B-130883, MAR. 16, 1965, 44 COMP. GEN. 558

B-130883, MAR. 16, 1965, 44 COMP. GEN. 558

COMPENSATION - POSTAL SERVICE - RATES - TRANSFERS, REASSIGNMENTS, ETC. - CLASSIFICATION ACT POSITION. COMPENSATION - RATES - JURISDICTION. COMPENSATION - POSTAL SERVICE - RATES - TRANSFERS, REASSIGNMENTS, ETC. CLASSIFICATION ACT POSITION EMPLOYEES WHO, INCIDENT TO THE TRANSFER OF BUILDING MAINTENANCE FUNCTIONS FROM THE DEPARTMENT OF THE ARMY TO THE POST OFFICE DEPARTMENT, ARE PLACED IN THE LOWEST SALARY STEP OF THE GRADE IN THE POSTAL FIELD SERVICE SCHEDULE IN WHICH THEIR POSITIONS WERE CLASSIFIED THEREBY RECEIVING A REDUCTION IN SALARY ARE CONSIDERED EMPLOYEES "NEW TO THE POSTAL FIELD SERVICE" UNDER 39 U.S.C. 3551, WHICH PRECLUDES PLACING SUCH EMPLOYEES IN OTHER THAN THE LOWEST STEP OF THE GRADE TO WHICH TRANSFERRED, WHEN THEY DO NOT COME WITHIN THE EXCEPTIONS APPLICABLE TO EMPLOYEES TRANSFERRED TO POSITIONS IN REGIONAL OR DISTRICT OFFICES OR TO PROFESSIONAL OR SCIENTIFIC POSITIONS, AND, THEREFORE, SUCH EMPLOYEES MAY NOT BE PAID AT ANY RATE OF COMPENSATION ABOVE THE LOWEST RATE PRESCRIBED FOR THEIR RESPECTIVE GRADES UPON TRANSFER TO THE POSTAL FIELD SERVICE. ALTHOUGH WHETHER A REDUCTION IN COMPENSATION RESULTING FROM THE TRANSFER OF BUILDING MAINTENANCE EMPLOYEES FROM THE DEPARTMENT OF THE ARMY TO THE POST OFFICE DEPARTMENT CONSTITUTES AN "ADVERSE ACTION" WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS PREFERENCE ACT, 5 U.S.C. 863, IS NOT A MATTER WITHIN THE JURISDICTION OF THE COMPTROLLER GENERAL, THE QUESTION OF THE RATE OF COMPENSATION TO WHICH THE EMPLOYEES WOULD BE ENTITLED AFTER TRANSFER TO THE POSTAL SERVICE DEPENDS UPON AN INTERPRETATION OF THE POSTAL PAY STATUTES RATHER THAN THE VETERANS PREFERENCE ACT AND, IS, THEREFORE, A MATTER FOR DECISION BY THE COMPTROLLER GENERAL. A COURT DIRECTIVE IN CAPUTO V. AILES, U.S.D.C. (NEW YORK) NO. 64-C 118, REMANDING TO THE CIVIL SERVICE COMMISSION THE MATTER OF ENTITLEMENT OF CERTAIN POSTAL FIELD SERVICE EMPLOYEES TO ADDITIONAL COMPENSATION UNDER 39 U.S.C. 3551, INCIDENT TO REDUCTION IN SALARY UPON TRANSFER OF BUILDING MAINTENANCE FUNCTIONS FROM THE DEPARTMENT OF THE ARMY TO THE POST OFFICE DEPARTMENT, IS TANTAMOUNT TO EXTENDING BY JUDICIAL DECREE THE STATUTORY JURISDICTION OF THE CIVIL SERVICE COMMISSION TO MATTERS OF INTERPRETATION OF THE POSTAL PAY STATUTES WHICH IS FOR DECISION BY THE COMPTROLLER GENERAL AND, THEREFORE, APPEAL OF THE COURTS ACTION SHOULD BE TAKEN.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 16, 1965:

YOUR LETTER OF FEBRUARY 24, 1965, REQUESTS OUR DECISION CONSTRUING 39 U.S.C. 3551, ORIGINALLY ENACTED AS SECTION 501 OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, 69 STAT. 124.

WE UNDERSTAND THAT ON JULY 1, 1963, THE POST OFFICE DEPARTMENT ASSUMED THE MAINTENANCE AND OPERATION FUNCTIONS OF A GOVERNMENT BUILDING LOCATED AT FORT TOTTEN, NEW YORK CITY, WHICH FUNCTIONS THERETOFORE HAD BEEN PERFORMED BY THE DEPARTMENT OF THE ARMY. THE MAINTENANCE AND OPERATION PERSONNEL OF THE DEPARTMENT OF THE ARMY WHO WERE EMPLOYED IN SUCH BUILDING WERE TRANSFERRED TO THE POST OFFICE DEPARTMENT INCIDENT TO THE TRANSFER OF FUNCTIONS. AT THE TIME OF THE TRANSFER EACH OF THE EMPLOYEES WAS PLACED IN THE LOWEST SALARY RATE OF THE GRADE IN THE POSTAL FIELD SERVICE SCHEDULE IN WHICH HIS POSITION WAS CLASSIFIED. ASSUMING SUCH TRANSFER IS IN CONFORMITY WITH LAW, THE SOLE QUESTION PRESENTED IS WHETHER 39 U.S.C. 3551 PRECLUDES THE DEPARTMENT FROM PLACING SUCH EMPLOYEES IN HIGHER RATES IN THEIR RESPECTIVE GRADES SO THAT UPON TRANSFER THEY WOULD HAVE SUFFERED NO REDUCTION IN COMPENSATION.

39 U.S.C. 3551 IS IN PART AS FOLLOWS:

(A) THE POSTMASTER GENERAL MAY APPOINT ANY PERSON WHO HAS BEEN EMPLOYED IN A CIVILIAN CAPACITY IN ANY BRANCH OF THE GOVERNMENT TO ANY POSITION IN A REGIONAL OR DISTRICT OFFICE OR TO ANY PROFESSIONAL OR SCIENTIFIC POSITION AND MAY PLACE HIM IN ANY STEP IN THE SALARY LEVEL OF THE POSTAL FIELD SERVICE SCHEDULE WHICH IS LESS THAN ONE FULL STEP ABOVE THE HIGHEST BASIC SALARY WHICH HE RECEIVED FROM THE UNITED STATES.

THE INTENT AND PURPOSE OF THE QUOTED SECTION IS EXPLAINED IN H.REPT. NO. 728, 84TH CONGRESS, AS FOLLOWS:

SECTION 501 AUTHORIZES THE POSTMASTER GENERAL TO APPOINT ANY INDIVIDUAL, WHO HAS BEEN EMPLOYED IN A CIVILIAN CAPACITY IN ANY BRANCH OF THE FEDERAL GOVERNMENT (INCLUDING THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA), TO A POSITION OF A CERTAIN TYPE IN THE POSTAL FIELD SERVICE. SUCH TYPE OF POSITION TO WHICH APPOINTMENTS MAY BE MADE IN THIS MANNER IS EITHER A POSITION IN A REGIONAL OR DISTRICT OFFICE OR A PROFESSIONAL OR SCIENTIFIC POSITION. THE POSTMASTER GENERAL MAY PLACE SUCH INDIVIDUAL SO APPOINTED IN ANY STEP IN THE SALARY LEVEL OF THE POSTAL FIELD SERVICE SCHEDULE WHICH IS LESS THAN ONE FULL STEP ABOVE THE HIGHEST RATE OF BASIC SALARY (EXCLUDING LONGEVITY COMPENSATION) WHICH SUCH INDIVIDUAL RECEIVED FROM THE FEDERAL GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

FOR EXAMPLE, IT IS NOT NECESSARY THAT AN INDIVIDUAL WHO HAS BEEN EMPLOYED IN A CIVILIAN CAPACITY BY THE FEDERAL GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA BE ASSIGNED TO THE ENTRANCE STEP OF THE SALARY LEVEL OF THE POSITION IN THE POSTAL FIELD SERVICE TO WHICH HE IS APPOINTED IF SUCH POSITION IS IN A REGIONAL OR DISTRICT OFFICE OR IS OF A PROFESSIONAL OR SCIENTIFIC CHARACTER. HE MAY, INSTEAD, BE ASSIGNED TO THAT STEP IN THE SALARY LEVEL OF HIS NEW POSITION WHICH IS LESS THAN ONE FULL STEP ABOVE THE HIGHEST BASIC SALARY HE RECEIVED FROM THE FEDERAL GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

IF AN INDIVIDUAL IN THE FIRST STEP OF GRADE 11 OF THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AT A RATE OF BASIC SALARY OF $5,940 IS TO BE APPOINTED TO A POSITION IN THE POSTAL FIELD SERVICE IN SALARY LEVEL PFS -9 OF THE POSTAL FIELD SERVICE SCHEDULE, SUCH INDIVIDUAL MAY BE ASSIGNED TO STEP 5 OF SALARY LEVEL PFS-9, AT A BASIC SALARY OF $6,020, IN THE POSTAL FIELD SERVICE SCHEDULE.

EXCEPT FOR APPOINTMENTS TO POSITIONS MENTIONED IN SECTION 501, THE PRESENT PRACTICE OF THE POST OFFICE DEPARTMENT OF APPOINTING EACH EMPLOYEE NEW TO THE POSTAL FIELD SERVICE TO THE LOWEST STEP OF THE SALARY LEVEL FOR THE POSITION TO WHICH HE IS APPOINTED, AND THE PRESENT PRACTICE WITH RESPECT TO REINSTATEMENTS TO THE POSTAL FIELD SERVICE, IS EXPECTED TO BE CONTINUED.

THE LANGUAGE USED IN THE HOUSE REPORT "EACH EMPLOYEE NEW TO THE POSTAL FIELD SERVICE" CLEARLY REFERS TO EACH EMPLOYEE THAT IS NEW TO THE POSTAL FIELD SERVICE AS DISTINGUISHED FROM AN EMPLOYEE WHO IS NEW TO THE GOVERNMENT SERVICE. HENCE, THE REQUIREMENT FOR STARTING AT THE LOWEST STEP OF THE GRADE WOULD APPLY EVEN TO THE CASE OF AN EMPLOYEE WHO TRANSFERS FROM ANOTHER GOVERNMENT POSITION TO A POSITION IN THE POSTAL FIELD SINCE HE TOO WOULD BE "NEW TO THE POSTAL FIELD RVICE.'

IF THE CONGRESS HAD INTENDED THAT EMPLOYEES TRANSFERRING TO THE POSTAL SERVICE FROM OTHER GOVERNMENT POSITIONS SHOULD SUFFER NO REDUCTION IN COMPENSATION INCIDENT TO SUCH TRANSFER, THE CONGRESS REASONABLY COULD HAVE BEEN EXPECTED TO INCLUDE AN EXPRESS PROVISION IN THE LAW AUTHORIZING SUCH TRANSFERS AT NO LOSS OF PAY OR TO HAVE PROVIDED THAT THE RATES OF PAY OF SUCH EMPLOYEES COULD BE ADJUSTED UPON TRANSFER IN ACCORDANCE WITH REGULATIONS OF THE POSTMASTER GENERAL. COMPARE SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1108, 5 U.S.C. 1114 NOTE, AND SECTION 802 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1132. THE CONGRESS DID NOT DO THIS. THE ONLY EXCEPTION THAT IS MADE TO THE REQUIREMENT THAT EMPLOYEES NEW TO THE POSTAL SERVICE SHOULD START AT THE LOWEST RATE IN THE GRADE WAS IN THE CASE OF EMPLOYEES TRANSFERRING TO POSITIONS IN REGIONAL OR DISTRICT OFFICES OR TO PROFESSIONAL OR SCIENTIFIC POSITIONS.

WE HOLD, THEREFORE, THAT THERE IS NO STATUTORY AUTHORITY UNDER WHICH THE EMPLOYEES HERE INVOLVED COULD HAVE BEEN PAID ANY RATE OF COMPENSATION ABOVE THE LOWEST RATE PRESCRIBED FOR THEIR RESPECTIVE GRADES WHEN THEY WERE TRANSFERRED FROM THE DEPARTMENT OF THE ARMY TO THE POSTAL FIELD SERVICE INCIDENT TO THE TRANSFER OF THE BUILDING OPERATION AND MAINTENANCE FUNCTIONS.

WHETHER THE TRANSFER OF THE EMPLOYEES INCIDENT TO A TRANSFER OF FUNCTIONS WHICH ULTIMATELY RESULTED IN THEIR SUFFERING A REDUCTION IN COMPENSATION BY REASON OF THE APPLICATION OF THE POSTAL COMPENSATION LAWS CONSTITUTED AN "ADVERSE ACTION" WITHIN THE MEANING OF SECTION 14 OF THE VETERANS PREFERENCE ACT, 5 U.S.C. 863, IS NOT A MATTER WITHIN THE JURISDICTION OF OUR OFFICE. HOWEVER, EVEN IF IT BE CONCLUDED THAT THE TRANSFER PROPERLY COULD HAVE BEEN REGARDED AS AN ADVERSE ACTION SO AS TO ENTITLE THE EMPLOYEES TO BACK PAY BECAUSE THE PROCEDURAL REQUIREMENTS OF SECTION 14 WERE NOT COMPLIED WITH, THE DEPARTMENT COULD IMMEDIATELY REPROCESS THE TRANSFER ACTIONS, THIS TIME FOLLOWING THE PROCEDURES CONTAINED IN SECTION 14, AND THUS EFFECTIVELY CUT OFF ANY ENTITLEMENT TO A RATE ABOVE THE LOWEST RATE IN THE APPLICABLE POSTAL FIELD SERVICE GRADE.

IN ANY EVENT, THE RATE OF PAY TO WHICH THE EMPLOYEES INVOLVED WOULD BE ENTITLED AFTER TRANSFER TO THE POSTAL SERVICE DEPENDS UPON AN INTERPRETATION OF THE APPLICABLE POSTAL PAY STATUTES--- NOT THE VETERANS PREFERENCE ACT--- AND WOULD BE A MATTER FOR DETERMINATION BY THE DECISION OF OUR OFFICE RATHER THAN ONE DEPENDING UPON A CONSTRUCTION OF SECTION 14 OF THE VETERANS PREFERENCE ACT BY THE CIVIL SERVICE COMMISSION.

WE ARE OF THE OPINION THAT APPEAL IN THE CASE OF ANTHONY CAPUTO, ET AL. V. STEPHEN AILES, SECRETARY OF THE ARMY, U.S.D.C. (NEW YORK), NO. 64-C- 118, SHOULD BE TAKEN TO THE COURT'S DIRECTIVE REMANDING THE CASE BACK TO THE CIVIL SERVICE COMMISSION FOR DETERMINATION OF PLAINTIFF'S ENTITLEMENT TO ADDITIONAL COMPENSATION UNDER 39 U.S.C. 3551 SINCE SUCH ACTION IS TANTAMOUNT TO EXTENDING BY JUDICIAL DECREE THE STATUTORY JURISDICTION OF THE CIVIL SERVICE COMMISSION.