B-186369, SEPTEMBER 22, 1977

B-186369, SEPTEMBER 22, 1977

EMPLOYEE OF MILITARY SEALIFT COMMAND TRAVELED APPROXIMATELY 61 MINUTES EACH WAY BY PRIVATE AUTOMOBILE FROM RESIDENCE TO TEMPORARY POST ABOARD SHIP LOCATED OUTSIDE LOCAL COMMUTING AREA BASED UPON ESTIMATES OF TRAVEL TIME SUPPLIED BY LOCAL POLICE, HIGHWAY, TRAFFIC AND SAFETY OFFICIALS. HOWEVER, ESTIMATES OF APPROXIMATE TRAVEL TIME DO NOT NECESSARILY REFLECT ACTUAL TIME REQUIRED BY CLAIMANT TO PERFORM THE TRAVEL IN QUESTION. ONE MINUTE IN EXCESS OF 1 HOUR, EACH WAY, IS DE MINIMIS AND OF INSUFFICIENT QUANTITY TO BE TRANSFORMED INTO COMPENSABLE OVERTIME.

JOHN F. ROMANN - OVERTIME COMPENSATION FOR TRAVEL TIME:

THIS ACTION IS IN RESPONSE TO AN APPEAL BY MR. JOHN F. ROMANN, AN EMPLOYEE OF THE MILITARY SEALIFT COMMAND, ATLANTIC (MSCLANT), DEPARTMENT OF THE NAVY, FROM OUR DECISION B-186369, DATED APRIL 22, 1977, WHICH SUSTAINED THE DISALLOWANCE OF HIS CLAIM BY OUR CLAIMS DIVISION FOR PAYMENT OF OVERTIME COMPENSATION FOR TIME SPENT IN TRAVEL BETWEEN HIS RESIDENCE AND TEMPORARY DUTY STATION ABOARD THE USNS MYER WHILE THE SHIP WAS BERTHED AT PERTH AMBOY, NEW JERSEY, DURING THE PERIOD JANUARY 9 THROUGH MARCH 7, 1973.

THE PERTINENT FACTS AND CIRCUMSTANCES SURROUNDING THE CLAIM WERE SET FORTH IN THE ABOVE-CITED DECISION AND WILL NOT BE REPEATED HERE EXCEPT WHERE PERTINENT TO RESOLUTION OF THE APPEAL. IN OUR DECISION OF APRIL 22, 1977, BASED UPON INFORMATION FURNISHED TO MR. ROMANN BY LOCAL POLICE, HIGHWAY, AND TRAFFIC AND SAFETY OFFICIALS, IT WAS STATED THAT HE TRAVELED APPROXIMATELY 61 MINUTES EACH WAY TO AND FROM THE SHIP. WE CONCLUDED AT PAGE 4 THAT "THE APPROXIMATE 2 MINUTES IN EXCESS OF 2 HOURS, EACH DAY, ARE DE MINIMIS AND THEREFORE OF INSUFFICIENT QUANTITY TO BE TRANSFORMED INTO COMPENSABLE OVERTIME."

IN HIS LETTER OF APPEAL DATED MAY 19, 1977, FORWARDED HERE BY LETTER OF MAY 23, 1977, BY THE HONORABLE FRED B. ROONEY, HOUSE OF REPRESENTATIVES, THE CLAIMANT CONTENDS THAT THE "EXTRA TWO MINUTES PER DAY" ARE NOT DE MINIMIS AND ARE COMPENSABLE AS OVERTIME. HE HAS SUBMITTED A COPY OF A PORTION OF AN AGREEMENT BY THE NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, DISTRICT NO. 1 - PACIFIC COAST DISTRICT, CONCERNING DRY CARGO VESSELS, DATED 1972-1975, WHICH PROVIDES, IN PART, THAT "OVERTIME, PENALTY TIME OR PREMIUM TIME PERFORMED IN EXCESS OF ONE (1) HOUR SHALL BE PAID FOR THE NEXT HOUR PERIOD FOLLOWING." MR. ROMANN STATES THAT PREVAILING PRACTICES WERE AND STILL ARE TO TREAT ANY OVERTIME IN EXCESS OF 1 HOUR AS THE "NEXT HOUR PERIOD FOLLOWING."

WITH RESPECT TO THE AGREEMENT OF THE NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, ALTHOUGH IT DOES STATE THAT OVERTIME PERFORMED IN EXCESS OF 1 HOUR "SHALL BE PAID FOR THE NEXT HOUR PERIOD FOLLOWING," NEITHER THE UNITED STATES NOR THE MILITARY SEALIFT COMMAND WAS A PARTY TO SUCH AGREEMENT AND CONSEQUENTLY IS NOT BOUND BY ITS PROVISIONS.

AS TO THE CONTENTION OF MR. ROMANN THAT THE PREVAILING PRACTICES IN THE MARITIME INDUSTRY WERE AND STILL ARE TO TREAT ANY OVERTIME IN EXCESS OF 1 HOUR AS THE "NEXT HOUR PERIOD FOLLOWING," INFORMAL CONTACT WITH OFFICIALS OF THE OFFICE OF THE COMMANDER, MILITARY SEALIFT COMMAND, REVEALS THAT THE DEPARTMENT OF THE NAVY DOES NOT CONSIDER TRAVEL TIME TO BE THE SAME AS OR SYNONYMOUS WITH OVERTIME WORK. SEE SECTION 2-12B OF THE CIVILIAN MARINE PERSONNEL INSTRUCTIONS 4650. THE AFORE CITED REGULATION PROVIDES THAT RELIEF ENGINEERS, SUCH AS THE CLAIMANT, ARE PAID FOR TRAVEL TIME AT THEIR HOURLY BASE RATES OF PAY FOR TRAVEL PERFORMED OUTSIDE THE LOCAL COMMUTING AREA WHEN REPORTING TO THE SHIP AND RETURNING FROM THE SHIP. TRAVEL TIME IS COMPUTED ON THE BASIS OF ACTUAL TIME REQUIRED TO PERFORM THE TRAVEL.

IN THE CIRCUMSTANCES INVOLVED IN THE INSTANT CLAIM, THE VARIOUS ESTIMATES OF TRAVEL TIME CONSTITUTING THE 61 MINUTES IN QUESTION, ALTHOUGH OBTAINED FROM RELIABLE SOURCES, ARE IN FACT APPROXIMATIONS OF TIME ESTIMATED AS BEING REQUIRED TO TRAVEL THE DISTANCE BETWEEN MR. ROMANN'S FORMER RESIDENCE IN UPPER MONTCLAIR, NEW JERSEY, AND HIS THEN TEMPORARY DUTY POST ABOARD THE USNS MYER BERTHED AT PERTH AMBOY, NEW JERSEY. THEREFORE, THE ESTIMATES OF TRAVEL TIME DO NOT NECESSARILY REFLECT THE ACTUAL TIME REQUIRED BY MR. ROMANN TO PERFORM THE TRAVEL IN QUESTION. FURTHER, THIS OFFICE CONSIDERS THE 1 MINUTE IN EXCESS OF 1 HOUR, EACH WAY, AS DE MINIMIS AND OF INSUFFICIENT QUANTITY UPON WHICH PAYMENT OF COMPENSATION MAY BE MADE. IN THIS REGARD, IT IS NOTED THAT IN HIS INITIAL CLAIM, MR. ROMANN STATED THAT HE DROVE HIS AUTOMOBILE THE 30 MILES EACH WAY BETWEEN HIS RESIDENCE AND THE SHIP IN 1 HOUR.

IN VIEW OF THE FOREGOING, OUR DECISION OF APRIL 22, 1977, B-186369, WHICH SUSTAINED THE DISALLOWANCE OF MR. ROMANN'S CLAIM FOR PAYMENT OF OVERTIME COMPENSATION, IS AFFIRMED.