A-33061, SEPTEMBER 29, 1930, 10 COMP. GEN. 142

A-33061: Sep 29, 1930

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ARE SUCH AS TO JUSTIFY AND REQUIRE THEIR DESIGNATION AS WITHIN THOSE CLASSES OF POSITIONS IN THE DEPARTMENTAL SERVICE EXPRESSLY EXCLUDED FROM THE TERMS OF THE CLASSIFICATION ACT. AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF SEPTEMBER 10. A COPY OF WHICH IS ATTACHED FOR YOUR CONVENIENCE. WHICH PROVIDES AS FOLLOWS: "THAT THE COMPENSATION SCHEDULES * * * SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO PERFORM OR ASSIST IN APPRENTICE. EXCEPT SUCH AS ARE UNDER THE DIRECTION AND CONTROL OF THE CUSTODIAN OF A PUBLIC BUILDING OR PERFORM WORK WHICH IS SUBORDINATE. WHICH ARE NOT SUBJECT TO THE TERMS OF THE CLASSIFICATION ACT. SINCE THERE ARE NO POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA.

A-33061, SEPTEMBER 29, 1930, 10 COMP. GEN. 142

CLASSIFICATION OF CIVILIAN EMPLOYEES - BROOKHART SALARY ACT - FIELD SERVICE TRADES OR CRAFTS IF THE DUTIES AND RESPONSIBILITIES OF POSITIONS IN A PARTICULAR FIELD SERVICE, FOR INSTANCE, THE MINT SERVICE, ARE SUCH AS TO JUSTIFY AND REQUIRE THEIR DESIGNATION AS WITHIN THOSE CLASSES OF POSITIONS IN THE DEPARTMENTAL SERVICE EXPRESSLY EXCLUDED FROM THE TERMS OF THE CLASSIFICATION ACT, I.E., IN A RECOGNIZED TRADE OR CRAFT EXCLUDED BY SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT, THERE EXISTS NO BASIS UNDER THE PROVISIONS OF THE CLASSIFICATION ACT AS AMENDED BY THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, FOR ADJUSTING THE SALARY RATES OF THOSE FIELD POSITIONS. THE SALARY RATES OF FIELD POSITIONS PAID ON A PER DIEM BASIS WITH RIGHTS TO OVERTIME PAY, ETC., PRIOR TO JULY 3, 1930, MAY BE ADJUSTED UNDER THE TERMS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, ONLY ON A PER ANNUM BASIS WITH NO RIGHT TO OVERTIME PAY, ETC., UNLESS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 29, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 19, 1930, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF SEPTEMBER 10, 1930, A COPY OF WHICH IS ATTACHED FOR YOUR CONVENIENCE, RELATIVE TO THE STATUS OF THE FIELD EMPLOYEES OF THE MINT AND ASSAY SERVICE IN RELATION TO THE BROOKHART ACT.

THE LETTER REFERS TO SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT, WHICH PROVIDES AS FOLLOWS:

"THAT THE COMPENSATION SCHEDULES * * * SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO PERFORM OR ASSIST IN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND SKILLED AND SEMISKILLED LABORERS, EXCEPT SUCH AS ARE UNDER THE DIRECTION AND CONTROL OF THE CUSTODIAN OF A PUBLIC BUILDING OR PERFORM WORK WHICH IS SUBORDINATE, INCIDENTAL OR PREPARATORY TO WORK OF A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER. * * *"

YOU FURTHER STATE THAT:

"IT WOULD SEEM THAT THE EMPLOYEES WHOSE DUTIES FALL WITHIN THE CLASSES MENTIONED IN THE ABOVE-QUOTED PROVISION FROM THE ORIGINAL CLASSIFICATION ACT COMPARE WITH SIMILAR POSITIONS UNDER THE BUREAU OF ENGRAVING AND PRINTING AT THE SEAT OF GOVERNMENT, WHICH ARE NOT SUBJECT TO THE TERMS OF THE CLASSIFICATION ACT.

"THEREFORE, SINCE THERE ARE NO POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, THE COMPENSATION OF WHICH IS FIXED ON A PER DIEM BASIS, OR THE DUTIES OF WHICH ARE THOSE OF A RECOGNIZED TRADE OR CRAFT, WITHIN THE SCHEDULES PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, THERE WOULD BE NO AUTHORITY UNDER SECTION 2 OF THE BROOKHART SALARY ACT TO ADJUST THE SALARY RATES OF SUCH EMPLOYEES AT THE UNITED STATES MINTS WHO ARE PAID ON A PER DIEM BASIS OR WHOSE DUTIES WOULD FALL WITHIN THE CLASSES OF POSITIONS EXCLUDED FROM THE TERMS OF THE CLASSIFICATION ACT BY SECTION 5 THEREOF.'

PRACTICALLY ALL WORK CONNECTED WITH COINAGE IS ESSENTIALLY HIGHLY SPECIALIZED. SINCE ALL SUPERVISORY OFFICERS OF THE MINT SERVICE ARE ENGAGED IN CONTROLLING WORK OF A SCIENTIFIC OR TECHNICAL CHARACTER, IT IS SUBMITTED BY THE BUREAU OF THE MINT THAT EMPLOYEES OF THE MINTS AND ASSAY OFFICES ARE COVERED BY THE EXCEPTIONS CITED IN SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT. THEY ARE PERFORMING "WORK WHICH IS SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OF A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER" AND WOULD, THEREFORE, NOT BE EXCLUDED FROM THE BENEFITS OF THE ACT.

WILL YOU BE KIND ENOUGH TO GIVE ME YOUR DECISION AS TO WHETHER OR NOT THE INTERPRETATION PLACED BY THE BUREAU OF THE MINT UPON SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT IS CORRECT?

IN THE CONSIDERATION OF THIS MATTER THERE MUST NOT BE OVERLOOKED THE FACT THAT THE CLASSIFICATION ACT IN ALL ITS PHASES HAS NOT YET BEEN EXTENDED TO THE FIELD SERVICE. IT HAS BEEN ONLY IN CONNECTION WITH THE REQUIREMENTS OF THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED THROUGH SUBSEQUENT FISCAL YEARS, AND MADE PERMANENT BY SECTION 3 OF THE WELCH ACT OF MAY 28, 1928, 45 STAT. 785, AND SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, THAT THE ADMINISTRATIVE OFFICES ARE AUTHORIZED AND DIRECTED TO ADJUST THE SALARY RATES OF CERTAIN FIELD SERVICE POSITIONS TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO RATES ESTABLISHED BY THE CLASSIFICATION ACT, AS AMENDED, FOR POSITIONS IN THE DEPARTMENTAL SERVICE OF THE DISTRICT OF COLUMBIA. IF THE DUTIES AND RESPONSIBILITIES OF POSITION IN A PARTICULAR FIELD SERVICE ARE SUCH AS TO JUSTIFY AND REQUIRE THEIR DESIGNATION AS WITHIN THOSE CLASSES OF POSITIONS IN THE DEPARTMENTAL SERVICE EXPRESSLY EXCLUDED FROM THE TERMS OF THE CLASSIFICATION ACT, IT IS OBVIOUS THAT THERE WOULD EXIST NO BASIS UNDER THE PRESENT CLASSIFICATION ACT FOR ADJUSTING COMPENSATION RATES OF THOSE FIELD POSITIONS. ON THIS BASIS IT WAS CONCLUDED IN THE PRIOR DECISION THAT THE SALARY RATES OF CERTAIN OF THE FIELD POSITIONS UNDER THE MINT SERVICE WERE NOT SUBJECT TO ADJUSTMENT UNDER SECTION 2 OF THE BROOKHART SALARY ACT, FOR THE REASON (1) THE SALARY RATES WERE FIXED ON A PER DIEM BASIS WITH OVERTIME PRIVILEGES, ETC., THERE BEING NO PER DIEM RATES OR OVERTIME PAY PRESCRIBED OR AUTHORIZED UNDER THE CLASSIFICATION ACT, AND (2) IT APPEARED THAT THE PER DIEM POSITIONS WERE THOSE IN A TRADE OR CRAFT WHICH WERE EXPRESSLY EXCLUDED FROM THE TERMS OF THE CLASSIFICATION ACT UNDER SECTION 5 THEREOF, QUOTED IN YOUR SUBMISSION.

THE BUREAU OF THE MINT ADVANCES THE PROPOSITIONS AS TO (2) THAT THESE FIELD POSITIONS ARE COVERED BY THE EXCEPTION TO SECTION 5 OF THE CLASSIFICATION ACT, AS BEING ASSISTANTS TO THE SUPERVISORY OFFICIALS OF THE MINT SERVICE WHO SHOULD BE CONSIDERED AS ENGAGED IN CONTROLLING WORK OF A SCIENTIFIC OR TECHNICAL CHARACTER. THIS WOULD APPEAR TO APPROACH THE MATTER FROM THE WRONG STARTING POINT.

THE DUTIES AND RESPONSIBILITIES OF A LARGE GROUP OF SUBORDINATES IN THE TRADES OR CRAFTS DO NOT NECESSARILY TAKE ON THE CHARACTER OF THE DUTIES AND RESPONSIBILITIES OF THE OFFICERS SUPERVISING THEM. RATHER IS THE CONVERSE TRUE. FOR INSTANCE, AS TO SUPERVISORY EMPLOYEES UNDER THE BUREAU OF ENGRAVING AND PRINTING, WASHINGTON, D.C., THIS OFFICE HELD IN DECISION OF APRIL 29, 1925, 4 COMP. GEN. 900, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

FOREMEN AND HEAD MECHANICS IN THE BUREAU OF ENGRAVING AND PRINTING WHO ARE ENGAGED EXCLUSIVELY IN THE SUPERVISION AND DIRECTION OF THE WORK OF THE VARIOUS GROUPS OF MECHANICS OR CRAFTSMEN AND HAVE NO CLERICAL, ADMINISTRATIVE, OR FISCAL DUTIES ARE WITHIN THE PROVISION OF THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1489, EXCLUDING FROM CLASSIFICATION REQUIREMENTS ANY EMPLOYEE ENGAGED AS "APPRENTICE, HELPER, OR JOURNEYMAN" IN A RECOGNIZED TRADE OR CRAFT.

ATTENTION IS INVITED TO THE CONTEXT OF THAT DECISION FOR THE REASONING ON WHICH THE CONCLUSION WAS REACHED. SEE ALSO 4 COMP. GEN. 959. THE EXCEPTION TO THE TERMS OF SECTION 5 OF THE CLASSIFICATION ACT OF EMPLOYEES WHO "PERFORM WORK WHICH IS SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OF A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER" HAS RELATION MORE PARTICULARLY TO THE FEW ASSISTANTS OF INDIVIDUAL PROFESSIONAL, SCIENTIFIC, OR TECHNICAL MEN, AND SHOULD NOT BE CONSIDERED AS RELATING TO AN ENTIRE FORCE OF SUBORDINATES IN THE TRADES OR CRAFTS UNDER A BUREAU OR OFFICE SIMPLY BECAUSE THE DUTIES AND RESPONSIBILITIES OF THE SUPERVISORY OFFICIALS MAY BE PROFESSIONAL, SCIENTIFIC, OR TECHNICAL IN CHARACTER. STATED IN THE PRIOR DECISION OF SEPTEMBER 10, 1930, THE EMPLOYEES UNDER THE MINT SERVICE ARE COMPARABLE TO EMPLOYEES UNDER THE BUREAU OF ENGRAVING AND PRINTING WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT. THE QUESTION AS TO WHETHER SUCH POSITIONS WILL BE SUBJECT TO CLASSIFICATION IF AND WHEN THE CONGRESS SHOULD PROVIDE HEREAFTER FOR THE CLASSIFICATION OF THE FIELD SERVICE GENERALLY WOULD DEPEND UPON THE TERMS OF THE ACT PROVIDING THEREFOR.

EVEN IF SUFFICIENT EVIDENCE WERE PRESENTED TO JUSTIFY BRINGING THESE MINT SERVICE EMPLOYEES WITHIN THE EXCEPTIONS OF SECTION 5 OF THE CLASSIFICATION ACT AND OTHERWISE WITHIN THE TERMS OF THAT STATUTE AS EXTENDED TO THE FIELD SERVICE, THEIR SALARY RATES WOULD BE REQUIRED TO BE ADJUSTED ON AN ANNUAL BASIS WITH NO OVERTIME PAY, ETC., UNLESS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE. SEE 4 COMP. GEN. 374.

THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE AND THE DECISION OF SEPTEMBER 10, 1930, MUST BE AND IS AFFIRMED.