B-152197, SEP. 9, 1963

B-152197: Sep 9, 1963

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ALL TRAVEL WAS PERFORMED OUTSIDE MR. - SINCE THESE ARE WAGE HOUR EMPLOYEES WITH THEIR RATES SET BY ADMINISTRATIVE AUTHORITY NEGOTIATING WITH THE UNION OFFICIALS. - IF QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE. THE EMPLOYEE DRIVES HIS OWN CAR BUT IS LIMITED TO COST OF COMMON CARRIER. SHOULD HE BE COMPENSATED FOR OVERTIME BY THE HOURS HE ACTUALLY TRAVELS TO AND FROM HIS HEADQUARTERS OR SHOULD HE BE COMPENSATED FOR LENGTH OF TIME IT WOULD HAVE TAKEN HAD HE TRAVELED VIA COMMON CARRIER? READS IN PART AS FOLLOWS: "THE HEAD OF EACH DEPARTMENT IN ACCORDANCE WITH REGULATIONS ISSUED BY THE COMMISSION UNDER AUTHORITY OF SECTION 2305 (A) (8) OF THIS TITLE IS AUTHORIZED. NIGHT DIFFERENTIAL PAY) OF EACH EMPLOYEE OF SUCH DEPARTMENT WHO IS SELECTED AND ASSIGNED FOR TRAINING BY.

B-152197, SEP. 9, 1963

TO MRS. GERALDINE GOREE, AUTHORIZED CERTIFYING OFFICER, SOUTHWESTERN POWER ADMINISTRATION:

YOUR LETTER OF JULY 31, 1963, AND ENCLOSURES, CONCERN THE PROPRIETY OF CERTIFYING FOR PAYMENT A PAYROLL VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR. DONALD G. ALCORN, FOR OVERTIME COMPENSATION FOR TRAVEL PERFORMED UNDER THE FOLLOWING CIRCUMSTANCES.

MR. ALCORN, AN UNGRADED ELECTRICAL INSTRUMENT REPAIRMAN, EMPLOYED ON AN HOURLY BASIS BY THE SOUTHWESTERN POWER ADMINISTRATION CLAIMS OVERTIME COMPENSATION FOR TRAVEL BY PRIVATELY-OWNED AUTOMOBILE FROM HIS HEADQUARTERS, MUSKOGEE, OKLAHOMA, TO CHICAGO, ILLINOIS, AND RETURN, INCIDENT TO HIS ATTENDING A COMMUNICATIONS SCHOOL. ALL TRAVEL WAS PERFORMED OUTSIDE MR. ALCORN'S REGULARLY SCHEDULED BASIC WORKWEEK.

YOUR LETTER READS IN PART AS FOLLOWS:

"AFTER READING YOUR DECISION OF FEBRUARY 1, 1961 IN COMPTROLLER GENERAL DECISION, VOL. 40 PAGE 439, A QUESTION HAS ARISEN AS TO THE LEGALITY OF PAYING HOURLY EMPLOYEES OVERTIME WHILE TRAVELING.

"QUESTION NO. 1--- SINCE THESE ARE WAGE HOUR EMPLOYEES WITH THEIR RATES SET BY ADMINISTRATIVE AUTHORITY NEGOTIATING WITH THE UNION OFFICIALS, DOES SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 APPLY TO THIS CLASS OF EMPLOYEE?

"QUESTION NO. 2--- IF QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE, AND THE EMPLOYEE DRIVES HIS OWN CAR BUT IS LIMITED TO COST OF COMMON CARRIER, SHOULD HE BE COMPENSATED FOR OVERTIME BY THE HOURS HE ACTUALLY TRAVELS TO AND FROM HIS HEADQUARTERS OR SHOULD HE BE COMPENSATED FOR LENGTH OF TIME IT WOULD HAVE TAKEN HAD HE TRAVELED VIA COMMON CARRIER?

OUR DECISION OF FEBRUARY 1, 1961, TO WHICH YOU REFER PERTAINS TO TRAVEL OF EMPLOYEES INCIDENT TO PERFORMANCE OF TEMPORARY DUTY (WORK). THE CASE YOU NOW PRESENT PERTAINS TO TRAVEL INCIDENT TO ATTENDANCE AT A COMMUNICATIONS SCHOOL; HENCE, THE QUESTION OF THE EMPLOYEE'SENTITLEMENT TO OVERTIME COMPENSATION FOR THE TRAVEL CONCERNED WOULD BE GOVERNED BY SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 2309, AND NOT BY THESE PROVISIONS OF THE LABOR AGREEMENT BETWEEN SOUTHWESTERN POWER ADMINISTRATION AND THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS REFERRED TO IN YOUR LETTER, RELATING TO COMPENSATION FOR WORK OR BY THE OVERTIME PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 2309, READS IN PART AS FOLLOWS:

"THE HEAD OF EACH DEPARTMENT IN ACCORDANCE WITH REGULATIONS ISSUED BY THE COMMISSION UNDER AUTHORITY OF SECTION 2305 (A) (8) OF THIS TITLE IS AUTHORIZED, FROM FUNDS APPROPRIATED OR OTHERWISE AVAILABLE TO SUCH DEPARTMENT, (1) TO PAY ALL OR ANY PART OF THE SALARY, PAY, OR COMPENSATION (EXCLUDING OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY) OF EACH EMPLOYEE OF SUCH DEPARTMENT WHO IS SELECTED AND ASSIGNED FOR TRAINING BY, IN, OR THROUGH GOVERNMENT FACILITIES OR NON-GOVERNMENT FACILITIES UNDER AUTHORITY OF THIS CHAPTER, FOR EACH PERIOD OF SUCH TRAINING OF SUCH EMPLOYEE * * *"

IN OUR DECISION OF OCTOBER 1, 1958, B-137257, 38 COMP. GEN. 262, WE CONCLUDED THAT TRAVEL BY A WAGE BOARD EMPLOYEE ON SATURDAYS AND SUNDAYS OUTSIDE HIS BASIC WORKWEEK INCIDENT TO A PERIOD OF TRAINING WAS NOT COMPENSABLE BECAUSE OF THE RESTRICTION ON THE PAYMENT OF OVERTIME COMPENSATION CONTAINED IN SECTION 10 OF THE TRAINING ACT, QUOTED ABOVE. THE PRINCIPLE ENUNCIATED IN THAT DECISION IS EQUALLY APPLICABLE IN THE INSTANT CASE. ACCORDINGLY, IN THE ABSENCE OF ACTION BY THE PRESIDENT, OR BY THE CIVIL SERVICE COMMISSION UNDER A PRESIDENTIAL DELEGATION OF AUTHORITY, EXCEPTING THE EMPLOYEE TO WHOM YOUR LETTER APPLIES FROM THE RESTRICTION IN SECTION 10 ON THE PAYMENT OF OVERTIME COMPENSATION INCIDENT TO TRAINING--- AND WE ARE AWARE OF NO SUCH EXCEPTION--- SUCH SECTION MUST BE CONSTRUED AS PRECLUDING PAYMENT TO SUCH EMPLOYEE COVERING THE PERIODS IN QUESTION. SEE 38 COMP. GEN. 363. THE QUESTIONS SUBMITTED IN YOUR LETTER ARE ANSWERED ACCORDINGLY.