B-125751, NOVEMBER 25, 1955, 35 COMP. GEN. 297

B-125751: Nov 25, 1955

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WHO WERE TREATED AS SUPERVISORY CLERKS FOR PURPOSES OF RECEIVING THE $400 SALARY INCREASE. MAY NOT HAVE THEIR COMPENSATION REDUCED TO CONFORM WITH THE PAY OF THE POSITION IN WHICH THEY ARE ACTUALLY SERVING. THE FIRST SUCH EXAMPLE IS AS FOLLOWS: THE EMPLOYMENT HISTORY OF A TYPICAL FORMER ASSISTANT CLERK IN CHARGE. IS AS OLLOWS: CHART 7-6-36 $1850 SUBSTITUTE POSTAL TRANSPORTATION CLERK 11-1-36 1900 GRADE 1. THE EMPLOYEE IN THE EXAMPLE WAS OCCUPYING THE POSITION OF ASSISTANT CLERK IN CHARGE. THE POSITION OF ASSISTANT CLERK IN CHARGE WAS CREATED UNDER SECTIONS 16 (D/. THEY WERE TREATED AS BEING IN SUPERVISORY POSITIONS UNDER SECTION 11. YOUR DEPARTMENT ADVISES THAT MOST OF SUCH EMPLOYEES NOW ARE SERVING IN APPROPRIATE SUPERVISORY POSITIONS COMMENSURATE WITH THE COMPENSATION THEY ARE RECEIVING.

B-125751, NOVEMBER 25, 1955, 35 COMP. GEN. 297

COMPENSATION - POSTAL SERVICE - POSITIONS ABOLISHED UNDER ACT OF OCTOBER 24, 1951 - SAVED COMPENSATION IN VIEW OF THE $400 MINIMUM PER ANNUM SALARY INCREASE GUARANTEED TO POSTAL EMPLOYEES BY SECTION 16 OF THE ACT OF OCTOBER 24, 1951, (39 U.S.C. 876C), POSTAL TRANSPORTATION CLERKS WHO CONTINUED TO PERFORM DUTIES AS REGULAR CLERKS AFTER THE ABOLITION OF THEIR SUPERVISORY POSITIONS PURSUANT TO THE 1951 ACT, BUT WHO WERE TREATED AS SUPERVISORY CLERKS FOR PURPOSES OF RECEIVING THE $400 SALARY INCREASE, MAY NOT HAVE THEIR COMPENSATION REDUCED TO CONFORM WITH THE PAY OF THE POSITION IN WHICH THEY ARE ACTUALLY SERVING, AND IN PLACING THE RECLASSIFICATION PROVISION OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955 INTO EFFECT, SUCH EMPLOYEES SHOULD CONTINUE TO RECEIVE NO LESS THAN THE SALARY RECEIVED ON THE DAY PRECEDING THE DATE OF THE CONVERSION.

TO THE POSTMASTER GENERAL, NOVEMBER 25, 1955:

IN LETTER OF OCTOBER 11, 1955, THE ACTING POSTMASTER GENERAL REQUESTED OUR DECISION CONCERNING THE LEGALITY OF REDUCING THE COMPENSATION OF CERTAIN POSTAL TRANSPORTATION SERVICE EMPLOYEES IN THE CATEGORIES ILLUSTRATED BY THE TWO EXAMPLES CITED IN HIS LETTER. THE FIRST SUCH EXAMPLE IS AS FOLLOWS:

THE EMPLOYMENT HISTORY OF A TYPICAL FORMER ASSISTANT CLERK IN CHARGE, EMPLOYEE A, IS AS OLLOWS: CHART 7-6-36 $1850 SUBSTITUTE POSTAL TRANSPORTATION CLERK 11-1-36 1900 GRADE 1, PITTSBURGH TERMINAL, REGULAR PTC 10-1-37 2000 GRADE 2, PITTSBURGH TERMINAL, REGULAR PTC 10-1-38 2150 GRADE 3, PITTSBURGH TERMINAL, REGULAR PTC 10-1-39 2300 GRADE 4, PITTSBURGH TERMINAL, REGULAR PTC 7-1-40 2300 GRADE 4, AIR MAIL FIELD, PITTSBURGH, REGULAR PTC 10-1-40

2450 GRADE 5, AIL MAIL FIELD, PITTSBURGH, REGULAR PTC 7-1-45 2900 GRADE 11, ACT OF 7-6-45, P. L. 134 1-1-46 3300 GRADE 11, ACT OF 5-21-46, P. L. 386 7-1-48 3750 GRADE 11, ACT OF 7-3-48, P. L. 900 11-1-49 3870 GRADE 9B, ACTS OF 10-28-49 AND 5-3-50, P.L. 428 AND

500 2-16-51 4270 GRADE 14A," ASSISTANT CLERK IN CHARGE"--- A

CLERK WHO ACTED AS CLERK IN CHARGE IN THE

ABSENCES OF THE CLERK IN CHARGE 7-1-51 4670 GRADE 14A, ACT OF 10-24-51, P. L. 204 10-1-54 4770 GRADE 14B ( ASSIGNED AS TRANSFER CLERK, GRADE 9,

BASE PAY $4270 FROM 4-16-52) 3-1-55 5044 ACT OF 6-10-55, P. L. 68

IMMEDIATELY PRIOR TO THE EFFECTIVE DATE, JULY 1, 1951, OF THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 204, 65 STAT. 622, 39 U.S.C. 876C, THE EMPLOYEE IN THE EXAMPLE WAS OCCUPYING THE POSITION OF ASSISTANT CLERK IN CHARGE, AIR MAIL FIELD, PITTSBURGH. THE POSITION OF ASSISTANT CLERK IN CHARGE WAS CREATED UNDER SECTIONS 16 (D/--- APPLICABLE TO TERMINAL RAILWAY POST OFFICES AND AIR MAIL FIELD RAILWAY POST OFFICES--- AND 16 (E/--- APPLICABLE TO TRANSFER OFFICES--- OF THE ACT OF JULY 6, PUBLIC LAW 134, 1945, 59 STAT. 452. A CLERK APPOINTED UNDER SECTION 16 (D) OR 16 (E) AS AN ASSISTANT CLERK IN CHARGE ACTUALLY SERVES AS CLERK IN CHARGE ONLY DURING THE ABSENCE OF THE CLERK IN CHARGE FOR WHOM DESIGNATED. AT OTHER TIMES HE PERFORMS HIS REGULAR DUTIES AS CLERK.

SECTION 2 (M) OF PUBLIC LAW 204 REPEALED SECTIONS 16 (D) AND 16 (E) OF PUBLIC LAW 134, THEREBY ABOLISHING THE POSITION OF ASSISTANT CLERK IN CHARGE HELD BY THE EMPLOYEE IN THE EXAMPLE CITED. AFTER THE ABOLISHMENT OF THE POSITION OF ASSISTANT CLERK IN CHARGE BY SECTION 2 (M), EMPLOYEES WHO HAD BEEN DESIGNATED AS ASSISTANT CLERKS IN CHARGE ON THE ROLLS OF THE POSTAL TRANSPORTATION SERVICE CONTINUED TO PERFORM THE REGULAR DUTIES AS CLERKS. HOWEVER, THEY WERE TREATED AS BEING IN SUPERVISORY POSITIONS UNDER SECTION 11, PUBLIC LAW 204 FOR THE SOLE PURPOSE OF GRANTING TO THEM THE $400 PER ANNUM SALARY INCREASE PROVIDED UNDER SECTION 16 OF THAT LAW NOTWITHSTANDING THE PERFORMANCE OF REGULAR CLERK DUTIES. YOUR DEPARTMENT ADVISES THAT MOST OF SUCH EMPLOYEES NOW ARE SERVING IN APPROPRIATE SUPERVISORY POSITIONS COMMENSURATE WITH THE COMPENSATION THEY ARE RECEIVING. THE REMAINDER, HOWEVER, STILL ARE SERVING IN LOWER GRADE POSITIONS AT SALARIES IN EXCESS OF THE SALARIES APPLICABLE TO THE POSITIONS IN WHICH THEY ARE SERVING. YOUR DEPARTMENT PROPOSES TO REDUCE THE COMPENSATION OF THE LATTER CLASS OF EMPLOYEES TO CONFORM WITH THE PAY OF THE POSITION IN WHICH THEY ACTUALLY ARE SERVING -- SUCH REDUCTION TO TAKE EFFECT PRIOR TO THE DATE THAT THE RECLASSIFICATION FEATURES OF THE ACT OF JUNE 10, 1955, PUBLIC LAW 68, ARE PLACED IN EFFECT. THE PROPOSED REDUCTIONS ARE NOT DUE TO SERVICE CHARGES THAT HAVE OCCURRED IN THE POSTAL TRANSPORTATION SERVICE SINCE OCTOBER 24, 1951. YOUR DEPARTMENT'S LETTER REQUESTS A DECISION AS TO WHETHER YOUR DEPARTMENT HAS THE LEGAL AUTHORITY TO TAKE THE PROPOSED ACTION.

YOUR DOUBT AS TO THE LEGALITY OF THE PROPOSED ACTION ARISES BY REASON OF THE PROVISIONS OF SECTION 16 OF PUBLIC LAW 204, 39 U.S.C. 876C, IN PART AS FOLLOWS:

IN THE READJUSTMENT OF SALARIES TO CONFORM WITH THE PROVISIONS OF THIS ACT, (1) NO * * * EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, RECEIVE AN INCREASE IN BASIC ANNUAL SALARY OF LESS THAN $400 PER ANNUM * *

AT THE TIME OF ENACTMENT OF PUBLIC LAW 204, IT WAS YOUR DEPARTMENT'S VIEW THAT SECTION 16 OF THAT LAW REQUIRED THAT EACH "EMPLOYEE" RECEIVE A COMPENSATION INCREASE OF $400 PER ANNUM AND THAT HIS RIGHT TO SUCH INCREASE WAS NOT DEFEATED BECAUSE THE POSITION OF ASSISTANT CLERK IN CHARGE WAS ABOLISHED BY SECTION 2 (M) OF THAT ACT. YOU NOW INDICATE THAT THE VIEW MIGHT BE TAKEN THAT THE GUARANTEED $400 COMPENSATION INCREASE PROVIDED FOR IN SECTION 16 IS IN ADDITION TO THE COMPENSATION OF THE POSITION WHICH THE EMPLOYEE IN THE CITED EXAMPLE OCCUPIED AFTER PUBLIC LAW 204 AND NOT IN ADDITION TO THE COMPENSATION OF THE POSITION OF ASSISTANT CLERK IN CHARGE WHICH WAS ABOLISHED BY SECTION 2 (M) OF PUBLIC LAW 204. UNDER THE EXPRESS LANGUAGE OF SECTION 16, NO EMPLOYEE TO WHOM THE ACT APPLIES "SHALL * * * RECEIVE AN INCREASE IN BASIC ANNUAL SALARY OF LESS THAN $400 PER ANNUM.' IF THE LATTER VIEW WERE ADOPTED, THE EMPLOYEE IN THE EXAMPLE CITED WOULD BE DENIED THE $400 INCREASE WHICH WAS GUARANTEED UNDER THE LANGUAGE OF SECTION 16. WE HOLD THAT THE ORIGINAL INTERPRETATION PLACED UPON SECTION 16 BY YOUR DEPARTMENT REPRESENTS THE BETTER VIEW. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

WE ARE OF THE OPINION THAT IN PLACING THE RECLASSIFICATION FEATURES OF PUBLIC LAW 68 INTO EFFECT THE EMPLOYEE IN THIS EXAMPLE SHOULD BE PLACED IN A POSITION CORRESPONDING TO THE RESPONSIBILITIES AND DUTIES ACTUALLY PERFORMED BY HIM IMMEDIATELY PRIOR TO THE DATE OF SUCH RECLASSIFICATION. HOWEVER, UNDER SECTION 304 (B) (4) OF PUBLIC LAW 68, 39 U.S.C. 974, SUCH EMPLOYEE SHOULD CONTINUE TO RECEIVE NO LESS THAN THE SALARY HE IS RECEIVING ON THE DAY PRECEDING THE DATE OF THE CONVERSION OF HIS POSITION TO THE NEW SCHEDULES PROVIDED UNDER THAT LAW.

THE CASE OF EMPLOYEE B IS ILLUSTRATED BY THE FOLLOWING EXAMPLE:

QUESTION HAS ALSO ARISEN AS TO THE DEPARTMENT'S AUTHORITY TO REDUCE EMPLOYEE B AND OTHERS SIMILARLY SITUATED TO THE PAY GRADE OF CLERK IN CHARGE, AS THAT PAY GRADE HAS BEEN INCREASED BY PUBLIC LAW 68. THE EMPLOYMENT HISTORY OF EMPLOYEE B IS AS FOLLOWS:

A FORMER GRADE 15 EMPLOYEE WHO PURSUANT TO P.L. 204 HAS BEEN PAID AS A FOREMAN FROM JULY 1, 1951, ALTHOUGH THE POSITION IN WHICH HE IS ASSIGNED IS IN CLERK IN CHARGE LEVEL. CHART 12-16-20

$1,600 SUBSTITUTE POSTAL TRANSPORTATION CLERK 7-1-24 1,850 GRADE 3, TRANSFER OFFICE, GREENSBORO, REGULAR

PTC 1-1-25 2,150 GRADE 3, ACT OF 2-28-25, P. L. 506, T. O.

GREENSBORO 7-1-25 2,300 GRADE 4, TRANSFER OFFICE, GREENSBORO 7-1-26

2,450 GRADE 5, TRANSFER OFFICE, GREENSBORO 10-1-35 2,600 CLERK IN CHARGE, TRANSFER OFFICE, GREENSBORO 7-1-45 3,400 GRADE 16, ACT OF 7-6-45, P. L. 134, T. O.

GREENSBORO 1-1-46 3,800 GRADE 16, ACT OF 5 21-46, P. L. 386, T. O.

GREENSBORO 9-1-47 3,700 GRADE 15, REDUCTION, TRANSFER OFFICE, GREENSBORO 7-1-48 4,150 GRADE 15, ACT OF 7-3-48, P. L. 900, T. O.

GREENSBORO 11-1-49 4,570 GRADE 15C, ACTS OF 10-28-49 AND 5-3-50, P. L.

428 AND 500 7-1-51 5,087 FOREMAN, LONGEVITY STEP C, ACT OF 10-24-51,

P. L. 204 ( ASSIGNED AS CLERK IN CHARGE, BASE PAY

$4,570.) 3-1-55 5,374 ACT OF 6-10-55, P. L. 68

THE LETTER STATES THAT PRIOR TO THE ENACTMENT OF PUBLIC LAW 204 EMPLOYEE B WAS A CLERK IN CHARGE OF A TOUR. SECTION 2 (M) OF PUBLIC LAW 204 ABOLISHED THAT POSITION. SINCE THAT DATE THE EMPLOYEE HAS BEEN DISCHARGING THE DUTIES OF A CLERK IN CHARGE POSITION ESTABLISHED UNDER SECTION 11 OF PUBLIC LAW 204. HOWEVER, HE HAS BEEN GIVEN THE HIGHER SALARY AND DESIGNATION OF FOREMAN IN ORDER THAT HE RECEIVE THE $400 MINIMUM INCREASE PROVIDED BY SECTION 16 OF THAT LAW. THE QUESTION PRESENTED HERE ALSO IS WHETHER THE SALARY OF THE EMPLOYEE PROPERLY MAY BE REDUCED TO THE PAY GRADE OF THE POSITION WHOSE DUTIES HE ACTUALLY IS PERFORMING.

WE VIEW THIS SITUATION AS ANALOGOUS IN PRINCIPLE TO THE ONE DISCUSSED UNDER THE FIRST EXAMPLE. ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE. THE EMPLOYEE SHOULD BE PLACED IN A POSITION COMPARABLE TO THAT OF CLERK IN CHARGE WHEN THE RECLASSIFICATION FEATURES OF PUBLIC LAW 68 ARE PUT IN EFFECT. UPON SUCH CONVERSION HE WOULD BE ENTITLED UNDER SECTION 304 (B) (4) OF PUBLIC LAW 68 TO CONTINUE TO RECEIVE AS BASIC COMPENSATION THE COMPENSATION HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE THAT THE RECLASSIFICATION FEATURES OF PUBLIC LAW 68 ARE PLACED IN EFFECT.