U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Internal Revenue Service and National Treasury Employees Union, 0-AR-3351, August 17, 20001, 57 FLRA No. 81.

FLRA turned down agency exceptions to an award in which the arbitrator, finding that a contract provision was an "express provision" that permitted compensation for commute travel under the Portal-to-Portal Act, and ordered, among other things, that the grievants, who had been temporarily assigned to the Seattle office, be compensated for the resulting increase in travel time. In a concurring opinion, Chairman Cabaniss noted that the agency would have prevailed had it timely made its argument concerning OPM regulations to the arbitrator.

Back in 1998 the agency increased staffing at its district office in Seattle by temporarily assigning Revenue Agents and Revenue Officers from its Tacoma, Evertt, and Bellevue offices to work at the Seattle office, thus increasing their commuting time. The union grieved, claiming the affected employees were entitled to compensation for the increase in their travel time. The contract provision at issue reads as follows:

When an employee travels from his/her residence to a point of destination within his/her official duty station [here, a 40-mile radius around Seattle], 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.

When the agency turned down the union's grievance, the matter was referred to arbitration. The arbitrator found that the agreement provision constituted an "'express provision' permitting compensation for commute travel under the Portal-to-Portal Act" and that the agency had violated the Fair Labor Standards Act. He ordered, among other things, that the affected employees be compensated for the increased travel time.

FLRA turned down agency exceptions to the award. (Member Armendariz didn't participate in this decision.) It rejected the agency's claim that the arbitrator couldn't enforce the above contract provision as an "express provision" under § 254(b) of the Portal-to-Portal Act.

The FLSA was amended by the Portal-to-Portal Act, 29 U.S.C. § 254. Section 254(a) provides that no employer is liable for minimum wages, or overtime compensation, for time employees spend walking, riding, or traveling to and from the actual place of performance of work which the employees are entitled to perform. However, § 254(b) sets forth an exception that provides that an employer shall not be relieved from compensating employees if such activity is compensable by either "an express provision of a written or nonwritten contract . . . between [the employee's] collective-bargaining representative and his employer[,]" or "a custom or practice in effect, at the time of such activity." 29 U.S.C. § 254(b); Dep't of the Navy, 55 FLRA at 490 (Authority found that, pursuant to § 254(b), agency's established practice of transporting employees to the job site after they started their shift, and subsequently transporting employees from the job site before quitting time, entitled employees to be paid for transportation time). [Bracketed material interpolated by FLRA.]

FLRA refused to consider the agency's contention that 5 CFR 551.422 (which precludes compensation for commute time) because that claim hadn't been raised before the arbitrator.

In a concurring opinion, Chairman Cabaniss noted that the agency would have prevailed had it timely made its argument about 5 CFR 551.422. She noted that in Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991), the court held that § 4(b) of the Portal-to-Portal Act doesn't override OPM regulations which prohibit certain conduct from being considered hours of work for compensation purposes. She said that "[t]he court noted that, while such collective bargaining provisions were recognizable by the statute, the OPM regulations acted to 'rule out such bargaining' for federal employees."

Chairman Cabaniss' concurring opinion is notice to readers not to draw the wrong inference from FLRA's decision in this case. The agency didn't prevail in its exceptions to the award because of technical reasons--i.e., the agency had not raised its 5 CFR 551.422(b) argument before the arbitrator. Had it done so, the outcome--at least as far as Member Cabaniss was concerned--would have been different.

In 57 FLRA No. 112, the Authority turned down the agency's motion for reconsideration of its decision here, noting that "[w]ith regard to the Portal-to-Portal Act, the Agency disputed before the Arbitrator only whether the agreement provision constitued an express provision -- not whether the Act applied at all to the provision."