B-168119, MAY 25, 1971

B-168119, MAY 25, 1971

CIVILIAN EMPLOYEES - OVERTIME COMPENSATION - EVENT BEYOND ADMINISTRATIVE CONTROL SUSTAINING DISALLOWANCE OF CLAIMS OF MESSRS. ROBERT A. MABANE AND GEORGE M. HAYWOOD FOR OVERTIME COMPENSATION ALLEGED DUE INCIDENT TO TRAVEL FROM NEWPORT NEWS, VA., TO CLARK AFB, PHILADELPHIA, PA. THE EXTRA TRAVEL TIME WHICH RESULTED FROM THE BREAKDOWN OF EQUIPMENT ON THE AIRCRAFT IS NOT COMPENSABLE UNDER ANY STATUTE AT OVERTIME RATES; OVERTIME COMPENSATION FOR TIME SPENT IN TRAVEL AS ALLOWED BY 5 U.S.C. 5542(B)(2)(B) RESULTING FROM AN EVENT WHICH COULD NOT BE ADMINISTRATIVELY CONTROLLED IS FOR AN EVENT WHICH NECESSITATED THE TRAVEL IN THE FIRST INSTANCE.

TO MR. ROGER P. KAPLAN:

THIS REFERS TO YOUR LETTER OF FEBRUARY 18, 1971, ON BEHALF OF MESSRS. ROBERT A. MEBANE AND GEORGE M. HAYWOOD REQUESTING RECONSIDERATION OF THEIR CLAIMS FOR OVERTIME COMPENSATION WHICH WERE DISALLOWED BY OUR SETTLEMENT CERTIFICATES DATED OCTOBER 13, 1970.

THE RECORD INDICATES THAT MESSRS. MEBANE AND HAYWOOD WERE AUTHORIZED TO TRAVEL FROM NEWPORT NEWS, VIRGINIA, TO CLARK AIR FORCE BASE, PHILIPPINES, WITH A STOPOVER AT TRAVIS AIR FORCE BASE IN CALIFORNIA, AND THAT TAKING INTO ACCOUNT A DELAY OF SOME 8 HOURS DUE TO MECHANICAL FAILURES ABOARD THE MILITARY AIRCRAFT ON WHICH THEY WERE TRAVELING, THEIR TOTAL TIME IN A TRAVEL STATUS BETWEEN TRAVIS AIR FORCE BASE AND CLARK AIR FORCE BASE WAS SOME 30 HOURS, 16 OF WHICH WERE ACTUAL FLYING TIME. THE PURPOSE OF THEIR TRAVEL WAS FOR VALIDATION OF SHIPBOARD EQUIPMENT ABOARD THE U.S.S. "ENTERPRISE" LOCATED OFF THE PHILIPPINE ISLANDS. NO OVERTIME WAS AUTHORIZED PRIOR TO TRAVEL TO BE PAID WHILE IN A TRAVEL STATUS, AND THERE IS NO SHOWING THAT THE TIME SPENT IN TRAVEL WAS WITHIN REGULARLY SCHEDULED OVERTIME HOURS.

THE CLAIMS OF MESSRS. MEBANE AND HAYWOOD FOR OVERTIME FOR TRAVEL ARE BASED ON THE ABOVE FACTS WITH RESPECT TO WHICH YOU STATE:

" *** MESSRS. MEBANE AND HAYWOOD, THROUGHOUT THE WHOLE TRIP, DID NOT HAVE AN OPPORTUNITY TO GET SOME SLEEP AND REST. DURING THE DELAYS AT TRAVIS AFB AND ANCHORAGE, THEY WERE SPECIFICALLY TOLD NOT TO LEAVE THE TERMINAL AS IT WAS THOUGHT THE AIRCRAFT WOULD BE READY TO LEAVE SHORTLY. IN ADDITION, THESE MEN SPECIFICALLY REQUESTED THAT THIS TRIP BE SPLIT INTO TWO PARTS WITH A REST STOP. HOWEVER, THIS REQUEST WAS NOT GRANTED."

THE AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION FOR TIME SPENT IN A TRAVEL STATUS IS 5 U.S.C. 5542(B)(2). SUBPART (A) THEREOF AUTHORIZES PAYMENT WHEN WITHIN REGULARLY SCHEDULED OVERTIME HOURS. IT DOES NOT APPLY TO THE FACTS HERE INVOLVED. SUBPART (B) PRESCRIBES THE REMAINING FOUR CIRCUMSTANCES IN WHICH OVERTIME COMPENSATION IS AUTHORIZED AS FOLLOWS:

"(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 MESSRS. MEBANE'S AND HAYWOOD'S TRAVEL DID NOT INVOLVE THE PERFORMANCE OF WORK WHILE TRAVELING NOR WAS THEIR TRAVEL PERFORMED INCIDENT TO TRAVEL WHICH INVOLVED THE PERFORMANCE OF WORK WHILE TRAVELING. ADDITIONALLY, THE CIRCUMSTANCES OF THEIR TRAVEL DID NOT CONSTITUTE TRAVEL UNDER "ARDUOUS CONDITIONS" AS THAT TERM IS USED IN THE ABOVE-QUOTED PROVISION. FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3, WHICH IMPLEMENTS THAT SECTION OF THE CODE PROVIDES AT PAGE 550-8.02 AS FOLLOWS:

" - THUS, TRAVEL UNDER ARDUOUS CONDITIONS WOULD INCLUDE TRAVEL OVER UNUSUALLY ADVERSE TERRAIN, DURING SEVERE WEATHER CONDITIONS, OR TO REMOTE, BARELY ACCESSIBLE FACILITIES BY FOOT, HORSEBACK OR A TRUCK. TRAVEL BY AUTOMOBILE OVER A HARD SURFACED ROAD WHEN NO UNUSUALLY ADVERSE WEATHER CONDITIONS ARE ENCOUNTERED, OR TRAVEL BY RAIL WOULD NOT NORMALLY CONSTITUTE TRAVEL UNDER ARDUOUS CONDITIONS. IN ADDITION, THE TIME OF TRAVEL (WHETHER TO BE PERFORMED DURING DAY OR NIGHT) OR DISTANCE TRAVELED, IS NOT ORDINARILY CONSIDERED IN DETERMINING WHETHER THE TRAVEL IS PERFORMED UNDER ARDUOUS CONDITIONS. A DISTINCTION SHOULD ALSO BE DRAWN BETWEEN ARDUOUS CONDITIONS AND HAZARDOUS CONDITIONS, KEEPING IN MIND THAT THE LATTER MAY CONTRIBUTE TO THE FORMER. (SEE 28 COMP. GEN. 547; 41 ID 82.)"

THE FOURTH BASIS UPON WHICH TRAVEL TIME MAY BE CONSIDERED WORK FOR PURPOSES OF OVERTIME COMPENSATION IS WHEN THE TRAVEL RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. YOU ARGUE THAT THE BREAKDOWN OF EQUIPMENT ON THE AIRCRAFT WHICH DELAYED THE TRAVEL WAS SUCH AN EVENT WHICH COULD NOT BE CONTROLLED OR SCHEDULED ADMINISTRATIVELY AND THAT ON THAT ACCOUNT THE TRAVEL TIME IS COMPENSABLE AT OVERTIME RATES. THE FEDERAL PERSONNEL MANUAL LETTER 550 52 WHICH YOU CITE IN YOUR LETTER CLEARLY INDICATES THAT IT IS THE EVENT WHICH NECESSITATES THE EMPLOYEES' TRAVEL IN THE FIRST INSTANCE WHICH IS THE DETERMINING FACTOR. THE EVENT WHICH NECESSITATED THE TRAVEL HERE WAS A VALIDATION FUNCTION TO BE PERFORMED ABOARD THE U.S.S. "ENTERPRISE" LOCATED OFF THE PHILIPPINE ISLANDS. THE RECORD INCLUDES A SPECIFIC FINDING BY THE SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR, USN, NEWPORT NEWS, THAT THE EVENT FOR WHICH THE TRAVEL WAS BEING PERFORMED WAS AN EVENT THAT WAS CONTROLLED ADMINISTRATIVELY. MECHANICAL FAILURE OF THE AIRCRAFT BY WHICH THE TRAVEL WAS PERFORMED WAS NOT THE EVENT CAUSING THE TRAVEL TO BE DIRECTED IN THE FIRST INSTANCE AND THEREFORE HAS NO BEARING ON WHETHER TRAVEL PERFORMED COMES WITHIN THE PURVIEW OF THE ABOVE-QUOTED STATUTE. THIS REGARD, SEE OUR DECISION B-160928, APRIL 16, 1970, COPY ENCLOSED.

WE WOULD POINT OUT THAT OUR DECISION B-135092, MARCH 10, 1958, ON WHICH YOU RELY CONCERNS ENTITLEMENT TO PER DIEM IN LIEU OF SUBSISTENCE AND IS NOT RELEVANT TO THE QUESTION OF OVERTIME COMPENSATION. WE MIGHT ALSO ADD THAT YOUR CITATION TO OUR RECENT DECISION B-163654, JANUARY 26, 1971, FOR THE PROPOSITION THAT DELAY CAUSED BY AN UNFORESEEN CIRCUMSTANCE IS SUCH AN ADMINISTRATIVELY UNCONTROLLABLE EVENT AS TO BRING THE TRAVEL TIME WITHIN THE PURVIEW OF THE REGULATIONS AUTHORIZING OVERTIME COMPENSATION IS CLEARLY NOT IN ACCORDANCE WITH OUR HOLDING IN THAT CASE. THAT PART OF THE DECISION DID NOT DEAL WITH THE QUESTION OF WHETHER THE EMPLOYEE'S TRAVEL WAS OCCASIONED BY AN ADMINISTRATIVELY UNCONTROLLABLE EVENT. RATHER, IT WAS ASSUMED THAT THE TRAVEL WHICH THE EMPLOYEE THERE WAS REQUIRED TO PERFORM FELL WITHIN THE REQUIREMENT OF 5 U.S.C. 5542 SO AS TO CONSTITUTE HOURS OF EMPLOYMENT COMPENSABLE AT OVERTIME RATES IN ORDER THAT WE MIGHT CONSIDER THE QUESTION OF WHAT CONSTITUTED "USUAL WAITING TIME" AS THAT PHRASE IS USED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3.

SINCE THERE IS NO BASIS UNDER THE LAW OR REGULATIONS FOR PAYMENT OF OVERTIME TO MESSRS. MEBANE AND HAYWOOD DURING THE ABOVE-DESCRIBED PERIOD OF TRAVEL, THE DISALLOWANCES OF THEIR CLAIMS ARE SUSTAINED.