B-179520, APR 10, 1974

B-179520, APR 10, 1974

EMPLOYEE REQUIRED TO TRAVEL OUTSIDE HIS REGULARLY SCHEDULED WORKWEEK TO POINT WHERE HE WAS TO BOARD SHIP TO PERFORM TDY ASSIGNMENT IS NOT ENTITLED TO OVERTIME COMPENSATION FOR SUCH TRAVEL SINCE SHIP MUST BE REGARDED AS EMPLOYEE'S TDY STATION AND ACTUAL TRAVEL REGARDED AS ENDING WHEN SHIP IS BOARDED. DESPITE FACT WORK WAS PERFORMED WHILE SHIP WAS MOVING, DUTY PERFORMED ON SHIP WAS NOT WORK WHILE TRAVELING WITHIN CONTEMPLATION OF 5 U.S.C. 5542(B)(2) AND TRAVEL INCIDENT TO SUCH DUTY WAS NOT TRAVEL INCIDENT TO PERFORMANCE OF WORK WHILE TRAVELING WHICH MAY BE COUNTED AS "HOURS OF EMPLOYMENT" FOR PURPOSE OF OVERTIME COMPENSATION.

TO MR. JAMES W. BELLER:

THIS ACTION IS A RECONSIDERATION OF A GAO CLAIMS DIVISION SETTLEMENT DATED MARCH 6, 1973, DISALLOWING THE CLAIM OF JAMES W. BELLER, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, FOR OVERTIME COMPENSATION FOR CERTAIN PERIODS OF TIME HE SPENT TRAVELING FROM WASHINGTON, D.C., TO FALMOUTH, ENGLAND, IN CONNECTION WITH A TEMPORARY DUTY ASSIGNMENT.

MR. BELLER WAS AUTHORIZED TO TRAVEL FROM WASHINGTON TO FALMOUTH WHERE HE WAS TO BOARD THE USNS KANE FOR THE PURPOSE OF A TEMPORARY DUTY ASSIGNMENT. ALL OF HIS TEMPORARY DUTY WHICH INVOLVED SURVEY OPERATIONS WHILE THE SHIP WAS AT SEA WAS PERFORMED ABOARD THE USNS KANE. THE RECORD INDICATES THAT MR. BELLER DEPARTED WASHINGTON FOR LONDON, ENGLAND, ON SUNDAY, JANUARY 3, 1971, BUT DUE TO HEAVY FOG HIS FLIGHT WAS DIVERTED TO MANCHESTER, ENGLAND, AND OTHER TRAVEL ARRANGEMENTS HAD TO BE MADE TO REACH FALMOUTH. MR. BELLER HAS CLAIMED ENTITLEMENT TO OVERTIME COMPENSATION FOR A PERIOD OF 6 HOURS ON JANUARY 3 AND OF 10 HOURS ON JANUARY 4 DURING WHICH HE WAS REQUIRED TO TRAVEL OUTSIDE OF HIS REGULARLY SCHEDULED WORKWEEK AS A RESULT OF THE REROUTED TRAVEL.

THE CLAIMS DIVISION SETTLEMENT OF MARCH 6, 1973, CONCLUDED THAT THE PERIOD IN QUESTION DID NOT INVOLVE TRAVEL INCIDENT TO TRAVEL INVOLVING THE PERFORMANCE OF WORK WHILE TRAVELING AS REQUIRED BY 5 U.S.C. 5542(B)(2)(B) BECAUSE THE USNS KANE WAS CONSIDERED HIS TEMPORARY DUTY STATION AND HIS ACTUAL TRAVEL WAS REGARDED AS ENDING AT THE TIME HE BOARDED THE SHIP. SINCE THE TRAVEL DID NOT MEET THIS REQUIREMENT OR ANY OF THE OTHER 3 REQUIREMENTS OF 5 U.S.C. 5542(B)(2)(B), THE SETTLEMENT DISALLOWED MR. BELLER'S CLAIM. HOWEVER, MR. BELLER CONTENDS THAT HE WAS IN A TRAVEL STATUS WHILE HE WAS ABOARD THE SURVEY VESSEL. HE STATES THAT THE WORK PERFORMED ABOARD THE SURVEY VESSEL INVOLVED SAMPLING THE PHYSICAL CHARACTERISTICS OF THE OCEAN WHICH COULD BE PERFORMED ONLY WHILE THE SHIP WAS MOVING. ACCORDINGLY, HE CONTENDS THAT THE HOURS OUTSIDE OF HIS REGULARLY SCHEDULED WORKWEEK HE SPENT TRAVELING TO FALMOUTH ARE COMPENSABLE AT OVERTIME RATES BECAUSE THE TRAVEL WAS INCIDENT TO TRAVEL INVOLVING THE PERFORMANCE OF WORK WHILE TRAVELING AS REQUIRED BY 5 U.S.C. 5542(B)(2)(B)(II).

SUBSECTION 5542(B)(2) OF TITLE 5, U.S.C. PROVIDES IN PART AS FOLLOWS:

"(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

"(B) 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."

SUBCHAPTER S1-3B(2)(C)(III) OF CHAPTER 550, FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2 EXPLAINS THAT FOR THE PURPOSE OF 5 U.S.C. 5542(B)(2) AN EMPLOYEE IS CONSIDERED TO BE IN A TRAVEL STATUS ONLY FOR THOSE HOURS ACTUALLY SPENT TRAVELING BETWEEN HIS OFFICIAL DUTY STATION AND HIS POINT OF DESTINATION. ALTHOUGH MR. BELLER STATES THAT HIS WORK ABOARD THE USNS KANE COULD ONLY BE PERFORMED WHILE THE SHIP WAS MOVING, IT WAS HELD IN 49 COMP. GEN. 503 (1970) THAT, IN CIRCUMSTANCES SUCH AS THOSE HERE INVOLVED, AN EMPLOYEE MAY NOT REASONABLY BE REGARDED AS PERFORMING ACTUAL TRAVEL FOR THE PURPOSE OF 5 U.S.C. 5542 WHILE ENGAGED IN WORK ABOARD A SHIP DESPITE THE FACT THAT THE VESSEL WAS MOVING WHEN SUCH WORK WAS BEING PERFORMED. THIS DECISION HELD THAT IT WAS MORE REASONABLE IN SUCH CIRCUMSTANCES TO VIEW THE SHIP AS CONSTITUTING THE TEMPORARY DUTY STATION OF THE EMPLOYEE AND TO REGARD THE ACTUAL TRAVEL AS ENDING AT THE TIME THE EMPLOYEE REPORTED ABOARD SUCH TEMPORARY DUTY STATION.

IF, AS CONTENDED BY MR. BELLER, HE IS CONSIDERED AS BEING IN A TRAVEL STATUS WHILE HE WAS ABOARD THE SURVEY VESSEL, ALL OF THE TIME ABOARD THE SHIP WOULD HAVE TO BE REGARDED AS EITHER TRAVEL INVOLVING THE PERFORMANCE OF WORK WHILE TRAVELING OR TRAVEL INCIDENT TO TRAVEL INVOLVING THE PERFORMANCE OF WORK WHILE TRAVELING. UNDER THIS CONTENTION NOT ONLY WOULD ALL PERIODS OF TIME SPENT TRAVELING TO FALMOUTH BE CONSIDERED "HOURS OF EMPLOYMENT" UNDER 5 U.S.C. 5542(B)(2), BUT ALSO ALL PERIODS OF TIME SPENT ABOARD THE SURVEY VESSEL WHETHER OR NOT WORK WAS BEING PERFORMED WOULD HAVE TO BE CONSIDERED "HOURS OF EMPLOYMENT." HOWEVER, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF 5 U.S.C. 5542 THAT WOULD SUGGEST THAT CONGRESS INTENDED TO AUTHORIZE THE COUNTING AS "HOURS OF EMPLOYMENT" LONG PERIODS OF TRAVEL ABOARD A VESSEL WHEN NO WORK IS PERFORMED. IN THE ABSENCE OF ANY EXPRESSION OF THE CONGRESSIONAL INTENT THAT THE QUOTED PROVISION APPLIES TO A SITUATION SIMILAR TO THAT HERE INVOLVED, THE ACTUAL TRAVEL OF THE EMPLOYEE MUST BE REGARDED AS ENDING WHEN HE REPORTED FOR DUTY ABOARD THE USNS KANE. 49 COMP. GEN. 503, SUPRA.

FOR THE REASONS STATED THE DUTY PERFORMED ON THE SHIP WAS NOT WORK WHILE TRAVELING WITHIN THE CONTEMPLATION OF THE STATUTE AND THE TRAVEL INCIDENT TO THE DUTY PERFORMED ON SUCH SHIP WAS NOT TRAVEL INCIDENT TO THE PERFORMANCE OF WORK WHILE TRAVELING. ACCORDINGLY, MR. BELLER'S TRAVEL TO THE SHIP MAY NOT BE REGARDED AS "HOURS OF EMPLOYMENT" FOR THE PURPOSE OF OVERTIME COMPENSATION.

UPON RECONSIDERATION, THE SETTLEMENT OF MARCH 6, 1973, DENYING THE CLAIM OF MR. BELLER IS AFFIRMED.