B-173558, B-173598, THROUGH B-173613, AUG 16, 1971

B-173558,B-173601,B-173603,B-173605,B-173607,B-173609,B-173613,B: Aug 16, 1971

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WHERE THERE IS A DISPUTE AS TO FACTUAL MATTERS. GAO IS NOT EQUIPPED TO RESOLVE THAT DISPUTE. ESQUIRE: THIS IS IN FURTHER REFERENCE TO YOUR LETTERS OF MAY 14 AND JUNE 23. YOU HAVE SUBMITTED POWERS OF ATTORNEY EXECUTED BY MR. YOU SAY THAT YOU HAVE OUR CERTIFICATE OF SETTLEMENT DATED SEPTEMBER 4. SIMILAR CERTIFICATES OF SETTLEMENT WERE SENT TO THE OTHER 16 CLAIMANTS. THE FACTS IN THE CASES WERE FULLY SET FORTH IN THE SETTLEMENTS AND THEREFORE NEED NOT BE REPEATED IN DETAIL HERE. THE RECORD INDICATES THAT THE CLAIMS WERE FOR PAYMENT OF OVERTIME FOR TIME CONSUMED IN TRAVELING (30 MINUTES EACH DAY) BETWEEN ASSEMBLY POINTS AND WORK SITES DURING THE PERIOD INVOLVED. THE CLAIMS WERE DISALLOWED ON THE GROUND THAT ACTIVITIES SUCH AS RIDING OR DRIVING TO THE PLACE OF WORK ARE NOT GENERALLY CONSIDERED ACTIVITIES WHICH ARE TO BE INCLUDED AS COMPENSABLE TIME.

B-173558, B-173598, THROUGH B-173613, AUG 16, 1971

CIVILIAN EMPLOYEE - OVERTIME COMPENSATION FOR TRAVEL TIME - RESOLUTION OF DISPUTED FACTS DECISION SUSTAINING THE PREVIOUS DISALLOWANCE OF THE CLAIMS OF 16 PERSONS FOR OVERTIME COMPENSATION FOR TIME CONSUMED IN TRAVELING BETWEEN ASSEMBLY POINTS AND WORK SITES AS EMPLOYEES OF THE LITTLE ROCK DISTRICT, CORPS OF ENGINEERS. WHERE THERE IS A DISPUTE AS TO FACTUAL MATTERS, AS IN THIS CASE, GAO IS NOT EQUIPPED TO RESOLVE THAT DISPUTE. GAO MUST BASE ITS DETERMINATION ON THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY.

TO OSCAR E. DAVIS, JR., ESQUIRE:

THIS IS IN FURTHER REFERENCE TO YOUR LETTERS OF MAY 14 AND JUNE 23, 1971. YOU HAVE SUBMITTED POWERS OF ATTORNEY EXECUTED BY MR. WILLIAM P. CLAPP AND 16 OTHER CLAIMANTS (WAGE BOARD EMPLOYEES) AUTHORIZING THE LAW FIRM OF SMITH, WILLIAMS, FRIDAY, ELDREDGE & CLARK TO ACT ON THEIR BEHALF INCIDENT TO THEIR CLAIMS FOR OVERTIME COMPENSATION FOR THE PERIOD JANUARY 7, 1963, THROUGH DECEMBER 23, 1965, AS EMPLOYEES OF THE LITTLE ROCK DISTRICT OF THE U. S. CORPS OF ENGINEERS, AND REQUEST RECONSIDERATION OF OUR DISALLOWANCE OF THE CLAIMS.

IN YOUR LETTER OF MAY 14, 1971, YOU SAY THAT YOU HAVE OUR CERTIFICATE OF SETTLEMENT DATED SEPTEMBER 4, 1970, SENT TO MR. CLAPP. SIMILAR CERTIFICATES OF SETTLEMENT WERE SENT TO THE OTHER 16 CLAIMANTS. THE FACTS IN THE CASES WERE FULLY SET FORTH IN THE SETTLEMENTS AND THEREFORE NEED NOT BE REPEATED IN DETAIL HERE. THE RECORD INDICATES THAT THE CLAIMS WERE FOR PAYMENT OF OVERTIME FOR TIME CONSUMED IN TRAVELING (30 MINUTES EACH DAY) BETWEEN ASSEMBLY POINTS AND WORK SITES DURING THE PERIOD INVOLVED. THE CLAIMS WERE DISALLOWED ON THE GROUND THAT ACTIVITIES SUCH AS RIDING OR DRIVING TO THE PLACE OF WORK ARE NOT GENERALLY CONSIDERED ACTIVITIES WHICH ARE TO BE INCLUDED AS COMPENSABLE TIME. THERE WAS NO EVIDENCE THAT ANY WORK WAS ORDERED OR PERFORMED BEFORE REACHING OR AFTER LEAVING THE WORK SITES.

DURING THE PERIOD OF THE CLAIM, WAGE BOARD EMPLOYEES WERE ENTITLED TO OVERTIME COMPENSATION FOR DUTY IN EXCESS OF 8 HOURS PER DAY OR 40 HOURS PER WEEK UNDER SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, APPROVED MARCH 28, 1934, 48 STAT. 522, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, APPROVED AUGUST 13, 1962, PUBLIC LAW 87 581, 76 STAT. 360, WHICH PROVIDED IN PERTINENT PART:

" *** PROVIDED FURTHER, THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF OF BASIC RATE OF COMPENSATION *** "

THE DEPARTMENT OF THE ARMY REPORTS THAT THE FIELD EMPLOYEES OF THE LITTLE ROCK DISTRICT WHO WERE ENGAGED IN RESERVOIR MAINTENANCE, CORE BORING, SURVEYS, AND CONSTRUCTION INSPECTION MET AT ASSEMBLY POINTS AND PROCEEDED TO THEIR WORK SITES. THE TRAVEL TIME VARIED ACCORDING TO THE DISTANCE TO BE TRAVELED. IN CONSULTATION WITH THE EMPLOYEES, IT WAS DETERMINED THAT FIXED TIMES OF DEPARTURE AND RETURN WOULD PERMIT THEM TO REACH OR LEAVE THE ASSEMBLY POINTS IN JOINT CAR POOLS AND MEET OTHER PERSONAL NEEDS. THERE IS NO EVIDENCE THAT ASSEMBLY AT DESIGNATED POINTS WAS FOR OTHER THAN THE PURPOSE OF TRANSPORTATION TO THE WORK SITES.

IT WAS THE POLICY OF THE LITTLE ROCK DISTRICT WHEN IT WAS NECESSARY TO ESTABLISH AN ASSEMBLY POINT AT SOME DISTANCE FROM THE WORKSITE TO REQUIRE THE EMPLOYEES TO TRAVEL ONE WAY FROM THE ASSEMBLY POINT ON THEIR OWN TIME AND ONE WAY ON GOVERNMENT TIME. ON DECEMBER 23, 1965, THE POLICY OF REQUIRING THE EMPLOYEES TO TRAVEL ON THEIR OWN TIME WAS DISCONTINUED.

ALTHOUGH YOU STATE IN YOUR LETTER THAT WORK WAS PERFORMED PRIOR TO DEPARTING FOR THE WORK SITES, THERE IS NOTHING IN THE RECORD TO SUBSTANTIATE SUCH STATEMENT. ON THE CONTRARY, THE RECORD SHOWS THAT ASSEMBLY WAS FOR THE PURPOSE OF TRANSPORTATION. AS STATED IN OUR CERTIFICATES OF SETTLEMENT ON THE BASIS OF THE FACTS PRESENTED IT CANNOT BE SAID THAT THE CLAIMANTS WERE PERFORMING AN INTEGRAL AND INDISPENSABLE PART OF THE ACTIVITY FOR WHICH THEY WERE EMPLOYED SO AS TO BE CONSIDERED AS IN A "WORK" STATUS WHEN DRIVING OR RIDING BETWEEN THE LOCATION OF THE ASSEMBLY POINTS AND THE WORK SITES. THEREFORE, THERE IS NO BASIS FOR ENTITLEMENT TO OVERTIME COMPENSATION. A SIMILAR CONCLUSION WITH REGARD TO THE TIME SPENT BY GOVERNMENT EMPLOYEES IN GOING TO AND RETURNING FROM THEIR WORK SITES WAS REACHED IN AHEARN V UNITED STATES, 142 CT. CL. 309 (1958). SEE ALSO ABBOTT V UNITED STATES, 138 CT. CL. 459, 151 F. SUPP. 929 (1957); BIGGS V UNITED STATES, 152 CT. CL. 545 (1961).

YOU SAY THAT IF THE CLAIMANTS WERE ALLOWED TO TESTIFY IN EITHER A HEARING OR THROUGH AFFIDAVITS THEIR TESTIMONY WOULD ESTABLISH THE FACT THAT THE CLAIMANTS COMMENCED WORK AT THE CENTRAL LOCATION PRIOR TO DRIVING TO THEIR ASSIGNED AREAS AND, THUS, ARE ENTITLED TO PAY FOR THE TRAVEL TIME. INDICATED ABOVE, THE ADMINISTRATIVE REPORT ESTABLISHES THAT ASSEMBLY WAS FOR THE PURPOSE OF MEETING FOR TRANSPORTATION TO THE WORK SITES AND THEREFORE NOT PERFORMANCE OF WORK AT THE ASSEMBLY SITES. THUS A DIRECT CONTRADICTION EXISTS BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE CONTENDED BY THE CLAIMANTS. WE ARE NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE EXISTING IN THE CIRCUMSTANCES. WE, THEREFORE, ARE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE AGENCY.

ACCORDINGLY, WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENTS IN DISALLOWING THE CLAIMS.