B-172671, MAY 11, 1972, 51 COMP GEN 727

B-172671, MAY 11, 1972, 51 COMP GEN 727

COMPENSATION - OVERTIME - TRAVEL TIME - ASSIGNMENT NOT PRIMARY FUNCTION OF EMPLOYEE AN ATTORNEY WHOSE TRAVEL AWAY FROM HIS PERMANENT DUTY STATION TO OBTAIN THE AFFIDAVIT OF A WITNESS INVOLVED RETURNING TO HEADQUARTERS AFTER THE END OF HIS NORMAL TOUR OF DUTY MAY NOT BE PAID OVERTIME COMPENSATION OR ALLOWED COMPENSATORY TIME UNDER 5 U.S.C. 5542(B)(2)(B) FOR THE RETURN TRIP HOME, EVEN THOUGH THE INITIAL TRAVEL QUALIFIED AS HOURS OF EMPLOYMENT, SINCE HIS DUTIES AS AN ATTORNEY ARE PRIMARILY TO PERFORM LEGAL FUNCTIONS AND NOT TO TRANSPORT DOCUMENTS, AND THE FACT THAT THE TRANSPORTATION OF THE AFFIDAVIT WAS NECESSARY TO THE PERFORMANCE OF HIS DUTIES DID NOT CONVERT THE RETURN TRIP TO HOURS OF EMPLOYMENT WITHIN THE MEANING OF 5 U.S.C. 5542(B)(2)(B)(I), WHICH AUTHORIZES THE PAYMENT OF OVERTIME COMPENSATION FOR TIME SPENT IN A TRAVEL STATUS ONLY WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING. COMPENSATION - OVERTIME - TRAVEL TIME - ADMINISTRATIVELY CONTROLABLE IN APPLYING 5 U.S.C. 5542(B)(2)(B)(IV), WHICH AUTHORIZES THE PAYMENT OF OVERTIME WHEN TRAVEL AFTER THE END OF A NORMAL TOUR OF DUTY "RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY," THE TERM "EVENT" ALTHOUGH INCLUDING ANYTHING WHICH NECESSITATES AN EMPLOYEE'S TRAVEL, REQUIRES THE EXISTENCE OF AN IMMEDIATE OFFICIAL NECESSITY IN CONNECTION WITH THE EVENT REQUIRING THE TRAVEL, AND IF THE NECESSITY IS NOT SO IMMEDIATE AS TO PRECLUDE THE PROPER SCHEDULING OF THE TRAVEL, THE TIME IN TRAVEL DOES NOT QUALIFY AS HOURS OF EMPLOYMENT, AND THE PHRASE "COULD NOT BE SCHEDULED" CONTEMPLATES MORE THAN THE FACT THAT ADMINISTRATIVE PRESSURES MAKE SCHEDULING IN ACCORDANCE WITH 5 U.S.C.6101(B)(2) DIFFICULT OR IMPRACTICAL, OR EMERGENCY SITUATIONS. EVENTS CONSIDERED BEYOND ADMINISTRATIVE CONTROL ARE DISCUSSED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2. COMPENSATION - OVERTIME - TRAVEL TIME - ADMINISTRATIVELY CONTROLABLE IN VIEW OF THE POLICY EXPRESSED IN 5 U.S.C. 6101(B)(2) THAT TO THE MAXIMUM EXTENT PRACTICABLE TRAVEL SHOULD BE SCHEDULED WITHIN THE REGULARLY SCHEDULED WORKWEEK OF AN EMPLOYEE, PER DIEM COSTS WHICH MIGHT BE NECESSARY TO COMPLY WITH THE POLICY ARE NOT CONSIDERED UNREASONABLE. HOWEVER, SHOULD AN UNCONTROLLABLE EVENT NECESSITATE AN EMPLOYEE'S TRAVEL, NOTWITHSTANDING THERE IS SUFFICIENT NOTICE TO PERMIT THE SCHEDULING OF THE TRAVEL DURING HIS REGULARLY SCHEDULED DUTY HOURS, WHERE SUCH SCHEDULING WOULD RESULT IN THE PAYMENT OF AT LEAST 2 DAYS ADDITIONAL PER DIEM, THE TRAVEL MAY BE REQUIRED DURING OFF DUTY HOURS AND COMPENSATED FOR AT OVERTIME RATES. OFFICERS AND EMPLOYEES - TRAVEL TIME - ADMINISTRATIVE DETERMINATION - EMPLOYEE COMPLIANCE REQUIREMENT ALTHOUGH PURSUANT TO 5 U.S.C. 6101(B)(2) TRAVEL SHOULD NOT BE SCHEDULED AT TIMES OUTSIDE OF AN EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK AS THE SECTION DOES NOT REQUIRE OR PERMIT THE PAYMENT OF COMPENSATION FOR SUCH TRAVEL, AT THE SAME TIME AN EMPLOYING AGENCY HAS THE DISCRETIONARY AUTHORITY TO DETERMINE WHEN IT IS IMPRACTICABLE TO SCHEDULE OFFICIAL TRAVEL WITHIN THE EMPLOYEE'S WORKWEEK AND TO ORDER TRAVEL THAT IS NONCOMPENSABLE AS OVERTIME. HOWEVER, THE OFFICIAL REQUIRING THE NONCOMPENSABLE TRAVEL IS REQUIRED TO COMPLY WITH 5 CFR 610.123 AND RECORD HIS REASONS FOR ORDERING THE TRAVEL AND FURNISH A COPY OF HIS STATEMENT TO THE EMPLOYEE, WHO IN TURN WOULD NOT BE JUSTIFIED IN REFUSING TO PERFORM THE PROPERLY ORDERED TRAVEL.

TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, MAY 11, 1972:

WE REFER TO YOUR LETTER OF MARCH 3, 1972, REQUESTING OUR DETERMINATION AS TO THE LEGALITY OF PAYMENT OF OVERTIME COMPENSATION AND/OR ALLOWANCE OF COMPENSATORY TIME FOR TRAVEL PERFORMED BY MR. AMEDEO GRECO, AN ATTORNEY WITH YOUR REGIONAL OFFICE IN MILWAUKEE, WIS. WITH YOUR LETTER YOU FORWARDED MR. GRECO'S MEMORANDUM OF DECEMBER 23, 1971, WHICH SETS FORTH HIS OWN INTERPRETATION OF 5 U.S.C. 5542(B)(2)(B) UPON WHICH HE BASES HIS REQUEST FOR COMPENSATORY TIME.

SECTION 5542 OF TITLE 5 OF THE U.S.C. GOVERNING OVERTIME COMPENSATION, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC 5542. OVERTIME RATES; COMPUTATION.

(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 (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.

IN THE COURSE OF INVESTIGATING A CASE WHICH HE WAS ASSIGNED, MR. GRECO DETERMINED THAT IT WAS NECESSARY TO INTERVIEW A WITNESS AND TO TAKE AN AFFIDAVIT OF THAT WITNESS. HE, THEREFORE, SCHEDULED AN APPOINTMENT WITH THE WITNESS AS THEIR SCHEDULES MUTUALLY PERMITTED. HE DROVE FROM MILWAUKEE, WIS., HIS PERMANENT DUTY STATION, TO APPLETON, WIS., THE ONLY SITE WHERE THE WITNESS WAS AVAILABLE. THE DRIVE TO APPLETON OF APPROXIMATELY 2 HOURS AND THE TAKING OF THE SWORN STATEMENT OF THE WITNESS WERE COMPLETED DURING MR. GRECO'S NORMAL DUTY HOURS. AFTER COMPLETING HIS BUSINESS IN APPLETON, MR. GRECO RETURNED TO MILWAUKEE, ARRIVING ABOUT 1 1/2 HOURS AFTER THE END OF HIS NORMAL TOUR OF DUTY. HE SUBSEQUENTLY REQUESTED AND WAS DENIED COMPENSATORY TIME OFF FOR THAT AMOUNT OF TIME. HE HAS APPEALED FROM THAT DENIAL.

MR. GRECO'S REQUEST FOR COMPENSATORY TIME IS PREDICATED UPON THE THESIS, SET FORTH IN HIS MEMORANDUM, THAT THE TRAVEL WHICH HE PERFORMED MAY BE VIEWED AS COMING WITHIN EITHER THE PROVISION OF SUBPARAGRAPH 5542(B)(2)(B)(I) OR OF SUBPARAGRAPH 5542(B)(2)(B)(II), QUOTED ABOVE. ADDITION TO REQUESTING OUR DETERMINATION AS TO THE COMPENSABILITY AT OVERTIME RATES FOR THE TRAVEL TIME INVOLVED, YOU ASK TO BE ADVISED REGARDING THE INTERPRETATION OF THE LANGUAGE OF SUBPARAGRAPH 5542(B)(2)(B)(IV), QUOTED ABOVE.

WE HAVE GIVEN CAREFUL CONSIDERATION TO MR. GRECO'S VIEW. HOWEVER, WE NOTE THAT SUBPARAGRAPH 5542(B)(2)(B)(II) PROVIDES THAT TRAVEL TIME IS HOURS OF EMPLOYMENT IF IT IS "INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING." MR. GRECO IS CONTENDING THAT SUCH PROVISION WAS INTENDED TO INCLUDE ALL TRAVEL WHICH IS INCIDENT TO WORK. HE MAKES THIS ARGUMENT BY DRAWING AN ANALOGY BETWEEN HIS TRAVEL AND THAT OF A TRUCK DRIVER IN AN EXAMPLE GIVEN IN FEDERAL PERSONNEL MANUAL LETTER 550-36 (SUPERSEDED AND INCORPORATED IN FPM SUPPLEMENT 990 2). PERTINENT PART HE STATES THE FOLLOWING:

RATHER, MORE ON POINT TO THE CASE HEREIN IS THE VERY LANGUAGE *** IN FEDERAL PERSONNEL MANUAL LETTER NO. 550-36 WHICH STATES, INTER ALIA THAT "AN EMPLOYEE SHALL BE PAID FOR TIME IN TRAVEL STATUS OUTSIDE OF HIS REGULAR WORK SCHEDULE IF THE TRAVEL INVOLVES THE PREFORMANCE OF WORK WHILE TRAVELING *** (OR) IS INCIDENT TO TRAVEL THAT INVOLVES PERFORMANCE OF WORK WHEN TRAVELING (SUCH AS A TRUCK DRIVER RIDING IN A TRUCK TO A DESTINATION TO PICK UP ANOTHER TRUCK AND DRIVE IT BACK TO HIS ORIGINAL DUTY STATION.

IT IS CLEAR THAT THE DRIVER'S TRAVEL TIME SPENT IN REACHING THE TRUCK WOULD BE COMPENSATED FOR. WHY? BECAUSE THE PURPOSE OF HIS TRIP WAS TO GET THE TRUCK *** AND THEN BRING IT BACK. INASMUCH AS THE OBJECT OF HIS TRIP - THE BRINGING BACK OF THE TRUCK - COULD NOT HAVE BEEN ACCOMPLISHED UNLESS HE WAS TRANSPORTED TO THE TRUCK - HIS TRAVEL TO THE LOCATION OF THE TRUCK INVOLVED WORK WHICH WAS "INCIDENT" TO WORK. AND, BECAUSE THE DRIVING OF THE TRUCK TO THE ORIGINAL DUTY POINT WAS ALSO AN INTEGRAL PART OF HIS DUTIES, HE WOULD OBVIOUSLY BE PAID FOR SUCH TIME AS THAT, TOO, INVOLVED WORK WHICH WAS "INCIDENT" TO TRAVEL, I.E., BRINGING THE TRUCK BACK TO THE DUTY STATION*** .

HOW DOES THIS BEAR ON THE CASE HEREIN? SIMPLY PUT A LAWYER *** WHO TAKES AFFIDAVITS FOR THE INVESTIGATION OF A CASE IS PERFORMING DUTIES ANALOGOUS TO THOSE OF A TRUCK DRIVER. *** THUS, WHEN I TRAVELED TO THE APPLETON AREA, MY PRIMARY AIM, LIKE THE TRUCK DRIVER, WAS TO OBTAIN AN OBJECT - THE AFFIDAVITS WHICH, IN MY PROFESSIONAL JUDGMENT, I THOUGHT IT NECESSARY FOR THE REGIONAL DIRECTOR TO POSSIBLY USE IN ORDER THAT HE COULD THEREAFTER MAKE AN INITIAL DETERMINATION OF THE CASE IN MILWAUKEE. *** .

*** SIMILARLY, IN MY CASE, AFFIDAVITS COULD NOT HAVE BEEN TAKEN IN THE APPLETON AREA UNLESS I DROVE THERE AND THEN RETURNED TO MY PERMANENT DUTY STATION IN MILWAUKEE, WHERE THESE AFFIDAVITS WERE SUBSEQUENTLY USED.

REGARDING THE ABOVE WE NOTE THAT THE TRAVEL TIME OF THE TRUCK DRIVER TO PICK UP THE TRUCK MEETS THE CONDITIONS SET FORTH IN SUBPARAGRAPH 5542(B)(2)(B)(II) NOT BECAUSE IT IS SOLELY INCIDENT TO HIS DELIVERING THE TRUCK TO HIS DUTY STATION BUT BECAUSE IT IS INCIDENT TO HIS DRIVING THE TRUCK ON THE RETURN JOURNEY, NAMELY, FOR PERFORMING THE WORK FOR WHICH A TRUCK DRIVER IS EMPLOYED.

IN CONNECTION WITH THE ABOVE WE POINT OUT THAT TIME SPENT IN TRAVEL WHICH IS AN INHERENT PART OF AND INSEPARABLE FROM THE WORK ITSELF QUALIFIES AS WORK AND MAY BE COMPENSATED AT OVERTIME RATES. SEE 43 COMP. GEN. 273 (1963) WHEREIN WE STATED THAT THE TIME SPENT IN TRAVEL BY DETENTION OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE IN RETURNING A SPECIALLY EQUIPPED VEHICLE (IN WHICH ALIEN DETAINEES HAD BEEN TRANSPORTED AS A PART OF EACH OF THE EMPLOYEE'S ASSIGNED DUTIES) TO THE GARAGE FOR REFUELING, ETC., MAY BE VIEWED AS TIME SPENT IN A WORK STATUS SINCE SUCH TRAVEL WAS NOT MERELY INCIDENTAL TO THE PERSONAL TRANSPORTATION OF THE EMPLOYEE BACK TO THE ORIGINAL DUTY STATION, BUT AN ESSENTIAL PART OF HIS ASSIGNED DUTIES, AS IN THE CASE OF A CHAUFFEUR, BUS OPERATOR OR TRUCK DRIVER. SEE ALSO THE DISCUSSION OF THIS POINT IN DELANO V. UNITED STATES, 183 CT. CL. 379 (1968), B 163042, MAY 22, 1968, AND B-146389, FEBRUARY 1, 1966, COPIES OF WHICH DECISIONS ARE ENCLOSED. IN THE PRESENT CASE MR. GRECO HAD COMPLETED HIS WORK AT APPLETON AND WAS RETURNING TO HIS OFFICIAL DUTY STATION. THE QUESTION TO BE DECIDED IS WHETHER THE TRANSPORTATION OF THE AFFIDAVIT, WHICH WAS INCIDENT TO MR. GRECO'S PERSONAL TRANSPORTATION TO HIS HEADQUARTERS, CHANGED THE CHARACTER OF HIS TRAVEL TO SUCH AN EXTENT THAT THE TRAVEL TIME WAS COMPENSABLE.

FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1 3(B)(2)(C)(IV), STATES IN PART AS FOLLOWS:

TRAVEL WHICH INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING GENERALLY MEANS, WITHIN THE STATUTE AND THE COMMISSION'S REGULATIONS, WORK WHICH CAN ONLY BE PERFORMED WHILE TRAVELING (SUCH AS MONITORING COMMUNICATIONS OR SIGNAL DEVICES USED IN AIR OR RAIL TRAFFIC OR ESCORTING A PRISONER TO A DISTANT PRISON). ON THE OTHER HAND, WHEN AN AGENCY REQUIRES AN EMPLOYEE TO PERFORM WORK WHILE TRAVELING, THE TIME SPENT PERFORMING THE WORK IS WORK EVEN THOUGH IT IS THE KIND OF WORK THAT WOULD ORDINARILY BE PERFORMED AT THE EMPLOYEE'S PLACE OF BUSINESS. IN THIS LATTER SITUATION, THE CRITERIA USED IN DETERMINING WHETHER OR NOT THE WORK WAS REQUIRED TO BE PERFORMED WHILE TRAVELING WILL BE THAT WHICH IS USED IN DETERMINING WHETHER OR NOT OVERTIME WORK IS OFFICIALLY ORDERED OR APPROVED. PAY, IF WARRANTED, WILL BE LIMITED TO TIME ACTUALLY SPENT WORKING.

UNDER THE PREDECESSOR STATUTE TO 5 U.S.C. 5542(B)(2)(B), WHICH SIMILARLY PROVIDED THAT TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION IS CONSIDERED HOURS OF EMPLOYMENT IF THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, WE EXPRESSLY HELD THAT THE FACT THAT, INCIDENTAL TO THE PURPOSE OF THE TRAVEL, FILES, DOCUMENTS, ETC., ARE TRANSPORTED DOES NOT CHANGE THE CHARACTER OF TRAVEL. SEE 38 COMP. GEN. 142 (1958); 40 ID. 439 (1961); AND B-163211, JULY 31, 1968, COPY ENCLOSED.

WE NOTE THAT MR. GRECO IS AN ATTORNEY. HIS DUTIES ARE PRIMARILY TO PERFORM LEGAL FUNCTIONS, NOT TO TRANSPORT DOCUMENTS. WE RECOGNIZE THAT IN THE COURSE OF PERFORMING DUTIES, HE WILL OBTAIN DOCUMENTS, SUCH AS THE AFFIDAVIT HEREIN INVOLVED. HOWEVER, WE BELIEVE THAT THE TRANSPORTATION OF SUCH DOCUMENTS, WHILE NECESSARY TO THE PERFORMANCE OF HIS DUTIES, DOES NOT CONVERT TRAVEL IN RETURNING TO HEADQUARTERS TO HOURS OF EMPLOYMENT WITHIN THE MEANING OF 5 U.S.C. 5542(B)(2)(B)(I). THEREFORE, MR. GRECO IS NOT ENTITLED TO COMPENSATORY TIME.

YOU MAKE THE FOLLOWING ADDITIONAL INQUIRIES:

IN THIS AREA THE GENERAL COUNSEL WOULD LIKE TO EXPLORE ANOTHER OF THE 1967 AMENDMENTS TO 5 U.S.C. 5542(B)(2)(B). THE RECENTLY ADDED CRITERION FOR PREMIUM PAY FOR TIME SPENT WHILE TRAVELING RAISES QUESTIONS CONCERNING WHEN TRAVEL IS THE RESULT OF "AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY." BOTH THE TERM "EVENT" AND THE SCOPE OF THE PHRASE "COULD NOT BE SCHEDULED" CREATE SOME PROBLEMS IN CONSTRUCTION. TEND TO CONSTRUE "EVENT" TO MEAN ANYTHING AT ALL THAT MIGHT CAUSE A GOVERNMENT EMPLOYEE TO TRAVEL. I WOULD THINK IT WOULD NOT HAVE TO BE SOME POSITIVE OCCURRENCE OR PARTICIPATION IN SOME PROGRAM - AM I CORRECT? AS I HAVE ALREADY MENTIONED. I ALSO HAVE DIFFICULTY WITH THE PHRASE "COULD NOT BE SCHEDULED" - I ASSUME THAT THERE IS SOME LATITUDE IN THE CONSTRUCTION OF THIS PHRASE EVEN THOUGH IT IS WRITTEN IN THE ABSOLUTE. I ASSUME THAT "COULD NOT" IS RELATIVE TO OFFICE WORK LOAD AND THE PRACTICAL REALITIES OF ANY GIVEN SITUATION. AGAIN, AM I CORRECT?

IN VOLUME 50 OF THE COMPTROLLER GENERAL'S DECISIONS, DECISION NO. B 163654 DATED JANUARY 26, 1971, YOU HELD THAT A DETERMINATION THAT INITIAL TRAVEL MIGHT BE THE RESULT OF AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY WOULD NOT OF ITSELF QUALIFY THE RETURN TRIP FOR PREMIUM PAY. THIS HOLDING COULD CONCEIVABLY INDUCE EMPLOYEES TO STAY IN A HOTEL OVERNIGHT, CHARGE PER DIEM AND THEN TRAVEL BACK TO DUTY STATION THE FOLLOWING DAY DURING THE NORMAL TOUR OF DUTY OR PERHAPS COULD INDUCE EMPLOYEES TO SIMPLY PUT OFF WORK TO BE DONE AT THE PERMANENT DUTY STATION TO ALLOW TRAVEL TO BE DONE DURING THE NORMAL TOUR OF DUTY. NEITHER OF THESE SITUATIONS WOULD BE IN THE GOVERNMENT'S INTEREST AND NEITHER COULD BE COMPLETELY CONTROLLED BY AGENCY MONITORING OR ADMINISTRATION. IS IT STILL THE POSITION OF THE COMPTROLLER GENERAL THAT INITIAL AND RETURN TRAVEL ARE TO BE JUSTIFIED SEPARATELY WHEN RELATED TO AN ADMINISTRATIVELY UNCONTROLLABLE EVENT?

THE TERM "EVENT" HAS BEEN CONSTRUED BY THIS OFFICE TO INCLUDE ANYTHING WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. HOWEVER, THERE MUST EXIST AN IMMEDIATE OFFICIAL NECESSITY IN CONNECTION WITH THAT EVENT REQUIRING THE TRAVEL TO BE PERFORMED. THUS WE HAVE HELD, NOTWITHSTANDING AN OFFICIAL NECESSITY FOR AN EMPLOYEE'S TRAVEL, THAT WHERE THE NECESSITY IS NOT SO IMMEDIATE AS TO PRECLUDE PROPER SCHEDULING OF TRAVEL THE TIME IN TRAVEL DOES NOT QUALIFY AS HOURS OF EMPLOYMENT. 50 COMP. GEN. 674 (1971). SEE ALSO B-169078, APRIL 22, 1970, AND B-170683, NOVEMBER 16, 1970, COPIES ENCLOSED.

THE TERM "COULD NOT BE SCHEDULED" CONTEMPLATES MORE THAN THE FACT THAT ADMINISTRATIVE PRESSURES MAKE SCHEDULING IN ACCORDANCE WITH 5 U.S.C. 6101(B)(2) DIFFICULT OR IMPRACTICAL. IT DOES NOT HOWEVER CONTEMPLATE ONLY EMERGENCY SITUATIONS. FOR EXAMPLE, WE HAVE RECOGNIZED THAT CERTAIN INSPECTION AND CONTRACT TESTING REQUIREMENTS MAY BE BEYOND ADMINISTRATIVE CONTROL. 50 COMP. GEN. 519 (1971). THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S-1 PROVIDES A DISCUSSION AND ILLUSTRATIONS OF THE NATURE OF THE EVENTS THAT MAY BE CONSIDERED TO BE BEYOND ADMINISTRATIVE ABILITY TO SCHEDULE OR CONTROL. HOWEVER, IN 49 COMP. GEN. 209 (1969) WE HELD THAT THE NECESSITY FOR PERFORMING REPAIRS ON SHIP EQUIPMENT WHICH HAD BEEN GRADUALLY DETERIORATED BY THE SUN WAS NOT AN UNCONTROLLABLE EVENT AND, NOTWITHSTANDING THE ADMINISTRATIVE CONSIDERATIONS INVOLVED, THAT THE TIME FOR SCHEDULING THE REPAIR WAS COMPLETELY WITHIN THE AGENCY'S CONTROL.

IN REGARD TO YOUR QUESTION CONCERNING RETURN TRAVEL, WE HAVE HELD AND OUR OPINION NOW IS THAT ALTHOUGH INITIAL TRAVEL MAY FALL WITHIN ONE OF THE CONDITIONS OF SUBPARAGRAPH 5542(B)(2)(B) TO QUALIFY AS HOURS OF EMPLOYMENT, THE RETURN TRAVEL MUST ITSELF FALL WITHIN ONE OF THOSE CONDITIONS IN ORDER TO QUALIFY THE TIME INVOLVED AS HOURS OF EMPLOYMENT. 50 COMP. GEN. 519 (1971); 50 ID. 674 (1971). IN LIGHT OF THE POLICY EXPRESSED IN 5 U.S.C. 6101(B)(2) THAT TO THE MAXIMUM EXTENT PRACTICABLE TRAVEL SHOULD BE SCHEDULED WITHIN THE REGULARLY SCHEDULED WORKWEEK OF AN EMPLOYEE WE HAVE ALSO HELD THAT THE PER DIEM COSTS WHICH MIGHT BE NECESSARY TO COMPLY WITH THAT POLICY ARE NOT CONSIDERED UNREASONABLE. B-169078, APRIL 22, 1970. ASSUMING AN UNCONTROLLABLE EVENT NECESSITATES AN EMPLOYEE'S TRAVEL, NOTWITHSTANDING THAT THERE IS SUFFICIENT NOTICE TO PERMIT SCHEDULING OF THE TRAVEL DURING HIS REGULARLY SCHEDULED DUTY HOURS WHERE SUCH SCHEDULING WOULD RESULT IN THE PAYMENT OF AT LEAST 2 DAYS ADDITIONAL PER DIEM, TRAVEL MAY BE REQUIRED DURING THOSE OFF DUTY HOURS AND COMPENSATED FOR AT OVERTIME RATES. 50 COMP. GEN. 674 (1971). MR. GRECO HAS REQUESTED TO BE ADVISED WHETHER FEDERAL EMPLOYEES CAN REFUSE ASSIGNMENTS INVOLVING TRAVEL OUTSIDE OF THEIR REGULAR DUTY- HOURS WHICH IS NOT COMPENSABLE AT OVERTIME RATES. IN ENACTING 5 U.S.C. 6101(B)(2) IT IS CLEAR THAT THE CONGRESS INTENDED THAT AS A GENERAL PRACTICE TRAVEL SHOULD NOT BE SCHEDULED AT TIMES OUTSIDE OF AN EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK, BUT AT THE SAME TIME IT LEFT TO THE DISCRETION OF THE EMPLOYING AGENCY AUTHORITY TO DETERMINE WHEN IT IS IMPRACTICABLE TO SCHEDULE OFFICIAL TRAVEL WITHIN THE SCHEDULED WORKWEEK OF AN EMPLOYEE. MOREOVER, CONGRESS FAILED TO PROVIDE A REMEDY IN THE CASE WHERE AN AGENCY FAILS TO ADHERE TO THE POLICY ENUNCIATED IN 5 U.S.C. 6101(B)(2), THERE BEING NOTHING IN THAT SECTION REQUIRING OR PERMITTING THE PAYMENT OF COMPENSATION FOR TRAVEL OUTSIDE AN EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK.

WHEN AN EMPLOYEE IS REQUIRED TO PERFORM NONCOMPENSABLE TRAVEL OUTSIDE OF HIS REGULARLY SCHEDULED WORKWEEK THE PROVISION OF SECTION 610.123 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS SHOULD BE COMPLIED WITH. THAT SECTION PROVIDES:

INSOFAR AS PRACTICABLE TRAVEL DURING NONDUTY HOURS SHALL NOT BE REQUIRED OF AN EMPLOYEE. WHEN IT IS ESSENTIAL THAT THIS BE REQUIRED AND THE EMPLOYEE MAY NOT BE PAID OVERTIME UNDER SEC 550.112(E) OF THIS CHAPTER THE OFFICIAL CONCERNED SHALL RECORD HIS REASONS FOR ORDERING TRAVEL AT THOSE HOURS AND SHALL, UPON REQUEST, FURNISH A COPY OF HIS STATEMENT TO THE EMPLOYEE CONCERNED.

IN VIEW OF THE ABOVE, THE INABILITY OF AN AGENCY TO SCHEDULE AN EMPLOYEE'S TRAVEL WITHIN HIS REGULAR DUTY HOURS, REGARDLESS OF THE FACT THAT THE TIME IN TRAVEL IS NOT COMPENSABLE AS OVERTIME, WOULD NOT JUSTIFY THE EMPLOYEE'S REFUSAL TO PERFORM TRAVEL WHICH IS PROPERLY ORDERED.