File 2: Opinion of Member Pope
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Dissenting Opinion of Member Carol Waller Pope:
"[T]he Authority has consistently held that matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation." Patent Office Professional Association, 53 FLRA 625, 648 (1997). The provision in this case required the Agency to pay employee for certain extra travel time. This pay is neither mandated nor prohibited by law, and paying employees for extra travel appears on its face to be well within the discretion of the Agency.
The majority, however, finds the provision unlawful, on the ground that it is inconsistent with an OPM regulation. 5 C.F.R. § 551.422(b) (§ 422(b)). It does so without considering the statutory context in which the regulation was issued -- which context compels a conclusion that, in fact, the provision is not inconsistent with the regulation. The result therefore is a needless narrowing of the scope of collective bargaining, in direct contravention of Congress' intent. As there is absolutely no indication that OPM intended the regulation to be interpreted in this manner, and as any such intent would itself be inconsistent with law, I dissent.
There is no dispute that the provision at issue, which has been agreed to by the parties, would compensate employees for certain commute time. There also is no dispute that the provision would apply to employees who are not exempt from --who are covered by -- the FLSA. The majority holds that the provision is inconsistent with § 422(b), which provides that "home to work travel . . .is not hours of work."
The error of the majority's holding becomes apparent when the applicability of § 422(b) and its statutory context are fully considered.
The FLSA, which was enacted in 1938, provides minimum statutory protections for employees, including minimum wages and entitlement to overtime. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739 (1981). In 1947, the FLSA was amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262. As amended, 29 U.S.C. § 254(a) provides, as relevant here, that employees are not entitled to compensation for time spent traveling to and from work. That section also provides, however, that "notwithstanding" the fact that employees are not entitled by law to compensation for traveling to and from work, this activity may be made "compensable" by "an express provision of a written or nonwritten contract in effect, at the time of such activity" between the employees' union and employer. 29 U.S.C. § 254(a)(1), (b)(1). This statutory recognition that parties may provide for the payment of travel time by contract reflects the overall design of the FLSA to provide minimum protections, rather than required payment rules. See generally, Carter v. Panama Canal Co., 463 F.2d 1289, 1292-94 (D.C. Cir. 1972); cert den. 409 U.S. 1012 (1972).
In 1974, the FLSA was again amended, this time to extend its coverage to certain Federal employees, including those involved in this case. At that time, Congress "resolved the potential conflict" between the pay provisions of the FLSA and those in then-existing civil service laws by "giving the Civil Service Commission (now OPM) the authority to `administer the provisions of [the FLSA] with respect to any individual employed by the United States . . ..'" AFGE v. OPM, 821 F.2d 761, 769 (D.C. Cir. 1987) (quoting 29 U.S.C. § 204(f)). OPM was not given unlimited authority, however. Instead, Congress indicated that OPM's authority must be exercised "in a manner that is consistent with the Secretary of Labor's implementation of the FLSA" and so as to ensure that "any employee entitled to overtime compensation under the FLSA receives it under the civil service rules." Id. at 770 (citing legislative history).
OPM regulations acknowledge that the basic purpose of the FLSA is to "provide for minimum standards for both wages and overtime entitlement[.]" 5 C.F.R. § 551.101(a). And consistent with the fact that 29 U.S.C. § 254 provides no entitlement to pay for time traveling to and from work, OPM regulations provide, as noted above, that time spent traveling to and from work "is not hours of work." 5 C.F.R. § 551.422(b). Unlike Department of Labor regulations implementing 29 U.S.C. § 254 for employees in the private sector, OPM regulations do not acknowledge that time traveling to and from work may be made compensable by contract agreement. See 29 C.F.R. § 785.34 (acknowledging contract exception to nonpayment for travel time). However, there is absolutely no indication that OPM intends the regulations to be interpreted as a prohibition on such agreement. [*] More importantly, it is improper to construe the regulations as prohibiting such agreement because doing so means that OPM regulated this matter in a manner inconsistent with the Secretary [ v59 p125 ] of Labor's implementation of the FLSA. As noted above, this would be in excess of OPM's authority.
As noted above, unions and agencies are permitted to bargain over matters that are within the discretion of the agency. Here, nothing in the OPM regulations limits the Agency's discretion to agree to pay employees for the travel encompassed by the disputed provision, and there is no inconsistency with the regulation in permitting such payment. It is clear and undisputed, in this regard, that the disputed provision falls squarely within the range of provisions that are permitted under 29 U.S.C. § 254(b) and, as a result, would be fully enforceable in the private sector. As a result, I would find it permitted under the Statute also.
The majority relies on AFGE, AFL-CIO, Local 3232, 31 FLRA 355 (1988), where the Authority held that § 422(b) precluded bargaining over a proposal that employees be granted leave for additional time spent traveling to a temporary assignment. Although the holding of AFGE, Local 3232 supports the result here, the union in that case did not argue, and the Authority did not consider, whether section 422(b) should be construed to permit agreements to pay for travel time, in light of 29 U.S.C. § 254. Rather, the Authority in that case simply rejected the union's sole argument -- that the leave at issue constituted discretionary administrative leave. Nothing in that decision addresses or resolves the issue in this case.
The majority also relies on United States Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991) (Air Force), where the court held that a different OPM regulation, 5 C.F.R. § 551.412(b) (§ 412(b)), precluded negotiations over payment for "preparatory or concluding activities." In Air Force, the court relied on the "categorical language" of § 412(b), which provides that "[t]ime spent in preliminary or postliminary activities is excluded from hours of work and is not compensable." Air Force, 952 F.2d at 450 (quoting § 412(b)(emphasis added). Although both § 412 (applicable in Air Force) and § 422 (applicable here) address whether activities constitute hours of work, only § 412 contains the wording -- that the activities are not compensable -- found "categorical" by the court.
That § 422 does not contain the "categorical" wording found significant by the court in Air Force supports a conclusion that the court's reasoning in Air Force does not apply here. However, even if § 422 is considered to be similarly "categorical," I would reject an application of the regulation that denies employees the right to negotiate over this issue for the reasons stated by the dissent in that case. In this regard, the dissent in Air Force notes that OPM's regulations were promulgated expressly to administer the FLSA. 952 F.2d at 455. The dissent explains that, if OPM's regulations were interpreted to prohibit collective bargaining agreements establishing entitlements exceeding the FLSA's minimums, then:
OPM would not be administering the FLSA . . .. Rather than ordering an employer to pay the minimum compensation required by law, it would be prohibiting employees from seeking to be paid anything more. That contradicts not only the FLSA but also OPM's express understanding of what it was doing when it formulated these regulations.
Id. As explained by the dissent, the "fundamental consideration . . .that the FLSA sets only minimum standards, a floor, not the maximum amount an employer may agree to pay," indicates that OPM's regulations in this Part are best understood as setting minimum standards, and not as precluding bargai