United States Court of Appeals, District of Columbia Circuit
September 19, 2019
Petition for Review of a Decision and Order of the Federal
Labor Relations Authority
N. Shah argued the cause for petitioner. With him on the
briefs were Gregory O'Duden and Larry J. Adkins.
Tabitha G. Macko, Deputy Chief Counsel, Federal Labor
Relations Authority, argued the cause for respondent. On the
brief was Rebecca J. Osborne, Acting Deputy Solicitor. Noah
B. Peters, Attorney, entered an appearance.
Before: Tatel and Srinivasan, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
federal employees travel for official business, federal law
entitles them to compensation for certain time and expenses.
The labor union representing Customs and Border Protection
(CBP) employees proposed a new way to determine an
employee's eligibility for travel time and expenses, but
CBP took the position that the union's proposal was
nonnegotiable because, in CBP's view, the proposal ran
afoul of government travel regulations. The Federal Labor
Relations Authority (FLRA) agreed with CBP, and the union now
petitions for review. Because the FLRA's decision relies
on a mathematical error and a misunderstanding of the
union's proposal, we vacate and remand.
directed by Congress, the General Services Administration
issued the Federal Travel Regulation (FTR), a body of rules
dictating by which planes, trains, and automobiles federal
employees may travel, as well as under what conditions and to
what extent those employees will be compensated for the costs
of their journeys. See 5 U.S.C. § 5707(a)(1);
41 C.F.R. §§ 300-1.1 et seq. Central to
this case, the FTR defines the area including and surrounding
an employee's regular workplace-the employee's
"[o]fficial station"-as a "mileage radius
around a particular point, a geographic boundary, or any
other definite domain, provided no part of the area is more
than 50 miles from where the employee regularly performs his
or her duties." 41 C.F.R. § 300-3.1. When traveling
outside of their official stations, federal employees may be
eligible for overtime compensation, see, e.g., 5
C.F.R. §§ 551.422(d), 550.112(j), and
room-and-board reimbursements, see, e.g., 41 C.F.R.
§ 301-11.1. Additionally, and also central to this case,
the FTR requires that employees traveling for work use
"the most expeditious means practicable."
Id. § 301-70.100(b).
presently defines an official station in terms of fifty
as-the-crow-flies miles, that is, the Agency draws a
circle with a fifty mile radius around the employee's
regular workplace and that area is the employee's
official station. But because CBP employees are more likely
to travel by car than by crow, the National Treasury
Employees Union-the exclusive bargaining representative for
CBP employees-sought during collective bargaining to more
accurately compensate employees for the costs they actually
incur. Specifically, the Union proposed to define an
employee's "official station" as
"extending] 50 road miles [in every direction] from the
employee's official duty station." Pet. for Review
at 4, Joint Appendix 4. (A "duty station" is the
"location where an employee normally reports for the
workday." National Collective Bargaining Agreement
Between U.S. Customs and Border Protection and the National
Treasury Employees Union (NCBA) 64 (2017).) To illustrate, a
crow flying from the Metaline Falls, Washington CBP station
to the Porthill, Idaho station will travel 36 miles, but the
lowly road driver will travel 55 miles-through a foreign
country, no less-to get from one station to the other. Under
CBP's current rule, employees traveling the more-than
fifty road miles from Metaline Falls to Porthill receive no
compensation for overtime and per diem costs; under the
Union's proposal, they would be compensated.
took the position that the Union's new way of defining
"official station" was nonnegotiable. Under federal
law, agencies "may not negotiate over proposed
conditions of employment that are 'inconsistent with any
Federal law or any Government-wide rule or regulation,
'" U.S. Department of Air Force v. FLRA,
952 F.2d 446, 448 (D.C. Cir. 1991) (quoting 5 U.S.C. §
7117(a)(1)), and according to CBP, the Union's proposal
conflicts with the FTR's definition of "official
station." CBP and the Union agreed to sever their
dispute, allowing the rest of the collective bargaining
agreement to go into effect, and to submit the issue to the
FLRA. After hearing the parties' arguments, the FLRA
sided with CBP. Analyzing the Union's road-mile proposal
in light of the FTR's definition of "official
station," the FLRA concluded that the proposed official
station does not qualify as "a mileage radius around a
particular point [or] a geographic boundary."
National Treasury Employees Union ("
NTEU "), 70 F.L.R.A. 724, 725 (2018) (quoting
41 C.F.R. § 300-3.1). The sole question, then, was
whether the Union's road-mile rule would create a
"definite domain." Because "'[d]efinite
domain' is not defined within the FTR," id.
at 725 n.22, the FLRA began with the dictionary:
"Definite" means "clearly stated or decided;
not vague or doubtful," id. (quoting New
Oxford American Dictionary (3d ed. 2010)); and
"domain" means "[t]he territory over which
sovereignty is exercised," id. (quoting
Black's Law Dictionary (10th ed. 2014)). Relying
on these definitions, the FLRA ruled that the Union's
proposal ran afoul of the FTR: "It is not a definite
area, and could extend more than fifty miles from where the
employee regularly performs his or her duties or vary with
every employee and every trip." Id. at 725-26.
FLRA member dissented. In response to the majority's
concern that each trip would vary in road mileage, the
dissenter pointed out that the FTR requires employees to
travel "by the most expeditious means practicable,"
thus rendering "definite" the area in which an
employee could travel fifty road miles. Id. at 728
(DuBester, Member, dissenting) (internal quotation marks
Union now petitions for review. See 5 U.S.C. §
7123(a) ("Any person aggrieved by any final order of the
[FLRA] . . . may . . . institute an action for judicial
review of the Authority's order . . . in the ...