B-158190, JAN. 27, 1966

B-158190, JAN. 27, 1966

TO MR. JAMES V. GETZFRED:

WE REFER TO YOUR LETTER OF NOVEMBER 6, 1965, AND PRIOR CORRESPONDENCE CONCERNING YOUR CLAIM FOR EXTRA COMPENSATION AS AN EMPLOYEE OF THE ALBION POST OFFICE COVERING THE PERIOD FROM NOVEMBER 26, 1960, TO NOVEMBER 2, 1961, WHICH APPARENTLY IS IN ADDITION TO THE AMOUNT ALLOWED YOU FOR THE PERIOD FROM JANUARY 7, 1961, TO JUNE 2, 1961, BY OUR CLAIMS DIVISION'S SETTLEMENT DATED MAY 19, 1964.

IN THE DESCRIPTION OF YOUR CLAIM, AS GATHERED FROM YOUR VARIOUS LETTERS, YOU HAVE ASSERTED THAT YOU HAD BEEN "HOLDING" TWO JANITOR POSITIONS; THAT IN MAY 1960 UPON THE RETIREMENT OF THE REGULAR FULL-TIME JANITOR YOU WERE ASSIGNED TO HIS VACATED POSITION; THAT THE ALBION POSTMASTER INCORRECTLY REFUSED TO CONVERT YOU TO THE FULL-TIME POSITION UNDER EXECUTIVE ORDER NO. 10880, DATED JUNE 7, 1960, EVEN THOUGH, YOU SAY, YOU HAD SUFFICIENT HOURS OF SERVICE TO BE ELIGIBLE FOR CAREER CONVERSION WHEN POSTAL BULLETIN NO. 20204 DATED JUNE 30, 1960, WAS ISSUED; AND THAT BY SUCH REFUSAL TO CONVERT YOUR APPOINTMENT YOU WERE ERRONEOUSLY "SEPARATED" FROM THE FULL-TIME POSITION UNTIL YOU WERE "RESTORED" TO IT ON NOVEMBER 2, 1961. YOUR CLAIM APPEARS TO BE BASED LARGELY UPON PART OF A WRITTEN STATEMENT WHICH YOU SAY A REGIONAL POSTAL FIELD SERVICE OFFICIAL GAVE YOU ON NOVEMBER 2, 1961, WHEN HE DELIVERED YOUR NOTIFICATION (FORM 50, DATED OCTOBER 27, EFFECTIVE OCTOBER 28, 1961) OF "PROMOTION" TO LABORER-CUSTODIAL, PFS-2, $4,480 PER ANNUM, FROM THE PFS-1 HOURLY RATE POSITION AS JANITOR WHICH YOU HELD IMMEDIATELY PRIOR THERETO.

THE TRANSCRIPT OF YOUR SERVICE RECORD FURNISHED US BY THE POST OFFICE DEPARTMENT SHOWS YOU WERE APPOINTED ON MARCH 7, 1952, AS CHAIRMAN AT AN HOURLY RATE, AND THAT POSITION WAS RECLASSIFIED AS A JANITOR FOUR HOUR WEEK POSITION EFFECTIVE DECEMBER 3, 1955. WHILE HOLDING THAT POSITION YOU ACTUALLY WERE SEPARATED WITHOUT PAY ON JANUARY 6, 1961, AND YOU WERE RESTORED AS JANITOR SIX-HOUR WEEK ON JUNE 2, 1961. IN OUR SETTLEMENT OF MAY 19, 1964, YOU WERE PAID FOR THAT PERIOD OF SEPARATION IN ACCORDANCE WITH THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (2). THE RECORD CONTAINS NOTHING, OTHER THAN YOUR STATEMENTS, TO SHOW THAT YOU EVER WERE APPOINTED TO OR LEGALLY HELD THE FULL-TIME JANITOR POSITION TO WHICH YOU REFER. MOREOVER, AS TO THE "PROMOTION" EFFECTIVE OCTOBER 28, 1961--- ALTHOUGH IT MAY HAVE BEEN DESCRIBED IN THE REGIONAL OFFICIAL'S STATEMENT AS ,CONVERTING YOU TO CAREER STATUS," TO WHICH YOU REPEATEDLY HAVE REFERRED-- - OUR VIEW IS THAT SUCH ACTION AND STATEMENT DO NOT CONSTITUTE A DECISION TO REINSTATE OR RESTORE YOU WITHIN THE PURVIEW OF THE RETROACTIVE COMPENSATION BENEFIT PAYABLE UNDER THE CITED ACT OF 1948, 5 U.S.C. 652. MOREOVER, THE ACTION OF OCTOBER 28, 1961, MAY NOT BE REGARDED AS EFFECTIVE BACK TO MAY OR NOVEMBER 1960 EVEN THOUGH A BASIS MAY HAVE EXISTED FOR CONVERSION OF YOUR POSITION AT THAT TIME.

AS TO YOUR REFERENCES TO EXECUTIVE ORDER NO. 10880, YOU ARE ADVISED THAT SECTION 1 OF THE ORDER PROVIDES IN PERTINENT PART THAT AN EMPLOYEE WHO ON THE DATE OF THE ORDER IS SERVING IN A POSITION IN THE COMPETITIVE SERVICE UNDER AN INDEFINITE APPOINTMENT OR A TEMPORARY APPOINTMENT WITHOUT A DEFINITE TIME LIMITATION MAY HAVE HIS APPOINTMENT CONVERTED TO A CAREER OR CAREER-CONDITIONAL APPOINTMENT; PROVIDED, THAT SUCH EMPLOYEE SHALL HAVE COMPLETED TWO YEARS OF CONTINUOUS SERVICE IMMEDIATELY PRECEDING THE DATE OF THE ORDER IN A COMPETITIVE POSITION OR POSITIONS; THAT SUCH EMPLOYEE SHALL BE RECOMMENDED FOR THE BENEFITS OF THE ORDER BY HIS AGENCY WITHIN ONE YEAR AFTER THE DATE OF THE ORDER; AND THAT SUCH EMPLOYEE SHALL MEET THE REQUIREMENTS PRESCRIBED BY THE CIVIL SERVICE COMMISSION UNDER SECTION 5 OF THE ORDER. THE COMMISSION'S INSTRUCTIONS ATTACHED TO ITS DEPARTMENTAL CIRCULAR NO. 1059, DATED JUNE 24, 1960, PROVIDES UNDER PARAGRAPH I-A THAT AN INDEFINITE APPOINTEE'S CONVERSION IS SUBJECT TO THE CONDITIONS SPECIFIED THEREUNDER INCLUDING THE CONDITION THAT HE, THE INDEFINITE APPOINTEE, BE RECOMMENDED BY HIS EMPLOYING AGENCY BEFORE JUNE 8, 1961.

PARAGRAPH I-C OF THE CIRCULAR READS AS FOLLOWS:

"C. RECOMMENDATION AT AGENCY DISCRETION.--- RECOMMENDATIONS FOR CONVERSION TO CAREER OR CAREER CONDITIONAL APPOINTMENT ARE MADE IN THE DISCRETION OF THE AGENCY. THE AGENCY'S DECISION IS NOT APPEALABLE TO THE COMMISSION.'

PARAGRAPH II-A OF CIRCULAR NO. 1059 SPELLS OUT THE "SERVICE REQUIREMENTS FOR CONVERSION" WHICH THE COMMISSION AMENDED ON APRIL 6, 1961 (FPM BULLETIN NO. 318-2) WITHOUT EXPRESS RETROACTIVE EFFECT, AND WHICH ARE RESTATED IN THE POSTAL BULLETIN NO. 20250 DATED APRIL 27, 1961. THOSE BULLETINS SUPPLEMENT THE INSTRUCTIONS CONTAINED IN POSTAL BULLETIN NO. 20204 DATED JUNE 30, 1960.

ON THE BASIS OF THE FOREGOING WE MUST CONCLUDE THAT OUR SETTLEMENT OF MAY 19, 1964, WHICH ALLOWED YOU COMPENSATION ONLY FOR THE PERIOD JANUARY 7, 1961, TO JUNE 2, 1961, WAS CORRECT AND IS HEREBY SUSTAINED.