B-136175, JUN. 26, 1958

B-136175: Jun 26, 1958

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IF OUR ANSWER IS IN THE AFFIRMATIVE A FURTHER QUESTION IS ASKED WHETHER IT WOULD BE NECESSARY TO MAKE ADJUSTMENTS AS OF THE TIME THE APPOINTMENTS WERE MADE OR PROSPECTIVELY FROM THE DATE OF OUR DECISION. TWO EXAMPLES SET OUT BELOW ARE STATED TO BE REPRESENTATIVE CASES: TABLE A. 1957 - TO STEP 6 OF LEVEL 4 WE NOTE THAT THE DUAL APPOINTMENTS WERE MADE SO THAT THE EMPLOYEES COULD BE PAID THE PROPER LEVEL OF COMPENSATION FOR THE WORK ACTUALLY PERFORMED AND TO AVOID CONSISTENTLY CHANGING THEM BACK AND FORTH. IT IS UNLIKELY THAT SIMILAR SITUATIONS WILL ARISE WITH ANY FREQUENCY IN THE POSTAL TRANSPORTATION SERVICE IN THE FUTURE. STEP-INCREASES FOR EMPLOYEES HOLDING DUAL APPOINTMENTS ARE GOVERNED BY SECTION 756.44 OF THE POSTAL MANUAL.

B-136175, JUN. 26, 1958

TO THE POSTMASTER GENERAL:

ON MAY 13, 1958, REFERENCE 800, THE DEPUTY POSTMASTER GENERAL REQUESTED OUR DECISION WHETHER CREDIT FOR SERVICE OF SUBSTITUTE EMPLOYEES IN PFS LEVEL 5, STEP 4, WHICH HAS NOT BEEN COUNTED TOWARD STEP-INCREASES IN LEVEL 5, AND CANNOT BE COUNTED SO LONG AS HE REMAINS A SUBSTITUTE IN THAT LEVEL AND STEP UNDER THE PROVISIONS OF 39 U.S.C. 981 (C), MAY BE COUNTED TOWARDS STEP-INCREASES IN LEVEL 4 UPON RECEIVING A DUAL APPOINTMENT IN LEVEL 4, UNDER THE PROVISIONS OF 39 U.S.C. 964 (A). IF OUR ANSWER IS IN THE AFFIRMATIVE A FURTHER QUESTION IS ASKED WHETHER IT WOULD BE NECESSARY TO MAKE ADJUSTMENTS AS OF THE TIME THE APPOINTMENTS WERE MADE OR PROSPECTIVELY FROM THE DATE OF OUR DECISION.

TWO EXAMPLES SET OUT BELOW ARE STATED TO BE REPRESENTATIVE CASES:

TABLE

A. HENDERSON J. COOKE - WASHINGTON, D.C. AIRPORT MAIL FACILITY.

STEP INCREASE - APRIL 7, 1956 - TO STEP 4 OF LEVEL 5

DUAL APPOINTMENT - NOV. 16, 1957 - TO STEP 6 OF LEVEL 4

B. ERNEST L. FAULKNER - WASHINGTON, D.C. TERMINAL

RECLASSIFIED - DEC. 3, 1955 - TO STEP 4 OF LEVEL 5

DUAL APPOINTMENT - NOV. 16, 1957 - TO STEP 6 OF LEVEL 4

WE NOTE THAT THE DUAL APPOINTMENTS WERE MADE SO THAT THE EMPLOYEES COULD BE PAID THE PROPER LEVEL OF COMPENSATION FOR THE WORK ACTUALLY PERFORMED AND TO AVOID CONSISTENTLY CHANGING THEM BACK AND FORTH, THUS ELIMINATING EXTENSIVE PAPER WORK AND THE POSSIBILITY OF OVERPAYMENTS. THE DEPUTY POSTMASTER GENERAL SAYS THAT IN VIEW OF PARAGRAPH III OF REGIONAL CIRCULAR NO. 346, DATED OCTOBER 7, 1957, PROVIDING FOR DUAL APPOINTMENTS FOR PTS SUBSTITUTE DISTRIBUTION CLERKS, IT IS UNLIKELY THAT SIMILAR SITUATIONS WILL ARISE WITH ANY FREQUENCY IN THE POSTAL TRANSPORTATION SERVICE IN THE FUTURE.

STEP-INCREASES FOR EMPLOYEES HOLDING DUAL APPOINTMENTS ARE GOVERNED BY SECTION 756.44 OF THE POSTAL MANUAL. THAT SECTION READS AS FOLLOWS:

"PERIODIC STEP-INCREASES FOR EMPLOYEES IN TWO OR MORE SEPARATE POSITIONS SHALL BE SEPARATELY EARNED ON THE BASIS OF TIME ON THE ROLLS IN EACH POSITION.'

UNDER THAT REGULATION ONE ADMINISTRATIVE VIEW HAS BEEN EXPRESSED THAT NEITHER EMPLOYEE IN THE EXAMPLES SET OUT ABOVE MAY BE ADVANCED TO STEP 7, LEVEL 4, UNTIL NOVEMBER 15, 1958, AS NONE OF THE LEVEL 5 SERVICE IS CREDITABLE TOWARDS A PERIODIC STEP-INCREASE IN LEVEL 4. BUT THE DEPUTY POSTMASTER GENERAL SAYS THAT SUCH RESULT WAS NOT INTENDED BY THAT REGULATION.

STEP-INCREASES FOR OTHER PTS SUBSTITUTES--- THOSE NOT GIVEN DUAL APPOINTMENTS--- ARE GOVERNED BY OTHER REGULATIONS IN THE POSTAL MANUAL. SECTION 753.320, PARAGRAPH C, READS, IN PERTINENT PART, AS FOLLOWS:

"A PTS SUBSTITUTE, PFS-5, WHO IS CHANGED TO A REGULAR POSITION IN PFS-5 SHALL BE PLACED IN THE STEP WHICH HE WOULD HAVE ATTAINED IF ALL OF HIS SERVICE IN PFS-5 HAD BEEN IN THE REGULAR PFS-5 POSITION. ANY PARTIAL CREDIT EARNED TOWARD THE NEXT STEP-INCREASE SHALL BE RETAINED. * * *"

SECTION 753.323, PARAGRAPH C, READS, IN PERTINENT PART, AS FOLLOWS:

"A PTS SUBSTITUTE EMPLOYEE, PFS-5, WHO IS ASSIGNED TO A POSITION IN PFS- 4, SHALL BE PLACED IN THE LOWEST STEP IN PFS-4 WHICH EXCEEDS HIS PREVIOUS SALARY, OR IN THE STEP WHICH HE WOULD HAVE RECEIVED IF ALL OF HIS SERVICE HAD BEEN PERFORMED IN THE PFS-4 POSITION, WHICHEVER IS HIGHER. ANY PARTIAL CREDIT EARNED TOWARD AN ADDITIONAL STEP-INCREASE SHALL BE RETAINED. * * *"

THE PROVISIONS OF THAT PARAGRAPH WERE APPLIED IN THE FOREGOING EXAMPLES.

CREDITABLE SERVICE FOR STEP-INCREASE PURPOSES APPLYING TO POSTAL EMPLOYEES GENERALLY IS CONTAINED IN SECTION 754.122 WHICH READS AS FOLLOWS:

"CREDIT TOWARD THE 52 WEEKS OF SERVICE MAY BE EARNED BY ANY EMPLOYEE IN THE POSTAL FIELD SERVICE. HOWEVER, SERVICE UNDER A TEMPORARY APPOINTMENT LIMITED IN DURATION TO 1 YEAR OR LESS SHALL NOT BE CREDITED UNLESS THE SERVICE IS CONTINUOUS TO THE DATE ON WHICH AN APPOINTMENT WITHOUT TIME LIMITATION IS RECEIVED. SERVICE PERFORMED BY A TEMPORARY CARRIER SERVING IN THE ABSENCE OF THE REGULAR CARRIER ON LEAVE WITHOUT PAY OR ON MILITARY LEAVE SHALL BE CREDITED IN THE SAME MANNER AS SERVICE PERFORMED BY THE REGULAR CARRIER. SERVICE RENDERED DURING THE PREVIOUS PERIOD OF POSTAL EMPLOYMENT, NOT IN EXCESS OF 52 WEEKS, SHALL BE ALLOWED AN EMPLOYEE WHO IS REINSTATED OR REAPPOINTED WITHIN 52 WEEKS OF THE DATE OF SEPARATION FROM THE POSTAL FIELD SERVICE, PROVIDED AN EQUIVALENT INCREASE IS NOT RECEIVED AT THE TIME OF REINSTATEMENT OR REAPPOINTMENT.' 39 U.S.C. 981 (A), READS IN PERTINENT PART, AS FOLLOWS:

"EXCEPT AS TO A SUBSTITUTE EMPLOYEE IN THE POSTAL TRANSPORTATION SERVICE WHOSE POSITION IS ALLOCATED TO SALARY LEVEL PFS-5 AS A DISTRIBUTION CLERK IN A RAILWAY OR HIGHWAY POST OFFICE, EACH EMPLOYEE WHOSE POSITION IS ALLOCATED TO THE RURAL CARRIER SCHEDULE, THE FOURTH CLASS OFFICE SCHEDULE, OR SALARY LEVEL PFS-9 OR A LOWER SALARY LEVEL OF THE POSTAL FIELD SERVICE SCHEDULE, WHO HAS NOT REACHED THE HIGHEST STEP FOR HIS POSITION, SHALL BE ADVANCED SUCCESSIVELY TO THE NEXT HIGHER STEP FOR HIS POSITION AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE COMPLETION OF EACH FIFTY- TWO CALENDAR WEEKS OF SATISFACTORY SERVICE, IF NO EQUIVALENT INCREASE IN BASIC SALARY FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD OF FIFTY-TWO CALENDAR WEEKS. * * *"

39 U.S.C. 982 READS AS FOLLOWS:

"EACH EMPLOYEE IN THE POSTAL FIELD SERVICE IS ELIGIBLE TO EARN STEP INCREASES IN ACCORDANCE WITH THIS CHAPTER. EXCEPT FOR TEMPORARY RURAL CARRIERS SERVING IN THE ABSENCE OF REGULAR RURAL CARRIERS ON LEAVE WITHOUT PAY OR ON MILITARY LEAVE, CREDIT SHALL NOT BE ALLOWED FOR TIME ON THE ROLLS UNDER A TEMPORARY APPOINTMENT FOR ONE YEAR OR LESS UNLESS SUCH TIME ON THE ROLLS IS CONTINUOUS TO THE DATE OF APPOINTMENT TO A POSITION OF UNLIMITED DURATION.'

REPORT NO. 728, HOUSE OF REPRESENTATIVES, 84TH CONGRESS, 1ST SESSION, PAGE 29, THIRD PARAGRAPH, READS:

"ALL SERVICE PERFORMED BY AN EMPLOYEE WHILE ON THE ROLLS IN THE POSTAL FIELD SERVICE WILL BE CREDITABLE SERVICE FOR PURPOSES OF SUCH STEP INCREASES, EXCEPT THAT NO CREDIT WILL BE ALLOWED FOR TIME ON THE ROLLS UNDER A TEMPORARY APPOINTMENT FOR 1 YEAR OR LESS UNLESS SUCH TIME ON THE ROLLS IS CONTINUOUS TO THE DATE OF THE APPOINTMENT OF THE EMPLOYEE TO A POSITION OF UNLIMITED DURATION.'

THE REGULATIONS COVERING EMPLOYEES WHO DO NOT HOLD DUAL APPOINTMENTS AUTHORIZE, IN EFFECT, THE CREDITING OF ALL SERVICE PERFORMED BY THEM WHILE ON THE ROLLS IN THE POSTAL FIELD SERVICE FOR THE PURPOSES OF PERIODIC STEP -INCREASES WHEN NO EQUIVALENT INCREASE IS RECEIVED FOR SUCH SERVICE, WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT.

WE BELIEVE THAT STANDING ALONE THE LITERAL LANGUAGE OF SECTION 756.44 QUOTED ABOVE PRECLUDES THE COUNTING, FOR STEP-INCREASE PURPOSES UPON DUAL EMPLOYMENT IN THE LEVEL 4, OF SERVICE IN LEVEL 5 WHICH HAS NOT BEEN CREDITED TOWARDS STEP-INCREASES IN LEVEL 5. BUT THE DEPUTY POSTMASTER GENERAL EXPLAINS THE PURPOSE OF THAT REGULATION IN THE FOLLOWING WORDS:

"THE PURPOSE OF ISSUING SECTION 756.44 WAS TO MAKE IT CLEAR THAT EACH OF THE POSITIONS WAS SEPARATE AND DISTINCT. IT WAS INTENDED TO PRECLUDE THE POSSIBILITY THAT IF, FOR EXAMPLE, A CLERK IN LEVEL 4, STEP 1 LATER RECEIVED A DUAL APPOINTMENT TO LEVEL 5, STEP 1, THE CLERK WOULD BE CONSIDERED AS HAVING RECEIVED AN "EQUIVALENT INCREASE" SO FAR AS STEP INCREASES IN LEVEL 4 WERE CONCERNED. IN THAT SITUATION, THE PURPOSE OF SECTION 756.44 WAS TO REQUIRE THE EMPLOYEE TO BE ADVANCED TO STEP 2 OF EACH LEVEL AFTER THE RESPECTIVE COMPLETION OF 52 WEEKS OF SATISFACTORY SERVICE IN EACH LEVEL. THE REGULATION WAS NOT INTENDED TO AFFECT OTHER REGULATIONS WHICH WOULD PERMIT THE CREDITING OF SERVICE PERFORMED IN THE FIRST POSITION TOWARDS STEP INCREASES IN THE SECOND POSITION WHEN THE EMPLOYEE DID NOT RECEIVE A SUM EQUAL TO OR GREATER THAN AN "EQUIVALENT INCREASE" UPON APPOINTMENT TO THE SECOND POSITION. IN THESE CASES, THE EMPLOYEES CLEARLY DID NOT RECEIVE A SUM EQUAL TO OR GREATER THAN AN "EQUIVALENT INCREASE" IN THEIR SECOND POSITION UPON BEING APPOINTED THERETO. THUS, IT IS OUR OPINION THAT SECTION 756.44 DOES NOT PRECLUDE THE CREDITING OF SERVICE IN LEVEL 5 TOWARDS STEP INCREASES IN LEVEL 4.'

SECTION 807 OF THE ACT AUTHORIZES THE POSTMASTER GENERAL "TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION" OF THE ACT.

IN SUPPORT OF THE ADJUSTMENTS BELIEVED PERMISSIBLE IN THIS CASE, THE DEPUTY POSTMASTER GENERAL SAYS THAT ALLOWING CREDIT WOULD---

"1. BE CONSISTENT WITH THE CONGRESSIONAL INTENT EXPRESSED IN SECTION 401 (A);

"2. WOULD NOT BE INCONSISTENT WITH SECTION 401 (C), BECAUSE SO LONG AS THE EMPLOYEES REMAIN SUBSTITUTES, THEY COULD NOT BE ADVANCED BEYOND STEP 4;

"3. BE CONSISTENT WITH WHAT OCCURS FROM THE APPLICATION OF THE "UP AND DOWN" RULE, AND,

"4. CONTRIBUTE TO EMPLOYEE MORALE AND AVOID RECOURSE TO LEGISLATION TO CORRECT THIS INEQUITABLE SITUATION.'

IN LIGHT OF THE EXPLANATION OF THE PURPOSE OF THE REGULATION IN QUESTION (SECTION 756.44) BY THE AUTHORITY WHICH ISSUED IT, AS WELL AS IN THE LIGHT OF THE OTHER REGULATIONS DISCLOSING NO PURPOSE WHATEVER IN SUBSTANTIALLY SIMILAR SITUATIONS TO PRECLUDE THE COUNTING, FOR STEP INCREASE PURPOSES UPON DUAL EMPLOYMENT IN LEVEL 4, OF SERVICE IN LEVEL 5 WHICH HAS NOT BEEN CREDITED TOWARDS STEP-INCREASES IN LEVEL 5, WE SEE NO COMPELLING REASON WHY CREDIT FOR SUCH SERVICE IN LEVEL 5 IN THE CASES OF MR. COOKE AND MR. FAULKNER AND OTHERS SIMILARLY SITUATED, MAY NOT BE GIVEN TOWARD STEP- INCREASES IN LEVEL 4. IN THE CIRCUMSTANCES SUCH ADJUSTMENTS MAY BE EFFECTED AS OF THE TIME THE DUAL APPOINTMENTS IN LEVEL 4 WERE MADE.

HOWEVER, SINCE THE LANGUAGE OF SECTION 756.44 DOES NOT CLEARLY SET FORTH ITS INTENDED PURPOSE, WE URGE THAT PROMPT STEPS BE TAKEN TO CLARIFY ITS PROVISIONS.