A-20212, OCTOBER 28, 1927, 7 COMP. GEN. 295

A-20212: Oct 28, 1927

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WHERE THE APPOINTMENT OF A REINSTATED OR TRANSFERRED EMPLOYEE IS TO THE POSITION OF SENIOR SUBSTITUTE CLERK IN A FIRST OR SECOND CLASS POST OFFICE OR OF SUBSTITUTE CARRIER IN THE CITY DELIVERY SERVICE. TRANSFERS TO THE POST OFFICE SERVICE AND THE CLASSIFICATION OF QUALIFIED PERSONS AS EMPLOYEES IN POST OFFICES ARE AUTHORIZED. NO EMPLOYEE IS TRANSFERRED TO THE POST OFFICE SERVICE FROM THIS OR ANY OTHER EXECUTIVE DEPARTMENT. OR FROM THE RAILWAY MAIL SERVICE OR THE RURAL MAIL SERVICE UNTIL A CERTIFICATE AUTHORIZING SUCH TRANSFER SHALL HAVE BEEN ISSUED BY THE CIVIL SERVICE COMMISSION. WHEN SUCH CERTIFICATES OF AUTHORITY HAVE BEEN RECEIVED BY THE DEPARTMENT. THE SALARY STATUS OF THE EMPLOYEE IS FIXED AND DETERMINED BY THE DEPARTMENT IN ACCORDANCE WITH THE PREVIOUS EXPERIENCE OF THE EMPLOYEE IN THE POSTAL SERVICE OR DEPARTMENTAL SERVICE.

A-20212, OCTOBER 28, 1927, 7 COMP. GEN. 295

POSTAL SERVICE - REINSTATEMENTS AND TRANSFERS THE POST OFFICE DEPARTMENT HAS AUTHORITY OF LAW TO REINSTATE OR TRANSFER EMPLOYEES FROM SOME OTHER BRANCH OF THE POSTAL SERVICE, OR THE GOVERNMENT SERVICE GENERALLY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO POSITIONS AS CLERKS IN FIRST AND SECOND CLASS POST OFFICES OR CARRIERS IN THE CITY DELIVERY SERVICE AND PAY THEM INITIALLY UPON REINSTATEMENT OR TRANSFER IN THE AUTOMATIC SALARY GRADES ABOVE THE MINIMUM. WHERE THE APPOINTMENT OF A REINSTATED OR TRANSFERRED EMPLOYEE IS TO THE POSITION OF SENIOR SUBSTITUTE CLERK IN A FIRST OR SECOND CLASS POST OFFICE OR OF SUBSTITUTE CARRIER IN THE CITY DELIVERY SERVICE, SUBSEQUENT PROMOTIONS THROUGH THE AUTOMATIC SALARY GRADES MUST BE IN ACCORDANCE WITH THE EXPRESS TERMS OF THE STATUTE, WHICH WOULD ALLOW, FOR PROMOTION PURPOSES, NO CREDIT FOR SERVICE IN ANY POSITION OTHER THAN THAT OF SUBSTITUTE CLERK OR CARRIER.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, OCTOBER 28, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 17, 1927, REQUESTING DECISION OF CERTAIN QUESTIONS PRESENTED AS FOLLOWS:

FROM TIME IMMEMORIAL IT HAS BEEN THE POLICY AND PRACTICE OF THIS DEPARTMENT TO AUTHORIZE THE TRANSFER FROM THE POST OFFICE DEPARTMENT PROPER, OR ANY BUREAU OR BRANCH THEREOF, OR FIELD SERVICE ORGANIZATIONS UNDER ITS JURISDICTION, CLASSIFIED PERSONS THERE EMPLOYED; TO TRANSFER CLASSIFIED EMPLOYEES FROM OTHER EXECUTIVE DEPARTMENTS OF THE GOVERNMENT, OR FIELD SERVICE BRANCHES THEREOF; AND TO REINSTATE FORMER EMPLOYEES OF THE POST OFFICE SERVICE, HAVING THE NECESSARY CIVIL SERVICE STATUS, TO POSITIONS IN POST OFFICES.

UNDER THE PROVISIONS OF THE CIVIL SERVICE ACT AND SECTION 1753 OF THE REVISED STATUTES AND THE EXECUTIVE ORDERS ISSUED THEREUNDER, TRANSFERS TO THE POST OFFICE SERVICE AND THE CLASSIFICATION OF QUALIFIED PERSONS AS EMPLOYEES IN POST OFFICES ARE AUTHORIZED, AND NO EMPLOYEE IS TRANSFERRED TO THE POST OFFICE SERVICE FROM THIS OR ANY OTHER EXECUTIVE DEPARTMENT, OR FROM THE RAILWAY MAIL SERVICE OR THE RURAL MAIL SERVICE UNTIL A CERTIFICATE AUTHORIZING SUCH TRANSFER SHALL HAVE BEEN ISSUED BY THE CIVIL SERVICE COMMISSION. WHEN SUCH CERTIFICATES OF AUTHORITY HAVE BEEN RECEIVED BY THE DEPARTMENT, THE SALARY STATUS OF THE EMPLOYEE IS FIXED AND DETERMINED BY THE DEPARTMENT IN ACCORDANCE WITH THE PREVIOUS EXPERIENCE OF THE EMPLOYEE IN THE POSTAL SERVICE OR DEPARTMENTAL SERVICE, AND THE VALUE OF THE SERVICE OF SUCH EMPLOYEE TO THE POST OFFICE SERVICE.

AS A RULE MOST OF THE PERSONS TRANSFERRED TO OR REINSTATED IN POSITIONS IN POST OFFICES ARE ELIGIBLE TO APPOINTMENT TO OR REINSTATEMENT IN REGULAR POSITIONS. AS IT IS NOT KNOWN AT THE TIME, IN A MAJORITY OF INSTANCES, WHETHER A REGULAR VACANCY EXISTS IN THE POST OFFICE, IT IS AND FOR MANY YEARS HAS BEEN OUR PRACTICE TO AUTHORIZE THE TRANSFER OR REINSTATEMENT OF THE EMPLOYEE AS SENIOR SUBSTITUTE, TO RECEIVE A DESIGNATED SALARY WHEN A REGULAR VACANCY OCCURS TO WHICH THE EMPLOYEE CAN BE ASSIGNED. WHETHER THE STIPULATED SALARY IS AT THE FIRST GRADE OR HIGHER, WE DO NOT CONSIDER THE ADVANCEMENT OF THE SENIOR SUBSTITUTE, IN THESE CIRCUMSTANCES, A PROMOTION, AS INTENDED AND APPLIED TO SUBSTITUTE CLERKS, CARRIERS, AND LABORERS IN POST OFFICES WHO HAVE HAD NO OTHER CIVIL-SERVICE STATUS.

SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, PROVIDING FOR THE RECLASSIFICATION OF POSTMASTERS AND EMPLOYEES IN THE POST-OFFICE SERVICE PROVIDES, AS FOLLOWS:

"SEC. 4. THAT CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE DIVIDED INTO FIVE GRADES, AS FOLLOWS: FIRST GRADE--- SALARY, $1,700; SECOND GRADE- - SALARY, $1,800; THIRD GRADE--- SALARY, $1,900; FOURTH GRADE--- SALARY, $2,000; FIFTH GRADE --- SALARY, $2,100; * * * PROVIDED FURTHER, THAT HEREAFTER SUBSTITUTE CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND SUBSTITUTE LETTER CARRIERS IN THE CITY DELIVERY SERVICE WHEN APPOINTED REGULAR CLERKS OR CARRIERS SHALL HAVE CREDIT FOR ACTUAL TIME SERVED ON A BASIS OF ONE YEAR FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS SERVED AS SUBSTITUTE, AND APPOINTED TO THE GRADE TO WHICH SUCH CLERK OR CARRIER WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS SUBSTITUTE BEEN TO GRADE 1: AND PROVIDED FURTHER, THAT CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE PROMOTED SUCCESSIVELY AFTER ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE TO THE NEXT HIGHER GRADE UNTIL THEY REACH THE FIFTH GRADE * * *.'

AS UNDERSTOOD BY THIS DEPARTMENT, AND AS APPLIED IN PRACTICE FOR MANY YEARS, THE ABOVE-QUOTED PROVISION OF SECTION 4 IS HELD TO BE APPLICABLE ONLY TO THOSE EMPLOYEES SELECTED FROM REGISTERS OF CIVIL SERVICE ELIGIBLES AND APPOINTED DIRECTLY TO A REGULAR VACANCY, OR TO THOSE SUBSTITUTE EMPLOYEES SELECTED FROM REGISTERS OF ELIGIBLES AND ADVANCING TO REGULAR GRADED POSITIONS, SO AS TO PREVENT SUCH EMPLOYEES FROM BEING PLACED IN A HIGHER GRADE THAN THE FIRST GRADE.

AS HELD AND PRACTICED BY THIS DEPARTMENT, THE ABOVE-QUOTED PROVISIONS OF LAW ARE NOT APPLICABLE IN FIXING THE SALARIES EITHER OF PERSONS TRANSFERRED FROM THIS DEPARTMENT, ANY OF THE BUREAUS OR FIELD SERVICE ORGANIZATIONS THEREUNDER, OR OF EMPLOYEES TRANSFERRED FROM OTHER EXECUTIVE DEPARTMENTS OR FIELD-SERVICE ORGANIZATIONS THEREUNDER.

IN ORDER, THEREFORE, THAT WE MAY PROCEED PROPERLY AND LEGALLY, YOUR OPINION IS REQUESTED AS TO WHETHER THIS DEPARTMENT IS AUTHORIZED TO CONTINUE ITS PRESENT POLICIES AND PRACTICES TO REINSTATE OR TRANSFER AN EMPLOYEE IN A STATUS ABOVE GRADE ONE, IN THE FOLLOWING INSTANCES:

1. UPON THE TRANSFER OF A RURAL CARRIER OR THE REINSTATEMENT OF A FORMER RURAL CARRIER TO A GRADE POSITION IN A POST OFFICE, OR UPON EXCHANGE OF POSITIONS BETWEEN POST-OFFICE EMPLOYEES AND EMPLOYEES OF THE RAILWAY MAIL SERVICE OR THE RURAL MAIL SERVICE.

2. UPON THE TRANSFER OR REINSTATEMENT OF A RAILWAY MAIL CLERK TO A GRADE POSITION IN A POST OFFICE.

3. UPON THE TRANSFER TO A POST OFFICE OF AN EMPLOYEE OF THE POST OFFICE DEPARTMENT PROPER, OR ANY OF THE OTHER EXECUTIVE DEPARTMENTS, OR FIELD- SERVICE BRANCHES THEREOF, OR THE REINSTATEMENT OF ANY SUCH EMPLOYEE TO A POSITION IN A POST OFFICE.

IT IS UNDERSTOOD THAT YOUR ENTIRE SUBMISSION, INCLUDING THE THREE SPECIFIC QUESTIONS STATED, RELATES EXCLUSIVELY TO APPOINTMENTS BY REINSTATEMENT OR TRANSFER, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO THE POSITIONS OF CLERKS IN FIRST AND SECOND CLASS POST OFFICES OR CARRIERS IN THE CITY DELIVERY SERVICE WITH INITIAL SALARY RATE UPON REINSTATEMENT OR TRANSFER IN AUTOMATIC SALARY GRADES ABOVE THE MINIMUM, AND THAT THERE IS NOT INVOLVED APPOINTMENTS TO POSITIONS IN THE RAILWAY MAIL SERVICE OR OTHER BRANCHES OF THE POSTAL SERVICE. WHAT MAY BE SAID HEREINAFTER WILL BE PREDICATED UPON SUCH UNDERSTANDING.

SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, ABOVE QUOTED, ALLOCATES THE POSITIONS OF CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE INTO FIVE SALARY GRADES WITH PROVISION FOR AUTOMATIC PROMOTION "SUCCESSIVELY AFTER ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE TO THE NEXT HIGHER GRADE UNTIL THEY REACH THE FIFTH GRADE.' THIS PROVISION AFFECTS PROMOTION ONLY. THERE IS NO PROVISION IN THE STATUTE, NOR IN EARLIER STATUTES GOVERNING THE PAYMENT OF SALARY OF POSTAL EMPLOYEES, SPECIFYING THE GRADE IN WHICH APPOINTMENTS SHALL BE MADE AS CLERKS IN FIRST AND SECOND CLASS POST OFFICES OR CARRIERS IN THE CITY DELIVERY SERVICE BY REINSTATEMENT OR TRANSFER FROM OTHER BRANCHES OF THE SERVICE. IN FACT, THERE IS NO EXPRESS PROVISION OF LAW REGULATING THE GRADE IN WHICH ORIGINAL APPOINTMENTS AS CLERKS OR CARRIERS SHALL BE MADE. HENCE THERE IS NO REQUIREMENT OF LAW THAT REINSTATED OR TRANSFERRED EMPLOYEES MUST ENTER AS A SUBSTITUTE CLERK OR CARRIER OR IN GRADE 1 OF THE AUTOMATIC SALARY GRADES. SEE ALSO ACT OF JULY 28, 1916, 39 STAT. 412, 416, AND ACT OF JUNE 5, 1920, 41 STAT. 1045.

HOWEVER, AS TO PERSONS FIRST APPOINTED TO THE RAILWAY MAIL SERVICE, SECTION 7 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1061, 1062, SPECIFICALLY PROVIDES "ALL ORIGINAL APPOINTMENTS SHALL BE MADE TO THE RANK OF SUBSTITUTE RAILWAY POSTAL CLERK.' THE EARLIER ACT OF MAY 27, 1908, 35 STAT. 413, HAD PROVIDED "THAT HEREAFTER RAILWAY POSTAL CLERKS ON ENTERING THE SERVICE SHALL RECEIVE THE SALARY OF THE LOWEST GRADE.' SEE DECISION OF MAY 25, 1925, 4 COMP. GEN. 993, 994, QUESTION AND ANSWER 2. THE FACT OF THIS EXPRESS PROVISION IN THE STATUTE CONTROLLING THE ORIGINAL APPOINTMENTS IN THE RAILWAY MAIL SERVICE, WHICH HAS BEEN HELD TO GOVERN APPOINTMENTS MADE BY TRANSFERS FROM OTHER BRANCHES OF THE POSTAL SERVICE, IS AT LEAST PERSUASIVE TO SHOW THAT THE CONGRESS INTENDED NO SUCH LIMITATION AS TO PERSONS TRANSFERRED FROM OTHER BRANCHES OF THE POSTAL SERVICE, OR EVEN FROM OTHER GOVERNMENT SERVICES, TO THE POSITIONS OF CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE.

SECTION 161, REVISED STATUTES, AUTHORIZES THE HEAD OF EACH DEPARTMENT TO PRESCRIBE REGULATIONS, NOT INCONSISTENT WITH THE LAW, FOR THE GOVERNMENT OF HIS DEPARTMENT, THE CONDUCT OF ITS OFFICERS AND EMPLOYEES, ETC. THE POST OFFICE DEPARTMENT UNDER THIS PROVISION OF LAW HAS PROMULGATED THE FOLLOWING REGULATION APPEARING IN THE POSTAL GUIDE, JULY, 1927, PAGE 60, PARAGRAPH 47:

VACANCIES IN CLERK AND CARRIER GRADES.--- A VACANCY IN THE CLERICAL OR CARRIER GRADES (THAT IS, $1,700 TO $2,100) MAY BE FILLED BY THE APPOINTMENT OF A CLERK OR CARRIER AT $1,700 PLUS CREDIT FOR SERVICES ACTUALLY PERFORMED AS A CLASSIFIED SUBSTITUTE, EXCEPT WHEN THE DEPARTMENT AUTHORIZES THE POSTMASTER TO FILL IT BY REINSTATEMENT OR TRANSFER. * * *

IN THE ABSENCE OF ANY PROVISION EXPRESSED OR IMPLIED IN THE GOVERNING STATUTE OR IN THE APPROPRIATION ACTS FOR THE POST OFFICE DEPARTMENT TO THE CONTRARY, THIS REGULATION IS PROPER, UNDER WHICH THE INITIAL SALARY GRADE OF PERSONS REINSTATED OR TRANSFERRED MAY BE FIXED BY THE ADMINISTRATIVE OFFICE, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, ABOVE THE MINIMUM SALARY GRADE.

ACCORDINGLY, THE THREE SPECIFIC QUESTIONS SUBMITTED ARE ANSWERED IN THE AFFIRMATIVE, PROVIDED THAT THE REINSTATEMENT OR TRANSFER IS APPROVED BY THE CIVIL SERVICE COMMISSION. HOWEVER, WITH REFERENCE TO THE THIRD PARAGRAPH HEREIN QUOTED FROM YOUR SUBMISSION, THERE WOULD APPEAR TO BE NO STATUTORY AUTHORITY TO ADVANCE A SENIOR SUBSTITUTE THROUGH THE AUTOMATIC SALARY GRADE BEYOND THAT TO WHICH HE "WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS SUBSTITUTE BEEN TO GRADE 1.' THAT IS TO SAY, IF AN EMPLOYEE IS REINSTATED OR TRANSFERRED TO THE POSITION OF SUBSTITUTE CLERK OR CARRIER, HIS PROMOTION THEREAFTER THROUGH THE AUTOMATIC SALARY GRADES MUST BE IN ACCORDANCE WITH THE EXPRESS TERMS OF THE STATUTE, WHICH WOULD ALLOW FOR PROMOTION PURPOSES NO CREDIT FOR SERVICE IN ANY POSITION OTHER THAN THAT OF SUBSTITUTE CLERK OR CARRIER.