American Federation of Government Employees, Local 3911, AFL-CIO and Environmental Protection Agency, Region 2, 0-AR-3782, July 27, 2004, 60 FLRA No. 25.

FLRA, deferring to OPM telework guidance, turned down union exceptions to an award in which the arbitrator ruled that the agency didn't violate the agreement when the agency didn't excuse the grievant from duty on a day on which she was scheduled to work at her AWS even though it had excused employees scheduled to work at the ODS. "As OPM reasonably has found that it is lawful for an agency to require its employees to report to duty at their alternative work site on a day when the official duty site is closed due to snow emergency, we defer to the OPM guidance on this matter and find that the Union has not shown that the award is unlawful."

On Tuesdays, the grievant, a participant in the agency's flexiplace program, normally works at home, her alternative work site (AWS). On Tuesday, February 18, her official duty site (ODS) was closed due to a snow emergency and employees scheduled to work there that day were excused from duty without being charged leave. The grievant, who was on annual leave from February 14 through February 19, was charged annual leave on the day the ODS was closed. The union grieved, claiming the grievant should have been granted an excused absence for that day and the matter was referred to arbitration.

The arbitrator, noting that the flexiplace agreement stated that "[e]mployees are not entitled to excused absence for emergency closings . . . that do not affect their reporting for duty at the alternative work location[,]" denied the grievance. The union filed exceptions, claiming that the award was contrary to 5 U.S.C. ' 6302 and violated management's right to change employee work schedules, approve leave, and assign work.

FLRA didn't see the relevance of ' 6302(a) -- which describes, among other things, "days of leave" -- to the grievant's situation. But even if it did apply, the award didn't violate it.

Annual leave is governed by chapter 63 of title 5, United States Code. OPM is responsible for prescribing regulations necessary for the administration of the annual leave provisions contained in that chapter. 5 U.S.C. ' 6311. In interpreting those statutory and regulatory provisions, OPM has specifically held that an agency may require employees under a flexiplace agreement to continue to work at their alternative worksite when the agency's official duty site is closed due to extreme weather conditions. See U.S. Office of Personnel Management, Telework: A Management Priority, A Guide for Managers, Supervisors, and Telework Coordinators; Appendix D, Frequently Asked Questions and Answers (2003). 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). As OPM reasonably has found that it is lawful for an agency to require its employees to report to duty at their alternative work site on a day when the official duty site is closed due to a snow emergency, we defer to the OPM guidance on this matter and find that the Union has not shown that the award is unlawful.

FLRA also held that the award didn't affect any management right. "The award in this case does not in any way preclude the Agency from making changes to the grievant's or any other employee's flexiplace work schedules, grant leave, or assign work. As such, there is no effect on any of management's rights as asserted by the Union."

The union's exceptions were accordingly denied.

The key to this case is that the flexiplace agreement made clear that employees with flexiplace arrangements are not entitled to excused absence for emergency closings that don't affect their reporting for duty at the alternative work location.

Incidentally, one of the arguments in support of flexiplace work arrangements is that emergencies preventing the performance of work at the official duty site do not necessarily prevent the performance of work at the alternative work site. Thus the impact of emergencies on government operations is to some extent mitigated when employees are working at alternative work sites.