B-85375, MAY 26, 1949

B-85375, MAY 26, 1949

PRECIS-UNAVAILABLE

THE HONORABLE, THE ACTING SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED APRIL 5, 1949, FROM THE FORMER SECRETARY OF THE ARMY REQUESTING CONSIDERATION OF CERTAIN QUESTIONS SET FORTH IN AN ACCOMPANYING MEMORANDUM FROM THE DIRECTOR OF CIVILIAN PERSONNEL OF YOUR DEPARTMENT RELATIVE TO THE REQUIREMENT OF SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES BE DETERMINED AND CONSIDERED AS PART OF COMPENSATION IN FIXING SALARY RATES.

THE PROBLEMS AND RELATED QUESTIONS FIRST PRESENTED IN THE MEMORANDUM, INVOLVE THE MATTER OF ALLOWING CREDIT TO EMPLOYEES FOR MEALS NOT TAKEN. IT IS STATED THAT TO AVOID COMPLICATIONS AND BURDENSOME PAYROLL REPORTING PROCEDURES IT HAS BEEN FOUND NECESSARY HERETOFORE TO FURNISH SUBSISTENCE ONLY ON THE BASIS OF A REGULAR SCHEDULE OF SO MANY MEALS PER DAY OR WEEK AND TO FORBID REDUCTION OF SCHEDULE CHARGES WHEN AN EMPLOYEE DOES NOT TAKE SCHEDULE MEALS; BUT THAT THIS PRACTICE HAS RESULTED IN NUMEROUS COMPLAINTS AND DISRUPTION OF MORALE AMONG EMPLOYEES WHO DO NOT OR CANNOT TAKE ADVANTAGE OF ALL THE MEALS FOR WHICH DEDUCTION IS MADE FROM THEIR COMPENSATION.

IT NOW IS PROPOSED TO ADOPT A SYSTEM OF CASH PAYMENTS FOR MEALS ACTUALLY CONSUMED, WHEN SUCH ACTION IS CONSIDERED PROPER IN THE LIGHT OF LOCAL CONDITIONS. IN THAT CONNECTION THE FOLLOWING QUESTION IS POSED:

WOULD THERE BE A SUBSTANTIAL COMPLIANCE WITH THE TERMS OF SECTION 3 OF THE ACT OF 5 MARCH 1928, IF THE DEPARTMENT WERE TO FIX THE REASONABLE VALUE OF SUBSISTENCE ON A PER-MEAL BASIS AND COLLECT THAT VALUE IN CASH FOR EACH MEAL TAKEN?"

THE MEMORANDUM CONTINUES, HOWEVER, WITH A STATEMENT TO THE EFFECT THAT AN AFFIRMATIVE ANSWER TO THE FOREGOING QUESTION WOULD NOT IN ITSELF PERMIT IMMEDIATE CHANGE OF REGULATIONS SINCE INCREASES IN APPROPRIATIONS FOR PERSONAL SERVICE WOULD BE NECESSARY TO CARRY OUT THE CASH PAYMENT PLAN. AS AN INTERIM PROCEDURE, IT IS PROPOSED TO ISSUE MEAL TICKETS OR SCRIP CERTIFICATES REPRESENTING THE VALUE OF THE DEDUCTIONS FOR SUBSISTENCE AND TO REDEEM SUCH TICKETS OR CERTIFICATES AS REMAINED UNUSED AT THE END OF SPECIFIED PAY PERIODS. THE SPECIFIC QUESTION PRESENTED IN THIS CONNECTION IS STATED AS FOLLOWS:

"WOULD THERE BE SUFFICIENT COMPLIANCE WITH THE GOVERNING STATUTE IF, AT THE BEGINNING OF EACH PAY PERIOD, EMPLOYEES WERE FURNISHED WITH MEAL TICKETS OR OTHER SCRIPT EVIDENCE IN THE AMOUNT OF THE SUBSISTENCE DEDUCTIONS, THE UNUSED BALANCE OF SUCH TICKETS TO BE REDEEMED THROUGH INCLUSION OF THE AMOUNT IN A SUBSEQUENT SALARY CHECK?"

WITH RESPECT TO THE FIRST OF THE FOREGOING QUESTIONS, IT IS CLEAR THAT THE 1928 ACT DOES NOT CONTEMPLATE THAT APPROPRIATIONS SHALL BE AVAILABLE FOR THE COST OF SUBSISTENCE TO BE FURNISHED UPON A CASH BASIS TO EMPLOYEES WITHOUT THE TRANSACTION BEING REFLECTED IN THE EMPLOYEES' PAY ACCOUNTS; AND THE ACT HAS CONSISTENTLY BEEN SO CONSTRUED AND APPLIED. 8 COMP.GEN. 628, AND DECISIONS THEREIN CITED. ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

IT IS UNDERSTOOD THAT THE PROCEDURE CONTEMPLATED IN CONNECTION WITH THE SECOND QUESTION UNDER THIS HEADING IS PROPOSED ONLY AS A TEMPORARY MEASURE IN THE EVENT OF AN AFFIRMATIVE ANSWER TO THE FIRST QUESTION, AND, THEREFORE, SINCE THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE, NO ANSWER TO THE LATTER QUESTION APPEARS REQUIRED AT THE PRESENT TIME.

THE OTHER PROBLEMS MENTIONED RELATE TO WAGE-BOARD EMPLOYEES ENGAGED UPON MARINE CONSTRUCTION WORK CARRIED ON BY THE CORPS OF ENGINEERS OF YOUR DEPARTMENT. IT IS STATED THAT THE WAGE RATES OF SUCH EMPLOYEES ARE SET BY A WAGE-BOARD PROCEDURE ACCORDING TO THOSE PREVAILING FOR COMPARABLE OCCUPATIONS IN THE SAME GEOGRAPHICAL AREA, AND THAT THE PREVAILING PRACTICE IN THE MARINE CONSTRUCTION INDUSTRY IS TO FIX THE WAGES OF EMPLOYEES ON FLOATING PLANT AT A CASH RATE AND TO FURNISH, IN ADDITION, ANY SUBSISTENCE AND QUARTERS WHICH CONDITIONS MAY MAKE IT NECESSARY TO FURNISH. AS AN EXAMPLE IT IS STATED THAT THE PREVAILING RATE FOR DREDGE HANDS IN A GIVEN LOCALITY MAY BE DETERMINED TO BE $1 PER HOUR, PLUS FREE BOARD AND LODGING, WHEREAS, TO CONFORM TO THE 1928 STATUTE, THE RATE FOR CORPS OF ENGINEERS EMPLOYEES MUST BE FIXED AT $1.18 PER HOUR ($1 PREVAILING CASH RATE PLUS 18 CENTS AS THE HOURLY VALUE OF SUBSISTENCE AND QUARTERS). THE MEMORANDUM RECITES THAT, WHILE THE PAY IS EQUAL, GOVERNMENT EMPLOYEES ARE DISSATISFIED BECAUSE OF RECEIVING LESS CASH THAN THEIR STATED RATE ON ACCOUNT OF THE COMPENSATION DEDUCTIONS FOR SUBSISTENCE AND QUARTERS. IN THAT CONNECTION, THE FOLLOWING QUESTIONS ARE PRESENTED:

"IN VIEW OF THE INDUSTRIAL PRACTICE OUTLINED ABOVE AND OF THE PRACTICAL IMPOSSIBILITY OF FIXING WAGES IN ACCORDANCE WITH THE RATES PREVAILING IN THAT INDUSTRY IF A CASH VALUE MUST BE PLACED UPON IRREGULAR SUBSISTENCE GIVEN TO FLOATING PLANT PERSONNEL, DOES THE 1928 STATUTE PERMIT A CONSTRUCTION UNDER WHICH RATES MAY BE FIXED IN TERMS OF AN HOURLY RATE IN CASH PLUS SUBSISTENCE WHEN CONDITIONS PREVAIL UNDER WHICH PRIVATE EMPLOYERS WOULD FURNISH SUCH SUBSISTENCE WITHOUT CHARGE?

"IF REPLY TO THE ABOVE MUST BE IN THE NEGATIVE, MAY THE DECISION IN 11 COMP.GEN. 25 BE CONSIDERED AS LIMITED TO PERSONS WHOSE SALARIES ARE FIXED BY LAW SO THAT TWO WAGE RATES MAY BE FIXED, ONE TO INCLUDE THE CASH HOURLY RATE AND THE OTHER THE CASH RATE PLUS THE VALUE OF SUBSISTENCE WHICH RATE WOULD BE PAID ONLY WHEN SUBSISTENCE IS FURNISHED AND DEDUCTIONS TAKEN?" TATUTORY PROVISIONS HERE INVOLVED ARE APPLICABLE TO EMPLOYEES WHOSE RATES OF PAY ARE ADMINISTRATIVELY FIXED AND ADJUSTED FROM TIME TO TIME. 6 COMP.GEN. 332, 484, AND 588; AND DECISIONS OF JULY 18, 1947, AND APRIL 21, 1948, B-65913, TO THE SECRETARY OF THE NAVY. ALSO, IT UNIFORMLY HAS BEEN HELD THAT, IN THE CASE OF SUCH EMPLOYEES, THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND MUST BE SHOWN ON THE PAYROLLS OR OTHERWISE IN THE ACCOUNTS OF THE DISBURSING OFFICER. SEE, FOR EXAMPLE, 6 COMP.GEN. 484, SUPRA. IN VIEW THEREOF, THE FIRST QUESTION NEXT ABOVE QUOTED IS ANSWERED IN THE NEGATIVE.

THE PROCEDURE CONTEMPLATED BY THE LAST QUESTION INVOLVES THE AUTHORITY OF A WAGE BOARD TO PRESCRIBE DIFFERENT WAGE RATES WHERE THE ONLY VARIABLE IS THE ELEMENT OF QUARTERS AND SUBSISTENCE IN KIND; THE AMOUNT OF THE CHANGE, PLUS OR MINUS (DEPENDING UPON WHETHER QUARTERS AND SUBSISTENCE ARE OR ARE NOT FURNISHED), BEING THE DETERMINED VALUE OF SUCH ALLOWANCES IN KIND. A-34816, FEBRUARY 14, 1931, INVOLVING EMPLOYEES OF THE ALASKA RAILROAD WHO MOVE FROM CAMP TO CAMP AND WHOSE WAGES ARE AUTHORIZED TO BE ADMINISTRATIVELY FIXED AND ADJUSTED, IT WAS HELD THAT THE EMPLOYEES' RATE OF COMPENSATION COULD BE ADJUSTED IN ORDER TO PAY THE RATE PREVAILING IN THE LOCALITY WHERE THE EMPLOYEES ARE STATIONED. ACCORDINGLY, THE LAST QUESTION IS ANSWERED IN THE AFFIRMATIVE.