B-5993, SEPTEMBER 26, 1939, 19 COMP. GEN. 402

B-5993, SEPTEMBER 26, 1939, 19 COMP. GEN. 402

COMPENSATION CHANGES - PROJECT SUPERVISORY EMPLOYEES - REORGANIZATION ACT PROHIBITION THE FISCAL YEAR 1940 PROHIBITORY PERSONNEL COMPENSATION AND CLASSIFICATION CHANGE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, DO NOT PROHIBIT CHANGES IN THE DUTIES AND COMPENSATION OF EITHER NONAPPOINTIVE OR APPOINTIVE PROJECT SUPERVISORY EMPLOYEES OF THE NATIONAL YOUTH ADMINISTRATION.

COMPTROLLER GENERAL BROWN TO THE FEDERAL SECURITY ADMINISTRATOR, SEPTEMBER 26, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 8, 1939, AS FOLLOWS:

SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 ( PUBLIC, NO. 19, 76TH CONGRESS) CONTAINS THE FOLLOWING PROVISION WITH RESPECT TO THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION DURING THE PRESENT FISCAL YEAR:

"ANY TRANSFER OF PERSONNEL UNDER THIS TITLE SHALL BE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION, EXCEPT THAT THIS REQUIREMENT SHALL NOT OPERATE AFTER THE END OF THE FISCAL YEAR DURING WHICH THE TRANSFER IS MADE TO PREVENT THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION TO CONFORM TO THE DUTIES TO WHICH SUCH TRANSFERRED PERSONNEL MAY BE ASSIGNED.'

A QUESTION HAS ARISEN WITHIN THIS AGENCY AS TO THE MEANING OF THIS LANGUAGE AND AS TO ITS EFFECT ON PERSONNEL ADMINISTRATION IN THE NATIONAL YOUTH ADMINISTRATION. THIS QUESTION RELATES PRINCIPALLY TO THE STATUS OF EMPLOYEES WHO ARE PAID FROM PROJECT RATHER THAN ADMINISTRATIVE FUNDS.

EMPLOYEES PAID FROM FUNDS APPROPRIATED TO THE NATIONAL YOUTH ADMINISTRATION BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 FALL INTO TWO MAJOR CATEGORIES. THESE CATEGORIES ARE:

A. PERSONNEL PAID FROM FUNDS APPROPRIATED BY THE ACT FOR ADMINISTRATION; AND

B. EMPLOYEES PAID FROM FUNDS APPROPRIATED BY THE ACT FOR "THE PROSECUTION OF PROJECTS.'

UNDER ADMINISTRATIVE ORDER NO. 2, SECTION 3, OF THE NATIONAL YOUTH ADMINISTRATION APPLICABLE TO EMPLOYMENT ON NATIONAL YOUTH ADMINISTRATION PROJECTS DURING THE CURRENT FISCAL YEAR, EMPLOYEES PAID FROM PROJECT FUNDS ARE DEFINED AS FOLLOWS:

"SECTION 3. THE TERM "PROJECT EMPLOYEES" AS USED HEREIN SHALL MEAN ALL PERSONS ENGAGED UPON PROJECTS AND PAID BY MEANS OF A PAY-ROLL PAYMENT FROM FUNDS AUTHORIZED FOR THE OPERATION OF SUCH PROJECTS. PROJECT EMPLOYEES ARE FURTHER DEFINED AS FOLLOWS: "/A) THE TERM "YOUTH EMPLOYEES" AS USED HEREIN SHALL MEAN CERTIFIED PERSONS BETWEEN THE AGES OF 18 AND 24 YEARS INCLUSIVE WHO ARE ENGAGED UPON A PART-TIME BASIS ON PROJECTS WHO ARE PAID BY MEANS OF PAY-ROLL PAYMENTS FROM FUNDS AUTHORIZED FOR THE OPERATION OF SUCH PROJECTS.

" "/B) THE TERM "PROJECT SUPERVISORY EMPLOYEES" AS USED HEREIN SHALL MEAN PERSONS IN SUPERVISORY POSITIONS ENGAGED UPON PROJECTS WHO ARE PAID UPON A PER DIEM OR MONTHLY BASIS BY MEANS OF PAY-ROLL PAYMENTS FROM FUNDS AUTHORIZED FOR THE OPERATION OF SUCH PROJECTS.'"

ADMINISTRATIVE ORDER NO. 2, SECTION 8, OF THE NATIONAL YOUTH ADMINISTRATION PRESCRIBED THE AUTHORITY OF THE STATE YOUTH ADMINISTRATOR TO ESTABLISH PER DIEM OR MONTHLY EARNINGS FOR PROJECT SUPERVISORY EMPLOYEES AS FOLLOWS:

"SECTION 8. THE STATE YOUTH ADMINISTRATOR IS AUTHORIZED, AND DIRECTED TO ESTABLISH PER DIEM OR MONTHLY EARNINGS FOR PROJECT SUPERVISORY EMPLOYEES IN ACCORDANCE WITH THE WAGES CUSTOMARILY PAID FOR WORK OF A SIMILAR NATURE IN THE SAME LOCALITY. EARNINGS FOR PROJECT SUPERVISORY EMPLOYEES ESTABLISHED ON A PER DIEM OR MONTHLY SALARY BASIS ARE SUBJECT TO THE FOLLOWING CONDITIONS:

"/A) PROJECT SUPERVISORY EMPLOYEES WHO ARE ASSIGNED TO WORK FOR A PERIOD OF LESS THAN 100 HOURS PER PAY-ROLL MONTH OR WHO ARE ASSIGNED TO WORK FOR INDEFINITE PERIODS PER PAY-ROLL MONTH, SHALL BE COMPENSATED UPON A PER DIEM BASIS OF PAYMENT FROM FUNDS AUTHORIZED FOR THE OPERATION OF PROJECTS. PROJECT SUPERVISORY EMPLOYEES PAID ON A PER DIEM BASIS SHALL BE PAID FOR THEIR ACTUAL DAYS OF SERVICE.

"/B) PROJECT SUPERVISORY EMPLOYEES WHO ARE ASSIGNED TO WORK FOR DEFINITE SCHEDULES OF NOT LESS THAN 100 HOURS PER PAY-ROLL MONTH SHALL BE COMPENSATED FOR THEIR SERVICES UPON A MONTHLY SALARY BASIS FROM FUNDS AUTHORIZED FOR THE OPERATION OF PROJECTS. FOR PROJECT SUPERVISORY EMPLOYEES PAID ON A MONTHLY SALARY BASIS, DEDUCTIONS FOR VOLUNTARY ABSENCE FROM DUTY SHALL BE MADE IN THE AMOUNT OF ONE THIRTIETH OF THE MONTHLY SALARY FOR EACH DAY OF VOLUNTARY ABSENCE.

"HOWEVER, NO DEDUCTION SHALL BE MADE FOR ANY DAY OR DAYS UPON WHICH THE EMPLOYEE IS NOT REQUIRED TO WORK. DEDUCTIONS FOR VOLUNTARY ABSENCE FROM DUTY FOR A PORTION OF A DAY SHALL BE MADE IN AN AMOUNT EQUAL TO ONE-FOURTH THE DEDUCTION, OR MULTIPLE THEREOF, MADE FOR ABSENCE DURING A FULL DAY.'

PROJECT SUPERVISORY EMPLOYEES ARE ASSIGNED TO WORK PROJECTS BY THE STATE ADMINISTRATOR OR HIS AUTHORIZED REPRESENTATIVES AND PER DIEM OR MONTHLY EARNINGS ARE SET FORTH IN THE ASSIGNMENT DOCUMENT OR UPON A STATE ADMINISTRATOR'S ORDER ESTABLISHING HOURS OF WORK AND PER DIEM AND MONTHLY EARNINGS. AT PRESENT, PROJECT SUPERVISORY EMPLOYEES ARE NOT APPOINTED, BUT THEY ARE REQUIRED TO TAKE AN OATH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 18 (A) OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939. ALTHOUGH PROJECT SUPERVISORY EMPLOYEES HAVE NOT BEEN APPOINTED, CONSIDERATION HAS BEEN GIVEN TO THE APPOINTMENT OF A LIMITED CLASS OF PROJECT SUPERVISORY EMPLOYEES IN CASES WHERE THE CONDITIONS OF EMPLOYMENT UPON PROJECTS ARE COMPARABLE TO THOSE APPLICABLE TO EMPLOYEES PAID FROM ADMINISTRATIVE FUNDS. HOWEVER, ANY DECISION RELATING TO THE APPOINTMENT OF PROJECT SUPERVISORY EMPLOYEES HAS BEEN WITHHELD PENDING A DETERMINATION AS TO THE EFFECT OF SUCH APPOINTMENT WITH RESPECT TO THEIR STATUS UNDER THE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT, SUPRA.

YOUR OPINION IS THEREFORE REQUESTED ON THE FOLLOWING QUESTIONS RELATING TO THE STATUS OF PROJECT EMPLOYEES OF THE NATIONAL YOUTH ADMINISTRATION UNDER THE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 ( PUBLIC, NO. 19, 76TH CONGRESS):

(A) MAY THE DUTIES AND COMPENSATION OF NONAPPOINTIVE PROJECT SUPERVISORY EMPLOYEES OF THE NATIONAL YOUTH ADMINISTRATION BE CHANGED DURING THE FISCAL YEAR ENDING JUNE 30, 1940?

(B) IF THE ADMINISTRATOR OF THE NATIONAL YOUTH ADMINISTRATION ISSUES INSTRUCTIONS AUTHORIZING THE APPOINTMENT OF A LIMITED CLASS OF PROJECT SUPERVISORY EMPLOYEES, MAY THE DUTIES AND COMPENSATION OF ANY SUCH PROJECT SUPERVISORY EMPLOYEES BE CHANGED DURING THE FISCAL YEAR ENDING JUNE 30, 1940?

YOUR LETTER PRESENTS BROADLY THE QUESTION OF WHETHER PROJECT WORKERS AND ADMINISTRATIVE AND SUPERVISORY PERSONNEL ENGAGED ON W.P.A. PROJECTS HAVE OR OCCUPY A STATUS SUCH AS TO BRING THEM WITHIN THE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, APPROVED APRIL 3, 1939, 53 STAT. 563, QUOTED IN YOUR LETTER. IN DECISION B-5994, DATED SEPTEMBER 21, 1939, 19 COMP. GEN. 383, TO YOU, INVOLVING A SUBSTANTIALLY IDENTICAL SITUATION, IT WAS CONCLUDED THAT:

* * * PROJECT WORKERS PAID EITHER A SECURITY WAGE OR A SALARY IN A SUPERVISORY CAPACITY ARE NOT TO BE REGARDED AS "PERSONNEL" WITHIN THE MEANING OF SECTION 10 (B) OF THE REORGANIZATION ACT.

WHAT WAS HELD IN THAT DECISION APPLIES HERE. ACCORDINGLY, BOTH QUESTIONS (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE.