24:0963(94)NG - NFFE Local 1374 and Pacific Missile Test Center, Navy -- 1986 FLRAdec NG

[ v24 p963 ]
The decision of the Authority follows:

 24 FLRA No. 94
                                    Case No. O-NG-1271
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of the underscored sentence of the following Union
       Each affected employee shall be notified of the proposed change in
       his or her FLSA status.  The employee will be given an opportunity
       to contest the accuracy of this change prior to the effective date
       of any change.  Because the presumption contained at 5 C.F.R.
       Section 551.203(c) is an easily rebuttable administrative
       presumption, once an employee has provided any argument that his
       or her position should be considered nonexempt, the agency must
       make an independent determination of the employee's status.
                              II.  Background
    This proposal arose in the context of impact and implementation
 bargaining in connection with Fair Labor Standards Act (FLSA)
 regulations 5 C.F.R. Part 551, promulgated by the Office of Personnel
 Management (OPM) at 48 Fed. Reg. 49,494 (1983).  These regulations
 modified and clarified criteria for determining a Federal Employee's
 exemption status under the FLSA;  that is, an employee's entitlement to
 overtime payment under the FLSA.  An "exempt" employee is not entitled
 to overtime payment under the FLSA;  such an employee is entitled,
 however, to overtime compensation under the provisions of the applicable
 Federal pay systems.  The regulations also were intended to facilitate
 FLSA administration in the Federal sector and to alleviate the
 discrepancy between OPM's exemption criteria and the criteria applicable
 to employees in the private sector.  These regulations were involved in
 judicial and Congressional action which delayed implementation.  See
 generally National Treasury Employees Union v. Devine, 733 F.2d 114
 (D.C. Cir. 1984);  see also American Federation of Government Employees
 v. Office of Personnel Management, 618 F. Supp. 1254 (D.D.C. 1985),
 affirmed, 782 F.2d 278 (D.C. Cir. 1986).  They were later republished as
 proposed regulations at 50 Fed. Reg. 35,529 on August 30, 1985, and were
 adopted by OPM as final rules without change at 51 Fed. Reg. 7,425
                      III.  Positions of the Parties
    The Agency contends that the underscored portion of the Union's
 proposal is nonnegotiable under section 7117(a)(1) of the Statute
 because it conflicts with a Government-wide regulation, 5 C.F.R. Section
 551.207, /1/ which requires OPM to provide advisory opinions on
 agency-proposed exceptions to the presumption of exemption for specific
 occupations at GS-11 or above, set forth in 5 C.F.R. Section 551.203(c),
 before such exceptions can be made by an agency.  /2/
    The Union disputes the Agency's position.  It contends that the
 Agency's position ignores the difference between the "exemption for
 specific occupations" and the rebuttal of the presumption with respect
 to a specific individual's position.  According to the Union, the
 wording of the regulations, basic statutory FLSA principles, and OPM's
 past administration of the FLSA support its position that the
 presumption my be rebutted in individual cases without OPM's approval.
 Union reply brief at 2-3.
                               IV.  Analysis
    We find that the Union's proposal is outside the duty to bargain.
 The proposal would require "local agency officials (to) determine
 (without OPM approval) whether an employee has rebutted the presumption
 of exemption." Attachment 2 to Union's petition for review at 3.  The
 proposal would require the Agency to make an independent determination
 of an employee's status under the FLSA, contrary to the requirement of 5
 C.F.R. Section 551.207 that such determinations be made, not
 unilaterally, but in consideration of and subsequent to an advisory
 opinion of OPM.
    The regulation requires that OPM "provide advisory opinions on agency
 proposed exceptions to the presumption of exemption for specific
 occupations at GS-11 or above . . . which is specified in 5 C.F.R.
 Section 551.203(c)," and that . . . "(e)xceptions may not be made before
 OPM consideration," 5 C.F.R. Section 551.207 (emphasis supplied).
 Section 551.203(c) provides that "(e)xcept as provided in Section
 551.207 . . ., any employee properly classified at GS-11 or above . . .
 shall be presumed to be exempt under this subpart." (Emphasis supplied).
  These regulations are Government-wide regulations.  See Radio Officers
 Union and National Oceanic and Atmospheric Administration, 19 FLRA No.
 80 (1985), slip op. at 7.  Considering these sections together, it is
 our view that any employee properly classified at GS-11 or above is
 presumed to be exempt unless an exception has been made pursuant to 5
 C.F.R. Section 551.207.
    This interpretation comports with OPM's explanation of how the
 regulations should operate.  For instance, in 50 Fed. Reg. 35,529
 (1985), OPM stated:
          Under these new regulations, it is assumed that if a position
       is properly classified at the GS-11 or above level . . ., the
       position would properly be exempt under the provisions of the
       FLSA.  However, we do recognize that there could exist rare
       occasions when there might be an exception to the presumption.
       For those unusual situations when an agency feel that an exception
       might exist, we propose a regulatory procedure for requesting a
       waiver (see Section 551.207).
                       * * * * * * *
          After the regulations become effective, all GS-11 and above
       employees will be presumed to be exempt unless a waiver is granted
       by OPM. (Emphasis in original).
    Beyond this explanation, OPM in an earlier issuance of the Federal
 Register, 48 Fed. Reg. 49,494, 49,495, in responding to a comment
 concerning 5 C.F.R. Section 551.207, stated:
          One agency disagreed with the requirement in Section 551.207
       that agencies not make exceptions to the presumption of exemption
       without prior OPM approval.  We believe that this requirement for
       prior approval is necessary in order to assure consistency among
       agencies and to avoid pay and classification discrepancies.
    Additionally, in the same issuance of the Federal Register at 49,494
 and 49,495, OPM in responding to objections to the presumption of
 exemption stated:
          (T)he presumption of exemption can be appealed by either the
       employee or the employing agency.
                       * * * * * * *
          Although OPM does not rule out the possibility that certain
       positions at these grade levels (GS-11 and above) are properly
       nonexempt, we believe that the combination of t