A-3948, SEPTEMBER 16, 1924, 4 COMP. GEN. 299

A-3948: Sep 16, 1924

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RAILWAY POSTAL CLERKS OF CLASSES A AND B HAVE VESTED STATUTORY RIGHTS TO PROMOTION TO GRADE 3. IS NOT AUTOMATIC BUT IS DEPENDENT UPON SELECTION AND APPROVAL BY THE APPOINTING POWER. AS THE POWER OF FINALLY APPROVING PROMOTIONS OF RAILWAY POSTAL CLERKS IS VESTED IN THE SECOND ASSISTANT POSTMASTER GENERAL. SELECTIONS FOR PROMOTION BEYOND THE AUTOMATIC GRADES BY SUBORDINATES ARE NOMINATIONS OR RECOMMENDATIONS ONLY. THE EFFECTIVE DATE OF THE PROMOTION BEING THE DATE THE NOMINATION OR RECOMMENDATION IS FINALLY APPROVED BY THE SECOND ASSISTANT POSTMASTER GENERAL. 1924: THERE IS FOR CONSIDERATION BY THIS OFFICE THE RATE OF COMPENSATION TO WHICH CHARLES H. WAS ENTITLED ON AND AFTER APRIL 1. WHEN HE WAS SELECTED FOR PROMOTION FROM GRADE 3.

A-3948, SEPTEMBER 16, 1924, 4 COMP. GEN. 299

RAILWAY POSTAL CLERKS--- EFFECTIVE DATE OF PROMOTION UNDER THE ACT OF JUNE 5, 1920, 41 STAT. 1050, RAILWAY POSTAL CLERKS OF CLASSES A AND B HAVE VESTED STATUTORY RIGHTS TO PROMOTION TO GRADE 3, $1,850, AND TO GRADE 5, $2,150, RESPECTIVELY, WHEN THE REQUIRED PERIOD OF SATISFACTORY SERVICE HAS BEEN COMPLETED, BUT THE PROMOTION OF SUCH CLERKS BEYOND THOSE GRADES RESPECTIVELY TO COMPETITIVE POSITIONS, THE FILLING OF WHICH REQUIRES SELECTION FROM A NUMBER OF EMPLOYEES, IS NOT AUTOMATIC BUT IS DEPENDENT UPON SELECTION AND APPROVAL BY THE APPOINTING POWER. AS THE POWER OF FINALLY APPROVING PROMOTIONS OF RAILWAY POSTAL CLERKS IS VESTED IN THE SECOND ASSISTANT POSTMASTER GENERAL, SELECTIONS FOR PROMOTION BEYOND THE AUTOMATIC GRADES BY SUBORDINATES ARE NOMINATIONS OR RECOMMENDATIONS ONLY, THE EFFECTIVE DATE OF THE PROMOTION BEING THE DATE THE NOMINATION OR RECOMMENDATION IS FINALLY APPROVED BY THE SECOND ASSISTANT POSTMASTER GENERAL.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 16, 1924:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE RATE OF COMPENSATION TO WHICH CHARLES H. WESTERNDORF, RAILWAY POSTAL CLERK, WAS ENTITLED ON AND AFTER APRIL 1, 1924, WHEN HE WAS SELECTED FOR PROMOTION FROM GRADE 3, SALARY $1,850 PER ANNUM, TO GRADE 4, SALARY $2,000 PER ANNUM, THE PROMOTION HAVING BEEN APPROVED BY THE POST OFFICE DEPARTMENT APRIL 23, 1924.

IT APPEARS FROM THE PAY-ROLL RECORDS AND CORRESPONDENCE IN THIS OFFICE THAT THE PROMOTION WAS WITHDRAWN AND POSTPONED UNTIL JULY 1, 1924, AND THAT THE CLERK WAS REQUIRED TO REFUND AN AMOUNT WHICH REPRESENTED THE DIFFERENCE IN THE RATES OF COMPENSATION UNDER AN INTERPRETATION BY THE POST OFFICE DEPARTMENT OF THE DECISIONS OF THIS OFFICE DATED FEBRUARY 13, 1924, 3 COMP. GEN. 517, AND MAY 12, 1924, 3 COMP. GEN. 844. LATER IT APPEARS THAT BECAUSE THE LATTER DECISION AUTHORIZED CREDIT FOR PAYMENTS THERETOFORE MADE CONTRARY TO ITS HOLDING, THE CLERK WAS REFUNDED THE AMOUNT PREVIOUSLY DEDUCTED, AND THE PROMOTION ALLOWED AS ORIGINALLY MADE.

THE QUESTION PRESENTED IS WHETHER THE PROMOTION TOOK EFFECT APRIL 1, THE DATE OF SELECTION, WHICH WAS ONE YEAR SUBSEQUENT TO THE PROMOTION OF THE CLERK TO GRADE 3, OR APRIL 23, 1924, THE DATE OF APPROVAL OF THE PROMOTION BY THE POST OFFICE DEPARTMENT. IF IT TOOK EFFECT APRIL 23, THE RECORDS WOULD INDICATE THAT THE CLERK IS NOW OVERPAID $9.08, BEING THE DIFFERENCE BETWEEN SALARY AT THE RATE OF $1,850 PER ANNUM AND SALARY AT THE RATE OF $2,000 PER ANNUM FROM APRIL 1 TO 22, INCLUSIVE.

THE ACT OF JUNE 5, 1920, 41 STAT. 1050, PROVIDES AS FOLLOWS:

* * * RAILWAY POSTAL CLERKS SHALL BE DIVIDED INTO TWO CLASSES, CLASS A AND CLASS B, AND INTO SIX GRADES, AS FOLLOWS: GRADE ONE--- SALARY, $1,600; GRADE TWO--- SALARY, $1,700; GRADE THREE--- SALARY $1,850; GRADE FOUR--- SALARY $2,000; GRADE FIVE--- SALARY $2,150; GRADE SIX--- SALARY, $2,300; AND LABORERS IN THE RAILWAY MAIL SERVICE SHALL BE DIVIDED INTO TWO GRADES, AS FOLLOWS: GRADE ONE--- SALARY, $1,350; GRADE TWO--- SALARY, $1,450.

FOR THE PURPOSE OF ORGANIZATION AND ESTABLISHING MAXIMUM GRADES TO WHICH PROMOTIONS MAY BE MADE SUCCESSIVELY, AS HEREIN PROVIDED, RUNS NOW IN CLASS A AND ALL TERMINAL RAILWAY POST OFFICES AND TRANSFER OFFICES SHALL BE PLACED IN CLASS A, AND THE REMAINDER IN CLASS B.

ROAD CLERKS SHALL BE PROMOTED SUCCESSIVELY TO GRADE THREE FOR CLERKS, AND TO GRADE FOUR FOR CLERKS IN CHARGE OF CLASS A, AND TO GRADE FIVE FOR CLERKS AND TO GRADE SIX FOR CLERKS IN CHARGE OF CLASS B.

TERMINAL RAILWAY POST OFFICE AND TRANSFER CLERKS SHALL BE PROMOTED SUCCESSIVELY TO GRADE THREE FOR CLERKS OF WHOM GENERAL SCHEME DISTRIBUTION IS NOT REQUIRED, AND TO GRADE FOUR FOR CLERKS OF WHOM GENERAL SCHEME DISTRIBUTION IS REQUIRED, AND FOR CLERKS IN CHARGE TO GRADE FIVE IN TERMINALS OR TOURS OR CREWS IN TERMINALS CONSISTING OF NOT MORE THAN NINETEEN CLERKS OR IN TRANSFER OFFICES OR TOURS IN TRANSFER OFFICES OF NOT MORE THAN FOUR CLERKS AND TO GRADE SIX IN TERMINALS OR TOURS OR CREWS IN TERMINALS CONSISTING OF TWENTY OR MORE CLERKS AND IN TRANSFER OFFICES OR TOURS IN TRANSFER OFFICES OF FIVE OR MORE CLERKS.

PROMOTIONS SHALL BE MADE SUCCESSIVELY AT THE BEGINNING OF THE QUARTER FOLLOWING A YEAR'S SATISFACTORY SERVICE IN THE NEXT LOWER GRADE.

UNDER DATE OF JULY 16, 1924, THE GENERAL SUPERINTENDENT OF RAILWAY MAIL SERVICE STATED AS FOLLOWS:

IN REPLY TO YOUR LETTER OF JULY 15 (P-LC), PLEASE BE INFORMED THAT THE ELEVEN RAILWAY POSTAL CLERKS SHOWN ON JOURNAL NO. 153, DATED JUNE 30, 1924, WERE SELECTED BY THE DEPARTMENT FOR PROMOTION FROM THEIR FORMER POSITIONS TO THEIR PRESENT COMPETITIVE GRADES. THE DATE OF EACH SELECTION IS THE APPROVAL DATE SHOWN ON THE JOURNAL.

WESTERNDORF WAS ONE OF THE 11 MENTIONED IN THIS LETTER; AND IN AMPLIFICATION OF THE STATEMENT THE POST OFFICE DEPARTMENT HAS INFORMALLY ADVISED THIS OFFICE THAT THE "SELECTION" CONSISTED OF CHOOSING TERMINAL RAILWAY POST OFFICE AND TRANSFER CLERKS IN GRADE 3, CLASS A, OF WHOM GENERAL-SCHEME DISTRIBUTION WAS NOT REQUIRED, TO FILL POSITIONS OF CLERKS IN GRADE 4, CLASS A, OF WHOM GENERAL-SCHEME DISTRIBUTION IS REQUIRED.

THE DECISION OF FEBRUARY 13, 1924, HELD THAT CLERKS IN FIRST AND SECOND CLASS POST OFFICES HAVE A VESTED STATUTORY RIGHT TO PROMOTION UNDER THE ACT OF JUNE 5, 1920, 41 STAT. 1049, WHEN THE REQUIRED PERIOD OF SATISFACTORY SERVICE HAS BEEN COMPLETED, SUCH PROMOTION NOT BEING DEPENDENT UPON SELECTION, WHICH RIGHT CAN NOT BE DEFEATED BY ANY DELAY OR MISCALCULATION ON THE PART OF THE OFFICERS OR EMPLOYEES WHOSE DUTY IT IS TO ASCERTAIN THE DATE ON WHICH THE PROMOTION BECAME EFFECTIVE UNDER THE LAW, CITING 27 COMP. DEC. 1068, AND 1 COMP. GEN. 355, BUT THAT PROMOTIONS TO THE TWO GRADES OF SPECIAL CLERKS WERE NOT THUS AUTOMATIC BUT DEPENDENT UPON SELECTION FOR PROMOTION. SUCH PROMOTIONS, DEPENDING UPON SELECTION, ARE EFFECTIVE NOT FROM THE DATE OF SELECTION BY A SUBORDINATE OFFICER, BUT FROM THE DATE OF APPROVAL BY THE APPOINTING POWER. 3 COMP. GEN. 559; ID. 844.

THE PROMOTIONS OF RAILWAY POSTAL CLERKS PRESENT AN ANALOGOUS SITUATION UNDER THE CONTROLLING STATUTE. THE STATUTE SHOWS THAT CLERKS OF CLASSES A AND B HAVE A VESTED STATUTORY RIGHT TO PROMOTION TO GRADE 3, SALARY AT THE RATE OF $1,850 PER ANNUM, AND GRADE 5, SALARY AT THE RATE OF $2,150 PER ANNUM, RESPECTIVELY, WHEN THE REQUIRED PERIOD OF SATISFACTORY SERVICE HAS BEEN COMPLETED; BUT THAT THE PROMOTIONS OF SUCH CLERKS BEYOND THOSE GRADES, RESPECTIVELY, TO POSITIONS THE FILLING OF WHICH REQUIRES SELECTION FROM A NUMBER OF EMPLOYEES ARE NOT AUTOMATIC, BUT ARE DEPENDENT UPON SELECTION. IN OTHER WORDS, THERE EXISTS COMPETITION FOR THE POSITIONS ABOVE GRADE 3, CLASS A, AND ABOVE GRADE 5, CLASS B, REQUIRING THE ACTION OF THE APPOINTING OFFICER IN COMPARING THE RESPECTIVE QUALIFICATIONS OF A NUMBER OF EMPLOYEES TO MAKE PROPER SELECTIONS FOR FILLING VACANCIES.

ORIGINAL APPOINTMENTS OF RAILWAY POSTAL CLERKS ARE MADE BY THE POSTMASTER GENERAL, SECTION 1482, POSTAL LAWS AND REGULATIONS, 1924, BUT THE AUTHORITY TO TAKE FINAL ACTION ON PROMOTIONS AND SELECTIONS OF INCUMBENTS FOR SUCH COMPETITIVE POSITIONS APPEARS TO HAVE BEEN VESTED IN THE SECOND ASSISTANT POSTMASTER GENERAL, UNDER WHOSE JURISDICTION THE POSTMASTER GENERAL HAS PLACED THE MANAGEMENT AND CONTROL OF THE RAILWAY MAIL SERVICE. SECTION 12, POSTAL LAWS AND REGULATIONS, 1924. THE RECOMMENDATIONS FOR PROMOTIONS OF RAILWAY POSTAL CLERKS, OTHER THAN IN THE AUTOMATIC GRADES, ARE MADE BY THE DIVISION SUPERINTENDENTS OF THE RAILWAY MAIL SERVICE, THROUGH THE GENERAL SUPERINTENDENT OF THE RAILWAY MAIL SERVICE. SEE PARAGRAPH 4, SECTION 12, AND SECTIONS 1481 TO 1500 OF THE POSTAL LAWS AND REGULATIONS, 1924.

IN THIS CASE, APRIL 1, 1924, REPRESENTS THE DATE OF RECOMMENDATION AND APRIL 23, 1924, THAT OF FINAL ACTION BY THE SECOND ASSISTANT POSTMASTER GENERAL. THE PROMOTION OF WESTERNDORF WAS TO GRADE 4, CLASS A, WHICH WAS NOT AN AUTOMATIC PROMOTION BUT WAS DEPENDENT UPON SELECTION AND APPROVAL BY THE PROPER OFFICIAL, IN DETERMINING HIS FITNESS FOR THE WORK OF GENERAL -SCHEME DISTRIBUTION.

ACCORDINGLY, UNDER THE PROPER CONSTRUCTION OF THE LAW, THE PROMOTION WAS EFFECTIVE ON AND AFTER APRIL 23, 1924. HOWEVER, UNDER THE DECISION OF MAY 12, 1924, CREDIT WILL BE ALLOWED FOR THE PAYMENT MADE COVERING THE DIFFERENCE IN THE RATES OF COMPENSATION BETWEEN $1,850 PER ANNUM AND $2,000 PER ANNUM FROM APRIL 1 TO 22, INCLUSIVE, THE SAME REPRESENTING SALARY PAYABLE FOR THE PERIOD PRIOR TO THE DATE OF THAT DECISION.