B-150847, AUG 26, 1971

B-150847, AUG 26, 1971

CIVILIAN EMPLOYEE - SALARY - POSITION TO WHICH PERMANENTLY APPOINTED DECISION HOLDING THAT MR. EUGENE G. GOSLEE, WHO WAS DESIGNATED ACTING GENERAL COUNSEL OF THE NLRB BY THE PRESIDENT UNDER THE AUTHORITY OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (PUB. L. 86-257), IS ENTITLED ONLY TO THE SALARY OF THE PERMANENT POSITION TO WHICH HE IS APPOINTED. AS NOTHING IN THE ABOVE CITED ACT NOR IN THE EXECUTIVE ORDER ISSUED PURSUANT TO IT INDICATES TO THE CONTRARY, THE RULE MUST BE FOLLOWED HERE THAT REQUIRES AN EMPLOYEE APPOINTED TO ONE CLASSIFICATION PERFORMING THE DUTIES OF A HIGHER CLASSIFICATION TO RECEIVE THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED.

TO NATIONAL LABOR RELATIONS BOARD:

THIS REFERS TO YOUR LETTER OF JULY 7, 1971, REQUESTING OUR DECISION CONCERNING THE PROPER SALARY FOR PAYMENT TO MR. EUGENE G. GOSLEE WHO, AS OF JUNE 26, 1971, WAS DESIGNATED ACTING GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD.

SECTION 703 OF PUBLIC LAW 86-257 OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 PROVIDES, WITH RESPECT TO THE DESIGNATION OF AN ACTING GENERAL COUNSEL, AS FOLLOWS:

"SEC. 703. SECTION 3(D) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, IS AMENDED BY ADDING AFTER THE PERIOD AT THE END THEREOF THE FOLLOWING: 'IN CASE OF A VACANCY IN THE OFFICE OF THE GENERAL COUNSEL, THE PRESIDENT IS AUTHORIZED TO DESIGNATE THE OFFICER OR EMPLOYEE WHO SHALL ACT AS GENERAL COUNSEL DURING SUCH VACANCY, BUT NO PERSON OR PERSONS SO DESIGNATED SHALL SO ACT (1) FOR MORE THAN FORTY DAYS WHEN THE CONGRESS IS IN SESSION UNLESS A NOMINATION TO FILL SUCH VACANCY SHALL HAVE BEEN SUBMITTED TO THE SENATE, OR (2) AFTER THE ADJOURNMENT SINE DIE OF THE SESSION OF THE SENATE IN WHICH SUCH NOMINATION WAS SUBMITTED.'"

YOU INDICATE THAT ON JUNE 25, 1971, UPON TERMINATION OF THE APPOINTMENT OF THE THEN GENERAL COUNSEL, AN EXECUTIVE ORDER WAS ISSUED PURSUANT TO THE ABOVE AUTHORITY DESIGNATING MR. GOSLEE TO SERVE AS ACTING GENERAL COUNSEL. THE LANGUAGE OF THAT ORDER IS AS FOLLOWS:

"UNDER THE AUTHORITY VESTED IN THE PRESIDENT BY SECTION 3(D) OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, AS AMENDED, I HEREBY DESIGNATE EUGENE G. GOSLEE OF VIRGINIA, TO SERVE AS ACTING GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD COMMENCING WITH THE CLOSE OF BUSINESS JUNE 25, 1971."

INASMUCH AS THERE IS NO INDICATION IN THE LANGUAGE AUTHORIZING THE DESIGNATION OF AN ACTING GENERAL COUNSEL OR IN THE ORDER ISSUED THEREUNDER OF THE SALARY MR. GOSLEE IS TO RECEIVE FOR THE PERIOD IN WHICH HE IS ACTING GENERAL COUNSEL, YOU ASK WHETHER HE IS ENTITLED TO THE SALARY OF THE GENERAL COUNSEL'S POSITION OR IS TO CONTINUE TO BE PAID THE SALARY OF THE GS-16/1 POSITION TO WHICH HE IS PERMANENTLY APPOINTED.

IT IS WELL ESTABLISHED THAT AN EMPLOYEE APPOINTED TO ONE CLASSIFICATION WHO PERFORMS DUTIES OF A HIGHER CLASSIFICATION IS NEVERTHELESS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED. IN THIS REGARD, THE COURT OF CLAIMS IN COLEMAN V UNITED STATES, 100 CT. CL. 41 (1943) STATED:

"THERE ARE INNUMERABLE INSTANCES IN THE GOVERNMENT SERVICE WHERE EMPLOYEES OF A LOWER CLASSIFICATION PERFORM THE DUTIES OF A HIGHER CLASSIFICATION *** THE SALARIES FIXED BY CONGRESS ARE THE SALARIES PAYABLE TO THOSE WHO HOLD THE OFFICE AND NOT TO THOSE WHO PERFORM THE DUTIES OF THE OFFICE. ONE MAY HOLD THE OFFICE ONLY BY APPOINTMENT BY HIS SUPERIOR, AND THE LAW VESTS IN THE SUPERIOR THE DISCRETION AS TO WHETHER OR NOT APPOINTMENT TO THE OFFICE SHALL BE MADE. WHERE THE PLAINTIFF HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE IS APPOINTED HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER THE LAW. THE PLAINTIFF IN THIS CASE HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED, TO WIT, THAT OF A GARAGEMAN-DRIVER."

SEE ALSO 112 CT. CL. 198 (1948) AND 110 CT. CL. 236 (1948).

IN 14 COMP. GEN. 726 (1935) WE INDICATED THAT A PERSON SERVING UNDER AN ACTING APPOINTMENT IS ENTITLED ONLY TO THE ALLOWANCES ATTACHED TO HIS PERMANENT OFFICE, WHICH IS NOT CHANGED BY REASON OF AN ACTING APPOINTMENT. BECAUSE IN THAT CASE THERE EXISTED SPECIAL AUTHORITY TO PAY A MEMBER OF THE SERVICE SO ACTING THE PAY OF THE COMMISSIONED OFFICER IN WHOSE STEAD HE WAS ACTING, THE CLAIMANT WAS HELD TO BE ENTITLED TO THE PAY OF THE OFFICE IN WHICH HE WAS ACTING, BUT NOT TO ADDITIONAL ALLOWANCES WHICH ATTACH TO THAT OFFICE. IN THE ABSENCE OF SUCH SPECIAL AUTHORITY, HOWEVER, THE CLAIMANT WOULD HAVE BEEN ENTITLED ONLY TO THE PAY FOR THE POSITION TO WHICH HE WAS PERMANENTLY APPOINTED.

WE HAVE BEEN UNABLE TO FIND ANY INDICATION IN THE LEGISLATIVE HISTORY OF SECTION 703 OF PUBLIC LAW 86-257 THAT THE DESIGNEE TO THE POSITION OF ACTING GENERAL COUNSEL IS TO BE ENTITLED TO THE SALARY OF ANY POSITION OTHER THAN THAT TO WHICH HE IS PERMANENTLY APPOINTED. IN REPORT NO. 187 OF THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE TO ACCOMPANY S. 1555, WHICH BECAME PUBLIC LAW 86-257, IT IS STATED AS FOLLOWS:

"THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, PROVIDES THAT THE GENERAL COUNSEL OF THE BOARD SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE CONSENT OF THE SENATE. THE ACT PLACES CONSIDERABLE RESPONSIBILITY ON THE GENERAL COUNSEL FOR IT IS HE WHO ISSUES COMPLAINTS AND PERFORMS OTHER VITAL FUNCTIONS WHICH, IF THERE IS A VACANCY IN OFFICE, CANNOT BE PERFORMED UNDER THE LAW BY ANY OTHER PERSON. IF SUCH A VACANCY OCCURS SUDDENLY OR IF THERE IS DELAY IN THE NOMINATION OR CONFIRMATION OF A NOMINEE, THE PROCESSING OF LABOR RELATIONS CASES THROUGH THE BOARD MACHINERY CAN VIRTUALLY COME TO A HALT.

"THE COMMITTEE, RECOGNIZING THIS PROBLEM, UNANIMOUSLY AGREED ON THE AMENDMENT CONTAINED IN SECTION 606 OF S. 1555 WHICH WOULD PERMIT THE PRESIDENT TO DESIGNATE AN OFFICER OR EMPLOYEE OF THE GENERAL COUNSEL'S OFFICE TO SERVE AS AN ACTING GENERAL COUNSEL."

ACCORDINGLY, OUR VIEW IS THAT MR. GOSLEE IS ENTITLED ONLY TO THE SALARY OF THE PERMANENT POSITION TO WHICH HE IS APPOINTED, NOTWITHSTANDING THAT HE IS PERFORMING THE DUTIES OF GENERAL COUNSEL FOR WHICH A HIGHER SALARY IS PROVIDED. COMPARE THE PROVISIONS OF 19 U.S.C. 8 (1964 EDITION).