B-139871, SEP. 4, 1959

B-139871: Sep 4, 1959

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YOUR CLAIM WAS DISALLOWED IN OUR SETTLEMENT DATED MARCH 25. WE HAVE OBTAINED FROM THE DEPARTMENT OF THE AIR FORCE A FURTHER REPORT UPON YOUR CLAIM. IT APPEARS THAT THE ABOVE-QUOTED PROVISION IS CONTAINED IN PARAGRAPH 7 OF YOUR CONTRACT OF JANUARY 26. WHICH WAS SUPERSEDED BY PARAGRAPH 6 OF YOUR CONTRACT OF FEBRUARY 1. YOUR CLAIM IS BASED UPON AN ERRONEOUS ASSUMPTION THAT YOURS WERE "OVERSEAS MARITIME" AGREEMENTS. WE HAVE BEEN ADVISED YOU WERE EMPLOYED ONLY UNDER "LOCAL-WATER" AGREEMENTS WHICH CONTAINED THE ABOVE-QUOTED PAY PROVISION FOR "PROBABLE PERFORMANCE" OF EXTRA WORK BEYOND THE 8 HOURS NORMALLY CALLED FOR IN THE DAILY MARITIME TOURS ESTABLISHED FOR THE LOCAL-WATER VESSELS. WE HAVE BEEN ADVISED THAT THE .

B-139871, SEP. 4, 1959

TO MR. MACARIO S. MANIO:

YOUR LETTER OF MAY 25, 1959, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR "STAND-BY" TIME AS CHIEF COOK FOR THE PERIOD OCTOBER 6, 1949, TO FEBRUARY 1, 1956, WHILE EMPLOYED BY THE 13TH AIR FORCE, MANILA PORT AREA.

YOUR CLAIM WAS DISALLOWED IN OUR SETTLEMENT DATED MARCH 25, 1959, FOR THE REASONS STATED THEREIN, NAMELY, THAT IN YOUR CONTRACT YOU AGREED "THAT THE PROBABLE PERFORMANCE OF SUCH EXTRA WORK BY THE EMPLOYEE HAS BEEN TAKEN WITH CONSIDERATION IN ESTABLISHING THE WAGE SPECIFIED HEREIN; " ALSO THAT THE RECORDS DO NOT SHOW YOU PERFORMED THE EXTRA STAND-BY TIME YOU CLAIMED. HOWEVER, WE HAVE OBTAINED FROM THE DEPARTMENT OF THE AIR FORCE A FURTHER REPORT UPON YOUR CLAIM.

IT APPEARS THAT THE ABOVE-QUOTED PROVISION IS CONTAINED IN PARAGRAPH 7 OF YOUR CONTRACT OF JANUARY 26, 1946, WHICH WAS SUPERSEDED BY PARAGRAPH 6 OF YOUR CONTRACT OF FEBRUARY 1, 1956, WHEREUNDER YOU CONTINUED TO SERVE AS CHIEF COOK UNTIL MAY 16, 1958. APPARENTLY, YOUR CLAIM IS BASED UPON AN ERRONEOUS ASSUMPTION THAT YOURS WERE "OVERSEAS MARITIME" AGREEMENTS; HOWEVER, WE HAVE BEEN ADVISED YOU WERE EMPLOYED ONLY UNDER "LOCAL-WATER" AGREEMENTS WHICH CONTAINED THE ABOVE-QUOTED PAY PROVISION FOR "PROBABLE PERFORMANCE" OF EXTRA WORK BEYOND THE 8 HOURS NORMALLY CALLED FOR IN THE DAILY MARITIME TOURS ESTABLISHED FOR THE LOCAL-WATER VESSELS, FOR WHICH YOU AGREED THAT NO EXTRA COMPENSATION WOULD BE PAYABLE.

THE CONTRACTS AND PAY RECORDS CONTAIN NOTHING TO INDICATE THAT HOLIDAY PAY OR DUTY HAD ANY EFFECT ON THE STAND-BY PROVISIONS TO WHICH YOU REFER. MOREOVER, WE HAVE BEEN ADVISED THAT THE ,LOG BOOK" OF LOCAL-WATER VESSELS CONTAINED ONLY THE HISTORY OF THE VESSEL, THE TIME AND DATES OF DEPARTURES AND ARRIVALS, ENGINE TROUBLES ENCOUNTERED, AND OTHER INCIDENTS PERTAINING TO THE VESSEL'S OPERATIONS. IT DID NOT CONTAIN A ROSTER OF THE CREW OF THE TIME WORKED BY INDIVIDUAL CREW MEMBERS. THEREFORE, ACTUAL RECONSTRUCTION OF ATTENDANCE TO DUTY OR WORK HOURS FOR THE PERIOD 1949 TO 1956 WOULD NOT BE POSSIBLE.

IN THE CIRCUMSTANCES, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.