B-29923, NOVEMBER 3, 1942, 22 COMP. GEN. 432

B-29923, NOVEMBER 3, 1942, 22 COMP. GEN. 432

COMPENSATION DIFFERENTIALS FOR POSITIONS IN ALASKA - ADMINISTRATIVE AUTHORITY TO FIX IN THE ABSENCE OF AN EXECUTIVE ORDER EXTENDING UNDER AUTHORITY OF THE ACT OF NOVEMBER 26, 1940, ALL THE PROVISIONS OF THE CLASSIFICATION ACT TO POSITIONS IN THE CUSTODIAL SERVICE UNDER THE POST OFFICE DEPARTMENT IN ALASKA, THE DEPARTMENT MAY ADMINISTRATIVELY ALLOCATE SUCH POSITIONS ONE OR MORE GRADES HIGHER THAN THE GRADES IN WHICH THE SAME OR SIMILAR POSITIONS ARE ALLOCATED IN THE CONTINENTAL UNITED STATES, PROVIDED THE SALARY RATE SO FIXED FOR A POSITION IN ALASKA DOES NOT EXCEED BY MORE THAN 25 PERCENT THE AUTHORIZED SALARY RATE FOR THE SAME OR SIMILAR POSITION IN THE STATES.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 3, 1942:

I HAVE YOUR LETTER OF OCTOBER 28, 1942, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISIONS OF DECEMBER 15, 1941 (B 22169), AND JANUARY 15, 1942, RELATIVE TO PLACING OR ALLOCATING ALL POSITIONS IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT IN GRADES WITH SALARY RANGES PRESCRIBED BY THE SCHEDULES APPEARING IN THE CLASSIFICATION ACT AS AMENDED, IN ORDER THAT THE EMPLOYEES MAY BE GIVEN FULL BENEFITS OF THE WITHIN-SALARY ADVANCEMENT PLAN AS PROVIDED BY THE ACT OF AUGUST 1, 1941. THE DEPARTMENT HAS PLACED ALL POSITIONS IN THE CUSTODIAL SERVICE WITHIN SPECIFIC GRADES WITH SALARY RANGES AS PRESCRIBED IN PARAGRAPH (A) OF SECTION 2 OF THE ACT OF AUGUST 1, 1942 ( PUBLIC LAW 694 - HR 6217).

AT THE TIME ALLOCATIONS WERE MADE OF POSITIONS IN GOVERNMENT-OWNED POST OFFICE BUILDINGS IN THE TERRITORY OF ALASKA, IT WAS LEARNED THAT IT WAS THE POLICY OF SOME DEPARTMENTS TO RECOGNIZE A DIFFERENTIAL DUE TO LIVING CONDITIONS IN ALASKA AND TO PLACE POSITIONS IN THE TERRITORY IN ONE GRADE HIGHER THAN SIMILAR POSITIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES. WE ACTED LIKEWISE IN ALLOCATING CUSTODIAL POSITIONS IN ALASKA. FOR INSTANCE, CUSTODIAL LABORERS ORDINARILY FALLING IN GRADE CPC-2, SALARY RANGE $1,200 TO $1,500 PER ANNUM, WERE PLACED IN GRADE CPC-3, SALARY RANGE $1,320 TO $1,620 PER ANNUM.

OWING TO CONDITIONS NOW OBTAINING IN ALASKA DUE TO THE WAR EMERGENCY, POSTMASTERS HAVE INFORMED US THAT IT IS IMPOSSIBLE TO PROCURE HELP AT EXISTING SALARY RANGES. AGENCIES OF THE GOVERNMENT ACTIVELY ENGAGED IN THE PROSECUTION OF THE WAR HAVE SPACE IN POST OFFICE BUILDINGS IN ALASKA AND YOU CAN READILY REALIZE THAT IT IS NECESSARY FOR THE SUCCESSFUL OPERATION OF THESE SERVICES, AND THE POSTAL SERVICE, FOR US TO MAINTAIN THESE BUILDINGS IN AN EFFICIENT OPERATING CONDITION AT ALL TIMES. TO DO THIS A FULL COMPLEMENT OF PERSONNEL IS ESSENTIAL.

IN THE ACT OF NOVEMBER 26, 1940 ( PUBLIC 880 - 76TH CONGRESS), THERE IS A PROVISION WHICH AUTHORIZES THE PRESIDENT OF THE UNITED STATES TO ESTABLISH CERTAIN SALARY DIFFERENTIALS UNDER CERTAIN CONDITIONS. IT IS OUR UNDERSTANDING THAT THE CIVIL SERVICE COMMISSION HAS BEEN UNABLE TO ACT UNDER THIS PROVISION UP TO THIS TIME.

IN VIEW OF THE CONDITIONS RECITED, IT WILL BE APPRECIATED IF YOU WILL ADVISE WHETHER THERE WOULD BE ANY OBJECTION TO ALLOCATING POSITIONS IN THE CUSTODIAL SERVICE IN ALASKA TWO GRADES HIGHER THAN SIMILAR POSITIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, WITH THE UNDERSTANDING THAT THE MINIMUM OF THE SALARY RANGE OF SAID HIGHER GRADE WOULD NOT EXCEED A DIFFERENTIAL OF 25 PERCENT.

IN VIEW OF THE URGENCY OF THE SITUATION, A VERY PROMPT REPLY WOULD BE APPRECIATED.

IN THE AUDIT OF ACCOUNTS INVOLVING EMPLOYEES ON DUTY IN ALASKA, THIS OFFICE HAS FOR MANY YEARS RECOGNIZED THE PRACTICE OF VARIOUS ADMINISTRATIVE OFFICES TO FIX A SALARY DIFFERENTIAL FOR CIVILIAN EMPLOYEES ON DUTY IN ALASKA, SO LONG AS THE AMOUNT OF THE DIFFERENTIAL DID NOT EXCEED BY MORE THAN 25 PERCENT THE SALARY RATE THAT WOULD BE AUTHORIZED FOR THE SAME OR SIMILAR POSITION IN THE STATES. THE PRACTICE IN SOME ADMINISTRATIVE OFFICES HAS BEEN TO FIX THE DIFFERENTIAL ON A PERCENTAGE BASIS NOT TO EXCEED 25 PERCENT, AND THE PRACTICE IN OTHER ADMINISTRATIVE OFFICES HAS BEEN TO ALLOCATE POSITIONS IN ALASKA ONE OR MORE GRADES HIGHER THAN IN THE STATES--- THAT BEING TANTAMOUNT TO A DIFFERENTIAL--- THE SALARY RATE PAID IN THE HIGHER GRADE IN ALASKA NOT EXCEEDING BY MORE THAN 25 PERCENT THE SALARY RATE THAT WOULD BE PAID FOR THE SAME POSITION IN THE STATES. SEE, FOR INSTANCE, MY DECISION DATED OCTOBER 27, 1941, 21 COMP. GEN. 369 - 377 (QUESTION AND ANSWER 8), TO THE SECRETARY OF THE INTERIOR, WHEREIN THE ADMINISTRATIVE PRACTICE OF ALLOCATING POSITIONS IN ALASKA ONE GRADE HIGHER THAN IN THE STATES WAS SPECIFICALLY RECOGNIZED. THE PRACTICE HAS BEEN VIEWED AS NOT OBJECTIONABLE BECAUSE UNDER EXISTING LAW SALARY RATES IN THE FIELD SERVICE, INCLUDING ALASKA (WITH ONE EXCEPTION HEREAFTER REFERRED TO), IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY. SEE SECTION 2 OF THE ACT OF JULY 3, 1930, 46 STAT. 1005. COMPARE 21 COMP. GEN. 205, WHEREIN WAS CONSIDERED SECTION 4 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561 (SECTION 81, TITLE 2, OF THE CANAL ZONE CODE, AS AMENDED BY THE ACT OF JULY 9, 1937, 50 STAT. 487), AUTHORIZING THE FIXING OF A PERCENTAGE DIFFERENTIAL IN THE CANAL ZONE BUT WITH THE LIMITATION THAT SUCH DIFFERENTIAL "SHALL IN NO INSTANCE EXCEED BY MORE THAN 25 PER CENTUM THE SALARY OR COMPENSATION PAID FOR THE SAME OR SIMILAR SERVICE TO PERSONS EMPLOYED BY THE GOVERNMENT IN THE CONTINENTAL UNITED STATES.'

TITLE II OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1212, TO WHICH YOU REFER, AUTHORIZES BUT DOES NOT REQUIRE, THE PRESIDENT, UNDER CERTAIN CONDITIONS, TO EXTEND THE CLASSIFICATION ACT TO ANY OFFICES OR POSITIONS IN THE FIELD SERVICE. THE PROVISION IN SAID STATUTE RELATIVE TO THE FIXING OF A DIFFERENTIAL IS MERELY INCIDENTAL TO--- AND APPLICABLE ONLY IN THE EVENT OF--- THE EXTENSION OF THE CLASSIFICATION ACT IN ALL ITS PHASES TO THE FIELD SERVICE, INCLUDING THE FINAL JURISDICTION AND AUTHORITY OF THE CIVIL SERVICE COMMISSION, RATHER THAN OF THE ADMINISTRATIVE OFFICE CONCERNED, TO APPROVE THE ALLOCATIONS OF POSITIONS. SEE 21 COMP. GEN. 947. THAT STATUTE IS NOT SELF-EXECUTING; AND IT IN NO-WISE OPERATES TO DISTURB THE LONG RECOGNIZED ADMINISTRATIVE PRACTICE OF FIXING A DIFFERENTIAL FOR POSITIONS IN ALASKA WHEN SUCH POSITIONS ARE ADMINISTRATIVELY ALLOCATED--- AS DISTINGUISHED FROM ALLOCATIONS DIRECTLY BY THE CIVIL SERVICE COMMISSION PURSUANT TO AN EXECUTIVE ORDER UNDER THE AUTHORITY OF SAID STATUTE. IT APPEARS THAT ONLY ONE EXECUTIVE ORDER HAS BEEN ISSUED UNDER SAID STATUTE, TO WIT, NO. 8955, DATED DECEMBER 1, 1941, AND IT DOES NOT APPLY TO POSITIONS UNDER THE POST OFFICE DEPARTMENT BECAUSE, IN SCOPE, IT IS SPECIFICALLY LIMITED TO CERTAIN CIVILIAN POSITIONS UNDER THE WAR AND NAVY DEPARTMENTS LOCATED NOT ONLY IN ALASKA BUT AT A NUMBER OF OTHER OUTLYING STATIONS OF THE UNITED STATES.

WITH REGARD TO THE STATUTE OF NOVEMBER 26, 1940, SUPRA, IT WAS STATED IN MY DECISION OF MARCH 24, 1941, 20 COMP. GEN. 552, 554, AS FOLLOWS:

THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1211, AUTHORIZES THE PRESIDENT BY EXECUTIVE ORDER TO EXEMPT FROM CLASSIFICATION "OFFICES OR POSITIONS OUTSIDE THE STATES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA FILED BY NATIVES OF TERRITORIES OR POSSESSIONS OF THE UNITED STATES (INCLUDING THE PHILIPPINE ISLANDS) OF FOREIGN NATIONALS.' WHILE THIS STATUTE IS NOT SELF-EXECUTING, IT IS IN THE NATURE OF A RECOGNITION BY THE CONGRESS THAT NATIVE EMPLOYEES ARE NOT REQUIRED TO BE CLASSIFIED. COMPARE THE DECISION OF FEBRUARY 25, 1941, B-14968, 20 COMP. GEN. 484, HOLDING THAT THE SALARY RATES OF PART-TIME EMPLOYEES IN THE FIELD SERVICE MUST CONTINUE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT UNDER EXISTING RULES, UNLESS AND UNTIL THE PRESIDENT BY EXECUTIVE ORDER EXEMPTS SUCH POSITIONS UNDER THE AUTHORITY VESTED IN HIM BY SAID ACT OF NOVEMBER 26, 1940. OTHER WORDS, THE CONGRESS BY SAID STATUTE VESTS IN THE PRESIDENT THE AUTHORITY TO MAKE EXEMPTIONS FROM CLASSIFICATION OF CERTAIN CLASSES OF POSITIONS IN THE FIELD SERVICE BUT UNTIL THE PRESIDENT HAS ACTED UNDER SUCH AUTHORITY THE EXISTING RULES, EITHER REQUIRING CLASSIFICATION OR EXEMPTING FROM CLASSIFICATION, MUST REMAIN IN FULL FORCE AND EFFECT.

YOU ARE ADVISED, THEREFORE, THAT UNLESS AND UNTIL THE PRESIDENT BY EXECUTIVE ORDER EXTENDS ALL THE PROVISIONS OF THE CLASSIFICATION ACT TO POSITIONS IN THE CUSTODIAL SERVICE UNDER THE POST OFFICE DEPARTMENT IN ALASKA, THIS OFFICE IS NOT REQUIRED TO OBJECT TO ADMINISTRATIVE ACTION BY THE POST OFFICE DEPARTMENT IN ALLOCATING SUCH POSITIONS IN ALASKA ONE OR MORE GRADES HIGHER THAN THE GRADES IN WHICH THE SAME OR SIMILAR POSITIONS ARE ALLOCATED IN THE CONTINENTAL UNITED STATES, PROVIDED THE SALARY RATE FIXED FOR THE POSITION IN THE HIGHER GRADE IN ALASKA DOES NOT EXCEED BY MORE THAN 25 PERCENT THE SALARY RATE AUTHORIZED TO BE FIXED FOR THE SAME OR SIMILAR POSITION IN THE STATES.