B-177438, MAR 28, 1973

B-177438, MAR 28, 1973

CIVILIAN EMPLOYEE - OVERTIME COMPENSATION - TRAVEL NOT INCIDENT TO WORK DECISION CONCERNING THE OVERTIME CLAIMS OF 32 WAGE BOARD EMPLOYEES OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION'S HARLINGEN, TEXAS OFFICE. SINCE THE EMPLOYEES WERE NOT REQUIRED TO REPORT FOR WORK AT 7:30 A.M., AND DID SO ONLY TO AVAIL THEMSELVES OF GOVERNMENT TRANSPORTATION TO THE JOB SITE, AND SINCE NO SANCTION ATTENDED AN EMPLOYEE'S FAILURE TO REPORT AT THAT TIME, THE EARLY REPORTING CANNOT BE VIEWED AS HOURS OF WORK OFFICIALLY APPROVED OR ORDERED. THUS, PAYMENT OF OVERTIME PAY WOULD BE PRECLUDED UNDER 5 U.S.C. 5544. C.F. BAYLOR V. UNITED STATES, CT. CL. NO. 109-67 (MAY 12, 1972). ALSO, THE TRAVEL FROM THE HARLINGEN OFFICE TO THE JOB SITE DOES NOT CONSTITUTE AN INHERENT OR INCIDENTAL PART OF THE EMPLOYEE'S REGULAR WORK SO AS TO QUALIFY FOR OVERTIME COMPENSATION. COMP. GEN. 273 (1963). ACCORDINGLY, THE CLAIMS ARE DISALLOWED.

TO MR. JOHN B. MOORE:

WE REFER TO YOUR LETTER OF NOVEMBER 10, 1972, AND ENCLOSURES, REGARDING THE OVERTIME CLAIMS OF 32 WAGE BOARD EMPLOYEES OF YOUR COMMISSION'S HARLINGEN, TEXAS OFFICE, AND REQUESTING OUR DETERMINATION THEREON.

THE CLAIMS ARISE IN CONNECTION WITH EARLY REPORTING PRACTICES PRIOR TO JULY 15, 1970. FOR THE PERIOD INVOLVED, CLAIMANTS' OFFICIAL DUTY HOURS WERE FROM 8 A.M. TO 5 P.M. WITH 1 HOUR FOR LUNCH. HOWEVER, THEY IN FACT REPORTED AT 7:30 A.M. TO THE HARLINGEN OFFICE WHERE THEY WERE PROVIDED TRANSPORTATION TO THE WORKSITE BY GOVERNMENT-OWNED TRUCKS DRIVEN BY THOSE OF THE CLAIMANTS EMPLOYED AS TRUCK DRIVERS. THE EMPLOYEES INVOLVED PERFORMED NO FUNCTIONS AT THE HARLINGEN OFFICE OTHER THAN MAY HAVE BEEN INVOLVED IN BOARDING OR DRIVING TRUCKS AND LOADING A FEW TOOLS. RETURN TRAVEL BETWEEN THE WORKSITE AND THE OFFICE WAS ACCOMPLISHED WITHIN THE EMPLOYEES' REGULAR DUTY HOURS AND IS THEREFORE NOT THE SUBJECT OF THEIR CLAIM. SINCE JULY 15, 1970, TRAVEL BOTH TO AND FROM THE WORKSITE HAS BEEN SCHEDULED WITHIN THE EMPLOYEES' REGULAR DUTY HOURS AS PROVIDED IN THEIR NEGOTIATED UNION AGREEMENT WHICH BECAME EFFECTIVE ON THAT DATE. THE CLAIMANTS, WE HAVE BEEN ADVISED INFORMALLY, ARE WAGE BOARD EMPLOYEES.

YOU STATE THAT IN FACT NO REGULATION OR POLICY OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION REQUIRED THE EMPLOYEES TO REPORT FIRST TO THE HARLINGEN OFFICE RATHER THAN DIRECTLY TO THE WORKSITE, HOWEVER, THAT SUCH WAS THE PRACTICE TO PERMIT EMPLOYEES TO AVAIL THEMSELVES OF GOVERNMENT TRANSPORTATION. HAD THEY WISHED, THE EMPLOYEES COULD HAVE REPORTED DIRECTLY TO THE WORK SITES. YOU CITE IN THIS REGARD AT LEAST TWO INSTANCES IN WHICH THE PRACTICE WAS QUESTIONED BY TRUCK DRIVERS. THEY WERE ADVISED THAT THEY HAD THE OPTION OF REPORTING DIRECTLY TO THE JOB SITE RATHER THAN REPORTING TO HEADQUARTERS AND DRIVING THE TRUCKS. YOU POINT OUT THAT THE TRUCKS COULD HAVE BEEN DRIVEN BY OTHER EMPLOYEES OR LEFT AT THE WORKSITE. FURTHER YOU INDICATE THAT NO SANCTION ATTENDED AN EMPLOYEE'S FAILURE TO REPORT AT 7:30 A.M. TO THE HARLINGEN OFFICE.

YOU PRESENT THE FOLLOWING QUESTIONS:

1. SHOULD THESE OVERTIME CLAIMS BE PAID?

2. IF THE CLAIMS ARE GENERALLY DISALLOWED, SHOULD THE CLAIMS OF TRUCK DRIVERS BE APPROVED?

3. IF THE CLAIMS ARE ALLOWED, HOW FAR BACK CAN THEY BE PAID?

IN SUBMITTING THEIR CLAIMS, THE CLAIMANTS RELY ON THE HOLDINGS OF THE COURT OF CLAIMS IN BATES V. UNITED STATES, 196 C. CLS. 362 (1971) AND BAYLOR V. UNITED STATES, C. CLS. NO. 109-67, DECIDED MAY 12, 1972. BOTH BATES AND BAYLOR INVOLVED INTERPRETATION OF THE PHRASE "OFFICIALLY ORDERED OR APPROVED" AS IT APPEARS IN 5 U.S.C. 5542 APPLICABLE TO GENERAL SCHEDULE EMPLOYEES. THAT PHRASE ALSO APPEARS AT SUBCHAPTER S8 4 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, IMPLEMENTING 5 U.S.C. 5544 APPLICABLE TO WAGE BOARD EMPLOYEES. THAT SUBCHAPTER PROVIDES IN PERTINENT PART AS FOLLOWS:

B. OVERTIME PAY. (1) AUTHORITY. IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5544, A WAGE EMPLOYEE IS ENTITLED TO OVERTIME PAY FOR WORK IN EXCESS OF EIGHT HOURS IN A DAY OR IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, WHICHEVER IS THE GREATER NUMBER OF OVERTIME HOURS, THAT IS:

- OFFICIALLY ORDERED OR APPROVED; AND

- PERFORMED BY THE EMPLOYEE.

IN EACH OF THE CITED COURT CASES THE EMPLOYEES WERE IN FACT REQUIRED TO REPORT EARLY TO PERFORM FUNCTIONS WHICH PRIMARILY BENEFITED THEIR EMPLOYERS. THE VETERANS ADMINISTRATION EMPLOYEES INVOLVED IN BATES CLAIMED OVERTIME COMPENSATION FOR TIME SPENT CHANGING INTO AND OUT OF HOSPITAL UNIFORMS OUTSIDE OF THEIR REGULAR DUTY HOURS AND FOR OTHER PRESHIFT AND POST SHIFT ACTIVITIES. THE BATES CASE, AS DOES THE PRESENT CASE, INVOLVED AN ESTABLISHED PRACTICE OF EARLY REPORTING, BUT, UNLIKE THE INSTANT CASE, THOSE EMPLOYEES WERE ACTUALLY REQUIRED TO SO REPORT AND WERE ADMONISHED FOR FAILURE TO DO SO. SIMILARLY, IN THE BAYLOR CASE, WHICH INVOLVED OVERTIME FOR EARLY REPORTING FOR MUSTERING, CHANGING UNIFORMS, DRAWING WEAPONS, ETC., THE GENERAL SERVICES ADMINISTRATION GUARDS INVOLVED WERE IN FACT REQUIRED TO PERFORM THOSE FUNCTIONS AND BY INSTRUCTIONS WERE NOT AFFORDED THE OPTION OF WEARING UNIFORMS, GUNS, AND INSIGNIAS HOME SO THAT THEY MIGHT REPORT DIRECTLY TO THEIR POSTS OF DUTY.

WE POINT OUT THAT IN THE CASE AT HAND EMPLOYEES WERE NOT IN FACT REQUIRED TO REPORT AT 7:30 AND DID SO WITH THE PRIMARY PURPOSE OF AVAILING THEMSELVES OF GOVERNMENT TRANSPORTATION TO THE WORKSITE. AS INDICATED ABOVE, NO SANCTION ATTENDED AN EMPLOYEE'S FAILURE TO SO REPORT. THUS, NOTWITHSTANDING THAT IT MAY HAVE BEEN THE ESTABLISHED PRACTICE OF EMPLOYEES TO FIRST REPORT TO THE HARLINGEN OFFICE AND THAT OFFICIALS WITH THE AUTHORITY TO ORDER OR APPROVE OVERTIME WORK MAY HAVE BEEN AWARE OF AND ENCOURAGED THE PRACTICE, IT IS NOT POSSIBLE TO CONCLUDE THAT THE EARLY REPORTING WAS HOURS OF WORK OFFICIALLY ORDERED OR APPROVED.

WE NOTE THAT YOU CORRECTLY DISTINGUISH THE BAYLOR AND BATES CASES AS THEY DO NOT INVOLVE TIME SPENT IN TRAVEL SUCH AS HERE INVOLVED. TIME SPENT IN A TRAVEL STATUS BY WAGE BOARD EMPLOYEES IS COMPENSABLE ONLY INSOFAR AS IT IS ORDERED AND APPROVED AND EITHER IS INCIDENT TO THE EMPLOYEE'S WORK OR MEETS ONE OF THE FOLLOWING CRITERIA SET FORTH AT 5 U.S.C. 5544:

*** 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, (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.

UNDER THE ABOVE CRITERIA, ONLY THE TRAVEL OF EMPLOYEES REGULARLY EMPLOYED AS TRUCK DRIVERS, WHICH WOULD INVOLVE WORK WHILE TRAVELING, WOULD BE FOR CONSIDERATION AS COMPENSABLE AS OVERTIME IF ORDERED OR APPROVED. HOWEVER, AS HEREINABOVE POINTED OUT THE TRUCK DRIVERS WERE NOT REQUIRED TO FIRST REPORT TO HEADQUARTERS BUT WERE GIVEN THE OPTION OF REPORTING DIRECTLY TO THE JOB SITE, HENCE THEIR REPORTING AT HEADQUARTERS IS VIEWED AS FOR THE PURPOSE OF OBTAINING TRANSPORTATION. THE TRAVEL OF OTHER EMPLOYEES WOULD MEET NONE OF THE ABOVE CRITERIA. FURTHERMORE, IT IS OUR VIEW THAT THE TRAVEL INVOLVED DID NOT CONSTITUTE AN INCIDENTAL OR INHERENT PART OF THE EMPLOYEES' REGULAR WORK AS TO QUALIFY FOR OVERTIME COMPENSATION. SEE B- 173558, AUGUST 16, 1971, AND COMPARE B-163042, MAY 22, 1968, COPIES ENCLOSED, AND 43 COMP. GEN. 273 (1963). SEE ALSO AHEARN V. UNITED STATES, 142 C. CLS. 309 (1958) AND BIGGS V. UNITED STATES, 152 C. CLS. 545 (1961), WHERE THE COURT OF CLAIMS HAS DISTINGUISHED TRAVEL CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO CLAIMANTS FROM TRAVEL WHICH IS A NECESSARY INCIDENT TO EMPLOYMENT.

IN ADDITION TO THE FOREGOING, AND IN REPLY TO A SUBMISSION FROM YOUR OFFICE DATED MAY 26, 1959, AS TO WHETHER ENTITLEMENT TO OVERTIME COMPENSATION EXISTED FOR TRAVEL FROM HEADQUARTERS TO WORKSITE, SUCH AS NOW INVOLVED, IT WAS HELD IN OUR DECISION B-139759, JUNE 26, 1959, THAT SINCE NO DUTY WAS PERFORMED AND THE TRAVEL WAS NOT PERFORMED UNDER ARDUOUS CONDITIONS, THERE WAS NO AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION.

ON THE BASIS OF THE FOREGOING THE CLAIMS NOW BEFORE YOUR OFFICE SHOULD BE DISALLOWED. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.