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B-153384, MAY 19, 1964

B-153384 May 19, 1964
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THAT HE WAS NOT AUTHORIZED TO PAY PER DIEM IN LIEU OF SUBSISTENCE TO MR. - TO BOARD THE DREDGE ON WHICH THEY WERE ASSIGNED TO DUTY. YOU SAY THAT SINCE THE NATIONAL MARITIME UNION OF AMERICA REPRESENTS ALL UNLICENSED PERSONNEL WORKING ON THE "ESSAYONS" INCLUDING SOME OF THE CLAIMANTS IN THIS CASE YOU HAVE BEEN ASKED TO SEEK RECONSIDERATION OF OUR DECISION. COMEFORD WAS WHETHER HE WAS AUTHORIZED TO PAY MR. FOR THE REASON STATED IN OUR DECISION OF FEBRUARY 25 WE DETERMINED THAT SUCH PAYMENT OF TRAVEL PER DIEM UNDER THE CITED LAW WOULD NOT BE AUTHORIZED PAYMENTS WERE NOT AUTHORIZED BY LAW. IT APPEARS THAT YOU AGREE THAT PAYMENT OF TRAVEL PER DIEM UNDER THE CITED LAW WOULD NOT BE APPROPRIATE IN THE CIRCUMSTANCES BUT YOU SAY THAT THE EMPLOYEES ARE ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF THE SUBSISTENCE WHICH WOULD HAVE BEEN FURNISHED BY THE CORPS OF ENGINEERS HAD THE CLAIMANTS BEEN TRANSPORTED TO THE "ESSAYONS" AS SCHEDULED.

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B-153384, MAY 19, 1964

TO MR. LEWIS LEONARD:

WE REFER TO YOUR LETTER OF MARCH 26, 1964, CONCERNING OUR DECISION OF FEBRUARY 25, 1964, B-153384, BY WHICH WE INFORMED MR. M. E. COMEFORD, DISBURSING OFFICER, U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, THAT HE WAS NOT AUTHORIZED TO PAY PER DIEM IN LIEU OF SUBSISTENCE TO MR. THOMAS J. COOK AND 32 OTHER MEMBERS OF THE CREW OF THE DREDGE "ESSAYONS" FOR SEPTEMBER 23 AND 24, 1963, REPRESENTING THE TIME THEY HAD TO WAIT--- BECAUSE OF BAD WEATHER--- TO BOARD THE DREDGE ON WHICH THEY WERE ASSIGNED TO DUTY.

YOU SAY THAT SINCE THE NATIONAL MARITIME UNION OF AMERICA REPRESENTS ALL UNLICENSED PERSONNEL WORKING ON THE "ESSAYONS" INCLUDING SOME OF THE CLAIMANTS IN THIS CASE YOU HAVE BEEN ASKED TO SEEK RECONSIDERATION OF OUR DECISION.

THE QUESTION PRESENTED TO US BY MR. COMEFORD WAS WHETHER HE WAS AUTHORIZED TO PAY MR. COOK AND THE OTHER EMPLOYEES INVOLVED THE SUM OF $16 EACH AS PER DIEM IN LIEU OF SUBSISTENCE FOR ONE DAY, THE MAXIMUM RATE AUTHORIZED BY SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, APPROVED JUNE 9, 1949, CH. 185, 63 STAT. 166, AS AMENDED, 5 U.S.C. 836. FOR THE REASON STATED IN OUR DECISION OF FEBRUARY 25 WE DETERMINED THAT SUCH PAYMENT OF TRAVEL PER DIEM UNDER THE CITED LAW WOULD NOT BE AUTHORIZED PAYMENTS WERE NOT AUTHORIZED BY LAW. IT APPEARS THAT YOU AGREE THAT PAYMENT OF TRAVEL PER DIEM UNDER THE CITED LAW WOULD NOT BE APPROPRIATE IN THE CIRCUMSTANCES BUT YOU SAY THAT THE EMPLOYEES ARE ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF THE SUBSISTENCE WHICH WOULD HAVE BEEN FURNISHED BY THE CORPS OF ENGINEERS HAD THE CLAIMANTS BEEN TRANSPORTED TO THE "ESSAYONS" AS SCHEDULED.

VESSEL EMPLOYEES OF THE CORPS OF ENGINEERS ARE AUTHORIZED TO RECEIVE SUBSISTENCE AND/OR QUARTERS IN KIND BY VIRTUE OF THE PROVISIONS OF THE ACT OF MAY 13, 1955, CH. 38, 69 STAT. 48, WHICH PROVIDES IN PERTINENT PART:

"* * * EMPLOYEES OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ENGAGED ON FLOATING PLANT OPERATIONS MAY BE FURNISHED SUBSISTENCE AND/OR QUARTERS ON VESSELS WITHOUT CHARGE WHENEVER MESSING AND/OR QUARTERING ARE DETERMINED TO BE EQUITABLE TO THE EMPLOYEES AND TO BE NECESSARY IN THE PUBLIC INTEREST IN CONNECTION WITH SUCH OPERATIONS * * *"

ALTHOUGH DREDGE EMPLOYEES MAY BE FURNISHED SUBSISTENCE AND QUARTERS WITHOUT CHARGE ON VESSELS THERE IS NO PROVISION MADE IN SUCH ACT TO AUTHORIZE THE PAYMENT OF A SPECIAL ALLOWANCE IN LIEU THEREOF WHEN SUCH EMPLOYEES ARE NOT ABLE TO OBTAIN SUBSISTENCE AND QUARTERS ABOARD THE VESSEL ON WHICH THEY ARE EMPLOYED.

SECTION 202 (8) OF THE CLASSIFICATION ACT OF 1949, APPROVED OCTOBER 28, 1949, CH. 782, 63 STAT. 954, AS AMENDED, 5 U.S.C. 1082 (8) PROVIDES THAT THE COMPENSATION OF OFFICERS AND MEMBERS OF CREWS OF VESSELS SHALL BE "FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY.' UNDER THAT PROVISION THE HOURLY RATE OF PAY, THE OVERTIME COMPENSATION RULES AND OTHER RULES PERTAINING TO THE PAYMENT OF ADDITIONAL COMPENSATION MUST BE SET BY THE APPROPRIATE GOVERNMENT OFFICIAL IN ACCORDANCE WITH THE PRACTICES OF INDUSTRY PROVIDED SUCH RATES AND ALLOWANCES ARE CONSISTENT WITH THE PUBLIC INTEREST. WE HAVE FOUND NO REGULATION BASED ON THE PRACTICE IN PRIVATE INDUSTRY, PURPORTING TO AUTHORIZE AN ALLOWANCE IN LIEU OF QUARTERS AND SUBSISTENCE TO DREDGE EMPLOYEES TO COVER THE PERIOD THEY ARE PREVENTED FROM BOARDING THEIR VESSEL, SUCH AS THE "ESSAYONS," BECAUSE OF ADVERSE WEATHER CONDITIONS. INDICATED IN OUR DECISION OF FEBRUARY 25, 1964, WE MAY NOT RECOGNIZE THE VALIDITY OF A REGULATION WHICH ATTEMPTS TO AUTHORIZE SUCH AN ALLOWANCE UNDER THE TRAVEL RULES APPLICABLE IN GENERAL TO GOVERNMENT EMPLOYEES UPON THE BASIS THAT SUCH EMPLOYEES ARE IN A TRAVEL STATUS (TEMPORARY DUTY) AT THE POINT THEY ARE NORMALLY PICKED UP FOR TRANSPORTATION TO THE DREDGE OR OTHER VESSEL.

THEREFORE, UPON THE PRESENT RECORD OUR DECISION OF FEBRUARY 25, 1964, DENYING PAYMENT OF THE CLAIMS OF MR. COOK AND THE OTHER EMPLOYEES MUST BE SUSTAINED.

A COPY OF THIS LETTER IS BEING FORWARDED TO THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY.

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