B-147339, NOV. 24, 1961

B-147339, NOV. 24, 1961

TO MR. WILLIAM E. PRICE, DIRECTOR OF RESEARCH AND EDUCATION, UNITED FEDERATION OF POSTAL CLERKS:

IN YOUR LETTER OF OCTOBER 30, REPLYING TO OUR LETTER OF OCTOBER 16, 1961, YOU SAY CONCERNING THE CLAIM OF MR. CHARLES C. OLCZAK THAT, THE NATIONAL POSTAL TRANSPORT ASSOCIATION HAS MERGED WITH THE UNITED FEDERATION OF POSTAL CLERKS WHICH HAS TAKEN OVER "ALL DUTIES OF THE NPTA," AND THAT IN YOUR NEW POSITION YOU ARE STILL HANDLING THE AFFAIRS OF THE FORMER ASSOCIATION UNTIL COMPLETED.

IN THE LIGHT OF THE RULES OF LAW APPLICABLE TO A POWER OF ATTORNEY WE HAVE SUBSTANTIAL DOUBT THAT SUCH AN AUTHORITY--- EVEN THE "FULL AND WHOLE POWER AND AUTHORITY" GIVEN BY MR. CHARLES C. OLCZAK EXPRESSLY TO THE FORMER ASSOCIATION--- LAWFULLY MAY BE EXTENDED OR TRANSFERRED BY THAT ASSOCIATION TO AN INDIVIDUAL PERSON, OR IS MERGED INTO DUTIES OF THE FEDERATION AS IMPLIED IN YOUR LETTER. HOWEVER, WE HAVE REVIEWED OUR SETTLEMENT OF MAY 1, 1961, WHICH DISALLOWED THE CLAIM DATED JANUARY 26, 1961, IN BEHALF OF MR. CHARLES C. OLCZAK, AS PRESENTED BY MR. CHARLES D. SHERWIN AS VICE PRESIDENT OF THE NATIONAL POSTAL TRANSPORT ASSOCIATION.

AS INDICATED IN OUR LETTER OF OCTOBER 16, 1961, TO YOU, MR. OLCZAK HELD ONLY A PROBATIONAL APPOINTMENT AS DISTRIBUTION CLERK PRIOR TO MARCH 10, 1960, FROM WHICH PROBATIONAL POSITION HE WAS SEPARATED ON THAT DATE AND TO WHICH HE WAS RESTORED OCTOBER 25, 1960. SEE 5 U.S.C. 633 (2) 4. BOTH THE SEPARATION AND THE RESTORATION OF MR. OLCZAK WERE EFFECTED BY VIRTUE OF DECISIONS OF THE CIVIL SERVICE COMMISSION. REGARDLESS OF THE REASONS FOR THE COMMISSION'S ACTIONS, THE PROVISIONS OF THE BACK PAY STATUTE, 5 U.S.C. 652 (A) AND (B) (1), APPLY ONLY TO A "PERSON IN THE CLASSIFIED CIVIL SERVICE," AS DEFINED IN 5 U.S.C. 658 AND IN THE COMMISSION'S REGULATIONS 5 C.F.R. 1.102 (F) AND (G). ALSO, SEE THE RULES AND REGULATIONS UNDER 5 C.F.R. 05.2, 2.106 (A) (2) AND (8), AND 2.107 (C); (D) AND (E); COMPARE 2.107 (F). THEREFORE, AS YOU WERE ADVISED ON OCTOBER 16, UNDER THE CITED RULES AND REGULATIONS, AND AS A MATTER OF LAW, WE ARE UNABLE TO REACH A CONCLUSION OTHER THAN THAT NO PROVISION OF 5 U.S.C. 863 OR 652 IS APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF MR. OLCZAK'S SEPARATION. SEE NADELHAFT V. UNITED STATES, 132 CT.CL. 316 AND BANDER V. UNITED STATES, 141 ID. 373. THUS, WE FIND NO BASIS FOR PAYMENT OF THE COMPENSATION CLAIMED FOR THE PERIOD MARCH 10 TO OCTOBER 25, 1960.

IN THE CIRCUMSTANCES, AND FOR THE REASONS STATED ABOVE, THE SETTLEMENT OF MAY 1, 1961, DISALLOWING THE CLAIM IN BEHALF OF MR. OLCZAK MUST BE, AND IS, SUSTAINED.