B-79129, OCTOBER 8, 1948, 28 COMP. GEN. 229

B-79129, OCTOBER 8, 1948, 28 COMP. GEN. 229

COMPENSATION - POSTAL SERVICE - TRANSFERS - INITIAL SALARY RATES THE PROVISIONS OF SECTION 15 (F) OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, AUTHORIZING THE POSTMASTER GENERAL, IN HIS DISCRETION, TO TRANSFER CLERKS, OR CARRIERS IN THE CITY DELIVERY SERVICE, TO THE POSITION OF CLERK AT DIVISION HEADQUARTERS AND OTHER POSTS OF DUTY OF POST-OFFICE INSPECTORS AND TO FIX THEIR INITIAL SALARY RATES WITHIN CERTAIN LIMITATIONS, ARE APPLICABLE TO TRANSFERS OF CLERKS FROM ANY OF THE VARIOUS BRANCHES OF THE POSTAL SERVICE, BUT HAVE NO APPLICATION TO TRANSFERS OF CLERKS FROM THE DEPARTMENTAL SERVICE. UNDER THE PROVISIONS OF SECTION 15 (F) OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, THE INITIAL SALARY RATE OF A CLERK, OR A CARRIER IN THE CITY DELIVERY SERVICE, RECEIVING SALARY EQUAL TO OR IN EXCESS OF $2,300 PER ANNUM (INCREASED BY LATER LEGISLATION), UPON TRANSFER FROM ANY BRANCH OF THE POSTAL SERVICE TO THE POSITION OF CLERK AT DIVISION HEADQUARTERS AND OTHER POSTS OF DUTY OF POST-OFFICE INSPECTORS, MAY BE FIXED WITHIN THE ADMINISTRATIVE DISCRETION AT ANY OF THE SALARY GRADES PROVIDED FOR SUCH CLERKS, INCLUDING THOSE ABOVE THE AUTOMATIC GRADES, BUT NOT LESS THAN THE SALARY RECEIVED IN THE POSITION FROM WHICH TRANSFERRED. 27 COMP. GEN. 672; ID. 720, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 8, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 2, 1948 (REFERENCE 3), AS FOLLOWS:

THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE HAS RECENTLY RAISED EXCEPTIONS TO SALARY PAYMENTS TO TEN CLERKS AT DIVISION HEADQUARTERS AND OTHER POSTS OF DUTY OF POST-OFFICE INSPECTORS WHO ON VARIOUS DATES BETWEEN AUGUST 1, 1946 AND MAY 6, 1948, WERE TRANSFERRED TO SUCH POSITIONS FROM OTHER BRANCHES OF THE POSTAL ESTABLISHMENT. IT WAS STATED THAT THESE CLERKS HAD BEEN IMPROPERLY PLACED AT THE TIME OF SUCH TRANSFERS TO THE POST OFFICE INSPECTION SERVICE IN GRADES 10 OR 12 WITHOUT HAVING SERVED IN GRADES 9, 10, OR 11 FOR THE LENGTH OF TIME REQUIRED BY LAW.

THIS POST AUDIT ACTION WAS PREDICATED UPON YOUR DECISION B-75945 DATED MAY 21, 1948, WHICH RELATED TO THE RESTORATION OF A POST-OFFICE INSPECTOR FILLING A TRIAL APPOINTMENT TO HIS FORMER POSITION AFTER FAILURE TO SUCCESSFULLY COMPLETE THE TRIAL PERIOD. REPRESENTATIONS BY THE DEPARTMENT THAT THE DECISION WAS NOT APPLICABLE, THE TRANSFERS HAVING BEEN MADE UNDER THE PROVISIONS OF SECTION 15 (F) OF THE POSTAL EMPLOYEES PAY ACT OF JULY 6, 1945, PUBLIC LAW 134, BROUGHT THE RESPONSE THAT YOUR OFFICE HAS CONSISTENTLY HELD THAT ANY ADVANCEMENT TO THE ADDITIONAL GRADES PROVIDED IN PUBLIC LAW 134 MAY BE ALLOWED ONLY AFTER THE REQUISITE NUMBER OF YEARS OF SERVICE IN THE NEXT LOWER GRADE OF THE SPECIFIC POSITION INVOLVED.

AS MENTIONED ABOVE, THE TRANSFERS OF THE EMPLOYEES HERE INVOLVED WERE MADE PURSUANT TO THE AUTHORITY GRANTED IN SUBSECTION (F), SECTION 15, OF PUBLIC LAW 134, WHICH READS AS FOLLOWS:

"WHENEVER IN THE DISCRETION OF THE POSTMASTER GENERAL THE NEEDS OF THE SERVICE REQUIRE SUCH ACTION, HE IS AUTHORIZED TO TRANSFER CLERKS, OR CARRIERS IN THE CITY DELIVERY SERVICE TO THE POSITION OF CLERK AT DIVISION HEADQUARTERS AND OTHER POSTS OF DUTY OF POST-OFFICE INSPECTORS AT A SALARY NOT TO EXCEED $2,300 WHEN THE SALARY OF THE EMPLOYEE BEING TRANSFERRED IS LESS THAN $2,300, AND WHEN THE SALARY OF THE EMPLOYEE BEING TRANSFERRED IS EQUAL TO OR GREATER THAN $2,300, SUCH EMPLOYEE MAY BE TRANSFERRED AT NOT LESS THAN THE SALARY RECEIVED IN THE POSITION FROM WHICH TRANSFERRED.'

THE STATUTE SPECIFICALLY FIXES A MAXIMUM OF $2,300 (INCREASED BY LATER LEGISLATION), THE SALARY RATE FOR THE 5TH GRADE OF NINE AUTOMATIC GRADES FOR INSPECTION SERVICE CLERKS, TO WHICH EMPLOYEES EARNING LESS THAN $2,300 MAY BE TRANSFERRED. NO SUCH MAXIMUM IS PRESCRIBED FOR EMPLOYEES EARNING $2,300 OR MORE, AND IT IS SUBMITTED THAT IN THE ABSENCE OF ANY LIMITATION AS TO THIS CLASS OF EMPLOYEES, IT IS EVIDENT THAT NONE WAS INTENDED BY THE CONGRESS. TO HOLD OTHERWISE WOULD DEPRIVE THE WORDS "NOT LESS THAN" OF MEANING.

THE PURPOSE OF THE PRESENT LAW WAS TO GIVE THE DEPARTMENT DISCRETION TO OFFER AN INCENTIVE PROMOTION TO OUTSTANDING EMPLOYEES TO INDUCE THEM TO TRANSFER TO THE INSPECTION SERVICE. EMPLOYEES CONSIDERED FOR TRANSFER WHO ARE IN THE LOWER BRACKETS, EARNING LESS THAN THE SALARY RATE FOR A GRADE 5 INSPECTION SERVICE CLERK, MAY CONCEIVABLY BE GIVEN A PROMOTION OF AS MANY AS FOUR GRADES. EMPLOYEES EARNING MORE THAN THE SALARY RATE FOR GRADE 5 WHO ARE CONSIDERED FOR TRANSFER, ARE GENERALLY THOSE WHO HAVE DEMONSTRATED SPECIAL QUALIFICATIONS AND ABILITY, HAVE HAD AMPLE LENGTH OF SERVICE, AND ARE OFTEN ALREADY IN THE SUPERVISORY RANKS. TO CONSTRUE THIS LAW IN A WAY TO PRECLUDE PAYING THIS LATTER CLASS OF EMPLOYEES MORE THAN THEY ARE RECEIVING WOULD BE TO DEFEAT THE PURPOSES, SINCE IT WOULD PREVENT THE OFFERING OF ANY FINANCIAL INCENTIVE AND WOULD NULLIFY THE DISCRETION GIVEN TO THE POSTMASTER GENERAL BY LAW.

THE DISTINCTION BETWEEN AUTOMATIC GRADES AND ADDITIONAL GRADES EVOLVED THROUGH SUCCESSIVE DECISIONS OF YOUR OFFICE IN RELATION TO OTHER SITUATIONS IS NOT BELIEVED TO BE PROPERLY FOR CONSIDERATION HERE. ILLUSTRATE, IT IS DESIRED TO RELATE THE FACTS SURROUNDING TWO OF THE EMPLOYEES INVOLVED. ONE WAS A REVIEW CLERK IN THE BUREAU OF THE CHIEF INSPECTOR (DEPARTMENTAL), IN GRADE CAF 6, SALARY $3,271.60, WHO WAS TRANSFERRED ON AUGUST 1, 1946 TO A POSITION AS DIVISION HEADQUARTERS CLERK IN GRADE 12, $3,400. THIS EMPLOYEE WOULD HAVE BEEN ELIGIBLE FOR A WITHIN- GRADE PROMOTION ON OCTOBER 26, 1946, TO THE NEXT STEP IN GRADE CAF 6, $3,397.20. THE OTHER WAS A POST OFFICE CLERK WHO HAD BEEN IN GRADE 11, $3,100, SINCE JANUARY 1, 1946, AND WAS TRANSFERRED ON JANUARY 1, 1948 TO A POSITION AS DIVISION HEADQUARTERS CLERK IN GRADE 12, $3,400. THIS EMPLOYEE HAD PREVIOUSLY BEEN FREQUENTLY DETAILED TO ASSIST INSPECTORS AND HAD SHOWN SUCH ABILITY AND WORTH AS TO MAKE IT DESIRABLE TO TRANSFER HIM PERMANENTLY TO THE INSPECTION SERVICE. HIS OUTSTANDING QUALIFICATIONS HAD ALSO BEEN RECOGNIZED BY THE POSTMASTER,WHO CONTEMPLATED PROMOTING HIM TO A POSITION AS CLERK IN CHARGE AT A SALARY OF $3,500. HIS TRANSFER TO THE POSITION OF DIVISION HEADQUARTERS CLERK WAS THEREFORE AT AN IMMEDIATE PERSONAL SACRIFICE.

TO HOLD THAT SUCH EMPLOYEES WHEN TRANSFERRED TO THE INSPECTION SERVICE ARE NOT ENTITLED TO BE ASSIGNED TO POSITIONS HIGHER THAN GRADE 9, IS NOT ONLY INEQUITABLE BUT A NULLIFICATION OF THE PURPOSES OF THE LAW AND CONTRARY TO ITS PLAIN INTENT.

IN VIEW OF THE FOREGOING, I DESIRE TO INQUIRE WHETHER I AM NOT WITHIN THE DISCRETION VESTED IN ME BY SECTION 15 (F) IN FIXING THE SALARIES OF CLERKS AT DIVISION HEADQUARTERS OF POST-OFFICE INSPECTORS, INITIALLY UPON TRANSFER, AT ANY RATE ABOVE GRADE 5, INCLUDING GRADES 10, 11, AND 12, WHEN TRANSFERRING EMPLOYEES UNDER THE AUTHORITY OF THAT SECTION WHERE THE SALARY OF SUCH EMPLOYEES IS ALREADY EQUAL TO OR GREATER THAN THAT OF GRADE 5. IF MY UNDERSTANDING HAS BEEN WRONG, IT WOULD SEEM UNJUST TO APPLY THE RULING RETROACTIVELY TO CASES PROCESSED AND APPROVED PRIOR TO SUCH RULING.

WHILE I HAVE BEEN UNABLE TO IDENTIFY THE TWO EXAMPLES GIVEN IN YOUR LETTER, I DO FIND THAT EXCEPTIONS HAVE BEEN TAKEN BY THE POSTAL ACCOUNTS DIVISION, GENERAL ACCOUNTING OFFICE, IN SOME EIGHT OTHER RELATED CASES, AS FOLLOWS:

FRANK J. COSTELLO WAS RECEIVING COMPENSATION AT A RATE OF $3,100 PER ANNUM AS A REGULAR POST OFFICE CLERK AT HARTFORD, CONNECTICUT, AT THE TIME OF HIS SEPARATION ON DECEMBER 4, 1947. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, BOSTON, MASSACHUSETTS, WAS APPROVED EFFECTIVE DECEMBER 5, 1947 (ORDER NO. 36088 OF THE POSTMASTER GENERAL DATED DECEMBER 5, 1947, AND LETTER OF JANUARY 9, 1948, FROM THE CHIEF INSPECTOR).

ELDRED T. MILLER WAS RECEIVING A SALARY OF $3,100 PER ANNUM AS A REGULAR POST OFFICE CLERK AT SAINT LOUIS, MISSOURI, AT THE TIME OF HIS SEPARATION ON DECEMBER 31, 1947. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, SAINT LOUIS, MISSOURI, WAS APPROVED EFFECTIVE JANUARY 1, 1948 (ORDER NO. 36283 OF THE POSTMASTER GENERAL DATED DECEMBER 29, 1947, AND LETTER OF JANUARY 14, 1948, FROM THE CHIEF INSPECTOR).

COMPENSATION AT A RATE OF $3,100 PER ANNUM WAS AUTHORIZED FOR ANGELO J. CASELLA AS A REGULAR RAILWAY POSTAL CLERK AT NEW YORK, NEW YORK, AT THE TIME OF HIS SEPARATION ON MARCH 3, 1948. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, NEW YORK, NEW YORK, WAS APPROVED EFFECTIVE MARCH 4, 1948 (ORDER NO. 36788 OF THE POSTMASTER GENERAL DATED FEBRUARY 27, 1948, AND LETTER OF MARCH 17, 1948, FROM THE CHIEF INSPECTOR).

NICHOLAS A. DACONTA WAS RECEIVING A SALARY OF $3,100 PER ANNUM AS A REGULAR POST OFFICE CLERK AT NEW YORK, NEW YORK, AT THE TIME OF HIS SEPARATION ON JANUARY 25, 1948. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, NEW YORK, NEW YORK, WAS APPROVED EFFECTIVE JANUARY 26, 1948 (ORDER NO. 36476 OF THE POSTMASTER GENERAL DATED JANUARY 20, 1948, AND LETTER OF FEBRUARY 11, 1948, FROM THE CHIEF INSPECTOR).

COMPENSATION AT A RATE OF $3,100 PER ANNUM WAS AUTHORIZED FOR MAURY POLLINS AS A REGULAR RAILWAY POSTAL CLERK AT NEW YORK, NEW YORK, AT THE TIME OF HIS SEPARATION ON MAY 5, 1948. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, NEW YORK, NEW YORK, WAS APPROVED EFFECTIVE MAY 6, 1948 (ORDER NO. 37361 OF THE POSTMASTER GENERAL DATED MAY 4, 1948, AND LETTER OF MAY 12, 1948, FROM THE CHIEF INSPECTOR).

EDWIN A. SUNDQUIST WAS RECEIVING A SALARY OF $3,100 PER ANNUM AS A REGULAR POST OFFICE CLERK AT NEW YORK, NEW YORK, AT THE TIME OF HIS SEPARATION ON FEBRUARY 29, 1948. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, NEW YORK, NEW YORK, WAS APPROVED EFFECTIVE MARCH 1, 1948 (ORDER NO. 36788 OF THE POSTMASTER GENERAL DATED FEBRUARY 27, 1948, AND LETTER OF MARCH 17, 1948, FROM THE CHIEF INSPECTOR).

EDWARD C. PASCHKE WAS RECEIVING A SALARY OF $3,100 PER ANNUM AS A REGULAR POST OFFICE CLERK AT SEATTLE, WASHINGTON, AT THE TIME OF HIS SEPARATION ON DECEMBER 31, 1947. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, SEATTLE, WASHINGTON, WAS APPROVED EFFECTIVE JANUARY 1, 1948 (ORDER NO. 36303 OF THE POSTMASTER GENERAL DATED DECEMBER 31, 1947, AND LETTER OF JANUARY 14, 1948, FROM THE CHIEF INSPECTOR).

DON A. PETERSON WAS RECEIVING COMPENSATION AT A RATE OF $3,100 PER ANNUM AS A REGULAR POST OFFICE CLERK AT SEATTLE, WASHINGTON, AT THE TIME OF HIS SEPARATION ON NOVEMBER 30, 1947. HIS TRANSFER TO CLERK, GRADE 10, $3,200 PER ANNUM, POST OFFICE INSPECTION SERVICE, SEATTLE, WASHINGTON, WAS APPROVED EFFECTIVE DECEMBER 1, 1947 (ORDER NO. 35993 OF THE POSTMASTER GENERAL DATED NOVEMBER 25, 1947, AND LETTER OF JANUARY 9, 1948, FROM THE CHIEF INSPECTOR).

EXAMINATION OF THE LEGISLATIVE HISTORY OF THE POSTAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 134, 59 STAT. 435, AS WELL AS A CAREFUL READING OF THE ACT ITSELF, FAILS TO REVEAL ANY LEGISLATIVE INTENT TO EXCLUDE ONE OR MORE CLASSES OF CLERKS IN THE POSTAL SERVICE FROM THE PURVIEW OF THE WORD,"CLERKS," AS USED IN SECTION 15 (F) OF SAID ACT, 59 STAT. 451. IT IS THE VIEW OF THIS OFFICE THAT TRANSFERS OF CLERKS MADE PURSUANT TO THAT SECTION PROPERLY MAY BE AUTHORIZED IN THE DISCRETION OF THE POSTMASTER GENERAL, IRRESPECTIVE OF THE BRANCH OF THE POSTAL SERVICE IN WHICH THE CLERK IS EMPLOYED PRIOR TO THE TRANSFER. THAT IS TO SAY, THE EMPLOYEE MAY BE A FIELD POST OFFICE CLERK, A RAILWAY POSTAL CLERK, A CLERK IN THE MOTOR VEHICLE SERVICE, A CLERK OF THE CUSTODIAL SERVICE, ETC. IT FOLLOWS THAT EACH OF THE EIGHT TRANSFERS TO WHICH EXCEPTION WAS TAKEN BY THIS OFFICE, ABOVE, AS WELL AS THE TRANSFER OF THE POST OFFICE CLERK, THE SECOND CASE REFERRED TO IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER, FALLS WITHIN THE SCOPE OF THE TRANSFERS SPECIFIED IN SECTION 15 (F) OF THE INVOLVED STATUTE. HOWEVER, BEARING IN MIND THE FACT THAT PUBLIC LAW 134 DEALS WITH EMPLOYEES OF THE POSTAL SERVICE (AS DISTINGUISHED FROM THE DEPARTMENTAL SERVICE), AS WELL AS THE FACT THAT THE TWO SERVICES ARE DISSIMILAR IN CERTAIN RESPECTS (FOR EXAMPLE, THERE ARE NO AUTOMATIC GRADES IN THE DEPARTMENTAL SERVICE), I AM RELUCTANT TO HOLD THAT SECTION 15 (F) APPLIES TO DEPARTMENTAL CLERKS. ACCORDINGLY, UPON THE BASIS OF THE RECORD NOW BEFORE ME, I MUST CONCLUDE THAT THE ASSIGNMENT OF THE REVIEW CLERK (DEPARTMENTAL/--- THE FIRST ILLUSTRATED CASE IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER--- AT A SALARY ABOVE THE TOP AUTOMATIC GRADE WAS UNAUTHORIZED, AND THE EXCESS PAYMENTS MADE TO HIM ARE FOR COLLECTING BACK. SEE 27 COMP. GEN. 672. THUS, THERE REMAINS FOR CONSIDERATION ONLY THE QUESTION AS TO WHETHER THE COMPENSATION RATE SET UPON TRANSFER IN EACH OF THOSE CASES--- EXCLUSIVE OF THE TRANSFER OF THE REVIEW CLERK COVERED BY THE FIRST ILLUSTRATED CASE IN YOUR LETTER--- WAS IN EXCESS OF THE MAXIMUM RATE PERMITTED BY THE APPLICABLE LAW.

WHILE SECTION 15 (F) PRESCRIBES THE MAXIMUM SALARY TO WHICH EMPLOYEES EARNING LESS THAN $2,300 PER ANNUM (INCREASED BY LATER LEGISLATION) MAY BE TRANSFERRED, NO STATUTORY MAXIMUM IS PRESCRIBED FOR EMPLOYEES EARNING A SUM EQUAL TO OR IN EXCESS OF THAT STATUTORY FIGURE. NOR IS THE LANGUAGE OF SAID SECTION SUCH AS TO PROHIBIT TRANSFERS THEREUNDER OF EMPLOYEES WHO, PRIOR TO TRANSFER, ARE IN ONE OF THE ADDITIONAL GRADES PROVIDED FOR BY PUBLIC LAW 134, FOR EXAMPLE, THE ADDITIONAL GRADES SPECIFIED IN THE FIRST PROVISO OF SECTION 12 (A) OF THAT LAW, 59 STAT. 443. IN OTHER WORDS, WHETHER THE EMPLOYEES EMBRACED BY SECTION 15 (F) BE IN ONE OF THE VARIOUS AUTOMATIC GRADES PRIOR TO THEIR TRANSFERS OR IN ONE OF THE ADDITIONAL GRADES IS IMMATERIAL. IN EITHER SITUATION, THE POSTMASTER GENERAL, BY VIRTUE OF THE SAID STATUTORY DISCRETION, MAY TRANSFER "CLERKS, OR CARRIERS IN THE CITY DELIVERY SERVICE" TO THE POSITION OF "CLERK AT DIVISION HEADQUARTERS AND OTHER POSTS OF DUTY OF POST-OFFICE INSPECTORS.' THAT BEING SO, IT REASONABLY MAY BE CONCLUDED THAT TRANSFERS OTHERWISE WITHIN THE SCOPE OF SECTION 15 (F) FROM POSITIONS OF CLERKS OR CARRIERS IN THE CITY DELIVERY SERVICE OF EMPLOYEES RECEIVING SALARIES EQUAL TO OR IN EXCESS OF $2,300 PER ANNUM MAY BE MADE TO ANY OF THE SALARY GRADES IN THE INSPECTION SERVICE TO WHICH TRANSFERRED, INCLUDING THOSE ABOVE THE AUTOMATIC GRADES. WITH RESPECT TO THE DECISION OF MAY 21, 1948, B-75945, 27 COMP. GEN. 720, REFERRED TO IN YOUR LETTER, AND THE DECISION OF MAY 4, 1948, B-75128, 27 COMP. GEN. 672, TO YOU, IT SUFFICES TO STATE THAT THOSE DECISIONS DID NOT INVOLVE TRANSFERS UNDER SECTION 15 (F).

ACCORDINGLY, ALL EIGHT AUDIT EXCEPTIONS HEREINBEFORE SET OUT WILL BE REMOVED.