A-52844, FEBRUARY 20, 1934, 13 COMP. GEN. 222

A-52844, FEBRUARY 20, 1934, 13 COMP. GEN. 222

COMPENSATION - CLASSIFICATION - EMPLOYEES IN REGULAR ESTABLISHMENTS PAID ON EMERGENCY ROLL THE HEADS OF THE REGULAR DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT HAVE AN ELECTION IN FIXING THE RATES OF COMPENSATION OF OFFICERS AND EMPLOYEES TO BE PAID FROM FUNDS ALLOTTED UNDER THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT, EITHER IN ACCORDANCE WITH THE REGULAR CLASSIFICATION SCHEDULE OR THE SCHEDULE PRESCRIBED IN EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933. IF THE DUTIES OF THE POSITION UNDER AN EMERGENCY ALLOTMENT ARE TO BE THE SAME AS THE DUTIES OF A REGULAR POSITION IN THE SAME ESTABLISHMENT WHICH HAS BEEN REGULARLY CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, THE HEAD OF SUCH ESTABLISHMENT MAY FIX THE COMPENSATION FOR THE EMERGENCY POSITION AT THE APPROPRIATE RATE UNDER THE REGULAR CLASSIFICATION SCHEDULE BY THE ESTABLISHED PROCEDURE FOR CREATING AN ADDITIONAL POSITION, OR MAY FIX THE COMPENSATION AT THE CORRESPONDING RATE SCHEDULED IN THE EXECUTIVE ORDER OF NOVEMBER 18, 1933; SUBJECT IN EITHER INSTANCE TO THE PERCENTAGE REDUCTION APPLICABLE TO REGULAR EMPLOYEES UNDER THE ACT OF MARCH 20, 1933, 48 STAT. 12. WHERE THE DUTIES OF THE EMERGENCY POSITION ARE NOT TO BE THE SAME AS THE DUTIES OF THE REGULAR POSITION PREVIOUSLY CLASSIFIED UNDER THE CLASSIFICATION ACT, AS AMENDED, THEN SUCH EMERGENCY POSITION MAY BE REGULARLY CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, OR ELSE THE COMPENSATION THEREOF MAY BE FIXED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933. THE PROVISIONS OF EXECUTIVE ORDER NO. 6440 ARE APPLICABLE ONLY TO POSITIONS AT THE SEAT OF GOVERNMENT AND IN THE FIELD OF A CHARACTER WHICH, IF IN THE REGULAR SERVICE, WOULD BE SUBJECT TO CLASSIFICATION UNDER THE CLASSIFICATION ACT, AS AMENDED, AND, DO NOT APPLY TO LABORERS, MECHANICS, ETC. THE RULE THAT EMPLOYEES MAY BE REINSTATED OR REEMPLOYED WITHIN ADMINISTRATIVE DISCRETION AT NOT TO EXCEED THE SALARY RATE PREVIOUSLY RECEIVED IN THE SAME CLASSIFICATION GRADE, MAY BE APPLIED BETWEEN DEPARTMENTS OR OFFICES, BOTH REGULAR AND EMERGENCY. AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION ON THE REGULAR ROLL TO A POSITION WITH SAME OR SIMILAR DUTIES ON THE EMERGENCY ROLL REGARDLESS OF WHETHER THE COMPENSATION OF THE EMERGENCY POSITION HAD BEEN FIXED AT A RATE UNDER THE CLASSIFICATION SCHEDULE OR UNDER EXECUTIVE ORDER NO. 6440, EXCEPT THAT ANY INCREASE IN COMPENSATION UNDER SUCH A TRANSFER WOULD BE PROHIBITED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, BUT AN INCREASE IN COMPENSATION RESULTING FROM A TRANSFER FROM THE REGULAR TO THE EMERGENCY ROLL IN A HIGHER GRADE, WOULD NOT CONSTITUTE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SAID STATUTE, THERE BEING NO REQUIREMENT FOR PRESIDENTIAL APPROVAL FOR THE FILLING OF VACANCIES IN TEMPORARY OR EMERGENCY POSITIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 20, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 13, 1934, AS FOLLOWS:

YOUR OPINION IS REQUESTED WITH RESPECT TO CERTAIN ISSUES ARISING AS THE RESULT OF THE ISSUANCE OF EXECUTIVE ORDERS NOS. 6440 AND 6554 PRESCRIBING RATES OF COMPENSATION FOR PERSONAL SERVICES IN EMERGENCY AGENCIES WHICH ARE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND YOUR DECISION NO. A-52844 EXTENDING THE PROVISIONS OF THESE EXECUTIVE ORDERS TO EMPLOYEES OF THE REGULAR DEPARTMENTS AND OTHER FEDERAL ESTABLISHMENTS WHOSE COMPENSATION IS PAID FROM FUNDS OF ONE OF THE EMERGENCY AGENCIES AND IS NOT OTHERWISE CONTROLLED BY THE CLASSIFICATION ACT OR OTHER STATUTE.

IT IS MY UNDERSTANDING WITH RESPECT TO THESE ALLOTTED FUNDS THAT THEY ARE TO BE ACCOUNTED FOR THE SAME AS REGULARLY APPROPRIATED FUNDS, AND THAT WITH RESPECT TO POSITIONS THE INCUMBENTS OF WHICH ARE EMPLOYED BY A REGULAR DEPARTMENT OR ESTABLISHMENT AND ARE PAID FROM SUCH ALLOTTED FUNDS THE FOLLOWING SITUATION EXISTS:

1. IF THE POSITION IS ON THE DISTRICT OF COLUMBIA AND IS OF A TYPE THAT WOULD NORMALLY BE CLASSIFIED BY THE CIVIL SERVICE COMMISSION UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, IT WOULD STILL BE SO CLASSIFIED, REGARDLESS OF THE FACT THAT THE INCUMBENT THEREOF IS PAID FROM ALLOTTED EMERGENCY FUNDS.

2. IF THE POSITION IS IN THE FIELD SERVICE AND IS OF A TYPE THAT WOULD NORMALLY BE CLASSIFIED BY THE HEAD OF THE REGULAR DEPARTMENT OR ESTABLISHMENT UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, IT WOULD STILL BE SO CLASSIFIED, REGARDLESS OF THE FACT THAT THE INCUMBENT THEREOF IS PAID FROM ALLOTTED EMERGENCY FUNDS.

3. IF THE POSITION IS OF A TYPE WHICH NORMALLY WOULD NOT BE CLASSIFIED EITHER BY THE CIVIL SERVICE COMMISSION OR THE HEAD OF A DEPARTMENT OR UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, THEN IT IS TO BE CLASSIFIED UNDER THE EXECUTIVE ORDERS REFERRED TO, EXCEPT THE LABOR AND MECHANICAL GROUPS DISCUSSED BELOW.

UNLESS SUCH PROCEDURE IS FOLLOWED THERE WILL EXIST MANY SITUATIONS IN THE REGULAR DEPARTMENTS OR ESTABLISHMENTS WHERE EMPLOYEES WORKING SIDE BY SIDE ON THE SAME WORK WILL BE PAID AT DIFFERENT RATES, BECAUSE ONE IS PAID FROM REGULAR APPROPRIATIONS AND THE OTHER FROM ALLOTTED EMERGENCY FUNDS, THE RATES APPLYING UNDER THE CLASSIFICATION ACT AND THOSE APPLYING UNDER THE EXECUTIVE ORDERS BEING DIFFERENT, ESPECIALLY IN THE HIGHER GRADES.

WILL YOU PLEASE ADVISE ME IF MY UNDERSTANDING OF THE SITUATION AS OUTLINED IN 1, 2 AND 3, SUPRA, IS CORRECT?

UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, COMMON LABORERS, UNSKILLED AND SKILLED LABORERS, EMPLOYEES ENGAGED IN THE MECHANICAL TRADES SUCH AS PLUMBERS, CARPENTERS, STEAMFITTERS, MACHINISTS, ETC. AND THE FOREMEN OF SMALL GROUPS OF SUCH EMPLOYEES, WHOSE RATES OF PAY ARE FIXED BY LOCAL WAGE BOARDS, ARE EXCEPTED FROM THE APPLICATION OF THE ACT. IN VIEW OF THIS FACT, AND THE ACTIONS ALREADY TAKEN BY THE SEVERAL EMERGENCY AGENCIES FIXING THE RATES OF PAY OF SUCH EMPLOYEES, IT APPEARS TO ME IT WOULD BE PROPER AND ADVISABLE FROM BOTH THE STANDPOINT OF CLASSIFICATION AND THE ADMINISTRATIVE PROBLEMS INVOLVED, TO EXCLUDE SUCH EMPLOYEES FROM THE APPLICATION OF THE EXECUTIVE ORDERS, BOTH IN THE REGULAR DEPARTMENTS AND IN THE EMERGENCY AGENCIES, AND BOTH IN THE DISTRICT OF COLUMBIA AND IN THE FIELD.

WILL YOU PLEASE ADVISE ME IF THIS ASSUMPTION IS A PROPER ONE?

IF, HOWEVER, THESE EXECUTIVE ORDERS ARE HELD TO APPLY TO SUCH EMPLOYEES, ADVICE IS REQUESTED AS TO HOW HOURLY, DAILY, WEEKLY, AND MONTHLY WAGE RATES SHALL BE COMPUTED, BEARING IN MIND THE VARYING HOURS OF LABOR REQUIRED BY THESE DIFFERENT AGENCIES UNDER VARYING CONDITIONS OF EMPLOYMENT.

TWO OTHER SITUATIONS ARISE WHICH ALSO ARE TROUBLESOME: ONE, WHERE AN EMPLOYEE OF A REGULAR ESTABLISHMENT IS PLACED, VOLUNTARILY OR INVOLUNTARILY, IN A NONPAY STATUS, AND IS TRANSFERRED TO THE ROLLS OF AN EMERGENCY AGENCY WHERE HE PERFORMS SUBSTANTIALLY THE SAME DUTIES THAT HE DID BEFORE; AND TWO, WHERE AN EMPLOYEE IS SIMILARLY PLACED IN A NONPAY STATUS, VOLUNTARILY OR INVOLUNTARILY, BY A REGULAR ESTABLISHMENT BUT IS EMPLOYED BY AND ASSIGNED NEW AND MATERIALLY DIFFERENT DUTIES IN AN EMERGENCY AGENCY, WHICH DUTIES, IF EVALUATED ON A CLASSIFICATION BASIS, WOULD PLACE HIS NEW POSITION IN A DIFFERENT GRADE THAN HIS OLD ONE.

THE QUESTION HERE IS UNDER WHAT AUTHORITY ARE THE POSITIONS TO BE CLASSIFIED, THE CLASSIFICATION ACT OR THE EXECUTIVE ORDERS UNDER DISCUSSION, AND IN WHAT WAY COULD THE ADMINISTRATIVE PROMOTION RULE APPLY?

MY QUESTIONS ARE DIRECTED TO YOU BOTH IN THE CAPACITY OF SECRETARY OF THE INTERIOR AND FEDERAL ADMINISTRATOR OF PUBLIC WORKS AND THEREFORE INVOLVE CONSIDERATION WITH RESPECT TO THE USE OF FUNDS OF OTHER EMERGENCY AGENCIES AS WELL AS THE PUBLIC WORKS ADMINISTRATION.

YOUR DECISION IN THESE QUESTIONS IS REQUESTED AND, IT IS HOPED, IN VIEW OF THE URGENCY OF THE SITUATION, THAT IT WILL BE MADE AT THE EARLIEST POSSIBLE DATE. AS A MATTER OF FACT, COMPLIANCE WITH YOUR REQUEST THAT THE CLASSIFICATION OF POSITIONS BE COMPLETED BY MARCH 1, 1934, APPEARS TO BE A PHYSICAL IMPOSSIBILITY.

THE DECISION OF JANUARY 5, 1934, A-52844, 13 COMP. GEN. 186, AFTER QUOTING A PORTION OF THE EXECUTIVE ORDER NO. 6440 DATED NOVEMBER 18, 1933, STATED:

THE CLEAR PURPOSE OF THE EXECUTIVE ORDER IS TO EQUALIZE GENERALLY THE SALARY RATES OF THE PERSONNEL OF THE EMERGENCY AGENCIES WITH THE SALARY RATES OF THE PERSONNEL OF THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT SUBJECT TO THE CLASSIFICATION ACT. WHILE THE EXECUTIVE ORDER DOES NOT SPECIFICALLY MENTION PERSONNEL OF THE DEPARTMENT OF COMMERCE AND THE OTHER REGULAR ESTABLISHMENTS OF THE GOVERNMENT PAID FROM FUNDS ALLOTTED BY ONE OF THE EMERGENCY AGENCIES, THE PURPOSE OF THE EXECUTIVE ORDER MAY BE PROPERLY ACCOMPLISHED ONLY BY REGARDING THE EXECUTIVE ORDER AS APPLICABLE ALSO TO THE PERSONNEL EMPLOYED UNDER THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT PAID FROM ALLOTTED EMERGENCY FUNDS IF THEIR SALARY RATES ARE NOT OTHERWISE CONTROLLED BY THE CLASSIFICATION ACT OR OTHER FEDERAL STATUTE. * * *

SEE ALSO DECISION OF JANUARY 17, 1934, A-53051, 13 COMP. GEN. 197, IN WHICH IT WAS HELD:

HOWEVER, AS SOON AS PRACTICABLE HEREAFTER AND NOT LATER THAN MARCH 1, 1934, TO THE EXTENT THAT SUCH ACTION HAS NOT BEEN TAKEN, THE SALARY RATES OF ALL EMPLOYEES UNDER THE FEDERAL CIVIL WORKS ADMINISTRATION AND OF EMPLOYEES UNDER THE REGULAR ESTABLISHMENTS OF THE FEDERAL AND DISTRICT OF COLUMBIA GOVERNMENTS PAID FROM FUNDS ALLOTTED BY THE FEDERAL CIVIL WORKS ADMINISTRATION, WHOSE DUTIES AND RESPONSIBILITIES CORRESPOND TO THE DUTIES AND RESPONSIBILITIES OF POSITIONS SUBJECT TO THE CLASSIFICATION ACT, AS AMENDED, ARE REQUIRED TO BE FIXED PURSUANT TO THE EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, * * *.

EXECUTIVE ORDER NO. 6440, DATED NOVEMBER 18, 1933, THE PROVISIONS OF WHICH WERE EXTENDED TO OTHER EMERGENCY AGENCIES BY EXECUTIVE ORDER NO. 6554 OF JANUARY 10, 1934, VESTED THE AUTHORITY AND IMPOSED THE DUTY AND RESPONSIBILITY OF FIXING SALARY RATES IN ACCORDANCE WITH ITS PROVISIONS IN THE RESPECTIVE HEADS OF THE AGENCIES OR ESTABLISHMENTS CONCERNED. AND THE DECISIONS OF THIS OFFICE HEREINBEFORE MENTIONED WERE INTENDED TO REQUIRE THAT THE HEADS OF THE REGULAR DEPARTMENTS OR ESTABLISHMENTS, IN FIXING THE RATES OF COMPENSATION OF OFFICERS AND EMPLOYEES TO BE PAID FROM FUNDS ALLOCATED UNDER THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT, SHOULD FIX SUCH RATES IN ACCORDANCE WITH EITHER THE REGULAR CLASSIFICATION SCHEDULE OR THE SCHEDULE PRESCRIBED IN EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933.

WHERE THE PERSONNEL OF A REGULAR ESTABLISHMENT OF THE GOVERNMENT TO WHICH EMERGENCY FUNDS HAVE BEEN ALLOTTED IS SUBJECT TO THE CLASSIFICATION ACT, AS AMENDED, AND THE ALLOTMENT HAS BEEN MADE FOR PERFORMANCE OF WORK SIMILAR TO THAT PERFORMED BY THE REGULAR FORCE, THE HEAD OF THE REGULAR ESTABLISHMENT HAS AN ELECTION IN FIXING RATES OF COMPENSATION FOR THE EMERGENCY POSITIONS EITHER UNDER THE REGULAR CLASSIFICATION SCHEDULE, OR PURSUANT TO THE EXECUTIVE ORDER.

CONSEQUENTLY, IF THE DUTIES OF THE POSITION UNDER AN EMERGENCY ALLOTMENT ARE TO BE THE SAME AS THE DUTIES OF A REGULAR POSITION IN THE SAME ESTABLISHMENT WHICH HAS BEEN REGULARLY CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, THE HEAD OF SUCH ESTABLISHMENT MAY FIX THE COMPENSATION FOR THE EMERGENCY POSITION AT THE APPROPRIATE RATE UNDER THE REGULAR CLASSIFICATION SCHEDULE BY THE ESTABLISHED PROCEDURE FOR CREATING AN ADDITIONAL POSITION, 9 COMP. GEN. 101, OR MAY FIX THE COMPENSATION AT THE CORRESPONDING RATE SCHEDULED IN THE EXECUTIVE ORDER OF NOVEMBER 18, 1933--- SUBJECT IN EITHER INSTANCE TO THE PERCENTAGE REDUCTION APPLICABLE TO REGULAR EMPLOYEES UNDER THE ACT OF MARCH 20, 1933, 48 STAT. 12.

WHERE THE DUTIES OF THE EMERGENCY POSITION ARE NOT TO BE THE SAME AS THE DUTIES OF A REGULAR POSITION PREVIOUSLY CLASSIFIED UNDER THE CLASSIFICATION ACT AS AMENDED, THEN SUCH EMERGENCY POSITION MAY BE REGULARLY CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT AS AMENDED OR ELSE THE COMPENSATION THEREOF MAY BE FIXED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE ORDER NO. 6440, OF NOVEMBER 18, 1933.

THE PROVISIONS OF EXECUTIVE ORDER NO. 6440 ARE APPLICABLE ONLY TO POSITIONS AT THE SEAT OF GOVERNMENT AND IN THE FIELD OF A CHARACTER WHICH, IF IN THE REGULAR SERVICE WOULD BE SUBJECT TO CLASSIFICATION UNDER THE CLASSIFICATION ACT AS AMENDED, AND, THEREFORE, DO NOT APPLY TO LABORERS, MECHANICS, ETC.

THE RULE IS THAT EMPLOYEES MAY BE REINSTATED OR REEMPLOYED WITHIN ADMINISTRATIVE DISCRETION AT NOT TO EXCEED THE SALARY RATE PREVIOUSLY PAID FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES AND RESPONSIBILITIES, THAT IS, IN A POSITION ALLOCATED TO THE SAME GRADE IN WHICH PREVIOUSLY EMPLOYED. THIS RULE MAY BE APPLIED WHETHER REINSTATEMENT OR REEMPLOYMENT IS IN THE SAME OR DIFFERENT DEPARTMENT OR OFFICE IN WHICH PREVIOUSLY EMPLOYED AND MAY BE EXTENDED TO PERSONS PREVIOUSLY EMPLOYED IN A REGULAR ESTABLISHMENT OF THE GOVERNMENT WHO ARE REINSTATED OR REEMPLOYED IN AN EMERGENCY ORGANIZATION.

AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION ON THE REGULAR ROLL TO A POSITION WITH SAME OR SIMILAR DUTIES ON THE EMERGENCY ROLL REGARDLESS OF WHETHER THE COMPENSATION OF THE EMERGENCY POSITION HAD BEEN FIXED AT A RATE UNDER THE CLASSIFICATION ACT SCHEDULE OR UNDER EXECUTIVE ORDER NO. 6440, EXCEPT THAT ANY INCREASE IN COMPENSATION UNDER SUCH A TRANSFER WOULD BE PROHIBITED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, BUT AN INCREASE IN COMPENSATION RESULTING FROM A TRANSFER FROM THE REGULAR TO THE EMERGENCY ROLL IN A HIGHER GRADE WOULD NOT CONSTITUTE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SAID STATUTE, THERE BEING NO REQUIREMENT FOR PRESIDENTIAL APPROVAL FOR THE FILLING OF VACANCIES IN TEMPORARY OR EMERGENCY POSITIONS.