have thousands of people that claim they cannot be placed. As a matter of fact, even our civil-service places in California are being filled from people in the East, which burns up our citizenry.

Mr. MITCHELL. I thought, Senator, I was boosting California. I thought I would get applause from you on that.

Senator DOWNEY. I am not saying your statement is not accurate, because we may have an entirely distorted view in our office about that. I say it is surprising to me. I cannot quite understand it, in view of the correspondence that we receive and from contact with people who call upon us.

Mr. MITCHELL. This statement that I furnished you, Senator, would show that California is entitled to 2,392 positions. That was on March 30, 1940. Of those, only 857 have been filled.

Senator DOWNEY. You say that is because there have been insufficient applicants?

Mr. MITCHELL. Apparently that is true. I do not want to say it is because they cannot pass a satisfactory examination. You would not want me to say that.

Senator MEAD. I think the Chamber of Commerce of California has the answer to that. Have you ever listened to them?

Mr. MITCHELL. Yes; I have listened to them. Hawaii is entitled to 155 places and only occupies 17. I presume the climate of Hawaii or something else has something to do with it.

Senator DOWNEY. May I interpose to ask some questions? Does this mean that if some citizen in California is qualified on the civil-service list and the position becomes open, he practically can be assured of getting that position?

Mr. MITCHELL. It does not mean that, Senator. It means that he would take his place just the same as the persons from these other States that are in arrears.

Senator DOWNEY. I should think he would take the first position. Mr. MITCHELL. That would be administratively impossible, because those States change from day to day. A State that may be in arrears today might be in excess tomorrow. We make up this table every 15 days and follow it in our appointments, and we put at the head of the list the people making the highest rating who are from the States in arrears, and following them come the people who make the highest grades from the States that are in excess.

Senator MEAD. In other words, you have two lists?

Mr. MITCHELL. We do not have two lists.

Senator MEAD. First are the people from the States in arrears and then those from the States that are in excess, and they are all listed according to their rating.

Mr. MITCHELL. That is practically the situation, Senator. A person from the State of Maryland or Virginia, or any of those other 15 States might make a grade of 99 but he would go below the person from the State of California who made a grade of 70.

Senator DOWNEY. That ought to fairly equalize it.

The CHAIRMAN. Are there any further questions?

Senator FRAZIER. I note here in this table that from Maryland they put on 15 since July 1, 1939.

Mr. MITCHELL. That is plus 15.

Senator FRAZIER. From New York they put on 360 and from Pennsylvania 79.

Mr. MITCHELL. That brought Pennsylvania in excess. Pennsyl vania has only 32 in excess now, and we put on 79. For instance, in the State of New York we might have 100 certifications out at the same time scattered all through the departments and we cannot recall them the minute that New York gets in excess. Those are out and we do not know what people are going to be selected by the departments.

Senator MEAD. I suppose retirements, resignations, and furloughs would have a tendency to change the rating.

Mr. MITCHELL. Yes.

Senator MEAD. For instance, you might not certify anybody from New York and yet New York, because of changes in personnel due to retirement, and so forth, might either go into excess or go below the mark.

Mr. MITCHELL. Yes. Referring to that 15 from Maryland, this is the only one in the table which brings up this point that Senator Frazier speaks of; they probably are stenographers. We ran out of stenographers from the States in arrears and then we certified from the States that are in excess.

The CHAIRMAN. Is there anything else now you want to express? Mr. MITCHELL. It may be the committee wants to ask some questions about classifications, or about some other technical points. Mr. Baruch of the Classification Division is here and can answer those questions.

The CHAIRMAN. I imagine we will want to get into that a little later. Do you wish to make a statement, Mrs. McMillin?

STATEMENT OF MRS. LUCILLE FOSTER MCMILLIN, MEMBER OF THE CIVIL SERVICE COMMISSION

Mrs. McMILLIN. Yes, Senator, I would like to say a few words, going further into this Keller-Nichols amendment.

Mr. Mitchell has mentioned the main point. There are other points, I think, we should think of.

In the first place, there is the practical impossibility of administering the bill with this provision. It carries the provision, as I recall-I do not remember just exactly the language, but that there shall be no recommendations, certifications from the agency concerned, no transfers, no promotions, no appointments until all the other States, all the States in arrears, shall have reached their quota. We see here the Virgin Islands are entitled to 9 positions and have none, and the same is true with Puerto Rico, Hawaii, and so forth. I will not mention those figures because it is not necessary. In other words, the head of an agency concerned could not certify or recommend for this noncompetitive examination, there could be no transfers, there could be no promotions, no appointments until all of these States and Territories in arrears should come to their full quota.

Now as to the matter of registers, as Mr. Mitchell has said, we always certify from the register first the eligibles from those States in arrears. It is quite possible, and has happened, Senator George and Senator Frazier, that there may not be sufficient eligibles from those States in arrears to supply the need. We have no alternative then but to certify eligibles from States which are even, or over the

quota. Under this bill we would not be allowed to do that, that is the Commission would not, and that would mean to announce another examination. Perhaps that examination might not bring the Com mission sufficient eligibles to fill the needs of vacancies to be filled. and another examination might have to be announced; and, of course, you can see the extra expense to the Government and the great inconvenience to these departments and agencies who are waiting for these eligibles.

There is another point that I would like to bring out. A provision of this bill reads that the head of the agency concerned is to recommend for the noncompetitive examination to the Civil Service Commission, but that must be done within 1 year after the position becomes classified. In 1 year the State in arrears may reach its quota or go over, but more important than that, in 1 year, or even less time than that, the State over its apportionment may drop into arrears. There are resignations, there are separations, there are deaths and furloughs, of course; and this is the point I want to make: It is the injustice done to a good employee with this 6 months of meritorious service or a much greater length of time to his credit. When the year is up, he has lost out entirely because he, or she, cannot be considered after that year is up, whereas a few days after the year is up, the State from which he or she comes may have fallen into arrears. There is the human side of it. That is bad enough, but it is quite possible and probable that the Government might lose a valuable employee in just that way. The language in the Civil Service Act, of course, as you know, is not mandatory, but the apportionment is to be maintained and observed as nearly as conditions of good administration will warrant. So I believe, Senator, that that does not look like a good administration.

Senator GEORGE. I realize that the requirement for apportionment among the States is not mandatory, but the feeling grew up in Congress here a good many years ago that the Commission-I am not speaking of the Commission as presently organized-but a good many years ago there was a feeling very strongly expressed on the Hill here that there was not a real attempt to regard the apportionment provisions seriously as directory. That led to some investigations in the past and a good many complaints, and that accounts for an amendment like this which, on the face of it, is not possible of fair administration or a fair degree of justice to the ones in the service.

Let me ask one question while the Commission is represented here. Has the person in any agency who thinks he has a just cause as a basis of his complaint that he has not been certified within the year for promotion, and so forth, under this act, any recourse? Is he given any remedy?

Mr. MITCHELL. If he has not been certified?

Senator GEORGE. Yes; by the head of the agency.

Mr. MITCHELL. I do not think so, Senator.

Mrs. McMILLIN. There is no remedy.

Senator GEORGE. Then the head of the agency becomes really important, so far as the people in the service are concerned.

Mrs. McMILLIN. He does.

Mr. MITCHELL. That applies all through the civil-service system. The head of any department, technically speaking, has the right to discharge any employees for inefficiency, or whatever the reason may be.

Senator GEORGE. I am assuming that there is a right or reason here for a review of the efficiency rating.

Mr. MITCHELL. That discharge has got to be followed out along certain rules, but, practically speaking, the employee has no recourse. There is no agency that can overrule the head of a department in discharging an employee, or refusing to employ him.

Senator GEORGE. Yes; within the year. That is probably what I had in mind.

Mr. FLEMMING. Senator George, of course the employee you are thinking of there can stay in that particular job indefinitely, even though he is not nominated. Although he will not have a civilservice status, he can stay in that particular job as the bill is now worded. Is that correct, Mr. Vipond?

Mr. VIPOND. Practically; yes.

Mr. FLEMMING. Under the bill the only thing that would result in his being separated is his failure to pass the noncompetitive examination set by the Commission.

Senator GEORGE. Then he is not separated until after the expira-27

tion of 6 months?

Mrs. McMILLIN. Within 6 months he must be separated.

Senator DowNEY. Mr. Chairman, I have to attend another committee meeting. Will you take my proxy, please?

The CHAIRMAN. Yes.

Senator MEAD. Mr. Chairman, I should like to ask the gentleman a question. It is my understanding that 4,000 temporary employees are being put on at the Census Bureau without regard to the apportionment law, but that they are all taken from the civil-service list, and that the reason these employees are taken on without regard to the apportionment law is the desire of the Census Bureau to build up a working force quickly. A good many of these employees, all of whom are on the civil-service lists, are on what might be called distinctive lists, like fingerprint classifiers, printers' assistants, and so on. It occurred to me that your Commission might consider the advisability, in view of the prolonged employment that will follow, probably taking 2 years if not more before they complete their work, of having these employees appointed not only from the regular registers, but under the apportionment law, and given civil-service status so that the skill and experience attained as the result of their prolonged employment might make them eligible for employment in other agencies.

Mr. VIPOND. Pardon me, Senator, but the permanent Census Act of 1929 prohibits that. The act of 1919, for the census of 1920, provided that there should be an apportionment of appointments in the temporary census force, a separate apportionment, and provided also, as other census acts had done, that the employees would not acquire a permanent status. In 1929, the permanent census act eliminated the apportionment provision and continued the provision that they should not acquire a permanent status.

Senator MEAD. That brings up a very good point. We could amend this bill so as to give those appointed from these lists, provided the appointment would be spread over a long period of time, say for a 2-year period, a permanent classified status. I think our committee could consider that.

Mr. VIPOND. That could be done; yes, sir.

Senator MEAD. It is a point that I think is well worth our consideration. These people will withdraw from any possibility of private employment, and possibly from any possibility of public employment, for a period of 2 years, and then they will be discharged and will have to start all over again, to their disadvantage.

The CHAIRMAN. Mr. Mitchell, I do not know whether I understood you correctly. Did you mean to infer that the head of any agency could discharge any civil-service employee under that agency and the discharged person has no remedy?

Mr. MITCHELL. The law provides, or the rule, rather, that the head of any department may discharge any employee. That employee may demand a statement in writing as to the reason for his discharge. Mr. VIPOND. That is required in the law.

Mr. MITCHELL. Yes; that is required in the law. The head of the department must furnish to the employee the reasons for his discharge; but that is all.

Mrs. MCMILLIN. Must give the employee an opportunity and time to reply to the charges.

Mr. MITCHELL. Yes; must give the employee an opportunity and time to reply to the charges. If the department head wants to get rid of him, there is no trial, no hearing, or anything of that sort. Senator FRAZIER. Is not there a chance to take an appeal? Mr. MITCHELL. There is no chance to take an appeal.

Mr. FLEMMING. Unless he alleges, with an offer of proof, that it was due to political or religious reasons.

Mr. MITCHELL. Yes; unless it was due to political or religious reasons. The Executive order of June 24, 1938, provides that in the event of the discharge of an employee from one agency, the Civil Service Commission may give a hearing to that person, and if it finds him qualified and worthy may certify him to another agency, but not to the agency from which he was discharged.

The CHAIRMAN. Do you have anything else?
Mrs. McMILLIN. I think not, Mr. Chairman.

The CHAIRMAN. Mr. Flemming, do you wish to make a statement? STATEMENT OF A. S. FLEMMING, MEMBER OF THE CIVIL SERVICE

COMMISSION

Mr. FLEMMING. Senator Bulow, I would like to comment on one provision of the bill. As far as the Keller-Nichols amendment is concerned, I am in complete agreement with what Mr. Mitchell and Mrs. McMillin have said about that amendment.

On the floor of the House and in connection with the discussion on this bill there was considerable debate over the provisions dealing with the question of what will happen to the incumbents in these positions once the President decides to bring the positions in under civil service. I just want to state my own feeling, and I know it is the feeling of the Commission, that we believe that the provisions