B-125421, NOVEMBER 16, 1955, 35 COMP. GEN. 287

B-125421: Nov 16, 1955

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IS RECEIVING LONGEVITY BENEFITS ON THE BASIS OF THE FORMULA PRESCRIBED IN SECTION 12 (A) OF THE ACT OF JULY 6. WHO TRANSFERS TO A POSITION FOR WHICH ANOTHER LONGEVITY FORMULA IS PRESCRIBED. REQUESTS A DECISION CONCERNING THE DATE UPON WHICH THE EMPLOYEE IN THE EXAMPLE CITED WILL BE ELIGIBLE FOR ADVANCEMENT TO LONGEVITY GRADE C. THE EMPLOYMENT HISTORY OF THE EMPLOYEE IS SET FORTH AS FOLLOWS: APTD. EACH EMPLOYEE IN THE POSTAL FIELD SERVICE SHALL HAVE CREDITED TO HIM FOR PURPOSES OF PROMOTION TO ANY OF THE MERITORIOUS OR LONGEVITY GRADES OF HIS POSITION ESTABLISHED UNDER PUBLIC LAW 134. THE EMPLOYEE WAS CREDITED WITH SERVICE IN THE TOP AUTOMATIC GRADE (GRADE 5) PERFORMED PRIOR TO JULY 1. THE EMPLOYEE WAS PLACED IN LONGEVITY GRADE A.

B-125421, NOVEMBER 16, 1955, 35 COMP. GEN. 287

COMPENSATION - POSTAL SERVICE - LONGEVITY INCREASES - SERVICE REQUIREMENTS A POSTAL FIELD SERVICE EMPLOYEE WHO UNDER THE SAVINGS PROVISION OF SECTION 2 OF THE ACT OF MAY 3, 1950, IS RECEIVING LONGEVITY BENEFITS ON THE BASIS OF THE FORMULA PRESCRIBED IN SECTION 12 (A) OF THE ACT OF JULY 6, 1945, AND WHO TRANSFERS TO A POSITION FOR WHICH ANOTHER LONGEVITY FORMULA IS PRESCRIBED, MAY UPON HIS RETURN TO THE POSITION FROM WHICH TRANSFERRED INVOKE THE PROVISIONS OF SECTION 2 OF THE 1950 ACT IN ORDER TO RECEIVE THE MORE BENEFICIAL LONGEVITY CREDIT. 33 COMP. GEN. 146, OVERRULED.

TO THE POSTMASTER GENERAL, NOVEMBER 16, 1955:

YOUR LETTER OF SEPTEMBER 6, 1955, REQUESTS A DECISION CONCERNING THE DATE UPON WHICH THE EMPLOYEE IN THE EXAMPLE CITED WILL BE ELIGIBLE FOR ADVANCEMENT TO LONGEVITY GRADE C.

THE EMPLOYMENT HISTORY OF THE EMPLOYEE IS SET FORTH AS FOLLOWS: APTD. SUB. CLERK -------- 3-16-37 -------- $0.65 PER HOUR PROM. TO REG. CLERK - --- 5-16-37 -------- 1,700 PER ANNUM AUTO. INCREASE ----- ---- 4-1-38 --- ----- 1,800 PER ANNUM AUTO. INCREASE ---------- 4-1 39 -------- 1,900 PER ANNUM AUTO. INCREASE ---------- 4-1-40 ------- 2,000 PER ANNUM AUTO. INCREASE ---------- 4-1-41 -------- 2,100 PER ANNUM P. L. 134 ------------ ---- 7-1-45 -------- 2,500 PER ANNUM P. L. 386 ---------------- 1-1-46 --- ----- 2,900 PER ANNUM AUTO. INCREASE ---------- 7-1-46 -------- 3,000 PER ANNUM AUTO. INCREASE -- ------- 7-1-47 -------- 3,100 PER ANNUM TOP GRADE P. L. 900 ------- --------7-1-48 -------- 3,550 PER ANNUM P. L. 428 ------ ---------- 11 1-49 -------- 3,670 PER ANNUM P. L. 428 ---------------- 11- 1-49 ----- -- 3,770-A PER ANNUM PROMOTED ----------------- 4-1-51 -------- 3,870 B PER ANNUM P. L. 204 ---------------- 7-1-51 -------- 4,270-B PER ANNUM PROM. TO C-IN-C ---------- 6-1-54 -------- 4,670-A PER ANNUM RED. TO CLERK ----------- 6-16-54 -------- 4,270-B PER ANNUM

( OWN REQUEST)

UNTIL HIS PROMOTION TO THE POSITION OF CLERK IN CHARGE, THE EMPLOYEE HAD BEEN PROGRESSING TO THE LONGEVITY GRADES UNDER THE 3-5-7 YEAR FORMULA PRESCRIBED BY SECTION 12 (A) OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 443, 39 U.S.C. 862. IN THAT CONNECTION WE NOTE THAT UNDER SECTION 2 (E) OF THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, 63 STAT. 953, EACH EMPLOYEE IN THE POSTAL FIELD SERVICE SHALL HAVE CREDITED TO HIM FOR PURPOSES OF PROMOTION TO ANY OF THE MERITORIOUS OR LONGEVITY GRADES OF HIS POSITION ESTABLISHED UNDER PUBLIC LAW 134, ALL PERIODS OF SERVICE PRIOR TO JULY 1, 1945, FOR WHICH HE HAD NOT THERETOFORE RECEIVED CREDIT FOR PROMOTION PURPOSES. PRESUMABLY, UNDER THE AUTHORITY OF THIS SECTION, THE EMPLOYEE WAS CREDITED WITH SERVICE IN THE TOP AUTOMATIC GRADE (GRADE 5) PERFORMED PRIOR TO JULY 1, 1945, FOR PURPOSES OF DETERMINING HIS ELIGIBILITY FOR ADVANCEMENT TO LONGEVITY GRADES A AND B ON NOVEMBER 1, 1949, AND APRIL 1, 1951 RESPECTIVELY. UPON HIS PROMOTION ON JUNE 1, 1954, TO THE POSITION OF CLERK IN CHARGE, THE EMPLOYEE WAS PLACED IN LONGEVITY GRADE A, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 3, 1950, PUBLIC LAW 500, 64 STAT. 101, SINCE HE HAD COMPLETED MORE THAN 13 YEARS' SERVICE ON THAT DATE. THE QUESTION PRESENTED IN YOUR LETTER IS WHETHER THE EMPLOYEE UPON HIS RETURN ON JUNE 16, 1954, TO THE POSITION OF CLERK, MAY AGAIN PROGRESS TO THE LONGEVITY GRADES IN ACCORDANCE WITH THE 3-5-7 FORMULA PRESCRIBED UNDER SECTION 12 (A) OF PUBLIC LAW 134.

THE ANSWER TO SUCH QUESTION IS DEPENDENT UPON SECTION 2 OF PUBLIC LAW 500, 39 U.S.C. 889, READING AS FOLLOWS:

SEC. 2. 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, EXCEPT THAT IF PRIOR THERETO ANY SUCH EMPLOYEE BECOMES ELIGIBLE FOR PROMOTION UNDER SUBSECTION (B) OF SECTION 1 OF THIS ACT, SUCH EMPLOYEE SHALL BE PROMOTED IN ACCORDANCE WITH THE PROVISIONS OF SUCH SUBSECTION.

OUR DECISION OF OCTOBER 7, 1953, 33 COMP. GEN. 146, CITED IN YOUR LETTER, IS TO THE EFFECT THAT ONCE AN EMPLOYEE RECEIVES THE LONGEVITY BENEFITS OF PUBLIC LAW 500 HE MAY NOT THEREAFTER INVOKE SECTION 2, ABOVE, AND THUS REVERT TO THE PROVISIONS OF PUBLIC LAW 134 WHEN, BECAUSE OF A CHANGE IN HIS EMPLOYMENT SITUATION, THE PROVISIONS OF PUBLIC LAW 134 BECOME MORE BENEFICIAL.

THE APPARENT PURPOSE OF SECTION 2 IS TO ENABLE EMPLOYEES OCCUPYING POSITIONS FOR WHICH ADDITIONAL GRADES WERE PROVIDED UNDER PUBLIC LAW 134, TO RETAIN THEIR PROMOTION CREDIT UNDER THAT LAW AND SECTION 2 (E) OF PUBLIC LAW 428, AND TO BE PROMOTED TO LONGEVITY GRADES A, B, AND C UPON THE BASIS OF THE 3-5-7 YEAR FORMULA ESTABLISHED BY PUBLIC LAW 134 UNLESS THE PROVISIONS OF PUBLIC LAW 500 ARE MORE BENEFICIAL TO THE EMPLOYEE THAN THOSE CONTAINED IN PUBLIC LAW 134 AND SECTION 2 (E) OF PUBLIC LAW 428. THERE IS NO LANGUAGE IN SECTION 2 OF PUBLIC LAW 500 CONFINING ITS BENEFITS TO THOSE EMPLOYEES WHO REMAIN IN THE POSITION IN WHICH THEY WERE SERVING AT THE TIME OF ITS ENACTMENT. EMPLOYEES WHO ON THE DATE OF ENACTMENT OF PUBLIC LAW 500 WERE ENTITLED TO THE BENEFITS OF SAID SECTION AND WHO TRANSFER TO A POSITION FOR WHICH LONGEVITY BENEFITS ACCRUE UNDER A DIFFERENT SECTION OF PUBLIC LAW 500, DO NOT FORFEIT THEIR RIGHT TO INVOKE THE SECTION UPON THEIR RETURN TO THE POSITION FROM WHICH TRANSFERRED. HOLD THAT IN SUCH CASES UPON THE RETURN OF THE EMPLOYEE TO THE POSITION FROM WHICH HE TRANSFERRED HE IS AGAIN ENTITLED TO THE RIGHTS CONFERRED BY SECTION 2. OUR DECISION OF OCTOBER 7, 1953 NO LONGER NEED BE FOLLOWED.