B-111506, SEPTEMBER 30, 1952, 32 COMP. GEN. 156

B-111506, SEPTEMBER 30, 1952, 32 COMP. GEN. 156

COMPENSATION - INCREASES UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED - CLASSIFIED POSITIONS CHANGED TO WAGE BOARD POSITIONS BONA FIDE ADMINISTRATIVE PERSONNEL ACTIONS CHANGING CLASSIFIED POSITIONS TO WAGE BOARD POSITIONS MAY NOT BE CHANGED RETROACTIVELY ON THE BASIS THAT SUCH ACTIONS WERE ERRONEOUS IN THE ABSENCE OF A CIVIL SERVICE COMMISSION DETERMINATION THAT THE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THEREFORE, EMPLOYEES OCCUPYING SUCH POSITIONS ARE NOT ENTITLED TO THE RETROACTIVE AND WITHIN GRADE COMPENSATION INCREASES AUTHORIZED FOR CLASSIFIED EMPLOYEES BY THE INCREASED COMPENSATION AMENDMENT TO SAID ACT. THE PROVISIONS OF THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1952, MAKING FUNDS AVAILABLE FOR RETROACTIVE COMPENSATION INCREASES GRANTED BY ADMINISTRATIVE ACTION PURSUANT TO LAW TO CERTAIN CLASSES OF EMPLOYEES, DO NOT COVER EMPLOYEES WHOSE RATES OF COMPENSATION ARE FIXED BY WAGE BOARDS.

ACTING COMPTROLLER GENERAL YATES TO W. R. FRANCE, DEPARTMENT OF AGRICULTURE, SEPTEMBER 30, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1952, SUBMITTING A VOUCHER IN THE AMOUNT OF $682.56, PROPOSING PAYMENT OF RETROACTIVE COMPENSATION PAYMENTS UNDER SECTION 6 (B) OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 615 ( PUBLIC LAW 201), PLUS PERIODIC WITHIN-GRADE INCREASES, TO THREE EMPLOYEES OCCUPYING POSITIONS WHICH THE REGIONAL PERSONNEL OFFICER, SPARTANBURG, SOUTH CAROLINA, BELIEVES WERE ERRONEOUSLY EXEMPT FROM THE PROVISIONS OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AND REQUESTING DECISION WHETHER SAID VOUCHER, IN VIEW OF THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, MAY BE CERTIFIED FOR PAYMENT.

THE RECORD SHOWS THAT UNDER DATE OF NOVEMBER 3, 1949, THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT OF AGRICULTURE ISSUED A MEMORANDUM DIRECTED TO MEMBERS OF WAGE BOARDS AND BUREAU PERSONNEL OFFICERS RELATIVE TO THE CLASSES OF POSITIONS FOR WHICH WAGE RATES ARE SET, TO WHICH WAS ATTACHED A LIST OF SAID CLASSES OF POSITIONS. SAID MEMORANDUM DIRECTED, IN EFFECT, THAT POSITIONS OF LABORERS AND CRAFTSMEN CURRENTLY USED IN THE DEPARTMENT, COVERED THEREBY AND ADMINISTRATIVELY DETERMINED AS PROPERLY EXEMPT FROM THE CLASSIFICATION ACT OF 1949, SECTION 202 (7), 63 STAT. 955, WERE TO BE GIVEN WAGE BOARD STATUS OR PLACED UNDER OTHER PROPER ADMINISTRATIVE AUTHORITY. AS A RESULT OF SAID MEMORANDUM, THE REGIONAL PERSONNEL OFFICER ISSUED PERSONNEL ACTIONS CHANGING THE THREE POSITIONS HERE INVOLVED FROM THE CRAFTS, PROTECTIVE, AND CUSTODIAL SERVICE ( CPC) UNDER THE CLASSIFICATION ACT OF 1949 TO POSITIONS FOR WHICH WAGE RATES ARE SET. EACH OF SAID ACTIONS WAS COMPLETELY PROCESSED PRIOR TO THE EFFECTIVE DATE OF THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 201. THE SALARIES OF THE EMPLOYEES HOLDING THOSE POSITIONS, IT IS STATED, HAVE REMAINED UNCHANGED FROM THE DATE OF THE ORIGINAL ACTION, NO DIFFERENT WAGE RATES HAVING BEEN ESTABLISHED THEREFOR TO DATE. IT ALSO IS STATED THAT PERSONNEL ACTIONS HAVE BEEN FULLY PROCESSED WITH RESPECT TO 18 OTHER SIMILAR POSITIONS ADMINISTRATIVELY ESTABLISHING WAGE BOARD STATUS THEREFOR. IN ADDITION, IT IS STATED THAT OTHER SIMILAR POSITIONS WERE NOT CHANGED AND THE OCCUPANTS THEREOF HAVE RECEIVED THE BENEFITS OF THE ACT OF OCTOBER 24, 1951, SINCE THE QUESTION OF WHETHER SAID POSITIONS WERE SUBJECT TO THE CLASSIFICATION ACT OF 1949 OR EXEMPT FROM IT HAD BECOME HIGHLY CONTROVERSIAL IN SAID REGIONAL OFFICE AND FURTHER ACTION THERE IN THAT REGARD WAS SUSPENDED. WHILE THE RECORD DOES NOT SHOW HOW THE DOUBT AROSE RESPECTING THIS MATTER, IT IS HIGHLY PROBABLE THAT SAME RESULTED FROM THE PASSAGE OF THE ACT OF OCTOBER 24, 1951, UNDER WHICH EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949 WERE GRANTED RETROACTIVE INCREASES. THE REGIONAL PERSONNEL OFFICER NOW HAS ISSUED, ON HIS OWN INITIATIVE, APPARENTLY AFTER RESOLVING SAID CONTROVERSY TO HIS OWN SATISFACTION, PERSONNEL ACTIONS COVERING SAID THREE POSITIONS PROPOSING TO RETROACTIVELY CORRECT THE PREVIOUS ACTIONS, THUS, IN EFFECT, RESTORING SAID POSITIONS TO THE COVERAGE OF THE CLASSIFICATION ACT OF 1949, THEREBY MAKING THE PROVISIONS OF THE ACT OF OCTOBER 24, 1951, APPLICABLE.

SECTION* 203 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 956, PROVIDES AS FOLLOWS:

THE CIVIL SERVICE COMMISSION, HEREINAFTER REFERRED TO AS THE " COMMISSION" IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 TO SPECIFIC POSITIONS, OFFICERS AND EMPLOYEES.

DEPARTMENTAL CIRCULAR NO. 623, ISSUED BY SAID COMMISSION ON NOVEMBER 10, 1949, PROVIDES, IN PERTINENT PART, THAT---

THE AUTHORITY TO MAKE FINAL DECISIONS ON COVERAGE AND EXEMPTIONS IS BY SECTION 203 VESTED IN THE COMMISSION. THEREFORE, WHENEVER A DEPARTMENT IS IN DOUBT WHETHER A GIVEN GROUP OF POSITIONS IS COVERED OR EXEMPT, IT SHOULD ASK THE COMMISSION FOR A RULING IN RESPECT TO SAME. HOWEVER, IT DOES NOT APPEAR THAT LATER, WHEN DOUBT DID ARISE RESPECTING THIS MATTER, THAT A REQUEST WAS MADE TO THE COMMISSION FOR SUCH RULING.

IT APPEARS FROM THE ADMINISTRATIVE DIRECTIVES DEALING WITH THIS MATTER, WITH RESPECT TO THE POSITIONS IN THE FIELD SERVICE OF THE VARIOUS ACTIVITIES OF THE DEPARTMENT, THAT *ADMINISTRATIVE ACTION WAS DECREED TO BE TAKEN RELATIVE TO THE POSITIONS LISTED BY THE DEPARTMENT OF AGRICULTURE AS BEING PROPERLY EXEMPT FROM THE CLASSIFICATION ACT OF 1949, SECTION 202. THE ADMINISTRATIVE ACTION WITH RESPECT TO THE THREE POSITIONS HERE INVOLVED APPEARS TO HAVE BEEN TAKEN IN ACCORDANCE WITH SAID DIRECTIVES AND UNDER THE CIRCUMSTANCES CONSTITUTED BONA FIDE PERSONNEL ACTIONS EFFECTING A CHANGE OF SAID POSITIONS FROM THE COVERAGE OF THE CLASSIFICATION ACT OF 1949 TO THE CLASSES OF POSITIONS FOR WHICH WAGE RATES ARE SET. AT THE TIME SAID CHANGES WERE EFFECTED, NOTHING APPEARS IN THE RECORD TO SHOW THAT ANY DOUBT EXISTED RESPECTING SAID CHANGES AND, IN THE ABSENCE OF A RULING FROM THE CIVIL SERVICE COMMISSION ESTABLISHING A DIFFERENT STATUS, THIS OFFICE MUST ON THE PRESENT RECORD VIEW THE POSITIONS IN QUESTION AS NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949. 31 COMP. GEN. 200.

THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1952, APPROVED JUNE 5, 1952, PROVIDES, UNDER THE GENERAL PROVISIONS, CHAPTER XI, 66 STAT. 120, FOR RETROACTIVE PAY INCREASES TO CERTAIN CLASSES OF EMPLOYEES GRANTED BY ADMINISTRATIVE ACTION PURSUANT TO LAW BUT SAID PROVISIONS DO NOT COVER EMPLOYEES WHOSE RATES OF PAY ARE FIXED BY WAGE BOARDS. SEE REMARKS RESPECTING THIS MATTER CONTAINED IN DOCUMENT NO. 358, HOUSE OF REPRESENTATIVES, 82D CONGRESS, 2D SESSION, IN THE LETTER OF THE DIRECTOR OF THE BUDGET TO THE PRESIDENT, DATED FEBRUARY 15, 1952.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.