B-116461, OCTOBER 13, 1953, 33 COMP. GEN. 167

B-116461: Oct 13, 1953

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IS APPLICABLE TO POSTAL CLERKS IN FIRST-CLASS POST OFFICES WHO TEMPORARILY OCCUPIED SUPERVISORY POSITIONS ON THE DATE OF ENACTMENT OF THE SAID ACT. 1953: REFERENCE IS MADE TO LETTER OF JULY 31. THE FOLLOWING EXAMPLE OF EMPLOYEE "A" IS CITED AS TYPICAL OF THE CLASS OF EMPLOYEES INVOLVED: CHART REACHED TOP AUTOMATIC GRADE 5. THE ARGUMENT IS ADVANCED IN THE ACTING POSTMASTER GENERAL'S LETTER THAT THE EMPLOYEE IN THE CITED EXAMPLE IS ENTITLED TO PROMOTION TO THE SECOND LONGEVITY GRADE AS OF AUGUST 1. WHO ARE IN THE HIGHEST AUTOMATIC GRADE OF THEIR POSITION OR WHO ARE IN ADDITIONAL GRADES. WHICH ARE REPEALED BY SECTION 4 OF THIS ACT TO THE SAME EXTENT AS THOUGH SUCH PROVISIONS HAD REMAINED IN EFFECT.

B-116461, OCTOBER 13, 1953, 33 COMP. GEN. 167

COMPENSATION - POSTAL SERVICE - LONGEVITY INCREASES - SERVICE REQUIREMENTS THE SAVINGS PROVISION IN SECTION 2, ACT OF MAY 3, 1950, WHICH PERMITS RETENTION OF PROMOTION CREDITS FOR LONGEVITY INCREASES, IS APPLICABLE TO POSTAL CLERKS IN FIRST-CLASS POST OFFICES WHO TEMPORARILY OCCUPIED SUPERVISORY POSITIONS ON THE DATE OF ENACTMENT OF THE SAID ACT, AND WHO THEREAFTER RETURNED TO THEIR FORMER POSITIONS, IN THE SAME MANNER AS IF THE EMPLOYEES HAD NOT BEEN TEMPORARILY TRANSFERRED TO SUCH POSITIONS; HOWEVER, SUCH CONSTRUCTION DOES NOT APPLY TO EMPLOYEES OCCUPYING POSITIONS FOR WHICH NO ADDITIONAL GRADES HAD BEEN ESTABLISHED BY THE ACT OF JULY 6, 1945, AS AMENDED, UNTIL COMPLETION OF 13, 18, OR 25 YEARS SERVICE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 13, 1953:

REFERENCE IS MADE TO LETTER OF JULY 31, 1953, FROM ACTING POSTMASTER GENERAL, REFERENCE 4, REQUESTING A DECISION CONCERNING THE LENGTH OF SERVICE REQUIREMENTS FOR ADVANCEMENT OF CERTAIN EMPLOYEES TO THE VARIOUS LONGEVITY GRADES ESTABLISHED BY THE ACT OF MAY 3, 1950, PUBLIC LAW 500. THE FOLLOWING EXAMPLE OF EMPLOYEE "A" IS CITED AS TYPICAL OF THE CLASS OF EMPLOYEES INVOLVED:

CHART REACHED TOP AUTOMATIC GRADE 5-------------------------- AUGUST 1, 1941. CONVERTED TO GRADE 9 ( P.L. 134/---------------------- JULY 1, 1945. AUTOMATIC PROMOTION, GRADE 10-------------------------- JULY 1, 1946. AUTOMATIC PROMOTION, GRADE 11-------------------------- JULY 1, 1947. PROMOTED TO GRADE 12 ( P.L. 428/---------------------- NOVEMBER 1, 1949. PROMOTED TO CLERK IN CHARGE------------------------- -- FEBRUARY 1, 1950. REDUCED TO CLERK--------------------------------- ----- JULY 1, 1950.

THE ARGUMENT IS ADVANCED IN THE ACTING POSTMASTER GENERAL'S LETTER THAT THE EMPLOYEE IN THE CITED EXAMPLE IS ENTITLED TO PROMOTION TO THE SECOND LONGEVITY GRADE AS OF AUGUST 1, 1951, UPON THE BASIS OF HIS BEING INCLUDED WITHIN THE SAVINGS PROVISIONS OF SECTION 2 OF PUBLIC LAW 500, 64 STAT. 102, READING AS FOLLOWS:

EMPLOYEES ON THE ROLLS ON THE DATE OF ENACTMENT OF THIS ACT, WHO ARE IN THE HIGHEST AUTOMATIC GRADE OF THEIR POSITION OR WHO ARE IN ADDITIONAL GRADES, SHALL RETAIN PROMOTION CREDIT UNDER THE PROVISIONS OF SECTION 2 (E) OF THE ACT OF OCTOBER 28, 1949 ( PUBLIC LAW 428, EIGHTY-FIRST CONGRESS), AND UNDER THOSE PROVISIONS OF THE ACT OF JULY 6, 1945 ( PUBLIC LAW 134, SEVENTY-NINTH CONGRESS), WHICH ARE REPEALED BY SECTION 4 OF THIS ACT TO THE SAME EXTENT AS THOUGH SUCH PROVISIONS HAD REMAINED IN EFFECT, AND THEREAFTER SHALL BE PROMOTED TO LONGEVITY GRADES A, B, AND C AT THE BEGINNING OF THE QUARTER FOLLOWING THE COMPLETION OF THREE, FIVE, AND SEVEN YEARS OF SERVICE, RESPECTIVELY, IN THE NEXT LOWER GRADE, * * *

WHILE NOT SPECIFICALLY STATED IN THE LETTER OF THE ACTING POSTMASTER GENERAL, IT IS ASSUMED THAT THE EMPLOYEE, IN THE CITED EXAMPLE, WAS A CLERK IN A FIRST-CLASS POST OFFICE AND WOULD HAVE BEEN ENTITLED TO PROMOTION TO ADDITIONAL GRADES UPON THE BASIS PROVIDED IN THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 435, PRIOR TO SECTION 4 OF PUBLIC LAW 500, 64 STAT. 102, HAD HE NOT BEEN TRANSFERRED TO THE SUPERVISORY POSITION IN QUESTION. UPON SUCH ASSUMPTION IT WOULD APPEAR -- AS IN THE DEPARTMENT'S LETTER--- THAT AS OF JANUARY 31, 1950, THE EMPLOYEE INVOLVED WOULD HAVE HAD TO HIS CREDIT THREE AND ONE-HALF YEARS' SERVICE TOWARD PROMOTION TO THE SECOND LONGEVITY GRADE, AND THEREFORE, HAD HE NOT BEEN TRANSFERRED TO THE SUPERVISORY POSITION WOULD HAVE BEEN ENTITLED TO ADVANCEMENT TO THE SECOND LONGEVITY GRADE ON AUGUST 1, 1951--- AT THE COMPLETION OF ONE AND ONE-HALF ADDITIONAL YEARS OF SERVICE AS AUTHORIZED UNDER THE SAID SAVINGS PROVISION OF SECTION 2 OF PUBLIC LAW 500.

THE CASE PRESENTED IS NOT DEEMED TO FALL WITHIN THE LITERAL LANGUAGE OF THE SAID SAVINGS PROVISION. HOWEVER, I CERTAINLY DO NOT CONSIDER THAT THE CONGRESS IN ENACTING THE SAID PROVISION INTENDED TO DISCRIMINATE AGAINST THOSE POSTAL EMPLOYEES WHO, IN THE INTEREST OF THE POSTAL SERVICE, WERE PERFORMING TEMPORARILY, ON THE DATE OF ENACTMENT OF PUBLIC LAW 500, SUPERVISORY DUTIES INVOLVING GREATER RESPONSIBILITIES THAN THOSE PERTAINING TO THE POSITION TO WHICH SUCH EMPLOYEES RETURNED FOLLOWING THE ENACTMENT OF THAT LAW. IN VIEW THEREOF, AND SINCE THE LEGISLATIVE HISTORY OF PUBLIC LAW 500 CLEARLY INDICATES THAT THE CONGRESS INTENDED TO GRANT EMPLOYEES AN ELECTION TO ADVANCE TO THE ADDITIONAL GRADES IN THE MANNER PROVIDED IN THAT LAW OR IN ACCORDANCE WITH THE METHOD PROVIDED IN PUBLIC LAW 134, SUPRA, AND THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, WHICHEVER IS MORE ADVANTAGEOUS, THE CONCLUSION IS WARRANTED THAT THE SAVINGS PROVISION IN SECTION 2 OF PUBLIC LAW 500 IS APPLICABLE TO CLERKS IN FIRST- CLASS POST OFFICES WHO TRANSFERRED TO AND WERE OCCUPYING SUPERVISORY POSITIONS--- UNDER THE CIRCUMSTANCES SET FORTH IN THE DEPARTMENT'S LETTER- -- ON THE DATE OF ENACTMENT OF PUBLIC LAW 500, BUT WHO THEREAFTER RETURNED TO THEIR FORMER POSITIONS, IN THE SAME MANNER AND TO THE SAME EXTENT AS IF SUCH EMPLOYEES HAD NOT BEEN TEMPORARILY OCCUPYING SUPERVISORY POSITIONS ON THE DATE OF ENACTMENT OF THAT LAW.

HOWEVER, NOTHING STATED HEREIN SHALL BE CONSTRUED AS APPLYING TO EMPLOYEES OCCUPYING POSITIONS FOR WHICH NO ADDITIONAL GRADES HAD BEEN ESTABLISHED BY PUBLIC LAW 134 UNLESS THEY SHALL HAVE COMPLETED THE NECESSARY 13, 18, OR 25 YEARS OF POSTAL SERVICE AS CONTEMPLATED BY PUBLIC LAWS 428 AND 500, AS CONSTRUED BY DECISIONS OF THIS OFFICE. SEE DECISION OF OCTOBER 16, 1952, 32 COMP. GEN. 192, AND UNPUBLISHED DECISION OF SEPTEMBER 24, 1952, B-111257.