concurring in part and concurring in the judgment in part:
I join parts I, II, and IV of the court’s opinion, but concur in only the result reached in part III.
I.
I agree with the holding of the court in part II of its opinion that, under section 7(o) of the Fair Labor Standards Act, 29 U.S.C. § 207(o), whether the City of Charlotte may provide the Fire Fighters compensatory time in lieu of cash payment for overtime hours worked depends solely upon whether there is an agreement that provides for compensatory time payments. See Dillard v. Harris, 885 F.2d 1549, 1554 (11th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). The court properly refuses to rest its decision in part II on whether appellees have a designated representative to negotiate with the City over compensation or on whether state law prohibits collective bargaining. Whether there is an employee representative and whether state law prohibits collective bargaining are, under the statute and the court’s holding today, simply irrelevant. Section 7(o) distinguishes only between employees covered by agreements and those not covered by agreements, not between represented and unrepresented employees. If there is an agreement of a kind specified in either subsection (2)(A)(i) or subsection (2)(A)(ii), compensatory time may be provided; if there is no such agreement, regardless of the reason, the public employer is forbidden to award compensatory time for overtime hours worked.
The Fire Fighters and the dissent argue that a public agency is required by subsection (2)(A)(i) to negotiate with an employee chosen representative and that the agency is prohibited from negotiating individual agreements under subsection (2)(A)(ii) if a representative has been selected by the employees. See Nevada Highway Patrol Ass’n v. Nevada, 899 F.2d 1549, 1553 (9th Cir.1990); International Ass’n of Fire Fighters, Local 2203 v. West Adams County Fire Protection Dist., 877 F.2d 814, 818-20 (10th Cir.1989).1 The majority *1397again correctly declines to engraft onto subsection (2)(A)(i) an affirmative requirement to negotiate in the absence of congressional direction and rejects as unsupported by the statute’s language the contention that individual agreements with employees are prohibited if the employees have selected a representative.
The dissent, notably, does not even contend that section 7(o) itself imposes a requirement that the public agency reach an agreement with a designated employee representative as a precondition to the award of compensatory time to represented employees; its only argument is that the legislative history and the Secretary of Labor’s regulatory interpretation of the statute should be given dispositive weight because of what the dissent asserts is an ambiguity in the statute. The statute, however, is not at all ambiguous. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (holding that courts and agencies alike are bound to effect an unambiguous statute). The reference in subsection (2)(A)(ii) to “employees not covered by subclause (i)” can only be to employees who are not subjects of an agreement between their agency and their representative. It cannot grammatically (and does not logically) refer to employees who are unrepresented because the compound objects of the prepositional phrase “pursuant to” in subsection (i) are the forms of agreement enumerated therein. The subsection does not denominate a class of represented employees; it identifies certain agreements (in addition to those in subsection (ii)) that will satisfy the requirement in subsection (2)(A) that compensatory time be provided pursuant to an agreement.
The dissent searches in vain for ambiguity that would justify resort to the legislative history of section 7(o) and the Secretary of Labor’s regulatory interpretation of the statute, because these are the only “authorities” that even arguably support its position that Congress intended to impose a requirement that a public agency either reach an agreement with an employee representative or forgo an award of compensatory time. We will never know whether, as the dissent concludes solely from the legislative history, Congress intended to impose this requirement. We do know, however, that the statute did not impose such a requirement. And in the absence of such a requirement in the statute, we are without authority to impose one. In a system of laws, we have no more authority to give effect to a provision that was intended but not enacted, than we have authority to give effect to a provision that was never intended. The majority recognizes this limitation on the judicial power in its interpretation of section 7(o) in part II, and I join this portion of its opinion.
II.
I cannot, however, join the majority’s interpretation of the applicable Labor Department regulations in part III of its opinion. In part III, the majority holds that Local 660 is not a “representative” within the meaning of 29 C.F.R. § 553.23 “[b]e-cause [it] was not a representative whom the City could recognize consistently with state law.” Majority op. at 1396. The majority offers no support for this interpretation of the term “representative,” and the regulation itself would appear to contradict such an interpretation. The regulation expressly states that “the representative need not be a formal or recognized bargaining agent as long as the representative is designated by the employees.” 29 C.F.R. § 553.23(b)(1); see also H.R.Rep. No. 331, 99th Cong., 1st Sess. 20 (1985) [hereinafter House Report] (“[A] representative ... need not be a formal or recognized collective bargaining agent as long as it is a representative designated by the employees____”). The majority’s interpre*1398tation of the regulation also conflicts with its interpretation of section 7(o). The premise of the court’s interpretation of section 553.23 is that if state law permitted collective bargaining by the City, the City would have to pay cash for overtime hours worked unless it reached an agreement with Local 660. Cf. Dillard, 885 F.2d at 1555-56. As noted, however, the majority holds in part II of its opinion that the only condition on the provision of compensatory time is that it be provided pursuant to one of the forms of agreement specified in subsections (2)(A)(i) or (ii). Because I believe that the majority incorrectly interprets section 553.23 and in doing so undermines its own interpretation of section 7(o), I concur only in the result reached in part III.
I agree with the Fire Fighters and the dissent that Local 660 is a “representative” for purposes of the statute and the regulation. In my view, North Carolina’s prohibition against collective bargaining by public agencies, see N.C.Gen.Stat. § 95-98, has no bearing whatsoever on whether the local is a “representative” within the meaning of the regulation. But see State of Nevada Employees’ Ass’n, Inc. v. Bryan, 916 F.2d 1384, 1388-90 (9th Cir.1990); Nevada Highway Patrol, 899 F.2d at 1554; Dillard, 885 F.2d at 1555-56; Abbott v. City of Virginia Beach, 879 F.2d 132, 135-36 (4th Cir.1989), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990). I would hold, however, that nothing in either the statute or the regulation requires that a public agency reach an agreement with an employee representative or precludes an agency from striking individual agreements with its employees where a representative has been designated.2
The majority in part interprets the term “representative” in the manner it does so as to avoid an interpretation that it mistakenly believes would dictate a result that would conflict with the statute — namely, that the City would be required to reach an agreement for compensatory time with the Local or pay cash for overtime work. See infra at 1400. Such a requirement would, indeed, conflict with the court’s interpretation of the statute, under which subsections (2)(A)(i) and (ii) set forth alternative means by which a public agency may legally provide compensatory time. But contrary to the majority’s assumption, it would not follow from the fact that Local 660 is a legitimate “representative” that the City would be required under the regulation either to reach an agreement with the Local or to pay its employees cash. Even if this were the consequence of the opposing interpretation, the better course would be simply to invalidate the regulation as inconsistent with the statute. See Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781-82 n. 9 (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”).
Section 553.23(a)(1) provides in relevant part that “[n]o agreement or understanding is required with respect to employees hired prior to April 15, 1986, who do not have a representative, if the employer had [in effect on that date] a regular practice” of granting compensatory time. The purpose of this portion of subsection (a)(1) is merely to define one class of employees to whom public agencies may award compensatory time without an express agreement or understanding. The negative inference from this language is that compensatory time may be awarded to all other employees only pursuant to an express agreement, as the statute by terms requires. Nothing in either the language *1399or logic of this portion of the regulation suggests that if there is a representative, then there must be an agreement between the agency and the representative before compensatory time may be awarded. To the extent that the Fire Fighters’ argument rests on this portion of the regulation, it should be rejected on this basis alone.
The Fire Fighters’ principal contention, however, is not that subsection (a)(1) requires that an agency reach an agreement with a designated representative if it is to provide compensatory time to its employees, but rather that subsection (b)(1) imposes such a requirement. The majority rejects the Fire Fighters’ argument based on this provision without discussion on the grounds that they do not have a representative within the meaning of the regulation. See majority op. at 1396 n. 3. Subsection (b)(1) provides that, “[wjhere employees have a representative, the agreement or understanding concerning the use of compensatory time must be between the representative and the public agency either through a collective bargaining agreement or through a memorandum of understanding or other type of oral or written agreement.” 29 C.F.R. § 553.23(b)(1). The Fire Fighters contend that this portion of the regulation affirmatively requires an agreement between the public agency and the representative. This is a plausible reading of the regulation. I would interpret this portion of the regulation, however, merely as an implementation of the statute’s requirement that compensatory time be awarded pursuant to an agreement in one of the specified forms. The structure of section 553.23 strongly suggests, if not confirms, that this was the subsection’s only purpose. I would not read the section to impose an affirmative negotiation requirement where none exists in the statute ltself. If I concluded that the Fire Fighters’ interpretation were the only plausible interpretation of the regulation, however, I would invalidate the regulation as contrary to the statute.3
I suspect that fundamentally, the majority strains to interpret the regulation in the way that it does so as to preserve this court’s decision in Abbott. Abbott proceeds from the same erroneous premise as the majority’s interpretation of the regulation in this case. Compare Abbott, 879 F.2d at 135 (“The question here is whether section 207(o) permits public employers to enter into individual agreements with its employees ... where state law prohibits the employer from entering into agreements with employee representatives.”) with majority op. at 1396 (“Because Local 660 was not a representative whom the City could recognize consistently with state law ... the Fire Fighters did not have a representative within the meaning of the regulation....'”). It may well be that the majority’s interpretation of the statute is in tension, if not directly at odds, with this court’s reasoning in Abbott. I would abandon Abbott’s rationale, however, before I would impose through the regulation a requirement that nowhere exists in the statute.
Under the interpretation of the statute and the regulation that I would adopt, the court would not be required to read into the statute a requirement that the public agency agree with a representative selected by its employees, as the Fire Fighters and the dissent must do. Nor would it be required to force an interpretation of the regulation that is ultimately unsuccessful in harmonizing the regulation with the statute, as the majority does. Moreover, my interpretation would be uniform nationwide, without regard to the patchwork of *1400state laws regarding collective bargaining by public employees that would otherwise condition rights under the Fair Labor Standards Act “upon the mere fortuity of geography.” Dissenting op. at 1403.
If the statute and regulation are read in the manner that I suggest they should be, they are consistent with each other, and they result in a scheme that reasonably implements Congress’ objectives in amending the Fair Labor Standards Act. Subsection (2)(A) ensures that compensatory time is provided “only pursuant to” an agreement, and subsections (i) and (ii) in turn define the agreements pursuant to which compensatory time may be provided. Subsection (i) authorizes compensatory time pursuant to “a collective bargaining agreement,” a “memorandum of understanding,” or, significantly, "any other agreement” between the public agency and an employee representative. Thus, even if collective bargaining agreements between a union and a public agency are prohibited by state law, an agency and an employee representative may still agree to compensatory time under subsection (i) by entering into some “other agreement.”
Subsection (ii) defines an alternative, permissible form of agreement. For “employees not covered by subclause (i)” — employees who have not entered into a “collective bargaining agreement,” a “memorandum of understanding,” or “any other agreement” with their employer through their representative — it permits the provision of compensatory time pursuant to “an agreement or understanding arrived at between the employer and employee before the performance of the work.” Thus, if the employees have chosen a representative and the agency does not reach an agreement with that representative for any reason, the agency may enter into individual agreements under subsection (ii) with any employee who wishes. The City’s “regular practice” of awarding compensatory time prior to April 15, 1986, for example, constitutes such an individual agreement.
The statute and regulation, so read, also maximize the means available to public agencies and their employees to reach agreements providing for compensatory time, consistent with congressional intent. The one indisputable purpose for Congress’ enactment of section 7(o) was to free up public funds by encouraging and facilitating compensatory time awards in lieu of cash payment for overtime hours worked. See House Report, supra, at 19. The dissent’s interpretation of the statute and the regulation would completely frustrate this purpose, and the majority’s interpretation of the regulation promises to do the same.
. The dissent’s interpretation of section 7(o) is irreconcilable with this court’s decision in Abbott v. City of Virginia Beach, 879 F.2d 132, 135-36 (4th Cir.1989), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990). In Abbott, a municipal agency, without reaching an agreement with its employees’ designated representative, offered its employees a choice of cash or compensatory time for overtime. We held that a public employer may "enter into individual overtime compensation agreements with individual employees where state law prohibits the *1397agency from entering into agreements with employee representatives." 879 F.2d at 135. There is no principled distinction between this case and Abbott. If section 7(o) prohibits the award of compensatory time to represented employees absent an agreement between the agency and the representative, as the dissent contends, then compensatory time would not have been permissible under the facts in Abbott.
. The courts that have held otherwise have done so in reliance on the Department of Labor’s stated "intention that the question of whether employees have a representative ... shall be determined in accordance with State or local law and practices." 52 Fed.Reg. 2012, 2015 (Jan. 16, 1987), quoted in Nevada Highway Patrol, 899 F.2d at 1554; Dillard, 885 F.2d at 1556; Abbott, 879 F.2d at 136. This stated intention appears only in the preamble to the final rule codified at 29 C.F.R. part 553. I simply would not allow an interpretation of the regulation to be controlled by the preamble where the regulation affirmatively evidences an intent that the term “representative’’ not be defined by reference to state law and the preamble itself elsewhere recognizes that “collective bargaining is not a necessary condition for establishing an agreement between an employer and an employee representative.” 52 Fed.Reg. at 2015.
. The majority mistakenly assumes that the foregoing analysis of the regulation is directed to a “hypothetical” issue not now before the court — namely, whether a public agency would be required to reach an agreement with an employee representative if that representative were recognizable under state law. See majority op. at 1395 n. 2. It is not. It is directed to the majority’s interpretation of the regulation in this case. In my view, that interpretation conflicts with the majority's interpretation of the statute. Given this conflict, it is not an option as a matter of proper appellate review to refuse, as the majority does, to consider the Secretary's authority to promulgate the regulation but to reverse the district court. See id. The question, therefore, is not whether appellate review is proper, but whether there has been “proper” appellate review. Id.