B-170683, NOV. 16, 1970

B-170683, NOV. 16, 1970

WAGE BOARD EMPLOYEE - OVERTIME - TRAVEL AND WORK EVIDENCE DECISION CONCERNING OVERTIME PAYABLE TO GPO EMPLOYEE FOR TWO TEMPORARY DUTY ASSIGNMENTS PERFORMED IN POUGHKEEPSIE, N.Y. GPO COMPTROLLER SUBMITTED SUPPLEMENTED EVIDENCE. GPO EMPLOYEE WHO TRAVELED TO POUGHKEEPSIE, N.Y., ON FRIDAY TO INSPECT PRESS SHEETS AT CONTRACTOR'S PLANT MAY NOT HAVE SUCH TRAVEL REGARDED AS FREE FROM ADMINISTRATIVE CONTROL AND THEREFORE SUCH TRAVEL IS NOT COMPENSABLE AS OVERTIME. IN CONNECTION WITH RETURN TRAVEL ON SUNDAY SINCE NO EMERGENCY EXISTED THAT REQUIRED EMPLOYEE'S IMMEDIATE RETURN, THE TRAVEL MAY NOT BE REGARDED AS RELATED TO AN ADMINISTRATIVELY CONTROLLABLE EVENT, AND OVERTIME COMPENSATION FOR THE TRAVEL TIME MAY NOT BE PAID. ON THE BASIS OF THE RECORD CONCERNING A SECOND TRIP THE EMPLOYEE IS ENTITLED UNDER 5 U.S.C. 5544(A) TO OVERTIME FOR HOURS OF ACTUAL WORK AT THE CONTRACTOR'S PLANT ON FRIDAY AFTERNOON AND ON SATURDAY. HOWEVER OVERTIME FOR TRAVEL TIME ON SATURDAY AND ON FRIDAY NOT BEING OCCASIONED BY AN ADMINISTRATIVELY UNCONTROLLABLE EVENT IS NOT COMPENSABLE.

TO MR. SPENCE:

WE REFER TO LETTER OF AUGUST 20, 1970, FROM MR. JAMES W. TEW, ACTING PUBLIC PRINTER, REQUESTING OUR DECISION AS TO THE PROPER AMOUNT OF OVERTIME COMPENSATION WHICH IS PAYABLE TO MR. ROY JOHNSON, AN EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE, FOR TRAVEL AND WORK PERFORMED IN CONNECTION WITH TWO TEMPORARY DUTY ASSIGNMENTS. IN ADDITION TO MR. TEW'S LETTER WE HAVE RECEIVED A SUPPLEMENTAL REPORT DATED OCTOBER 19, 1970, FROM MR. WALTER C. DEVAUGHN, COMPTROLLER.

MR. JOHNSON, WHOSE REGULARLY SCHEDULED TOUR OF DUTY IS 8 A.M. TO 4:30 P.M., MONDAY THROUGH FRIDAY, WAS REQUIRED ON TWO OCCASIONS TO TRAVEL FROM WASHINGTON, D.C., TO POUGHKEEPSIE, NEW YORK, TO CHECK PRESS SHEETS AND DISCUSS COLOR CORRECTIONS ON A GOVERNMENT JOB AT A PRIVATE CONTRACTOR'S PLANT. THE FACTS RELATING TO MR. JOHNSON'S INITIAL TRIP TO POUGHKEEPSIE ARE AS FOLLOWS (QUOTING FROM MR. TEW'S LETTER):

"MR. JOHNSON LEFT WASHINGTON, D.C. BY PLANE AT NOON ON FRIDAY, JUNE 26, 1970, FOR NEWARK, NEW JERSEY, ARRIVING AT 12:45 P.M., WHERE HE RENTED A CAR AND DROVE TO POUGHKEEPSIE, NEW YORK, ARRIVING AT HIS MOTEL AT APPROXIMATELY 7:00 P.M. THIS MODE OF TRAVEL WAS CERTIFIED AS BEING THE MOST ADVANTAGEOUS TO THE GOVERNMENT.

"MR. JOHNSON REPORTED AT CONTRACTOR'S PLANT AT 7:00 A.M. SATURDAY AND WORKED UNTIL 10:00 A.M. DELAY WAS THEN ENCOUNTERED BECAUSE OF PRESS DIFFICULTIES AND THE PRESS INSPECTION WAS MOVED TO NOON AND THEN TO 2:30 P.M. MR. JOHNSON REMAINED AT CONTRACTOR'S PLANT UNTIL 6:00 P.M. WHEN THE JOB WAS COMPLETED. HE RETURNED TO WASHINGTON, D.C. ON SUNDAY, JUNE 28, 1970, LEAVING AT 9:30 A.M. VIA RENTAL CAR TO NEWARK, NEW JERSEY, WHERE HE BOARDED A PLANE AT 3:30 P.M. ARRIVING IN WASHINGTON, D.C. AT 4:30 P.M. "MR. JOHNSON HAS REQUESTED THE FOLLOWING OVERTIME FOR THE WEEKEND: 4:30 P.M. TO 7:00 P.M., FRIDAY, LESS 1/2 HOUR FOR DINNER; 7:00 A.M. TO 6:00 P.M., SATURDAY, LESS 1 HOUR FOR LUNCH; 9:30 A.M. TO 4:30 P.M., SUNDAY, EXCLUDING 1 HOUR FOR LUNCH, FOR A TOTAL OF 18 HOURS."

THE FACTS RELATING TO MR. JOHNSON'S SECOND TRIP TO POUGHKEEPSIE ARE AS FOLLOWS:

"MR. JOHNSON DEPARTED FROM HIS HOME IN SEABROOK, MARYLAND AT 5:00 A.M., FRIDAY, JULY 10, 1970, IN HIS OWN CAR (AUTHORIZED FOR THE CONVENIENCE OF THE EMPLOYEE) ARRIVED AT KENNEDY AIRPORT IN NEW YORK CITY AT 10:30 A.M. AND TOOK AN 11:30 A.M. FLIGHT TO POUGHKEEPSIE, NEW YORK ARRIVING AT APPROXIMATELY 12:10 P.M. MR. JOHNSON RENTED A CAR AT THE AIRPORT, THIS HAVING BEEN AUTHORIZED BECAUSE CONTRACTOR'S PLANT WAS SOME DISTANCE FROM TOWN, AND DROVE DIRECTLY TO CONTRACTOR'S PLANT. FROM 1:00 P.M. TO 8:00 P.M. HE INSPECTED PRESS SHEETS, REQUIRED PRESS PLATES TO BE MADE, AND FINALLY GAVE APPROVAL OF THE COLOR AT 8:00 P.M.

"MR. JOHNSON RETURNED TO THE PLANT AT 7:30 A.M., SATURDAY, JULY 11, 1970, FOR FINAL INSPECTION, THEN TOOK A 10:00 A.M. FLIGHT BACK TO KENNEDY AIRPORT, NEW YORK CITY, ARRIVING AT 10:40 A.M. HE THEN PURSUED PERSONAL BUSINESS AND DID NOT RESUME TRAVEL UNTIL 1:00 P.M., MONDAY, JULY 13, 1970, WHEN HE DEPARTED NEW YORK FOR HIS HOME IN SEABROOK, MARYLAND ARRIVING THERE AT 7:00 P.M.

"MR. JOHNSON HAS REQUESTED THE FOLLOWING OVERTIME FOR THE SECOND TRIP: 4:30 P.M. TO 8:00 P.M., FRIDAY, JULY 10; 7:30 A.M. TO 10:30 A.M., SATURDAY, JULY 11; 1:00 P.M. TO 7:00 P.M., MONDAY, JULY 13, LESS 1/2 HOUR FOR DINNER, FOR A TOTAL OF 12 HOURS."

THE APPLICABLE STATUTORY PROVISION IS 5 U.S.C. 5544(A) WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(A) AN EMPLOYEE WHOSE BASIC RATE OF PAY IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY A WAGE BOARD OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE IS ENTITLED TO OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK. *** 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."

WITH RESPECT TO MR. JOHNSON'S TRAVEL TO POUGHKEEPSIE ON FRIDAY, JUNE 26, 1970, WE DO NOT REGARD THAT TRAVEL AS FALLING WITHIN THE PURVIEW OF CLAUSES (I), (II), OR (III) ABOVE. THEREFORE, SUCH TRAVEL TIME MAY BE REGARDED AS "HOURS OF WORK" ONLY IF IT RESULTED FROM AN EVENT WHICH COULD NOT HAVE BEEN SCHEDULED OR CONTROLLED ADMINISTRATIVELY. IN THAT REGARD WE HAVE HELD WITH RESPECT TO AN ADMINISTRATIVELY UNCONTROLLABLE EVENT THAT THERE MUST ALSO HAVE EXISTED AN IMMEDIATE OFFICIAL NECESSITY FOR THE TRAVEL INVOLVED. B-163654, APRIL 19, 1968.

THE RECORD IS NOT CLEAR AS TO WHETHER THE EVENT IN THIS CASE, I.E., THE INSPECTION OF PRESS SHEETS, WAS SUBJECT TO SCHEDULING AND CONTROL BY THE GOVERNMENT PRINTING OFFICE. HOWEVER, IT IS NOT NECESSARY FOR US TO DECIDE THAT ISSUE SINCE, IN OUR VIEW, THE TRAVEL PERFORMED BY THE EMPLOYEE INCIDENT TO SUCH EVENT WAS SUBJECT TO ADMINISTRATIVE SCHEDULING WITHIN HIS REGULARLY SCHEDULED WORKWEEK.

WE UNDERSTAND THAT THE DECISION TO SEND MR. JOHNSON TO POUGHKEEPSIE ON FRIDAY, JUNE 26, WAS MADE ON THURSDAY, JUNE 25. ACCORDING TO OFFICIAL AIRLINE GUIDES MR. JOHNSON COULD HAVE TRAVELED UNDER ONE OF THE FOLLOWING SCHEDULES:

NATIONAL AIRLINES

LV. WASHINGTON (NATIONAL) 11:20 A.M. 1:25 P.M.

ARR. NEW YORK (KENNEDY) 12:15 P.M. 2:20 P.M.

COMMAND AIRWAYS

LV. NEW YORK (KENNEDY) 1:55 P.M. 3:55 P.M.

ARR. POUGHKEEPSIE 2:30 P.M. 4:30 P.M. WE RECOGNIZE THAT MR. JOHNSON WAS AUTHORIZED TO TRAVEL BY AUTOMOBILE FROM NEWARK TO POUGHKEEPSIE ON JUNE 26. THE FACT REMAINS, HOWEVER, THAT THE EMPLOYEE'S TRAVEL COULD HAVE BEEN SCHEDULED WITHIN THE HOURS OF HIS REGULAR WORKDAY (8-4:30). THUS, IT CANNOT BE SAID THAT THE INSPECTION OF PRESS SHEETS NECESSITATED TRAVEL OUTSIDE THE EMPLOYEE'S SCHEDULED WORKWEEK. ACCORDINGLY, THE TRAVEL ON JUNE 26 MAY NOT BE REGARDED AS "HOURS OF WORK" UNDER 5 U.S.C. 5544(A). SEE B-163654, APRIL 19, 1968 (FOURTH SITUATION); B-170409, OCTOBER 15, 1970.

CONCERNING MR. JOHNSON'S REQUEST FOR OVERTIME PAY FOR THE WORK PERFORMED ON SATURDAY, JUNE 27, YOUR COMPTROLLER HAS FURNISHED THE FOLLOWING ADDITIONAL FACTS:

"WHEN WORK HALTED AT ABOUT 10:00 A.M., MR. JOHNSON RETURNED TO HIS MOTEL FOR A WHILE, THEN ATE LUNCH, AND RETURNED TO CONTRACTOR'S PLANT AROUND 2:00 P.M., WHERE HE WAITED UNTIL WORK WAS RESUMED ABOUT 2:30 P.M. HE CONTINUED WORKING UNTIL 6:00 P.M." SINCE NO ACTUAL WORK WAS PERFORMED BY THE EMPLOYEE DURING THE HOURS FROM 10 A.M. TO 2 P.M. AND HE WAS FREE TO LEAVE THE PLANT DURING THAT PERIOD, THE 4-HOUR PERIOD OF DELAY IS NOT COMPENSABLE AS OVERTIME WORK UNDER 5 U.S.C. 5544(A). SEE ARMOUR AND COMPANY V WANTOCK, 323 U.S. 126, 133 (1944); RAPP AND HAWKINS V UNITED STATES, 167 CT. CL. 852 (1964).

WITH RESPECT TO THE EMPLOYEE'S RETURN TRAVEL ON SUNDAY, JUNE 28, FOLLOWING THE COMPLETION OF HIS TEMPORARY DUTY AT 6 P.M. ON SATURDAY, JUNE 27, YOUR COMPTROLLER REPORTS THAT THERE EXISTED NO EMERGENCY WHICH REQUIRED MR. JOHNSON'S IMMEDIATE RETURN TO WASHINGTON ON SUNDAY. THEREFORE SINCE MR. JOHNSON'S RETURN TRAVEL WAS NOT RELATED TO AN ADMINISTRATIVELY UNCONTROLLABLE EVENT, HE IS NOT ENTITLED TO OVERTIME COMPENSATION FOR SUCH TRAVEL TIME. B-163654, APRIL 19, 1968, AND SEPTEMBER 14, 1970.

REGARDING MR. JOHNSON'S SECOND TRIP TO POUGHKEEPSIE, THERE IS NO QUESTION THAT HE IS ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 5544(A) FOR THE HOURS OF ACTUAL WORK PERFORMED AT THE CONTRACTOR'S PLANT ON FRIDAY, JULY 10 (4:30 P.M. TO 8 P.M.), AND ON SATURDAY, JULY 11 (7:30 A.M. TO COMPLETION OF ACTUAL WORK). HOWEVER, HE IS NOT ENTITLED TO OVERTIME PAY FOR TRAVEL ON SATURDAY AND ON MONDAY, JULY 13, SINCE SUCH RETURN TRAVEL WAS NOT OCCASIONED BY AN ADMINISTRATIVELY UNCONTROLLABLE EVENT.

COPIES OF THE DECISIONS REFERRED TO HEREIN ARE ENCLOSED.