A-43098, JANUARY 15, 1935, 14 COMP. GEN. 541

A-43098, JANUARY 15, 1935, 14 COMP. GEN. 541

COMPENSATION - 40-HOUR WEEK - ADMINISTRATIVE PROMOTIONS THE PROVISION OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, FOR REESTABLISHMENT OF THE WAGE SCHEDULE IN EFFECT AS OF JUNE 1, 1932, IN PUTTING INTO EFFECT THE 40-HOUR WEEK, IS SUBJECT TO THE RESTRICTION ON ADMINISTRATIVE PROMOTIONS MADE BY SECTION 24 OF THE SAME ACT.

COMPTROLLER GENERAL MCCARL TO THE PUBLIC PRINTER, JANUARY 15, 1935:

THERE ARE INCLOSED HEREWITH COPIES OF DECISIONS OF TODAY DISALLOWING THE CLAIMS OF HARRY BONNETT AND STANLEY A. FORDEN FOR INCREASED COMPENSATION FOR PERIODS PRIOR TO SEPTEMBER 1, 1934, THE EFFECTIVE DATE OF ADMINISTRATIVE PROMOTIONS PROPERLY ALLOWABLE.

IN YOUR REPORT OF JANUARY 2, 1935, IN THE CASE OF STANLEY A. FORDEN, YOU STATE, AS TO 30 EMPLOYEES OTHER THAN THE 2 WHOSE CLAIMS HAVE BEEN DENIED, AS FOLLOWS:

WHILE FORDEN'S PROMOTION ON SEPTEMBER 1 WAS NOT BASED ON THE FACT THAT HE HAD COMPLETED HIS 6-MONTHS' PROBATIONARY APPOINTMENT AS A COMPOSITOR, THERE WERE APPROXIMATELY 30 SUCH PROMOTIONS MADE AT THAT TIME WHICH INVOLVED AN INCREASE FROM $1.20 TO $1.26 PER HOUR. WHEN MAKING THESE PROMOTIONS THE PUBLIC PRINTER WAS, OF COURSE, COGNIZANT OF YOUR DECISION OF JULY 7, 1932, BUT HE DID NOT FEEL THAT IT WAS FOR APPLICATION IN THESE CASES, AFTER THE PASSAGE OF THE ACT OF MARCH 28, 1934 (PUBLIC, 141, SECTION 23) WHICH REQUIRED HIM TO REESTABLISH THE RATES OF PAY IN EFFECT ON JUNE 1, 1932. IN THIS CONNECTION SEE YOUR DECISION OF APRIL 6, 1934, 13 COMP. GEN. 269. AS THE ESTABLISHED RATE OF PAY ON JUNE 1, 1932, FOR A COMPOSITOR WHO HAD SERVED 6 MONTHS IN THE GOVERNMENT PRINTING OFFICE WAS $1.05 PER HOUR (INCREASED TO $1.26 PER HOUR BY ACT OF MARCH 28, 1934), THE 30 PROMOTIONS REFERRED TO ABOVE WERE APPROVED BY THE PUBLIC PRINTER IN HIS ENDEAVOR TO CARRY OUT THE PROVISIONS OF THE LAW IN QUESTION AS INTERPRETED IN THE DECISIONS QUOTED ABOVE.

HOWEVER, AS YOUR LETTER OF DECEMBER 14 RAISES A QUESTION AS TO THE CORRECTNESS OF THE PROCEDURE WHICH HAS HERETOFORE BEEN FOLLOWED BY THIS OFFICE, IT IS REQUESTED THAT YOU ADVISE ME WHETHER THE PUBLIC PRINTER HAS UNDER THE PRESENT LAW, AUTHORITY TO ADVANCE A COMPOSITOR FROM $1.20 PER HOUR TO $1.26 PER HOUR UPON THE COMPLETION OF A PROBATIONARY PERIOD OF 6 MONTHS IN ORDER TO MAINTAIN THE WEEKLY EARNINGS IN EFFECT JUNE 1, 1932. AS PROMOTIONS OF THIS TYPE HAVE BEEN HELD UP SINCE THE QUESTION WAS RAISED, MAY SUCH PROMOTIONS BE MADE RETROACTIVE TO THE DATE UPON WHICH THE PROBATION WAS COMPLETED, IN CASE YOUR ANSWER IS IN THE AFFIRMATIVE?

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES AS FOLLOWS:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

SECTION 24 OF THE SAME ACT PROVIDES, IN PART, AS FOLLOWS:

TITLE II OF THE ACT ENTITLED "AN ACT TO MAINTAIN THE CREDIT OF THE UNITED STATES GOVERNMENT," APPROVED MARCH 20, 1933, IS AMENDED BY INSERTING AT THE END THEREOF THE FOLLOWING:

"/B) THE FOLLOWING SECTIONS OF THE TREASURY-POST OFFICE APPROPRIATION ACT, FISCAL YEAR 1934, ARE HEREBY CONTINUED IN FULL FORCE AND EFFECT DURING THE FISCAL YEAR ENDING JUNE 30, 1935: SECTION 7 (PROHIBITING ADMINISTRATIVE PROMOTIONS): PROVIDED, THAT ADJUSTMENTS OF CHARGES FOR QUARTERS, SUBSISTENCE OR LAUNDRY, OR OTHER SIMILAR CHARGES, SHALL NOT BE INTERPRETED AS CONSTITUTING ADMINISTRATIVE PROMOTIONS, * * *.

"/2) SECTION 7 (PROHIBITING ADMINISTRATIVE PROMOTIONS) OF THE TREASURY- POST OFFICE APPROPRIATION ACT, FISCAL YEAR 1934, IS AMENDED BY ADDING AFTER THE FIRST PROVISO THEREOF A COLON AND THE FOLLOWING: "PROVIDED FURTHER, THAT ADMINISTRATIVE PROMOTIONS MAY BE MADE DURING THE FISCAL YEAR 1935 TO THE EXTENT THAT FUNDS ARE AVAILABLE THEREFOR, ON AN ANNUAL BASIS, FROM SAVINGS MADE IN THE AMOUNTS APPORTIONED FOR PERSONAL SERVICES FROM THE APPLICABLE APPROPRIATIONS FOR THE FISCAL YEAR 1935.'"

IN DECISION OF AUGUST 7, 1934, 14 COMP. GEN. 94, 95, IT WAS STATED AS FOLLOWS:

IT IS UNDERSTOOD THAT THE ONLY PROMOTIONS THAT WILL BE MADE WILL BE IN THE ADMINISTRATIVE OR NONPRODUCTION FORCE; THAT IT, AS TO EMPLOYEES IN THE POSITIONS, THE NUMBER OF WHICH DOES NOT NECESSARILY DEPEND UPON HOW MUCH OR HOW LITTLE PRINTING OR BINDING WORK IS TO BE DONE AND WITH RESPECT TO WHOM NO PROMOTIONS WILL BE MADE UNLESS SAVINGS THEREFOR ACCRUE ON AN ANNUAL BASIS.

NECESSARILY, EACH OF THE ABOVE QUOTED STATUTORY PROVISIONS MUST BE GIVEN EFFECT DURING THE CURRENT FISCAL YEAR. THE PROVISION IN SECTION 23 FOR REESTABLISHMENT OF THE WAGE SCHEDULE IN EFFECT AS OF JUNE 1, 1932, IN PUTTING INTO EFFECT THE 40-HOUR WEEK, IS SUBJECT TO THE RESTRICTION ON ADMINISTRATIVE PROMOTIONS BY SECTION 24 OF THE SAME ACT. THAT IS TO SAY, THE POSITION THE COMPENSATION OF WHICH IS TO BE ADJUSTED UNDER SECTION 23 IS THE POSITION THE COMPENSATION OF WHICH THE EMPLOYEE IS ENTITLED TO RECEIVE UNDER SECTION 24. AS IT IS UNDERSTOOD THAT PROBATIONARY JOURNEYMEN ARE NOT WITHIN THE "ADMINISTRATIVE OR NONPRODUCTION FORCE," WITHIN THE MEANING OF THE DECISION OF AUGUST 7, 1934, IT MUST BE AND IS HELD THAT THE 30 ADMINISTRATIVE PROMOTIONS MADE EFFECTIVE SEPTEMBER 1, 1934, WERE ILLEGAL AND CREDIT FOR PAYMENTS OF THE INCREASES IN COMPENSATION RESULTING THEREFROM WILL NOT BE ALLOWED.