National Association of Agriculture Employees, Petitioners, v. Federal Labor Relations Authority, Respondent, 106 F.3d 442 (D.C. Cir. 1996)

This cause came to be heard on a petition for review of an order of the Federal Labor Relations Authority ("FLRA"), and was briefed and argued by counsel. The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C. Cir. Rule 36(b).

ORDERED and ADJUDGED that the petition for review of the FLRA's order filed February 16, 1996 be denied. The FLRA's finding that the U.S. Department of Agriculture's proposal for overtime pay of Plant Protection and Quarantine ("PPQ") officers of the Animal and Plant Health Inspection Service did not violate 5 U.S.C. § 6101 and its implementing regulation 5 C.F.R. § 610 and that the counter proposal by the National Association of Agriculture Employees ("Union") is outside the duty to bargain was not arbitrary and capricious. The FLRA sought advisory opinions from the Office of Personnel Management ("OPM") with respect to the application of 5 U.S.C. § 6101 and 5 C.F.R. § 610 to the instant case and properly deferred to the OPM's interpretation. Because OPM's interpretation of its own regulation is not " 'plainly erroneous or inconsistent' with the language of the regulation," it is entitled to deference from this court. FLRA v. U.S. Dep't of Treasury, 884 F.2d 1446, 1454 (D.C. Cir. 1989). Finally, 5 U.S.C. § 5542 and its implementing regulation 5 C.F.R. § 550 prohibit implementation of the counter proposal of the Union, as the proposal would cause the agency to pay employees wages for overtime work that they did not perform. Moreover, the PPQ officers do not fall within any exception to § 5542 or § 550. As the Union's counter proposal is prohibited by law, it is outside the duty to bargain.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41.