B-108634, JULY 2, 1952, 32 COMP. GEN. 5

B-108634, JULY 2, 1952, 32 COMP. GEN. 5

COMPENSATION - POSTAL SERVICE - AUTOMATIC PROMOTIONS - CHANGE OF POSITION AFTER JUNE 30, 1945 UNDER SECTION 4 (A) OF THE ACT OF OCTOBER 24, 1951, WHICH EXTENDS BENEFITS OF ONE OR TWO GRADE ADVANCEMENTS TO CERTAIN POSTAL SERVICE EMPLOYEES WHO "ENTERED THE FIELD SERVICE AFTER JUNE 30, 945" AND WHO HAVE NOT BEEN ADVANCED AT LEAST TWO AUTOMATIC GRADES THROUGH THE OPERATION OF CERTAIN STATUTORY PROVISIONS, AN EMPLOYEE WHO HAS BEEN IN THE POSTAL SERVICE CONTINUOUSLY SINCE JUNE 31, 1945, AND WHO LEAVES ONE POSITION IN THE POSTAL SERVICE FOR THE PURPOSE OF ACCEPTING ANOTHER POSITION IN THE POSTAL SERVICE WITH NO BREAK IN THE CONTINUITY OF SERVICE MAY NOT BE CONSIDERED AS HAVING "ENTERED THE FIELD SERVICE AFTER JUNE 30, 1945," WITHIN THE MEANING OF THAT TERM AS USED IN SAID SECTION. AN EMPLOYEE WHO HAS BEEN IN THE POSTAL SERVICE CONTINUOUSLY SINCE JUNE 30, 1945, AND WHO OFFICIALLY RESIGNS FROM THE POSTAL SERVICE BEFORE BEING APPOINTED TO A NEW POSITION IN THE POSTAL SERVICE WITH NO BREAK IN THE CONTINUITY OF SERVICE MAY BE CONSIDERED AS HAVING "ENTERED THE FIELD SERVICE AFTER JUNE 30, 1945" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 4 (A) OF THE ACT OF OCTOBER 24, 1951.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JULY 2, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1952, REFERENCE 12, REQUESTING A DECISION UPON TWO QUESTIONS, INFRA, RELATIVE TO THE APPLICATION OF SECTION 4 (A) OF THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 204, 56 STAT. 625, TO EMPLOYEES WITH SERVICE IN ONE POSITION OF THE POSTAL SERVICE PRIOR TO JULY 1, 1945, WHO TRANSFERRED AFTER JUNE 30, 1945, WITHOUT A BREAK IN SERVICE TO ANOTHER POSITION OF THE POSTAL SERVICE.

SECTION 4 (A), PUBLIC LAW 204, EXTENDS BENEFITS OF ONE OR TWO GRADE ADVANCEMENTS TO CERTAIN POSTAL SERVICE EMPLOYEES WHO "ENTERED THE FIELD SERVICE AFTER JUNE 30, 1945," AND WHO HAVE NOT BEEN ADVANCED AT LEAST TWO AUTOMATIC GRADES THROUGH THE OPERATION OF THE FOLLOWING STATUTORY PROVISIONS: SECTION 2 OF THE ACT OF MARCH 6, 1946, PUBLIC LAW 317, AS AMENDED BY SECTION 3 OF THE ACT OF APRIL 15, 1947, PUBLIC LAW 577, 60 STAT. 749, AS AMENDED BY THE ACT OF APRIL 29, 1950, PUBLIC LAW 492, 64 STAT. 93; AND SECTION 2 OF THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, 63 STAT. 953.

AS ILLUSTRATIVE OF THE FIRST QUESTION QUOTED BELOW, YOU CITE THE CASE OF AN EMPLOYEE WHO WAS APPOINTED AS A CUSTODIAL LABORER ON NOVEMBER 1, 1941. AT THAT TIME AND SUBSEQUENTLY UNDER THE ACT OF OCTOBER 18, 1943, 57 STAT. 572, SUCH POSITION FOR CUSTODIAL WORK IN POST OFFICES WAS ALLOCATED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED 5 U.S.C. 661- -- POSTAL SERVICE GRADES AND RATES OF COMPENSATION FOR CUSTODIAL EMPLOYEES FIRST HAVING BEEN ESTABLISHED BY SECTION 14 OF THE ACT OF JULY 6, 1945, PUBLIC LAW, 134, 59 STAT. 446. THE EMPLOYEE ENTERED THE MILITARY SERVICE ON AUGUST 17, 1942, AND, UPON RETURN, WAS RESTORED ON OCTOBER 1, 1945, AS A REGULAR LABORER IN THE CUSTODIAL SERVICE, GRADE 5, $1,700 PER ANNUM, PURSUANT TO SECTION 14 (I), PUBLIC LAW 134, 59 STAT. 449. HE TRANSFERRED TO SUBSTITUTE CLERK ON APRIL 1, 1946, AT THE COMPARABLE HOURLY RATE OF COMPENSATION, GRADE 1, $0.84 PER HOUR. HE WAS PROMOTED TO REGULAR CLERK ON APRIL 16, 1949, WITHOUT BENEFITS OF A FOUR GRADE ADVANCEMENT UNDER PUBLIC LAW 317, AS AMENDED, BECAUSE HIS SUBSTITUTE SERVICE PRIOR TO JULY 1, 1945, WAS IN A DIFFERENT POSITION. SEE 26 COMP. GEN. 449; 28 ID. 583. HE ADVANCED THROUGH THE AUTOMATIC GRADES TO GRADE 6 ON APRIL 1, 1951, AND THEN WAS CONVERTED TO NEW GRADE 4, EFFECTIVE JULY 1, 1951, PURSUANT TO SECTION 14 (B) (2), PUBLIC LAW 204, 65 STAT. 632. THE SPECIFIC QUESTION PRESENTED IN REGARD TO THIS EMPLOYEE IS AS FOLLOWS:

MAY THE DEPARTMENT CONSIDER THAT, FOR THE PURPOSE OF SECTION 4 (A) OF PUBLIC LAW 204, THIS EMPLOYEE ENTERED THE POSTAL FIELD SERVICE ON APRIL 1, 1946, THE DATE HE TRANSFERRED TO SUBSTITUTE CLERK? WOULD YOUR ANSWER BE THE SAME IF THE EMPLOYEE HAD RESIGNED FROM THE POSITION OF LABORER ON MARCH 31, 1946, AND HAD BEEN APPOINTED SUBSTITUTE CLERK ON APRIL 1, 1946, FROM A CIVIL SERVICE REGISTER OF ELIGIBLES WITHOUT A BREAK IN SERVICE?

IT IS STATED IN YOUR LETTER THAT IN ORDER TO PRECLUDE INEQUITIES, IT WOULD BE NECESSARY TO REGARD TRANSFERS FROM CUSTODIAL AND MAIL HANDLER POSITIONS TO SUBSTITUTE CLERK AND SUBSTITUTE CARRIER POSITIONS AS ENTRIES INTO THE POSTAL SERVICE SO THAT ADDITIONAL GRADES MAY BE ALLOWED, NOTWITHSTANDING THE FACT THAT THE EMPLOYEES WERE ON THE ROLLS IN OTHER POSITIONS PRIOR TO JULY 1, 1945. ALSO, YOU INVITE ATTENTION TO THE FACT THAT A PERSON WHO WAS NEWLY APPOINTED AS A SUBSTITUTE CLERK FROM AN ELIGIBLE REGISTER ON AND AFTER JULY 1, 1945, IS ELIGIBLE FOR ADDITIONAL GRADES UNDER SECTION 4 (A), PUBLIC LAW 204, AND THAT AN EMPLOYEE WHO SERVED PRIOR TO JULY 1, 1945, AND WAS SEPARATED AND REINSTATED ON OR AFTER JULY 1, 1945, IS ELIGIBLE FOR ADDITIONAL GRADES IF HE MEETS THE REQUIREMENTS OF SECTION 4 (A), PUBLIC LAW 204.

THE DOUBT IN THIS MATTER IS WHETHER AN EMPLOYEE WHO HAS BEEN IN THE POSTAL SERVICE CONTINUOUSLY SINCE JUNE 30, 1945, AND WHO LEAVES ONE POSITION IN THE POSTAL SERVICE FOR THE PURPOSE OF ACCEPTING ANOTHER POSITION IN THE POSTAL SERVICE WITH NO BREAK IN THE CONTINUITY OF THE SERVICE MAY BE CONSIDERED AS HAVING "ENTERED THE FIELD SERVICE AFTER JUNE 30, 1945," WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 4 (A), PUBLIC LAW 204. THE TERM,"FIELD SERVICE," AS USED IN THE ACT IS PRESUMED TO ENCOMPASS THE SAME ACTIVITIES AS ENCOMPASSED BY THE TERM," POSTAL SERVICE," AND THAT AN EMPLOYEE WHO ENTERED THE " POSTAL SERVICE" WITH GRADES AND RATES OF COMPENSATION PRESCRIBED BY THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 435, AS AMENDED, 39 U.S.C. 851-890, ALSO WOULD BE *CONSIDERED AS HAVING ENTERED THE "FIELD SERVICE. SEE SECTION 1, PUBLIC LAW 134, 59 STAT. 435.

SENATE REPORT NO. 701, 82D CONGRESS, ACCOMPANYING S. 355 WHICH BECAME PUBLIC LAW 204, SHOWS THAT ONE OF THE PURPOSES THE BILL WAS DESIGNED TO ACCOMPLISH WAS TO ELIMINATE THE TWO LOWEST AUTOMATIC GRADES AND TO UPGRADE THOSE EMPLOYEES IN THE AUTOMATIC GRADES WHO ENTERED THE FIELD SERVICE AFTER JUNE 30, 1945, AND WHO HAVE NOT BENEFITED BY GRADE ELIMINATIONS OR UPGRADINGS. ALSO, THE REPORT SHOWS ON PAGE 3, THAT EMPLOYEES WHO ENTERED THE SERVICE AFTER JUNE 30, 1945, AND WHO HAVE NOT RECEIVED PROMOTIONS OTHER THAN AUTOMATIC PROMOTIONS ARE SUFFERING A GREAT INJUSTICE BY REASON OF THEIR NOT HAVING RECEIVED THE BENEFITS OF LEGISLATION TO REMOVE THE INEQUITY WHICH AROSE BY REASON OF THE LEGISLATION AUTHORIZING GRADE ELIMINATIONS OR UPGRADINGS FOR CERTAIN EMPLOYEES ONLY. SEE, ALSO, HOUSE REPORT NO. 958, 82D CONGRESS, ACCOMPANYING H.R. 244, 82D CONGRESS, WHICH CONTAINED PROVISIONS SIMILAR TO THOSE HERE UNDER CONSIDERATION. WHILE IT IS APPARENT FROM THE LEGISLATIVE HISTORY THAT IT WAS THOUGHT THE LEGISLATION WOULD EXTEND THE UPGRADINGS TO THOSE EMPLOYEES WHO HAVE NOT HAD THE BENEFIT OF GRADE ELIMINATIONS OR UPGRADINGS UNDER PRIOR LEGISLATION, WHENEVER REFERENCE IS MADE IN THE LEGISLATIVE HISTORY TO THE EMPLOYEES WHO HAD NOT RECEIVED SUCH BENEFITS, REFERENCE ALWAYS WAS MADE TO EMPLOYEES WHO ENTERED THE SERVICE AFTER JUNE 30, 1945. IN THAT CONNECTION, IT IS STATED ON PAGE 3 OF THE SENATE REPORT THAT SINCE THE 4- GRADE PROMOTION UNDER SECTION 23, PUBLIC LAW 134, 59 STAT. 460, APPLIED TO ALL EMPLOYEES WHO WERE IN THE AUTOMATIC GRADES AS OF JUNE 30, 1945, THOSE WHO ENTERED THE SERVICE ON JUNE 30, 1945, OR PRIOR THERETO, SUFFERED NO INJUSTICE SINCE THEY ALREADY HAVE ADVANCED TO THE HIGHEST GRADE IN THE CASE OF A MAJORITY OF POSTAL EMPLOYEES. WHETHER THAT STATEMENT IS ENTIRELY CORRECT NEED NOT HERE BE DISCUSSED.

THE EMPLOYEE REFERRED TO ABOVE WAS IN THE POSTAL SERVICE PRIOR TO JULY 1, 1943, AND EVEN THOUGH HE LEFT ONE POSITION ON MARCH 31, 1946, FOR THE PURPOSE OF ACCEPTING ANOTHER POSITION THE NEXT DAY, HE HAS BEEN EMPLOYED CONTINUOUSLY IN THE POSTAL SERVICE, OR THE FIELD SERVICE, SINCE SOMETIME BEFORE JULY 1, 1945. COMPARE 27 COMP. GEN. 720. ACCORDINGLY, IN THE ABSENCE OF A COMPLETE SEPARATION FROM THE POSTAL SERVICE AND A SUBSEQUENT REAPPOINTMENT, AS DISTINGUISHED FROM A TRANSFER, I CAN FIND NO BASIS FOR CONSIDERING THE EMPLOYEE AS HAVING ENTERED THE FIELD SERVICE AT THE TIME OF HIS TRANSFER ON APRIL 1, 1946.

AS INDICATED ABOVE, THE LEGISLATIVE HISTORY STRONGLY SUPPORTS THE PROPOSITION THAT IT WAS THOUGHT THAT THE LEGISLATION WOULD EXTEND BENEFITS TO ALL EMPLOYEES WHO HAVE NOT BENEFITED BY GRADE ELIMINATIONS OR UPGRADINGS UNDER PRIOR LEGISLATION. WHILE CONSIDERATION HAS BEEN GIVEN TO SUCH LEGISLATIVE BELIEF AND WHILE THIS OFFICE APPRECIATES THE MANY INEQUITIES WHICH HAVE ARISEN IN THE PAST BY REASON OF THE VARIOUS STATUTES, ABOVE, EACH EXTENDING THE BENEFITS OF GRADE ELIMINATIONS OR GRADE UPGRADINGS TO A SEPARATE GROUP OF EMPLOYEES, AND THE INEQUITIES WHICH WILL CONTINUE IF SECTION 4 (A), PUBLIC LAW 204, IS HELD TO BE INAPPLICABLE TO THE EMPLOYEE EMPLOYEE HERE INVOLVED, I HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT THE WORDING OF THE STATUTE IS SUCH AS TO EXCLUDE THE EMPLOYEE FROM THE BENEFITS THEREOF. ACCORDINGLY, THE FIRST PART OF THE ABOVE-QUOTED QUESTION IS ANSWERED IN THE NEGATIVE.

THE ANSWER WOULD BE IN THE AFFIRMATIVE IF, AS STATED IN THE SECOND PART OF THE QUESTION, THE EMPLOYEE HAD RESIGNED FROM THE POSITION OF LABORER ON MARCH 31, 1946, AND HAD BEEN APPOINTED SUBSTITUTE CLERK ON APRIL 1, 1946, FROM A CIVIL SERVICE REGISTER OF ELIGIBLES WITHOUT A BREAK IN SERVICE. SUCH AN EMPLOYEE WOULD HAVE BEEN SEPARATED COMPLETELY FROM THE FIELD SERVICE UPON THE ADMINISTRATIVE ACCEPTANCE OF HIS RESIGNATION, EFFECTIVE MARCH 31, 1946. UPON HIS APPOINTMENT TO A NEW POSITION, EFFECTIVE APRIL 1, 1946, HE AGAIN ENTERED THE FIELD SERVICE. THEREFORE, IN THAT SITUATION IT WOULD BE PROPER TO CONSIDER SUCH EMPLOYEE AS HAVING ENTERED THE FIELD SERVICE AFTER JUNE 30, 1945, WITHIN THE MEANING OF SECTION 4 (A), PUBLIC LAW 204. COMPARE 26 COMP. GEN. 488, 498.

IT ALSO IS STATED IN YOUR LETTER THAT THERE ARE MANY CASES OF VILLAGE CARRIERS WHO WERE ON THE ROLLS ON JUNE 30, 1945, AND WHO SINCE HAVE BEEN CONVERTED TO CITY CARRIERS IN WHICH INEQUITIES WILL RESULT UNLESS ADDITIONAL GRADES ARE ALLOWED UNDER SECTION 4 (A), PUBLIC LAW 204. THAT CONNECTION, YOU CITE THE CASE OF A REGULAR VILLAGE CARRIER WHO RECEIVED THE BENEFITS OF A THREE GRADE ADVANCEMENT EFFECTIVE JULY 1, 1945, UNDER SECTION 23, PUBLIC LAW 134, TO GRADE 6, THE TOP AUTOMATIC GRADE UNDER SECTION 12 (E), PUBLIC LAW 134, 59 STAT. 444, FOR CARRIERS IN THE VILLAGE DELIVERY SERVICE. SUBSEQUENTLY, ON OCTOBER 1, 1947, THE EMPLOYEE WAS CONVERTED TO A CITY CARRIER, GRADE 1, $2,100 PER ANNUM, THE SAME RATE RECEIVED IN THE FORMER POSITION IN GRADE 6. WHILE THE EMPLOYEE HAD RECEIVED THE BENEFIT OF GRADE ADVANCEMENTS UNDER SECTION 23, PUBLIC LAW 134, IN THE POSITION OF VILLAGE CARRIER, HE HAS NOT RECEIVED THE BENEFITS OF ANY GRADE ELIMINATION OR ADVANCEMENT IN HIS PRESENT POSITION OF REGULAR CITY CARRIER.

THE CARRIER HAS BEEN EMPLOYED CONTINUOUSLY IN THE FIELD SERVICE SINCE SOMETIME BEFORE JULY 1, 1945. ACCORDINGLY, IN LINE WITH THE ANSWER TO THE FIRST PART OF QUESTION 1, ABOVE, HE MAY NOT BE CONSIDERED AS HAVING ENTERED THE FIELD SERVICE ON OCTOBER 1, 1947, THE DATE HIS POSITION WAS CONVERTED FROM VILLAGE CARRIER TO CITY CARRIER.