B-181843, NOV 19, 1974

B-181843, NOV 19, 1974

1. SETTLEMENT DISALLOWING EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION FOR TIME SPENT TRAVELING BETWEEN POINT HE OBTAINED GOVERNMENT VEHICLE AND POINT HE PERFORMED ACTUAL DUTIES OUTSIDE REGULAR DUTY HOURS IS SUSTAINED SINCE TRAVEL DID NOT MEET CRITERIA OF 5 U.S.C. 5542(B)(2)(B). MOREOVER, ALTHOUGH HE PERFORMED DUTIES OTHER THAN OBTAINING VEHICLE, SINCE IT DOES NOT APPEAR HE WAS REQUIRED TO PERFORM THESE DUTIES THERE, IT MUST BE CONCLUDED THAT PRIMARY PURPOSE OF STOPPING THERE WAS TO OBTAIN TRANSPORTATION WHICH CANNOT BE REGARDED AS INCIDENTAL OR INHERENT PART OF HIS WORK AND THUS IS NOT COMPENSABLE AS OVERTIME HOURS OF DUTY. 2. SETTLEMENT DISALLOWING EMPLOYEE'S CLAIM FOR BACK PAY AT RATE FOR HIGHER GRADE FOR PERIOD HE SERVED AS GS-7 INSPECTOR ON CONSTRUCTION PROJECT ON BASIS THAT VACANCY ANNOUNCEMENT SPECIFIED THAT GS-9 INSPECTORS WOULD BE PLACED ON PROJECT AND HE BELIEVED HIS DUTIES WERE THOSE DESCRIBED BY GS-9 INSPECTOR JOB DESCRIPTION IS SUSTAINED SINCE HE WAS DULY APPOINTED BY AGENCY AS GS-7 INSPECTOR AND HE IS ENTITLED ONLY TO SALARY OF POSITION TO WHICH HE WAS DULY APPOINTED REGARDLESS OF DUTIES HE MAY HAVE ACTUALLY PERFORMED. 3. SETTLEMENT DISALLOWING EMPLOYEE'S CLAIM FOR HAZARD PAY DIFFERENTIAL ON BASIS OF PERFORMANCE OF DUTIES ON UNCOVERED CUTWALK SUBJECTING HIM TO DANGER OF OBJECTS FALLING FROM CONSTRUCTION WORK OVERHEAD IS SUSTAINED SINCE THIS IS NOT SPECIFIED BY APPENDIX A TO 5 CFR, PART 550, AS HAZARDOUS DUTY FOR WHICH DIFFERENTIAL IS AUTHORIZED NOR ARE WE AWARE OF ANY OTHER DUTY PERFORMED BY HIM FOR WHICH HAZARD PAY DIFFERENTIAL IS AUTHORIZED.

JOSEPH C. SCHRAGE - RECONSIDERATION OF CLAIM FOR OVERTIME, PROMOTION AND HAZARDOUS DUTY PAY:

THIS ACTION IS A REQUEST FOR RECONSIDERATION OF A GENERAL ACCOUNTING OFFICE TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED MARCH 5, 1974, DISALLOWING THE CLAIM OF MR. JOSEPH C. SCHRAGE, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, FOR OVERTIME PAY FOR TIME SPENT BY HIM PERFORMING TRAVEL, BACK PAY FOR THE DIFFERENCE BETWEEN THE RATES OF PAY FOR THE GRADE GS-9 AND THAT FOR THE GRADE GS 7, AND A HAZARD PAY DIFFERENTIAL FOR THE PERIOD HE WAS EMPLOYED AS AN INSPECTOR AT LIDDY DAM.

THE FIRST PART OF MR. SCHRAGE'S CLAIM IS FOR OVERTIME COMPENSATION FOR 45 MINUTES PER DAY FOR TIME SPENT BY HIM OUTSIDE OF HIS REGULAR DUTY HOURS TRAVELING FROM THE INSPECTOR'S FIELD OFFICE TO THE SELECTIVE WITHDRAWAL SYSTEM (SWS) CONSTRUCTION SITE. THE RECORD INDICATES THAT DURING HIS EMPLOYMENT AS AN INSPECTOR AT THE LIDDY DAM PROJECT, MR. SCHRAGE PERFORMED HIS OFFICIAL DUTIES AT THE SWS SITE AND THAT HE WAS REQUIRED TO REPORT FOR THE START OF HIS SHIFT AT THAT LOCATION. HOWEVER, IT FURTHER APPEARS THAT PRIOR TO THE START OF HIS SHIFT, HE GENERALLY PARKED HIS PRIVATE AUTHOMOBILE AT THE FIELD OFFICE WHERE HE OBTAINED AND PREPARED A GOVERNMENT VEHICLE FOR TRAVEL BY WARMING IT UP, SCRAPING ICE OFF THE WINDOWS, UNPLUGGING THE ENGINE HEATER, AND AT TIMES PUTTING ON TIRE CHAINS. HE THEN DROVE THE GOVERNMENT VEHICLE ABOUT 5 MILES THROUGH THE CONSTRUCTION AREA TO THE SWS CONSTRUCTION SITE. HE PARKED THE GOVERNMENT VEHICLE AT THIS POINT, WALKED 300 TO 400 FEET, CLIMBED LADDERS 100 TO 200 FEET, DISCUSSED THE JOB WITH THE INSPECTOR GOING OFF DUTY, AND THEN STARTED HIS REGULAR TOUR OF DUTY. A SIMILAR ROUTING WAS FOLLOWED BY MR. SCHRAGE AFTER HE COMPLETED HIS HOURS OF REGULAR DUTY. STATEMENTS BY MR. SCHRAGE AND A MR. FLOYD DUNN, A SECOND INSPECTOR ON THE SWS CONSTRUCTION SITE, INDICATE THAT IN ADDITION TO OBTAINING A GOVERNMENT VEHICLE AT THE FIELD, THEY OBTAINED VERBAL AND WRITTEN CONTRACT INFORMATION, TURNED IN DAILY REPORTS, AND STORED PERSONAL GEAR AT THE FIELD OFFICE. ON THE BASIS OF OUR DECISION B-157036, JULY 22, 1965, MR. SCHRAGE CLAIMS THAT HE IS ENTITLED TO OVERTIME PAY FOR THE TIME HE SPENT PERFORMING THE ABOVE- DESCRIBED ACTIVITIES OUTSIDE OF HIS REGULAR DUTY HOURS.

THE AGENCY STATES THAT IT WAS NOT NECESSARY FOR MR. SCHRAGE TO REPORT TO THE FIELD OFFICE PRIOR TO COMMENCING HIS REGULAR TOUR OF DUTY AT THE SWS CONSTRUCTION SITE. THE AGENCY STATES THAT DUE TO THE POOR CONDITION OF THE ACCESS ROADS TO THE SWS CONSTRUCTION SITE AND THE FACT THAT THE PARKING FACILITIES FOR PRIVATE AUTOMOBILES AT THAT LOCATION WERE ABOUT A QUARTER OF A MILE FROM THE SWS CONSTRUCTION SITE, GOVERNMENT VEHICLES WERE PROVIDED FOR THE CONVENIENCE OF THE INSPECTORS FOR TRAVEL BETWEEN THE FIELD OFFICE AND THE SWS CONSTRUCTION SITE. THE AGENCY ALSO REPORTS THAT PORTABLE RADIOS WERE PROVIDED FOR COMMUNICATION WITH DAM INSPECTION PERSONNEL AND SUPERVISORS AND THAT THERE WAS FREQUENT PERSONAL CONTRACT WITH SUPERVISORS AT THE CONSTRUCTION SITE. THUS THEY STATE THAT ANY WORK- RELATED DISCUSSIONS OR EXCHANGE OF OFFICIAL CORRESPONDENCE WHICH OCCURRED AT THE FIELD OFFICE WERE A RESULT OF MUTUAL CONVENIENCE AND THAT IT WAS NOT NECESSARY TO CONDUCT THESE MATTERS AT THE FIELD OFFICE. THE AGENCY ALSO REPORTS THAT MR. SCHRAGE DROVE HIS PRIVATELY OWNED AUTOMOBILE TO THE SWS CONSTRUCTION SITE ABOUT 20 PERCENT OF THE TIME.

GENERALLY TIME SPENT IN A TRAVEL STATUS OUTSIDE THE BASIC WORKWEEK OF AN EMPLOYEE QUALIFIES AS HOURS OF WORK FOR THE PURPOSE OF OVERTIME COMPENSATION ONLY IF 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. 5542(B)(2)(B) (1970):

"*** 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."

SINCE THE TRAVEL PERFORMED BY MR. SCHRAGE CLEARLY DOES NOT MEET ANY OF THE ABOVE CONDITIONS, THE TIME SPENT BY HIM OUTSIDE OF HIS REGULAR DUTY HOURS TRAVELING BETWEEN THE FIELD OFFICE AND THE SWS CONSTRUCTION SITE IS NOT COMPENSABLE AT OVERTIME RATES UNDER THAT PROVISION.

THE ONLY ADDITIONAL BASIS UPON WHICH TRAVEL MAY BE COMPENSABLE AS OVERTIME HOURS OF WORK IS WHERE THE TRAVEL IS AN INHERENT PART OF AND INSEPARABLE FROM WORK. B-178241, MAY 25, 1973, AND B-173103, NOVEMBER 16, 1971. IN THIS REGARD TIME SPENT PERFORMING TRAVEL OUTSIDE OF THE EMPLOYEE'S REGULAR DUTY HOURS HAS BEEN CONSIDERED TO BE WORK TIME AND COMPENSABLE AT OVERTIME RATES WHERE EMPLOYEES ARE REQUIRED TO REPORT FROM THEIR HOMES TO A PARTICULAR POINT TO RECEIVE ASSIGNMENTS AND INSTRUCTIONS, PICK UP TOOLS, AND OBTAIN GOVERNMENT VEHICLES BEFORE TRAVELING TO THEIR DUTY ASSIGNMENTS AT ANOTHER LOCATION. B-163042, MAY 22, 1968, AND B- 146389, FEBRUARY 1, 1966. HOWEVER, WHERE SUCH TRAVEL HAS NO PURPOSE OTHER THAN TO TRANSPORT AN EMPLOYEE TO AND FROM THE PLACE HE IS TO PERFORM ACTUAL WORK, IT CANNOT BE REGARDED AS AN INCIDENTAL OR INHERENT PART OF THE EMPLOYEE'S WORK AND THUS IS NOT COMPENSABLE AS OVERTIME HOURS OF DUTY. B-177438, MARCH 28, 1973, AND B 173103, SUPRA. IN THESE CIRCUMSTANCES, THE TRAVEL, REGARDLESS OF THE FACT THAT IT IS PERFORMED IN A GOVERNMENT VEHICLE, IS NO DIFFERENT THAN THE TRAVEL THAT ANY GOVERNMENT EMPLOYEE IS EXPECTED TO PERFORM TO PLACE HIMSELF IN A POSITION TO PERFORM HIS DAILY DUTIES. IN THIS REGARD THE DECISION REFERRED TO BY MR. SCHRAGE, B-157036, SUPRA, RECITED THE ABOVE RULE AND STATED THAT ASSEMBLING AT HEADQUARTERS SUFFICIENTLY EARLY EACH WORKDAY TO CHECK OUT GOVERNMENT VEHICLES AND TRAVEL APPROXIMATELY 70 MILES TO A WORK SITE WHERE THE EMPLOYEES' SHIFT COMMENCED WAS NOT A BASIS FOR PAYMENT OF OVERTIME COMPENSATION.

UNDER THE ABOVE RULE MR. SCHRAGE WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION MERELY BECAUSE HE ARRIVED AT THE FIELD OFFICE SUFFICIENTLY EARLY TO OBTAIN AND PREPARE FOR TRAVEL TO THE SWS CONSTRUCTION SITE WHERE HIS SHIFT COMMENCED AND ENDED. ALTHOUGH THE STATEMENTS OF MESSRS. SCHRGE AND DUNN INDICATE THAT THEY OBTAINED VERBAL AND WRITTEN CONTRACT INFORMATION AND TURNED IN REPORTS AT THE FIELD OFFICE OUTSIDE OF THEIR REGULAR DUTY HOURS, THE AGENCY HAS REPORTED THAT THESE ACTIVITIES WERE PERFORMED AT THE FILED OFFICE AS A MATTER OF MUTUAL CONVENIENCE INCIDENT TO THE EMPLOYEES PICKING UP OR RETURNING THE GOVERNMENT VEHICLES. IN THIS REGARD THE AGENCY INDICATES THAT THESE ACTIVITIES COULD HAVE BEEN PERFORMED AT THE SWS CONSTRUCTION SITE AND THAT MR. SCHRAGE DID IN FACT DRIVE HIS PRIVATELY OWNED AUTOMOBILE TO THE SWS SITE ABOUT 20 PERCENT OF THE TIME. THUS ALTHOUGH STOPPING AT THE FIELD OFFICE PRIOR TO COMMENCING DUTIES AT THE SWS SITE MAY HAVE BEEN THE ESTABLISHED PRACTICE OR MOST PRACTICAL PROCEDURE, IT APPEARS THAT THE PRIMARY PURPOSE OF STOPPING AT THAT POINT WAS TO OBTAIN GOVERNMENT TRANSPORTATION TO THE WORKSITE AND THAT THE EARLY REPORTING WAS NOT REQUIRED BY THE AGENCY. ACCORDINGLY, THE TRAVEL INVOLVED CANNOT BE REGARDED AS AN INCIDENTAL OR INHERENT PART OF MR. SCHRAGE'S WORK AND THUS HE IS NOT ENTITLED TO OVERTIME COMPENSATION FOR THE TIME HE SPENT PERFORMING SUCH TRAVEL OUTSIDE OF HIS REGULAR DUTY HOURS.

MR. SCHRAGE ALSO CLAIMS THAT HE IS ENTITLED TO BACK PAY REPRESENTING THE DIFFERENCE BETWEEN THE RATE OF PAY FOR THE GRADE GS-9 AND THAT FOR THE GRADE GS-7 AT WHICH HE WAS APPOINTED AND PAID. HE STATES THAT IT WAS ANNOUNCED THAT THERE WERE VACANCIES FOR GS-9 INSPECTORS ON THE SWS CONSTRUCTION SITE. ALTHOUGH TWO EMPLOYEES OTHER THAN MR. SCHRAGE WERE PLACED IN THE GS-9 INSPECTOR POSITIONS, THEY WERE ASSIGNED TO DUTIES ON THE DAM PROJECT RATHER THAN ON THE SWS CONSTRUCTION SITE. THUS MR. SCHRAGE BELIEVES THAT THE DUTIES HE PERFORMED AS A GS-7 INSPECTOR ON THE SWS CONSTRUCTION SITE WERE THE DUTIES WHICH WOULD HAVE BEEN PERFORMED BY THE GS-9 PAY AT THE RATE FOR THE GRADE GS-9 FOR THE PERIOD THAT HE PERFORMED INSPECTION DUTIES ON THE SWS CONSTRUCTION SITE.

THE AGENCY STATES THAT THE DUTIES PERFORMED BY MR. SCHRAGE AS AN INSPECTOR ON THE SWS CONSTRUCTION SITE WERE CONSISTENT WITH HIS JOB INDESCRIPTION AND THAT HIS POSITION WAS PROPERLY CLASSIFIED AS A GS-7 POSITION. THE AGENCY REPORTS THAT, BASED ON TENTATIVE PERSONNEL PLANNING PRIOR TO THE AWARD OF THE CONSTRUCTION CONTRACTS, IT WAS ANTICIPATED THAT TWO GRADE GS-9 INSPECTORS WITH LITTLE SUPERVISION WOULD BE ASSIGNED TO THE SWS CONSTRUCTION SITE. APPARENTLY, THE VACANCY ANNOUNCEMENT REFERRED TO BY MR. SCHRAGE WAS ISSUED ON THE BASIS OF THIS PLAN. HOWEVER, AFTER THE AWARD OF THE CONTRACTS, THE AGENCY STATES THAT IS WAS NECESSARY AND POSSIBLE TO REVISE THE DISTRIBUTION OF INSPECTION PERSONNEL. ACCORDINGLY IT WAS DECIDED TO ASSIGN THE GRADE GS-9 INSPECTORS TO THE DAM CONSTRUCTION AND TO ASSIGN TWO GS-7 INSPECTORS TO THE SWS CONSTRUCTION SITE AND TO PROVIDE EXTRA SUPERVISORY CONTROL FOR THE INSPECTORS ON THE SWS CONSTRUCTION SITE.

THE AUTHORITY TO ESTABLISH, CLASSIFY, AND APPOINT INDIVIDUALS TO GOVERNMENT POSITIONS IS VESTED PRIMARILY IN THE ADMINISTRATIVE AGENCY INVOLVED AND THE CIVIL SERVICE COMMISSION. HOWEVER, REGARDLESS OF WHETHER MR. SCHRAGE'S POSITION WAS IMPROPERLY CLASSIFIED OR WHETHER HE WAS ASSIGNED TO PERFORM THE DUTIES OF A HIGHER GRADE POSITION, OUR OFFICE HAS CONSISTENTLY HELD THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED. THIS IS SO EVEN THOUGH THE EMPLOYEE MAY BE EFFICIALLY OR UNOFFICIALLY ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION. B-179207, NOVEMBER 21, 1973, AND DIANISH V. UNITED STATES, 183 CT. CL. 702 (1968). IN THE PRESENT CASE MR. SCHRAGE WAS OFFICIALLY APPOINTED AS AN INSPECTOR AT THE GRADE OF GS-7 AND WE ARE NOT AWARE OF ANY AUTHORITY UNDER THE PRESENT CIRCUMSTANCES TO RETROACTIVELY PAY HIM AT A RATE FOR A HIGHER GRADE POSITION REGARDLESS OF THE DUTIES HE MAY HAVE PERFORMED.

FINALLY MR. SCHRAGE CLAIMS THAT HE IS ENTITLED TO HAZARDOUS DUTY PAY FOR THE PERIOD HE WAS EMPLOYED AS AN INSPECTOR ON THE SWS CONSTRUCTION SITE MR. SCHRAGE BASES HIS CLAIM ON THE FACT THAT HIS DUTIES INVOLVED WORK ON HORIZONTAL CATWALKS ON THE SELECTIVE WITHDRAWAL STRUCTURE WHICH WERE SEVERAL HUNDRED FEET BELOW WORK BEING PERFORMED ON THE DAM. HE STATES THAT THE CATWALKS WERE NOT COVERED AND THAT A SERIOUS HAZARD WAS CREATED BY WOOD, WRENCHES, ICE FROM FROZEN WATER CURE, CONCRETE SPILLAGE, AND OTHER OBJECTS FALLING FROM THE OVERHEAD CONSTRUCTION WORK ON THE DAM.

A DETERMINATION OF WHETHER AN EMPLOYEE IS ENTITLED TO A HAZARD PAY DIFFERENTIAL UNDER 5 U.S.C. 5545(D) IS GOVERNED BY SUBPART I OF PART 550 OF THE CIVIL SERVICE COMMISSION REGULATIONS (TITLE 5, CODE OF FEDERAL REGULATIONS). IN THIS REGARD 5 CFR 550.904 REQUIRES AN AGENCY TO PAY THE HAZRAD PAY DIFFERENTIAL SPECIFIED IN APPENDIX A TO SUBPART I OF PART 550, TITLE 5, CFR, TO AN EMPLOYEE WHO IS ASSIGNED TO AND PERFORMS ANY IRREGULAR OR INTERMITTENT DUTY SPECIFIED IN THAT APPENDIX WHEN THAT DUTY IS NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS POSITION. THE ONLY DUTY SPECIFIED IN APPENDIX A THAT IS RELATED TO THE DUTIES PERFORMED BY MR. SCHRAGE IS THAT WHICH IS DESCRIBED AS FOLLOWS:

"HEIGHT WORK:

"WORKING ON ANY STRUCTURE OF AT LEAST 50 FEET ABOVE THE BASE LEVEL, GROUND, DECK, FLOOR, ROOF, ETC., UNDER OPEN CONDITIONS, IF THE STRUCTURE IS UNSTABLE OR IF SCAFFOLDING GUARDS OR OTHER SUITABLE PROTECTIVE FACILITIES ARE NOT USED, OR IF PERFORMED UNDER ADVERSE CONDITIONS SUCH AS SNOW, SLEET, ICE ON WALKING SURFACES, DARKNESS, LIGHTNING, STEADY RAIN, OR HIGH WIND VELOCITY."

APPENDIX E TO BOOK 550 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2 PROVIDES ADDITIONAL MATERIAL TO AID AGENCIES IN DETERMINING WHAT SITUATIONS A HAZARDOUS DUTY LISTED IN APPENDIX A IS INTENDED TO INCLUDE. IN REGARD TO THE HAZARD OF "HEIGHT WORK," APPENDIX E PROVIDES:

"THIS DUTY INCLUDES WORK PERFORMED AT A HEIGHT OF 50 FEET OR MORE ON STRUCTURES SUCH AS RADIO, RADAR TELEVISION, POWERLINE OR WATER TOWERS, STEEPLES, OR SMOKESTACKS, OR TREETOPS, WHEN THE WORK IN PERFORMED UNDER HAZARDOUS CONDITIONS CAUSED BY THE ABSENCE OF SCAFFOLDING, GUARDS, OR OTHER SUITABLE PROTECTIVE MEASURES OR FACILITIES."

SINCE WORK ON UNCOVERED CATWALKS WHICH SUBJECTS AN EMPLOYEE TO THE DANGER OF OBJECTS FALLING FROM WORK OVERHEAD DOES NOT COME WITHIN THE ABOVE DESCRIPTION OF DUTIES FOR WHICH A HAZARD PAY DIFFERENTIAL IS AUTHORIZED, MR. SCHRAGE IS NOT ENTITLED TO A HAZARD PAY DIFFERENTIAL FOR PERFORMING SUCH DUTIES. MOREOVER, WE ARE UNAWARE OF ANY OTHER DUTY PERFORMED BY MR. SCHRAGE WHILE EMPLOYED AS AN INSPECTOR ON THE SWS CONSTRUCTION SITE WHICH MAY BE REGARDED AS DUTIES SPECIFIED IN APPENDIX A FOR WHICH A HAZARD PAY DIFFERENTIAL IS AUTHORIZED. ACCORDINGLY, WE CONCLUDE THAT MR. SCHRAGE IS NOT ENTITLED TO HAZARDOUS DUTY PAY FOR THE DUTIES PERFORMED BY HIM AS AN INSPECTOR ON THE SWS CONSTRUCTION SITE. IN VIEW OF THE ABOVE THE SETTLEMENT OF MARCH 5, 1974, DISALLOWING MR. SCHRAGE'S CLAIM FOR OVERTIME PAY FOR TIME SPENT PERFORMING TRAVEL OUTSIDE HIS REGULAR HOURS OF DUTY, BACK PAY FOR THE DIFFERENCE BETWEEN THE RATE OF PAY FOR GRADE GS-9 AND THAT FOR GRADE GS-7, AND FOR HAZARDOUS DUTY PAY IS HEREBY SUSTAINED.