B-2943, APRIL 18, 1939, 18 COMP. GEN. 796

B-2943, APRIL 18, 1939, 18 COMP. GEN. 796

CLASSIFICATION - POSITIONS COVERED INTO CIVIL SERVICE - DEPARTMENTAL AND FIELD POSITION EXEMPTIONS THE CIVIL-SERVICE LAWS AND REGULATIONS, AND THE CLASSIFICATION ACT OF 1923, BEING SEPARATE AND DISTINCT WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES, EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938, COVERING CERTAIN POSITIONS INTO THE CLASSIFIED CIVIL SERVICE, FOR THE PURPOSE OF APPOINTMENT, DOES NOT OF ITSELF REQUIRE ANY ACTION TO FIX SALARY RATES OF THE INCUMBENTS UNDER THE CLASSIFICATION ACT, AS AMENDED, AND IT IS ONLY WHEN THE DUTIES AND RESPONSIBILITIES OF FIELD POSITIONS ARE THE SAME OR SIMILAR TO POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA SUBJECT TO THE CLASSIFICATION ACT THAT THE FIELD POSITIONS, ALSO, ARE REQUIRED TO BE ADMINISTRATIVELY CLASSIFIED. SECTION 5, OF THE ORIGINAL CLASSIFICATION ACT OF 1923, 42 STAT. 1489, HAVING EXEMPTED EMPLOYEES IN POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA FROM ITS COMPENSATION SCHEDULES WHERE THE DUTIES "ARE TO PERFORM OR ASSIST IN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND SKILLED AND SEMISKILLED LABORERS," EXCEPT AS THEREIN PROVIDED, SUCH CLASSES OF POSITIONS IN THE FIELD SERVICE ARE LIKEWISE EXEMPTED FROM ADMINISTRATIVE CLASSIFICATION EVEN THOUGH THE SAID FIELD POSITIONS ARE COVERED INTO CIVIL SERVICE UNDER EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ACTING AMERICAN COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, APRIL 18, 1939:

YOUR LETTER OF APRIL 6, 1939, IS AS FOLLOWS:

EFFECTIVE FEBRUARY 1, 1939, THE POSITIONS OF THIS COMMISSION WERE COVERED INTO THE UNITED STATES CIVIL SERVICE BY EXECUTIVE ORDER NO. 7916. WITH REFERENCE TO THE VARIOUS MECHANICS, TRADESMEN, SKILLED AND SEMISKILLED LABOR POSITIONS OF THIS COMMISSION WITH COMPENSATION AT DAILY AND HOURLY RATES THUS COVERED INTO THE UNITED STATES CIVIL SERVICE, THEREBY MAKING THEM CLASSIFIED POSITIONS, YOUR DECISION IS REQUESTED WITH RESPECT TO THE FOLLOWING:

1. IN VIEW OF THE ABOVE POSITIONS NOW BEING CLASSIFIED POSITIONS BY VIRTUE OF EXECUTIVE ORDER NO. 7916, MUST THESE POSITIONS BE CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923 AS AMENDED?

2. MAY NEW APPOINTMENTS TO THE ABOVE POSITIONS BE MADE AT RATES OTHER THAN THE ENTRANCE RATES OF THE CRAFTS AND CUSTODIAL SERVICE GRADES OF THE CLASSIFICATION ACT OF 1923 AS AMENDED?

3. WILL IT BE NECESSARY TO ADJUST THE SALARIES OF INCUMBENTS OF POSITIONS ENUMERATED ABOVE WHOSE COMPENSATION IS AT DAILY OR HOURLY RATES TO THE ENTRANCE RATES OF THE GRADES TO WHICH THEIR POSITIONS HAVE BEEN ALLOCATED, WHEN THEY WERE APPOINTED ON OR AFTER FEBRUARY 1, 1939, AND BEFORE THE RECEIPT OF YOUR DECISION IN REPLY TO THIS LETTER, IF THEIR PRESENT COMPENSATION WHEN CONVERTED TO AN ANNUAL RATE IS ABOVE OR BELOW THE ENTRANCE RATE OF THE GRADE?

4. MAY THE INCUMBENTS OF THE POSITIONS STATED ABOVE, WHO ON FEBRUARY 1, 1939 (BUT WHO WERE NOT IN THE SERVICE ON JUNE 24, 1938), WERE RECEIVING COMPENSATION AT DAILY OR HOURLY RATES, WHICH WHEN CONVERTED TO ANNUAL RATES, ARE NOT AT ONE OF THE STEPS WITHIN THE GRADE TO WHICH THE POSITION SHOULD BE ALLOCATED, BUT ARE AT RATES BETWEEN TWO STEPS IN THE GRADE, CONTINUE TO RECEIVE THE SAME COMPENSATION OR SHOULD THE COMPENSATION BE ADJUSTED (A) TO THE NEXT STEP UPWARD, (B) TO THE NEXT LOWER STEP, (C) OR TO THE ENTRANCE SALARY OF THE GRADE?

5. WILL IT BE NECESSARY TO ADJUST THE COMPENSATION OF THE INCUMBENTS OF SUCH POSITIONS WHO WERE IN THE SERVICE ON JUNE 24, 1938, JANUARY 31, 1939, AND FEBRUARY 1, 1939, AND WHO WERE RECOMMENDED FOR A CLASSIFIED STATUS IN ACCORDANCE WITH EXECUTIVE ORDER NO. 7916, WHEN THE COMPENSATION SITUATION IS THE SAME AS STATED IN QUESTION 4 ABOVE?

PRIOR TO FEBRUARY 1, 1939, THE COMPENSATION OF THE MECHANICS, TRADESMEN, SKILLED AND SEMISKILLED POSITIONS OF THIS COMMISSION WAS ADMINISTRATIVELY FIXED TO AGREE AS NEARLY AS POSSIBLE TO THE PREVAILING WAGE RATES FOR SIMILAR POSITIONS IN THE LOCALITY WHERE THE WORK WAS BEING PERFORMED. APPOINTMENTS SINCE THAT DATE HAVE BEEN AT THE SAME RATES, WHICH IN A NUMBER OF INSTANCES ARE NOT AT THE ENTRANCE RATES OF THE GRADES TO WHICH THE POSITIONS MAY BE ALLOCATED, FOR EXAMPLE:

(A) A POSITION ALLOCATED TO CR GRADE-4, ENTRANCE SALARY AT $1,320 PER ANNUM. THE INCUMBENT OF THIS POSITION MAY BE RECEIVING $4 OR $4.40 PER DAY, WHICH, WHEN CONVERTED TO AN ANNUAL RATE ON THE BASIS OF 312 DAYS TO THE YEAR, AMOUNTS TO $1,248 OR $1,372.80, RESPECTIVELY.

(B) A POSITION ALLOCATED TO CR GRADE 9, ENTRANCE SALARY AT $2,300 PER ANNUM. THE INCUMBENT OF THIS POSITION MAY BE RECEIVING $8 PER DAY, WHICH, WHEN CONVERTED TO ANNUAL RATE AMOUNTS TO $2,496.

(C) A POSITION ALLOCATED TO CR GRADE 8, ENTRANCE SALARY AT $2,000 PER ANNUM. THE INCUMBENT OF THIS POSITION MAY BE RECEIVING $6 OR $6.80 PER DAY, WHICH, WHEN CONVERTED TO AN ANNUAL RATE AMOUNTS TO $1,872 OR $2,121.60, RESPECTIVELY.

IN CONNECTION WITH QUESTION 5 YOU ARE ADVISED THAT A NUMBER OF THE EMPLOYEES OF THIS COMMISSION, WHO WERE RECOMMENDED FOR A CLASSIFIED STATUS UNDER AUTHORITY OF EXECUTIVE ORDER NO. 7916, HAD BEEN EMPLOYED A NUMBER OF YEARS AND THEY HAD ADVANCED IN THE SERVICE TO THEIR POSITIONS ON FEBRUARY 1, 1939, AND HAVE EARNED PROMOTIONS. THEREFORE, IT IS DESIRED, IF POSSIBLE, TO PERMIT THEM TO RETAIN THEIR PRESENT SALARIES OR TO HAVE THEIR PRESENT WAGE ADJUSTED TO THE NEXT HIGHER STEP IN THE GRADE TO WHICH THEIR POSITION MAY BE ALLOCATED.

SINCE FEBRUARY 1, 1939, SEVERAL TEMPORARY APPOINTMENTS PENDING ESTABLISHMENT OF REGISTERS HAVE BEEN MADE TO VARIOUS POSITIONS OF THIS CLASS AT DAILY AND HOURLY RATES, WHICH, WHEN COMPUTED ON AN ANNUAL BASIS OF 312 DAYS TO THE YEAR, DO NOT AMOUNT TO ONE OF THE ENTRANCE RATES FOR THE CRAFTS AND CUSTODIAL SERVICE GRADES UNDER THE CLASSIFICATION ACT OF 1923 AS AMENDED.

IN THE EVENT SUCH APPOINTMENTS MUST BE MADE AT ENTRANCE RATES OF THE GRADES, YOU ARE ADVISED THAT THIS COMMISSION WILL, IMMEDIATELY UPON RECEIPT OF YOUR DECISION TO THAT EFFECT, MAKE ALL SUBSEQUENT APPOINTMENTS AT ENTRANCE RATES OF THE CRAFTS AND CUSTODIAL SERVICE GRADES TO WHICH THE POSITIONS MAY BE ADMINISTRATIVELY ALLOCATED.

IN THIS CONNECTION YOU ARE ADVISED THAT ALL POSITIONS OF THIS COMMISSION ARE IN THE FIELD SERVICE.

IN ORDER THAT THIS COMMISSION MAY MAKE APPOINTMENTS IN THE PROPER MANNER TO THE VARIOUS POSITIONS ENUMERATED, YOUR DECISION AT AN EARLY DATE WOULD BE VERY MUCH APPRECIATED.

IN DECISION OF SEPTEMBER 6, 1938, 18 COMP. GEN. 223, 224, IT WAS STATED AS FOLLOWS:

THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES.

THE OPERATION OF EXECUTIVE ORDER NO. 7916, COVERING CERTAIN POSITIONS INTO THE CLASSIFIED CIVIL SERVICE EFFECTIVE FEBRUARY 1, 1939, FOR THE PURPOSE OF APPOINTMENT, DOES NOT OF ITSELF REQUIRE ANY ACTION TO FIX SALARY RATES OF THE INCUMBENTS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED. IT IS ONLY WHEN THE DUTIES AND RESPONSIBILITIES OF FIELD POSITIONS ARE THE SAME OR SIMILAR TO POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA SUBJECT TO THE CLASSIFICATION ACT THAT THE FIELD POSITIONS, ALSO, ARE REQUIRED TO BE ADMINISTRATIVELY CLASSIFIED. SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, DATED MARCH 4, 1923, 42 STAT. 1489, PROVIDES IN PART AS FOLLOWS:

THAT THE COMPENSATION SCHEDULES SHALL APPLY ONLY TO CIVILIAN EMPLOYEES IN THE DEPARTMENTS WITHIN THE DISTRICT OF COLUMBIA AND SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO PERFORM OR ASSIST AN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND SKILLED AND SEMISKILLED LABORERS, EXCEPT SUCH AS ARE UNDER THE DIRECTION AND CONTROL OF THE CUSTODIAN OF A PUBLIC BUILDING OR PERFORM WORK WHICH IS SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OF A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER. * * *

SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, PROVIDES AS FOLLOWS:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924 (43 STAT. 604), TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE ACT OF MAY 28, 1928 (U.S.C., SUPP. 3, TITLE 5, SEC. 673), AND BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA: *

IN DECISION OF JANUARY 6, 1932, 11 COMP. GEN. 259, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE TEST FOR DETERMINING WHETHER A FIELD POSITION IS SUBJECT TO THE PRINCIPLES OF CLASSIFICATION UNDER THE TERMS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, IS THE ACTION TAKEN BY THE PERSONNEL CLASSIFICATION BOARD AS TO THE SAME OR SIMILAR POSITION IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA.

SINCE IT APPEARS THAT SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT EXCEPTS FROM ITS TERMS THE CLASSES OF POSITIONS MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER, WITH THE EXCEPTIONS STATED IN THE STATUTE, SO ALSO WOULD THE FIELD POSITIONS OF THE SAME CLASSES BE EXCEPTED FROM ADMINISTRATIVE CLASSIFICATION. SEE GENERALLY 4 COMP. GEN. 900; ID.959; 5 ID. 136.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE MAKING IT UNNECESSARY TO ANSWER THE REMAINING QUESTIONS PRESENTED ALL OF WHICH APPEAR TO BE PREDICATED ON AN AFFIRMATIVE ANSWER TO QUESTION 1. HOWEVER, IF AFTER FURTHER CONSIDERATION IN THE LIGHT OF THIS DECISION, IT IS DETERMINED THAT CERTAIN POSITIONS OF THE CLASSES MENTIONED BY YOU NOT HERETOFORE CLASSIFIED ARE REQUIRED TO BE CLASSIFIED ADMINISTRATIVELY UNDER THE TERMS OF THE BROOKHART SALARY ACT, SUPRA, THIS OFFICE WILL GIVE FURTHER CONSIDERATION TO THE REMAINING QUESTIONS UPON REQUEST.