B-119158, JUNE 1, 1954, 33 COMP. GEN. 579

B-119158, JUNE 1, 1954, 33 COMP. GEN. 579

COMPENSATION - POSTAL SERVICE - AUTOMATIC PROMOTION - LONGEVITY INCREASES A POSTAL CLERK IN THE TOP AUTOMATIC GRADE WHOSE POSITION IS SUBJECT TO CONVERSION TO AN INTERMEDIATE GRADE UNDER THE ACT OF OCTOBER 24, 1951, IS NOT ENTITLED TO LONGEVITY STEP A UNDER THE ACT OF MAY 3, 1950, UNTIL COMPLETION OF A TOTAL OF THREE YEARS SERVICE IN THE PRESENT AND FORMER TOP AUTOMATIC GRADES.

ACTING COMPTROLLER GENERAL WEITZEL TO THE POSTMASTER GENERAL, JUNE 1, 1954:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1954, YOUR REFERENCE 50, STATING THAT A QUESTION HAS BEEN RAISED INVOLVING THE PROMOTION OF A CLERK IN THE OFFICE OF THE POST OFFICE INSPECTOR IN CHARGE, BOSTON, MASSACHUSETTS, TO LONGEVITY GRADE A BEFORE COMPLETION OF THREE YEARS OF SERVICE IN THE TOP AUTOMATIC GRADE. THERE IS NOTED YOUR STATEMENT THAT OTHER INSPECTION SERVICE CLERKS HAVE BEEN SIMILARLY PROMOTED; HENCE, WHAT IS HERE DECIDED WILL APPLY TO THEM ALSO.

SECTION 15 (D) OF THE ACT OF JULY 6, 1945, 59 STAT. 450, PROVIDES THAT CLERKS AT DIVISION HEADQUARTERS SHALL BE DIVIDED INTO NINE GRADES, 1 THROUGH 9, WITH ANNUAL SALARIES RANGING FROM $1,900 TO $2,700, INCLUSIVE, AND THAT SAID CLERKS SHALL BE PROMOTED SUCCESSIVELY AT THE BEGINNING OF THE QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE TO THE NEXT HIGHER GRADE UNTIL THEY REACH GRADE 9, AND FURTHER PROVIDES FOR ADDITIONAL GRADES 10, 11, AND 12, FOR CLERKS WHO PERFORM FAITHFUL AND MERITORIOUS SERVICE, ALL AT SPECIFIED ANNUAL RATES OF COMPENSATION.

THE EMPLOYEE HERE INVOLVED WAS APPOINTED AS CLERK, GRADE 5, ON AUGUST 8, 1945, AT A SALARY OF $2,300 PER ANNUM. HE WAS SUBSEQUENTLY PROMOTED IN ACCORDANCE WITH SECTION 15 (D) UNTIL THE TOP AUTOMATIC GRADE 9 WAS REACHED OCTOBER 1, 1949.

THE PROVISO IN SECTION 15 (D) ESTABLISHING THE THREE ADDITIONAL MERITORIOUS GRADES WAS REPEALED BY SECTION 4 (A) (8) OF THE ACT OF MAY 3, 1950, 64 STAT. 102. SECTION 2, OF SAID ACT, 64 STAT. 102, PROVIDES 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CONGRESS), AND UNDER THOSE PROVISIONS OF THE ACT OF JULY 6, 1945 ( PUBLIC LAW 134, SEVENTY-NINTH CONGRESS), WHICH ARE REPEALED BY SECTION 4 OF THIS ACT TO THE SAME EXTENT AS THOUGH SUCH PROVISIONS HAD REMAINED IN EFFECT, AND THEREAFTER SHALL BE PROMOTED TO LONGEVITY GRADES A, B, AND C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 EMPLOYEES SHALL BE PROMOTED IN ACCORDANCE WITH THE PROVISIONS OF SUCH SUBSECTION.

UNDER THE PROVISIONS OF THE SECTION JUST QUOTED THE EMPLOYEE REMAINED AT THE TOP AUTOMATIC GRADE 9 AND RECEIVED CREDIT TOWARD LONGEVITY GRADE A UNTIL JULY 1, 1951, WHEN SAID GRADE WAS CONVERTED TO, OR BECAME, GRADE 7 BY THE ACT OF OCTOBER 24, 1951, SECTION 14 (B) (2), 65 STAT. 632.

SECTION 1 (B) OF THE ACT OF MAY 3, 1950, 64 STAT. 101, PROVIDES AS FOLLOWS:

EACH SUCH POSTMASTER OR EMPLOYEE WHO IS SERVING IN A REGULAR POSITION ON THE DATE OF ENACTMENT OF THIS ACT OR WHO IS APPOINTED TO SUCH A POSITION AT ANY TIME THEREAFTER, SHALL BE ASSIGNED TO LONGEVITY GRADE A AT THE BEGINNING OF THE QUARTER FOLLOWING THE COMPLETION OF THIRTEEN YEARS OF SERVICE, TO LONGEVITY GRADE B AT THE BEGINNING OF THE QUARTER FOLLOWING THE COMPLETION OF EIGHTEEN YEARS OF SERVICE, AND TO LONGEVITY GRADE C AT THE BEGINNING OF THE QUARTER FOLLOWING THE COMPLETION OF TWENTY-FIVE YEARS OF SERVICE.

BUT THAT PROVISION IS NOT HERE PERTINENT BECAUSE IT HAS BEEN INFORMALLY ASCERTAINED--- WHICH FACT ALSO MAY BE ASSUMED FROM THE TENOR OF THE SUBMISSION--- THAT THE EMPLOYEE HERE INVOLVED HAS NOT COMPLETED 13 YEARS OF SERVICE.

SECTION 15 (D) WAS REPEALED BY SECTION 2 (M) OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 625, AND SECTION 11A THEREOF WAS ADDED PROVIDING GRADES AND SALARIES OF EMPLOYEES IN THE AUTOMATIC GRADES. SECTION 14 (B) (2) PROVIDES, IN EFFECT, THAT EMPLOYEES (OTHER THAN SPECIAL MECHANICS, COST ACCOUNTING CLERKS, PURCHASING CLERKS, AND DRAFTSMEN) FOR WHOM AUTOMATIC GRADES AND SALARIES ARE PROVIDED IN SECTION 11A OF THE ACT OF JULY 6, 1945, AS ADDED BY THE ACT OF OCTOBER 24, 1951, AND WHO ON THE EFFECTIVE DATE OF THIS ACT ARE IN GRADES 4, 5, 6, 7, 8, 9, 10, AND 11 SHALL RECEIVE THE ANNUAL SALARY OR HOURLY RATE OF PAY OF THE GRADE IN WHICH PLACED. ACCORDANCE THEREWITH GRADE 9, WHICH THE EMPLOYEE HERE INVOLVED HAD ATTAINED, BECAME GRADE 7, EFFECTIVE RETROACTIVELY TO JULY 1, 1951, AS PROVIDED BY SECTION 23 (A) OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 633, AT AN INCREASE IN COMPENSATION OVER THAT PREVIOUSLY ATTACHED TO GRADE 9. THE ADDITION, BY THE PROVISIONS OF SECTION 14 (B) (2), OF GRADES 8 AND 9, EFFECTIVE JULY 1, 1951, OPENED UP TO THE EMPLOYEE TWO ADDITIONAL AUTOMATIC GRADES.

THE EMPLOYEE WAS ADMINISTRATIVELY PROMOTED EFFECTIVE OCTOBER 1, 1952, TO LONGEVITY GRADE A BASED UPON THREE YEARS' SERVICE AFTER FIRST REACHING THE TOP AUTOMATIC GRADE 9 ON OCTOBER 1, 1949, AT WHICH TIME--- OCTOBER 1, 1952 --- THE EMPLOYEE HAD NOT COMPLETED THREE YEARS' SERVICE IN THE THEN TOP AUTOMATIC GRADES AS PROVIDED BY THE LAW THEN IN EFFECT. THE COMPLETION OF THE PERIOD OF SERVICE IN THE OLD TOP AUTOMATIC GRADE WAS INTERRUPTED, AS IT WERE, BY THE ENACTMENT OF SECTION 14 (B) (2) OF THE ACT OF OCTOBER 24, 1951, WHICH CONVERTED THE TOP AUTOMATIC GRADE 9 AUTHORIZED BY THE ACT OF JULY 6, 1945, ABOVE, TO AN INTERMEDIATE GRADE, NAMELY, GRADE 7.

BASED UPON THE FOREGOING FACTS AND CIRCUMSTANCES YOUR LETTER PRESENTS THE QUESTIONS STATED IN THE CONCLUDING PARAGRAPH THEREOF, AS FOLLOWS:

YOUR DECISION IS REQUIRED AS TO WHETHER THERE IS PROPER BASIS FOR QUESTIONING THE PROPRIETY OF THE PROMOTION OF THE EMPLOYEE IN THIS CASE TO LONGEVITY GRADE A ON OCTOBER 1, 1952, OR TO THE PROMOTION TO GRADE B AFTER 5 YEARS' SERVICE IN GRADE A. IN THE EVENT IT IS CONCLUDED THAT THE LONGEVITY PROMOTION IN THIS CASE WAS IMPROPER, IT IS REQUESTED THAT THIS AND SIMILAR PROMOTIONS PREVIOUSLY MADE IN GOOD FAITH UNDER THE ADMINISTRATIVE INTERPRETATION OF THE LAW AS HEREIN DESCRIBED BE ALLOWED TO STAND.

SECTION 15 (A) OF THE 1951 ACT, 65 STAT. 632, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

EMPLOYEES WHO, UNDER SUCH ACT OF JULY 6, 1945, AS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THIS ACT, ARE ENTITLED TO AUTOMATIC GRADE PROMOTIONS ON THE EFFECTIVE DATE OF THIS ACT, SHALL BE GIVEN CREDIT FOR THEIR EARNED AUTOMATIC GRADE PROMOTION BEFORE APPLYING THE PROVISIONS OF SECTIONS 4 AND 14 OF THIS ACT. EMPLOYEES WHO, UNDER SUCH ACT OF JULY 6, 1945, AS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THIS ACT, WOULD HAVE BEEN ENTITLED TO AUTOMATIC GRADE PROMOTIONS WITHIN ONE YEAR FROM THE EFFECTIVE DATE OF THIS ACT, SHALL BE GIVEN CREDIT FOR THE TIME SERVED SINCE THEIR LAST PROMOTION PRIOR TO THE EFFECTIVE DATE OF THIS DATE OF THIS ACT IN DETERMINING ELIGIBILITY FOR AUTOMATIC GRADE PROMOTIONS UNDER THE PROVISIONS OF SUCH ACT OF JULY 6, 1945, AS AMENDED BY THIS ACT.

WHILE THE STATUTE JUST QUOTED PROVIDES FOR THE CREDITING OF TIME SERVED SINCE THE LAST AUTOMATIC PROMOTION, BEFORE CONVERSION UNDER SECTION 14 (B) (2), NO EXPRESS PROVISION IS MADE IN RESPECT OF SAVING THE TIME ALREADY SERVED IN THE OLD TOP AUTOMATIC GRADE 9 TOWARD LONGEVITY GRADE A AT THE TIME OF ITS BEING CONVERTED TO GRADE 7 UNDER THE NEW ACT. HOWEVER, THE ACT DOES MANIFEST AN INTENTION NOT TO REQUIRE A FORFEITURE OF ANY TIME ALREADY SERVED IN THE OLD GRADES AT THE TIME OF CONVERSION TO THE GRADES REQUIRED BY THE NEW ACT, AND NOTHING APPEARS IN THE LEGISLATIVE HISTORY TO DISCLOSE ANY INTENTION TO THE CONTRARY.

HENCE, THERE APPEARS REQUIRED THE CONCLUSION THAT THE EMPLOYEE IN THIS CASE SHOULD HAVE BEEN CONVERTED UNDER SECTION 14 (B) (2) TO GRADE 7, EFFECTIVE JULY 1, 1951; THAT PROMOTION TO THE NEXT TWO AUTOMATIC GRADES, NAMELY 8 AND 9, SHOULD HAVE BEEN MADE IN DUE COURSE AS REQUIRED BY APPLICABLE LAW; AND THAT UPON REACHING THE NEW TOP AUTOMATIC GRADE 9, HE WAS REQUIRED TO SERVE TOWARD LONGEVITY GRADE A ONLY THE DIFFERENCE BETWEEN THREE YEARS AND THE TIME HE ALREADY HAD SERVED IN THE OLD TOP AUTOMATIC GRADE.

ACCORDINGLY, CORRECTIVE ACTION SHOULD BE TAKEN IN THIS AND SIMILAR CASES TO ACCORD WITH THE VIEW JUST STATED, AND SINCE THERE APPEARS NO SOUND BASIS FOR THE ACTION ADMINISTRATIVELY TAKEN IN THIS CASE ANY OVERPAYMENT SHOWN TO HAVE BEEN MADE AS A RESULT OF SUCH CORRECTIVE ACTION WOULD BE FOR RECOVERING BACK FROM THE INVOLVED EMPLOYEE.