30
Opinion of the Court
tation, and that the county therefore was precluded from providing comp time pursuant to individual agreements (or pre-existing practice) 13 under subclause (ii).
The District Court disagreed and entered summary judgment for the county. The court assumed that designation of a union representative normally would establish that employees are "covered" by subclause (i), and hence render sub-clause (ii) inapplicable, but went on to hold that subclause (i) cannot apply in States, like Texas, that prohibit collective bargaining in the public sector. Merritt v. Klevenhagen, Civ. Action No. 88-1298 (SD Tex., Sept. 5, 1990), p. 5, reprinted in App. to Pet. for Cert. 19a-20a. Reaching the same result by an alternative route, the court also reasoned that petitioners were not "covered" by subclause (i) because their union was not " 'recognized' " by the county, a requirement it grounded in the legislative history of the 1985 Amendments. Id., at 6, reprinted in App. to Pet. for Cert. 21a.
The Court of Appeals affirmed, but relied on slightly different reasoning. It seemed to agree with an Eleventh Circuit case, Dillard v. Harris, 885 F. 2d 1549 (1989), cert. denied, 498 U. S. 878 (1990), that the words "not covered" in subclause (ii) refer to the absence of an agreement rather than the absence of a representative. 956 F. 2d 516, 519-520 (CA5 1992). Under that theory, the fact that Texas law prohibits agreements between petitioners' union and the employer means that petitioners can never be "covered" by sub-13 Respondents in this case sought to provide comp time pursuant to both a "regular practice in effect on April 15, 1986," for deputies hired before that date, and individual agreements, for deputies hired later. Merritt, Civ. Action No. 88-1298, p. 2, reprinted in App. to Pet. for Cert. 17a. Like subclause (ii) individual agreements, "regular practice" is available as an option only for employees "not covered by subclause (i)." 29 U. S. C. § 207(o)(2); n. 2, supra. Accordingly, our analysis is the same with respect to both forms of agreement, and we refer to them here collectively as individual agreements.
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