B-168830, FEBRUARY 17, 1970, 49 COMP. GEN. 503

B-168830: Feb 17, 1970

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SHIP AS TEMPORARY DUTY STATION AN EMPLOYEE WHO TRAVELED TO AN OVERSEAS PORT TO JOIN A SHIP FOR AN UNDERWAY VIBRATION SURVEY THAT WAS COMPLETED EN ROUTE TO THE UNITED STATES WAS NOT IN A WORK STATUS WHILE DEADHEADING BACK ABOARD THE SHIP TO ENTITLE HIM TO OVERTIME COMPENSATION. NOTWITHSTANDING HE WAS NOT PERMITTED TO LEAVE THE SHIP UPON COMPLETION OF THE ASSIGNMENT. THE SHIP WAS THE EMPLOYEE'S TEMPORARY DUTY STATION DESPITE THE FACT THAT IT WAS MOVING DURING THE SURVEY. THE EMPLOYEE'S ACTUAL TRAVEL ENDED WHEN HE REPORTED FOR DUTY ABOARD SHIP AND RESUMED ONLY WHEN THE DUTY WAS COMPLETED. AS THERE WAS NO PERFORMANCE OF WORK WHILE TRAVELING. FORRESTAL WHICH WAS PERFORMED UNDER THE FOLLOWING CIRCUMSTANCES.

B-168830, FEBRUARY 17, 1970, 49 COMP. GEN. 503

COMPENSATION -- OVERTIME -- TRAVEL TIME -- SHIP AS TEMPORARY DUTY STATION AN EMPLOYEE WHO TRAVELED TO AN OVERSEAS PORT TO JOIN A SHIP FOR AN UNDERWAY VIBRATION SURVEY THAT WAS COMPLETED EN ROUTE TO THE UNITED STATES WAS NOT IN A WORK STATUS WHILE DEADHEADING BACK ABOARD THE SHIP TO ENTITLE HIM TO OVERTIME COMPENSATION, NOTWITHSTANDING HE WAS NOT PERMITTED TO LEAVE THE SHIP UPON COMPLETION OF THE ASSIGNMENT. THE SHIP WAS THE EMPLOYEE'S TEMPORARY DUTY STATION DESPITE THE FACT THAT IT WAS MOVING DURING THE SURVEY, AND THE EMPLOYEE'S ACTUAL TRAVEL ENDED WHEN HE REPORTED FOR DUTY ABOARD SHIP AND RESUMED ONLY WHEN THE DUTY WAS COMPLETED, AND AS THERE WAS NO PERFORMANCE OF WORK WHILE TRAVELING, OR TRAVEL INCIDENT TO TRAVEL THAT INVOLVED THE PERFORMANCE OF WORK WHILE TRAVELING WITHIN THE CONTEMPLATION OF 5 U.S.C. 5542(B)(2), THE EMPLOYEE'S TRAVEL TIME MAY NOT BE REGARDED AS "HOURS OF EMPLOYMENT."

TO CAPTAIN W. G. NORMILE, DEPARTMENT OF THE NAVY, FEBRUARY 17, 1970:

WE REFER TO YOUR LETTER OF NOVEMBER 26, 1969, NY6/12770(630) SER 600 1055, TRANSMITTED HERE BY THE FOURTH ENDORSEMENT OF THE COMMANDER, NAVY ACCOUNTING AND FINANCE CENTER, WASHINGTON, D.C., ON JANUARY 14, 1970. YOUR LETTER REQUESTS A DECISION CONCERNING THE PROPRIETY OF PAYING THE OVERTIME CLAIM OF MR. R. J. MCELFRESH, JR., AN EMPLOYEE OF THE NORFOLK NAVAL SHIPYARD, INCIDENT TO A PERIOD OF TEMPORARY DUTY ABOARD THE U.S.S. FORRESTAL WHICH WAS PERFORMED UNDER THE FOLLOWING CIRCUMSTANCES.

MR. MCELFRESH WHO WAS A SHIPYARD ENGINEER TRAVELED FROM NORFOLK, VIRGINIA, TO ROTA, SPAIN, PURSUANT TO APPROPRIATE ORDERS TO PERFORM AN UNDERWAY VIBRATION SURVEY ON THE U.S.S. FORRESTAL. WE UNDERSTAND THAT SUCH SURVEY COULD BE CONDUCTED ONLY WHILE THE SHIP WAS UNDERWAY AT SEA. AFTER MR. MCELFRESH REPORTED ON BOARD, THE SHIP DEPARTED ROTA 0800 ON APRIL 22, 1969, AND ARRIVED IN NORFOLK 1600 ON APRIL 29, 1969. MR. MCELFRESH'S WORK WAS COMPLETED AT 1630 ON SATURDAY, APRIL 26. AT THAT TIME HE ASKED, BUT WAS REFUSED, TO BE FLOWN TO THE AZORES TO CONNECT WITH A COMMERCIAL FLIGHT TO NORFOLK. MR. MCELFRESH RODE THE U.S.S. FORRESTAL TO NORFOLK, DISEMBARKING 1600 ON TUESDAY, APRIL 29. HIS CONTENTION IS THAT THE WORK STATUS WHILE DEADHEADING BACK ABOARD THE U.S.S. FORRESTAL ON WHICH HE HAD BEEN WORKING, PLUS HIS NOT BEING PERMITTED TO LEAVE THE SHIP, FITS THE CIRCUMSTANCES OF "INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING." MR. MCELFRESH BELIEVES THAT ALL TRAVEL TIME AFTER 1630 ON APRIL 26 IS COMPENSABLE, THE BULK OF WHICH WOULD BE PAYABLE AT OVERTIME RATES. YOUR LETTER SAYS THAT THE NAVY PAID MR. MCELFRESH ONLY FOR THE 37 HOURS OF OVERTIME WORK ACTUALLY PERFORMED DURING THE PERIOD BETWEEN 1630 ON APRIL 22 AND 1630 ON APRIL 26.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE STATED IN YOUR LETTER AS FOLLOWS:

INFORMATION IS REQUESTED ON TWO POINTS. WAS MR. MCELFRESH IN A WORK STATUS FOR THE PERIOD 1630, SATURDAY, 26 APRIL THROUGH THE END OF THE TRIP? IF THE ANSWER IS AFFIRMATIVE, FOR WHAT HOURS SHOULD HE BE PAID WITHIN THE TRAVEL PERIOD?

5 U.S.C. 5542(B)(2) IS AS FOLLOWS:

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

(B) 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.

WE ARE OF THE OPINION THAT THE EMPLOYEE MAY NOT REASONABLY BE REGARDED AS PERFORMING ACTUAL TRAVEL WHILE ENGAGED IN WORK ABOARD THE U.S.S. "FORRESTAL" DESPITE THE FACT THAT THE VESSEL WAS MOVING WHEN SUCH WORK WAS BEING PERFORMED. RATHER, IT APPEARS MORE REASONABLE TO VIEW THE U.S.S. FORRESTAL AS CONSTITUTING THE TEMPORARY DUTY STATION OF THE EMPLOYEE AND TO REGARD THE ACTUAL TRAVEL AS ENDING AT THE TIME THE EMPLOYEE REPORTED ABOARD SUCH TEMPORARY DUTY STATION. WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF THE QUOTED STATUTORY PROVISION AND FIND NOTHING THEREIN THAT WOULD SUGGEST THAT THE CONGRESS INTENDED TO AUTHORIZE THE COUNTING AS "HOURS OF EMPLOYMENT" LONG PERIODS OF TRAVEL ABOARD A VESSEL WHEN NO WORK IS PERFORMED. THE ONLY EXAMPLE GIVEN IN THE LEGISLATIVE HISTORY INVOLVES A TRUCK DRIVER WHO WAS RIDING IN A GOVERNMENT TRUCK TO A POINT TO PICK UP ANOTHER TRUCK WHICH HE WAS TO DRIVE TO A DESIGNATED POINT. IN THE ABSENCE OF ANY EXPRESSION OF THE CONGRESSIONAL INTENT THAT THE QUOTED PROVISION APPLIES TO A SITUATION SIMILAR TO THAT HERE INVOLVED, WE CONCLUDE THAT THE ACTUAL TRAVEL OF THE EMPLOYEE ENDED WHEN HE REPORTED FOR DUTY ABOARD THE U.S.S. FORRESTAL AND DID NOT RESUME UNTIL THE COMPLETION OF SUCH DUTY ON BOARD THAT SHIP. THUS, THE DUTY PERFORMED ON THE SHIP WAS NOT WORK WHILE TRAVELING WITHIN THE CONTEMPLATION OF THE STATUTE AND THE TRAVEL INCIDENT TO THE DUTY PERFORMED ON SUCH SHIP WAS NOT TRAVEL INCIDENT TO THE PERFORMANCE OF WORK WHILE TRAVELING. THEREFORE, THE EMPLOYEE'S TRAVEL TO THE SHIP AND RETURN TRAVEL ON THE SHIP FOLLOWING THE COMPLETION OF THE TEMPORARY DUTY MAY NOT BE REGARDED AS "HOURS OF EMPLOYMENT." THE FIRST OF THE SPECIFIC QUESTIONS SUBMITTED IS ANSWERED IN THE NEGATIVE RENDERING ANY ANSWER TO THE SECOND QUESTION UNNECESSARY.