B-113380, OCTOBER 7, 1953, 33 COMP. GEN. 146

B-113380, OCTOBER 7, 1953, 33 COMP. GEN. 146

COMPENSATION - POSTAL SERVICE - LONGEVITY INCREASES - SERVICE REQUIREMENTS WHILE A CLERK IN THE POSTAL SERVICE IN A FIRST-CLASS POST OFFICE WHO WAS ADVANCED TO THE FIRST LONGEVITY GRADE UNDER SECTION 12 (A) OF THE ACT OF JULY 6, 1945, AS AMENDED BY THE ACT OF OCTOBER 28, 1940, MAY RETAIN HIS LONGEVITY GRADE ON REASSIGNMENT AS A CARRIER AT A SECOND CLASS POST OFFICE UNDER THE SAVINGS PROVISION OF THE ACT OF MAY 3, 1950, WHICH REPEALED SECTION 12 (A) OF THE 1945 ACT, HE THEREAFTER MAY NOT ELECT TO REVERT TO THE PROVISIONS OF THE 1945 AND 1949 ACTS FOR THE PURPOSE OF RECEIVING FURTHER LONGEVITY INCREASES SOONER THAN AVAILABLE UNDER THE 1950 ACT, AND THEREFORE SUCH EMPLOYEE IS NOT ENTITLED TO THE SECOND LONGEVITY GRADE UNTIL HE COMPLETES THE 18 YEARS OF SERVICE REQUIRED BY THE 1950 ACT.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 7, 1953:

REFERENCE IS MADE TO LETTER OF JANUARY 8, 1953 ( DEPARTMENT REFERENCE 12), FROM YOUR PREDECESSOR, REQUESTING A DECISION WHETHER, BASED UPON THE FACTS AND CIRCUMSTANCES SET FORTH THEREIN, THE EMPLOYEE INVOLVED MAY BE PROMOTED TO THE SECOND LONGEVITY GRADE, RETROACTIVELY EFFECTIVE TO JULY 1, 1952, UNDER THE PROVISIONS OF SECTION 2 OF PUBLIC LAW 500, APPROVED MAY 3, 1950, 64 STAT. 102.

IT APPEARS THE EMPLOYEE ENTERED THE POSTAL SERVICE AS A SUBSTITUTE CLERK AT A FIRST-CLASS POST OFFICE ON MAY 1, 1937; THAT HE WAS APPOINTED A REGULAR CLERK ON MARCH 16, 1939, IN GRADE 2 (SALARY $1,800); THAT HE PROGRESSED TO GRADE 5, THE TOP AUTOMATIC GRADE AT THE TIME, BY ANNUAL PROMOTIONS ON JULY 1, 1939, JULY 1, 1940, AND JULY 1, 1941; THAT HE SERVED IN GRADE 5 (SALARY $2,100) UNTIL JULY 1, 1945, WHEN, UNDER THE PROVISIONS OF PUBLIC LAW 134, HE WAS CONVERTED TO GRADE 9; THAT HE ADVANCED TO GRADE 10 JULY 1, 1946, AND TO GRADE 11, THE TOP AUTOMATIC GRADE, JULY 1, 1947; THAT HE WAS PROMOTED TO GRADE 11-A, UNDER THE PROVISIONS OF PUBLIC LAW 134 AS AMENDED BY THE ACT OF OCTOBER 28, 1949, PUBLIC LAW 428, UPON THE BASIS OF AT LEAST 3 YEARS IN THE TOP AUTOMATIC GRADE, ON NOVEMBER 1, 1949.

IT FURTHER APPEARS THAT THE EMPLOYEE'S SERVICE THEREAFTER WAS CONTINUOUS, AS CLERK, AT A FIRST-CLASS POST OFFICE, EXCEPT FOR THE PERIOD FROM JUNE 16, 1951, WHEN HE WAS REASSIGNED FOR DUTY AS CARRIER AT A SECOND-CLASS POST OFFICE, UNTIL THE SAID SECOND-CLASS POST OFFICE WAS ADVANCED TO FIRST CLASS ON JULY 1, 1953, IN CONNECTION WITH WHICH TRANSFER THE EMPLOYEE RETAINED HIS LONGEVITY GRADE A. IT IS STATED THE DEPARTMENT FEELS THAT THE EMPLOYEE RETAINS ELIGIBILITY FOR PROMOTION IN THE LONGEVITY GRADES, UPON THE BASIS OF HIS SERVICE IN THE TOP AUTOMATIC GRADE, OR ABOVE, AT A FIRST- CLASS POST OFFICE, ON MAY 3, 1950, UNDER SECTION 2 OF PUBLIC LAW 500; THAT, ALSO, SAID SERVICE IN THE SECOND-CLASS POST OFFICE SHOULD NOT INTERFERE WITH HIS ELIGIBILITY FOR FURTHER ADVANCEMENT IN THE LONGEVITY GRADES.

SECTION 2 OF PUBLIC LAW 500, 64 STAT. 102, IS AS FOLLOWS:

EMPLOYEES ON THE ROLLS ON THE DATE OF ENACTMENT OF THIS ACT, WHO ARE IN THE HIGHEST AUTOMATIC GRADE OF THEIR POSITION OR WHO ARE IN ADDITIONAL GRADES, SHALL RETAIN PROMOTION CREDIT UNDER THE PROVISIONS OF SECTION 2 (E) OF THE ACT OF OCTOBER 28, 1949 ( PUBLIC LAW 428, EIGHTY-FIRST CONGRESS), AND UNDER THOSE PROVISIONS OF THE ACT OF JULY 6, 1945 ( PUBLIC LAW 134, SEVENTY-NINTH CONGRESS), WHICH ARE REPEALED BY SECTION 4 OF THIS ACT TO THE SAME EXTENT AS THOUGH SUCH PROVISIONS HAD REMAINED IN EFFECT, AND THEREAFTER SHALL BE PROMOTED TO LONGEVITY GRADES A, B, AND C AT THE BEGINNING OF THE QUARTER FOLLOWING THE COMPLETION OF THREE, FIVE, AND SEVEN YEARS OF SERVICE, RESPECTIVELY, IN THE NEXT LOWER GRADE, EXCEPT THAT IF PRIOR THERETO ANY SUCH EMPLOYEE BECOMES ELIGIBLE FOR PROMOTION UNDER SUBSECTION (B) OF SECTION 1 OF THIS ACT, SUCH EMPLOYEE SHALL BE PROMOTED IN ACCORDANCE WITH THE PROVISIONS OF SUCH SUBSECTION.

THE FIRST PROVISO OF SECTION 12 (A) OF PUBLIC LAW 134, WHICH ESTABLISHED ADDITIONAL GRADES FOR CLERKS AND WHICH WAS REPEALED BY SECTION 4 OF PUBLIC LAW 500, IS AS FOLLOWS:

* * * THAT FOR SUCH EMPLOYEES AT POST OFFICES OF THE FIRST CLASS THERE SHALL BE THREE ADDITIONAL GRADES; THAT IS GRADE 12--- $3,650; GRADE 13--- $3,750; GRADE 14, $3,850, AND THAT EMPLOYEES WHO PERFORM FAITHFUL AND MERITORIOUS SERVICE SHALL BE PROMOTED TO GRADE 12 AFTER THREE YEARS OF SUCH SERVICE IN GRADE 11, SHALL BE PROMOTED TO GRADE 13 AFTER FIVE YEARS OF SUCH SERVICE IN GRADE 12, AND SHALL BE PROMOTED TO GRADE 14 AFTER SEVEN YEARS OF SUCH SERVICE IN GRADE 13: * *

SECTION 2 (E) OF PUBLIC LAW 428, 63 STAT. 953, PROVIDES THAT:

EACH OFFICER OR EMPLOYEE IN THE POSTAL FIELD SERVICE SHALL HAVE CREDITED TO HIM, FOR PURPOSES OF PROMOTION TO ANY OF THE MERITORIOUS OR LONGEVITY SALARY GRADES OF HIS POSITION ESTABLISHED UNDER THIS ACT OR SUCH ACT OF JULY 6, 1945, AS AMENDED, ALL PERIODS OF SERVICE PERFORMED BY HIM PRIOR TO JULY 1, 1945, FOR WHICH HE HAS NOT HERETOFORE RECEIVED CREDIT FOR PURPOSES OF PROMOTION.

IN APPLYING THE SAID SAVINGS PROVISIONS OF SECTION 2 OF PUBLIC LAW 500 IT IS NECESSARY TO DETERMINE WHAT THE RIGHTS OF THE EMPLOYEE IN QUESTION WOULD HAVE BEEN UNDER PUBLIC LAW 134 AND SECTION 2 (E) OF PUBLIC LAW 428, HAD NOT PUBLIC LAW 500 BEEN ENACTED. IT IS FUNDAMENTAL THAT SAID SAVINGS PROVISION OF THE LATTER LAW CREATED NO ADDITIONAL RIGHTS NOT ENJOYED BY THE EMPLOYEE UNDER PUBLIC LAW 134 AND SECTION 2 (E) OF PUBLIC LAW 428.

NEITHER THE FIRST PROVISO IN SECTION 12 (A) OF PUBLIC LAW 134, NOR SECTION 2 (E) OF PUBLIC LAW 428, PROVIDES ADDITIONAL GRADES FOR EMPLOYEES IN OFFICES OF THE SECOND CLASS OR AUTHORIZES THE RETENTION OF ADDITIONAL GRADES PREVIOUSLY ATTAINED UPON TRANSFER TO A SECOND-CLASS POST OFFICE. IT WAS ONLY BY VIRTUE OF PUBLIC LAW 500 THAT THE EMPLOYEE INVOLVED--- HAVING COMPLETED MORE THAN 13 YEARS' POSTAL SERVICE--- WAS ENTITLED TO RETAIN LONGEVITY GRADE A AFTER HIS TRANSFER TO THE SECOND CLASS POST OFFICE ON JUNE 16, 1951. HOWEVER, ONCE HAVING ACCEPTED THE BENEFITS OF PUBLIC LAW 500--- AS WAS DONE BY THE EMPLOYEE INVOLVED IN RETAINING LONGEVITY GRADE A UPON TRANSFER TO THE SECOND-CLASS POST OFFICE--- IT IS NOT CONSIDERED THAT THE SAVINGS PROVISION OF SECTION 2 OF PUBLIC LAW 500 CONTEMPLATES THAT HE THEREAFTER MAY ELECT TO REVERT TO THE PROVISIONS OF PUBLIC LAW 134 AND SECTION 2 (E) OF PUBLIC LAW 428 FOR THE PURPOSE OF RECEIVING GREATER BENEFITS THAN THOSE AVAILABLE UNDER PUBLIC LAW 500.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE EMPLOYEE INVOLVED IS NOT ENTITLED TO ADVANCEMENT TO THE SECOND LONGEVITY GRADE UNTIL HE SHALL HAVE COMPLETED THE NECESSARY 18 YEARS OF SERVICE REQUIRED UNDER PUBLIC LAW 500 AND PUBLIC LAW 428 AS CONSTRUED BY THE DECISIONS OF THIS OFFICE. SEE, IN THAT CONNECTION, DECISION OF OCTOBER 20, 1952, 32 COMP. GEN. 192, AND THE UNPUBLISHED DECISION OF SEPTEMBER 24, 1952, B 111257, CITED THEREIN.