B-176796, OCT 26, 1972

B-176796, OCT 26, 1972

CIVILIAN PERSONNEL - OVERTIME COMPENSATION - TRAVEL TIME - TEMPORARY DUTY STATION DECISION DENYING THE CLAIM OF WILLIAM E. TODD, JR., FOR OVERTIME COMPENSATION FOR TIME SPENT IN TRAVEL TO AND FROM A TEMPORARY DUTY SITE WHILE EMPLOYED AT THE NORFOLK NAVAL SHIPYARD, VA. SECTION 5542(B)(2) OF 5 U.S.C. PROVIDES THAT OVERTIME COMPENSATION CANNOT BE PAID FOR TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE UNLESS THE EVENT WHICH NECESSITATES THE TRAVEL WAS NOT SUBJECT TO SCHEDULE OR CONTROL AND AN OFFICIAL NECESSITY EXISTS WITH RESPECT TO THE ADMINISTRATIVELY UNCONTROLLABLE EVENT WHICH IS SO IMMEDIATE AS TO PRECLUDE PROPER SCHEDULING OF THE EVENT. SEE 50 COMP. GEN. 674 (1971).

TO MR. WILLIAM E. TODD, JR.:

WE REFER TO YOUR LETTER OF AUGUST 14, 1972, REQUESTING A DECISION OF THIS OFFICE IN REGARD TO YOUR ENTITLEMENT TO OVERTIME COMPENSATION.

YOU STATE THAT YOU ARE EMPLOYED AS AN ELECTRICIAN AT THE NORFOLK NAVAL SHIPYARD WHERE YOUR REGULAR TOUR OF DUTY IS FROM 12 MIDNIGHT TO 8 A.M. ON JUNE 24, 1971, YOU WERE TELEPHONED BY YOUR SUPERVISOR AND INSTRUCTED TO REPORT FOR WORK AT 8 P.M. RATHER THAN MIDNIGHT. UPON REPORTING YOU WERE DIRECTED TO PROCEED TO THE DESTROYER AND SUBMARINE PIERS AT NORFOLK, VIRGINIA, TO WORK ON THE SSN 585 USS "SKIPJACK" ON WHICH A HYDRAULIC LINE HAD RUPTURED, DELAYING ITS DEPLOYMENT UNTIL REPAIRS COULD BE COMPLETED. THE DAMAGE WAS EXTENSIVE, REQUIRING YOUR ASSIGNMENT TO TEMPORARY DUTY AT THE PIERS, WHICH ARE 13 MILES FROM YOUR PERMANENT STATION, FOR REPAIR PURPOSES FROM JUNE 24, 1971, UNTIL AUGUST 3, 1971. YOU ASSERT THAT YOU AND OTHER EMPLOYEES GIVEN THE SAME ASSIGNMENT ARE ENTITLED TO OVERTIME COMPENSATION FOR TIME SPENT IN TRAVEL TO AND FROM THIS TEMPORARY DUTY SITE DURING THE PERIOD INVOLVED.

THE RECORD INDICATES THAT THE NECESSITY FOR THE TEMPORARY DUTY ASSIGNMENT AND THE TRAVEL INVOLVED WAS THE RESULT OF A BREAKDOWN OF EQUIPMENT AND THAT THE SITUATION WAS CONSIDERED TO BE URGENT. YOU FEEL THAT THESE FACTS IN THEMSELVES QUALIFY THE TIME WHICH YOU AND THE OTHER EMPLOYEES SPENT IN TRAVELING TO AND FROM THE WORKSITE AS HOURS OF EMPLOYMENT FOR OVERTIME COMPENSATION PURPOSES.

SECTION 5542 OF TITLE 5, U.S.C. PROVIDES FOR THE PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF WORK OFFICIALLY ORDERED AND APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK. SUBSECTION (B) OF THAT SECTION PROVIDES IN PERTINENT PART AS FOLLOWS:

"(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 WHICH 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."

IN INTERPRETING THE ABOVE SECTION, THERE IS FOR CONSIDERATION SUBSECTION 6101(B)(2) OF TITLE 5, U.S.C. WHICH PROVIDES:

"(2) TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE."

THE IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE COMMISSION, SECTION 610.123 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, PROVIDE THAT WHEN TRAVEL CANNOT BE SCHEDULED IN ACCORDANCE WITH 5 U.S.C. 6101(B)(2), SUPRA, AND WHEN OVERTIME IS NOT PAYABLE, THE OFFICIAL CONCERNED SHALL DOCUMENT HIS REASONS FOR ORDERING TRAVEL AT THE HOURS INVOLVED.

IN VIEW OF THE CONSIDERATIONS EXPRESSED IN THE TWO PROVISIONS OF LAW, QUOTED ABOVE, WE HAVE HELD, NOTWITHSTANDING THE EVENT WHICH NECESSITATES THE TRAVEL WAS NOT SUBJECT TO SCHEDULING OR CONTROL, THAT IN ADDITION THERE MUST EXIST AN OFFICIAL NECESSITY IN CONNECTION WITH THE ADMINISTRATIVELY UNCONTROLLABLE EVENT WHICH IS SO IMMEDIATE AS TO PRECLUDE PROPER SCHEDULING OF THE TRAVEL. SEE 50 COMP. GEN. 674 (1971); B-172671, MAY 11, 1972; B-169078, APRIL 22, 1970, COPIES ENCLOSED.

THUS, WHILE THE RUPTURE OF THE HYDRAULIC LINE MIGHT HAVE BEEN AN ADMINISTRATIVELY UNCONTROLLABLE EVENT, IT WAS APPARENTLY NOT OF SUCH IMMEDIACY AS TO PRECLUDE THE AGENCY'S SCHEDULING OF YOUR TRAVEL TIME. NOTE THAT THE AGENCY DID IN FACT SCHEDULE TWO 12-HOUR SHIFTS; ALSO, WE NOTE THAT EVEN ON THE INITIAL DAY YOU WERE NOTIFIED AT 2 P.M. TO REPORT IN AT 8 P.M. THAT EVENING. THE SCHEDULING OF TRAVEL THUS CLEARLY APPEARS TO HAVE BEEN A MATTER WITHIN THE AGENCY'S CONTROL.

IN LIGHT OF THE ABOVE CIRCUMSTANCES, OUR VIEW IS THAT NO BASIS EXISTS FOR ALLOWANCE OF OVERTIME COMPENSATION FOR THE TRAVEL TIME HERE INVOLVED.