B-119459, JULY 1, 1954, 34 COMP. GEN. 1

B-119459, JULY 1, 1954, 34 COMP. GEN. 1

COMPENSATION - POSTAL SERVICE - READJUSTMENT OF SALARIES UNDER ACT OF OCTOBER 24, 1951 - DISPATCHERS AND SUPERVISORS IN MOTOR VEHICLE SERVICE WHILE SECTION 8 OF THE ACT OF OCTOBER 24, 1951, PRESCRIBES ONE SALARY RATE OF $4,470 FOR DISPATCHERS IN THE POSTAL MOTOR VEHICLE SERVICE REGARDLESS OF THE NUMBER OF EMPLOYEES SUPERVISED, SECTION 16 LIMITS THE SALARY INCREASE UNDER THE ACT TO NOT MORE THAN $800 ABOVE THE EMPLOYEE'S PREVIOUS SALARY, SO THAT A DISPATCHER WHOSE SALARY WAS INCREASED FROM $2,970 TO $3,770--- THE $800 MAXIMUM INCREASE UNDER THE ACT--- IS NOT ENTITLED, AT A LATER DATE, TO HAVE HIS SALARY INCREASED TO THE $4,470 RATE. A SUPERINTENDENT OF THE POSTAL MOTOR VEHICLE SERVICE WHO RECEIVED THE $800 MAXIMUM SALARY INCREASE UNDER SECTION 16 OF THE ACT OF OCTOBER 1951, AND WHOSE STATUS WAS LATER CHANGED BECAUSE OF AN INCREASE IN THE NUMBER OF EMPLOYEES SUPERVISED, IS ENTITLED TO A FURTHER ADJUSTMENT OF SALARY TO CONFORM WITH THE NEW RATES AUTHORIZED UNDER THE ACT FOR HIS CHANGED STATUS RETROACTIVE TO THE DATE SUCH SALARY ADJUSTMENTS CUSTOMARILY ARE MADE.

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

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1954, YOUR REFERENCE 4, REQUESTING A DECISION WITH RESPECT TO THE APPLICATION OF SECTION 16 OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 632, AMENDING THE ACT OF JULY 6, 1945, UPON THE SITUATIONS PRESENTED IN YOUR LETTER, AS FOLLOWS:

THE FOLLOWING CASE EMBODIES THE PRINCIPLE OF MANY SUPERVISORS IN THE VEHICLE SERVICE:

UNDER PUBLIC LAW 204, A DISPATCHER WAS CONVERTED FROM $2970 TO $3770 ON JULY 1, 1951, BECAUSE OF THE $800 MAXIMUM INCREASE. THE SALARY RATE SPECIFIED IN SECTION 8 OF THE PUBLIC LAW 204 IS $4470. ACTION WAS TAKEN BY THE BUREAU OF POST OFFICE OPERATIONS TO PLACE THE DISPATCHER IN THE $4470 GRADE, EFFECTIVE SEPTEMBER 16, 1953.

WHILE PUBLIC LAW 204 SET NO EFFECTIVE DATE ON WHICH THIS DISPATCHER SHOULD BE PLACED IN THE $4470 GRADE, IT DOES NOT APPEAR REASONABLE TO REQUIRE HIM TO AWAIT BEYOND JULY 1, 1952. MAY THIS DISPATCHER BE PROMOTED TO $4470 RETROACTIVE TO JULY 1, 1952?

VEHICLE SERVICE SUPERVISORS WHO HAD RECEIVED THE MAXIMUM INCREASE OF $800 WERE NOT GIVEN AN INCREASE IN PAY EVEN THOUGH THERE WAS AN INCREASE THE NUMBER OF EMPLOYEES SUPERVISED. THE FOLLOWING CASE EMBODIES THE PRINCIPLE INVOLVED:

A SUPERINTENDENT IN THE VEHICLE SERVICE RECEIVED THE MAXIMUM INCREASE FROM $4070 TO $4870, ON JULY 1, 1951. ON DECEMBER 31, 1951, THE NUMBER OF EMPLOYEES SUPERVISED INCREASED FROM 4 TO 49. THE SALARY SPECIFIED IN PUBLIC LAW 204 FOR THE SUPERINTENDENT OF 49 EMPLOYEES IS $5570. INCREASE IN SALARY WAS ALLOWED BY THE BUREAU OF FACILITIES ON JULY 1, 1952, BECAUSE THE SUPERINTENDENT HAD RECEIVED THE MAXIMUM INCREASE OF $800 ON JULY 1, 1951.

THE SUPERINTENDENT WAS PLACED IN THE $5570 GRADE EFFECTIVE SEPTEMBER 16, 1953. MAY THE DEPARTMENT INCREASE HIS SALARY TO $5570 RETROACTIVE TO JULY 1, 1952, ON THE BASIS OF THE NUMBER OF EMPLOYEES SUPERVISED ON DECEMBER 31, 1951?

SECTIONS 8 AND 16 OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 629, 632, RESPECTIVELY PROVIDE:

SEC. 8. SECTION 13 (A) OF SUCH ACT (1ACT OF JULY 6, 1945) IS AMENDED TO READ AS FOLLOWS:

"/A) THE SALARIES OF SUPERVISORY EMPLOYEES IN THE MOTOR VEHICLE SERVICE SHALL BE ANNUAL SALARIES BASED UPON THE NUMBER OF EMPLOYEES SUPERVISED AS FOLLOWS: PROVIDED, THAT, IN DETERMINING THE NUMBER OF EMPLOYEES SUPERVISED, CREDIT SHALL BE ALLOWED FOR SERVICE PERFORMED BY REGULAR EMPLOYEES, SUBSTITUTE EMPLOYEES OTHER THAN THOSE SERVING IN LIEU OF REGULAR EMPLOYEES ABSENT FROM DUTY FOR ANY CAUSE, AND TEMPORARY EMPLOYEES, AND FOR EACH TWO THOUSAND AND TWENTY-FOUR HOURS OF SERVICE PERFORMED BY SUCH EMPLOYEES CREDIT SHALL BE ALLOWED FOR ONE EMPLOYEE:

CHART

"1NUMBER OF EMPLOYEES SUPERINTENDENT DISPATCHERS 701 AND UP ------------- ------------- $6,470 $4,470 401 TO 700 -------------------------- 6,470 4,470 251 TO 400 -------------------------- 6,170 4,470 101 TO 250 ------- ------ ------------ 5,970 4,470 51 TO 100 --------------- ----------- 5,770 4,470 31 TO 50 ----------------- ----------

5,570 4,470 16 TO 30 ---------------------------- 5,170 4,470 11 TO 15 -- -------------------------- 5,070 4,470 6 TO 10 -------- ------------------ -- 4,870 4,470 1 TO 5 ------------------ ----------- ------ 4,470"

SEC. 16. IN THE READJUSTMENT OF SALARIES TO CONFORM WITH THE PROVISIONS OF THIS ACT, (1) NO POSTMASTER (EXCEPT POSTMASTERS IN OFFICES OF THE FOURTH CLASS), ASSISTANT POSTMASTER, SUPERVISOR, OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, RECEIVE AN INCREASE IN BASIC ANNUAL SALARY OF LESS THAN $400 PER ANNUM OR IN EXCESS OF $800, (2) NO POSTMASTER IN AN OFFICE OF THE FOURTH CLASS SHALL RECEIVE AN INCREASE OF MORE THAN 20 PERCENTUM OF HIS PRESENT SALARY, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, AND (3) EMPLOYEES PAID ON AN HOURLY BASIS SHALL RECEIVE AN INCREASE OF 20 CENTS PER HOUR OVER THEIR PRESENT COMPENSATION. (ITALICS SUPPLIED.)

AS POINTED OUT IN YOUR LETTER, NOWHERE IN THE ACT IS THERE FOUND ANY PROVISION STATING THE TIME WHICH MUST ELAPSE BETWEEN THE ADJUSTMENTS OF SALARIES BASED UPON A CHANGE IN THE NUMBER OF EMPLOYEES SUPERVISED; NEITHER IS ANY TIME SPECIFIED DURING WHICH THE LIMITATIONS IN SECTION 16 REMAIN IN FORCE. HOWEVER, IT WILL BE NOTED THAT THE RESTRICTION IN SECTION 16 AGAINST INCREASES IN BASIC ANNUAL SALARY OF NOT LESS THAN $400 AND MORE THAN $800 IN THE READJUSTMENT OF SALARIES TO CONFORM WITH THE PROVISIONS OF THE 1951 STATUTE SPECIFICALLY IS DIRECTED TO INCREASES "BY REASON OF THE ENACTMENT OF THIS ACT.' A FAIR INTERPRETATION OF SUCH LANGUAGE WOULD SEEM TO LEAD TO THE CONCLUSION THAT THE RESTRICTION IS FOR APPLICATION WITH RESPECT TO INCREASES IN SALARY NECESSARY TO ADAPT THE THEN CURRENT SALARY RATES TO THE RATES PRESCRIBED BY THE 1951 AMENDATORY ACT. CONSEQUENTLY, IT REASONABLY APPEARS THAT THE RESTRICTION IS NOT APPLICABLE TO INSTANCES IN WHICH, SUBSEQUENT TO THE INITIAL SALARY ADJUSTMENT PURSUANT TO THE 1951 ACT, A CHANGE OF STATUS OF AN EMPLOYEE NECESSITATES A FURTHER ADJUSTMENT OF HIS SALARY TO CONFORM WITH THE NEW RATES APPLICABLE TO HIS CHANGE STATUS--- EVEN THOUGH THE ULTIMATE REVISION IN SALARY IS NOT WITHIN THE PRESCRIBED LIMITATIONS.

WITH RESPECT TO DISPATCHERS IT WILL BE NOTED THAT SECTION 8 OF THE 1951 STATUTE PRESCRIBES ONE SALARY RATE ($4,470), FOR SUCH EMPLOYEES IRRESPECTIVE OF THE NUMBER OF EMPLOYEES SUPERVISED. ACCORDINGLY, A CHANGE IN THE NUMBER OF EMPLOYEES SUPERVISED DOES NOT AFFECT THE DISPATCHER'S RATE OF COMPENSATION. AS SECTION 16 LIMITS THE SALARY TO BE PAID INITIALLY UNDER THE ACT OF OCTOBER 24, 1951, TO NOT MORE THAN $800 ABOVE THE PREVIOUS SALARY, THAT LIMITATION WOULD BE AVOIDED IF THE SALARY OF THE DISPATCHER IN THE ILLUSTRATION GIVEN SHOULD BE INCREASED OVER THE $800 LIMITATION, WHETHER SUCH ACTION IS MADE EFFECTIVE ONE DAY OR ONE YEAR AFTER THE PASSAGE OF THE ACT OR AT ANY SUBSEQUENT DATE. ACCORDINGLY, YOUR QUESTION WITH RESPECT TO THE DISPATCHER MUST BE ANSWERED IN THE NEGATIVE. THE INCREASE GIVEN HIM SEPTEMBER 16, 1953, SHOULD BE RESCINDED, AND PROPER ADMINISTRATIVE ACTION TAKEN TO SECURE REFUND OF THE OVERPAYMENT.

IN THE CASE OF SUPERINTENDENTS OF THE MOTOR VEHICLE SERVICE, THE SALARY RATES PRESCRIBED BY THE 1951 ACT ARE BASED UPON THE NUMBER OF EMPLOYEES SUPERVISED. ACCORDINGLY, IN THE EXAMPLE GIVEN, AND IN LINE WITH WHAT HAS BEEN STATED ABOVE, NO CHANGE IN THE SALARY RATE INITIALLY FIXED FOR THE EMPLOYEE UNDER THE 1951 ACT WAS JUSTIFIED UNTIL THERE HAS BEEN A CHANGE IN HIS STATUS. IT IS STATED THAT THE NUMBER OF EMPLOYEES SUPERVISED BY HIM ON JULY 1, 1951, CHANGED FROM 4 TO 49, DECEMBER 31, 1951. CONSEQUENTLY, HIS SALARY PROPERLY COULD HAVE BEEN ADJUSTED TO THE RATE PRESCRIBED BY THE 1951 STATUTE FOR HIS CHANGED STATUS ON THE DAY, FOLLOWING SUCH CHANGE, ON WHICH SALARY ADJUSTMENTS CUSTOMARILY ARE MADE--- WHICH APPEARS TO BE JULY ST OF THE FOLLOWING FISCAL YEAR. ACCORDINGLY, IN THE CIRCUMSTANCES STATED, THE SUPERINTENDENT'S SALARY NOW MAY BE ADJUSTED TO THE SALARY APPLICABLE TO SUPERVISORS OF 49 EMPLOYEES AS OF JULY 1, 1952. THIS IS NOT CONSIDERED TO BE A RETROACTIVE PROMOTION UNDER THE CIRCUMSTANCES IN THIS CASE. 12 COMP. GEN. 146.