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B-146288, JAN 3, 1975

B-146288 Jan 03, 1975
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IS NOT ENTITLED TO OVERTIME COMPENSATION SINCE THE PERFORMANCE OF OVERTIME WORK WAS NOT OFFICIALLY ORDERED OR APPROVED AND THERE WAS NO SHOWING THAT THE WORK COULD ONLY BE PERFORMED WHILE THE EMPLOYEE WAS TRAVELING. 2. IS NOT ENTITLED TO OVERTIME COMPENSATION IN CONNECTION WITH TRAVEL RESULTING FROM AN ADMINISTRATIVELY UNCONTROLLABLE EVENT SINCE THE MEETING WAS SCHEDULED BY HIS AGENCY AND COULD HAVE BEEN CHANGED BY IT AND. THE TRAVEL WAS NOT MADE IN CONNECTION WITH AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. 3. TRAVELED AWAY FROM THE OFFICIAL DUTY STATION TO ATTEND A MEETING ON MONDAY IS NOT ENTITLED TO OVERTIME COMPENSATION BASED ON THE 1974 AMENDMENTS TO THE FAIR LABOR STANDARDS ACT SINCE THOSE AMENDMENTS WERE NOT EFFECTIVE UNTIL MAY 1.

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B-146288, JAN 3, 1975

1. AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE WHO SPENT THE TIME EN ROUTE REVIEWING CONTRACT SPECIFICATIONS, PLANS AND COMMUNICATIONS REQUIREMENTS, WHILE TRAVELING TO PERFORM TEMPORARY DUTY, IS NOT ENTITLED TO OVERTIME COMPENSATION SINCE THE PERFORMANCE OF OVERTIME WORK WAS NOT OFFICIALLY ORDERED OR APPROVED AND THERE WAS NO SHOWING THAT THE WORK COULD ONLY BE PERFORMED WHILE THE EMPLOYEE WAS TRAVELING. 2. AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WHO TRAVELED ON SUNDAY INCIDENT TO HIS ATTENDANCE AT A MONDAY MEETING AWAY FROM HIS OFFICIAL STATION, IS NOT ENTITLED TO OVERTIME COMPENSATION IN CONNECTION WITH TRAVEL RESULTING FROM AN ADMINISTRATIVELY UNCONTROLLABLE EVENT SINCE THE MEETING WAS SCHEDULED BY HIS AGENCY AND COULD HAVE BEEN CHANGED BY IT AND, THEREFORE, THE TRAVEL WAS NOT MADE IN CONNECTION WITH AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. 3. AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WHO ON SUNDAY, JANUARY 27, 1974, TRAVELED AWAY FROM THE OFFICIAL DUTY STATION TO ATTEND A MEETING ON MONDAY IS NOT ENTITLED TO OVERTIME COMPENSATION BASED ON THE 1974 AMENDMENTS TO THE FAIR LABOR STANDARDS ACT SINCE THOSE AMENDMENTS WERE NOT EFFECTIVE UNTIL MAY 1, 1974.

GENE L. DECONDO - OVERTIME COMPENSATION:

THIS DECISION INVOLVES THE RECONSIDERATION OF THE DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION OF A CLAIM FOR OVERTIME COMPENSATION BELIEVED DUE FOR TIME SPENT BY MR. GENE L. DECONDO, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, IN TRAVELING FROM GRIFFISS AIR FORCE BASE (AFB), NEW YORK, TO THE AIR FORCE ACADEMY, DENVER, COLORADO, ON SUNDAY, JANUARY 27, 1974, FOR A MEETING AT THE AIR FORCE ACADEMY ON MONDAY, JANUARY 28, 1974.

THE RECORD SHOWS THAT ON SUNDAY, JANUARY 27, 1974, MR. DECONDO, IN ACCORDANCE WITH TRAVEL ORDER NO. SO T-221, DATED JANUARY 25, 1974, TRAVELED FROM GRIFFISS AFB TO THE AIR FORCE ACADEMY TO PERFORM TEMPORARY DUTY (TDY). MR. DECONDO'S CLAIM FOR OVERTIME COMPENSATION FOR THE TIME SPENT IN TRAVELING WAS DENIED ON THE GROUNDS THAT NO WORK WAS ORDERED TO BE PERFORMED DURING THE TRAVEL, AND THE TRAVEL DID NOT RESULT FROM EVENTS WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. MR. DECONDO CLAIMS THAT HE WAS REQUIRED TO PERFORM WORK WHILE TRAVELING, AND THE TRAVEL RESULTED FROM AN EVENT THAT COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

IN HIS REQUEST FOR REVIEW MR. DECONDO HAS SUGGESTED THAT THE FAIR LABOR STANDARDS AMENDMENTS OF 1974 WOULD BE APPLICABLE, PARTICULARLY THOSE PROVISIONS CONCERNING TIME SPENT TRAVELING FROM THE OFFICIAL DUTY STATION. HOWEVER, SINCE THE TRAVEL IN THIS CASE TOOK PLACE ON JANUARY 27, 1974, AND THE AMENDMENTS TO THE FAIR LABOR STANDARDS ACT WERE NOT EFFECTIVE UNTIL MAY 1, 1974, THAT ACT IS NOT APPLICABLE IN THIS CASE.

BASICALLY, THIS CASE CONCERNS 5 U.S.C. 5542(B)(2)(B)(I) AND (IV) (1970). SECTION 5542 OF TITLE 5 OF THE U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS REGARDING PAYMENT OF OVERTIME COMPENSATION WHILE IN A TRAVEL STATUS:

"(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, *** OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

THE CONDITION SET FORTH AT 5 U.S.C. 5542(B)(2)(B)(I) (1970) THAT TRAVEL INVOLVED PERFORMANCE OF WORK WHILE TRAVELING IS EXPLAINED AT FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 550, S1 3B(2)(C)(IV) (ADDED JULY 1969) AS FOLLOWS:

"TRAVEL WHICH INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING GENERALLY MEANS, WITHIN THE STATUTE AND THE COMMISSION'S REGULATIONS, WORK WHICH CAN ONLY BE PERFORMED WHILE TRAVELING (SUCH AS MONITORING COMMUNICATIONS OR SIGNAL DEVICES USED IN AIR OR RAIL TRAFFIC OR ESCORTING A PRISONER TO A DISTANT PRISON). ON THE OTHER HAND, WHEN AN AGENCY REQUIRES AN EMPLOYEE TO PERFORM WORK WHILE TRAVELING, THE TIME SPENT PERFORMING THE WORK IS WORK EVEN THOUGH IT IS THE KIND OF WORK THAT WOULD ORDINARILY BE PERFORMED AT THE EMPLOYEE'S PLACE OF BUSINESS. IN THIS LATTER SITUATION, THE CRITERIA USED IN DETERMINING WHETHER OR NOT THE WORK WAS REQUIRED TO BE PERFORMED WHILE TRAVELING WILL BE THAT WHICH IS USED IN DETERMINING WHETHER OR NOT OVERTIME WORK IS OFFICIALLY ORDERED OR APPROVED. PAY, IF WARRANTED, WILL BE LIMITED TO TIME ACTUALLY SPENT WORKING."

THE RECORD INDICATES THAT MR. DECONDO STATED IN A LETTER OF MARCH 10, 1974, THAT "MOST OF THE TIME EN ROUTE WAS SPENT REVIEWING CONTRACT SPECIFICATIONS, PLANS AND COMMUNICATIONS REQUIREMENTS WHICH DICTATE MOST OF THE STRUCTURAL REQUIREMENTS. THIS INVOLVED REVIEW OF SEVERAL DOCUMENTS AND DRAWINGS. SINCE I WAS REPLACING AN ENGINEER (WHO WAS ILL), IT WAS NECESSARY THAT THIS REVIEW BE MADE PRIOR TO MY MEETING WITH THE PARTIES CONCERNED." HOWEVER, THE RECORD FAILS TO SHOW THAT MR. DECONDO'S AGENCY OFFICIALLY ORDERED OR APPROVED THE OVERTIME WORK WHICH HE STATED HE PERFORMED WHILE TRAVELING, OR THAT THE WORK WAS WORK WHICH COULD ONLY BE PERFORMED WHILE TRAVELING. THEREFORE, NO BASIS EXISTS FOR CONSIDERING HIS TRAVEL AS HAVING INCLUDED THE PERFORMANCE OF WORK WHILE TRAVELING, AS DEFINED ABOVE.

REGARDING PAYMENT OF OVERTIME COMPENSATION WHILE TRAVELING IN CONNECTION WITH AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, THE REGULATIONS IMPLEMENTING 5 U.S.C. 5542(B)(2)(B)(IV) (1970) - FPM SUPPLEMENT 990-2, BOOK 550, S1-3BC)(IV) STATES AT PAGE 550-8.03 (ADDED JULY 1969) THE FOLLOWING:

"TRAVEL WHICH RESULTS FROM AN EVENT WHICH CANNOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY IS ALSO A NEW CONDITION UNDER WHICH TRAVEL IS CONSIDERED HOURS OF WORK. THE PHRASE 'COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY' REFERS TO THE ABILITY OF AN EXECUTIVE AGENCY (AS DEFINED IN SECTION 105 OF TITLE 5, UNITED STATES CODE) AND THE GOVERNMENT OF THE DISTRICT OF COLUMBIA TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. THE CONTROL IS ASSUMED TO BE THE AGENCY'S WHETHER THE AGENCY HAS SOLE CONTROL, OR THE CONTROL IS ACHIEVED THROUGH A GROUP OF AGENCIES ACTING IN CONCERT, SUCH AS A TRAINING PROGRAM OR CONFERENCE SPONSORED BY A GROUP OF FEDERAL AGENCIES, OR SPONSORED BY ONE IN THE INTEREST OF ALL, OR THROUGH SEVERAL AGENCIES PARTICIPATING IN AN ACTIVITY OF MUTUAL CONCERN, SUCH AS AN AGENCY HEARING ON AN AIRCRAFT ACCIDENT.

"FOR EXAMPLE, TRAINING COURSES THROUGHOUT THE COUNTRY GENERALLY ARE SCHEDULED TO START AT THE BEGINNING OF THE WORKWEEK, AND USUALLY START AT 9 A.M. DAILY. ATTENDANCE AT TRAINING CENTERS LOCATED AWAY FROM AN EMPLOYEE'S DUTY STATION, THEREFORE, USUALLY WILL REQUIRE THE EMPLOYEE TO TRAVEL OUTSIDE HIS NORMAL WORK HOURS. SINCE THE AGENCY WHICH IS CONDUCTING THE TRAINING COURSE CAN SCHEDULE THE HOURS OF TRAINING, THE TRAINING COURSE IS AN EVENT WHICH CAN BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY; AND EMPLOYEES WHO ATTEND THE COURSE WILL NOT BE PAID FOR TIME IN TRAVEL STATUS REGARDLESS OF WHETHER EMPLOYED BY THE AGENCY CONDUCTING THE TRAINING COURSE OR ANOTHER AGENCY.

"ON THE OTHER HAND, TRAVEL WILL BE CONSIDERED HOURS OF WORK WHEN IT RESULTS FROM UNFORESEEN CIRCUMSTANCES (E.G., A BREAKDOWN OF EQUIPMENT) OR FROM AN EVENT WHICH IS SCHEDULED OR CONTROLLED BY SOMEONE OR SOME ORGANIZATION OUTSIDE OF GOVERNMENT. (SEE COMPTROLLER GENERAL DECISION B- 163654, APRIL 19, 1968.)"

THE RECORD INDICATES THAT MR. DECONDO IN A LETTER OF MARCH 10, 1974, STATED THAT THE MEETING WAS NOT AN ADMINISTRATIVELY CONTROLLABLE EVENT SINCE THE PROBLEMS THAT AROSE ON FRIDAY, JANUARY 25, DETERMINED THE "URGENCY OF THE NEED." HOWEVER, HE ALSO STATED THAT "ANY OF THE THREE AGENCIES HAD THE OPPORTUNITY TO CHANGE THE SCHEDULING OF THE MEETING" AND THAT "ANY OF MY SUPERVISORS COULD HAVE DECIDED TO SEND ME ON MONDAY RATHER THAN SUNDAY." IN VIEW OF THOSE STATEMENTS WE CANNOT DISAGREE WITH THE DETERMINATION THAT, SINCE THE EVENT WAS SCHEDULED BY THE AIR FORCE, AN EXECUTIVE AGENCY, IT WAS ADMINISTRATIVELY CONTROLLABLE AND THEREFORE PAYMENT FOR OVERTIME COMPENSATION WHILE IN TRAVEL STATUS WAS NOT ALLOWABLE.

IN VIEW OF THE ABOVE THE DISALLOWANCE OF MR. DECONDO'S CLAIM IS SUSTAINED.

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