B-134096, NOV. 29, 1957

B-134096: Nov 29, 1957

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THAT SECTION IS QUOTED IN PERTINENT PART AS FOLLOWS: "* * * HOWEVER. IF ANY EMPLOYEE IS ASSIGNED FOR MORE THAN THIRTY DAYS IN ANY CALENDAR YEAR TO DUTIES AND RESPONSIBILITIES OF A SALARY LEVEL WHICH IS HIGHER THAN THE SALARY LEVEL TO WHICH HIS POSITION IS ASSIGNED. G OF SECTION 756.544 OF THE POSTAL MANUAL) TREAT AN EMPLOYEE ASSIGNED TO HIGHER LEVEL WORK FOR A PERIOD IN EXCESS OF 30 DAYS AS THOUGH HE IS TEMPORARILY PROMOTED TO THE HIGHER LEVEL POSITION AND IS THE REGULAR INCUMBENT OF SUCH POSITION. THE EFFECT OF SUCH REGULATIONS IS TO INSURE UNIFORMITY OF PAY. IF THIS VIEW WERE NOT ADOPTED VARIATIONS WOULD OCCUR IN THE RATE OF COMPENSATION. DEPENDING UPON WHETHER THE LOWER LEVEL EMPLOYEE WAS A REGULAR EMPLOYEE OR A SUBSTITUTE EMPLOYEE.

B-134096, NOV. 29, 1957

TO THE POSTMASTER GENERAL:

ON OCTOBER 14, 1957, YOUR DEPUTY POSTMASTER GENERAL REQUESTED OUR DECISION CONCERNING THE CONSTRUCTION TO BE PLACED UPON SECTION 204 (B) OF THE ACT OF JUNE 10, 1955, 39 U.S.C. 964 (B). THAT SECTION IS QUOTED IN PERTINENT PART AS FOLLOWS:

"* * * HOWEVER, IF ANY EMPLOYEE IS ASSIGNED FOR MORE THAN THIRTY DAYS IN ANY CALENDAR YEAR TO DUTIES AND RESPONSIBILITIES OF A SALARY LEVEL WHICH IS HIGHER THAN THE SALARY LEVEL TO WHICH HIS POSITION IS ASSIGNED, EXCEPT TO PERFORM SERVICE IN A RELIEF CAPACITY FOR A SUPERVISOR GRANTED COMPENSATORY TIME PURSUANT TO SECTION 603, HE SHALL BE PAID FOR THE PERIOD OF HIS ASSIGNMENT IN EXCESS OF THIRTY DAYS A BASIC SALARY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 502.'

YOUR DEPARTMENT'S CURRENT REGULATIONS (SUBSECTIONS C, D, E, AND G OF SECTION 756.544 OF THE POSTAL MANUAL) TREAT AN EMPLOYEE ASSIGNED TO HIGHER LEVEL WORK FOR A PERIOD IN EXCESS OF 30 DAYS AS THOUGH HE IS TEMPORARILY PROMOTED TO THE HIGHER LEVEL POSITION AND IS THE REGULAR INCUMBENT OF SUCH POSITION. THE EFFECT OF SUCH REGULATIONS IS TO INSURE UNIFORMITY OF PAY, HOURS OF WORK, AND OTHER BENEFITS TO ALL PERSONS WHO MAY PERFORM THE DUTIES OF A GIVEN POSITION WHETHER UNDER A PERMANENT REGULAR ASSIGNMENT OR FOR A TEMPORARY ASSIGNMENT IN EXCESS OF 30 DAYS. IF THIS VIEW WERE NOT ADOPTED VARIATIONS WOULD OCCUR IN THE RATE OF COMPENSATION, NIGHT DIFFERENTIAL, ETC., DEPENDING UPON WHETHER THE LOWER LEVEL EMPLOYEE WAS A REGULAR EMPLOYEE OR A SUBSTITUTE EMPLOYEE, AND ALSO, DEPENDING UPON THE POSITION IN WHICH THE HIGHER LEVEL WORK IS PERFORMED. YOUR DEPUTY POSTMASTER GENERAL'S LETTER CONTAINS THE FOLLOWING EXAMPLES OF THESE VARIATIONS:

"A POSTMASTER OF THE THIRD CLASS IN STEP 1 OF LEVEL 7, WITH AN ANNUAL SALARY OF $4530 PER ANNUM IS ABSENT ON EXTENDED LEAVE. BROKEN DOWN TO AN HOURLY BASIS, THE POSTMASTER'S COMPENSATION IS $1.81 ($4530 DIVIDED BY 2496. SEE SECTION 601 (D) (3), 39 U.S.C. 1001 (D) (3) ). THE POSTMASTER IS ALSO EXCEPTED FROM THE PROVISIONS OF SECTIONS 1002, 1003 AND 1004 OF TITLE 39 U.S.C. SEE SECTION 1005 (A) OF TITLE 39 U.S.C. THUS, REGARDLESS OF HOW MANY HOURS OF WORK IN EXCESS OF 48 PER WEEK, OR EVEN FOR WORK ON SUNDAY, THE POSTMASTER RECEIVES NO EXTRA COMPENSATION EITHER IN THE FORM OF STRAIGHT TIME, OVERTIME, OR COMPENSATORY TIME.

"IF A SUBSTITUTE CLERK IN STEP 1 OF LEVEL 2 WHOSE COMPENSATION CONVERTED TO AN ANNUAL BASIS IS $3090 IS ASSIGNED TO THE DUTIES OF THE POSTMASTER AND RETAINS HIS STATUS AS A SUBSTITUTE DURING THAT ASSIGNMENT, HIS RATE OF COMPENSATION WHILE PERFORMING THE DUTIES OF THE POSTMASTER IS $2.25 PER HOUR (4530 DIVIDED BY 2016. SEE 39 U.S.C. 1001 (D) (2) ). HE WOULD BE ENTITLED TO RECEIVE ADDITIONAL COMPENSATION AT STRAIGHT TIME RATES FOR (1) ALL HOURS OF WORK PERFORMED OVER EIGHT, MONDAY THROUGH SATURDAY, AND (2) ALL HOURS, REGARDLESS OF NUMBER, PERFORMED ON SUNDAY.

"ON THE OTHER HAND, IF A REGULAR CLERK IN STEP 1 OF LEVEL 2, AT AN ANNUAL RATE OF $3090 IS ASSIGNED TO PERFORM THE DUTIES OF THE POSTMASTER, BUT IS NOT TREATED AS A POSTMASTER, HIS HOURLY RATE IS $2.18 ($4530 DIVIDED BY 2080. SEE 39 U.S.C. 1001 (D) (1) ). HE WOULD NOT BE ENTITLED TO THE BENEFITS OF SECTION 1002, NOR TO THE COMPENSATORY TIME AND OVERTIME PROVISIONS OF SECTION 1003. HE IS ENTITLED TO THE BENEFITS OF THE HOLIDAY PROVISIONS OF SECTION 1003 AND TO THE BENEFITS OF SECTION 1004. FOR WORK IN EXCESS OF EIGHT HOURS PER DAY MONDAY THROUGH FRIDAY, HE IS ENTITLED TO OVERTIME PAY. SEE SUBSECTIONS (C) AND (D) OF 39 U.S.C. 1005.

"IF THE POST OFFICE WERE OF THE SECOND CLASS, NO CHANGE IN THE LAW APPLICABLE TO THE RATE OF COMPENSATION, NIGHT DIFFERENTIAL, ETC., WOULD RESULT IN THE CASE OF THE ABSENT POSTMASTER, AND THE SAME RULES APPLICABLE TO SUBSTITUTES PERFORMING HIGHER LEVEL SERVICE IN THE ABSENCE OF A POSTMASTER OF THE THIRD CLASS WOULD BE EQUALLY APPLICABLE TO A SUBSTITUTE PERFORMING THE DUTIES OF AN ABSENT POSTMASTER OF THE SECOND-CLASS. HOWEVER, IN SUCH AN OFFICE, IF A REGULAR ANNUAL RATE EMPLOYEE WERE PERFORMING THE DUTIES OF THE ABSENT POSTMASTER, HE WOULD GET THE FULL BENEFITS OF SECTION 1002, 1003, AND 1004 OF TITLE 39 U.S.C.

"IN CONNECTION WITH WORKING EXCESS HOURS, WE RECENTLY HAD A CASE IN OUR ATLANTA, GEORGIA, REGION IN WHICH THE LOWER LEVEL EMPLOYEE CLAIMED THAT SHE WAS PUTTING IN 70 HOURS WORK EACH WEEK TO DISCHARGE THE DUTIES OF THE ABSENT POSTMASTER AND SHE CLAIMED PAYMENT THEREFOR. SINCE THE EMPLOYEE WAS THE JUDGE OF HOW MANY HOURS WERE NECESSARY, THERE IS NO DEFINITE OR ACCURATE WAY OF CHECKING THE NECESSITY FOR THE NUMBER OF HOURS WORKED. THIS CONNECTION, ATTENTION IS INVITED TO THE CASE OF THOMAS E. ANDERSON, ET AL., V. U.S., CT.CLS., 150 F.SUPP. 881.

"WE ALSO HAVE BEFORE US AT THE PRESENT TIME THE CASE OF A SUBSTITUTE LEVEL 5 PTS CLERK WHO PERFORMED SERVICE AS A LEVEL 6 AND AS A LEVEL 7 PTS CLERK. THE QUESTION IS WHETHER HE SHOULD BE PAID FOR THE HIGHER LEVEL SERVICE AS THOUGH HE HAD BEEN THE REGULAR LEVEL 6 AND 7 INCUMBENT, USING 2080 AS THE DIVISOR, OR WHETHER THE DIVISOR SHOULD BE 2016.'

IN CONSTRUING SECTION 204 (B), IT IS NECESSARY TO EXAMINE ALSO SECTION 502 OF THE ACT, 69 STAT. 124, SINCE SECTION 204 (B) PROVIDES THAT AN EMPLOYEE "SHALL BE PAID FOR THE PERIOD OF HIS ASSIGNMENT IN EXCESS OF THIRTY DAYS A BASIC SALARY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 502.' SECTION 502 IS IN PART AS FOLLOWS:

"ANY EMPLOYEE WHO IS PROMOTED OR TRANSFERRED TO A POSITION IN A HIGHER SALARY LEVEL OF THE POSTAL FIELD SERVICE SCHEDULE SHALL BE PAID BASIC SALARY AT THE LOWEST STEP OF SUCH HIGHER SALARY LEVEL WHICH EXCEEDS HIS EXISTING BASIC SALARY BY NOT LESS THAN THE AMOUNT OF DIFFERENCE BETWEEN THE ENTRANCE STEP OF THE SALARY LEVEL IMMEDIATELY ABOVE THE SALARY LEVEL FROM WHICH PROMOTED. IF THERE IS NO STEP IN THE SALARY LEVEL TO WHICH THE EMPLOYEE IS PROMOTED WHICH EXCEEDS HIS EXISTING BASIC SALARY BY AT LEAST THE AMOUNT OF SUCH DIFFERENCE, SUCH EMPLOYEE SHALL BE PAID (1) THE MAXIMUM STEP OF THE SALARY LEVEL TO WHICH PROMOTED, OR (2) HIS EXISTING BASIC SALARY, WHICHEVER IS HIGHER.'

UNDER SECTION 204 (B) AN EMPLOYEE WHO IS TEMPORARILY ASSIGNED FOR MORE THAN 30 DAYS IN ANY CALENDAR YEAR TO PERFORM WORK IN A POSITION, CLASSIFIED AT A SALARY LEVEL HIGHER THAN HIS POSITION, IS ENTITLED TO BE COMPENSATED FOR TIME IN EXCESS OF 30 DAYS AT A BASIC SALARY RATE COMPUTED IN ACCORDANCE WITH SECTION 502 IN THE SAME MANNER AS IF HE HAD RECEIVED A PROMOTION OR TRANSFER TO SUCH HIGHER LEVEL POSITION. HOWEVER, NEITHER SECTION 204 (B) NOR SECTION 502 SPECIFIES WHETHER THE COMPENSATION PAYABLE, AND OTHER BENEFITS TO WHICH HE MAY BE ENTITLED THEREUNDER, SHALL BE DETERMINED BY HIS OWN EMPLOYMENT STATUS OR BY THE STATUS HE WOULD HAVE ACQUIRED WERE HE PROMOTED OR TRANSFERRED IN A "REGULAR" CAPACITY TO THE HIGHER LEVEL POSITION. WE HAVE EXAMINED THE LEGISLATIVE HISTORY BUT HAVE NOT FOUND IT CLARIFYING IN THIS REGARD. UNDER THE CIRCUMSTANCES AND IN VIEW OF YOUR GENERAL AUTHORITY--- APPEARING IN SECTION 807, 69 STAT. 130-- - TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR ADMINISTRATION OF THE ACT, WE DO NOT FEEL REQUIRED TO QUESTION THE PROPRIETY OF THE CITED REGULATIONS APPEARING IN THE POSTAL MANUAL AND YOUR CURRENT PRACTICE IN ACCORDANCE WITH THOSE REGULATIONS.

WE STRONGLY SUGGEST THAT ALL ASSIGNMENTS TO HIGHER LEVEL WORK UNDER SECTION 204 (B) EXPRESSLY CITE THAT SECTION AS AUTHORITY IN ORDER TO ELIMINATE QUESTIONS OF VETERANS' PREFERENCE VIOLATIONS UPON SUBSEQUENT ASSIGNMENTS OF THE EMPLOYEES INVOLVED TO THEIR REGULAR LOWER LEVEL POSITIONS.