B-181275, DEC 24, 1974, 54 COMP GEN 515

B-181275, DEC 24, 1974, 54 COMP GEN 515

COMPENSATION - OVERTIME - TRAVEL TIME - CONGESTED TRAFFIC TIME SPENT IN TRAVEL OUTSIDE OF HIS SCHEDULED WORKDAY BY WAGE BOARD EMPLOYEE IN RETURN TRAVEL TO OFFICIAL DUTY STATION AFTER RECEIVING MEDICAL EXAMINATION AT TEMPORARY DUTY STATION, ALTHOUGH DELAYED BY CONGESTED TRAFFIC, DOES NOT CONSTITUTE TRAVEL AWAY FROM OFFICIAL DUTY STATION OCCASIONED BY EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY AS CONTEMPLATED BY 5 U.S.C. 5544(A)(IV) AS CONDITION FOR PAYMENT OF OVERTIME COMPENSATION, SINCE SUCH TRAVEL OUTSIDE REGULAR DUTY HOURS WAS NOT NECESSITATED BY CONGESTED TRAFFIC BUT RESULTED FROM SCHEDULING OF MEDICAL EXAMINATION WHICH WAS WITHIN ADMINISTRATIVE CONTROL AND, THEREFORE, IS NOT COMPENSABLE AS OVERTIME.

IN THE MATTER OF OVERTIME COMPENSATION FOR DELAYED TRAVEL, DECEMBER 24, 1974:

THIS IS A REQUEST FOR AN ADVANCE DECISION FROM MAJOR F.P. SPERA, FINANCE AND ACCOUNTING OFFICE, DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, MARYLAND, REFERENCE STEAP-CO-F, CONCERNING THE CLAIM OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS (IAMAW), LOCAL LODGE 2424, ON BEHALF OF ONE OF ITS MEMBERS, MR. PAUL W. JONES. THE REQUEST FOR AN ADVANCE DECISION WAS FORWARDED TO OUR OFFICE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY BY LETTER OF MAY 15, 1974.

THE RECORD SHOWS THAT ON JUNE 15, 1973, MR. JONES AND FOUR OTHER WAGE BOARD EMPLOYEES OF THE ABERDEEN PROVING GROUND (APG) COMMAND DEPARTED FROM APG AT 7:15 A.M. AND TRAVELED TO FORT MYER, VIRGINIA, BY GOVERNMENT VEHICLE PURSUANT TO TEMPORARY DUTY TRAVEL AUTHORIZATION FOR THE PURPOSE OF RECEIVING MEDICAL EXAMINATIONS. AFTER INTERMEDIATE STOPS AT FORT MEADE, MARYLAND, AND WALTER REED HOSPITAL, WASHINGTON, D.C., THE EMPLOYEES ARRIVED AT FORT MYER AT 11:30 A.M. IT APPEARS THAT MEDICAL EXAMINATIONS WERE CONDUCTED AND THAT, AFTERWARDS, THE EMPLOYEES DEPARTED FROM FORT MYER AT 3 P.M., AGAIN TRAVELING BY GOVERNMENT VEHICLE, AND ARRIVED BACK AT APG AT 5:45 P.M., 2 HOURS AFTER THEIR SCHEDULED DAILY TOUR OF DUTY ENDED. THE RECORD FURTHER SHOWS THAT THE EMPLOYEES PASSED THROUGH THE BALTIMORE HARBOR TUNNEL DURING THEIR RETURN TRAVEL TO APG AND ENCOUNTERED CONGESTED TRAFFIC WHICH DELAYED THEIR RETURN APPROXIMATELY 45 MINUTES.

THE UNION CONTENDS THAT MR. JONES IS ENTITLED TO OVERTIME COMPENSATION FOR THE 2 EXTRA HOURS UNDER ARTICLE XXXVI, SECTION 1, OF THE AGREEMENT BETWEEN APG AND LOCAL LODGE 2424, WHICH STATES:

SECTION 1. TIME SPENT BY A UNIT EMPLOYEE ON OFFICIAL ORDERS ACTUALLY TRAVELING OUTSIDE HIS REGULARLY SCHEDULED TOUR OF DUTY IS NOT CONSIDERED HOURS OF EMPLOYMENT UNLESS ONE OF THE EXCEPTIONAL CONDITIONS EXIST:

A. THE TRAVEL INVOLVES ACTUAL PERFORMANCE OR WORK WHILE TRAVELING.

B. THE TRAVEL IS INCIDENT TO WORK PERFORMED WHILE TRAVELING.

C. THE TRAVEL IS CARRIED OUT UNDER ARDUOUS AND UNUSUAL CONDITIONS SUCH THAT IT IS INSEPARABLE FROM WORK.

D. THE TRAVEL RESULTS FROM AN EMERGENCY OR OTHER EVENT REQUIRING IMMEDIATE OFFICIAL ACTION THAT COULD NOT HAVE BEEN REALISTICALLY SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

IN VIEW OF THE FOREGOING, TRAVEL FOR UNIT EMPLOYEE WILL BE SCHEDULED, AS FAR AS PRACTICABLE SO THAT THE TRAVEL TIME COINCIDES WITH THE EMPLOYEE'S REGULARLY SCHEDULED HOURS OF WORK. HOWEVER, WHEN EMPLOYEES ARE REQUIRED TO TRAVEL OUTSIDE THEIR REGULARLY SCHEDULED TOUR OF DUTY UNDER ONE OF THE EXCEPTIONAL CONDITIONS LISTED ABOVE, OVERTIME WILL BE PAID PROVIDED THE OVERTIME IS OFFICIALLY ORDERED IN ADVANCE OR IS APPROVED FOLLOWING THE TRAVEL. WHEN EMPLOYEES ARE REQUIRED TO TRAVEL OUTSIDE THEIR REGULARLY SCHEDULED TOUR OF DUTY AND NONE OF THE ABOVE EXCEPTIONAL CONDITIONS APPLIES, OVERTIME PAY WILL NOT BE APPROVED. IN THE LATTER EVENT, THE EMPLOYER WILL RECORD THE REASONS OF ORDERING SUCH TRAVEL AND, UPON REQUEST, WILL FURNISH A COPY TO THE EMPLOYEE CONCERNED.

THE ABOVE-QUOTED SECTION OF THE EMPLOYMENT AGREEMENT IN THE INSTANT CASE IS BASED ON SECTION 5544(A) OF TITLE 5, U.S. CODE, WHICH GOVERNS OVERTIME COMPENSATION FOR WAGE BOARD EMPLOYEES AND PROVIDES IN PERTINENT PART THAT:

*** TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE SUBJECT TO THIS SUBSECTION IS NOT HOURS OF WORK UNLESS 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.

THE ISSUE PRESENTED IS WHETHER THE RETURN TRAVEL PERFORMED OUTSIDE THE REGULAR DUTY HOURS OF THE EMPLOYEE RESULTED FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY AND WHICH, THEREFORE, CAME WITHIN THE LANGUAGE OF SECTION 5544(A)(IV), MENTIONED ABOVE.

FEDERAL PERSONNEL MANUAL, PAGE 550-8.02, IMPLEMENTS THE ABOVE STATUTORY PROVISION AS FOLLOWS:

(IV) CONDITIONS UNDER WHICH TRAVEL IS CONSIDERED HOURS OF WORK.

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. ***

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 ABOVE-QUOTED PASSAGE CLEARLY INDICATES THAT PAYMENT OF OVERTIME COMPENSATION FOR TRAVEL IN CONNECTION WITH AN UNCONTROLLABLE EVENT IS PROPER WHEN THE UNCONTROLLABLE EVENT NECESSITATES THE TRAVEL ORIGINALLY RATHER THAN WHEN IT MERELY OCCURS DURING AND DELAYS SUCH TRAVEL. MOREOVER, THIS OFFICE HAS TAKEN THE POSITION THAT IN ORDER FOR SUCH TRAVEL TO CONSTITUTE HOURS OF EMPLOYMENT WITHIN THE MEANING OF SECTION 5544(A)(IV), "*** THERE MUST HAVE EXISTED AN IMMEDIATE OFFICIAL NECESSITY OCCASIONED BY THE UNSCHEDULED AND ADMINISTRATIVELY UNCONTROLLABLE EVENT FOR TRAVEL BY THE EMPLOYEE DURING HOURS OUTSIDE HIS SCHEDULED WORKWEEK ***." B-163654, APRIL 19, 1968. SEE ALSO 51 COMP. GEN. 727 (1972); 50 COMP. GEN. 674 (1971); B-170683, NOVEMBER 16, 1970; B-160928, APRIL 16, 1970; AND 49 COMP. GEN. 209 (1969).

IT IS STATED THAT THE TRAVEL IN RETURNING TO APG FROM FORT MYER WAS DELAYED BY CONGESTED TRAFFIC AT THE BALTIMORE HARBOR TUNNEL WITH THE RESULT THAT ARRIVAL BACK TO THE DUTY STATION AT APG EXTENDED 2 HOURS BEYOND THE NORMAL WORKDAY. INFORMATION OBTAINED FROM THE BALTIMORE HARBOR TUNNEL POLICE SHOWS THAT THE HARBOR TUNNEL TRAFFIC NORTHBOUND ON JUNE 15, 1973, FROM APPROXIMATELY 3 P.M. TO 7 P.M. WAS HEAVY AND A 45 MINUTE DELAY WOULD NOT HAVE BEEN UNUSUAL. THERE IS NO EXPLANATION OF WHAT CAUSED THE ADDITIONAL DELAY OF 1 HOUR AND 15 MINUTES, SO THAT AT BEST, ONLY 45 MINUTES COULD BE ATTRIBUTED TO THE UNCONTROLLABLE EVENT. HOWEVER, WE BELIEVE THAT THE RETURN TRAVEL OUTSIDE REGULAR HOURS OF DUTY IN THE INSTANT CASE, ALTHOUGH IT MAY HAVE BEEN DELAYED BY CONGESTED TRAFFIC IN THE BALTIMORE HARBOR TUNNEL, AN ADMINISTRATIVELY UNCONTROLLABLE EVENT, WAS NOT OCCASIONED BY THAT DELAY BUT RATHER, THE RETURN TRAVEL OUTSIDE NORMAL DUTY HOURS RESULTED FROM THE SCHEDULING OF THE MEDICAL EXAMINATIONS, WHICH WAS ADMINISTRATIVELY CONTROLLABLE. ACCORDINGLY, THE 2 HOURS OF RETURN TRAVEL BY MR. JONES OUTSIDE HIS SCHEDULED WORKDAY DID NOT CONSTITUTE HOURS OF EMPLOYMENT WITHIN THE MEANING OF THE EXCEPTION CONTAINED IN 5 U.S.C. 5544(A) SO AS TO ENTITLE HIM TO OVERTIME COMPENSATION.