A-64247, AUGUST 6, 1935, 15 COMP. GEN. 102

A-64247: Aug 6, 1935

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1935: THERE WAS RECEIVED YOUR LETTER OF JULY 27. AS FOLLOWS: IN SECTION 6 OF THE CLASSIFICATION ACT OF 1923 IT IS PROVIDED: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.'. THIS BOARD REQUESTS A RULING AS TO THE EXTENT TO WHICH THE PROVISION OF LAW JUST QUOTED IS APPLICABLE TO THE TRANSFER OF AN EMPLOYEE FROM ANOTHER AGENCY OR DEPARTMENT OF THE GOVERNMENT TO THE NATIONAL LABOR RELATIONS BOARD ESTABLISHED UNDER THE RECENT NATIONAL LABOR RELATIONS ACT. OR WOULD THE EMPLOYEE HAVE TO BE STARTED AT AN ANNUAL SALARY OF $4. IS APPLICABLE TO THIS SITUATION. THE BOARD WILL BE SEVERELY HANDICAPPED IN BUILDING UP AN ADEQUATE PERSONNEL. YOUR ATTENTION IS INVITED TO THE FACT THAT $5.

A-64247, AUGUST 6, 1935, 15 COMP. GEN. 102

CLASSIFICATION OF CIVILIAN EMPLOYEES - TRANSFERS FROM EMERGENCY TO REGULAR POSITIONS THE TRANSFER OR REAPPOINTMENT OF AN EMPLOYEE FROM AN EMERGENCY POSITION CLASSIFIED UNDER EXECUTIVE ORDER TO A REGULAR POSITION CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, NEED NOT BE REGARDED AS A NEW APPOINTMENT REQUIRING PAYMENT OF THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED, BUT THERE MAY BE PAID A SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT NOT IN EXCESS OF THE RATE RECEIVED UNDER THE EXECUTIVE ORDER.

COMPTROLLER GENERAL MCCARL TO THE NATIONAL LABOR RELATIONS BOARD, AUGUST 6, 1935:

THERE WAS RECEIVED YOUR LETTER OF JULY 27, 1935, AS FOLLOWS:

IN SECTION 6 OF THE CLASSIFICATION ACT OF 1923 IT IS PROVIDED: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' THIS BOARD REQUESTS A RULING AS TO THE EXTENT TO WHICH THE PROVISION OF LAW JUST QUOTED IS APPLICABLE TO THE TRANSFER OF AN EMPLOYEE FROM ANOTHER AGENCY OR DEPARTMENT OF THE GOVERNMENT TO THE NATIONAL LABOR RELATIONS BOARD ESTABLISHED UNDER THE RECENT NATIONAL LABOR RELATIONS ACT. SPECIFICALLY, TAKE THE CASE OF AN EMPLOYEE NOW RECEIVING $6,000.00 IN THE NATIONAL RECOVERY ADMINISTRATION OR IN THE AGRICULTURAL ADJUSTMENT ADMINISTRATION. IF THE BOARD, OBSERVING THE REQUIREMENTS OF EXECUTIVE ORDER NO. 7070 DATED JUNE 12, 1935, SHOULD DESIRE TO APPOINT SUCH AN EMPLOYEE TO A POSITION IN GRADE 5 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE, WOULD IT BE POSSIBLE TO PAY SUCH A MAN, TRANSFERRED WITHOUT A BREAK IN HIS GOVERNMENT EMPLOYMENT, THE HIGHEST ANNUAL RATE PROVIDED IN THAT GRADE, NAMELY $5,200.00, OR WOULD THE EMPLOYEE HAVE TO BE STARTED AT AN ANNUAL SALARY OF $4,600.00? IF THE PROVISION OF SECTION 6 OF THE CLASSIFICATION ACT, ABOVE QUOTED, IS APPLICABLE TO THIS SITUATION, THE BOARD WILL BE SEVERELY HANDICAPPED IN BUILDING UP AN ADEQUATE PERSONNEL.

YOUR ATTENTION IS INVITED TO THE FACT THAT $5,400 PER ANNUM, NOT $5,200 PER ANNUM, IS THE HIGHEST SALARY RATE IN GRADE 5 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED BY THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1003.

SECTION 4 (A) OF THE ACT OF JULY 5, 1935, 49 STAT. 451, REQUIRES THE SALARY RATES OF ALL EMPLOYEES OF THE NATIONAL LABOR RELATIONS BOARD, THEREBY ESTABLISHED, TO BE FIXED PURSUANT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

THE RULE GOVERNING THE FIXING OF SALARY RATES UPON TRANSFER BETWEEN DIFFERENT DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT, FROM A HIGHER TO A LOWER GRADE AS PRESCRIBED BY THE CLASSIFICATION ACT, WAS FIRST STATED IN DECISION OF JUNE 26, 1924, 3 COMP. GEN. 1001, 1006, BASED ON THE PROVISIONS OF SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, 42 STAT. 1491, THE RULE BEING STATED AS FOLLOWS:

* * * THEREFORE, AN EMPLOYEE TRANSFERRED FROM ONE GRADE TO A LOWER GRADE CAN BE TRANSFERRED TO POSITION IN WHICH THERE IS A VACANCY IN THE GRADE TO WHICH TRANSFERRED AT A SALARY NOT IN EXCESS OF THE SALARY OF THE POSITION FROM WHICH TRANSFERRED, ASSUMING, OF COURSE, THAT THE TRANSFER IS AUTHORIZED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT AND THE CIVIL SERVICE ACTS, AND THE REGULATIONS MADE IN PURSUANCE THEREOF.

THIS RULE WAS RESTATED IN 4 COMP. GEN. 151; ID. 495, AND THE PRINCIPLE THEREOF--- THAT UPON ENTRANCE INTO A LOWER GRADE BY TRANSFER,REAPPOINTMENT, OR REALLOCATION FROM A HIGHER GRADE, THERE WAS REQUIRED ONLY SUCH REDUCTION IN COMPENSATION AS NECESSARY TO BRING THE SALARY RATE WITHIN THE RANGE OF THE LOWER GRADE--- HAS BEEN APPLIED IN 8 COMP. GEN. 400, AND 9 ID. 193. HENCE, TRANSFERS, REAPPOINTMENTS, OR REALLOCATIONS FROM A HIGHER TO A LOWER GRADE IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT HAVE NOT BEEN REGARDED AS "NEW APPOINTMENTS" WITHIN THE MEANING OF RULE 6, SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT.

IN THE EARLIER DECISIONS THE AVERAGE PROVISION WAS REGARDED AS A FACTOR, BUT UNDER CURRENT APPROPRIATION ACTS THE AVERAGE PROVISION MAY NOW BE DISREGARDED DUE TO THE PROVISION THEREOF---

* * * THAT THIS RESTRICTION SHALL NOT APPLY * * * (3) TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHO IS TRANSFERRED FROM ONE POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT GRADE, IN THE SAME OR DIFFERENT BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT; * * *. (QUOTING FROM THE ACT OF FEBRUARY 2, 1935, PUBLIC, NO. 2, MAKING APPROPRIATIONS FOR THE INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT FOR THE FISCAL YEAR 1936.)

THE RULE STATED HAS HERETOFORE BEEN APPLIED ONLY WHERE THE TWO POSITIONS HELD BY THE PARTICULAR EMPLOYEE, BOTH BEFORE AND AFTER THE TRANSFER, REAPPOINTMENT, OR REALLOCATION, WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, BUT AS EXECUTIVE ORDERS NOS. 6440, DATED NOVEMBER 18, 1933, 6746, DATED JUNE 21, 1934, AND 7092, DATED JULY 3, 1935, REQUIRED THE CLASSIFICATION OF EMERGENCY POSITIONS BY ADMINISTRATIVE ACTION ON SUBSTANTIALLY THE SAME BASIS AS PRESCRIBED BY THE CLASSIFICATION ACT AND AS REQUIRED BY THE ADMINISTRATIVE OFFICES WITH RESPECT TO THE FIELD SERVICE, AND AS THE SALARY SCHEDULE IN THE EXECUTIVE ORDERS PRESCRIBES MAXIMUM SALARY RATES CORRESPONDING MOSTLY WITH THE MINIMUM SALARY RATES OF CORRESPONDING CLASSIFICATION ACT GRADES, AND IN NO CASE IN EXCESS OF THE MAXIMUM SALARY RATE OF A LOWER CLASSIFICATION ACT GRADE, IT IS CONCLUDED THAT THE SAME RULE MAY BE APPLIED FOR FIXING INITIAL SALARY RATES OF EMPLOYEES UPON TRANSFER OR REAPPOINTMENT FROM AN EMERGENCY POSITION, THE GRADE AND SALARY RATE OF WHICH WERE FIXED UNDER THE EXECUTIVE ORDERS, TO A REGULAR POSITION IN A LOWER GRADE IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT, THE GRADE AND SALARY RATE OF WHICH ARE SUBJECT TO THE CLASSIFICATION ACT OF 1923.

ACCORDINGLY, IN THE ILLUSTRATION STATED, YOU WOULD BE AUTHORIZED TO FIX AN INITIAL SALARY AT ANY RATE IN GRADE PS-5, INCLUDING THE MAXIMUM OF $5,400 PER ANNUM, BEARING IN MIND, OF COURSE, THAT SUBSEQUENT ADJUSTMENTS IN THE SAME GRADE BY PROMOTION OF OTHER EMPLOYEES WOULD BE SUBJECT TO THE AVERAGE PROVISION.