B-229363.2, Dec 23, 1991, 71 Comp.Gen. 122

B-229363.2, Dec 23, 1991, 71 Comp.Gen. 122

CIVILIAN PERSONNEL - Compensation - Overtime - Eligibility - Travel time National Labor Relations Board (NLRB) employees are not entitled to overtime pay or compensatory time off for time spent in travel outside normal work hours to or from union representation elections since the NLRB still retains a degree of control over the event. In addition to attempting to meet the parties' request for scheduling of the event, the NLRB conducts and supervises the actual polling, and counts and tabulates the ballots. In order for such travel to be compensable under the statutory exception in 5 U.S.C. Sec. 5542(b)(2)(B)(iv), there must be a complete lack of government control. Daniel L. Hubbel, et al., 68 Comp.Gen. 29 (1988), affirmed.

Daniel L. Hubbel, et al. - Claim for Overtime - Travel During Nonduty Hours - Reconsideration:

This case comes to us as a joint request for reconsideration, in part, of our decision Daniel L. Hubbel, et al., 68 Comp.Gen. 29 (1988). /1/ The issue we are asked to reconsider is whether certain National Labor Relations Board (NLRB or Board) employees may be paid overtime compensation or compensatory time off for time spent in travel outside normal work hours in order to conduct union representation elections. For the following reasons, we hold that they may not be paid, and our decision Daniel L. Hubbel, et al., 68 Comp.Gen. 29 (1988), is hereby affirmed.

BACKGROUND

The NLRB is charged with the statutory authority to administer secret ballot elections whereby employees can choose whether or not they wish to be represented by a union for collective bargaining purposes. 29 U.S.C. Sec. 159 (1988). In some instances, the NLRB staff who administer the elections must travel away from their official duty stations. Thus, the employees have asked to be paid overtime pay or given compensatory time off for time spent in travel outside normal work hours to or from representation elections.

In our initial decision herein, 68 Comp.Gen. 29, we held that NLRB employees are not entitled to overtime or compensatory time for their time spent in travel outside normal work hours to or from union representation elections since the NLRB has broad discretionary authority to hold and schedule such elections. Therefore, we could not find that such events are unscheduled and administratively uncontrollable so as to permit overtime under the provisions of 5 U.S.C. Sec. 5542(b)(2)(B)(iv) (1988). /2/ In reaching our conclusion that the elections were within the control of the NLRB, we cited to 29 C.F.R. Sec. 101.19 (1986), which states that the Board will arrange all details incident to the mechanics and conduct of elections concerning representational issues.

The NLRB, in disputing our conclusion, states that we have not appreciated the great degree to which the scheduling of the election is, in practice, determined by the parties to the election, not by the NLRB, and that 84 percent of Board elections are held pursuant to the agreement of the parties. The NLRB states that its mission is to ensure that all employees in the affected group have the opportunity to vote, and that, with rare exceptions, its control over the date and time of an election must yield to the legitimate needs of the parties. Thus, the NLRB concludes that, although our original decision may be technically justifiable, it is untenable for the NLRB to simultaneously schedule elections so as to avoid NLRB agent nonduty travel time and fulfill its legal mandate to provide all affected employees full opportunity to vote in these elections. The Board says that the former must necessarily yield to the latter, thus demonstrating the actual lack of administrative control.

OPINION

We are not unmindful of the imposition placed on employees when they are forced to travel during their off duty hours in order to accomplish their mission. Congress has reminded agencies of this in 5 U.S.C. Sec. 6101(b)(2) (1988), where it states that, to the maximum extent practicable, the head of an agency shall schedule the time to be spent by an employee in a travel status away from his official duty station within the workweek of the employee. See also, 5 C.F.R. Sec. 610.123 (1991). However, such travel in order to be compensated must meet one of the statutory requirements in 5 U.S.C. Sec. 5542(b)(2)(B).

The NLRB contends that its employees are entitled to overtime or compensatory time for travel outside normal duty hours since the events which necessitate the travel, representational elections, are primarily within the control of the parties to the elections, and not the NLRB. Therefore, in the Board's view, the travel results from an event which could not be scheduled or controlled administratively and is thus compensable under the provisions of 5 U.S.C. Sec. 5542(b)(2)(B)(iv). do not agree.

The term "could not be scheduled" contemplates more than the fact that administrative pressures make scheduling difficult or impracticable. Comp.Gen. 727, 732 (1972). For an event to qualify as administratively uncontrollable under 5 U.S.C. Sec. 5542(b)(2)(B)(iv), there must be a total lack of government control. Morris Norris, 69 Comp.Gen. 17 (1989); Hankins and Archie, B-210065, Apr. 2, 1984; Mark Burstein, B-172671, Mar. 8, 1977.

This Office has recognized those instances where the event which causes the travel to be performed is not within the control of the government so as to permit reimbursement under the provisions of 5 U.S.C. Sec. 5542(b)(2)(B)(iv). For example, where employees traveled to meetings or hearings which were scheduled by a court and not by the executive agency itself, Department of Housing and Urban Development, 70 Comp.Gen. 77 (1990), and where employees traveled to training courses which were held at a private institution. William A. Lewis, et al., 69 Comp.Gen. 545 (1990). See also, Daniel L. Hubbel, et al., 68 Comp.Gen. supra, at 33 (travel to events concerning unfair labor practice cases where it is determined that there was an immediate official necessity).

We are still not convinced that there exists a complete lack of control by the NLRB over representational elections so as to bring it within the statutory exception in 5 U.S.C. Sec. 5542(b)(2)(B)(iv). The NLRB attempts to meet the demands of the parties when and to where the elections are held; however, the fact still remains that the NLRB schedules and coordinates the events. Further, the actual polling is always conducted and supervised by NLRB agents who count and tabulate the ballots immediately after the closing of the polls. 29 C.F.R. Sec. 101.19(a)(2) and (3) (1991). In Barth v. United States, 568 F.2d 1329 (Ct.Cl. 1978), the Court of Claims held that Navy civilian employees were not entitled to reimbursement under 5 U.S.C. Sec. 5542(b)(2)(b)(iv), for travel to inspection sites which were conducted by a private contractor. The court stated that:

"While this is not an instance of total control by the Government, neither is it one where there is a total lack of Government control (which the exception requires). This is, instead, an intermediate case where the agency shares control with the contractor and exercises its control indirectly." Barth v. United States, 568 F.2d at 1332. Accordingly, since there is not a total lack of control by the NLRB over representational elections, there is no authority for reimbursement under the statutory exception in 5 U.S.C. Sec. 5542(b)(2)(b)(iv). Our decision Daniel L. Hubbel, et al., 68 Comp.Gen. 29 (1988), is hereby affirmed.

In addition to this request for reconsideration, we note that over the years NLRB employees, who are employed as attorneys and field examiners, have filed numerous claims with this Office in an attempt to obtain relief from the prohibition against reimbursement for travel outside normal duty hours unless certain conditions of the statutory exception are met. Comp.Gen. 727 (1972); Hankins and Archie, B-210065, Apr. 2, 1984; Mark Burstein, B-172671, Mar. 8, 1977; Raymond Ratajczak, B-172671, Apr. 21, 1976; Raymond Ratajczak, B-172671, Nov. 19, 1974. However, as pointed out by the Court of Claims in Barth, 568 F.2d at 1333, Congress has affirmatively prohibited an award of overtime pay for travel time unless the peculiar conditions of the statutory exception are met. The court went on to say that relief may be granted only by the body so empowered, Congress.

/1/ The request was submitted jointly by the President of the National Labor Relations Board Union and by the General Counsel of the National Labor Relations Board.

/2/ We also held therein, however, that the NLRB could make a determination as to immediate offficial necessity and compensate employees for travel during nonduty hours when they must investigate certain unfair labor practice cases.