As the facts appear to justify the conclusion that the transfer of this former employee was for his own benefit or convenience, within the meaning of the provisions of section 2 of the act of March 3, 1933, 47 Stat. 1513, the traveling expenses incident to such transfer are not a proper charge against the Government. Accordingly, settlement US-3874-J (Col-0468419), dated December 10, 1934, must be and is sustained.

It appears that on September 19, 1934, Mr. Bechtal applied for and was paid on check no. 4530 the sum of $89.98 as refund of retirement deductions.

The claimant herein, William B. Bechtal, should forward to this Office without delay the sum of $74.73, representing the amount due the United States.

(A-59391)

COMPENSATION-40-HOUR WEEK-AIR CORPS, UNITED STATES ARMY

The provisions of section 23 of the act of March 28, 1934, establishing the 40-hour week, are not applicable to any of the employees of the Air Corps of the Army.

Comptroller General McCarl to the Secretary of War. January 16, 1935:

There has been received your letter of December 19, 1934, as follows:

Reference is made to the provisions of section 23, Independent Offices Appropriation Act, 1935, passed March 28, 1934 (48 Stat. 522).

Field employees of the Air Corps are paid from lump-sum appropriations and, with few exceptions, are paid on an annual basis. The compensation of the majority of such employees is administratively fixed in accordance with the terms of the Classification Act as extended to the field services by section 2 of the act of July 3, 1930 (46 Stat. 1005), and it is the understanding of the Department that such employees do not come within the terms or section 23 of the act of March 28, 1934, referred to above (13 Comp. Gen. 279).

There are, however, other employees whose compensation is not fixed in accordance with the Classification Act as amended by the act of July 3, 1930. The compensation of this latter class of employees is arbitrarily fixed by the Secretary of War or by authority delegated by him and in some instances is determined by and is in accordance with the rate of pay commonly paid by commercial activities in the locality in which the employment is made. In other cases the compensation is at the minimum rate which will enable the Air Corps to obtain the services of persons with the required degree of experience and efficiency. This class of employees may be divided into general groups as follows: 1. Skilled trades, such as aircraft mechanics, automobile mechanics, engine mechanics, instrument mechanics, blacksmith, carpenter, electrician, electroplater, fabric seamstress, fabric workers, machinist, machine repairmen, millwright, packer, painter, sheet-metal worker, steam fitters and pipe fitters, welders, wireworkers.

2. Inspectors and superintendents, such as aircraft inspector, aircraft-supplies inspector, engine inspectors, metal-parts inspector, shop superintendent. 3. Chauffeur.

4. Guard, fire fighter.

5. Miscellaneous, such as material estimator, oil reclaimer, stock tracer, gardener, janitor, messenger.

6. Laborer.

7. The general duties of inspectors and superintendents are as follows: Aircraft inspector.-Inspection of aircraft which have been repaired or over hauled or of processed and finished aircraft parts, assemblies, subassemblies, accessories, and equipment.

Aircraft supplies inspector.-The performance of nonprofessional inspection work in connection with the receipt, purchase, installation, or issue, of nonengineering aircraft and aircraft engine parts, fittings, accessories, supplies, or equipment, such inspection being made chiefly to insure compliance with plans, samples, specifications, and contract requirements.

Engine inspector.-Inspection of aircraft engines which have been repaired or overhauled, or of processed and finished aircraft engine parts, assemblies, subassemblies, accessories, and equipment.

Aircraft metal parts inspector.-Inspection of materials, including ferrous and nonferrous metals, used in the fabrication and maintenance of aircraft, or of processed and finished aircraft and aircraft engine parts, assemblies, subassemblies, accessories, and equipment.

Aircraft shop superintendent.-To have responsible charge of, and to supervise and direct the activities of a group of mechanics, helpers, and others engaged in mechanical and other tasks covering any two or more skilled trades involved in the maintenance, overhaul, repair, fabrication, or salvage of aircraft or aircraft engines, parts, accessories, or equipment.

8. The general duties of employees referred to in subparagraph 5, above, are as follows:

Material estimator.-To estimate the amount and particular types of material required to accomplish specific jobs, projects, or work orders, and to list the materials and parts required to complete same.

Oil reclaimer operator.-The reclamation and testing, and occasionally, the storage and issuing of reclaimed oils and by the use of flash and other tests to determine the various grades of gasoline furnished for aircraft use.

Stock tracer.-The distribution for overhaul, repair, assembly installation, to the proper mechanical branches and units of an aircraft shop, dismantled, assembled, or repaired aircraft and aircraft engine parts, fittings, accessories, or equipment.

Gardener. The performance of general gardening and landscaping work on the grounds of an air depot or similar reservation; and the performance of related work.

9. The general duties of other employees named are indicated by their respective designations.

There are no wage boards which specifically regulate or determine the compensation paid any employees of the field force of the Air Corps.

It is understood that your decisions of August 25, 1934 (14 Comp. Gen. 156) and September 10, 1934 (A-56659), limit the application of the decision of June 30, 1934 (13 Comp. Gen. 486), to employees of the Engineer Department at large, and that the rule therein stated is not to be extended to other employees. In consequence of these decisions it is concluded that, as to employees other than those specifically covered by the decision of June 30, 1934, an administrative procedure in fixing rates of compensation which takes into consideration the locally prevailing wage rate for similar classes in commercial industry is a procedure similar to that followed by wage boards, and that section 23 applies to such employees.

Your decision is therefore requested as to whether the provisions of section 23, act of March 28, 1934, apply to the employees enumerated above.

In decision of September 12, 1934, 14 Comp. Gen. 215, 217, it was stated:

Section 23 of the act of March 28, 1934, 48 Stat. 522, establishing the 40-hour week is applicable only to employees of the Federal Government of the classes therein mentioned whose hours of labor and rates of compensation previously had been controlled by statute and/or regulations issued pursuant to statute and having the force and effect of law authorizing or requiring the fixing of rates of compensation by wage boards or pursuant to a procedure similar to that used by wage boards.

It does not appear that there was in force prior to March 28, 1934, any law, Executive order, or administrative regulation requiring the fixing of the rates of

compensation and hours of labor of the employees of the United States Shipping Board Merchant Fleet Corporation under a procedure similar to that used by wage boards. Hence, the provisions of section 23 of the act of March 28, 1934, are not applicable to said employees and there is no authority of law for the adjustment of the wages of the employees of the corporation retroactively as of March 28, 1934, as proposed.

It does not appear that there was in force prior to March 28, 1934, any law, Executive order, or administrative regulation requiring the fixing of the rates of compensation and hours of labor of field. employees of the Air Corps under a procedure similar to that used by wage boards. The administrative practice mentioned in your letter that the compensation "in some instances is determined by and is in accordance with the rates of pay commonly paid by commercial activities in the locality in which the employment is made " does not necessarily bring any of the field employees of the Air Corps within the 40-hour week statutory provision. Decision of December 31, 1934, A-59309, 14 Comp. Gen. 496.

You are advised, therefore, that on the basis of the facts presented, the provisions of section 23 of the act of March 28, 1934, establishing the 40-hour week, are not applicable to any of the employees listed in your letter in the Air Corps of the Army.

(A-59561)

CLASSIFICATION-EMERGENCY POSITION—ADMINISTRATIVE

PROMOTION

The reclassification of an emergency position from one Executive-order grade to a higher Executive-order grade, accompanied by an increase in compensation from one rate to the higher rate stated in the Exccutive-order schedule for such grades, with no change in duties and responsibilities, constitutes an administrative promotion and is prohibited during the current fiscal year.

Comptroller General McCarl to the Chairman, National Labor Relations Board, January 16, 1935:

There has been received your letter of January 5, 1935, as follows: I wish to lay before you for an opinion a set of circumstances which has arisen in connection with the appointment of one of our regional directors. Dr. Towne Joseph Nylander served as assistant secretary of the Los Angeles Regional Labor Board from April 1, 1934, at a salary of $2,600 per annum, up to the date of his appointment as associate director on October 1, 1934.

At the time of his appointment as associate director the board increased his salary to $4,000, with the understanding that if he successfully discharged the duties of the directorship he should, as of January 1st, receive $4,500, which is the minimum paid directors of the regional labor boards for full-time service. A short time after his appointment as associate director, his title was changed to regional director.

Since Dr. Nylander was established first as associate director with a subsequent change to regional director on probation, would you not construe the increase to $4,500 as being implicit in the change to regional director?

Dr. Nylander has made good as regional director, and this board would like your interpretation in advance of its proposal to make good its promise. I would appreciate an early reply.

The National Labor Relations Board was created by Executive Order No. 6763, dated June 29, 1934, under authority of the National Industrial Recovery Act and the joint resolution of June 19, 1934, 48 Stat. 1183, enacted to further effectuate the policies of the National Industrial Recovery Act, and, therefore, is one of the "emergency agencies" within the meaning and intent of Executive Order No. 6746, dated June 21, 1934, requiring the heads of existing agencies and those thereafter created to

classify the positions of the employees of their respective agencies now in the service or hereafter appointed in accordance with the following salary schedule and adjust and fix the rates of compensation therefor at amounts not in excess of those prescribed therein for the corresponding grades.

Both the salary rates of $4,000 and $4,500 per annum appear in the Executive order schedule as the salary rates for grades 13 and 14, respectively. It is understood that the Board classified the position of associate director, the title of which was later changed to regional director with no change in duties and responsibilities, occupied by Dr. Nylander, in Executive order grade no. 13 with salary rate of $4,000 per annum. If so, and the change from associate director to regional director was merely one of title designation and not the promotion or transfer of the incumbent from one distinct office or position to another, the advancement of the position to grade 14 with salary rate of $4,500 per annum, with no substantial change in duties and responsibilities, would be prohibited during the current fiscal year as an administrative promotion by the terms of section 7 of the act of March 3, 1933, 47 Stat. 1515, as extended through the fiscal year 1935 by section 24 of the act of March 28, 1934, 48 Stat. 522. Accordingly, on the basis of the facts presented, you are advised that the proposed increase in compensation is not authorized during the current fiscal year.

(A-57604)

NATIONAL RECOVERY FUNDS-TERMINATION OF AVAILABILITY The allotment of national recovery funds for river and harbor work will not be available for obligation beyond the fiscal year 1935 or for expenditure pursuant to such obligation after June 30, 1937.

Comptroller General McCarl to the Secretary of War, January 17, 1935:

There has been received your letter of January 9, 1935, as follows: Reference is made to your decision of October 15, 1934, A-57604, as to the period for which funds appropriated by the Fourth Deficiency Act, fiscal year 1933, and by the Emergency Appropriation Act, 1935, to carry into effect the provisions of the National Industrial Recovery Act, approved June 16, 1933, would remain available. The last paragraph of your decision states in part as follows:

"The language used in each of the acts is clear and can be construed only as is the general rule in connection with fiscal year appropriations, as making the funds available only for payment of obligations incurred on or prior to June 30, 1935."

Section 713, title 31, U. S. C., provides as follows:

"Same; carried to surplus fund.-After the 1st day of July in each year the Secretary of the Treasury shall cause all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years to be carried to the surplus fund and covered into the Treasury: Provided, That this provision shall not apply to permanent specific appropriations, appropriations for rivers and harbors, lighthouses, or public buildings, or the pay of the Navy and Marine Corps; but the appropriations named in this proviso shall continue available until otherwise ordered by Congress. (June 20, 1874, c. 328) (5, 18 Stat. 110; July 26, 1886, c. 781) (2, 24 Stat. 157; Mar. 3, 1919, c. 99) (6, 40 Stat. 1309.)

The National Industrial Recovery Act, as approved June 16, 1933, title II, sections 202 and 203, state in part as follows:

"Sec. 202. The Administrator, under the direction of the President, shall prepare a comprehensive program of public works, which shall include among other things the following: * * and construction of river and harbor improvements and flood control Provided, That no river or harbor improvements shall be carried out unless they shall have heretofore or hereafter been adopted by the Congress or are recommended by the Chief of Engineers of the United States Army.

"Sec. 203 (a) With a view to increasing employment quickly (while reasonably securing any loans made by the United States) the President is authorized and empowered, through the Administrator or through such other agencies as he may designate or create, (1) to construct, finance, or aid in the construction or financing of any public-works project included in the program prepared pursuant to section 202; (2) upon such terms as the President shall prescribe."

In the view that moneys allotted by the President for the prosecution of river and harbor improvements and flood control in accordance with and as provided by sections 202 and 203 of the National Industrial Recovery Act are appropriations for rivers and harbors within the meaning of section 713, title 31, Ù. S. C. and that funds so received by the War Department and obligated prior to June 30, 1935, remain available for and until such obligations are liquidated, this Department has entered into certain contracts for major construction work on the improvement of rivers and harbors, the prescribed time of completion of which will entail expenditures after June 30, 1937. Other large contracts are to be advertised in the near future. In order that the requirements may be so drawn as to provide for the execution of the work at the most advantageous and economical rate, your early opinion is desired as to whether these contracts may entail payments after June 30, 1937.

The appropriation for carrying out the provisions of the National Industrial Recovery Act is found in the act of June 16, 1933, 48 Stat. 275, and provides:

For the purpose of carrying into effect the provisions of the act entitled "An act to encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes ", approved June 16, 1933, and also for the purpose of carrying into effect the provisions of the act entitled "An act for the relief of unemployment through the performance of useful public work, and for other purposes' approved March 31, 1933, and for each and every object thereof, to be expended in the discretion and under the direction of the President, to be immediately available, and except as hereinafter provided to remain available until June 30, 1935, $3.300,000,000; of which not to exceed $50,000,000 shall be available to the board of directors of the Tennessee Valley Authority, and to remain available until expended, for the purpose of carrying out the provisions of the act of Congress entitled "The Tennessee Valley Authority Act of 1933", approved May 18, 1933,

While the National Recovery Act authorizes the allotment of funds for river and harbor work, such an allotment is not directed by the act but is left to the discretion of the President, and in the appropria