B-79747, DECEMBER 6, 1948, 28 COMP. GEN. 339

B-79747: Dec 6, 1948

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MAY NOT BE IN A GRADE HIGHER THAN THE GRADE TO WHICH THE EMPLOYEE WOULD HAVE PROGRESSED. AS FOLLOWS: WILL YOU PLEASE ADVISE AT YOUR EARLIEST CONVENIENCE WHETHER THIS DEPARTMENT IS WITHIN THE LAW IN APPOINTING A SUBSTITUTE CLERK IN GRADE 1 TO A REGULAR POSITION IN GRADE 1 AND SIMILARLY FOR OTHER GRADES UP TO GRADE 9. A FLAT $456 ANNUAL RAISE WAS GRANTED TO REGULAR CLERKS AND ?25 AN HOUR INCREASE WAS ALLOWED SUBSTITUTE CLERKS. THIS IS COMPUTED ON THE BASIC WORK YEAR OF 2. THIS INCREASE IS $56 MORE THAN THE ANNUAL INCREASE GRANTED REGULAR CLERKS. IT WAS PROVIDED IN SECTION 16 (L) OF PUBLIC LAW 134. THE $56 DIFFERENTIAL BETWEEN THE POTENTIAL SUBSTITUTE ANNUAL PAY RATE AND THE REGULAR CLERICAL PAY RATE LEAVES THE SUBSTITUTE ANNUAL PAY RATE AND THE REGULAR CLERICAL PAY RATE LEAVES THE SUBSTITUTE RECEIVING A SALARY WHICH IS MORE THAN HALF-WAY BETWEEN THE REGULAR GRADE STEPS FROM GRADE 1 THROUGH GRADE 9.

B-79747, DECEMBER 6, 1948, 28 COMP. GEN. 339

POSTAL SERVICE - SUBSTITUTE EMPLOYEES - GRADE UPON APPOINTMENT TO REGULAR POSITION THE APPOINTMENT OF A SUBSTITUTE EMPLOYEE TO A REGULAR POSITION UNDER THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, AND THE ACT OF MARCH 6, 1946, AS AMENDED, MAY NOT BE IN A GRADE HIGHER THAN THE GRADE TO WHICH THE EMPLOYEE WOULD HAVE PROGRESSED, INCLUDING BENEFITS AUTHORIZED BY THE 1945 ACT, HAD HIS ORIGINAL APPOINTMENT BEEN TO A REGULAR POSITION OF GRADE 1, NOTWITHSTANDING THE FACT THAT THE POTENTIAL EARNINGS OF THE SUBSTITUTE EMPLOYEE MAY EXCEED THE ANNUAL SALARY OF REGULAR EMPLOYEES IN EQUIVALENT GRADES.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, DECEMBER 6, 1948;

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 27, 1948, REFERENCE 4, AS FOLLOWS:

WILL YOU PLEASE ADVISE AT YOUR EARLIEST CONVENIENCE WHETHER THIS DEPARTMENT IS WITHIN THE LAW IN APPOINTING A SUBSTITUTE CLERK IN GRADE 1 TO A REGULAR POSITION IN GRADE 1 AND SIMILARLY FOR OTHER GRADES UP TO GRADE 9, IN VIEW OF THE EFFECT OF SECTION 16 (L), PUBLIC LAW 134, 79TH CONGRESS AND PUBLIC LAW 900, 80TH CONGRESS. THIS LATTER LAW PROVIDED PAY INCREASES FOR FIELD PERSONNEL OF THE POST OFFICE DEPARTMENT. A FLAT $456 ANNUAL RAISE WAS GRANTED TO REGULAR CLERKS AND ?25 AN HOUR INCREASE WAS ALLOWED SUBSTITUTE CLERKS. THE ?25 HOURLY INCREASE PROVIDED SUBSTITUTES WITH A POTENTIAL ANNUAL INCREASE OF $506. THIS IS COMPUTED ON THE BASIC WORK YEAR OF 2,024 HOURS. THIS INCREASE IS $56 MORE THAN THE ANNUAL INCREASE GRANTED REGULAR CLERKS.

IT WAS PROVIDED IN SECTION 16 (L) OF PUBLIC LAW 134, 79TH CONGRESS, THAT UPON PROMOTION OF THE SUBSTITUTE CLERK TO A REGULAR POSITION, HE SHALL BE PLACED IN A SALARY GRADE WHICH CORRESPONDS TO HIS SALARY GRADE AS A SUBSTITUTE.

THE $56 DIFFERENTIAL BETWEEN THE POTENTIAL SUBSTITUTE ANNUAL PAY RATE AND THE REGULAR CLERICAL PAY RATE LEAVES THE SUBSTITUTE ANNUAL PAY RATE AND THE REGULAR CLERICAL PAY RATE LEAVES THE SUBSTITUTE RECEIVING A SALARY WHICH IS MORE THAN HALF-WAY BETWEEN THE REGULAR GRADE STEPS FROM GRADE 1 THROUGH GRADE 9. A SUBSTITUTE IN GRADE 1 RECEIVES A POTENTIAL ANNUAL SALARY, THEREFORE, WHICH IS CLOSER TO THE SALARY OF REGULAR GRADE 2 THAN REGULAR GRADE 1. IT HAS BEEN THE PRACTICE TO APPOINT A GRADE 1 SUBSTITUTE AS A GRADE 1 REGULAR, AND SO ON FOR CORRESPONDING GRADES.

UPON APPOINTMENT OF SUBSTITUTES AS REGULAR CLERKS, UNDER THE COMBINED PROVISIONS OF THE TWO LAWS CITED ABOVE, IT WOULD SEEM THAT A SUBSTITUTE IN GRADE 1 WOULD BE APPOINTED AS A REGULAR CLERK IN GRADE 2 AND SIMILARLY FOR OTHER GRADE STEPS. UNLESS THIS PRINCIPLE APPLIES, A SUBSTITUTE WOULD GAIN NOTHING, BUT WOULD ACTUALLY LOSE A POTENTIAL ANNUAL INCOME OF $56 A YEAR BY ACCEPTING A REGULAR APPOINTMENT. IT SEEMS THAT SUBSTITUTES ARE NOT ACCEPTING REGULAR APPOINTMENTS. SUCH AN ATTITUDE WILL SERIOUSLY EMBARRASS THE FIELD OPERATIONS OF THIS DEPARTMENT.

IN VIEW OF THE FACT THAT PUBLIC LAW 134 REFERS TO SUBSTITUTES' SALARY GRADES AS THE GOVERNING FACTOR IN DETERMINING HIS GRADE UPON APPOINTMENT AS A REGULAR CLERK, IT APPEARS THAT THE SUBSTITUTE SHOULD BE APPOINTED TO THE NUMERICAL REGULAR GRADE MOST NEARLY CORRESPONDING TO HIS SALARY. HENCE, GRADE 1 SUBSTITUTES WOULD BE APPOINTED TO REGULAR GRADE 2 AND SO ON FOR OTHER GRADES, WITH GENERAL 9 SUBSTITUTES BEING APPOINTED TO REGULAR GRADE 10.

YOUR LETTER REFERS SPECIFICALLY TO SECTION 16 (1) OF THE ACT OF JULY 6, 1945, 59 STAT. 435, 453; HOWEVER, IT IS ASSUMED FROM THE GENERAL TENOR OF YOUR INQUIRY THAT IT WAS INTENDED TO COMPREHEND ALL CLASSES OF SUBSTITUTE EMPLOYEES IN THE SEVERAL BRANCHES OF THE POSTAL SERVICE AND YOUR LETTER HAS BEEN CONSIDERED IN THAT LIGHT.

THE POSTAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 134, 59 STAT. 435, EXPRESSLY SETS FORTH THE HOURLY RATES OF PAY IN THE CORRESPONDING GRADES FOR THE SEVERAL CATEGORIES OF SUBSTITUTE EMPLOYEES OF THE POSTAL SERVICE. ELSEWHERE IN THE SAID ACT, WHERE SUBSTITUTE POSITIONS ARE AUTHORIZED, IT IS PROVIDED SPECIFICALLY FOR THE PROMOTION OF SUBSTITUTES, AND THE SALARY TO BE PAID WHEN THEY ARE GIVEN REGULAR APPOINTMENTS. CREDITS AND OTHER BENEFITS FOR SUBSTITUTE SERVICE ARE FURTHER PROVIDED FOR IN SUBSEQUENT AMENDATORY ACTS. SEE ACT OF MARCH 6, 1946, PUBLIC LAW 317, 60 STAT. 35, AND ACT OF APRIL 15, 1947, PUBLIC LAW 35, 61 STAT. 40.

THE ACTS OF MAY 21, 1946, PUBLIC LAW 386, 60 STAT. 203, AND JULY 3, 1948, PUBLIC LAW 900, 62 STAT. 1260, RESPECTIVELY, PROVIDE ADDITIONAL COMPENSATION TO THOSE CLASSES OF EMPLOYEES INCLUDED IN THE ACT OF JULY 6, 1945, SUPRA.

NOWHERE IN THE LANGUAGE OR HISTORIES OF THE LEGISLATION REFERRED TO ABOVE DO I FIND AUTHORITY, EITHER EXPRESS OR IMPLIED, TO APPOINT SUBSTITUTE EMPLOYEES TO HIGHER GRADES OF A REGULAR POSITION NOTWITHSTANDING THE FACT THE POTENTIAL EARNINGS OF A SUBSTITUTE EMPLOYEE MAY EXCEED THE ANNUAL SALARY OF REGULAR EMPLOYEES IN EQUIVALENT GRADES.

WHILE THERE IS NOTED THE EMPHASIS PLACED IN YOUR LETTER UPON A SUBSTITUTE'S PLACEMENT IN A REGULAR POSITION IN A SALARY GRADE WHICH CORRESPONDS TO HIS SALARY GRADE AS A SUBSTITUTE--- TERMS USED IN THE 1945 STATUTE--- THERE IS FOR NOTING ALSO THAT THE ACT OF APRIL 15, 1947, PUBLIC LAW 35, CONTAINS NO SUCH REFERENCE, THE PERTINENT PROVISIONS THEREOF READING AS FOLLOWS:

* * * PROVIDED FURTHER, THAT UPON APPOINTMENT OF A SUBSTITUTE EMPLOYEE TO A REGULAR POSITION HE SHALL NOT BE PLACED IN OR PROMOTED TO A GRADE HIGHER THAN THE GRADE TO WHICH HE WOULD HAVE PROGRESSED, INCLUDING BENEFITS AUTHORIZED BY SECTION 23 OF PUBLIC LAW 134, APPROVED JULY 6, 1945, HAD HIS ORIGINAL APPOINTMENT BEEN TO A REGULAR POSITION OF GRADE 1: * * *.

I AM INCLINED TO THE VIEW THAT THE APPOINTMENT OF SUBSTITUTE EMPLOYEES TO THE SAME GRADES IN REGULAR POSITIONS, WHICH YOU STATE HAS HERETOFORE BEEN YOUR PRACTICE, IS NOT ONLY LAWFUL BUT IS THE ONLY METHOD OF EFFECTING SUCH APPOINTMENTS PROVIDED BY THE ACT OF JULY 6, 1945, AS AMENDED. ACCORDINGLY, THE CIRCUMSTANCE THAT PROVISIONS OF PUBLIC LAW 900 MIGHT OPERATE TO INCREASE THE ANNUAL EARNINGS OF A SUBSTITUTE EMPLOYEE ABOVE THE ANNUAL SALARY ATTACHING TO A CORRESPONDING REGULAR POSITION CANNOT SERVE AS A BASIS FOR APPOINTING SUBSTITUTE EMPLOYEES TO REGULAR POSITIONS AT A HIGHER GRADE.