B-134244, DECEMBER 4, 1957, 37 COMP. GEN. 387

B-134244, DECEMBER 4, 1957, 37 COMP. GEN. 387

POSTMASTERS - FOURTH-CLASS - SALARY ADJUSTMENT BASED ON GROSS RECEIPTS - HIGHEST PREVIOUS SALARY RATE THE SALARY ADJUSTMENT PROVISIONS OF SECTION 303 (B) OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1954, FOR FOURTH-CLASS POSTMASTERS BASED ON CHANGES IN GROSS RECEIPTS PRECLUDE THE APPLICATION OF THE HIGHEST PREVIOUS SALARY RATE RULE AFTER THE FIRST SALARY CONVERSION UNDER SECTION 304 OF THE ACT IS MADE.

TO LEROY P. AFDEM, POST OFFICE DEPARTMENT, DECEMBER 4, 1957:

YOUR LETTER OF OCTOBER 26, 1957, REFERENCE AEU:LPA:MBH, ASKS WHETHER THE ATTACHED PAYROLL IN FAVOR OF JOHN L. SMITH, POSTMASTER AT THE FOURTH-CLASS POST OFFICE, BURNSVILLE, VIRGINIA, FOR ADDITIONAL SALARY MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES SET OUT HEREINAFTER.

SECTION 303 (A) OF THE ACT OF JUNE 10, 1955 ( PUBLIC LAW 68), 69 STAT. 120, 39 U.S.C. 973, READS AS FOLLOWS:

SEC. 303. (A) THERE IS ESTABLISHED A BASIC SALARY SCHEDULE WHICH SHALL BE KNOWN AS THE FOURTH-CLASS OFFICE SCHEDULE, AND FOR WHICH THE SYMBOL SHALL BE " FOS," FOR POSTMASTERS IN POST OFFICES OF THE FOURTH CLASS WHICH IS BASED ON THE GROSS POSTAL RECEIPTS AS CONTAINED IN RETURNS OF THE POST OFFICE FOR THE CALENDAR YEAR IMMEDIATELY PRECEDING. BASIC SALARY SHALL BE PAID TO POSTMASTERS IN POST OFFICES OF THE FOURTH CLASS IN ACCORDANCE WITH THIS SCHEDULE, AND BASIC SALARY SO PAID, TOGETHER WITH OTHER FORMS OF COMPENSATION PROVIDED BY THIS ACT, SHALL REPLACE ALL EXISTING FORMS OF COMPENSATION FOR SUCH POSTMASTERS.

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THE RECORD SHOWS THAT ON DECEMBER 3, 1955, MR. SMITH'S SALARY WAS CONVERTED UNDER THE PROVISIONS OF SECTION 304 OF THE FOREGOING ACT, 69 STAT. 121, 39 U.S.C. 974 (A), AT $1,188 PER ANNUM, THE FIFTH STEP OF THE RECEIPTS CATEGORY $250 TO $349.99 OF THE ABOVE SCHEDULE. AFTER THE CONVERSION THE PROVISIONS OF PARAGRAPH (B), 39 U.S.C. 973 (B), OF THE FOREGOING SECTION GOVERN THE ADJUSTMENTS IN MR. SMITH'S BASIC SALARY. THOSE PROVISIONS READ AS FOLLOWS:

THE BASIC SALARY OF POSTMASTERS IN FOURTH-CLASS POST OFFICES SHALL BE READJUSTED FOR CHANGES IN GROSS RECEIPTS AT THE START OF THE FIRST PAY PERIOD AFTER THE BEGINNING OF EACH FISCAL YEAR. IN ADJUSTING A POSTMASTER'S BASIC SALARY UNDER THIS SECTION THE BASIC SALARY SHALL BE FIXED AT THE LOWEST STEP WHICH IS HIGHER THAN THE BASIC SALARY RECEIVED BY THE POSTMASTER AT THE END OF THE PRECEDING FISCAL YEAR. IF THERE IS NO SUCH STEP THE BASIC SALARY SHALL BE FIXED AT THE HIGHEST STEP FOR THE ADJUSTED GROSS RECEIPTS OF THE OFFICE. EACH INCREASE IN BASIC SALARY BECAUSE OF CHANGE IN GROSS RECEIPTS SHALL BE DEEMED THE EQUIVALENT OF A STEP-INCREASE UNDER SECTION 401 OF THIS ACT, AND THE WAITING PERIOD, FOR PURPOSES OF ADVANCEMENT TO THE NEXT STEP, SHALL BEGIN ON THE DATE OF ADJUSTMENT.

FOR THE YEAR 1955 THE RECEIPTS OF THE OFFICE AMOUNTED TO $241.86. THUS, UNDER THE PROVISIONS OF PARAGRAPH (B) ABOVE MR. SMITH'S SALARY WAS REDUCED TO $1,006 PER ANNUM, THE TOP STEP OF THE RECEIPTS CATEGORY $200 TO $249.99 ON JULY 14, 1956, AS REQUIRED. WHEN THE RECEIPTS OF THE OFFICE FOR THE YEAR 1956 INCREASED TO $277 HIS SALARY WAS INCREASED TO $1,048 PER ANNUM, THE FIRST STEP OF THE RECEIPTS CATEGORY $250 TO $349.99 ON JULY 13, 1957.

MR. SMITH'S SALARY NOW IS ($1,048) FOUR STEPS LOWER THAN THE RATE ($1,188) TO WHICH CONVERTED ON DECEMBER 3, 1955. YOU ASK WHETHER HIS FORMER SALARY ($1,188) MAY BE RESTORED TO HIM UNDER THE REGULATIONS OF THE DEPARTMENT (SECTION 753.324A OF THE POSTAL MANUAL) APPLICABLE TO POSTMASTERS AT FIRST, SECOND, AND THIRD-CLASS OFFICES AND OTHER POSTAL FIELD SERVICE EMPLOYEES AND WHICH PERMITS SUCH RESTORATION. YOU REFER, IN THAT REGARD TO THE ESTABLISHED PRINCIPLE OF THE HIGHEST PREVIOUS RATE RULE, AS SET OUT IN OUR DECISIONS 24 COMP. GEN. 226 AND 26 ID. 368. FOR THE PURPOSES OF THE PRESENTED QUESTION WE WILL ASSUME A PROPER CONVERSION WAS MADE DECEMBER 3, 1955.

THE LEGISLATIVE HISTORY--- REPORT NO. 728, HOUSE OF REPRESENTATIVES 84TH CONGRESS, ST SESSION, PAGE 23--- CONTAINS THE FOLLOWING STATEMENT RESPECTING THE FOURTH-CLASS OFFICE SCHEDULE," IT SHOULD BE NOTED THAT THIS IS THE ONLY SALARY SCHEDULE IN THE BILL WHICH IS BASED EXCLUSIVELY ON GROSS RECEIPTS.' ALSO, THAT REPORT CONTAINS EXAMPLES SHOWING THE ADJUSTMENT OF SALARIES OF POSTMASTERS AT FOURTH-CLASS POST OFFICES UPON INCREASES OR DECREASES IN GROSS RECEIPTS. SEE PAGES 23 AND 24 OF THE FOREGOING REPORT. MR. SMITH'S SALARY WAS ADJUSTED ADMINISTRATIVELY ON JULY 13, 1957, IN ACCORDANCE WITH THE LANGUAGE OF PARAGRAPH (B), SECTION 303.

THE REGULATIONS IN SECTION 753.324A REFERRED TO ABOVE APPEAR TO CARRY OUT THE PRINCIPLE OF THE HIGHEST PRIOR RATE RULE FOR THE EMPLOYEES COVERED THEREBY. WE CONCLUDE THAT THE CONGRESS BY INCLUDING THE LANGUAGE IN SECTION 303 (B) GOVERNING THE ADJUSTMENT EACH YEAR OF THE POSTMASTERS' BASIC SALARIES UNDER THE FOURTH-CLASS OFFICE SCHEDULE UPON A CHANGE OF GROSS RECEIPTS DID NOT INTEND THAT SUCH POSTMASTERS BE TREATED IN THE SAME MANNER AS OTHER EMPLOYEES IN THIS PARTICULAR REGARD. IT SHOULD BE NOTED ALSO THAT SECTION 753.213 OF THE POSTAL MANUAL IS NOT HERE INVOLVED, AND THIS DECISION IS NOT TO BE CONSTRUED AS INDICATING APPROVAL OF THAT REGULATION.

THEREFORE, WE HOLD THAT MR. SMITH'S SALARY, WHICH AFTER CONVERSION IS NOT SAVED TO HIM, HAS BEEN ADJUSTED AS REQUIRED BY THE LANGUAGE OF THE STATUTE, AND IT FOLLOWS THAT HE IS NOT ENTITLED TO THE ADDITIONAL SALARY REPRESENTED BY THE ATTACHED PAYROLL HEREWITH RETURNED.