B-137270, OCTOBER 13, 1958, 38 COMP. GEN. 297

B-137270: Oct 13, 1958

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WHICH WAS SUBSEQUENTLY AMENDED TO REMOVE THE ENTRANCE GRADE OF GS-5 AND TO REDUCE THE ENTRANCE AND EXPERIENCE REQUIREMENTS FOR GRADES GS-5 AND GS 7 IN PROFESSIONAL. THE SPECIFIC QUESTIONS PRESENTED ARE SET FORTH AS FOLLOWS: 1. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE. IF AT THE TIME OF APPOINTMENT THE SAME TYPE OF POSITION IS GENERALLY BEING FILLED BY PERSONS WITH NO EXPERIENCE BEYOND COLLEGE GRADUATION OR ITS EQUIVALENT? 3. OR IS THERE A LIMIT TO THE LEVEL OF THE POSITIONS TO WHICH IT MAY BE APPLIED? SECTION 203 (B) (2) (B) IS AS FOLLOWS: SEC. 203. * * * (B) IN THE PERFORMANCE OF ITS FUNCTIONS THE ADMINISTRATION IS AUTHORIZED- (2) TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT SUCH FUNCTIONS.

B-137270, OCTOBER 13, 1958, 38 COMP. GEN. 297

CIVILIAN PERSONNEL - COMPENSATION - RATES - SCIENTIFIC AND TECHNICAL PERSONNEL - SPACE AGENCY AUTHORITY THE AUTHORITY IN SECTION 203 (B) (2) (B) OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958, 42 U.S.C. 2473, FOR THE ESTABLISHMENT OF THE ENTRANCE GRADE FOR SCIENTIFIC AND ENGINEERING PERSONNEL WITHOUT PREVIOUS FEDERAL SERVICE AT A LEVEL UP TO TWO GRADES HIGHER THAN THAT PROVIDED FOR SUCH PERSONNEL UNDER THE CLASSIFICATION ACT OF 1949, WHICH WAS SUBSEQUENTLY AMENDED TO REMOVE THE ENTRANCE GRADE OF GS-5 AND TO REDUCE THE ENTRANCE AND EXPERIENCE REQUIREMENTS FOR GRADES GS-5 AND GS 7 IN PROFESSIONAL, SCIENTIFIC AND TECHNICAL POSITIONS DOES NOT PERMIT THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TO HIRE INEXPERIENCED SCIENTISTS AND ENGINEERS AT ANY GRADE HIGHER THAN GRADE GS-7 OR TO PAY THEM AT A RATE HIGHER THAN THE BOTTOM STEP IN SUCH GRADE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 13, 1958:

ON SEPTEMBER 2, 1958, YOUR ACTING CHAIRMAN REQUESTED OUR DECISION UPON SEVERAL QUESTIONS INVOLVING THE CONSTRUCTION OF SECTION 203 (B) (2) (B) OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958, 72 STAT. 429, 42 U.S.C. 2473. THE SPECIFIC QUESTIONS PRESENTED ARE SET FORTH AS FOLLOWS:

1. DOES SECTION 203 (B) (2) (B) OF THE SPACE ACT AUTHORIZE THE ADMINISTRATOR, UPON MAKING THE REQUIRED FINDING, TO FIX THE SALARY OF A GS -5 POSITION AT A RATE EQUAL TO GS-7?

2. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, COULD THE ADMINISTRATOR LIKEWISE PAY A GS-9 SALARY TO PERSONS APPOINTED TO GS-7 POSITIONS, IF AT THE TIME OF APPOINTMENT THE SAME TYPE OF POSITION IS GENERALLY BEING FILLED BY PERSONS WITH NO EXPERIENCE BEYOND COLLEGE GRADUATION OR ITS EQUIVALENT?

3. DOES SECTION 203 (B) (2) (B) PERMIT NASA TO PAY TWO GRADES ABOVE THE RATE SPECIFIED IN THE CLASSIFICATION ACT AT EVERY LEVEL, OR IS THERE A LIMIT TO THE LEVEL OF THE POSITIONS TO WHICH IT MAY BE APPLIED?

SECTION 203 (B) (2) (B) IS AS FOLLOWS:

SEC. 203. * * *

(B) IN THE PERFORMANCE OF ITS FUNCTIONS THE ADMINISTRATION IS AUTHORIZED-

(2) TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT SUCH FUNCTIONS. SUCH OFFICERS AND EMPLOYEES SHALL BE APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND THEIR COMPENSATION FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949, EXCEPT THAT * * * (B) TO THE EXTENT THE ADMINISTRATOR DEEMS SUCH ACTION NECESSARY TO RECRUIT SPECIALLY QUALIFIED SCIENTIFIC AND ENGINEERING TALENT, HE MAY ESTABLISH THE ENTRANCE GRADE FOR SCIENTIFIC AND ENGINEERING PERSONNEL WITHOUT PREVIOUS SERVICE IN THE FEDERAL GOVERNMENT AT A LEVEL UP TO TWO GRADES HIGHER THAN THE GRADE PROVIDED FOR SUCH PERSONNEL UNDER THE GENERAL SCHEDULE ESTABLISHED BY THE CLASSIFICATION ACT OF 1949, AND FIX THEIR COMPENSATION ACCORDINGLY;

THE SPECIAL PROVISION FOR RECRUITMENT OF SCIENTISTS AND ENGINEERS APPEARING IN THE QUOTED SECTION WAS INCORPORATED IN H.R. 12575 ON THE FLOOR OF THE HOUSE. SEE PP. 8913-8915 OF THE CONGRESSIONAL RECORD--- HOUSE FOR JUNE 2, 1958. AT THE TIME OF THE INCORPORATION OF SUCH PROVISION IN H.R. 12575, SECTION 602 OF THE CLASSIFICATION ACT AS AMENDED, 5 U.S.C. 1112, REQUIRED TRAINING EQUIVALENT TO THAT REQUIRED FOR GRADUATION FROM A COLLEGE OR UNIVERSITY OF RECOGNIZED STANDING AS A CONDITION OF ELIGIBILITY FOR APPOINTMENT TO A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL POSITION IN GRADE GS-5. SIMILARLY SECTION 602 REQUIRED "PREVIOUS EXPERIENCE" AS WELL AS TRAINING EQUIVALENT TO THAT FOR A COLLEGE GRADUATION AS A CONDITION OF ELIGIBILITY FOR APPOINTMENT TO A SCIENTIFIC OR TECHNICAL POSITION IN GRADE GS-7.

HOWEVER, ON JUNE 4, JUST 2 DAYS AFTER THE HOUSE AMENDED SECTION 203 (B) (2) OF H.R. 12575 TO GRANT SPECIAL AUTHORITY TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TO ESTABLISH THE ENTRANCE GRADE FOR SCIENTIFIC AND ENGINEERING PERSONNEL AT A LEVEL TWO GRADES ABOVE THE ENTRANCE GRADE PROVIDED UNDER THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT, THE SENATE AGREED TO CERTAIN AMENDMENTS TO S. 734-- SUBSEQUENTLY ENACTED AS THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 203--- WHICH REMOVED THE REQUIREMENT CONTAINED IN SECTION 602 OF THE CLASSIFICATION ACT FOR THE EQUIVALENT OF A COLLEGE EDUCATION FOR APPOINTMENT TO GRADE GS-5 OR GS-7, AS WELL AS THE NECESSITY FOR "PREVIOUS EXPERIENCE" IN THE CASE OF AN APPOINTMENT TO GRADE GS-7. SEE P. 9088, CONGRESSIONAL RECORD--- SENATE, JUNE 4, 1958. THE SENATE AMENDMENTS WERE SUBSEQUENTLY ENACTED AS SECTION 13 OF THE FEDERAL EMPLOYEES WERE SUBSEQUENTLY ENACTED AS SECTION 13 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 214. SECTION 13 OF THAT ACT ALSO PROVIDED THAT THE CIVIL SERVICE COMMISSION SHALL ISSUE NECESSARY STANDARDS AND REGULATIONS FOR THE ADMINISTRATION OF THE SECTION.

HENCE, AT THE TIME OF ENACTMENT OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958 THE CLASSIFICATION ACT NO LONGER ENUMERATED ANY SPECIFIC ENTRANCE GRADE FOR SCIENTIFIC AND TECHNICAL PERSONNEL BUT LEFT THE MATTER OF ESTABLISHING QUALIFICATIONS OF SUCH ENTRANCE GRADE TO THE CIVIL SERVICE COMMISSION. WHILE, THEREFORE, IT IS NOT POSSIBLE TO FIX AN ENTRANCE GRADE TWO GRADES ABOVE THE ENTRANCE GRADE PRESENTLY SPECIFIED IN THE CLASSIFICATION ACT--- NO SUCH GRADE BEING PRESENTLY SPECIFIED IN THAT ACT- -- THE LEGISLATIVE HISTORY OF SECTION 203 (B) (2) (B) CLEARLY IS TO THE EFFECT THAT CONGRESS INTENDED ONLY TO CONFER AUTHORITY UPON THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TO RECRUIT SCIENTIFIC AND ENGINEERING PERSONNEL HAVING NO EXPERIENCE AT GRADE GS-7 RATHER THAN AT GRADE GS-5. IN THAT CONNECTION THE FOLLOWING REMARKS APPEAR ON P. 8914 OF THE CONGRESSIONAL RECORD--- HOUSE FOR JUNE 2, 1958:

MR. HOFFMAN. MR. CHAIRMAN, I SHOULD LIKE TO ASK THE GENTLEMAN WHO OFFERED THE AMENDMENT JUST WHAT THE EFFECT OF IT WILL BE; THAT IS, TO WHAT EXTENT WILL THE PAY BE INCREASED?

MR. SISK. THE EFFECT OF THE AMENDMENT, OF COURSE, WOULD BE TO PERMIT THESE NEW PEOPLE, THESE GRADUATES RIGHT OUT OF COLLEGES AND UNIVERSITIES, TO GO TO WORK AT 2 GRADES ABOVE THE SALARY AT WHICH THEY COULD BE HIRED AT THE PRESENT TIME WHICH, AS I UNDERSTAND IT, WOULD BE SOMETHING LIKE SIX OR SEVEN HUNDRED DOLLARS A YEAR MORE THAN THEY WOULD RECEIVE AT PRESENT.

MR. HOFFMAN. WITHOUT THIS AMENDMENT?

MR. SISK. THAT IS RIGHT. AT THE PRESENT TIME, A GRADUATE WITH A BACHELOR OF SCIENCE DEGREE MUST BE HIRED AS A GS-5. THIS AMENDMENT WOULD MAKE IT POSSIBLE FOR A MAN WITH A BACHELOR OF SCIENCE DEGREE TO BE HIRED AT A STARTING SALARY OF GS-7.

THE FACT THAT THE CONGRESS THROUGH ENACTMENT OF SECTION 13 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 REDUCED THE STATUTORY ENTRANCE REQUIREMENTS FOR APPOINTMENTS TO GRADES GS-5 AND GS-7 IN PROFESSIONAL, SCIENTIFIC, AND TECHNICAL POSITIONS DOES NOT AUTHORIZE THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TO HIRE SCIENTIFIC AND ENGINEERING PERSONNEL AT AS MUCH AS FOUR GRADES ABOVE THE STARTING SALARY OF GS-5--- A POINT YOUR ACTING CHAIRMAN SAYS IS BEING CONTENDED. SECTION 203 (B) (2) (B) MERELY AUTHORIZES THE ADMINISTRATION IN ITS SOLE DISCRETION TO RECRUIT INEXPERIENCED SCIENTISTS AND ENGINEERS AT GRADE GS-7 RATHER THAN GRADE GS- 5. SECTION 13 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT, WHILE APPROACHING THE PROBLEM DIFFERENTLY, APPARENTLY IS DESIGNED TO ACCOMPLISH A SIMILAR PURPOSE AND WOULD AUTHORIZE THE CIVIL SERVICE COMMISSION, AS THE NEEDS OF THE GOVERNMENT REQUIRE, TO VARY THE QUALIFICATIONS NECESSARY FOR APPOINTMENTS TO TECHNICAL, ENGINEERING, AND SCIENTIFIC POSITIONS UNDER THE GENERAL SCHEDULE. AS YOUR ACTING CHAIRMAN'S LETTER STATES, GS-5 STILL REMAINS AN ENTRANCE GRADE FOR SCIENTIFIC AND ENGINEERING PERSONNEL AND WE CONCLUDE THAT THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION MAY NOT RECRUIT ENGINEERS AND SCIENTISTS WITHOUT EXPERIENCE IN ANY GRADE HIGHER THAN GS-7.

THEREFORE, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE AND THE SECOND AND THIRD QUESTIONS ARE ANSWERED IN THE NEGATIVE. IN CONNECTION WITH THE THIRD QUESTION WE DIRECT YOUR ATTENTION SPECIFICALLY TO THE DISCUSSION ON THE FLOOR OF THE HOUSE APPEARING ON P. 8914 OF THE CONGRESSIONAL RECORD FOR JUNE 2, 1958, AS FOLLOWS:

MR. HOFFMAN. I GET THAT, ALL RIGHT. DOES THAT ALSO APPLY TO SOMEONE OUTSIDE, FOR INSTANCE, SCIENTISTS WHO HAVE HAD EXPERIENCE?

MR. MCCORMACK. WE HAVE PROVIDED IN THIS BILL ALSO THAT 10 TOP POSITIONS ARE PROVIDED, FROM $19,000 TO $21,000. WE ALSO PROVIDE ON THE TOP LEVEL FOR 250 TOP SCIENTISTS TO RECEIVE CONSIDERATION THAT WILL INDUCE THEM TO REMAIN IN THE AGENCY. SO WE HAVE TAKEN CARE OF THE TOP, WHICH IS IMPORTANT, BUT WE ALSO TAKE CARE OF THE BOTTOM.

IT IS CLEAR FROM THIS DISCUSSION WHEN CONSIDERED WITH THAT PREVIOUSLY QUOTED THAT THE AUTHORITY PROVIDED UNDER SECTION 203 (B) (2) (B) APPLIES ONLY TO PERSONS HAVING NO EXPERIENCE WHO ARE RECRUITED FOR SERVICE IN THE "BOTTOM" SCIENTIFIC AND ENGINEERING GRADE.