A-65125, OCTOBER 14, 1935, 15 COMP. GEN. 298

A-65125, OCTOBER 14, 1935, 15 COMP. GEN. 298

RAILWAY POSTAL CLERKS - SUBSTITUTES ASSIGNED TO ROAD DUTY - COMPUTATION OF SERVICE IN VIEW OF THE PROVISIONS OF THE ACT OF AUGUST 14, 1935, 49 STAT. 650, SUBSTITUTE RAILWAY POSTAL CLERKS, ASSIGNED TO ROAD DUTY, ARE ENTITLED TO A FULL DAY'S CREDIT FOR 6 HOURS 40 MINUTES' WORK ON ANY ONE DAY IN COMPUTING SERVICE FOR APPOINTMENT OR PROMOTION PURPOSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, OCTOBER 14, 1935:

THERE WAS RECEIVED YOUR LETTER OF SEPTEMBER 30, 1935, AS FOLLOWS:

ATTENTION IS INVITED TO THE PRIOR CORRESPONDENCE, PARTICULARLY YOUR DECISION OF SEPTEMBER 6, 1935 (A-65125), RELATIVE TO THE APPLICABILITY OF THE ACT OF AUGUST 14, 1935, PUBLIC, NO. 275, TO EMPLOYEES OF THE POSTAL SERVICE.

INVITING ATTENTION TO THE PROVISIONS OF PARAGRAPH 4 OF SECTION 2011, POSTAL LAWS AND REGULATIONS, REGULATING THE SERVICE CREDIT OF SUBSTITUTES, A FURTHER EXPRESSION OF YOUR VIEWS IS DESIRED AS TO THE AMOUNT OF CREDIT WHICH MAY LAWFULLY BE GIVEN SUBSTITUTES FOR A DAY ON THE ROAD. IT WILL BE NOTED THAT THE LAW QUOTED IN SECTION 2011, PARAGRAPH 4, POSTAL LAW AND REGULATIONS (39 U.S.C., 614), FIXES EIGHT HOURS AS A STANDARD DAY FOR PROMOTION PURPOSES, WHEREAS THE ACT OF AUGUST 14, 1935, SHORTENS THE DAY ON LINES TO SIX HOURS AND FORTY MINUTES, LEAVING EIGHT HOURS AS THE DAY IN ALL OTHER ORGANIZATIONS OF THE RAILWAY MAIL SERVICE. IF SUBSTITUTES CAN BE GIVEN FULL PROMOTION CREDIT FOR SIX HOURS AND FORTY MINUTES ON THE ROAD ON THE BASIS OF 306 DAYS PER ANNUM, IT FOLLOWS THAT THEY WILL NOT WILLINGLY WORK IN OTHER ORGANIZATIONS WHERE THE REQUIREMENT IS EIGHT HOURS FOR 254 DAYS PER ANNUM. YOUR OPINION IS ACCORDINGLY REQUESTED AS TO WHETHER A ROAD DAY OF SIX HOURS AND FORTY MINUTES SHOULD BE TREATED AS A FULL EIGHT-HOUR DAY FOR APPOINTMENT AND PROMOTION PURPOSES OR AS FIVE- SIXTHS OF A DAY.

IN VIEW OF THE FACT THAT THE ACT OF AUGUST 14 BECOMES EFFECTIVE OCTOBER 1 A PROMPT DECISION WILL BE APPRECIATED.'

SECTION 1 OF THE ACT OF AUGUST 14, 1935 (49 STAT. 650), PROVIDES AS FOLLOWS:

THAT WHEN THE NEEDS OF THE SERVICE REQUIRE SUPERVISORY EMPLOYEES, SPECIAL CLERKS, CLERKS, AND LABORERS IN FIRST- AND SECOND-CLASS POST OFFICES, AND EMPLOYEES OF THE MOTOR-VEHICLE SERVICE, AND CARRIERS IN THE CITY DELIVERY SERVICE AND IN THE VILLAGE DELIVERY SERVICE, AND EMPLOYEES OF THE RAILWAY MAIL SERVICE, CLERKS AT DIVISION HEADQUARTERS OF POST-OFFICE INSPECTORS, EMPLOYEES OF THE STAMPED ENVELOP AGENCY, AND EMPLOYEES OF THE MAIL EQUIPMENT SHOPS; CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS, PAID FROM APPROPRIATIONS OF THE FIRST ASSISTANT POSTMASTER GENERAL; AND ALL EMPLOYEES OF THE CUSTODIAL SERVICE EXCEPT CHARWOMEN AND CHARMEN AND THOSE WORKING PART TIME, TO PERFORM SERVICE ON SATURDAY THEY SHALL BE ALLOWED COMPENSATORY TIME FOR SUCH SERVICE ON ONE DAY WITHIN FIVE WORKING DAYS NEXT SUCCEEDING THE SATURDAY ON WHICH THE EXCESS SERVICE WAS PERFORMED: PROVIDED, THAT EMPLOYEES WHO ARE GRANTED COMPENSATORY TIME ON SATURDAY FOR WORK PERFORMED THE PRECEDING SUNDAY OR THE PRECEDING HOLIDAY SHALL BE GIVEN THE BENEFITS OF THIS ACT ON ONE DAY WITHIN FIVE WORKING DAYS FOLLOWING THE SATURDAY WHEN SUCH COMPENSATORY TIME WAS GRANTED: PROVIDED FURTHER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SERVICE ON THE LAST THREE SATURDAYS IN THE CALENDAR YEAR IN LIEU OF COMPENSATORY TIME, EXCEPT CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS PAID FROM THE APPROPRIATION OF THE FIRST ASSISTANT POSTMASTER GENERAL, AND CUSTODIAL EMPLOYEES WHO SHALL BE GIVEN COMPENSATORY TIME IN LIEU OF OVERTIME PAY WITHIN THIRTY DAYS NEXT SUCCEEDING; AND PROVIDED FURTHER, THAT FOR THE PURPOSE OF EXTENDING THE BENEFITS OF THIS ACT TO RAILWAY POSTAL CLERKS THE SERVICE OF SAID RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY SHALL BE BASED ON AN AVERAGE NOT EXCEEDING 6 HOURS AND 40 MINUTES PER DAY FOR THREE HUNDRED AND SIX DAYS PER ANNUM, INCLUDING A PROPER ALLOWANCE FOR ALL SERVICE REQUIRED ON LAY-OFF PERIODS AS PROVIDED IN POST OFFICE DEPARTMENT CIRCULAR LETTER NUMBERED 1348, DATED MAY 12, 1921; AND RAILWAY POSTAL CLERKS REQUIRED TO PERFORM SERVICE IN EXCESS OF SIX HOURS AND FORTY MINUTES DAILY, AS HEREIN PROVIDED, SHALL BE PAID IN CASH AT THE ANNUAL RATE OF PAY OR GRANTED COMPENSATORY TIME, AT THEIR OPTION, FOR SUCH OVERTIME.

SECTION 7 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1062, 1063, SECTIONS 613 AND 614, TITLE 39, U.S. CODE, PROVIDE, IN PART, AS FOLLOWS:

SUBSTITUTE RAILWAY POSTAL CLERKS SHALL BE PAID FOR SERVICES ACTUALLY PERFORMED AT THE RATE OF $1,850 PER ANNUAL, THE FIRST YEAR OF SERVICE TO CONSTITUTE A PROBATIONARY PERIOD, AND WHEN APPOINTED REGULAR CLERKS SHALL RECEIVE CREDIT ON THE BASIS OF ONE YEAR OF ACTUAL SERVICE PERFORMED AS A SUBSTITUTE AND BE APPOINTED TO THE GRADE TO WHICH SUCH CLERK WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS A SUBSTITUTE BEEN TO GRADE 1. ANY FRACTIONAL PART OF A YEAR'S SUBSTITUTE SERVICE WILL BE INCLUDED WITH HIS SERVICE AS A REGULAR CLERK IN DETERMINING ELIGIBILITY FOR PROMOTION TO THE NEXT HIGHER GRADE FOLLOWING APPOINTMENT TO A REGULAR POSITION.

* * * PROVIDED, THAT SERVICE OF CLERKS SHALL BE BASED ON AN AVERAGE OF NOT EXCEEDING EIGHT HOURS DAILY FOR THREE HUNDRED AND SIX DAYS PER ANNUM, INCLUDING PROPER ALLOWANCES FOR ALL SERVICE REQUIRED ON LAY-OFF PERIODS. CLERKS REQUIRED TO PERFORM SERVICE IN EXCESS OF EIGHT HOURS DAILY, AS HEREIN PROVIDED, SHALL BE PAID IN CASH AT THE ANNUAL RATE OF PAY OR GRANTED COMPENSATORY TIME AT THEIR OPTION FOR SUCH OVERTIME. RAILWAY POSTAL CLERKS ASSIGNED TO TERMINAL RAILWAY POST OFFICES AND TRANSFER OFFICES AND LABORERS IN THE RAILWAY MAIL SERVICE SHALL BE REQUIRED TO WORK NOT MORE THAN EIGHT HOURS A DAY, AND THAT THE EIGHT HOURS OF SERVICE SHALL NOT EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS, AND THAT IN CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, THEY MAY BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS A DAY, AND FOR SUCH ADDITIONAL SERVICE THEY SHALL BE PAID IN PROPORTION TO THEIR SALARIES AS FIXED BY LAW.

THE EARLIER STATUTE OF FEBRUARY 28, 1925, UNQUESTIONABLY FIXED 8 HOURSAS THE LENGTH OF A WORK DAY, AND 306 DAYS AS THE LENGTH OF THE WORK YEAR FOR ALL REGULAR RAILWAY POSTAL CLERKS, INCLUDING THOSE ON ROAD DUTY. THE LATER ACT OF AUGUST 14, 1935, UNQUESTIONABLY REDUCES TO 6 HOURS, 40 MINUTES, THE LENGTH OF THE WORK DAY OF RAILWAY POSTAL CLERKS ON ROAD DUTY, RETAINS THE LENGTH OF THEIR WORK YEAR AS 306 DAYS, BUT MAKES NO CHANGE IN THE LENGTH OF THE WORK DAY OR WORK YEAR OF OTHER CLASSES OF RAILWAY POSTAL CLERKS. THESE STATUTORY DISTINCTIONS MAY NOT BE ELIMINATED BY CONSTRUCTION. WHILE NEITHER OF THE STATUTES SPECIFICALLY SO PROVIDE, IT WOULD SEEM PROPER TO COMPUTE THE LENGTH OF THE WORK DAY OF SUBSTITUTE RAILWAY POSTAL CLERKS THE SAME AS FOR THE REGULAR CLERKS FOR WHOM SUBSTITUTING.

ACCORDINGLY, A SUBSTITUTE RAILWAY POSTAL CLERK ASSIGNED TO ROAD DUTY WOULD BE ENTITLED TO A FULL DAY'S CREDIT FOR 6 HOURS, 40 MINUTES' WORK ON ANY ONE DAY IN COMPUTING A YEAR'S SERVICE OF 306 DAYS FOR APPOINTMENT OR PROMOTION PURPOSES.