B-170409, OCT. 15, 1970

B-170409, OCT. 15, 1970

OVERTIME COMPENSATION - TRAVEL STATUS DECISION TO COMMANDANT, COAST GUARD, DENYING EMPLOYEE'S CLAIM FOR OVERTIME PAY FOR TRAVEL IN EXCESS OF NORMAL DUTY HOURS, INCIDENT TO OFFICIAL BUSINESS. COAST GUARD EMPLOYEE, WHO BECAUSE OF THE INFLEXIBILITY OF AIRLINE SCHEDULING AND THE UNCERTAINTY OF TIME REQUIRED TO PERFORM HIS MISSION FOR ANTENNA INSPECTIONS AT FIVE SITES IN ALASKA, WAS REQUIRED TO SPEND A NUMBER OF HOURS WAITING FOR TRANSPORTATION BETWEEN THE SITES, MAY NOT HAVE THE TIME REGARDED AS COMPENSABLE, EVEN THOUGH IT RESULTED FROM EVENTS THAT COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. STATUTORY PROVISIONS APPLY ONLY TO THE TIME ACTUALLY SPENT IN A TRAVEL STATUS, AND ALTHOUGH AN OFFICIAL NECESSITY EXISTED FOR THE INSPECTION, IT DOES NOT APPEAR TO HAVE BEEN OF AN URGENT NATURE, OR OF THE KIND OF EMERGENCY CONTEMPLATED BY THE LAW FOR WHICH OVERTIME TRAVEL MAY BE COMPENSATED. ACCORDINGLY OVERTIME PAY IS NOT AUTHORIZED.

TO COMMANDANT (FP-6), U.S. COAST GUARD, DEPARTMENT OF TRANSPORTATION:

REFERENCE IS MADE TO A LETTER OF JULY 20, 1970, FROM R. H. MILLS, AUTHORIZED CERTIFYING OFFICER, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT TO MR. FRANKLIN P. JONES, AN ANTENNA RIGGER, EMPLOYED BY THE U.S. COAST GUARD WITH HEADQUARTERS AT JUNEAU, ALASKA, OF OVERTIME PAY CLAIMED FOR TRAVEL PERFORMED INCIDENT TO OFFICIAL BUSINESS.

THE ABOVE LETTER MAKES REFERENCE TO THE FOLLOWING TWO PROVISIONS OF SECTION 222, PUBLIC LAW 90-206, NOW CODIFIED IN TITLE 5, U.S.C. IN PERTINENT PART AS FOLLOWS:

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"(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 *** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

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"(A) *** TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE SUBJECT TO THIS SUBSECTION IS NOT HOURS OF WORK UNLESS THE TRAVEL. *** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY." NOTHING IN THE RECORD INDICATES WHICH OF THE ABOVE SECTIONS APPLIES TO MR. JONES, BUT IN THE CIRCUMSTANCES DESCRIBED A DETERMINATION AS TO WHICH PROVISION IS SPECIFICALLY APPLICABLE IS UNNECESSARY BECAUSE OF THEIR SIMILARITY.

MR. JONES CLAIMS, IN HIS LETTER OF OCTOBER 13, 1969, COMPENSATION FOR 89- 1/2 HOURS OF OVERTIME TRAVEL UNDERTAKEN IN CONNECTION WITH THE INSPECTION OF LORAN C TOWERS AT FIVE SITES IN ALASKA DURING THE PERIOD APRIL 17, 1969, TO MAY 10, 1969. THE LOCATION OF THE SITES, AND THE ORDER IN WHICH THEY WERE INSPECTED, ARE AS FOLLOWS: PORT CLARENCE, ON THE SEWARD PENINSULA; ST. PAUL ISLAND, IN THE PRIBILOFS; POINT MCKENZIE, IN THE VICINITY OF ANCHORAGE; ATTU, THE FARTHEST WESTWARD ISLAND OF THE ALEUTIANS; AND SITKINAK, SOUTH OF KODIAK ISLAND.

A REVIEW OF MR. JONES' ITINERARY AND REFERENCE TO OFFICIAL AIRLINE GUIDES FOR THE TIME IN QUESTION SHOWS NO WAY THE MISSION COULD REASONABLY HAVE BEEN COMPLETED MORE EXPEDITIOUSLY THAN IT WAS. MR. JONES CLAIMS OVERTIME COMPENSATION FOR HIS TRAVEL ON THE FOLLOWING GROUNDS, AS STATED IN HIS LETTER:

"2. COMPENSATION IS JUSTIFIED FOR THE TRAVEL OVERTIME UNDER THE PROVISION OF SECTION 550.112(E) OF THE CIVIL SERVICE COMMISSION'S REGULATIONS, WHERE ALTHOUGH THE TRAVEL STATUS RESULTS FROM AN EVENT (THE INSPECTION) WHICH COULD BE SCHEDULED ADMINISTRATIVELY, THE TIMES AND DATES OF THE AVAILABLE TRANSPORTATION COULD NOT BE SCHEDULED ADMINISTRATIVELY BY THE COAST GUARD; AND FPM LETTER 610-4, WHICH STATES THAT 'IN SOME CASES NO AMOUNT OF AGENCY SCHEDULING WILL PREVENT AN EMPLOYEE FROM BEING REQUIRED TO TRAVEL OUTSIDE HIS REGULARLY SCHEDULED WORKWEEK, BUT WHEN THIS IS NECESSARY THE EMPLOYEE WILL BE COMPENSATED IN ACCORDANCE WITH SUBPART A OF PART 550'. IN THIS CASE, THE TIME IN TRAVEL STATUS OUTSIDE OF REGULAR SCHEDULED HOURS OF DUTY WAS THE RESULT OF THE ONLY TRANSPORTATION AVAILABLE, WITH NO WAY THAT THE EVENT OF INSPECTION COULD BE RESCHEDULED BY THE COAST GUARD TO AVOID OVERTIME TRAVEL."

THE EMPLOYEE COMPUTES THE 89-1/2 HOURS ON A BASIS OF 7-1/2 HOURS FOR EACH OF 4 DAYS; 8 HOURS FOR EACH OF 7 DAYS, AND 3-1/2 HOURS FOR 1 DAY. EXPLAINS THIS METHOD OF COMPUTATION AS FOLLOWS:

"4. ALTHOUGH THERE IS NO LIMITATION GIVEN AS TO THE MUMBER OF HOURS PER DAY IN TRAVEL STATUS TO BE COUNTED, WHEN COMPENSATION IS PAYABLE IN ACCORDANCE WITH 550.112(E) THE CLAIM HAS BEEN LIMITED TO THE EIGHT HOURS ALLOWABLE IN ACCORDANCE WITH COAST GUARD CIVILIAN PERSONNEL MANUAL CG-327, SECTION 550, PARAGRAPH 4B(3), PAGE 8."

WE NOTE THAT THE LEGISLATIVE HISTORY OF THE STATUTORY PROVISIONS HERE INVOLVED CLEARLY INDICATES THAT THEY WERE INTENDED TO APPLY ONLY TO TIME ACTUALLY SPENT TRAVELING. APPARENTLY, PART OF MR. JONES' CLAIM INCLUDES WAITING TIME WHICH WOULD NOT BE ALLOWABLE EVEN IF THE CLAIM OTHERWISE WAS PROPER. WE HAVE GIVEN CAREFUL CONSIDERATION TO MR. JONES' CONTENTION THAT THE GEOGRAPHICAL FACT OF DISTANCE BETWEEN WIDELY SCATTERED TEMPORARY DUTY STATIONS IN ALASKA COMBINED WITH INFLEXIBLE AIRLINE SCHEDULING CAUSES THE TRAVEL TO INSPECT COAST GUARD EQUIPMENT AT SUCH LOCATIONS TO COME WITHIN THE COMPENSABLE OVERTIME REQUIREMENT THAT IT "RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

IN B-163654, APRIL 19, 1968, WE STATED THAT IN ORDER FOR TRAVEL OUTSIDE NORMAL DUTY HOURS TO BE HELD COMPENSABLE BECAUSE IT RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY "THERE MUST HAVE EXISTED AN IMMEDIATE OFFICIAL NECESSITY OCCASIONED BY THE UNSCHEDULED AND ADMINISTRATIVELY UNCONTROLLABLE EVENT. *** " ALTHOUGH IN THIS CASE AN OFFICIAL NECESSITY EXISTED FOR THE INSPECTION OF THE LORAN STATIONS, IT MAY NOT BE REGARDED AS IMMEDIATE. TRAVEL ORDERS FOR MR. JONES WERE DATED APRIL 8, 1969, BUT TRAVEL DID NOT BEGIN UNTIL APRIL 17. ACCORDINGLY, THE INSPECTIONS WOULD NOT APPEAR TO HAVE BEEN OF SO URGENT A NATURE OR OF THE KIND OF EMERGENCY CONTEMPLATED BY THE LAW FOR WHICH NECESSARY OVERTIME TRAVEL MAY BE COMPENSATED.

FURTHER, THE EVENTS - INSPECTION OF EQUIPMENT AT COAST GUARD STATIONS - WERE NOT SO FREE FROM ADMINISTRATIVE CONTROL AND SCHEDULING AS TO DISTINGUISH THEM FROM OTHER CASES IN WHICH WE HAVE DISALLOWED COMPENSATION FOR OVERTIME TRAVEL UNDER THE CITED STATUTE. SEE B 164353, OCTOBER 21, 1969; B-167614, 49 COMP. GEN. 209 (1969); B-168948, APRIL 8, 1970; AND B- 160928, APRIL 16, 1970, COPIES ENCLOSED.

THEREFORE, WE ARE IN AGREEMENT WITH YOUR VIEW THAT NONE OF THE TRAVEL PERFORMED IS OF THE KIND FOR WHICH OVERTIME COMPENSATION IS ALLOWABLE UNDER EITHER OF THE PROVISIONS OF LAW CITED AND NO BASIS EXISTS UPON WHICH MR. JONES' CLAIM MAY BE ALLOWED.