A-18734, JUNE 16, 1927, 6 COMP. GEN. 828

A-18734: Jun 16, 1927

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SUCH TELEPHONE OPERATORS WILL BE REQUIRED TO BE EMPLOYED UNDER CIVIL SERVICE RULES AND REGULATIONS AND SUPERVISED BY GOVERNMENT OFFICERS. THIS REQUIREMENT WAS BASED ON DECISIONS OF THIS OFFICE IN 6 COMP. IT HAS BEEN HELD SPECIFICALLY THAT THE SERVICES OF TELEPHONE OPERATORS ARE PERSONAL SERVICES. AS FOLLOWS: THE SERVICES OF A TELEPHONE OPERATOR ARE CLEARLY PERSONAL SERVICES. REGARDLESS OF WHETHER THEY ARE ENGAGED UNDER A FORMAL APPOINTMENT OR BY ENTERING INTO A CONTRACT WITH THE PERSON WHO IS TO PERFORM THE SERVICE OR WITH A COMMERCIAL CONCERN WHICH AGREES TO FURNISH THE SERVICE. * * * WHILE THE DECISION WAS RENDERED WITH PARTICULAR REFERENCE TO THE RESTRICTIONS UPON EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IMPOSED BY THE ACT OF AUGUST 5.

A-18734, JUNE 16, 1927, 6 COMP. GEN. 828

PERSONAL SERVICES - PBX TELEPHONE OPERATORS IN THE ABSENCE OF A SPECIFIC SHOWING OF FACTS OR CIRCUMSTANCES JUSTIFYING CONTINUANCE OF THE EXISTING PRACTICE OF REIMBURSING TELEPHONE COMPANIES FOR THE EMPLOYMENT AND SUPERVISION OF SERVICES OF PBX TELEPHONE OPERATORS PERFORMING SERVICES FOR THE GOVERNMENT IN THE FIELD, ON AND AFTER JULY 1, 1927, SUCH TELEPHONE OPERATORS WILL BE REQUIRED TO BE EMPLOYED UNDER CIVIL SERVICE RULES AND REGULATIONS AND SUPERVISED BY GOVERNMENT OFFICERS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JUNE 16, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 1, 1927, REQUESTING RECONSIDERATION OF THE ACTION OF THIS OFFICE IN REQUIRING THAT THE EXISTING PRACTICE OF PAYING THE SALARIES OF PBX TELEPHONE OPERATORS FOR THE OFFICES OF THE COLLECTORS OF CUSTOMS AT BOSTON, MASS., AND NEW YORK CITY, UNDER CONTRACTS WITH TELEPHONE COMPANIES, BE DISCONTINUED JUNE 30, 1927, AND THAT THEREAFTER ALL TELEPHONE OPERATORS PERFORMING SERVICES FOR THE GOVERNMENT BE EMPLOYED BY THE GOVERNMENT THROUGH CIVIL SERVICE CERTIFICATION. THIS REQUIREMENT WAS BASED ON DECISIONS OF THIS OFFICE IN 6 COMP. GEN. 51; ID. 474.

IT HAS BEEN HELD SPECIFICALLY THAT THE SERVICES OF TELEPHONE OPERATORS ARE PERSONAL SERVICES, IN DECISION OF MARCH 6, 1926, 5 COMP. GEN. 700, 701, AS FOLLOWS:

THE SERVICES OF A TELEPHONE OPERATOR ARE CLEARLY PERSONAL SERVICES, REGARDLESS OF WHETHER THEY ARE ENGAGED UNDER A FORMAL APPOINTMENT OR BY ENTERING INTO A CONTRACT WITH THE PERSON WHO IS TO PERFORM THE SERVICE OR WITH A COMMERCIAL CONCERN WHICH AGREES TO FURNISH THE SERVICE. * * *

WHILE THE DECISION WAS RENDERED WITH PARTICULAR REFERENCE TO THE RESTRICTIONS UPON EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IMPOSED BY THE ACT OF AUGUST 5, 1882, 22 STAT. 255, THE PREMISE ON WHICH IT WAS BASED, VIZ, THAT THE SERVICE OF A TELEPHONE OPERATOR IS A PERSONAL SERVICE, IS CORRECT, AND IN THIS RESPECT THERE IS NO DISTINCTION BETWEEN SERVICE IN THE DISTRICT OF COLUMBIA AND SERVICE IN THE FIELD. A GENERAL RULE ALL PERSONAL SERVICES FOR THE GOVERNMENT SHOULD BE RENDERED BY PERSONS EMPLOYED AND SUPERVISED BY GOVERNMENT OFFICERS. BUT IT IS RECOGNIZED IN THE QUOTED DECISION THAT THERE MAY BE INSTANCES WHERE THE SERVICES OF TELEPHONE OPERATORS MIGHT PROPERLY BE ENGAGED UNDER A CONTRACT WITH THE COMMERCIAL CONCERN WHICH AGREES TO FURNISH THE SERVICE. THIS IS TRUE PRIMARILY FOR THE REASON THAT TELEPHONE SERVICE IS A PUBLIC UTILITY THE EQUIPMENT OF WHICH IS USUALLY NOT OWNED BY THE GOVERNMENT BUT BY THE TELEPHONE COMPANY WHICH INSTALLS IT. IT MAY BE NECESSARY AND ADVISABLE IN CERTAIN INSTANCES, PARTICULARLY WHERE THE GOVERNMENT OCCUPIES SPACE IN AN OFFICE BUILDING WITH OTHER PRIVATE TENANTS, OR THERE MAY BE OTHER INSTANCES, WHICH WOULD JUSTIFY EMPLOYMENT AND SUPERVISION OF TELEPHONE OPERATORS PERFORMING SERVICE FOR THE GOVERNMENT, TO BE BY THE TELEPHONE COMPANY. IF A REASONABLE SHOWING IN THIS REGARD IS MADE THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE CONTINUATION OF SUCH PRACTICE SUBSEQUENT TO JUNE 30, 1927.

IN THE DISTRICT OF COLUMBIA THE PRACTICE OF EMPLOYMENT THROUGH CIVIL SERVICE CERTIFICATION AND SUPERVISION BY GOVERNMENT OFFICERS, OF PBX TELEPHONE OPERATORS PERFORMING SERVICES FOR THE GOVERNMENT, HAS PROVEN SATISFACTORY, AND THERE WOULD APPEAR TO BE NO REASON TO SUPPOSE, IN THE ABSENCE OF A CLEAR SHOWING OF FACTS OR CIRCUMSTANCES TO THE CONTRARY, THAT THE SAME WOULD NOT BE TRUE IN THE FIELD, PARTICULARLY IN BUILDINGS OCCUPIED EXCLUSIVELY BY THE GOVERNMENT. IT IS UNDERSTOOD, ALSO, TO BE THE GENERAL PRACTICE IN THE COMMERCIAL WORLD FOR LARGE CORPORATIONS AND OWNERS OF APARTMENT HOUSES, ETC., TO EMPLOY AND SUPERVISE THEIR OWN PBX TELEPHONE OPERATORS.

SUFFICIENT SHOWING HAS NOT BEEN MADE IN THE CASES OF THE COLLECTORS OF CUSTOMS AT BOSTON AND NEW YORK TO JUSTIFY THE EXISTING PRACTICE OF EMPLOYMENT AND SUPERVISION OF THE TELEPHONE OPERATORS BY THE TELEPHONE COMPANY. ACCORDINGLY, IN THE ABSENCE OF SUCH A SHOWING OF SPECIFIC FACTS, ON AND AFTER JULY 1, 1927, TELEPHONE OPERATORS PERFORMING SERVICES FOR THOSE BRANCHES OF THE GOVERNMENT SERVICE SHOULD BE EMPLOYED UNDER CIVIL SERVICE RULES AND REGULATIONS AND SUPERVISED BY GOVERNMENT OFFICERS.