B-233562, Oct 10, 1989, 69 Comp.Gen. 17

B-233562, Oct 10, 1989, 69 Comp.Gen. 17

CIVILIAN PERSONNEL - Compensation - Labor standards - Exemptions 1. Pursuant to 4 C.F.R. part 22, an agency and a union jointly request a determination from the Comptroller General on the exempt/nonexempt status for overtime compensation under the Fair Labor Standards Act (FLSA) of a grade GS-12 Audio Visual Production Officer. Since the Office of Personnel Management has the authority to administer the FLSA under 29 U.S.C. Sec. 204(f) (1982) for federal employees, including the authority to make final determinations as to whether employees are covered by its various provisions, the General Accounting Office will not consider overtime claims under FLSA where the employee's position has been classified by OPM as exempt. Appeals of classification status should be directed to OPM. CIVILIAN PERSONNEL - Compensation - Overtime - Claims - Statutes of limitation 2. The fact that an employee's grievance concerning overtime pay was untimely filed under the terms of a collective bargaining agreement does not preclude consideration of his claim for such pay by the General Accounting Office provided it is filed within the 6 years prescribed in 31 U.S.C. Sec. 3702. CIVILIAN PERSONNEL - Compensation - Overtime - Eligibility - Travel time 3. Entitlement to overtime compensation by federal employees while in a travel status under 5 U.S.C. Sec. 5542(b)(2)(B)(iv) requires that travel result from an event which could not be scheduled or controlled administratively. Travel performed by an employee to attend an event scheduled and conducted by the employee's agency clearly does not meet this requirement, and the employee may not be paid overtime compensation for that travel.

Morris Norris - Claim for Overtime Compensation:

This decision is in response to a joint request pursuant to the labor- management relations procedures set forth in 4 C.F.R. part 22 (1988) from the Department of the Army (Army), Headquarters United States Army Infantry Center, Fort Benning, Georgia, and the American Federation of Government Employees (AFGE), Local 54. The parties request a decision as to whether Mr. Morris Norris, a grade GS-1071-12 Audio Visual Production Officer employed by the Army at Fort Benning, and classified as exempt from the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201 et seq. (1982), is entitled to overtime compensation under either 5 U.S.C. Sec. 5542 (1982) or the FLSA. We hold that, in the circumstances presented here, Mr. Norris is not entitled to overtime compensation.

BACKGROUND

Mr. Norris was directed to perform temporary duty at Yakima, Washington, during May 11-17, 1987, and then again during October 1-17, 1987. His work involved the filming of exercises conducted by the Army. Mr. Norris filed claims for overtime based upon each trip. The agency denied a total of 27.75 hours of claimed overtime for both trips. Those hours represented overtime claimed by Mr. Norris for in flight time, weekend travel, travel to the airport and check-in for flights, missed lunch hours, and travel to the worksite at the start of the day.

On December 9, 1987, Mr. Norris filed a grievance pursuant to the negotiated grievance procedure in which he requested to be paid for the unpaid hours. The grievance was denied through the fourth step. The AFGE requested appointment of an arbitrator. On the day prior to the scheduled arbitration, the parties agreed upon a settlement whereby the following issues would be submitted to the Comptroller General for an opinion:

1. Does the fact that the grievance concerning overtime resulting from the May trip was filed untimely under the collective bargaining agreement between the AFGE and the Army bar our Office from considering the May overtime claims?

2. Is the position of Audio Visual Production Officer, grade GS 1071-12, occupied by Mr. Norris, properly classified as exempt from the FLSA? not, may the overtime claims be paid under the provisions of the FLSA?

3. Are Mr. Norris's claims for overtime payable under the provisions of title 5 of the United States Code?

OPINION

Timeliness Limitation

The Army objects to consideration by our Office of overtime compensation resulting from Mr. Norris's May trip as it claims Mr. Norris's grievance was filed untimely under the collective bargaining agreement. limitation period incorporated in a collective bargaining agreement not based upon a statute or regulation binding on our Office does not serve as a bar to a review by our Office of the underlying substantive issues raised. The limitation controlling our Office is the 6-year period contained in 31 U.S.C. Sec. 3702 (1982). Since the claim for overtime was filed with our Office within that 6-year period, it is not time-barred.

Exemption of Coverage Under FLSA

In addition to overtime provisions applicable to federal employees set forth in title 5 of the United States Code, the federal government in its status as an employer is subject to provisions of the FLSA. /1/ However, certain employees are exempted from coverage under the FLSA, including "administrative employees" whose positions meet certain requirements. See 29 U.S.C. Sec. 213(a)(1) and 5 C.F.R. Sec. 551.205 (1986). We have been informally advised by the Office of Personnel Management (OPM) that it has classified the position of Audio Visual Production Officer (Code 1071) as exempt under the FLSA since employees in that position are such "administrative employees."

Under 29 U.S.C. Sec. 204(f), OPM is authorized to administer the FLSA with respect to federal employees. We have consistently declined to review OPM's determinations as to an employee's exempt or nonexempt status. See International Association of Firefighters, Local F-48, B-226136, July 13, 1987, and cases cited. Accordingly, we will not consider Mr. Norris's claims under the FLSA. Any question concerning the propriety of the exempt classification should be directed to OPM.

Title 5 Overtime

The general rule regarding overtime pay is that employees may not be compensated for time spent on official travel outside their scheduled duty hours. See 5 U.S.C. Sec. 5542; 55 Comp.Gen. 629, 632 (1976). Under the provisions of 5 U.S.C. Sec. 5542(b)(2)(B), time spent in a travel status away from an employee's official duty station may be hours of employment only if the travel (a) involves the performance of work while traveling, (b) is incident to travel that involves the performance of work while traveling, (c) is carried out under arduous conditions, or (d) results from an event which could not be scheduled or controlled administratively, including travel by an employee to or from such an event.

Mr. Norris first claims overtime on the basis that his travel involved the performance of work while traveling. Travel which involves the performance of work while traveling generally means work which can only be performed while traveling or work which an agency requires an employee to perform while traveling. See Federal Personnel Manual Supplement 990.2, Subchapter S1-3.

The hours claimed by Mr. Norris for the check-in for flights and the in- flight time did not involve the performance of work while traveling contemplated by the statute. The record indicates that Mr. Norris was directed to have accompanying military personnel handle the government equipment during the trips. He was not required to ensure the physical integrity of the equipment transported at each step of the travel. Also, although Mr. Norris claims he spent his traveltime reading and familiarizing himself with scripts, such activities could have been performed while not traveling, and he was not ordered by the agency to perform such activities while traveling. Finally, there is no authority to compensate Mr. Norris for the hours he has claimed for weekend travel, travel to the airport and to the worksite at the start of the day, or for missed lunch hours due to travel, since he was not actually performing work during those periods.

Mr. Norris also contends that his overtime claims were based upon travel which resulted from an event which could not be scheduled or controlled administratively. For an event to qualify as administratively uncontrollable under 5 U.S.C. Sec. 5542(b)(2)(B)(iv), there must be a total lack of government control. 51 Comp.Gen. 727 (1972); Hankins and Archie, B-210065, Apr. 2, 1984; Mark Burstein, B-172671, Mar. 8, 1977; Barth and Levine v. United States, 568 F.2d 1329 (Ct.Cl. 1978). Here, Mr. Norris attended and filmed events which were scheduled and conducted by and under the total control of the Department of the Army, his employing agency. This clearly precludes a finding of lack of government control, and thus the travel does not fall within the exception authorized by 5 U.S.C. Sec. 5542(b)(2)(B)(iv).

Mr. Norris's requests for overtime compensation are denied accordingly.

/1/ See 29 U.S.C. Secs. 203(d), (e) and (x).