B-120781, SEPTEMBER 21, 1954, 34 COMP. GEN. 137

B-120781: Sep 21, 1954

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WAS SERVING IN. WHO THEREAFTER WAS DEMOTED TO FORMER NONSUPERVISORY POSITION. IS NOT ENTITLED UNDER THE SAVINGS PROVISION OF SECTION 2 OF CITED ACT TO THE SAME PROMOTION CREDIT FOR LONGEVITY INCREASES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD THE NONSUPERVISORY POSITION BEEN OCCUPIED ON THE ENACTMENT DATE. WAS SERVING IN. WHO THEREAFTER WAS DEMOTED TO HIS FORMER (NONSUPERVISORY) POSITION. IS ENTITLED. TO THE SAME PROMOTION CREDIT FOR LONGEVITY INCREASES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE OCCUPIED THE NONSUPERVISORY POSITION ON THE DATE OF ENACTMENT OF THAT ACT. WHO ON THE DATE OF APPROVAL OF PUBLIC LAW 500 WAS OCCUPYING TEMPORARILY A SUPERVISORY POSITION. WAS ENTITLED UPON RESTORATION TO HIS FORMER (NONSUPERVISORY) POSITION TO THE PROMOTION CREDIT AUTHORIZED UNDER SECTION 2 OF THAT ACT.

B-120781, SEPTEMBER 21, 1954, 34 COMP. GEN. 137

COMPENSATION - POSTAL SERVICE - LONGEVITY INCREASES - SERVICE REQUIREMENTS A POSTAL EMPLOYEE WHO HAD BEEN PERMANENTLY PROMOTED TO, AND WAS SERVING IN, A SUPERVISORY POSITION ON THE DATE OF ENACTMENT OF THE ACT OF MAY 3, 1950, BUT WHO THEREAFTER WAS DEMOTED TO FORMER NONSUPERVISORY POSITION, IS NOT ENTITLED UNDER THE SAVINGS PROVISION OF SECTION 2 OF CITED ACT TO THE SAME PROMOTION CREDIT FOR LONGEVITY INCREASES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD THE NONSUPERVISORY POSITION BEEN OCCUPIED ON THE ENACTMENT DATE, OR IF THE PROMOTION HAD BEEN TEMPORARY.

ACTING COMPTROLLER GENERAL WEITZEL TO THE POSTMASTER GENERAL, SEPTEMBER 21, 1954:

THE ACTING POSTMASTER GENERAL'S LETTER OF JULY 19, 1954, REQUESTS A DECISION UPON THE QUESTION WHETHER A POSTAL EMPLOYEE WHO HAD BEEN PROMOTED (PERMANENTLY) TO, AND WAS SERVING IN, A SUPERVISORY POSITION ON MAY 3, 1950, BUT WHO THEREAFTER WAS DEMOTED TO HIS FORMER (NONSUPERVISORY) POSITION, IS ENTITLED, UNDER SECTION 2 OF THE ACT OF MAY 3, 1950, PUBLIC LAW 500, 64 STAT. 102, 39 U.S.C. 889, TO THE SAME PROMOTION CREDIT FOR LONGEVITY INCREASES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE OCCUPIED THE NONSUPERVISORY POSITION ON THE DATE OF ENACTMENT OF THAT ACT. ILLUSTRATE THE PROBLEM THE LETTER SETS OUT AN EXAMPLE, AS FOLLOWS:

CHART

EXAMPLE "A" ( FIRST CLASS OFFICE) APPOINTED SUBSTITUTE CLERK - ---------- ------------------------- 9-1-34 REACHED TOP GRADE --------- ------------- ---------------------- 10-1-39CONVERTED TO GRADE 9 ------- --------------- ------------------- 7-1-45 REACHED TOP GRADE 11 ------ ------------------- ---------------- 7-1-47 PROMOTED TO LONGEVITY GRADE B -------------------- ------------- 11-1-49 PROMOTED TO CLERK-IN CHARGE GRADE A ---------------- --------- 1-16-50 REDUCED TO CLERK LONGEVITY GRADE B --------------------- ------- 7-1-52

IN DECISION OF OCTOBER 13, 1953, B-116461, 33 COMP. GEN. 167, THIS OFFICE HELD THAT A POSTAL EMPLOYEE, WHO ON THE DATE OF APPROVAL OF PUBLIC LAW 500 WAS OCCUPYING TEMPORARILY A SUPERVISORY POSITION, WAS ENTITLED UPON RESTORATION TO HIS FORMER (NONSUPERVISORY) POSITION TO THE PROMOTION CREDIT AUTHORIZED UNDER SECTION 2 OF THAT ACT. THE QUESTION NOW RAISED IS WHETHER THE RULE STATED IN THAT DECISION WOULD APPLY IN CASES WHERE THE PROMOTION TO THE SUPERVISORY POSITION PRIOR TO MAY 3, 1950, WAS UPON A PERMANENT BASIS.

SECTION 2 OF THE ACT OF MAY 3, 1950, IS 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 (1PUBLIC LAW 428, EIGHTY-FIRST CONGRESS), AND UNDER THOSE PROVISIONS OF THE ACT OF JULY 6, 1945 (1PUBLIC LAW 134, SEVENTY-NINTH CONGRESS), WHICH ARE REPEALED BY SECTION 4 OF THIS ACT TO THE SAME EXTENT AS THOUGH SUCH PROVISION HAD REMAINED IN EFFECT, *

THE QUOTED SECTION APPLIES ONLY TO " 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.' SINCE ON THE DATE OF ENACTMENT OF PUBLIC LAW 500 THE EMPLOYEE IN THE EXAMPLE SET OUT IN THE LETTER HAD BEEN PERMANENTLY APPOINTED TO A POSITION FOR WHICH THERE HAD BEEN PRESCRIBED A SINGLE SALARY RATE AND FOR WHICH THERE HAD BEEN ESTABLISHED NO ADDITIONAL GRADES FOR MERITORIOUS SERVICE, IT IS APPARENT HE HAD NO "PROMOTION CREDIT" PRIOR TO ENACTMENT OF PUBLIC LAW 500 WHICH WAS SUBJECT TO THE SAVINGS PROVISIONS OF SECTION 2 OF THAT ACT.

THE PRESENT SITUATION IS DISTINGUISHABLE FROM THAT CONSIDERED IN THE DECISION OF OCTOBER 13, 1953, IN THAT THERE THE EMPLOYEES WERE SERVING IN SUPERVISORY POSITIONS FOR TEMPORARY PERIODS ONLY. IN THAT CASE IT WAS THE UNDERSTANDING OF BOTH THE POST OFFICE DEPARTMENT AND THE EMPLOYEES THAT THEIR TENURE IN THE SUPERVISORY POSITIONS WOULD CONTINUE ONLY UNTIL THE RETURN FROM MILITARY SERVICE OF THE SUPERVISORY EMPLOYEES THEY HAD REPLACED OR UNTIL THE MILITARY UNITS IN WHICH THEY WERE WORKING WERE CLOSED. THE POST OFFICE URGED THAT THE PROMOTIONS CONSIDERED IN THAT DECISION WERE IN SUBSTANCE TEMPORARY AND WERE ANALOGOUS TO THE DETAILING OF EMPLOYEES TO A PARTICULAR POSITION TO PERFORM A PARTICULAR TEMPORARY TASK. THE DECISION OF OCTOBER 13, 1953, WHILE RECOGNIZING THAT THE SITUATIONS COVERED THEREIN WERE NOT WITHIN THE LITERAL LANGUAGE OF THE SAVINGS PROVISIONS OF SECTION 2 OF PUBLIC LAW 500, CONCLUDED THAT THEY DID FALL WITHIN THE SPIRIT OF SUCH PROVISIONS. HOWEVER, THE PRESENT CASE INVOLVING EMPLOYEES PERMANENTLY OCCUPYING SUPERVISORY POSITIONS ON THE DATE OF ENACTMENT OF PUBLIC LAW 500 REASONABLY CANNOT BE REGARDED AS WITHIN THE RATIONALE OF THE DECISION OF OCTOBER 13, 1953.

ACCORDINGLY, I AM REQUIRED TO CONCLUDE THAT THE EMPLOYEE IN THE EXAMPLE HERE CITED, AS WELL AS OTHER EMPLOYEES SIMILARLY SITUATED, HAD NO "PROMOTION CREDIT" TOWARD ADDITIONAL GRADE IN THE POSITION HE WAS PERMANENTLY OCCUPYING PRIOR TO ENACTMENT OF PUBLIC LAW 500, BECAUSE IN FACT NO ADDITIONAL GRADES HAD BEEN ESTABLISHED FOR THAT POSITION. HENCE, THE QUESTION POSED,"WHETHER 39 U.S.C. 889 APPLIED TO EMPLOYEE "A" AND OTHER EMPLOYEES SIMILARLY SITUATED," MUST BE ANSWERED IN THE NEGATIVE.