B-177230, FEB 6, 1973, 52 COMP GEN 491

B-177230, FEB 6, 1973, 52 COMP GEN 491

COMPENSATION - OVERTIME - TRAVEL TIME - PERFORMANCE OF WORK STATUS THE TIME SPENT BY AN EMPLOYEE AFTER HIS NORMALLY SCHEDULED DUTY HOURS IN TAKING CARE OF A GOVERNMENT VEHICLE WHICH BROKE DOWN WHILE IN USE BY HIM IS NOT COMPENSABLE AS OVERTIME UNDER 5 U.S.C. 5542(B)(2)(B), EVEN THOUGH THE EMPLOYEE TOOK STEPS TO PROTECT THE VEHICLE BEYOND THE STANDARD ESTABLISHED BY GSA REGULATION (41 CFR 101-39.701). THE FACT THAT THE EMPLOYEE WAS REQUIRED TO DO MORE THAN MERE DRIVING AND INCIDENTAL CARE OF THE VEHICLE DOES NOT CONSITUTE "THE PERFORMANCE OF WORK WHILE TRAVELING," NOR DID THE RESPONSIBILITY PLACED ON THE EMPLOYEE UNDER THE GSA REGULATION REQUIRE HIM TO TAKE ADDITIONAL STEPS TO PROTECT THE VEHICLE. THEREFORE, THE TIME AND EFFORT EXPENDED BY THE EMPLOYEE THAT WAS BEYOND THE STANDARD OF CARE REQUIRED UNDER THE REGULATION TO PROTECT THE VEHICLE ENTRUSTED TO HIM IS NOT COMPENSABLE AS WORK AND DOES NOT PROVIDE A BASIS FOR PAYMENT OF PREMIUM COMPENSATION.

TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, FEBRUARY 6, 1973:

WE REFER TO A LETTER DATED OCTOBER 4, 1972, FROM MR. GEORGE U. CARNEAL, JR., GENERAL COUNSEL OF THE FEDERAL AVIATION ADMINISTRATION, REQUESTING OUR OPINION AS TO WHETHER TIME SPENT BY MR. KENNETH F. FREEMAN, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA), AFTER HIS NORMALLY SCHEDULED DUTY HOURS, IN TAKING CARE OF A GOVERNMENT VEHICLE WHICH BROKE DOWN WHILE IN USE BY HIM IS COMPENSABLE AS OVERTIME UNDER 5 U.S.C. 5542(B)(2)(B) OR ANY OTHER PROVISION OF LAW.

THE LETTER OF OCTOBER 4, 1972, STATED THAT:

MR. KENNETH F. FREEMAN, EMPLOYED BY FAA AS A FIXED INDUSTRIAL EQUIPMENT MECHANIC, WAS RETURNING TO HIS TULSA, OKLAHOM OFFICIAL DUTY STATION VIA THE TULSA-MASKOGEE TURNPIKE AT ABOUT 6:00 P.M. ON 2 SEPTEMBER 1971 IN A GSA VEHICLE, WHEN HE NOTICED A LOW VOLTAGE PROBLEM. HE STOPPED THE CAR, AND, AFTER CHECKING, FOUND THAT THE ALTERNATOR ON THE VEHICLE HAD GIVEN OUT. BEING UNABLE TO RESTART THE VEHICLE, MR. FREEMAN HIRED A MAN TO TAKE HIM TO WEBBER FALLS, OKLAHOMA, A DISTANCE OF SIX MILES, TO SECURE JUMPER CABLES AND TO RETURN HIM TO THE AILING VEHICLE. AFTER RESTARTING THE VEHICLE WITH THE AID OF THE JUMPER CABLES, MR. FREEMAN DROVE AS FAR AS BROKEN ARROW, OKLAHOMA, BEFORE IT GOT TOO DARK FOR DRIVING WITHOUT HEADLIGHTS. (SINCE THE ALTERNATOR WAS NOT WORKING, THE EXHAUSTED BATTERY COULD NOT SUPPLY CURRENT FOR THE HEADLIGHTS.) MR. FREEMAN THEN CONTACTED THE GSA MOTOR POOL CHIEF, WHO DROVE HIM TO HIS OFFICIAL STATION, ARRIVING BY 10:15 P.M. THAT EVENING. MR. FREEMAN'S NORMAL TOUR OF DUTY IS 8:30 A.M. TO 5:00 P.M. MONDAY THROUGH FRIDAY.

IT IS THE VIEW OF YOUR GENERAL COUNSEL THAT MR. FREEMAN'S ACTIONS AFTER THE MALFUNCTIONING OF THE CAR CONSTITUTED "WORK WHILE TRAVELING" WITHIN 5 U.S.C. 5542 WHICH STATES IN PERTINENT PART AS FOLLOWS:

SEC. 5542. OVERTIME RATES; COMPUTATION.

(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES:

(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 (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.

IN OUR DECISION OF MAY 11, 1972, 51 COMP. GEN. 727, COPY ENCLOSED, THIS OFFICE PRESENTED A DETAILED ANALYSIS OF THE SCOPE AND IMPORT OF 5 U.S.C. 5542. APPLYING THE PRINCIPLES CONTAINED IN THAT DECISION, IT DOES NOT APPEAR THAT MR. FREEMAN WOULD BE ENTITLED TO OVERTIME COMPENSATION UNDER THE AUTHORITY OF 5 U.S.C. 5542, SUPRA.

IT IS RECOGNIZED BY YOUR GENERAL COUNSEL IN THE SUBMISSION OF THE QUESTION THAT DRIVING AND INCIDENTAL CARE OF A VEHICLE IN WORKING ORDER DURING NONDUTY HOURS HAS NEVER BEEN HELD TO CONSTITUTE "THE PERFORMANCE OF WORK WHILE TRAVELING." HOWEVER, IT IS URGED THAT IN VIEW OF THE PROVISIONS OF THE GSA REGULATIONS QUOTED BELOW, 41 CFR 101-39.701, THAT MR. FREEMAN UNDER THE CIRCUMSTANCES INVOLVED WAS REQUIRED TO DO MORE THAN MERE DRIVING AND INCIDENTAL CARE AND, ACCORDINGLY, SHOULD BE CONSIDERED AS PERFORMING WORK WHILE TRAVELING.

THE REGULATION PROVIDES:

SEC. 101-39.701 GENERAL.

ANY OFFICIAL OR EMPLOYEE ISSUED A MOTOR VEHICLE FROM A MOTOR POOL SYSTEM SHALL BE RESPONSIBLE FOR EXERCISING REASONABLE DILIGENCE IN THE CARE OF THE VEHICLE AT ALL TIMES. FAILURE TO TAKE PROPER CARE OF A VEHICLE MAY BE CONSIDERED AS JUSTIFICATION FOR REFUSAL OF FURTHER VEHICLE ISSUANCE TO SUCH OFFICIAL OR EMPLOYEE AFTER REASONABLE NOTICE TO THE HEAD OF THE LOCAL ACTIVITY CONCERNED.

IT IS OUR VIEW THAT THE RESPONSIBILITY PLACED UPON THE USER OF A GOVERNMENT VEHICLE BY THE ABOVE-QUOTED REGULATORY PROVISION DOES NOT REQUIRE THE USER TO DO MORE THAN TAKE THOSE REASONABLE STEPS NEEDED TO INSURE PROTECTION OF THE VEHICLE WHEN AN OPERATIONAL DIFFICULTY OCCURS. THESE REASONABLE STEPS WOULD ENTAIL NOTIFYING THE PROPER AUTHORITIES OF THE PROBLEM ENCOUNTERED, RETURNING THE VEHICLE TO A MOTOR POOL OR, IF NOT FEASIBLE, EITHER TAKING IT TO AN APPROVED REPAIR SHOP OR LEAVING IT AT THE SIDE OF THE ROAD PROTECTED FROM ONCOMING TRAFFIC.

WHILE IT MAY BE ASSERTED THAT THE ADDITIONAL STEPS TAKEN BY MR. FREEMAN WERE REASONABLE (FOR EXAMPLE, HIRING AN INDIVIDUAL TO TAKE HIM TO A NEARBY TOWN TO PROCURE JUMPER CABLES AND RETURN TO THE VEHICLE) AND WOULD BE APPROPRIATE FOR CONSIDERATION IN CONNECTION WITH PAYMENTS OF PER DIEM, IT NEVERTHELESS REMAINS THAT SUCH ACTIONS WERE BEYOND THOSE REQUIRED BY THE COGNIZANT REGULATIONS. CF. 42 COMP. GEN. 436(1963).

INSOFAR AS 41 CFR 101-39.701 IS CONCERNED, WE FEEL THAT A PROVISION, SUCH AS HERE INVOLVED, WHICH WAS PROMULGATED TO ESTABLISH A STANDARD OF CARE FOR THE USE OF GOVERNMENT VEHICLES, CANNOT BE TRANSLATED INTO A BASIS FOR PROVIDING PREMIUM COMPENSATION TO EMPLOYEES WHO TAKE ADDITIONAL STEPS TO PROTECT A VEHICLE ENTRUSTED TO THEIR CUSTODY. IN CASES SUCH AS HERE INVOLVED, THE EMPLOYEE'S OBLIGATION TO THE GOVERNMENT IS FULFILLED WHEN THOSE BASIC PRECAUTIONARY ACTIONS, DESCRIBED ABOVE, HAVE BEEN TAKEN. THE TIME AND EFFORT EXPENDED BY AN EMPLOYEE IN THE PURSUIT OF MEASURES NOT SO REQUIRED IS NOT DEEMED AS BEING COMPENSABLE AS WORK.

IN VIEW OF THE FOREGOING WE PERCEIVE NO BASIS UPON WHICH MR. FREEMAN IS ENTITLED TO OVERTIME COMPENSATION AS A RESULT OF THE CIRCUMSTANCE HEREINABOVE DESCRIBED.