United States Court of Appeals, District of Columbia Circuit
American Federation of Government Employees National Council, 118-ICE, Petitioner
Federal Labor Relations Authority, Respondent
April 16, 2019
Petition for Review of a Final Order of the Federal Labor
Reid Coploff argued the cause and filed briefs for the
Tabitha G. Macko, Attorney, Federal Labor Relations
Authority, argued the cause for the respondent.
Rebecca J. Osborne, Acting Deputy Solicitor, was with her on
F. Busa, Attorney, United States Department of Justice,
argued the cause for the intervenor.
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.
LECRAFT HENDERSON, CIRCUIT JUDGE:
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.
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.
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
More than 5 but not more than 7 hours
More than 7 but not more than 9 hours
More than 9 hours