B-161938, OCT. 3, 1967

B-161938: Oct 3, 1967

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A HEARING EXAMINER WHO HAD 1/2 DAY'S PER DIEM DEDUCTED ON BASIS THAT HE COULD HAVE RETURNED FROM TEMPORARY DUTY TO HEADQUARTERS SOONER IF HE HAD STAYED IN A HOTEL IN BROOKLYN. SINCE IT IS NOT SHOWN WITH ANY CERTAINTY THAT EMPLOYEE COULD HAVE MADE AN EARLIER FLIGHT BACK TO HEADQUARTERS IN WASHINGTON. AN ADDITIONAL ONE HALF DAY'S PER DIEM MAY BE CERTIFIED FOR PAYMENT IF AN ADMINISTRATIVE DETERMINATION IS MADE THAT THE LATER RETURN WAS NOT IN CONTRAVENTION OF AGENCY POLICY. MAHER WAS AUTHORIZED TO TRAVEL BETWEEN WASHINGTON. THE MODE OF TRAVEL AUTHORIZED WAS PRIVATELY OWNED AUTOMOBILE WITH REIMBURSEMENT NOT TO EXCEED THE COST OF TRAVEL VIA COMMON CARRIER. MAHER DEPARTED ON MARCH 14 BY PRIVATELY OWNED AUTOMOBILE FOR THE HEARING AND THAT THE HEARING WAS COMPLETED AT 5:30 P.M.

B-161938, OCT. 3, 1967

PER DIEM - RETURN TO HEADQUARTERS DECISION TO CERTIFYING OFFICER OF NATIONAL LABOR RELATIONS BOARD CONCERNING PER DIEM FOR A HEARING EXAMINER. A HEARING EXAMINER WHO HAD 1/2 DAY'S PER DIEM DEDUCTED ON BASIS THAT HE COULD HAVE RETURNED FROM TEMPORARY DUTY TO HEADQUARTERS SOONER IF HE HAD STAYED IN A HOTEL IN BROOKLYN, PLACE OF TEMPORARY DUTY, INSTEAD OF IN A MIDTOWN NEW YORK CITY HOTEL NEED NOT BE REGARDED AS IMPRUDENT IN SELECTION OF HOTEL AND, THEREFORE, SINCE IT IS NOT SHOWN WITH ANY CERTAINTY THAT EMPLOYEE COULD HAVE MADE AN EARLIER FLIGHT BACK TO HEADQUARTERS IN WASHINGTON, AN ADDITIONAL ONE HALF DAY'S PER DIEM MAY BE CERTIFIED FOR PAYMENT IF AN ADMINISTRATIVE DETERMINATION IS MADE THAT THE LATER RETURN WAS NOT IN CONTRAVENTION OF AGENCY POLICY.

TO MR. WILLIAM L. NORFOLK:

YOUR LETTER OF JUNE 28, 1967, REQUESTS OUR DECISION WHETHER THE ENCLOSED RECLAIM VOUCHER FOR $7.50 (REPRESENTING 1/2 DAY'S PER DIEM IN LIEU OF SUBSISTENCE) IN FAVOR OF MR. THOMAS F. MAHER, A HEARING EXAMINER OF YOUR AGENCY, MAY BE CERTIFIED FOR PAYMENT.

BY TRAVEL ORDER DATED MARCH 10, 1967, MR. MAHER WAS AUTHORIZED TO TRAVEL BETWEEN WASHINGTON, D.C., AND BROOKLYN, NEW YORK, FOR THE PURPOSE OF CONDUCTING A HEARING. THE MODE OF TRAVEL AUTHORIZED WAS PRIVATELY OWNED AUTOMOBILE WITH REIMBURSEMENT NOT TO EXCEED THE COST OF TRAVEL VIA COMMON CARRIER.

IT APPEARS FROM YOUR LETTER AND PAPERS SUBMITTED THEREWITH THAT MR. MAHER DEPARTED ON MARCH 14 BY PRIVATELY OWNED AUTOMOBILE FOR THE HEARING AND THAT THE HEARING WAS COMPLETED AT 5:30 P.M. ON MARCH 16. HE RETURNED TO WASHINGTON ON MARCH 17, ARRIVING AT 11 A.M.

FROM THE CLAIM FOR PER DIEM COVERING THE PERIOD 4 P.M. MARCH 14 TO 11 A.M. MARCH 17, THERE WAS ADMINISTRATIVELY DEDUCTED 1/2 DAY'S PER DIEM FOR MARCH 17, ON THE BASIS THAT THERE WAS NO OFFICIAL NECESSITY FOR STAYING OVER UNTIL THE MORNING OF MARCH 17. YOU SAY THAT THE AGENCY POLICY HAS BEEN TO REQUIRE EMPLOYEES TO RETURN TO HEADQUARTERS ON THE NEXT AVAILABLE TRANSPORTATION UPON COMPLETION OF OFFICIAL DUTIES (ALLOWING A REASONABLE AMOUNT OF TIME FOR CHECKING OUT OF THE HOTEL AND TRAVELING TO THE AIRPORT) WHEN PRIVATELY OWNED AUTOMOBILE IS USED FOR THE EMPLOYEE'S PERSONAL CONVENIENCE.

IN COMPUTING CONSTRUCTIVE PER DIEM BASED UPON COMMON CARRIER TRAVEL, THE PROPOSED SCHEDULE PROVIDED FOR DEPARTURE FROM NEW YORK ON MARCH 16 BY AIR SHUTTLE AT 9 P.M., ARRIVING WASHINGTON NATIONAL AIRPORT AT 9:50 P.M.

MR. MAHER CONTENDS THAT HE COULD NOT HAVE RETURNED TO HIS HOTEL IN MIDTOWN MANHATTAN UNTIL ABOUT 6:15 P.M.; THAT HE COULD NOT HAVE COMPLETED PACKING AND CHECKING OUT OF THE HOTEL UNTIL ABOUT 7 P.M., AND THAT IN ALL LIKELIHOOD, TAKING INTO ACCOUNT THE TIME REQUIRED FOR A MEAL AND TRAVEL TO LAGUARDIA AIRPORT, HE COULD NOT HAVE MADE THE 9 P.M. FLIGHT. HE SAYS THAT IF HE HAD TAKEN THE 10 P.M. FLIGHT, ARRIVING WASHINGTON AT 10:58 P.M., HE COULD NOT HAVE REACHED HIS HOUSE IN NORTH BETHESDA, MARYLAND, UNTIL BETWEEN MIDNIGHT AND 12:30 A.M.

THERE IS SOME INDICATION IN THE FILE THAT THE ADMINISTRATIVE DETERMINATION THAT THE 9 P.M. DEPARTURE TIME WAS REASONABLE FOR CONSTRUCTIVE PER DIEM PURPOSES WAS BASED UPON THE ASSUMPTION THAT THE EMPLOYER COULD HAVE STAYED AT A HOTEL IN BROOKLYN RATHER THAN ONE IN MIDTOWN MANHATTAN. HOWEVER, IT DOES NOT APPEAR TO US THAT IT WAS IMPRUDENT FOR THE EMPLOYEE TO HAVE SELECTED THE PARTICULAR HOTEL THAT HE DID--WITHIN THE METROPOLITAN AREA OF THE PLACE OF TEMPORARY DUTY- PARTICULARLY SINCE, IN VIEW OF THE FACT THAT IT WAS NOT KNOWN IN ADVANCE THAT THE HEARING WOULD BE COMPLETED WHEN IT WAS, IT COULD NOT HAVE BEEN ANTICIPATED IN ADVANCE THAT THE LOCATION OF THE HOTEL MIGHT BECOME SIGNIFICANT IN DETERMINING THE FEASIBILITY OF A PARTICULAR FLIGHT FOR CONSTRUCTIVE PER DIEM PURPOSES.

WE DO NOT BELIEVE THAT, UNDER THE CIRCUMSTANCES RELATED IN YOUR LETTER AND THE ENCLOSURES, THERE IS ANY CERTAINTY THAT THE EMPLOYEE COULD HAVE MADE THE 9 P.M. FLIGHT. ALSO, WE ARE OF THE OPINION THAT THE 10 P.M. FLIGHT, WHICH WOULD HAVE PLACED THE EMPLOYEE AT HIS HOME BETWEEN MIDNIGHT AND 12:30 A.M., WOULD NOT BE REASONABLE. ACCORDINGLY, WE WOULD HAVE NO OBJECTION TO AN ADMINISTRATIVE DETERMINATION THAT THE RETURN TO WASHINGTON ON THE MORNING OF MARCH 17 WAS NOT IN CONTRAVENTION OF THE AGENCY POLICY MENTIONED ABOVE OR THE PROVISIONS OF SECTION 3.5C (2) (C) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (AS REDESIGNATED BY BUREAU OF THE BUDGET CIRCULAR NO. A-7, TRANSMITTAL MEMORANDUM NO. 6, FEBRUARY 7, 1967). IF, UPON RECONSIDERATION, SUCH DETERMINATION BE MADE, THE VOUCHER, WHICH, TOGETHER WITH THE ACCOMPANYING ENCLOSURES, IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT; OTHERWISE, NOT. CF. DECISION OF APRIL 22, 1966, B-158729, TO YOU, A COPY OF WHICH IS ENCLOSED FOR YOUR READY REFERENCE.