE OF THE COMPTROLLER OF THE No. 04-72237

 CURRENCY, FLRA No. 59 Intervenor, FLRA No. 148 v. OPINION FEDERAL LABOR RELATIONS AUTHORITY, Respondent.  On Petition for Review of a Decision and Order of the Federal Labor Relations Authority

Argued and Submitted December 9, 2005—San Francisco, California

Filed January 23, 2006

Before: Alex Kozinski and William A. Fletcher, Circuit Judges, and H. Russel Holland,* Senior District Judge.

Opinion by Judge Holland

*The Honorable H. Russel Holland, Senior District Judge for the Dis- trict of Alaska, sitting by designation.

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 921

COUNSEL

Kerry L. Adams, Associate General Counsel, Nat. Treasury Employees Union, Washington, D.C., argued the cause for the petitioner; Gregory O’Duden, General Counsel, and Barbara A. Atkin, Deputy General Counsel, Nat. Treasury Employees Union, Washington, D.C., were on the briefs.

Ellen M. Warwick, Counsel, Office of the Comptroller of the Currency, Washington, D.C., argued the cause for the interve- nor; Julie L. Williams, First Senior Deputy Comptroller and Chief Counsel, Daniel P. Stipano, Counsel, and David C. Kane, Counsel, Office of the Comptroller of the Currency, Washington, D.C., were on the brief.

James F. Blandford, Federal Labor Relations Authority, Washington, D.C., argued the cause for the respondent; David M. Smith, Solicitor, and William R. Tobey, Deputy Solicitor, Federal Labor Relations Authority, Washington, D.C., were on the brief.

OPINION

HOLLAND, District Judge:

The National Treasury Employees Union (“Union”) peti- tions for review of the Federal Labor Relations Authority’s (“FLRA”) decision that a proposal regarding geographically- based pay (“geo pay”) was outside the Comptroller of the Currency’s duty to bargain. Federal agencies are generally

922 NATIONAL TREASURY EMPLOYEES UNION v. FLRA required to negotiate in good faith with a representative of their employees over conditions of employment. See Fort Stewart Sch. v. FLRA, 495 U.S. 641, 644 (1990). Wages and other monetary compensation are considered a condition of employment. Id. at 645-50. However, there is no duty to negotiate if “Congress intended the agency in question to enjoy complete discretion over the particular matter at issue.” Am. Fed’n of Gov’t Employees, Local 3295 v. FLRA, 46 F.3d 73, 74 (D.C. Cir. 1995) (“AFGE”). The FLRA concluded that 12 U.S.C. §§ 481 and 482 give the Comptroller sole and exclusive discretion to set the compensation for employees of the Office of the Comptroller of the Currency (“OCC”), and thus the Comptroller had no duty to bargain over the geo pay proposal. We have jurisdiction pursuant to 5 U.S.C. § 7123(a), and we affirm the FLRA’s decision.

Review of decisions of the FLRA are governed by 5 U.S.C. § 706, which provides that agency action shall be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Dep’t of Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994). “The FLRA is entitled to considerable deference when it is applying the general provisions of the Federal Service Labor-Management Relations Statute to the complexities of federal labor relations.” United States Dep’t of Interior v. FLRA, 279 F.3d 762, 765 (9th Cir. 2002). How- ever, because the FLRA does not administer § 481 or § 482, no deference is owed to its interpretation of these statutes. See id.

[1] Determination of the extent of the Comptroller’s discre- tion over compensation issues is a question of statutory inter- pretation. We begin our analysis by considering the language of the statute itself. United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005). “Where the statutory language is clear and consistent with the statutory scheme at issue . . . the judicial inquiry is at an end.” Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000).

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 923 Section 481 provides, in pertinent part, that bank examiners and other necessary staff

shall be employed by the Comptroller of the Cur- rency with the approval of the Secretary of Treasury; the employment and compensation of examiners, chief examiners, reviewing examiners, assistant examiners, and of the other employees of the office of the Comptroller of the Currency whose compen- sation is and shall be paid from assessments on banks or affiliates thereof or from other fees or charges imposed pursuant to this section shall be without regard to the provisions of other laws appli- cable to officers or employees of the United States.

12 U.S.C. § 481 (emphasis added).

[2] Section 481 is not ambiguous. It gives the Comptroller the authority to set compensation for OCC employees “with- out regard to the provisions of other laws.” This type of lan- guage has consistently been interpreted by both the courts and the FLRA as giving an agency unfettered discretion over the matter at hand. See, e.g., AFGE, 46 F.3d at 76; United States Dep’t of Def. Nat’l Imagery and Mapping Agency, 57 F.L.R.A. 837, 844 n.10 (2002). That the Comptroller’s com- pensation decisions are subject to approval by the Secretary of Treasury does not affect this interpretation. The agency involved here, for purposes of collective bargaining, is the Department of Treasury, and the fact that the Secretary of that department had to approve the Comptroller’s compensation decisions does not mean that the agency’s discretion over compensation issues was something less than sole and exclu- sive. See 5 U.S.C. §§ 101, 105, 7103(a)(3), 7114(a)(4). In short, § 481 gives the relevant agency—the Department of Treasury—sole and exclusive authority over compensation issues for OCC employees.

Section 482, as amended in 1989 and 1994, provides, in pertinent part, that

924 NATIONAL TREASURY EMPLOYEES UNION v. FLRA [n]otwithstanding any of the provisions of section 481 of this title or section 301(f)(1) of Title 31 to the contrary, the Comptroller of the Currency shall fix the compensation and number of, and appoint and direct, all employees of the Office of the Comptrol- ler of the Currency. Rates of basic pay for all employees of the Office may be set and adjusted by the Comptroller without regard to the provisions of chapter 51 or subchapter III of chapter 53 of Title 5. The Comptroller may provide additional compensa- tion and benefits to employees of the Office if the same type of compensation or benefits are then being provided by any other Federal bank regulatory agency or, if not then being provided, could be pro- vided by such an agency under applicable provisions of law, rule, or regulation. In setting and adjusting the total amount of compensation and benefits for employees of the Office, the Comptroller shall con- sult with, and seek to maintain comparability with, other Federal banking agencies.

12 U.S.C. § 482. As explained below, § 482 is not ambiguous either, and none of the provisions of § 482 conflict with or limit the unfettered discretion given the agency in § 481.

[3] First, § 482 provides that the Comptroller shall fix the compensation and number of all OCC employees and appoint and direct the activities of these employees, notwithstanding any provision of § 481 to the contrary. This provision rein- forces that the Comptroller’s authority is sole and exclusive by eliminating the need for Treasury Secretary’s approval of the Comptroller’s compensation decisions. Second, § 482 authorizes the Comptroller to set rates of basic pay without regard to the wage schedules and other pay provisions found in Title 5 of the United States Code, authority that the Comp- troller already had pursuant to § 481. The reference to Title 5 neither conflicts with nor constitutes a partial repeal of § 481 as would be necessary if Congress had intended this reference

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 925 to limit the discretion given the Comptroller in § 481. The ref- erence to Title 5, coupled with the removal of Treasury approval, is properly deemed a reaffirmation of the Comptrol- ler’s discretion expressed in § 481, the full scope of which, at least as regards wages, the Secretary of Treasury appears to not have always given complete effect.

Finally, § 482 directs the Comptroller to seek to maintain pay comparability with the other federal banking agencies by specifying that the Comptroller may provide additional com- pensation and benefits to OCC employees similar to that being provided by any other federal bank regulatory agency. Although the Comptroller must consult with other banking agencies and consider what they are providing in terms of compensation, the Comptroller is not required to match, nor is he limited by, what other agencies are providing their employees in terms of compensation and benefits. Wage par- ity is an aspiration but not a directive that constrains the Comptroller’s sole discretion.

[4] We conclude that, pursuant to §§ 481 and 482, the Comptroller has sole and exclusive discretion over compensa- tion issues for OCC employees. Thus, the geo pay proposal was outside the Comptroller’s duty to bargain. The FLRA’s conclusion to that effect was neither arbitrary nor capricious. See 5 U.S.C. § 706(2)(A).

PETITION DENIED.