A-33040, OCTOBER 1, 1930, 10 COMP. GEN. 145

A-33040: Oct 1, 1930

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CLASSIFICATION OF CIVILIAN EMPLOYEES - BROOKHART SALARY ACT - TEMPORARY CENSUS EMPLOYEES EMPLOYEES WHO WERE ON THE TEMPORARY ROLL UNDER THE BUREAU OF THE CENSUS ON JULY 3. ARE NOT ENTITLED TO AN AUTOMATIC INCREASE IN COMPENSATION UNDER THE PROVISIONS OF THE BROOKHART SALARY ACT OF JULY 3. MARSH AND 111 OTHER EMPLOYEES UNDER THE BUREAU OF THE CENSUS WHO ARE ON THE TEMPORARY ROLL DURING THE PERIOD OF THE FIFTEENTH DECENNIAL CENSUS. THERE WILL BE CONSIDERED HEREIN THE STATUS. OF ALL EMPLOYEES WHO WERE TRANSFERRED FROM A PERMANENT CLASSIFICATION STATUS TO THE TEMPORARY ROLL FOR THE PERIOD OF THE FIFTEENTH DECENNIAL CENSUS. THE COMMUNICATION FROM THE EMPLOYEES IS AS FOLLOWS: WE. THE BUREAU OF THE CENSUS IS IN THE MIDST OF THE FIFTEENTH DECENNIAL CENSUS PERIOD WHICH LASTS THREE YEARS.

A-33040, OCTOBER 1, 1930, 10 COMP. GEN. 145

CLASSIFICATION OF CIVILIAN EMPLOYEES - BROOKHART SALARY ACT - TEMPORARY CENSUS EMPLOYEES EMPLOYEES WHO WERE ON THE TEMPORARY ROLL UNDER THE BUREAU OF THE CENSUS ON JULY 3, 1930, FOR THE PERIOD OF THE FIFTEENTH DECENNIAL CENSUS HAVING BEEN APPOINTED OR TRANSFERRED THERETO FROM THE PERMANENT ROLL UNDER AUTHORITY OF THE PROVISIONS OF THE CENSUS ACT OF JUNE 18, 1929, 46 STAT. 21, WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT, ARE NOT ENTITLED TO AN AUTOMATIC INCREASE IN COMPENSATION UNDER THE PROVISIONS OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1003.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 1, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIMS OF MARY T. MARSH AND 111 OTHER EMPLOYEES UNDER THE BUREAU OF THE CENSUS WHO ARE ON THE TEMPORARY ROLL DURING THE PERIOD OF THE FIFTEENTH DECENNIAL CENSUS, FOR THE AMOUNT OF AN AUTOMATIC INCREASE IN SALARY FROM AND AFTER JULY 3, 1930, UNDER THE TERMS OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1003.

IN ORDER TO OBVIATE THE FILING OF INDIVIDUAL CLAIMS, THERE WILL BE CONSIDERED HEREIN THE STATUS, UNDER THE TERMS OF THE BROOKHART SALARY ACT, OF ALL EMPLOYEES WHO WERE TRANSFERRED FROM A PERMANENT CLASSIFICATION STATUS TO THE TEMPORARY ROLL FOR THE PERIOD OF THE FIFTEENTH DECENNIAL CENSUS.

THE COMMUNICATION FROM THE EMPLOYEES IS AS FOLLOWS:

WE, THE UNDERSIGNED EMPLOYEES OF THE BUREAU OF THE CENSUS INVITE YOUR ATTENTION TO A SITUATION WHICH HAS DEVELOPED IN THIS OFFICE AS A RESULT OF A RULING OF OFFICIALS OF THE DEPARTMENT OF COMMERCE AS TO THE APPLICATION OF THE BROOKHART ACT OF JULY 3, 1930.

THE BUREAU OF THE CENSUS IS IN THE MIDST OF THE FIFTEENTH DECENNIAL CENSUS PERIOD WHICH LASTS THREE YEARS. THE DIRECTOR HAS DIVIDED HIS PERMANENT OFFICE FORCE INTO TWO GROUPS FOR THIS TEMPORARY PERIOD, ONE OF WHICH RETAINS ITS PLACE IN THE CLASSIFICATION SCHEME AND THE OTHER FORMS THE SKELETON OF THE LARGE TEMPORARY FORCE EMPLOYED TO COMPLETE THE FIFTEENTH DECENNIAL CENSUS. THE LATTER GROUP OF EMPLOYEES HAS BEEN TEMPORARILY TRANSFERRED TO THE FIFTEENTH DECENNIAL CENSUS ROLL, WHICH IS OUTSIDE OF THE CLASSIFICATION ACT, AND WILL AT THE CLOSE OF THE DECENNIAL CENSUS PERIOD REVERT TO THEIR FORMER CLASSIFIED POSITIONS. (COMP. GEN. JULY 5, 1929.)

UNDER THE PROVISIONS OF THE WELCH BILL, AS INTERPRETED, APPROXIMATELY 210 CENSUS EMPLOYEES RECEIVED ONLY ONE, INSTEAD OF TWO, SALARY-STEP ADVANCEMENTS. OF THIS NUMBER, 61 PERMANENT EMPLOYEES, WHO ARE ENGAGED ON THE REGULAR INQUIRIES OF THE BUREAU (GROUP 1 OUTLINED ABOVE), HAVE RECEIVED AN ADDITIONAL SALARY-STEP ADVANCEMENT UNDER THE PROVISIONS OF THE BROOKHART ACT. THE REMAINING 149 EMPLOYEES, WHO ARE TEMPORARILY OUTSIDE OF THE CLASSIFICATION SCHEME (GROUP 2 OUTLINED ABOVE), HAVE NOT BEEN GRANTED AN ADDITIONAL SALARY-STEP ADVANCEMENT UNDER THE PROVISIONS OF THE BROOKHART ACT BECAUSE THEY ARE TEMPORARILY OUTSIDE OF CLASSIFICATION. THIS APPEARS TO BE AN INJUSTICE THAT CAN BE REMEDIED ONLY BY YOURSELF.

SINCE YOURS IS THE FINAL DECISION, WE RESPECTFULLY SUBMIT OUR CASE TO YOUR CONSIDERATION. ARE WE NOT ENTITLED TO AN ADDITIONAL ONE-STEP SALARY ADVANCEMENT UNDER YOUR LIBERAL INTERPRETATION OF THE BROOKHART ACT?

IN REPLY TO A REQUEST FROM THIS OFFICE FOR AN ADMINISTRATIVE REPORT AS TO THE FACTS WITH REFERENCE TO THIS MATTER, THE SECRETARY OF COMMERCE, IN LETTER DATED SEPTEMBER 22, 1930, SUBMITTED THE FOLLOWING:

1. THE DEPARTMENT'S ACTION IS NOT INCREASING UNDER THE BROOKHART ACT THE COMPENSATION OF PERMANENT CENSUS EMPLOYEES WHO ARE ENGAGED UPON FIFTEENTH CENSUS WORK WAS BASED UPON YOUR DECISION OF JULY 16, 1930 (10 COMP. GEN. 20) IN WHICH IT WAS STATED THAT "ONLY THOSE OFFICERS AND EMPLOYEES ARE ENTITLED TO THE BENEFITS OF THE ACT WHO ON JUNE 30, 1928, AND ALSO ON JULY 3, 1930, DATE OF APPROVAL OF THE ACT, OCCUPIED POSITIONS WITHIN THE ABOVE- MENTIONED GRADES.' THE "GRADES" REFERRED TO ARE THE GRADES SPECIFIED IN THE CLASSIFICATION ACT. THESE EMPLOYEES WERE NOT ON JULY 3, 1930, OCCUPYING POSITIONS SUBJECT TO THIS ACT.

2. AS A GENERAL RULE NO OPTION WAS GRANTED THE EMPLOYEES WITH RESPECT TO THEIR TRANSFER FROM THE PERMANENT ROLL TO THE TEMPORARY FIFTEENTH CENSUS ROLL INASMUCH AS SUCH TRANSFER MEANT AN INCREASE IN THEIR SALARIES.

3. THE CHANGE IN ASSIGNMENT FROM THE REGULAR CENSUS WORK TO THE FIFTEENTH CENSUS WORK IS REGARDED AS A TRANSFER AND NOT AS A DETAIL.

4. NEW APPOINTMENTS WERE ISSUED BY THE DIRECTOR OF THE CENSUS TO THE EMPLOYEES SO TRANSFERRED.

5. THESE APPOINTMENTS WERE MADE BY THE DIRECTOR OF THE CENSUS AT SUCH RATES OF COMPENSATION AS HE CONSIDERED PROPER AND WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT. THE POSITIONS ARE NOT CARRIED IN GRADES OR SALARY RANGES. THE RATES OF PAY IN SOME INSTANCES CONFORM TO THE RATES PRESCRIBED BY THE CLASSIFICATION ACT, WHILE IN OTHER CASES THEY DO NOT.

6. SALARIES OF EMPLOYEES ENGAGED UPON FIFTEENTH CENSUS WORK ARE NOT SUBJECT TO THE AVERAGE PROVISION OF THE APPROPRIATION ACTS.

7. OF THE 149 PERMANENT EMPLOYEES REFERRED TO WHO WERE TRANSFERRED TO TEMPORARY FIFTEENTH CENSUS WORK, 143 HAVE RECEIVED INCREASES IN COMPENSATION AS THE RESULT OF SUCH TRANSFER.

8. PERMANENT CENSUS EMPLOYEES TRANSFERRED TO THE FIFTEENTH CENSUS WORK WERE SELECTED TO FORM THE NUCLEUS FOR THE FIFTEENTH CENSUS ORGANIZATION AND MANY OF THEM ARE NOW IN SUPERVISORY POSITIONS AT RATES OF COMPENSATION CONSIDERABLY IN EXCESS OF THEIR FORMER SALARIES, SOME HAVING RECEIVED INCREASES OF AS MUCH AS $1,500 AND $1,800 PER ANNUM. AS PREVIOUSLY STATED THE COMPENSATION OF THESE EMPLOYEES IS FIXED BY THE DIRECTOR OF THE CENSUS AT SUCH RATES OF PAY AS HE DEEMS APPROPRIATE WITHOUT REGARD TO CLASSIFICATION GRADES OR THE AVERAGE RESTRICTIONS IMPOSED BY THE APPROPRIATION ACTS. WHILE AN EFFORT IS MADE TO SEE THAT NOT TOO GREAT A DISPARITY EXISTS BETWEEN WORK OF CORRESPONDING DIFFICULTY OF THE REGULAR CENSUS ROLL AND THE FIFTEENTH CENSUS ROLL, GREATER OPPORTUNITIES, HOWEVER, ARE AFFORDED EMPLOYEES ON THE FIFTEENTH CENSUS ROLL FOR ADVANCEMENT TO HIGHER SALARIED POSITIONS, CHIEFLY BECAUSE OF THE RAPID GROWTH NECESSARY IN EFFECTING THE FIFTEENTH CENSUS ORGANIZATION AND PARTLY BECAUSE OF THE ABSENCE OF THE RESTRICTIONS AFFECTING THE REGULAR CENSUS ORGANIZATION.

9. IT HAS BEEN HELD THAT UPON THE RETRANSFER OF THESE EMPLOYEES TO THEIR OLD POSITIONS THEY MAY BE PAID INITIALLY AT ANY SALARY RATE NOT IN EXCESS OF THE SALARY RECEIVED IMMEDIATELY PRIOR TO THE TRANSFER TO TEMPORARY WORK. THE DEPARTMENT IS OF THE OPINION THAT UPON THE RETRANSFER OF THE EMPLOYEES UNDER CONSIDERATION TO THEIR FORMER PERMANENT POSITIONS IT SHOULD BE PERMISSIBLE TO FIX THEIR COMPENSATION INITIALLY AT SALARY RATES NOT LESS THAN THE RATES TO WHICH THE EMPLOYEES WOULD HAVE BEEN ADVANCED UNDER THE BROOKHART ACT HAD THEY BEEN OCCUPYING SUCH POSITIONS ON JULY 3, 1930.

SINCE THE COMPENSATION OF THESE EMPLOYEES IS FIXED WITHOUT REGARD TO THE RESTRICTIONS OR LIMITATION IMPOSED BY THE CLASSIFICATION ACT, THE DEPARTMENT DOES NOT FEEL THAT THEY ARE ENTITLED TO INCREASES PROVIDED BY THIS AMENDATORY ACT. IF AN ADJUSTMENT WERE TO BE MADE UNDER THIS ACT, DIFFICULTIES WOULD BE ENCOUNTERED IN DETERMINING THE AMOUNT WHICH WOULD CONSTITUTE A ONE-STEP PROMOTION SINCE THE POSITIONS ARE NOT GRADED AND IN SOME CASES THE SALARIES ARE NOT FIXED AT ONE OF THE RATES SPECIFIED BY THE CLASSIFICATION ACT.

SECTION 1 OF THE BROOKHART SALARY ACT PROVIDES:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT WHOSE DUTY IT IS TO CARRY INTO EFFECT THE PROVISIONS OF THIS ACT HEREBY DIRECTED TO SO ADMINISTER THE SAME THAT EMPLOYEES WHOSE POSITIONS ARE IN THE GRADES AFFECTED HEREBY, WHO WERE IN SAID POSITIONS ON JUNE 30, 1928, AND WHO, UNDER THE ACT OF MAY 28, 1928 (U.S.C., SUPP. 3, TITLE 5, SEC. 673), DID NOT RECEIVE AN INCREASE IN SALARY THE EQUIVALENT OF TWO STEPS OR SALARY RATES IN THEIR RESPECTIVE GRADES, SHALL BE GIVEN SUCH ADDITIONAL STEP OR STEPS OR SALARY RATE OR RATES WITHIN THE GRADE, AS MAY BE NECESSARY TO EQUAL SUCH INCREASES: * *

UNDER THIS EXPRESS PROVISION EMPLOYEES ENTITLED TO THE AUTOMATIC INCREASE IN COMPENSATION AUTHORIZED BY THE STATUTE MUST HAVE BEEN IN POSITIONS "AFFECTED HEREBY," NOT ONLY ON JUNE 30, 1928, BUT ALSO ON JULY 3, 1930. DECISION OF JULY 16, 1930, A-32589, 10 COMP. GEN. 20. IF ON EITHER DATE THE POSITION OCCUPIED BY THE EMPLOYEE IS NOT SUBJECT TO THE CLASSIFICATION ACT, AND TO THE SCHEDULES OF GRADES AND SALARY RATES THEREIN PROVIDED, IT IS NOT "IN THE GRADES AFFECTED" BY THE BROOKHART SALARY ACT, AND ACCORDINGLY NO INCREASE IS AUTHORIZED THEREBY.

IN THE CENSUS ACT OF JUNE 18, 1929, 46 STAT. 21, IT IS PROVIDED AS FOLLOWS:

IN ADDITION TO THE FORCE HEREINBEFORE PROVIDED FOR, THERE MAY BE APPOINTED BY THE DIRECTOR OF THE CENSUS, WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT, FOR ANY PERIOD NOT EXTENDING BEYOND THE DECENNIAL CENSUS PERIOD, AT RATES OF COMPENSATION TO BE FIXED BY HIM, AS MANY TEMPORARY EMPLOYEES IN THE DISTRICT OF COLUMBIA AS MAY BE NECESSARY TO MEET THE REQUIREMENTS OF THE WORK: PROVIDED, THAT CENSUS EMPLOYEES WHO MAY BE TRANSFERRED TO ANY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL-SERVICE STATUS BY REASON OF SUCH TRANSFER: * * *.

IT IS UNDERSTOOD THAT ALL THE EMPLOYEES WHO WERE DENIED THE AUTOMATIC INCREASE UNDER THE BROOKHART SALARY ACT, WERE, ON JULY 3, 1930, SERVING UNDER APPOINTMENTS AS TEMPORARY EMPLOYEES UNDER THIS STATUTORY PROVISION. IF SO, THERE IS NO CHOICE BUT TO CONCLUDE THAT SUCH EMPLOYEES WERE NOT ON THAT DATE SUBJECT TO THE PROVISIONS OF THE CLASSIFICATION ACT, AND, ACCORDINGLY, THAT THEIR POSITIONS WERE NOT IN GRADES AFFECTED BY THE BROOKHART SALARY ACT. IT IS TO BE NOTED, ALSO, AS SET FORTH IN THE ADMINISTRATIVE REPORT, SUPRA, THAT THE SALARIES OF THESE EMPLOYEES ARE NOT SUBJECT TO THE RESTRICTIONS OF THE AVERAGE PROVISION, AND THAT GREATER OPPORTUNITIES ARE AFFORDED THESE EMPLOYEES, THAN EMPLOYEES ON THE PERMANENT ROLL, FOR ADVANCEMENTS TO HIGHER SALARIED POSITIONS.

IN AN INFORMAL CONFERENCE IN THIS OFFICE A COMMITTEE FROM THE EMPLOYEES URGED THAT THEIR TRANSFER FROM THE PERMANENT TO THE TEMPORARY ROLL SHOULD BE CONSIDERED AS A DETAIL AND ENTITLED TO THE BENEFITS OF THE RULE ANNOUNCED IN DECISION OF THIS OFFICE DATED JULY 16, 1930, A-32589, 10 COMP. GEN. 20, AS FOLLOWS:

THE STATUS OF ALL EMPLOYEES ON DETAIL JUNE 30, 1928, AND/OR ON JULY 3, 1930, SHALL BE CONSIDERED AS IN THEIR REGULAR POSITIONS FROM WHICH DETAILED FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THIS AMENDATORY STATUTE.

THIS RULE HAD REFERENCE ONLY TO EMPLOYEES WHO WERE OTHERWISE WITHIN THE TERMS OF THE BROOKHART SALARY ACT AND WERE DETAILED FOR A PERIOD NOT TO EXCEED 120 DAYS FROM THEIR REGULAR POSITIONS TO POSITIONS IN OTHER GRADES, WHICH, ALSO, WERE SUBJECT TO THE TERMS OF THE BROOKHART SALARY ACT.

THAT THE CHANGE IN STATUS OF THE EMPLOYEES INVOLVED UNDER THE BUREAU OF THE CENSUS MAY NOT BE CONSIDERED AS A DETAIL IS EVIDENT FROM THE FACT THAT THE PROVISO IN THE CENSUS ACT QUOTED ABOVE REFERS THERETO AS A TRANSFER. PARAGRAPHS 3 AND 4 OF THE ADMINISTRATIVE REPORT, SUPRA, SHOW CLEARLY THAT SUCH TRANSFERS DID NOT HAVE THE ELEMENTS OF A DETAIL AS THAT TERM IS USUALLY UNDERSTOOD AND APPLIED. THE SITUATION IS THAT THE LAW PROVIDES FOR TRANSFERS AND NOT DETAILS, AND THE ADMINISTRATIVE PROCEDURE WAS SUCH AS TO EFFECT TRANSFERS AND NOT DETAILS.

THE EMPLOYEES HAVE REFERRED, ALSO, TO THAT PORTION OF THE DECISION OF THIS OFFICE DATED JULY 5, 1929, A-27801, HOLDING AS FOLLOWS:

* * * ACCORDINGLY, I HAVE TO ADVISE THAT EMPLOYEES TRANSFERRED TO THE TEMPORARY CENSUS FORCE, UPON TERMINATION OF THE NEED FOR THEIR SERVICES ON SUCH FORCE, MAY, IN THE ABSENCE OF ANY INTERVENING LEGISLATION WITH RESPECT THERETO, BE RESTORED TO THE PERMANENT POSITIONS FORMERLY HELD BY THEM, IF THEN VACANT, AND BE PAID AT THE SAME SALARY RATE RECEIVED IMMEDIATELY PRIOR TO THEIR TRANSFER TO THE TEMPORARY CENSUS FORCE. * * *

IT IS CONTENDED BY THE EMPLOYEES THAT THE PURPOSE AND INTENT OF THE PROVISO TO THE CENSUS ACT AS THUS CONSTRUED, IS TO SAVE PERMANENT EMPLOYEES WHO WERE TRANSFERRED TO THE TEMPORARY CENSUS FORCE ALL OF THE RIGHTS AND BENEFITS ENJOYED BY THOSE CENSUS EMPLOYEES WHO REMAIN ON THE PERMANENT ROLL, SINCE THE EMPLOYEES THEMSELVES HAD NO OPTION AS TO WHETHER THEY WOULD REMAIN ON THE PERMANENT ROLL OR BE TRANSFERRED TO THE TEMPORARY ROLL, AND THAT A FAILURE TO EQUALIZE THE RIGHTS OF THE TWO CLASSES OF EMPLOYEES UNDER THE BROOKHART SALARY ACT WILL WORK AN INJUSTICE TO THOSE EMPLOYEES WHO, BY ADMINISTRATIVE ACTION, WERE PLACED ON THE TEMPORARY ROLL. IT IS CONTENDED FURTHER THAT EMPLOYEES WHO REMAIN ON THE PERMANENT ROLL WILL BE ENABLED TO RETAIN THE STATUTORY INCREASE IN COMPENSATION, WHEREAS THOSE NOW ON THE TEMPORARY ROLL WILL BE REQUIRED TO RETURN TO THE PERMANENT ROLL WITHOUT THAT INCREASE.

THE MATTER IS ONE OF STATUTORY CONSTRUCTION AND NOT ONE THAT MAY BE DETERMINED BY COMPARING THE EQUITIES AS BETWEEN INDIVIDUAL EMPLOYEES OR CLASSES OF EMPLOYEES. THE PROVISO IN THE CENSUS STATUTE SAVES TO THE EMPLOYEES TRANSFERRED TO THE TEMPORARY FORCES THEIR "PERMANENT CIVIL SERVICE STATUS" AND UNDER THE DECISION LAST ABOVE QUOTED THERE IS SAVED ONLY THE RATE OF COMPENSATION ,RECEIVED IMMEDIATELY PRIOR TO THEIR TRANSFER TO THE TEMPORARY CENSUS FORCE" AND NOT ANY INCREASE THAT MAY BE AUTHORIZED TO OTHER EMPLOYEES BY INTERVENING LEGISLATION. BUT, HOWEVER THIS MAY BE, THERE IS NOT NOW INVOLVED THE QUESTION AS TO THE MAXIMUM RATE OF COMPENSATION WHICH MAY BE PAID THESE EMPLOYEES UPON THEIR RETURN TO THE PERMANENT ROLL. FOR REASONS HEREINBEFORE STATED IT MUST BE HELD THAT EMPLOYEES WHO WERE ON THE TEMPORARY CENSUS FORCE JULY 3, 1930, AND WHOSE POSITIONS WERE NOT THEN SUBJECT TO THE CLASSIFICATION ACT AS AMENDED, ARE NOT ENTITLED TO THE AUTOMATIC INCREASE IN COMPENSATION AUTHORIZED BY THE BROOKHART SALARY ACT TO CERTAIN CLASSES OF EMPLOYEES. THE 112 CLAIMS MUST BE AND ARE DISALLOWED.