B-167035, JUN. 10, 1969

B-167035, JUN. 10, 1969

TO MR. C. H. SCHULTZ:

THIS REFERS TO YOUR LETTER OF MAY 7, 1969, REFERENCE 300, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION FROM OUR OFFICE WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF MR. ARCHELAUS J. DETIENNE FOR OVERTIME COMPENSATION AS AN EMPLOYEE OF THE BUREAU OF RECLAMATION WHO SPENT A NIGHT IN A SHELTER INCIDENT TO THE PERFORMANCE OF WORK ON A TRANSMISSION LINE.

YOU SAY THAT MR. DETIENNE, WHOSE DUTY STATION IS WEST FARGO, NORTH DAKOTA, ON JANUARY 6, 1969, LEFT WITH A CREW TO PATROL THE TRANSMISSION LINE TO FERGUS FALLS, MINNESOTA. THEY STAYED AT THE RIVER INN AT FERGUS FALLS. ON JANUARY 8, 1969, A CREW, WITH MR. DETIENNE AS FOREMAN, WAS PATROLLING THE LINE WITH A SNOWMOBILE AND TWO OTHER VEHICLES. DURING THE MORNING THE SNOWFALL AND WIND INCREASED CAUSING DRIFTING AND BLOWING SNOW WHICH MADE TRAVEL IMPOSSIBLE BECAUSE OF LOW VISIBILITY AND DRIFTED ROADS. THE LAST VEHICLE QUIT RUNNING ABOUT 1:30 P.M. BECAUSE OF MOISTURE IN THE DISTRIBUTOR. AT THIS TIME THE MEN TOOK SHELTER IN AN OLD SCHOOLHOUSE NEAR THEIR STALLED VEHICLE. THE BUILDING HAD A HEATING STOVE AND A SMALL PILE OF COAL.

WEATHER CONDITIONS IMPROVED DURING THE NIGHT AND AT 6:30 A.M. ON JANUARY 9, 1969, THEY WERE ABLE TO START THEIR VEHICLE. MR. DETIENNE HAS BEEN PAID AT OVERTIME RATES FOR WORK PERFORMED JANUARY 8 BETWEEN 11:45 A.M. AND 12:45 P.M., AND ON JANUARY 9 FROM 6:30 A.M. UNTIL 7:45 A.M. DURING WHICH TIME ACTUAL WORK WAS PERFORMED OR TRAVEL WAS BEING PERFORMED UNDER ARDUOUS CONDITIONS. THE NORMAL TOUR OF DUTY IS FROM 7:45 A.M. UNTIL 4:45 P.M. WITH LUNCH HOUR BETWEEN 1:45 A.M.AND 12:45 P.M.

THE EMPLOYEE IS CLAIMING OVERTIME FOR THE PERIOD OF TIME BEYOND HIS NORMAL TOUR OF DUTY SPENT IN THE SCHOOLHOUSE FROM 4:45 P.M. ON JANUARY 8 UNTIL 6:30 A.M. ON JANUARY 9, 1969, FOR A TOTAL OF 13-3/4 HOURS. HIS CLAIM IS BASED ON THE ASSUMPTION THAT WHILE HE WAS NOT ACTUALLY PERFORMING WORK HE SHOULD BE CONSIDERED TO HAVE BEEN IN A WORK STATUS BECAUSE HE WAS UNABLE TO RETURN TO HIS PLACE FROM WHICH HE LEFT ON THE MORNING OF JANUARY 8 AND TO WHICH HE WAS TO RETURN AT THE END OF HIS NORMAL TOUR OF DUTY.

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.

IN A SIMILAR CASE, B-164683, JULY 17, 1968, COPY ENCLOSED, IT WAS HELD THAT 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).

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.