B-169078, APR. 22, 1970

B-169078, APR. 22, 1970

COMPENSATION--OVERTIME--TRAVEL TIME--STATUS ASSUMING FEDERAL AVIATION ADMINISTRATION SERVICES AT NON-FAA LOCATIONS, INCIDENT TO PUBLIC EVENTS (AIR SHOWS, RACES, ETC.) ARE PROVIDED FOR PROTECTION OF AIR TRAFFIC AND PUBLIC SAFETY, REQUIRED TRAVEL TIME OF AIR TRAFFIC CONTROLLERS AND ELECTRONIC TECHNICIANS DURING PERIOD OF TWO SUCCESSIVE OFF-DUTY DAYS WOULD CONSTITUTE OVERTIME HOURS OF WORK SINCE SERVICES ARE FURNISHED PURSUANT TO STATUTORY FUNCTION UNDER 49 U.S.C. 1348 (B), ALBEIT ON DISCRETIONARY BASIS, AND TRAVEL IS CONSEQUENCE OF OFFICIAL NECESSITY ONCE DETERMINATION TO PROVIDE SERVICES IS MADE; ALSO, ADDED PER DIEM COST MAKES IT UNREASONABLE TO REQUIRE AVOIDANCE OF SCHEDULED TRAVEL DURING OFF-DUTY HOURS.

TO MR. JOHN H. SHAFFER:

BY LETTER OF FEBRUARY 12, 1970, MR. D. D. THOMAS, ACTING ADMINISTRATOR, REQUESTED OUR ADVICE CONCERNING THE APPLICABILITY OF SECTION 5542 (B) (2) (B) OF TITLE 5, U.S.C. WITH RESPECT TO TRAVEL PERFORMED BY AIR TRAFFIC CONTROL SPECIALISTS AND ELECTRONIC TECHNICIANS TO PROVIDE TEMPORARY TOWER AND FLIGHT ASSISTANCE SERVICES AT NON FEDERAL AVIATION ADMINISTRATION (FAA) LOCATIONS IN THE FOLLOWING CIRCUMSTANCES.

PUBLIC EVENTS SUCH AS AIR SHOWS, RACES, FOOTBALL GAMES AND SIMILAR ATTRACTIONS OCCURRING AT LOCATIONS NOT NORMALLY SUPPLIED WITH FAA SERVICES OFTEN GENERATE AN UNUSUAL VOLUME OF AIR TRAFFIC AT SURROUNDING AIRPORTS. TEMPORARY AIR TRAFFIC CONTROL OR FLIGHT ASSISTANCE SERVICES ARE FREQUENTLY REQUIRED ON THE DAY OF AN EVENT AND RESPONSIBLE OFFICIALS OF AN EVENT OR AIRPORT USUALLY REQUEST SUCH SERVICES SEVERAL WEEKS IN ADVANCE. IN LIGHT OF THE PROVISIONS OF SECTION 5542 (B) (2) (B) (IV), OF TITLE 5, QUESTION IS RAISED AS TO WHETHER OFF-DUTY TRAVEL TIME RELATED TO PROVIDING FAA SERVICES IN CONNECTION WITH SUCH EVENTS MAY BE CONSIDERED HOURS OF WORK AND COMPENSABLE AS OVERTIME.

THE CITED SECTION PROVIDES THAT:

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

IN DETERMINING WHETHER TO SUPPLY THESE TEMPORARY SERVICES, FAA CONSIDERS TWO FACTORS: (1) THE POTENTIAL AIR TRAFFIC SAFETY HAZARD AT THE LOCATION AND (2) THE AVAILABILITY OF AGENCY RESOURCES. THE SAFETY HAZARD FACTOR IS DETERMINED FROM EXPERIENCE WITH SIMILAR EVENTS AT THE SAME OR OTHER LOCATIONS AND THE CONSIDERATION OF SUCH ELEMENTS AS THE ESTIMATED INCREASE IN AIR TRAFFIC VOLUME, LOCAL TERRAIN CONDITIONS, TYPE AND CONDITION OF LOCAL LANDING FACILITY, WEATHER FORCAST CONDITIONS, ETC. A DETERMINATION IS THEN MADE AS TO THE TYPE AND EXTENT, IF ANY, OF SERVICES WHICH ARE NEEDED. SERVICES SO DETERMINED ARE PROVIDED WITHIN THE LIMITS OF MANPOWER, FUNDS, AND MATERIALS.

ORDER NO. 3550.9, JUNE 16, 1969, OF THE ACTING DIRECTOR OF PERSONNEL FOR FAA PROVIDES ADMINISTRATIVE GUIDANCE CONCERNING ENTITLEMENT TO OVERTIME PAY FOR TRAVEL PERFORMED OUTSIDE REGULARLY SCHEDULED TOURS OF DUTY. THE AGENCY ORDER FOLLOWS, GENERALLY, THE PROVISIONS OF CIVIL SERVICE COMMISSION FPM LETTER NO. 550-52, DATED FEBRUARY 5, 1969.

ONE CRITERION APPLIED IN DETERMINING THAT TRAVEL RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY CONCERNS WHETHER "AN EVENT * * * IS SCHEDULED OR CONTROLLED BY SOMEONE OR SOME ORGANIZATION OUTSIDE OF GOVERNMENT." CLEARLY EVENTS OF THE KIND MENTIONED WOULD BE UNDER THE CONTROL OF PERSONS OUTSIDE OF GOVERNMENT. HOWEVER, THAT FACT ALONE IS NOT SUFFICIENT WHERE THERE IS AMPLE ADVANCE NOTICE OF THE DATE SERVICES WILL BE NEEDED, TO QUALIFY RELATED OVERTIME TRAVEL HOURS AS HOURS OF WORK. TWO OTHER REQUISITES MUST BE MET--(1) THERE MUST EXIST AN OFFICIAL NECESSITY IN CONNECTION WITH THE ADMINISTRATIVELY UNCONTROLLABLE EVENT AND (2) THE SCHEDULED START OF THE EVENT MUST REQUIRE TRAVEL DURING A PERIOD OF AT LEAST TWO SUCCESSIVE OFF-DUTY DAYS.

WHERE AMPLE NOTICE IS AVAILABLE CONCERNING THE TIME TRAVEL WILL BE REQUIRED, IT MAY NOT BE SAID THAT SCHEDULING OF TRAVEL IS BEYOND ADMINISTRATIVE CONTROL. SUCH TRAVEL REQUIRED DURING AN EMPLOYEE'S ADMINISTRATIVE WORKWEEK NORMALLY SHOULD BE SCHEDULED DURING HIS REGULAR WORKING HOURS. ANY ADDED PER DIEM COSTS INVOLVED IS NOT CONSIDERED UNREASONABLE IN LIGHT OF THE EXPRESSED CONGRESSIONAL POLICY THAT TRAVEL SHOULD ORDINARILY BE SCHEDULED DURING REGULAR WORKING HOURS. BUT WHERE THE SCHEDULING OF TRAVEL TO AVOID OVERTIME HOURS OF WORK WOULD INVOLVE ADDITIONAL PER DIEM COST FOR TWO DAYS, THE ADDED COST MAKES IT UNREASONABLE, IN OUR VIEW, TO REQUIRE THE AVOIDANCE OF SCHEDULING TRAVEL DURING OFF-DUTY HOURS. SEE FPM LETTER NO. 550-52. SEE ALSO 5 U.S.C. 6101 (B) PROVIDING FOR THE SCHEDULING OF TRAVEL DURING REGULAR SCHEDULED WORKWEEK TO THE MAXIMUM PRACTICABLE EXTENT.

WE ASSUME THAT THE SERVICES IN QUESTION ARE PROVIDED UNDER THE AUTHORITY SET FORTH AT SECTION 1348 (B) OF TITLE 49, U.S.C. "TO PROVIDE NECESSARY FACILITIES AND PERSONNEL FOR THE REGULATION AND PROTECTION OF AIR TRAFFIC." SINCE THE SERVICES ARE FURNISHED PURSUANT TO A STATUTORY FUNCTION, ALBEIT ON A DISCRETIONARY BASIS, THE ASSOCIATED TRAVEL IS A CONSEQUENCE OF OFFICIAL NECESSITY ONCE THE DETERMINATION TO PROVIDE SERVICES IS MADE. GENERALLY, THEN, IF FAA RESPONDS TO THE DEMANDS OF PUBLIC SAFETY OCCASIONED BY EVENTS OF THE KIND DESCRIBED, REQUIRED TRAVEL TIME OF AIR TRAFFIC CONTROLLERS AND ELECTRONIC TECHNICIANS DURING A PERIOD OF TWO SUCCESSIVE OFF-DUTY DAYS WOULD CONSTITUTE OVERTIME HOURS OF WORK. (THE ANSWER HERE IS TO BE DISTINGUISHED FROM EXAMPLE 5B IN ORDER NO. 3550.9 IN THAT THERE SCHEDULING OF THE EVENT IS WITHIN ADMINISTRATIVE CONTROL AND IT IS CONSIDERATIONS OF POLICY WHICH DICTATE A TIME THAT MIGHT NECESSITATE OVERTIME TRAVEL.) RETURN TRAVEL TO AN EMPLOYEE'S REGULAR DUTY STATION MIGHT OR MIGHT NOT BE DUTY STATUS, DEPENDING UPON WHETHER THE RETURN TRAVEL IS ADMINISTRATIVELY CONTROLLABLE. SEE EXAMPLES SET FORTH AT 2A (2) OF APPENDIX 1 TO ORDER NO. 3550.9.