B-106954, JANUARY 16, 1952, 31 COMP. GEN. 301

B-106954, JANUARY 16, 1952, 31 COMP. GEN. 301

COMPENSATION - AUTOMATIC PROMOTIONS - POSTAL SERVICE - ACT OF OCTOBER 24, 1951 A SUBSTITUTE POSTAL EMPLOYEE, WHO HAD ONE YEAR OF SERVICE CREDIT IN GRADE 1 PRIOR TO BEING PLACED IN GRADE 3 ON NOVEMBER 1, 1949, PURSUANT TO SECTION 2 (C) OF THE ACT OF OCTOBER 28, 1949, IS TO BE CONSIDERED AS HAVING BEEN ADVANCED ONE AUTOMATIC GRADE THROUGH OPERATION OF SUCH SECTION, WITHIN THE MEANING OF SECTION 4 (A) OF THE ACT OF OCTOBER 24, 1951, WHICH PROVIDES THAT CERTAIN EMPLOYEES WHO ENTERED THE POSTAL SERVICE AFTER JUNE 30, 1945, AND WHO HAVE NOT BEEN ADVANCED AT LEAST TWO AUTOMATIC GRADES THROUGH OPERATION OF LAW SHALL BE SO ADVANCED, AND THEREFORE, THE EMPLOYEE IS ENTITLED UNDER SAID SECTION 4 (A) TO BE ADVANCED ANOTHER AUTOMATIC GRADE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JANUARY 16, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 29, 1951, YOUR REFERENCE 4, REQUESTING A DECISION AS TO THE CORRECTNESS OF THE CONCLUSION REACHED IN AN OPINION BY THE SOLICITOR FOR THE POST OFFICE DEPARTMENT, WHICH IS QUOTED IN YOUR LETTER, INVOLVING THE APPLICATION OF SECTION 4 (A) OF THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 204, 65 STAT. 625, TO A SUBSTITUTE CLERK WHO RECEIVED CERTAIN BENEFITS UNDER SECTION 2 OF THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, 63 STAT. 953. THERE HAS BEEN RECEIVED, ALSO, YOUR LETTER OF JANUARY 3, 1952, TRANSMITTING FOR CONSIDERATION A STATEMENT CONTAINING THE VIEWS EXPRESSED BY THE NATIONAL FEDERATION OF POST OFFICE CLERKS REGARDING THE APPLICATION OF SAID SECTION 4 (A) OF THE REFERRED-TO ACT.

SECTION 4 (A), PUBLIC LAW 204, PROVIDES, SO FAR AS APPLICABLE HERE, THAT CERTAIN EMPLOYEES WHO ENTERED THE POSTAL SERVICE AFTER JUNE 30, 1945 AND WHO HAVE NOT BEEN ADVANCED "AT LEAST TWO AUTOMATIC GRADES" THROUGH THE OPERATION OF CERTAIN STATUTORY PROVISIONS, AMONG WHICH ARE THE PROVISIONS OF SECTIONS 2 (A), (B), (C), AND (D) OF THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, 63 STAT. 953, SHALL BE ADVANCED TWO AUTOMATIC GRADES OR ONE AUTOMATIC GRADE IF ALREADY ADVANCED ONE GRADE.

THE SOLICITOR'S OPINION INVOLVES AN EMPLOYEE WHO WAS APPOINTED AS A SUBSTITUTE CLERK ON OCTOBER 15, 1948, AND WHO SERVED ONE YEAR IN GRADE 1 AND WAS ADVANCED FROM GRADE 1 TO GRADE 3 ON NOVEMBER 1, 1949, UNDER THE PROVISIONS OF SECTION 2 (C), PUBLIC LAW 428. HE WAS PROMOTED TO GRADE 4 ON JANUARY 1, 1951, AND CONVERTED TO THE NEW GRADE 2 UNDER PUBLIC LAW 204, EFFECTIVE JULY 1, 1951. THE QUESTION PRESENTED TO THE SOLICITOR WAS STATED, AS FOLLOWS:

MAY THE ADVANCEMENT FROM GRADE 1 TO GRADE 3, EFFECTIVE NOVEMBER 1, 1949, THEREFORE BE CONSIDERED AS A PROMOTION OF ONE ADDITIONAL GRADE AND THE EMPLOYEE ADVANCED ANOTHER ADDITIONAL GRADE UNDER SECTION 4 (A) OF PUBLIC LAW 204? IN RESPECT OF THAT QUESTION THE SOLICITOR CONCLUDED AS FOLLOWS:

SINCE THIS EMPLOYEE WAS IN GRADE 1 AND WAS ADVANCED TO GRADE 3, IT IS MY OPINION THAT THIS WAS AN ADVANCEMENT OF TWO AUTOMATIC GRADES, AND THAT THE EMPLOYEE IS THEREFORE NOT ENTITLED TO BE ADVANCED THROUGH THE OPERATION OF SECTION 4 (A) OF PUBLIC LAW 204. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE. THE POST OFFICE INSTRUCTIONS UPON THIS MATTER, AS CONTAINED IN POSTAL BULLETIN NO. 19495, DECEMBER 13, 1951, ARE IN LINE WITH THAT CONCLUSION.

WHILE IT IS TRUE THAT THERE TECHNICALLY WAS AN ADVANCEMENT NUMERICALLY OF TWO AUTOMATIC GRADES UPON PLACING THE EMPLOYEE IN GRADE 3 FROM GRADE 1 PURSUANT TO SECTION 2 (C), PUBLIC LAW 428, I DO NOT AGREE WITH TH SOLICITOR'S CONCLUSION, OR WITH THE APPLICABLE INSTRUCTIONS AS CONTAINED IN THE POSTAL BULLETIN, TO THE EFFECT THAT SUCH ADVANCEMENT WAS ADVANCEMENT OF TWO AUTOMATIC GRADES WITHIN THE MEANING OF SECTION 4 (A), PUBLIC LAW 204. IN MY OPINION THERE WAS AN ADVANCEMENT OF ONLY ONE AUTOMATIC GRADE, I.E., FROM GRADE 2 TO GRADE 3, WITHIN THE MEANING OF SUCH PROVISIONS OF PUBLIC LAW 204, AND THAT THE OTHER ADVANCEMENT MERELY WAS AN ACCELERATION OF THE PROMOTION FROM GRADE 1 TO GRADE 2, SINCE THE EMPLOYEE HAD EARNED THE LATTER ADVANCEMENT UPON COMPLETION OF ONE YEAR OF SERVICE IN GRADE 1 AND WOULD HAVE BEEN PROMOTED TO GRADE 2 ON JANUARY 1, 1950, REGARDLESS OF THE PROVISIONS OF PUBLIC LAW 428.

IN DETERMINING THE PURPOSE INTENDED BY THE CONGRESS TO BE ACCOMPLISHED BY THE PROVISIONS OF SECTION 4 (A), PUBLIC LAW 204, IT APPEARS ADVISABLE TO CONSIDER PRIOR LEGISLATION LEADING UP TO THE ENACTMENT OF THE SAID SECTION 4 (A). SECTION 23 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 460, AUTHORIZED AN UPGRADING OF EITHER THREE OR FOUR GRADES FOR REGULAR EMPLOYEES IN THE POSTAL SERVICE ON JUNE 30, 1945. BY 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, AN UPGRADING OF FOUR GRADES WAS PRESCRIBED FOR SUBSTITUTE EMPLOYEES WHO WERE IN THE POSTAL SERVICE PRIOR TO JULY 1, 1945, SUCH UPGRADING TO BE GRANTED WHEN THE EMPLOYEES WERE PROMOTED TO REGULAR POSITIONS. ALSO, AN UPGRADING RESULTED FROM THE ACT OF JULY 31, 1946, PUBLIC LAW 577, 60 STAT. 749, AS AMENDED BY THE ACT OF APRIL 29, 1950, PUBLIC LAW 492, IN THE POSTAL SERVICE DURING THE PERIOD MAY 1, 1940, TO OCTOBER 23, 1943, BY REASON OF MILITARY SERVICE. HOWEVER, DURING ALL OF THIS PERIOD BEFORE AND AFTER JULY 1, 1945, THE ENTRANCE SALARY FOR EMPLOYEES ENTERING THE POSTAL SERVICE IN GRADE 1 HAD REMAINED THE SAME AS IT WAS BEFORE ANY OF THE UPGRADINGS WERE AUTHORIZED. CONSEQUENTLY, EMPLOYEES WHO ENTERED THE POSTAL SERVICE ON OR AFTER JULY 1, 1945, EXCEPT THOSE BENEFITED BY PUBLIC LAW 577, NEVER HAD RECEIVED ANY UPGRADING PRIOR TO PUBLIC LAW 428. SECTION 2 OF THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, RECTIFIED THIS INEQUITY IN PART, BUT THE PROVISIONS THEREOF DID NOT PRESCRIBE ANY GENERAL UPGRADING FOR ALL EMPLOYEES APPOINTED ON AND AFTER JULY 1, 1945; IT MERELY AUTHORIZED REGULAR EMPLOYEES IN GRADES 1 AND 2 TO BE PLACED IN GRADE 3 AND SUBSTITUTE AND TEMPORARY EMPLOYEES TO BE PLACED IN GRADE 3 AFTER ONE YEAR OF SERVICE IN GRADE 1.

IT WAS THE VIEW OF THE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE THAT THERE EXISTED A LARGE NUMBER OF EMPLOYEES APPOINTED ON OR AFTER JULY 1, 1945, WHO HAD NOT BEEN UPGRADED OR WHO HAD BEEN ONLY PARTIALLY UPGRADED UNDER THE STATUTES REFERRED TO ABOVE AND WHO WERE SUFFERING AN INJUSTICE BY REASON OF THEIR NOT HAVING BEEN BENEFICIARIES OF LEGISLATION TO REMOVE THIS INEQUITY. IT WAS THE COMMITTEE'S VIEW THAT THE PROVISIONS OF SECTION 4, PUBLIC LAW 204, WOULD REMOVE THIS INEQUITY, AT LEAST TO THE EXTENT OF A TWO-GRADE PROMOTION. SEE SENATE REPORT NO. 701, 82D CONGRESS, ACCOMPANYING S. 355, WHICH BECAME PUBLIC LAW 204. ALSO, IT IS STATED IN HOUSE REPORT NO. 958, 82D CONGRESS, ACCOMPANYING H. R. 244, WHICH CONTAINED PROVISIONS SIMILAR TO THOSE HERE UNDER CONSIDERATION, THAT, IN THE VIEW OF THE COMMITTEE, EMPLOYEES WHO HAVE ENTERED THE POSTAL SERVICE SINCE JUNE 30, 1945, AND WHO HAVE NOT BEEN ADVANCED TWO SALARY GRADES BY OPERATION OF LAW, WILL BE ADVANCED TWO GRADES UNDER THE PROVISIONS NOW CONTAINED IN SECTION 4 (A), PUBLIC LAW 204, AND THAT SUCH ADVANCEMENT WOULD ELIMINATE A GREAT DEAL OF THE CONTROVERSY OVER THE SALARY GRADES OF THE VARIOUS EMPLOYEES IN THE POSTAL SERVICE WHICH DEPENDED ALMOST ENTIRELY UPON THE DATE ON WHICH THEY ENTERED THE POSTAL SERVICE RATHER THAN UPON THE LENGTH OF SERVICE. NOWHERE IN THE LEGISLATIVE HISTORY DO I FIND ANY INDICATION THAT THE ONE- OR TWO-GRADE ADVANCEMENT PRESCRIBED BY SECTION 4 (A), PUBLIC LAW 204, WAS INTENDED TO BE PRECLUDED IN WHOLE OR IN PART BY AN ADVANCEMENT OTHERWISE EARNED BY AN EMPLOYEE UPON COMPLETION OF THE AUTOMATIC PROMOTION SERVICE REQUIREMENTS OF PUBLIC LAW 134, OR OF PUBLIC LAW 35. NOR DO I FIND THAT A LITERAL READING OF THE PROVISIONS OF THE SAID SECTION 4 (A) REQUIRES THAT AN ACCELERATION OF A PROMOTION UNDER SECTION 2 (C), PUBLIC LAW 428, TO THE ANNIVERSARY DATE OF A SUBSTITUTE EMPLOYEE'S APPOINTMENT WHEN THE PROMOTION WOULD HAVE BEEN GRANTED IN ANY EVENT AT THE BEGINNING OF THE NEXT QUARTER WAS SUCH AN UPGRADING OR AN AUTOMATIC PROMOTION AS THE CONGRESS INTENDED TO GRANT BY SECTION 4 (A), PUBLIC LAW 204.

IT IS MY VIEW THAT IT WAS INTENDED BY THE CONGRESS, IN PROVIDING FOR THE MINIMUM ADVANCEMENT OF TWO AUTOMATIC GRADES, THAT SUCH ADVANCEMENTS SHOULD APPROXIMATE, AS NEARLY AS POSSIBLE, A TWO-GRADE UPGRADING.

IN LIGHT OF THE FOREGOING THERE APPEARS REQUIRED THE CONCLUSION THAT THE SUBSTITUTE EMPLOYEE HERE INVOLVED, WHO HAD ONE YEAR OF SERVICE CREDIT IN GRADE 1 PRIOR TO HIS BEING PLACED IN GRADE 3 ON NOVEMBER 1, 1949, PURSUANT TO SECTION 2 (C), PUBLIC LAW 428, WAS "ADVANCED ONE AUTOMATIC GRADE THROUGH THE OPERATION OF SUCH PROVISIONS" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 4 (A), PUBLIC LAW 204, AND, THEREFORE, THE EMPLOYEE IS ENTITLED TO BE ADVANCED ONE AUTOMATIC GRADE UNDER SECTION 4 (A).

AS STATED IN YOUR LETTER OF JANUARY 3, 1952, REFERENCE 4, IN REPLY TO OFFICE LETTER OF DECEMBER 26, 1951, B-106411, IN THE CASES OF JOEL R. BUBNEKOVICH, SUBSTITUTE POSTAL EMPLOYEE AT THE CAMDEN, NEW JERSEY, POST OFFICE, AND CLINTON H. WISEMAN, REGULAR POSTAL EMPLOYEE AT THE CHICAGO, ILLINOIS, POST OFFICE, THE HOLDING HEREIN WILL GOVERN THE APPLICATION OF SECTION 4 (A), PUBLIC LAW 204, TO THOSE CASES. ACCORDINGLY, IT IS PRESUMED THAT APPROPRIATE ACTION WILL BE TAKEN BY THE POST OFFICE DEPARTMENT IN THOSE AND SIMILAR CASES TO PLACE THE EMPLOYEES IN THE PROPER AUTOMATIC GRADE PURSUANT TO SECTION 4 (A), PUBLIC LAW 204, AS INTERPRETED HEREIN.