B-167614, SEPTEMBER 30, 1969, 49 COMP. GEN. 209

B-167614, SEPTEMBER 30, 1969, 49 COMP. GEN. 209

COMPENSATION -- OVERTIME -- TRAVEL TIME -- EMERGENCIES THE TIME SPENT BY A GROUP OF WAGE BOARD EMPLOYEES TO TRAVEL ON A NONWORKDAY TO A TEMPORARY DUTY STATION FOR THE PURPOSE OF IMMEDIATELY REPAIRING THE GUN PORT SHIELDS OF A SHIP THAT HAD DETERIORATED BY EXPOSURE TO THE SUN SO THAT THE SHIP COULD MEET A SAILING DEADLINE, DOES NOT CONSTITUTE THE TRAVEL STATUS AWAY FROM AN OFFICIAL DUTY STATION OCCASIONED BY AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY THAT IS CONTEMPLATED BY 5 U.S.C. 5544(A)(IV) AS A BASIS FOR THE PAYMENT OF OVERTIME. THE REQUIRED REPAIR TO THE GUN MOUNTS WAS NOT DUE TO A SUDDEN EMERGENCY OR CATASTROPHE, AND THE DAMAGE HAVING OCCURRED GRADUALLY OVER A PERIOD OF TIME, SCHEDULING THE REPAIR WAS WITHIN ADMINISTRATIVE CONTROL AND, THEREFORE, THE TRAVEL TIME IS NOT COMPENSABLE AS OVERTIME.

TO THE COMPTROLLER, DEPARTMENT OF THE NAVY, SEPTEMBER 30, 1969:

WE HAVE RECEIVED FROM THE COMMANDER, NAVY ACCOUNTING AND FINANCE CENTER, WASHINGTON, REFERENCE NAFC-3121, A REQUEST DATED JULY 17, 1969, FOR A DECISION ON CLAIMS FOR OVERTIME MADE BY FOUR EMPLOYEES OF THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY 40214. THE QUESTION IS WHETHER SUCH OVERTIME IS COMPENSABLE UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED. WE NOTE THERE IS ADMINISTRATIVE DISAGREEMENT THEREON. SINCE THE RECORD SHOWS THAT THE REQUEST FOR DECISION ON THE CLAIMS WAS REFERRED TO YOUR OFFICE BY THE ORIGINATING OFFICE, REFERRED TO ABOVE, WE ARE DIRECTING OUR REPLY IN THE MATTER TO YOU.

THE RECORD SHOWS THAT ON JANUARY 13, 1969, NAVORDSTALOU RECEIVED A TELEPHONE CALL FROM A MR. CAPOLLA, CODE 05, PHILADELPHIA NAVAL SHIPYARD, STATING THAT A SHIP (HULL # LPH-11) WITH TWO GUN MOUNTS FURNISHED BY NAVORDSTALOU WOULD BE AVAILABLE FOR REPAIR OF GUN PORT SHIELDS DETERIORATED BY THE SUN. IT WAS STATED THAT THE REPAIR WORK WAS MANDATORY PRIOR TO JANUARY 24, 1969, AS THE SHIP WAS SCHEDULED TO SAIL THAT DAY. THE TEAM OF EMPLOYEES QUALIFIED TO MAKE SUCH REPAIRS WERE IN PASCAGOULA, MISSISSIPPI, ON TEMPORARY DUTY. THE FILE INDICATES THEY WERE DIRECTED TO RETURN TO LOUISVILLE, FRIDAY, JANUARY 17. ON JANUARY 18, A SATURDAY, AND NONWORKDAY, THE EMPLOYEES WORKED FROM 7 A.M. UNTIL 10:30 A.M., APPARENTLY AT LOUISVILLE, FOR THE PURPOSE OF GETTING TOOLING AND EQUIPMENT READY FOR THE JOB IN PHILADELPHIA. THEY COMMENCED TRAVEL TO PHILADELPHIA IN A PRIVATELY OWNED VEHICLE AT 10:30 A.M. ON THE SAME DAY. THE RECORD SHOWS THAT IT WAS ADMINISTRATIVELY DETERMINED THAT THE WORK OF MAKING THE REPAIRS MUST BEGIN ON SUNDAY, JANUARY 19, IN ORDER TO MEET THE MANDATORY DEADLINE. WE NOTE THE CLAIMS ARE ONLY FOR 41-1/2 HOURS OVERTIME, WHILE TRAVELING JANUARY 18, 1969, WHICH PERIOD OF TIME WOULD COMPLETE AN 8 HOUR TOUR OF DUTY. IT IS ADMINISTRATIVELY STATED THAT WORK WOULD HAVE BEEN REQUIRED FOR THE FULL 8 HOURS ON SATURDAY PRESUMABLY AT LOUISVILLE, HAD THE EMPLOYEES NOT BEEN REQUIRED TO PROCEED TO PHILADELPHIA.

THE EMPLOYEES INVOLVED APPEAR TO BE UNDER A WAGE BOARD SYSTEM AND THEIR TRAVEL IN THIS INSTANCE IS GOVERNED BY THE LANGUAGE IN 5 U.S.C. 5544(A), READING, IN PERTINENT PART, AS FOLLOWS:

*** 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.

THE SPECIFIC LANGUAGE THEREOF REQUIRING INTERPRETATION HERE READS:

*** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

IN OUR DECISION, B-163654, APRIL 19, 1968, TO THE CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD, DEPARTMENT OF TRANSPORTATION, WE WERE REQUESTED TO INTERPRET LANGUAGE IDENTICAL TO THAT SPECIFICALLY QUOTED ABOVE BUT WHICH WAS CONTAINED IN 5 U.S.C. 5542(B)(2)(B) GOVERNING GENERAL SCHEDULE AND CERTAIN OTHER EMPLOYEES. A COPY THEREOF IS ENCLOSED FOR YOUR INFORMATION. YOU WILL NOTE THAT THE FIRST THREE QUESTIONS CONCERN TRAVEL TO THE SITE OF AN ACCIDENT OR TO ANOTHER LOCATION AS PART OF THE INITIAL PHASE OF THE INVESTIGATION OF THE ACCIDENT. WITH RESPECT TO THE THREE QUESTIONS, WE STATED THAT OUR OPINION THEREON WAS THAT THERE MUST HAVE EXISTED AN IMMEDIATE OFFICIAL NECESSITY OCCASIONED BY THE UNSCHEDULED AND ADMINISTRATIVELY UNCONTROLLABLE EVENT FOR TRAVEL BY THE EMPLOYEE DURING HOURS OUTSIDE HIS SCHEDULED WORKWEEK BEFORE SUCH TRAVEL TIME CONSTITUTES HOURS OF EMPLOYMENT WITHIN THE MEANING OF THE EXCEPTION.

THE LANGUAGE OF 5 U.S.C. 5544(A) QUOTED ABOVE WAS ADDED BY SUBSECTION (D) OF SECTION 222 OF PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967. UNDER SUBSECTION (B) AND (A) OF SECTION 222 THE SAME LANGUAGE WAS ADDED TO 39 U.S.C. 3571 (POSTAL SERVICE) AND 5 U.S.C. 5542 (B)(2)(B), RESPECTIVELY, THUS, EQUALIZING THE PAY TREATMENT FOR TRAVEL TIME IN THE CASE OF EMPLOYEES SUBJECT TO THOSE SEPARATE PROVISIONS. S. REPT. NO. 801, 90TH CONG., 1ST SESS. 31, CONTAINS THE FOLLOWING STATEMENT CONCERNING TRAVEL BY EMPLOYEES:

*** AN EMPLOYEE SHOULD NOT BE REQUIRED TO TRAVEL ON HIS OFFDAY IN ORDER TO BE AT WORK AT A TEMPORARY DUTY STATION EARLY MONDAY MORNING TO ATTEND A MEETING. IT IS AN IMPOSITION UPON HIS PRIVATE LIFE THAT SHOULD NOT BE MADE. NEVERTHELESS, PAY FOR TRAVEL STATUS SHOULD NOT BE MADE SO ATTRACTIVE THAT EMPLOYEES WOULD SEEK TO TRAVEL ON THEIR OFFDAYS IN ORDER TO RECEIVE OVERTIME PAY. PROPER SCHEDULING AND ADMINISTRATIVE PLANNING IS THE ANSWER TO THE PROBLEMS OF TRAVEL PAY IN MANY CASES. WHEN EMERGENCIES OCCUR OR WHEN EVENTS CANNOT BE CONTROLLED REALISTICALLY BY THOSE IN AUTHORITY, TRAVEL TIME MUST BE PAID FOR.

THE COMMITTEE ALSO BELIEVES THAT AGENCIES SHOULD UTILIZE THE MOST EXPEDITIOUS MEANS OF TRANSPORTATION PRACTICABLE, COMMENSURATE WITH THE NATURE AND PURPOSE OF AN EMPLOYEE'S DUTIES. ***

WE ARE AWARE OF THE EXAMPLES AND INSTRUCTIONS CONTAINED IN FPM LTR. NO. 550-52, FEBRUARY 5, 1969, ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION, WHICH ARE STATED NOT TO BE MANDATORY WITH RESPECT TO EMPLOYEES IN TRADES OR LABOR OCCUPATIONS (WAGE BOARD EMPLOYEES).

THE DAMAGE REQUIRING REPAIR CONSISTED OF DETERIORATION DUE TO THE EXPOSURE OF THE GUN MOUNTS TO THE RAYS OF THE SUN AND OCCURRED GRADUALLY OVER A PERIOD OF TIME RATHER THAN FROM ANY PARTICULAR EVENT. THUS, IT MAY NOT REASONABLY BE CONSIDERED TO HAVE RESULTED FROM A SUDDEN EMERGENCY OR CATASTROPHE, OR AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. THE TIME FOR SCHEDULING OF THE REPAIR WAS COMPLETELY WITHIN THE ADMINISTRATIVE CONTROL OF THE DEPARTMENT OF THE NAVY. UNDER THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE TRAVEL OFFICIALLY DIRECTED TO BE PERFORMED ON SATURDAY, JANUARY 18, 1969, A DAY OUTSIDE THE SCHEDULED TOUR OF DUTY OF THE CLAIMANTS, IS NOT CONSIDERED TO BE WORK UNDER THE ABOVE-QUOTED SPECIFIC LANGUAGE OF CONDITION "IV" OF 5 U.S.C. 5544(A). COMPARE DECISION OF APRIL 19, 1968, B-163654, CITED ABOVE. ACCORDINGLY, THE ADMINISTRATIVE DENIAL OF OVERTIME FOR THE PERIOD OF SUCH TRAVEL WAS PROPER.