B-160258, JAN. 2, 1970

B-160258, JAN. 2, 1970

CIVIL PAY--PER DIEM--SATURDAY AND SUNDAY LAY OVER DAYS DECISION TO COMPTROLLER, NORFOLK NAVAL SHIPYARD CONCERNING PROPRIETY OF PAYMENT OF PER DIEM TO EMPLOYEES FOR NONWORKDAYS. A GROUP OF ENGINEERS AND TECHNICIANS WHO COMPLETED TEMPORARY DUTY ON USS ANCHORAGE OFF FLORIDA COAST AT 4 P.M. SATURDAY, JUNE 7, 1969 AND BECAUSE THEY HAD WORKED APPROXIMATELY 36 HOURS CONTINUOUSLY WERE PERMITTED TO LAY OVER SUNDAY BEFORE RETURNING ON MONDAY TO THEIR PERMANENT STATION, MAY HAVE A DETERMINATION TO PERMIT THE EMPLOYEES TO DELAY THEIR DEPARTURE UNTIL MONDAY CONSIDERED REASONABLE AND THEREFORE CONSTRUCTIVE PER DIEM FOR THE LAY OVER DAY MAY BE PAID. HOWEVER SINCE EMPLOYEES COULD HAVE DEPARTED FOR RETURN TO PERMANENT DUTY STATION AT 8:35 A.M. ON MONDAY RATHER THAN AT 11:55 A.M. PER DIEM FOR SUCH TIME MAY NOT BE PAID.

TO COMPTROLLER, NORFOLK NAVAL SHIPYARD:

WE REFER TO YOUR LETTER OF SEPTEMBER 15, 1969, NY6/12770 (630) SER 600- 755, WITH ENCLOSURES THERETO AND ENDORSEMENTS THEREON, WHICH WAS TRANSMITTED HERE ON NOVEMBER 19, 1969, BY THE COMMANDER, NAVY ACCOUNTING AND FINANCE CENTER.

THE PERTINENT FACTS AND THE QUESTION UPON WHICH DECISION IS REQUESTED ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

"2. ENCLOSURE (1) IS A COPY OF THE ORDER ISSUED A GROUP OF ENGINEERS AND TECHNICIANS DIRECTING THE GROUP TO PERFORM FUEL OIL ECONOMY TRIALS ON THE USS ANCHORAGE OFF THE COAST OF FLORIDA DURING THE PERIOD 31 MAY THROUGH 10 JUNE 1969. AS EVIDENCED BY ENCLOSURE (2) THE GROUP DISEMBARKED FROM THE SHIP ON 1645, SATURDAY 7 JUNE AND CHECKED INTO A MOTEL SHORTLY THEREAFTER. BECAUSE THE MEN HAD WORKED APPROXIMATELY 36 HOURS CONTINUOUSLY FROM 0600 FRIDAY, THE SENIOR CIVILIAN INFORMED THE MEN THAT THEY WERE PERMITTED TO LAY OVER SUNDAY IN FORT LAUDERDALE, AS A DAY OF REST AND THAT THEY WOULD RETURN ON MONDAY 9 JUNE 1969. SHIPYARD MANAGEMENT FULLY BELIEVES THAT THE DECISION WAS MADE IN GOOD FAITH IN LIGHT OF THE SEVERAL PRONOUNCEMENTS IN THE FEDERAL PERSONNEL MANUAL THAT TRAVEL SHOULD BE SCHEDULED DURING NORMAL WORKING HOURS. ENCLOSURE (3) SPECIFIES SUCH PARAGRAPHS. IT HAD BEEN THE SUPERVISOR'S RATIONALE THAT SINCE MANAGEMENT SHOULD CAREFULLY AVOID COMMENCING TRAVEL ON NONWORK DAYS THAT THE SAME CONSIDERATION SHOULD BE ACCORDED RETURN TRAVEL.

"3. THE MEN BOARDED AN 1100 FLIGHT FROM MIAMI ON MONDAY 9 JUNE ARRIVING IN NORFOLK AT 1624. CONSTRUCTED TRAVEL ACCORDING TO REFERENCES (C) AND (D) WOULD HAVE THEM DEPART MIAMI AT 0835 ON SUNDAY, ARRIVING AT NORFOLK AT 1135. THE DISPUTED DIFFERENCE IS 1-1/4 DAYS PER DIEM, OR $20.00 PER MAN.

"4. A DECISION IS REQUESTED WHETHER UNDER THE CIRCUMSTANCES THE GROUP MAY BE PERMITTED AND REIMBURSED FOR THE SUNDAY DELAY."

IN THE ENDORSEMENT TO YOUR LETTER DATED NOVEMBER 6, 1969, FROM THE DIRECTOR, CIVILIAN MANPOWER MANAGEMENT, THE VIEW WAS EXPRESSED THAT DECISION OF THIS OFFICE DATED NOVEMBER 21, 1966, B-160258, PRECLUDES THE PAYMENT OF (1) THE EXTRA 1-1/4 DAYS PER DIEM CLAIMED BY EACH OF THE EMPLOYEES IN QUESTION RESULTING FROM THEIR PERFORMING NO TRAVEL ON SUNDAY, JUNE 8. THAT DECISION INVOLVED AN EMPLOYEE WHO, WHILE EN ROUTE FROM A TEMPORARY DUTY STATION TO HIS PERMANENT STATION FOLLOWING COMPLETION OF HIS TEMPORARY DUTY, INTERRUPTED HIS JOURNEY ON FRIDAY AND RESUMED IT AGAIN ON MONDAY SOLELY BECAUSE OF THE OCCURRENCE OF SATURDAY AND SUNDAY WHICH WERE NONWORKDAYS. IN THE CITED DECISION WE CONCLUDED THAT UNDER THE CIRCUMSTANCES RELATED THEREIN IT WOULD BE IMPROPER TO PAY PER DIEM FOR THE SATURDAY AND SUNDAY NONWORKDAYS.

THE FACTS IN THAT DECISION, HOWEVER, ARE REASONABLY DISTINGUISHABLE FROM THOSE IN THE PRESENT CASE. HERE THE EMPLOYEES INVOLVED HAD WORKED CONTINOUSLY FOR NEARLY 36 HOURS PRIOR TO THE COMPLETION OF THEIR TEMPORARY DUTY AFTER 4 P.M. ON SATURDAY, JUNE 7. UNDER SUCH CIRCUMSTANCES WE DO NOT CONSIDER THE DETERMINATION TO ALLOW THE EMPLOYEES TO DELAY THEIR DEPARTURE FROM MIAMI UNTIL MONDAY MORNING, JUNE 9, TO BE UNREASONABLE. HOWEVER, SUCH EMPLOYEES REASONABLY COULD HAVE BEEN EXPECTED TO HAVE TAKEN THE 8:35 A.M. FLIGHT OUT OF MIAMI WHICH WAS SCHEDULED TO ARRIVE IN NORFOLK BEFORE NOON ON THAT DAY RATHER THAN DELAYING THEIR DEPARTURE UNTIL THE 11:55 A.M. FLIGHT SCHEDULED TO ARRIVE IN NORFOLK AT 5:45 P.M.

UNDER ALL THE CIRCUMSTANCES IT IS OUR VIEW THAT CONSTRUCTIVE PER DIEM TO WHICH THE EMPLOYEES ARE ENTITLED SHOULD HAVE BEEN COMPUTED AS THOUGH THE EMPLOYEES HAD DEPARTED MIAMI AIRPORT ON THE 8:35 A.M. FLIGHT MONDAY, JUNE 9, 1969. ACCORDINGLY, THE CLAIM MAY BE ALLOWED UPON THAT BASIS. COMPARE DECISION OF AUGUST 1, 1968, B-164709, COPY ENCLOSED.