B-13961, DECEMBER 19, 1940, 20 COMP. GEN. 330

B-13961: Dec 19, 1940

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CONTEMPLATES THAT ALL OF THE APPROPRIATIONS UNDER ANY SINGLE TITLE OF THE ACT ARE TO BE CONSIDERED AS ONE UNIT IN APPLYING THIS RESTRICTION. 1940: I HAVE YOUR LETTER OF DECEMBER 11. AS FOLLOWS: WE HAVE BEEN REQUESTED BY THE NATIONAL RAILROAD ADJUSTMENT BOARD AT CHICAGO TO SUBMIT THE FOLLOWING TO YOU: "SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT. IF THE EFFECT OF SUCH APPOINTMENT IS TO INCREASE THE NUMBER OF NON CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES TO WHICH THE STATE IS ENTITLED. THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER. THE ADJUSTMENT BOARD AND THE MEDIATION BOARD HAVE ALWAYS MADE APPOINTMENTS TO THEIR CLERICAL STAFF INDEPENDENTLY OF EACH OTHER.

B-13961, DECEMBER 19, 1940, 20 COMP. GEN. 330

APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS - APPORTIONMENT RESTRICTIONS SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, WHICH PROVIDES FOR APPORTIONMENT BY STATES OF APPOINTMENTS TO NON-CIVIL SERVICE POSITIONS UNDER APPROPRIATIONS IN SAID ACT, CONTEMPLATES THAT ALL OF THE APPROPRIATIONS UNDER ANY SINGLE TITLE OF THE ACT ARE TO BE CONSIDERED AS ONE UNIT IN APPLYING THIS RESTRICTION, AND SINCE THE " NATIONAL RAILROAD ADJUSTMENT BOARD" APPEARS AS A SUBHEADING OF THE TITLE " NATIONAL MEDIATION BOARD," THESE AGENCIES MUST BE CONSIDERED AS ONE UNIT IN THIS CONNECTION.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, NATIONAL MEDIATION BOARD, DECEMBER 19, 1940:

I HAVE YOUR LETTER OF DECEMBER 11, 1940, AS FOLLOWS:

WE HAVE BEEN REQUESTED BY THE NATIONAL RAILROAD ADJUSTMENT BOARD AT CHICAGO TO SUBMIT THE FOLLOWING TO YOU:

"SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, PROVIDES THAT NONE OF THE FUNDS APPROPRIATED IN THIS ACT SHALL BE USED TO PAY THE SALARY OF ANY PERSON APPOINTED TO A NON-CIVIL-SERVICE POSITION, UNDER THE APPROPRIATIONS IN THE RESPECTIVE TITLES IN THIS ACT, IF THE EFFECT OF SUCH APPOINTMENT IS TO INCREASE THE NUMBER OF NON CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES TO WHICH THE STATE IS ENTITLED, UNDER THE APPROPRIATION IN THE RESPECTIVE TITLES OF THIS ACT, ON THE BASIS OF POPULATION: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY POSITION, THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO POSITIONS IN THE CIVILIAN CONSERVATION CORPS OUTSIDE THE DISTRICT OF LUMBIA.' ( ITALICS SUPPLIED.)

THE RAILWAY LABOR ACT, KNOWN AS PUBLIC, NO. 442-73D CONGRESS, SECTION 3 (T), PROVIDES:

"THE ADJUSTMENT BOARD MAY, SUBJECT TO THE APPROVAL OF THE MEDIATION BOARD, EMPLOY AND FIX THE COMPENSATION OF SUCH ASSISTANCE AS IT DEEMS NECESSARY IN CARRYING ON ITS PROCEEDINGS. THE COMPENSATION OF SUCH EMPLOYEES SHALL BE PAID BY THE MEDIATION BOARD.'

THE ADJUSTMENT BOARD AND THE MEDIATION BOARD HAVE ALWAYS MADE APPOINTMENTS TO THEIR CLERICAL STAFF INDEPENDENTLY OF EACH OTHER, WITH THE EXCEPTION THAT THE MEDIATION BOARD APPROVES APPOINTMENTS TO THE STAFF OF THE ADJUSTMENT BOARD IN ACCORDANCE WITH SECTION 3 (T) OF THE RAILWAY LABOR ACT.

WE UNDERSTAND THE INTENT AND PURPOSE OF THE PROVISIONS CONTAINED IN SECTION 702 TO BE AN EQUITABLE DISTRIBUTION AMONG THE STATES OF THE NUMBER OF EMPLOYEES TO BE APPOINTED BY THE VARIOUS GOVERNMENTAL AGENCIES. THIS OBJECTIVE WOULD BE FULFILLED BY PERMITTING EACH INDEPENDENT AGENCY TO MAINTAIN A SEPARATE CONTROL OR REGISTER FOR ITS GUIDANCE IN MAKING APPOINTMENTS. TO REQUIRE TWO AGENCIES LOCATED IN WIDELY SEPARATED AREAS TO MAINTAIN A COMMON REGISTER AND HAVE THEIR RESPECTIVE FIELD OF SELECTION DIMINISHED BY THE APPOINTING AUTHORITY OF EACH OTHER IS NOT A PRACTICAL ARRANGEMENT AND ENFORCES ON EACH AGENCY A DOUBLE RESTRICTION, ONE BY THE STATE QUOTA AND THE OTHER BY THE NUMBER OF INDEPENDENT BOARDS INVOLVED. FOR EXAMPLE, WITH THE SMALL NUMBER OF NON-CIVIL-SERVICE POSITIONS OF THE TWO BOARDS IN QUESTION, IF ONE OF THEM MAKES AN APPOINTMENT FROM THE STATE OF IOWA, WHICH STATE WOULD BE LIMITED TO A QUOTA OF ONE IF THE TWO BOARDS ARE UNITED, THE OTHER IS THEREBY FORBIDDEN AN APPOINTMENT FROM THAT STATE.

IT IS REQUESTED THAT YOU ADVISE US AT YOUR EARLY CONVENIENCE WHETHER THE NATIONAL MEDIATION BOARD AND THE NATIONAL RAILROAD ADJUSTMENT BOARD CAN BE CONSIDERED SEPARATE IN CONSIDERING AND DETERMINING THE NUMBER OF NON-CIVIL -SERVICE EMPLOYEES OF EACH BOARD TO WHICH EACH STATE IS ENTITLED, IN ACCORDANCE WITH PUBLIC, NO. 665-76TH CONGRESS, SECTION 702.

THE " LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941," APPROVED JUNE 26, 1940, 54 STAT. 574, CARRIES SEVEN SEPARATE AND DISTINCT TITLES, THE FIRST SIX OF WHICH PROVIDE APPROPRIATIONS FOR VARIOUS AGENCIES. TITLE VII COVERS " GENERAL PROVISIONS" UNDER WHICH SECTION 702, QUOTED IN YOUR LETTER, APPEARS. TITLE V, THE ONE HERE UNDER CONSIDERATION, IS ENTITLED," NATIONAL MEDIATION RD," UNDER WHICH APPEARS THE SUBHEADING " NATIONAL RAILROAD ADJUSTMENT BOARD.' OTHER TITLES OF THE ACT COVERING DIFFERENT GOVERNMENTAL AGENCIES CONTAIN THEREUNDER A NUMBER OF SUBHEADINGS UNDER WHICH APPROPRIATIONS APPEAR FOR SEPARATE AND DISTINCT BUREAUS THEREOF. FOR INSTANCE, UNDER TITLE II--- FEDERAL SECURITY AGENCY--- ARE EIGHT SUBHEADINGS.

IN EXPLANATION OF THE UNDERLINED PORTION OF SECTION 702 OF THE APPROPRIATION ACT QUOTED IN YOUR LETTER, THE COMMITTEE OF THE HOUSE OF REPRESENTATIVES IN REPORT NO. 1822, ON H.R. 9007, WHICH BILL BECAME THE STATUTE HERE INVOLVED, STATED:

* * * BY THE TERMS OF THE LANGUAGE OF THE LIMITATION, THE APPORTIONMENT WILL BE MADE SEPARATELY UNDER EACH TITLE OF THE BILL AND THE NET RESULT WILL BE MORE EQUITABLY TO DISTRIBUTE AMONG RESIDENTS OF ALL THE STATES THE BENEFITS OF POSITIONS EXEMPT FROM THE CIVIL-SERVICE LAWS.

THERE WOULD APPEAR TO BE LITTLE OR NO ROOM FOR DOUBT THAT THE UNIT FOR APPLYING THE RESTRICTION ON EMPLOYMENT OF NON-CIVIL-SERVICE EMPLOYEES WAS INTENDED TO BE ALL OF THE APPROPRIATIONS "IN THE RESPECTIVE TITLES OF THIS ACT," NOT THE APPROPRIATIONS PROVIDED UNDER EACH OF THE SUBHEADINGS APPEARING UNDER THE RESPECTIVE TITLES. IF THE CONGRESS HAD INTENDED EACH BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT TO BE THE UNIT FOR APPLYING THE APPORTIONMENT RESTRICTIONS OF THE STATUTE IT IS TO BE PRESUMED IT WOULD HAVE STATED SO IN EXPRESS TERMS SUCH AS, FOR INSTANCE, THE LANGUAGE WHICH APPEARS IN THE SO-CALLED "AVERAGE PROVISION" APPEARING IN THE SAME AND OTHER APPROPRIATION ACTS. THE APPARENT INTENTION WAS TO PLACE THE RESPONSIBILITY AND CONTROL FOR OPERATION OF THE STATUTE IN THE APPOINTING POWER, THE HEAD OF THE AGENCY, RATHER THAN IN THE RESPECTIVE BUREAU HEADS. THE APPOINTING POWER FOR PERSONNEL OF THE NATIONAL RAILROAD ADJUSTMENT BOARD HAS BEEN VESTED BY LAW IN THE NATIONAL MEDIATION BOARD.

ACCORDINGLY THE QUESTION CONTAINED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.