B-172671, NOV 19, 1974

B-172671, NOV 19, 1974

NATIONAL LABOR RELATIONS BOARD (NLRB) FIELD EXAMINER WHO SCHEDULED REPRESENTATIVE ELECTION ON NONWORKDAY BECAUSE ELECTION INVOLVED TRUCKERS AWAY FROM TERMINAL DURING WEEKDAYS MAY BE COMPENSATED FOR 6 1/2 HOURS TRAVEL TIME SPENT IN TRAVELING FROM HIS DUTY STATION TO THE ELECTION SITE AND RETURN AS WEEKEND TRAVEL WAS NOT ADMINISTRATIVELY CONTROLLABLE, EVEN THOUGH NLRB REGIONAL COMMISSIONER COULD HAVE INSISTED ON MAIL BALLOT ELECTION WHICH WOULD NOT HAVE REQUIRED WEEKEND TRAVEL, SINCE HE WOULD STILL HAVE TO HOLD HEARING WHICH TRUCKERS COULD NOT HAVE ATTENDED DURING WORKWEEK THUS REQUIRING FIELD EXAMINER TO PERFORM WEEKEND TRAVEL ANYWAY.

MR. RAYMOND RATAJCZAK - NONWORKDAY TRAVEL:

THIS ACTION IS AT THE REQUEST OF THE NATIONAL LABOR RELATIONS BOARD (NLRG) FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF GRANTING COMPENSATORY TIME TO MR. RAYMOND RATAJCZAK, A FIELD EXAMINER OF THE NLRB, FOR TIME SPENT DURING A NONWORKDAY IN TRAVELING TO AND FROM A REPRESENTATIVE ELECTION.

THE RECORD SHOWS THAT ON SATURDAY, JANUARY 26, 1974, MR. RATAJCZAK, A FIELD EXAMINER IN THE NLRB'S BUFFALO, NEW YORK, FIELD OFFICE, CONDUCTED A REPRESENTATION ELECTION BETWEEN 1 P.M. AND 1:30 P.M. IN CATO, NEW YORK. CATO IS APPROXIMATELY 150 MILES FROM THE REGIONAL OFFICE IN BUFFALO AND MR. RATAJCZAK SPENT 6 1/2 HOURS TRAVELING FROM BUFFALO TO CATO AND RETURN. MR. RATAJCZAK SUBMITTED A CLAIM FOR COMPENSATORY TIME FOR 8 HOURS, 6 1/2 OF WHICH COVERED THE TIME HE SPENT IN TRAVEL, THE REST COVERING THE TIME ALLOTTED FOR THE ELECTION, ITS PREPARATION, AND FOR TALLYING BALLOTS AND OTHER INCIDENTAL REQUIREMENTS.

THE REGIONAL DIRECTOR OF NLRB REJECTED MR. RATAJCZAK'S CLAIM FOR COMPENSATORY TIME FOR THE TIME SPENT IN TRAVEL ON THE GROUNDS THAT HE COULD FIND NO JUSTIFICATION FOR ITS APPROVAL IN THE PERTINENT REGULATIONS. THE NATIONAL LABOR RELATIONS BOARD UNION LOCAL 3, BUFFALO, GRIEVED THE DECISION OF THE REGIONAL DIRECTOR, CONTENDING THAT HIS ACTION IN REJECTING THE CLAIM FOR THE TIME SPENT IN TRAVEL WAS ARBITRARY. THE NLRB NOW REQUESTS AUTHORITY FROM OUR OFFICE TO GRANT MR. RATAJCZAK'S REQUEST FOR COMPENSATION FOR THE TIME SPENT IN TRAVEL DUE TO THE UNUSUAL CIRCUMSTANCES INVOLVED.

THE APPLICABLE LAW GOVERNING OVERTIME COMPENSATION STATES IN PERTINENT PART:

"(B) FOR THE PURPOSE OF THIS SUBCHAPTER

"(2) TIME SPENT IN TRAVEL STATUS FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

"(B) THE TRAVEL *** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

5 U.S.C. 5542(B) (SUPP. 1974) AMENDING 5 U.S.C. 5542(B) (1970).

WITH RESPECT TO THE REQUIREMENT IN THE ABOVE LAW AS IT RELATES TO MR. RATAJCZAK'S TRAVEL INCIDENT TO THE ELECTION, THE NLRB STATES:

"A PETITION FOR REPRESENTATION ELECTION HAVING BEEN FILED BY THE UNION IN THIS CASE, BOARD AGENT RATAJCZAK, IN ACCORDANCE WITH NORMAL AGENCY PROCEDURES, CALLED A CONFERENCE OF REPRESENTATIVES OR THE EMPLOYER AND THE UNION IN AN EFFORT TO OBTAIN AN AGREEMENT FOR CONSENT ELECTION. DEVELOPED THAT THE EMPLOYEES INVOLVED WERE OVER-THE-ROAD TRUCK DRIVERS, ABSENT FROM THEIR TERMINAL DURING THE WEEK, AND AVAILABLE ONLY ON WEEKENDS. IT IS CLEAR THAT, WERE AN ELECTION TO BE SCHEDULED DURING A WEEKDAY, THE ELIGIBLE VOTERS COULD NOT BE PRESENT. BOARD AGENT RATAJCZAK SOUGHT AGREEMENT TO CONDUCT A MAIL-BALLOT ELECTION. THIS, THE PARTIES REFUSED TO DO. THE PARTIES THEN EXECUTED A STIPULATION FOR CERTIFICATION UPON CONSENT ELECTION TO BE CONDUCTED ON SATURDAY, JANUARY 26, 1974, IN CATO, NEW YORK, FROM 1 P.M. TO 1:30 P.M. SUCH STIPULATIONS ARE SUBJECT TO THE APPROVAL OF THE REGIONAL DIRECTOR. HE APPROVED THE STIPULATION IN THIS CASE ON JANUARY 3. IN THIS PARTICULAR SITUATION, AS THE PARTIES HAD REFUSED A MAIL-BALLOT ELECTION, SUCH AN ELECTION COULD ONLY BE HELD AFTER A FORMAL HEARING AND DECISION AND DIRECTION OF A MAIL-BALLOT ELECTION BASED UPON THE RECORD DEVELOPED AT THE HEARING. THIS PROCEDURE OBVIOUSLY ENTAILS GREAT EXPENSE AND DELAY, AND, UPON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, A MAIL BALLOT MAY NOT HAVE BEEN DIRECTED IN ANY EVENT. WHILE THE BOARD HAS INHERENT POWER TO DIRECT MAIL-BALLOT ELECTIONS, IT IS THE POLICY OF THE BOARD TO DISCOURAGE THAT MODE OF CONDUCTING AN ELECTION WHERE A MANUAL ELECTION UNDER THE DIRECT SUPERVISION OF A BOARD AGENT IS FEASIBLE. THE BOARD HAS RECOGNIZED THE DANGERS THAT EXIST TO THE EXERCISE BY THE VOTERS OF THEIR FREEDOM OF CHOICE WHEN ELECTIONS ARE NOT CONDUCTED IN THE PRESENCE OF AND UNDER THE SUPERVISION OF BOARD PERSONNEL UNDER SO-CALLED LABORATORY CONDITIONS PRESCRIBED BY THE BOARD."

IT APPEARS FROM THE ABOVE THAT THERE WAS NO ADMINISTRATIVE ALTERNATIVE TO THE SCHEDULING OF MR. RATAJCZAK'S TRAVEL ON THE WEEKEND. ALTHOUGH THE REGIONAL COMMISSIONER COULD HAVE REJECTED THE PETITION FOR A MANUAL BALLOT ELECTION, HE COULD NOT HAVE ORDERED A MAIL BALLOT ELECTION UNLESS A FORMAL HEARING WITH THE PARTIES INVOLVED ATTENDING WERE TO BE HELD. SINCE THE REASON THE TRUCK DRIVERS COULD NOT ATTEND A MANUAL BALLOT ELECTION ON A WORKDAY WAS THAT THEY WOULD HAVE BEEN AWAY FROM THEIR HEADQUARTERS, IT FOLLOWS THAT THEY ALSO COULD NOT HAVE ATTENDED THE FORMAL HEARING ON A WEEKDAY. THEREFORE, ANY FORMAL HEARING WOULD ALSO HAVE TO HAVE BEEN SCHEDULED ON THE WEEKEND. IF THIS PROCEDURE WERE FOLLOWED TO ITS ULTIMATE CONCLUSION, THE VERY HEARING WHICH WOULD HAVE BEEN HELD SO THAT MR. RATAJCZAK COULD HAVE AVOIDED TRAVEL ON A WEEKEND, WOULD ITSELF HAVE NECESSITATED TRAVEL ON A WEEKEND. SECTION 5542(B)(2)(B) DOES NOT CONTEMPLATE SUCH AN ANOMALOUS RESULT.

WE FIND FROM THE ABOVE THAT THE NLRB HAD NO ALTERNATIVE BUT TO SCHEDULE MR. RATAJCZAK'S TRAVEL ON A WEEKEND SINCE THE NECESSARY PARTIES TO EITHER A MANUAL ELECTION OR TO A FORMAL HEARING REQUIRED AS A PRECEDENT TO A MAIL -BALLOT ELECTION COULD NOT HAVE ATTENDED ON A WEEKDAY. IT IS CLEAR THAT WHEN AN EMPLOYEE'S TRAVEL IS NOT CONTROLLABLE BUT RATHER MUST FIT THE TIME SCHEDULE SET BY PERSONS OUTSIDE OF HIS AGENCY, IN THIS CASE THE MANAGEMENT AND UNION OF THE TRUCKING FIRM INVOLVED, SUCH TRAVEL MAY BE COMPENSABLE AT OVERTIME RATES IF PERFORMED OUTSIDE OF NORMAL DUTY HOURS. 50 COMP. GEN. 519 (1971).

WITH RESPECT TO MR. RATAJCZAK'S RETURN TRAVEL OUR DECISION AT 51 COMP. GEN. 727 (1972) STATED IN PERTINENT PART:

"*** ALTHOUGH INITIAL TRAVEL MAY FALL WITHIN ONE OF THE CONDITIONS OF SUBPARAGRAPH 5542(B)(2)(B) TO QUALIFY AS HOURS OF EMPLOYMENT, THE RETURN TRAVEL MUST ITSELF FALL WITHIN ONE OF THOSE CONDITIONS IN ORDER TO QUALIFY THE TIME INVOLVED AS HOURS OF EMPLOYMENT. 50 COMP. GEN. 519 (1971); 50 ID. 674 (1971). IN LIGHT OF THE POLICY EXPRESSED IN 5 U.S.C. 6101(B)(2) THAT TO THE MAXIMUM EXTENT PRACTICABLE TRAVEL SHOULD BE SCHEDULED WITHIN THE REGULARLY SCHEDULED WORKWEEK OF AN EMPLOYEE WE HAVE ALSO HELD THAT THE PER DIEM COSTS WHICH MIGHT BE NECESSARY TO COMPLY WITH THAT POLICY ARE NOT CONSIDERED UNREASONABLE. B-169078, APRIL 22, 1970. ASSUMING AN UNCONTROLLABLE EVENT NECESSITATES AN EMPLOYEE'S TRAVEL, NOTWITHSTANDING THAT THERE IS SUFFICIENT NOTICE TO PERMIT SCHEDULING OF THE TRAVEL DURING HIS REGULARLY SCHEDULED DUTY HOURS WHERE SUCH SCHEDULING WOULD RESULT IN THE PAYMENT OF AT LEAST 2 DAYS ADDITIONAL PER DIEM, TRAVEL MAY BE REQUIRED DURING THOSE OFF DUTY HOURS AND COMPENSATED FOR AT OVERTIME RATES. COMP. GEN. 674 (1971)."

SINCE THE RECORD DOES NOT SHOW ANY UNCONTROLLABLE EVENT NECESSITATING THE RETURN OF MR. RATAJCZAK ON SATURDAY, MR. RATAJCZAK IS NOT ENTITLED TO OVERTIME COMPENSATION FOR THE TIME SPENT IN RETURN TRAVEL FROM CATO TO BUFFALO.

ACCORDINGLY, MR. RATAJCZAK MAY BE GRANTED COMPENSATORY TIME FOR THE TIME SPENT IN TRAVEL FROM BUFFALO TO CATO BUT NOT FOR THE RETURN TRIP.