B-73658, JUNE 23, 1948, 27 COMP. GEN. 773

COMPENSATION - POSTAL SERVICE - AUTOMATIC PROMOTIONS - SERVICE CREDITS - RESTORATION TO FORMER GRADE AFTER DEMOTION A POSTAL SERVICE EMPLOYEE WHO WAS DEMOTED TO A LOWER GRADE FOR DISCIPLINARY REASONS MAY NOT, UPON RESTORATION TO HIS FORMER HIGHER GRADE, COUNT SATISFACTORY SERVICE IN THE GRADE TO WHICH DEMOTED TOWARD THE "ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE" REQUIRED BY THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, FOR AUTOMATIC PROMOTION TO THE NEXT HIGHER GRADE; HOWEVER, PRIOR SATISFACTORY SERVICE BEFORE DEMOTION, UNBROKEN BY UNSATISFACTORY SERVICE, MAY BE COUNTED IN CONJUNCTION WITH SUBSEQUENT SATISFACTORY SERVICE AFTER RESTORATION TO THE FORMER HIGHER GRADE IN COMPUTING SUCH SERVICE REQUIREMENT. COMPARE 2 COMP. GEN. 363.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 23, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 12, 1948, REFERENCE 15, AS FOLLOWS:

I HAVE BEFORE ME THE CASE OF A REGULAR CITY LETTER CARRIER IN A FIRST- CLASS POST OFFICE WITH APPROXIMATELY SIXTEEN YEARS' SERVICE AS A CARRIER. ON JULY 1, 1945, THIS CARRIER WAS GIVEN A SALARY OF $2,500 PER ANNUM UNDER THE PROVISIONS OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, AND ADVANCED TO $2,900 EFFECTIVE JANUARY 1, 1946, UNDER PUBLIC LAW 386, APPROVED MAY 21, 1946. ON MAY 16, 1946, THE CARRIER WAS REDUCED TO $2,800 PER ANNUM FOR DISCIPLINARY REASONS AS A RESULT OF HIS ACTIONS DURING THE CHRISTMAS PERIOD. HAD HE NOT BEEN REDUCED HE WOULD HAVE ADVANCED TO $3,000 PER ANNUM ON JULY 1, 1946.

THIS CARRIER WAS RESTORED TO THE $2,900 SALARY GRADE ON JULY 1, 1946. THE POSTMASTER CERTIFIED THAT HIS SERVICES WERE SATISFACTORY FROM JANUARY 1, 1946, THROUGH DECEMBER 31, 1947, HE WAS PROMOTED TO THE $3,000 GRADE ON JANUARY 1, 1947.

IN A LETTER DATED DECEMBER 16, 1947, A COPY OF WHICH IS HEREWITH, THE CHIEF OF THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE ADVISED THAT AS THIS EMPLOYEE WAS RESTORED TO THE $2,900 GRADE ON JULY 1, 1946, HE WOULD NOT BE ELIGIBLE FOR PROMOTION TO THE $3,000 GRADE UNTIL JULY 1, 1947.

IN A DECISION DATED NOVEMBER 29, 1922, (2 COMP. GEN. 363) YOU RULED THAT WHEN AN EMPLOYEE IN THE AUTOMATIC GRADES IS REDUCED FOR DISCIPLINARY REASONS AND SUBSEQUENTLY RESTORED TO THE GRADE FROM WHICH REDUCED HE WILL BE ELIGIBLE FOR AUTOMATIC PROMOTION TO THE NEXT HIGHER GRADE AT THE BEGINNING OF THE QUARTET FOLLOWING THE COMPLETION OF ONE YEAR OF CONTINUOUS SATISFACTORY SERVICE PERFORMED SINCE THE TERMINATION OF THE PERIOD OF UNSATISFACTORY SERVICE WHICH CAUSED THE REDUCTION. YOUR RULING WAS IN HARMONY WITH THE PROVISIONS OF SEC. 121, TITLE 39, U.S.C.

INASMUCH AS THE POSTAL RECLASSIFICATION ACT OF 1945, PUBLIC LAW 134, APPROVED JULY 6, 1945, DOES NOT DIFFER WITH RESPECT TO AUTOMATIC PROMOTIONS FROM THAT PROVIDED BY THE CLASSIFICATION ACT OF 1925, PUBLIC LAW 506, APPROVED FEBRUARY 28, 1925, IT WILL BE APPRECIATED IF YOU WILL REVIEW THE FACTS IN THIS CASE AND ADVISE ME AS TO WHETHER OR NOT THE ACTION OF THE DEPARTMENT IS PROPER IN CONTINUING TO CONSTRUE YOUR DECISION OF NOVEMBER 29, 1922, AS APPLICABLE TO PUBLIC LAW 134.

IN DECISION OF NOVEMBER 29, 1922, 2 COMP. GEN. 363, REFERRED TO IN YOUR LETTER, IT WAS HELD (QUOTING FROM THE SYLLABUS), AS FOLLOWS:

THE ONE YEAR'S SATISFACTORY SERVICE REQUIRED TO ENTITLE RAILWAY POSTAL CLERKS TO AUTOMATIC PROMOTION UNDER THE ACT OF JUNE 5, 1920, 41 STAT., 1050, 1053, MUST BE CONTINUOUS AND IMMEDIATELY PRECEDE THE PROMOTION, BUT MAY INCLUDE SATISFACTORY SERVICE IN A LOWER GRADE TO WHICH DEMOTED BY REASON OF PRIOR UNSATISFACTORY SERVICE, AS WELL AS SATISFACTORY SERVICE IN THE GRADE FROM WHICH DEMOTED AFTER RESTORATION THERETO.

THAT CONCLUSION WAS BASED UPON CONSIDERATIONS OF CERTAIN PROVISIONS OF THE ACT OF JUNE 5, 1920, 41 STAT. 1053, INCLUDING AMONG OTHERS, THE PROVISION THAT:

WHENEVER AN EMPLOYEE HEREIN PROVIDED FOR SHALL HAVE BEEN REDUCED IN SALARY FOR ANY CAUSE, HE MAY BE RESTORED TO HIS FORMER GRADE OR ADVANCED TO AN INTERMEDIATE GRADE AT THE BEGINNING OF ANY QUARTER FOLLOWING THE REDUCTION, AND A RESTORATION TO A FORMER GRADE OR ADVANCEMENT TO AN INTERMEDIATE GRADE SHALL NOT BE CONSTRUED AS A PROMOTION WITHIN THE MEANING OF THE LAW PROHIBITING ADVANCEMENT OF MORE THAN ONE GRADE WITHIN ONE YEAR. AND IN THAT CONNECTION, IT WAS STATED:

IF SATISFACTORY SERVICE RENDERED AFTER REDUCTION AND BEFORE RESTORATION COULD NOT BE COUNTED, THE EMPLOYEE WOULD HAVE TO SERVE SATISFACTORILY FOR A FULL YEAR AFTER RESTORATION BEFORE BEING ENTITLED TO PROMOTION, WITH THE RESULT THAT RESTORATION WOULD BE EQUIVALENT TO A PROMOTION, WHEREAS THE LAW HEREINBEFORE QUOTED IS TO THE EFFECT THAT A RESTORATION SHALL NOT BE REGARDED AS A PROMOTION IN CONSIDERING THE EMPLOYEE'S RIGHT TO PROMOTION THEREAFTER. IT MUST BE HELD, THEREFORE, THAT SATISFACTORY SERVICE RENDERED AFTER A REDUCTION AND BEFORE RESTORATION MAY BE COUNTED THE SAME AS SATISFACTORY SERVICE RENDERED AFTER RESTORATION IN DETERMINING THE EMPLOYEE'S RIGHT TO PROMOTION.

PUBLIC LAW 134, APPROVED JULY 6, 1945, 59 STAT. 435, AS AMENDED--- THE STATUTE CURRENTLY GOVERNING THE COMPENSATION SCHEDULES OF EMPLOYEES IN THE POSTAL SERVICE--- WITH RESPECT TO AUTOMATIC PROMOTIONS IN THE VARIOUS CLASSES OF EMPLOYEES THEREIN SET FORTH EXPRESSLY PROVIDES THAT SUCH EMPLOYEES SHALL BE PROMOTED SUCCESSIVELY AT THE BEGINNING OF THE QUARTER "FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE.' HENCE, IT SEEMS CLEAR THAT FOR PURPOSES OF AUTOMATIC PROMOTIONS UNDER THAT STATUTE THERE CAN BE COUNTED ONLY SUCH SERVICE AS HAD BEEN RENDERED IN THE NEXT LOWER GRADE. SEE 26 COMP. GEN. 51; ID. 96. ACCORDINGLY, WHATEVER MAY HAVE BEEN THE CONSIDERATIONS WHICH LED TO THE CONCLUSION IN THE SAID DECISION OF NOVEMBER 22, 1922, RESPECTING THE COUNTING OF SERVICE UNDER THE 1920 STATUTE THERE INVOLVED, IT SEEMS APPARENT THAT THAT DECISION IS NOT NECESSARILY FOR APPLICATION UNDER THE 1945 STATUTE. AND THAT IS TRUE IRRESPECTIVE OF WHETHER THE ABOVE QUOTED PROVISIONS OF THE SAID 1920 ACT AS REENACTED BY SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1064 (SECTION 121, TITLE 39, U.S. CODE, 1946 EDITION), BE CONSIDERED AS NOW BEING IN EFFECT, SINCE THE REQUIREMENTS OF THAT PROVISION ARE SATISFIED SO LONG AS THE RESTORATION TO THE FORMER GRADE OR ADVANCEMENT TO AN INTERMEDIATE GRADE IS NOT VIEWED AS COMMENCING A NEW WAITING PERIOD FOR AUTOMATIC ADVANCEMENT SUCH AS RESULTS FROM A PROMOTION.

CONSIDERING THAT THE 1945 STATUTE SPECIFICALLY REQUIRES ONE YEAR'S SATISFACTORY SERVICE "IN EACH GRADE" AS A PREREQUISITE TO PROMOTION TO THE NEXT HIGHER GRADE, THE CONCLUSION APPEARS INESCAPABLE THAT SATISFACTORY SERVE IN A LOWER GRADE TO WHICH REDUCED MAY NOT BE COUNTED IN COMPUTING THE ONE YEAR'S SATISFACTORY SERVICE REQUIREMENT. HOWEVER, WHILE IT IS CORRECT THAT THE ONE YEAR'S SATISFACTORY SERVICE MUST BE CONTINUOUS, THAT IS, UNBROKEN BY UNSATISFACTORY SERVICE, THERE HAS BEEN FOUND NOTHING IN THE SAID 1945 ACT WHICH REQUIRES THAT THE SATISFACTORY SERVICE IN EACH GRADE MUST BE CONTINUOUS SERVICE IN THAT GRADE. IN OTHER WORDS, WHILE THERE MUST BE A YEAR'S SATISFACTORY SERVICE IN A GRADE TO AUTHORIZE PROMOTION TO THE NEXT HIGHER GRADE, THE FACT THAT SUCH SERVICE WAS INTERRUPTED BY SATISFACTORY SERVICE IN A LOWER GRADE WOULD NOT DEFEAT THE EMPLOYEE'S RIGHT TO COUNT HIS PRIOR SATISFACTORY SERVICE BEFORE DEMOTION IN CONJUNCTION WITH SUBSEQUENT SATISFACTORY SERVICE AFTER RESTORATION IN COMPUTING THE SERVICE REQUIREMENT. OF COURSE, IN SUCH COMPUTATION THE PERIOD OF SATISFACTORY SERVICE IN THE GRADE TO WHICH DEMOTED IS OMITTED.

WITH REFERENCE TO THE PARTICULAR CIRCUMSTANCES MENTIONED IN YOUR LETTER, IT WILL BE SEEN THAT SERVICE TOWARDS THE ONE YEAR'S SATISFACTORY SERVICE REQUIREMENT COMMENCED JANUARY 1, 1946, AND, BUT FOR THE PERIOD MAY 16 THROUGH JUNE 30, 1946, WOULD HAVE BEEN COMPLETED AS OF DECEMBER 31, 1947. HOWEVER, SINCE THAT PERIOD REPRESENTED ONLY 10 1/2 MONTHS' SERVICE IN SALARY GRADE $2,900, THE FULL YEAR OF SATISFACTORY SERVICE IN THAT SALARY GRADE WAS NOT COMPLETED UNTIL FEBRUARY 15, 1947. CONSEQUENTLY, PROMOTION TO SALARY GRADE $3,000 PROPERLY SHOULD HAVE BEEN EFFECTED AS OF APRIL 1, 1947.

THE EXCEPTION MENTIONED IN YOUR LETTER WILL BE REVISED IN ACCORDANCE WITH THE FOREGOING.