B-132105, JULY 22, 1957, 37 COMP. GEN. 41

B-132105, JULY 22, 1957, 37 COMP. GEN. 41

POSTAL EMPLOYEES - LONGEVITY INCREASES - TRANSFER TO SUPERVISORY POSITIONS A POSTAL SERVICE EMPLOYEE WHO WAS RECEIVING COMPENSATION AT LONGEVITY GRADE B IN A CONVERTED POSITION IN WHICH THE LONGEVITY INCREASES WERE BASED ON A 3, 5 AND 7-YEAR SCHEDULE WHEN HE WAS PROMOTED TO A SUPERVISORY POSITION, IN WHICH THE LONGEVITY INCREASES ARE BASED ON A 13, 18 AND 25- YEAR SCHEDULE, AND PLACED IN LONGEVITY GRADE A BY VIRTUE OF COMPLETION OF 13 YEARS OF SERVICE IS NOT ENTITLED TO RETAIN THE PROMOTION CREDITS OF THE FORMER SCHEDULE UNDER THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, WHICH DID NOT GRANT OR AUTHORIZE ANY NEW RIGHTS FOR EMPLOYEES TRANSFERRED TO SUPERVISORY POSITIONS AND CONTINUED THE 13, 18 AND 25-YEAR LONGEVITY SCHEDULE FOR SUCH POSITIONS.

TO THE POSTMASTER GENERAL, JULY 22, 1957:

ON JUNE 5, 1957, THE ACTING POSTMASTER GENERAL, REFERENCE 800, REQUESTED OUR CONCURRENCE IN CERTAIN ADMINISTRATIVE ACTIONS TAKEN IN THE CASE OF R. D. GIFFORD, AN EMPLOYEE OF THE BATTLE CREEK, MICHIGAN, POST OFFICE, RESPECTING THE LONGEVITY COMPENSATION PAID TO HIM DURING PERIODS OF SERVICE IN SUPERVISORY POSITIONS, BOTH TEMPORARY AND PERMANENT. MR. GIFFORD FILED A CLAIM WITH OUR CLAIMS DIVISION COVERING THE PERIODS IN QUESTION. THE CLAIM WHICH WAS TRANSMITTED TO YOUR REGIONAL CONTROLLER, CHICAGO 7, ILLINOIS, BY OUR CLAIMS DIVISION, ON MARCH 5, 1957 (PA 2890131- HCS-4), FOR AN ADMINISTRATIVE REPORT WAS RETURNED WITH THE SUBMISSION.

THE ACTING POSTMASTER GENERAL ALSO REQUESTS THAT NO DECISIONS BE MADE IN ANY CASE INVOLVING AN INTERPRETATION OF THE PROVISIONS OF PUBLIC LAW 68, 84TH CONGRESS, 69 STAT. 88, 39 U.S.C. 951 NOTE, WITHOUT FIRST AFFORDING THE HEADQUARTERS OFFICE AN OPPORTUNITY TO EXPRESS ITS VIEWS RESPECTING THE MATTER AND THAT REQUESTS FOR INFORMATION INVOLVING SUCH CASES BE ADDRESSED TO THE HEADQUARTERS OFFICE, RATHER THAN TO FIELD OFFICES, OF THE POST OFFICE DEPARTMENT. HEREAFTER, SUCH MATTERS WILL BE HANDLED AS REQUESTED.

ON AUGUST 25, 1956 ( AUGUST 24 IN THIS CLAIM), MR. GIFFORD WAS TEMPORARILY ASSIGNED TO FOREMAN OF MAILS, PFS-7. HE PERFORMED SUCH TEMPORARY DUTIES UNTIL JANUARY 11, 1957. ON JANUARY 12, 1957, HE WAS PERMANENTLY PROMOTED TO FOREMAN OF MAILS, PFS-6 AND WHILE HOLDING THAT POSITION HE ALSO HAS TEMPORARILY PERFORMED THE DUTIES OF FOREMAN OF MAILS, PFS-7. BECAUSE OF OUR DECISION 32 COMP. GEN. 354, MR. GIFFORD WAS, UPON HIS TEMPORARY ASSIGNMENT, AUGUST 25, 1956, TO THE SUPERVISORY POSITION OF FOREMAN OF MAILS, PFS-7, ADMINISTRATIVELY PLACED IN LONGEVITY GRADE A BY VIRTUE OF THE COMPLETION OF 13 YEARS OF SERVICE. IN OTHER WORDS, UPON HIS ADVANCEMENT TO A SUPERVISORY POSITION UNDER THE FOREGOING DECISION, THE 13, 18, AND 25 SCHEDULE WAS APPLIED. MR. GIFFORD BELIEVES HE IS ENTITLED TO RETAIN HIS LONGEVITY GRADE B AND CONTINUE TO ADVANCE ACCORDING TO THE 3, 5, AND 7 SCHEDULE, IRRESPECTIVE OF THE POSITION TITLE OR PAY LEVEL HE MAY ATTAIN.

THE ADMINISTRATIVE VIEW IS THAT:

* * * (1) MR. GIFFORD WAS PROPERLY COMPENSATED AT THE LONGEVITY GRADE A RATE DURING THE PERIOD AUGUST 25, 1956 TO JANUARY 11, 1957; (2) MR. GIFFORD IS PROPERLY BEING COMPENSATED AT LONGEVITY GRADE A AFTER HIS PERMANENT PROMOTION TO FOREMAN OF MAILS, LEVEL 6; (3) MR. GIFFORD IS PROPERLY BEING COMPENSATED AT LONGEVITY GRADE A DURING THE PERIOD OF HIS TEMPORARY PROMOTION, PURSUANT TO SECTION 204 (B), TO FOREMAN OF MAILS, LEVEL 7, AND (4) IF MR. GIFFORD REMAINS IN POSITIONS WHICH ARE IDENTIFIABLE AS SINGLE SALARY GRADES UNDER PUBLIC LAW 134, HE IS ENTITLED TO BE ADVANCED TO LONGEVITY GRADES B AND C, AT THE COMMENCEMENT OF THE FIRST PAY PERIODS BEGINNING ON OR AFTER NOVEMBER 16, 1958 AND 1965, RESPECTIVELY.

MR. GIFFORD BASICALLY MAKES TWO CONTENTIONS RESPECTING YOUR ADMINISTRATIVE ACTION OF REDUCING HIM TO LONGEVITY GRADE A UPON HIS PROMOTION OR TRANSFER TO POSITIONS OF FOREMAN OF MAILS, PFS-7 AND 6, ON AND AFTER AUGUST 24, 1956, INSTEAD OF COMPENSATING HIM AT LONGEVITY GRADE B. THE FIRST IS, THAT UNDER THE PROVISIONS OF SECTION 404 (E/--- DOUBTLESS INTENDED TO BE (D/--- OF PUBLIC LAW 68, 39 U.S.C. 984 (E), (D), HE IS ENTITLED TO THE SAVINGS PROVISION OF SECTION 2, PUBLIC LAW 500, APPROVED MAY 3, 1950, 39 U.S.C. 889, REGARDLESS OF THE POSITION TITLE OR PAY LEVEL HE MAY ATTAIN. THE SECOND IS THAT HE IS ENTITLED TO LONGEVITY GRADE B REGARDLESS OF HIS PROMOTION TO THE POSITION OF FOREMAN OF MAILS BECAUSE OF THE WORDING IN SECTION 305 (A) OF PUBLIC LAW 68, 39 U.S.C. 975 (A).

IN 32 COMP. GEN. 354 WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

AN EMPLOYEE OF THE POSTAL TRANSPORTATION SERVICE WHO WAS ADVANCED TO THE SUPERVISORY POSITION OF FOREMAN PRIOR TO THE COMPLETION OF 13 YEARS OF SERVICE MAY NOT BE GRANTED THE LONGEVITY INCREASES UNDER THE ACT OF MAY 3, 1950, WHILE SERVING IN THE POSITION OF FOREMAN UNTIL SUCH TIME AS HE COMPLETES 13, 18 OR 25 YEARS OF POSTAL SERVICE AS PRESCRIBED IN THAT STATUTE, NOTWITHSTANDING THAT PRIOR TO HIS ADVANCEMENT TO THE POSITION OF FOREMAN HE RECEIVED THE FIRST MERITORIOUS GRADE UNDER PROVISIONS OF SECTION 16 OF THE ACT OF JULY 1, 1945, AS AMENDED.

IN 35 COMP. GEN. 287 WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

A POSTAL FIELD SERVICE EMPLOYEE WHO UNDER THE SAVINGS PROVISION OF SECTION 2 OF THE ACT OF MAY 3, 1950, IS RECEIVING LONGEVITY BENEFITS ON THE BASIS OF THE FORMULA PRESCRIBED IN SECTION 12 (A) OF THE ACT OF JULY 6, 1945, AND WHO TRANSFERS TO A POSITION FOR WHICH ANOTHER LONGEVITY FORMULA IS PRESCRIBED, MAY UPON HIS RETURN TO THE POSITION FROM WHICH TRANSFERRED INVOKE THE PROVISIONS OF SECTION 2 OF THE 1950 ACT IN ORDER TO RECEIVE THE MORE BENEFICIAL LONGEVITY CREDIT.

WE POINTED OUT IN 35 COMP. GEN. 287, THAT THE APPARENT PURPOSE OF SECTION 2 WAS TO ENABLE EMPLOYEES OCCUPYING POSITIONS FOR WHICH ADDITIONAL GRADES WERE PROVIDED UNDER PUBLIC LAW 134, 79TH CONGRESS, 39 U.S.C. 851, TO RETAIN THEIR PROMOTION CREDIT UNDER THAT LAW AND SECTION 2 (E) OF PUBLIC LAW 428, APPROVED OCTOBER 28, 1949, 63 STAT. 953. PROMOTION TO LONGEVITY GRADES A, B, AND C WAS TO BE UPON THE BASIS OF THE 3, 5, AND 7 FORMULA, ESTABLISHED BY PUBLIC LAW 134, UNLESS THE PROVISIONS OF PUBLIC LAW 500, 39 U.S.C. 888, ARE MORE BENEFICIAL TO THE EMPLOYEE THAN THOSE CONTAINED IN PUBLIC LAW 134 AND SECTION 2 (E) OF PUBLIC LAW 428. FURTHER, WE POINTED OUT THEREIN THAT THERE IS NO LANGUAGE IN SECTION 2 OF PUBLIC LAW 500 CONFINING ITS BENEFITS TO THOSE EMPLOYEES WHO REMAIN IN THE POSITION IN WHICH THEY WERE SERVING AT THE TIME OF ITS ENACTMENT. EMPLOYEES WHO, ON THE DATE OF ENACTMENT OF PUBLIC LAW 500, WERE ENTITLED TO THE BENEFITS OF SAID SECTION AND WHO TRANSFER TO A POSITION FOR WHICH LONGEVITY BENEFITS ACCRUE UNDER A DIFFERENT SECTION OF PUBLIC LAW 500 DO NOT FORFEIT THEIR RIGHTS TO INVOKE SECTION 2 UPON THEIR RETURN TO THE POSITION FROM WHICH TRANSFERRED. BY SUCH REASONING THE INFERENCE EXISTS THAT AN EMPLOYEE PROMOTED OR TRANSFERRED TO A POSITION NOT COVERED BY PUBLIC LAW 134 AND THE 3, 5, AND 7 SCHEDULE BUT WHICH POSITION IS COVERED BY A DIFFERENT FORMULA, IS GOVERNED BY THE FORMULA APPLICABLE TO THE POSITION TO WHICH PROMOTED OR TRANSFERRED. WE SO HELD IN 32 COMP. GEN. 354 ABOVE.

SECTION 404 (D) OF PUBLIC LAW 68, 69 STAT. 124, READS AS FOLLOWS:

EMPLOYEES ON THE ROLLS ON THE EFFECTIVE DATE OF THIS SECTION WHO ARE ENTITLED TO PROMOTION CREDIT FOR LONGEVITY PURPOSES UNDER SECTION 2 OF THE ACT APPROVED MAY 3, 1950 (64 STAT. 102; U.S.C. 889), SHALL RETAIN ALL RIGHTS AND BENEFITS ESTABLISHED OR CONTINUED UNDER SUCH SECTION TO THE SAME EXTENT AS THOUGH SUCH SECTION HAD REMAINED IN EFFECT.

REPORT NO. 728, HOUSE OF REPRESENTATIVES, 84TH CONGRESS, ST SESSION, BEGINNING ON PAGE 32, AS POINTED OUT IN THE SUBMISSION, MAKES CERTAIN REMARKS REGARDING THE PURPOSE OF SECTION 404 (D) WHICH INDICATE ONLY THAT THE PROVISIONS OF SECTION 2 OF THE ACT OF MAY 3, 1950, ARE TO BE CONTINUED. THE PROVISIONS OF SECTION 2 HAVE ALREADY BEEN INTERPRETED BY OUR DECISIONS CITED ABOVE TO MEAN THAT AN EMPLOYEE IS MERELY SAVED THOSE BENEFITS EXTENDED BY PUBLIC LAW 134 SO LONG AS HE REMAINS IN OR RETURNS TO A POSITION IN WHICH SUCH BENEFITS WERE EXTENDED BY THAT STATUTE. OTHERWISE IN MR. GIFFORD'S AND SIMILAR CASES THE EMPLOYEES WOULD HAVE A DISTINCT ADVANTAGE OVER SUPERVISORY AND OTHER EMPLOYEES WHO NEVER HELD A POSITION GOVERNED BY THE 3, 5, AND 7 SCHEDULE.

SECTION 305 (A) OF PUBLIC LAW 68, 69 STAT. 121, READS, IN PERTINENT PART, AS FOLLOWS:

WHEN THE BASIC SALARY OF AN EMPLOYEE, * * * IS ESTABLISHED UNDER SECTION 304 OF THIS ACT, EACH LONGEVITY STEP-INCREASE WHICH SUCH EMPLOYEE HAS EARNED PRIOR TO THE EFFECTIVE DATE OF HIS SCHEDULE SHALL BECOME A PART OF HIS BASIC COMPENSATION AND SHALL CONSTITUTE A LONGEVITY STEP-INCREASE UNDER SECTION 404 OF THIS ACT.

WHEN MR. GIFFORD WAS CONVERTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 304, PUBLIC LAW 68, 69 STAT. 121, 39 U.S.C. 974, ON DECEMBER 3, 1955, FROM CLERK TO DISTRIBUTION CLERK, HE WAS GIVEN THE BENEFITS PRESCRIBED BY SECTIONS 404 (D) AND 305 (A), QUOTED ABOVE, BY BEING PLACED IN LONGEVITY GRADE B UNDER THE 3, 5, AND 7 SCHEDULE BECAUSE HE HAD FIVE YEARS OF SERVICE IN LONGEVITY GRADE A AT THE TIME AND WAS OCCUPYING A POSITION WHICH WAS, UNDER PUBLIC LAW 134, SUBJECT TO THE 3, 5, AND 7 SCHEDULE.

SECTION 404, PUBLIC LAW 68, 64 STAT. 123, 39 U.S.C. 984, ESTABLISHED FOR EACH EMPLOYEE LONGEVITY STEPS A, B, AND C. THAT SECTION PROVIDES THE 13, 18, AND 25 SCHEDULE FOR EACH EMPLOYEE ASSIGNED TO SUCH LONGEVITY STEPS AND CONTINUES THE FORMULA ESTABLISHED BY PUBLIC LAWS 428 AND 500, WHICH STATUTES BROUGHT SUPERVISORY POSITIONS UNDER THE 13, 18, AND 25 SCHEDULE, THE ONLY SCHEDULE EVER PRESCRIBED FOR SUCH POSITIONS. REPORT NO. 728, HOUSE OF REPRESENTATIVES, 84TH CONGRESS, ST SESSION, BEGINNING AT PAGE 31, CONTAINS THE FOLLOWING PERTINENT STATEMENTS:

SECTION 404 (A) ESTABLISHES 3 NEW LONGEVITY STEPS A, B, AND C TO REPLACE THE EXISTING 3 LONGEVITY GRADES A, B, AND C ESTABLISHED BY THE ACT OF MAY 3, 1950 ( PUBLIC LAW 500, 81ST CONG.).

SECTION 404 (B) PROVIDES THAT EACH EMPLOYEE SHALL BE ASSIGNED TO THE NEW LONGEVITY STEPS A, B, AND C AT THE BEGINNING OF THE PAY PERIOD FOLLOWING THE COMPLETION OF 13, 18, AND 25 YEARS OF SERVICE, RESPECTIVELY. THIS REQUIREMENT WITH RESPECT TO THE NUMBER OF YEARS OF CREDITABLE SERVICE REQUIRED FOR PROMOTION OR ASSIGNMENT TO SUCH LONGEVITY STEPS IS THE SAME AS THAT CONTAINED IN SUBSECTION (B) OF THE FIRST SECTION OF SUCH ACT OF MAY 3, 1950, * * * .

IN THE ABSENCE OF SPECIFIC STATUTORY LANGUAGE IN PUBLIC LAW 68 PROVIDING THAT AN EMPLOYEE WHO HOLDS A POSITION IN WHICH HE HAS BEEN PROGRESSING UNDER THE 3, 5, AND 7 SCHEDULE ESTABLISHED BY PUBLIC LAW 134, AND WHO IS PROMOTED OR TRANSFERRED TO A SUPERVISORY POSITION, RETAINS PROMOTION CREDITS UNDER SUCH SCHEDULE AND IN VIEW OF WHAT IS SAID IN THE LEGISLATIVE HISTORY ( REPORT NO. 728 QUOTED ABOVE), SHOWING A CONTINUATION OF THE 13, 18 AND 25 SCHEDULE, ESTABLISHED BY PUBLIC LAWS 428 AND 500, FOR SUPERVISORY POSITIONS, WE CONCLUDE THAT PUBLIC LAW 68 GRANTS OR AUTHORIZES NO NEW RIGHTS OR BENEFITS IN THIS REGARD AND BELIEVE THAT THE PRINCIPLES ESTABLISHED IN OUR DECISIONS 32 COMP. GEN. 354 AND 35 ID. 287, INTERPRETING THE PROVISIONS OF SECTION 2 OF THE ACT OF MAY 3, 1950, ARE FOR APPLICATION TO MR. GIFFORD'S CASE. WE, THEREFORE, CONCLUDE THAT NO BASIS EXISTS FOR PAYING MR. GIFFORD AT LONGEVITY GRADE B WHILE HE IS SERVING TEMPORARILY OR PERMANENTLY AS FOREMAN OF MAILS, PFS-7 OR 6 UNTIL HE SHALL HAVE COMPLETED 18 YEARS OF POSTAL SERVICE. THUS, WE CONCUR IN THE ADMINISTRATIVE VIEWS CONCERNING MR. GIFFORD'S CASE.

THE QUESTIONS ARE DISPOSED OF ACCORDINGLY.

WE ENCLOSE COPY OF OUR DECISION OF TODAY TO MR. GIFFORD CONCERNING HIS CLAIM FOR THE ADDITIONAL COMPENSATION.