B-151950, DEC. 17, 1964

B-151950, DEC. 17, 1964

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 4, 1964, FROM THE ACTING SECRETARY OF THE NAVY, AS SUPPLEMENTED BY LETTER OF DECEMBER 4, 1964, FROM THE CHIEF OF INDUSTRIAL RELATIONS, REQUESTING THAT WE RECONSIDER THE MATTER OF OVERTIME PAYMENTS MADE TO CERTAIN PERSONNEL OF THE DEPARTMENT OF THE NAVY AND REMOVE THE EXCEPTIONS TAKEN BY OUR OFFICE AGAINST THE IMPROPER PAYMENTS.

THE RECORD SHOWS THAT CERTAIN CIVILIAN EMPLOYEES OF THE DEPARTMENT OF THE NAVY WERE ASSIGNED TO DUTY ON ISLANDS OFF THE CALIFORNIA COAST ON A FIVE TO TEN DAY TEMPORARY DUTY BASIS. ACCESS TO THESE OFFSHORE ISLANDS CAN ONLY BE OBTAINED BY TRANSPORTATION PROVIDED BY THE GOVERNMENT. CHARTER AIRCRAFT AND ASSIGNED MILITARY AIRCRAFT ARE USED FOR THIS PURPOSE. THE PERSONNEL INVOLVED RESIDE IN CALIFORNIA AND TRAVEL TO AND FROM A DESIGNATED TRANSPORTATION POINT ON THEIR OWN TIME, IN THE SAME MANNER AS PERSONNEL ORDINARILY REPORTING TO A WORK SITE. IT HAS BEEN THE PRACTICE TO SCHEDULE FLIGHTS FROM THIS STATESIDE TRANSPORTATION POINT TO THE OFFSHORE ISLANDS DURING THE EMPLOYEES' REGULARLY SCHEDULED BASIC DUTY HOURS. HOWEVER, IT FREQUENTLY HAPPENED THAT TRANSPORTATION WAS DELAYED BECAUSE OF WEATHER, OR BECAUSE OF HIGHER OPERATIONAL PRIORITY FOR GOVERNMENT AIRCRAFT. WHEN THIS HAPPENED ON RETURN FLIGHTS, THE EMPLOYEES WERE PAID OVERTIME FOR THE INCIDENTAL WAITING AND TRAVEL TIME EXTENDING BEYOND THEIR NORMAL BASIC WORKWEEK.

SOME OF THE EMPLOYEES INVOLVED WERE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND OTHERS WERE WAGE BOARD EMPLOYEES. EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, ARE AUTHORIZED TO BE PAID OVERTIME COMPENSATION BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT, 1945, AS AMENDED. SECTION 204 OF THAT ACT AS ADDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 912B, PROVIDES AS FOLLOWS:

"SEC. 204. FOR THE PURPOSES OF THIS ACT, TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF ANY OFFICER OR EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT ONLY WHEN (1) WITHIN THE DAYS AND HOURS OF SUCH OFFICER'S OR EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'

ALTHOUGH SECTION 204 OF THE ACT, AS AMENDED, HAS NO APPLICATION TO WAGE BOARD EMPLOYEES, THE SAME CRITERIA IN DECISIONS OF OUR OFFICE LONG HAVE BEEN APPLIED TO WAGE BOARD EMPLOYEES FOR SUCH TRAVEL OUTSIDE THEIR USUAL HOURS OF DUTY ON A REGULARLY SCHEDULED WORKDAY. SEE 42 COMP. GEN. 24; 27 ID. 613. ALSO, THE DEPARTMENT OF THE NAVY BY REGULATIONS HAS ESTABLISHED THE SAME RULES FOR WAGE BOARD EMPLOYEES (NCPI 610.7-2C).

THE ACTING SECRETARY OF THE NAVY SAYS THAT THE CIRCUMSTANCES IN THIS PARTICULAR SITUATION ARE NOT FOUND TO HAVE ANY EXACT PARALLEL, EITHER IN PUBLISHED DECISIONS OF OUR OFFICE OR BY THE COURTS. AS TO THE CIRCUMSTANCES UNDER WHICH WE HAVE CONSIDERED THAT TRAVEL WAS OR WAS NOT PERFORMED UNDER ARDUOUS CONDITIONS, SEE 41 COMP. GEN. 32; 40 ID. 439; 37 ID. 276; 31 ID. 362; 30 ID. 72; 28 ID. 547; 25 ID. 399.

WE ARE OF THE OPINION THAT THE FACTS IN THE CASE OF AHEARN ET AL. V. UNITED STATES, 142 CT.CL. 309, ARE SOMEWHAT SIMILAR TO THE FACTS PRESENTED HERE. IN THAT CASE THE EMPLOYEES TRAVELED OUTSIDE THEIR REGULAR WORK HOURS, BY GOVERNMENT-OWNED BOAT, WHICH WAS THE ONLY AVAILABLE MEANS OF TRANSPORTATION. THE COURT HELD THAT THE TIME IN TRAVEL WAS NOT COMPENSABLE. THE ACTING SECRETARY OF THE NAVY SAYS THAT THE FACTS IN THE TENNESSEE COAL AND IRON CASE ARE VERY SIMILAR TO THE FACTS IN THE CASE AT HAND IN THAT THE TRANSPORTATION IS ENTIRELY UNDER THE CONTROL OF THE EMPLOYER, THERE IS NO OPTIONAL MODE OF TRAVEL, AND IT IS DANGEROUS.

HOWEVER, IN THE AHEARN CASE THE PLAINTIFFS URGED THAT THE DOCTRINE OF TENNESSEE COAL, IRON AND RAILROAD COMPANY V. MUSCODA LOCAL NO. 123, 321 U.S. 590, WAS CONTROLLING. THE COURT STATED THAT THE FACTS OF THAT CASE WERE QUITE DIFFERENT AND POINTED OUT THAT THE TRIP WAS NOT EXCLUSIVELY ON THE OWNERS PROPERTY; IT WAS MADE OUTSIDE OF WORKING HOURS; TRAVEL BY BOAT WAS THE ONLY WAY THE EMPLOYEES COULD GET TO WORK; AND IT INVOLVED NO MORE RISK THAN THE TRAVEL TO AND FROM WORK PERFORMED BY ANY EMPLOYEE. SEE ALSO BIGGS V. UNITED STATES, 152 CT. CL. 545.

OUR OPINION IS THAT THE TRAVEL AND WAITING TIME IN QUESTION DID NOT INVOLVE THE PERFORMANCE OF WORK AND WAS NOT CARRIED OUT UNDER ARDUOUS CONDITIONS AND, THEREFORE, MAY NOT BE REGARDED AS COMPENSABLE OVERTIME. HOWEVER, IN VIEW OF THE INFORMATION FURNISHED BY LETTER OF DECEMBER 4, 1964, 014 280: MJS, FROM THE CHIEF OF INDUSTRIAL RELATIONS STATING THAT THE PAYMENT OF OVERTIME COMPENSATION FOR THE TRAVEL AND STANDBY TIME HERE INVOLVED, WAS DISCONTINUED IN 1962 WHEN BROUGHT TO THE ATTENTION OF THE DEPARTMENT OF THE NAVY BY OUR OFFICE AND THAT THE DEPARTMENT HAS BEEN UNABLE FROM THE AVAILABLE RECORDS TO ESTABLISH THE EXACT AMOUNT OF OVERTIME EACH EMPLOYEE WAS PAID FOR UNDER THE CIRCUMSTANCES RELATED HEREIN, WE ARE TAKING ACTION TO REMOVE THE EXCEPTIONS AGAINST THE IMPROPER PAYMENTS. WE NOTE THAT AN ESTIMATE OF THE OVERPAYMENTS TO 108 INDIVIDUAL EMPLOYEES ..END :