B-245486, Mar 18, 1992

B-245486, Mar 18, 1992

DIGEST: A nonexempt, prevailing rate (wage board) employee who traveled from his headquarters to a temporary duty site during nonduty hours is not entitled to overtime compensation for such period of travel under either 5 U.S.C. Sec. 5544(a) or the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201 et seq. Upon his return to headquarters, overtime is not payable for his "work to home" travel under title 5 or the FLSA. See 5 C.F.R. Secs. 550.112(g) and 551.422 (1991).

This decision is in response to a joint request for a decision concerning the overtime entitlements of Mr. Carlos Garcia, an employee of the Department of the Army. The request was submitted by the Letterkenny Army Depot and the National Federation of Federal Employees (NFFE) Local 1429, pursuant to the labor relations procedures set forth in 4 C.F.R. Part 22 (1991).

BACKGROUND

The specific issue in dispute is the proper overtime entitlements of Mr. Garcia, a nonexempt employee, while traveling on a duty day during nonduty hours. /1/ The union invoked arbitration of the matter under the negotiated grievance procedure. However, both parties subsequently agreed to submit the dispute to this Office for decision in lieu of arbitration.

The parties agree to the following facts: On April 18, 1990, Mr. Garcia, the grievant, was a prevailing rate (wage board) employee classified as a WG-08 Heavy Mobile Equipment Repairer. His tour of duty is from 6 a.m. to 2:30 p.m., Monday through Friday. His official duties do not include driving a vehicle.

On Wednesday, April 18, after working his normal tour of duty at the Depot in Chambersburg, Pennsylvania, Mr. Garcia began travel to a temporary duty assignment at Fort Ord, California. Mr. Garcia traveled for 9 hours outside of his normal tour of duty, arriving at Fort Ord at 11:45 p.m. The Army had scheduled a team of employees to travel to Fort Ord to install smoke generators on motor vehicles but it inadvertently neglected to include Mr. Garcia. The other team members departed from the Depot early in the morning on April 18, 1990. However, travel arrangements for Mr. Garcia could not be completed until later in the day and, therefore, he did not commence his travel until 2:45 p.m. on that date.

The NFFE contends that Mr. Garcia is entitled to overtime compensation for all of the time he spent in traveling during nonduty hours (from 2:45 p.m. until 11:45 p.m.). The union bases his entitlement to overtime on the negotiated labor-management agreement which states:

"When employees are required to travel, the travel will be scheduled on duty days, during their normal duty hours when practical. If an employee is required to travel on non-duty days or during non-duty hours they will be paid at the appropriate overtime rate, when applicable."

The union argues that due to short management lead time, Mr. Garcia was required to travel during nonduty hours. The union also argues that overtime is due based on the travel orders which state that "travel outside duty hours is authorized to meet time schedules."

The agency denied the grievance because the time spent traveling is not considered "hours of work" under either title 5, United States Code, or the Fair Labor Standards Act. The agency states that the phrase "when applicable" in the negotiated agreement means "when otherwise entitled to overtime compensation under Title 5 or FLSA." /2/

OPINION

Nonexempt wage board employees, such as Mr. Garcia, are entitled to overtime compensation under either title 5, United States Code, 1988, or under the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201 et seq., 1988, whichever law provides the greater benefit. /3/

Overtime Under Title 5

Under section 5544(a) of title 5, United States Code (1988), time spent in a travel status away from the employee's official duty station may constitute hours of employment if the travel "... (iv) results from an event which could not be scheduled or controlled administratively."

In order for an employee to be compensated under subsection (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. /4/ For an event to qualify as being administratively uncontrollable, there must be a total lack of government control. /5/

In this case, the travel by Mr. Garcia from the Army Depot to Fort Ord does not meet this test. The union has not established that the work assignment to install the smoke generators was unscheduled or administratively uncontrollable so as to permit the payment of overtime compensation under 5 U.S.C. Sec. 5544(a). It is clear that the Army was able to schedule and control the work assignment for the team members who traveled to Fort Ord on April 18. Even though Mr. Garcia, through inadvertence, was excluded from the team initially assigned to travel to Fort Ord and was required to travel during nonduty hours, his travel did not result from an event which could not be scheduled or controlled administratively. Accordingly, there is no legal basis for the payment of overtime compensation to Mr. Garcia under 5 U.S.C. Sec. 5544(a).

Overtime Under the FLSA

The FLSA, as amended, and codified in 29 U.S.C. Secs. 201 et seq., is administered by the Office of Personnel Management (OPM). /6/ applicable here, the OPM regulation, 5 C.F.R. Sec. 551.422 (1991), provides that, time spent traveling shall be considered hours of work if:

"(4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours."

Since Mr. Garcia traveled as a passenger outside his regular working hours, it is clear that the 9 hours he spent in traveling to Fort Ord is not considered "hours of work" under the regulation. This Office has consistently held that the time spent by wage board employees in traveling outside of their regular duty hours, as passengers, does not constitute "hours of work" under the FLSA. /7/ Accordingly, Mr. Garcia's travel time from Letterkenny Army Depot to Fort Ord is not compensable as overtime under the FLSA.

The agency also asks whether Mr. Garcia is entitled to overtime pay for the time he drove his privately owned vehicle (POV) from the Depot to his residence after his return trip from Fort Ord. It is the responsibility of the employee to place himself at his regular place of employment and return to his residence at his own expense. /8/ Therefore, Mr. Garcia's travel between the Depot and his residence did not constitute overtime travel under 5 U.S.C. Sec. 5544(a). Under the FLSA, 5 C.F.R. Sec. 551.422(b), normal "home to work" travel is not hours of work. Accordingly, under the FLSA, Mr. Garcia's travel time from the Depot to his residence is not compensable as overtime.

/1/ A nonexempt employee-- an employee who is covered by the minimum wage and overtime provisions of the FLSA.

/2/ See 5 U.S.C. Sec. 7103(a)(14)(C) (1988).

/3/ See Henry G. Tomkowiak, 67 Comp.Gen. 247 (1988); Civilian Nurses, 61 Comp.Gen. 174 (1981); 54 Comp.Gen. 371 (1974).

/4/ See 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.

/5/ See Morris Norris, 69 Comp.Gen. 17, 20 (1989); Defense Security Institute Instructors, B-245417, Feb. 10, 1992.

/6/ See 29 U.S.C. Sec. 204(f) (1988).

/7/ See Charleston Naval Shipyard Employees, B-227695, Sept. 23, 1987; Clarence E. Harris, B-183577, Nov. 26, 1975.

/8/ See George F. Clark, B-190071, May 1, 1978; White Sands Missile Range, B-185974, Mar. 21, 1977.