B-202544, AUG 31, 1981

B-202544, AUG 31, 1981

DIGEST: 1. UNDER 55 COMP.GEN. 1291 (1976), EMPLOYEES ON EXTENDED TEMPORARY DUTY ASSIGNMENTS (TDY) MAY BE REIMBURSED THEIR TRAVEL EXPENSES IN RETURNING HOME ON A WEEKEND IF THE AGENCY CONDUCTS A COST ANALYSIS AND DETERMINES THAT PERIODIC WEEKEND RETURN TRAVEL WOULD RESULT IN SAVINGS IN TERMS OF INCREASED PRODUCTIVITY AND REDUCED COSTS OF RECRUITEMENT AND RETENTION. FEDERAL HOME LOAN BANK BOARD, WITHOUT A COST ANALYSIS, ALLOWS FIELD EXAMINERS TO RETURN HOME 1 WEEKEND FOR EVERY 4 WEEKS OF TDY. THE BOARD MAY TEMPORARILY CONTINUE ITS CURRENT PRACTICE, BUT MUST CONDUCT A COST ANALYSIS BEFORE RENEGOTIATING CURRENT COLLECTIVE BARGAINING AGREEMENTS OR CHANGING CURRENT PRACTICE. 2. WEEKEND RETURN TRAVEL SHOULD BE PERFORMED OUTSIDE THE EMPLOYEE'S REGULAR DUTY HOURS OR DURING PERIODS OF AUTHORIZED LEAVE. AUTHORIZED LEAVE INCLUDES SCHEDULED AND APPROVED ANNUAL OR SICK LEAVE, COMPENSATORY TIME OFF, AND LEAVE WITHOUT PAY. ADMINISTRATIVE LEAVE DOES NOT CONSTITUTE AUTHORIZED LEAVE WITHIN THE MEANING OF THAT TERM AS USED IN 55 COMP.GEN. 1291. N AUTHORIZED RETURN UNDER 55 COMP.GEN. 1291.

FEDERAL HOME LOAN BANK BOARD - WEEKEND RETURN TRAVEL:

MR. RICHARD L. PETROCCI, DIRECTOR OF ADMINISTRATION, FEDERAL HOME LOAN BANK BOARD, HAS REQUESTED A DECISION CONCERNING WEEKEND RETURN TRAVEL BY EMPLOYEES OF THE AGENCY. THIS DECISION IS RENDERED PURSUANT TO 4 C.F.R. PART 22 (1981), ORIGINALLY PUBLISHED AS 4 C.F.R. PART 21 AT 45 FED.REG. 55689-92, AUGUST 21, 1980. WE HAVE RECEIVED COMMENTS ON THE BOARD'S REQUEST FROM THREE LOCAL UNIONS OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE).

THE BACKGROUND FACTS SUBMITTED CONCERNING THIS CASE ARE AS FOLLOWS. ONE OF THE FEDERAL HOME LOAN BANK BOARD'S MAJOR FUNCTIONS IS TO CONDUCT REGULAR EXAMINATIONS OF ALL FINANCIAL INSTITUTIONS INSURED BY THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION. APPROXIMATELY 850 SAVINGS AND LOAN EXAMINERS ARE IN A TRAVEL STATUS ABOUT 60 PERCENT OF THEIR TIME TO PERFORM THESE EXAMINATIONS. THE TRAVEL RESULTS IN EXTENDED ABSENCES FROM THEIR HOMES WHICH, BOTH MANAGEMENT AND UNION AGREE, HAVE A NEGATIVE IMPACT IN RECRUITING AND RETAINING EMPLOYEES.

SINCE THE EARLY 1970'S, THE BOARD HAS AUTHORIZED FIELD EXAMINERS TO RETURN HOME AT GOVERNMENT EXPENSE AT LEAST 1 WEEKEND FOR EACH 4 WEEKS OF EXTENDED TEMPORARY DUTY (TDY) AND TO PERFORM THIS TRAVEL DURING NORMAL DUTY HOURS ON FRIDAYS AND MONDAYS. IN ADDITION, THE BOARD HAS ALLOWED EXAMINERS TO RETURN HOME DURING NORMAL DUTY HOURS ON THE OTHER WEEKENDS, OF AN EXTENDED TDY ASSIGNMENT, BUT WITH REIMBURSEMENT LIMITED TO THE LESSER OF THE COST OF RETURN TRAVEL OR THE COST OF STAYING AT THE TDY SITE.

THE ABOVE WEEKEND RETURN PRACTICES ARE INCORPORATED IN THREE CURRENT COLLECTIVE BARGAINING AGREEMENTS BETWEEN THE BOARD AND LOCAL UNIONS. HOWEVER, WEEKEND TRAVEL PRACTICES HAVE BECOME THE SUBJECT OF A MAJOR BARGAINING DISPUTE IN CURRENT NEGOTIATIONS WITH OTHER LOCAL UNIONS. ORDER TO PROCEED THE BOARD BELIEVES THAT A COMPREHENSIVE LEGAL OPINION IS ESSENTIAL. THEREFORE, IT HAS RAISED SEVERAL QUESTIONS FOR OUR DECISION, AS FOLLOWS.

"A. ORDERED WEEKEND RETURN TRAVEL

"1. TO WHAT EXTENT AND UNDER WHAT CONDITIONS MAY WE ALLOW FOR AUTHORIZED (ORDERED) WEEKEND RETURN TRAVEL FOR MORALE PURPOSES DURING OFFICIAL DUTY HOURS?

"2. WHAT KIND OF LEAVE (ANNUAL, SICK, OR ADMINISTRATIVE) CONSTITUTES AUTHORIZED LEAVE AS REFERENCED IN 55 COMP.GEN. 1291? IF ADMINISTRATIVE LEAVE FALLS UNDER THIS CATEGORY, TO WHAT EXTENT, IF ANY, CAN THIS TYPE OF LEAVE BE GRANTED TO EMPLOYEES ON A CONTINUING BASIS FOR ORDERED WEEKEND RETURN TRAVEL?"

ANSWER

REIMBURSEMENT FOR OFFICIAL TRAVEL IS GOVERNED BY THE STANDARDS SET FORTH IN THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7, MAY 1973). FTR PARAS. 1-7.5C AND 1-8.4F PROVIDE THAT AN EMPLOYEE ON TDY MAY VOLUNTARILY RETURN ON NONWORKDAYS TO HIS OFFICIAL STATION OR RESIDENCE AND BE REIMBURSED FOR ROUNDTRIP TRANSPORTATION AND PER DIEM EN ROUTE, NOT TO EXCEED THE PER DIEM OR ACTUAL SUBSISTENCE AND TRAVEL EXPENSES WHICH WOULD HAVE BEEN ALLOWED HAD THE EMPLOYEE REMAINED AT HIS TDY STATION. ADDITION, THOSE PARAGRAPHS PROVIDE THAT "AT THE DISCRETION OF THE ADMINISTRATIVE OFFICIALS, A TRAVELER MAY BE REQUIRED TO RETURN TO HIS OFFICIAL STATION FOR NONWORKDAYS."

IN 55 COMP.GEN. 1291 (1976), WE HELD THAT EMPLOYEES COULD BE PAID THEIR TRAVEL EXPENSES FOR RETURNING HOME ON A WEEKEND UNDER THE LATTER PROVISION (REQUIRED RETURN) UNDER THE FOLLOWING CIRCUMSTANCES:

"*** IF AFTER APPROPRIATE COST ANALYSIS, THE AGENCY DETERMINES THAT THE COSTS OF PERIODIC WEEKEND RETURN TRAVEL ARE OUTWEIGHED BY SAVINGS IN TERMS OF INCREASED EFFICIENCY AND PRODUCTIVITY, AS WELL AS REDUCED COSTS OF RECRUITMENT AND RETENTION, SUCH RETURN TRAVEL MAY BE AUTHORIZED WITHIN THE LIMITS OF APPROPRIATIONS AVAILABLE FOR PAYMENT OF TRAVEL EXPENSES. ***"

WE ALSO STATED, IN 55 COMP.GEN. 1291 (1976), THAT UNTIL SUCH TIME AS THE GENERAL SERVICES ADMINISTRATION (GSA) TAKES ACTION TO ISSUE GUIDELINES COVERING THIS SITUATION, "AGENCIES SHOULD MAKE PRUDENT USE OF THE WEEKEND RETURN AUTHORITY."

THE FEDERAL HOME LOAN BANK BOARD HAS NOT CONDUCTED A COST ANALYSIS TO DETERMINE THE RELATIVE COST OF WEEKEND RETURN TRAVEL. THE AGENCY CLAIMS THAT IT IS WAITING FOR REGULATIONS FROM THE GENERAL SERVICES ADMINISTRATION BEFORE CONDUCTING SUCH A COST ANALYSIS.

IN A RECENT DECISION CONCERNING THE IMPLEMENTATION OF 55 COMP.GEN. 1291 WE HELD THAT, IN THE ABSENCE OF ANY COST ANALYSIS, A FOREST SERVICE EMPLOYEE COULD NOT BE REIMBURSED THE COST OF WEEKEND RETURN TRAVEL PURSUANT TO 55 COMP.GEN. 1291 SINCE THE AGENCY HAD SET OUT NO BASIS UPON WHICH TO DETERMINE THAT NET SAVINGS WOULD ACCURE TO THE GOVERNMENT. THOMAS ANDERSON, B-200601, JULY 31, 1981.

THE ANDERSON CASE, HOWEVER, INVOLVED A FACT SITUATION THAT IS DIFFERENT FROM THIS CASE. IT INVOLVED A SINGLE EMPLOYEE WHO WAS ON EXTENDED DUTY FOR 4 WEEKS AND THERE WAS NO LONG STANDING POLICY OF THE FOREST SERVICE ALLOWING WEEKEND RETURN TRAVEL. THERE WAS ALSO NO SHOWING THAT EMPLOYEES OF THAT AGENCY WERE TRAVELING A SUBSTANTIAL PERCENTAGE OF THE TIME. FINALLY, THERE WAS NO COLLECTIVE BARGAINING AGREEMENT WHICH ALLOWED FOR ORDERED WEEKEND RETURN TRAVEL.

IN THIS CASE, ALTHOUGH THE FEDERAL HOME LOAN BANK BOARD HAS NOT CONDUCTED A SPECIFIC COSTS ANALYSIS PURSUANT TO 55 COMP.GEN. 1291, THE BOARD'S PRACTICE OF ALLOWING PAID WEEKEND RETURN TRAVEL DURING EXTENDED TRAVEL ASSIGNMENTS EXISTED WELL BEFORE THAT DECISION WAS ISSUED. BOTH MANAGEMENT AND THE EMPLOYEE UNIONS RECOGNIZED, IN VIEW OF THE HEAVY TRAVEL PERFORMED BY THE EXAMINERS, THAT WEEKEND RETURN TRAVEL WAS ESSENTIAL TO BOOST MORALE, INCREASE PRODUCTIVITY, AND HELP RECRUITMENT AND RETENTION. IN THE PROCESS OF NEGOTIATING COLLECTIVE BARGAINING AGREEMENTS, MANAGEMENT AND UNION REPRESENTATIVES AGREED THAT ALLOWING RETURN TRAVEL ON 1 WEEKEND FOR EVERY 4 WEEKS OF EXTENDED TRAVEL ASSIGNMENTS WOULD BE MUTUALLY BENEFICIAL AND DESIRABLE IN TERMS OF MORALE, PRODUCTIVITY, RECRUITMENT AND RETENTION.

IN THOSE CIRCUMSTANCES, WE WILL NOT OBJECT TO THE BOARD'S TEMPORARY CONTINUATION OF ITS CURRENT PRACTICE OF ALLOWING EMPLOYEES ON EXTENDED TEMPORARY DUTY ASSIGNMENTS TO RETURN HOME AT GOVERNMENT EXPENSE ON 1 WEEKEND OUT OF EVERY 4 WEEKS OF TDY.

HOWEVER, IN VIEW OF OUR DECISION IN 55 COMP.GEN. 1291 AND THOMAS ANDERSON, SUPRA, WE BELIEVE THAT THE BOARD IS NOW REQUIRED TO CONDUCT A COST ANALYSIS OF ITS PRACTICE IN ORDER TO COMPLY WITH THOSE DECISIONS. HENCE, THE BOARD, AFTER CONSULTING WITH THE LOCAL UNIONS INVOLVED SHOULD CONDUCT A COST ANALYSIS BEFORE THE EXPIRATION AND RENEGOTIATION OF THE THREE CURRENT COLLECTIVE BARGAINING AGREEMENTS WHICH INCORPORATE THE CURRENT PRACTICE. MOREOVER, A COST ANALYSIS SHOULD BE CONDUCTED BEFORE THE BOARD ENTERS INTO ANY NEW AGREEMENT TO CHANGE THE CURRENT PRACTICE. IN THE MEANTIME, FOR THE REASONS STATED ABOVE, THE CURRENT PRACTICE MAY BE CONTINUED.

THE FURTHER QUESTION IS WHETHER THE BOARD MAY CONTINUE TO ALLOW WEEKEND RETURN TRAVEL DURING OFFICIAL DUTY HOURS. THE THREE LOCAL UNIONS OF AFGE ARGUE THAT IT IS NOW THE ACCEPTED POLICY OF THE AGENCY TO ALLOW FIELD EXAMINERS TO RETURN HOME ON WEEKENDS DURING NORMAL DUTY HOURS. THE REASON FOR THIS POLICY IS THAT EXAMINERS OFTEN TRAVEL LONG DISTANCES ON TDY ASSIGNMENTS AND IF TRAVEL IS NOT ALLOWED DURING NORMAL DUTY HOURS, EMPLOYEES WOULD NOT GET THE NECESSARY RELAXATION DURING THE WEEKEND. ALSO, ALL THREE UNIONS ARGUE THAT IF THIS POLICY IS CHANGED, THERE WILL BE A SIGNIFICANT DECREASE IN EMPLOYEE MORALE AND PRODUCTIVITY AND AN INCREASE IN COST DUE TO A HIGHER RATE OF EMPLOYEES LEAVING THE AGENCY.

OUR DECISION IN 55 COMP.GEN. 1291 (1976), SPECIFICALLY ANSWERED THE QUESTION ASKED WHEN WE HELD THAT:

"WEEKEND RETURN TRAVEL CONSTITUTES AN EXCEPTION TO THE DIRECTIVE ON SCHEDULING OF TRAVEL CONTAINED AT 5 U.S.C. 6101(B)(2) AND SHOULD BE PERFORMED OUTSIDE THE EMPLOYEE'S REGULAR DUTY HOURS OR DURING PERIODS OF AUTHORIZED LEAVE. HOWEVER, IN THE CASE OF EMPLOYEES NOT EXEMPT FROM THE FAIR LABOR STANDARDS ACT OVERTIME PROVISIONS, CONSIDERATION SHOULD BE GIVEN TO SCHEDULING REQUIRED TRAVEL TO MINIMIZE PAYMENT OF OVERTIME, INCLUDING SCHEDULING OF TRAVEL DURING REGULAR DUTY HOURS WHERE NECESSARY."

THEREFORE, EXCEPT IN THE CASE OF EMPLOYEES SUBJECT TO THE FAIR LABOR STANDARDS ACT, WEEKEND RETURN TRAVEL SHOULD BE PERFORMED OUTSIDE THE EMPLOYEE'S REGULAR DUTY HOURS OR DURING PERIODS OF AUTHORIZED LEAVE. THE KIND OF LEAVE AUTHORIZED WOULD INCLUDE SCHEDULED AND APPROVED ANNUAL OR SICK LEAVE UNDER 5 U.S.C. SEC. 6301 ET. SEQ., COMPENSATORY TIME OFF, AND LEAVE WITHOUT PAY. ADMINISTRATIVE LEAVE DOES NOT CONSTITUTE AUTHORIZED LEAVE UNDER 55 COMP.GEN. 1291 (1976). WE WOULD NOT OBJECT, HOWEVER, TO THE CONTINUATION OF THE PRACTICE OF RETURN TRAVEL DURING DUTY HOURS UNTIL EXPIRATION OF THE THREE CURRENT COLLECTIVE BARGAINING AGREEMENTS.

"B. VOLUNTARY WEEKEND RETURN TRAVEL

"1. IF AN EMPLOYEE ON EXTENDED TDY RETURNS HOME VOLUNTARILY FOR THE WEEKEND, MAY THE TRAVEL BE ACCOMPLISHED DURING OFFICIAL DUTY HOURS?"

ANSWER

IF AN EMPLOYEE RETURNS HOME VOLUNTARILY FOR THE WEEKEND, HIS ENTITLEMENT TO TRAVEL EXPENSES IS GOVERNED BY FTR PARA. 1-7.5C, AS DISCUSSED ABOVE. VOLUNTARY TRAVEL BY ITS VERY NATURE IS AN EXCEPTION TO THE DIRECTIVE ON SCHEDULING TRAVEL DURING REGULAR DUTY HOURS CONTAINED IN 5 U.S.C. SEC. 6101(B)(2), AND SHOULD BE PERFORMED OUTSIDE THE EMPLOYEE'S REGULAR DUTY HOURS OR DURING PERIODS OF AUTHORIZED LEAVE.

"2. IF EMPLOYEES ON EXTENDED TDY RETURN HOME FOR A WEEKEND BECAUSE IT IS LESS COSTLY TO THE GOVERNMENT, ARE SUCH RETURNS CONSIDERED VOLUNTARY OR ORDERED? IF THIS TYPE OF TRAVEL IS CONSIDERED AN ORDERED RETURN, WOULD THE EMPLOYEE BE AUTHORIZED TO PERFORM THE RETURN TRAVEL DURING OFFICIAL DUTY HOURS?"

ANSWER

THIS QUESTION REFERS TO THE CASE IN WHICH THE AGENCY DIRECTS AN EMPLOYEE TO RETURN HOME, NOT TO PERFORM OFFICIAL DUTY, BUT BECAUSE WEEKEND RETURN TRAVEL IS LESS COSTLY THAN THE PER DIEM THAT WOULD OTHERWISE BE PAYABLE HAD THE EMPLOYEE REMAINED AT THE TEMPORARY DUTY STATION. AS A GENERAL RULE EMPLOYEES SHOULD BE ALLOWED TO RETURN HOME ON A VOLUNTARY BASIS ON NONWORKDAYS. HOWEVER, WHERE SIGNIFICANT COST SAVINGS ARE ANTICIPATED, WE HAVE RECOGNIZED THAT AN AGENCY MAY DIRECT AN EMPLOYEE TO RETURN HOME ON A WEEKEND. SEE, GENERALLY, B-188515, AUGUST 18, 1977.

RETURN TRAVEL DIRECTED FOR PURPOSES OF OFFICIAL BUSINESS OR BECAUSE OF AN ANTICIPATED COST BENEFIT IS COVERED BY 5 U.S.C. SEC. 6101(B)(2), AND IS TO BE SCHEDULED WITHIN THE EMPLOYEE'S DUTY HOURS TO THE EXTENT PRACTICABLE. WHERE RETURN TRAVEL IS DIRECTED FOR REASONS OF COST THE ANTICIPATED COST SAVINGS WILL NECESSARILY BE DIMINISHED BY THE SALARY ATTRIBUTABLE TO THE DUTY HOURS INVOLVED IN TRAVELING TO AND FROM THE EMPLOYEE'S HOME FOR THE WEEKEND. FOR THIS REASON THE COST OF THAT LOST PRODUCTIVE TIME SHOULD BE CONSIDERED BY THE AGENCY IN DETERMINING WHETHER TO DIRECT RETURN TRAVEL FOR COST SAVING PURPOSES.

"3. IF AN EMPLOYEE IS AUTHORIZED TO RETURN HOME AT GOVERNMENT EXPENSE ONE WEEKEND OUT OF EVERY FOUR WEEKS OF TDY AND IN ADDITION, RETURNS HOME VOLUNTARILY ON ANY INTERVENING WEEKENDS), WOULD THIS AFFECT THE AGENCY'S AUTHORITY TO ORDER THE EMPLOYEE'S RETURN HOME ONCE DURING THE FOUR WEEK PERIOD?"

ANSWER

TO ANSWER THIS QUESTION, WE MUST EXAMINE THE PROVISIONS OF FTR PARA. 1- 7.5C WHICH PROVIDES IN PART:

"RETURN TO OFFICIAL STATION ON NONWORKDAYS. THE DISCRETION OF THE ADMINISTRATIVE OFFICIALS, A TRAVELER MAY BE REQUIRED TO RETURN TO HIS OFFICIAL STATION FOR NONWORKDAYS. ***"

THAT REGULATION GIVES REASONABLE DISCRETION TO GOVERNMENT AGENCIES TO DIRECT EMPLOYEES WHO ARE WORKING AT TEMPORARY DUTY STATIONS TO RETURN TO THEIR PERMANENT DUTY STATIONS FOR NONWORKDAYS. ACCORDINGLY, WHEN AN EMPLOYEE IS PROPERLY DIRECTED TO RETURN TO HIS PERMANENT DUTY STATION FOR NONWORKDAYS IN ORDER TO PERFORM OFFICIAL DUTIES, THE COST OF SUCH RETURN MAY BE PAID BY THE AGENCY EVEN THOUGH IT EXCEEDS THE COST WHICH WOULD HAVE BEEN INCURRED HAD THE EMPLOYEE REMAINED AT HIS TEMPORARY DUTY STATION. THE FACT THAT AN EMPLOYEE VOLUNTARILY RETURNED HOME OR WAS AUTHORIZED TO RETURN HOME AT GOVERNMENT EXPENSE AFTER COST ANALYSIS IN PRECEDING OR SUCCEEDING WEEKENDS HAS NO AFFECT ON THE AGENCY'S AUTHORITY TO ORDER AN EMPLOYEE TO RETURN TO HIS OFFICIAL STATION TO PERFORM OFFICIAL DUTIES PURSUANT TO FTR PARA. 1-7.5C. NOR WOULD A VOLUNTARY RETURN HOME HAVE ANY AFFECT ON A