B-76062, SEPTEMBER 20, 1948, 28 COMP. GEN. 183

B-76062, SEPTEMBER 20, 1948, 28 COMP. GEN. 183

COMPENSATION - OVERTIME - TRAVEL TIME TIME CONSUMED BY SAFETY, SIGNAL, AND LOCOMOTIVE INSPECTORS OF THE INTERSTATE COMMERCE COMMISSION, OUTSIDE OF THEIR REGULAR DAILY OR WEEKLY TOURS OF DUTY, OR ON HOLIDAYS, IN TRAVELING TO AND FROM THE SCENE OF TRAIN OR LOCOMOTIVE ACCIDENTS BY REGULARLY SCHEDULED TRAINS, IN DAY COACHES, OR RAILROAD BUSINESS CARS, OR ON FREIGHT WORK OR SPECIAL TRAINS, OR IN PRIVATELY OWNED AUTOMOBILES, MAY BE REGARDED AS WORK AND ALL SUCH TIME IN EXCESS OF 40 HOURS IN ANY ONE WORKWEEK IS COMPENSABLE AT OVERTIME RATES PURSUANT TO SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, SEPTEMBER 20, 1948:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1948, SUBMITTING FOR DECISION CERTAIN QUESTIONS INVOLVING THE PAYMENT OF OVERTIME COMPENSATION TO SAFETY, SIGNAL, AND LOCOMOTIVE INSPECTORS ON ACCOUNT OF TRAVEL/TIME PERFORMED UNDER CONDITIONS DESCRIBED THEREIN.

GENERALLY, IT IS STATED THAT, IN CONNECTION WITH THE INVESTIGATION OF TRAIN AND LOCOMOTIVE ACCIDENTS, THE INSPECTORS MAY BE REQUIRED TO PROCEED FROM THEIR HEADQUARTERS OR OTHER PLACES OF DUTY TO THE SCENE OF AN ACCIDENT, AT ANY HOUR OF THE DAY OR NIGHT, ON ANY DAY OF THE WEEK, AND, ALSO, THAT IT IS NECESSARY FOR INSPECTORS TO PROCEED BY THE FIRST AVAILABLE MEANS OF TRANSPORTATION IN ORDER THAT THEY CAN MAKE INSPECTIONS AND OBSERVATIONS BEFORE THERE HAS BEEN TOO MUCH CHANGE IN THE ROLLING STOCK INVOLVED IN THE ACCIDENT, OR OTHER FACTORS WHICH MIGHT BE VALUABLE IN REACHING A CONCLUSION AS TO THE CAUSES THEREOF. IT IS STATED FURTHER THAT NUMEROUS INSTANCES EXIST WHERE INSPECTORS HAVE BEEN REQUIRED TO LEAVE THEIR HOMES OR OTHER PLACES OF DUTY FOR TRIPS OF VARYING LENGTHS AT VERY EARLY HOURS IN THE MORNING OR ON SATURDAY OR SUNDAY, WORKING ALL DAY, AND EITHER RETURNING LATE AT NIGHT OR CONTINUING THE INVESTIGATION ON THE FOLLOWING DAYS. ALSO, IT IS STATED THAT TRAVEL IN SOME INSTANCES REQUIRED IN ORDER TO DUPLICATE SO FAR AS POSSIBLE THE MOVEMENT OF TRAINS INVOLVED, TO OBSERVE SIGNALS AT NIGHT, ETC. THE LETTER STATES THAT SUCH TRAVEL IS ESSENTIAL TO THE PROPER CONDUCT OF THE INVESTIGATION AND CANNOT BE SEPARATED FROM OTHER WORK PERFORMED.

THE CASE IS SUMMARIZED AND A DECISION REQUESTED ON THE QUESTIONS INVOLVED AS FOLLOWS:

1. AN EMPLOYEE WHOSE REGULAR WORK WEEK OF 40 HOURS IS FROM MONDAY THROUGH FRIDAY, IS ORDERED UNDER EMERGENT CONDITIONS TO TRAVEL EITHER FROM HIS HOME OR OTHER PLACE OF DUTY AFTER THE USUAL HOURS OF HIS WORKING DAY, OR ON A SATURDAY, SUNDAY, OR HOLIDAY, OUTSIDE OF HIS REGULAR TOUR OF DUTY. THIS TRAVEL MAY BE BY REGULARLY SCHEDULED TRAINS, IN DAY COACHES, OR RAILROAD BUSINESS CARS, OR ON FREIGHT, WORK, OR SPECIAL TRAINS, OR PRIVATELY-OWNED AUTOMOBILES. CAN HE UNDER SUCH CONDITIONS COUNT THE NECESSARY TRAVEL TIME IN MAKING HIS CLAIM FOR OVERTIME?

(A) IF YOUR ANSWER TO THE ABOVE QUESTION IS QUALIFIED BY ALLOWING OVERTIME, ONLY FOR WORKING TIME ACTUALLY ORDERED OR PERFORMED, WHAT EVIDENCE SHOULD BE SUBMITTED TO SUPPORT THE CLAIM FOR WORK EN ROUTE?

(B) IF TRAVEL TIME CANNOT BE ALLOWED FOR TRAVEL ON REGULARLY SCHEDULED FIRST-CLASS PASSENGER TRAINS UNLESS ACCEPTABLE EVIDENCE OF WORK PERFORMED EN ROUTE IS SUBMITTED, CAN TRAVEL TIME BY THE OTHER MODES OF TRANSPORTATION MENTIONED BY COUNTED IN CLAIMING OVERTIME PAYMENT?

(C) OBVIOUSLY, THE USE OF OTHER THAN REGULARLY SCHEDULED TRAINS IF TRAVEL IS BY RAIL, WOULD BE ONLY BECAUSE OF THE EMERGENT CONDITIONS UNDER WHICH THE TRAVEL WAS MADE. WOULD THE TRAVEL BY SUCH MEANS BE PRIMA FACIE EVIDENCE OF "WORK PERFORMED EN ROUTE" AND SO, ACCEPTABLE AS A BASIS FOR CLAIM FOR OVERTIME?

(D) THE INSPECTOR USES A PRIVATELY-OWNED AUTOMOBILE FOR THE TRAVEL AND IS REQUIRED TO STOP AT ONE OR MORE POINTS EN ROUTE IN CONNECTION WITH HIS INVESTIGATION. THE TRAVEL BY AUTOMOBILE IS NOT PRIMARILY FOR THE CONVENIENCE OF THE INSPECTOR, BUT IT IS USED BECAUSE IT WILL ENABLE HIM TO REACH POINTS INACCESSIBLE BY REGULAR MEANS OF TRANSPORTATION OR TO FACILITATE AND EXPEDITE HIS INVESTIGATIONS AT POINTS NOT READILY ACCESSIBLE BY OTHER MEANS OF TRANSPORTATION. FOR EXAMPLE, HE MAY HAVE TO CALL ON EMPLOYEES OR OTHER WITNESSES WHO COULD ONLY BE REACHED BY SPECIAL CONVEYANCE IF HE WAS NOT TRAVELING IN HIS OWN CAR. IN SUCH A CASE COULD ALL THE TIME OUTSIDE OF HIS REGULAR WORKING HOURS BE COUNTED IN COMPUTING OVERTIME?

2. AT TIMES, IT MAY BE NECESSARY TO CONSULT WITH RAILROAD OFFICIALS, OR THE EMPLOYEES INVOLVED IN THE ACCIDENT OR OTHERS EN ROUTE TO THE SCENE OF AN ACCIDENT. THERE MAY BE ONE OR SEVERAL POINTS WHERE SUCH STOPS ARE MADE OR THE TRAVEL MAY BE MADE IN COMPANY WITH RAILROAD OFFICIALS EN ROUTE IN A BUSINESS-CAR OR OTHERWISE. IF YOUR DECISION IN QUESTION NO. 1 IS NEGATIVE, WHAT PROOF, OR INFORMATION SHOULD BE FURNISHED TO SUPPORT A CLAIM FOR OVERTIME INCLUDING TRAVEL TIME, UNDER THE CIRCUMSTANCES OUTLINED ABOVE? IN OTHER WORDS, WHAT WOULD BE CONSIDERED AS "WORK EN ROUTE" AS A BASIS FOR A CLAIM FOR OVERTIME?

IN DECISION OF DECEMBER 23, 1946, 26 COMP. GEN. 433, REFERRED TO IN YOUR LETTER, IT WAS HELD (QUOTING THE SYLLABUS) AS FOLLOWS.

TIME CONSUMED BY FIELD EMPLOYEES OF THE FOREST SERVICE, AGRICULTURE DEPARTMENT, OUTSIDE OF THEIR REGULAR DAILY OR WEEKLY TOURS OF DUTY IN TRAVELING TO AND FROM THE SITE OF A FIRE BY HORSEBACK, TRUCK (EITHER AS DRIVER OR PASSENGER), OR IN AN AIRPLANE AS A PARACHUTE JUMPER, AND DURING HOURS NORMALLY ALLOTTED FOR SLEEP, MAY BE REGARDED AS WORK AND ALL SUCH TIME IN EXCESS OF 40 HOURS IN ANY ONE WORKWEEK MAY BE COMPENSATED FOR AS OVERTIME PURSUANT TO SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 25 COMP. GEN. 317, MODIFIED.

THE TRAVEL OR TRANSPORTATION CONDITIONS SET FORTH IN YOUR LETTER, WHEN VIEWED IN THE LIGHT OF THE PARTICULAR CIRCUMSTANCES UNDER WHICH SUCH TRAVEL IS REQUIRED, REASONABLY APPEAR TO BE ANALOGOUS TO THE SITUATIONS CONSIDERED IN THE SAID DECISION OF DECEMBER 23, 1946. HENCE, THE CONCLUSION REACHED IN THAT DECISION TO THE EFFECT THAT ALL TRAVEL TIME, OUTSIDE OF, AND IN ADDITION TO, THE REGULAR TOUR OF DUTY, INVOLVED IN GOING TO AND RETURNING FROM THE SITE OF A FIRE, IS COMPENSABLE AT OVERTIME RATES, EQUALLY IS FOR APPLICATION TO TIME CONSUMED IN TRAVEL PERFORMED UNDER THE CONDITIONS REFERRED TO IN YOUR SUBMISSION. COMPARE 24 COMP. GEN. 557; 26 ID. 631. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, RENDERING UNNECESSARY ANY ANSWERS TO THE OTHER QUESTIONS PRESENTED.