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National Treasury Employees Union v. Federal Labor Relations Authority

United States Court of Appeals, District of Columbia Circuit

November 22, 2019

National Treasury Employees Union, Petitioner
Federal Labor Relations Authority, Respondent

          Argued September 19, 2019

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

          Paras 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.


          Tatel, Circuit Judge.

         When 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.


         As 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).

         CBP 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.

         CBP 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.

         One 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 omitted).

         The Union now petitions for review. See 5 U.S.C. ยง 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 ...

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