B-169178, MAY 12, 1970

B-169178: May 12, 1970

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STATUS EMPLOYEE'S CLAIM FOR 30 MINUTES PER DAY OVERTIME COMPENSATION FOR PERIOD DURING WHICH HIS TOUR OF DUTY WAS 8 A.M. IS DISALLOWED. SINCE EMPLOYEE WAS NOT REQUIRED TO DRIVE VEHICLE AS PART OF HIS DUTIES. NO WORK WAS PERFORMED PRIOR TO 8 A.M. EMPLOYEE COULD HAVE REPORTED TO SITES DIRECTLY AT 8 A.M. THERE IS NO BASIS FOR OVERTIME. VICENTE VITA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10. DURING THE PERIOD COVERED BY YOUR CLAIM YOU WERE EMPLOYED AS A MEMBER OF THE SURVEY PARTY FOR THE CHAMIZAL PROJECT WITH A TOUR OF DUTY FROM 8 A.M. YOUR CLAIM WAS DISALLOWED SINCE THERE IS NO AUTHORITY UNDER 5 U.S.C. 912B (1964 ED.). FOR PAYMENT OF OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES FOR TIME SPENT TRAVELING TO THEIR WORK SITE OUTSIDE THEIR REGULARLY SCHEDULED WORKWEEK UNLESS THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.

B-169178, MAY 12, 1970

COMPENSATION--OVERTIME--TRAVEL TIME--STATUS EMPLOYEE'S CLAIM FOR 30 MINUTES PER DAY OVERTIME COMPENSATION FOR PERIOD DURING WHICH HIS TOUR OF DUTY WAS 8 A.M. TO 5 P.M; INCLUDING AN HOUR LUNCH, BUT HE REPORTED AT 7:30 A.M. AND SHARED DRIVING OF GOVT. VEHICLE TO WORK SITES, IS DISALLOWED. SINCE EMPLOYEE WAS NOT REQUIRED TO DRIVE VEHICLE AS PART OF HIS DUTIES, NO WORK WAS PERFORMED PRIOR TO 8 A.M.; IT NORMALLY TOOK LESS THAN 15 MINUTES TO DRIVE TO WORK SITES; AND EMPLOYEE COULD HAVE REPORTED TO SITES DIRECTLY AT 8 A.M; ADMINISTRATIVE DETERMINATION NOT TO INCLUDE TIME INVOLVED APPEARS REASONABLE. THEREFORE, THERE IS NO BASIS FOR OVERTIME. SEE COMP. GEN. DECS. CITED.

TO MR. VICENTE VITA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10, 1970, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DISALLOWING YOUR CLAIM FOR 30 MINUTES PER DAY OVERTIME COMPENSATION FOR THE PERIOD OCTOBER 26, 1964, TO MAY 31, 1965, AS AN EMPLOYEE OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO.

DURING THE PERIOD COVERED BY YOUR CLAIM YOU WERE EMPLOYED AS A MEMBER OF THE SURVEY PARTY FOR THE CHAMIZAL PROJECT WITH A TOUR OF DUTY FROM 8 A.M. TO 5 P.M; WHICH INCLUDED AN HOUR LUNCH PERIOD. YOU REPORTED AT THE AMERICAN DAM AT 7:30 A.M. AND SHARED THE DRIVING OF A GOVERNMENT VEHICLE TO THE PARTICULAR WORK SITES. YOUR CLAIM WAS DISALLOWED SINCE THERE IS NO AUTHORITY UNDER 5 U.S.C. 912B (1964 ED.) FOR PAYMENT OF OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES FOR TIME SPENT TRAVELING TO THEIR WORK SITE OUTSIDE THEIR REGULARLY SCHEDULED WORKWEEK UNLESS THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS. YOU STATE THERE WAS NO NECESSITY TO REPORT AT THE AMERICAN DAM EXCEPT TO PICK UP THE GOVERNMENT VEHICLE FOR THE PURPOSE OF DRIVING IT TO THE WORK SITE.

IN 43 COMP. GEN. 273 (1963) WE CONSIDERED THE CASE OF AN EMPLOYEE WHO RETURNS A SPECIALLY EQUIPPED VEHICLE TO THE GARAGE, REFUELS AND TIDIES IT, AND COMPLETES REQUIRED REPORTS. WE HELD THAT UNDER SUCH CIRCUMSTANCES THE TIME NECESSARILY SPENT IN RETURNING THE VEHICLE TO THE GARAGE AND PERFORMING THE OTHER TASKS COULD BE CONSIDERED "HOURS OF WORK" WITHIN THE MEANING OF THE APPLICABLE STATUTORY OVERTIME PROVISIONS BECAUSE THE RETURN OF THE VEHICLE COULD BE CONSIDERED AN ESSENTIAL PART OF THE EMPLOYEE'S DUTIES AS IN THE CASE OF A CHAUFFEUR, BUS OPERATOR OR TRUCK DRIVER. WITH REGARD TO ESTABLISHING A TOUR OF DUTY INCLUDING TRAVEL TIME, WE STATED THE FOLLOWING IN OUR DECISION B 157036, JULY 22, 1965:

"UNDER THE PROVISIONS OF 5 U.S.C. 944 (2) WHICH RELATE TO THE ESTABLISHMENT BY THE HEADS OF THE SEVERAL DEPARTMENTS OF THE 40-HOUR BASIC WORKWEEK AND TOURS OF DUTY, HOWEVER, OUR VIEW IS THAT, IN THE EXERCISE OF YOUR DISCRETION AS PROVIDED IN THAT STATUTE, YOU COULD ESTABLISH A 40-HOUR TOUR OF DUTY FOR THE CONSTRUCTION INSPECTORS TO BEGIN AT THE TIME THEY REPORT TO HEADQUARTERS TO PICK UP THE GOVERNMENT CARS TO PROCEED TO THE WORK SITE. IF THIS BE DONE THEN THEY WOULD BE ENTITLED TO OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 PER WEEK COUNTING FROM THE TIME OF REPORTING TO HEADQUARTERS EACH MORNING. HOWEVER, WE DO NOT BELIEVE THAT THE AUTHORITY UNDER 5 U.S.C. 944 (2), WHICH IS CONCERNED ONLY WITH THE FIXING OF A DAILY TOUR OF DUTY WITHIN A 40-HOUR WORKWEEK, WOULD EXTEND TO SCHEDULING TRAVEL TIME AT THE END OF THE DAY WHICH WOULD BE TANTAMOUNT TO OVERTIME WHEN THE WORKWEEK IS CONSIDERED AS A WHOLE."

WE HAVE BEEN ADVISED BY THE COMMISSION THAT YOU WERE NOT REQUIRED TO DRIVE A GOVERNMENT VEHICLE AS PART OF YOUR DUTIES AND THAT SUCH DRIVING AS YOU PERFORMED WAS INCIDENTAL TO THE DRIVING OF A VEHICLE (USUALLY A SIX- PASSENGER STATION WAGON) TO THE PARTICULAR SURVEY SITES. THE COMMISSION ALSO STATES THAT YOU COULD HAVE REPORTED TO THE VARIOUS SURVEY SITES DIRECTLY AT THE BEGINNING HOUR OF WORK AND THAT WORK WAS NOT PERFORMED PRIOR TO THE STATED STARTING HOUR OF YOUR TOUR OF DUTY.

WITH REGARD TO THE INCLUSION OF THE TRAVEL TIME FROM THE PLACE OF REPORTING TO THE WORK SITE COVERED BY OUR DECISION B-157036, JULY 22, 1965, CITED ABOVE, YOU WILL NOTE THAT THE INCLUSION OF SUCH TRAVEL TIME AT THE BEGINNING OF THE TOUR WAS TO BE DISCRETIONARY WITH THE AGENCY IN THE LIGHT OF CIRCUMSTANCES WARRANTING SUCH ACTION. IN THE DECISION CITED THE DISTANCE TO BE DRIVEN WAS 70 MILES AND THE WORK SITE WAS IN A REMOTE AREA. YOU INDICATE THAT YOUR WORK SITES WERE WITHIN THE CITY LIMITS OF EL PASO, TEXAS, AND THAT IT USUALLY TOOK LESS THAN 15 MINUTES TO DRIVE TO THE WORK SITES. UNDER SUCH CIRCUMSTANCES THE ADMINISTRATIVE DETERMINATION NOT TO INCLUDE THE TIME SPENT DRIVING THE GOVERNMENT VEHICLE TO THE WORK SITES APPEARS TO BE REASONABLE.

IN VIEW OF THE ABOVE, THERE IS NO BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION, AND THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS AFFIRMED.