B-238962, Sep 30, 1991, 70 Comp.Gen. 727

B-238962, Sep 30, 1991, 70 Comp.Gen. 727

CIVILIAN PERSONNEL - Travel - Government vehicles - Use CIVILIAN PERSONNEL - Travel - Temporary duty - Travel expenses - Privately-owned vehicles - Mileage 1. Customs Inspectors are not entitled to mileage reimbursement where Customs Service determines that use of government-owned vehicles (GOVs) is advantageous to the government, a GOV is available, and Inspectors do not request or receive agency approval to use their privately owned vehicles (POVs) to travel from headquarters to nearby airports in order to perform inspections. See 41 C.F.R. Sec. 301 4.4(c) (1990). CIVILIAN PERSONNEL - Travel - Temporary duty - Travel expenses - Privately-owned vehicles - Mileage 2. Where a GOV is available for use but the Customs Service expressly authorizes an Inspector to use his POV for official travel, the Inspector is entitled to mileage at the rate of 9.5 cents per mile. See 41 C.F.R. Sec. 301-4.4(c). The agency may deduct from this mileage allowance the distance the Inspector would normally travel between his residence and headquarters. CIVILIAN PERSONNEL - Travel - Non-workday travel - Travel time - Overtime 3. Customs Inspectors may be entitled to overtime under 5 U.S.C. Sec. 5542(b)(2)(B) (1988) if Customs Service requires them to spend time in travel outside normal duty hours to return GOVs to headquarters following completion of inspections. Entitlement to overtime would depend upon the particular circumstances and cannot be determined in the abstract.

Elliot Kaplan, et al.-- Customs Service-- Overtime Compensation-- Mileage Entitlement:

This decision is in response to a joint request for a decision concerning the overtime compensation and mileage entitlements of Mr. Elliot Kaplan and other Inspectors of the United States Customs Service, Department of the Treasury, New York Region. The request was submitted by the United States Customs Service, Department of the Treasury, and the National Treasury Employees Union (NTEU) pursuant to the labor-management relations procedures set forth in 4 C.F.R. Part 22 (1991).

BACKGROUND

As a condition of employment, the Customs Inspectors work standard Monday to Friday schedules and are also assigned scheduled and unscheduled overtime involving the inspection of aircraft and seagoing vessels before and after regular hours and on weekends and holidays. The Inspectors' permanent duty post is the New York Seaport Area located at 90 North River, Pier 90, at 50th Street and 12th Avenue, Manhattan. The Inspectors perform overtime work at three Long Island airports which are located outside of the headquarters area: Republic-- 52 miles from North River; Islip/McArthur-- 75 miles from North River; and Westhampton/Suffolk County -- 95 miles from North River. The Inspectors are all employed under the General Schedule.

The specific factual situation presented involves Mr. Elliot Kaplan, a Customs Service Inspector assigned to the New York Seaport Area of the New York Region. He is required to work overtime assignments pursuant to the provisions of 19 U.S.C. Sec. 261, 267, and 1451 (1988). /1/ The assignments are worked prior to 8 a.m., after 5 p.m., and on weekends and holidays.

The agency reports that on June 17, 1988, Inspector Kaplan was assigned to perform overtime work at Westhampton Airport, commencing at 5 p.m. He was at 90 North River when he received the assignment. The agency states that, although a GOV was available for his use at North River, Mr. Kaplan did not seek approval to use his POV, left the facility at 2:30 p.m., and drove approximately 100 miles by POV to Westhampton/Suffolk Airport. /2/

Mr. Kaplan sought reimbursement of 21 cents a mile for the trip to Westhampton Airport, which the Customs Service denied. He filed a grievance pursuant to the negotiated agreement between NTEU and Treasury. The agency denied his grievance at all three steps of the grievance procedure. In lieu of going to arbitration, the NTEU and the agency agreed to submit the matter to this Office for decision pursuant to 4 C.F.R. Sec. 22.7(b) (1991).

The questions presented for our consideration relate primarily to the mileage reimbursement entitlements of Customs Inspectors who use their POVs in connection with travel to perform overtime inspection work. Specifically, we are asked (1) whether the Customs Service can refuse to reimburse Inspectors for mileage when they are permitted but not required to use POVs to perform overtime assignments, and, (2) if they are entitled to reimbursement, what the mileage rate should be. We are also asked whether Customs Inspectors must be paid overtime if they use a GOV and are directed to drive the GOV back to the agency headquarters following completion of their inspection work.

The Position of the NTEU

The NTEU contends that the Customs Service implements its local travel policy so that Inspectors who live on Long Island are required to travel from their homes to their permanent duty station at 90 North River in order to pick up a GOV and perform their overtime assignments. The union states that Inspectors are permitted to use their POVs to perform overtime assignments but, according to agency policy, do not receive mileage reimbursement.

The NTEU argues that, because of the extra mileage and time involved in traveling to 90 North River to pick up a GOV, Inspectors will often use their POVs to travel to and from temporary duty assignments. However, the union states that when this occurs, the practical effect of the agency policy is to make the Inspectors ineligible for travel reimbursement. example given is where an Inspector lives near Republic Airport and chooses to drive his own vehicle a few miles to the overtime assignment rather than drive an extra 90 miles to pick up a GOV, then drive to the temporary duty station on official time, and later return the GOV to 90 North River.

The union asserts that the Customs Service's policy is not cost effective. In this regard, it argues that if Customs forces Inspectors to use GOVs for the travel in question and requires them to return the GOVs to 90 North River, the return travel must be treated as overtime under 5 U.S.C. Sec. 5542.

The NTEU contends that even if the agency's policy is upheld, an Inspector who uses a POV when a GOV is available is still entitled to be reimbursed 9.5 cents per mile pursuant to Chapter 1 of the Federal Travel Regulations and our decision, Wayne G. Kirkegaard, B-223537, May 21, 1987.

The Position of the Customs Service

According to the Customs Service, its published policy, issued on November 20, 1987, states that Inspectors will use GOVs whenever possible, that they must receive prior approval to use a POV during regular working hours for official purposes, and that they must use the most inexpensive direct method of transportation when traveling between two duty stations or to and from a temporary duty station. /3/ In a memorandum dated February 5, 1988, from the Assistant Area Director to Supervisory Inspectors and Inspectors, it was stated that the elective use of a POV in lieu of an available official vehicle is not deemed advantageous to the government and, therefore, not authorized for local travel reimbursement.

The Customs Service states that it has several GOVs at 90 North River for the express and exclusive use of its Inspectors for local travel. The agency states that it has additional cars located at various places throughout the New York Region, including Long Island, Brooklyn, and Staten Island, so that Inspectors are not always required to go to 90 North River to pick up a car.

The Customs Service reports that it does permit mileage reimbursement of 9.5 cents per mile on a case-by-case basis when prior approval is given for use of a POV. However, the agency says that it will not give wholesale approval for the Inspectors to use their POVs in a work area involving almost 400 Inspectors who perform an average of 825 overtime assignments per week. The Customs Service contends that in those individual instances where an Inspector requests to use a POV in spite of the availability of a GOV, the agency may, but is not required to, approve reimbursement of 9.5 cents per mile.

With regard to the payment of overtime compensation for returning a GOV to 90 North River, the Customs Service argues that the mere act of driving a GOV does not qualify for overtime pay under 5 U.S.C. Sec. 5542(b)(2)(B).

OPINION

Entitlement to Mileage When Inspectors Use POVs Without Express Authorization

The first question is whether the Customs Service may refuse to reimburse the Inspectors for their mileage expenses when the Inspectors are permitted but are not expressly authorized or required to use their POVs in performing overtime assignments. Section 5704(a) of title 5, United States Code, 1988, provides that, under regulations prescribed by the Administrator of General Services (in the Federal Travel Regulations (FTR)), an employee who is engaged on official business for the government, is entitled to reimbursement of mileage expenses not in excess of the current mileage rate, 25 cents a mile, for the use of a POV when that mode of transportation is authorized or approved as being more advantageous to the government. The section also provides that when an employee who is engaged on official business for the government chooses to use a POV in lieu of a GOV, payment on a mileage basis is limited to the cost of travel by a GOV.

The implementing Federal Travel Regulations further provide that when a GOV is available for use and the employee would not ordinarily be authorized to use a POV instead of a GOV, but requests use of a POV, reimbursement may be authorized or approved at the rate of 9.5 cents per mile, the approximate cost of operating a GOV, fixed costs excluded. See 41 C.F.R. Sec. 301-4.4(c) (1990).

As indicated above, the FTR provision provides the agency with discretionary authority to authorize or approve reimbursement at 9.5 cents per mile when a POV is used in lieu of an available GOV. We have held that authorizing mileage to an employee for the use of his automobile, is discretionary with the agency. 52 Comp.Gen. 446, 451 (1973). Our decision, Wayne G. Kirkegaard, B-223537, supra, cited by the union in support of its contention that reimbursement should be made, is distinguishable here. In that case, the employee had been authorized to use his POV. We held that he was properly limited to reimbursement at 9.5 cents per mile since a GOV was available. Thus, it was only the amount of reimbursement that was in question, not the authorization.

Accordingly, in response to the first question, the Customs Service has the authority to deny reimbursement to an employee for the employee's use of his POV, in lieu of an available GOV, without express authorization.

With respect to the factual circumstances involving Inspector Kaplan, he is not entitled to reimbursement of mileage expenses. It appears from the record that a GOV was available for his use at North River. He did not request a GOV but rather, as a matter of personal preference, chose to drive his POV to the airport. While we do not know what the agency would have done in Mr. Kaplan's case, it is clear that he did not seek approval to use his POV and therefore he violated the published agency policy.

Mileage Rate Entitlement When Inspectors Are Expressly Authorized to Use POVs

Where an Inspector requests permission to use a POV to travel to the airport to perform official duty even though a GOV is available for use, and the Customs Service expressly authorizes or approves the use of the POV, the Inspector is entitled to reimbursement of mileage expenses at the rate of 9.5 cents per mile. /4/ The Customs Service may deduct the distance the Inspector would normally travel between his residence and headquarters. /5/

Entitlement to Overtime Compensation

The final question presented concerns the entitlement of Customs Inspectors to overtime compensation for their travel time under the provisions of 5 U.S.C. Sec. 5542(b)(2)(B) (1988). /6/ The statute provides that time spent in a travel status away from the employee's official duty station is not hours of employment 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, including return travel.

The NTEU maintains that the overtime assignments cannot be scheduled or controlled administratively and, therefore, that travel in connection with these assignments qualifies for overtime pay under 5542(b)(2)(B)(iv). The Customs Service disagrees and states that the Inspectors are scheduled to perform the overtime work at the airports on an advance basis. Thus the agency contends that the work can be scheduled and controlled administratively.

Our Office has held that in order for an employee to be compensated for overtime under section 5542(b)(2)(B)(iv), the travel must result from an event which could not be scheduled or controlled administratively and there must exist an immediate official necessity in connection with the event requiring the travel to be performed outside the employee's regular duty hours. /7/ Thus, where the necessity for the travel is not so urgent as to preclude proper scheduling of travel, overtime compensation may not be paid nor compensatory time granted for the after-hours travel time. /8/

We conclude that the travel in the instant case does not meet this test. The union has not established that the airport work assignments are unscheduled or administratively uncontrollable so as to permit the payment of overtime compensation under 5 U.S.C. Sec. 5542(b)(2)(B)(iv). Although the arrival times of the airplanes to be inspected are not within agency control, the flights are scheduled and, thus, the Customs Service is able to control the scheduling of the inspections and the Inspectors are given advance notice of the overtime work assignments.

Inasmuch as the inspections are scheduled administratively, the return travel of the Inspectors from making the inspections to their headquarters at 90 North River is not compensable as overtime under Sec. 5542(b)(2)(B)(iv). /9/ While 5 U.S.C. Sec. 5542(b)(2)(B)(iv) does not apply, there might be a basis for overtime pay if Customs requires Inspectors to use GOVs and to drive them back to 90 North River following completion of the inspection duty. We have held that time spent returning specially equipped government vehicles constitutes overtime in some circumstances. See Baxter and Hunter, 61 Comp.Gen. 27 (1981); 43 Comp.Gen. 273 (1963). Moreover, Customs Directive No. 51250 03, dated December 20, 1988, states at pages 10-11:

"An overtime assignment shall begin when the employee reports to the first job site prepared for duty and shall terminate when the employee leaves the last job site after completion of the tasks associated with the assignment. Should the employer require an employee to utilize specific equipment, e.g. a government vehicle, etc., which the employee does not have the option to take from work to home, the overtime assignment shall begin when the employee reports to the location where the equipment is stored and, if required by the employer, shall stop when the equipment is returned to the location of the equipment."

The record before us, however, contains no information concerning the actual practice of Customs in this regard. Rather, this possibility is presented only as a hypothetical situation. Therefore, we are not in a position to express an opinion on whether and under what precise circumstances overtime might be payable.

/1/ As a condition of their employment, the Inspectors are assigned and are expected to perform "1911 Act overtime" (Act of Feb. 13, 1911, 36 Stat. 899, governing overtime pay for Customs Service Inspectors), now codified at 19 U.S.C Secs. 261, 267, and 1451 (1988). This overtime applies only to the performance of inspectional duties. Overtime for travel of the Customs Inspectors here involved is governed by 5 U.S.C. Sec. 5542.

/2/ Apparently, Inspector Kaplan lives near the Westhampton/Suffolk Airport.

/3/ The collective bargaining agreement between the parties defines a temporary duty station as any job site which is not the employee's regular duty station.

/4/ 41 C.F.R. Sec. 301-4.4(c) (1990).

/5/ Howard M. Feuer, 59 Comp.Gen. 605, 606 (1980); 36 Comp.Gen. 795 (1957); 32 Comp.Gen. 235 (1952); Brian E. Charnick, B-184175, June 8, 1979, and Aug. 5, 1975.

/6/ The claims of the Inspectors do not involve over-time compensation under the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq. (1988).

/7/ Daniel L. Hubbel, 68 Comp.Gen. 29 (1988); John B. Schepman, et al., 60 Comp.Gen. 681 (1981); Erich P. Rudolph, B-236012, Nov. 8, 1989; Charles S. Price, et al., B-222163, Aug. 22, 1986; Thomas G. Hickey, B-207795, Feb. 6, 1985.

/8/ Hankins and Archie, B-210065, Apr. 2, 1984, and cases cited therein.

/9/ See Barth v. United States, 568 F.2d 1329 (Ct.Cl. 1978); Benjamin Brown and John R. Schacht, 69 Comp.Gen. 385 (1990); Aimee A. Stover, B-229067, Nov. 29, 1988, aff'd on reconsideration, B-229067.2, Feb. 28, 1990; Rudolph, supra.