A-10281, JULY 16, 1925, 5 COMP. GEN. 39

A-10281: Jul 16, 1925

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REQUESTING DECISION WHETHER THE PROCEDURE OUTLINED IN THE FOLLOWING PROPOSED CIRCULAR LETTER TO THE DISTRICT SECRETARIES IS IN CONTRAVENTION OF THE ACT OF MAY 10. WHICH WAS AUTHORIZED BY THE ACT OF FEBRUARY 28. THERE ARE MANY CLASSIFIED POST OFFICES WHERE COMPARATIVELY FEW LABORERS ARE EMPLOYED AND THE NEED FOR THE APPOINTMENT OF SUBSTITUTE LABORERS WOULD NOT JUSTIFY THE COST OF HOLDING EXAMINATIONS AS IT IS APPARENT THAT SUBSTITUTE LABORERS AT SUCH OFFICES WOULD BE EMPLOYED COMPARATIVELY FEW DAYS IN A YEAR. WHEN THERE IS NECESSITY FOR THE EMPLOYMENT OF A SUBSTITUTE LABORER AT SUCH POST OFFICES IT IS DESIRABLE TO HAVE THE WORK PERFORMED BY A SUBSTITUTE CLERK OR SUBSTITUTE CARRIER WHO IS WILLING TO SERVE AT THE RATE OF COMPENSATION PROVIDED FOR SUBSTITUTE LABORERS.

A-10281, JULY 16, 1925, 5 COMP. GEN. 39

POSTAL SERVICE - EMPLOYMENT OF SUBSTITUTE CLERKS AND CARRIERS AS TEMPORARY SUBSTITUTE LABORERS AT POST OFFICES SUBSTITUTE POSTAL CLERKS AND SUBSTITUTE LETTER CARRIERS AT FIRST AND SECOND CLASS POST OFFICES MAY BE EMPLOYED AS TEMPORARY SUBSTITUTE LABORERS AT THE SAME OFFICES WHEN NOT ON DUTY AS SUBSTITUTE CLERK OR CARRIER. COMP. GEN. 736, DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JULY 16, 1925:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 27, 1925, REFERRING TO THE DECISION OF THIS OFFICE DATED MARCH 6, 1925, 4 COMP. GEN. 736, AND REQUESTING DECISION WHETHER THE PROCEDURE OUTLINED IN THE FOLLOWING PROPOSED CIRCULAR LETTER TO THE DISTRICT SECRETARIES IS IN CONTRAVENTION OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582:

THE COMPTROLLER GENERAL OF THE UNITED STATES ON MARCH 6, 1925, HELD THAT THE ACT OF MAY 10, 1916, RELATING TO THE HOLDING OF TWO OFFICES, THE COMBINED SALARIES OF WHICH EXCEED $2,000 PER ANNUM, APPLIES TO THE EMPLOYMENT OF RURAL LETTER CARRIERS OR POST OFFICE LABORERS AS SUBSTITUTE POST OFFICE CLERK AND SUBSTITUTE CLERKS AND SUBSTITUTE CITY LETTER CARRIERS WHEN IN A NON-PAY STATUS AS RURAL CARRIERS OR LABORERS. THIS DECISION, HOWEVER, DOES NOT APPLY TO THE ASSIGNMENT TO DUTY OF A SUBSTITUTE CLERK AS SUBSTITUTE CARRIER AND VICE VERSA, AND IT WOULD SEEM, THEREFORE, THAT THE DECISION RENDERED BY THE COMPTROLLER GENERAL WOULD NOT PREVENT THE ASSIGNMENT OF A SUBSTITUTE CLERK OR SUBSTITUTE LETTER CARRIER TO THE DUTIES OF SUBSTITUTE LABORER, WHICH WAS AUTHORIZED BY THE ACT OF FEBRUARY 28, 1925, RECLASSIFYING THE SALARIES OF POSTAL EMPLOYEES. THERE ARE MANY CLASSIFIED POST OFFICES WHERE COMPARATIVELY FEW LABORERS ARE EMPLOYED AND THE NEED FOR THE APPOINTMENT OF SUBSTITUTE LABORERS WOULD NOT JUSTIFY THE COST OF HOLDING EXAMINATIONS AS IT IS APPARENT THAT SUBSTITUTE LABORERS AT SUCH OFFICES WOULD BE EMPLOYED COMPARATIVELY FEW DAYS IN A YEAR.

WHEN THERE IS NECESSITY FOR THE EMPLOYMENT OF A SUBSTITUTE LABORER AT SUCH POST OFFICES IT IS DESIRABLE TO HAVE THE WORK PERFORMED BY A SUBSTITUTE CLERK OR SUBSTITUTE CARRIER WHO IS WILLING TO SERVE AT THE RATE OF COMPENSATION PROVIDED FOR SUBSTITUTE LABORERS. THE ASSIGNMENT OF SUCH AN EMPLOYEE WOULD NOT CONSTITUTE AN APPOINTMENT AND WOULD BE IN LINE WITH THE PRACTICE OF POSTMASTERS IN ASSIGNING SUBSTITUTE CLERKS TO SUBSTITUTE CARRIER DUTIES AND VICE VERSA WHEN THE EXIGENCY OF THE SERVICE REQUIRES SUCH ACTION. OF COURSE, IT IS TO BE UNDERSTOOD THAT A SUBSTITUTE CLERK OR SUBSTITUTE CARRIER ASSIGNED TO THE DUTIES OF SUBSTITUTE LABORER IS AT THE TIME IN A NONPAY STATUS AS A SUBSTITUTE POST OFFICE CLERK OR SUBSTITUTE CLERK OR SUBSTITUTE CARRIER. IT IS, THEREFORE, SUGGESTED THAT POSTMASTERS, WHO REQUEST THAT AN EXAMINATION BE HELD FOR SUBSTITUTE LABORER, BE INFORMED THAT SERVICE AS SUBSTITUTE LABORER AT 55 CENTS AN HOUR SHOULD BE PERFORMED, IF POSSIBLE, BY THE SUBSTITUTE CLERKS OR SUBSTITUTE CARRIERS WHO ARE WILLING TO SERVE AS LABORERS.

IT WILL BE NECESSARY, HOWEVER, TO HOLD EXAMINATIONS AT THE LARGER POST OFFICES WHERE MANY LABORERS ARE EMPLOYED.

SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, PROVIDES:

THAT THE PAY OF SUBSTITUTE, TEMPORARY, OR AUXILIARY CLERKS AT FIRST AND SECOND CLASS POST OFFICES AND SUBSTITUTE LETTER CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE AT THE RATE OF 65 CENTS PER HOUR * * *.

SECTION 5 OF THE SAME ACT, 43 STAT. 1060, PROVIDES:

* * * THAT THE PAY OF SUBSTITUTE WATCHMEN, MESSENGERS, AND LABORERS SHALL BE AT THE RATE OF 55 CENTS PER HOUR.

THIS HAS REFERENCE TO FIRST AND SECOND CLASS POST OFFICES. THUS THE STATUTE PROVIDES AND PRESCRIBES THE PAY FOR THE SEPARATE AND DISTINCT POSITIONS OF SUBSTITUTE CLERKS, SUBSTITUTE CARRIER, AND SUBSTITUTE LABORER AT FIRST AND SECOND CLASS POST OFFICES. THE COMBINED RATE OF COMPENSATION IS IN EXCESS OF $2,000 PER ANNUM.

THE DECISION OF THIS OFFICE DATED MARCH 6, 1925, TO WHICH YOU REFER, AND THE PRIOR DECISION OF APRIL 30, 1924. THEREIN CITED, HAD REFERENCE MORE PARTICULARLY TO THE EMPLOYMENT OF REGULAR AND PERMANENT EMPLOYEES IN THE CAPACITY AS SUBSTITUTE POSTAL CLERKS OR CARRIERS BY THE METHOD OF GRANTING LEAVE OF ABSENCE WITHOUT PAY TO ENABLE THE REGULAR AND PERMANENT EMPLOYEE TO SERVE AS SUBSTITUTE, AND IT WAS HELD THAT SAME WAS PROHIBITED BY LAW. THE INSTANT CASE INVOLVES NEITHER THE HOLDING OF TWO POSITIONS NOR THE PAYMENT OF TWO SALARIES FOR THE SAME PERIOD OF TIME. IT INVOLVES ONLY THE QUESTION OF WHETHER A PERSON WHO HAS QUALIFIED FOR AND BEEN APPOINTED TO THE POSITION OF SUBSTITUTE CLERK OR CARRIER MAY BE ASSIGNED, WITH HIS CONSENT, TO TEMPORARY DUTY AS SUBSTITUTE LABORER--- A POSITION OF A LOWER GRADE THAN THAT FOR WHICH HE QUALIFIED AND WAS APPOINTED. A SUBSTITUTE IS ONE WHO IS EMPLOYED ONLY WHEN NEEDED AND IS PAID ONLY FOR TIME ACTUALLY EMPLOYED, THERE BEING NO CERTAINTY WHATEVER AS TO CONTINUITY OF EMPLOYMENT. THE PERIOD OF UNEMPLOYMENT OF A SUBSTITUTE IS NOT THE SAME AS THE PERIOD OF ABSENCE WITHOUT PAY OF A REGULAR AND PERMANENT EMPLOYEE IN APPLYING THE PROVISIONS OF THE ACT OF MAY 10, 1916, AS AMENDED, AND OTHER STATUTES, PROHIBITING DUAL EMPLOYMENT OR PAYMENT OF EXTRA COMPENSATION. IN THE FORMER CASE THE NAME REMAINS ON THE ROLL ONLY AS SHOWING HIS AVAILABILITY FOR EMPLOYMENT IN THE POSITION AS SUBSTITUTE IF NEEDED, WHILE IN THE LATTER CASE THE NAME REMAINS ON THE ROLL AS AN EMPLOYEE HOLDING A POSITION UNDER THE GOVERNMENT.

THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE PROCEDURE PROPOSED. IT MUST BE UNDERSTOOD, HOWEVER, THAT THE TIME SERVED AS LABORER IN SUCH CASES CAN NOT BE COUNTED AS "ACTUAL TIME SERVED" FOR THE PURPOSE OF DETERMINING THE GRADE AT WHICH SUCH SUBSTITUTE MAY BE APPOINTED AS REGULAR CLERK OR CARRIER.