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American Federation of Government Employees National Council, 118-ICE v. Federal Labor Relations Authority

United States Court of Appeals, District of Columbia Circuit

June 11, 2019

American Federation of Government Employees National Council, 118-ICE, Petitioner
v.
Federal Labor Relations Authority, Respondent

          Argued April 16, 2019

          On Petition for Review of a Final Order of the Federal Labor Relations Authority

          T. Reid Coploff argued the cause and filed briefs for the petitioner.

          Tabitha G. Macko, Attorney, Federal Labor Relations Authority, argued the cause for the respondent.

          Rebecca J. Osborne, Acting Deputy Solicitor, was with her on brief.

          Joseph F. Busa, Attorney, United States Department of Justice, argued the cause for the intervenor.

          H. Thomas Byron III, Attorney, and Mark A. Robbins, General Counsel, United States Office of Personnel Management, were with him on brief.

          Before: Henderson, Pillard and Wilkins, Circuit Judges.

          OPINION

          KAREN LECRAFT HENDERSON, CIRCUIT JUDGE:

         At the urging of the Office of Special Counsel and the Government Accountability Office, the Department of Homeland Security, Immigration and Customs Enforcement (ICE) changed how it calculates overtime pay for certain employees. Concerned by the potential drop in its members' overtime pay, the American Federation of Government Employees National Council, 118-ICE (Union) representing ICE employees filed a grievance against ICE for changing its policy without first bargaining. The Federal Labor Relations Authority (Authority), however, determined that ICE had no duty to bargain with the Union before changing its overtime policy because ICE's previous policy was unlawful. In re U.S. Dep't of Homeland Sec. U.S. Immigration & Customs Enf't (In re ICE), 70 F.L.R.A. 628, 630 (2018). We agree with the Authority and therefore deny the Union's petition for review.

         I. Background

         Federal law governing overtime pay generally requires a federal employee to obtain administrative approval before working over eight hours in one day or forty hours in one workweek. 5 U.S.C. § 5542(a); 5 C.F.R. § 550.111(a)(1). Some federal employees, such as law enforcement personnel, however, hold positions "in which the hours of duty cannot be controlled administratively" because the employees must work "substantial amounts of irregular, unscheduled overtime." 5 U.S.C. § 5545(c)(2). To compensate federal employees for this "Administratively Uncontrollable Overtime" or "AUO," the Congress authorized agencies to provide a special "premium pay" equal to "an appropriate percentage, not less than 10 percent nor more than 25 percent, of the rate of basic pay for the position, as determined by taking into consideration the frequency and duration of irregular, unscheduled overtime duty required in the position." Id.

         The Congress delegated to the Office of Personnel Management (OPM) the authority to promulgate regulations governing the calculation of AUO premium payments. 5 U.S.C. § 5548(a). In 1968, the OPM adopted a policy under which the amount of the premium payment turns on the average number of AUO hours an eligible employee works per week. See Revision of Regulations, 33 Fed. Reg. 12, 402, 12, 462-64 (Sept. 4, 1968) (codified as amended at 5 C.F.R. §§ 550.151- 550.164). Eligible employees receive a premium payment based on the following table:

Average Weekly AUO

Premium Payment (As a Percentage of Base Pay)

At least 3 but not more than 5 hours

10%

More than 5 but not more than 7 hours

15%

More than 7 but not more than 9 hours

20%

More than 9 hours

25%


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