[Protests of UNICOR Purchase Orders for Fabric and Draperies]

B-31220, DECEMBER 22, 1942, 22 COMP. GEN. 570

COMPENSATION - 10 PERCENT ADDITIONAL IN LIEU OF OVERTIME - LEGISLATIVE, ETC., EMPLOYEES THE WORDS "SHALL BE PAID ADDITIONAL COMPENSATION" APPEARING IN THAT PORTION OF THE ACT OF DECEMBER 22, 1942, PROVIDING FOR PAYMENT OF 10 PERCENT ADDITIONAL COMPENSATION, IN LIEU OF OVERTIME COMPENSATION, TO CERTAIN CLASSES OF EMPLOYEES--- INCLUDING EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCH--- WITHIN THE LIMITATIONS SPECIFIED THEREIN, ARE WORDS OF MANDATE OR COMMAND AND VEST NO DISCRETION WHATEVER IN ANY ONE TO DENY THE ADDITIONAL COMPENSATION TO EMPLOYEES OTHERWISE COMING WITHIN THE TERMS AND LIMITATIONS OF THE ACT, AND, THEREFORE, ANY EXISTING APPROPRIATION FOR THE PRESENT FISCAL YEAR AVAILABLE FOR THE PAYMENT OF SALARIES OF EMPLOYEES OF THE HOUSE OF REPRESENTATIVES IS AVAILABLE FOR PAYMENT OF THE ADDITIONAL COMPENSATION TO SUCH EMPLOYEES, IRRESPECTIVE OF ANY DEFICIENCY THAT MAY BE INCURRED AS A RESULT OF PAYING SUCH INCREASE OF COMPENSATION. A PERSON WHO IS HIRED UNDER THE APPROPRIATION FOR CLERK HIRE OF MEMBERS OF CONGRESS MAY BE PAID THE 10 PERCENT ADDITIONAL COMPENSATION, AUTHORIZED BY THE ACT OF DECEMBER 22, 1942, ON SO MUCH OF HIS "EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM," NOTWITHSTANDING THE FACT THAT THE PAYMENT OF SUCH ADDITIONAL COMPENSATION WILL CAUSE TO BE EXCEEDED THE $3,900 PER ANNUM SALARY RATE LIMITATION IMPOSED BY SECTION 2 OF THE LEGISLATIVE PAY ACT OF 1929, AS AMENDED, ON PERSONS HIRED UNDER SUCH AN APPROPRIATION.

COMPTROLLER GENERAL WARREN TO HON. SOUTH TRIMBLE, CLERK OF THE HOUSE OF REPRESENTATIVES, DECEMBER 22, 1942:

I HAVE YOUR LETTER OF DECEMBER 18, 1942, AS FOLLOWS:

REFERENCE IS MADE TO SENATE JOINT RESOLUTION NO. 170, ENTITLED " JOINT RESOLUTION, EXTENDING UNTIL APRIL 30, 1943, THE PERIOD FOR WHICH OVERTIME RATES OF COMPENSATION MAY BE PAID UNDER THE ACTS OF JUNE 28, 1940 (54 STAT. 676), OCTOBER 21, 1940 (54 STAT. 1205), AND JUNE 3, 1741 (55 STAT. 241), AND FOR OTHER PURPOSES," NOW AWAITING THE APPROVAL OF THE PRESIDENT, COPY OF WHICH RESOLUTION I ENCLOSE HEREWITH.

THE LAST PROVISO OF SECTION 1, READS IN PART AS FOLLOWS:

"* * * AND EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES SHALL BE PAID ADDITIONAL COMPENSATION, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN, AMOUNTING TO 10 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM, AND EACH SUCH EMPLOYEE SHALL BE PAID ONLY SUCH ADDITIONAL COMPENSATION OR PORTION THEREOF AS WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM. * * *"

ASSUMING THAT THIS RESOLUTION BECOMES A LAW, I, AS CLERK OF THE HOUSE, WOULD LIKE TO BE ADVISED WHETHER I HAVE THE AUTHORITY TO AUTOMATICALLY INCREASE THE SALARIES OF THE EMPLOYEES UNDER THE LEGISLATIVE BRANCH AS EMPLOYED AND CARRIED ON THE PAY ROLLS OF THE HOUSE OF REPRESENTATIVES, INCLUDING SALARIES PAID ON INDIVIDUAL VOUCHERS WHETHER THEIR RESPECTIVE BASIC SALARIES ARE STATUTORY OR ARE FIXED AND PAID OUT OF CERTAIN SPECIFIC LUMP SUM APPROPRIATIONS, INCLUDING THOSE SALARIES PAID OUT OF THE CONTINGENT FUND OF THE HOUSE UNDER AUTHORITY OF HOUSE RESOLUTIONS WHERE THE SALARIES OF SUCH EMPLOYEES ARE FIXED FROM TIME TO TIME BY THE CHAIRMEN OF INVESTIGATING COMMITTEES, ETC., AND PAY SUCH INCREASED COMPENSATION OUT OF THE EXISTING FUNDS AS APPROPRIATED BY THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1943, PUBLIC NO. 600, APPROVED JUNE 8, 1942, AND THEREBY INCUR A DEFICIT IN THE 1943 APPROPRIATION ACCOUNTS WHICH, OF COURSE, WILL NECESSITATE OUR SECURING A SUPPLEMENTAL OR DEFICIENCY APPROPRIATION BEFORE THE END OF THE FISCAL YEAR, JUNE 30, 1943. I MIGHT STATE FOR YOUR INFORMATION THAT THIS MATTER HAS BEEN DISCUSSED INFORMALLY WITH THE CHAIRMAN OF THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE, AS WELL AS THE RANKING MAJORITY AND RANKING MINORITY MEMBERS OF SAID COMMITTEE AND THEY AGREED THAT THEY WOULD GO ALONG WITH A VIEW OF PROVIDING WHATEVER ADDITIONAL FUNDS MAY BE NECESSARY IN OUR CARRYING OUT THE PROVISIONS OF THIS INCREASED COMPENSATION ACT, ( SENATE JOINT RESOLUTION NO. 170) PROVIDING YOU AUTHORIZE THE IMMEDIATE EXPENDITURE OF THE REQUIRED FUNDS OUT OF OUR EXISTING APPROPRIATIONS TO INCREASE SALARIES AS SPECIFIED, EFFECTIVE FROM DECEMBER 1, 1942, UP TO AND INCLUDING APRIL 30, 1943.

IT IS MY UNDERSTANDING THAT THE PROVISIONS OF SENATE JOINT RESOLUTION NO. 170, IN SO FAR AS THE LEGISLATIVE BRANCH IS CONCERNED, COVERS EACH AND EVERY EMPLOYEE WHO RECEIVES HIS OR HER SALARY FROM THE HOUSE OF REPRESENTATIVES BY CHECKS DRAWN ON THE TREASURER OF THE UNITED STATES REGARDLESS OF THE APPROPRIATION ACCOUNT FROM WHICH THEY ARE PAID, SUCH AS

" CLERK HIRE, MEMBERS AND DELEGATES, H. OF R., FISCAL YEAR 1943"

" SALARIES, OFFICERS AND EMPLOYEES, H. OF R., 1943"

" LEGISLATIVE COUNSEL, H. OF R., 1943"

" JOINT COMMITTEE ON PRINTING, H. OF R., 1943"

" SALARIES, CAPITOL POLICE, H. OF R., 1943"

" CONTINGENT EXPENSES OF THE HOUSE

" EXPENSES, SPECIAL AND SELECT COMMITTEES, H. OF R., 1943"

" FURNITURE AND REPAIRS, H. OF R., 1943"

" MISCELLANEOUS ITEMS, 1943"

" FOLDING DOCUMENTS, H. OF R., 1943" ( PIECE WORKERS)

" SPEAKER'S AUTOMOBILE, H. OF R., 1943"

" JOINT COMMITTEE ON INTERNAL REVENUE TAXATION, H. OF R., 1943"

" REVISION OF THE LAWS, H. OF R., 1943"

" CERTAIN SERVICES, H. OF R., 1943" ( EXTRA CLERICAL ASSISTANCE, CLERK'S OFFICE.)

I WOULD ALSO LIKE TO CALL YOUR ATTENTION TO THE ATTACHED COPY OF PUBLIC LAW NO. 216, 76TH CONGRESS, APPROVED JULY 25, 1939, ENTITLED, " AN ACT, TO PROVIDE FOR ADDITIONAL CLERK HIRE IN THE HOUSE OF REPRESENTATIVES, ANF FOR OTHER PURPOSES," AND WOULD RESPECTFULLY REQUEST YOUR DECISION AS TO WHETHER THE LIMITATION CONTAINED IN THE PROVISO, SECTION 3, AMENDING SECTION 2 OF THE LEGISLATIVE PAY ACT OF 1929, READING AS FOLLOWS:

"PROVIDED, THAT NO PERSON SHALL RECEIVE A SALARY FROM SUCH CLERK HIRE AT A RATE IN EXCESS OF $3,900 PER ANNUM.' WOULD NOT PREVENT THE SALARY OF A CLERK TO A MEMBER OF CONGRESS FROM BEING INCREASED BY 10 PERCENT OF THE FIRST $2,900 IF THE SALARY OF SUCH CLERK WAS FIXED AT ANY ANNUAL RATE BETWEEN THE RANGE OF $3,610 TO $3,900 PER ANNUM. IN OTHER WORDS, IF THE SALARY OF A CLERK TO A MEMBER WAS FIXED AT THE RATE OF $3,900 PER ANNUM UNDER AUTHORITY OF PUBLIC LAW NO. 216, QUOTED HEREIN, THE SALARY OF THAT PARTICULAR CLERK WOULD AUTOMATICALLY BE INCREASED BY 10 PERCENT OF THE FIRST $2,900 OF HIS SALARY OR A NET INCREASE OF $290, MAKING HIS TOTAL AGGREGATE COMPENSATION PURSUANT TO SENATE JOINT RESOLUTION NO. 170, AT THE RATE OF $4,190 PER ANNUM.

THANKING YOU IN ADVANCE FOR YOUR IMMEDIATE CONSIDERATION, I REMAIN

ASSUMING THAT THE REFERRED-TO RESOLUTION BECOMES A LAW, THE SEVERAL QUESTIONS PRESENTED ARE ANSWERED AS FOLLOWS:

THE WORDS,"SHALL BE PAID ADDITIONAL COMPENSATION," APPEARING IN THAT PORTION OF JOINT RESOLUTION NO. 170 ( PUBLIC LAW 821, APPROVED DECEMBER 22, 1942), QUOTED IN YOUR LETTER, ARE WORDS OF MANDATE OR COMMAND, AND THEY VEST NO DISCRETION, WHATEVER, IN ANY ONE TO DENY THE ADDITIONAL COMPENSATION TO EMPLOYEES OTHERWISE COMING WITHIN THE TERMS AND LIMITATIONS OF THE STATUTE. FROM AND AFTER DECEMBER 1, 1942, TO AND INCLUDING APRIL 30, 1943, THE ONLY LEGAL SALARY RATE PAYABLE TO SUCH EMPLOYEES INCLUDES THE ADDITIONAL COMPENSATION AUTHORIZED BY THE STATUTE. ACCORDINGLY, THE EXISTING APPROPRIATIONS FOR THE FISCAL YEAR 1943 AVAILABLE FOR PAYMENT OF THE SALARIES OF THE EMPLOYEES OF THE HOUSE OF REPRESENTATIVES, A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT, ARE AVAILABLE FOR PAYMENT OF THE ADDITIONAL COMPENSATION OF 10 PERCENT WITHIN THE LIMITATIONS OF THE STATUTE FOR THE PERIOD DECEMBER 1, 1942, TO AND INCLUDING APRIL 30, 1943, REGARDLESS OF THE FACT THAT A DEFICIENCY MAY BE INCURRED AS A RESULT OF PAYING SUCH INCREASE OF COMPENSATION. SEE 21 COMP. GEN. 335, 337. HENCE, THE QUESTION CONTAINED IN THE THIRD PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.

YOUR UNDERSTANDING AS EXPRESSED IN THE FOURTH PARAGRAPH OF YOUR LETTER IS CORRECT. THAT IS TO SAY, AS ABOVE INDICATED, ANY APPROPRIATION FOR THE CURRENT FISCAL YEAR LISTED IN YOUR LETTER WHICH IS AVAILABLE FOR EMPLOYMENT AND PAYMENT OF SALARIES OF PERSONNEL IS AVAILABLE, ALSO, FOR PAYMENT OF THE ADDITIONAL COMPENSATION AUTHORIZED AND REQUIRED TO BE PAID BY JOINT RESOLUTION NO. 170, FOR THE PERIOD FROM AND AFTER DECEMBER 1, 1942.

THE 10 PERCENT ADDITIONAL COMPENSATION PROVIDED BY THE SAID JOINT RESOLUTION IS REQUIRED TO BE BASED ON THE "EARNED BASIC COMPENSATION" OF THE EMPLOYEES. THE MAXIMUM SALARY RATE OF $3,900 FIXED IN THE PROVISO TO SECTION 2 OF THE LEGISLATIVE PAY ACT OF 1929, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 25, 1939, 53 STAT. 1080, QUOTED IN YOUR LETTER, FOR PERSONNEL HIRED UNDER THE APPROPRIATION FOR CLERK HIRE OF MEMBERS OF CONGRESS IS EARNED BASIC COMPENSATION FOR PURPOSES OF APPLYING THE RESOLUTION. HENCE, SAID PROVISO DOES NOT OPERATE TO PREVENT THE SALARY OF A CLERK TO A MEMBER OF CONGRESS FROM BEING INCREASED BY 10 PERCENT OF THE FIRST $2,900 DURING THE LIFE OF THE RESOLUTION WHERE HIS ANNUAL SALARY RATE MAY RANGE FROM $3,610 TO $3,900. AS COMPUTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THE LIMITATION ON THE TOTAL OR AGGREGATE COMPENSATION FOR SUCH EMPLOYEES, INCLUDING BASIC AND ADDITIONAL PERCENTAGE INCREASE, IS $4,190 PER ANNUM.