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8. Appropriate representative or representatives of the Division of Personnel Supervision and Management.
This office will greatly appreciate your advice at your earliest convenience as to whether travel expenditures for the respective persons described above and for the purpose indicated would be justified as official business and hence properly chargeable against travel appropriations.
The submitted copy of the grievance procedure is designated, "Personnel Bulletin No. 5," and reads as follows:
Personnel Bulletin No. 5.
Subject: Procedure for the Adjustment of Grievances Departmental Service. General Policy:
Any employee has the right, and is expected, to consult freely at all times with his supervisor concerning any questions affecting his duties, working conditions, employment status and like matters involved in the daily performance of his work. In response to requests for such discussions by employees, supervisors will make themselves available and will grant to employees under their supervision courteous and sympathetic interviews on any matter pertaining to the employee's welfare or the work of the organization.
The grievance procedure provides for the disposition of those disagreements arising between employees and their supervisors in the departmental service which for any reason cannot be satisfactorily adjusted by them. In presenting their complaints or grievances in accordance with this procedure, employees or their representatives shall be unimpeded and free from any restraint, interference, coercion, discrimination, or reprisal.
The Director of Personnel of the Federal Security Agency, in consultation with supervisors and employees or their representatives, shall be responsible for the prompt administration of the Agency's grievance procedure herein outlined. staff of the Division of Personnel Supervision and Management and appropriate officers of the constituent organizations of the Agency may be consulted by employees or their representatives or supervisors in any stage of the procedure hereafter prescribed for the purpose of securing advice on methods of procedure, or obtaining information concerning existing personnel regulations and interpretations of their respective rights and obligations under such regulations.
The Employee Relations Policy of the Federal Security Agency provides that: "Employees shall have the right to appeal from any decision of their supervisors affecting their employment status, working conditions, and their rights and privileges under this and other personnel policies. In connection with such appeals, employees shall have the right to designate a representative or representatives of their own choosing. Procedures for the orderly review of such appeals shall be established.
"The Director of Personnel and appropriate officers of the constituent organizations of the Federal Security Agency shall be responsible for advising both employees and supervisors of their rights and responsibilities in the execution of this Employee Relations Policy."
Complaints or grievances involving Federal Security Agency policies, the remedy for which lies outside the discretion of the head of any branch of the Agency, may be taken up by employees or their representatives directly with the Director of Personnel of the Agency.
This procedure is not intended to apply to appeals from efficiency ratings for which a procedure has been promulgated in Civil Service Departmental Circular No. 265 in accordance with the Ramspeck Act and Executive Order 8748.
1. Any employee (or group of employees) in the departmental service of the Federal Security Agency (including for this purpose the Accounting Operations Division, Social Security Board, Baltimore) who has a complaint arising out of a decision or action of his superior officer or officers will present his complaint personally to his immediate supervisor, unless he or his representative can demonstrate to the next higher supervisor that an interview with his immediate supervisor would be prejudicial to the employee within his authority; the supervisor to whom the complaint has been presented shall make every effort to settle the grievance.
2. If, in the opinion of the employee, prompt and equitable adjustment of his complaint is not secured from the supervisor who hears the complaint initially, the employee may present the problem in writing in duplicate to the supervisor next in line. describing succinctly the specific nature of the com
The individual against whom the grievance is directed will prepare a reply setting forth his version of the matter which will be submitted to the employee and to the official next in line. Both statements will become a part of the record and copies will be forwarded to the Director of Personnel, Federal Security Agency. The official handling the complaint at this point will then confer informally with the employee or his representative and with others concerned. If settlement is not reached, the grievance may then be presented in the same fashion through supervisory channels as established by the constituent organizations of the agency. Any supervisor to whom the grievance is addressed shall make a decision to the employee in writing within five working days after receipt of the appeal.
3. If a settlement is not reached through supervisory channels as established by the constituent organizations of the agency up to but not including the head of the constituent organization, the employee or his representative may appeal in writing to the head of his constituent organization for a review of his case before a hearing committee. The organization head will acknowledge receipt of this appeal immediately. The employee's original appeal together with the statement of the immediate supervisor, the decisions of the subsequent supervisors, and any other materials that either the employee or the supervisor concerned may wish to add will be referred to the head of the organization concerned.
4. The procedure for appeal to the head of a constituent organization shall be as follows:
(a) The organization head promptly after receipt of the appeal shall either effect a settlement of the grievance acceptable to the employee or refer the case with all material pertaining thereto to a special hearing committee whose recommendations will be advisory in nature and designed to guide the head of the constituent organization in arriving at a decision.
(b) The hearing committee will be composed as follows: The aggrieved employee will name a person of his choice to be a member of the hearing committee; the organization head will name the second member, and the two members thus chosen will agree upon a third member who will act as chairman. If the first two members are unable to agree upon a third within one week, two other members will be chosen in their stead and these two new members will select the third within one week. All three members of the hearing committee must be employees of the executive branch of the Federal Government.
(c) The hearing committee thus constituted shall determine its own procedure by a majority rule after consultation with, and if possible, agreement by both parties in the dispute prior to opening the case. A representative of the Division of Personnel Supervision and Management will be available to advise the committee on procedure if it desires such advice. The committee shall have access to all official records bearing on the case and shall hear any individuals whose testimony it deems to be relevent. Both parties shall have ample opportunity to present their sides of the case personally or through witnesses or written material and to review or rebut any evidence presented; an abstract of the proceedings recording all pertinent facts shall be kept for the purpose of facilitating subsequent review. The procedure shall be kept as informal as is consistent with an orderly presentation of the case. Such hearings shall be conducted during the regular working hours of the agency unless extended at the will of the committee.
(d) At the completion of its review of the case, the committee shall prepare a summary of the hearing and shall recommend a decision to the organization head. In the event of disagreement as to recommended disposition of the case, a dissenting recommendation may be made by a committee member. The report of the committee shall be made within thirty days after its selection.
5. The organization head will consider as promptly as possible the report, and recommendations of the hearing committee and after its receipt will communicate his written decision to the employee. If he disagrees with the recom mendations of the majority of the committee, he shall give to the employee his reasons therefor. Copies of the decision, together with all material pertaining to the case, shall be forwarded to the Director of Personnel of the Federal Security Agency who will make such material available to the appellant and to the supervisors concerned upon request.
6. An employee may request review of his grievance by the Federal Security Administrator upon a presentation in writing to show that his griev
ance is (a) one of major importance, or (b) that an opportunity for adequate presentation of the employee's appeal has been denied, or (c) that there is no substantial evidence to support the decision, not merely that the decision is unsatisfactory to the employee. If the appeal is accepted, the Director of Personnel will seek, by any and all means which he may deem necessary, to obtain a prompt and satisfactory adjustment. A report and recommendation of the Director of Personnel shall be rendered to the Federal Security Administrator within one month after receipt of the employee's written request for review. The Administrator after reviewing the case will render his decision.
The referred-to Civil Service Commission Departmental Circular No. 251, dated February 24, 1941, in accordance with which the foregoing grievance procedure was issued, reads, in part, as follows:
5. The Commission believes that before a final decision relative to the grievance is made by the head of the agency, the employee should have the opportunity of presenting the matter to either a permanent or an ad hoc committee, or board of review, whose recommendations should be advisory in nature and designed to guide the head of the agency in arriving at a decision. Membership on these committees or boards should be confined to employees of the executive branch of the Federal Government, provided, however, that for those Federal agencies not in the executive branch, the members of the committees or boards may be appointed from the agency concerned.
6. The Commission believes that any plan should recognize the right of an employee to designate, if he so desires, a representative or respresentatives of his own choosing to present his grievance to the supervisor, Director of Personnel, or any other person or committee designated by the head of the agency or the department.
Section 3681, Revised Statutes, provides:
No accounting or disbursing officer of the Government shall allow or pay any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry, except courtsmartial or courts of inquiry in the military or naval service of the United States, until special appropriations shall have been made by law to pay such accounts and charges.
Section 9 of the act of March 4, 1909, 35 Stat. 1027, provides: That hereafter no part of the public moneys, or of any appropriation here. tofore or hereafter made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise personal services from any executive department or other Government establishment in connection with any such commission, council, board, or other similar body.
In decision of February 27, 1932, 11 Comp. Gen. 331, 332, after quoting the above statutes, it was stated:
The purpose and effect of these statutes is to prohibit the incurring or paying of expenses incident to conducting inquiries or the creation of commissions, councils, boards, or similar bodies by the executive branch of the Government through its inherent power to make appointments and incur expenses, unless specific legislative authority for such inquiry, commission, council, board, or similar body is first granted by appropriation or otherwise. 5 Comp. Gen. 417; id. 553; 6 Comp. Gen. 140.
It is understood from the terms of paragraph 4 (a) of Personnel Bulletin No. 5, above quoted, that the special hearing committee has no independent authority but serves only in an advisory capacity to the personnel officer or the head of the agency. However, member
ship on the hearing committee is not proposed to be limited to the personnel of the Federal Security Agency, the only condition being that the members "must be employees of the executive branch of the Federal Government." In an opinion, dated April 14, 1909, 27 Op. Atty. Gen. 300, 307, the Attorney General stated, with regard to section 9 of the act of March 4, 1909, supra, as follows:
* I cannot conceive that it could ever be construed to prohibit the head of a department from submitting to the concurrent investigation and report of several employees of his department, any question which he might submit for investigation to any one of them.
See, also, 37 Op. Atty. Gen. 484. The said act of March 4, 1909, specifically prohibits the employment by detail or otherwise of services from any executive department or other Government establishment in connection with any such commission, council, board or other similar body. Accordingly, in the absence of specific authority of law, a committee to hear the grievances of employees of the Federal Security Agency, the membership of which includes employees of Federal agencies other than the Federal Security Agency, would contravene the provisions of that statute. Compare decision of June 22, 1940, B-10845.
The hearing of legitimate grievances of employees as authorized by Executive Order No. 7916 issued June 24, 1938, pursuant to the authority vested in the President, would appear to constitute official business, and, therefore, the traveling expense appropriation would be available for reimbursing the personnel of the Federal Security Agency for traveling expenses properly incurred incident to such official business. However, the appropriation would not be available for the traveling expenses of personnel of other Federal agencies or of persons not in the Federal service.
You are advised, therefore, that the appropriation for traveling expenses for the Federal Security Agency would be available for payment of traveling expenses of the classes of persons designated in your letter as 1, 2a, 3a, 4, 5, 6a, 7a i, and 8, but would not be available for payment of traveling expenses of classes designated as 2b, 3b and c, 6b and c, or 7a ii.
COMPENSATION-TRANSFERS-INITIAL SALARY RATES-TEMPORARY CENSUS EMPLOYEES RETRANSFERRED TO PERMANENT ROLLS A nonclassified temporary census employee restored under the special provisions of section 3 of the act of June 18, 1929, to a former permanent position status on the Census Bureau permanent roll is entitled, contrary to the rule generally applicable to transfers from nonclassified to classified positions, to be restored not on the basis of his salary status in the temporary position but on the basis of his previous permanent roll salary status, plus any increase to which he would have been entitled by operation of law had he remained on the permanent roll.
Comptroller General Warren to the Secretary of Commerce, October 28, 1941: I have your letter of October 15, 1941, as follows:
Section 3 of the act approved June 18, 1929 (46 Stat. 21), providing for the fifteenth and subsequent decennial censuses provides in part that
"In addition to the force hereinbefore provided for, there may be appointed by the Director of the Census, without regard to the provisions of the classification act, for any period not extending beyond the decennial-census period, at rates of compensation to be fixed by him, as many temporary employees in the District of Columbia as may be necessary to meet the requirements of the work: Provided, That census employees who may be transferred to any such temporary positions shall not lose their permanent civil-service status by reason of such transfer:
In view of numerous recent decisions of your office which appear to authorize transfers from positions not subject to the classification act to positions within the purview of that act at any salary rate of the grade to which transferred, provided the salary received in the position from which transferred is not exceeded, your decision of the following question is respectfully requested: May census employees transferred from positions subject to the classification act to positions set up under authority contained in section 3 of the act approved June 18, 1929, supra, be retransferred to their former, or different positions, within the purview of the classification act at any salary rate of the grade to which retransferred which is not in excess of the salary they may be receiving at the time of retransfer?
The general rule for fixing the initial salary rate under the classification act upon transfer from another position not subject to the classification act, to which you refer in the second paragraph of your letter, may be stated by quoting the following from the decision of February 28, 1940, 19 Comp. Gen. 763, 764:
in a number of subsequent decisions it has been held in effect that a transfer from a position which has not been classified under the Classification Act of 1923 to a position which falls within the purview of the act is not to be regarded as a new appointment requiring the initial salary rate for the position to which transferred to be fixed at the minimum rate of the grade in which the position had been allocated, but that one of the salary rates above the minimum prescribed for the grade, not to exceed the salary rate paid in the unclassified position prior to transfer, may be fixed initially. 15 Comp. Gen. 102; id. 797; 16 id. 994; 17 id. 1061; 19 id. 20. Compare 18 id. 223. That rule, of course, has relation to transfers not controlled by special statute. Section 3 of the act of June 18, 1929, 46 Stat. 21, quoted in your letter, is a special statute controlling the transfer of census employees from their regular permanent positions under the classification act to temporary positions in the Census Bureau not subject to the classification act when their services are necessary to meet the requirement of the census work, and controlling, also, the restoration of the employees to their permanent positions. The rules for fixing the initial salary rate of such employees upon restoration to their permanent positions under said statute have been stated in decisions of this office in the light of other laws existing during the Fifteenth Decennial Census.
In decision of July 5, 1929, A-27801, the following question and answer were stated:
(3) Would the permanent employees of the Bureau who might be transferred temporarily to the decennial-census roll have to be reappointed on January 1, 1933, at the minimum salary of their former classification grades?