B-165874, FEB. 10, 1969

B-165874: Feb 10, 1969

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THE CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED JULY 31. WAS BASED PRIMARILY UPON A REPORT FROM THE FEDERAL AVIATION AGENCY. WERE SPECIFICALLY ASKED BY THEIR CHIEF TO REPORT TO RALEIGH IN ORDER TO CARRY MAIL. FURTHER IT IS POINTED OUT THAT ORDERS WERE GIVEN TO TRANSPORT TOOLS. BY REASON THEREOF IT IS CONTENDED THAT THE ORIGINAL STARTING TIME WAS CHANGED FROM 8 A.M. THUS INCREASING THE WORKDAY FOR THE EMPLOYEES INVOLVED OF WHICH YOU WERE ONE. THE AGENCY DOES NOT HAVE AN ESTABLISHED POLICY ON THE TRAVEL ARRANGEMENTS THAT MUST BE OBSERVED BY EMPLOYEES WHO ROTATE ON DUTY ASSIGNMENTS TO BENSON. THERE IS NO OFFICIAL REQUIREMENT THAT THE EMPLOYEES MUST REPORT TO THEIR OFFICIAL STATION (RALEIGH SECTOR OFFICE) TO PICK UP A GOVERNMENT VEHICLE TO TRANSPORT TOOLS.

B-165874, FEB. 10, 1969

TO MR. DAVID W. LANGLEY:

BY LETTER OF NOVEMBER 8, 1968, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES HAS REQUESTED REVIEW OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR TRAVEL IN A GOVERNMENT VEHICLE BETWEEN RALEIGH AND BENSON, NORTH CAROLINA, AS AN ELECTRONIC TECHNICIAN, DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION AGENCY, FOR THE PERIOD 1959 TO 1968. THE CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED JULY 31, 1968, AND WAS BASED PRIMARILY UPON A REPORT FROM THE FEDERAL AVIATION AGENCY.

THE LETTER FROM THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES POINTS OUT THAT ELECTRONIC TECHNICIANS, WHEN REQUIRED BY ROTATION OF THEIR WORK SCHEDULES TO REPORT TO BENSON TOWER, 25 MILES FROM THEIR RALEIGH HEADQUARTERS, WERE SPECIFICALLY ASKED BY THEIR CHIEF TO REPORT TO RALEIGH IN ORDER TO CARRY MAIL, SUPPLIES AND EQUIPMENT TO BENSON TOWER. FURTHER IT IS POINTED OUT THAT ORDERS WERE GIVEN TO TRANSPORT TOOLS, SPARE PARTS, ETC., THERETO. BY REASON THEREOF IT IS CONTENDED THAT THE ORIGINAL STARTING TIME WAS CHANGED FROM 8 A.M. TO 7:15 OR 7:30 A.M., THUS INCREASING THE WORKDAY FOR THE EMPLOYEES INVOLVED OF WHICH YOU WERE ONE.

THE ADMINISTRATIVE REPORT CONTAINS THE FOLLOWING PERTINENT INFORMATION:

"C. THE AGENCY DOES NOT HAVE AN ESTABLISHED POLICY ON THE TRAVEL ARRANGEMENTS THAT MUST BE OBSERVED BY EMPLOYEES WHO ROTATE ON DUTY ASSIGNMENTS TO BENSON, NORTH CAROLINA. THERE IS NO OFFICIAL REQUIREMENT THAT THE EMPLOYEES MUST REPORT TO THEIR OFFICIAL STATION (RALEIGH SECTOR OFFICE) TO PICK UP A GOVERNMENT VEHICLE TO TRANSPORT TOOLS, SPARE PARTS, TEST EQUIPMENT, AND OTHER OFFICIAL DOCUMENTS TO THE BENSON, NORTH CAROLINA TOWER SITE, AND RETURN SUCH VEHICLE TO THE RALEIGH SECTOR OFFICE AT THE END OF THE TOUR OF DUTY. SOME OF THE TECHNICIANS HAVE CHOSEN THIS TRAVEL ARRANGEMENT HOWEVER, WHICH APPARENTLY WAS ESTABLISHED LOCALLY WITH THE MUTUAL ARRANGEMENT OF THE EMPLOYEES LOCATED AT THE FACILITY. EMPLOYEES MAY DRIVE THEIR PERSONAL CARS TO THE BENSON TOWER SITE ANY TIME THEY WISH, PROVIDED THE FACILITY OR UNIT CHIEF IS ADVISED SO THAT A GOVERNMENT VEHICLE CAN BE PROVIDED FOR THE TECHNICIAN WHO IS BEING RELIEVED.

"D. THE TOWER AT BENSON, NORTH CAROLINA, IS MANNED ON A 24-HOUR BASIS DIVIDED INTO THREE 8-HOUR SHIFTS. EMPLOYEES WHO ROTATE DUTY AT THE BENSON TOWER ARE EXPECTED TO BE AT THE FACILITY AT THE BEGINNING OF THE SHIFT REGARDLESS OF WHETHER ARRIVING BY GOVERNMENT VEHICLE OR PERSONAL CAR.

"F. * * * THE TRAVEL IS NOT INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING. THESE EMPLOYEES WERE NOT OFFICIALLY ORDERED, WHEN ASSIGNED TO DUTY AT THE BENSON TOWER, TO REPORT AT A CENTRAL LOCATION TO PICK UP A GOVERNMENT VEHICLE, TRANSPORT TOOLS, ETC. TO THE WORK SITE, AND RETURN THE GOVERNMENT VEHICLE AT THE END OF THE TOUR OF DUTY TO THE CENTRAL LOCATION.'

THE INFORMATION FURNISHED BY YOU OR IN YOUR BEHALF AND THE INFORMATION FURNISHED BY THE ADMINISTRATIVE OFFICE IS CONTRADICTORY. IT LONG HAS BEEN THE RULE OF THIS OFFICE, IN SUCH CIRCUMSTANCES, TO ACCEPT THE STATEMENT OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME A PRESUMPTION OF THE CORRECTNESS THEREOF. IT IS EVIDENT FROM THE ADMINISTRATIVE REPORT THAT THERE WAS NO OFFICIAL REQUIREMENT THAT YOU REPORT TO YOUR SECTOR OFFICE OR THAT YOU PERFORM WORK DURING THE TRAVEL REQUIRED TO PLACE YOU AT THE POINT OF EMPLOYMENT, BENSON TOWER. NOTHING FURNISHED BY YOU OR IN YOUR BEHALF, ALL OF WHICH INFORMATION WAS CONSIDERED BY OUR OFFICE WHEN YOUR CLAIM WAS DISALLOWED, SERVES TO OVERCOME THE EVIDENCE FURNISHED BY THE ADMINISTRATIVE OFFICE. 31 COMP. GEN. 288; 36 ID. AT PAGE 530; 37 ID. AT PAGE 798 AND 40 ID. AT PAGE 180.

AS TO THE CONTENTION THAT CONSTANT ASSURANCE WAS GIVEN THAT EMPLOYEES TRAVELING TO BENSON TOWER UNDER THE ROTATION OF WORK SCHEDULES WERE COVERED BY THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. 8101 ET SEQ., YOU MAY BE ADVISED THAT ALL MATTERS RELATING TO INJURIES THEREUNDER ARE FOR DETERMINATION BY THE SECRETARY OF LABOR OR HIS DESIGNEE AND SUCH DETERMINATIONS ARE FINAL AND CONCLUSIVE AND CANNOT BE REVIEWED BY ANOTHER OFFICIAL OF THE UNITED STATES OR BY A COURT. SEE 5 U.S.C. 8128 (B). MOREOVER, EVEN IF THAT ACT BE APPLICABLE TO THE SITUATION HERE IN QUESTION IT WOULD NOT BE DETERMINATIVE OF YOUR ENTITLEMENT TO OVERTIME COMPENSATION UNDER OTHER PERTINENT LAWS AND REGULATIONS.

IN VIEW OF THE FOREGOING AND FOR THE REASONS SET FORTH IN OUR SETTLEMENT OF JULY 31, 1968, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.