B-122042, FEBRUARY 2, 1955, 34 COMP. GEN. 366

B-122042: Feb 2, 1955

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A DECISION IS REQUESTED AS TO WHETHER THE LIMITATION APPLIES TO SUBSTITUTE EMPLOYEES WHO ARE PAID UPON AN HOURLY BASIS AS DISTINGUISHED FROM REGULAR EMPLOYEES WHO ARE PAID UPON AN ANNUAL BASIS. IS AS FOLLOWS: * * * THAT THE PART OF THE ACT OF JULY 28. IS HEREBY AMENDED TO READ AS FOLLOWS: "IN THE DISCRETION OF THE POSTMASTER GENERAL. THAT THE POSTMASTER GENERAL SHALL DETERMINE THAT THE PERFORMANCE OF SUCH CONTRACTS WILL NOT INTERFERE WITH THE REGULAR DUTIES OF SUCH EMPLOYEES OR WITH THE OPERATIONS OF THE POSTAL SERVICE. THE CONTRACTING FOR MAIL-MESSENGER SERVICE WAS AUTHORIZED IN ACCORDANCE WITH THE ACT OF JUNE 3. IS SIMILAR TO THE ACT OF JULY 3. IS AS FOLLOWS: * * * THAT HEREAFTER POSTMASTERS MAY BE DESIGNATED BY THE POSTMASTER GENERAL AS DISBURSING OFFICERS FOR THE PAYMENT OF MAIL MESSENGERS AND OTHERS ENGAGED UNDER THEIR SUPERVISION IN TRANSPORTING THE MAILS: PROVIDED.

B-122042, FEBRUARY 2, 1955, 34 COMP. GEN. 366

COMPENSATION - DOUBLE - POSTAL SERVICE EMPLOYEES SPECIAL DELIVERY MESSENGERS PAID ON PER ANNUM BASIS PURSUANT TO THE ACT OF JULY 6, 1945 MAY BE AWARDED MAIL-MESSENGER SERVICE CONTRACTS IN EXCESS OF THE $900 PER ANNUM LIMITATION IN THE ACT OF JULY 3, 1952. SUBSTITUTE POSTAL EMPLOYEES PAID ON AN HOURLY BASIS MAY NOT BE AWARDED MAIL-MESSENGER SERVICE CONTRACTS IN EXCESS OF THE $900 PER ANNUM LIMITATION IN THE ACT OF JULY 3, 1952.

COMPTROLLER GENERAL CAMPBELL TO THE POSTMASTER GENERAL, FEBRUARY 2, 1955:

YOUR LETTER OF NOVEMBER 8, 1954, FILED REFERENCE 4, REQUESTS ADVICE AS TO WHETHER SPECIAL DELIVERY MESSENGERS AT FIRST-CLASS POST OFFICES MAY BE AWARDED MAIL-MESSENGER SERVICE CONTRACTS PROVIDING FOR PAYMENT OF AMOUNTS IN EXCESS OF THE $900 PER ANNUM LIMITATION FIXED BY THE ACT OF JULY 3, 1952, 66 STAT. 324, 39 U.S.C. 579. ALSO, A DECISION IS REQUESTED AS TO WHETHER THE LIMITATION APPLIES TO SUBSTITUTE EMPLOYEES WHO ARE PAID UPON AN HOURLY BASIS AS DISTINGUISHED FROM REGULAR EMPLOYEES WHO ARE PAID UPON AN ANNUAL BASIS.

THE ACT OF JULY 3, 1952, IS AS FOLLOWS:

* * * THAT THE PART OF THE ACT OF JULY 28, 1916, ENTITLED " AN ACT MAKING APPROPRIATIONS FOR THE SERVICE OF THE POST OFFICE DEPARTMENT FOR THE FISCAL YEAR ENDING JUNE THIRTIETH, NINETEEN HUNDRED AND SEVENTEEN, AND FOR OTHER PURPOSES" (CH. 261, 39 STAT. 418), AND THE PART OF THE ACT OF JUNE 3, 1924, ENTITLED " AN ACT AUTHORIZING THE POSTMASTER GENERAL TO CONTRACT FOR MAIL-MESSENGER SERVICE" (CH. 237, 43 STAT. 456), AS CODIFIED IN SECTION 579, TITLE 39, U.S.C. IS HEREBY AMENDED TO READ AS FOLLOWS:

"IN THE DISCRETION OF THE POSTMASTER GENERAL, POSTMASTERS, ASSISTANT POSTMASTERS, CLERKS, AND RURAL CARRIERS AT POST OFFICES OF THE THIRD AND FOURTH CLASS MAY ENTER INTO CONTRACTS FOR THE PERFORMANCE OF MAIL- MESSENGER SERVICE, AND ALLOWANCE MAY BE MADE THEREFOR FROM THE APPROPRIATIONS FOR MAIL-MESSENGER SERVICE: PROVIDED, THAT THE POSTMASTER GENERAL SHALL DETERMINE THAT THE PERFORMANCE OF SUCH CONTRACTS WILL NOT INTERFERE WITH THE REGULAR DUTIES OF SUCH EMPLOYEES OR WITH THE OPERATIONS OF THE POSTAL SERVICE. THE TOTAL AMOUNT PAYABLE UNDER SUCH CONTRACT TO ANY POSTMASTER, ASSISTANT POSTMASTER, CLERK, OR RURAL CARRIER SHALL NOT EXCEED $900 IN ANY ONE YEAR. SPECIAL-DELIVERY MESSENGERS AT POST OFFICES OF ALL CLASSES MAY ENTER INTO CONTRACTS FOR MAIL-MESSENGER SERVICE.'

PRIOR TO THE ENACTMENT OF THE ACT OF JULY 3, 1952, THE CONTRACTING FOR MAIL-MESSENGER SERVICE WAS AUTHORIZED IN ACCORDANCE WITH THE ACT OF JUNE 3, 1924, 43 STAT. 356, PUBLIC LAW 179. THAT STATUTE WHICH, IN MANY RESPECTS, IS SIMILAR TO THE ACT OF JULY 3, 1952, IS AS FOLLOWS:

* * * THAT HEREAFTER POSTMASTERS MAY BE DESIGNATED BY THE POSTMASTER GENERAL AS DISBURSING OFFICERS FOR THE PAYMENT OF MAIL MESSENGERS AND OTHERS ENGAGED UNDER THEIR SUPERVISION IN TRANSPORTING THE MAILS: PROVIDED, THAT IN THE DISCRETION OF THE POSTMASTER GENERAL, POSTMASTERS, ASSISTANT POSTMASTERS, AND CLERKS AT POST OFFICES OF THE FOURTH CLASS MAY ENTER INTO CONTRACTS FOR THE PERFORMANCE OF MAIL MESSENGER SERVICE, AND ALLOWANCE MAY BE MADE THEREFOR FROM THE APPROPRIATIONS FOR MAIL MESSENGER SERVICE: PROVIDED FURTHER, THAT THE TOTAL AMOUNT PAYABLE UNDER SUCH CONTRACT TO ANY POSTMASTER, ASSISTANT POSTMASTER, OR CLERK SHALL NOT EXCEED $300 IN ANY ONE YEAR: PROVIDED FURTHER, THAT HEREAFTER SPECIAL DELIVERY MESSENGERS AT POST OFFICES OF ALL CLASSES MAY ENTER INTO CONTRACTS FOR MAIL MESSENGER SERVICE.

AT THE TIME OF ENACTMENT OF THE ACT OF JUNE 3, 1924, SPECIAL DELIVERY MESSENGERS AT ALL POST OFFICES WERE EMPLOYED UPON A CONTRACTUAL BASIS, AND THUS DID NOT OCCUPY GRADED POSITIONS IN THE POSTAL SERVICE. HOWEVER, IN JULY 1945 SPECIAL DELIVERY MESSENGERS IN FIRST-CLASS POST OFFICES WERE PLACED IN GRADED POSITIONS ESTABLISHED BY SECTION 22 OF THE ACT OF JULY 6, 1945, 59 STAT. 459, PUBLIC LAW 134. THEREAFTER, THEY WERE PAID UPON A PER ANNUM BASIS. BEFORE THE ENACTMENT OF PUBLIC LAW 134, IT HAD BEEN HELD IN OFFICE DECISION DATED JUNE 24, 1929, 8 COMP. GEN. 662, THAT A SPECIAL DELIVERY MESSENGER COULD BE AWARDED A MAIL-MESSENGER SERVICE CONTRACT PROVIDING FOR PAYMENTS IN EXCESS OF THE $300 LIMITATION CONTAINED IN THE SECOND PROVISO OF THE ACT OF JUNE 3, 1924. YOU REFER TO AN OPINION OF THE SOLICITOR OF THE POST OFFICE DEPARTMENT WHO, WHILE RECOGNIZING THE MATTER WAS NOT FREE FROM DOUBT, CONCLUDED THAT THE LIMITATION CONTAINED IN THE ACT OF JULY 3, 1952, IS APPLICABLE TO SPECIAL DELIVERY MESSENGERS, SINCE TO HOLD OTHERWISE WOULD GRANT TO SPECIAL DELIVERY MESSENGERS AT OFFICES OF THE FIRST CLASS A PRIVILEGE WHICH IS NOT ACCORDED TO ANY OTHER CLASS OF EMPLOYEES.

THE REASON FOR THE EXEMPTION OF SPECIAL DELIVERY MESSENGERS FROM THE $900 LIMITATION CONTAINED IN THE ACT OF JULY 3, 1952, IS NOT DISCLOSED IN THE LEGISLATIVE HISTORY OF THE LAW. HOWEVER, IN ENACTING SUCH LAW, THE CONGRESS EXPRESSLY CONTINUED IN EFFECT THE SAME EXEMPTION IN FAVOR OF SPECIAL DELIVERY MESSENGERS WHICH WAS CONTAINED IN THE ACT OF JUNE 3, 1924. MOREOVER, THE LEGISLATIVE HISTORY OF THE ACT OF JULY 3, 1952, SUPPORTS THE VIEW THAT SAID ACT WAS NOT INTENDED TO CHANGE THE EXISTING LAW CONCERNING SPECIAL DELIVERY MESSENGERS. IN SENATE REPORT NO. 1799 ON H.R. 7758, WHICH BECAME THE ACT OF JULY 3, 1952, IT WAS STATED AS FOLLOWS:

THIS LEGISLATION WILL CHANGE PRESENT LAW (39 U.S.C. 579) AS FOLLOWS:

1. INCREASE THE PRESENT LIMITATION FROM $300 TO $900.

2. INCLUDE RURAL CARRIERS ALONG WITH POSTMASTERS, ASSISTANT POSTMASTERS, AND CLERKS IN OFFICE OF THIRD AND FOURTH CLASS.

3. REQUIRE THAT THE POSTMASTER GENERAL FIRST MAKE A DETERMINATION THAT NEITHER THE DUTIES OF THE EMPLOYEE NOR THE OPERATIONS OF THE POSTAL SERVICE WILL BE INTERFERED WITH BY REASON OF THE POSTAL EMPLOYEE ENTERING INTO SUCH A CONTRACT.

UNDER EXISTING LAW SPECIAL-DELIVERY MESSENGERS AT ALL CLASSES OF OFFICES CAN ENTER INTO CONTRACTS FOR THIS SERVICE. THIS IS NOT CHANGED BY THIS BILL.

HENCE, IT IS CONCLUDED THAT SPECIAL DELIVERY MESSENGERS ARE NOT SUBJECT TO THE $900 LIMITATION CONTAINED IN THE ACT OF JULY 3, 1952.

YOUR QUESTION AS TO WHETHER THE $900 LIMITATION CONTAINED IN THE ACT OF JULY 3, 1952, APPLIES TO SUBSTITUTE EMPLOYEES WHO MAY BE AWARDED MAIL- MESSENGER SERVICE CONTRACTS APPEARS FOR ANSWERING IN THE AFFIRMATIVE. SUBSTITUTE EMPLOYEES OF THE POSTAL SERVICE GENERALLY ARE PAID UPON A TIME (HOURLY) BASIS FOR SERVICES ACTUALLY RENDERED RATHER THAN UPON A PER ANNUM BASIS AS IN THE CASE OF REGULAR EMPLOYEES. HOWEVER, SUBSTITUTE EMPLOYEES FREQUENTLY ARE EMPLOYED UPON A FULL-TIME BASIS, AND IN MANY CASES THEY ACTUALLY WORK A GREATER NUMBER OF HOURS PER YEAR THAN DO REGULAR EMPLOYEES OCCUPYING CORRESPONDING POSITIONS. THE MERE FACT THAT SUBSTITUTE EMPLOYEES DO NOT RECEIVE PER ANNUM COMPENSATION IS NOT VIEWED AS REMOVING THEM FROM THE LIMITATION CONTAINED IN THE ACT. MOREOVER, WHILE AT THE TIME OF THE ENACTMENT OF THE ACT OF JUNE 3, 1924, SPECIAL DELIVERY MESSENGERS WERE EMPLOYED EXCLUSIVELY UNDER CONTRACTS, THE CONGRESS CONSIDERED IT NECESSARY TO EXCLUDE THEM SPECIFICALLY FROM THE $300 LIMITATION CONTAINED IN THE LAW. THE SAME EXCLUSION IS CONTAINED IN THE ACT OF JULY 3, 1952. THEREFORE, IT REASONABLY MAY BE PRESUMED THAT, IF THE CONGRESS HAD INTENDED TO EXCLUDE SUBSTITUTE EMPLOYEES FROM THE LIMITATION AS WELL AS SPECIAL DELIVERY MESSENGERS, IT WOULD HAVE BEEN DONE SO BY AN EXPRESS PROVISION IN THE STATUTE. ACCORDINGLY, IT IS CONCLUDED THAT SUBSTITUTE EMPLOYEES OF THE POSTAL SERVICE ARE SUBJECT TO THE $900 LIMITATION CONTAINED IN THE ACT OF JULY 3, 1952.