B-169377, MAY 26, 1970

B-169377: May 26, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHEN LEVEL 4 POSITION WAS TERMINATED. IS NOT ENTITLED TO PLACEMENT IN HIGHER STEP IN HIS GRADE (PFS- 5) UNDER SEC. 402 OF PUB. CLAIMS THAT HE SHOULD HAVE BEEN PLACED IN A HIGHER STEP IN HIS GRADE. ADJUSTMENT IN STEP UNDER SECTION 402 APPLIES TO ANY EMPLOYEE "WHO WAS PROMOTED TO A HIGHER LEVEL BETWEEN JULY 9. WERNER WE STATED: "THE POST OFFICE DEPARTMENT HAS ADVISED THAT YOU WERE APPOINTED A SUBSTITUTE RAILWAY POSTAL CLERK ON JULY 11. YOU WERE RECLASSIFIED AS A DISTRIBUTION CLERK RPO/HPO (SUBSTITUTE) KP-16. AS A SUBSTITUTE POSTAL TRANSPORTATION CLERK YOU WERE SUBJECT TO THE PROVISIONS OF SECTION 401. POSITION WAS TERMINATED BECAUSE YOU DECLINED TO ACCEPT A CHANGE TO REGULAR IN THIS POSITION.

B-169377, MAY 26, 1970

COMPENSATION--POSTAL SERVICE--ADJUSTMENTS--STEP LEVEL ADVANCEMENTS- NONENTITLEMENT POSTAL SERVICE EMPLOYEE HOLDING 3 SUBSTITUTE POSITIONS, TWO AT LEVEL 5 AND ONE AT LEVEL 4, UNTIL JAN. 6, 1962, WHEN LEVEL 4 POSITION WAS TERMINATED, IS NOT ENTITLED TO PLACEMENT IN HIGHER STEP IN HIS GRADE (PFS- 5) UNDER SEC. 402 OF PUB. L. 89-504 WHICH PROVIDES FOR ADJUSTMENT IN STEP TO EMPLOYEE PROMOTED TO HIGHER LEVEL BETWEEN JULY 9, 1960, AND OCT. 13, 1962, SINCE TERMINATION OF SUBSTITUTE LEVEL 4 POSITION WHILE RETAINING TWO SUBSTITUTE LEVEL 5 POSITIONS UNTIL FEB. 25, 1967 CHANGE TO REGULAR LEVEL 5 POSITION FAILS TO CONSTITUTE "PROMOTION" WITHIN MEANING OF SEC. 402. SEE 46 COMP. GEN. 384.

TO MR. DAVID S. KAPLAN:

WE REFER FURTHER TO YOUR LETTER OF FEBRUARY 24, 1970, WHEREIN YOU REQUEST THAT WE RECONSIDER THE DISALLOWANCE OF THE CLAIM BY JOHN J. WERNER AS SET FORTH IN OUR OFFICE SETTLEMENT OF NOVEMBER 29, 1968.

MR. WERNER, AN EMPLOYEE OF THE POST OFFICE DEPARTMENT, CLAIMS THAT HE SHOULD HAVE BEEN PLACED IN A HIGHER STEP IN HIS GRADE, PFS LEVEL 5, UNDER THE POSTAL SENIORITY ADJUSTMENT PROVISION CONTAINED IN SECTION 402 OF PUBLIC LAW 89-504, 80 STAT. 296. ADJUSTMENT IN STEP UNDER SECTION 402 APPLIES TO ANY EMPLOYEE "WHO WAS PROMOTED TO A HIGHER LEVEL BETWEEN JULY 9, 1960, AND OCTOBER 13, 1962." SEE GENERALLY 46 COMP. GEN. 384.

IN OUR SETTLEMENT ACTION OF NOVEMBER 29, 1968, TO MR. WERNER WE STATED:

"THE POST OFFICE DEPARTMENT HAS ADVISED THAT YOU WERE APPOINTED A SUBSTITUTE RAILWAY POSTAL CLERK ON JULY 11, 1949. EFFECTIVE DECEMBER 3, 1955, YOU WERE RECLASSIFIED AS A DISTRIBUTION CLERK RPO/HPO (SUBSTITUTE) KP-16, PFS-5. AS A SUBSTITUTE POSTAL TRANSPORTATION CLERK YOU WERE SUBJECT TO THE PROVISIONS OF SECTION 401, PAR. (C) OF PUB. L. 68, EFFECTIVE DECEMBER 3, 1955. (SECTION 401C LIMITS WITHIN GRADE ADVANCEMENT TO STEP 4.) ON JANUARY 11, 1958, YOU RECEIVED A DUAL APPOINTMENT AS SUBSTITUTE DISTRIBUTION CLERK KP-12, PFS-4. ON MARCH 5, 1960, YOU RECEIVED AN ADDITIONAL APPOINTMENT AS A SUBSTITUTE TRANSFER CLERK KP-15, PFS-5. EFFECTIVE JANUARY 6, 1962, YOUR SUBSTITUTE DISTRIBUTION CLERK KP- 12, PFS-4, POSITION WAS TERMINATED BECAUSE YOU DECLINED TO ACCEPT A CHANGE TO REGULAR IN THIS POSITION. YOU WERE CHANGED TO REGULAR TRANSFER CLERK KP-15, PFS-5, EFFECTIVE FEBRUARY 25, 1967. YOUR APPOINTMENT AS A SUBSTITUTE DISTRIBUTION CLERK RPO/HPO, KP 16, PFS-5, WAS TERMINATED.

"SINCE YOU DID NOT RECEIVE A PROMOTION TO A HIGHER LEVEL DURING THE AFORESAID PERIOD (JULY 9, 1960 TO OCTOBER 13, 1962) YOU ARE NOT ENTITLED TO BE ADVANCED TO A HIGHER SALARY STEP UNDER THE PROVISIONS OF SECTION 402."

IN YOUR LETTER OF FEBRUARY 24, 1970, YOU URGE THAT MR. WERNER IN FACT WAS PROMOTED TO LEVEL 5 PAY ON JANUARY 6, 1962. YOU FEEL THAT SINCE HE HAD HELD TWO POSITIONS--ONE WITH LEVEL 4 PAY AND ONE WITH LEVEL 5 PAY- HIS SALARY RATE WAS A COMBINATION OF THE TWO RATES. THEREFORE, WHEN HIS LEVEL 4 PAY STATUS WAS TERMINATED ON JANUARY 6, 1962, YOU ARGUE THAT HE WAS A FULL-TIME LEVEL 5; THAT "IN OTHER WORDS, HIS STATUS OF A PART TIME LEVEL 4 WAS RAISED TO A FULL TIME LEVEL 5 - A VERY DEFINITE PROMOTION." WE CANNOT AGREE.

AS YOU STATE, MR. WERNER WAS NOT ELIGIBLE FOR HIGHER RATE PAY UNLESS HE WORKED THE HIGHER LEVEL JOB AND HE WAS ENTITLED ONLY TO LEVEL 4 PAY WHEN HE WORKED THE LOWER LEVEL JOB. UNTIL JANUARY 6, 1962, HE HELD THREE SUBSTITUTE POSITIONS--TWO LEVEL 5 AND ONE LEVEL 4. HIS PAY VARIED WITH THE NUMBER OF HOURS WORKED AT EACH POSITION. EMPLOYMENT FOR MR. WERNER WAS GOVERNED BY THE NEEDS OF THE SERVICE FOR WORK AT EACH OF THE THREE POSITIONS HE HELD. HIS RATE OF PAY COULD HAVE RANGED ACCORDINGLY--I.E. FROM ZERO TO ALL 4 LEVEL TO ALL 5 LEVEL OR ANY COMBINATION THEREOF. AFTER JANUARY 6, 1962, WHEN MR. WERNER'S POSITION OF SUBSTITUTE DISTRIBUTION CLERK KP-15, PFS-4, WAS TERMINATED, HIS EMPLOYMENT WAS SUBJECT TO THE NEED FOR HIS SERVICES AT EITHER OF THE LEVEL 5 POSITIONS HE OCCUPIED. HE WAS NOT PROMOTED TO A LEVEL 5 POSITION. HE MERELY RETAINED TWO SUBSTITUTE POSITIONS AT LEVEL 5 UNTIL FEBRUARY 25, 1967, WHEN HE WAS CHANGED TO A REGULAR TRANSFER CLERK KP 15, PFS-5.

IN VIEW OF THE FOREGOING WE CAN ONLY SUSTAIN THE SETTLEMENT ACTION OF NOVEMBER 29, 1968.