B-6894, NOVEMBER 18, 1939, 19 COMP. GEN. 507

B-6894: Nov 18, 1939

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ARE MAINTAINED DURING THE FISCAL YEAR 1940. 1939: I HAVE YOUR LETTER OF OCTOBER 27. AS FOLLOWS: REFERENCE IS MADE TO SECTION 2 (A) OF THE PRESIDENT'S REORGANIZATION PLAN NO. WHICH PROVIDES THAT TRANSFERS OF PERSONNEL SHALL BE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION DURING THE FISCAL YEAR IN WHICH THE TRANSFER IS EFFECTED. A CLASS OF EMPLOYEES TRANSFERRED FROM THE FORMER LIGHTHOUSE SERVICE TO THE COAST GUARD ARE KNOWN AS "LAMPLIGHTERS.'. THESE EMPLOYEES ARE AN EXCEPTED GROUP WHO ARE EMPLOYED IN THE DISCRETION OF THE DEPARTMENT ON A CONTRACT BASIS WITHOUT COMPETITION. THEIR COMPENSATION IS DETERMINED OR REGULATED BY THE NUMBER OF LIGHTS CARED FOR. IS ON A QUANTITATIVE BASIS SIMILAR TO THAT OF PIECEWORK EMPLOYEES.

B-6894, NOVEMBER 18, 1939, 19 COMP. GEN. 507

COMPENSATION CHANGES - TRANSFERRED REORGANIZATION PLAN PERSONNEL - TOTAL COMPENSATION CHANGES INVOLVING INCREASE OR DECREASE IN WORK 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 A CHANGE IN THE TOTAL COMPENSATION PAID TO ANY LAMPLIGHTER UNDER THE APPLICABLE REGULATIONS CONTINUED IN FORCE AND EFFECT BY THE SAID REORGANIZATION ACT, BASED ON A CHANGE IN THE NUMBER OF LAMPS LIGHTED OR A CHANGE IN THE OTHER ELEMENTS WHICH ENTERED INTO THE FIXING OF THE COMPENSATION, IF THE SAME SCHEDULE OF RATES PER MONTH, PER LIGHT, AND THE OTHER ELEMENTS WHICH ENTERED INTO FIXING THE COMPENSATION OF LAMPLIGHTERS IN FORCE ON JUNE 30, 1939, AND PRIOR TO THE TRANSFER OF THE LIGHTHOUSE SERVICE TO THE TREASURY DEPARTMENT, ARE MAINTAINED DURING THE FISCAL YEAR 1940.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, NOVEMBER 18, 1939:

I HAVE YOUR LETTER OF OCTOBER 27, 1939, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 2 (A) OF THE PRESIDENT'S REORGANIZATION PLAN NO. II, WHICH CONSOLIDATED THE FORMER LIGHTHOUSE SERVICE WITH THE COAST GUARD IN PURSUANCE OF THE REORGANIZATION ACT OF 1939 ( PUBLIC, NO. 19, 76TH CONG.), AND TO SECTION 10 (B) OF SUCH ACT, WHICH PROVIDES THAT TRANSFERS OF PERSONNEL SHALL BE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION DURING THE FISCAL YEAR IN WHICH THE TRANSFER IS EFFECTED.

A CLASS OF EMPLOYEES TRANSFERRED FROM THE FORMER LIGHTHOUSE SERVICE TO THE COAST GUARD ARE KNOWN AS "LAMPLIGHTERS.' SEE ARTICLES 422 AND 428, REGULATIONS OF THE LIGHTHOUSE SERVICE, 1927, AND PAGE 75, CIVIL SERVICE LAWS AND REGULATIONS, JUNE 30, 1937, SCHEDULE A. XI. 5. THESE EMPLOYEES ARE AN EXCEPTED GROUP WHO ARE EMPLOYED IN THE DISCRETION OF THE DEPARTMENT ON A CONTRACT BASIS WITHOUT COMPETITION. THEIR COMPENSATION IS DETERMINED OR REGULATED BY THE NUMBER OF LIGHTS CARED FOR; IN OTHER WORDS, IS ON A QUANTITATIVE BASIS SIMILAR TO THAT OF PIECEWORK EMPLOYEES.

DUE TO CHANGED CONDITIONS OR IN THE PROGRESS OF INCREASING THE EFFICIENCY OF AIDS TO NAVIGATION, IT IS SOMETIMES NECESSARY TO INCREASE OR TO REDUCE THE NUMBER OF LIGHTS ASSIGNED TO THE CARE OF LAMPLIGHTERS, WHICH ACTION, OF COURSE, HAS THE EFFECT OF INCREASING OR DECREASING THE COMPENSATION OF SUCH EMPLOYEES. TO A MUCH LESS EXTENT, IT IS ALSO SOMETIMES NECESSARY TO RELOCATE LIGHTS ASSIGNED TO THE CARE OF SUCH EMPLOYEES, WHICH CALLS FOR AN INCREASE OR DECREASE IN THEIR COMPENSATION DEPENDENT UPON THE TYPE OF AID, ACCESSIBILITY, AND DISTANCE REQUIRED TO BE TRAVERSED. IN ALL SUCH INSTANCES IT IS CUSTOMARY TO CANCEL THE OLD CONTRACT AND ENTER INTO A NEW ONE.

YOUR DECISION IS REQUESTED WHETHER THE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT APPLY TO SUCH EMPLOYEES IN THE SITUATIONS ABOVE OUTLINED.

SECTION 10 (B) OF THE REORGANIZATION ACT, 53 STAT. 563, PROVIDES AS FOLLOWS:

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.

ARTICLES 422 AND 428, REGULATIONS FOR THE UNITED STATES LIGHTHOUSE SERVICE, 1927, PROVIDE AS FOLLOWS:

422. DESIGNATION OF KEEPER, ETC.--- (A) WHEN THE CARE OF A LIGHT STATION REQUIRES CONTINUOUS WATCHING, THE EMPLOYEE IN CHARGE SHALL BE DESIGNATED KEEPER AND SHALL BE GIVEN FORMAL APPOINTMENT BY THE DEPARTMENT.

(B) THE DESIGNATION OF "LIGHT ATTENDANT" SHALL BE USED FOR EMPLOYEES IN CHARGE OF GROUPS OF MINOR LIGHTS REQUIRING THEIR FULL TIME PERSONAL SERVICES, BUT NOT CONTINUOUS WATCHING. THE DESIGNATION "LAMPLIGHTER" SHALL BE USED FOR EMPLOYEES IN CHARGE OF MINOR LIGHTS NOT REQUIRING THEIR FULL TIME. NO FORMAL APPOINTMENTS BY THE DEPARTMENT SHALL BE GIVEN LIGHT ATTENDANTS OR LAMPLIGHTERS, BUT THESE SHALL BE EMPLOYED AS PROVIDED IN THE CIVIL SERVICE REGULATIONS FOR THE LIGHTHOUSE SERVICE.

428. LIGHT ATTENDANTS AND LAMPLIGHTERS.--- PRIOR BUREAU AUTHORITY SHALL BE OBTAINED FOR THE POSITION OF LIGHT ATTENDANT. PRIOR BUREAU AUTHORITY FOR THE POSITION OF LAMPLIGHTER IS NOT REQUIRED BUT THE MAXIMUM AVERAGE PAY OF $10.50 PER MONTH, PER LIGHT, FOR THE CARE OF MINOR LIGHTS BY LAMPLIGHTERS, SHALL NOT BE EXCEEDED WITHOUT SPECIFIC BUREAU AUTHORITY.

THOSE REGULATIONS APPEAR TO HAVE THE FORCE AND EFFECT OF LAW AND IF, AS APPEARS FROM YOUR LETTER, THEY WERE IN FORCE AND EFFECT ON JUNE 30, 1939, THEY, BY OPERATION OF SUBSECTIONS (A) AND (C) OF SECTION 8 OF THE REORGANIZATION ACT, CONTINUED IN FORCE ON JULY 1, 1939, THE EFFECTIVE DATE OF THE TRANSFER OF FUNCTIONS AND PERSONNEL OF THE LIGHTHOUSE SERVICE FROM THE DEPARTMENT OF COMMERCE TO THE TREASURY DEPARTMENT. 19 COMP. GEN. 237; ALSO, DECISION OF OCTOBER 28, 1939, B-5212, 19 COMP. GEN. 461.

SECTION 10 (B) OF THE REORGANIZATION ACT, SUPRA, IS A PROHIBITION ONLY AGAINST A CHANGE IN CLASSIFICATION OR COMPENSATION DURING THE FISCAL YEAR 1940 OF AN EMPLOYEE TRANSFERRED UNDER THE PROVISION OF TITLE II OF THE ACT. SEE QUESTION AND ANSWER (A), SECOND SERIES, DECISION OF AUGUST 22, 1939, 19 COMP. GEN. 244. SINCE THERE IS NOT INVOLVED HERE ANY QUESTION OF CHANGE OF ,CLASSIFICATION," THERE IS FOR CONSIDERATION ONLY THE MATTER OF "COMPENSATION" WITHIN THE MEANING OF SECTION 10 (B) OF THE REORGANIZATION ACT. THE CHANGE OF "COMPENSATION" WHICH SECTION 10 (B) OF THE CITED ACT PRECLUDES DURING THE FISCAL YEAR 1940 RELATES TO THE RATE PAID TO AN EMPLOYEE ON JUNE 30, 1939, FOR FULL TIME SERVICE MEASURED EITHER ON A TIME OR PIECEWORK BASIS. IF THE SAME SCHEDULE OF RATES OF COMPENSATION PER MONTH, PER LIGHT, AND THE OTHER ELEMENTS "DEPENDENT UPON THE TYPE OF AID, ACCESSIBILITY, AND DISTANCE REQUIRED TO BE TRAVERSED" (QUOTING FROM YOUR LETTER) WHICH ENTERED INTO FIXING THE COMPENSATION OF LAMPLIGHTERS IN FORCE ON JUNE 30, 1939, IN THE DEPARTMENT OF COMMERCE ARE MAINTAINED AFTER THAT DATE BY THE TREASURY DEPARTMENT, SECTION 10 (B) OF THE REORGANIZATION ACT DOES NOT PROHIBIT A CHANGE IN THE TOTAL COMPENSATION PAID TO ANY LAMPLIGHTER BASED ON A CHANGE IN THE NUMBER OF LAMPS LIGHTED OR A CHANGE IN THE OTHER ELEMENTS WHICH ENTERED INTO THE FIXING OF THE COMPENSATION. COMPARE THE LAST PARAGRAPH OF DECISION OF AUGUST 22, 1939, 19 COMP. GEN. 246, AND QUESTION AND ANSWER 8, DECISION OF OCTOBER 28, 1939, B 5212, 19 COMP. GEN. 461.