B-179003, AUG 24, 1973

B-179003, AUG 24, 1973

DECISION THAT PAUL R. O'CONNOR, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY IS NOT ENTITLED TO OVERTIME PAY IN CONNECTION WITH TRAVEL PERFORMED DURING NONDUTY HOURS FROM PORTSMOUGH, N.H., TO GUAM, M.I., TO PERFORM A SHIPCHECK ON A POLARIS SUBMARINE. UNDER 5 U.S.C. 5542, OVERTIME COMPENSATION CAN BE PAID FOR NONDUTY HOURS TRAVEL ONLY IF WORK WAS PERFORMED DURING TRAVEL, THE EVENT NECESSITATING TRAVEL WAS ADMINISTRATIVELY UNCONTROLLABLE, OR THE TRAVEL WAS UNDER ARDUOUS CONDITIONS: NONE OF THESE EXCEPTIONS APPLY HEREIN.

TO MR. SECRETARY:

WE REFER TO A LETTER OF JUNE 20, 1973, REFERENCE 630/7230, FROM THE PORTSMOUTH NAVAL SHIPYARD, REQUESTING A DECISION AS TO THE ENTITLEMENT OF MR. PAUL R. O'CONNOR TO OVERTIME PAY IN CONNECTION WITH TRAVEL PERFORMED DURING NONDUTY HOURS.

THE RECORD INDICATES THAT MR. O'CONNOR DEPARTED HIS OFFICIAL DUTY STATION AT PORTSMOUTH, NEW HAMPSHIRE, ON FRIDAY, MARCH 23, 1973, AND TRAVELED ON THE FOLLOWING WEEKEND TO GUAM, M.I., IN ORDER TO PERFORM A SHIPCHECK. FOLLOWING THE COMPLETION OF THE CHECK HE LEFT GUAM ON FRIDAY, APRIL 6, 1973, AND TRAVELED BACK TO HIS OFFICIAL DUTY STATION ON NONDUTY HOURS. UNDERSTAND THAT OUR DECISION WITH REGARD TO MR. O'CONNOR WILL AFFECT DETERMINATION AS TO THE PAYMENT OF OVERTIME COMPENSATION TO 15 OTHER EMPLOYEES WHO PERFORMED SIMILAR TRAVEL IN CONNECTION WITH THE SHIPCHECK AT GUAM. IN THIS REGARD, THE FOLLOWING SPECIFIC QUESTIONS WERE PRESENTED:

"A. DOES THE SCHEDULING OF A SHIPCHECK FALL WITHIN THE ADMINISTRATIVE CONTROL OF THE DEPARTMENT OF THE NAVY, AND THEREFORE NEGATE THE ENTITLEMENT TO OVERTIME COMPENSATION FOR THE HOURS SPENT IN A TRAVEL STATUS EVEN THOUGH THE TRAVEL PERFORMED WAS RATHER EXTENSIVE AND DID IN FACT INVOLVE A CONSIDERABLE AMOUNT OF TRAVEL ON THE EMPLOYEE'S OWN TIME?

"B. WITH REGARD TO THE RETURN TRIP FROM GUAM, MI TO PORTSMOUTH, N.H., ARE THE HOURS SPENT IN A TRAVEL STATUS OUTSIDE NORMAL WORK HOURS COMPENSABLE AT OVERTIME RATES?"

IT IS NOT CLEAR FROM THE RECORD WHETHER MR. O'CONNOR AND HIS COLLEAGUES ARE WAGE BOARD EMPLOYEES SUBJECT TO 5 U.S.C. 5544 OR GENERAL SCHEDULE EMPLOYEES SUBJECT TO 5 U.S.C. 5542. THE DECISION WOULD BE THE SAME IN EITHER SITUATION, HOWEVER, AS THE PROVISIONS OF BOTH SECTIONS ARE WORDED ALMOST IDENTICALLY. FOR CONVENIENCE WE SHALL BASE OUR DECISION ON 5 U.S.C. 5542 WHICH READS IN PERTINENT PART AS FOLLOWS:

"(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."

MR. O'CONNOR ASSERTS THAT HIS TRAVEL MET THE LATTER TWO CONDITIONS AND THUS QUALIFIED AS EMPLOYMENT FOR COMPENSATION PURPOSES. IN A JOINT MEMORANDUM DATED APRIL 27, 1973, HE AND ANOTHER CLAIMANT STATE THE FOLLOWING:

"*** ONE CONDITION OF TRAVEL WHICH IS CONSIDERED HOURS OF WORK, IS TRAVEL WHICH RESULTS FROM AN EVENT WHICH CANNOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. WE WERE SENT TO GUAM TO SHIPCHECK A POLARIS SUBMARINE DURING ITS REFIT CYCLE. THE TIME ON PATROL FOR A POLARIS SUBMARINE IS VITAL TO THE DEFENSE DEPARTMENT AND CANNOT BE ADMINISTRATIVELY SCHEDULED TO SUIT SOMEONE'S TRAVEL STATUS. ***"

IN THE SAME MEMORANDUM, MR. O'CONNOR REFERS TO HIS TRIP AS BEING "ARDUOUS" BECAUSE OF ITS DURATION THEREBY IMPLYING THAT HIS TRAVEL MET THE THIRD ENUMERATED CONDITION THAT WOULD QUALIFY IT AS EMPLOYMENT.

IN THE REGULATIONS IMPLEMENTING 5 U.S.C. 5542, FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3 AT PAGE 550-8.03, THE PHRASE, "COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY" IS REFERRED TO AS THE ABILITY OF AN EXECUTIVE AGENCY TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. IT IS EXPLAINED THEREIN THAT ADMINISTRATIVELY UNCONTROLLABLE EVENTS ARE THOSE RESULTING FROM "UNFORESEEN CIRCUMSTANCES" OR THOSE "SCHEDULED OR CONTROLLED BY SOMEONE OR SOME ORGANIZATION OUTSIDE OF GOVERNMENT." A ROUTINE SHIPCHECK CANNOT BE CHARACTERIZED AS "UNFORESEEN," NEITHER CAN IT BE SAID THAT THE SCHEDULING IS CONTROLLED BY AN "ORGANIZATION OUTSIDE THE GOVERNMENT." SEE 49 COMP. GEN. 209 (1969). ADMINISTRATIVE INCONVENIENCE IN SCHEDULING AN EVENT IS NOT SUFFICIENT TO ESTABLISH THAT THE EVENT IS BEYOND ADMINISTRATIVE CONTROL. SEE 51 COMP. GEN. 727 (1972); B-164353, OCTOBER 21, 1969; AND 49 COMP. GEN. 209 (1969). THUS MR. O'CONNOR'S TRAVEL IS NOT COMPENSABLE AS WORK ON THE GROUND THAT IT RESULTED FROM AN ADMINISTRATIVELY UNCONTROLLABLE EVENT.

IN REGARD TO MR. O'CONNOR'S CONTENTION THAT HIS TRAVEL WAS ARDUOUS, WE REFER TO FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3, WHICH DEFINES "ARDUOUS TRAVEL" AT PAGE 550-8.02 AS FOLLOWS:

" - THUS, TRAVEL UNDER ARDUOUS CONDITIONS WOULD INCLUDE TRAVEL OVER UNUSUALLY ADVERSE TERRAIN, DURING SEVERE WEATHER CONDITIONS, OR TO REMOTE, BARELY ACCESSIBLE FACILITIES BY FOOT, HORSEBACK OR A TRUCK. TRAVEL BY AUTOMOBILE OVER A HARD SURFACED ROAD WHEN NO UNUSUALLY ADVERSE WEATHER CONDITIONS ARE ENCOUNTERED, OR TRAVEL BY RAIL WOULD NOT NORMALLY CONSTITUTE TRAVEL UNDER ARDUOUS CONDITIONS. IN ADDITION, THE TIME OF TRAVEL (WHETHER TO BE PERFORMED DURING DAY OR NIGHT) OR DISTANCE TRAVELED, IS NOT ORDINARILY CONSIDERED IN DETERMINING WHETHER THE TRAVEL IS PERFORMED UNDER ARDUOUS CONDITIONS. A DISTINCTION SHOULD ALSO BE DRAWN BETWEEN ARDUOUS CONDITIONS AND HAZARDOUS CONDITIONS, KEEPING IN MIND THAT THE LATTER MAY CONTRIBUTE TO THE FORMER. (SEE 28 COMP. GEN. 547; 41 ID 82.)"

IN LINE WITH THE ABOVE, WE HAVE HELD THAT 30 HOURS OF TRAVEL WITHOUT A BREAK DID NOT QUALIFY AS "ARDUOUS" WITHIN THE MEANING OF THE STATUTE AND IMPLEMENTING REGULATIONS. SEE B-168119, MAY 25, 1971. THUS, IN SPITE OF THE FACT THAT MR. O'CONNOR'S TRAVEL WAS EXTENSIVE, NO OVERTIME COMPENSATION IS ALLOWABLE IN CONNECTION THEREWITH.

IN ANSWER TO THE SECOND QUESTION WE POINT OUT THAT THE STANDARDS FOR DETERMINING WHETHER RETURN TRAVEL IS ADMINISTRATIVELY CONTROLLABLE ARE THE SAME AS THOSE APPLICABLE TO INITIAL TRAVEL. SEE 50 COMP. GEN. 519 (1971); B-170683, NOVEMBER 16, 1970; AND 51 COMP. GEN. 727 (1972). IN THIS CASE, THE RECORD GIVES NO INDICATION THAT THE RETURN TRIP WAS CAUSED BY AN ADMINISTRATIVELY UNCONTROLLABLE EVENT, OR THAT IT MET ONE OR MORE OF THE OTHER CONDITIONS THAT WOULD QUALIFY IT AS WORK.

WE NOTE THAT IN THE MEMORANDUM OF APRIL 27, IT IS INDICATED THAT AN ATTEMPT WAS MADE TO SCHEDULE TRAVEL TO BEGIN ONE DAY EARLY OR TO PROVIDE FOR A LAYOVER. BOTH REQUESTS WERE REJECTED BY THE COMPTROLLER DEPARTMENT. IN THE ABSENCE OF AN EXPLANATION FOR THIS REFUSAL, WE MUST ASSUME THAT THE REFUSAL WAS BASED ON JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, PAR. C1051-2, WHICH STATES IN PERTINENT PART:

"*** TO THE MAXIMUM EXTENT PRACTICABLE, MANAGEMENT WILL SCHEDULE, OR ALLOW SCHEDULING OF, NECESSARY TRAVEL TIME EN ROUTE WITHIN AN EMPLOYEE'S REGULARLY SCHEDULED HOURS OF DUTY IN CONNECTION WITH OFFICIAL TRAVEL. WHEN SUCH SCHEDULING IS NOT PRACTICABLE, TRAVEL ON AN EARLIER OR LATER WORKDAY TO AVOID TRAVEL ON A NONWORKDAY OR OUTSIDE SCHEDULED HOURS OF DUTY SOLELY FOR THE CONVENIENCE OF THE TRAVELER WILL NOT BE A BASIS FOR EXTENDING A PERIOD OF OFFICIAL TRAVEL FOR PER DIEM ALLOWANCE OR OTHER TRAVEL STATUS PURPOSES (31 COMP. GEN. 278). ***"

IT WOULD APPEAR THAT IN KEEPING WITH THIS REGULATION, THE COMPTROLLER DEPARTMENT DECIDED TO SCHEDULE MR. O'CONNOR'S FLIGHT OVER THE WEEKEND, CONCLUDING THAT TO SCHEDULE IT EARLIER WOULD BE IMPRACTICABLE AND IN THAT CIRCUMSTANCE AN AVOIDANCE OF NONWORKDAY TRAVEL FOR THE EMPLOYEE'S CONVENIENCE WOULD BE A VIOLATION OF THE REGULATION.

UNDER THE ADMINISTRATIVE SCHEDULING MR. O'CONNOR PERFORMED 28 STRAIGHT HOURS OF TRAVEL AFTER WORKING 4 1/2 HOURS. THIS RESULT DOES NOT APPEAR TO BE IN ACCORDANCE WITH THE FURTHER REQUIREMENT OF JTR, VOLUME 2, C1051-2, WHICH STATES:

"NORMALLY, AN EMPLOYEE ON OFFICIAL TRAVEL WILL NOT BE REQUIRED TO TRAVEL DURING UNREASONABLE HOURS AT NIGHT IF SLEEPING ACCOMMODATIONS ARE NOT AVAILABLE ON THE MODE OF TRANSPORTATION."

THE REGULATIONS AND OUR DECISIONS REQUIRE A GOVERNMENT TRAVELER TO PROCEED EXPEDITIOUSLY. HOWEVER, THEY ALSO RECOGNIZE THAT, WHEN THERE IS NO COMPELLING OFFICIAL NECESSITY, SUCH TRAVELERS MAY BE GRANTED REASONABLE REST PERIODS WHEN EXTENSIVE TRAVEL IS INVOLVED. SEE 51 COMP. GEN. 364 (1971) AND B-144394, NOVEMBER 25, 1960.

WHILE IN THIS CASE THE COMPTROLLER REASONABLY MAY HAVE AUTHORIZED AN EARLIER DEPARTURE DATE OR LATER ARRIVAL DATE TO PROVIDE THE EMPLOYEE WITH REASONABLE REST OR SLEEPING PERIODS UNLESS OF COURSE THE URGENCY OF GOVERNMENT BUSINESS MADE SUCH AUTHORIZATION IMPRACTICABLE, IN NO EVENT IS A TRAVELER ENTITLED TO PER DIEM FOR ANY PERIOD LONGER THAN THAT CONSUMED WHILE TRAVELING. HENCE, NO BASIS EXISTS FOR ANY ADDITIONAL PER DIEM PAYMENT TO MR. O'CONNOR.

WE BELIEVE, HOWEVER, THAT IT WOULD BE APPROPRIATE TO TAKE THESE FACTORS INTO ACCOUNT IN SCHEDULING FUTURE TRAVEL OF THIS TYPE.