B-31780, JANUARY 26, 1943, 22 COMP. GEN. 708

B-31780: Jan 26, 1943

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1943: I HAVE YOUR LETTER OF JANUARY 9. THE PRIOR APPROVAL OF THE NATIONAL WAR LABOR BOARD OR THE COMMISSIONER OF INTERNAL REVENUE IS REQUIRED IN THE CASE OF CERTAIN INCREASES IN SALARIES OR WAGES. THAT NO PRIOR APPROVAL OF THE BOARD OR THE COMMISSIONER IS REQUIRED IN THE CASE OF AN INCREASE "MADE IN ACCORDANCE WITH TERMS OF A * * * SALARY RATE SCHEDULE AND AS A RESULT OF: (A) INDIVIDUAL PROMOTIONS OR RECLASSIFICATIONS. (C) OPERATION OF AN ESTABLISHED PLAN OF SALARY INCREASES BASED ON LENGTH OF SERVICE * * * " IN THE CASE OF CERTAIN EMPLOYEES OF THIS COMMISSION IT IS DESIRED TO CHANGE THEIR CLASSIFICATION UNDER CIVIL SERVICE RULES AND REGULATIONS. EXAMPLE IS THAT OF THE POSITION OF CONSULTING ENGINEER.

B-31780, JANUARY 26, 1943, 22 COMP. GEN. 708

CLASSIFICATION CHANGES AND WITHIN-GRADE PROMOTIONS AS AFFECTED BY WAGE AND SALARY STABILIZATION ORDERS NEITHER EXECUTIVE ORDER NO. 9250, ISSUED OCTOBER 3, 1942, WITH RESPECT TO WAGE AND SALARY STABILIZATION PURSUANT TO THE INFLATION PREVENTION PROVISIONS OF THE ACT OF OCTOBER 2, 1942, NOR THE REGULATIONS OF THE ECONOMIC STABILIZATION DIRECTOR, ISSUED OCTOBER 27, 1942, PURSUANT TO SAID EXECUTIVE ORDER, REQUIRING, INSOFAR AS HERE PERTINENT, THE PRIOR APPROVAL THEREIN SPECIFIED OF CERTAIN INCREASES IN SALARIES OR WAGES, AFFECT IN ANY MANNER SALARY INCREASES RESULTING FROM CHANGES IN CLASSIFICATION AND WITHIN-GRADE PROMOTIONS MADE PURSUANT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, JANUARY 26, 1943:

I HAVE YOUR LETTER OF JANUARY 9, 1943, AS FOLLOWS:

TITLE II, SECTION 5, OF EXECUTIVE ORDER 9250, DATED OCTOBER 3, 1942 (7 F.R. 7671), PROVIDES: ,NO INCREASES IN SALARIES NOW IN EXCESS OF $5,000 PER YEAR (EXCEPT IN INSTANCES IN WHICH AN INDIVIDUAL HAS BEEN ASSIGNED TO MORE DIFFICULT OR RESPONSIBLE WORK), SHALL BE GRANTED UNTIL OTHERWISE DETERMINED BY THE DIRECTOR" (REFERRING TO THE ECONOMIC STABILIZATION DIRECTOR).

THE REGULATIONS OF OCTOBER 27, 1942 (7 F.R. 8748) DELEGATE CERTAIN AUTHORITY OVER WAGES AND SALARIES TO THE NATIONAL WAR LABOR BOARD AND TO THE COMMISSIONER OF INTERNAL REVENUE, AND THE PRIOR APPROVAL OF THE NATIONAL WAR LABOR BOARD OR THE COMMISSIONER OF INTERNAL REVENUE IS REQUIRED IN THE CASE OF CERTAIN INCREASES IN SALARIES OR WAGES. HOWEVER, SECTION 4001.6 OF THESE REGULATIONS PROVIDES, IN PART, THAT NO PRIOR APPROVAL OF THE BOARD OR THE COMMISSIONER IS REQUIRED IN THE CASE OF AN INCREASE "MADE IN ACCORDANCE WITH TERMS OF A * * * SALARY RATE SCHEDULE AND AS A RESULT OF: (A) INDIVIDUAL PROMOTIONS OR RECLASSIFICATIONS, (B) INDIVIDUAL MERIT INCREASES WITHIN ESTABLISHED SALARY RATE RANGES, (C) OPERATION OF AN ESTABLISHED PLAN OF SALARY INCREASES BASED ON LENGTH OF SERVICE * * * "

IN THE CASE OF CERTAIN EMPLOYEES OF THIS COMMISSION IT IS DESIRED TO CHANGE THEIR CLASSIFICATION UNDER CIVIL SERVICE RULES AND REGULATIONS. EXAMPLE IS THAT OF THE POSITION OF CONSULTING ENGINEER, A FULL TIME POSITION CREATED BY INTERNATIONAL TREATY.

THE ENGINEER WHO HAS HELD THE POSITION SINCE 1927 IS CLASSIFIED AS A CONSULTING ENGINEER, GRADE P-6, WITH COMPENSATION AT THE RATE OF $6,000 PER ANNUM. UP UNTIL A SHORT TIME AGO THERE WAS EMPLOYED BY THE COMMISSION A SENIOR ENGINEER, GRADE P-7, WITH A SALARY OF $7,250 PER ANNUM, WHOSE DUTIES WERE, IN GENERAL, THE PLANNING OF CONSTRUCTION PROJECTS; THE CONDUCTING OF INVESTIGATIONS AND STUDIES IN CONNECTION WITH TREATY NEGOTIATIONS WITH MEXICO; SUPERVISION OVER THE ACQUISITION OF LANDS FOR PROJECTS UNDER THE JURISDICTION OF THE INTERNATIONAL BOUNDARY COMMISSION, AND RELATED MATTERS. THE DUTIES OF THE CONSULTING ENGINEER WERE TO SUPERVISE THE CONSTRUCTION, OPERATION AND MAINTENANCE OF PROJECTS UNDER THE JURISDICTION OF THE UNITED STATES SECTION OF THE COMMISSION; TO SUPERVISE SURVEYS IN CONNECTION WITH THE ELIMINATION OF BANCOS UNDER THE PROVISIONS OF THE TREATY OF MARCH 20, 1905, AND IN GENERAL, IN COOPERATION WITH HIS MEXICAN COLLEAGUE, TO REPORT UPON THE ENGINEERING PHASES OF THE ENGINEERING ACTIVITIES OF THE COMMISSION AS PROVIDED FOR BY TREATIES OR OTHER DIPLOMATIC AGREEMENTS.

DUE TO THE RECENT RESIGNATION OF THE SENIOR ENGINEER, THE DUTIES OF THE SENIOR ENGINEER HAVE NOW BEEN ADDED TO THOSE HERETOFORE PERFORMED BY THE CONSULTING ENGINEER. IN VIEW OF THE ADDED RESPONSIBILITIES AND LABOR THUS IMPOSED UPON THE CONSULTING ENGINEER, IT IS BELIEVED THAT HE SHOULD BE PROPERLY CLASSIFIED IN GRADE P-7, THE GRADE WHICH HIS DUTIES MORE NEARLY FIT, WITH COMPENSATION AT THE RATE OF $6,500 PER ANNUM, THE INITIAL RATE FOR THIS GRADE.

IT IS BELIEVED THAT THIS CHANGE IN CLASSIFICATION, AND PERHAPS OTHERS WHICH ARE IN CONTEMPLATION COME WITHIN THE PURVIEW OF SECTION 5, TITLE II OF THE EXECUTIVE ORDER ABOVE REFERRED TO, PROVIDING FOR THE GRANTING OF INCREASE " * * * IN INSTANCES IN WHICH AN INDIVIDUAL HAS BEEN ASSIGNED TO MORE DIFFICULT OR RESPONSIBLE WORK," AND LIKEWISE COME WITHIN THE PURVIEW OF SECTION 4001.6 OF THE REGULATIONS OF OCTOBER 27, 1942, BEING INCREASES "MADE IN ACCORDANCE WITH THE TERMS OF A * * * SALARY RATE SCHEDULE AND AS A RESULT OF: (A) INDIVIDUAL PROMOTIONS OR RECLASSIFICATIONS * * * " AND HENCE, DO NOT NEED THE PRIOR APPROVAL OF THE BOARD OR THE COMMISSIONER.

FURTHERMORE, SOME OF THE EMPLOYEES OF THIS COMMISSION ARE NOW ELIGIBLE FOR WITHIN-GRADE PROMOTIONS BY VIRTUE OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 77TH CONGRESS, FIRST SESSION, AND EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 4, 1941, ISSUED PURSUANT THERETO. IT IS BELIEVED BY THIS OFFICE THAT THE WITHIN-GRADE PROMOTIONS UNDER THE ACT AND EXECUTIVE ORDER REFERRED TO COME WITHIN THE PURVIEW OF THE LANGUAGE IN SECTION 4001.6 AS BEING INCREASES "MADE IN ACCORDANCE WITH THE TERMS OF A * * * SALARY RATE SCHEDULE AND AS A RESULT OF: * * * (B) INDIVIDUAL MERIT INCREASES WITHIN ESTABLISHED SALARY RATE CHANGES, (C) OPERATION OF AN ESTABLISHED PLAN OF SALARY INCREASES BASED ON LENGTH OF SERVICE* * * AND HENCE, NEED NO PRIOR APPROVAL OF THE BOARD OR THE COMMISSIONER.

A FURTHER QUESTION ARISES, HOWEVER, WITH RESPECT TO THE WITHIN-GRADE SALARY ADVANCEMENTS. ONE OF THE CONDITIONS OF THE WITHIN-GRADE SALARY ADVANCEMENT IS "THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD * * * " UNDER THE PROVISIONS OF SENATE JOINT RESOLUTION 170, 77TH CONGRESS, EMPLOYEES OF THIS COMMISSION, AT LEAST UNTIL APRIL 30, 1943 (THE EFFECTIVE PERIOD OF THE RESOLUTION), WILL RECEIVE CERTAIN OVERTIME COMPENSATION. WE DO NOT CONSIDER THAT IS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT BECAUSE IT IS FOR OVERTIME SERVICE RATHER THAN NORMAL SERVICE, AND THE AMOUNT WHICH MAY BE EARNED IN THE FUTURE IS A MATTER OF SPECULATION. HOWEVER, SINCE THERE MAY BE A DIFFERENCE IN INTERPRETATION WITH RESPECT TO THESE MATTERS, WE CONSIDER IT ADVISABLE TO SUBMIT TO YOU FOR YOUR DECISION THE FOLLOWING SPECIFIC QUESTIONS:

1. MAY CHANGES IN CLASSIFICATION IN ACCORDANCE WITH CIVIL SERVICE RULES AND REGULATIONS, AS IN THE CASE OF THE ILLUSTRATION GIVEN ABOVE, BE MADE WITHOUT THE PRIOR APPROVAL OF THE WAR LABOR BOARD OR THE COMMISSIONER OF INTERNAL REVENUE UNDER THE AUTHORITY OF SECTION 4001.6 OF THE REGULATIONS OF OCTOBER 27, 1942 (7 F.R. 8748/?

2. MAY WITHIN-GRADE ADVANCEMENTS IN SALARY BE GRANTED UNDER THE PROVISIONS OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 77TH CONGRESS, FIRST SESSION, WITHOUT PRIOR APPROVAL OF THE WAR LABOR BOARD OR THE COMMISSIONER OF INTERNAL REVENUE BY VIRTUE OF THE QUOTED PROVISIONS OF SECTION 4001.6 OF THE REGULATIONS OF OCTOBER 27, 1942 (7 F.R. 8748/?

3. DOES EARNED OVERTIME COMPENSATION CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 77TH CONGRESS, FIRST SESSION, SO AS TO PROHIBIT THE GRANTING OF WITHIN-GRADE SALARY ADVANCEMENTS WHERE THE AMOUNT OF SUCH OVERTIME COMPENSATION, EARNED AT THE TIME THE WITHIN-GRADE SALARY ADVANCEMENT WOULD OTHERWISE BE MADE, EQUALS OR EXCEEDS THE AMOUNT OF THE ADVANCEMENT?

SECTION 2 OF THE ACT OF OCTOBER 2, 1942, 56 STAT. 765, PUBLIC LAW 729, PURSUANT TO WHICH THE PRESIDENT ISSUED EXECUTIVE ORDER NO. 9250, DATED OCTOBER 3, 1942, PROVIDES:

THE PRESIDENT MAY, FROM TIME TO TIME, PROMULGATE SUCH REGULATIONS AS MAY BE NECESSARY AND PROPER TO CARRY OUT ANY OF THE PROVISIONS OF THIS ACT; AND MAY EXERCISE ANY POWER OR AUTHORITY CONFERRED UPON HIM BY THIS ACT THROUGH SUCH DEPARTMENT, AGENCY, OR OFFICER AS HE SHALL DIRECT. THE PRESIDENT MAY SUSPEND THE PROVISIONS OF SECTIONS 3 (A) AND 3 (C), AND CLAUSE (1) OF SECTION 302 (C), OF THE EMERGENCY PRICE CONTROL ACT OF 1942 TO THE EXTENT THAT SUCH SECTIONS ARE INCONSISTENT WITH THE PROVISIONS OF THIS ACT, BUT HE MAY NOT UNDER THE AUTHORITY OF THIS ACT SUSPEND ANY OTHER LAW OR PART THEREOF. ( ITALICS SUPPLIED.)

NEITHER THE EXECUTIVE ORDER NO. 9250, NOR THE REGULATIONS OF THE ECONOMIC STABILIZATION DIRECTOR ISSUED PURSUANT TO THE EXECUTIVE ORDER, PURPORT TO SUSPEND THE OPERATION OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AFFECTING CERTAIN CLASSES OF FEDERAL PERSONNEL AND, IN VIEW OF THE ITALICIZED PORTION OF THE ABOVE-QUOTED STATUTE PURSUANT TO WHICH STATUTE THE EXECUTIVE ORDER AND REGULATIONS WERE ISSUED, IT IS NOT TO BE PRESUMED THAT THE PRESIDENT HAD ANY INTENTION BY HIS REGULATIONS TO AFFECT IN ANY MANNER THE OPERATION OF THE CLASSIFICATION ACT.

ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 IS ANSWERED IN THE NEGATIVE. SEE IN THAT CONNECTION THE DECISION OF JANUARY 2, 1943, B-31316, 22 COMP. GEN. 589, TO THE ARCHITECT OF THE CAPITOL, WHEREIN IT WAS HELD, IN PERTINENT PART, AS FOLLOWS:

THERE IS NO PURPOSE OR INTENT SHOWN EITHER IN THE STATUTE OR IN ITS LEGISLATIVE HISTORY TO AFFECT IN ANY MANNER THE OPERATION OF THE WITHIN- GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, FOR EMPLOYEES FALLING WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AS AMENDED. THE ACT OF AUGUST 1, 1941, OPERATES UPON THE BASE PAY, WHEREAS THE OVERTIME OR ADDITIONAL COMPENSATION AUTHORIZED OR REQUIRED TO BE PAID BY PUBLIC LAW 821 IS IN ADDITION TO BASE PAY. IT IS CONCLUDED, THEREFORE, THAT THE PAYMENT OF THE OVERTIME OR ADDITIONAL COMPENSATION WILL NOT CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 7 (B) (1) OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941. COMPARE 21 COMP. GEN. 478; ID. 947, 953.