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perspective, hours its employees spend in flight do not represent
travel away from its place of business (i.e., the aircraft), any
more than aviation fuel represents a cost of travel. After all,
United’s business is air transportation.
Consider the hypothetical case of a flight crew that goes on
duty and boards one of United’s aircraft only to sit on the
tarmac for some hours (for any of the myriad reasons especially
familiar to a traveling Court) without ever taking flight.
Presumably, the pilots and flight attendants on this aircraft
would be entitled to per diem payments based on the number of
hours they were on duty, without having gone anywhere. Some of
them might return home, if home were nearby; others might go to
hotels. They might lay over variously for short times or long
times, subsisting lavishly or meanly. But each of them would
receive the predetermined per diem payment, based on the number
of hours spent sitting on the tarmac. In this hypothetical case,
it seems clear that the per diem payments are too indirectly
related to any employee travel to be considered travel expenses.
It would make no material difference to the analysis if the
employees’ hours on duty were airborne.
WELLS, CHABOT, GERBER, BEGHE, and MARVEL, JJ., agree with
this concurring opinion.
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