B-128893, SEP. 25, 1956

B-128893: Sep 25, 1956

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RATE OF COMPENSATION OF TEN CLERKS IN THE NEW YORK CITY POST OFFICE WERE MEASURED UNDER THE ACT OF JULY 31. WHO PRIOR TO HIS PROBATIONAL APPOINTMENT AS A SUBSTITUTE CLERK HAD RENDERED POSTAL SERVICE WHICH APPARENTLY WAS CREDITED FOR PROMOTION PURPOSES. WERE PLACED IN HIGHER GRADES ON AUGUST 1. RECEIVED GREATER COMPENSATION DURING CERTAIN PERIODS FROM THAT DATE THAN THEY WOULD HAVE BEEN ENTITLED TO HAD THEY RECEIVED A PROBATIONAL APPOINTMENT IN THE POSTAL SERVICE WHEN THEIR NAMES WERE REACHED FOR PROBATIONAL APPOINTMENT ON A CIVIL SERVICE REGISTER PRIOR TO THEIR MILITARY SERVICE. THESE EMPLOYEES HAVE RECEIVED LONGEVITY INCREASES IN COMPENSATION BASED UPON THE LOWER ELIGIBLE'S SERVICE. AT EARLIER DATES THAN THEY WOULD HAVE BEEN ENTITLED TO RECEIVE THAN HAD THEY BEEN APPOINTED WHEN THEIR NAMES WERE REACHED ON THE REGISTER.

B-128893, SEP. 25, 1956

TO THE POSTMASTER GENERAL:

OUR AUDIT OF THE POST OFFICE DEPARTMENT REGIONAL CONTROLLER OFFICE AT NEW YORK, NEW YORK, DISCLOSED THAT THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF TEN CLERKS IN THE NEW YORK CITY POST OFFICE WERE MEASURED UNDER THE ACT OF JULY 31, 1946, 60 STAT. 749, PUBLIC LAW 577, 79TH CONGRESS, AS AMENDED BY THE ACT OF APRIL 29, 1950, 64 STAT. 93, PUBLIC LAW 492, 81ST CONGRESS, BY THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF A LOWER RANKING ELIGIBLE, OSCAR G. GUY, WHO PRIOR TO HIS PROBATIONAL APPOINTMENT AS A SUBSTITUTE CLERK HAD RENDERED POSTAL SERVICE WHICH APPARENTLY WAS CREDITED FOR PROMOTION PURPOSES.

AS A RESULT THE TEN VETERAN ELIGIBLES, WHO HAD RECEIVED PROBATIONAL APPOINTMENTS AS SUBSTITUTE CLERKS AFTER MILITARY SERVICE, WERE PLACED IN HIGHER GRADES ON AUGUST 1, 1946, THE EFFECTIVE DATES OF THE ACTS CITED, AND RECEIVED GREATER COMPENSATION DURING CERTAIN PERIODS FROM THAT DATE THAN THEY WOULD HAVE BEEN ENTITLED TO HAD THEY RECEIVED A PROBATIONAL APPOINTMENT IN THE POSTAL SERVICE WHEN THEIR NAMES WERE REACHED FOR PROBATIONAL APPOINTMENT ON A CIVIL SERVICE REGISTER PRIOR TO THEIR MILITARY SERVICE. IN ADDITION, THESE EMPLOYEES HAVE RECEIVED LONGEVITY INCREASES IN COMPENSATION BASED UPON THE LOWER ELIGIBLE'S SERVICE, AT EARLIER DATES THAN THEY WOULD HAVE BEEN ENTITLED TO RECEIVE THAN HAD THEY BEEN APPOINTED WHEN THEIR NAMES WERE REACHED ON THE REGISTER.

PUBLIC LAW 577, 60 STAT. 749, PROVIDED, IN PART, AS FOLLOWS:

"THAT (A) ANY PERSON---

"/1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * (B) AT ANY TIME BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943, WITH RESPECT TO A POSITION IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT,

"/2) WHO, PURSUANT TO EXECUTIVE ORDER NUMBERED 9538, DATED APRIL 13, 1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR SITUATIONS IN WHICH AN ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, WAS CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION, AND, SUBSEQUENTLY, WAS GIVEN SUCH APPOINTMENT,

SHALL, FOR THE PURPOSE OF (A) DETERMINING HIS RATE OF COMPENSATION AND (B) HIS SENIORITY RIGHTS IN THE POSTAL FIELD SERVICE, BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM: * * *"

PUBLIC LAW 492 AMENDED PUBLIC LAW 577 BY ADDING THE FOLLOWING PROVISO, WHICH WAS EFFECTIVE AS OF AUGUST 1, 1946, WITH RESPECT TO THOSE EMPLOYEES STILL IN THE POSTAL SERVICE ON THE DATE OF ENACTMENT THEREOF:

"THAT THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF ANY PERSON SO APPOINTED TO A POSITION IN THE POSTAL FIELD SERVICE SHALL, AT THE TIME THIS ACT FIRST APPLIES TO SUCH PERSON, BE NOT LESS THAN THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF THE LOWER ELIGIBLE (WHETHER A SUBSTITUTE OR REGULAR EMPLOYEE) RECEIVING THE HIGHEST AUTOMATIC RATE OF COMPENSATION AT SUCH TIME, BUT SUCH ADJUSTMENT IN GRADE, TIME IN GRADE, AND RATE OF COMPENSATION SHALL NOT AFFECT THE STATUS OF SUCH PERSON AS A SUBSTITUTE OR REGULAR EMPLOYEE.'

IT IS STATED IN SENATE REPORT NO. 1483, 81ST CONGRESS, ACCOMPANYING H.R. 4285 WHICH BECAME PUBLIC LAW 492 AS FOLLOWS:

"THE PURPOSE OF H.R. 4285 IS TO INCREASE THE RATES OF CERTAIN SUBSTITUTE EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT WHEN IT IS FOUND THAT BY REASON OF THEIR MILITARY SERVICE THEY ARE ACTUALLY RECEIVING LESS PAY THAN THEY OTHERWISE WOULD HAVE RECEIVED HAD THEY BEEN PRIVILEGED TO ACCEPT APPOINTMENTS IN THE FIELD SERVICE BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943. UNDER THE PROVISIONS OF THE BILL THESE SUBSTITUTE EMPLOYEES, WHO ARE SUBJECT TO THE MCCORMACK ACT (PUBLIC LAW 577) BUT WHO ARE RECEIVING A LOWER RATE OF PAY THAN AN EMPLOYEE WHO WAS LOWER ON THE REGISTER FROM WHICH HE WAS APPOINTED,WILL BE PLACED IN THE SAME SALARY GRADE AS SUCH ELIGIBLE STANDING LOWER ON THE REGISTER.

"ALL EMPLOYEES IN THE POSTAL SERVICE ENTITLED TO THE BENEFITS OF PUBLIC LAW 577 RECEIVE FOUR ADDITIONAL GRADES WHEN THEY ARE APPOINTED TO REGULAR POSITIONS. SUCH EMPLOYEES WHO WERE ENTITLED TO BENEFITS UNDER PUBLIC LAW 577, AND WHO ARE STILL SUBSTITUTES, ARE RECEIVING SALARIES WHICH ARE FOUR GRADES LOWER THAN THOSE OF REGULAR EMPLOYEES OF COMPARABLE OR EQUIVALENT SERVICE.

"THIS INEQUITY AROSE FROM THE ABSENCE OF THE FIELD EMPLOYEE ON MILITARY DUTY WHICH CAUSED HIM TO LOSE THE OPPORTUNITY FOR REGULAR APPOINTMENT. THIS INEQUITY WAS NOT APPARENT AT THE TIME OF ENACTMENT OF PUBLIC LAW 577.'

WE FIND NOTHING IN THIS REPORT OR IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 492 WHICH INDICATES THAT CONGRESS INTENDED TO GIVE VETERAN ELIGIBLES BENEFITS GREATER THAN THEY WOULD HAVE RECEIVED HAD THEY BEEN APPOINTED WHEN THEIR NAMES WERE REACHED ON A CIVIL SERVICE REGISTER BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943. THEREFORE, WE CONCLUDE THAT PUBLIC LAW 492 DOES NOT AUTHORIZE THE PLACING OF ANY VETERAN ELIGIBLE IN A STATUS MORE FAVORABLE THAN THAT HE WOULD HAVE OCCUPIED HAD HE NOT ENTERED THE MILITARY SERVICE AND HAD HE RECEIVED A PROBATIONAL APPOINTMENT AT THE TIME HIS NAME WAS REACHED ON A CIVIL SERVICE REGISTER. THAT IS TO SAY, THAT THE INVOLVED VETERAN ELIGIBLES' GRADE, TIME IN GRADE, AND RATE OF COMPENSATION SHOULD BE MEASURED BY THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF THE LOWER ELIGIBLE RECEIVING THE HIGHEST AUTOMATIC RATE OF COMPENSATION AT THE TIME PUBLIC LAW 577, AS AMENDED, FIRST APPLIED TO THE VETERAN ELIGIBLES, EXCLUDING LOWER ELIGIBLES WHO PRIOR TO THEIR PROBATIONAL APPOINTMENT FROM THE SAME LIST OF ELIGIBLES HAD RENDERED POSTAL SERVICE CREDITABLE FOR PROMOTION PURPOSES.

HOWEVER, SINCE THE INTERPRETATION PLACED BY YOUR DEPARTMENT ON PUBLIC LAW 492 DOES NOT APPEAR UNREASONABLE UNDER A LITERAL READING OF ITS LANGUAGE, WE SHALL NOT INSIST THAT RECOVERY OF THE SALARY OVERPAYMENTS BE MADE FROM THE INVOLVED EMPLOYEES WITH THE UNDERSTANDING THAT THEIR LONGEVITY CREDITS AND RATE OF COMPENSATION BE TIMELY ADJUSTED IN ACCORDANCE WITH THE FOREGOING. COMPARE B-125973, DATED DECEMBER 27, 1955, INVOLVING A STATUTE SIMILAR TO PUBLIC LAW 577, BUT WHICH DID NOT CONTAIN A PROVISO SUCH AS ADDED TO PUBLIC LAW 577 BY PUBLIC LAW 492.