B-132242, JUL. 26, 1957

B-132242, JUL. 26, 1957

TO THE SECRETARY OF LABOR:

ON MAY 16, 1957, THE ADMINISTRATIVE OFFICER OF THE OFFICE OF THE ADMINISTRATIVE ASSISTANT SECRETARY, TRANSMITTED FOR OUR ADVANCE DECISION A VOUCHER SUBMITTED BY GIOVANNI BERTI FOR $32.32, AS REIMBURSEMENT FOR EXPENDITURES FOR WORK SHIRTS, TROUSERS, WORKING JACKETS, AND SAFETY SHOES, WHILE SERVING AS A TRAINEE.

THE VOUCHER INDICATES THAT THESE ITEMS WERE REQUIRED BY THE TRAINEE FOR USE DURING THE EMPLOYEE-OBSERVER PHASE OF HIS TRAINING PROGRAM. THIS TRAINING PROGRAM IS CONDUCTED PURSUANT TO AN AGREEMENT BETWEEN THE UNITED STATES DEPARTMENT OF LABOR AND THE INTERNATIONAL COOPERATION ADMINISTRATION (FORMERLY THE FOREIGN OPERATIONS ADMINISTRATION), WHICH PROVIDES FOR THE RESPONSIBILITY OF THE DEPARTMENT OF LABOR IN CONNECTION WITH THE TRAINING OF FOREIGN NATIONALS IN THE UNITED STATES. THIS AGREEMENT IS SET FORTH IN DETAIL IN ICA MANUAL ORDER 251.7 OF SEPTEMBER 10, 1954.

THE RECORD REVEALS THAT DURING A PERIOD OF ABOUT FOUR MONTHS, MR. BERTI WAS EMPLOYED AT THE OTIS ELEVATOR COMPANY, YONKERS, NEW YORK, ON FACTORY AND ASSEMBLY WORK. THIS EMPLOYMENT WAS IN ACCORDANCE WITH AN APPROVED PROGRAM ARRANGED UNDER PIO/P NO. 45-41-299-1-50052, A COPY OF WHICH WAS ENCLOSED WITH THE LETTER. PARAGRAPH 17 OF THE PIO/P DESCRIBES THE OBJECTIVES OF THE EMPLOYMENT PHASE OF THE PROGRAM AS FOLLOWS:

"A PERIOD OF EMPLOYMENT IN AN AMERICAN PLANT WHERE THE TRAINEES WILL WORK CLOSELY WITH A SHOP STEWARD AND DURING WHICH PERIOD THEY CAN IMPROVE THEIR KNOWLEDGE OF ENGLISH, WITH STUDY COURSES OUTSIDE OF WORKING HOURS IN ENGLISH LANGUAGE AND TRADE UNION ORGANIZATION AND RELATED SUBJECTS.'

SECTION IV (C) OF ICA MANUAL ORDER 1359.2, DATED FEBRUARY 10, 1956, GOVERNING ALLOWANCES TO ICA-SPONSORED PARTICIPANTS UNDERTAKING TRAINING IN THE UNITED STATES, PROVIDES IN PART THAT EXPENDITURES MAY BE ALLOWED FOR:

"TRAINING EQUIPMENT AND MATERIALS REQUIRED IN CONNECTION WITH THE (ACTUAL) TRAINING PROGRAM BY THE SUPERVISORY TRAINING INSTITUTION BUT NOT INCLUDED IN THE TUITION PAYMENTS SUCH AS THOSE SERVICES, EQUIPMENT NORMALLY REQUIRED AS PART OF THE TRAINING PROGRAM.'

IN CONNECTION WITH THIS PHASE OF THE TRAINING PROGRAM, THE LETTER STATES IT IS APPARENT THAT CLOTHES AND SHOES APPROPRIATE FOR "WHITE COLLAR" OCCUPATIONS WERE NOT SUITABLE TO EMPLOYMENT CONDITIONS IN INDUSTRIAL PLANTS AND THAT PLANT SAFETY REGULATIONS OFTEN REQUIRE THE USE OF SAFETY SHOES BY PLANT EMPLOYEES. THE TRAINEE JUSTIFIES HIS EXPENDITURE FOR WORK APPAREL AND SHOES ON THE GROUND THAT THE SAME WERE OCCASIONED BY THE REQUIREMENTS OF HIS TRAINING PROGRAM. HOWEVER, WE HAVE INFORMALLY ASCERTAINED FROM YOUR DEPARTMENT THAT THE PLANTS IN WHICH MR. BERTI, AND OTHERS SIMILARLY SITUATED, WORKED OR TRAINED DID NOT REQUIRE ANY PARTICULAR KIND OF WORK CLOTHING WITH THE POSSIBLE EXCEPTION OF SAFETY SHOES.

THE RECORD FURTHER SHOWS THAT THE WEEKLY NET EARNINGS OF TRAINEES IN SOME CASES EXCEED, AND IN OTHERS ARE BELOW, THE MAXIMUM SUBSISTENCE ALLOWANCES PERMITTED BY THE APPLICABLE ICA REGULATIONS. IF BELOW, THE DIFFERENCES ARE PAID TO INDIVIDUAL TRAINEES FROM GOVERNMENT FUNDS IN ACCORDANCE WITH THE POLICY FOLLOWED BY THE INTERNATIONAL COOPERATION ADMINISTRATION IN SIMILAR CIRCUMSTANCES. IN THE CASE OF MR. BERTI, HIS WEEKLY NET EARNINGS FOR MOST OF HIS PERIOD OF EMPLOYMENT EXCEEDED THE APPLICABLE MAXIMUM ALLOWANCE ($8 PER DAY) PERMITTED BY SAID ICA REGULATIONS.

IT IS STATED THAT MR. BERTI'S VOUCHER IS REPRESENTATIVE OF A NUMBER OF SIMILAR REIMBURSEMENT CLAIMS PRESENTED FOR PAYMENT COVERING A VARIETY OF ITEMS OF WORK APPAREL AND SHOES PURCHASED BY INDIVIDUAL TRAINEES ACCORDING TO PERSONAL PREFERENCE FOR USE DURING THEIR TRAINING PROGRAM.

WE HAVE BEEN ASKED FOR A DECISION WHETHER REIMBURSEMENT SHOULD BE ALLOWED FOR ALL SUCH ITEMS UNDER THE CIRCUMSTANCES RECITED ABOVE AND WHETHER REIMBURSEMENT OF THESE CLAIMS SHOULD BE CONDITIONED UPON THE RELATIONSHIP OF WEEKLY NET EARNINGS OF THE INDIVIDUAL AND THE ALLOWANCE PAYABLE UNDER ICA REQUIREMENTS.

THE VIEW OF OUR OFFICE CONCERNING GOVERNMENT EMPLOYEES IS CLEARLY SET FORTH IN 32 COMP. GEN. 229 AT PAGE 231 WHERE IT IS STATED:

"THIS OFFICE HAS ESTABLISHED CERTAIN GENERAL POLICY GUIDE LINES OR RULES WITH RESPECT TO FURNISHING SPECIAL CLOTHING AND EQUIPMENT TO GOVERNMENT EMPLOYEES, WHICH ARE SET FORTH IN THE DECISION, 3 COMP. GEN. 433. QUESTIONS CONCERNING THE PROPRIETY OF FURNISHING SPECIAL CLOTHING AND EQUIPMENT TO CIVILIAN EMPLOYEES HAVE BEEN CONSIDERED BY THIS OFFICE A NUMBER OF TIMES AND IT HAS BEEN HELD THAT WHERE SUCH EQUIPMENT IS ESSENTIAL TO THE SAFE AND SUCCESSFUL ACCOMPLISHMENT OF THE WORK INVOLVED AND PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT, PAYMENT MAY BE MADE FROM APPROPRIATIONS OTHERWISE AVAILABLE THEREFOR; BUT THAT ON THE OTHER HAND, IF THE EQUIPMENT BE SOLELY FOR THE PROTECTION OF THE EMPLOYEE WITHOUT RESULTING BENEFITS TO THE GOVERNMENT, AND SUCH AS THE EMPLOYEE REASONABLY MIGHT BE EXPECTED TO FURNISH AS A PART OF THE OFFICIAL EQUIPMENT OF HIS POSITION, APPROPRIATED FUNDS WOULD NOT BE AVAILABLE FOR THE PURCHASE THEREOF. SEE 2 COMP. GEN. 652; 3 ID. 848; 21 ID. 731; 28 ID. 236; B- 48169, MARCH 14, 1945; B-56561, APRIL 1, 1946. CF. 3 COMP. GEN. 433; 4 ID. 123; B 57633, JUNE 11, 1946.'

IT SHOULD BE POINTED OUT THAT THIS CLAIMANT AND OTHERS SIMILARLY SITUATED, WHILE RECEIVING COMPENSATION FROM THE GOVERNMENT DURING THEIR TRAINING PERIOD, WERE NOT GOVERNMENT EMPLOYEES IN THE USUAL SENSE OF THE TERM. WE FIND NO SPECIFIC STATUTORY AUTHORITY OR CONTRACTUAL AGREEMENT FOR FURNISHING WORK SHIRTS, TROUSERS, WORKING JACKETS AND SAFETY SHOES TO THE CLAIMANT BERTI, AND THOSE SIMILARLY SITUATED. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CLOTHING PURCHASED WAS NECESSARILY PURCHASED FOR PROTECTION IN A HAZARDOUS ENTERPRISE. ON THE CONTRARY, THE CLOTHING REQUIRED TO BE WORN FOR THE WORK DONE SEEMS TO HAVE BEEN NO MORE THAN ORDINARY WORKING CLOTHING WORN BY AN INDUSTRIAL FACTORY WORKER OR GOVERNMENT "BLUE COLLAR" WORKER WHICH--- IN THE ABSENCE OF AUTHORITY UNDER TITLE IV, PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954--- NORMALLY WOULD BE FURNISHED BY THE WORKER AND NOT THE GOVERNMENT. NOTHING IN ICA MANUAL ORDER 135.2 DATED FEBRUARY 10, 1956, REFERRED TO ABOVE, INDICATES AN INTENTION TO FURNISH ORDINARY WORKING CLOTHES TO THESE TRAINEES.

ACCORDINGLY, IT IS OUR VIEW THAT NONE OF THESE CLAIMANTS, IRRESPECTIVE OF THEIR EARNINGS IN THE PLANTS TO WHICH THEY WERE ASSIGNED, SHOULD BE COMPENSATED FOR THE CLOTHING EXPENDITURE IN QUESTION AND THEY SHOULD BE ADVISED THAT THEIR RESPECTIVE CLAIMS ARE DISALLOWED.

THE VOUCHER, WITH ATTACHMENTS, IN FAVOR OF MR. BERTI IS BEING RETAINED IN OUR OFFICE.