B-128701, SEPTEMBER 25, 1956, 36 COMP. GEN. 232

B-128701, SEPTEMBER 25, 1956, 36 COMP. GEN. 232

POSTAL SERVICE - COMPENSATION - RETROACTIVE ADJUSTMENTS - SUPERVISORY ASSIGNMENTS A POSTAL SERVICE REGULATION WHICH WOULD REQUIRE THE SALARIES OF ACTING POSTMASTERS WHO HELD TEMPORARY APPOINTMENTS ON DECEMBER 3, 1955, THE EFFECTIVE DATE OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, TO BE ADJUSTED TO A HIGHER STEP, UNDER SECTION 304 OF THE ACT, AT THE TIME OF APPOINTMENTS AS POSTMASTERS IS IN ERROR; HOWEVER, SALARY ADJUSTMENTS FOR SUCH ACTING POSTMASTERS SHOULD BE MADE RETROACTIVELY AS OF DECEMBER 3, 1955, AND ON APPOINTMENT AS POSTMASTERS THEY ARE ENTITLED TO STEP INCREASES FOR COMPLETION OF 52 WEEKS OF SERVICE AND TO RETAIN ANY PARTIAL CREDIT TOWARD AN ADDITIONAL STEP INCREASE. A POSTAL SERVICE EMPLOYEE WHO PERFORMS SERVICE IN A RELIEF CAPACITY FOR ANY SUPERVISOR WHO IS GRANTED COMPENSATORY TIME IS NOT ENTITLED TO ADDITIONAL SALARY FOR SUCH ASSIGNMENT REGARDLESS OF WHETHER THE SUPERVISOR IS HIS OWN PERSONAL SUPERVISOR OR ANOTHER.

TO THE POSTMASTER GENERAL, SEPTEMBER 25, 1956:

IN LETTER DATED JULY 15, 1956, FILE 800, THE DEPUTY POSTMASTER GENERAL REQUESTS OUR OPINION CONCERNING THE LEGALITY OF ITEM A.6.A OF THE DEPARTMENT'S COMPENSATION REGULATIONS OF MARCH 28, 1956, WHICH IMPLEMENT THE CONVERSION RULES AND THE "SAVED" PAY BENEFITS PROVIDED IN THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, PUBLIC LAW 68, 69 STAT. 88 ET SEQ. (30 U.S.C., CHAP. 25).

ITEM A.6.A OF THE REGULATIONS IS AS FOLLOWS:

A. SETTING SALARIES IN PERSONNEL ACTIONS.

6. ACTING POSTMASTERS.

A. THE BASIC SALARY OF AN EMPLOYEE ON THE ROLLS ON DECEMBER 3, 1955 AS ACTING POSTMASTER AT A ,SAVED" RATE SHALL, UPON HIS APPOINTMENT AS POSTMASTER, BE ADJUSTED TO THE STEP NEXT ABOVE HIS SAVED RATE (ASSUMING THAT HIS SAVED RATE FALLS BETWEEN TWO STEPS) PLUS AN ADDITIONAL STEP FOR EACH 52 WEEKS OF SERVICE AS ACTING POSTMASTER SUBSEQUENT TO DECEMBER 2, 1955. HE SHALL RETAIN ANY PARTIAL CREDIT HE HAS EARNED TOWARDS AN ADDITIONAL STEP INCREASE.

IT APPEARS THAT ACTING POSTMASTERS SERVE UNDER TEMPORARY APPOINTMENTS FOR A TERM OF NOT TO EXCEED 6 MONTHS WHICH MAY BE EXTENDED WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION. ALSO, AN ACTING POSTMASTER USUALLY RECEIVES HIS PERMANENT APPOINTMENT AS POSTMASTER WITHIN A YEAR AFTER HE IS NAMED ACTING POSTMASTER. OCCASIONALLY, HOWEVER, ACTING POSTMASTERS ARE NOT CONFIRMED DURING THE CURRENT SESSION OF THE SENATE IN WHICH NOMINATED. WE UNDERSTAND THAT IN SOME PRESENT CASES, SUCH PERSONS WILL NOT BE CONFIRMED BEFORE 1957 AND WILL HAVE SERVED AS ACTING POSTMASTERS MORE THAN 52 WEEKS SINCE DECEMBER 3, 1955, THE DATE THAT THE PROVISIONS OF PUBLIC LAW 68 WERE PUT INTO EFFECT.

THE DEPUTY POSTMASTER GENERAL SAYS THAT AN ACTING POSTMASTER IN A POST OFFICE OF THE FIRST, SECOND, OR THIRD-CLASS SERVES UNDER A TEMPORARY APPOINTMENT AND THEREFORE SECTION 503 OF PUBLIC LAW 68, 39 U.S.C., SUPP. III, 993, REQUIRES THAT HE BE PLACED IN THE ENTRANCE STEP OF THE SALARY LEVEL IN WHICH HIS POSITION IS CLASSIFIED. FOR THIS REASON AS OF DECEMBER 3, 1955--- THE DATE PUBLIC LAW 68 WITH CERTAIN EXCEPTIONS WAS PLACED IN EFFECT--- ACTING POSTMASTERS WERE PLACED IN THE ENTRANCE STEPS OF THEIR APPROPRIATE SALARY LEVELS, EXCEPT THAT WHERE THEIR RATE OF PAY ON DECEMBER 2, 1955, EXCEEDED THE RATE OF THE APPROPRIATE ENTRANCE STEP THEY WERE ALLOWED TO RETAIN THE DECEMBER 2 RATE. ON THE OTHER HAND, YOUR REGULATION WOULD AUTHORIZE ADJUSTMENTS IN STEP LEVELS AND COMPENSATION OF THESE EMPLOYEES IN THE MANNER PRESCRIBED IN SECTION 304 OF PUBLIC LAW 68, 39 U.S.C., SUPP. III, 974, ON THE DATE THAT THEY RECEIVE PERMANENT APPOINTMENTS AS POSTMASTERS.

SECTION 101 (3) OF THE ACT, 39 U.S.C., SUPP. III, 951 (3), PROVIDES THAT THE WORD "EMPLOYEE, INCLUDES POSTMASTERS, UNLESS THE CONTEXT OTHERWISE INDICATES. HENCE, IT APPEARS THAT AN "ACTING" POSTMASTER OF A FIRST, SECOND, OR THIRD-CLASS POST OFFICE IS AN "EMPLOYEE" WITHIN THE MEANING OF SECTION 101 (3), AND THAT EACH OF THE OTHER BENEFITS OF THE ACT WHICH IN CONTEXT APPLY TO "EACH EMPLOYEE" OR "AN EMPLOYEE" OR TO "EMPLOYEES" GENERALLY, ALSO IS APPLICABLE TO SUCH ACTING POSTMASTERS EXCEPT WHERE THE CONTEXT OF A PARTICULAR PROVISION INDICATES OTHERWISE. THEREFORE, SECTIONS 304 AND 504, 39 U.S.C., SUPP. III, 994- - WHICH DEAL WITH ADJUSTMENTS OF SALARIES TO THE NEW BASIC WAGE RATES AND PROHIBIT THE REDUCTION OF ANY EMPLOYEE'S FORMER COMPENSATION UPON CONVERSION OF HIS POSITION TO THE PFS SCHEDULE--- WOULD SEEM TO APPLY TO SUCH ACTING POSTMASTERS WHO ARE CONFIRMED AND WHOSE CONTINUOUS SERVICE BEGAN PRIOR TO DECEMBER 3, 1955, UNDER TEMPORARY APPOINTMENTS OR EXTENSIONS THEREOF.

IT IS OUR VIEW THAT PUBLIC LAW 68 CONTEMPLATES THAT THE ADJUSTMENTS AND CONVERSIONS--- INCLUDING THOSE OF ACTING POSTMASTERS--- UNDER SECTION 304 BE EFFECTED AS OF THE DATE THAT SECTION WAS PLACED IN EFFECT BY THE POSTMASTER GENERAL ( DECEMBER 3, 1955) AND THAT SECTION 304 DOES NOT CONSTITUTE AUTHORITY FOR MAKING COMPENSATION ADJUSTMENTS AS OF ANY DATE OTHER THAN THE DATE IT WAS PLACED IN EFFECT. THIS VIEW IS SUPPORTED BY THE FOLLOWING LANGUAGE APPEARING ON PAGE 27 OF HOUSE REPORT NO. 728, JUNE 2, 1955:

IT SHOULD BE NOTED IN CONNECTION WITH SECTION 304 THAT SUBSECTION (B) OF SECTION 810, RELATING TO EFFECTIVE DATES, PROVIDES THAT ALL OF SECTION 304 (B) SHALL BE COMPLETED ON A DATE TO BE SPECIFIED BY THE POSTMASTER GENERAL BUT NOT LATER THAN 180 DAYS AFTER THE DATE OF ENACTMENT OF THE BILL.

WE ALSO CONSTRUE SECTION 503 OF PUBLIC LAW 68 DIFFERENTLY THAN THE CONSTRUCTION INDICATED IN YOUR LETTER. THAT SECTION IS AS FOLLOWS:

SEC. 503. EACH TEMPORARY EMPLOYEE WHO IS HIRED FOR A CONTINUOUS PERIOD OF ONE YEAR OR LESS FOR A POSITION UNDER THE POSTAL FIELD SERVICE SCHEDULE SHALL BE PAID A BASIC SALARY AT THE ENTRANCE STEP FOR THE SALARY LEVEL OF THE POSITION TO WHICH HE IS APPOINTED.

SINCE THIS SECTION WAS NOT PLACED IN EFFECT UNTIL DECEMBER 3, 1955, THE REQUIREMENT CONTAINED THEREIN FOR PLACING A TEMPORARY EMPLOYEE IN THE ENTRANCE STEP OF THE POSITION TO WHICH HE IS APPOINTED REASONABLY MAY BE CONSTRUED AS APPLYING ONLY WHERE AN EMPLOYEE "IS HIRED" OR "IS APPOINTED" TO A POSITION ON OR AFTER THE EFFECTIVE DATE OF THE SECTION ( DECEMBER 3, 1955) AND WOULD NOT APPLY TO PERSONS SERVING IN TEMPORARY POSITIONS ON THE DATE THAT SECTION 503 BECAUSE EFFECTIVE. SUCH A CONSTRUCTION IS REGARDED NOT ONLY AS IN ACCORD WITH THE LITERAL WORDING OF THE SECTION BUT ALSO OPERATES SO THAT FULL EFFECT MAY BE GIVEN TO THE CONVERSION PROVISIONS OF SECTION 304. HENCE, WE CONSIDER THAT SUCH A CONSTRUCTION IS SOUNDER THAN THE ONE SET FORTH IN YOUR LETTER.

VIEWING SECTION 503 IN THIS LIGHT LEADS TO THE CONCLUSION THAT PERSONS SERVING AS ACTING POSTMASTERS IN FIRST, SECOND, AND THIRD-CLASS POST OFFICES ON DECEMBER 3, 1955, SHOULD HAVE THEIR COMPENSATION ADJUSTED IN ACCORDANCE WITH SECTION 304 OF THE ACT OF OF THAT DATE.

ACCORDINGLY, IT IS OUR VIEW THAT ITEM A.6.A OF YOUR REGULATIONS IS IN ERROR AND THAT ACTING POSTMASTERS SHOULD BE PLACED IN THE APPROPRIATE STEPS OF THEIR LEVELS IN ACCORDANCE WITH SECTION 304 RETROACTIVELY TO THE DATE THAT SECTION WAS PLACED IN EFFECT, DECEMBER 3, 1955. WE AGREE, HOWEVER, WITH THE ADMINISTRATIVE ACTION GIVING THE ACTING POSTMASTERS THE BENEFIT OF THE SAVINGS PROVISION (SECTION 504) OF THE LAW. MOREOVER, WE AGREE WITH YOUR REGULATION TO THE EXTENT THAT IT AUTHORIZES THE COUNTING FOR STEP INCREASE PURPOSES OF THE SERVICE PERFORMED FROM DECEMBER 3, 1955, TO THE DATE THE ACTING POSTMASTERS RECEIVE APPOINTMENTS AS POSTMASTERS, PAYMENT OF THE STEP INCREASE TO BEGIN UPON APPOINTMENT AS POSTMASTER OR UPON COMPLETION OF THE 52 WEEKS OF SERVICE, IF LATER. THIS CONCLUSION LOGICALLY FOLLOWS FROM THE LANGUAGE OF SECTION 402 OF PUBLIC LAW 68, 39 U.S.C., SUPP. III, 982, PROVIDING THAT "CREDIT SHALL NOT BE ALLOWED FOR TIME ON THE ROLLS UNDER A TEMPORARY APPOINTMENT FOR ONE YEAR OR LESS UNLESS SUCH TIME ON THE ROLLS IS CONTINUOUS TO THE DATE OF APPOINTMENT TO A POSITION OF UNLIMITED DURATION.' ( ITALICS SUPPLIED.) LIKEWISE, WE AGREE WITH THE PROVISIONS IN THE REGULATION THAT PERMITS THE RETENTION OF THE PARTIAL CREDIT EARNED TOWARDS AND ADDITIONAL STEP INCREASE. RELATIVE THERETO, WE INVITE YOUR ATTENTION TO THE FACT THAT CIVIL SERVICE COMMISSION'S DEPARTMENTAL CIRCULAR NO. 554 IS NO LONGER IN EFFECT. SEE DEPARTMENTAL CIRCULAR NO. 811, AUGUST 1, 1955.

THE FURTHER QUESTION PRESENTED IN THE LETTER OF JULY 16 CONCERNS SECTION 204 (B) OF PUBLIC LAW 68, 39 U.S.C., SUPP. III, 1648, WHICH AUTHORIZES, AS THE NEEDS OF THE SERVICE REQUIRE, THE ASSIGNMENT OF AN EMPLOYEE TO PERFORM (WITHOUT CHANGE IN HIS RATE OF BASIC COMPENSATION) THE DUTIES AND RESPONSIBILITIES OF ANY POSITION OTHER THAN THE DUTIES AND RESPONSIBILITIES INCLUDED IN THE DESCRIPTION OF HIS OWN POSITION, SUBJECT, HOWEVER, TO THE LIMITATIONS THAT IF ANY EMPLOYEE IS ASSIGNED FOR MORE THAN 30 DAYS IN ANY CALENDAR YEAR TO A POSITION THE SALARY LEVEL OF WHICH IS HIGHER THAN THE LEVEL OF SUCH EMPLOYEE'S REGULAR POSITION--- EXCEPT TO PERFORM SERVICE IN A RELIEF CAPACITY "FOR A SUPERVISOR" GRANTED COMPENSATORY TIME UNDER SECTION 603 OF THE ACT, 39 U.S.C., SUPP. III, 1003 --- SUCH ASSIGNED EMPLOYEE SHALL BE PAID, FOR THAT PART OF THE PERIOD OF SUCH HIGHER LEVEL ASSIGNMENT IN EXCESS OF 30 DAYS, A BASIC SALARY RATE COMPUTED IN ACCORDANCE WITH SECTION 502 OF THE ACT, 39 U.S.C., SUPP. III, 992. AS STATED IN THE LETTER OF JULY 16, THE ACT DOES NOT RESTRICT "SUPERVISOR" TO THE EMPLOYEE'S OWN PERSONAL SUPERVISOR. IN THAT RESPECT, THE LETTER REFERS TO THE EXPLANATION OF THE PROVISIONS OF SECTION 204, 39 U.S.C., SUPP. III, 964, APPEARING ON PAGES 494 AND 495 OF THE TRANSCRIPT OF THE HEARINGS BEFORE THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OR REPRESENTATIVES, 84TH CONGRESS, AND TO THE COMMITTEE'S STATEMENT ON PAGE 19 OF THE HOUSE REPORT NO. 728. WHILE THE STATEMENT OF THE COMMITTEE INDICATES THE 30-DAY LIMITATION WOULD NOT APPLY REGARDLESS OF THE NUMBER OF DAYS (CONTINUOUS OR INTERMITTENT) IF AN EMPLOYEE'S ASSIGNMENT IS TO PERFORM THE DUTIES OF "HIS SUPERVISOR" WHO IS BEING GRANTED COMPENSATORY TIME UNDER SECTION 603, THE EXPRESS EXCEPTION IN SECTION 204 (B) IS NOT SO RESTRICTIVE. EVEN THOUGH AN EMPLOYEE'S RELIEF OF A SUPERVISOR OTHER THAN HIS OWN IMMEDIATE SUPERVISOR MIGHT CAUSE THE EMPLOYEE TO PERFORM SOME ADDITIONAL OR UNFAMILIAR DUTIES, THE 30-DAY LIMITATION WOULD NOT SEEM TO APPLY IN ANY CASE WHERE A SUPERVISOR'S DUTIES ARE BEING PERFORMED WHILE HE IS ABSENT FROM DUTY ON COMPENSATORY TIME UNDER SECTION 603.

ACCORDINGLY, OUR VIEW IS THAT THE WORD "SUPERVISOR" IN THE EXCEPTION IN SECTION 204 (B) IS NOT RESTRICTED TO THE EMPLOYEE'S OWN PERSONAL SUPERVISOR.