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50:0136(28)CA - - GSA, Washington, DC and NFFE - - 1995 FLRAdec CA - - v50 p136

[ v50 p136 ]
The decision of the Authority follows:

50 FLRA No. 28









(Charging Party/Union)




February 23, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with 5 C.F.R. § 2429.1 based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and Respondent filed briefs. The Office of Personnel Management (OPM) filed a brief as amicus curiae under 5 C.F.R. § 2429.9.(1)

The complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by repudiating a portion of the parties' collective bargaining agreement. For the following reasons, we find that the Respondent did not violate the Statute.

II. Facts

The Union represents a consolidated bargaining unit of the Respondent's professional and nonprofessional employees. During negotiations for a local agreement, the Respondent notified the Union that it would no longer honor the first sentence of Article 34, Section 6B of the parties' master agreement.(2) Relying in part on Federal Personnel Manual (FPM) Chapter 610, Subchapter 4 (3), the Respondent asserted that the sentence violated the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Work Schedules Act), 5 U.S.C. §§ 6120-6133 (1988 & Supp. V 1993), which, according to the Respondent, does not permit a combined flexible-compressed work schedule (hereinafter a "hybrid" schedule).(4)

III. Positions of the Parties

A. Respondent

The Respondent argues that the disputed sentence is contrary to the Work Schedules Act, which, it maintains, does not permit the combination of flexible and compressed work schedules. The Respondent asserts that, as the sentence is contrary to law, it is null and void and the Respondent's refusal to honor that part of the provision did not violate the Statute. Moreover, according to the Respondent, a violation of the Statute may not be based on a reasonable interpretation of a contract and, as its interpretation of the sentence as inconsistent with the Work Schedules Act is reasonable, the Authority may not find a violation of the Statute even if the Authority disagrees with the interpretation.

B. General Counsel

The General Counsel contends that the only issue to be determined in this case is whether the disputed sentence violates the Work Schedules Act. In this regard, the General Counsel argues, without elaboration, that not all hybrid work schedules encompassed by Article 34 are rendered illegal by the Respondent's interpretation of the Work Schedules Act because a hybrid schedule "may be entirely appropriate" for those professional employees(5) who are not entitled to overtime or premium pay. G.C. Brief at 4.


OPM asserts that neither the Work Schedules Act nor the FPM chapter relied on by the Respondent permits hybrid schedules. OPM acknowledges that the FPM chapter has been rescinded but asserts that the "guidance contained in the chapter . . . continues to be an accurate interpretation of the Act and . . . OPM policy." OPM Brief at 6. According to OPM, the Authority must defer to its statutory and regulatory interpretations because, under 5 U.S.C. § 6133,(6) it is responsible for interpreting and administering the Work Schedules Act. OPM asserts that, even if hybrid schedules are permitted for certain professional employees, the disputed portion of the provision nevertheless is unenforceable because it is inconsistent with law as it applies to other employees.

V. Analysis and Conclusions

The disputed sentence of Article 34, Section 6B authorizes employees to combine compressed and flexible work schedules. Based on our examination of the Act and its legislative history, we find that the Act separately defines and authorizes flexible and compressed schedules, and that the two types of schedules have different requirements with respect to such matters as overtime, holidays, and night pay. We further find that the Work Schedules Act is silent with respect to combining the two schedules. On the basis of these findings and the responsibility delegated to OPM to prescribe regulations necessary for the administration of flexible and compressed work schedules established under the Act, we adopt OPM's interpretation of the Act as prohibiting such combination. See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).

The first sentence of Article 34, Section 6B is contrary to law because it authorizes the combination of work schedules in violation of the Work Schedules Act. As such, it is not enforceable under the Statute and the Respondent's refusal to honor the sentence does not constitute unlawful repudiation. See U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 361, 366 (1990) (as provision allegedly violated by the respondent was inconsistent with law, the respondent did not violate the Statute by failing to adhere to it).

In reaching this conclusion, we reject the General Counsel's assertion that a hybrid schedule may be appropriate for professional unit employees because they are not entitled to overtime or premium pay. First, the General Counsel offers no authority for this assertion. Second, our research fails to disclose any basis for concluding that an employee's status as professional or nonprofessional has any effect on the employee's entitlement to overtime. In this regard, 5 U.S.C. §§ 5542 and 5543 provide that all GS employees are entitled to overtime compensation either in the form of premium pay or compensatory time off. Finally, without regard to professional status, all GS employees also are entitled to other types of premium pay such as night, standby, irregular and hazardous pay under 5 U.S.C. § 5545 and Sunday and holiday pay under 5 U.S.C. § 5546.

In sum, the Respondent's refusal to honor the first sentence of Article 34, Section 6B does not constitute unlawful repudiation.(7) Accordingly, we dismiss the complaint.

VI. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

1. We have not considered an affidavit OPM submitted in support of its brief because section 2429.9 of our Regulations does not permit the introduction of evidence.

2. Article 34, Section 6B provides as follows:

Employees may combine the 5/4/9 schedule with the flexible schedule under this agreement. Employees may arrive at work any time during the morning flexible band and depart after completing their required number of hours.

Joint Exhibit 4 at 73.

3. During the pendency of this case, FPM Chapter 610 was abolished. FPM Sunset Document, Summary Table at 8.

4. As used herein, a flexible schedule permits employees to vary starting and quitting times during the days of a biweekly pay period; a compressed schedule permits employees to work the required number of hours in fewer days than normal in a pay period.

5. The General Counsel did not define the term professional. However, the professional unit represented by the Union includes only general schedule (GS) employees. See Stipulation, Joint Exhibit 4 at 85. Thus, we assume that the reference to professional employees is intended to encompass GS employees who meet the definition of professional set forth in section 7103(a)(15) of the Statute.

6. 5 U.S.C. § 6133(a) provides that OPM "shall prescribe regulations necessary for the administration of the programs established under . . . [the Work Schedules Act]."

7. Because we conclude that the first sentence of Article 34, Section 6B is contrary to law, we do not address whether the Respondent's refusal to honor the provision would violate the Statute if the disputed provision were enforceable.