A-43098, JANUARY 15, 1935, 14 COMP. GEN. 546

A-43098, JANUARY 15, 1935, 14 COMP. GEN. 546

GOVERNMENT PRINTING OFFICE - PROBATIONARY AND PERMANENT APPOINTMENT AS JOURNEYMAN - ADMINISTRATIVE PROMOTION ACTION UNDER THE ADMINISTRATIVE REGULATION OF THE GOVERNMENT PRINTING OFFICE WHICH PROVIDES FOR AN INCREASE IN COMPENSATION AT THE TERMINATION OF THE PROBATIONARY PERIOD UNDER AN APPOINTMENT AS JOURNEYMAN, WHEN THE SERVICE IS DETERMINED ADMINISTRATIVELY TO HAVE BEEN SATISFACTORY, IS TO BE REGARDED AS AN ADMINISTRATIVE PROMOTION AND PROHIBITED DURING THE CURRENT FISCAL YEAR BY THE TERMS OF THE ECONOMY ACT, AS AMENDED.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 15, 1935:

STANLEY A. FORDEN, AN EMPLOYEE IN THE GOVERNMENT PRINTING OFFICE, HAS FILED CLAIM IN THIS OFFICE AS FOLLOWS:

I HEREBY MAKE CLAIM FOR COMPENSATION DUE ME AS AN EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE IN THE AMOUNT OF $212.40. THE FACTS OUT OF WHICH MY CLAIM ARISES ARE AS FOLLOWS:

ON JUNE 20, 1932, I WAS GRADUATED AS JOURNEYMAN PRINTER IN THE GOVERNMENT PRINTING OFFICE. PREVIOUS TO THAT TIME I HAD SERVED A TERM OF BETWEEN ME AND THE PUBLIC PRINTER, REPRESENTING THE UNITED STATES GOVERNMENT PRINTING OFFICE. UNDER THE TERMS OF THE INDENTURE OF APPRENTICESHIP, THE GOVERNMENT PRINTING OFFICE AGREED TO PAY ME AS AN APPRENTICE FOR MY SERVICES THE FOLLOWING RATE OF WAGES, IF MY EFFICIENCY RATING WAS SATISFACTORY, TO WIT:

"FOR THE FIRST YEAR--- ONE-THIRD OF THE RATE OF WAGES OF THE TRADE;

"FOR THE SECOND AND THIRD YEARS--- ONE-HALF OF THE RATE OF WAGES OF THE TRADE;

"FOR THE FOURTH YEAR--- TWO-THIRDS OF THE RATE OF WAGES OF MY TRADE IN THE GOVERNMENT PRINTING OFFICE.'

THE RATE OF WAGES FOR THE TRADE WAS ONE DOLLAR ($1.00) PER HOUR, AND THE GOVERNMENT PRINTING OFFICE COMPLIED WITH THE AFOREMENTIONED TERMS OF ITS CONTRACT WITH ME DURING THE ENTIRE TERM OF MY APPRENTICESHIP.

UPON MY BEING GRADUATED, I SERVED A SIX MONTHS' PROBATIONARY PERIOD AS JOURNEYMAN, DURING WHICH TIME I WAS PAID ONE DOLLAR ($1.00) PER HOUR, WHICH WAS THE PROPER RATE OF PAY FOR MY SERVICES DURING THE PROBATIONARY PERIOD. AT THE END OF THE SIX MONTHS' PERIOD MY PROBATION ENDED, AND I HAVE SINCE BEEN A REGULARLY EMPLOYED JOURNEYMAN IN THE GOVERNMENT PRINTING OFFICE. THERE HAS NEVER BEEN ANY QUESTION OF MY EFFICIENCY OR OF MY HAVING FULFILLED ALL THE REQUIREMENTS FOR THE WORK ASSIGNED TO ME.

UNDER THE TERMS OF THE INDENTURE OF APPRENTICESHIP BETWEEN THE GOVERNMENT AND ME, THE FOLLOWING WAS PROVIDED, TO WIT:

"IN CONSIDERATION OF SAID APPRENTICE COMPLETING THE FULL FOUR-YEAR COURSE OF TRAINING AND STUDIES TO THE SATISFACTION OF THE PUBLIC PRINTER, INCLUDING WHATEVER LOST TIME HE IS REQUIRED TO MAKE UP, THE GOVERNMENT PRINTING OFFICE AGREES TO PRESENT SAID APPRENTICE A CERTIFICATE OF APPRENTICESHIP, WHICH WILL MAKE HIM ELIGIBLE FOR APPOINTMENT AS A JOURNEYMAN IN THE GOVERNMENT PRINTING OFFICE, SUBJECT TO THE NEEDS OF THE SERVICE AND THE RULES OF THE CIVIL SERVICE MISSION.'

AS HAS HERETOFORE BEEN INDICATED, I WAS DULY APPOINTED A JOURNEYMAN IN THE GOVERNMENT PRINTING OFFICE, AND THEREBY BECAME ENTITLED TO THE PAY AND THE EMOLUMENTS OF THAT POSITION.

AT THE TIME I COMPLETED MY PROBATIONARY PERIOD AS A JOURNEYMAN, ON OR ABOUT DECEMBER 20, 1932, THE MINIMUM RATE OF PAY PROVIDED BY LAW FOR JOURNEYMEN PRINTERS WAS ONE DOLLAR AND FIVE CENTS ($1.05) PER HOUR. THIS RATE OF PAY WAS ESTABLISHED UNDER THE AGREEMENT ENTERED INTO BY THE PUBLIC PRINTER AND A COMMITTEE OF THE TRADE, PURSUANT TO THE ACT OF JUNE 7, 1924 (SEC. 40 OF TITLE 44, U.S. CODE). THE SPECIFIC PROVISION RELATING TO THE MINIMUM PAY OF JOURNEYMEN CONTAINED IN THE AFOREMENTIONED AGREEMENT WAS AS FOLLOWS:

"THE RATES OF PAY FOR JOURNEYMEN PRINTERS, NOT INCLUDED IN THE FOREGOING SCALE, SHALL BE DETERMINED BY THE PUBLIC PRINTER, BUT SHALL NOT, IN ANY INSTANCE, BE LESS THAN THE RATE PROVIDED FOR HAND COMPOSITORS.'

THE RATE OF PAY FOR HAND COMPOSITORS WAS, UNDER THAT AGREEMENT, PLACED AT ONE DOLLAR AND FIVE CENTS ($1.05) PER HOUR.

ON OR ABOUT DECEMBER 20, 1932, WHEN I COMPLETED MY PROBATIONARY PERIOD AS JOURNEYMAN, I WAS ENTITLED TO AN INCREASE IN PAY TO ONE DOLLAR AND FIVE CENTS ($1.05) PER HOUR, UNDER THE TERMS OF THE AFOREMENTIONED AGREEMENT, BUT THE PUBLIC PRINTER REFUSED TO INCREASE MY PAY AND I CONTINUED TO BE PAID AT THE RATE OF ONE DOLLAR ($1.00) PER HOUR. FROM DECEMBER 20, 1932, TO SEPTEMBER 1, 1934, I WAS PAID ONE DOLLAR ($1.00) PER HOUR, EXCEPT THAT ON MARCH 28, 1934, MY RATE PER HOUR WAS INCREASED TO ONE DOLLAR AND TWENTY CENTS ($1.20), WHICH WAS, HOWEVER, DONE MERELY TO ADJUST THE PAY TO THE 40 -HOUR-WEEK SCHEDULE, SO THAT THE ONE DOLLAR AND TWENTY-CENT ($1.20) RATE WHICH I WAS PAID FROM MARCH 28, 1934, TO SEPTEMBER 1, 1934, REPRESENTED THE ONE DOLLAR ($1.00) PER HOUR RATE ADJUSTED TO THE 40-HOUR-WEEK BASIS. ON SEPTEMBER 1, 1934, MY PAY WAS INCREASED TO ONE DOLLAR AND THIRTY TWO CENTS ($1.32) PER HOUR, WHICH WAS ONE DOLLAR AND TEN CENTS ($1.10) PER HOUR ADJUSTED TO THE 40-HOUR-WEEK BASIS.

IT WILL THUS BE SEEN THAT BETWEEN DECEMBER 20, 1932, AND SEPTEMBER 1, 1934, I WAS A REGULAR JOURNEYMAN BUT WAS NOT RECEIVING THE PAY REQUIRED UNDER THE AGREEMENT OF 1926.

IF MY CALCULATION IS CORRECT, THE FAILURE OF THE PUBLIC PRINTER TO PAY ME AT THE RATE BY WHICH I WAS ENTITLED TO BE PAID CAUSED A DEFICIENCY DURING THE PERIOD IN QUESTION OF $212.40, FOR WHICH I NOW MAKE CLAIM. RESPECTFULLY REFER TO THE BRIEF ON THE LAW WHICH MY COUNSEL HAS FILED WITH YOU.

AN ADMINISTRATIVE REPORT, DATED JANUARY 2, 1935, HAS BEEN RECEIVED FROM THE PUBLIC PRINTER, IN PERTINENT PART AS FOLLOWS:

* * * YOU ARE ADVISED THAT STANLEY A. FORDEN WAS APPOINTED AN APPRENTICE IN THE GOVERNMENT PRINTING OFFICE ON JANUARY 3, 1928. HE COMPLETED THE REQUIRED TRAINING PERIOD AND, ON JUNE 20, 1932, ACCEPTED A PROBATIONARY APPOINTMENT AS A COMPOSITOR. IN ACCORDANCE WITH THE REGULATIONS OF THIS OFFICE (COPY ENCLOSED) WHICH WERE PROMULGATED TO CARRY OUT THE WAGE AGREEMENT ENTERED INTO BY THE PUBLIC PRINTER AND THE PRINTER EMPLOYEES AND WHICH WAS APPROVED BY THE JOINT COMMITTEE ON PRINTING, AS REQUIRED BY THE ACT OF JUNE 7, 1924 (U.S.C., TITLE 44, SEC. 40), FORDEN WAS TO RECEIVE $1.00 AN HOUR (INCREASED TO $1.20 AN HOUR BY ACT OF MARCH 28, 1934) FOR THE FIRST 6 MONTHS, AFTER WHICH HE WAS TO BE PAID AT THE RATE OF $1.05 PER HOUR (INCREASED TO $1.26 BY ACT SUPRA).

FORDEN COMPLETED HIS 6-MONTH PROBATION AS A COMPOSITOR ON DECEMBER 19, 1932, BUT WAS NOT ADVANCED TO THE RATE ESTABLISHED FOR PERMANENT COMPOSITORS ON THAT DATE, AS YOUR DECISION OF JULY 7, 1932 (A-43098), CLEARLY PROHIBITED SUCH ACTION, SAID DECISION READING IN PART AS FOLLOWS:

"1. IT WOULD SEEM FROM YOUR STATEMENTS AND THE TERMS OF THE REGULATIONS THAT THE INCREASE IN WAGES FROM $1 TO $1.05 PER HOUR AUTHORIZED FOR EMERGENCY, PROBATIONARY, AND REINSTATED EMPLOYEES UNDER THE CONDITIONS STATED IS GIVEN SOLELY FOR INCREASED EFFICIENCY OR ADDED EXPERIENCE AS DETERMINED BY THE PUBLIC PRINTER WITHIN HIS ADMINISTRATIVE DISCRETION. THIS BASIS THE INCREASE CLEARLY WOULD BE AN ADMINISTRATIVE PROMOTION AND PROHIBITED UNDER THE STATUTE DURING THE FISCAL YEAR 1933.' PER HOUR, REQUIREMENTS OF THE SERVICE MADE IT NECESSARY TO TEMPORARILY ASSIGN HIM TO PROOFREADING, AND HE WAS UPRATED TO THE REGULAR PAY OF THAT POSITION (OLD RATE $1.10 PER HOUR ADJUSTED TO $1.32 UNDER ACT OF MARCH 28, 1934); HE CONTINUED ON THAT WORK AND AT THAT RATE CONTINUOUSLY UNTIL SEPTEMBER 1, 1934, WHEN HE WAS PERMANENTLY ASSIGNED THERETO AT $1.32 PER HOUR. YOUR DECISION OF AUGUST 7, 1934, STATES, IN EFFECT, THAT SUCH PERMANENT ADJUSTMENTS IN PAY WILL NOT BE REGARDED AS ADMINISTRATIVE PROMOTIONS.

FROM THE PRECEDING PARAGRAPH IT WILL BE SEEN THAT FORDEN'S PROMOTION ON SEPTEMBER 1, 1934, WAS NOT BASED ON INCREASED EFFICIENCY OR LENGTH OF SERVICE, BUT WAS BASED ON THE FACT THAT HE HAD BEEN TRANSFERRED TO OTHER DUTIES HE WAS QUALIFIED TO PERFORM AND FOR WHICH A HIGHER RATE OF PAY HAD BEEN ESTABLISHED, AND HAVING BEEN UPRATED PREVIOUSLY TO SUCH RATE WAS, UNDER YOUR DECISION OF AUGUST 7, 1934, ENTITLED TO SUCH PROMOTION.

SHOULD YOUR HOLDING NOW BE THAT FORDEN IS ENTITLED TO THE HIGHER RATE OF PAY FROM DECEMBER 19, 1932, THE DATE ON WHICH HIS PROBATIONARY APPOINTMENT AS A COMPOSITOR EXPIRED, YOU ARE ADVISED THAT THE PERIOD FOR CONSIDERATION IS FROM DECEMBER 20, 1932, TO FEBRUARY 8, 1934, AS ON THE LATTER DATE HE WAS, AS STATED ABOVE, DETAILED TO OTHER DUTIES AND RECEIVED THE ESTABLISHED RATE FOR SUCH DUTIES.

IN VIEW OF THE FACTS STATED IN THIS ADMINISTRATIVE REPORT, WHICH DIFFER FROM THE FACTS STATED BY THE CLAIMANT, THERE APPEARS TO HAVE BEEN NO LEGAL OBJECTION TO THE SALARY ADJUSTMENT MADE EFFECTIVE ADMINISTRATIVELY SEPTEMBER 1, 1934, SOLELY FOR THE PURPOSE OF PAYING CLAIMANT THE COMPENSATION RATE FOR PROOFREADER TO WHICH POSITION HE HAD BEEN TEMPORARILY ASSIGNED FEBRUARY 8, 1934, AND PERMANENTLY ASSIGNED SEPTEMBER 1, 1934. 14 COMP. GEN. 94.

THE PRESENT CLAIM, HOWEVER, IS FOR AN INCREASE IN COMPENSATION AS HAND COMPOSITOR FROM THE RATE OF $1 PER HOUR, RECEIVED DURING THE PROBATIONARY PERIOD, TO THE RATE OF $1.05 PER HOUR FROM DECEMBER 20, 1932, THE DATE THE PROBATIONARY PERIOD EXPIRED, TO FEBRUARY 7, 1934.

THE REGULATIONS GOVERNING RATES OF PAY OF PRINTER EMPLOYEES PROVIDE, IN PART, AS FOLLOWS:

13. EMERGENCY, PROBATIONARY, AND REINSTATED HAND COMPOSITORS SHALL BE PAID $1 PER HOUR UNTIL SUCH TIME AS THE PUBLIC PRINTER MAY DECIDE THEY ARE ENTITLED TO $1.05 PER HOUR.

THIS PROPOSED INCREASE WAS GIVEN CONSIDERATION AND DENIED IN DECISION TO THE PUBLIC PRINTER DATED NOVEMBER 2, 1933, A-43098, WHEREIN IT WAS STATED, IN PART, AS FOLLOWS:

FROM THE FACTS OF RECORD, IT IS UNDERSTOOD THAT ON JUNE 30, 1932, THE EFFECTIVE DATE OF THE ECONOMY ACT, AND PRIOR TO DECEMBER 20, 1932, CLAIMANT WAS RECEIVING $1 PER HOUR PURSUANT TO THE REGULAR TERMS AND CONDITIONS INCIDENT TO HIS EMPLOYMENT AS HAND COMPOSITOR, AND THAT BEFORE HE COULD BECOME ELIGIBLE FOR AN INCREASE TO $1.05 PER HOUR, IT WAS NECESSARY THAT THE PUBLIC PRINTER DETERMINE THAT HE HAD MET CERTAIN ADDITIONAL TERMS AND CONDITIONS INCIDENT TO HIS EMPLOYMENT AS HAND COMPOSITOR. IT IS UNDERSTOOD, ALSO, THAT HE COULD NOT BECOME ENTITLED TO THE INCREASED COMPENSATION PRIOR TO DECEMBER 20, 1932, OR SIX MONTHS FROM THE DATE OF HIS APPOINTMENT OF JUNE 20, 1932. IT IS NOT CLEAR THAT A MERE LAPSE OF SIX MONTHS' TIME, THE PROBATIONAL PERIOD, WOULD HAVE ENTITLED THE EMPLOYEE TO AN INCREASE IN COMPENSATION FROM $1 TO $1.05 PER HOUR, BUT EVEN SO, THE ADDITIONAL SERVICE IS A CONDITION WHICH WAS REQUIRED TO BE MET BY THE EMPLOYEE BEFORE BECOMING ELIGIBLE FOR AN INCREASE IN COMPENSATION.

IN DECISION OF JULY 7, 1932, 12 COMP. GEN. 5, QUOTED IN YOUR LETTER, THIS OFFICE HELD, ON THE BASIS OF THE FACTS THEN PRESENTED, THAT SUCH AN INCREASE WOULD CONSTITUTE AN "ADMINISTRATIVE PROMOTION" AND WOULD BE PROHIBITED BY SECTION 202 OF THE ECONOMY ACT, SUPERSEDED FOR THE FISCAL YEAR 1934 BY SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515.

IN THE BRIEF FILED ON BEHALF OF THE CLAIMANT BY HIS ATTORNEYS, IT IS STATED, IN PART, AS FOLLOWS:

MR. FORDEN DID NOT BECOME ENTITLED TO THE PAY OF A JOURNEYMAN PRINTER BECAUSE OF AN AUTOMATIC INCREASE IN COMPENSATION BY REASON OF LENGTH OF SERVICE. IN FACT, HE DID NOT AUTOMATICALLY BECOME A JOURNEYMAN. THE COMPLETION OF HIS APPRENTICESHIP MERELY MADE HIM ELIGIBLE TO BE APPOINTED A JOURNEYMAN, IF THE PUBLIC PRINTER SAW FIT TO APPOINT HIM, AFTER THE PERIOD OF HIS APPRENTICESHIP HAD CEASED. IT WOULD THUS VERY CLEARLY SEEM TO BE THAT HE DID NOT AUTOMATICALLY BECOME A JOURNEYMAN, AND THUS DID NOT BECOME AUTOMATICALLY ENTITLED TO A JOURNEYMAN'S PAY. HE WAS APPOINTED A JOURNEYMAN AND THEREBY BECAME ENTITLED TO THE PAY OF A JOURNEYMAN, THE SAME AS ALL OTHER JOURNEYMEN. THE MINIMUM PAY OF A JOURNEYMAN WAS ONE DOLLAR AND FIVE CENTS ($1.05) PER HOUR, BUT THIS WAS REFUSED HIM.

NOR CAN IT BE SAID, WITH ANY MORE SHOW OF REASON, THAT MR. FORDEN'S APPOINTMENT AS A JOURNEYMAN PRINTER WAS AN ADMINISTRATIVE PROMOTION, JOURNEYMAN. THE SERVING OF THE APPRENTICESHIP SIMPLY MADE HIM ELIGIBLE TO APPOINTMENT. HE WAS NOT PROMOTED INTO THE APPOINTMENT. A PROMOTION CLEARLY CONNOTES AN INCREASE IN PAY OR RANK WITHIN THE SAME EMPLOYMENT,NOT AN APPOINTMENT INTO A NEW EMPLOYMENT. MR. FORDEN WAS NOT BEING PROMOTED FROM ONE POSITION TO ANOTHER BUT WAS BEING APPOINTED TO A NEW POSITION. HE BECAME A JOURNEYMAN BY REASON OF SUCH APPOINTMENT AND WAS ENTITLED TO THE JOURNEYMAN'S PAY, WHICH HE DID NOT RECEIVE UNTIL SEPTEMBER 1, 1934.

SECTION 2 OF THE CIVIL SERVICE ACT OF JANUARY 16, 1883, 22 STAT. 403, PROVIDES:

SECOND. AND AMONG OTHER THINGS, SAID RULES SHALL PROVIDE AND DECLARE, AS NEARLY AS THE CONDITIONS OF GOOD ADMINISTRATION WILL WARRANT, AS FOLLOWS:

FOURTH, THAT THERE SHALL BE A PERIOD OF PROBATION BEFORE ANY ABSOLUTE APPOINTMENT OR EMPLOYMENT AFORESAID.

RULE VII (C) OF THE CIVIL SERVICE RULES AND REGULATIONS PROVIDES AS FOLLOWS:

(C) PROBATIONARY APPOINTMENT.--- THE PERSON SELECTED FOR APPOINTMENT SHALL BE DULY NOTIFIED BY THE APPOINTING OFFICER, AND UPON ACCEPTING AND REPORTING FOR DUTY SHALL RECEIVE FROM SUCH OFFICER A CERTIFICATE OF APPOINTMENT. THE FIRST 6 MONTHS UNDER THIS APPOINTMENT SHALL BE A PROBATIONARY PERIOD; BUT THE COMMISSION AND THE DEPARTMENT CONCERNED MAY, BY REGULATION, FIX THE PROBATIONARY PERIOD AT 1 YEAR FOR ANY SPECIFIED POSITIONS. IF AND WHEN, AFTER FULL AND FAIR TRIAL, DURING THIS PERIOD, THE CONDUCT OR CAPACITY OF THE PROBATIONER BE NOT SATISFACTORY TO THE APPOINTING OFFICER, THE PROBATIONER SHALL BE SO NOTIFIED IN WRITING, WITH A FULL STATEMENT OF REASONS, AND THIS NOTICE SHALL TERMINATE HIS SERVICE. HIS RETENTION IN THE SERVICE BEYOND THE PROBATIONARY PERIOD CONFIRMS HIS ABSOLUTE APPOINTMENT. THUS, IT IS CLEAR THAT A PROBATIONARY, FOLLOWED BY A PERMANENT, APPOINTMENT UNDER THIS LAW AND REGULATION DOES NOT CONSTITUTE THE MAKING OF TWO SEPARATE AND DISTINCT APPOINTMENTS TO TWO SEPARATE AND DISTINCT POSITIONS, BUT, ON THE CONTRARY, THERE IS MERELY A TRIAL PERIOD FOLLOWED BY CONFIRMATION, IF SERVICE HAS BEEN SATISFACTORY, OF ONE APPOINTMENT TO ONE POSITION. ANY ADMINISTRATIVE REGULATION WHICH PURPORTS TO PROVIDE FOR AN INCREASE IN COMPENSATION AT THE TERMINATION OF THE PROBATIONARY PERIOD, WHEN THE SERVICE IS DETERMINED ADMINISTRATIVELY TO HAVE BEEN SATISFACTORY, IS TO BE REGARDED AS AN "ADMINISTRATIVE PROMOTION" WITHIN THE MEANING OF THE ECONOMY ACT AS AMENDED.