B-161021, APR. 3, 1967

B-161021: Apr 3, 1967

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YOUR REQUEST FOR REVIEW IS MADE ON BEHALF OF MR. SHAFFER ALLEGED THAT DURING SUCH PERIOD HE WAS ASSIGNED TO PERFORM THE HIGHER LEVEL DUTIES OF A MAIL-FLO MECHANIC (LEVEL 5). THE APPEAL WAS NOT ACCEPTED FOR THE REASON THAT IT WAS NOT TIMELY FILED. SHAFFER THAT HIS CLAIM WAS DISALLOWED FOR THE REASONS THAT "/1) YOUR DETAIL DURING THE PERIOD MENTIONED BY YOU WAS NOT TO A HIGHER LEVEL POSITION WHICH HAD BEEN ESTABLISHED. RANKED AND APPROVED FOR USE BY ANY AUTHORIZED POSTAL OFFICIAL. (2) NO EVIDENCE OF ANY MANAGEMENT DIRECTIVES WAS PRODUCED TO AUTHENTICATE THAT A HIGHER LEVEL DETAIL WAS INTENDED.'. SHAFFER'S CLAIM ARE CONTAINED IN 39 U.S.C. 3335 (B) AS FOLLOWS: "AS THE NEEDS OF THE SERVICE REQUIRE.

B-161021, APR. 3, 1967

TO MR. SIDNEY A. GOODMAN, PRESIDENT:

THIS REFERS TO YOUR LETTER OF FEBRUARY 15, 1967, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED JANUARY 30, 1967, WHICH DISALLOWED THE CLAIM OF HAROLD J. SHAFFER, A FORMER EMPLOYEE OF THE POST OFFICE DEPARTMENT, PITTSBURGH, PENNSYLVANIA, FOR ADDITIONAL COMPENSATION ALLEGEDLY DUE FOR THE PERFORMANCE OF DUTIES OF A HIGHER LEVEL POSITION DURING THE PERIOD OCTOBER 10, 1960, TO MAY 26, 1963. SINCE MR. SHAFFER PASSED AWAY SEVERAL WEEKS AGO, YOUR REQUEST FOR REVIEW IS MADE ON BEHALF OF MR. SHAFFER'S WIDOW.

DURING THE PERIOD OF HIS CLAIM, OCTOBER 10, 1960, TO MAY 26, 1963, MR. SHAFFER OCCUPIED THE POSITION OF POSTAL CLERK, PFS LEVEL 4. HOWEVER, MR. SHAFFER ALLEGED THAT DURING SUCH PERIOD HE WAS ASSIGNED TO PERFORM THE HIGHER LEVEL DUTIES OF A MAIL-FLO MECHANIC (LEVEL 5). WHILE PERFORMING SUCH DUTIES, HE CONTINUED TO BE PAID COMPENSATION AT THE RATE FOR PFS LEVEL 4.

BY LETTER DATED JULY 11, 1964, MR. SHAFFER FILED A GRIEVANCE APPEAL WITH THE PITTSBURGH POSTMASTER. THE APPEAL WAS NOT ACCEPTED FOR THE REASON THAT IT WAS NOT TIMELY FILED. THEREAFTER, ON FEBRUARY 27, 1965, MR. SHAFFER SUBMITTED A CLAIM TO THE PITTSBURGH POSTMASTER FOR RETROACTIVE HIGHER LEVEL COMPENSATION. BY LETTER DATED MARCH 3, 1965, THE PITTSBURGH POSTMASTER ADVISED MR. SHAFFER THAT HIS CLAIM WAS DISALLOWED FOR THE REASONS THAT "/1) YOUR DETAIL DURING THE PERIOD MENTIONED BY YOU WAS NOT TO A HIGHER LEVEL POSITION WHICH HAD BEEN ESTABLISHED, APPROVED AS TO JOB CONTENT, RANKED AND APPROVED FOR USE BY ANY AUTHORIZED POSTAL OFFICIAL. (2) NO EVIDENCE OF ANY MANAGEMENT DIRECTIVES WAS PRODUCED TO AUTHENTICATE THAT A HIGHER LEVEL DETAIL WAS INTENDED.'

THE STATUTORY PROVISIONS APPLICABLE TO MR. SHAFFER'S CLAIM ARE CONTAINED IN 39 U.S.C. 3335 (B) AS FOLLOWS:

"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. IF 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. THE POSTMASTER GENERAL MAY PAY, AS HE DEEMS ADVISABLE, IN CASES OF SUCH ASSIGNMENTS, A BASIC SALARY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SUCH SECTION 3559 WITHOUT REGARD TO THE REQUIREMENT IN THIS SUBSECTION OF ASSIGNMENT FOR MORE THAN THIRTY DAYS IN A CALENDAR YEAR.'

IN ADDITION TO THE ABOVE, THE FOLLOWING REGULATIONS QUOTED FROM CHAPTER 7 OF THE POSTAL MANUAL, EFFECTIVE DURING THE PERIOD OF MR. SHAFFER'S CLAIM, ARE PERTINENT.

SECTION 714.421B

"B. POSTAL OFFICIALS IN CHARGE OF THE INSTALLATIONS ARE AUTHORIZED, WHEN IT IS IN THE BEST INTERESTS OF THE SERVICE, TO DETAIL EMPLOYEES IN THE POSTAL SERVICE TO DUTIES OTHER THAN THOSE TO WHICH THEY ARE REGULARLY ASSIGNED. SEE 714.33. CAREFUL CONSIDERATION MUST BE GIVEN TO THE QUALIFICATIONS OF EMPLOYEES SELECTED FOR DETAIL TO A PARTICULAR ASSIGNMENT. OBSERVE THE OLLOWING:

"/2) IF A DETAIL IS EXPECTED TO LAST FOR MORE THAN 30 WORKDAYS IT SHALL BE AUTHORIZED IN WRITING. THE WRITTEN AUTHORIZATION MAY BE IN INFORMAL MEMORANDUM FORM BUT MUST BE SIGNED BY AUTHORITY COMPETENT TO ORDER THE DETAIL, USUALLY THE SUPERVISOR HAVING JURISDICTION OVER THE JOB FROM WHICH AND TO WHICH THE DETAIL IS MADE. WHERE THE DETAIL INVOLVES A HIGHER PFS SALARY LEVEL POSITION, SECTION 204 (B), PUBLIC LAW 68, WILL BE CITED IN THE MEMORANDUM AS THE AUTHORITY FOR THE DETAIL. * * *"

SECTION 756.541

"WHEN AN EMPLOYEE PERFORMS THE DUTIES OF A HIGHER LEVEL POSITION, EXCEPT WHEN HE RELIEVES A SUPERVISOR ON COMPENSATORY TIME, HE MUST RECEIVE HIGHER LEVEL PAY FOR ALL TIME SPENT IN SUCH WORK IN EXCESS OF 30 DAYS IN A CALENDAR YEAR.'

SECTION 756.542B (2)

"SERVICE AT THE HIGHER LEVEL SHALL BE IN ONE OR MORE POSITIONS WHICH HAVE BEEN AUTHORIZED, DEFINED AND ASSIGNED TO A SALARY LEVEL IN THE USUAL MANNER. TO BE CREDITED WITH SERVICE AT THE HIGHER LEVEL, THE EMPLOYEE MUST PERFORM ALL ESSENTIAL DUTIES OF THE HIGHER LEVEL POSITION. PERFORMANCE OF A SEGMENT OF THE DUTIES OF ANOTHER POSITION DOES NOT NECESSARILY MEAN THAT THE EMPLOYEE IS PERFORMING AT THE HIGHER LEVEL.'

YOUR REQUEST FOR REVIEW OF MR. SHAFFER'S CLAIM IS BASED UPON YOUR BELIEF THAT A THOROUGH INVESTIGATION OF THE MATTER WOULD CLEARLY SHOW THAT MR. SHAFFER DID IN FACT PERFORM THE DUTIES OF A HIGHER LEVEL POSITION (MAIL- FLO MECHANIC) DURING THE PERIOD UNDER CONSIDERATION.

INCIDENT TO OUR CONSIDERATION OF MR. SHAFFER'S CLAIM A REPORT ON THE MATTER WAS OBTAINED FROM THE POST OFFICE DEPARTMENT. THE DEPARTMENT'S REPORT CONTAINED AN EVALUATION OF MR. SHAFFER'S DAILY WORK HOURS FOR THE PERIOD JUNE 1962 THROUGH MAY 1963. (DOCUMENTATION OF THE DUTIES PERFORMED BY MR. SHAFFER PRIOR TO JUNE 1962 WAS UNAVAILABLE SINCE THE NECESSARY RECORDS ARE RETAINED FOR ONLY THREE YEARS.) THE DEPARTMENT'SSTUDY SHOWS THAT APPROXIMATELY 73 PERCENT OF THE WORK PERFORMED BY MR. SHAFFER DURING THE ABOVE-STATED PERIOD WAS AT LEVELS 3 AND 4.

IN ADDITION TO THE ABOVE, THE REPORT CONTAINED THE FOLLOWING STATEMENT OF THE POSTMASTER AT PITTSBURGH:

"THERE IS NO MANAGEMENT DIRECTIVE DETAILING CLERK HAROLD J. SHAFFER TO ANY HIGHER LEVEL POSITION DURING THE PERIOD OF OCTOBER 10, 1960 TO MAY 26, 1963. HOWEVER, DURING THIS PERIOD HE WAS LOANED TO THE MAINTENANCE SECTION AS A MECHANIC HELPER, PFS-3. * * *"

WHILE MR. SHAFFER MAY IN FACT HAVE PERFORMED SOME DUTIES OF A HIGHER LEVEL POSITION DURING THE PERIOD INVOLVED, THERE IS NO EVIDENCE THAT AN ASSIGNMENT OR DETAIL TO A HIGHER LEVEL POSITION WAS EVER INTENDED BY HIS ADMINISTRATIVE OFFICE. ON THE CONTRARY, THE ADMINISTRATIVE REPORT IS TO THE EFFECT THAT MR. SHAFFER WAS ASSIGNED TO ANOTHER SECTION TO PERFORM THE DUTIES OF A LOWER LEVEL POSITION. CERTAINLY THERE EXISTS REASONABLE DOUBT AS TO WHETHER THE SERVICES PERFORMED BY MR. SHAFFER COULD QUALIFY UNDER SECTION 756.542B (2), OF THE POSTAL MANUAL, QUOTED ABOVE.

OUR OFFICE EXAMINES AND SETTLES CLAIMS ON THE BASIS OF THE WRITTEN RECORD BEFORE IT AND WHEN THE EVIDENCE IS CONFLICTING AS TO THE FACTS, SUCH AS HERE, WE DO NOT HAVE AUTHORITY, AS DO THE COURTS, TO SUMMON WITNESSES AND SUBMIT THEM TO EXAMINATION AND CROSS-EXAMINATION. IT HAS BEEN THE ESTABLISHED RULE OF THIS OFFICE TO REJECT OR DISALLOW CLAIMS CONCERNING WHICH THERE IS REASONABLE DOUBT. BY SO DOING CONTROVERSIAL MATTERS ARE RESERVED FOR SCRUTINY IN THE COURTS WHERE THE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND COMPETENT EVIDENCE. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319.

THEREFORE, ON THE BASIS OF THE PRESENT RECORD, WE MUST SUSTAIN OUR SETTLEMENT OF JANUARY 30, 1967.