National Treasury Employees Union (Union) and United States, Department of the Treasury, Internal Revenue Service, Washington, D.C. (Agency)

[ v59 p119 ]

59 FLRA No. 22

NATIONAL TREASURY EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
(Agency)

0-NG-2667

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

September 9, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a provision disapproved by the Agency head under § 7114(c) of the Statute. The provision addresses situations where a temporary duty assignment requires an employee to commute to a work site that is within 40 miles of the employee's permanent post of duty. The Department of the Treasury (the Agency) filed a statement of position, following which the Union filed a response.

      For the reasons that follow, we find the provision contrary to law and dismiss the petition for review.

II.     Provision

Per diem entitlement is contingent upon an employee's assignment to temporary duty outside the commuting area of the official station or residence. To be considered outside the boundaries of the commuting area, the place of duty must first be outside the boundaries of the employee's official duty station. In addition the temporary place of duty must be more than forty (40) miles from the employee's permanently assigned physical location (office) and also more than forty (40) miles from the employee's residence, measured by odometer or other readings on the most commonly used route. At any point beyond both these distances, and also outside the official station, is outside the commuting area. When an employee travels from his/her residence to a point of destination within his/her official duty station, he/she should not be required to leave home any earlier or arrive home any later than he/she does when he/she travels to and from his/her usual assigned place of business. [Only the italicized language is in dispute].

III.     Background

      The Union and the Internal Revenue Service (IRS) entered into a new collective bargaining agreement. In accordance with § 7114(c) of the Statute, the Agency conducted a review of the agreement and disapproved the provision in dispute. The parties agree that the provision is similar to the contractual provision involved in United States Dep't of the Treasury, IRS, 57 FLRA 444 (2001) (Chairman Cabaniss concurring) (IRS), reconsideration denied, 57 FLRA 592 (2001). [n2] In IRS, the employees involved were performing non-exempt duties and subject to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. The record indicates that, like the situation in IRS, the employees in this case are also subject to the FLSA.

IV.     Positions of the Parties

A.     Agency

1.     Procedural Issue

      The Agency asserts that the petition for review was not filed within the time limits set forth in 5 C.F.R. § 2421.21. According to the Agency, the Authority's Order of May 7, 2002 indicates that the petition was received by the Authority on April 10, 2002. The [ v59 p120 ] Agency contends that its written disapproval was served on the Union by personal delivery on March 15, 2002, and based upon Authority regulations, the petition for review was not filed within the 15 calendar day requirement.

2.     Merits

      Referring to the explanations of the meaning of the provision that was: (1) reported in the record of post-petition conference; (2) provided in the Union's petition for review; and (3) stated by the Union in the IRS case about similar language, the Agency asserts that the Union's statement of the meaning of the provision in dispute is not clear because a different meaning was provided on each of those occasions. The Agency thus requests the Authority to direct the Union to provide a particularized statement setting forth its interpretation of the italicized language, the basis for its interpretation, and an explanation of why the Union believes the language is negotiable. The Agency contends that this will allow it to respond to all matters raised by the statement, including whether it will agree to sever the provision as requested by the Union in its petition for review.

      The Agency contends its disapproval of the language in dispute is based on the interpretation given it by the arbitrator in IRS. According to the Agency, the dispute in IRS was over the interpretation of similar language in the parties' agreement, and the arbitrator found the language required the IRS to compensate employees for commute time when an employee's assignment to another location (point of destination) away from his/her assigned place of work but within his/her official duty station increased his/her commute time.

      The Agency asserts that an Office of Personnel Management (OPM) regulation prohibits paying Federal employees for commuting time used to travel to areas within an official duty station. Citing United States Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991) (Dep't of the AF), the Agency contends that because the provision in dispute requires it to provide compensation for time used to commute to and from a work place within an official duty station, it is contrary to 5 C.F.R. § 551.422(b), a Government-wide regulation, and § 7117 of the Statute. [n3]  The Agency also asserts that since the provision is contrary to 5 C.F.R. § 551.422(b), it is not within the duty to bargain despite the exception set forth in § 4(b) of the Portal-to-Portal Act (29 U.S.C. § 254(b)) (the Act). [n4] 

      The Agency further asserts that the Union's claim that the provision constitutes a negotiable procedure or appropriate arrangement does not provide a basis for finding the provision negotiable because the provision is inconsistent with a Government-wide regulation.

B.     Union

1.     Procedural Issue

      The Union contends that, in accordance with §§ 2424.21 and 2429.21 of the Authority's regulations, the petition for review was filed within fifteen (15) calendar days after service of the Agency head's provision disapproval.

2.     Merits

      The Union "disagrees with the explanation of the last sentence of [the provision]" that is set forth in the record of post-petition conference. Id. According to the Union:

the disputed provision is intended to address those situations where an employee has been temporarily assigned to work at a location other than the employee's usual assigned place of business, but within forty (40) miles of the employee's permanent post of duty. In those situations, an employee is allowed to leave and return home at his/her normal time (i.e., an employee is not required to leave home any earlier or return home at the end of the work day any later when commuting to and from a temporary duty location). In essence, the employee's tour of duty can be modified during the duration of the temporary assignment. To the extent such modifications are not made, an employee may be entitled to overtime compensation, where the work day is extended based on additional commute time resulting from the need to travel to and from a temporary work location.

Response at 3. The Union asserts that this explanation is consistent with the plain text of the disputed provision, the interpretation given by the arbitrator in IRS, and the explanation the Union provided in its petition. [ v59 p121 ]

      The Union further asserts that because this explanation is consistent with the meaning addressed by the Agency in its statement, the Authority should deny the Agency's request for a more particularized statement from the Union.

      The Union also contends that the Agency has not shown that the disputed language is contrary to 5 C.F.R. § 551.422(b). Relying on the Authority's decision in IRS, the Union asserts that the Authority found that similar contract language was enforceable under the Portal-to-Portal Act. The Union argues that 5 C.F.R. § 551.422(b) "contains no prohibition against compensation of commute time . . . ." Id. at 6. The Union asserts that the regulation is "consistent with and implements [29 U.S.C. § 254(a)] relieving employers of statutory liability for . . . employee time spent commuting to and from work." Id. at 12. The Union claims that under 29 U.S.C. § 254(b), Congress established an exception to employer relief from liability where compensation is required by an express provision of a written contract.

      The Union asserts that OPM "has failed to apply [29 U.S.C. § 254(b)]--preserving employer liability for a commute pay when established by [a contract provision] to federal employees." Id. (footnote omitted). The Union contends that 5 C.F.R. § 551.422(b) "must be consistent" with the FLSA; otherwise, it is "invalid." Id. at 10 and 11. Further, the Union references a Department of Labor (DOL) regulation, 29 C.F.R. § 785.34, and asserts that the DOL regulation expressly references 29 U.S.C. § 254(a) and (b) and interprets the Act as preserving employer liability for commute time when it is made compensable by contract, custom or practice. The Union asserts that OPM regulations must be consistent with those issued by the DOL. In support, the Union also cites United States Dep't of the Navy, Navy Public Works Center, Pearl Harbor, Hawaii, 55 FLRA 487 (1999) (Dep't of the Navy).

      The Union contends that the Agency's reliance on Dep't of AF is misplaced because that decision involved a different regulation, 5 C.F.R. § 551.412(b). The Union also asserts that "[a]llowing employees the flexibility to contract for compensation of commute activities recognizes that involuntary commutes can be unduly burdensome." Response at 9 n.2.

      Finally, and without further elaboration, the Union requests that the provision be severed.

V.     Analysis and Conclusions

A.     The Petition for Review is Timely

      The time limit for filing a petition for review is "within fifteen (15) days" after service on the union of an agency head's disapproval of a provision. 5 C.F.R. § 2424.21. The date of service of an agency head disapproval of a contract provision is the date on which the disapproval is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). See, e.g., NEA, OEA, Fort Rucker Education Assoc., 53 FLRA 941, 942 (1997). Here the disapproval was served on the Union by personal delivery on March 15, 2002, and the 15th day after service was Saturday, March 30. Because the filing date fell on a Saturday, the petition had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than April 1, 2002. See 5 C.F.R. § 2429.21 (if the last day of the period "is a Saturday, Sunday, or a Federal legal holiday . . .the period shall run until the end of the next day which is neither a Saturday, Sunday, or a Federal legal holiday."). Although received by the Authority on April 10, 2002, the Union's petition was postmarked, and thus filed, on April 1, 2002. Therefore the petition for review was timely filed and we deny the Agency's motion to dismiss.

B.     Meaning of the Provision

      Both parties disagreed with the description of the meaning of the provision set forth in the record of post-petition conference and each provided further explanation of the meaning of the provision. The Agency explained that the provision is meant to operate as described by the arbitrator in IRS, that is, it would require "the IRS to compensate employees for commute time when an employee's assignment to another location (point of destination) away from his/her assigned place of work but within his/her official duty station resulted in increased commute time." Statement at 6 (emphasis in original).

      The Union explained that the provision seeks to address situations where an employee has been temporarily assigned to work at a location other than the employee's usual post of duty, but within forty (40) miles of such post of duty. [n5] According to the Union, when assignment to a temporary duty location would result in a longer commute, an employee would be [ v59 p122 ] allowed to leave work and return home at his/her normal time. The Union explained that, in this circumstance, the employee's actual tour of duty would be shortened during the duration of the temporary assignment. However, to the extent such modifications are not made, the Union explains that an employee would be entitled to overtime compensation for the period of time his/her commute time was extended as a result of travel to and from a temporary duty site.

      Although the provision is silent as to compensation, both parties agree that it requires compensation for increased commute time. For purposes of this decision, we interpret the provision as requiring the Agency to compensate an employee for commuting time within the employee's official duty station to the extent that the commute to or from a temporary assigned work location increases the employee's usual commute. [n6] 

C.     The Provision Is Inconsistent with a Government-Wide Regulation

      Commuting time, that is, "home to work" travel, is not an activity that constitutes hours of work and, therefore, is generally not compensable. 5 C.F.R. § 551.422(b). See also, 5 C.F.R. § 551.401(h); AFGE, AFL-CIO, Local 3232, 31 FLRA 355, 358 (1988) (AFGE) (proposal seeking compensation for additional commuting time required by assignments of employees to special details away from their regular duty station found inconsistent with 5 C.F.R. § 551.422(b)). [n7] Cf. United States Dep't of Health and Human Services, 54 FLRA 1210 (1998) (payment of transit subsidies authorized by law under Clean Air Incentives Act). Further, contrary to the Union's contention, the Authority's decision in IRS does not support its position that the provision is negotiable under the Portal-to-Portal Act, 29 U.S.C. § 254. In IRS, the Authority rejected the Agency's argument that employees could not be compensated for travel time pursuant to 29 U.S.C. § 254 because the contract article at issue was not an express provision as set forth by that Act. However, the court's decision in Dep't of the AF, 952 F.2d 446 was not considered in IRS because the Agency's argument that raised Dep't of the AF was not timely raised and, therefore, not properly before the Authority under 5 C.F.R. § 2429.5. Thus, the issue of whether enforcement of the disputed provision would be contrary to 5 C.F.R. § 551.422(b) was not decided. See IRS, 57 FLRA at 448 and 57 FLRA at 593-94.

      In this case, however, the Agency has timely argued that the provision is inconsistent with 5 C.F.R. § 551.422(b) and has timely raised the applicability of Dep't of the AF. Although the OPM regulation at issue in Dep't of the AF dealt with the pay status of preliminary and postliminary activities and involved 5 C.F.R. § 551.412(b), the court's interpretation and evaluation of the Authority's application of the Portal-to-Portal Act and Part 551 of OPM's regulations are equally relevant to 5 C.F.R. § 551.422(b).

      In Dep't of AF, the court found that § 4(b) of the Portal-to-Portal Act, (29 U.S.C. § 254(b)), which recognizes compensability by contract or custom for time that would otherwise be precluded by 29 U.S.C. § 254(a), does not override OPM regulations implementing 29 U.S.C. § 254(a) and prohibiting certain conduct from being treated as hours of work for purpose of compensation. Dep't of AF, 952 F.2d at 450-51. The court noted that, while contrary collective bargaining provisions were recognized as exceptions to the requirements of the Portal-to-Portal Act, Part 551 of the OPM regulations acted to "rule out such bargaining" for federal employees. Id. at 451. The court further found that OPM "intended its regulations in Part 551 to be mandatory." Dep't of the AF, 952 F.2d at 451 (footnote omitted). As the focus of the court's decision was on the interplay between all of Part 551 and 29 U.S.C. § 254, a contract provision that requires the Agency to compensate an employee in a manner contrary to Part 551 of OPM's regulations is contrary to a Government-wide rule or regulation, despite any exception created by § 4(b) of the Portal-to-Portal Act.

      Since the provision in this case would require the Agency to compensate employees for increased commute time to a work site within their official duty station, the provision is inconsistent with 5 C.F.R. § 551.422(b). Moreover, and consistent with Dep't of the AF, we find that if OPM had meant for such activity to be compensable through negotiation under the FLSA, "it would have had to affirmatively grant that right in [Part 551] or other regulations in order not to run afoul of § 7117 of [the Statute] and its designation as nonnegotiable any proposal inconsistent with government-wide regulations . . .." Id. at 451. Although the Union cites Dep't of the Navy, 55 FLRA 487 (1999) as [ v59 p123 ] contrary authority, the resolution of that case did not involve review of an exception alleging that the award was contrary to 5 C.F.R. § 551.422(b).

      Although the Union also contends that the OPM regulation is inconsistent with the Portal-to-Portal Act, the FLSA, and DOL Regulations, as the court stated in Dep't of the AF, the "FLRA has authority only to address the question of negotiability of the union proposal[]" and not the validity of OPM's regulation. 952 F.2d at 452.

      Accordingly, we find that the provision is inconsistent with 5 C.F.R. § 551.422(b). As that regulatory provision is a Government-wide regulation, we conclude that the provision is contrary to law and was properly disapproved by the Agency under § 7114(c) of the Statute.

VI.     Order

      The petition for review is dismissed.


APPENDIX

29 U.S.C. § 254 Portal-to-Portal Pay
(a) Activities not compensable
Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et. seq.], the Walsh-Healey Act [41 U.S.C.A. § 35 et. seq.], or the Bacon-Davis Act [40 U.S.C.A. § 276a et seq.], on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947 - -
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities . . . 
(b) Compensability by contract or custom
Notwithstanding the provisions of subsection (a) of this section which relieve an employer from liability and punishment with respect to any activity, the