B-179430, NOV 25, 1974

B-179430, NOV 25, 1974

AN ARMY EMPLOYEE WHO TRAVELED ON SATURDAY AND SUNDAY IN CONNECTION WITH HIS APPEARANCE AS A GOVERNMENT WITNESS IN A COURT CASE ON MONDAY IS NOT ENTITLED TO OVERTIME PAY FOR HIS TRAVEL SINCE THE ARMY COULD HAVE ARRANGED HIS TRAVEL DURING REGULAR DUTY HOURS, AND HIS TRAVEL, WHICH MAY NOT BE CONSIDERED AS IF PERFORMED ON SOME OTHER DAY, DID NOT RESULT FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, AS SET FORTH IN 5 U.S.C. SEC. 5542(B) (2)(B)(IV).

RICHARD TRAUX - RECONSIDERATION OF CLAIM FOR OVERTIME COMPENSATION:

THIS IS A REQUEST FOR RECONSIDERATION OF DECISION B-179430 DATED DECEMBER 18, 1973, DISALLOWING THE CLAIM OF MR. RICHARD L. TRAUX FOR OVERTIME COMPENSATION FOR TRAVEL PERFORMED INCIDENT TO HIS REPORTING TO THE OFFICE OF THE UNITED STATES ATTORNEY AT CAMDEN, NEW JERSEY.

MR. TRUAX, AN EMPLOYEE OF THE SACRAMENTO ARMY DEPOT, SACRAMENTO CALIFORNIA, WAS DIRECTED BY THE DEPARTMENT OF THE ARMY TO REPORT TO THE OFFICE OF THE UNITED STATES ATTORNEY, CAMDEN NEW JERSEY, AT 10 A.M., SUNDAY, MARCH 25, 1973. THE PURPOSE OF THE TRAVEL WAS FOR MR. TRAUX TO TESTIFY AS A WITNESS IN A GOVERNMENT CASE AND ARRIVAL IN CAMDEN BY MARCH 25, 1973, WAS NECESSARY SO AS TO FACILITATE BRIEFING FOR THE TRIAL SCHEDULED FOR MARCH 26, 1973. MR TRUAX SPENT 10 HOURS AND 15 MINUTES ON SATURDAY, MARCH 24, 1973, TRAVELING FROM SACRAMENTO TO CAMDEN. ON SUNDAY, MARCH 25, 1973, HE SPENT 1 HOUR TRAVELING BETWEEN HIS HOTEL AND THE OFFICE OF THE UNITED STATES ATTORNEY.

MR. TRUAX SUBMITTED A CLAIM FOR OVERTIME COMPENSATION FOR THE TIME SPENT TRAVELING ON BOTH SATURDAY AND SUNDAY. THE CLAIM OF MR TRUAX WAS HELD NOT TO BE COVERED BY 5 U.S.C. 5542(B)(2)(B)(IV) WHICH AUTHORIZES OVERTIME COMPENSATION FOR TRAVEL RESULTING FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. THAT DISALLOWANCE WAS PREDICTED ON THE FACT THAT NO IMMEDIATE NECESSITY FOR MR. TRUAX'S TRAVEL EXISTED, AND THE TRAVEL WAS WITHIN ADMINISTRATIVE CONTROL, BUT THE AGENCY FAILED TO SCHEDULE THE TRAVEL WITHIN THE EMPLOYEE'S ADMINISTRATIVE WORKWEEK.

MR. TRUAX HAS REQUESTED RECONSIDERATION OF THE DENIAL OF HIS CLAIM FOR OVERTIME COMPENSATION FOR THE 1 HOUR ON SUNDAY, MARCH 25, 1973, SPENT TRAVELING BETWEEN HIS HOTEL AND THE OFFICE OF THE UNITED STATES ATTORNEY.

SECTION 5542(B)(2)(B) OF TITLE 5 OF THE U.S.C. IS THE STATUTORY AUTHORITY FOR THE PAYMENT OF TIME IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE AND PROVIDES 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

"(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."

IT IS CLEAR THAT THE CIRCUMSTANCES OF MR. TRUAX'S TRAVEL ON SUNDAY DID NOT INVOLVE THE PERFORMANCE OF WORK WHILE TRAVELING, WAS NOT PERFORMED INCIDENT TO TRAVEL WHICH INVOLVED THE PERFORMANCE OF WORK WHILE TRAVELING, NOR DID IT CONSTITUTE TRAVEL UNDER ARDUOUS CONDITIONS. THE QUESTION WHICH REMAINS IS WHETHER THE TRAVEL RESULTED FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR ADMINISTRATIVELY CONTROLLED.

IN OUR DECISION B-163654, APRIL 19, 1968, WE INTERPRETED THE LANGUAGE OF SECTION 5542(B)(2)(B)(IV) AND CONCLUDED THAT THERE MUST HAVE EXISTED AN IMMEDIATE OFFICIAL NECESSITY OCCASIONED BY AN UNSCHEDULED AND ADMINISTRATIVELY UNCONTROLLABLE EVENT REQUIRING TRAVEL BY THE EMPLOYEE DURING HOURS OUTSIDE HIS SCHEDULED WORKWEEK, BEFORE SUCH TRAVEL TIME CONSTITUTES HOURS OF EMPLOYMENT WITHIN THE MEANING OF SUCH PROVISION. SEE ALSO 49 COMP. GEN. 209 (1969). FURTHER, THERE MUST NOT BE SUCH NOTICE OF THE EVENT AS WILL PERMIT SCHEDULING OF THE TRAVEL WITHIN THE NORMAL WORKWEEK. 50 COMP. GEN. 674 (1971).

IN THE PRESENT CASE THERE IS NO INDICATION THAT THERE WAS AN IMMEDIATE OFFICIAL NECESSITY FOR TRAVEL TO THE OFFICE OF THE UNITED STATES ATTORNEY. THE RECORD SHOWS THAT MR. TRUAX WAS DIRECTED BY THE DEPARTMENT OF THE ARMY TO REPORT TO THE OFFICE OF THE UNITED STATES ATTORNEY AT 10 A.M., MARCH 25, 1973. THE DEPARTMENT OF THE ARMY COULD HAVE SCHEDULED HIS TRAVEL TO THE OFFICE OF THE UNITED STATES ATTORNEY DURING REGULAR DUTY HOURS. IN VIEW OF THIS FACT THAT THE SCHEDULING OF THE TRAVEL WAS ADMINISTRATIVELY CONTROLLABLE, WE MUST REAFFIRM OUR HOLDING THAT THE TRAVEL ON SUNDAY, MARCH 25, 1973, DID NOT CONSTITUTE HOURS OF EMPLOYMENT WITHIN THE MEANING OF 5 U.S.C. 5542(B)(2)(B)(IV).

MR. TRUAX ACCEPTS THE FACT THAT THE 10 HOURS AND 15 MINUTES OF TRAVEL PERFORMED ON SATURDAY COULD HAVE BEEN PERFORMED ON A REGULAR WORKDAY. HOWEVER, HE NOW ASSERTS THAT HAD THE TRAVEL BEEN PERFORMED ON A REGULAR 8- HOUR WORKDAY, HE WOULD STILL HAVE BEEN ENTITLED TO OVERTIME COMPENSATION FOR 2 HOURS AND 15 MINUTES WHICH WAS IN EXCESS OF HIS USUAL 8-HOUR TOUR OF DUTY.

THE TRAVEL ORDER SHOWS THAT MR. TRUAX WAS AUTHORIZED TO TRAVEL BY COMMERCIAL AIR. INFORMATION INFORMALLY OBTAINED FROM SEVERAL AIRLINES SHOWS THAT THE TRAVEL BY COMMERCIAL AIR FROM SACRAMENTO TO THE EAST COAST, WITH A CHANGE OF PLANE IN CHICAGO, ILLINOIS, COULD HAVE BEEN PERFORMED IN APPROXIMATELY 6 HOURS. SINCE IT APPEARS THAT THE TRAVEL COULD HAVE BEEN PERFORMED DURING THE EMPLOYEE'S REGULAR SCHEDULED TOUR OF DUTY, THERE IS NO AUTHORITY TO COMPENSATE HIM FOR OVERTIME TRAVEL. NO DETERMINATION IS NECESSARY HEREIN CONCERNING ENTITLEMENT TO OVERTIME HAD THE TRAVEL BEEN 10 HOURS. UPON RECONSIDERATION, THE DECISION OF DECEMBER 18, 1973, B-179430, DENYING THE CLAIM OF MR. TRUAX FOR OVERTIME COMPENSATION WHILE IN A TRAVEL STATUS IS AFFIRMED.