B-104889, OCTOBER 9, 1951, 31 COMP. GEN. 131

B-104889: Oct 9, 1951

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APPOINTMENTS - POSTAL SERVICE - INITIAL GRADES FOR TEMPORARY CLERKS AND CARRIERS TEMPORARY CLERKS OR CARRIERS AT POST OFFICES OF THE FIRST AND SECOND CLASSES WHOSE GRADES AND RATES OF COMPENSATION ARE GOVERNED BY SECTION 12 (A) OF THE ACT OF JULY 6. 1951: REFERENCE IS MADE TO YOUR LETTER OF JULY 25. REQUESTING A DECISION AS TO WHETHER TEMPORARY CARRIERS IN THE CITY DELIVERY SERVICE AND TEMPORARY CLERKS AT POST OFFICES OF THE FIRST AND SECOND CLASSES WHOSE GRADES AND RATES OF COMPENSATION ARE CONTROLLED BY SECTION 12 (A) OF THE ACT OF JULY 6. IT IS STATED IN YOUR LETTER THAT IT HAS BEEN THE GENERAL PRACTICE OF THE POST OFFICE DEPARTMENT IN HIRING PERSONS AS TEMPORARY CLERKS AT FIRST AND SECOND CLASS POST OFFICES.

B-104889, OCTOBER 9, 1951, 31 COMP. GEN. 131

APPOINTMENTS - POSTAL SERVICE - INITIAL GRADES FOR TEMPORARY CLERKS AND CARRIERS TEMPORARY CLERKS OR CARRIERS AT POST OFFICES OF THE FIRST AND SECOND CLASSES WHOSE GRADES AND RATES OF COMPENSATION ARE GOVERNED BY SECTION 12 (A) OF THE ACT OF JULY 6, 1945, AS AMENDED, MAY NOT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, BE APPOINTED UNDER AN ORIGINAL APPOINTMENT TO A GRADE ABOVE THE MINIMUM GRADE FOR THE POSITION TO WHICH APPOINTED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 9, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1951, YOUR REFERENCE 4, REQUESTING A DECISION AS TO WHETHER TEMPORARY CARRIERS IN THE CITY DELIVERY SERVICE AND TEMPORARY CLERKS AT POST OFFICES OF THE FIRST AND SECOND CLASSES WHOSE GRADES AND RATES OF COMPENSATION ARE CONTROLLED BY SECTION 12 (A) OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 443, AS AMENDED, 39 U.S.C. 862 (A), MAY BE APPOINTED AT GRADES ABOVE GRADE 1.

IT IS STATED IN YOUR LETTER THAT IT HAS BEEN THE GENERAL PRACTICE OF THE POST OFFICE DEPARTMENT IN HIRING PERSONS AS TEMPORARY CLERKS AT FIRST AND SECOND CLASS POST OFFICES, AS WELL AS OTHER CLASSES OF EMPLOYEES WHOSE COMPENSATION IS GOVERNED BY SECTION 12 (A), PUBLIC LAW 134, TO PLACE THEM IN GRADE 1 OF THE SERVICE IN WHICH EMPLOYED. ALSO, IT IS STATED THAT, IN RECENT YEARS, THE POST OFFICES IN ALASKA, AT SUCH PLACES AS ANCHORAGE, HAVE BEEN UNABLE TO MEET THE DEMANDS OF THE INCREASED POPULATION; THAT THE ANCHORAGE POST OFFICE, WHICH HAD POSTAL RECEIPTS IN THE APPROXIMATE AMOUNT OF $493,000 FOR THE CALENDAR YEAR 1950, AND AN ESTIMATED 25,000 TO 35,000 PATRONS, SHOULD PROVIDE CITY DELIVERY SERVICE TO ITS PATRONS; AND THAT INABILITY TO OBTAIN EMPLOYEES HAS BEEN A MAJOR FACTOR IN PREVENTING THE ESTABLISHMENT OF CITY DELIVERY SERVICE AT ANCHORAGE. IT IS STATED FURTHER THAT TEMPORARY CLERKS AND CARRIERS NECESSARY TO ESTABLISH CITY DELIVERY SERVICE AT ANCHORAGE CANNOT BE RECRUITED AT GRADE 1 BECAUSE OF THE EXTREMELY HIGH WAGE RATES OF $2.77 PER HOUR FOR COMMON LABOR AS COMPARED WITH THE RATE OF $1.64 PER HOUR (INCLUDING THE 25 PERCENT DIFFERENTIAL ALLOWED TO EMPLOYEES IN ALASKA UNDER CERTAIN PRESCRIBED CONDITIONS) FOR CLERKS AND CARRIERS IN GRADE 1.

SECTION 12 (A), PUBLIC LAW 134, AS AMENDED, 39 U.S.C. 862 (A), PROVIDES THAT CARRIERS IN THE CITY DELIVERY SERVICE AND CLERKS IN POST OFFICES OF THE FIRST AND SECOND CLASSES SHALL BE DIVIDED INTO 11 GRADES, AND THAT THE PAY OF SUBSTITUTE, TEMPORARY, OR AUXILIARY EMPLOYEES IN SUCH SERVICES SHALL BE UPON AN HOURLY BASIS AT SPECIFIED RATES PER HOUR FOR EACH GRADE. SUCH PROVISIONS CONTROL THE RATES OF COMPENSATION FOR POSTAL SERVICE EMPLOYEES IN ALASKA AS WELL AS IN THE CONTINENTAL UNITED STATES SUBJECT, UNDER CERTAIN CONDITIONS, TO ADDITIONAL COMPENSATION (DIFFERENTIAL) FOR SERVICES IN ALASKA UNDER EXECUTIVE FEDERAL REGULATIONS, VOLUME 5. HOWEVER, THERE IS NO EXPRESS STATUTORY PROVISION REGULATING THE GRADE IN WHICH ORIGINAL APPOINTMENTS AS CLERKS OR CARRIERS SHALL BE MADE UNDER SECTION 12 (A), PUBLIC LAW 134. A COMPARISON IS MADE IN YOUR LETTER BETWEEN THE SAID PROVISIONS OF SECTION 12 (A), PUBLIC LAW 134, AND CERTAIN OTHER PROVISIONS OF PUBLIC LAW 134 RESTRICTING ORIGINAL APPOINTMENTS OF TEMPORARY EMPLOYEES TO GRADE 1, AND IT IS STATED TO BE YOUR OPINION THAT SUCH COMPARISON INDICATES THAT WHERE SUCH A RESTRICTION WAS INTENDED IT WAS EXPRESSLY STATED, AS, FOR EXAMPLE, IN SECTION 14 (L), AS AMENDED BY THE ACT OF JUNE 19, 1948, 62 STAT. 490, RELATING TO TEMPORARY EMPLOYEES IN THE CUSTODIAL SERVICE PAID UPON AN ANNUAL BASIS; SECTION 18 (F), AS AMENDED BY THE ACT OF OCTOBER 29, 1949, 63 STAT. 984, RELATING TO TEMPORARY EMPLOYEES IN THE MAIL EQUIPMENT SHOPS PAID UPON AN ANNUAL BASIS; AND SECTION 17 (F), 59 STAT. 456, RELATING TO TEMPORARY RURAL CARRIERS SERVING ROUTES FOR WHICH THERE IS NO REGULAR

CARRIER.

IN THAT CONNECTION, YOU REFER TO CERTAIN DECISIONS OF THIS OFFICE PUBLISHED IN 7 COMP. GEN. 295; 15 ID. 595; 27 ID. 772; AND 28 ID. 709 (B- 85486, JUNE 14, 1949). EACH OF THOSE DECISIONS RELATES EXCLUSIVELY TO APPOINTMENTS BY REINSTATEMENT OR TRANSFER, WITH INITIAL SALARY RATE IN AN AUTOMATIC SALARY GRADE ABOVE THE MINIMUM RATE FOR THE GRADE IN WHICH REINSTATED OR TRANSFERRED. HENCE, THOSE DECISIONS ARE NOT FOR APPLICATION HERE WHERE THERE IS INVOLVED AN ORIGINAL APPOINTMENT, (I.E., BY OTHER THAN REINSTATEMENT OR TRANSFER) OF A CLERK OR CARRIER IN THE POSTAL SERVICE TO A GRADE ABOVE THE MINIMUM GRADE FOR THE POSITION IN WHICH APPOINTED. DOES NOT APPEAR THAT SUCH QUESTION HAS BEEN CONSIDERED HERETOFORE BY THIS OFFICE.

SECTION 2 (B) AND SECTION 2 (D) OF THE ACT OF OCTOBER 28, 1949, 63 STAT. 953, PROVIDE AS OLLOWS:

(B) EACH PERSON WHOSE ORIGINAL APPOINTMENT TO A REGULAR POSITION IN THE POSTAL FIELD SERVICE IS MADE ON OR AFTER THE EFFECTIVE DATE OF THIS ACT SHALL BE PLACED IN GRADE 3 AT THE TIME OF SUCH APPOINTMENT.

(D) EACH PERSON WHOSE APPOINTMENT TO A SUBSTITUTE OR TEMPORARY POSITION IN THE POSTAL FIELD SERVICE IS MADE ON OR AFTER THE EFFECTIVE DATE OF THIS ACT SHALL BE PLACED IN GRADE 3 AS OF THE DATE OF HIS APPOINTMENT OR AS THE DATE HE SHALL HAVE BEEN ON THE ROLL FOR AN AGGREGATE PERIOD OF ONE YEAR, WHICHEVER DATE IS THE LATER.

IT IS STATED IN YOUR LETTER THAT THE DOUBT IN THIS MATTER ARISES ONLY BY REASON OF THE PROVISIONS OF SECTION 2 (D), PUBLIC LAW 428, QUOTED ABOVE, AND THAT THE POST OFFICE DEPARTMENT HAS CONSTRUED THOSE PROVISIONS AS PROVIDING ONLY MINIMUM STANDARDS IN THE CASE OF INITIAL APPOINTMENTS OF REGULARS AND THAT SUCH MINIMUM STANDARDS WOULD NOT REQUIRE ORIGINAL APPOINTMENTS OF TEMPORARY CARRIERS IN THE CITY DELIVERY SERVICE AND CLERKS AT FIRST AND SECOND CLASS POST OFFICES TO BE MADE AT A GRADE BELOW GRADE 3.

IT IS UNDERSTOOD THAT THERE IS NO LIST OF ELIGIBLES FOR CLERK AND CARRIER POSITIONS IN ALASKA BECAUSE SUCH POSITIONS IN ALASKA HAVE BEEN EXCEPTED FROM THE COMPETITIVE CIVIL SERVICE UNDER SECTION 6.101 (J) OF CIVIL SERVICE RULE VI, AND THAT ORIGINAL APPOINTMENTS TO SUCH POSITIONS IN ALASKA ORDINARILY WOULD BE TEMPORARY APPOINTMENTS UNDER SECTION 137.10 (C), POSTAL LAWS AND REGULATIONS, 1948. ALSO, IT IS UNDERSTOOD THAT DURING THE INITIAL INSTALLATION AND OPERATION OF A CITY DELIVERY SERVICE AT SUCH PLACES AS ANCHORAGE, PENDING A DETERMINATION OF THE NEED FOR PERMANENT POSITIONS THE TEMPORARY APPOINTMENTS HERE INVOLVED WOULD BE TO TEMPORARY POSITIONS FOR PERIODS NOT TO EXCEED ONE YEAR, AS DISTINGUISHED FROM INDEFINITE APPOINTMENTS UNDER EXECUTIVE ORDER 10180, NOVEMBER 13, 1951, AND SECTION 2.115 OF THE CIVIL SERVICE REGULATIONS. SEE POSTAL BULLETIN 19414, MARCH 1, 1951.

SECTION 2 (D), PUBLIC LAW 428, ABOVE, SPECIFICALLY REQUIRES AN AGGREGATE PERIOD OF ONE YEAR ON THE ROLL BY AN EMPLOYEE APPOINTED TO A SUBSTITUTE OR TEMPORARY POSITION BEFORE SUCH AN APPOINTEE MAY BE PLACED IN GRADE 3. NECESSARILY FOLLOWS THAT SUCH AN APPOINTEE MUST BE PLACED IN A GRADE BELOW GRADE 3 UPON RECEIVING AN ORIGINAL APPOINTMENT IN THE POSTAL SERVICE SO AS TO PERMIT HIM TO BE ON THE ROLL THE REQUIRED AGGREGATE PERIOD OF ONE YEAR. ACCORDINGLY, I CANNOT AGREE WITH YOUR INTERPRETATION TO THE EFFECT THAT SECTION 2 (D), PUBLIC LAW 428, DOES NOT REQUIRE AN ORIGINAL APPOINTMENT OF SUCH AN EMPLOYEE TO BE MADE AT A GRADE BELOW GRADE 3.

FURTHERMORE, ATTENTION IS INVITED TO THE PROVISIONS OF THE ACT OF MARCH 6, 1946, PUBLIC LAW 317, AS AMENDED BY SECTION 3 OF THE ACT OF APRIL 15, 1947, PUBLIC LAW 35, 61 STAT. 40, WHICH RESTRICT AN EMPLOYEE, UPON APPOINTMENT FROM SUBSTITUTE TO REGULAR, FROM BEING PLACED IN, OR PROMOTED TO, A GRADE HIGHER THAN THE GRADE TO WHICH HE WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT BEEN TO A REGULAR POSITION OF GRADE 1. THE PROVISIONS OF PUBLIC LAW 317, AS AMENDED, ARE SIMILAR TO PROVISIONS CONSISTENTLY CARRIED IN THE STATUTES FOR MANY YEARS RELATIVE TO THE GRADE IN WHICH AN EMPLOYEE IS TO BE PLACED UPON PROMOTION FROM SUBSTITUTE TO REGULAR. SEE 39 U.S.C. 104. THE CURRENT PROVISIONS CONFORM WITH, AND MORE OR LESS CONFIRM, SUCH EARLIER STATUTES AND THE LONG ACCEPTED AND RECOGNIZED SENIORITY PRACTICE IN THE POSTAL FIELD SERVICE WHEREBY ORIGINAL APPOINTMENTS ARE MADE TO GRADE 1 AND VACANCIES IN THE REGULAR FORCE ORDINARILY ARE FILLED BY THE PROMOTION OF THE SENIOR CLASSIFIED SUBSTITUTE OF THE SAME DESIGNATION OR BY REINSTATEMENT OR BY TRANSFER. SEE ARTICLE 5, MANUAL OF INSTRUCTIONS FOR POSTAL PERSONNEL, 1948, AND SECTION 137.12 (F), POSTAL LAWS AND REGULATIONS, 1948.

ACCORDINGLY, SINCE THE ORIGINAL APPOINTMENT OF AN EMPLOYEE IN THE POSTAL SERVICE IN OTHER THAN THE MINIMUM GRADE FOR THE POSITION TO WHICH APPOINTED WOULD BE A DEPARTURE FROM THE PROCEDURE CONSISTENTLY FOLLOWED BY THE POSTAL SERVICE IN THE PAST, AND IN VIEW OF THE PROVISIONS OF PUBLIC LAW 428 AND PUBLIC LAW 317, AS AMENDED, ABOVE, I AM COMPELLED TO HOLD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION, TEMPORARY CLERKS OR CARRIERS MAY NOT BE APPOINTED UNDER AN ORIGINAL APPOINTMENT TO A GRADE ABOVE THE MINIMUM GRADE FOR THE POSITION TO WHICH APPOINTED.