B-173047, JUL 2, 1971, 51 COMP GEN 7

B-173047, JUL 2, 1971, 51 COMP GEN 7

COMPENSATION - OVERTIME - TRAVEL TIME - BETWEEN RESIDENCE AND HEADQUARTERS THE TRAVEL TIME OF ONE-HALF HOUR EACH WAY FROM HOME TO DUTY STATION AND RETURN IN A GOVERNMENT-OWNED BOAT BY FEDERAL AVIATION ADMINISTRATION WAGE BOARD EMPLOYEES ASSIGNED TO ALASKA AND PERFORMING A REGULARLY SCHEDULED DUTY PERIOD OF 8 HOURS PER DAY IS NOT COMPENSABLE AS OVERTIME UNDER U.S.C. 5542(B)(2)(B) SINCE THE EMPLOYEES DID NOT PERFORM WORK WHILE TRAVELING, THE TRAVEL WAS NOT INCIDENT TO THE PERFORMANCE OF WORK, NOR DID IT RESULT FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, AND THE FACT THAT THE BOAT TRIP COULD BE DANGEROUS BECAUSE OF TIDAL ACTION OR A DOCK IN NEED OF REPAIRS DOES NOT CONSTITUTE TRAVEL UNDER ARDUOUS CONDITIONS AS TRAVEL UNDER ARDUOUS CONDITIONS IS TRAVEL PERFORMED UNDER SEVERE WEATHER CONDITIONS.

TO R. J. SCHULLERY, FEDERAL AVIATION ADMINISTRATION, JULY 2, 1971:

REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1971, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF CERTIFYING FOR PAYMENT THE CLAIMS OF MESSRS. WILLIAM S. CORDRY, JAMES H. PAYNE, AND DALE HUGHES, WS-10 EMPLOYEES, FOR OVERTIME PAY IN CONNECTION WITH TRAVEL PERFORMED OUTSIDE THEIR REGULAR DUTY HOURS.

YOU INDICATE THAT THE ABOVE INDIVIDUALS ARE EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION (FAA) WITH ASSIGNED DUTY STATION AT WOODY ISLAND, ALASKA. THEY COMMUTE THERE DAILY AT GOVERNMENT EXPENSE ON A GOVERNMENT- OWNED BOAT WHICH YOU STATE "IS THE ONLY MEANS OF TRANSPORTATION AVAILABLE TO THEM." THEY RESIDE ON KODIAK ISLAND AND ARE REQUIRED TO ARRIVE AT THE DEPARTURE POINT ONE-HALF HOUR BEFORE THEIR 8-HOUR PRESCRIBED TOUR OF DUTY BEGINS AT THE PERMANENT DUTY FACILITY ON WOODY ISLAND. THEY DEPART FROM WOODY ISLAND AT THE END OF THEIR DUTY PERIOD AND ARRIVE AT KODIAK ISLAND ONE-HALF HOUR LATER. THE CLAIM IS BASED UPON THIS DAILY 1-HOUR PERIOD FOR WHICH THE EMPLOYEES DEMAND OVERTIME PAY SINCE IT EXCEEDS THEIR REGULARLY SCHEDULED DUTY PERIOD OF 8 HOURS.

THE CONTROLLING STATUTE, WHICH IS APPLICABLE TO WAGE BOARD EMPLOYEES OF FAA PURSUANT TO CHAPTER 2, SECTION 3, OF FAA PAY ADMINISTRATION HANDBOOK NO. 3550.10, IS 5 U.S.C. 5542 AND IT PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK ***

(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

(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.

CLAUSE (III) OF SUBSECTION 5542(B)(2)(B) APPEARS TO BE THE ONLY POSSIBLE BASIS FOR APPROVING THESE CLAIMS SINCE YOUR LETTER DOES NOT INDICATE THAT THE SUBJECT EMPLOYEES PERFORM WORK WHILE TRAVELING, OR THAT THE REGULAR DUTIES ARE PERFORMED IN THE COURSE OF OTHER TRAVEL. IT IS ALSO CLEAR THAT THE TRAVEL DOES NOT RESULT FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY WITHIN THE MEANING OF CLAUSE (IV).

YOU HAVE CITED OUR DECISION B-157036, JULY 22, 1965, AS THE BASIS FOR THE EMPLOYEES' CLAIMS AS WELL AS AUTHORITY FOR YOUR POSITION THAT PAYMENT OF OVERTIME UNDER THE CIRCUMSTANCES DESCRIBED ABOVE WOULD NOT BE PROPER. THAT DECISION WE CONSIDERED THE QUESTION OF WHETHER THE INTERIOR DEPARTMENT COULD OFFICIALLY EXTEND THE REGULARLY SCHEDULED TOUR OF DUTY OF INSPECTOR-TYPE EMPLOYEES WHO WERE REQUIRED TO ASSEMBLE AT A POINT SOME 70 MILES FROM THEIR WORKSITE FOR THE PURPOSE OF CHECKING OUT GOVERNMENT VEHICLES WHICH THEY THEN DROVE TO THE WORKSITE BEFORE COMMENCING THEIR 8- HOUR TOUR OF DUTY. THE DEPARTMENT SOUGHT TO EXTEND THE NORMAL DUTY PERIOD BEYOND 8 HOURS FOR THE SOLE PURPOSE OF BRINGING THE TRAVEL WITHIN THE APPLICABLE STATUTE, THUS PERMITTING OVERTIME COMPENSATION FOR THE TRAVEL PERIOD IN QUESTION. WE HELD THAT THE DUTY PERIOD COULD NOT BE EXTENDED SOLELY FOR THE PURPOSE OF INCLUDING TRAVEL TIME SINCE THE PERTINENT STATUTORY PROVISION CONTEMPLATED THAT TRAVEL TIME DURING OVERTIME HOURS WAS COMPENSABLE AS OVERTIME ONLY WHEN SAID "OVERTIME HOURS" WERE ESTABLISHED FOR "WORK" WITHOUT REGARD TO TRAVEL. IN THE TEXT OF OUR DECISION WE RECITED THE LONG-STANDING RULE THAT TRAVEL TIME ALONE (WITHOUT THE PERFORMANCE OF ACTUAL DUTY) OUTSIDE THE REGULARLY ESTABLISHED HOURS OF WORK DOES NOT ENTITLE AN EMPLOYEE TO OVERTIME COMPENSATION FOR THE TIME SO SPENT. SEE DECISIONS CITED IN B-157036, JULY 22, 1965. WE CONSIDER THAT RULE AS APPROPRIATE FOR APPLICATION IN SIMILAR CIRCUMSTANCES THAT ARE NOT OTHERWISE WITHIN THE PURVIEW OF A 5. U.S.C. 5542(B)(2)(B).

THE RECORD YOU HAVE FURNISHED DOES NOT ESTABLISH THAT THE TRAVEL WAS PERFORMED UNDER ARDUOUS CONDITIONS, ALTHOUGH CLAIMANTS STATE THAT "THIS CAN AND HAS BEEN A VERY DANGEROUS TRIP BECAUSE OF EXCESSIVE WIND, TIDAL ACTION, AND A DOCK THAT IS IN NEED OF REPAIRS." WE HAVE HELD THAT TRAVEL UNDER ARDUOUS CONDITIONS IS NOT ESTABLISHED WHERE THE EVIDENCE OF RECORD DOES NOT SHOW THAT THE CLAIMANTS WERE ACTUALLY TRAVELING UNDER SEVERE WEATHER CONDITIONS. SEE B-160928, APRIL 16, 1970, AND DECISION CITED THEREIN.

A LINE OF COURT OF CLAIMS CASES HAS GENERALLY BEEN CONSISTENT WITH OUR DECISIONS ON THE ISSUE OF COMPENSATION FOR TRAVEL TIME UNDER SIMILAR CIRCUMSTANCES. IN AHEARN, ET AL. V UNITED STATES, 142 CT. CL. 309, 313 (1958), CERT. DENIED, 364 U.S. 932, PLAINTIFFS WERE NAVY FIREFIGHTERS MANNING ISLAND FIRE STATIONS WHO HAD TO TAKE HALF-HOUR BOAT RIDES EACH WAY. THE TRIP WAS NOT REQUIRED BY THE UNITED STATES BUT IT WAS THE ONLY WAY THEY COULD REACH THE DUTY STATION, AND IT WAS FOUND TO INVOLVE NO MORE RISK THAN THE TRAVEL TO AND FROM WORK PERFORMED BY ANY EMPLOYEE. THE COURT OF CLAIMS HELD THAT THE TIME SPENT IN THAT TRAVEL WAS NO MORE COMPENSABLE THAN THE TIME SPENT BY ANY EMPLOYEE IN GOING FROM HIS HOME TO HIS WORK. THIS CASE WAS FOLLOWED IN BIGGS, ET AL V UNITED STATES, 152 CT. CL. 545, 287 F. 2D 908 (1961). IN DELANO, ET AL. V UNITED STATES, 183 CT. CL. 379, 393 F. 2D 517 (1968), THE COURT DISTINGUISHED AHEARN AND BIGGS IN HOLDING THAT OVERTIME COMPENSATION WAS DUE WHERE THE EMPLOYEES' TRAVEL WAS NECESSITATED INCIDENT TO THE NATURE OF THEIR WORK IN CONDUCTING OFFICIAL IMMIGRATION INSPECTIONS ON UNITED STATES-BOUND CANADIAN RAIL-PASSENGER CARRIERS AND WAS UNDERTAKEN FOR THE SOLE CONVENIENCE AND BENEFIT OF THE RAILROAD CARRIER WHO REIMBURSED THE GOVERNMENT OF THE UNITED STATES FOR THEIR SERVICES. THE COURT ALSO FOUND THAT THEY PERFORMED CERTAIN DUTIES WHILE WAITING IN CANADA TO DEPART FOR THE UNITED STATES AT WHICH TIME THEY UNDERTOOK TO PERFORM THEIR OFFICIAL INSPECTION DUTIES EN ROUTE. THE PLAINTIFFS IN AYRES, ET AL. V UNITED STATES, 186 CT. CL. 350 (1968), WERE NOT COMPENSATED FOR THEIR DAILY TRAVEL TIME IN RETURNING FROM THEIR ISLAND DUTY STATION ON GOVERNMENT FURNISHED VESSELS. THEY CLAIMED OVERTIME PAY UNDER THE STATUTORY PROVISIONS FOR ENTITLEMENT WHEN TRAVEL IS CARRIED OUT UNDER ARDUOUS CONDITIONS. THEY ALLEGED THAT THE TRIP WAS HAZARDOUS BECAUSE OF "TIDAL RIP" WHICH CAUSED "WATER TURBULENCE." ON THE BASIS OF TESTIMONY RELATING TO THE HAZARDS OF THE SUBJECT TRAVEL, THE COURT CONCLUDED THAT THE EMPLOYEES' TRAVEL WAS NOT PERFORMED UNDER ARDUOUS CONDITION AND WAS THEREFORE COMPARABLE TO THE NONCOMPENSABLE TRIPS IN THE AHEARN AND BIGGS CASES, SUPRA.

IN VIEW OF THE FOREGOING, AND OUR CONSIDERATION OF THE RECORD PRESENTED WITH YOUR REQUEST FOR AN ADVANCE DECISION, WE FIND NO BASIS ON WHICH THE CLAIMS MAY BE ALLOWED.

WITH RESPECT TO YOUR QUESTION CONCERNING COMPENSATION FOR INJURIES UNDER 5 U.S.C. 8101 ET SEQ., WE REFER YOU TO THE SECRETARY OF LABOR SINCE BY STATUTE HE HAS AUTHORITY TO ADMINISTER AND DECIDE ALL QUESTIONS ARISING UNDER SUBCHAPTER I OF CHAPTER 81, TITLE 5, UNITED STATES CODE. SEE 5 U.S.C. 8145.

THE CLAIMS ARE RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.