B-180898, AUG 15, 1974

B-180898, AUG 15, 1974

WAGE BOARD EMPLOYEE ASSIGNED TO PERFORM WORK AT A WORKSITE LOCATED APPROXIMATELY ONE HOUR'S TRAVEL TIME FROM HIS DUTY STATION WHO CHOSE, FOR PERSONAL REASONS, TO COMMUTE EACH DAY RATHER THAN REMAIN OVERNIGHT AT THE WORKSITE AS AUTHORIZED, IS NOT ENTITLED TO OVERTIME FOR THE TIME SPENT TRAVELING TO AND FROM THE WORKSITE OUTSIDE HIS REGULAR DUTY HOURS SINCE THE TRAVEL PERFORMED IS NOT HOURS OF WORK AND THUS COMPENSABLE AS OVERTIME UNDER THE CRITERIA SET FORTH IN 5 U.S.C. 5544(A).

WILLIAM A. PRESCOTT - OVERTIME COMPENSATION:

THIS MATTER INVOLVES A REQUEST FROM MR. WILLIAM A. PRESCOTT, AN EMPLOYEE OF THE NATIONAL PARK SERVICE, UNITED STATES DEPARTMENT OF THE INTERIOR, FOR RECONSIDERATION OF THE NOVEMEBER 27, 1973, SETTLEMENT CERTIFICATE ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION, WHEREIN MR. PRESCOTT'S CLAIM FOR OVERTIME COMPENSATION WAS DISALLOWED. MR. PRESCOTT, A WAGE BOARD EMPLOYEE, IS CLAIMING OVERTIME FOR TIME SPENT IN TRAVEL BETWEEN HIS DUTY STATION AT PINE ISLAND AND A WORKSITE AT FLAMINGO, BOTH LOCATED IN EVERGLADES NATIONAL PARK, FLORIDA.

THE RECORD INDICATES THAT BETWEEN JANUARY 8, 1968, AND JANUARY 2, 1973, MR. PRESCOTT WAS ASSIGNED TO WORK AT VARIOUS TIMES AT FLAMINGO, A WORKSITE LOCATED APPROXIMATELY ONE HOUR'S TRAVEL TIME FROM PINE ISLAND. BECAUSE OF THE TRAVEL TIME INVOLVED AND BECAUSE OR AN ADMINISTRATIVE DETERMINATION THAT THE WORK AT FLAMINGO RECURIED 8 HOURS PER DAY, THE EMPLOYEES ASSIGNED TO FLAMINGO WERE AUTHORIZED PER DIEM AND REQUESTED TO REMAIN OVERNIGHT. HOWEVER FOR PERSONAL REASONS MR. PRESCOTT ELECTED NOT TO REMAIN OVERNIGHT AT FLAMINGO, CHOOSING INSTEAD TO COMMUTE TO AND FROM THE WORKSITE EACH DAY. THEREFORE HE WOULD LEAVE PINE ISLAND AT 7 A.M. IN ORDER TO ARRIVE AT FLAMINGO BY 8 A.M. AND THEN LEAVE FLAMINGO AT THE CONCLUSION OF HIS TOUR OF DUTY AT 4:30 P.M., ARRIVING BACK AT PINE ISLAND AT 5:30 P.M. MR. PRESCOTT STATES THAT HE WAS ORDERED BY HIS SUPERVISORS TO TRAVEL AT THE TIMES AND IN THE MANNER THAT HE DID AND THAT HE WAS NEVER TOLD ABOUT THE AVAILABILITY OF PER DIEM UNTIL 2 YEARS AFTER HE HAD STARTED MAKING THOSE REGULAR TRIPS EACH DAY TO FLAMINGO. MR. PRESCOTT ALSO SEEKS ADVICE REGARDING FURTHER APPEAL OF HIS CLAIM IN THE EVENT THAT IT IS AGAIN DISALLOWED BY THIS OFFICE.

THE APPLICABLE STATUTORY PROVISIONS GOVERNING PAYMENT OF OVERTIME COMPENSATION TO WAGE BOARD EMPLOYEES IN A TRAVEL STATUS ARE CONTAINED IN SECTION 5544(A) OF TITLE 5, U.S.C. AS FOLLOWS:

"*** 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."

AS POINTED OUT IN THE PREVIOUS DISALLOWANCE OF MR. PRESCOTT'S CLAIM, THERE IS NO INDICATION THAT, IN ACCORDANCE WITH THE ABOVE-CITED SECTION, THE TRAVEL WHICH MR. PRESCOTT PERFORMED EITHER INVOLVED WORK, WAS INCIDENT TO TRAVEL WHICH INVOLVED WORK OR WAS PERFORMED UNDER ARDUOUS CONDITIONS. IT IS ALSO CLEAR FROM THE RECORD THAT THE TRAVEL WAS SUBJECT TO ADMINISTRATIVE SCHEDULING AND CONTROL. IT APPEARS THAT IT WAS FOR THIS REASON THAT THE AGENCY, AFTER DETERMINING THAT IT WOULD BE NECESSARY TO REQUIRE A FULL 8 HOURS OF WORK EACH DAY AT THE WORKSITE AND REALIZING THAT THEREFORE TRAVEL WOULD BE REQUIRED THAT WOULD NOT BE PAYABLE AS OVERTIME UNDER THE LAW, AUTHORIZED PER DIEM FOR THE EMPLOYEES INVOLVED. THERE IS THEREFORE NO BASIS FOR THE ALLOWANCE OF MR. PRESCOTT'S CLAIM UNDER 5 U.S.C. 5544(A).

THE ONLY ADDITIONAL BASIS UPON WHICH TRAVE MAY BE COMPENSABLE AS OVERTIME HOURS OF WORK IS WHERE TRAVEL IS AN INHERENT PART OF OR INSEPARABLE FROM WORK. TRAVEL WHICH HAS NO PURPOSE OTHER THAN TO TRANSPORT AN EMPLOYEE TO AND FROM THE PLACE WHERE HE IS TO PERFORM ACTUAL WORK IS NOT REGARDED AS AN INCIDENTAL DUTY WHICH IS ITSELF TO BE REGARDED AS WORK AND COMPENSABLE AS OVERTIME. B-178241, MAY 25, 1973. ACCORDINGLY, THE PREVIOUS DISALLOWANCE OF MR. PRESCOTT'S CLAIM MUST BE SUSTAINED.

AS TO MR. PRESCOTT'S STATEMENT THAT HE WAS NOT TOLD OF THE AVAILABILITY OF PER DIEM UNTIL 2 YEARS AFTER HE HAD STARTED TRAVELING TO FLAMINGO AND THAT INSTEAD HE WAS ORDERED BY HIS SUPERVISORS TO TRAVEL IN THE MANNER THAT HE DID, THIS FACT ALONE WOULD NOT MAKE MR. PRESCOTT'S TRAVEL TIME COMPENSABLE AS OVERTIME SINCE THE TRAVEL DID NOT MEET THE CRITERIA DISCUSSED ABOVE. FURTHER, IT IS NOTED THAT THE ADMINISTRATIVE REPORT INDICATES THAT MR. PRESCOTT WAS OFFERED PER DIEM ON SEVERAL OCCASIONS FROM THE TIME HE WAS FIRST ASSIGNED DUTY AT FLAMINGO.

AS TO MR. PRESCOTT'S REQUEST FOR ADVICE REGARDING FURTHER APPEAL OF HIS CLAIM, WE POINT OUT THAT THE DECISIONS OF THIS OFFICE ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT AND THE LAW PROVIDES NO FURTHER ADMINISTRATIVE APPEAL FROM DECISIONS OF THE COMPTROLLER GENERAL. AS TO MATTERS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS, SEE 28 U.S.C. 1346 AND 1491.