B-163211, JUN. 20, 1968

B-163211, JUN. 20, 1968

TO MR. ALBERT F. PIERLUISSI:

WE REFER TO YOUR LETTER OF DECEMBER 23, 1967, REQUESTING REVIEW OF OFFICE SETTLEMENT OF DECEMBER 18, 1967, DISALLOWING YOUR CLAIM FOR 105 HOURS OF OVERTIME COMPENSATION FOR OVERTIME WORK ALLEGED TO HAVE BEEN PERFORMED BETWEEN JANUARY 1, 1965, AND NOVEMBER 30, 1966, WHILE YOU WERE EMPLOYED BY THE NATIONAL LABOR RELATIONS BOARD (NLRB) IN SAN JUAN, PUERTO RICO, AS A FIELD EXAMINER, GRADE GS-11.

WE UNDERSTAND THAT THE PRIMARY REASON WHY YOUR CLAIM FOR OVERTIME COMPENSATION WAS ADMINISTRATIVELY DENIED WAS BECAUSE YOU WERE A PROFESSIONAL EMPLOYEE AND THAT IT WAS THE POLICY OF THE NLRB NOT TO COMPENSATE PROFESSIONAL EMPLOYEES FOR OVERTIME WORKED. THE EVIDENCE OF RECORD IS TO THE EFFECT THAT THE OVERTIME FOR WHICH CLAIM IS MADE WAS NOT AUTHORIZED IN ADVANCE.

WE NOW HAVE RECEIVED THE REPORT WE REQUESTED IN YOUR CASE FROM THE NLRB AND THAT BOARD ADVISES THAT WHILE IT HAS NO OFFICIAL RECORD OF THE PRECISE AMOUNT OF OVERTIME HOURS YOU MAY HAVE WORKED, IT HAS EXAMINED YOUR CLAIM FOR THE 105 HOURS OF OVERTIME SUBMITTED AND HAS COMPARED SUCH HOURS AGAINST YOUR MONTHLY TRAVEL VOUCHERS COVERING THE PERIOD IN QUESTION. HAS FOUND THAT 63 OF THE 105 HOURS OF OVERTIME ALLEGED TO HAVE BEEN RENDERED WERE INCLUDED IN PERIODS DURING WHICH YOU WERE TRAVELING OUTSIDE YOUR REGULARLY SCHEDULED WORKWEEK. THE BALANCE (42HOURS) REPRESENTS OVERTIME ACTUALLY WORKED AS DISTINGUISHED FROM TIME SPENT IN TRAVEL. ARE ADVISED THAT THE REGIONAL DIRECTOR IN MEMORANDA DATED SEPTEMBER 25 AND OCTOBER 6, 1967, APPROVED 42 HOURS OF NONTRAVEL OVERTIME. IT IS OUR VIEW, AFTER EXAMINING ALL OF THE EVIDENCE OF RECORD BEFORE THIS OFFICE, THAT YOU WERE REQUIRED, ALTHOUGH NO WRITTEN DIRECTIVE HAD BEEN ISSUED YOU, TO PERFORM CERTAIN OVERTIME SERVICES AT TIMES CONVENIENT TO PARTIES INVOLVED IN PROCEEDINGS BEFORE THE NLRB, AND IT IS OUR FURTHER OPINION THAT YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR THE 42 HOURS OF ACTUAL OVERTIME WORKED. HOWEVER, THE 63 ADDITIONAL HOURS FOR WHICH YOU CLAIM OVERTIME ARE NOT COMPENSABLE BECAUSE SUCH TIME WAS SPENT IN A TRAVEL STATUS OUTSIDE OF YOUR REGULARLY SCHEDULED WORKWEEK.

IN SUCH CONNECTION WE INVITE ATTENTION TO SECTION 5542 (B) (2) OF TITLE 5, U.S.C. -- AS ENACTED SEPTEMBER 6, 1956, BY PUBLIC LAW 89-554 - READING AS FOLLOWS:

"/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---

"/A) THE TIME SPENT IS WITHIN THE DAYS AND HOURS OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE EMPLOYEE, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS; OR

"/B) THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.' SIMILAR PROVISIONS PREVIOUSLY WERE EMBODIED IN 5 U.S.C. 912 (B) (1964 ED.). SINCE THERE IS NO INDICATION THAT YOU ACTUALLY PERFORMED WORK WHILE TRAVELING OUTSIDE OF YOUR ADMINISTRATIVE WORKWEEK OR THAT THE TRAVEL INVOLVED WAS CARRIED OUT UNDER ARDUOUS CONDITIONS IT IS CLEAR, UNDER THE EXPRESS LANGUAGE OF THE QUOTED STATUTE, THAT IT WOULD NOT BE COMPENSABLE AS HOURS OF EMPLOYMENT.

ACCORDINGLY, A SETTLEMENT WILL ISSUE IN DUE COURSE AUTHORIZING PAYMENT TO YOU FOR 42 HOURS OF OVERTIME COMPENSATION. THE DISALLOWANCE OF THE BALANCE OF YOUR CLAIM (63 HOURS) HEREBY IS SUSTAINED.