B-37844, NOVEMBER 1, 1943, 23 COMP. GEN. 319

B-37844: Nov 1, 1943

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WAS TO AUTHORIZE SALARY PAYMENTS FOR A FRACTIONAL PART OF A YEAR'S SERVICE OF CUSTODIAL EMPLOYEES ON THE BASIS OF 365 DAYS PER ANNUM UNDER THE ACT OF MARCH 4. CUSTODIAL EMPLOYEES MAY BE REGARDED AS IN THE POSTAL SERVICE FOR THE PURPOSE OF APPLYING SUCH GENERAL PROVISIONS OF LAW AFFECTING THE COMPUTATION AND PAYMENT OF COMPENSATION AS ARE APPLICABLE TO ALL POSTAL EMPLOYEES. ARE NOT GENERAL PROVISIONS OF LAW APPLICABLE TO ALL POSTAL EMPLOYEES. CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO NOW ARE REGARDED AS IN THE POSTAL SERVICE BY REASON OF THE ACT OF OCTOBER 18. IS NOT GENERAL LEGISLATION APPLICABLE TO ALL POSTAL EMPLOYEES. THE SAID PROVISION HAS NO APPLICATION TO CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO NOW ARE INCLUDED IN THE POSTAL SERVICE BY REASON OF THE ACT OF OCTOBER 18.

B-37844, NOVEMBER 1, 1943, 23 COMP. GEN. 319

POSTAL EMPLOYEES - EFFECT OF ACT OF OCTOBER 18, 1943, INCLUDING CUSTODIAL EMPLOYEES IN POSTAL SERVICE THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 18, 1943, AMENDING THE POSTAL SALARY CLASSIFICATION ACT OF 1925 SO AS TO INCLUDE OFFICERS AND EMPLOYEES OF THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT, WAS TO AUTHORIZE SALARY PAYMENTS FOR A FRACTIONAL PART OF A YEAR'S SERVICE OF CUSTODIAL EMPLOYEES ON THE BASIS OF 365 DAYS PER ANNUM UNDER THE ACT OF MARCH 4, 1911 (APPLICABLE TO POSTAL EMPLOYEES), RATHER THAN ON THE BASIS OF 360 DAYS PER ANNUM UNDER THE ACT OF JUNE 30, 1906 (APPLICABLE TO OTHER FEDERAL EMPLOYEES PAID ON A MONTHLY OR ANNUAL BASIS). UNDER THE ACT OF OCTOBER 18, 1943, AMENDING THE POSTAL SALARY CLASSIFICATION ACT OF 1925 SO AS TO INCLUDE OFFICERS AND EMPLOYEES OF THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT, AND PROVIDING THAT THE SALARY RANGES OF THEIR DESIGNATED GRADES SHALL BE ALLOCATED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, CUSTODIAL EMPLOYEES MAY BE REGARDED AS IN THE POSTAL SERVICE FOR THE PURPOSE OF APPLYING SUCH GENERAL PROVISIONS OF LAW AFFECTING THE COMPUTATION AND PAYMENT OF COMPENSATION AS ARE APPLICABLE TO ALL POSTAL EMPLOYEES--- AS DISTINGUISHED FROM LAWS APPLICABLE ONLY TO A PARTICULAR CLASS OF POSTAL EMPLOYEES--- BUT THE 1923 ACT SHOULD CONTINUE TO BE USED AS THE "YARDSTICK" IN FIXING THE COMPENSATION OF SUCH EMPLOYEES. THE PROVISIONS IN SECTIONS 4, 5, 6, AND 7 OF THE POSTAL SALARY CLASSIFICATION ACT OF 1925, AUTHORIZING AUTOMATIC PROMOTIONS AFTER ONE YEAR'S SATISFACTORY SERVICE, ARE NOT GENERAL PROVISIONS OF LAW APPLICABLE TO ALL POSTAL EMPLOYEES, BUT, RATHER, RELATE TO PARTICULAR CLASSES OF POSTAL EMPLOYEES--- NONE OF WHICH INCLUDES EMPLOYEES IN THE CUSTODIAL SERVICE--- AND, THEREFORE, CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO NOW ARE REGARDED AS IN THE POSTAL SERVICE BY REASON OF THE ACT OF OCTOBER 18, 1943, MAY NOT BE GRANTED AUTOMATIC PROMOTIONS AFTER ONE YEAR'S SATISFACTORY SERVICE. THE PROVISION IN SECTION 4 OF THE POSTAL SALARY CLASSIFICATION ACT OF 1925, FIXING HOURS OF WORK AND PROVIDING FOR OVERTIME COMPENSATION ON A DAILY BASIS, IS NOT GENERAL LEGISLATION APPLICABLE TO ALL POSTAL EMPLOYEES, BUT, RATHER, APPLIES ONLY TO "SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE," AND, THEREFORE, THE SAID PROVISION HAS NO APPLICATION TO CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO NOW ARE INCLUDED IN THE POSTAL SERVICE BY REASON OF THE ACT OF OCTOBER 18, 1943. THE DIFFERENTIAL IN PAY FOR NIGHT WORK AUTHORIZED UNDER THE ACT OF MAY 24, 1928, FOR SPECIFIC CLASSES OF POSTAL EMPLOYEES IN FIRST AND SECOND CLASS POST OFFICES MAY NOT BE PAID TO CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT--- A CLASS OF EMPLOYEES NOT EXPRESSLY MENTIONED IN THE SAID ACT--- WHO NOW ARE INCLUDED IN THE POSTAL SERVICE BY REASON OF THE ACT OF OCTOBER 18, 1943. THE EXISTING ADMINISTRATIVE PRACTICE, RECOGNIZED AS PROPER BY DECISIONS OF THIS OFFICE AND CIVIL SERVICE REGULATIONS, OF PAYING A DIFFERENTIAL IN COMPENSATION NOT TO EXCEED 25 PERCENT TO EMPLOYEES WITH POSTS OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IS GENERAL IN SCOPE AND APPLICABLE REGARDLESS OF THE LAW PURSUANT TO WHICH THE BASIC COMPENSATION OF THE EMPLOYEES IS PAID, AND, THEREFORE, CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT WHO NOW ARE INCLUDED IN THE POSTAL SERVICE UNDER THE ACT OF OCTOBER 18, 1943, MAY CONTINUE TO RECEIVE THE SAID COMPENSATION DIFFERENTIAL.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 1, 1943:

I HAVE YOUR LETTER OF OCTOBER 23, 1943, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW NO. 161-78TH CONGRESS, ( H.R. 2250)," AN ACT TO EXTEND THE PROVISIONS OF THE RECLASSIFICATION ACT OF FEBRUARY 28, 1925, TO INCLUDE CUSTODIAL EMPLOYEES IN THE POSTAL SERVICE.'

PLEASE ADVISE US WHETHER THIS ACT EXTENDS THE FOLLOWING BENEFITS TO THE CUSTODIAL SERVICE PERSONNEL IN ADDITION TO MAKING IT POSSIBLE TO COMPUTE THEIR PAY IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 4, 1911, (CH. 241, SEC. 4, 36 STAT. 1339):

(1) DOES PUBLIC LAW NO. 161 AUTHORIZE SUCCESSIVE PROMOTIONS AFTER ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE TO THE NEXT HIGHER UNTIL EMPLOYEES REACH THE MAXIMUM OF THE SALARY RANGE, THE SAME AS CLERKS, AND CARRIERS, ETC., AS PROVIDED IN SECTIONS 4, 5, 6, AND 7 OF THE ACT OF FEBRUARY 28, 1925 (CH. 368, 43 STAT. 1059-60-61-62), INSTEAD OF AS PROVIDED IN PUBLIC LAW NO. 200, 77TH CONGRESS, AUGUST 1, 1941, (667 TITLE 5 U.S.C. SUPPLEMENT II) INASMUCH AS THESE EMPLOYEES ARE NOW IN THE POSTAL SERVICE AND THE CLASSIFICATION ACT OF 1923 AS AMENDED, HAS NO APPLICATION TO THE POSTAL SERVICE? ( SEC. 2, PUBLIC LAW NO. 516 67TH CONGRESS).

(2) DOES PUBLIC LAW NO. 161 LIMIT SERVICE OF CUSTODIAL EMPLOYEES TO EIGHT HOURS WITHIN A PERIOD OF TEN HOURS? (CH. 368, SEC. 4, 43 STAT. 1059).

(3) DOES PUBLIC LAW NO. 161 PERMIT THE PAYMENT OF OVERTIME PAY FOR SERVICE IN EXCESS OF EIGHT HOURS PER DAY? (CH. 368, SEC. 4, 43 STAT. 1059).

(4) IF THE ANSWER TO THE QUESTION IMMEDIATELY PRECEDING IS IN THE AFFIRMATIVE, SHALL OVERTIME PAY FOR ONE DAY BE COMPUTED ON THE BASIS OF 1/306TH OF THE ANNUAL RATE? (CH. 368, SEC. 4, 43 STAT. 1059).

(5) IT WOULD BE APPRECIATED, ALSO, IF YOUR WOULD ADVISE WHETHER THE INCLUSION OF THE CUSTODIAL EMPLOYEES IN THE POSTAL SERVICE EXTENDS TO THEM THE PROVISIONS OF A DIFFERENTIAL IN PAY FOR NIGHT WORK. (CH. 725, 45 STAT. 725).

(6) REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 3, 1942, (B 29923), (22 COMP. GEN. 432), AND CIRCULAR OF THE CIVIL SERVICE COMMISSION 394, DATED DECEMBER 3, 1942, AND ITS SUPPLEMENTS DATED DECEMBER 21, 1942, AND JANUARY 16, 1943, UNDER WHICH CUSTODIAL EMPLOYEES IN ALASKA, HAWAII, PUERTO RICO, AND VIRGIN ISLANDS RECEIVE A DIFFERENTIAL OF TWENTY-FIVE PERCENT. PLEASE ALSO ADVISE WHETHER UNDER THE CIRCUMSTANCES, THIS DIFFERENTIAL MAY BE CONTINUED.

FOR CONVENIENCE IN ANSWERING THE SEVERAL QUESTIONS PRESENTED EACH HAS BEEN GIVEN A NUMBER IN BRACKETS.

THE ACT OF OCTOBER 18, 1943, 57 STAT. 572, PUBLIC LAW 161, PROVIDES:

THAT THE ACT OF FEBRUARY 28, 1925, POSTAL SALARY CLASSIFICATION ACT, IS HEREBY AMENDED TO INCLUDE OFFICERS AND EMPLOYEES OF THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT: PROVIDED, THAT THE SALARY RANGES OF THE DESIGNATED GRADES SHALL BE AS ALLOCATED BY THE POST OFFICE DEPARTMENT UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED; AND PROVIDED FURTHER, THAT SUCH ACTION SHALL NOT RESULT IN THE REDUCTION OF THE GRADE OR SALARY OF ANY EMPLOYEE BY REASON HEREOF.

TO ASCERTAIN THE PURPOSE AND INTENT OF THE ABOVE-QUOTED ENACTMENT, IT IS DEEMED PROPER TO REFER TO HOUSE OF REPRESENTATIVES REPORT NO. 482, 78TH CONGRESS, ON H.R. 2250--- WHICH BECAME THE ACT OF OCTOBER 18, 1943, SUPRA. SAID REPORT STATES:

THE PURPOSE OF THIS PURPOSED LEGISLATION IS TO BRING THE CUSTODIAL EMPLOYEES OF THE POST OFFICE DEPARTMENT UNDER THE RECLASSIFICATION ACT OF FEBRUARY 28, 1925, AND THUS SECURE FOR THEM A PERMANENT AND MORE EQUITABLE STATUS.

AS THE SITUATION NOW EXISTS, CUSTODIAL EMPLOYEES ARE PAID UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1906 (34 STAT. 763), WHEREAS REGULAR POSTAL SERVICE EMPLOYEES ARE PAID IN ACCORDANCE WITH THE ACT OF MARCH 4, 1911 (CH. 241, SEC. 4, 36 STAT. 1339), WHICH MAKES IT NECESSARY FOR THE DEPARTMENT TO PAY EMPLOYEES UNDER TWO DIFFERENT LAWS AND TO COMPUTE SALARIES FROM TWO DIFFERENT SETS OF SALARY TABLES.

REFERENCE IS MADE, ALSO, TO THE FOLLOWING EXCERPT FROM A LETTER DATED MAY 14, 1943, FROM THE POSTMASTER GENERAL TO THE CHAIRMAN OF THE COMMITTEE ON THE POST OFFICE AND POST ROADS OF THE HOUSE OF REPRESENTATIVES, PRINTED IN THE ABOVE-MENTIONED REPORT:

POSTMASTERS MUST PAY EMPLOYEES IN ACCORDANCE WITH THE ACT OF JUNE 30, 1906 (34 STAT. 763), WHICH PROVIDES FOR EQUAL PAYMENTS EACH PAY PERIOD REGARDLESS OF THE NUMBER OF DAYS IN THE MONTH, IN ACCORDANCE WTIH DECISION NO. B-31945, OF THE COMPTROLLER GENERAL DATED FEBRUARY 6, 1943 (22 COMP. GEN. 764). EMPLOYEES IN THE POSTAL SERVICE ARE PAID IN ACCORDANCE WITH THE ACT OF MARCH 4, 1911 (CH. 241, SEC. 4. 36 STAT. 1339). POSTMASTERS ARE, THEREFORE, PAYING EMPLOYEES UNDER TWO DIFFERENT LAWS AND ARE REQUIRED TO COMPUTE SALARIES FROM TWO DIFFERENT SETS OF SALARY TABLES. IT WOULD MAKE FOR SIMPLIFICATION AND MUCH LESS WORK FOR POSTMASTERS IF CUSTODIAL EMPLOYEES WERE PLACED IN THE POSTAL SERVICE, AS THEN THEY COULD BE PAID IN THE SAME MANNER AS POSTAL EMPLOYEES.

IN THE PROPOSAL, AND THE ENACTMENT, OF THE NEW LEGISLATION EVIDENTLY THE POST OFFICE DEPARTMENT AND THE CONGRESS PRIMARILY HAD IN MIND THE MATTER OF AUTHORIZING PAYMENTS FOR A FRACTIONAL PART OF A YEAR'S SERVICE OF CUSTODIAL EMPLOYEES ON THE BASIS OF 365 DAYS PER ANNUM UNDER THE ACT OF MARCH 4, 1911, 36 STAT. 1327 (APPLICABLE TO POSTAL EMPLOYEES), RATHER THAN ON THE BASIS OF 360 DAYS PER ANNUM UNDER THE ACT OF JUNE 30, 1906, 34 STAT. 763 (APPLICABLE TO OTHER CLASSES OF FEDERAL EMPLOYEES WHOSE COMPENSATION IS FIXED ON A MONTHLY OR ANNUAL BASIS), BUT THERE MAY BE GATHERED FROM THE CONGRESSIONAL REPORT AN INTENT, ALSO, TO REGARD CUSTODIAL EMPLOYEES AS IN THE POSTAL SERVICE FOR THE PURPOSE OF APPLYING TO THEM SUCH GENERAL PROVISIONS OF LAW AFFECTING THE COMPUTATION AND PAYMENT OF COMPENSATION AS ARE APPLICABLE TO ALL POSTAL EMPLOYEES (THAT IS TO SECURE FOR THEM A ,MORE EQUITABLE BASIS"), AS DISTINGUISHED FROM THOSE WHICH ARE APPLICABLE ONLY TO A PARTICULAR CLASS OF POSTAL EMPLOYEES. HOWEVER, I AM UNABLE TO CONCLUDE THAT THE ACT OF OCTOBER 18, 1943, HAS THE EFFECT OF EXTENDING TO CUSTODIAL EMPLOYEES THOSE PROVISIONS OF LAW WHICH ARE MADE APPLICABLE TO PARTICULAR CLASSES OF POSTAL EMPLOYEES MENTIONED IN THE SEVERAL STATUTES CITED IN YOUR SEVERAL QUESTIONS. SECTION 2 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1488 ( PUBLIC LAW 516, 67TH CONGRESS TO WHICH YOU REFER AT THE END OF QUESTION (1) (, EXCLUDES FROM THE CLASSIFICATION ACT " OFFICES OR EMPLOYMENTS IN THE POSTAL SERVICE.' BUT THE FIRST PROVISION IN THE ACT OF OCTOBER 18, 1943, PUBLIC LAW 161, SPECIFICALLY PROVIDES "THAT THE SALARY RANGES OF THE DESIGNATED GRADES SHALL BE AS ALLOCATED BY THE POST OFFICE DEPARTMENT UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THEREFORE, IT WOULD APPEAR THAT THE INTENTIONS TO CONTINUE THE CLASSIFICATION ACT AS THE "YARDSTICK" FOR FIXING THE COMPENSATION OF THE CUSTODIAL EMPLOYEES NOW REGARDED AS IN THE POSTAL SERVICE.

I DO NOT FIND ANY GENERAL PROVISION OF LAW APPLICABLE TO ALL EMPLOYEES IN THE POSTAL SERVICE AUTHORIZING AUTOMATIC PROMOTIONS AFTER THE COMPLETION OF ONE YEAR'S SATISFACTORY SERVICE. ON THE CONTRARY, EACH OF THE SECTIONS OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, 1060, 1061, REFERRED TO IN QUESTION (1) RELATES TO A PARTICULAR CLASS OF POSTAL EMPLOYEES, NONE OF WHICH INCLUDES EMPLOYEES IN THE CUSTODIAL SERVICE NOW REGARDED AS IN THE POSTAL SERVICE. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE.

LIKEWISE, THAT PORTION OF SECTION 4 (SECOND PARAGRAPH) OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, REFERRED TO IN QUESTIONS (2) AND (3), FIXING HOURS OF WORK AND PROVIDING FOR OVERTIME COMPENSATION ON A DAILY BASIS, IS NOT GENERAL LEGISLATION BUT APPLIES ONLY TO "SPECIAL CLERKS, CLERKS, AND LABORERS, IN THE FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE.' SUCH PROVISIONS CAN HAVE NO APPLICATION TO CUSTODIAL EMPLOYEES. ACCORDINGLY, QUESTIONS (2) AND (3) ARE ANSWERED IN THE NEGATIVE.

THE ANSWERS TO QUESTIONS (2) AND (3) MAKE IT UNNECESSARY TO ANSWER QUESTION (4).

THE ACT OF MAY 24, 1928, 45 STAT. 725, PROVIDES:

THAT AFTER JULY 1, 1928, SUPERVISORY EMPLOYEES, SPECIAL CLERKS, CLERKS, SUBSTITUTE CLERKS, WATCHMEN, MESSENGERS, LABORERS, AND EMPLOYEES OF THE MOTOR-VEHICLE SERVICE, IN FIRST AND SECOND CLASS POST OFFICES; CARRIERS AND SUBSTITUTE CARRIERS IN THE CITY DELIVERY SERVICE; AND RAILWAY POSTAL CLERKS, SUBSTITUTE RAILWAY POSTAL CLERKS, AND LABORERS IN THE RAILWAY MAIL SERVICE, WHO ARE REQUIRED TO PERFORM NIGHT WORK, SHALL BE PAID EXTRA FOR SUCH WORK AT THE RATE OF 10 PERCENTUM OF THEIR HOURLY PAY PER HOUR: PROVIDED, THAT NIGHT WORK IS DEFINED AS ANY WORK DONE BETWEEN THE HOURS OF SIX O-CLOCK POST MERIDIAN AND SIX O-CLOCK ANTEMERIDIAN.

WHILE IT MAY APPEAR THAT MOST, IF NOT ALL, OF THE EMPLOYEES WORKING AT FIRST AND SECOND CLASS POST OFFICES ARE EMBRACED IN THE SEVERAL CLASSES EXPRESSLY MENTIONED IN THE STATUTE, JUST QUOTED, NEVERTHELESS AS THE STATUTE SPECIFICALLY NAMES THE CLASSES OF POSTAL EMPLOYEES FOR WHOM A NIGHT DIFFERENTIAL IS AUTHORIZED, AND AS CUSTODIAL EMPLOYEES ARE NOT INCLUDED WITHIN THE PROVISIONS OF THE STATUTE, I DO NOT FEEL WARRANTED IN CONCLUDING, SOLELY ON THE BASIS OF THE PROVISIONS OF THE ACT OF OCTOBER 18, 1943, THAT CUSTODIAL EMPLOYEES ARE, BY VIRTUE OF THE 1928 STATUTE, SUPRA, ENTITLED TO A NIGHT DIFFERENTIAL. ACCORDINGLY, QUESTION (5) IS ANSWERED IN THE NEGATIVE.

THE LONG EXISTING ADMINISTRATIVE PRACTICE, RECOGNIZED AS PROPER BY THE DECISIONS OF THIS OFFICE, OF PAYING A DIFFERENTIAL IN COMPENSATION NOT TO EXCEED 25 PERCENT TO EMPLOYEES WITH POSTS OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES--- WHICH PRACTICE NOW HAS BEEN RECOGNIZED BY RECENT CIVIL SERVICE REGULATIONS TO WHICH YOU REFER--- IS GENERAL IN SCOPE AND APPLICABLE REGARDLESS OF THE LAW PURSUANT TO WHICH THE BASIC COMPENSATION OF THE EMPLOYEES IS PAID. ACCORDINGLY, QUESTION (6) IS ANSWERED IN THE AFFIRMATIVE.