B-47275, APRIL 20, 1945, 24 COMP. GEN. 766

B-47275: Apr 20, 1945

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WHO ARE EMPLOYED TO PERFORM THE DUTIES IMPOSED BY LAW UPON THE NATIONAL WAR LABOR BOARD RATHER THAN IN AN ADVISORY CAPACITY. 1945: THERE WAS RECEIVED APRIL 2 YOUR LETTER OF MARCH 28. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION B-47275 OF FEBRUARY 22. IN WHICH YOU RULED THAT AN INDUSTRY MEMBER OF A REGIONAL WAR LABOR BOARD WHO IS PAID SALARY ON A PER DIEM "WHEN ACTUALLY EMPLOYED BASIS" IS NOT A "CONSULTANT" AS THAT TERM IS USED IN SECTION 201 OF THE NATIONAL WAR AGENCY APPROPRIATION ACT. IS. YOUR REVIEW OF THIS DECISION IS REQUESTED IN THE LIGHT OF THE FOLLOWING CONSIDERATIONS: THIS DECISION CASTS DOUBT ON THE RIGHT TO REIMBURSEMENT FOR TRAVEL EXPENSE OF ALL THE PERSONS EMPLOYED BY THE BOARD ON A WHEN ACTUALLY EMPLOYED BASIS.

B-47275, APRIL 20, 1945, 24 COMP. GEN. 766

TRAVELING EXPENSES - REGIONAL WAR LABOR BOARD MEMBERS - TRAVEL BETWEEN HOME AND OFFICIAL STATION MEMBERS OF REGIONAL WAR LABOR BOARDS COMPENSATED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, WHO ARE EMPLOYED TO PERFORM THE DUTIES IMPOSED BY LAW UPON THE NATIONAL WAR LABOR BOARD RATHER THAN IN AN ADVISORY CAPACITY, MAY NOT BE REGARDED AS "CONSULTANTS" WITHIN THE PURVIEW OF THE CURRENT NATIONAL WAR AGENCY APPROPRIATION ACT SO AS TO BE ENTITLED THEREUNDER TO TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE FOR TRAVEL BETWEEN THEIR HOMES AND OFFICIAL STATIONS. 24 COMP. GEN. 631, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, NATIONAL WAR LABOR BOARD, APRIL 20, 1945:

THERE WAS RECEIVED APRIL 2 YOUR LETTER OF MARCH 28, 1945, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION B-47275 OF FEBRUARY 22, 1945, IN WHICH YOU RULED THAT AN INDUSTRY MEMBER OF A REGIONAL WAR LABOR BOARD WHO IS PAID SALARY ON A PER DIEM "WHEN ACTUALLY EMPLOYED BASIS" IS NOT A "CONSULTANT" AS THAT TERM IS USED IN SECTION 201 OF THE NATIONAL WAR AGENCY APPROPRIATION ACT, 1945, AND IS, THEREFORE, NOT ENTITLED TO REIMBURSEMENT OF TRAVEL EXPENSE AND PER DIEM IN LIEU OF SUBSISTENCE FOR TRAVEL BETWEEN HIS HOME AND OFFICIAL STATION.

YOUR REVIEW OF THIS DECISION IS REQUESTED IN THE LIGHT OF THE FOLLOWING CONSIDERATIONS:

THIS DECISION CASTS DOUBT ON THE RIGHT TO REIMBURSEMENT FOR TRAVEL EXPENSE OF ALL THE PERSONS EMPLOYED BY THE BOARD ON A WHEN ACTUALLY EMPLOYED BASIS, ABOUT 5,000 IN NUMBER. IF THIS DECISION IS EXTENDED TO ALL, OR EVEN PART, OF THESE EMPLOYEES, IT WOULD SERIOUSLY IMPAIR THE OPERATIONS OF THE BOARD SINCE IT WILL MATERIALLY INCREASE THE FINANCIAL BURDEN ALREADY INCURRED BY INDIVIDUALS WHO ARE SERVING THE BOARD AT CONSIDERABLE PERSONAL SACRIFICE. THEY WILL CONSEQUENTLY BE DETERRED FROM MAKING AVAILABLE TO THE BOARD SERVICES WHICH ARE ESSENTIAL TO ITS FUNCTIONING AS AN ARBITER OF WARTIME LABOR DISPUTES.

YOUR CONCLUSION THAT THE INDUSTRY MEMBER INVOLVED IN YOUR DECISION OF FEBRUARY 22, WAS NOT A ,CONSULTANT" APPEARS TO BE SUPPORTED BY REFERENCE TO THE PROVISIONS OF SECTION 7 (B) OF THE WAR LABOR DISPUTES ACT AUTHORIZING THE CHAIRMAN OF THE NATIONAL WAR LABOR BOARD TO ISSUE SUBPOENAS, WHICH AUTHORITY IS ASSUMED BY YOU TO HAVE BEEN DELEGATED TO THE REGIONAL BOARDS. THUS, YOU STATE:

"THAT INDUSTRY MEMBERS OF THE REGIONAL BOARDS ARE NOT SERVING IN AN ADVISORY CAPACITY IS SUBSTANTIATED BY REFERENCE TO SECTION 7 (B) OF THE ACT OF JUNE 25, 1943, 57 STAT. 166, WHICH SETS FORTH SOME OF THE POWERS OF THE NATIONAL WAR LABOR BOARD IN THE FOLLOWING TERMS, ASSUMING THAT THE AUTHORITY DELEGATED TO THE REGIONAL BOARDS CARRIED WITH IT THE SAME POWERS:

"THE BOARD, BY ITS CHAIRMAN, SHALL HAVE POWER TO ISSUE SUBPOENAS REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES, AND THE PRODUCTION OF ANY BOOKS, PAPERS RECORDS, OR OTHER DOCUMENTS, MATERIAL TO ANY INQUIRY OR HEARING BEFORE THE BOARD OR ANY DESIGNATED MEMBER OR AGENT THEREOF. * * *" (ITALICS OURS.)

CONTRARY TO THE ASSUMPTION STATED ABOVE, THE RULES OF ORGANIZATION AND PROCEDURE OF THE NATIONAL WAR LABOR BOARD EXPRESSLY PROVIDE FOR THE ISSUANCE OF SUBPOENAS ONLY BY THE CHAIRMAN OF THE NATIONAL WAR LABOR BOARD ( SECTION 802.27 OF THE RULES; 8 F.R. 16711). IN NO CASE HAVE SUBPOENAS BEEN ISSUED BY ANYONE OTHER THAN THE CHAIRMAN. MOREOVER, UNDER THE DECISION OF THE SUPREME COURT OF THE UNITED STATES, IN THE CASE OF CUDAHY PACKING COMPANY V. FLEMING, 315 U.S. 785, CONTAINING STATUTORY LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 7 (B), IT IS CLEAR THAT THE POWER TO ISSUE SUBPOENAS MAY NOT EFFECTIVELY BE DELEGATED.

IN YOUR DECISION OF JANUARY 7, 1944, 23 COMPTROLLER GENERAL 497, THE TERM "CONSULTANT" IS DEFINED AS FOLLOWS:

"THE TERM "CONSULTANT," APPEARING IN STATUTES AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS OF PERSONS EMPLOYED INTERMITTENTLY AWAY THEREFROM AS CONSULTANTS AND PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, DENOTED ONE WHO SERVES IN AN ADVISORY CAPACITY TO AN ADMINISTRATIVE OFFICER OF THE GOVERNMENT, AS DISTINGUISHED FROM ONE WHO SERVES AS AN ADMINISTRATIVE OFFICER OR EMPLOYEE IN THE PERFORMANCE OF DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE AGENCY IN WHICH EMPLOYED--- THAT IS, ONE WHO GIVES HIS OPINION REGARDING A PROBLEM OR QUESTION PRESENTED TO HIM BY THE ADMINISTRATIVE OFFICERS, BUT DOES NOT PERFORM OR SUPERVISE PERFORMANCE OF SUCH DUTIES AND RESPONSIBILITIES.

"THE QUESTION WHETHER AN OFFICER OR EMPLOYEE IS A "CONSULTANT," WITHIN THE MEANING OF STATUTES AUTHORIZING PAYMENT OF TRAVEL EXPENSES TO AND FROM THEIR HOMES, ETC., WHILE EMPLOYED INTERMITTENTLY AWAY THEREFROM ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, IS, GENERALLY, ONE OF FACT, RATHER THAN ONE OF LAW, AND AS SUCH, IS FOR DETERMINATION PRIMARILY BY THE ADMINISTRATIVE AUTHORITY ON THE BASIS OF THE FUNCTIONS ASSIGNED AND THE DUTIES PERFORMED, AND, THEREFORE, THE TITLE "CONSULTANT" ADMINISTRATIVELY ASCRIBED TO ONE HOLDING AN OFFICE OR POSITION MAY BE REGARDED, GENERALLY, AS PRIMA FACIE EVIDENCE THAT THE INCUMBENT IS A CONSULTANT AND, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THIS OFFICE IS NOT DISPOSED TO QUESTION SUCH ADMINISTRATIVE CERTIFICATION.'

APPLYING THE FOREGOING DEFINITION OF A "CONSULTANT" IT HAS BEEN ADMINISTRATIVELY DETERMINED BY THE NATIONAL WAR LABOR BOARD THAT ALL PERSONS EMPLOYED INTERMITTENTLY BY IT OR ITS AGENCIES AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS, WHO SERVE AS MEMBERS OF REGIONAL WAR LABOR BOARDS, INDUSTRY COMMISSIONS, STANDING INDUSTRY PANELS OR OF ANY COMMITTEES OF SUCH BOARDS, COMMISSIONS OR PANELS, OR OF THE NATIONAL WAR LABOR BOARD, OR WHO SERVE AS HEARING OFFICERS OR MEMBERS OF AD HOC PANELS IN DISPUTE CASES, ARE "CONSULTANTS" IN THE SENSE THAT THEIR FUNCTION IS TO EXPRESS VIEWS OR GIVE OPINIONS REGARDING QUESTIONS OR PROBLEMS PRESENTED TO THEM BY AN ADMINISTRATIVE OFFICER.

MEMBERS OF THE NATIONAL BOARD ITSELF ARE NOT THE SUBJECT OF THIS SUBMISSION AND THEIR FUNCTIONS ARE, THEREFORE, NOT DISCUSSED THEREIN.

PURSUANT TO THE SUGGESTION IN YOUR DECISION OF JANUARY 5, 1945, B 46471, THAT THE MATTER BE PRESENTED TO CONGRESS, WE ARE REQUESTING WITH THE CONSENT OF THE BUREAU OF THE BUDGET THE INCLUSION OF THE FOLLOWING LANGUAGE IN OUR APPROPRIATION ACT FOR THE FISCAL YEAR 1946:

"PROVIDED, THAT THOSE PROVISIONS OF SECTION 201 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, MAKING APPROPRIATIONS AVAILABLE FOR TRAVEL AND SUBSISTENCE OF PERSONS EMPLOYED OR SERVING INTERMITTENTLY OR WITHOUT OTHER COMPENSATION WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS SHALL APPLY TO PUBLIC, LABOR, OR INDUSTRY MEMBERS OF THE REGIONAL BOARDS, COMMITTEES, COMMISSIONS, OR PANELS, OR PUBLIC HEARINGS OFFICERS OF THE NATIONAL WAR LABOR BOARD, AND THE TERM "CONSULTANTS" AS USED IN SECTION 201, NATIONAL WAR AGENCIES APPROPRIATIONS ACT, 1945, AND PARAGRAPH (A), GENERAL PROVISIONS, NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, SHALL BE CONSTRUED TO INCLUDE SUCH PERSONS.'

IT IS HOPED, HOWEVER, THAT PENDING THE ADOPTION OF SUCH PROVISION YOU WILL RECONSIDER THE DECISION REFERRED TO ABOVE.

WE WOULD BE GLAD TO SUPPLY ANY FURTHER INFORMATION THAT YOU MAY REQUIRE.

THIS OFFICE CANNOT AGREE THAT:

* * * ALL PERSONS EMPLOYED INTERMITTENTLY BY IT ( NATIONAL WAR LABOR BOARD) OR ITS AGENCIES AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS, WHO SERVE AS MEMBERS OF REGIONAL WAR LABOR BOARDS, INDUSTRY COMMISSIONS, STANDING INDUSTRY PANELS OR OF ANY COMMITTEES OF SUCH BOARDS, COMMISSIONS OR PANELS, OR OF THE NATIONAL WAR LABOR BOARD, OR WHO SERVE AS HEARING OFFICERS OR MEMBERS OF AD HOC PANELS IN DISPUTE CASES, ARE "CONSULTANTS" IN THE SENSE THAT THEIR FUNCTION IS TO EXPRESS VIEWS OR GIVE OPINIONS REGARDING QUESTIONS OR PROBLEMS PRESENTED TO THEM BY AN ADMINISTRATIVE OFFICER. (QUOTING FROM THE SEVENTH PARAGRAPH OF YOUR LETTER.)

ON THE CONTRARY, SUCH OFFICERS OR EMPLOYEES CLEARLY ARE EMPLOYED TO PERFORM THE DUTIES IMPOSED BY LAW UPON THE BOARD. NOTHING HAS BEEN PRESENTED IN YOUR LETTER TO JUSTIFY ANY MODIFICATION IN THE DECISION OF FEBRUARY 22, 1945, B-47275, 24 COMP. GEN. 631, WHICH DECISION MUST BE, AND IS, SUSTAINED.

WHILE IT IS TRUE, AS STATED IN THE DECISION OF JANUARY 7, 1944, 23 COMP. GEN. 497, QUOTED IN YOUR LETTER, THAT THIS OFFICE IS NOT DISPOSED TO QUESTION AN ADMINISTRATIVE CERTIFICATION THAT A PERSON IS A "CONSULTANT" FOR THE PURPOSE OF PAYING HIM TRAVELING EXPENSES FOR TRAVEL BETWEEN HIS HOME AND HIS OFFICIAL STATION WHEN NO FACTS ARE KNOWN TENDING TO CONTROVERT SUCH CERTIFICATION, NEVERTHELESS, IN THIS INSTANCE, THIS OFFICE IS UNABLE TO ACCEPT AN ADMINISTRATIVE CERTIFICATION THAT THE NATIONAL WAR LABOR BOARD EMPLOYS 5,000 CONSULTANTS OF THE CLASSES OF OFFICERS AND EMPLOYEES MENTIONED IN YOUR LETTER. THE AUTHORITY CONTAINED IN THE NATIONAL WAR AGENCY APPROPRIATION ACT FOR PAYMENT OF TRAVELING EXPENSES OF CONSULTANTS FOR TRAVEL BETWEEN THEIR HOMES AND THEIR OFFICIAL STATIONS IS INTENDED TO APPLY TO PERSONS WHO OCCASIONALLY ARE REQUESTED BY THE HEAD OF AN AGENCY OR OTHER RESPONSIBLE ADMINISTRATIVE OFFICIAL TO GIVE COUNSEL OR ADVICE REGARDING SOME ADMINISTRATIVE PROBLEM ARISING IN THE AGENCY AND DOES NOT APPLY BROADLY--- AS YOU SUGGEST--- TO INCLUDE ALL CLASSES OF PERSONNEL EMPLOYED INTERMITTENTLY AND PAID ON A PER-DIEM-WHEN-ACTUALLY EMPLOYED BASIS.

THIS OFFICE HAS NO AUTHORITY TO CHANGE OR EXTEND THE TERMS OF THE APPROPRIATION ACT HERE INVOLVED BY CONSTRUCTION, NOR TO AFFORD ANY RELIEF IN THE MATTER PENDING ENACTMENT OF THE PROPOSED LEGISLATION MENTIONED IN YOUR LETTER BROADENING THE AUTHORITY TO PAY TRAVELING EXPENSES OF INTERMITTENT OFFICERS AND EMPLOYEES OF THE NATIONAL WAR LABOR BOARD GENERALLY. IT IS SUGGESTED THAT IN SUBMITTING YOUR REQUEST FOR PROPOSED LEGISLATION, THE ATTENTION OF THE (CONGRESS BE CALLED TO THE PRESENT SITUATION TO THE END THAT THE CONGRESS MAY VALIDATE PAST PAYMENTS MADE CONTRARY TO LAW IF IT SO DESIRES.