B-164683, JUL. 17, 1968

B-164683, JUL. 17, 1968

TO MR. R. T. ERICKSON:

YOUR LETTER OF JUNE 21, 1968, REFERENCE 4-360, REQUESTS OUR DECISION WHETHER CERTAIN TIME SPENT BY TWO EMPLOYEES OF THE BUREAU OF RECLAMATION IN A SHELTER ON ABAJO PEAK, NEAR MONTICELLO, UTAH, INCIDENT TO THE PERFORMANCE OF REPAIR WORK ON A MICROWAVE STATION MAY BE REGARDED AS COMPENSABLE OVERTIME.

THE FACTS REGARDING THE TIME SPENT ON THE REPAIR MISSION ARE RECITED IN YOUR LETTER AS FOLLOWS:

"EMPLOYEES REGULAR TOUR OF DUTY - 7:45 AM TO 4:30 PM

"APRIL 3, 1968 - 8:30 AM - LEAVE MONTICELLO, UTAH BY SNOW CAT AND WALKING WITH SNOWSHOES. 3:30 PM ARRIVE AT MICROWAVE STATION. 3:30 TO 9:00 PM WORK IN CONNECTION WITH MICROWAVE PATH OUTAGE.

"APRIL 4, 1968 - 7:45 AM TO 4:30 PM WORK DURING REGULAR TOUR. 4:30 PM LEAVE MICROWAVE STATION BY SNOWSHOES AND SNOWCAT. 9:30 PM ARRIVE MONTICELLO, UTAH.

"OVERTIME CLAIMED APRIL 3 - 4:30 PM TO 12:00 MIDNIGHT 7-1/2 HOURS APRIL 4 - 12:01 AM TO :45 AM 7-1/2 HOURS APRIL 4 - 4:30 PM TO 9:30 PM 5 HOURS"

YOUR QUESTION IS CONFINED TO THE HOURS FALLING BETWEEN 9 P.M., APRIL 3 AND 7:45 A.M., APRIL 4, 1968 (10 HOURS AND 45 MINUTES) WHEN THE EMPLOYEES PRESUMABLY WERE RESTING, EATING, OR SLEEPING, AND ARISES ONLY BECAUSE OF THE INADEQUACY OF THE SITE BUILDING AS AN OVERNIGHT SHELTER. IN THAT REGARD YOUR LETTER STRESSES THE FOLLOWING:

"A. THE EMPLOYEES WERE CALLED OUT UNDER EMERGENCY CONDITIONS. LOCAL PRACTICES IN PRIVATE INDUSTRY (TELEPHONE CO.) PROVIDE FOR OVERTIME PAY ON A 24 HOUR BASIS INCLUDING SLEEP TIME FOR AN EMERGENCY SUCH AS THIS.

"B. IN SPITE OF THE USE OF HEATERS, THE BUILDING IS ALWAYS FROM PLUS 15 DEGRE TO -30 DEGREE WHEN THE WIND IS BLOWING.

"C. SLEEPING ACCOMODATIONS (ACCOMMODATIONS) (SIC) CONSIST OF AN ARMY COT AND PAPER SLEEPING BAG AND THE FOOD SUPPLY IS INDIVIDUAL EMERGENCY RATIONS. TO BRING THEIR OWN SUPPLIES WOULD REQUIRE PACKING THEM ON THEIR BACK OVER EXTREMELY DANGEROUS TERRAIN UNDER HAZARDOUS CONDITIONS.

"D. THE EMPLOYEES COULD NOT HAVE RETURNED TO MONTICELLO AFTER WORK ON THE NIGHT OF APRIL 3 EVEN IF REPAIR HAD BEEN COMPLETED BECAUSE OF A SEVERE SNOWSTORM THAT MOVED IN AND TRAVEL AT NIGHT BY SNOWSHOES AND SNOWCAT WOULD HAVE BEEN IMPOSSIBLE.

"E.CONDITIONS CLOSELY PARALLEL THOSE DESCRIBED IN YOUR DECISION B 120894.'

AS INDICATED BY YOU, THE BROADENED PROVISIONS OF LAW CONCERNING "TRAVEL TIME" CONTAINED IN SECTION 222 OF PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967 (H.R. 1977), ARE APPLICABLE ONLY WHEN AN EMPLOYEE IS ACTUALLY TRAVELLING AND DOES NOT EMBRACE WAITING, EATING OR SLEEPING TIME AT A TEMPORARY DUTY STATION. SEE OUR DECISION OF APRIL 29, 1968, B-163608, 47 COMP. GEN. ----, COPY HEREWITH.

BASICALLY, THE ISSUE PRESENTED BY YOUR LETTER IS WHETHER NONDUTY TIME WHICH NORMALLY WOULD BE SPENT IN RECREATION, SLEEPING OR EATING, MAY, BECAUSE OF EXISTING ARDUOUS CONDITIONS, BE REGARDED AS COMPENSABLE WORK TIME.

WE ARE AWARE OF NO PROVISION OF LAW, EXPRESS OR IMPLIED, WHICH AUTHORIZES THE PAYMENT OF COMPENSATION FOR HOURS THAT ARE ALLOCABLE TO SLEEPING OR EATING. THE COURTS CONSISTENTLY HAVE HELD THAT SUCH TIME IS NOT COMPENSABLE. RAPP V UNITED STATES, 167 CT. CL. 852 (1964); BANTOM V UNITED STATES, 165 CT. CL. 312 (1964); AHEARN V UNITED STATES, 151 CT. CL. 21 (1960).

THEREFORE, ON THE FACTS PRESENTED IN THIS CASE AND UNDER EXISTING LAW COMPENSATION IS NOT AUTHORIZED FOR THOSE HOURS FALLING BETWEEN 9 P.M., APRIL 3 AND 7:45 A.M., APRIL 4, 1968, FOR THE TWO EMPLOYEES CONCERNED.