U.S. Dept. of Air Force v. Federal Labor Relations Authority, 90-1530

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation293 App. D.C. 90,952 F.2d 446
Docket NumberNo. 90-1530,90-1530
Parties139 L.R.R.M. (BNA) 2151, 30 Wage & Hour Cas. (BNA) 1221, 293 U.S.App.D.C. 90, 60 USLW 2448, 121 Lab.Cas. P 35,604 UNITED STATES DEPARTMENT OF the AIR FORCE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
Decision Date26 February 1992

Page 446

952 F.2d 446
139 L.R.R.M. (BNA) 2151, 30 Wage & Hour Cas.
(BNA) 1221,
293 U.S.App.D.C. 90, 60 USLW 2448,
121 Lab.Cas. P 35,604
UNITED STATES DEPARTMENT OF the AIR FORCE, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
No. 90-1530.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 20, 1991.
Decided Dec. 27, 1991.
Rehearing and Rehearing En
Banc Denied Feb. 26, 1992.

Page 447

Petition for Review of an Order of the Federal Labor Relations Authority.

Edward T. Swaine, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Dept. of Justice, and Mark B. Stern, Atty., Dept. of Justice, were on the brief for petitioner. Robert V. Zenner, Atty., Dept. of Justice, also entered an appearance for petitioner.

Jill A. Griffin, Atty., Federal Labor Relations Authority, with whom William E. Persina, Sol., Federal Labor Relations Authority, and William R. Tobey, Deputy Sol., Federal Labor Relations Authority, were on the brief for respondent.

Before WALD, D.H. GINSBURG and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge RANDOLPH.

WALD, Circuit Judge:

The United States Department of the Air Force ("Air Force") petitions for review of a decision and order of the Federal Labor Relations Authority ("Authority" or "FLRA") requiring the Air Force to engage in collective bargaining over a proposal advanced by the American Federation of Government Employees, Local 987 ("union"). The proposal calls for overtime compensation for the time employees are delayed in leaving the worksite because of security measures. The Authority has

Page 448

cross-petitioned for enforcement of its order. Because we disagree with the Authority's interpretation of a government-wide regulation promulgated by the Office of Personnel Management ("OPM"), and further find that the proposal is inconsistent with that regulation, we hold that the proposal is nonnegotiable.

I. BACKGROUND

A. Legal Framework

The Federal Service Labor-Management Relations Statute ("FSLMRS"), 5 U.S.C. §§ 7101-7135 (1988), imposes upon both the Air Force and the union a general obligation to negotiate in good faith over the conditions of employment of represented employees. 5 U.S.C. §§ 7114, 7117. The FSLMRS also limits the scope of that duty, however: a federal agency may not negotiate over proposed conditions of employment that are "inconsistent with any Federal law or any Government-wide rule or regulation." 5 U.S.C. § 7117(a)(1).

The FSLMRS is a part of the Civil Service Reform Act of 1978, as amended, 5 U.S.C. §§ 1101-9101 (1988), in which Congress designated the OPM as the lead personnel agency for civilian employees in the executive branch. Congress charged the OPM with authority to issue government-wide regulations concerning federal employees under that Act. See 5 U.S.C. §§ 1103-04, 1301-02; S.Rep. No. 969, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2727-28. The OPM has also been granted the broad authority to engage in substantive (or "legislative") rulemaking concerning the application of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 204(f), and the Federal Employees Pay Act ("FEPA"), 5 U.S.C. § 5548, to federal employees. See AFGE v. OPM, 821 F.2d 761 (D.C.Cir.1987). In general, the OPM regulations under the FLSA define the minimal entitlement of federal employees to premium or overtime pay while the FEPA sets absolute standards for computing their pay. One of the OPM regulations, 5 C.F.R. § 551.513, provides that if an employee is covered by both Acts, the employee will be paid the greater amount if the regulations under one of the Acts would provide a greater benefit than those under the other. 1

In the Part 551 regulations promulgated under the FLSA, the OPM addressed among other things activities performed at the conclusion of the workday. The regulations provide in relevant part:

A ... concluding activity that is not closely related to the performance of [an employee's] principal activities is considered a ... postliminary activity. Time spent in ... postliminary activities is excluded from hours of work and is not compensable, even if it occurs between periods of activity that are compensable as hours of work.

5 C.F.R. § 551.412(b)(2) (1990). The OPM simultaneously promulgated a rule with nearly identical language in its regulations implementing the FEPA. Those regulations provide in relevant part:

A ... postshift activity that is not closely related to the performance of [an employee's] principal activities is considered a ... postliminary activity. Time spent in ... postliminary activities is excluded from hours of work and is not compensable, even if it occurs between periods of activity that are compensable as hours of work.

5 C.F.R. § 550.112(b)(2) (1990).

B. Factual Background

In an effort to diminish the risk of terrorist acts at Robins Air Force Base, Georgia, the Air Force decided to build a security fence that restricts access to its flightline.

Page 449

The security fence has a limited number of gates through which employees may exit the flightline, so that employees may on occasion be delayed in leaving their workstations at the end of their shifts because of malfunctioning gates or other obstructions. The union offered the following proposal for negotiation:

[The Air Force] agrees to pay overtime if, at the end of an employees [sic] tour of duty the employee(s) can not exit through the gate because of mechanical malfunction or any other means of obstruction.

The Air Force declared the proposal nonnegotiable, under § 7117(a)(1) of the FSLMRS, contending that the proposal was inconsistent with government-wide OPM regulations governing postshift activities. See 5 C.F.R. § 551.412(b) and 5 C.F.R. § 550.112(b)(2). Pursuant to § 7105(a)(2)(E) of the FSLMRS, the union appealed the matter to the FLRA. The Authority ruled, with one member dissenting, that the proposal was not inconsistent with the OPM regulations cited and, thus, that the Air Force had a duty to bargain about it. AFGE, Local 987 and U.S. Dep't of the Air Force, Robins Air Force Base, 37 F.L.R.A. (No. 13) 197 (1990).

C. The Authority's Rationale

The Authority recognized that the represented employees are covered by both the FLSA and the FEPA, and that OPM government-wide regulations implementing the overtime provisions of these two statutes provide that compensation for such employees is governed by whichever statute would provide greater benefits. See 5 C.F.R. § 551.113. The Authority ultimately determined that the OPM regulation under the FEPA--5 C.F.R. § 550.112(b)(2)--would not allow bargaining over the union's proposal, but the nearly identical regulation under the FLSA--5 C.F.R. § 551.412(b)--would allow bargaining. The Authority's interpretation of § 551.412(b) is therefore the central issue in this dispute.

The Authority acknowledged that the activity involved in the union's proposal--waiting to leave the workplace after completing a shift--is a "postliminary activity" within the meaning of § 551.412(b), and that the regulation is "government-wide" within the meaning of § 7117(a)(1) of the FSLMRS. The Authority concluded, however, that despite the language in that regulation stating "postliminary activit[y] ... is not compensable," the union's proposal could nevertheless be negotiated because § 551.412(b) merely established a minimum floor of statutory "entitlements," which an agency and union may supplement in their collective bargaining agreement. In the Authority's view, the regulation did not lay down a mandatory rule for noncompensation of postliminary activities; it was designed only to clarify that federal employees did not have a statutory right under the FLSA to compensation for postliminary activities. Thus, agencies are not required to compensate employees for time spent in postliminary activities under the regulation, but they may do so if a collective bargaining agreement provides for it.

The Authority's conclusion was driven by its concern that the Air Force's interpretation of § 551.412(b) created a possible conflict with § 4(b) of the Portal-to-Portal Act's amendments to the FLSA. Although the general thrust of that Act was to eliminate employer liability for failure to compensate postliminary activities, § 254(b) contained an exception preserving employer liability in cases where a collective bargaining agreement expressly provided for postliminary compensation. 2 In order to avoid a perceived conflict between the OPM regulation and § 254(b), the Authority interpreted § 551.412(b) as not barring negotiated

Page 450

compensation for postliminary activity.

II. DISCUSSION

We review the Authority's decision based on the entire record before the Authority and we will set it aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988); AFGE, AFL-CIO, Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C.Cir.1988). The central issue here involves the Authority's interpretation of an OPM regulation, and although we defer to the Authority's construction of its enabling statute (the FSLMRS), we do not defer to the FLRA's interpretation of regulations promulgated by other agencies. National Treasury Employees Union v. FLRA, 848 F.2d 1273, 1275 (D.C.Cir.1988). Deference to the FLRA is especially inappropriate here because Congress specifically delegated to the OPM the authority "to administer" the FLSA's provisions on payment of overtime for postshift activity. 29 U.S.C. § 204(f); see INS v. FLRA, 709 F.2d 724, 729 n. 21 (D.C.Cir.1983). The Authority's interpretation of § 551.412(b) is therefore subject to de novo review. Merit Systems Protection Bd. v. FLRA, 913 F.2d 976, 979 (D.C.Cir.1990).

Section 551.412(b) is found within a subpart of the OPM regulations promulgated under the FLSA, which define the hours of...

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