B-138999, FEBRUARY 1, 1962, 41 COMP. GEN. 497

B-138999: Feb 1, 1962

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1962: DURING THE REVIEW OF YOUR DEPARTMENT'S REGIONAL PAYROLL OPERATIONS BY OUR CIVIL ACCOUNTING AND AUDITING DIVISION A QUESTION WAS RAISED CONCERNING THE LEGALITY OF SECTION 756.542A (4) (B) OF THE POSTAL MANUAL. AS FOLLOWS: AN EMPLOYEE WHO HAS ONCE ESTABLISHED ELIGIBILITY FOR HIGHER LEVEL COMPENSATION IS NOT REQUIRED TO REQUALIFY YEAR AFTER YEAR. AN EMPLOYEE IS ASSIGNED FOR MORE THAN THIRTY DAYS IN A CALENDAR YEAR TO DUTIES AND RESPONSIBILITIES OF A SALARY LEVEL WHICH IS HIGHER THAN THE SALARY LEVEL TO WHICH HIS POSITION IS ASSIGNED. REQUESTED THE COMMENTS OF YOUR GENERAL COUNSEL CONCERNING THE REGULATION WHICH SAYS THAT THE EMPLOYEE "IS NOT REQUIRED TO REQUALIFY YEAR AFTER YEAR" TO RECEIVE THE BENEFITS OF THE STATUTE JUST QUOTED.

B-138999, FEBRUARY 1, 1962, 41 COMP. GEN. 497

COMPENSATION - POSTAL SERVICE - HIGHER SALARY LEVEL ASSIGNMENTS A POSTAL PAY REGULATION WHICH PERMITS THE IMMEDIATE COMMENCEMENT OF HIGHER LEVEL PAY TO POSTAL EMPLOYEES ON THE BASIS OF SERVICE QUALIFICATION IN A PRECEDING YEAR WITHOUT REGARD TO THE SPECIFIC REQUIREMENT IN 39 U.S.C. 3335 (B) THAT THE EMPLOYEES MUST PERFORM 30 DAYS OF HIGHER LEVEL SERVICE IN EACH CALENDAR YEAR BEFORE ENTITLEMENT TO HIGHER LEVEL PAY FOR SUCH SERVICE BEYOND 30 DAYS MUST BE REGARDED AS CONTRARY TO LAW AND, THEREFORE, INVALID.

TO THE POSTMASTER GENERAL, FEBRUARY 1, 1962:

DURING THE REVIEW OF YOUR DEPARTMENT'S REGIONAL PAYROLL OPERATIONS BY OUR CIVIL ACCOUNTING AND AUDITING DIVISION A QUESTION WAS RAISED CONCERNING THE LEGALITY OF SECTION 756.542A (4) (B) OF THE POSTAL MANUAL, AS AMENDED, EFFECTIVE OCTOBER 7, 1960, WHICH READS, AS FOLLOWS:

AN EMPLOYEE WHO HAS ONCE ESTABLISHED ELIGIBILITY FOR HIGHER LEVEL COMPENSATION IS NOT REQUIRED TO REQUALIFY YEAR AFTER YEAR. SO LONG AS HE RECEIVED COMPENSATION IN THE PRECEDING CALENDAR YEAR FOR SERVICE IN A LEVEL ABOVE THE CURRENT LEVEL OF HIS POSITION, HE SHALL BE PAID FOR ALL HIGHER LEVEL SERVICE PERFORMED IN THE THEN CURRENT CALENDAR YEAR.

SECTION 204 (B), POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, PUBLIC LAW 68, 69 STAT. 117, 39 U.S.C. 3335 (B), THE APPLICABLE STATUTORY PROVISION, READS AS FOLLOWS:

(B) AS THE NEEDS OF THE SERVICE REQUIRE, THE POSTMASTER GENERAL MAY ASSIGN AN EMPLOYEE FROM TIME TO TIME TO PERFORM, WITHOUT CHANGE IN COMPENSATION, DUTIES, AND RESPONSIBILITIES, OTHER THAN THE DUTIES AND RESPONSIBILITIES SPECIFICALLY SET FORTH IN HIS POSITION DESCRIPTION. AN EMPLOYEE IS ASSIGNED FOR MORE THAN THIRTY DAYS IN A 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 3573 OF THIS TITLE, THE POSTMASTER GENERAL SHALL PAY FOR THE PERIOD OF HIS ASSIGNMENT IN EXCESS OF THIRTY DAYS, A BASIC SALARY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3559 OF THIS TITLE.

OUR CIVIL ACCOUNTING AND AUDITING DIVISION ON JUNE 30, 1961, REQUESTED THE COMMENTS OF YOUR GENERAL COUNSEL CONCERNING THE REGULATION WHICH SAYS THAT THE EMPLOYEE "IS NOT REQUIRED TO REQUALIFY YEAR AFTER YEAR" TO RECEIVE THE BENEFITS OF THE STATUTE JUST QUOTED. ON JULY 31, REFERENCE 58 -F-5, HE DIRECTED ATTENTION TO THE FACT THAT NOTHING IN THE LEGISLATIVE HISTORY "STATES THAT THE POSTMASTER GENERAL COULD NOT, IN HIS DISCRETION, IMMEDIATELY COMMENCE PAYMENT FOR THE PERFORMANCE OF HIGHER LEVEL SERVICE.' HE SAYS THE HEARINGS, HOUSE REPORT NO. 728, AND THE LANGUAGE OF SECTION 204 (B) SIMPLY IMPOSE A CEILING ON THE AMOUNT OF HIGHER LEVEL SERVICE THAT CAN BE REQUIRED WITHOUT THE PAYMENT OF HIGHER COMPENSATION. HE FURTHER SAYS THAT NEITHER THE HEARINGS NOR HOUSE REPORT NO. 728 NOR THE LANGUAGE OF SECTION 204 (B) IMPOSE A REQUIREMENT THAT THE EMPLOYEE MUST PERFORM A MINIMUM OF 30 CALENDAR DAYS SERVICE PER CALENDAR YEAR BEFORE HE MAY BE PAID HIGHER COMPENSATION. HE POINTS OUT THAT BASED UPON HIS EXPRESSED VIEWS, AND IN VIEW OF THE LANGUAGE OF SECTION 807 OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, 69 STAT. 130, 39 U.S.C. 501, AUTHORIZING THE POSTMASTER GENERAL TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION OF THE ACT, SECTION 756.542A (4) (B), QUOTED ABOVE, WAS ISSUED.

SECTION 204 (B) REQUIRES HIGHER LEVEL PAY FOR ALL HIGHER LEVEL SERVICE PERFORMED IN A CALENDAR YEAR IN EXCESS OF 30 DAYS. THE LANGUAGE OF THE STATUTE IS CLEAR AND UNAMBIGUOUS AND IN OUR OPINION THE LEGISLATIVE HISTORY SEEMS CLEARLY TO SUPPORT THE PROPOSITION THAT THE TERM "IN A CALENDAR YEAR" WAS INTENDED TO PROVIDE A SMALL PERIOD IN EACH YEAR DURING WHICH AN EMPLOYEE'S SERVICES COULD BE USED IN A HIGHER GRADE POSITION WITHOUT THE REQUIREMENT OF ADJUSTING HIS PAY TO THE HIGHER RATE. THUS, ON PAGE 19, HOUSE REPORT NO. 728, 84TH CONGRESS, ACCOMPANYING S. 2061, WHICH BILL, UPON ENACTMENT, BECAME THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, PUBLIC LAW 68, CONCERNING SECTION 204 (B), IT IS POINTED OUT THAT AN EMPLOYEE PERFORMING HIGHER LEVEL DUTIES FOR MORE THAN 30 DAYS IN ANY ONE CALENDAR YEAR WILL BE PAID FOR EACH DAY OVER 30 DURING THE YEAR HE WORKS IN A HIGHER LEVEL POSITION AT THE HIGHER LEVEL SALARY. WE HAVE NOT FOUND ANY OTHER APPLICABLE STATUTORY PROVISION, NOR HAS ONE BEEN POINTED OUT TO US, WHICH AUTHORIZES THE POSTMASTER GENERAL TO COMMENCE HIGHER LEVEL PAY UNTIL THE EMPLOYEE HAS PERFORMED 30 DAYS OF HIGHER LEVEL SERVICE IN THE CALENDAR YEAR. OUR OPINION IS THAT SECTION 807, ABOVE, MAY NOT BE USED AS A BASIS FOR AUTHORIZING THE HIGHER LEVEL PAY AND, EXCEPT FOR THE PROVISIONS OF SECTION 204 (B), WE ARE NOT AWARE OF ANY AUTHORITY FOR THE PAYMENT OF HIGHER LEVEL PAY. WITHOUT THE PROVISIONS OF SECTION 204 (B) POSTAL EMPLOYEES ASSIGNED TO HIGHER LEVEL SERVICE WOULD HAVE TO BE CONSIDERED AS ON DETAIL OR ASSIGNMENT AND UNDER A WELL-ESTABLISHED RULE WOULD BE ENTITLED ONLY TO THE COMPENSATION OF THEIR REGULAR POSITIONS, I.E., THE LOWER LEVEL POSITIONS TO WHICH THEY WERE APPOINTED. 33 COMP. GEN. 96, 97 AND CASES CITED; 24 ID. 816, 818. ALSO, SEE ARTHUR PRICE V. UNITED STATES, 112 CT. CL. 198, 80 F.1SUPP. 542; COLEMAN V. UNITED STATES, 100 CT. CL. 41; DVORKIN V. UNITED STATES, 101 CT. CL. 296; ARTHUR W. AMUNDSON, ET AL. V. UNITED STATES, 128 CT. CL. 80, 120 F.1SUPP. 201.

WE ARE OF THE OPINION THAT THE CLEAR LANGUAGE OF THE STATUTE REQUIRES THAT A POSTAL EMPLOYEE MUST PERFORM 30 DAYS OF HIGHER LEVEL SERVICE EACH CALENDAR YEAR BEFORE HE IS ENTITLED TO HIGHER LEVEL PAY FOR THE DAYS IN EXCESS THEREOF. HENCE, SINCE THE LANGUAGE OF SECTION 756.542A (4) (B), QUOTED ABOVE, DOES NOT SO PROVIDE THE SECTION DOES NOT CONFORM WITH SECTION 204 (B) OF THE CITED STATUTE AND IS, THEREFORE, INVALID. PROMPT STEPS SHOULD BE TAKEN TO REVISE THAT SECTION TO CONFORM HEREWITH.