B-144558, AUG. 24, 1961

B-144558, AUG. 24, 1961

TO MR. ROBERT S. ORINGEL:

YOUR LETTER OF NOVEMBER 9, 1960, APPEALS OUR CLAIMS DIVISION SETTLEMENT DATED OCTOBER 26, 1960, WHICH, FOR THE REASONS STATED THEREIN, DISALLOWED YOUR CLAIM OF OVERTIME COMPENSATION FOR THE SERVICES YOU PERFORMED WHILE IN A TRAVEL AND DUTY STATUS DURING THE PERIODS AUGUST 13 TO 16, AND SEPTEMBER 19 TO 22, 1959, AS AN EMPLOYEE OF THE UNITED STATES INFORMATION AGENCY. ALSO WE HAVE YOUR LETTER OF JANUARY 18, 1961, SUPPLYING COLLATERAL INFORMATION CONCERNING THE CLAIM OF MR. BERNARD SINGER, ONE OF YOUR CO-WORKERS.

YOUR CLAIM DATED SEPTEMBER 8, 1960, TOGETHER WITH YOUR INTRA-AGENCY MEMORANDA DATED AUGUST 25, 1959, AND SEPTEMBER 29, 1959, CLAIMING OVERTIME PAY FOR CERTAIN PORTIONS OF THE ABOVE PERIODS, EXPRESSLY IS PREDICATED UPON THE LOG AND TIME SHEETS YOU PREPARED AT THE CONCLUSION OF YOUR TRIPS TO PENSACOLA, FLORIDA, IN AUGUST, AND TO HARTFORD, CONNECTICUT, IN SEPTEMBER, 1959.

YOUR LETTER OF NOVEMBER 9 CITES SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AUTHORITY FOR PAYMENT OF YOUR CLAIM. HOWEVER, SUBSECTION 102 (C) OF THAT ACT, 5 U.S.C. 902 (C), PROVIDES THAT THE PROVISIONS OF THAT ACT SHALL NOT APPLY TO EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED AND ADJUSTED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE. HENCE, THE OVERTIME PROVISIONS OF SECTION 201 OF THE 1945 ACT, AS AMENDED, 5 U.S.C. 911, HAVE NO APPLICATION TO THE SERVICES HERE IN QUESTION. SUCH SERVICES WERE PERFORMED BY YOU AS FIELD TECHNICIAN IN THE HOURLY WAGE POSITION "WB-B-2, $3.79 PH.' ALTHOUGH PART OF SECTION 201 WAS QUOTED IN THE SETTLEMENT THAT FACT WOULD NOT VITIATE THE DISALLOWANCE OF YOUR CLAIM.

THE RULE IS WELL ESTABLISHED THAT, IN THE ABSENCE OF A STATUTE OR ADMINISTRATIVE REGULATION PROVIDING TO THE CONTRARY, WAGE BOARD EMPLOYEES, GENERALLY, ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR TRAVEL TIME OUTSIDE THEIR SCHEDULED HOURS OF DUTY ON ANY SCHEDULED WORKING DAY. COMPARE 34 COMP. GEN. 210; 27 ID. 613.

IN THE MATTER OF THE MERITS OF YOUR CLAIM WAS OBTAINED FROM THE DOMESTIC PERSONNEL OFFICE OF THE AGENCY A REPORT EXPLAINING THE NATURE OF YOUR WORK AND YOUR DAY TO DAY ASSIGNMENTS OR DUTY AS SCHEDULED, WITH PARTICULAR REFERENCE TO THE PERIODS OF YOUR CLAIM. ALSO, AS REQUESTED IN YOUR LETTER OF NOVEMBER 9, 1960, REPRESENTATIVES OF THIS OFFICE CONFERRED WITH YOU ON APRIL 19, 1961, SO THAT ALL FACTS PERTINENT TO YOUR CLAIM MIGHT BE CONSIDERED. AT THAT CONFERENCE YOU OFFERED ADDITIONAL LONG-SHEETS AS FURTHER EVIDENCE OF THE MERITS OF YOUR CLAIM.

ON AUGUST 1, 1961, THE AGENCY'S BROADCASTING SERVICE ADVISED US AS FOLLOWS:

"THE BASIC ISSUE WHEN BOILED DOWN IS THE DEFINITION OF "NECESSARY WORK" FOR PURPOSES OF ADMINISTRATIVELY APPROVING OVERTIME COMPENSATION FOR FIELD TECHNICIANS WHILE IN TRAVEL STATUS. THE SUPERVISOR DETERMINES PRIOR TO TRAVEL OF A TECHNICIAN ON SPECIAL EVENTS COVERAGE THE BASIC NUMBER OF HOURS THE ASSIGNMENT WOULD SEEM TO REQUIRE. ADVANCE APPROVAL OF A NOT TO EXCEED AMOUNT OF OVERTIME IS THEN AUTHORIZED ON THE TRAVEL ORDER. SUBSEQUENTLY, WHEN EXCEPTIONAL CIRCUMSTANCES REQUIRE UNANTICIPATED ADDITIONAL WORK, POST APPROVAL IS RECOMMENDED BY THE SUPERVISOR FOR APPROVAL BY THE IBS ADMINISTRATIVE OFFICER COVERING THE ADDITIONAL NECESSARY WORK PERFORMED. THE BASIS ON WHICH OVERTIME IS AUTHORIZED TAKES INTO CONSIDERATION SUCH NECESSARY WORK AS SETTING UP OF EQUIPMENT, PERFORMING TEST RECORDINGS, RECORDING ACTUAL EVENTS, DISMANTLING EQUIPMENT, AND WHEN NECESSARY, HANDLING LINE FEEDS TO WASHINGTON. THE PROBLEM HAS BEEN THAT THE CLAIMANT EMPLOYEES BASE THEIR OVERTIME CLAIMS ON THE ABOVE FACTORS, BUT IN ADDITION INCLUDE AS "WORK" SUCH THINGS AS TIME TRAVELLING FROM HOME TO AIRPORT, TIME IN ACTUAL FLIGHT TO TDY LOCATION, TAXI TIME BETWEEN HOTELS AND EVENT SITE. FURTHERMORE, THE CLAIMANTS HAVE IN THE OPINION OF KNOWLEDGEABLE PROFESSIONAL SUPERVISORS REPORTED EXCESSIVE AMOUNTS OF TIME AS BEING NECESSARY TO PERFORMANCE OF WORK SEGMENTS SUCH AS TEST RECORDING, "SET-UP" AND "TAKE-DOWN," LOCAL BUILDING ACCESS ARRANGEMENTS, ETC. THESE ITEMS ARE NOT INTERPRETED BY THE AGENCY AS NECESSARY WORK FOR THE PURPOSE OF PAYMENT OF OVERTIME COMPENSATION. THEY ARE PERMITTED, HOWEVER, TO MAKE UP THE FULL 40 HOUR WORK WEEK WHEN EMPLOYEES ACTUALLY HAVE NOT PERFORMED 40 HOURS OF "NECESSARY WORK" AS DESCRIBED ABOVE. OVERTIME COMPENSATION IS, OF COURSE, AUTHORIZED WHEN NECESSARY WORK IS REQUIRED OF AN EMPLOYEE ON HIS DAY OFF. FIELD TECHNICIANS MAINTAIN LOGS OF THEIR DAILY ACTIVITIES. THESE LOGS SERVE THE PURPOSE OF PROVIDING EASY REFERENCE FOR PURPOSES OF TIME AND ATTENDANCE REPORTS, OBVIOUSLY, BUT THE EMPLOYEE'S ENTRY CANNOT CONSIDERED BY AGENCY SUPERVISORS TO BE THE FINAL DETERMINATION ON WHAT DOES OR DOES NOT CONSTITUTE NECESSARY WORK.'

IN VIEW OF THAT REPORT, AND SINCE WE UNDERSTAND THE AGENCY HAS MADE PAYMENT TO YOU FOR ALL AUTHORIZED OR APPROVED OVERTIME WORK ADMINISTRATIVELY DETERMINED TO BE "NECESSARY WORK," THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.