B-163608, APRIL 29, 1968, 47 COMP. GEN. 607

B-163608, APRIL 29, 1968, 47 COMP. GEN. 607

COMPENSATION - OVERTIME - TRAVEL TIME - PERFORMANCE OF DUTY STATUS EMPLOYEES OF THE ATOMIC ENERGY COMMISSION, DESIGNATED ESCORTS TO PROTECT SECURITY SHIPMENTS, WHO PERFORM CONTINUAL, LONG DISTANCE, 24 HOURS A DAY TRAVEL ARE IN A "WORK WHILE TRAVELING" STATUS WITHIN THE CONTEMPLATION OF SECTION 222 (A) OF THE FEDERAL SALARY ACT OF 1967, AND 8 HOURS OF THE DAY ATTRIBUTABLE TO EATING AND SLEEPING, THE EMPLOYEES ARE ENTITLED TO PAYMENT OF REGULAR COMPENSATION FOR 8 HOURS AND OVERTIME FOR 8 HOURS FOR EACH FULL DAY OF TRAVEL. HOWEVER, UNDER SECTION 222 (A), THE EMPLOYEES WOULD NOT BE ENTITLED TO COMPENSATION FOR PERIODS OF WAITING AT AN OFFICIAL STATION OR AT ANY OTHER POINT OF DUTY. COMPENSATION - OVERTIME - TRAVEL TIME - PERFORMANCE OF DUTY STATUS AN ESCORT OF ATOMIC ENERGY COMMISSION SECURITY SHIPMENTS WHOSE DAY'S TRAVEL DOES NOT EXCEED 16 HOURS, INCLUDING "OFF-DUTY" PERIODS WHILE TRAVELING, IS ENTITLED TO COMPENSATION FOR ALL THE HOURS INVOLVED, INCLUDING THOSE IN "OFF-DUTY" STATUS. COMPENSATION - OVERTIME - TRAVEL TIME - PERFORMANCE OF DUTY STATUS AN ATOMIC ENERGY COMMISSION ESCORT OF SECURITY SHIPMENTS IN A TRAVEL STATUS FOR 22 HOURS AND IN AN OFF-DUTY STATUS FOR 2 HOURS DURING WHICH TIME HE WAS NOT TRAVELING IS ENTITLED TO PAYMENT FOR 16 HOURS, THE DEDUCTION OF 8 HOURS FROM THE 24-HOUR DAY WHICH IS ATTRIBUTABLE TO EATING AND SLEEPING INCLUDING THE 2 HOURS OFF-DUTY TIME, AND THE ADDITIONAL OFF- DUTY TIME WHILE TRAVELING IS COMPENSABLE AT REGULAR OR OVERTIME RATES AS APPROPRIATE. COMPENSATION - OVERTIME - TRAVEL TIME - PERFORMANCE OF DUTY STATUS THE TIME SPENT BY A CIVILIAN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS IN AN OVERNIGHT STAY AT A HOTEL OR MOTEL IS NOT COVERED BY SECTION 222 (A) OF THE FEDERAL SALARY ACT OF 1967. THEREFORE, AN ESCORT OF AN ATOMIC ENERGY COMMISSION SECURITY SHIPMENT WHO STAYED OVERNIGHT IN A HOTEL OR MOTEL FROM MIDNIGHT TO 6 A.M., THEN TRAVELING FROM 6 A.M. TO 6 P.M. WITHOUT AN INTERRUPTION OF TRAVEL FOR THE PURPOSE OF HAVING A MEAL, IS ENTITLED TO PAYMENT FOR THE 12 HOURS SPENT IN TRAVEL, COMPENSATED AT REGULAR OR OVERTIME RATES AS APPROPRIATE.

TO THE CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION, APRIL 29, 1968:

WE REFER TO THE LETTER OF THE GENERAL MANAGER, UNITED STATES ATOMIC ENERGY COMMISSION, DATED FEBRUARY 16, 1968, REQUESTING OUR ADVANCE DECISION WITH REGARD TO THE PROPER APPLICATION OF SECTION 222 (A) OF THE FEDERAL SALARY ACT OF 1967, TITLE II, PUBLIC LAW 90-206, AMENDING 5 U.S.C. 5542 (B) (2) (B), TO THE PAYMENT OF OVERTIME COMPENSATION WHILE TRAVELING TO EMPLOYEES OF THE ATOMIC ENERGY COMMISSION KNOWN AS ESCORTS.

YOUR GENERAL MANAGER DESCRIBES THE WORK OF ESCORTS AND THE REGULATIONS RELATING TO THEIR COMPENSATION AS FOLLOWS: * * * ESCORTS ARE AEC EMPLOYEES WHO PROVIDE PROTECTION (USUALLY ARMED) TO SHIPMENTS OF NUCLEAR MATERIALS AND OTHER ITEMS, AND INSURE THAT THE HANDLING OF MATERIAL AND EQUIPMENT, WHETHER UNDER NORMAL CONDITIONS OR IN EMERGENCIES, WILL NOT BE INJURIOUS TO HEALTH AND SAFETY. THEIR DUTIES CONTEMPLATE THAT THEY PERFORM THESE SECURITY SHIPMENT DUTIES DURING THE COURSE OF CONTINUAL, LONG DISTANCE TRAVEL. * * * OUR CURRENT INSTRUCTIONS GOVERNING THE HOURS OF WORK AND PREMIUM PAY FOR ESCORT PERSONNEL ARE SET FORTH IN AEC MANUAL CHAPTER 4136 (PARTICULARLY SECTION 4136-054C) AND AEC APPENDIX 4136, PART IX. * * * UNDER THOSE PROVISIONS THE BASIC WORKDAY OF AN AEC ESCORT ENGAGED IN SHIPMENT DUTIES IS THE FIRST 8 HOURS OF ACTUAL ENGAGEMENT IN ASSIGNED SHIPMENT DUTIES IN EACH CALENDAR DAY. THE BASIC WORKDAY NEED NOT COINCIDE WITH THE FIRST 8 HOURS FOLLOWING THE BEGINNING OF THE WORKDAY, AND, INDEED, IS OFTEN INTERRUPTED BY PERIODS OF OFF-DUTY REST, SLEEP, AND EATING. FOLLOWING THE BASIC WORKDAY OF 8 HOURS, ESCORTS ARE PAID OVERTIME FOR ANY PERIODS OF TIME IN WHICH THEY ACTUALLY WORK DURING THE CALENDAR DAY IN QUESTION. UNDER THESE AEC INSTRUCTIONS, ESCORTS ARE NOT PAID FOR PERIODS OF TIME IN WHICH THEY ARE SLEEPING OR EATING, OR NOT ENGAGED IN ACTUAL SHIPMENT DUTIES (AS DEFINED IN OUR INSTRUCTIONS). ON SO-CALLED DEADHEAD" RUNS IN WHICH THE INDIVIDUAL MAY PERFORM NO SHIPMENT DUTIES WHATSOEVER, THE EMPLOYEE IS PAID ONLY FOR THE 8 HOURS OF HIS REGULAR WORKDAY. BETWEEN SHIPMENTS, ESCORTS MAY TAKE LEAVE OR MAY BE ASSIGNED TO WHATEVER SECURITY OR OTHER ADMINISTRATIVE DUTIES MAY BE MADE AVAILABLE AT THEIR OFFICIAL DUTY STATIONS. THEY AVERAGE ONLY 3 TO 4 FULL DAYS A MONTH IN "OFFICE" DUTIES. AEC CURRENTLY HAS 78 EMPLOYEES IN POSITIONS ACTIVELY ENGAGED IN THE PROTECTION OF SECURITY SHIPMENTS MADE BY RAIL CAR, AUTOMOTIVE VEHICLE AND AIR. THIS INCLUDES 57 ESCORTS AT GS-6 AND 21 "CREW CHIEFS" AT GS-7 OR 8, WHO ARE IN CHARGE OF ONE OR MORE ESCORTS ASSIGNED TO A PARTICULAR TRIP BUT ARE NOT REGARDED AS SUPERVISORY PERSONNEL. THE GREAT MAJORITY OF TRIPS ORIGINATE IN FIVE AEC FIELD OFFICES--- ALBUQUERQUE, NEW MEXICO; OAK RIDGE, TENNESSEE; SAN FRANCISCO, CALIFORNIA; SAVANNAH RIVER, SOUTH CAROLINA; AND RICHLAND, WASHINGTON. TRIPS AVERAGE ABOUT 3 DAYS IN LENGTH AND ABOUT 3 EMPLOYEES, ON THE AVERAGE, ARE ASSIGNED TO EACH TRIP. OVER 90 PERCENT OF THE TRIPS ARE FOR THE PURPOSE OF TRANSPORTING MATERIALS, TYPICALLY BY RAIL OR MOTOR VEHICLE. THE REMAINDER ARE DOCUMENT TRIPS, ABOUT 90 PERCENT OF WHICH ARE SINGLE ESCORT TRIPS BY PLANE.

5 U.S.C. 5542 (B) (2) AS AMENDED BY SECTION 222 (A) OF THE FEDERAL SALARY ACT OF 1967 PROVIDES:

(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS---

(A) THE TIME SPENT IS WITHIN THE DAYS AND HOURS OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE EMPLOYEE, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS; OR

(B) THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (II) IS INCIDENT TO TRAVEL THAT 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.

THE PARTICULAR ITEM HERE IN QUESTION IS TRAVEL "INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING.' AS STATED IN YOUR GENERAL MANAGER'S LETTER, THE EXAMPLE USED TO ILLUSTRATE THE COVERAGE OF THAT LANGUAGE IN THE LEGISLATIVE HISTORY OF THE FEDERAL SALARY ACT OF 1967 DOES NOT RELATE TO EMPLOYEES PERFORMING DUTIES COMPARABLE TO THOSE PERFORMED BY THE ESCORTS HERE INVOLVED. WE NOTE, HOWEVER, THAT THE ILLUSTRATION CONTAINED ON PAGES 30 AND 31 OF S. REPT. NO. 801, 90TH CONG., 1ST SESS., DOES INVOLVE A TRUCK DRIVER WHOSE PRINCIPAL DUTY IS PERFORMING WORK WHILE TRAVELING. ON THE OTHER HAND, THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE PROVISION IN QUESTION THAT ANY PARTICULAR CLASS OR GROUP OF EMPLOYEES WOULD BE EXCLUDED FROM THE BENEFIT PROVIDED BECAUSE OF THE NATURE OF THEIR WORK. IN VIEW THEREOF, WE CANNOT CONCLUDE THAT ATOMIC ENERGY COMMISSION ESCORTS ARE TO BE EXCLUDED FROM THE BENEFITS PROVIDED BY SECTION 222 (A) OF THE FEDERAL SALARY ACT OF 1967.

ATOMIC ENERGY COMMISSION REGULATIONS PROVIDE THAT ESCORTS WILL NOT BE REQUIRED TO WORK FOR MORE THAN 16 HOURS PER DAY EXCEPT IN EMERGENCIES OR IN CASES INVOLVING UNUSUAL OPERATING OR SPECIAL SECURITY REQUIREMENTS. AEC APPENDIX 4136, PART IX.F.3. IN KEEPING WITH THAT REGULATION ESCORTS ARE ASSIGNED TO JOBS IN SUFFICIENT NUMBERS TO ALLOW FOR PERIODS OF SLEEP AND REST AND THE TRUCKS AND RAILCARS USED FOR TRANSPORTATION OF MATERIALS ARE EQUIPPED WITH SLEEPING ACCOMMODATIONS.

NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 222 (A) INDICATES THAT EMPLOYEES, AS A RESULT OF THE ENACTMENT OF THAT SECTION, WILL BE ENTITLED TO COMPENSATION FOR 24 HOURS A DAY EVEN THOUGH THEY ARE ABLE TO SPEND USUAL AMOUNTS OF TIME EATING AND SLEEPING. THEREFORE, PAYMENT OF COMPENSATION MAY NOT BE ALLOWED FOR EATING AND SLEEPING TIME (8 HOURS A DAY) MERELY BECAUSE THE EMPLOYEE WHILE EATING OR SLEEPING IS TRAVELING.

APPLYING THE FOREGOING TO THE QUESTIONS PRESENTED IN ENCLOSURE B TO THE GENERAL MANAGER'S LETTER, WHICH CONCERN THE NUMBER OF HOURS WHICH ARE TO BE REGARDED AS HOURS OF EMPLOYMENT FOR ESCORTS TRAVELING 24 HOURS EACH DAY IN A GOVERNMENT-OWNED RAILCAR DELIVERING MATERIALS OR RETURNING FROM DELIVERING MATERIALS, YOU ARE ADVISED THAT THE TOTAL OF SUCH HOURS WOULD AMOUNT TO 16 EACH DAY AFTER DEDUCTION OF 8 HOURS FOR EATING AND SLEEPING. THUS, SUCH ESCORTS UNDER THE CIRCUMSTANCES RELATED WOULD BE ENTITLED TO REGULAR COMPENSATION FOR 8 HOURS AND OVERTIME COMPENSATION FOR 8 HOURS FOR EACH FULL DAY OF TRAVEL. IT FOLLOWS THAT ALTERNATE "B" WHICH REQUIRES PAYMENT OF OVERTIME FOR "OFF DUTY" TRAVEL TIME EXCLUSIVE OF SLEEPING AND EATING TIME WOULD BE PROPER FOR USE IN COMPUTING THE AMOUNT DUE. INDICATED ABOVE WE BELIEVE THAT NO MORE THAN 8 HOURS PER DAY SHOULD BE CONSIDERED AS EATING AND SLEEPING TIME.

REGARDING QUESTION "A" PRESENTED IN ENCLOSURE C THE AMENDMENT CONTAINED IN SECTION 222 (A) APPLIES ONLY TO TIME SPENT IN ACTUAL TRAVEL AWAY FROM THE EMPLOYEE'S OFFICIAL STATION. THUS, THE RULES YOU HAVE PREVIOUSLY APPLIED TO PERIODS OF WAITING AT THE EMPLOYEE'S OFFICIAL STATION OR AT ANY OTHER POINT OF DUTY WOULD NOT BE CHANGED BY ENACTMENT OF THAT AMENDMENT. THE PERIODS OF WAITING INVOLVED IN QUESTION "A" OCCURRED BEFORE THE ESCORTS BEGAN TRAVEL AWAY FROM THEIR OFFICIAL STATION. THEREFORE, NO BENEFIT WOULD ACCRUE TO THEM UNDER THE AMENDMENT IN QUESTION.

QUESTION "B" RELATES TO "OFF-DUTY" PERIODS WHILE TRAVELING. ON THE DAY INVOLVED ESCORT "A" DID NOT BEGIN ESCORT WORK UNTIL 10:30 A.M. AND WAS TRAVELING (EITHER DRIVING IN ALERT STATUS OR OFF-DUTY) FOR THE REST OF THE DAY. SINCE TRAVEL TIME THAT DAY DID NOT EXCEED 16 HOURS, COMPENSATION SHOULD BE PAID FOR ALL HOURS INCLUDING THOSE IN "OFF-DUTY" STATUS.

QUESTIONS "C" AND "D" INVOLVE A DAY DURING WHICH ESCORT "A" WAS TRAVELING OR UNLOADING A SHIPMENT (THE LATTER FOR 24 MINUTES) FOR 22 HOURS, AND HAD 2 HOURS OF OFF-DUTY TIME WHEN HE WAS NOT TRAVELING. HE WOULD NOT BE ENTITLED TO COMPENSATION FOR THE 2 HOURS HE WAS OFF DUTY AND NOT TRAVELING OR FOR 6 HOURS OF OFF-DUTY TIME WHILE TRAVELING. THAT IS, THE 2 HOURS WAITING TIME AND OFF-DUTY HOURS ARE COMBINED TO ARRIVE AT NOT TO EXCEED THE 8 HOURS ATTRIBUTABLE TO SLEEPING AND EATING. THUS, ADDITIONAL OFF- DUTY TIME WHILE TRAVELING SHOULD BE COMPENSATED AT REGULAR OR OVERTIME RATES AS APPROPRIATE.

AS INDICATED ABOVE, TIME SPENT IN AN OVERNIGHT STAY AT A HOTEL OR MOTEL IS NOT COVERED BY THE AMENDMENT. ON THE FINAL DAY INVOLVED IN THE ESCORT'S TRIP HE WAS STAYING OVERNIGHT IN A HOTEL OR MOTEL FROM MIDNIGHT TO 6 A.M. HE BEGAN TRAVEL AT 6 A.M. AND COMPLETED TRAVEL AT 6 P.M. WITHOUT AN EXTENDED INTERRUPTION OF TRAVEL FOR THE PURPOSE OF HAVING A MEAL. THE FULL 12 HOURS SPENT TRAVELING ON THAT DAY WOULD BE COMPENSABLE AT REGULAR AND OVERTIME RATES AS APPROPRIATE. THE QUESTIONS PRESENTED IN ENCLOSURE C ARE ANSWERED ACCORDINGLY.