B-148024, MARCH 6, 1962, 41 COMP. GEN. 580

B-148024: Mar 6, 1962

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IS REDUCED IN SALARY STANDING AND WHO. " IS CONSTRUED AS REQUIRING AS A CONDITION PRECEDENT TO ENTITLEMENT THAT THE EMPLOYEE SERVE IN THE SAME SALARY RATE FROM WHICH REDUCED OR THE SAME AND A HIGHER RATE FOR A CONTINUOUS 2-YEAR PERIOD. RURAL CARRIERS WHO WERE REDUCED IN SALARY BY REASON OF A REDUCTION IN THE MILEAGE OF THEIR RURAL MAIL ROUTES BUT WHO HAD NOT SERVED THE LONGER ROUTES FOR WHICH A HIGHER SALARY RATE WAS RECEIVED FOR A CONTINUOUS 2-YEAR PERIOD PRIOR TO THE REDUCTION ARE NOT ENTITLED TO THE SAVED SALARY STANDING PROVIDED IN 39 U.S.C. 3650. WHICH WAS ENACTED BY SECTION 201 OF THE ACT OF SEPTEMBER 21. "WHICHEVER IS LATER. IS PROPOSED FOR PAYMENT UNDER THE PROVISIONS OF 39 U.S.C. 3560.

B-148024, MARCH 6, 1962, 41 COMP. GEN. 580

COMPENSATION - POSTAL SERVICE - DOWNGRADING - SAVED COMPENSATION - TWO YEAR REQUIREMENT--- COMPENSATION - POSTAL SERVICE - DOWNGRADING - SAVED COMPENSATION - EFFECTIVE DATE THE LANGUAGE OF THE POSTAL EMPLOYEE SALARY PROTECTION PROVISION IN 39 U.S.C. 3560 WHICH EXTENDS THE SAVED SALARY RATE TO EACH EMPLOYEE WHO, AFTER JULY 1, 1961, IS REDUCED IN SALARY STANDING AND WHO,"FOR TWO CONTINUOUS YEARS IMMEDIATELY PRIOR TO SUCH REDUCTION IN STANDING, SERVED IN THE POSTAL FIELD SERVICE WITH THE SAME SALARY STANDING OR WITH THE SAME AND HIGHER SALARY STANDING," IS CONSTRUED AS REQUIRING AS A CONDITION PRECEDENT TO ENTITLEMENT THAT THE EMPLOYEE SERVE IN THE SAME SALARY RATE FROM WHICH REDUCED OR THE SAME AND A HIGHER RATE FOR A CONTINUOUS 2-YEAR PERIOD; THEREFORE, RURAL CARRIERS WHO WERE REDUCED IN SALARY BY REASON OF A REDUCTION IN THE MILEAGE OF THEIR RURAL MAIL ROUTES BUT WHO HAD NOT SERVED THE LONGER ROUTES FOR WHICH A HIGHER SALARY RATE WAS RECEIVED FOR A CONTINUOUS 2-YEAR PERIOD PRIOR TO THE REDUCTION ARE NOT ENTITLED TO THE SAVED SALARY STANDING PROVIDED IN 39 U.S.C. 3650. UNDER 39 U.S.C. 3560 (B), WHICH WAS ENACTED BY SECTION 201 OF THE ACT OF SEPTEMBER 21, 1961, AND WHICH PROVIDES THAT POSTAL EMPLOYEES SHALL BE ENTITLED TO THE SAVED SALARY BENEFITS AS OF THE EFFECTIVE DATE OF THE REDUCTION OR AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT,"WHICHEVER IS LATER," RURAL CARRIERS WHO HAD THEIR ROUTES REDUCED IN LENGTH ON SEPTEMBER 16, 1961, AND ON JULY 8, 1961, DO NOT COME WITHIN THE PURVIEW OF SECTION 3560 FOR ENTITLEMENT TO RETROACTIVE PAY ADJUSTMENTS.

TO LEROY P. AFDEM, POST OFFICE DEPARTMENT, MARCH 6, 1962:

YOUR LETTER OF JANUARY 23, 1962, FILE AIR:LPA:AMQ, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY THE ENCLOSED VOUCHER WHICH, WE UNDERSTAND, IS PROPOSED FOR PAYMENT UNDER THE PROVISIONS OF 39 U.S.C. 3560, ENACTED BY SECTION 201 OF PUBLIC LAW 87-270, APPROVED SEPTEMBER 21, 1961, 75 STAT. 569. THE AMOUNTS ON THE VOUCHER REPRESENT "SAVED RATE" ADJUSTMENTS WHICH, IN EFFECT, WOULD RETAIN FOR TWO RURAL CARRIERS THE BASIC SALARIES TO WHICH THEY WERE ENTITLED IMMEDIATELY PRIOR TO THE REDUCTIONS IN LENGTH OF THEIR RURAL ROUTES.

YOUR LETTER PRESENTS THE CASE AS FOLLOWS:

MR. BAILEY'S RURAL ROUTE WAS 66.50 MILES AND HE WAS PAID AT THE RATE OF $4923 PER ANNUM (STEP-3) ON SEPTEMBER 16, 1959. DUE TO THE GROWTH OF THE COMMUNITY AND A NEED FOR SERVING ADDITIONAL PATRONS HIS ROUTE WAS EXTENDED TO 70.60 MILES (STEP-3, $5033 PER ANNUM) EFFECTIVE MAY 14, 1960 AND TO 71.70 MILES (STEP-4, $5608 PER ANNUM) EFFECTIVE APRIL 29, 1961. DUE TO CONTINUED GROWTH OF THE COMMUNITY AND TO SERVE THE PATRONS MORE EFFICIENTLY, IT WAS NECESSARY TO ESTABLISH A NEW ROUTE ON SEPTEMBER 16, 1961 AND AS A RESULT MR. BAILEY'S ROUTE WAS CHANGED TO 64.23 MILES AND HIS SALARY WAS SET AT $5555 PER ANNUM, EFFECTIVE SEPTEMBER 16, 1961.

MR. VAUGHT'S ROUTE WAS 58.55 MILES AND HE WAS PAID AT THE RATE OF $4769 PER ANNUM (STEP-3) ON JULY 8, 1959. HIS ROUTE WAS EXTENDED 59.55 MILES (STEP-4) AND HE WAS PAID AT THE RATE OF $5320 EFFECTIVE AUGUST 20, 1960. ON JULY 8, 1961 A NEW ROUTE WAS ESTABLISHED AND HIS ROUTE WAS REDUCED TO 47.15 MILES, $5147 PER ANNUM.

UNDER THE PROVISIONS OF PUBLIC LAW 87-270, APPROVED SEPTEMBER 21, 1961, THEIR SALARIES WERE CORRECTED TO SHOW SAVED RATES FOR 66.50 MILES, $5603 PER ANNUM, EFFECTIVE SEPTEMBER 16, 1961 AND 58.55 MILES, $5435 PER ANNUM, EFFECTIVE JULY 8, 1961. DURING THE ENTIRE TWO-YEAR PERIOD THEIR ROUTES HAD BEEN 66.50 MILES AND 58.55 MILES OR MORE. THEY WERE NOT, HOWEVER, PAID AT THOSE RATES. IT WAS THOUGHT THAT SEC. 3560 (B) (4) OF THE ACT MAY REQUIRE TWO YEARS OF SERVICE AT 71.70 MILES AND 59.55 MILES OR MORE (THE NUMBER OF MILES FOR WHICH THEY WERE PAID IMMEDIATELY PRIOR TO REDUCTION). IF THIS INTERPRETATION PREVAILS, ALMOST ALL RURAL CARRIERS WILL BE EXCLUDED FROM THE BENEFITS OF PUBLIC LAW 87-270, SINCE IT IS ONLY NECESSARY TO REDUCE RAPIDLY EXPANDING AND OVERBURDENED ROUTES.

39 U.S.C. 3560 PROVIDES PROTECTION OF "RATE OF BASIC SALARY" FOR THE VARIOUS CLASSES OF POSTAL EMPLOYEES DESCRIBED IN SUBSECTION 3560 (A), INCLUDING "SALARY FOR THE PARTICULAR ROUTE * * * WITH RESPECT TO THE RURAL CARRIER SCHEDULE.' THAT SCHEDULE IN 39 U.S.C. 3543 (A) PRESCRIBES THE "BASIC SALARY" OF CARRIERS IN RURAL DELIVERY SERVICE. HOWEVER, IN ORDER TO DETERMINE THE VALIDITY OF THE VOUCHER SUBMITTED BY YOU, WE FIRST MUST DISPOSE OF TWO FUNDAMENTAL QUESTIONS, NAMELY, (1) WHETHER THE ABOVE-QUOTED FACTS BRING THESE CASES WITHIN THE EXPRESS TERMS AND CRITERIA OF THE SAVINGS ACT, AND (2) IF SO, WHAT IS THE EFFECTIVE DATE OF AN EMPLOYEE'S ENTITLEMENT ON WHICH THE LAW PERMITS THE POST OFFICE DEPARTMENT TO BEGIN PAYMENT OF A BASIC SALARY RATE SAVED UNDER THE ACT.

CONCERNING THE FIRST QUESTION, THE PROTECTION AFFORDED BY SECTION 3560, SO FAR AS PERTINENT HERE, EXTENDS TO EACH EMPLOYEE WHO ON OR AFTER JULY 1, 1961, IS OR WAS REDUCED IN SALARY STANDING, AND "/4) WHO, FOR TWO CONTINUOUS YEARS IMMEDIATELY PRIOR TO SUCH REDUCTION IN SALARY STANDING, SERVED IN THE POSTAL FIELD SERVICE WITH THE SAME SALARY STANDING OR WITH THE SAME AND HIGHER SALARY STANDING.' THE LEGISLATIVE HISTORY OF THAT LANGUAGE SHOWS IT WAS PATTERNED ON A SIMILAR PROVISION PERTAINING TO EMPLOYEES COMPENSATED UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1107 (A) (4) (B). THE LATTER PROVISION REQUIRES 2 CONTINUOUS YEARS OF SERVICE "IN THE SAME GRADE OR IN THE SAME AND HIGHER GRADES.' OUR VIEW IS THAT IN THE LATTER STATUTE'S ALTERNATIVE WORDING "THE SAME GRADE" MEANS THE SALARY RATE OF THE GRADE HELD BY THE EMPLOYEE AT THE TIME OF THE REDUCTION IN GRADE, AND THAT THE WORDS "AND HIGHER GRADES" REFER TO SERVICE IN ANY HIGHER GRADES HELD DURING THE CONTINUOUS 2-YEAR PERIOD, SUCH HIGHER GRADE SERVICE HAVING PRECEDED THE SERVICE IN THE GRADE FROM WHICH THE EMPLOYEE LAST IS DOWNGRADED SUBJECT TO THE BENEFITS OF THAT ACT. SEE B-104080, DECEMBER 2, 1959; COMPARE B-132580, SEPTEMBER 10, 1957, AND B-132024, JUNE 19, 1957, COPIES OF WHICH ARE ENCLOSED. THE CONCLUSION REACHED IN THOSE DECISIONS REGARDING THE "TWO CONTINUOUS YEARS" IS APPLICABLE ALSO TO THE CASES YOU DESCRIBE.

THEREFORE, BASED UPON THE ABOVE PROVISIONS OF 39 U.S.C. 3560 THE SO CALLED CORRECTED, OR SAVED RATES, TO WHICH YOU REFER WOULD NOT BE DUE THESE RURAL CARRIERS UNDER THE FACTS YOU GIVE, AND OUR ANSWER TO THE ABOVE -STATED QUESTION (1) IS IN THE NEGATIVE.

REGARDING THE SECOND QUESTION, THE UNNUMBERED CLAUSES OF SUBSECTION 3560 (B) PROVIDE AN EMPLOYEE SHALL BE ENTITLED TO RECEIVE THE RATE OF BASIC SALARY TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN SALARY STANDING "AS OF THE EFFECTIVE DATE OF SUCH REDUCTION * * * OR AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THIS SECTION, WHICHEVER IS LATER * * *.' ( ITALICS SUPPLIED.) THUS, EVEN IF THE CASES OTHERWISE WERE WITHIN THE PURVIEW OF SECTION 3560, RETROACTIVE PAY ADJUSTMENTS FOR THE PERIODS PROPOSED WOULD NOT BE AUTHORIZED.

THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.

AS TO OUR DECISION, 29 COMP. GEN. 257, REFERRED TO IN THE LAST PARAGRAPH OF YOUR LETTER (NOT QUOTED ABOVE), PUBLIC LAW 87-270, AS WELL AS ITS LEGISLATIVE HISTORY, REVEALS THAT THE 2-YEAR SERVICE REQUIREMENT IS SUCH A BASIC CONDITION TO ENTITLEMENT TO THE BENEFITS OF THE STATUTE, THAT WE ARE WITHOUT AUTHORITY TO READ IT OUT OF THE LAW BECAUSE OF CONDITIONS PECULIAR TO ONE BRANCH OF THE POSTAL FIELD SERVICE. OUR VIEW AS TO THE 2-YEAR RESTRICTION CONSISTENTLY HAS BEEN AS STATED ABOVE.