B-9162, APRIL 15, 1940, 19 COMP. GEN. 861

B-9162, APRIL 15, 1940, 19 COMP. GEN. 861

COMPENSATION AND PROMOTIONS - EMPLOYEES OF POST OFFICES ADVANCED FROM THIRD TO SECOND CLASS CLERKS IN A THIRD-CLASS POST OFFICE WHO BECOME CLERKS IN A SECOND CLASS POST OFFICE WHEN THE OFFICE IS ADVANCED TO THE SECOND CLASS, ARE ENTITLED TO THE BENEFITS OF THE STATUTORY PROVISIONS REGARDING SALARY RATES AND PROMOTIONS FOR CLERKS OF OFFICES OF THE SECOND CLASS FROM THE DATE OF SUCH CHANGE-OVER, EVEN THOUGH THE CIVIL SERVICE COMMISSION DOES NOT APPROVE THEIR QUALIFICATIONS FOR THE POSITIONS UNTIL A LATER DATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, APRIL 15, 1940:

I HAVE YOUR LETTER OF MARCH 19, 1940, AS FOLLOWS:

ON JULY 1, 1940, A NUMBER OF POST OFFICES WILL BE ADVANCED FROM THE THIRD TO THE SECOND CLASS, WHEREUPON THE CLERICAL EMPLOYEES IN SUCH OFFICES WILL BECOME ELIGIBLE UNDER RULE II, SECTION 7, OF THE CIVIL SERVICE RULES, FOR INCLUSION IN THE CLASSIFIED CIVIL SERVICE. HERETOFORE IT HAS BEEN THE PRACTICE OF THE DEPARTMENT TO CONFER A CLASSIFIED STATUS EFFECTIVE ON JULY 1, REGARDLESS OF THE FACT THAT THE COMMISSION MAY NOT HAVE ISSUED FORMAL AUTHORITY TO SO CLASSIFY THESE EMPLOYEES UNTIL A LATER DATE. IT IS PROPOSED IN THE PRESENT YEAR TO CONFER A CLASSIFIED STATUS ON THE FIRST OF THE MONTH FOLLOWING FORMAL NOTICE FROM THE CIVIL SERVICE COMMISSION THAT THE EMPLOYEE HAS QUALIFIED. BETWEEN JULY 1 AND THE DATE OF CLASSIFICATION THE EMPLOYEE WILL BE CARRIED ON THE RECORDS OF THE DEPARTMENT EITHER AS A REGULAR CLERK AT AN ANNUAL RATE OF SALARY OR AS A SUBSTITUTE CLERK PENDING CLASSIFICATION.

YOUR DECISION IS REQUESTED ON THE QUESTION WHETHER THE TIME SERVED BY SUCH CLERK IN AN UNCLASSIFIED STATUS AFTER JULY 1, 1940, SHOULD BE CONSIDERED FOR THE PURPOSE OF ADJUSTING SALARY AND AUTOMATIC PROMOTIONS UNDER THE PROVISIONS OF 39 U.S.C., 1934 ED., SUPP. V, SEC. 104.

SECTION 104, TITLE 39, U.S. CODE, REFERRED TO IN YOUR LETTER, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

SUBSTITUTE CLERKS IN FIRST- AND SECOND-CLASS POST OFFICES AND SUBSTITUTE LETTER CARRIERS IN THE CITY DELIVERY SERVICE WHEN APPOINTED REGULAR CLERKS OR CARRIERS SHALL HAVE CREDIT FOR ACTUAL TIME SERVED, INCLUDING TIME SERVED AS SPECIAL-DELIVERY MESSENGERS, ON A BASIS OF ONE YEAR FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS SERVED AS SUBSTITUTE OR MESSENGER, AND SHALL BE APPOINTED TO THE GRADE TO WHICH SUCH CLERK OR CARRIER WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS SUBSTITUTE BEEN TO GRADE 1. ANY FRACTIONAL PART OF A YEAR'S SUBSTITUTE SERVICE WILL BE INCLUDED WITH HIS SERVICE AS A REGULAR CLERK OR CARRIER IN THE CITY DELIVERY SERVICE IN DETERMINING ELIGIBILITY FOR PROMOTION TO THE NEXT HIGHER GRADE FOLLOWING APPOINTMENT TO A REGULAR POSITION.

SECTIONS 6 AND 7 OF RULE II OF THE CIVIL SERVICE RULES, PROVIDE AS FOLLOWS:

6. EXCEPTED EMPLOYEES--- WHEN CLASSIFIED.--- EXCEPT AS PROVIDED IN SECTION 7 OF THIS RULE A PERSON HOLDING A POSITION WHEN IT BECOMES CLASSIFIED OR OTHERWISE SUBJECT TO COMPETITIVE EXAMINATION SHALL, UPON RECOMMENDATION TO THE COMMISSION BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT IN WHICH HE IS EMPLOYED, HAVE ALL THE RIGHTS WHICH HE WOULD ACQUIRE IF APPOINTED THERETO UPON COMPETITIVE EXAMINATION: PROVIDED, (A) THAT HE WAS APPOINTED AT LEAST 6 MONTHS PRIOR TO THE EFFECTIVE DATE OF THE CHANGE IN THE STATUS OF THE POSITION; (B) THAT HE HAS PERFORMED SATISFACTORY ACTIVE SERVICE DURING AT LEAST 3 MONTHS OF THE YEAR IMMEDIATELY PRECEDING THE CHANGE IN THE STATUS OF THE POSITION; (C) THAT HE SHALL PASS SUCH APPROPRIATE NONCOMPETITIVE TESTS OF FITNESS AS THE COMMISSION MAY PRESCRIBE; AND (D) THAT HE IS NOT DISQUALIFIED BY ANY OF THE PROVISIONS OF SECTION 3 OF CIVIL SERVICE RULE V OR OF ANY PROVISION OF THE CIVIL SERVICE ACT AND RULES, OR OF ANY OTHER STATUTE OR EXECUTIVE ORDER. ANY SUCH PERSON WHO FAILS TO MEET THE FOREGOING REQUIREMENTS OF THIS SECTION SHALL BE SEPARATED FROM THE SERVICE WITHIN 30 DAYS (EXCLUSIVE OF LEAVE TO WHICH HE IS ENTITLED) AFTER THE COMMISSION REPORTS THAT HE IS INELIGIBLE FOR CLASSIFICATION UNLESS THE HEAD OF THE AGENCY CONCERNED CERTIFIES TO THE COMMISSION THAT SUCH PERSON HAS RENDERED SATISFACTORY SERVICE AND THAT HE SHOULD BE RETAINED ALTHOUGH WITHOUT ACQUIRING A COMPETITIVE CLASSIFIED STATUS.

7. CLASSIFICATION IN POST OFFICES.--- THE POSTMASTER GENERAL SHALL PROMPTLY NOTIFY THE COMMISSION OF EACH ORDER FOR THE ADVANCEMENT OF ANY POST OFFICE FROM THE THIRD CLASS TO THE SECOND CLASS, OR FOR THE CONSOLIDATION OF ANY POST OFFICE WITH ONE IN WHICH THE EMPLOYEES ARE CLASSIFIED AS COMPETITIVE. ON THE DATE OF EFFECT OF SUCH ORDER, SECTION 6 OF THIS RULE SHALL APPLY TO THE POSITIONS, OFFICERS, AND EMPLOYEES OF THE OFFICES AFFECTED, AND ALL OTHER PROVISIONS OF THESE RULES SHALL BECOME APPLICABLE TO ALL OFFICERS AND EMPLOYEES WHO SO QUALIFY AND TO ALL SUCH POSITIONS THEREAFTER FILLED IN THE SAME MANNER AS THEY APPLY TO THOSE IN OFFICES NOW CLASSIFIED. THE POSTMASTER GENERAL SHALL, UPON THE DATE HE REPORTS THE ADVANCEMENT OF ANY POST OFFICE FROM THE THIRD TO THE SECOND CLASS, OR AS SOON THEREAFTER AS IS PRACTICABLE, NOTIFY THE COMMISSION AS TO WHICH OF THE EMPLOYEES IN SUCH OFFICE HE RECOMMENDS FOR CLASSIFICATION.

IN A FOOTNOTE TO RULE 6, PAGE 21, OF THE ISSUE OF CIVIL SERVICE RULES AMENDED TO JUNE 30, 1939, IT IS STATED:

EFFECTIVE DATE OF CLASSIFICATION.--- CLASSIFICATION UNDER SEC. 6 OF RULE II, OR EXECUTIVE ORDER OR LEGISLATION WHICH DOES NOT SPECIFY AN EFFECTIVE DATE FOR CLASSIFICATION, IS EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF ISSUANCE OF THE CERTIFICATE OF CLASSIFICATION, UNLESS A DIFFERENT DATE IS STATED ON THE CERTIFICATE OR UNLESS THE DEPARTMENT OR OFFICE CONCERNED OBTAINS AUTHORITY FROM THE COMMISSION FOR A DIFFERENT EFFECTIVE DATE. REPORT OF CLASSIFICATION AND THE EFFECTIVE DATE SHOULD BE MADE ON THE REGULAR REPORT OF CHANGES TO THE COMMISSION (MINUTES OF COMMISSION, DEC. 21, 1938).

IT IS UNDERSTOOD THAT PURSUANT TO THIS RULING OF THE CIVIL SERVICE COMMISSION IT IS PROPOSED TO CONFER A CLASSIFIED CIVIL-SERVICE STATUS ON THE CLERKS IN QUESTION "ON THE FIRST OF THE MONTH FOLLOWING FORMAL NOTICE FROM THE CIVIL SERVICE COMMISSION THAT THE EMPLOYEE HAS QUALIFIED" (QUOTING FROM YOUR LETTER).

WHEN ON JULY 1, 1940, A THIRD-CLASS POST OFFICE IS ADVANCED FROM THIRD TO THE SECOND CLASS THE CLERKS WITH THE FORMER THIRD-CLASS POST OFFICE, WHO ARE RETAINED IN SERVICE, BECOME CLERKS IN A SECOND-CLASS POST OFFICE WHOSE SALARY RATES AND ELIGIBILITY FOR ADVANCEMENT IN SALARY STATUS, AS DISTINGUISHED FROM A CIVIL-SERVICE STATUS, ARE PRESCRIBED BY STATUTE. SEE SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059. IN OTHER WORDS, ON AND AFTER JULY 1, 1940, THERE WILL NO LONGER BE ANY AUTHORITY TO REGARD THE CLERKS, FOR SALARY AND PROMOTION PURPOSES, OTHER THAN AS CLERKS IN A SECOND-CLASS POST OFFICE, AND THE ONLY SALARY RATES PAYABLE TO THEM FROM AND AFTER THAT DATE WILL BE THOSE PRESCRIBED BY STATUTE FOR CLERKS IN FIRST- AND SECOND-CLASS POST OFFICES--- THERE BEING SPECIALLY FOR NOTING IN THAT CONNECTION THE STATEMENT IN YOUR LETTER, SUPRA, THAT "BETWEEN JULY 1 AND THE DATE OF CLASSIFICATION THE EMPLOYEE WILL BE CARRIED ON THE RECORDS OF THE DEPARTMENT EITHER AS A REGULAR CLERK AT AN ANNUAL RATE OF SALARY OR AS A SUBSTITUTE CLERK PENDING CLASSIFICATION.'

DETERMINATION BY THE CIVIL SERVICE COMMISSION OF THE QUALIFICATIONS OF UNCLASSIFIED CLERKS IN FORMER THIRD-CLASS POST OFFICES, AFTER ADVANCEMENT OF THE OFFICE TO SECOND CLASS, FOR INCLUSION IN THE CLASSIFIED CIVIL SERVICE, IS NOT A CONDITION PRECEDENT TO THE TAKING EFFECT OF THE STATUTORY PROVISIONS FIXING SALARY RATES AND PRESCRIBING THE CONDITIONS TO ENTITLE THE CLERKS TO PROMOTION, BUT THE APPROVAL BY THE COMMISSION OF THE QUALIFICATIONS OF THE CLERKS MAY BE REGARDED AS RELATING BACK TO THE EFFECTIVE DATE OF THEIR SALARY ADJUSTMENT, JULY 1, 1940. COMPARE 19 COMP. GEN. 237-245, QUESTION AND ANSWER (O).

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.