B-52095, DECEMBER 23, 1946, 26 COMP. GEN. 433

B-52095, DECEMBER 23, 1946, 26 COMP. GEN. 433

COMPENSATION - OVERTIME - TRAVEL TIME TIME CONSUMED BY FIELD EMPLOYEES OF THE FOREST SERVICE, AGRICULTURE DEPARTMENT, OUTSIDE OF THEIR REGULAR DAILY OR WEEKLY TOURS OF DUTY IN TRAVELING TO AND FROM THE SITE OF A FIRE BY HORSEBACK, TRUCK (EITHER AS DRIVER OR PASSENGER), OR IN AN AIRPLANE AS A PARACHUTE JUMPER, AND DURING HOURS NORMALLY ALLOTTED FOR SLEEP, MAY BE REGARDED AS WORK AND ALL SUCH TIME IN EXCESS OF 40 HOURS IN ANY ONE WORKWEEK MAY BE COMPENSATED FOR AS OVERTIME PURSUANT TO SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 25 COMP. GEN. 317, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, DECEMBER 23, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 8, 1946, AS FOLLOWS:

REFERENCE IS MADE TO THE DECISION B-52095 DATED OCTOBER 2, 1945, ESPECIALLY QUESTIONS 5 AND 6. (INVOLVES PAYMENT OF OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, FOR TRAVEL TIME.)

THE CHIEF OF THE FOREST SERVICE IS STRONGLY OF THE OPINION THAT MUCH OF THE TIME SPENT BY FIELD EMPLOYEES OF THAT ORGANIZATION AND CLASSED AS TRAVEL BY THE DECISION SHOULD BE CLASSED AS WORK. IT IS APPARENT THAT THE CIRCUMSTANCES WERE NOT CLEARLY SET FORTH IN DEPARTMENT LETTER OF AUGUST 29, 1945, ESPECIALLY AS TO THE DIFFERENCE BETWEEN TRAVEL THROUGH FORESTS AND TRAVEL BY THE SAME MEANS ON OPEN ROADS, TRAILS, AND OTHER PUBLIC THOROUGHFARES. I SHOULD APPRECIATE IT, THEREFORE, IF YOU WOULD GIVE FURTHER CONSIDERATION TO THE QUESTIONS AS HEREINAFTER PRESENTED, WHICH ALL RELATE TO TIME OUTSIDE THE BASIC WORK WEEK.

1. HORSEBACK TRAVEL.--- HORSEBACK TRAVEL FOR PLEASURE AND EXERCISE IS COMMON--- WHERE TIME, PLACE, ROUTE AND DURATION OF TRAVEL ARE AT THE OPTION OF THE RIDER. FOR HORSEBACK TRAVEL ON OFFICIAL WORK IN THE NATIONAL FORESTS EASY ROUTES AND DURATION ARE NOT MATTERS OF CHOICE; SADDLE ANIMALS ARE USED WHERE THE ONLY OTHER FEASIBLE MEANS OF TRANSPORTATION IS FOOT TRAVEL. A FOREST OFFICER TRAVELING HORSEBACK, ESPECIALLY WHEN GOING TO A FIRE, CARRIES TOOLS, SUCH AS SHOVEL, AXE, ETC., DRINKING WATER, FOOD SUPPLIES, AND BEDDING, WHICH MAY BE PACKED ABOUT THE SADDLE OR PARTLY CARRIED ON THE OFFICER'S BACK. AT BEST, AS ON A TRAIL OR ROAD, CARE IS REQUIRED TO PREVENT INJURY TO HIMSELF OR THE ANIMAL THROUGH A SHIFTING OF THE TOOLS; AWAY FROM THE OPEN TRAIL OR ROAD MUCH GREATER CARE IS NECESSARY. OFF THE OPEN TRAILS HE ENCOUNTERS BRUSH, LOW LIMBS, LOGS, LOOSE ROCK, ROUGH TERRAIN ON WHICH FOOTING IS UNCERTAIN, STEEP GRADES AND OTHER CONDITIONS THAT RENDER HORSEBACK TRAVEL AS TIRING AS MOST PHYSICAL WORK; FREQUENTLY IT IS NECESSARY TO DISMOUNT AND LEAD THE HORSE THROUGH BRUSH, OVER DANGEROUS PLACES, OR UP AND DOWN STEEP GRADES. THE TRAVELER MUST BE CONSTANTLY ON THE ALERT TO AVOID STRIKING LIMBS, SNAGS, ETC., THAT MIGHT RESULT IN SERIOUS INJURIES TO HIMSELF OR THE ANIMAL. MANY OF THESE HORSEBACK TRIPS COMPLETELY EXHAUST A PERSON NOT HARDENED TO ROUGH TRAVEL AND HARD WORK. IT IS BELIEVED, THEREFORE, THAT SUCH TRAVEL SHOULD BE CLASSED AS WORK, THE SAME AS FOOT TRAVEL.

DECISION IS REQUESTED, THEREFORE, AS TO WHETHER HORSEBACK TRAVEL UNDER THESE CONDITIONS MAY BE CLASSED AS WORK.

2. TRUCK TRANSPORTATION.--- A. TRAVEL BY TRUCK, WHILE GENERALLY NOT AS STRENUOUS AS BY SADDLE HORSE, MAY ALSO CAUSE MUCH PHYSICAL STRAIN. TRUCKS ARE NOT DESIGNED FOR CARRYING PASSENGERS BUT MUST OFTEN BE PRESSED INTO SERVICE FOR THAT PURPOSE IN DEALING WITH FOREST FIRE EMERGENCIES. VARIOUS DEVICES AND ADAPTATIONS ARE USED WHENEVER POSSIBLE TO REDUCE THE FATIGUE OF MEN BEING TRANSPORTED BY SUCH MEANS. YET, AT BEST, TRUCK TRAVEL REMAINS IN A DIFFERENT CLASS FROM TRAVEL IN REGULAR PASSENGER-CARRYING VEHICLES. WHERE LARGE NUMBERS OF MEN ARE TRANSPORTED BY TRUCK, IT IS SOMETIMES NECESSARY FOR THEM TO STAND IN THE TRUCK. TRAVEL THEN BECOMES AS TIRING AS FOOT TRAVEL OF THE SAME DURATION. IN OTHER INSTANCES THE ONLY SEATS AVAILABLE ARE THE TRUCK BED BOTTOM AND BOARDS OR HARD BENCHES. ON ROUGH MOUNTAIN ROADS AND WAYS KNOWN AS TRUCK TRAILS, TRAVEL BY THIS MEANS IS EXTREMELY UNCOMFORTABLE AND TIRESOME. SUCH TRAVEL TO FIRES MAY COVER RELATIVELY LONG PERIODS AND MAY CONSIDERABLY EXCEED THE ACTUAL WORKING TIME ON THE FIRE. WHEN MEN ARE REQUIRED TO SPEND SEVERAL HOURS EACH WAY IN TRAVEL BY TRANSPORTATION FACILITIES THAT ARE UNCOMFORTABLE AND TIRING BUT THEY COMPLETE THE FIRE SUPPRESSION JOB WITHIN A RELATIVELY SHORT TIME, PAYMENT FOR THE SUPPRESSION TIME IS NOT ADEQUATE COMPENSATION. SUCH TRAVEL, USUALLY BEING OUTSIDE OF THE BASIC WORK DAY, RESULTS IN LOSS OF SLEEP; IT IS NOT POSSIBLE TO SLEEP EN ROUTE, AS WOULD BE THE CASE WITH MORE COMFORTABLE TRANSPORTATION.

DECISION IS DESIRED AS TO WHETHER SUCH TRUCK TRAVEL MAY BE CLASSED AS WORK.

B. FURTHER DECISION IS DESIRED AS TO WORK CLASSIFICATION FOR THE FOLLOWING MOVEMENT BY TRUCK:

(1) WHEN A FOREST OFFICER DRIVES A TRUCK SOLELY FOR THE PURPOSE OF TRANSPORTING A TRUCKLOAD OF MEN, EQUIPMENT, AND/OR SUPPLIES, IT IS UNDERSTOOD THAT THE TIME ALTHOUGH OUTSIDE HIS BASIC HOURS IS DEFINITELY CLASSIFIED AS WORK; HE IS THEN PERFORMING THE WORK OF TRUCK DRIVER. REPLY TO QUESTION 6 IN THE OCTOBER 2 DECISION IT WAS HELD THAT AN EMPLOYEE TRAVELING IN A TRUCK AND TRANSPORTING MEN, TOOLS, AND SUPPLIES, COULD NOT BE PAID FOR TRAVEL TIME OUTSIDE HIS BASIC WORK HOURS EVEN THOUGH HE IS DRIVING THE VEHICLE. SINCE THE SAME ENERGY IS EXPENDED IN DRIVING WHETHER THE EMPLOYEE (A) IS MAKING THE TRIP SOLELY AS TRUCK DRIVER OR (B) IS REQUIRED TO TRAVEL BETWEEN THE TWO POINTS WHETHER HE OR SOME OTHER PERSON DRIVES THE TRUCK, IT SEEMS REASONABLE THAT THE TIME SPENT DRIVING THE TRUCK BE CLASSED AS WORK IN EITHER CASE.

IN PRESENTING THIS QUESTION WE HAVE IN MIND A SITUATION WHERE A TRUCK IS REQUIRED TO TRANSPORT A NUMBER OF MEN, OR A SUBSTANTIAL LOAD OF SUPPLIES, EQUIPMENT, ETC.WHERE THE TRUCK IS PRIMARILY USED AS THE EMPLOYEE'S MEANS OF TRAVEL (I.E., AS A SUBSTITUTE FOR A PASSENGER AUTOMOBILE) WITH ONLY SUCH TOOLS AND SUPPLIES AS HE MAY NEED OR WITH ONLY AN ADDITIONAL MAN OR TWO RIDING ON THE TRUCK SEAT NO QUESTION IS RAISED AS TO THE TRAVEL CLASSIFICATION.

(2) A FOREST OFFICER RIDING IN A CAR OR TRUCK MAY TRANSPORT A HORSE IN A HORSE TRAILER SO THAT THE ANIMAL WILL BE AVAILABLE FOR RIDING OR PACKING FROM THE POINT WHERE HE LEAVES THE ROAD OR TRUCK TRAIL. THIS REQUIRES CAREFUL DRIVING, ESPECIALLY IN ROUGH COUNTRY, TO AVOID UPSETTING THE TRAILER AND INJURY TO THE HORSE. MAY THIS BE CLASSED AS WORK?

3. PARACHUTE JUMPERS.--- A MODERN METHOD OF ACCOMPLISHING PROMPT SUPPRESSION OF FIRES, TO EXTINGUISH THEM WHILE SMALL WITH CONSEQUENT REDUCTION OF SUPPRESSION COST AND TIMBER LOSS, IS BY MEANS OF AIRPLANES AND PARACHUTES, MEN BEING DROPPED IN THE BACKWOODS COUNTRY WITHIN A SMALL FRACTION OF THE TIME REQUIRED BY MOTOR VEHICLE, HORSE, OR FOOT TRAVEL. THESE JUMPERS WEAR SUITS AND OTHER CLOTHING ESPECIALLY DESIGNED TO PROTECT THEM AGAINST INJURY AND THEY ARE EQUIPPED WITH TWO PARACHUTES. THEY ARE FLOWN TO THE REPORTED LOCATION OF A FIRE. WHEN THE FIRE IS FOUND AND A SPOT LOCATED WHERE JUMPING APPEARS SAFE, A TEST CHUTE IS DROPPED TO DETERMINE THE EFFECT OF THE WIND, FOLLOWING WHICH THE MEN JUMP FROM THE PLANE, AIMING TO LAND AT THE PREDETERMINED, APPARENTLY SAFE SPOT. AS THEY MAY LAND IN TREES, ROPES ARE CARRIED FOR DESCENT FROM TREETOPS. WITH THE HEAVY SUITS, PARACHUTES AND HARNESS, THE MEN SUFFER FROM THE HEAT AND ARE OTHERWISE UNCOMFORTABLE.

THE MEN ARE FULLY EQUIPPED BEFORE ENTERING THE PLANE. THEY ARE UNDER ORDERS AND THEIR ACTS ARE CLOSELY CONTROLLED. THEY ARE REGARDED AS IN WORK STATUS FROM THE TIME THE PLANE TAKES OFF, ALTHOUGH ASIDE FROM ADJUSTING EQUIPMENT AND LOOKING FOR LANDING PLACES OR THE FIRE THEY MAY DO NOTHING FOR A TIME BUT SIT IN THE PLANE AWAITING THE SIGNAL TO JUMP. NORMALLY THIS WAITING INTERVAL IS LESS THAN AN HOUR AFTER THE PLANE TAKES OFF. OCCASIONALLY WHERE PLANES ARE FLOWN LONGER DISTANCES, TO AID IN EMERGENCIES OUTSIDE THEIR ESTABLISHED ZONE OF OPERATION, THIS INTERVAL MAY BE EXTENDED TO SEVERAL HOURS. CONSIDERING THE NATURE OF THE WORK AND THE FACT THE MEN ARE NOT "PASSENGERS" BUT ARE SPECIALLY EQUIPPED WORKERS, IT SEEMS REASONABLE, EVEN ON THESE INFREQUENT LONGER FLIGHTS, TO CLASS THE TRAVEL PERIOD AS WORK TIME; THE PARACHUTIST'S STATUS IS NOT ESSENTIALLY DIFFERENT FROM THAT OF A FIREMAN OR OTHER EMPLOYEE WHO IS CREDITED WITH WORK TIME WHENEVER HE IS REQUIRED TO REMAIN IN READINESS AT A SPECIFIED POINT, EQUIPPED FOR IMMEDIATE ACTION.

DECISION IS DESIRED AS TO WHETHER ON LONGER TRIPS THE SMOKE JUMPER MAY BE CONSIDERED IN WORK STATUS DURING THE ENTIRE TIME HE IS IN THE PLANE. IS ASSUMED THAT THE RETURN TRIP FROM A FIRE, WHETHER BY MOTOR VEHICLE OR PLANE, WOULD BE CLASSED AS TRAVEL; IS THIS CORRECT?

4. LOSS OF SLEEP.--- WHEN FIRE EMERGENCIES ARISE THERE ARE NEVER ENOUGH SKILLED AND EXPERIENCED SUPERVISORY PERSONNEL AVAILABLE ON THE PROTECTION UNIT AFFECTED AND MORE MUST BE ASSIGNED FROM OTHER UNITS. OFTEN THIS REQUIRES THE DETAIL OF MEN TO FIRE ACTIVITIES AT LONG DISTANCES FROM THEIR HOMES AND NORMAL AREA OF ACTIVITY. WHEN THIS IS DONE, AVAILABILITY OF SUCH MEN MUST BE ASSURED IN ADVANCE AND THEY ARE MADE COMPLETELY SUBJECT TO THE NEEDS OF THE EMERGENCY SITUATION AND TO THE ORDERS OF THE OFFICER IN CHARGE OF THE FIRE PROJECTS CONCERNED. MEANS OF TRAVEL AND THE TIME AND PLACE AT WHICH THE DETAILED OFFICER MUST BE AVAILABLE ARE THEN NOT WITHIN HIS OWN DISCRETION. OFTEN IT IS NECESSARY TO SEND SUCH MEN TO FIRES LATE AT NIGHT OR VERY EARLY IN THE MORNING UNDER CONDITIONS THAT DEPRIVE THEM OF THE USUAL AMOUNT OF SLEEP. IN MANY CASES THEY MAY TRAVEL ALL NIGHT. ALTHOUGH AVOIDED WHEREVER POSSIBLE, THERE ARE INSTANCES WHERE MEN HAVE LITTLE OR NO SLEEP FOR FROM 24 TO 48 HOURS DURING WHICH THEY MAY PERFORM NO ACTUAL WORK OR MAY WORK FOR SHORT PERIODS ONLY ON THE PROJECT FOR WHICH THEY ARE BEING HELD.

OFTEN THE SITUATION CHANGES RAPIDLY. UNEXPECTED WEATHER CHANGES, EARLIER CONTROL OF THE FIRE, OR OTHER CHANGED CONDITIONS MAY RESULT IN EMPLOYEE NOT BEING NEEDED AT THE TIME AND PLACE ANTICIPATED. THERE SEEMS A SOUND BASIS FOR DIFFERENTIATING BETWEEN FORCED TRAVEL UNDER SUCH CONDITIONS AND TRAVEL THAT PERMITS SLEEP AND REST EN ROUTE. IT IS REALIZED THAT THE HOURS FOR SLEEPING VARY WITH INDIVIDUALS, AND MANY DO NOT FOLLOW A DEFINITE SCHEDULE FOR RETIRING AND ARISING. USUALLY, HOWEVER, FOR ALL PRACTICAL PURPOSES, THE LOCAL OFFICIALS COULD DETERMINE THE EXTENT TO WHICH TRAVEL IN CONNECTION WITH FIRES DEPRIVES THE EMPLOYEE OF SLEEP OR NORMAL REST.

DECISION IS DESIRED AS TO WHETHER SUCH TRAVEL MAY BE CLASSED AS WORK WHEN PERFORMED DURING THE HOURS NORMALLY ALLOTTED FOR SLEEP AND UNDER CONDITIONS THAT UNAVOIDABLY DEPRIVE THE INDIVIDUAL OF HIS SLEEP.

IN DECISION OF OCTOBER 2, 1945, B-52095, 25 COMP. GEN. 317, QUESTIONS AND ANSWERS NOS. 5 AND 6 WERE STATED AS FOLLOWS:

5. FURTHER CONSIDERATION IS DESIRED AS TO THE APPLICATION TO PER ANNUM EMPLOYEES OF YOUR REPLY TO QUESTION 8. IN EXPLANATION OF A DIFFERENCE BETWEEN THIS DECISION AND DECISIONS UNDER THE 1934 ACT, THE DECISION STATES THAT IT IS BELIEVED CONGRESS DID NOT INTEND THE NEW PAY STATUTE "TO BE SO ADMINISTERED AS TO CAUSE THE STATUTORY LIMITATION UPON THE ANNUAL BASIC SALARY RATE, PLUS REGULAR OVERTIME COMPENSATION DURING ANY WEEK, TO BE EXCEEDED BY AUTHORIZING PAYMENT OF ANY ADDITIONAL COMPENSATION SOLELY BECAUSE OF OFFICIAL TRAVEL OUTSIDE OF THE BASIC WORKWEEK PLUS THE PERIOD OF REGULARLY ORDERED OVERTIME--- IN THIS CASE 44 HOURS PER WEEK.' QUESTION HAS BEEN RAISED AS TO WHETHER THIS CONCLUSION APPLIES ONLY TO TRAVEL ALONE OUTSIDE THE REGULARLY SCHEDULED WORKWEEK OR APPLIES ALSO TO DAYS OUTSIDE THE REGULAR TOUR OF DUTY ON WHICH BOTH TRAVEL AND WORK ARE PERFORMED. IT IS CLEAR FROM THE DECISION THAT TRAVEL BETWEEN TWO DUTY POINTS PERFORMED ON SATURDAY AFTERNOON OR SUNDAY, NO WORK BEING PERFORMED, WOULD ENTITLE AN EMPLOYEE TO NO ADDITIONAL COMPENSATION. IT COMMONLY HAPPENS IN FOREST FIRE SUPPRESSION WORK AND OCCASIONALLY IN OTHER WORK THAT AN EMPLOYEE TRAVELS ON SATURDAY AFTERNOON OR SUNDAY TO AND/OR FROM A SPECIFIC JOB. FOR EXAMPLE, A FOREST RANGER MAY RECEIVE A FIRE REPORT AT 3:00 P.M. SATURDAY OR 10:00 A.M. SUNDAY, SPEND AN HOUR OR OTHER PERIOD TRAVELING TO THE FIRE AND AFTER IT IS EXTINGUISHED RETURN TO HIS STATION. IN SUCH EVENT MAY HE BE ALLOWED COMPENSATION FOR HIS TRAVEL TIME TO AND FROM THE FIRE SATURDAY AFTERNOON OR SUNDAY (A) WITHIN THE HOURS CORRESPONDING TO HIS REGULAR TOUR OF DUTY SUCH AT 8:00 A.M. TO 5:00 P.M. AND (B) BEFORE OR AFTER SUCH HOURS?

6. IN NO. 5 WOULD IT MAKE ANY DIFFERENCE WHETHER HE TRAVELED (A) IN A GOVERNMENT TRUCK WITH OR WITHOUT ASSISTANTS, HE DRIVING THE TRUCK AND TRANSPORTING SUCH TOOLS AND SUPPLIES AS HE EXPECTS TO NEED ON THE FIRE (WHICH MAY BE A SMALL QUANTITY), (B) IN A GOVERNMENT OR HIS OWN PASSENGER CAR UNDER THE SAME CONDITIONS, OR (C) BY HORSEBACK? INCIDENTALLY, IT MAY BE MENTIONED THAT ANY TRAVEL BY FOOT FROM THE POINT OF LEAVING THE VEHICLE TO AND FROM THE FIRE IS CONSIDERED WORK TIME AS IS ALSO ANY WORK NECESSARY IN CARING FOR A HORSE.

5. IN THE DECISION OF JULY 28, 1945, B-51099, TO YOU, THERE WAS ANSWERED IN THE AFFIRMATIVE THAT PART OF QUESTION 8 AS FOLLOWS:

"* * * IN OTHER WORDS, IF EMPLOYEES COVERED BY THE PAY ACT OF 1945 ARE IN TRAVEL STATUS DURING SATURDAY AND SUNDAY, THEY WOULD BE ENTITLED TO THE FOUR HOURS OVERTIME PAY ON SATURDAY ONLY. NO OVERTIME PAY OR STRAIGHT TIME PAY SHOULD BE GRANTED FOR ANY OTHER HOURS DURING SATURDAY OR SUNDAY BY MERE REASON THAT THE EMPLOYEE IS IN TRAVEL STATUS, UNLESS WORK IS ACTUALLY ORDERED OR PERFORMED. AN EMPLOYEE, HOWEVER, SINCE HE IS IN A TRAVEL STATUS DURING SUCH DAYS WOULD BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE. ARE THESE ASSUMPTIONS CORRECT? THAT RULE WAS STATED AS APPLICABLE TO ALL PER ANNUM EMPLOYEES AND NO REASON IS PERCEIVED--- AND NONE HAS BEEN ADVANCED--- WHY IT SHOULD NOT APPLY TO THE EMPLOYEE REFERRED TO UNDER THIS QUESTION. ACCORDINGLY, BOTH SUBQUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE.

6. SUBQUESTIONS (A), (B), AND (C) ARE ANSWERED IN THE NEGATIVE, THAT IS, THE ANSWER TO QUESTION 5 IS EQUALLY APPLICABLE TO THIS QUESTION.

THE ANSWERS TO QUESTIONS 5 AND 6, SUPRA, WERE BASED UPON THE THEORY OF ORDINARY TRAVEL BY THE EMPLOYEES BETWEEN POINTS WHERE TEMPORARY ROUTINE DUTIES WERE TO BE PERFORMED, AND GAVE NO CONSIDERATION TO TRAVEL OR TRANSPORTATION UNDER THE CONDITIONS SET FORTH IN YOUR PRESENT SUBMISSION. IN VIEW OF THE TRAVEL CONDITIONS DESCRIBED IN YOUR PRESENT LETTER, IT MAY BE CONCLUDED THAT THE TIME COVERED BY ALL OF THE VARIOUS FORMS OF TRANSPORTATION UNDER THE CONDITIONS THEREIN DEPICTED, INCLUDING RETURN TRANSPORTATION FROM THE SITE OF A FIRE, MAY BE CLASSIFIED AS WORK AND ALL SUCH TIME IN EXCESS OF 40 HOURS IN AHY ONE WEEK MAY BE COMPENSATED FOR AS OVERTIME.