B-82624, B-82737, OCTOBER 17, 1949, 29 COMP. GEN. 191

B-82624,B-82737: Oct 17, 1949

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MAY HAVE SUCH SUBSTITUTE SERVICE COUNTED AS CREDITABLE SERVICE SO AS TO BE ENTITLED TO THE 4 ADDITIONAL GRADES AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 6. FOR THE PURPOSE OF DETERMINING WHETHER THE TWO EMPLOYEES INVOLVED ARE ENTITLED TO THE FOUR ADDITIONAL GRADES AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 6. FOR ANY EMPLOYEE UPON PROMOTION FROM SUBSTITUTE TO REGULAR "WHO WAS A SUBSTITUTE IN THE POSTAL SERVICE PRIOR TO JULY 1. WAS TRANSFERRED ON MARCH 16. HE WAS RETRANSFERRED TO THE POSITION OF SUBSTITUTE CLERK AND WAS PROMOTED TO REGULAR CLERK ON MAY 1. IT IS STATED IN YOUR LETTER THAT HE WAS NOT GIVEN THE BENEFIT OF FOUR ADDITIONAL GRADES UNDER PUBLIC LAW 35. WAS TRANSFERRED ON FEBRUARY 1.

B-82624, B-82737, OCTOBER 17, 1949, 29 COMP. GEN. 191

COMPENSATION - POSTAL SERVICE - INITIAL SALARY RATE UPON APPOINTMENT OF SUBSTITUTE EMPLOYEE AS REGULAR SUBSTITUTE POSTAL EMPLOYEES WHO, PRIOR TO JULY 1, 1945, PERFORMED SERVICE IN THE SAME POSITIONS OR CLASSIFICATIONS TO WHICH LATER APPOINTED AS REGULAR, WITHOUT A BREAK IN SERVICE, AFTER INTERVENING SERVICE AS SUBSTITUTE SPECIAL DELIVERY MESSENGERS IN POST OFFICES OF THE FIRST CLASS, MAY HAVE SUCH SUBSTITUTE SERVICE COUNTED AS CREDITABLE SERVICE SO AS TO BE ENTITLED TO THE 4 ADDITIONAL GRADES AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 6, 1946, AS AMENDED. 26 COMP. GEN. 449, AND 28 ID. 583, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 17, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 29, 1949, REFERENCE 12, REQUESTING RECONSIDERATION OF DECISION OF APRIL 19, 1949, TO YOU, B 82624, 28 COMP. GEN. 583, AND REVIEW OF TWO SPECIFIC CASES, SET FORTH BELOW, FOR THE PURPOSE OF DETERMINING WHETHER THE TWO EMPLOYEES INVOLVED ARE ENTITLED TO THE FOUR ADDITIONAL GRADES AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 6, 1946, PUBLIC LAW 317, AS AMENDED BY SECTION 3 OF THE ACT OF APRIL 15, 1947, PUBLIC LAW 35, 61 STAT. 40, FOR ANY EMPLOYEE UPON PROMOTION FROM SUBSTITUTE TO REGULAR "WHO WAS A SUBSTITUTE IN THE POSTAL SERVICE PRIOR TO JULY 1, 1945.'

THE FIRST CASE REFERRED TO IN YOUR LETTER OF JULY 29 INVOLVES PAUL M. SIMONS, AN EMPLOYEE OF THE BRADFORD, PENNSYLVANIA, POST OFFICE, A FIRST- CLASS POST OFFICE. MR. SIMONS HAD SERVICE AS A SUBSTITUTE CLERK PRIOR TO JULY 1, 1945, AND WAS TRANSFERRED ON MARCH 16, 1948, TO THE POSITION OF SUBSTITUTE SPECIAL DELIVERY MESSENGER PURSUANT TO SECTION 22 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 459, AUTHORIZING REGULAR SALARY GRADES FOR SPECIAL DELIVERY MESSENGERS EMPLOYED ON A FULL-TIME BASIS IN POST OFFICES OF THE FIRST CLASS. ON APRIL 1, 1948, HE WAS RETRANSFERRED TO THE POSITION OF SUBSTITUTE CLERK AND WAS PROMOTED TO REGULAR CLERK ON MAY 1, 1948, GRADE 4, $2,400 PER ANNUM, TO CORRESPOND WITH HIS RATING AS A SUBSTITUTE CLERK, GRADE 4, AT $1.19 PER HOUR. IT IS STATED IN YOUR LETTER THAT HE WAS NOT GIVEN THE BENEFIT OF FOUR ADDITIONAL GRADES UNDER PUBLIC LAW 35, ON THE BASIS OF DECISION OF JANUARY 3, 1947, B-62218, 26 COMP. GEN. 449.

THE SECOND CASE INVOLVES ERWIN H. FRY, AN EMPLOYEE OF THE ALLENTOWN, PENNSYLVANIA, POST OFFICE, ALSO A FIRST-CLASS POST OFFICE. MR. FRY HAD SERVICE AS A SUBSTITUTE CARRIER PRIOR TO JULY 1, 1945, AND WAS TRANSFERRED ON FEBRUARY 1, 1947, TO THE POSITION OF SUBSTITUTE SPECIAL DELIVERY MESSENGER. ON APRIL 1, 1948, HE WAS RETRANSFERRED TO THE POSITION OF SUBSTITUTE CARRIER AND WAS PROMOTED TO REGULAR CARRIER ON AUGUST 1, 1948, GRADE 5, $2,950 PER ANNUM, TO CORRESPOND WITH HIS SALARY AS A SUBSTITUTE CARRIER, GRADE 5, $1.49 PER HOUR. AS IN THE FIRST CASE, MR. FRY WAS NOT GIVEN THE BENEFITS OF THE FOUR ADDITIONAL GRADES UNDER PUBLIC LAW 35.

PUBLIC LAW 317, AS AMENDED BY PUBLIC LAW 35, 61 STAT. 40, ABOVE, PRESCRIBES, AMONG OTHER THINGS, THE METHOD FOR COMPUTING ACTUAL SUBSTITUTE SERVICE OF ANY EMPLOYEE WHO WAS A SUBSTITUTE IN THE POSTAL SERVICE PRIOR TO JULY 1, 1945, AND PROVIDES THAT---

* * * UPON THE APPOINTMENT OF ANY SUCH EMPLOYEE TO A REGULAR POSITION HE SHALL BE PLACED IN THE SALARY GRADE TO WHICH HE WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT BEEN MADE TO A REGULAR POSITION OF GRADE 1,PLUS 4 GRADES, AND THE PROGRESSION SHALL BE COMPUTED ON THE BASIS OF YEARS OF SUBSTITUTE SERVICE AS HEREIN PROVIDED * * *. (ITALICS SUPPLIED.) SUCH PROVISIONS HAVE BEEN INTERPRETED AS APPLYING ONLY TO EMPLOYEES WHO WERE ENTITLED TO COUNT SUBSTITUTE SERVICE RENDERED PRIOR TO JULY 1, 1945. COMP. GEN. 449. SUCH INTERPRETATION WAS RESTATED MORE SPECIFICALLY IN 28 COMP. GEN. 583, ABOVE, WHEREIN IT WAS HELD (QUOTING THE SYLLABUS), AS FOLLOWS:

A SUBSTITUTE POSTAL SERVICE EMPLOYEE WHO, PRIOR TO JULY 1, 1945, PERFORMED SERVICE IN A DIFFERENT POSITION AND CLASSIFICATION FROM THOSE TO WHICH THE EMPLOYEE WAS PROMOTED AS REGULAR MAY NOT HAVE SUCH SUBSTITUTE SERVICE COUNTED AS CREDITABLE SERVICE SO AS TO BE ENTITLED TO THE 4 ADDITIONAL GRADES AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 6, 1946, AS AMENDED, EVEN THOUGH THE SUBSTITUTE SERVICE PRIOR TO JULY 1, 1945, WAS IN A POSITION WITHIN THE SAME BRANCH OF THE POSTAL SERVICE AS THAT IN WHICH HE WAS APPOINTED AS REGULAR.

THERE HAVE NOT BEEN PRESENTED ANY ADDITIONAL FACTS OR PERSUASIVE ARGUMENTS WHICH JUSTIFY A REVERSAL OF SUCH HOLDING, AND, UPON RECONSIDERATION, THE HOLDING IS AFFIRMED.

HOWEVER, THE CASES CONSIDERED IN THE SAID DECISIONS OF 26 COMP. GEN. 449 AND 28 COMP. GEN. 583 INVOLVE EMPLOYEES WHO HAD NO SUBSTITUTE SERVICE PRIOR TO JULY 1, 1945, IN THE POSITIONS OR CLASSIFICATIONS TO WHICH APPOINTED AS REGULARS AND SUCH DECISIONS ARE NOT NECESSARILY FOR APPLICATION TO THE CASES PRESENTED IN YOUR LETTER, WHERE THE SUBSTITUTES TRANSFERRED TO OTHER POSITIONS AND THEN RETRANSFERRED WITHOUT A BREAK IN SERVICE TO THEIR ORIGINAL POSITIONS OR CLASSIFICATIONS IN WHICH THEY HAD SUBSTITUTE SERVICE PRIOR TO JULY 1, 1945, AND IN WHICH THEY SUBSEQUENTLY WERE PROMOTED TO REGULAR.

THERE APPEARS NO REQUIREMENT, IN THE APPLICATION OF THE PROVISIONS OF PUBLIC LAW 317, AS AMENDED, SUPRA, THAT A SUBSTITUTE EMPLOYEE'S PREVIOUSLY EARNED CREDITABLE PERIOD OF POSTAL SERVICE BE DISREGARDED IN A SITUATION WHERE, AFTER TRANSFER FROM ONE SUBSTITUTE POSITION TO ANOTHER SUBSTITUTE POSITION, HE IS RETRANSFERRED TO THE ORIGINAL POSITION WITHOUT A BREAK IN SERVICE. COMPARE 27 COMP. GEN. 720 AND 27 ID. 773. ACCORDINGLY, ASSUMING THAT MR. SIMONS AND MR. FRY ARE ENTITLED TO CREDIT FOR SUBSTITUTE SERVICE AS A CLERK AND AS A CARRIER, RESPECTIVELY, ACTUALLY RENDERED PRIOR TO JULY 1, 1945, IN THE SAME POSITIONS OR CLASSIFICATIONS TO WHICH APPOINTED AS REGULARS AFTER INTERVENING SERVICE AS SUBSTITUTE SPECIAL DELIVERY MESSENGERS IN POST OFFICES OF THE FIRST CLASS, THE EMPLOYEES ARE ENTITLED TO THE FOUR ADDITIONAL GRADES AUTHORIZED BY PUBLIC LAW 35 AS OF THE TIME OF THEIR PROMOTION TO REGULAR POSITIONS.