37:0197(13)NG - - AFGE Local 987 and Air Force, Robins AFB, GA - - 1990 FLRAdec NG - - v37 p197



[ v37 p197 ]
37:0197(13)NG
The decision of the Authority follows:


37 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 987

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

ROBINS AIR FORCE BASE, GEORGIA

(Agency)

0-NG-1635

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 14, 1990

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of a single, two-part proposal which responds to the announced plan of the Agency to relocate some of the fencing surrounding the flightline on its installation. The first part of the proposal involves security measures to be used at the gates admitting unit employees to the flightline area. The second part of the proposal: (1) prevents management from imposing any penalty on employees whose lateness is attributable to malfunctions in the security gates, and (2) obligates the Agency to pay overtime to employees who are delayed in leaving the installation at the end of their shifts because of malfunctioning gates or other obstructions.

For the following reasons, we find that the first part of the proposal, prescribing security measures to be established at the access gates, conflicts with the Agency's right to determine "internal security practices of the agency" under section 7106(a)(1) of the Statute. We conclude that the first sentence of the second part of the proposal, which concerns the effect on unit employees of delays caused by problems with the security gates, is nonnegotiable because it directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The second, and final, sentence of the second part of the proposal, which requires payment of overtime when employees are delayed in leaving the premises after their tours of duty, is negotiable under 29 U.S.C. § 254(b)(1).

II. Background

The proposal at issue was submitted in response to the Agency's plan to change the fence and security gates protecting its flightline. According to the Agency, the flightline contains a large number of very expensive aircraft undergoing maintenance and a great number of expensive and difficult to replace aircraft components, parts and tools. Statement of Position at 1. Further, according to the Agency, the aircraft and equipment are spread throughout an extensive area with many large buildings and hangars. The Agency claims that, without increased restrictions, it would be extremely difficult to apprehend an intruder or terrorist group intending to steal or destroy Agency resources. Id. at 1-2.

The Agency decided to eliminate the gate permitting vehicular access to the flightline, and to replace it with three gates allowing only pedestrian access. The three new gates would permit entry to the flightline only during shift changes and lunch breaks. However, personnel could leave the flightline at any time. The perimeter fence would also be relocated, resulting in the loss of some parking spaces. Id. at 1.

Following announcement of the changes, the parties met and exchanged correspondence. The Union submitted a proposal, identified by the parties as the "second proposal." That proposal included a paragraph concerning replacement of the parking spaces lost because of relocation of the fence. According to the Agency, that part of the proposal "was essentially agreed to by the parties." Id. at 2. As the Union did not file a reply brief, the Agency's assertion regarding agreement on replacement of parking spaces is unchallenged. We, therefore, adopt the Agency's claim and will not review that part of the proposal.

The two portions of the proposal remaining in dispute involve: (1) the security measures to be employed at the new pedestrian gates, and (2) the consequences of malfunctioning of the security gates. Because each of the two remaining parts of the proposal involves separate issues and analyses, we have separated our review of the proposal into two parts.

III. Part 1 of the Proposal

(2) It is further agreed, by the parties, that until such time as an Air Force approved two-way turnstyle gate, that will permit "enter-in" and "exit-from" the area is procured, the following security measures will be utilized:

(a) The personnel gates will be open for entering and exiting during meal periods, break periods and shift change.

(b) With the exception of time period specifically addressed in (a) above, the personnel gates will be secured by lock and key.

(c) A sufficient number of keys will be maintained in each work area. The keys will be maintained in a guaranteed access manner that makes the keys available to the employees to leave and return to the area as their needs arise.

(3) It is also agreed that the automated gates will be of the design that will permit the employees to enter and exit as their needs arise as long as they possess proper security credentials.

A. Positions of the Parties

The Agency characterizes the above-quoted part of the proposal as an impediment to its ability to adopt, implement, and enforce a plan to safeguard internal security. In the Agency's view, this part of the proposal dictates what the security plan will be. The Agency, therefore, asserts that the proposal's first part interferes with the management right under section 7106(a)(1) of the Statute to determine internal security practices.

As noted above, the Union did not file a reply brief. In its petition for review, the Union asserts that the proposal does not conflict with any management right. Alternatively, the Union contends that the proposal represents either a procedure, under section 7106(b)(2) of the Statute, to be followed by the Agency in exercising its rights or an "appropriate arrangement", within the meaning of section 7106(b)(3). However, in arguing that the first part of the proposal is an arrangement for employees adversely affected by the exercise of a management right, the Union did not elaborate on what adverse effect might result from the exercise of the management right which the proposal is designed to address.

B. Analysis and Conclusions

1. First Part of Proposal Interferes with Agency's Right to Determine its Internal Security Practices

An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies and take actions which are part of its plan to secure or safeguard its personnel and physical property. See, for example, American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990 (1988) (Fort Benjamin Harrison) and National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472 (1987).

To establish that a particular plan or policy falls within the scope of the right to determine internal security practices, an agency must show that there is a reasonable link between the plan or policy and the security of its operations. In determining the negotiability of a proposal that arguably interferes with an agency's right to determine its internal security practices, the Authority will not inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular security plan or practice is adopted. See, for example, American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1028 (1988), review denied mem. sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988).

As noted above, the Agency decided on new measures to secure the flightline area principally because of a concern about terrorist incursions. The revised plans included realignment of the fence protecting the flightline, permitting access only by pedestrians and limiting the times when personnel may enter the flightline area.

We find that the Agency has shown a link between the objective of safeguarding Agency property and its decision to increase security surrounding the flightline. We conclude, therefore, that the Agency's limitations on access to the flightline constitute an exercise of its right under section 7106(a)(1) to determine Agency internal security practices.

Therefore, by prescribing the conditions governing access to the flightline, the disputed first part of the proposal directly interferes with the Agency's right to determine its internal security practices. We reject the Union's position that the proposal merely addresses impact and implementation of the Agency's revised security measures. The wording of the proposal itself contradicts the Union's position. The Agency initiated the new plan to restrict access to an area containing military aircraft, components and tools. The objective of the changes was to decrease the possibility of destruction or theft of that valuable Agency property. In our view, action to reduce or eliminate the potential vulnerability of Agency property is directly related to the Agency's internal security. In addition, discretion to limit the times and means by which personnel may gain access to the area containing the property is an integral part of the plan to secure Agency property.

The first part of the disputed proposal requires that the Agency permit employees access to the flightline during break periods, while the Agency plan allows entry only during lunch periods and shift changes. The Union's proposal also seeks to modify the Agency's plan by:

(1) making keys available to employees so that they may enter or leave the flightline "as their needs arise," and (2) installing automated gates permitting departure from or entry to the flightline at any time, provided that employees possess proper security credentials.

Therefore, the proposal's first part directly interferes with the Agency's discretion to make substantive decisions concerning when access to the flightline may be had. Such interference conflicts with the Agency's right to determine its internal security practices under section 7106(a)(1). Consequently, the first part of the proposal is outside the Agency's duty to bargain. See American Federation of Government Employees, AFL-CIO, Local 987 and Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 24 FLRA 940 (1986) (proposal seeking to keep open a gate, providing access to the flightline, that the agency decided to close for security reasons held to be nonnegotiable because of interference with agency's right to determine internal security practices) and International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 729-31 (1988) (proposed modification to agency policy preventing employees from leaving premises where postage stamps are printed held to be nonnegotiable as a violation of right to determine internal security practices).

2. The First Part of the Proposal is Not a Negotiable Procedure

The Union contends, without providing any argument or evidence in support of its contention, that the first part of the proposal is a negotiable procedure, under section 7106(b)(2), to be followed by management in exercising its reserved rights. We do not agree. The determination of when and how employees may gain access to the flightline is clearly within the Agency's authority under section 7106(a)(1) to determine its internal security practices. The proposal's first part, however, seeks to prescribe when and how unit employees will be permitted to enter the flightline and, significantly, allows entry during times when the Agency's plan would deny access. As such, the first part of the proposal directly interferes with a management right under section 7106(a)(1) to determine its internal security practices. Because the first part of the proposal directly interferes with management's right under section 7106(a)(1) to determine its internal security practices, that part cannot constitute a negotiable procedure under section 7106(b)(2). See, for example, Fort Benjamin Harrison, 32 FLRA at 995.

3. The First Part of the Proposal is Not an Appropriate Arrangement

We reject the Union's claim that the first part of the proposal constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard), the Authority stated that, when claiming that a proposal constitutes an appropriate arrangement:

the union should identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse. In other words, a union must articulate how employees will be detrimentally affected by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of the exercise of the management right or rights.

Id. at 31.

Thus, a union's assertion, without more, that a proposal constitutes an appropriate arrangement will not support a finding that a proposal is negotiable under section 7106(b)(3). See American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 513-14 (1987).

In support of its claim that the first part of the proposal is an "appropriate arrangement" under section 7106(b)(3), the Union states that "the disputed language constitutes an 'appropriate arrangement' and/or a negotiable procedure for employees affected by the exercise of that right. We will demonstrate the adverse affects [sic] and the negotiability of the procedure as part of the full response provided for in 5 C.F.R. 2424.7." Petition for Review at 10. However, the Union did not file a response to the Agency's statement of position. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination, and the party failing to sustain its burden acts at its peril. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) Thus, in the absence of any submission by the Union addressing its claim, we find that the Union has not demonstrated that the first part of the proposal constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3).

4. Conclusion

In conclusion, we find that the first part of the proposal does not constitute a negotiable procedure under section 7106(b)(2) but, rather, directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices. Furthermore, the Union has not established, nor do we otherwise find, that the first part constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, we find that the proposal's first part is nonnegotiable.

IV.Part 2 of the Proposal

(4) It is further agreed that no bargaining unit employee will suffer loss of pay or be charged any type leave, nor receive disciplinary action for not reporting to work on time or returning late from meal periods or breaks if the reasons for delay is [sic] attributed to a mechanical malfunction of the gate or if the gate is obstructed by any method or means to the extent that would not permit entering or exiting the gate. Also the employer 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.

A. Positions of the Parties

The Agency contends that the second part of the proposal, in addition to violating its right to determine its internal security practices, infringes on its right to impose discipline under section 7106(a)(2)(A) of the Statute. According to the Agency, "an employee could claim that the closed gate caused his tardiness when, in fact, he was already tardy when he arrived at the gate. The proposal would prevent the institution of disciplinary action altogether and, thus, prevent management from determining the employee's culpability." Statement of Position at 7.

As to the proposed Agency obligation to pay overtime to employees delayed in departing from the flightline at the end of their shifts by obstructed or malfunctioning security gates, the Agency argues that such payments would violate applicable law and regulation. The Agency contends that overtime payments are not authorized for such conditions which are unforeseen and outside management's control.

As stated earlier, the Union did not file a reply brief. The arguments made by the Union in its petition for review concerning the second part of the proposal are identical to the arguments made concerning the first part of the proposal. That is, the Union asserts that the second part of the proposal does not conflict with any management right. In the alternative, the Union argues that this part of the proposal constitutes either a procedure under section 7106(b)(2), or an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

For the following reasons, we find the first sentence of the second part of the proposal to be outside the Agency's duty to bargain and the second sentence of the second part of the proposal to be negotiable.

1. The First Sentence of Second Part of the Proposal Directly Interferes with the Agency's Right to Determine its Internal Security Practices

The first sentence of this part of the proposal seeks to protect employees from penalties for not reporting to work on time when the tardiness is due to a problem with the security gates. Specifically, the first sentence would protect employees from discipline, loss of pay or charge to leave for lateness in reporting to work or late returns from meal or break periods, if the tardiness can be attributed to problems with the security gates. Under the Agency's revised security policy, however, employees are not authorized to leave the flightline for breaks. As we previously found, the Agency has established the necessary link between the revised flightline policies and procedures and its right to determine internal security practices. Consequently, we view the first sentence, in part, as another effort to negotiate over the Agency's security policy by seeking to permit employees to leave the flightline to take breaks, in contravention of the Agency's policy. Accordingly, for the same reasons we applied in finding the first part of the proposal to be nonnegotiable, we also find that the first sentence here directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices.

2. The First Sentence of the Second Part of the Proposal Directly Interferes with the Agency's Right to Discipline Employees

The first sentence would insulate employees from discipline for tardiness when the tardiness can be attributed to a malfunction or obstruction of the security gates. The sentence does not concern the defense an employee may raise to a disciplinary action based on tardiness. Rather, it precludes management from instituting a disciplinary action to ascertain the exact cause of an employee's lateness. Because the first sentence would prevent the Agency from bringing a disciplinary action against an employee in the described circumstances, we find that it directly interferes with the right to discipline employees under section 7106(a)(2)(A) of the Statute. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 135-37 (1987) (Provisions 26-28) and National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Proposal 1).

3. The First Sentence of the Second Part of the Proposal Does Not Constitute a Negotiable Procedure or an Appropriate Arrangement

Furthermore, as we noted, the first sentence of the second part of the proposal directly interferes with management's rights to determine its internal security practices and to discipline employees. Such direct interference negates the Union's argument that the first sentence of this part constitutes a negotiable procedure under section 7106(b)(2). Fort Benjamin Harrison, 32 FLRA at 995.

Also, as previously noted, the Union has provided no support whatever for its claim that the first sentence is an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. In the absence of any support for the Union's claim, we find that the first sentence does not constitute an appropriate arrangement.

4. The Second Sentence of the Second Part of the Proposal is Consistent with Law and Government-wide Regulations

The second sentence of the proposal's second part obligates the Agency to pay overtime to any employee whose departure from the worksite at the end of a shift is delayed because the security gate malfunctions or is obstructed. We find that because the payment of overtime in the situation described by the second sentence may, consistent with law and applicable Government-wide regulations, be required pursuant to a provision in a collective bargaining agreement, the second sentence is negotiable.

Nothing in the record before us indicates whether the employees covered by Proposal 2 are General Schedule (GS) employees or prevailing rate employees. We note that the employees involved in this case are part of a nationwide bargaining unit consisting of both prevailing rate and GS employees. See 1989 Union Recognition in the Federal Government at 165. We also note, however, that the Agency relied on 5 U.S.C. § 5542 and 5 C.F.R. § 550.111 to support its claim that the last part of the provision violates law and regulation. See Statement of Position at 8. Neither 5 U.S.C. § 5542 nor 5 C.F.R. § 550.111 applies to prevailing rate employees. See 5 U.S.C. § 5541(2)(xi) and 5 C.F.R. § 550.101(b)(4). Consequently, as the Agency relies on provisions of law and regulation that apply only to GS employees, we assume for the purposes of this decision that the employees involved are GS employees.

GS employees who work in excess of 8 hours a day or 40 hours a week are entitled to either overtime compensation or compensatory time off under 5 U.S.C. § 5543. Overtime compensation is provided to these employees pursuant to 5 U.S.C. § 5542, or the Fair Labor Standards Act (FLSA), if the entitlement would be greater under the FLSA than under 5 U.S.C. § 5542. See 5 C.F.R. § 551.513. We will first address overtime compensation under 5 U.S.C. § 5542.

5 U.S.C. § 5542 provides for the payment of overtime compensation to covered employees for "hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day[.]" The Office of Personnel Management (OPM) is authorized to promulgate regulations implementing the overtime provisions of 5 U.S.C. § 5542. See 5 U.S.C. § 5548. These regulations, which are set out in 5 C.F.R. Part 550 "Pay Administration (General)," provide, in relevant part, that an employee may be compensated for a preshift or postshift activity when such activity "is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, and . . . the total time spent in that activity is more than 10 minutes per daily tour of duty[.]" 5 C.F.R. § 550.112(b)(1)(i). The regulations further provide, however, that:

A preshift or postshift activity that is not closely related to the performance of the principal activities is considered a preliminary or postliminary activity. Time spent in preliminary or 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).

As noted above, the FLSA also provides for overtime compensation. See 29 U.S.C. § 207(a)(1). The FLSA, which includes provisions relating to, among other things, minimum wages, overtime and preshift and postshift activities, applies to most Federal employees. See 29 U.S.C. § 203(e)(2). Covered GS employees are entitled to overtime compensation under the FLSA if the FLSA provides a greater overtime entitlement than the employee would otherwise receive under, for example, 5 U.S.C. § 5542. See 5 C.F.R. § 551.513. Although the FLSA exempts specified employees or groups of employees from the application of certain of its provisions, the Agency has made no claim that any of the GS employees in this case are exempt from coverage of the FLSA. Consequently, we assume for the purposes of this decision that the employees involved are covered by the FLSA.

Persons or entities that violate the FLSA are subject to penalties, including civil and criminal liability, under 29 U.S.C. § 216. That section, however, was amended by the Portal-to-Portal Act of 1947, which provides, in relevant part, that employers are not subject for liability or punishment under the FLSA for failing to pay, among other things, overtime compensation for certain preliminary or postliminary activities. See 29 U.S.C. § 254(a). Although 29 U.S.C. § 254(a) relieves employers, including the Government, of liability in these circumstances, 29 U.S.C. § 254(b)(1) provides as follows:

Notwithstanding the provisions of subsection (a) of this section which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by . . .--

(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer[.]

OPM is responsible for administering the provisions of the FLSA that are applicable to Federal employees, including provisions relating to preliminary and postliminary activities. See 29 U.S.C. § 204(f). OPM regulations implementing the FLSA are set out in 5 C.F.R. Part 551, "Pay Administration under the Fair Labor Standards Act," and provide that 5 C.F.R. Part 551 "supplements and implements the [FLSA], and must be read in conjunction with [the FLSA]." 5 C.F.R. § 551.101(c). The regulations provide that an employee may be compensated for a preshift or postshift activity when such activity "is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, and that the total time spent in that activity is more than 10 minutes per workday[.]" 5 C.F.R. § 551.412(a). The OPM regulations provide further that:

A preparatory or concluding activity that is not closely related to the performance of the principal activities is considered a preliminary or postliminary activity. Time spent in preliminary or 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).

OPM also has promulgated detailed instructions for the treatment of activities occurring prior to or after a work shift and has noted that "[p]reshift and postshift activities under title 5 United States Code, are the same as preparatory and concluding activities under the FLSA." Federal Personnel Manual (FPM) Supplement 990-2, Book 550, Appendix I at b.(1). Exhibit 2 to Appendix I contains examples of preshift and postshift activities which are divided into two categories. In the first category are those activities "closely related to the employee's principal activities, and indispensable to their performance. These activities are considered work, and if the total time spent in these activities is more than 10 minutes per day, they are compensable as hours of work." In the second category are "[a]ctivities that are not closely related to the employee's principal activities. These activities are considered preliminary or postliminary activities, and the time spent in these activities is excluded from hours of work." (Emphases in the original.)

Specific examples of "preliminary" and "postliminary," and thus, noncompensable, activities are contained in paragraphs b(4) and (5) of Exhibit 2. Paragraph b(4) states:

(4) The following activities have been specifically described as preliminary or postliminary activities in the Portal-to-Portal Act:

Walking, riding, or traveling to and from the actual place of performance of principal activity or activities within the employer's plant, mine, building, or other place of employment, irrespective of whether such walking, riding, or traveling occur on or off the premises of the employer or before or after the employee has checked in or out.

OPM also noted in paragraph b(5) that activities found to be preliminary or postliminary, and thus, noncompensable, in the private sector under the FLSA by courts and the Department of Labor included, among other activities: (a) punching in and out, and (b) waiting in line to check in or out.

Applying the regulatory framework outlined above to the last sentence of the proposal's second part, we find that the departure of employees from the flightline area through the security gate is a postliminary activity, as defined by OPM. The payment of overtime for this activity is not required by 5 U.S.C. § 5542 or authorized under the OPM regulations implementing 5 U.S.C. § 5542. Accordingly, for employees whose overtime compensation is determined solely under 5 U.S.C. § 5542 because they are exempt from coverage of the FLSA, including the Portal-to-Portal Act, a proposal requiring overtime compensation in circumstances described in the second sentence of the second part of the proposal in this case would be inconsistent with the OPM regulations.

Unlike 5 U.S.C. § 5542, however, an employer may be required under the Portal-to-Portal Act, which amended the FLSA, to provide overtime compensation for this postliminary activity if the requirement stems from a provision in a collective bargaining agreement. In this regard, the OPM regulations implementing the FLSA relate, by their terms, to employees' "entitlements" under the FLSA. See, for example, 5 C.F.R. § 551.101(a) ("The [Fair Labor Standards] Act provides for minimum standards for both wages and overtime entitlements[.]"); 5 C.F.R. § 551.512 ("Overtime pay entitlement."). See also FPM Supplement 990-2, Book 550, Appendix I, Exhibit 2 at paragraphs b(4) and (5). It is clear that, in the absence of a collective bargaining provision requiring payment, there is no entitlement to overtime compensation for the postliminary activity involved in this case.

It is also clear that OPM regulations contain no reference to 29 U.S.C. § 254(b)(1), which requires payment for preliminary or postliminary activities if payment is required by a collective bargaining agreement. We note our dissenting colleague's view that, although OPM regulations do not reference 29 U.S.C. § 254(b), the disputed part of the proposal here is nevertheless nonnegotiable because, in the circumstances of the proposal, those regulations prohibit payment of overtime without exception. Consistent with the plain wording of the regulations, however, which speak only to employees' entitlements to overtime pay, we decline to interpret the OPM regulations as prohibiting payment of overtime compensation for preliminary or postliminary activities if that payment is required by a collective bargaining agreement. We emphasize, in this regard, our conclusion that, in the absence of a collective bargaining provision requiring payment, there is no entitlement to overtime compensation for the activity involved in the disputed portion of the proposal. As the disputed portion of the proposal provides only that the "employer agrees to pay overtime[,]" however, and does not, by its terms, relate to enforcement of an entitlement to overtime compensation in the absence of that agreement, there is, in our view, no inconsistency between the proposal and the OPM regulations.

We note also our agreement with our colleague that we have no authority to adjudicate the validity of a Government-wide regulation promulgated by another Federal administrative agency. In our view, however, 29 U.S.C. § 254(b) clearly and unambiguously contemplates collective bargaining over overtime payments for the activities described in the proposal. Indeed, the FLSA, as amended by the Portal-to-Portal Act, specifically provides that an employer is not relieved of liability for failing to provide overtime compensation if that compensation is compensable pursuant to a collective bargaining agreement. Nothing in 29 U.S.C. § 254(b), or applicable regulations, indicates that the provision does not apply to collective bargaining agreements negotiated under the Statute, provided, of course, that those agreements are otherwise consistent with the Statute. As such, interpreting the lack of a reference in the OPM regulations to 29 U.S.C. § 254(b)(1) as prohibiting payments which have been agreed upon pursuant to collective bargaining leads to an apparent conflict between the regulations and 29 U.S.C. § 254(b).(2)

Therefore, in order to harmonize provisions of the Statute, the FLSA, and the OPM regulations interpreting the FLSA in a manner which is consistent with the plain wording of those provisions and which facilitates collective bargaining in the Federal sector, we conclude that the OPM regulations address only employees' entitlements to overtime compensation for the postliminary activity involved in this case. In other words, we find that the OPM regulations implementing the FLSA do not prohibit payment of overtime compensation, pursuant to a provision in a collective bargaining agreement, in the circumstances described in the last sentence of the second part of the proposal. Consequently, the disputed portion of the proposal is not inconsistent with the OPM regulations.

As we noted earlier in this decision, the Agency has made no claim that any of the employees involved in this case are exempt from coverage under the FLSA. As the last sentence of the second part of the proposal is not inconsistent with law or Government-wide regulations insofar as it applies to overtime compensation for employees whose overtime compensation is determined under the FLSA, it is negotiable under section 7117 of the Statute.

5. Conclusion

The first sentence of the proposal's second part is nonnegotiable because it: (1) directly interferes with the Agency's right under section 7106(a)(1) to determine its internal security practices; (2) directly interferes with the Agency's right under section 7106(a)(2)(A) to discipline employees; (3) does not constitute a negotiable procedure under section 7106(b)(2); and (4) does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Insofar as the second sentence of the proposal's second part applies to employees for whom and situations in which overtime compensation is provided under the FLSA, it does not conflict with applicable law or Government-wide regulations and, consequently, is within the Agency's duty to bargain.

V. Order

The petition for review as it relates to all but the second sentence of the second part of the proposal is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning the second sentence of the second part of the proposal.(3)


Opinion of Member Armendariz, concurring in part and dissenting in part.

I agree with my colleagues' disposition of the first part of the proposal and the first sentence of the second part of the proposal. However, I respectfully disagree with my colleagues as to the disposition of the last sentence of the proposal's second part for employees covered under the FLSA.

The last sentence of the proposal's second part describes a postliminary activity as defined by OPM. OPM's regulations implementing the overtime provisions of 5 U.S.C. § 5542 state in pertinent part that "[t]ime spent in preliminary or 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) (emphasis added). OPM is also responsible for administering the provisions of the Fair Labor Standards Act (FLSA) that are applicable to Federal employees, including provisions relating to preliminary and postliminary activities. See 29 U.S.C. § 204(f). OPM regulations implementing the FLSA provide in pertinent part that "[t]ime spent in preliminary or 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) (emphasis added). Thus, the OPM regulations implementing both 5 U.S.C. § 5542 and the FLSA specifically state that time spent in postliminary activities is not compensable.

In finding the last sentence of the proposal's second part to be negotiable, the decision relies on 29 U.S.C. § 254(b)(1). That provision states that an employer is not relieved from liability under the FLSA for failing to pay for, among other things, postliminary activities where such activity is compensable by a collective bargaining agreement. The decision correctly notes that the OPM regulations contain no specific reference to 29 U.S.C. § 254(b)(1), and goes on to state that "[w]e decline to interpret the OPM regulations as prohibiting payment of overtime compensation for preliminary or postliminary activities if that payment is required by a collective bargaining agreement." To the contrary, the OPM regulations set forth above prohibit payment for postliminary activities, as defined by OPM regulations, without exception.

It may be the case that 29 U.S.C. § 254(b)(1) contemplates a collectively bargained right to payment for such activities. I express no view on that matter. If 29 U.S.C. § 254(b)(1) does contemplate a collectively bargained right to payment for such activities, there appears to be an inconsistency between 29 U.S.C. § 254(b)(1) and the OPM regulations. However, whether the OPM regulations are inconsistent with 29 U.S.C. § 254(b)(1) is irrelevant to a negotiability determination by the Authority because we have no authority to adjudicate the validity of a Government-wide regulation promulgated by another Federal administrative agency. American Federation of Government Employees v. FLRA, 794 F.2d 1013 (5th Cir. 1986). As the court noted in that case:

We find no support in either the statutes or the case law for [the union's] argument that the FLRA may rule on the legality or validity of a government-wide OPM regulation. Section 7104 of the Civil Service Reform Act, the section which sets out the powers and duties of the FLRA, enumerates more than several duties of the FLRA, none of which relates to passing judgment on rules or regulations enacted by any other federal agency. Section 7117(a)(1) provides that the duty to bargain in good faith over a particular proposal is subject to the condition that the proposal is not inconsistent with "any Federal law or any Government-wide rule or regulation[.]" [The union] advances no argument that leads us to perceive that Congress intended the FLRA to sit in review of other agencies' regulations.

794 F.2d at 1015 (emp