FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL TREASURY EMPLOYEES 

UNION (NTEU), No. 03-74093 Petitioner,

FLRA No.

v.  O-NG-2667

FEDERAL LABOR RELATIONS OPINION AUTHORITY,

Respondent. 

On Petition for Review of an Order of the

Federal Labor Relations Authority

Argued and Submitted

April 4, 2005—Seattle, Washington

Filed August 12, 2005

Before: Ronald M. Gould, Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould

10549
COUNSEL

Gregory O’Duden, General Counsel, Barbara A. Atkin, Deputy General Counsel, and Julie M. Wilson, Assistant Counsel,

Washington, D.C., for the petitioner. 

David M. Smith, Solicitor, William R. Tobey, Deputy Solicitor, and David M. Shewchuk, Attorney, Washington, D.C., for

the respondent.

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 10551
OPINION

GOULD, Circuit Judge: 

This petition for review of an order by the Federal Labor

Relations Authority (FLRA) arises out of negotiations for a

collective bargaining agreement between the National Treasury Employees Union (NTEU) and the Internal Revenue Service. NTEU sought to include in the agreement a provision

that would provide compensation to IRS employees who are

required to spend extra time commuting from home to a temporary work site within their official duty station. The IRS

accepted the provision and approved the agreement. 

The Secretary of the Treasury disapproved NTEU’s proposed contract provision as contrary to a government-wide

regulation defining “hours of work” promulgated by the

Office of Personnel Management (OPM). NTEU petitioned

the FLRA for review of the Secretary’s disapproval. The

FLRA denied the petition, concluding that NTEU’s proposed

contract provision was nonnegotiable because it was contrary

to law. 

NTEU timely filed a petition for review of the FLRA’s

order. We have jurisdiction under 5 U.S.C. § 7123(a), and we

affirm. 

I

The Federal Service Labor-Management Relations Statute

(FSLMRS), 5 U.S.C. §§ 7101-7135 (2000), governs labor

relations for federal employees. The statute requires federal

agencies to bargain in good faith with its employees over

wages. See Fort Stewart Schs. v. FLRA, 495 U.S. 641, 644

(1990). Agreements between an agency and its employees are

subject to approval by the head of the agency; a provision

may be disapproved only if it is not in accordance with appli10552 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
cable law, rule, or regulation. See 5 U.S.C. § 7114(c).1

Employees may challenge an agency head’s disapproval

through an appeal to the FLRA. See id. §§ 7105(a)(2)(E),

7117(c). 

In its collective bargaining agreement with the IRS, NTEU

sought to include the following provision:

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.

The IRS accepted the provision and approved the agreement.

The Secretary of the Treasury, pursuant to 5 U.S.C.

§ 7114(c), reviewed the agreement and disapproved the language requiring pay for extra commute time as contrary to

Part 551 of the OPM regulations, which covers “hours of work.”

2

1Section 7114(c) provides in part that 

(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.

(2) The head of the agency shall approve the agreement within

30 days from the date the agreement is executed if the agreement

is in accordance with the provisions of this chapter and any other

applicable law, rule, or regulation (unless the agency has granted

an exception to the provision). 

2Congress gave OPM the authority to issue government-wide regulations to implement the FSLMRS and the Fair Labor Standards Act (FLSA)

of 1938, 29 U.S.C. §§ 201- 219, for federal employees. See 5 U.S.C.

§§ 1103-1104, 1301-1103; 29 U.S.C. § 204(f). 

OPM regulations define the phrase “hours of work” as “all time spent

by an employee performing an activity for the benefit of the agency and

under the control or direction of the agency.” 5 C.F.R. § 551.104. In determining whether time is hours of work, the OPM regulations consider factors including other rules, provisions of law, Comptroller General

decisions, agency policy and regulations, and negotiated agreements. Id.

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 10553
The subpart of Part 551 that addresses “Time spent traveling”

states:

An employee who travels from home before the regular workday begins and returns home at the end of

the workday is engaged in normal “home to work”

travel; such travel is not hours of work. When an

employee travels directly from home to a temporary

duty location outside the limits of his or her official

duty station, the time the employee would have spent

in normal home to work travel shall be deducted

from hours of work . . . . 

5 C.F.R. § 551.422(b) (emphasis added). The Secretary determined that NTEU’s proposed contract provision was in conflict with the OPM regulation because the provision would

require payment for normal “home to work” travel within an

employee’s official duty station,3 while the OPM regulation

clearly states that “such travel is not hours of work.” NTEU

petitioned the FLRA for review of the Secretary’s disapproval

of its proposed contract provision. 

In a 2-1 decision, the FLRA dismissed the petition, holding

that the provision was nonnegotiable under 5 U.S.C.

§ 7117(a)(1) because the provision conflicted with 5 C.F.R.

§ 551.422(b). The majority reasoned that normal “home to

work” travel is not compensable under OPM regulations and

that binding precedent from the D.C. Circuit in Department of

the Air Force v. Federal Labor Relations Authority, 952 F.2d

446, 450-51 (D.C. Cir. 1991), established that OPM regulations are mandatory and rule out bargaining by federal

employees for compensation in a manner contrary to the regulations. The FLRA majority concluded that 

3The agency can prescribe a “mileage radius of not greater than 50

miles to determine whether an employee’s travel is within or outside the

limits of the employee’s official duty station.” 5 C.F.R. § 551.422(d). 

10554 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
Since the provision . . . 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 . . . .” 

(quoting Dep’t of the Air Force, 952 F.2d at 451) (alterations

in original). 

The dissent saw no conflict between the provision and the

OPM regulation because the regulation neither mandates nor

prohibits pay for “work to home” travel. In the dissent’s view,

the statutory context in which the OPM issued the regulation

and Congress’s intent to support collective bargaining suggested that the contract provision was consistent with

§ 551.422(b), which establishes only a minimum rule that

“home to work travel . . . is not hours of work” that can be

modified by negotiated agreement. The dissent distinguished

Department of the Air Force as addressing a different OPM

regulation, 5 C.F.R. § 551.412(b),4 which includes “categorical” language critical to the D.C. Circuit’s holding. 

4The regulation addressed by the D.C. Circuit in Department of the Air

Force provided that 

A . . . concluding activity that is not closely related to the performance of [an employee’s] principal activities is considered a . . .

postliminary activity. Time spent in . . . postliminary activities is

excluded from hours of work and is not compensable, even if it

occurs between periods of activity that are compensable as hours

of work. 

5 C.F.R. § 551.412(b)(2) (emphasis added) (alterations in the original);

Dep’t of the Air Force, 952 F.2d at 448. 

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 10555
NTEU timely petitioned for review of the FLRA’s decision.

II

We must decide whether the FLRA erred in holding that

NTEU’s proposed contract provision conflicts with the OPM

government-wide regulation defining hours of work.5 The parties agree on the operative meaning of the proposed contract

provision. The contractual language would provide compensation for extra time spend commuting from home to a temporary work site within an employee’s official duty station. 

[1] We have determined that the “plain meaning of a regulation governs.” Wards Cove Packing Corp. v. Nat’l Marine

Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002). The regulation at issue here states that “[a]n employee who travels

from home before the regular workday begins and returns

home at the end of the workday is engaged in normal ‘home

5We review FLRA decisions under the same standard set forth in the

Administrative Procedure Act. See 5 U.S.C. § 7123 (providing for judicial

review of FLRA decisions and incorporating the APA’s standard of

review). Thus, we will set aside only FLRA decisions that are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the

law.” 5 U.S.C. § 706(2)(A); see also Dep’t of Veterans Affairs Med. Ctr.

v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994). 

We generally accord deference to FLRA interpretations of union proposals and negotiability issues. See Defense Language Inst. v. FLRA, 767

F.2d 1398, 1401 (9th Cir. 1985); see also Nat’l Treasury Employees Union

v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir. 1994). However, when the FLRA

interprets a statute or regulation that it does not administer, as is the case

here, we review de novo the FLRA’s decision. See Dep’t of the Interior

v. FLRA, 279 F.3d 762, 765 (9th Cir. 2002); see also Dep’t of the Air

Force, 952 F.2d at 450 (“Deference to the FLRA is especially inappropriate here because Congress specifically delegated to the OPM the authority

‘to administer’ the FLSA’s provisions on payment of overtime for

postshift activity. The Authority’s interpretation of [5 C.F.R.]

§ 551.412(b) is . . . subject to de novo review.” (internal citations omitted)). 

10556 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
to work’ travel; such travel is not hours of work.” 5 C.F.R.

§ 551.422(b). In our view, the plain meaning of this regulation excludes “normal home to work travel,” defined as an

employee’s travel from his or her home to a location within

the limits of his or her official duty station, from being considered hours of work.6

 Because NTEU’s proposed contract

provision would require the IRS to compensate its employees

for their travel from home to a location within the limits of

their official duty station, we hold that the provision conflicts

with OPM regulations and the FLRA properly dismissed

NTEU’s petition for review. 

NTEU argues that the contract provision is not in conflict

with OPM regulations because those regulations establish

only minimum entitlements under the FLSA that may be

modified by negotiated agreement. See 5 C.F.R. § 551.401(d)

(“Time that is considered hours of work under this part shall

be used only to determine an employee’s entitlement to minimum wages or overtime pay under the [FLSA].”). We disagree. Although the FLSA sets out minimal entitlements to

pay and the Portal-to-Portal Act’s amendments7 leave open

the possibility that, in the case of private employees, a collective bargaining provision may provide for more pay, the government employee is in a different situation. See Dep’t of the

Air Force, 952 F.2d at 451. 

[2] The FSLMRS “governs collective bargaining between

government employees and government agencies,” and

explicitly “bars negotiation over provisions that are inconsis6When an employee travels from home to a temporary duty location

outside the limits of his or her official duty station, OPM regulations allow

a government agency to pay the employee for the travel time in excess of

the time the employee would have spent in normal home to work travel.

See 5 C.F.R. § 551.422(b). 

7The Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262, provides that

private employers are not required to pay their employees for time spent

traveling from home to work, see id. § 254(a), but that such travel time

may be made compensable by contract, id. § 254(b)(1). 

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 10557
tent with government-wide regulations.” Id.; see 5 U.S.C.

§§ 7101, 7117. Congress has given the OPM the authority to

make government-wide regulations under the FSLMRS, and

the OPM has said that time spent traveling from home to a

location within an employee’s official duty station is not

hours of work. See 5 C.F.R. § 551.422(b). NTEU’s negotiated

provision would require compensation for such travel time,

and the provision is therefore inconsistent with § 551.422(b)

and nonnegotiable under the FSLMRS.8See Dep’t of the Air

Force, 952 F.2d at 452. 

NTEU argues that Department of the Air Force is distinguishable because the D.C. Circuit was interpreting 5 C.F.R.

§ 551.412(b), a different subpart of the OPM regulations on

hours of work that contains materially different language.9 We

are not persuaded. 

[3] The OPM regulations designate certain time as “hours

of work” to determine whether a federal employee is entitled

to wages or overtime pay. See 5 C.F.R. §§ 551.104,

8A contrary rule would allow agencies to compensate commute time,

and, by logical extension, other personal time. As a general matter, to

compensate workers for personal time does not appear to be a correct

practice for a responsible government. By comparison, normal home to

work travel is considered personal time and, for example, is not tax

deductible. See, e.g., Sanders v. Commissioner, 439 F.2d 296 (9th Cir.

1971) (“A taxpayer’s cost of commuting or driving to work is not a

deductible business expense . . . but rather is a non-deductible personal

expenses[.]”) (citing Commissioner v. Flowers, 326 U.S. 465 (1946);

Smith v. Warren, 388 F.2d 671 (9th Cir. 1968); Treas. Reg. §§ 1.62-1(g);

1.162-2(e); 1.262-1(b)(5)). But even if it were correct in any case to compensate for personal time, the proposed compensation for commute time

at issue here conflicts squarely with the government-wide regulation of 5

C.F.R. § 551.422(b), which characterizes commute time as not being

hours of work. 

9The regulation we address states that “such travel is not hours of

work,” whereas the regulation that the D.C. Circuit addressed states that

certain time “is excluded from hours of work and is not compensable.”

Compare 5 C.F.R. § 551.422(b), with id. § 551.412(b). 

10558 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
551.401(d). Thus, the absence of additional language stating

that certain time is also “not compensable” is immaterial. See

Federal Pay Administration Under the Fair Labor Standards

Act, 45 Fed. Reg. 85,660 (Dec. 30, 1980) (“These regulations

. . . provide definitions, rules, and guidelines by which determinations are to be made as to what time constitutes ‘hours

of work,’ and, therefore, as to what time is compensable.”).10

Accordingly, we find persuasive, and we adopt, the D.C. Circuit’s holding that if the OPM intends activity that is not

“hours of work” to be compensable through negotiation, it

must “affirmatively grant that right” in Part 551 or other regulations “in order not to run afoul of § 7117 of the FSLMRS

and its designation as nonnegotiable any proposal inconsistent

with government-wide regulations.” Dep’t of the Air Force,

952 F.2d at 451. Because the OPM has not granted unions the

right to negotiate for compensation for normal home to work

travel, the Secretary of the Treasury properly disapproved of

NTEU’s provision, and the FLRA properly dismissed

NTEU’s petition.

III

We hold that NTEU’s proposed contract provision that

would compensate IRS employees for their travel from home

to a location within their official duty station conflicts with

10Our conclusion is bolstered by Federal Personnel Manual (FPM) Letter 551-11, which provides additional guidance from the United States

Civil Service Commission on whether travel time is “hours of work.” The

FPM letter provides: 

As a general rule, an employee’s home to work travel . . . to a

job site within the limits of the official duty station . . . shall not

be considered compensable hours worked. For instance, if an

employee travels directly from his/her home to a job site located

within the official duty station in lieu of reporting to his/her normal duty location, this is considered normal home to work travel

and is not compensable under the FLSA. 

U.S. Civil Serv. Comm’n, Fed. Personnel Manual System Letter 551-11

att. C (Oct. 4, 1977). 

NATIONAL TREASURY EMPLOYEES UNION v. FLRA 10559
government-wide OPM regulations defining hours of work.

Because the provision is discordant with applicable regulations, the FLRA correctly dismissed NTEU’s petition for

review. 

PETITION DENIED.

10560 NATIONAL TREASURY EMPLOYEES UNION v. FLRA