B-149500, AUGUST 9, 1962, 42 COMP. GEN. 100

B-149500, AUGUST 9, 1962, 42 COMP. GEN. 100

COMPENSATION - POSTAL SERVICE - DOWNGRADING - SAVED COMPENSATION - SERVICE ABOVE 16 LEVEL. COMPENSATION - POSTAL SERVICE - DOWNGRADING - SAVED COMPENSATION - OTHER THAN IN POSTAL SERVICE. COMPENSATION - DOWNGRADING - SAVED COMPENSATION - SERVICE IN OTHER THAN CLASSIFICATION ACT POSITIONS. A POSTAL FIELD SERVICE EMPLOYEE WHO SERVED IN PFS LEVEL 20 BEFORE HE WAS TRANSFERRED TO ANOTHER OFFICE AT LEVEL 15 FROM WHICH POSITION HE WAS REDUCED TO LEVEL 14 IS PRECLUDED BY REASON OF THE DEFINITION OF "SALARY STANDING" IN 39 U.S.C. 3560 (A) (1), WHICH EXCLUDES SALARY LEVELS 17 THROUGH 20, FROM HAVING THE SERVICE IN LEVEL 20 COUNTED TOWARD THE 2 CONTINUOUS YEARS' SERVICE WITH THE SAME OR HIGHER SALARY STANDING AS REQUIRED IN 39 U.S.C. 3560 (B) (4) FOR ELIGIBILITY FOR SALARY RETENTION. AN EMPLOYEE WHO, AFTER A VOLUNTARY TRANSFER WITHOUT A BREAK IN SERVICE FROM A CLASSIFICATION ACT POSITION UNDER WHICH HE HAD SALARY RETENTION RIGHTS TO THE POSTAL SERVICE, IS REDUCED IN SALARY IN HIS POSTAL FIELD SERVICE POSITION AFTER THE EFFECTIVE DATE OF THE SALARY RETENTION BENEFITS APPLICABLE TO POSTAL EMPLOYEES IN 39 U.S.C. 3560 IS PRECLUDED FROM HAVING HIS SERVICE IN THE CLASSIFICATION ACT POSITION COUNTED TOWARD THE 2 CONTINUOUS YEARS OF SERVICE REQUIREMENT FOR SALARY RETENTION ELIGIBILITY IN VIEW OF THE SPECIFIC LANGUAGE IN 39 U.S.C. 3560 (B) (4) REQUIRING 2 CONTINUOUS YEARS OF SERVICE "IN THE POSTAL FIELD SERVICE" AND OF THE DEFINITION "SALARY STANDING" IN 39 U.S.C. 3560 (A) (1) WHICH EXCLUDES THE SALARY AND GRADE OF A CLASSIFICATION ACT POSITION. AN EMPLOYEE WHO, AFTER A VOLUNTARY TRANSFER WITHOUT A BREAK IN SERVICE FROM A POSTAL FIELD SERVICE POSITION TO A CLASSIFICATION ACT POSITION IS REDUCED IN GRADE MAY NOT HAVE THE TIME IN THE POSTAL FIELD SERVICE POSITION COUNTED TOWARD THE 2 YEARS' CONTINUOUS SERVICE IN THE SAME OR HIGHER GRADE AS A CONDITION OF ELIGIBILITY FOR SALARY RETENTION UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1107, IN VIEW OF THE TERMS "GRADE" OR "GRADES" USED IN SECTION 507 (A) (4), WHICH ARE USED IN CONNECTION WITH CLASSIFICATION ACT POSITIONS RATHER THAN POSITIONS IN THE POSTAL FIELD SERVICE.

TO THE POSTMASTER GENERAL, AUGUST 9, 1962:

ON JULY 19, 1962, YOU REQUESTED OUR DECISION CONCERNING THE SALARY RETENTION RIGHTS OF MR. LEROY GREENE, A POSTAL FIELD SERVICE OFFICER PRESENTLY EMPLOYED IN THE ATLANTA REGION.

THE SALARY RETENTION RIGHTS OF EMPLOYEES OF THE POSTAL FIELD SERVICE ARE SET FORTH IN 39 U.S.C. 3560, WHICH READS, IN PART, AS FOLLOWS:

(A) AS USED IN THIS SECTION, THE TERM "SALARY STANDING" MEANS---

(1) BASIC SALARY AND SALARY LEVEL, WITH RESPECT TO THE POSTAL FIELD SERVICE SCHEDULE (EXCLUDING SALARY LEVELS PFS 17, 19, 19, AND 20),

(B) SUBJECT TO THE PROVISIONS OF SUBSECTION (C) OF THIS SECTION, EACH EMPLOYEE---

(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, SERVED IN THE POSTAL FIELD SERVICE WITH THE SAME SALARY STANDING OR WITH THE SAME AND HIGHER SALARY STANDING; AND

SHALL BE ENTITLED * * *.

THE PERTINENT FACTS IN MR. GREENE'S CASE ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

ON NOVEMBER 24, 1958, MR. GREENE WAS APPOINTED REGIONAL OPERATIONS DIRECTOR, PHILADELPHIA, PFS LEVEL 20. THEREAFTER, ON APRIL 1, 1961, HE WAS TRANSFERRED TO THE ATLANTA REGION AS SENIOR FIELD SERVICE OFFICER, PFS LEVEL 15, AND FINALLY WAS ASSIGNED TO THE POSITION OF POSTAL FIELD SERVICE OFFICER, PFS LEVEL 14.

THE BASIC QUESTION IN MR. GREENE'S CASE IS WHETHER THE TIME SERVED IN LEVEL 20 MAY BE COUNTED IN COMPUTING THE "TWO CONTINUOUS YEARS" SERVICE WITH THE "SAME SALARY STANDING OR WITH THE SAME AND HIGHER SALARY STANDING" AS REQUIRED BY SUBSECTION (B) (4) (QUOTED ABOVE, AS A CONDITION OF ELIGIBILITY FOR SALARY RETENTION).

SINCE THE TERM "SALARY STANDING" IS DEFINED SPECIFICALLY TO EXCLUDE SALARY LEVELS 17, 18, 19, AND 20, THERE IS NO LEGAL BASIS FOR CONSTRUING SUCH TERM TO INCLUDE ANY LEVEL ABOVE PFS LEVEL 16. IT FOLLOWS THAT THE TIME SERVED BY MR. GREENE IN PFS 20 MAY NOT BE COUNTED TOWARD THE 2 CONTINUOUS YEARS' SERVICE WITH THE SAME OR HIGHER SALARY STANDING AS REQUIRED BY SUBSECTION (B) (4) AS A CONDITION OF ELIGIBILITY FOR SALARY RETENTION.

THE SECOND MATTER UPON WHICH YOU REQUEST OUR DECISION IS SET FORTH IN YOUR LETTER AS FOLLOWS:

WE HAVE ALSO FOR CONSIDERATION THE QUESTION WHETHER CREDIT MAY BE GIVEN FOR SERVICE IN GS SCHEDULES WHEN TRANSFERS ARE MADE WITHOUT A BREAK IN SERVICE TO POSITIONS IN THE POSTAL FIELD SERVICE SCHEDULES OR VICE VERSA. THE EMPLOYEE VOLUNTARILY TRANSFERRED PRIOR TO THE EFFECTIVE DATE OF SECTION 3560 OF TITLE 39 AND HE WAS REDUCED SOME MONTHS AFTER ITS EFFECTIVE DATE. AT THE TIME OF HIS TRANSFER TO THE POSTAL FIELD SERVICE HE WAS ENTITLED TO THE BENEFITS OF SECTION 1107 OF TITLE 5, UNITED STATES CODE. IF HIS TIME UNDER THE CLASSIFICATION ACT COULD BE ADDED TO HIS SERVICE IN THE POSTAL FIELD SERVICE, HE WOULD BE ENTITLED TO THE BENEFITS OF SECTION 3560.

UNDER SUBSECTION (B) (4) OF 39 U.S.C. 3560 THE "TWO CONTINUOUS YEARS" SERVICE MUST BE "SERVED IN THE POSTAL FIELD SERVICE" AND NOT IN A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071, ET SEQ. MOREOVER, THE TERM "SALARY STANDING" AS DEFINED IN 39 U.S.C. 3560, CLEARLY EXCLUDES THE SALARY AND GRADE OF A CLASSIFICATION ACT POSITION. ACCORDINGLY, WE FIND NO BASIS FOR COUNTING TIME SERVED IN A CLASSIFICATION ACT POSITION TOWARD THE "TWO CONTINUOUS YEARS" PF SERVICE REQUIRED UNDER SUBSECTION (B) (4) OF 39 U.S.C. 3560.

SIMILARLY, WE FIND NO AUTHORITY IN SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, WHICH WOULD PERMIT COUNTING TIME SERVED IN A POSTAL FIELD SERVICE POSITION TOWARD THE 2 YEARS CONTINUOUS SERVICE IN THE SAME OR HIGHER GRADE AS A CONDITION OF ELIGIBILITY FOR SALARY RETENTION UNDER THAT SECTION--- SECTION 507. OUR VIEW IS THAT THE LANGUAGE "SAME GRADE OR IN THE SAME AND HIGHER GRADE" APPEARING IN SUBSECTION (A) (4) OF SECTION 507 REFERS ONLY TO "GRADE" OR ,GRADES" UNDER THE CLASSIFICATION ACT.