B-164353, OCT. 21, 1969

B-164353, OCT. 21, 1969

COMPENSATION--WAGE BOARD EMPLOYEES--OVERTIME--TRAVEL TIME WAGE BOARD EMPLOYEE ( ON SHIP CHECK TEAM AT SAN DIEGO), ORDERED TO TRAVEL ON OR ABOUT MAR. 30, 1968 (SAT.) TO JAPAN TO DETERMINE OVERHAULING OF U.S.S. KITTY HAWK, TRAVELED SATURDAY AND SUNDAY OVER 20 HOURS. NAVY ALLOWED OVERTIME FOR 13 HOURS 45 MINUTES ACTUAL WORK DURING FLIGHT REVIEWING PREPARATORY DOCUMENTS AND DISALLOWED REMAINING TRAVEL TIME BECAUSE IT WAS NOT COVERED BY 5 U.S.C. 5544 (A) AS AMENDED BY PUB. L. 90- 206. GAO CONCURS IN DETERMINATION SINCE EMPLOYEE WAS NOT ENTITLED TO OVERTIME PAY WHILE TRAVELING EXCEPT FOR REQUIRED WORK WHILE TRAVELING, AND INTERVENING TRAVEL WAS NOT CAUSED BY TRAVEL DURING WHICH WORK WAS PERFORMED; MOREOVER, OUTSIDE-DUTY-HOUR TRAVEL IS COMPENSABLE AS OVERTIME ONLY WHEN WITHIN REQUIREMENTS OF 5 U.S.C. 5544 (A) NOTWITHSTANDING 5 U.S.C. 6101 (B) (2).

TO MR. JOSEPH F. SAVELLI:

WE REFER TO YOUR LETTER OF JUNE 27, 1969, BY WHICH YOU REQUEST REVIEW OF THE DENIAL OF CERTAIN OVERTIME PAY TO YOU DURING THE TRAVEL YOU PERFORMED FROM SAN DIEGO, CALIFORNIA, TO TOKYO, JAPAN, ON MARCH 30 AND 31, 1968, AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY.

WE HAVE RECEIVED A REPORT FROM THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT, DEPARTMENT OF THE NAVY, IN WHICH THE FACTS INVOLVED IN YOUR CASE ARE STATED AS FOLLOWS: "WE ARE ADVISED THAT ON OR ABOUT 1 MARCH 1968, THE SUPERVISOR OF SHIPBUILDING, SAN DIEGO, WAS INFORMED THAT THE USS KITTY HAWK WOULD BE IN PORT AT SUBIC BAY, PHILIPPINES, ON 2 APRIL 1968, FOR REPLENISHMENT. ACCORDINGLY, IT WAS DETERMINED THAT A SHIP CHECK TEAM WOULD BE SENT TO SUBIC BAY TO DETERMINE THE EXTENT OF OVERHAUL REQUIREMENTS FOR THE USS KITTY HAWK. MR. SAVELLI WAS TO BE A MEMBER OF THE SHIP CHECK TEAM. SEVERAL DAYS BEFORE MR. SAVELLI WAS SCHEDULED TO LEAVE, THE SUPERVISOR OF SHIPBUILDING, SAN DIEGO, RECEIVED WORD THAT THE USS KITTY HAWK WOULD ARRIVE AT THE PORT IN YOKOSUKA, JAPAN, INSTEAD OF SUBIC BAY ON 2 APRIL 1968, AND DEPART ON 6 APRIL 1968. ACCORDINGLY, MR. SAVELLI WAS ISSUED TRAVEL ORDER NO. T-314/68 ON 25 MARCH 1968, AUTHORIZING HIM TO TRAVEL TO SUBIC BAY AND YOKOSUKA AND RETURN WITH TRAVEL TO BEGIN ON OR ABOUT 30 MARCH 1968.'MR. SAVELLI'S TRAVEL TO TOKYO BEGAN AT 0710, SATURDAY, 30 MARCH 1968, AND THE ARRIVAL TIME AT TOKYO WAS 2015, SUNDAY 31 MARCH 1968. THE HOURS ACTUALLY SPENT TRAVELING, INCLUDING THE USUAL WAITING TIME WHICH INTERRUPTED SUCH TRAVEL, TOTALLED 20 HOURS AND 5 MINUTES. AN ADDITIONAL 2 HOURS WAS SPENT GOING THROUGH CUSTOMS AND TRAVELING TO THE TEMPORARY DOMICILE IN TOKYO. MR. SAVELLI DOES NOT INDICATE THE AMOUNT OF TIME ACTUALLY SPENT TRAVELING FROM THE TERMINAL IN TOKYO TO THE TEMPORARY DOMICILE IN TOKYO. HIS TRAVEL FROM TOKYO TO YOKOSUKA WAS PERFORMED ON MONDAY, 1 APRIL 1968, DURING HIS REGULAR DUTY HOURS. MR. SAVELLI PERFORMED 13 HOURS AND 45 MINUTES OF ACTUAL WORK DURING THE FLIGHT FROM SAN DIEGO TO TOKYO FOR WHICH HE RECEIVED COMPENSATION. HE CONTENDS THAT HE SHOULD RECEIVE COMPENSATION FOR THE TOTAL PERIOD OF TRAVEL TO HIS TEMPORARY DOMICILE IN TOKYO AND, THEREFORE, IS DUE COMPENSATION FOR AN ADDITIONAL 8 HOURS AND 21 MINUTES.'

AS A WAGE BOARD EMPLOYEE, YOUR ENTITLEMENT TO OVERTIME COMPENSATION IS GOVERNED BY 5 U.S.C. 5544 (A) AS AMENDED BY SECTION 222 (D) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-206, 81 STAT. 641, WHICH PROVIDES IN PERTINENT PART:

"* * * TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE SUBJECT TO THIS SUBSECTION IS NOT HOURS OF WORK UNLESS THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (II) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.'

YOU RECEIVED OVERTIME PAY FOR SOME OF THE HOURS OF YOUR TRAVEL BECAUSE WHILE TRAVELING YOUR WERE REQUIRED TO REVIEW CERTAIN DOCUMENTS YOU HAD IN YOUR POSSESSION IN PREPARATION FOR THE WORK YOU WERE TO PERFORM IN JAPAN. HOWEVER, IT WAS DETERMINED BY THE DEPARTMENT OF THE NAVY THAT THE TIME YOU SPENT TRAVELING WHILE YOU WERE NOT ACTUALLY ENGAGED IN THE REVIEW OF SUCH DOCUMENTS WAS NOT COVERED BY THE QUOTED LAW AND YOU WERE NOT PAID OVERTIME PAY FOR THAT TIME.

WE CONSIDER THAT DETERMINATION TO BE CORRECT. THE TRAVEL TIME INTERVENING BETWEEN YOUR PERFORMANCE OF ACTUAL WORK MAY NOT BE CONSIDERED AS INCIDENT TO TRAVEL INVOLVING THE PERFORMANCE OF WORK WHILE TRAVELING. IN OTHER WORDS, THE INTERVENING TRAVEL WAS NOT CAUSED BY THE TRAVEL DURING WHICH WORK WAS PERFORMED.

FURTHER, WE FIND NO INDICATION IN THE DOCUMENTS PRESENTED BY YOU OR IN THE REPORT OF THE DEPARTMENT OF THE NAVY TO SUPPORT A HOLDING THAT YOUR TRAVEL RESULTED FROM AN EVENT WHICH COULD NOT HAVE BEEN CONTROLLED ADMINISTRATIVELY. THE DEPARTMENT SCHEDULED THE TIME AND PLACE OF THE WORK YOU WERE TO PERFORM WELL IN ADVANCE. THE FACT THAT THE DEPARTMENT SCHEDULED THE WORK AT A TIME WHICH REQUIRED YOUR TRAVEL OVER A WEEKEND IN VIEW OF OTHER ADMINISTRATIVE CONSIDERATIONS IS NOT IN ITSELF SUFFICIENT TO ENTITLE YOU TO OVERTIME PAY UNDER THE QUOTED PROVISION OF LAW.

5 U.S.C. 6101 (B) (2) PROVIDES:

"/2) 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 REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE.'

THAT PROVISION DOES NOT AUTHORIZE THE PAYMENT OF OVERTIME PAY IN THE EVENT AN AGENCY HEAD FINDS IT IMPRACTICABLE TO SCHEDULE TRAVEL TIME EXCLUSIVELY WITHIN AN EMPLOYEE'S NORMAL HOURS OF DUTY. IN SUCH CASES THE TRAVEL IS REGARDED AS OVERTIME ONLY IF IT COMES WITHIN THE SPECIFIC REQUIREMENTS SET FORTH IN 5 U.S.C. 5544 (A) PREVIOUSLY QUOTED.

UNDER THE APPLICABLE LAWS AS DISCUSSED ABOVE, YOU WERE NOT ENTITLED TO OVERTIME PAY WHILE TRAVELING EXCEPT TO THE EXTENT THAT YOU WERE REQUIRED TO PERFORM WORK WHILE TRAVELING.

REGARDING YOUR QUESTIONS RELATING TO DEPARTMENT OF THE NAVY POLICY AND REGULATIONS, THOSE MATTERS APPEAR TO BE FOR THE CONSIDERATION OF THAT DEPARTMENT UNDER THE PROVISIONS OF 5 U.S.C. 6101 (B) (2). THEREFORE, WE MAKE NO COMMENT WITH REGARD THERETO.

COPIES OF THIS DECISION ARE BEING SENT TO CONGRESSMAN BOB WILSON AND SENATOR ALAN CRANSTON WHO HAVE EXPRESSED AN INTEREST IN YOUR CASE.