B-160928, APR. 16, 1970

B-160928, APR. 16, 1970

COMPENSATION--OVERTIME--TRAVEL TIME--WEATHER CONDITIONS ADVERSE TRAVEL PERFORMED OUTSIDE SCHEDULED WORKWEEK WHERE BAD WEATHER CAUSED PLANE TO OVERFLY SCHEDULED STOP AT BOISE, DOES NOT CONSTITUTE HOURS OF EMPLOYMENT WITHIN MEANING OF 5 U.S.C. 5542 (B) (2) (B) (III) AND (IV) EXCEPTIONS FOR ENTITLEMENT TO OVERTIME COMPENSATION SINCE "ARDUOUS CONDITIONS" EXCEPTION (III) REQUIRES MORE THAN SHOWING OF INCLEMENT WEATHER AND EVENT OF ADVERSE WEATHER WAS NOT REASON FOR TRAVEL IN FIRST INSTANCE, SINCE TRIP'S PURPOSE WAS TO CONDUCT GOVERNMENT BUSINESS AT BOISE, WHICH IS NOT ADMINISTRATIVELY UNSCHEDULED OR UNCONTROLLABLE EVENT WITHIN MEANING OF SUBSEC. (IV) OF SAID STATUTE. SEE COMP. GEN. DECS. AND CT. CASE CITED.

TO MRS. NEDRA A. BLACKWELL:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1970, IN WHICH YOU REQUEST OUR OPINION AS TO WHETHER OVERTIME COMPENSATION IS PAYABLE TO TWO EMPLOYEES WHO, DUE TO ADVERSE WEATHER CONDITIONS, TRAVELED OVER AN UNSCHEDULED ROUTE OUTSIDE OF THEIR NORMAL WORK HOURS.

THE ESSENTIAL FACTS AS STATED IN YOUR LETTER ARE AS FOLLOWS:

"ON FEBRUARY 6, 1969, MR. LEISER AND MR. REY BOARDED UNITED AIRLINES FLIGHT 889 WITH A DESTINATION OF BOISE, IDAHO. THE PURPOSE OF THEIR TRIP WAS TO CONDUCT GOVERNMENT BUSINESS AND WAS WITHIN THE ADMINISTRATIVE CONTROL OF THE GOVERNMENT. HOWEVER, DUE TO WEATHER CONDITIONS, THE PLANE WAS UNABLE TO LAND IN BOISE AND CONTINUED ON TO RENO, SAN FRANCISCO, FINALLY ARRIVING IN PORTLAND AT 10:30 P.M. SINCE THE TRAVEL BEYOND BOISE RESULTED FROM UNFORESEEN CIRCUMSTANCES AND A CHANGED CONDITION, AND COULD NOT BE SCHEDULED OR CONTROLLED BY THE BUREAU, MR. LEISER AND MR. REY ARE CLAIMING PAYMENT FOR OVERTIME FOR THE PERIOD FROM 4:30 P.M. UNTIL THEY ARRIVED IN PORTLAND AT 10:30 P.M."

AS EMPLOYEES OF THE FEDERAL GOVERNMENT, THE CLAIMANTS' ENTITLEMENT TO OVERTIME COMPENSATION IS GOVERNED BY THE APPLICABLE PROVISIONS OF SECTION 5542 (B) (2) (B) OF TITLE 5, U.S.C. WHICH STATES, IN PERTINENT PART, 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 (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 QUESTIONS AT ISSUE IN THE INSTANT CASE CONCERN ITEMS (III) AND (IV), ABOVE, THAT IS, WHETHER THE TRAVEL OF THE CLAIMANTS FROM 4:30 P.M. TO 10:30 P.M. ON FEBRUARY 6, 1969, WAS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR RESULTED FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

IN REGARD TO WHETHER THE TRAVEL IN QUESTION WAS CARRIED OUT UNDER ARDUOUS CONDITIONS, THE RECORD SHOWS THAT DUE TO WEATHER CONDITIONS, THE CLAIMANTS' PLANE OVERFLEW BOISE, IDAHO, PROCEEDED TO RENO, NEVADA, THEN TO SAN FRANCISCO, CALIFORNIA, AND THAT DUE TO CONTINUING ADVERSE WEATHER CONDITIONS, FLEW TO PORTLAND, OREGON. OUR DECISIONS HAVE HELD THAT THE TRAVEL OF AN EMPLOYEE BY PASSENGER-CARRYING VEHICLES UNDER NONEMERGENT CONDITIONS IN CONNECTION WITH TEMPORARY DUTY DOES NOT, IN ITSELF, CONSTITUTE PERFORMANCE OF WORK OR TRAVEL UNDER ARDUOUS CONDITIONS FOR PURPOSES OF OVERTIME COMPENSATION. 24 COMP. GEN. 456 (1944); 30 ID. 72 (1950); 31 ID. 362 (1952); AND 40 ID. 439 (1961). WE HAVE ALSO HELD IN CERTAIN SITUATIONS THAT TRAVEL OVER UNUSUALLY ADVERSE TERRAIN OR DURING SEVERE WEATHER CONDITIONS CONSTITUTES TRAVEL UNDER ARDUOUS CONDITIONS AND THAT WHERE THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL, IT MAY BE CONCLUDED THA SUCH TRAVEL WAS INSEPARABLE FROM "WORD" OR "EMPLOYMENT" WITHIN THE MEANING OF THE APPLICABLE OVERTIME STATUTES. COMP. GEN. 547 (1949); 41 ID. 82 (1961).

IN BURICK V. UNITED STATES, 177 CT. CL. 139 (1966); CERT. DENIED, 389 U.S. 885; REHEARING DENIED, 389 U.S. 998, THE COURT STATED AT PAGE 149:

"AS TO THE REMAINING CONTENTION RESPECTING TRAVEL 'UNDER ARDUOUS CONDITIONS,' SUFFICE IT TO SAY THAT, IN OUR JUDGMENT, THIS REQUIRES MORE THAN A SHOWING THAT THE TRAVEL BY AUTOMOBILE WAS CARRIED OUT UNDER INCLEMENT WEATHER CONDITIONS."

IN THE INSTANT CASE, THE EVIDENCE OR RECORD DOES NOT SHOW THAT THE CLAIMANTS WERE TRAVELING UNDER SEVERE WEATHER CONDITIONS AND THAT, IN FACT, THEIR PLANE WAS DIVERTED TO OTHER ALTERNATE CITIES IN ORDER TO AVOID THE ADVERSE WEATHER CONDITIONS WHICH EXISTED AT BOISE, IDAHO.

THE SECOND ISSUE FOR CONSIDERATION IS WHETHER THE TRAVEL BY THE CLAIMANTS RESULTED FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. IN ITS FEDERAL PERSONNEL MANUAL LETTER NO. 550-52, DATED FEBRUARY 5, 1969, THE CIVIL SERVICE COMMISSION HAS STATED THAT THE PHRASE "COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY" REFERS TO THE ABILITY OF AN AGENCY TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. IN OUR DECISION, B 163654, APRIL 19, 1968, WE INTERPRETED THE LANGUAGE OF SECTION 5542 (B) (2) (B) (IV) AND CONCLUDED THAT 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 BEFORE SUCH TRAVEL TIME CONSTITUTES HOURS OF EMPLOYMENT WITHIN THE MEANING OF SUCH PROVISIONS. SEE ALSO 49 COMP. GEN. , B-167614, SEPTEMBER 30, 1969. APPLYING THE FOREGOING PRINCIPLES TO THE SITUATION HERE INVOLVED WE POINT OUT THAT THE PURPOSE OF THE CLAIMANTS' TRIP WAS TO CONDUCT GOVERNMENT BUSINESS AND WAS WITHIN THE ADMINISTRATIVE CONTROL OF THE GOVERNMENT. OTHER WORDS THE EVENT OF ADVERSE WEATHER WAS NOT THE REASON NECESSITATING THE TRAVEL TO BE DIRECTED IN THE FIRST INSTANCE.

ACCORDINGLY, THE TRAVEL BY THE EMPLOYEES DURING HOURS OUTSIDE THEIR SCHEDULED WORKWEEK DID NOT CONSTITUTE HOURS OF EMPLOYMENT WITHIN THE MEANING OF THE EXCEPTIONS CONTAINED IN 5 U.S.C. 5542 (B) (2) (B) SO AS TO ENTITLE THEM TO OVERTIME COMPENSATION.