National Treasury Employees Union, Chapter 41 (Union) and U.S. Department of the Treasury, Internal Revenue Service, Southwest District (Agency)

[ v57 p640 ]

57 FLRA No. 123

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 41
(Union)

and

U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
SOUTHWEST DISTRICT
(Agency)

0-AR-3399

_____

DECISION

December 14, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Luella E. Nelson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

      The Arbitrator denied a grievance that alleged that the Agency violated the parties' alternative work schedules agreement (AWS agreement) by failing to grant the grievant credit hours for time spent traveling. For the reasons that follow, we deny the exception.

II.     Background and Arbitrator's Award

      The Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6120-6133 (Act), authorizes employers and unions to negotiate over the establishment of alternative work schedules. [n1]  Pursuant to that authority, the parties negotiated Article 23, Section 2 of the parties' national agreement (NORD V), covering alternative work schedules. Amongst other alternative schedules, that provision permits employees to work a "flexitour with credit hours" work schedule, consisting of a basic work requirement of five workdays of eight hours each in each administrative workweek of a pay period. [n2]  Employees on that schedule may also elect to work additional hours, known as credit hours, beyond their basic work requirement to vary the length of the workday or workweek. [n3]  Article 23, Section 2, Paragraph C of NORD V also permits local offices and Union chapters to negotiate agreements concerning alternative work schedules. Pursuant to that provision, the parties negotiated the AWS agreement. The AWS agreement requires each employee on a "flexitour with credit hours" schedule to establish a tour of duty with fixed starting and stopping times. Under Attachment A, Provision G of that agreement, employees on that schedule may earn credit hours for time spent traveling outside of the employee's tour of duty that occurs between the hours of 5:00 a.m. and 7:00 p.m., provided certain conditions are satisfied.

      On May 5, 1999, the Agency, relying upon guidance contained in the "Handbook of Alternative Work Schedules" (Handbook) promulgated by the Office of Personnel Management (OPM) under its authority under 5 U.S.C. § 6133, informed the Union that it believed that the provision of the AWS agreement permitting employees to earn credit hours for travel was illegal and unenforceable. [n4]  The Handbook states the following with regards to earning credit hours for travel time:

An employee may not earn credit hours for travel because travel in connection with Government work is not voluntary in nature. In other words, travel itself does not meet the definition of credit hours in 5 U.S.C. 6121(4), which provides that [ v57 p641 ] credit hours are hours within a flexible work schedule in excess of the employee's basic work requirement which the employee elects to work so as to vary the length of a workweek or a workday. If travel time creates overtime hours of work . . . the employee must be compensated by payment of overtime pay or under the rules for granting or requiring compensatory time off.

Award at 6.

      On June 2, 1999, OPM's Assistant Director for Compensation responded to an inquiry from the Agency's Personnel Division regarding the accumulation of credit hours for traveling. In this correspondence, OPM affirmed its stance articulated in the Handbook. In part, the letter stated:

Employees cannot be compensated for credit hours unless the travel hours are hours of work. There is no authority in law or OPM's regulations that permits an agency to grant credit hours for travel time. Under the existing authorities, travel time either does not qualify as hours of work, or it creates an entitlement to basic pay for nonovertime hours of work, or to overtime pay for overtime hours of work. Legislative action would be required to authorize credit hours for travel time.

Id.

      On June 7, 1999, the Director of the Southwest District sent a memorandum to all of the managers in the District, instructing them to stop granting credit hours for travel immediately.

      The Agency employs the grievant as a GS-9 Tax Auditor in its Las Cruces, New Mexico, office. He works a "flexitour with credit hours" schedule. In addition to his official duties, the grievant serves as a Union Steward. On several occasions from July to September 1999, the grievant traveled from Las Cruces to Albuquerque, New Mexico, in either his official or representational capacity. On each occasion, the grievant requested credit hours for the time he spent traveling outside of his regularly scheduled tour of duty. On each occasion, the Agency denied the grievant's request for credit hours. The grievant then filed a grievance over those denials.

      When the matter could not be resolved, the parties submitted the matter to the Arbitrator. At hearing, the parties stipulated that the sole reason for the Agency's denial of the grievant's requests for credit hours for traveling was the Agency's position that the provision of the AWS agreement permitting employees to earn credit hours for travel time is contrary to law.

      The Arbitrator ruled that Attachment A, Provision G of the AWS agreement is illegal and unenforceable. In this regard, the Arbitrator found that OPM's interpretation of the Act was consistent with the Act's silence on the matter. Despite reservations about the correctness of OPM's stance on the legality of earning credit hours for traveling, the Arbitrator noted that her jurisdiction did not extend to reviewing the wisdom of OPM's regulatory activities. Along those lines, she also noted that the Authority normally defers to OPM's interpretations. Therefore, the Arbitrator deferred to OPM's interpretation of the relevant statutory provisions and denied the grievance.

III.     Positions of the Parties

A.     Union's Exception

      The Union asserts that the award is contrary to the Act. The Union first argues that the granting of credit hours for travel is consistent with the plain language of the Act, its legislative history, and its purpose. The Union, citing NTEU, 52 FLRA 1265, 1293 (1997), notes that the Authority has previously held that alternative work schedules are fully negotiable, subject only to the Act or any other law superseding it. The Union maintains that nothing in the plain language of the Act expressly prohibits the earning of credit hours for travel. Moreover, the Union asserts that earning credit hours for travel, in the circumstances set forth in the AWS agreement, comports with the requirements for the accumulation of credit hours articulated in the Act's legislative history. The Union also asserts that nothing in the Code of Federal Regulations or other statutes bars the earning of credit hours for travel.

      The Union maintains that permitting employees to earn credit hours for travel would improve employee productivity, in accordance with the Congress' findings that alternative work schedules have "the potential to improve productivity in the Federal Government and provide greater service to the public." 5 U.S.C. § 6120. The Union claims that the granting of credit hours for time spent traveling could save the Agency significant amounts of money by reducing travel expenses, by encouraging employees to travel home following the conclusion of their business, rather than spending the night.

      The Union next argues that OPM's interpretation of 5 U.S.C. § 6121(4) cannot be reconciled with the language of the Act. The Union maintains that OPM's construction of the phrase "elects to work" contained in the [ v57 p642 ] Act "makes no sense." Exceptions at 10. In this regard, the Handbook states that, "an employee may not earn credit hours for travel because travel in connection with Government work is not voluntary in nature." Handbook at 8. The Union argues that no work is truly voluntary in nature. Instead, the Union asserts that the phrase "elects to work" actually refers to an election as to the timing of the performance of the work. According to the Union, when the employee elects to perform the work at some point during the hours in which he or she is eligible to accumulate credit hours, then that employee has made the necessary election.

      The Union next asserts that OPM's interpretation relies upon the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (FLSA) and the Federal Employees Pay Act (FEPA) and that that reliance is misplaced. The Union argues that OPM's interpretation of the Act is flawed as those laws are not superseding laws. Because, as noted above, alternative work schedules are fully negotiable, subject only to the provisions of the Act and laws superseding the Act, the Union maintains that those laws are irrelevant in interpreting the Act.

      Furthermore, the Union maintains that OPM's interpretation errs because it focuses on the overtime pay provisions of the FEPA and the FLSA. The Union argues that the relevant issue is compensation for travel performed during the regular work day. In this regard, the Union claims that an employee can accumulate credit hours for travel during an employee's basic work requirement because that travel constitutes hours of work. Specifically, the Union argues that travel is compensable if it occurs during an employee's regularly scheduled administrative workweek, under either 5 C.F.R. § 550.112(g) (FLSA exempt employees), or 5 C.F.R. § 551.421 and 5 C.F.R. § 551.422 (FLSA non-exempt employees). [n5]  The Union maintains that the regularly scheduled workweek for an employee with a flexible work schedule includes those hours within the employee's flexible time band. The Union also notes that 5 C.F.R. § 610.111(d) states that, for an employee on a flexible work schedule, all work performed by that employee "within the basic work requirement is considered regularly scheduled work for premium pay and hours of duty purposes." Accordingly, the Union claims that time spent traveling during the basic work requirement, which the Union defines as the workday extended by credit hours, is hours of work and that employees can earn credit hours for traveling during those hours.

      The Union next claims that the Authority has previously rejected similar attempts to narrow the sort of activities for which employees may earn credit hours. In this connection, the Union asserts that the reasoning of the Authority in permitting the accumulation of credit hours for the performance of representational activities is applicable to this case. See NTEU, Chapter 65, 25 FLRA 373, 376-77 (1987); NTEU, 30 FLRA 690, 695 (1987). Specifically, the Union maintains that the Authority has reasoned that employees can earn credit hours for representational activities performed within an employee's flexible time band because those activities constitute work. The Union asserts that these decisions establish the principle that employees can earn credit hours for any activity if: (1) the employee elects to work those hours; (2) the activity would be compensable if performed during the employee's basic work requirement and (3) the activity is performed in the time frame in which an employee is eligible to earn credit hours. The Union claims that the travel in this case met those requirements.

      Finally, the Union asserts that the Handbook is not entitled to deference. In support of this proposition, the Union cites to Christensen v. Harris County, 529 U.S. 576 (2000) (Christensen). In that case, the Supreme Court held that interpretations, such as those contained in policy statements and opinion letters, which lack the force of law are not entitled to deference. Id. at 586-87. Instead, the interpretations contained in those formats are entitled to respect only to the extent those interpretations have the power to persuade. Id. at 587.

      The Union maintains that the Handbook is not entitled to such deference as it is not persuasive. First, the Union asserts that because the Act does not expressly prohibit the granting of credit hours for traveling, it necessarily permits such a practice. Additionally, the Union claims that OPM's interpretation is contrary to the purposes of the Act, as argued above. Moreover, the Union, citing EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), asserts that where, as here, an [ v57 p643 ] agency's interpretation of a statute has been inconsistent, the current interpretation will not be considered persuasive. Finally, the Union reasserts its argument that OPM's reasoning is illogical.

B.     Agency's Opposition

      The Agency first maintains that the award is consistent with Congress' statutory scheme regarding compensation for travel. The Agency notes that OPM's interpretation of the Act is consistent with Congressional silence on the issue of earning credit hours for travel. In this connection, the Agency also argues that the Arbitrator's reasoning is consistent with a number of rules of statutory construction. By abiding by these rules of statutory construction, the Arbitrator, according to the Agency, interpreted the Act in a manner consistent with the FLSA and the FEPA and properly deferred to OPM's interpretation of those statutes.

      The Agency argues that the Arbitrator granted an appropriate degree of deference to OPM's interpretation of the Act. In this connection, the Agency distinguishes Christensen from the instant case. The Agency argues that the Handbook, unlike the advisory opinion at issue in Christensen, is not inconsistent with relevant regulations. Instead, the Agency argues that the Handbook is consistent with the Act, and its implementing regulations, and, therefore, the deferential standard of regulation review established in Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984), still applies. The Agency argues that such deference is appropriate in this case as OPM's interpretation is consistent with the statutes and regulations governing federal pay.

      The Agency next asserts that travel time does not meet the statutory definition of credit hours. In this connection, the Agency first notes that OPM relied on the definition of work found in other regulations, because that term is not defined in the Act. The Agency argues that the travel in this case did not meet any of the conditions which might qualify it as work, under either 5 C.F.R. § 550.112(g) or 5 C.F.R. § 551.422. Moreover, the Agency argues that where, as here, the sole purpose of the travel is to transport employees to and from where they are to perform their duties, then that travel does not constitute work.

      Furthermore, the Agency disputes the Union's argument that credit hours can be earned for traveling because it constitutes part of the employee's basic work requirement. In this regard, the Agency notes that credit hours are, by definition, hours in excess of an employee's basic work requirement. Therefore, the Agency argues that the earning of credit hours can never constitute part of an employee's basic work requirement.

      The Agency also asserts several of the cases relied upon by the Union are distinguishable. Specifically, the Agency distinguishes the cases relied upon by the Union in asserting that the Authority has rejected previous attempts to limit the circumstances under which employees can earn credit hours. In this regard, the Agency maintains that none of the cases cited by the Union concern the accumulation of credit hours for time spent traveling. Moreover, the Agency asserts that none of those cases involved union attempts to impose a definition of work in contradiction to pertinent OPM guidance.

      Finally, the Agency asserts that employees cannot earn credit hours for traveling because the employees do not elect to work the hours spent traveling. The Agency maintains that the term "elects" in the Act means a choice by an employee to perform work. According to the Agency, when an employee must travel to perform work, the employee has no choice but to travel. Therefore, the Agency argues that employees cannot be eligible for earning credit hours because employees cannot elect to travel in connection with the performance of official business.

      In support of its opposition, the Agency also expresses disagreement with the Arbitrator's comment that a choice to travel is no less voluntary than a choice to engage in any work-related function. The Agency maintains that the timing of the travel is dictated by the start and finish of the business which the employee was traveling to perform. The Agency asserts that travel to such a scheduled event or meeting lies in contrast to a situation where an employee has elected to extend his or her workday by staying past the end of his or her normal workday.

IV.     Analysis and Conclusion

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has consistently held that matters concerning alternative work schedules are fully negotiable, [ v57 p644 ] subject only to the Act or laws superseding it. See NAGE, Local R1-109, 56 FLRA 1043, 1045 (2001). The issue in this case is whether the Act or any superseding law prohibits the granting of credit hours to an employee working an alternative work schedule for time the employee has spent traveling. Although the language of the Act and its implementing regulations do not address the matter, OPM, under its authority established in 5 U.S.C. § 6133(b)(1), has issued guidance and advice addressing the issue. In OPM's view, employees on alternative work schedules may not earn credit hours for time spent traveling.

      The Authority normally defers to guidance from OPM on statutory matters that OPM is entrusted to interpret if that guidance constitutes a reasonable interpretation of the statutory language. See AFGE, Local 1978, 56 FLRA 894, 897 (2000). However, interpretations which lack the force of law, such as opinion letters, manuals and the like, do not warrant such deference. United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 FLRA 304, 307 (2001) citing Christensen, 529 U.S. 576. Under those circumstances, deference is appropriate only to the extent that those interpretations have the power to persuade. Christensen, 529 U.S. at 587. See also Pitsker v. OPM, 234 F.3d 1378 (Fed. Cir. 2000) (OPM's informal interpretation of disability retirement statute is to be given deference only if it is persuasive). In this case, OPM's interpretation of the Act carries such persuasive weight.

      An employee on an alternative work schedule can earn credit hours only for hours that he or she elects to work in addition to the employee's basic work requirement. As relevant here, OPM properly recognized that travel in connection with government work does not meet those requirements, as travel in connection with government work is not voluntary in nature. An employee cannot elect to travel in connection with government work because the employee must travel to the place where the employee is to perform his or her official duties.

      The Union argues that the term "elects" refers to an election as to the timing of the performance of the work because, in the Union's view, no employee can actually elect to perform any of his or her duties. Travel, however, is fundamentally different than the performance of duties at an official duty station. In contrast to the situation where an employee is at his or her official duty station and he or she elects to extend the workday by performing additional assigned duties, an employee in travel status has no choice but to travel in connection with the performance of his or her official duties. Further, the "timing" of the travel is not always within an employee's control. Accordingly, as recognized by OPM, employees may not receive credit hours for time spent traveling.

      Alternatively, as the Agency argues, even if employees can be considered to "elect" to travel, the travel at issue here, which is outside the employee's basic work requirement, would not be considered "work" under the statutory definition of credit hours. While the Act does not specify when travel time is considered compensable work under a flexible schedule, that issue is addressed in the premium pay provisions of Title 5 and the FLSA. Under those provisions, travel time is considered hours of work only if it occurs within the employee's "regularly scheduled administrative workweek." 5 U.S.C. § 5542(b)(2)(A); 5 C.F.R. § 551.421; 5 C.F.R. §551.422(a)(1). [n6]  Travel time is not considered hours of work for pay purposes if it occurs outside that time period. [n7] 

      Employees who work flexible schedules under the Act have a "basic work requirement" in lieu of a regularly scheduled administrative workweek. 5 U.S.C. § 6121(3). The basic work requirement is "the number of hours, excluding overtime hours, which an employee is required to work . . . ." Id. OPM's regulations indicate that the concept of a "basic work requirement" should be considered the same as the concept of "regularly scheduled work" for hours of duty purposes. [n8] 

      Consequently, travel time within the basic work requirement would be considered compensable and travel time outside the basic work requirement would not be compensable, as it is not regularly scheduled. The Act further defines "credit hours" as "hours within a flexible schedule . . ., which are in excess of an [ v57 p645 ] employee's basic work requirement . . . ." 5 U.S.C. § 6121(4). As credit hours are defined as outside the basic work requirement, travel during these hours would not be compensable.

      The Union's other arguments also do not persuade us otherwise. The Union claims that the granting of credit hours for travel is consistent with the language of the Act and its legislative history. However, both the language of the Act and the Act's legislative history make clear that employees must elect to work the additional hours. Where, as here, the employee cannot elect to work the additional hours, the Act and the accompanying legislative history dictate that the employee cannot accumulate credit hours for that time.

      The Union also asserts that permitting employees to accumulate credit hours for travel would increase employee productivity, in accordance with Congress' findings that alternative work schedules have the potential to improve productivity. Even assuming that permitting employees to earn credit hours for travel time could somehow make them more productive, the Act itself controls and it does not permit the accumulation of credit hours for travel.

V.     Decision

      The Union's exception is denied.



Footnote # 1 for 57 FLRA No. 123

   5 U.S.C. § 6130(a) provides:

In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.

Footnote # 2 for 57 FLRA No. 123

   5 U.S.C. § 6121(3) defines the basic work requirement as:

the number of hours, excluding overtime hours, which an employee is required to work or is required to account for by leave or otherwise.

Footnote # 3 for 57 FLRA No. 123

   5 U.S.C. § 6121(4) defines credit hours as:

. . .any hours, within a flexible schedule established under section 6122 of this title, which are in excess of an employee's basic work requirement and which the employee elects to work so as to vary the length of a workweek or a workday.

Footnote # 4 for 57 FLRA No. 123

   5 U.S.C. § 6133 provides, in part:

(a) The Office of Personnel Management shall prescribe regulations necessary for the administration of the programs established under this subchapter.
(b)(1) The Office shall provide educational material, and technical aids and assistance, for use by an agency in connection with establishing and maintaining programs under this subchapter.

Footnote # 5 for 57 FLRA No. 123

   5 C.F.R. § 550.112(g), in part, provides:

Time in travel status away from the official duty-station of an employee is deemed employment only when:
(1) It is within his regularly scheduled administrative workweek, including regular overtime work . . . .
5 C.F.R. § 551.422, in part, provides:
(a) Time spent traveling shall be considered hours