B-74569, APRIL 8, 1948, 27 COMP. GEN. 610

B-74569, APRIL 8, 1948, 27 COMP. GEN. 610

WITNESS FEES AND MILEAGE - APPROPRIATION CHARGEABLE - PROCEEDINGS UNDER NATIONAL LABOR RELATIONS ACT WHILE FEES AND MILEAGE FOR PAYMENT BY THE UNITED STATES TO WITNESSES APPEARING IN THE DISTRICT COURTS ARE GENERALLY CHARGEABLE TO THE APPROPRIATION ITEM " FEES OF WITNESSES, DEPARTMENT OF JUSTICE," SUCH EXPENSES INCIDENT TO DISTRICT COURT PROCEEDINGS FOR INJUNCTIVE RELIEF INITIATED AND CONDUCTED BY THE NATIONAL LABOR RELATIONS BOARD, THROUGH ITS ATTORNEYS, UNDER ITS STATUTORY AUTHORITY, ARE CHARGEABLE TO THE BOARD'S APPROPRIATION FOR " MISCELLANEOUS EXPENSES" AS AN AUTHORIZED AND NECESSARY EXPENSE.

COMPTROLLER GENERAL WARREN TO H. R. GLASER, NATIONAL LABOR RELATIONS BOARD, APRIL 8, 1948:

I HAVE YOUR LETTER OF MARCH 15, 1948, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT FROM THE APPROPRIATIONS OF THE NATIONAL LABOR RELATIONS BOARD TWO VOUCHERS COVERING WITNESS FEES AND MILEAGE FOR PERSONS--- OTHER THAN GOVERNMENT EMPLOYEES--- SUBPOENAED BY AND APPEARING BEFORE DISTRICT COURTS OF THE UNITED STATES IN ACTIONS IN WHICH THE BOARD WAS INVOLVED.

YOUR LETTER REFERS TO PARAGRAPHS (J) AND (L) OF SECTION 10 OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, 61 STAT. 149, AUTHORIZING OFFICERS OR ATTORNEYS OF THE BOARD TO PETITION, ON ITS BEHALF, THE APPROPRIATE DISTRICT COURT OF THE UNITED STATES FOR INJUNCTIVE RELIEF WITH RESPECT TO CERTAIN ALLEGED UNFAIR LABOR PRACTICES. ALSO, YOU STATE THAT, IN ORDER FOR THE BOARD PROPERLY TO PRESENT ITS CASE TO THE COURT IN SUCH PROCEEDINGS, IT USUALLY IS NECESSARY FOR THE BOARD'S ATTORNEY TO APPLY TO THE CLERK OF THE COURT FOR THE ISSUANCE OF SUBPOENAES TO WITNESSES COMPELLING THEIR ATTENDANCE, BUT THAT, SINCE THE PROCEEDINGS ARE BROUGHT ON BEHALF OF THE GOVERNMENT BY THE BOARD AND ARE CONDUCTED BY ATTORNEYS FOR THE BOARD AND NOT BY THE UNITED STATES ATTORNEYS, THE UNITED STATES ATTORNEYS FOR THE DISTRICTS WHERE THE PROCEEDINGS HAVE BEEN INSTITUTED GENERALLY DECLINE TO CERTIFY VOUCHERS DIRECTING THE UNITED STATES MARSHALS TO PAY WITNESS FEES AND MILEAGE TO THE PERSONS APPEARING AS WITNESSES BEFORE THE COURTS PURSUANT TO THE SUBPOENAES.

ONE OF THE VOUCHERS TRANSMITTED WITH YOUR LETTER, FORM 30, N.L.R.B., PUBLIC VOUCHER FOR WITNESS FEES AND MILEAGE, WAS SUBMITTED BY MR. DONALD DOW IN THE AMOUNT OF $16.40, COVERING THE WITNESS FEE FOR TWO DAYS AT $1.50 PER DAY, AND MILEAGE AT $0.05 PER MILE FOR 268 MILES INCURRED IN TRAVELING IN CONNECTION WITH THE MATTER OF DOUDS V. LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. THE OTHER VOUCHER, STANDARD FORM NO. 1080/REVISED, VOUCHER FOR TRANSFERS BETWEEN APPROPRIATIONS AND/OR FUNDS, IN THE AMOUNT OF $16, IS PAYABLE TO BENJAMIN F. ELLIS, UNITED STATES MARSHAL, MONTGOMERY, ALABAMA, AS REIMBURSEMENT FOR WITNESS FEES REQUIRED BY THE COURT TO BE PAID BY THE MARSHAL IN THE CASE OF BAKER V. LOCAL 1796, UNITED STATES BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA.

IN CONNECTION WITH THE CERTIFICATION OF THE VOUCHERS, YOU ASKED THE FOLLOWING QUESTIONS:

(A) IS IT PROPER FOR THE BOARD'S CERTIFYING OFFICER TO CERTIFY THE ATTACHED WITNESS FEE VOUCHER TO DONALD DOW, THE WITNESS SUMMONED BY THE BOARD TO APPEAR BEFORE A UNITED STATES DISTRICT COURT IN A PROCEEDING UNDER SECTION 10 (1) OF THE NATIONAL LABOR RELATIONS ACT?

(B) IF YOUR OPINION IS IN THE AFFIRMATIVE, IS VOUCHER FORM 30, WHICH WAS DESIGNED FOR THE PAYMENT OF WITNESSES APPEARING IN PROCEEDINGS BEFORE THE BOARD, ITS MEMBER, AGENT OR AGENCY UNDER AUTHORITY OF SECTION 11 (4) OF THE NATIONAL LABOR RELATIONS ACT, A PROPER FORM FOR PAYING THE FEES AND MILEAGE NOW IN QUESTION?

(C) IS IT NECESSARY TO ATTACH A COPY OF THE COURT'S SUBPOENA TO THE VOUCHER WHEN THE BOARD'S ATTORNEY, HAVING PERSONAL KNOWLEDGE OF THE TIME OF TRAVEL AND ATTENDANCE AND THE MILEAGE TRAVELED, ADMINISTRATIVELY APPROVES THE VOUCHER?

(D) AS AN ALTERNATIVE TO (A) ABOVE, IS IT PROPER TO REIMBURSE THE ACCOUNTS OF THE UNITED STATES MARSHAL BY VOUCHER FORM 1080, VOUCHER FOR TRANSFERS BETWEEN APPROPRIATIONS AND/OR FUNDS, FOR FEES AND MILEAGE PAID BY THE MARSHAL TO WITNESSES SUMMONED AT THE REQUEST OF THE BOARD, WHEN THE COURT INSISTS THAT THE MARSHAL ASSUME THE RESPONSIBILITY FOR SUCH PAYMENT? THIS SITUATION OCCURRED IN THE CASE OF BARKER VS. LOCAL 1796.

IT APPEARS THAT THE PRIMARY QUESTION FOR CONSIDERATION IS WHETHER THE EXPENSES ITEM " FEES OF WITNESSES, DEPARTMENT OF JUSTICE"--- GENERALLY AVAILABLE FOR SUCH EXPENSES--- OR WHETHER THE EXPENSES ARE CHARGEABLE TO AN APPROPRIATION UNDER THE CONTROL OF THE NATIONAL LABOR RELATIONS BOARD. IN SUCH CONNECTION THE VOUCHERS SUBMITTED DO NOT INDICATE THE ADMINISTRATIVE APPROPRIATION OF THE NATIONAL LABOR RELATIONS BOARD PROPOSED TO BE CHARGED WITH THE WITNESS FEES AND MILEAGE.

THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, AUTHORIZED THE BOARD, UNDER SECTION 4 (A), 61 STAT. 139, TO APPOINT SUCH ATTORNEYS AND SUCH OTHER EMPLOYEES AS IT MAY FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS DUTIES, AND PROVIDES ALSO THAT " ATTORNEYS APPOINTED UNDER THIS SECTION MAY, AT THE DIRECTION OF THE BOARD, APPEAR FOR AND REPRESENT THE BOARD IN ANY CASE IN COURT.' THE APPROPRIATION FOR THE BOARD AS CONTAINED IN THE NATIONAL LABOR RELATIONS BOARD APPROPRIATION ACT, 1948, 61 STAT. 276, PROVIDES, UNDER THE ITEM " MISCELLANEOUS EXPENSES," "FOR NECESSARY EXPENSES, OTHER THAN SALARIES, OF THE NATIONAL LABOR RELATIONS BOARD IN PERFORMING DUTIES AUTHORIZED BY LAW.' THE AVAILABILITY OF A SIMILAR APPROPRIATION FOR THE EXPENSES OF A COURT ACTION INITIATED OR DEFENDED BY THE NATIONAL LABOR RELATIONS BOARD--- AS DISTINGUISHED FROM AN ACTION INITIATED OR DEFENDED BY THE DEPARTMENT OF JUSTICE--- WAS CONSIDERED IN OFFICE DECISION DATED DECEMBER 4, 1939, B-7246, 19 COMP. GEN. 551, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHILE THE GENERAL RULE IS THAT EXPENSES OF ALL COURTS ACTIONS UNDER CONTROL OF THE JUSTICE DEPARTMENT ARE CHARGEABLE TO THE APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE INVOLVED, WHERE A CASE IS INITIATED OR DEFENDED BY THE NATIONAL LABOR RELATIONS BOARD, THROUGH ITS ATTORNEYS, UNDER ITS STATUTORY AUTHORITY, THE EXPENSES OF THE PROCEEDINGS, INCLUDING THE FEES OF A SPECIAL MASTER WHEN ORDERED BY THE COURT TO BE PAID, MAY BE PAID FROM THE BOARD'S APPROPRIATION AS REPRESENTING ITS "AUTHORIZED AND NECESSARY EXPENDITURES.' ALSO, SEE 15 COMP. GEN. 81 AND B-34946, JUNE 9, 1943.

HENCE, UNDER THE FOREGOING RULE, WHERE IT IS NECESSARY FOR THE BOARD TO PETITION THE DISTRICT COURT OF THE UNITED STATES FOR INJUNCTIVE RELIEF PURSUANT TO THE REQUIREMENTS OF SECTION 10 (J) OR (L), SUPRA, THE EXPENSES OF THE PROCEEDINGS REPRESENT AUTHORIZED AND NECESSARY EXPENDITURES OF THE BOARD AND ARE CHARGEABLE TO THE BOARD'S APPROPRIATION AVAILABLE " FOR NECESSARY EXPENDITURES.' AND, SINCE THE SAID EXPENSES ARE PAYABLE FROM AN APPROPRIATION OF THE NATIONAL LABOR RELATIONS BOARD, THEY PROPERLY ARE FOR CERTIFICATION BY AN AUTHORIZED CERTIFYING OFFICER OF SAID AGENCY. SEE B- 51125, AUGUST 4, 1945.

ACCORDINGLY, AND SINCE THE ATTACHED VOUCHER STATED IN FAVOR OF DONALD DOW REPRESENTS FEES AND EXPENSES INCURRED BY A WITNESS SUMMONED TO APPEAR BEFORE A DISTRICT COURT OF THE UNITED STATES IN A PROCEEDINGS IN WHICH THE BOARD BECAME INVOLVED PURSUANT TO THE PROVISIONS OF LAW REFERRED TO ABOVE, AND SINCE THE VOUCHER HAS BEEN APPROVED BY THE BOARD'S ATTORNEY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT FROM THE APPROPRIATION OF THE BOARD UNDER THE MISCELLANEOUS EXPENSE ITEM, SUPRA. THERE IS NO REQUIREMENT THAT A COPY OF THE SUBPOENA BE ATTACHED TO THE VOUCHER, AND NO OBJECTION IS PERCEIVED TO THE USE OF VOUCHER FORM 30 FOR THE PAYMENT OF WITNESSES APPEARING IN COURT PROVIDED THAT THE RATES SHOWN THEREON ARE OTHERWISE IN ORDER.

WITH RESPECT TO YOUR CERTIFICATION OF THE VOUCHER, FORM 1080, FORWARDED WITH YOUR LETTER, COVERING REIMBURSEMENT OF THE UNITED STATES MARSHAL, MONTGOMERY, ALABAMA, FOR FEES PAID BY THE MARSHAL TO WITNESSES SUMMONED TO APPEAR IN A CASE BEING HANDLED BY AN ATTORNEY OF THE NATIONAL LABOR RELATIONS BOARD FOR THE DISTRICT COURT OF THE UNITED STATES AT MONTGOMERY, THERE IS ATTACHED TO THE VOUCHER A COPY OF A LETTER DATED FEBRUARY 6, 1948, FROM THE ADMINISTRATIVE ASSISTANT TO THE ATTORNEY GENERAL TO THE UNITED STATES ATTORNEY AT MONTGOMERY, FROM WHICH IT APPEARS THAT THE PRESIDING JUDGE DIRECTED THE PAYMENT OF THE WITNESS FEES TO BE MADE IN ADVANCE AND THAT, AS A MATTER OF CONVENIENCE, THE BOARD REQUESTED THE UNITED STATES MARSHAL TO PAY SUCH FEES ON A REIMBURSABLE BASIS. SINCE THE CASE WAS CONDUCTED ON BEHALF OF THE UNITED STATES BY ATTORNEYS OF THE BOARD UNDER AUTHORITY OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, THE WITNESS FEES ARE CHARGEABLE TO THE APPROPRIATION OF THE BOARD INDICATED ABOVE. ACCORDINGLY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT FROM THE SAID APPROPRIATION.