B-163042, MAY 22, 1968

B-163042: May 22, 1968

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MCKEE: REFERENCE IS MADE TO THE ADMINISTRATIVE REPORT RECEIVED FROM YOUR ASSOCIATE ADMINISTRATOR FOR ADMINISTRATION DATED MARCH 18. WAS PAID THE ADDITIONAL OVERTIME. HIS CLAIM WAS DENIED ADMINISTRATIVELY AND HE REQUESTED OUR OFFICE. WAS FURNISHED IN RESPONSE TO OUR REQUEST OF DECEMBER 27. "WAS. IS COMPENSABLE AS OVERTIME.'. WAS BASED UPON THE PROVISIONS OF PARAGRAPH 5.C. (2). EMPLOYEES ARE REQUIRED TO OPERATE VARIOUS TYPES OF VEHICLES AS A NORMAL PART OF OFFICIALLY ASSIGNED DUTIES. THUS TIME SPENT IN TRAVELING FROM THE SECTOR OFFICE TO THE FACILITY OR BETWEEN FACILITIES IS COUNTED AS WORK TIME FOR PAY PURPOSES.'. SUPPLIES AND RETURN THERETO AT THE END OF THE WORKDAY WAS CONSIDERED TO BE WORK TIME FOR PAY PURPOSES.

B-163042, MAY 22, 1968

TO MR. MCKEE:

REFERENCE IS MADE TO THE ADMINISTRATIVE REPORT RECEIVED FROM YOUR ASSOCIATE ADMINISTRATOR FOR ADMINISTRATION DATED MARCH 18, 1968, CONCERNING THE CLAIM OF MR. RALEIGH W. WHITEMAN, JR., 1528 NORTH 67TH EAST AVENUE, TULSA, OKLAHOMA 74115, AN AIR TRAFFIC CONTROLLER, FOR ADDITIONAL OVERTIME COMPENSATION FOR JUNE 11, 1967, ON WHICH DATE HE AGREED TO PERFORM HIS DUTIES AT AN AIR SHOW AT VINITA, OKLAHOMA, INSTEAD OF TULSA, OKLAHOMA, HIS HEADQUARTERS.

THE RECORD SHOWS THAT MR. WHITEMAN MADE HIS CLAIM FOR THE ADDITIONAL OVERTIME WHICH REPRESENTED THE TRAVEL TIME TO AND FROM THE POINT OF DUTY ON THAT DATE OUTSIDE THE PRESCRIBED TOUR OF DUTY, BECAUSE A MAINTENANCE TECHNICIAN, WHO PERFORMED THE SAME AMOUNT OF DUTY AND TRAVEL, WAS PAID THE ADDITIONAL OVERTIME. HIS CLAIM WAS DENIED ADMINISTRATIVELY AND HE REQUESTED OUR OFFICE, UNDER DATE OF NOVEMBER 25, 1967, TO RENDER HIM A DECISION THEREON PENDING WHAT HE REFERRED TO AS AN ARBITRATION BETWEEN THE FEDERAL AVIATION ADMINISTRATION AND THE INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL 2266.

THE REPORT OF MARCH 18, 1968, REFERRED TO ABOVE, WAS FURNISHED IN RESPONSE TO OUR REQUEST OF DECEMBER 27, 1967, ADDRESSED TO MR. CHARLES H. MCKEON, DIRECTOR OF AUDIT. THE REPORT SHOWS THAT AFTER FURTHER ADMINISTRATIVE CONSIDERATION, IT HAS BEEN CONCLUDED THAT MR. WHITEMAN'S APPEARANCE AT THE AIR SHOW AT VINITA, SOME 75 MILES FROM TULSA,"WAS, IN FACT, A PART OF HIS REGULAR WORK AND THAT TRAVEL TIME TO AND FROM THE SITE OF THE SHOW IN THE GOVERNMENT VEHICLE WHICH HE PICKED UP AT, LOADED, AND RETURNED TO HIS TULSA HEADQUARTERS STATION, IS COMPENSABLE AS OVERTIME.'

THE PAYMENT TO THE MAINTENANCE TECHNICIAN INVOLVED, FOR THE TRAVEL TIME, WAS BASED UPON THE PROVISIONS OF PARAGRAPH 5.C. (2), FEDERAL AVIATION AGENCY HANDBOOK ON OVERTIME, NIGHT AND HOLIDAY PAY, WHICH READS AS FOLLOWS:

"ELECTRONIC MAINTENANCE TECHNICIANS. EMPLOYEES IN THIS GROUP NORMALLY REPORT TO THE SECTOR OFFICE EACH DAY TO CHECK IN, RECEIVE ASSIGNMENTS, PICK UP VEHICLES, TOOLS, SUPPLIES AND THE LIKE, AND THEN TRAVEL TO ONE OR MORE FACILITIES FOR MAINTENANCE WORK. SIMILIARLY (SIC), AT THE END OF THE WORKDAY THEY RETURN TO THE SECTOR OFFICE TO CHECK OUT. IN THIS WORK SITUATION, EMPLOYEES ARE REQUIRED TO OPERATE VARIOUS TYPES OF VEHICLES AS A NORMAL PART OF OFFICIALLY ASSIGNED DUTIES. THUS TIME SPENT IN TRAVELING FROM THE SECTOR OFFICE TO THE FACILITY OR BETWEEN FACILITIES IS COUNTED AS WORK TIME FOR PAY PURPOSES.' THAT PARAGRAPH PROVIDES THAT INCIDENTAL TIME SPENT BY ELECTRONIC MAINTENANCE TECHNICIANS IN DAILY TRAVEL AS OPERATORS OF GOVERNMENT VEHICLES FROM THE SECTOR OFFICE TO VARIOUS WORK SITES FOLLOWING AN INITIAL REPORTING TO THE SECTOR OFFICE TO PICK UP TOOLS, VEHICLES, AND SUPPLIES AND RETURN THERETO AT THE END OF THE WORKDAY WAS CONSIDERED TO BE WORK TIME FOR PAY PURPOSES. SUCH DETERMINATION WAS CONSIDERED TO BE WITHIN THE SCOPE OF OUR DECISION B-143074, SEPTEMBER 20, 1960, WHEREIN IT WAS HELD THAT THE TIME INVOLVED IN DAILY TRAVEL OF A SURVEY PARTY BETWEEN ASSEMBLY POINT AND SURVEY SITE WAS A PART OF THE ESTABLISHED TOUR OF DUTY AND WAS WORK TIME AND COMPENSABLE AS SUCH. COMP. GEN. 273 WAS ALSO CONSIDERED APPLICABLE. HOWEVER, WHILE ON JUNE 11, 1967, MR. WHITEMAN PERFORMED HIS PRESCRIBED DUTIES DURING HIS REGULAR TOUR AND ACTUALLY WORKED ONE HOUR OVERTIME, FOR WHICH HE HAS BEEN COMPENSATED, NO BASIS EXISTS UNDER THE FOREGOING ADMINISTRATIVE REGULATION FOR PAYMENT OF THE ADDITIONAL OVERTIME CLAIMED FOR THE PERIOD OF TRAVEL INVOLVED. MOREOVER, THE ONLY OTHER PERTINENT AUTHORITY OF WHICH WE ARE AWARE IS CONTAINED IN 5 U.S.C. 5542 (B) (2), WHICH READS AS FOLLOWS:

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

"/A) THE TIME SPENT IS WITHIN THE DAYS AND HOURS OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE EMPLOYEE, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS; OR

"/B) THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.' SINCE THE PERIOD OF TRAVEL FOR WHICH CLAIM WAS MADE WAS OUTSIDE MR. WHITEMAN'S PRESCRIBED TOUR OF DUTY AND THERE IS NO SHOWING THAT IT INVOLVED THE PERFORMANCE OF WORK WHILE TRAVELING OR WAS CARRIED OUT UNDER ARDUOUS CONDITIONS, OUR OPINION IS THAT NO BASIS EXISTS FOR PAYMENT THEREUNDER.

HOWEVER, WE INVITE YOUR ATTENTION TO THE AMENDMENT TO 5 U.S.C. 5542 (B) (2) (B) BY SECTION 222 (A), PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, 81 STAT. 641, WHICH READS:

"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.' MAY BE THAT UNDER THAT AMENDMENT SITUATIONS SUCH AS HERE INVOLVED COULD BE COVERED BY THE ISSUANCE OF AN APPROPRIATE ADMINISTRATIVE REGULATION.

WE HAVE FURNISHED MR. WHITEMAN A COPY OF THIS DECISION DISALLOWING HIS CLAIM.