B-156632, JUN. 16, 1965

B-156632, JUN. 16, 1965

TO MR. LEROY P. AFDEM, BUREAU OF FINANCE AND ADMINISTRATION:

THIS REFERS TO YOUR LETTER OF APRIL 22, 1965, FILE AIR:LPA, REQUESTING OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER COVERING SALARY ADJUSTMENT UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, IN THE CASE OF LLOYD R. ACKERMAN, AN EMPLOYEE OF THE POSTAL FIELD SERVICE.

YOU SAY THAT MR. ACKERMAN WAS PROMOTED EFFECTIVE APRIL 1, 1961, FROM DISTRIBUTION CLERK, PFS-4, STEP 7, TO TOUR LEADER, PFS-5, STEP 7, AND SOME SIX WEEKS LATER ON MAY 13, 1961, HE WAS PROMOTED TO FOREMAN OF MAILS, PFS- 6, STEP 7. ON AUGUST 24, 1961, THE PROMOTIONS WERE CANCELLED AND HE WAS RETURNED TO THE PFS-4, STEP 7, POSITION. THE REASON GIVEN WAS THAT HE WAS INELIGIBLE FOR THE HIGHER POSITIONS SINCE HE HAD FAILED TO QUALIFY IN AN EXAMINATION WHICH HAD ESTABLISHED A SUPERVISORY REGISTER. ON MARCH 3, 1962, HE WAS ADVANCED TO LONGEVITY STEP 7A IN LEVEL PFS-4. THEREAFTER IT WAS CONCLUDED THAT ALTHOUGH THE PROMOTIONS TO LEVELS PFS-5 AND PFS-6 WERE IMPROPER THEY HAD BECOME EFFECTIVE AND COULD NOT BE CANCELLED SINCE THEY HAD BECOME EFFECTIVE PRIOR TO CANCELLATION ON AUGUST 24, 1961, HENCE THE CANCELLATION ACTION LIKEWISE WAS CANCELLED EFFECTIVE JUNE 8, 1962, AND THE EMPLOYEE WAS RESTORED TO PFS-6, STEP 7A. ALSO, ON THAT DATE HE RECEIVED A LETTER OF CHARGES WHICH PROPOSED TO REDUCE HIM FROM PFS-6 TO PFS-4, FOR THE SAME REASON GIVEN IN THE ORIGINAL CANCELLATION. THE PROPOSED REDUCTION TO PFS-4, STEP 7A, WAS MADE EFFECTIVE SEPTEMBER 1, 1962. JUNE 24, 1964, THE BOARD OF APPEALS AND REVIEW OF THE POST OFFICE DEPARTMENT HELD THAT THE POSITION OF TOUR LEADER, PFS-5, WAS NOT A SUPERVISORY POSITION AND, THEREFORE, MR. ACKERMAN'S PROMOTION THERETO ON APRIL 1, 1961, WAS PROPER, ALTHOUGH THE PROMOTION TO FOREMAN OF MAILS, PFS -6, WAS MADE TO A SUPERVISORY POSITION AND, THEREFORE, WAS IMPROPER. ACCORDINGLY, EFFECTIVE AUGUST 1, 1964, HE WAS PLACED IN LEVEL PFS-5.

ON THE BASIS OF THE FOREGOING YOU SAY THE EMPLOYEE'S SERVICE HISTORY HAS BEEN CHANGED TO SHOW HIM IN PFS-5, STEP 7A, AS OF SEPTEMBER 1, 1962, WITH INCREASE TO STEP 8 ON OCTOBER 13, 1962, UNDER PUB.L. 87 793, EFFECTIVE THAT DATE.

THE VOUCHER PROPOSES PAYMENT FOR THE DIFFERENCE BETWEEN PFS-5 AND PFS-4 FOR THE PERIOD SEPTEMBER 1, 1962, TO AUGUST 1, 1964, AND PFS-4 AND PFS-6 FOR THE PERIOD AUGUST 21, 1961, TO JUNE 7, 1962.

OUR VIEW IS THAT SINCE THE PROMOTION OF APRIL 1, 1961, TO PFS-5 WAS CORRECT THE SUBSEQUENT ACTIONS WERE ERRONEOUS SO FAR AS THEY PURPORTED TO REDUCE THE EMPLOYEE BELOW THAT LEVEL. IT IS NOT SHOWN THAT THE EMPLOYEE WAS IN ANY WAY RESPONSIBLE FOR SUCH ERRONEOUS ACTIONS. FURTHERMORE, IT APPEARS THAT BY REASON OF THE IMPROPER PROMOTION TO PFS-6, THE CANCELLATION THEREOF AND THE SUBSEQUENT CANCELLATION OF SUCH CANCELLATION THE EMPLOYEE ACTUALLY PERFORMED THE DUTIES OF PFS-6 AND WAS COMPENSATED AT A PRESCRIBED RATE THEREFOR FROM MAY 13 TO AUGUST 20, 1961, AND FROM JUNE 8 TO AUGUST 31, 1962. UNDER THE CIRCUMSTANCES WE AGREE THAT THE EMPLOYEE MAY BE CONSIDERED TO HAVE SERVED IN A DE FACTO STATUS DURING SUCH PERIODS AND MAY RETAIN THE COMPENSATION SO RECEIVED. WE FIND NO PROPER BASIS FOR PAYMENT AT THE PFS-6 LEVEL FROM AUGUST 21, 1961, TO JUNE 7, 1962, SINCE THE EMPLOYEE HAD NO ENTITLEMENT TO THAT POSITION AND SERVED AT THE PFS-4 LEVEL. HOWEVER, SINCE THE EMPLOYEE WAS ERRONEOUSLY REMOVED FROM HIS PFS-5 POSITION AND NOW HAS BEEN RETROACTIVELY RESTORED THERETO, AN ADJUSTMENT BETWEEN THE PFS-4 COMPENSATION HE RECEIVED AND THE PFS-5 COMPENSATION HE WOULD HAVE RECEIVED BUT FOR THE ADMINISTRATIVE ERRORS MAY BE MADE FOR THE PERIODS AUGUST 21, 1961, THROUGH JUNE 7, 1962, AND SEPTEMBER 1, 1962, THROUGH JULY 31, 1964.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT WHEN MODIFIED IN ACCORDANCE WITH THE FOREGOING.