B-146288, DEC. 29, 1961
Highlights
IS AUTHORIZED UNDER THE FACTS AND THE AUTHORITIES DISCUSSED IN YOUR LETTER AND ENCLOSURES. YOUR DOUBTS CONCERNING THE VALIDITY OF THE PROPOSED PAYMENTS ARE SAID TO ARISE FROM THE MATTERS REFERRED TO IN PARAGRAPH 2A. THE DIFFERENTIAL SO AUTHORIZED WOULD APPEAR TO BE PAYABLE WHENEVER EMPLOYEES ARE TRAVELING TO AND FROM OFF BASE SITES AND WHILE PERFORMING TEMPORARY DUTY AT SUCH SITES. THIS WAGE DIFFERENTIAL IS NOT. AN ELEMENT TO BE CONSIDERED IN DETERMINING WHETHER PARTICULAR TRAVEL IS PERFORMED UNDER ARDUOUS CONDITIONS FOR THE PURPOSE OF TRAVEL TIME PAY OR LAYOVER TIME WHEN NO DUTY IS PERFORMED. WHEREIN IT WAS HELD. ARMY CIVILIAN PERSONNEL REGULATIONS ARE INEFFECTIVE TO AUTHORIZE PAYMENT OF COMPENSATION TO PER DIEM EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES PURSUANT TO THE 40-HOUR WEEK STATUTE OF MARCH 28.
B-146288, DEC. 29, 1961
TO MAJOR G. S. BROWN, FINANCE AND ACCOUNTING OFFICER, ELMENDORF AIR FORCE BASE AND 5040TH AIR BASE WING:
YOUR LETTER OF MAY 17, 1961, BC-A, WITH THE ENCLOSURES, FORWARDED TO US BY HEADQUARTERS, U.S. AIR FORCE, UNDER LETTERS DATED JUNE 23, 1961, AFAAF- 3A-11, AND JUNE 29, 1961, AFPCP-C-2, REQUESTS OUR DECISION WHETHER PAYMENT ON THE ATTACHED PAYROLL VOUCHERS, DD FORMS 592 AND 592 2, IS AUTHORIZED UNDER THE FACTS AND THE AUTHORITIES DISCUSSED IN YOUR LETTER AND ENCLOSURES.
YOUR DOUBTS CONCERNING THE VALIDITY OF THE PROPOSED PAYMENTS ARE SAID TO ARISE FROM THE MATTERS REFERRED TO IN PARAGRAPH 2A, B, C AND D OF YOUR LETTER.
PARAGRAPH 2C REFERS TO A 5 PERCENT WAGE DIFFERENTIAL DETERMINED BY THE ARMY-AIR FORCE WAGE BOARD TO BE PAYABLE FOR OFF BASE DUTY BECAUSE OF CERTAIN ENVIRONMENTAL AND HAZARDOUS CONDITIONS THAT MAY PREVAIL GENERALLY IN ALASKA. THE DIFFERENTIAL SO AUTHORIZED WOULD APPEAR TO BE PAYABLE WHENEVER EMPLOYEES ARE TRAVELING TO AND FROM OFF BASE SITES AND WHILE PERFORMING TEMPORARY DUTY AT SUCH SITES. THIS WAGE DIFFERENTIAL IS NOT, UNDER EXISTING REGULATIONS, AN ELEMENT TO BE CONSIDERED IN DETERMINING WHETHER PARTICULAR TRAVEL IS PERFORMED UNDER ARDUOUS CONDITIONS FOR THE PURPOSE OF TRAVEL TIME PAY OR LAYOVER TIME WHEN NO DUTY IS PERFORMED.
THE REGULATION REFERRED TO IN YOUR PARAGRAPH 2A APPARENTLY STEMS FROM OUR DECISION IN 27 COMP. GEN. 613, WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS:
"UNLESS PREDICATED UPON THE PRACTICE PREVAILING IN PRIVATE INDUSTRY, ARMY CIVILIAN PERSONNEL REGULATIONS ARE INEFFECTIVE TO AUTHORIZE PAYMENT OF COMPENSATION TO PER DIEM EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES PURSUANT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, FOR NON-WORKDAYS WHILE IN A TRAVEL STATUS AT A TEMPORARY DUTY STATION WHEN NO WORK OR TRAVEL IS PERFORMED.'
THE REASON FOR THE RULE IS SET OUT IN THE BODY OF THE DECISION WHICH ALSO SUPPLIES THE BASIS FOR THE ALLOWANCE OF TRAVEL TIME, NOT EXCEEDING 8 HOURS, FOR TRAVEL ACTUALLY PERFORMED BY WAGE BOARD EMPLOYEES ON NONWORKDAYS.
PARAGRAPH 15A (4), P9.1, AFM 40-1, CITED IN PARAGRAPH 2B OF YOUR LETTER, RELATES TO TRAVEL TIME OUTSIDE THE SCHEDULED HOURS OF DUTIES ON REGULAR WORKDAYS. THE SAME CRITERIA IS APPLIED TO WAGE BOARD EMPLOYEES FOR SUCH TRAVEL TIME AS IS APPLIED BY STATUTE TO PER ANNUM GRADED EMPLOYEES, VIZ, THAT TRAVEL TIME OUTSIDE THE USUAL HOURS OF DUTY ON REGULAR WORKDAYS IS COMPENSABLE ONLY WHEN ACTUAL WORK IS PERFORMED DURING THE TRAVEL OR THE TRAVEL IS PERFORMED UNDER ARDUOUS CONDITIONS.
CONCERNING YOUR REFERENCE IN PARAGRAPH 2D, OF YOUR LETTER TO OUR DECISION IN 34 COMP. GEN. 696 AT 697, WE POINT OUT THAT WHILE THAT DECISION CONCERNED PER ANNUM EMPLOYEES IT WOULD BE FOR APPLICATION TO WAGE BOARD EMPLOYEES IN DETERMINING WHETHER PARTICULAR TRAVEL WAS PERFORMED UNDER ARDUOUS CONDITIONS. ALSO, WE ENCLOSE A COPY OF OUR DECISION OF AUGUST 3, 1961, B-146389, WITH A COPY OF THE SPECIFIC EXAMPLES OF TRAVEL CONSIDERED THEREIN, WHICH SHOULD BE USEFUL IN DETERMINING WHETHER PARTICULAR TRAVEL MEETS THE CONDITIONS SET OUT IN PARAGRAPH 15A (4), P9.1, OF THE AIR FORCE REGULATIONS.
APPLYING THE FOREGOING PRINCIPLES TO THE SITUATIONS REFERRED TO IN PARAGRAPH 3 OF YOUR LETTER WE FIND IN EXAMPLE A (1) THAT TIME AWAITING TRANSPORTATION ON SATURDAY AND SUNDAY, MARCH 4 AND 5, 1961, IS NOT COMPENSABLE BECAUSE OF THE REGULATION CITED IN PARAGRAPH 2A OF YOUR LETTER. IN EXAMPLE 3A (2) CLAIM FOR TRAVEL TIME ON MARCH 28 AND 30 31, 1961, TUESDAY, THURSDAY AND FRIDAY IS NOT COMPENSABLE IN THE ABSENCE OF EVIDENCE THAT THE ROADS USED IN THE PARTICULAR TRAVEL WERE IN SUCH POOR STATE OF REPAIR OR THAT THE WEATHER CONDITIONS WERE SO SEVERE OR THE TERRAIN TRAVERSED SO ADVERSE AS TO MAKE OPERATION OF AN AUTOMOBILE SO DIFFICULT OR HAZARDOUS AS TO WARRANT A CONCLUSION THAT DRIVING IN ITSELF WAS LABORIOUS OR ARDUOUS.
IN SITUATION 3B THE ANSWER WOULD BE THE SAME AS IN 3A (2).
AS TO EXAMPLE 3 (C) TRAVEL IN AIRCRAFT UNLESS PILOTED BY THE EMPLOYEE GENERALLY WOULD NOT BE CONSIDERED ARDUOUS. STANDBY TIME OUTSIDE OF REGULAR HOURS, WHICH WE UNDERSTAND TO BE TIME SPENT AWAITING TRANSPORTATION IN THIS EXAMPLE, WOULD NOT BE COMPENSABLE UNDER THE REGULATION CITED IN PARAGRAPH 2A OF YOUR LETTER EVEN THOUGH IT OCCURRED ON REGULAR WORKDAY.
THE ANSWERS TO 3D WOULD BE THE SAME AS THE ANSWERS TO 3 (A).
IN EXAMPLE 3E, THE TEMPORARY DUTY AND TRAVEL TIME PERFORMED ON SATURDAY, MARCH 11, A NONWORKDAY, WOULD BE COMPENSABLE UNDER REGULATION AF P9.15B (2) (A). THE VOUCHER FOR THIS ITEM IS ENCLOSED. HOWEVER,THE ITEM OF COMPENSATION FOR 2 HOURS TRAVEL TIME OUTSIDE DUTY HOURS OF MARCH 17, FRIDAY, SCHEDULED WORKDAY, WOULD BE COMPENSABLE ONLY IF PERFORMED UNDER ARDUOUS CONDITIONS, OF WHICH FACT THERE IS NO EVIDENCE OF RECORD.
THEREFORE, THE VOUCHERS AS TRANSMITTED WITH YOUR LETTER OTHERWISE ARE NOT FOR PAYMENT ON THE PRESENT RECORD AND WILL BE RETAINED IN THE FILES OF OUR OFFICE.