A-86750, JUNE 24, 1937, 16 COMP. GEN. 1107

A-86750: Jun 24, 1937

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LIMITING THE MANDATORY FIELD SERVICE COMPENSATION ADJUSTMENTS TO THOSE CIVILIAN POSITIONS THE COMPENSATION OF WHICH WAS ADJUSTED BY ACT OF DECEMBER 6. IS NOT A CONTINUING LIMITATION. NOTWITHSTANDING THE CREATION OF SAID BOARD WAS SUBSEQUENT TO THE 1924 ACT. IS TO THE EFFECT THAT SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3. MADE MANDATORY THE ADJUSTMENT OF THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6. WAS APPLICABLE TO THE NATIONAL LABOR RELATIONS BOARD. IN YOUR LETTER IT IS URGED THAT THE BROOKHART SALARY ACT IS LIMITED IN ITS APPLICATION ONLY TO THE DEPARTMENTS AND DIVISIONS AND BUREAUS THEREOF SPECIFICALLY MENTIONED IN THE ACT OF DECEMBER 6.

A-86750, JUNE 24, 1937, 16 COMP. GEN. 1107

CLASSIFICATION - FIELD SERVICE - AGENCIES CREATED SUBSEQUENT TO ACT OF DECEMBER 6, 1924 THE PROVISION IN SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, LIMITING THE MANDATORY FIELD SERVICE COMPENSATION ADJUSTMENTS TO THOSE CIVILIAN POSITIONS THE COMPENSATION OF WHICH WAS ADJUSTED BY ACT OF DECEMBER 6, 1924, 43 STAT. 704, IS NOT A CONTINUING LIMITATION, AND SALARY RATES OF FIELD PERSONNEL OF THE NATIONAL LABOR RELATIONS BOARD SHOULD BE FIXED IN ACCORDANCE WITH THE SCHEDULES OR RATES PRESCRIBED IN THE CLASSIFICATION ACT, AS AMENDED, NOTWITHSTANDING THE CREATION OF SAID BOARD WAS SUBSEQUENT TO THE 1924 ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, JUNE 24, 1937:

YOUR LETTER OF MAY 15, 1937, REQUESTS REVIEW OF THE EXCEPTIONS TAKEN BY THIS OFFICE TO PAYMENT MADE ON VOUCHER 940131, JANUARY 1936, ACCOUNT OF G. F. ALLEN, CHIEF DISBURSING OFFICER, SYMBOL 95-942, FOR SALARIES TO WALTER C. COOPER, REGIONAL ATTORNEY, P-3, AND VIRGIL C. FINCH, FIELD EXAMINER, CAF-5, IN AMOUNTS ABOVE THE MINIMUM RATE OF THE APPROPRIATE GRADE, CONTRARY TO SECTION 6, RULE 6, OF THE CLASSIFICATION ACT OF 1923.

THE NOTICE OF EXCEPTION, FORM 2084, RELATIVE TO THIS PAY ROLL, WHICH COVERS THE PERIOD JANUARY 1-15, 1936, IS TO THE EFFECT THAT SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, MADE MANDATORY THE ADJUSTMENT OF THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AND WAS APPLICABLE TO THE NATIONAL LABOR RELATIONS BOARD. IN YOUR LETTER IT IS URGED THAT THE BROOKHART SALARY ACT IS LIMITED IN ITS APPLICATION ONLY TO THE DEPARTMENTS AND DIVISIONS AND BUREAUS THEREOF SPECIFICALLY MENTIONED IN THE ACT OF DECEMBER 6, 1924, AND THE WELCH ACT OF MAY 28, 1928, 45 STAT. 776, AND HAS NO APPLICATION TO OTHER GOVERNMENT ESTABLISHMENTS NOT SO MENTIONED, SUCH AS THE NATIONAL LABOR RELATIONS BOARD.

THE NATIONAL LABOR RELATIONS BOARD WAS CREATED BY THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, 49 STAT. 449, 451, SECTION 4 (A) OF WHICH PROVIDES:

* * * THE BOARD SHALL APPOINT, WITHOUT REGARD FOR THE PROVISIONS OF THE CIVIL-SERVICE LAWS BUT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AN EXECUTIVE SECRETARY, AND SUCH ATTORNEYS, EXAMINERS, AND REGIONAL DIRECTORS, AND SHALL APPOINT SUCH OTHER EMPLOYEES WITH REGARD TO EXISTING LAWS APPLICABLE TO THE EMPLOYMENT AND COMPENSATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES, AS IT MAY FROM TIME TO TIME FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS DUTIES AND AS MAY FROM TIME TO TIME APPROPRIATED FOR BY CONGRESS. * * *

SECTION 2 OF THE BROOKHART SALARY ACT, ABOVE CITED, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924 (43 STAT. 604), TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE ACT OF MAY 28, 1928 (U.S.C., SUPP. 3, TITLE 5, SEC. 673), AND BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA: *

THE QUOTED STATUTORY PROVISION DIFFERS FROM THE CORRESPONDING PROVISION IN SECTION 3 OF THE WELCH ACT OF MAY 28, 1928, 45 STAT. 785, BY THE ADDITION OF THE WORDS "AND DIRECTED" IN THE SECOND LINE AND THE WORDS "BY THE ACT OF MAY 28, 1928 (U.S.C., SUPP. 3, TITLE 5, SEC. 673)," IN THE SIXTH LINE. WHILE ADJUSTMENTS IN THE SALARY RATES OF FIELD POSITIONS UNDER THE WELCH ACT WERE HELD TO BE DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE, THE EFFECT OF THE INDICTED CHANGES IN THE BROOKHART SALARY ACT WAS HELD TO MAKE THE SALARY ADJUSTMENTS MANDATORY. 10 COMP. GEN. 20.

IN THE DECISIONS APPLYING THE OPTIONAL PROVISIONS OF SECTION 3 OF THE WELCH ACT THIS OFFICE HELD THAT ADJUSTMENTS WERE NOT AUTHORIZED IN THE SALARY RATES OF CIVILIAN POSITIONS IN ANY FIELD SERVICE, THE COMPENSATION OF WHICH WAS NOT ADJUSTED, OR AUTHORIZED TO BE ADJUSTED BY THE ACT OF DECEMBER 6, 1924. 7 COMP. GEN. 816, 818, 828.

HOWEVER, IN APPLYING THE MANDATORY PROVISIONS OF SECTION 2 OF THE BROOKHART SALARY ACT, THE UNIFORM PRACTICE OF THIS OFFICE HAS BEEN TO ACCEPT THE ENACTMENT AS INTENDING TO EXTEND THE PRIMARY PRINCIPLE OF CLASSIFICATION--- EQUAL PAY FOR THE SAME OR SIMILAR WORK THROUGHOUT THE FEDERAL SERVICE--- TO THE CIVILIAN FIELD SERVICE GENERALLY.

IN VIEW OF THE CREATION OF NUMEROUS NEW FEDERAL AGENCIES SINCE THE PASSAGE OF THE BROOKHART SALARY ACT, NO SIGNIFICANCE IS NOW GIVEN TO THE WORDS OF SECTION 2 OF THE ACT PURPORTING TO LIMIT THE SALARY ADJUSTMENT OF FIELD POSITIONS TO THOSE THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924 (43 STAT. 704), AS IT WOULD APPEAR UNREASONABLE TO ASSUME IN THE ABSENCE OF A SPECIFIC PROVISION TO THAT EFFECT, THAT THE CONGRESS COULD HAVE INTENDED TO PERMIT EVERY NEW AGENCY TO FIX SALARY RATES WITHOUT REGARD TO THE GENERAL STANDARDS IT HAD ALREADY ESTABLISHED GENERALLY THROUGHOUT THE FEDERAL SERVICE.

A CAREFUL ANALYSIS OF THE ACT OF DECEMBER 6, 1924, SUPRA, ALSO JUSTIFIES THE ABOVE CONCLUSION. THE ORIGINAL CLASSIFICATION ACT OF 1923, EFFECTIVE JULY 1, 1924, REQUIRED A MAJOR ADJUSTMENT IN SALARY RATES OF POSITIONS IN THE DISTRICT OF COLUMBIA, ONLY. THE CONGRESS, RECOGNIZING THE INEQUALITIES THAT WOULD ARISE BETWEEN THE SALARY RATES IN THE DEPARTMENTAL SERVICE AND THOSE IN THE FIELD SERVICE, PROVIDED ADDITIONAL FUNDS BY THE ACT OF DECEMBER 6, 1924, TO ADJUST THE SALARY RATES OF FIELD POSITIONS TO CORRESPOND,"SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, FOR POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA.' THUS, THE CONGRESS, IN EFFECT, AUTHORIZED ADOPTION OF THE SAME STANDARDS FOR FIXING SALARY RATES IN THE FIELD SERVICE AS ALREADY HAD BEEN PRESCRIBED BY STATUTE FOR THE DEPARTMENTAL SERVICE. THIS AUTHORITY WAS CONTINUED IN ANNUAL APPROPRIATION ACTS AND, FINALLY, WAS MADE PERMANENT BY THE BROOKHART SALARY ACT, SUPRA. THE LISTING OF THE APPROPRIATIONS IN THE 1924 ACT BY DEPARTMENTS AND ESTABLISHMENTS MERELY FOLLOWED THE USUAL LEGISLATIVE PROCEDURE, AND IT IS DOUBTFUL THAT THE OMISSION OF AN APPROPRIATION FOR A PARTICULAR FEDERAL AGENCY SHOULD HAVE BEEN REGARDED AS HAVING THE EFFECT OF EXEMPTING THE FIELD PERSONNEL OF THAT FEDERAL AGENCY FROM THE REQUIREMENTS OF THE ACT FOR WHICH OTHER FUNDS MIGHT HAVE BEEN AVAILABLE, AS WAS HELD IN THE EARLIER DECISIONS UNDER THE WELCH ACT. CERTAINLY AN APPROPRIATION FOR AN AGENCY CREATED SINCE 1924 COULD NOT HAVE APPEARED IN THE ACT. THERE IS NO LONGER ANY REASONABLE JUSTIFICATION FOR LIMITING SUCH SALARY ADJUSTMENTS FOR THE FIELD POSITIONS TO THE PARTICULAR FEDERAL AGENCIES MENTIONED IN THE ACT OF 1924. ACCORDINGLY, THERE WAS ADOPTED THE GENERAL RULE THAT, IN THE ABSENCE OF STATUTORY EXEMPTION, THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES, BOTH IN THE DEPARTMENTAL AND FIELD SERVICES, ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE SCHEDULES OR RATES PRESCRIBED IN THE CLASSIFICATION ACT, AS AMENDED. SEE 14 COMP. GEN. 420; ID. 763; DECISION OF NOVEMBER 4, 1936, A-80878; DECISION OF OCTOBER 20, 1936, A 80867; AND DECISION OF OCTOBER 15, 1936, A-80021.

FURTHERMORE, AND ASIDE FROM ANY QUESTION AS TO THE CORRECTNESS OR APPLICABILITY OF THE GENERAL RULE ABOVE-STATED, THE PROVISIONS OF SECTION 4 (A) OF THE ACT OF JULY 5, 1935, CREATING THE NATIONAL LABOR RELATIONS BOARD, WOULD SEEM TO REQUIRE THAT THE SALARY RATES OF ITS FIELD PERSONNEL BE FIXED PURSUANT TO THE TERMS OF THE CLASSIFICATION ACT AS AMENDED, NO DISTINCTION HAVING BEEN MADE IN THE SAID ACT OF JULY 5, 1935, BETWEEN THE DEPARTMENTAL AND FIELD SERVICES. SINCE THE CLASSIFICATION ACT, AS AMENDED BY SECTION 2 OF THE BROOKHART SALARY ACT, NOW REQUIRES THE CLASSIFICATION OF POSITIONS IN THE FIELD SERVICE BY ADMINISTRATIVE ACTION, IT IS REASONABLE TO CONCLUDE THAT A STATUTE CREATING A NEW FEDERAL AGENCY HAVING A FIELD FORCE AND WHICH SPECIFICALLY PROVIDES THAT APPOINTMENTS SHALL BE "SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED" REQUIRES THE FIXING OF SALARY RATES OF BOTH THE DEPARTMENTAL AND FIELD FORCE PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED.

IT HAS BEEN HELD THAT ALL NEW APPOINTMENTS TO FIELD POSITIONS MUST BE AT THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ADMINISTRATIVELY PLACED OR ALLOCATED, AS REQUIRED BY RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT OF 1923. SEE 14 COMP. GEN. 183. HOWEVER, IN VIEW OF THE CIRCUMSTANCES AND THE BONA FIDE MISUNDERSTANDING IN THE MATTER, AND WITH THE UNDERSTANDING THAT THE BOARD WILL HEREAFTER COMPLY WITH THE REQUIREMENTS OF THE CLASSIFICATION ACT, AS AMENDED, CREDIT WILL NOW BE ALLOWED IN THE DISBURSING OFFICER'S ACCOUNT FOR THE PAYMENTS HERE IN QUESTION, IF OTHERWISE CORRECT.