B-163654, JUN 22, 1971

B-163654, JUN 22, 1971

CIVILIAN EMPLOYEES - CHANGE OF STATION - TRAVEL WITHOUT DELAY - ARDUOUS TRAVEL ADVISING THAT ADMINISTRATIVE ACTIONS DISALLOWING CLAIM OF EMPLOYEE OF THE FAA FOR 4 DAYS PER DIEM AND IN CHARGING HIM WITH 4 DAYS ANNUAL LEAVE WERE CORRECT, THE CLAIM ARISING OUT OF A CHANGE OF STATION FROM SAN JUAN, PUERTO RICO, TO ANCHORAGE, ALASKA. SECTIONS 1.1, 1.2, 3.3, AND 6.10 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REQUIRE THAT AN EMPLOYEE TRAVELING AT GOVERNMENT EXPENSE PERFORM THE TRAVEL WITHOUT DELAY. AN EMPLOYEE IS, THEREFORE, REQUIRED TO TRAVEL ON NONWORK DAYS AND IS NOT ENTITLED TO PER DIEM FOR THE 4 DAYS DURING WHICH HE DID NOT TRAVEL. THE CHARGING OF ANNUAL LEAVE FOR THE DAYS IS A MATTER OF ADMINISTRATIVE DISCRETION. FINALLY, EMPLOYEE'S TRAVEL CANNOT BE CONSIDERED ARDUOUS AS THE TERM IS USED IN 5 U.S.C. 5542. WHILE IT IS POSSIBLE THAT ARDUOUS TRAVEL CONDITIONS WILL EXIST WHEN TRAVEL IS OVER UNUSUALLY ADVERSE TERRAIN OR DURING SEVERE WEATHER CONDITIONS, TRAVEL BY AUTOMOBILE PERFORMED ON A HARD -SURFACED ROAD DOES NOT QUALIFY AS SUCH. MOREOVER CHANGE OF STATION TRAVEL IS NOT GENERALLY WITHIN THE PURVIEW OF 5 U.S.C. 5542.

TO MR. R. J. SCHULLERY:

WE REFER TO YOUR LETTER OF APRIL 6, 1971, IN WHICH YOU INQUIRE AS TO WHETHER YOUR ACTIONS IN DISALLOWING MR. DEVENPORT'S CLAIM FOR 4 DAYS OF PER DIEM AND IN CHARGING MR. DEVENPORT WITH 4 DAYS ANNUAL LEAVE WERE CORRECT. YOU FURTHER INQUIRE AS TO WHETHER MR. DEVENPORT'S TRAVEL COULD BE CONSIDERED ARDUOUS, AS THAT TERM IS USED IN 5 U.S.C. 5542(B)(2)(B)(III). SUCH STATUTE, IN PERTINENT PART, IS AS FOLLOWS:

"(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES:

"(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 *** (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS *** ."

THE INFORMATION FURNISHED US SHOWS THAT MR. DEVENPORT, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION, RECEIVED AN OFFICIAL CHANGE OF STATION FROM SAN JUAN, PUERTO RICO, TO ANCHORAGE, ALASKA, BY AUTHORITY OF TRAVEL ORDER NO. 1846.51, DATED JUNE 16, 1970. THE ORDER PROVIDED THAT TRAVEL WAS TO BEGIN ON OR ABOUT JULY 12, 1970, AND THAT THE EMPLOYEE WAS TO REPORT TO HIS NEW DUTY STATION ON AUGUST 10, 1970. EIGHTY HOURS OF ANNUAL LEAVE EN ROUTE WAS APPROVED. THE EMPLOYEE DEPARTED SAN JUAN ON JULY 8, 1970, VIA AIR CARRIER AND ARRIVED IN MUSKEGON, MICHIGAN, ON THE SAME DAY. HE REMAINED IN MUSKEGON THROUGH JULY 26 IN AN ANNUAL LEAVE STATUS, AND ON JULY 27 DEPARTED MUSKEGON WITH HIS FAMILY VIA POV, ARRIVING IN PRINCE RUPERT, BRITISH COLUMBIA, CANADA, ON AUGUST 4. HE DEPARTED PRINCE RUPERT VIA THE ALASKAN FERRY ON AUGUST 5 AND DEBARKED AT HAINES, ALASKA, ON AUGUST 6. HE DEPARTED HAINES VIA POV ON AUGUST 6 AND ARRIVED IN TOK JUNCTION, ALASKA, ON AUGUST 7. ON AUGUST 10 THE EMPLOYEE LEFT TOK JUNCTION AND ARRIVED IN ANCHORAGE THE SAME DAY AT 4:15 P.M. LOCAL TIME. HE THEN REPORTED FOR DUTY ON AUGUST 11. DURING THIS PERIOD OF TRAVEL, MR. DEVENPORT STOPPED HIS TRAVEL TO SPEND 2 DAYS IN CALGARY, ALBERTA, CANADA (SATURDAY, AUGUST 1 AND SUNDAY, AUGUST 2) AND 2 DAYS IN TOK JUNCTION, ALASKA (SATURDAY, AUGUST 8 AND SUNDAY, AUGUST 9).

THE EMPLOYEE'S REQUEST FOR PER DIEM FOR THESE 4 DAYS WAS DENIED BY YOU, AND THE EMPLOYEE WAS CHARGED WITH 4 DAYS ANNUAL LEAVE. MR. DEVENPORT QUESTIONS THE PROPRIETY OF THESE ACTIONS ON THE GROUNDS THAT HE WAS NOT REQUIRED TO, OR WAS NOT ADVISED OF THE NECESSITY TO, TRAVEL CONTINUOUSLY STRAIGHT THROUGH TO ANCHORAGE WITHOUT TAKING HIS NORMAL WEEKENDS AND THAT TO HAVE SO TRAVELED WOULD HAVE BEEN IMPOSSIBLE DUE TO THE HEAVY RAINS AND ROAD CONSTRUCTION THAT HE ENCOUNTERED ON THE ALCAN HIGHWAY. THE EMPLOYEE MADE THE TRIP WITH HIS WIFE AND THREE SMALL CHILDREN IN A VW BUS, WHICH WAS HEAVILY LOADED WITH HOUSEHOLD GOODS AND WHICH WAS UNDERPOWERED FOR MOUNTAIN DRIVING. FURTHER, THE EMPLOYEE'S ATTORNEY QUESTIONS WHETHER THE MOUNTAIN TRAVEL MIGHT NOT BE CONSIDERED ARDUOUS UNDER 5 U.S.C. 5542, AND, CONSEQUENTLY, WHETHER MR. DEVENPORT MIGHT NOT CLAIM OVERTIME COMPENSATION.

IT HAS BEEN CONSISTENTLY HELD BY THIS OFFICE THAT SECTIONS 1.1, 1.2, 3.3 AND 6.10 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REQUIRE THAT AN EMPLOYEE TRAVELING AT GOVERNMENT EXPENSE PERFORM THE NECESSARY TRAVEL WITHOUT DELAY AND IN AN ECONOMICAL MANNER. A GOVERNMENT EMPLOYEE IS REQUIRED TO PROCEED AS EXPEDITIOUSLY AS HE WOULD IF TRAVELING ON HIS OWN PERSONAL BUSINESS, EVEN THOUGH HE MAY BE REQUIRED TO TRAVEL ON NONWORKDAYS. 39 COMP. GEN. 250, 251 (1959); 46 COMP. GEN. 425, 426 (1966). CONSEQUENTLY, YOUR ACTION IN DENYING THE EMPLOYEE PER DIEM FOR THE 4 DAYS DURING WHICH HE DID NOT TRAVEL WAS CORRECT. ORDINARILY, ANY DELAYS DUE TO WEATHER OR ROAD CONDITIONS WOULD BE FOR CONSIDERATION. HOWEVER, THE DELAY HERE ON WEEKENDS SEEM TO HAVE BEEN PRIMARILY FOR PERSONAL REASONS.

IN 38 COMP. GEN. 513, 515-16 (1959) WE STATED:

"WE KNOW OF NO SOUND OR REASONABLE BASIS UPON WHICH TO CONCLUDE THAT TRAVEL TIME ON PERMANENT CHANGE OF STATION MIGHT BE ALLOWED FOR ANY PURPOSE OTHER THAN TO ACCOMPLISH THE TRAVEL REQUIRED UNDER THE CHANGE OF STATION ORDERS. CONSEQUENTLY, UNLESS THE COLLATERAL CONSIDERATION OF CONVENIENCE TO THE TRAVELER CAN FIT WITHIN THAT FRAMEWORK, WE ARE OF THE OPINION THAT ANY TIME FOR TRAVEL ARISING FROM PERSONAL REASONS, TO THE EXTENT THAT IT EXCEEDS THE TRAVEL TIME NECESSARY TO MEET THE BASIC TRAVEL REQUIREMENTS IN A MANNER AND BY A MEANS IN WHICH IT CAN BE SAID THAT THE GOVERNMENT'S INTEREST IS INVOLVED, SHOULD NOT BE CONSIDERED AS AUTHORIZED TRAVEL TIME, BUT PROPERLY SHOULD BE A CHARGE AGAINST AUTHORIZED LEAVE OF ABSENCE."

AS THE CHARGING OF ANNUAL LEAVE IS PRIMARILY A MATTER FOR ADMINISTRATIVE CONSIDERATION, YOUR ADMINISTRATION WOULD HAVE THE DISCRETION TO CHARGE OR NOT TO CHARGE THE EMPLOYEE ANNUAL LEAVE FOR THE EXCESS TIME CONSUMED BY REASON OF FAILURE TO TRAVEL ON THE WEEKENDS. AS INDICATED IN YOUR LETTER IT WOULD SEEM THAT HE SHOULD ONLY BE CHARGED BY YOU FOR THE WORKDAYS HE MISSED, NAMELY, AUGUST 7 AND 10, 1970. HOWEVER, IN THIS CONNECTION, WE ALSO NOTE THAT PERHAPS THE EMPLOYEE SHOULD HAVE BEEN CHARGED ANNUAL LEAVE FOR EARLY DEPARTURE FROM SAN JUAN.

FINALLY, WE MUST CONCLUDE THAT MR. DEVENPORT'S TRAVEL CANNOT BE CONSIDERED ARDUOUS, AS THE TERM IS USED IN 5 U.S.C. 5542. WHETHER AN EMPLOYEE'S TRAVEL IS PERFORMED UNDER "ARDUOUS CONDITIONS" MUST BE DETERMINED UPON THE FACTS OF EACH INDIVIDUAL CASE. IT IS POSSIBLE THAT ARDUOUS CONDITIONS WILL EXIST WHEN SUCH TRAVEL IS OVER UNUSUALLY ADVERSE TERRAIN OR DURING SEVERE WEATHER CONDITIONS. A DISTINCTION MUST BE DRAWN, HOWEVER, BETWEEN ARDUOUS CONDITIONS AND HAZARDOUS CONDITIONS, ALTHOUGH THE LATTER MAY CONTRIBUTE TO THE FORMER. TRAVEL BY AUTOMOBILE THAT IS PERFORMED ON A HARD-SURFACED ROAD, AS WAS THE MAJOR PORTION OF THE TRAVEL INVOLVED HERE, UNDER NO UNUSUALLY ADVERSE WEATHER CONDITIONS WOULD NOT NORMALLY CONSTITUTE TRAVEL UNDER ARDUOUS CONDITIONS. 41 COMP. GEN. 82, 85 -86 (1961). MOREOVER, WE DO NOT REGARD PERMANENT CHANGE OF STATION TRAVEL AS GENERALLY WITHIN THE CONTEMPLATION OF SUCH OVERTIME STATUTE. THIS IS SO BECAUSE AN EMPLOYEE USUALLY HAS A CHOICE AS TO THE MEANS OF TRANSPORTATION TO BE USED IN EFFECTING THE CHANGE OF STATION AS WELL AS A CERTAIN LEEWAY AS TO WHEN IT WILL BE PERFORMED. HERE, THE EMPLOYEE COULD HAVE TRAVELED BY AIR ON TO ALASKA FROM MICHIGAN BUT ELECTED TO USE A PRIVATELY OWNED VEHICLE.

THEREFORE, THERE APPEARS NO AUTHORITY FOR ALLOWING MR. DEVENPORT ANY ADDITIONAL AMOUNT FOR THE TRAVEL IN QUESTION.