(B-21736)

COMPENSATION-WITHIN-GRADE PROMOTIONS — ELIGIBILITY — EFFECT OF COMPENSATION DIFFERENTIALS AND TEMPORARY HIGHER-GRADE ASSIGNMENTS

The granting under authority of section 15 of the Federal Highway Act of 1940 of a percentage differential of the base pay incident to the assignment of an employee from the continental United States for engineering services outside the continental United States is not an "equivalent increase in compensation" within the meaning of section 2 of the uniform within-grade salary-advancement statute of August 1, 1941, and does not affect the employee's eligibility to a within-grade salary advancement under the latter act. Decision B-20925, October 27, 1941, 21 Comp. Gen. 369, distinguished. Where an employee is transferred to a position in a higher grade resulting in an increase in compensation equivalent to the amount of the salary step in the lower grade, and, upon completion of the assignment in the higher grade, is returned to his former salary and grade the employee is not eligible for a within-grade salary advancement under the act of August 1, 1941, until the beginning of the next quarter after the lapse of 18 or 30 months (as the case may be) from the time he received the equivalent increase in compensation when transferred to the higher grade.

Comptroller General Warren to the Federal Works Administrator, November 22, 1941:

I have your letter of November 8, 1941, as follows:

In the administration of the "salary advancement" plan provided by the act of August 1, 1941 (Public 200, 77th Congress, 1st Session), some doubt has arisen as to the correct construction to be placed upon seeming conflicts in the interpretation of statutes applicable to this Agency which are herewith presented for your consideration.

Section 15 of the Federal Highway Act of 1940 (c. 715, #15, 54 Stat. 867, 871), authorizes the Public Roads Administration, with the approval of the Federal Works Administrator, to increase the compensation by not to exceed 25% of the base pay of any of its employees and of persons appointed under schedule A, subdivision I, paragraph 7, of Civil Service Rules, assigned to perform engineering services beyond the continental United States for any Agency or governmental corporation of the United States.

A provision similar in purpose is provided by title II of the act of November 26, 1940, extending the Classification Act (Public 880, 76th Congress, 3rd Session, c. 919, #3c, 54 Stat. 1211, 1213). That act provides as follows:

"Whenever the President, upon report and recommendation by the Commission, shall find and declare that the rates of the compensation schedules of the Classification Act of 1923, as amended, are inadequate for any offices or positions under such act, as amended and extended, he may by Executive order establish necessary schedules of differentials in the rates prescribed in such compensation schedules, but the differentials in the compensation of any such office or position shall not exceed 25 per centum of the minimum rate of the grade to which such office or position is allocated under such compensation schedules: Provided, That the provisions of this subsection shall be applicable only to such offices or positions having the following characteristics:

"Offices or positions which are located at stations that are isolated, remote, or inaccessible when compared with stations at which offices or positions of the same character are usually located, or which involve physical hardships or hazards that are excessive when compared with those usually involved in offices or positions of the same character, or which are located outside the States of the United States and the District of Columbia: Provided further, That nothing herein contained shall preclude the Commission from taking the factor of isolation, hardship, hazard, or foreign service into consideration in allocating a given class of offices or positions to a service and grade under the Classification Act of 1923, as amended, if such factor is uniformly involved in each office or position in the class, in which event no differential is authorized under this section."

The Act of August 1, 1941 (Public 200, 77th Congress, 1st Session, c. 346), providing for a uniform salary advancement plan insofar as herein pertinent provides as follows:

"SEC. 2.

"(b) All employees compensated on a per annum basis, and occupying permanent positions within the scope of the compensation schedules fixed by this act, who have not attained the maximum rate of compensation for the grade in which their positions are respectively allocated shall be advanced in compensation successively to the next higher rate within the grade at the beginning of the next quarter, following the completion of: (1) Each eighteen months of service if such employees are in grades in which the compensation increments are $60 or $100, or (2) each thirty months of service if such employees are in grades in which the compensation increments are $200 or $250, subject to the following conditions:

"(1) That no equivalent increase in compensation from any cause was received during such period, except increase made pursuant to subsection (f) of this section;

"(e) Employees eligible under subsection (b) for compensation advancement by reason of service immediately preceding the effective date of this amendment shall be advanced to the next higher rate of compensation within the grade to which their positions are respectively allocated at the beginning of the next quarter immediately following the effective date of this amendment. "(f) Within the limit of available appropriations, and in recognition of especially meritorious services, the head of any department or agency is authorized to make additional within-grade compensation advancements, but any such additional advancements shall not exceed one step and no employee shall be eligible for more than one additional advancement hereunder within each of the time periods specified in subsection (b). All actions under this subsection and the reasons therefor shall be reported to the Civil Service Commission. The Commission shall present an annual consolidated report to the Congress covering the numbers and types of actions taken under this subsection.

"(g) The President is hereby authorized to issue such regulations as may be necessary for the administration of this section."

"SEC. 7. There are hereby authorized to be appropriated such sums as may be necessary to carry the provisions of this act into effect.

"SEC. 8. Insofar as they are inconsistent or in conflict with prior laws, the provisions of this act shall control."

The Executive order of September 3, 1941 (No. 8882), promulgated by the President pursuant to the act of August 1, 1941, supra, provides insofar as herein pertinent as follows:

"SECTION 1. In the administration of the said section 7, the following definitions of terms used therein shall apply:

"(a) 'Permanent positions' shall include all positions except those designated as temporary by law and those established for definite periods of six months or less.

"(b) 'Positions within the scope of the compensation schedules fixed by this act' shall include all permanent positions, including positions in the field services, in the executive and legislative branches, in government-owned or government-controlled corporations, and in the municipal government of the District of Columbia, the compensation of which has been fixed on a per-annum basis, pursuant to the allocation of such positions to the appropriate grade either by the Civil Service Commission or by administrative action of the department or agency concerned, in accordance with the compensation schedules of the Classification Act of 1923, as amended, or the said schedules as adjusted by an authorized differential." [Italics supplied.]

"(c) 'Quarter' shall mean the three months' period beginning on January 1, April 1, July 1, or October 1.

"(d) 'Equivalent increase in compensation' shall mean any increase or increases which in total are equal to or greater than the compensation increment in the lowest grade in which the employee has served during the time period of eighteen or thirty months, as the case may be.

"(e) 'Current efficiency' shall mean the latest efficiency rating on record for the employee, made under a system of efficiency ratings prescribed or approved by the Civil Service Commission."

way Act of 1940, was to permit the adjustment of salaries of governmental employees serving in foreign countries to a salary commensurate in value in the foreign country to that received by Federal employees within the continental limits of the United States and, hence, an adjustment so made would not be an "equivalent increase in compensation from any cause" within the meaning of paragraph 1 of subsection (b) of section 2 of the act of August 1, 1941. However, some doubt exists with respect to this interpretation and your consideration of the following questions is therefore requested:

Is the granting of differential for foreign service to be considered an equivalent increase in compensation, thereby making it necessary for the employee to wait eighteen or thirty months, as the case may be, from the date the differential was granted before receiving a promotion under this act? If the differential is considered an equivalent increase in compensation, what would be the effect in the case where an employee who is receiving the differential is returned to the United States to a position that does not include the differential? For example, if an employee with seventeen months of service was sent to a foreign country and given a differential effective January 1, 1941, he would not be given a promotion this October, if the differential is considered an equivalent increase in compensation; but if he would be returned to the United States September 1, 1941, at his former salary, it would appear that he is entitled to an increase effective October 1, rather than eighteen months from the date the differential was granted. The same question applies in cases where an employee is transferred to a position in a higher grade, and then upon completion of the assignment is returned to his former salary and grade.

Since the matter is urgent, a prompt reply would be greatly appreciated. Section 15 of the act of September 5, 1940, 54 Stat. 871, mentioned in the second paragraph of your letter, provides as follows:

The Public Roads Administration is authorized to pay transportation and subsistence expenses of its employees, and of persons appointed under schedule A, subdivision I, paragraph 7, of Civil Service Rules, hereafter assigned to perform engineering services beyond continental Uited States for any agency or governmental corporation of the United States, including transportation and subsistence expenses of members of the immediate family of any such employee or person in traveling from their headquarters or homes to the post of duty outside continental United States and return; and, with the approval of the Federal Works Administrator, the compensation of any such employee so assigned may be increased during such assignment by not to exceed 25 per centum of his base pay. [Italics supplied.]

The differential thus authorized by the statute just quoted is in addition to the buse pay of the employee. The base pay (by the year) of an employee whose permanent position in the field service is within the scope of the Classification Act of 1923, as amended, may be any of the annual salary rates prescribed by the classification act for the grade or salary range in which the administrative office has placed or allocated the position pursuant to section 2 of the Brookhart Salary Act of July 3, 1930, 46 Stat. 1005. In decision of September 6, 1941, B-19688, 21 Comp. Gen. 205, wherein was considered section 4 of the Panama Canal Act of August 24, 1912, 37 Stat. 561, authorizing a compensation differential for employees serving in the Canal Zone of not to exceed 25 percent of the "salary or compensation paid for the same or similar services to persons employed by the Government in continental United States," it was held as follows:

Referring to question A in paragraph numbered 8 of your letter, the differential not to exceed 25 percent is not required to be based on the minimum salary rate of the grade in which an employee's position is allocated, but may be based on any salary rate of such grade properly fixed for the particular employee concerned.

The differential mentioned in your letter is a statutory percentage adjustment authorized to be made in the salary rate of an employee for performance of the same duties outside the continental United States that he would have performed within the continental United States and is authorized independently of any administrative action under the classification act, as amended, in allocating a position to the proper grade or salary range in fixing the basic salary rate. Section 15 of the act of September 5, 1940, supra, authorizing such a differential, is not inconsistent, or in conflict, with the provisions of the act of August 1, 1941, 55 Stat. 613, and, accordingly, is not superseded or rendered inoperative by section 8 of the latter statute.

Accordingly, referring to the first question presented, the granting of a percentage differential of the base pay incident to the assignment of an employee from the continental United States for engineering services outside the continental United States under authority of section 15 of the act of September 5, 1940, without other change in salary status of the employee, is not to be regarded as an “equivalent increase in compensation" within the meaning of section 7 (b) (1) of the Classification Act of 1923, added by section 2 of the act of August 1, 1941, Public Law 200.

This case is to be distinguished from the one considered in the eighth question and answer stated in decision of October 27, 1941, B-20925, 21 Comp. Gen. 369, which involved administrative action only under the provisions of the classification act, as amended, in allocating the position of nurse in Alaska in one grade higher than the same position had been allocated in the continental United States, there existing no express statutory authority for the granting of a differential for such service in Alaska. It was held that the increase resulting from the reallocation of the position in Alaska in the higher grade constituted an "equivalent increase in compensation for any cause" within the meaning of the act of August 1, 1941. The provisions of the act of November 26, 1940, 54 Stat. 1211, 1213, quoted in your letter, are not effective unless and until the President by Executive order establishes a compensation differential for the classes of positions therein mentioned. Compare 20 Comp. Gen. 484.

The first question is thus answered in the negative, making it unnecessary to answer the second (alternate) question.

Referring to the third question, not involving the payment of a differential, you are advised that if the transfer of the employee to a position in a higher grade resulted in an increase in compensation equivalent to the amount of the salary step in the lower grade, the employee is not eligible for a within-grade salary advancement in the lower grade after his return thereto until the beginning of the next quarter after the lapse of eighteen or thirty months (as the case may be) from the time he received the equivalent increase in com

pensation when transferred to the higher grade. See B-20500, dated October 2, 1941, 21 Comp. Gen. 285.

(B-21437)

BLIND-MADE PRODUCTS-GOVERNMENT AGENCY PURCHASE
REQUIREMENTS

The requirements of section 3 of the act of June 25, 1938, that, under specified conditions, brooms, mops, and other suitable commodities procured by or for any Federal department or agency be procured from non-profit-making agencies for the blind, must be observed by the Navy Department in procuring for resale to Navy enlisted men commodities of the kind described in said act, even though the prices in certain ir stances are in excess of those charged by commercial firms.

Comptroller General Warren to the Secretary of the Navy, November 24, 1941:

I have your letter of October 23, 1941, as follows:

There is enclosed herewith a copy of a letter from the Chief of the Bureau of Supplies and Accounts dated October 7, 1941, relative to procurement of articles included in the Schedule of Blind-Made Products.

Your decision is requested on the question presented as to whether purchases of articles other than those chargeable to annual appropriations for upkeep and maintenance of the Navy are to be considered mandatory under the act of June 25, 1938, 52 Stat. 1196 (U. S. C. title 41, sec. 46-48).

Whisk brooms are articles which may be procured for either of two purposes, i e., as "brooms, mops, and other suitable commodities" charged to annual appropriations for upkeep and maintenance of the Navy, or for personal accoutrement purposes purchased through a fund largely self-supporting but acquired for resale to individuals.

It would appear that in this latter category, i. e., when purchased for resale, the purchases do not come under the statute cited but may be made in open market when such procedure will result in minimizing the resultant charges to personal funds of enlisted men.

The letter of October 7, 1941, from the Chief of the Bureau of Supplies and Accounts, is, in pertinent part, as follows:

2. The schedule of blind-made products setting forth articles for which procurement from industries for the blind is mandatory under the reference, includes whisk brooms. This item is obtained largely by the Navy by purchase through the clothing and small stores fund, and carried in the clothing and small stores account for sale to naval personnel. Except for expenditures on account of gratuitous issues as initial outfits to recruits, the clothing and small stores fund is required to be self-supporting, and the cost of stock for sale to individuals must be fully covered by the selling price.

3. This Bureau, therefore, considers it imperative that every effort be made to obtain articles of clothing and small stores to established specifications at the lowest possible cost in order to minimize resultant charges to personal funds of enlisted men. With this in view, decision is requested as to whether or not, in the light of the subject act, this Bureau may consider the regulations and schedule of blind-made products based thereon nonmandatory with respect to purchase of articles required for resale to individuals, as distinguished from articles required for maintenance and upkeep of the Navy which are chargeable to annual appropriations.

4. In practice, this Bureau would desire to purchase any such article in the open market, when it is determined that a lower price may be obtained by this method, but to order from the industries for the blind when open-market purchase offers no advantage as to price.

The act of June 25, 1938, 52 Stat. 1196, provides

That there is hereby created a committee to be known as the Committee on Purchases of Blind-Made Products (hereinafter referred to as the "Committee")