A-64348, AUGUST 9, 1935, 15 COMP. GEN. 118

A-64348: Aug 9, 1935

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EVEN THOUGH IN EXCESS OF THE MAXIMUM SALARY RATES OF THE GRADES IN WHICH THE POSITIONS ARE ADMINISTRATIVELY ALLOCATED. 1935: THERE WAS RECEIVED YOUR LETTER OF JULY 31. AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTER OF MARCH 9. MAY NOW BE EFFECTED AS FUNDS WERE PROVIDED IN THE NAVAL ACT FOR THE FISCAL YEAR 1936 TO COVER THE COST OF SUCH CLASSIFICATION. THE DEPARTMENT PERSONNEL CLASSIFICATION BOARD HAS PRACTICALLY COMPLETED THE FINAL ALLOCATION OF ALL POSITIONS IN GROUP IV (B) IN ITS FIELD SERVICE AND THE DEPARTMENT IS ABOUT TO EFFECT THE FINAL CLASSIFICATION OF SUCH POSITIONS. IS LOWER THAN THE GRADES ASSIGNED SUCH POSITIONS UNDER THE TENTATIVE CLASSIFICATION WHICH WAS EFFECTED ON JANUARY 1.

A-64348, AUGUST 9, 1935, 15 COMP. GEN. 118

CLASSIFICATION OF CIVILIAN POSITIONS - FIELD SERVICE, NAVAL ESTABLISHMENT PURSUANT TO THE SAVING CLAUSE IN SECTION 1 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, THE ALLOCATION OF FIELD POSITIONS UNDER THE NAVAL ESTABLISHMENT MADE MANDATORY BY SECTION 2 OF THE ACT, DOES NOT AUTHORIZE OR REQUIRE REDUCTION OF THE COMPENSATION RATES OF EMPLOYEES IN THE SAME POSITIONS HELD JULY 2, 1930, IMMEDIATELY PRIOR TO THE ACT, EVEN THOUGH IN EXCESS OF THE MAXIMUM SALARY RATES OF THE GRADES IN WHICH THE POSITIONS ARE ADMINISTRATIVELY ALLOCATED. THE SAVING CLAUSE DOES NOT PROTECT SALARY RATES RECEIVED IN OTHER POSITIONS JULY 2, 1930.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 9, 1935:

THERE WAS RECEIVED YOUR LETTER OF JULY 31, 1935, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 9, 1932, REQUESTING AN ADMINISTRATIVE REPORT REGARDING THE ACTION TAKEN BY THE DEPARTMENT TO EFFECT THE FINAL CLASSIFICATION OF EMPLOYEES IN GROUP IV (B) IN THE FIELD SERVICE OF THE NAVY DEPARTMENT IN COMPLIANCE WITH SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, AND YOUR DECISION OF NOVEMBER 13, 1930 (10 COMP. GEN. 216), AND THE DEPARTMENT'S REPLY THERETO OF APRIL 8, 1932. THE FINAL CLASSIFICATION, WHICH HAS BEEN PROHIBITED BY STATUTES DURING THE FISCAL YEAR 1933 AND 1934 AND TO SOME EXTENT DURING THE FISCAL YEAR 1935, IN THE ABSENCE OF ANY PROHIBITORY STATUTE, MAY NOW BE EFFECTED AS FUNDS WERE PROVIDED IN THE NAVAL ACT FOR THE FISCAL YEAR 1936 TO

COVER THE COST OF SUCH CLASSIFICATION.

THE DEPARTMENT PERSONNEL CLASSIFICATION BOARD HAS PRACTICALLY COMPLETED THE FINAL ALLOCATION OF ALL POSITIONS IN GROUP IV (B) IN ITS FIELD SERVICE AND THE DEPARTMENT IS ABOUT TO EFFECT THE FINAL CLASSIFICATION OF SUCH POSITIONS.

THE FINAL CLASSIFICATION OF CERTAIN POSITIONS IN GROUP IV (B), AS DETERMINED BY THE DEPARTMENT PERSONNEL CLASSIFICATION BOARD, IS LOWER THAN THE GRADES ASSIGNED SUCH POSITIONS UNDER THE TENTATIVE CLASSIFICATION WHICH WAS EFFECTED ON JANUARY 1, 1931. THE TENTATIVE CLASSIFICATION WAS MADE ON THE BASIS OF THE COMPENSATION OF THE INCUMBENTS OF THE POSITION ON DECEMBER 31, 1930, IN ORDER TO TIMELY MEET THE REQUIREMENTS OF THE BROOKHART SALARY ACT AND THE DECISION OF THE COMPTROLLER GENERAL ABOVE REFERRED TO, AND THE DEPARTMENT DID NOT TAKE INTO ACCOUNT THE CHARACTER OF THE WORK UPON WHICH THE EMPLOYEES WERE ENGAGED. IN THE MAJORITY OF THE CASES THE PRESENT SALARY RATE OF THE INCUMBENT OF THE POSITION IS WITHIN OR BELOW THE SALARY RANGE OF THE GRADE IN WHICH HIS POSITION HAS BEEN FINALLY CLASSIFIED. THE COMPENSATION OF THESE EMPLOYEES WILL BE FIXED IN ACCORDANCE WITH RULES 2, 3 AND 4 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923 GOVERNING THE DETERMINATION OF THE INITIAL COMPENSATION OF EMPLOYEES UNDER CLASSIFICATION, WHICH WERE APPLIED TO THE CLASSIFICATION OF GROUP IV (B) EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT BY YOUR DECISION OF NOVEMBER 13, 1930.

THERE APPEARS TO BE NO ESTABLISHED RULE TO GOVERN THE FIXATION OF THE COMPENSATION OF EMPLOYEES IN THE FOLLOWING GROUPS WHERE THE PRESENT SALARY RATE OF THE EMPLOYEE FIXED UNDER THE TENTATIVE CLASSIFICATION IS HIGHER THAN THE MAXIMUM SALARY RATE OF THE FINAL CLASSIFICATION GRADE OF HIS POSITION AS DETERMINED BY THE DEPARTMENT PERSONNEL CLASSIFICATION BOARD:

GROUP 1.--- EMPLOYEES IN THE VARIOUS CLASSIFICATION SERVICES, GRADES AND CLASSES WHO WERE IN GROUP IV (B) ON DECEMBER 31, 1930, AND WHO ARE NOW OCCUPYING THE SAME POSITIONS AND PERFORMING THE SAME DUTIES.

GROUP 2.--- EMPLOYEES IN THE VARIOUS CLASSIFICATION SERVICES, GRADES AND CLASSES WHO WERE IN GROUP IV (B) ON DECEMBER 31, 1930, BUT ARE NOW OCCUPYING DIFFERENT POSITIONS AND PERFORMING DIFFERENT DUTIES.

GROUP 3.--- GUARDS, MASTERS AT ARMS, TELEPHONE OPERATORS AND TELEGRAPHERS WHO WERE IN GROUP IV (B) ON DECEMBER 31, 1930, AND WHO ARE NOW OCCUPYING THE SAME POSITION AND PERFORMING THE SAME DUTIES. THE PAY OF THESE EMPLOYEES UNDER TENTATIVE CLASSIFICATION WAS FIXED IN ACCORDANCE WITH THE DECISION OF THE COMPTROLLER GENERAL OF FEBRUARY 20, 1931 (A-35235), WHICH AUTHORIZED THE INCLUSION OF THE INCREASED RATES OF PAY FOR OVERTIME OR NIGHT WORK AND FOR WORK ON SUNDAYS AND HOLIDAYS, RECEIVED DURING THE YEAR ENDED JULY 2, 1930, IN THE COMPUTATION OF THE PER ANNUM EQUIVALENT OF THEIR PER DIEM COMPENSATION FOR CONVERSION TO PER ANNUM CLASSIFICATION RATES.

GROUP 4.--- EMPLOYEES IN THE VARIOUS CLASSIFICATION SERVICES, GRADES AND CLASSES WHO WERE ON DECEMBER 31, 1930, IN VARIOUS RATINGS CARRIED IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND THE MARINE CORPS UNDER GROUP I (LABORERS), GROUP II (HELPERS), AND GROUP III (MECHANICS), AND WHO ON THAT DATE WERE PERFORMING THE SAME CHARACTER OF WORK AS THAT PERFORMED BY EMPLOYEES IN GROUP IV (B) AND WERE TRANSFERRED TO GROUP IV (B) AND GIVEN A TENTATIVE CLASSIFICATION GRADE AND PAY. THESE EMPLOYEES ARE NOW OCCUPYING THE SAME POSITIONS AND PERFORMING THE SAME DUTIES AS THEY PERFORMED AT THE TIME OF THEIR TRANSFER TO GROUP IV (B).

GROUP 5.--- BLUEPRINTERS AND PHOTOSTAT OPERATORS WHO WERE ON DECEMBER 31, 1930, CARRIED IN THE RATING OF "BLUEPRINTER" UNDER GROUP III OF THE SCHEDULE OF WAGES AND WERE TRANSFERRED TO GROUP IV (B) AND GIVEN A TENTATIVE CLASSIFICATION GRADE AND PAY. THESE EMPLOYEES ARE NOW OCCUPYING THE SAME POSITIONS AND PERFORMING THE SAME DUTIES THAT THEY PERFORMED AT THE TIME OF THEIR TRANSFER TO GROUP IV (B).

YOUR DECISION IS REQUESTED AS TO WHETHER THE DEPARTMENT MAY FIX THE COMPENSATION OF THE ABOVE-MENTIONED EMPLOYEES UNDER FINAL CLASSIFICATION AT THEIR PRESENT SALARY RATES, WHICH WERE FIXED UNDER TENTATIVE CLASSIFICATION, IN VIEW OF THE FOLLOWING SAVING CLAUSE AGAINST REDUCTION IN COMPENSATION IN SECTION 1 OF THE BROOKHART SALARY ACT OF JULY 3, 1930:

"* * * PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO DECREASE THE PAY OF ANY PRESENT EMPLOYEE * * *.'

IN DECISION OF NOVEMBER 13, 1930, 10 COMP. GEN. 216, 220, WHEREIN WAS REQUIRED CLASSIFICATION OF EMPLOYEES IN GROUP IV (B) IN THE FIELD SERVICE OF THE NAVAL ESTABLISHMENT, UNDER THE TERMS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, IT WAS STATED:

PARTICULAR ATTENTION IS INVITED TO THE SAVING CLAUSE AGAINST REDUCTIONS IN COMPENSATION, APPEARING IN THE LAST PROVISO TO PARAGRAPH FROM SECTION 1 OF THE BROOKHART SALARY ACT ABOVE QUOTED. A SIMILAR SAVING CLAUSE APPEARED IN THE WELCH ACT WHICH WAS HELD TO BE APPLICABLE TO THE FIELD SERVICE. 8 COMP. GEN. 154; ID. 279. OF COURSE, THE SAVING CLAUSE IN THEBROOKHART SALARY ACT WOULD BE EFFECTIVE ONLY FROM ITS DATE, TO WIT, JULY 3, 1930.

IN THE FIRST OF THE CITED DECISIONS UNDER THE WELCH ACT, A QUESTION WAS STATED AND ANSWERED AS FOLLOWS:

3. DOES THE FOLLOWING PROVISION OF THE ACT APPLY TO EMPLOYEES IN THE FIELD SERVICE? "THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO DECREASE THE PAY OF ANY PERSON EMPLOYED, NOR DEPRIVE ANY EMPLOYEE ANY ADVANCEMENT AUTHORIZED BY LAW, AND FOR WHICH FUNDS ARE AVAILABLE.'

3. YES. WHILE THE SAVING CLAUSE APPEARS IN THE ADMINISTRATIVE PROVISION HAVING TO DO WITH THE AUTOMATIC INCREASES IN SALARY RATES APPLICABLE ONLY TO THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA, THE TERMS OF THE CLAUSE EXTEND IT TO THE OPERATION OF THE ENTIRE ACT. BUT IN THIS CONNECTION IT MUST BE UNDERSTOOD THAT SAID PROVISION DOES NOT PROHIBIT OR PRECLUDE ADMINISTRATIVE REDUCTIONS IN COMPENSATION FOR CAUSE; THAT IS, REDUCTIONS THAT LEGALLY COULD HAVE BEEN MADE IF THE WELCH ACT HAD NOT BEEN ENACTED.

IN THE SECOND OF THE CITED DECISIONS UNDER THE WELCH ACT, IT WAS HELD THAT ALTHOUGH THE QUESTION AS TO THE PROPER GRADE IN WHICH A FIELD POSITION SHOULD BE ALLOCATED WAS ENTIRELY FOR ADMINISTRATIVE CONSIDERATION, A REDUCTION IN AN EXISTING SALARY RATE OF AN EMPLOYEE WAS NOT AUTHORIZED OR REQUIRED.

IN DECISION OF FEBRUARY 20, 1931, 10 COMP. GEN. 379, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE SAVING CLAUSE IN THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, WAS OPERATIVE TO PREVENT A DECREASE ONLY IN THE REGULAR RATE OF PAY OF CIVILIAN EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WHOSE COMPENSATION WAS REQUIRED TO BE ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS, EXCLUSIVE OF ADDITIONAL PAY FOR OVERTIME, SUNDAY, OR HOLIDAY SERVICE, PERFORMED IN AN EMERGENCY OR BECAUSE OF UNUSUAL EXIGENCIES OF THE SERVICE, BUT AS TO EMPLOYEES, SUCH AS POLICEMEN, TELEPHONE OPERATORS, AND TELEGRAPH OPERATORS, WHO ARE REGULARLY AND CONTINUOUSLY REQUIRED TO BE AVAILABLE FOR DUTY OUTSIDE THE HOURS PRESCRIBED BY THE NAVY DEPARTMENT FOR THEIR REGULAR SERVICE, THE INCREASED RATES OF PAY FOR OVERTIME AND NIGHT SERVICE AND FOR SERVICE ON SUNDAYS AND HOLIDAYS RECEIVED DURING THE YEAR ENDED JULY 2, 1930, MAY PROPERLY BE INCLUDED IN COMPUTING THE REGULAR PAY OF EMPLOYEES TO WHICH THE SAVING CLAUSE IS APPLICABLE AND THEIR PER ANNUM SALARY SHOULD BE FIXED ACCORDINGLY.

EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WHOSE SALARY RATES HAVE BEEN ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS UNDER THE TERMS OF THE BROOKHART, SALARY ACT ARE NO LONGER ENTITLED TO ADDITIONAL COMPENSATION FOR OVERTIME, SUNDAY, OR HOLIDAY WORK.

THE QUOTED SAVING CLAUSE IN THE BROOKHART SALARY ACT HAS SINCE CONTINUED TO OPERATE TO PREVENT A REDUCTION IN COMPENSATION OF AN EMPLOYEE BELOW THAT RECEIVED JULY 2, 1930, AS LONG AS THE EMPLOYEE REMAINS IN THE SAME POSITION, THAT IS, PERFORMING SUBSTANTIALLY THE SAME DUTIES AND HAVING SUBSTANTIALLY THE SAME RESPONSIBILITIES, IF THE REDUCTION WOULD RESULT SOLELY BY REASON OF APPLYING THE PROVISIONS OF THE ACT.

IT IS UNDERSTOOD THAT IN ALL OF THE GROUPS MENTIONED IN YOUR LETTER, THE SALARY RATES RECEIVED DECEMBER 31, 1930, WERE THE SAME AS THOSE RECEIVED JULY 2, 1930, IMMEDIATELY PRIOR TO THE DATE OF THE BROOKHART SALARY ACT, THE PER DIEM RATES HAVING BEEN ADJUSTED TO EQUIVALENT PER ANNUM RATES EFFECTIVE JANUARY 1, 1931 (10 COMP. GEN. 216; ID. 379). ON THIS BASIS, THE FINAL ALLOCATION OF POSITIONS DOES NOT AUTHORIZE OR REQUIRE REDUCTION OF THE COMPENSATION RATES OF EMPLOYEES IN GROUPS 1 AND 3 STATED IN YOUR LETTER. THE COMPENSATION RATES OF EMPLOYEES IN GROUPS 2, 4, AND 5 OF YOUR LETTER ARE REQUIRED TO BE FIXED AT A RATE IN THE CLASSIFICATION ACT GRADE IN WHICH THEIR POSITIONS HAVE BEEN PROPERLY ALLOCATED, THE SAVING CLAUSE HAVING NO APPLICATION, IT BEING UNDERSTOOD THAT THE TRANSFER OF THE EMPLOYEES MENTIONED IN GROUPS 4 AND 5 OF YOUR LETTER FROM OTHER CLASSES OF POSITIONS TO POSITIONS FALLING WITHIN GROUP IV (B) OF THE SCHEDULE, WERE ACTUALLY MADE EFFECTIVE ON OR AFTER JULY 3, 1930, ALTHOUGH THE EMPLOYEES MAY HAVE BEEN ON ASSIGNMENT OR DETAIL OR OTHERWISE PERFORMING DUTIES OF POSITIONS IN GROUP IV (B) OF THE SCHEDULE. REFERRING TO THE EMPLOYEES IN GROUPS 4 AND 5 OF YOUR LETTER, THE SAVING CLAUSE WOULD NOT OPERATE TO SAVE THE SALARY PAID ON JULY 2, 1930, OR DECEMBER 31, 1930, UNDER THE SCHEDULE FIXED FOR GROUP I (LABORERS), GROUP II (HELPERS), AND GROUP III (MECHANICS AND BLUEPRINTERS).