A-55987, JUNE 21, 1934, 13 COMP. GEN. 456

A-55987: Jun 21, 1934

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PROVIDING THAT THE BASIS FOR ADJUSTMENT OF COMPENSATION RATES ON A 40-HOUR WEEK BASIS IS THE WAGE SCHEDULE IN EFFECT ON JUNE 1. THIS EXAMINATION WAS HELD UNDER THE AUSPICES OF THE LABOR BOARD. MY PROMOTION TO THE RATING OF 3D CLASS APPRENTICE WAS RECOMMENDED TO THE COMMANDANT AND APPROVED BY HIM. WHICH I UNDERSTOOD WAS ALSO DULY APPROVED BY THE COMMANDANT. RESULTED IN THAT I DID NOT RECEIVE THE RATE OF PAY TO WHICH I WAS ENTITLED UNDER THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT. IN VIEW OF THE FACT THAT I HAVE MET THE REQUIREMENTS FOR PROMOTIONS. THE PROMOTIONS HAVE BEEN APPROVED BY THE COMMANDANT. INSOFAR AS THE CHANGE IN CLASS IS CONCERNED. IT WILL BE NOTED THAT IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT.

A-55987, JUNE 21, 1934, 13 COMP. GEN. 456

COMPENSATION - 40-HOUR WEEK - PROMOTION OF NAVY-YARD APPRENTICES SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40- HOUR WEEK FOR CERTAIN CLASSES OF EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS, INCLUDING APPRENTICES, AND PROVIDING THAT THE BASIS FOR ADJUSTMENT OF COMPENSATION RATES ON A 40-HOUR WEEK BASIS IS THE WAGE SCHEDULE IN EFFECT ON JUNE 1, 1932, DOES NOT AUTHORIZE OR REQUIRE ADVANCEMENT FROM ONE SALARY RATE TO ANOTHER SALARY RATE, OR FROM ONE SALARY CLASS TO ANOTHER SALARY CLASS, WITHIN SUCH SCHEDULE OF WAGES PURSUANT TO AN ADMINISTRATIVE PRACTICE IN FORCE ON JUNE 1, 1932, IN CONTRAVENTION OF EXISTING STATUTORY PROHIBITION AGAINST ADMINISTRATIVE PROMOTIONS.

COMPTROLLER GENERAL MCCARL TO ROBERT B. EISINGER, CLAIMANT, JUNE 21, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 5, 1934, MAKING "CLAIM FOR THE RATE OF PAY ESTABLISHED BY THE NAVAL WAGE SCHEDULE FOR 2D CLASS APPRENTICES," THE LETTER BEING IN PERTINENT PART, AS FOLLOWS:

ON OCTOBER 7, 1931, I BEGAN THE EXAMINATION PROVIDED FOR IN THE REGULATIONS. THIS EXAMINATION WAS HELD UNDER THE AUSPICES OF THE LABOR BOARD; AND, AS I UNDERSTAND IT, MY PROMOTION TO THE RATING OF 3D CLASS APPRENTICE WAS RECOMMENDED TO THE COMMANDANT AND APPROVED BY HIM. AGAIN, IN JUNE OF 1933, I PASSED A SIMILAR EXAMINATION, WHICH, AS I UNDERSTAND IT, ENTITLED ME TO A PROMOTION TO THE RATING OF 2D CLASS APPRENTICE; AND WHICH I UNDERSTOOD WAS ALSO DULY APPROVED BY THE COMMANDANT. WHILE MY PROGRESS IN THE TRADE AND MY ACADEMIC STUDIES RESULTED IN MY PROMOTION TO THE 3D AND 2D CLASSES RESPECTIVELY, THE PROVISIONS OF THE ECONOMY LAW, PROHIBITING ADMINISTRATIVE PROMOTIONS IN PAY, RESULTED IN THAT I DID NOT RECEIVE THE RATE OF PAY TO WHICH I WAS ENTITLED UNDER THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT; BUT AS A 2D CLASS APPRENTICE, I AM STILL RECEIVING THE PAY OF A 4TH CLASS APPRENTICE.

SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MARCH 28, 1934, REQUIRES THAT THE COMPENSATION OF THE EMPLOYEES COVERED BY THAT SECTION SHALL BE REESTABLISHED AND MAINTAINED "IN ACCORDANCE WITH THE FULL TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932.' IF THE WAGE SCALE IN EFFECT ON JUNE 1, 1932, HAD BEEN CONTINUED UNDISTURBED BY SUBSEQUENT ECONOMY LEGISLATION PROHIBITING "ADMINISTRATIVE PROMOTIONS," MY PAY WOULD NOW BE 50 CENTS PER HOUR, IN VIEW OF THE FACT THAT I HAVE MET THE REQUIREMENTS FOR PROMOTIONS, AND THE PROMOTIONS HAVE BEEN APPROVED BY THE COMMANDANT, INSOFAR AS THE CHANGE IN CLASS IS CONCERNED.

I AM UNDER THE IMPRESSION THAT SECTION 23 OF THE ACT OF MARCH 28, 1934, WHICH REESTABLISHES AND MAINTAINS THE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932, CARRIES WITH IT THE RIGHT OF EMPLOYEES TO RECEIVE THE RATE OF PAY ACCORDING TO THEIR SCHEDULED RATING; AND ALSO RESTORES TO THE MANAGEMENT THE EXERCISE OF AUTHORITY WHICH THEY POSSESSED ON JUNE 1, 1932, IN MATTERS AFFECTING PROMOTIONS.

IT WILL BE NOTED THAT IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT, AS REVISED TO JULY 23, 1931, THAT ON PAGE 33, THE GENERAL HEADING "APPRENTICE" IS FOLLOWED BY FOUR SEPARATE CLASSIFICATIONS, DESIGNATED RESPECTIVELY, 1ST, 2ND, 3RD, AND 4TH CLASS. LIKEWISE, UNDER THE GENERAL HEADING "HELPER" THE SEVERAL TRADES IN WHICH THEY SERVE AS HELPER, ARE ARRANGED IN A COLUMN OPPOSITE WHICH IS THE RATE OF PAY SUCH CLASS OF HELPER IS TO RECEIVE.

I DESIRE, THEREFORE, TO MAKE CLAIM FOR THE RATE OF PAY ESTABLISHED BY THE NAVAL WAGE SCHEDULE FOR 2ND-CLASS APPRENTICES. WILL YOU BE KIND ENOUGH, THEREFORE, TO RENDER A DECISION UPON THE FACTS ABOVE SET FORTH, OR AS THEY MAY BE SUPPLEMENTED OR CORRECTED BY THE DEPARTMENT, IN ANSWER TO THE FOLLOWING INQUIRIES:

1.AM I ENTITLED TO THE SCHEDULED RATE OF PAY OF 50 CENTS PER HOUR, AS SUCH RATE HAS BEEN INCREASED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, AS A 2ND-CLASS APPRENTICE?

2. IF SO, DOES MY PROMOTION AS TO PAY BECOME EFFECTIVE ON MARCH 28, 1934?

3. IF NOT, WHAT IS MY STATUS AS TO PAY, UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, OR OTHER PROVISIONS OF LAW OR REGULATIONS?

SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, PROVIDES AS FOLLOWS:

NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1934: PROVIDED, THAT THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION, BUT NO SUCH APPOINTMENT SHALL INCREASE THE COMPENSATION OF SUCH EMPLOYEE TO A RATE IN EXCESS OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH EMPLOYEE IS APPOINTED, UNLESS SUCH MINIMUM RATE WOULD REQUIRE AN ACTUAL REDUCTION IN COMPENSATION: PROVIDED FURTHER, THAT THE RESTORATION OF EMPLOYEES TO THEIR FORMER GRADES OR THEIR ADVANCEMENT TO INTERMEDIATE GRADES FOLLOWING REDUCTIONS OF COMPENSATION FOR DISCIPLINARY REASONS SHALL NOT BE CONSTRUED TO BE ADMINISTRATIVE PROMOTIONS FOR THE PURPOSES OF THIS SECTION. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS, OF THE COAST GUARD.

THIS WAS A REENACTMENT, WITH AMENDMENT NOT HERE MATERIAL, OF SECTION 202 OF THE ECONOMY ACT OF JUNE 30, 1932.

IN DECISION OF NOVEMBER 28, 1932, A-45759, TO THE SECRETARY OF THE NAVY, IT WAS HELD THAT AN ADVANCE IN THE WAGES OF APPRENTICES AT NAVY YARDS WOULD CONSTITUTE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF, AND BE PROHIBITED BY, THE ECONOMY ACT, CITING 12 COMP. GEN. 5, WITH REFERENCE TO APPRENTICES AT THE GOVERNMENT PRINTING OFFICE.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES AS FOLLOWS:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

THIS STATUTORY PROVISION ESTABLISHES A 40-HOUR WEEK FOR CERTAIN CLASSES OF EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS, INCLUDING APPRENTICES WHOSE WAGES ARE FIXED BY WAGE BOARDS, PUBLISHED IN THE SCHEDULE OF WAGES CITED BY YOU, AND PROVIDES THAT THE BASIS FOR ADJUSTMENT OF COMPENSATION RATES FROM A 44- OR 48-HOUR WEEK TO A 40 HOUR WEEK IS THE WAGE SCHEDULE IN EFFECT ON JUNE 1, 1932, BUT DOES NOT AUTHORIZE OR REQUIRE ADVANCEMENT FROM ONE SALARY RATE TO ANOTHER SALARY RATE, OR FROM ONE SALARY CLASS TO ANOTHER SALARY CLASS, WITHIN SUCH SCHEDULE OF WAGES PURSUANT TO AN ADMINISTRATIVE PRACTICE IN FORCE ON JUNE 1, 1932, IN CONTRAVENTION OF THE EXISTING STATUTORY PROHIBITION AGAINST ADMINISTRATIVE PROMOTIONS.

ACCORDINGLY, BASED ON THE FACTS STATED IN YOUR LETTER, YOU ARE NOT ENTITLED, AS A MATTER OF STATUTORY RIGHT, TO AN ADVANCEMENT IN WAGES TO THE RATE FIXED FOR A SECOND-CLASS APPRENTICE, AND YOUR CLAIM MUST BE AND IS DENIED.

PURSUANT TO THE TERMS OF SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, SUCH ADVANCEMENT ON OR AFTER JULY 1, 1934, AND DURING THE FISCAL YEAR 1935, WOULD BE A MATTER SOLELY FOR ADMINISTRATIVE CONSIDERATION, LIMITED BY THE AVAILABILITY OF FUNDS FROM SAVINGS ON AN ANNUAL BASIS FROM PERSONNEL APPROPRIATIONS OR APPORTIONMENTS. SEE DECISION OF JUNE 9, 1934, TO THE SECRETARY OF THE NAVY, A-54807, 13 COMP. GEN. 419.