B-41099, JUNE 5, 1944, 23 COMP. GEN. 920

B-41099, JUNE 5, 1944, 23 COMP. GEN. 920

COMPENSATION - SUBSTITUTE POSTAL EMPLOYEES - ACT OF MARCH 24, 1944 UNDER THE ACT OF MARCH 24, 1944, AUTHORIZING INCREASES IN THE COMPENSATION OF SUBSTITUTE POSTAL EMPLOYEES AFTER 2,448 HOURS OF SERVICE AS SUCH SUBSTITUTES, SERVICE IN ANY CLASS OF SUBSTITUTE POSITION TO WHICH THEY ARE AUTHORIZED TO BE, AND ARE, ASSIGNED UNDER THE DUAL SERVICE PROVISIONS OF 39 U.S.C. 136 MAY BE COMBINED FOR THE PURPOSE OF COMPUTING SUBSTITUTE SERVICE SO AS TO AUTHORIZE AN INCREASE IN COMPENSATION IN EACH CLASS OF SUBSTITUTE POSITION IN WHICH SERVICE IS RENDERED. 23 COMP. GEN. 766, OVERRULED IN PART. SINCE NO SUBSTITUTE POSTAL EMPLOYEES OF ANY CLASS ARE ASSIGNED TO DUTY AS SUBSTITUTE RAILWAY POSTAL CLERKS IN THE RAILWAY MAIL SERVICE UNDER THE DUAL SERVICE PROVISIONS OF 39 U.S.C. 136, OR OTHERWISE, WHERE A SUBSTITUTE POST OFFICE CLERK IS TRANSFERRED TO A POSITION AS SUBSTITUTE CLERK IN THE RAILWAY MAIL SERVICE (39 U.S.C. 611), THE PROVISIONS OF THE ACT OF MARCH 24, 1944, WITH RESPECT TO THE COUNTING OF PRIOR SUBSTITUTE SERVICE FOR COMPENSATION INCREASE PURPOSES DO NOT CONSTITUTE AUTHORITY TO CREDIT SERVICE IN THE FORMER POSITION FOR THE PURPOSE OF FIXING THE COMPENSATION RATE IN THE RAILWAY MAIL SERVICE. 23 COMP. GEN. 766, AMPLIFIED. THE PROVISION IN THE ACT OF MARCH 24, 1944, THAT, IN ADJUSTING THE INCREASES IN COMPENSATION AUTHORIZED THEREIN FOR SUBSTITUTE POSTAL EMPLOYEES AFTER 2,448 HOURS OF SERVICE, CREDIT SHALL BE GIVEN FOR "NOT EXCEEDING THREE YEARS OF PAST CONTINUOUS SERVICE," HAS THE EFFECT OF LIMITING SERVICE CREDIT TO PAST SUBSTITUTE SERVICE PERFORMED WITHIN THREE CALENDAR YEARS NOT ONLY PRIOR TO APRIL 1, 1944--- THE EFFECTIVE DATE OF THE STATUTE--- BUT, ALSO, PRIOR TO THE BEGINNING OF ANY OTHER SUBSEQUENT QUARTER WHEN ELIGIBILITY FOR AN INCREASE IS DETERMINED. 23 COMP. GEN. 766, AMPLIFIED. UNDER THE ACT OF MARCH 24, 1944, AUTHORIZING INCREASES IN THE COMPENSATION OF SUBSTITUTE POSTAL EMPLOYEES AFTER 2,448 HOURS OF SERVICE AS SUCH SUBSTITUTES, SERVICE RENDERED BY A SUBSTITUTE VILLAGE DELIVERY CARRIER MAY BE COUNTED IN FIXING HIS HOURLY RATE OF COMPENSATION AS A SUBSTITUTE CITY CARRIER UPON A CHANGE IN THE CLASS OF SERVICE FROM VILLAGE DELIVERY TO CITY DELIVERY SERVICE. FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE ACT OF MARCH 24, 1944, WITH RESPECT TO THE ESTABLISHMENT OF HOURLY RATES OF COMPENSATION FOR SUBSTITUTE POSTAL EMPLOYEES ON THE BASIS OF THE NUMBER OF HOURS' PRIOR SUBSTITUTE SERVICE SPECIAL DELIVERY SERVICES MAY BE CONSIDERED IN FIXING THE HOURLY RATE OF A SUBSTITUTE IN MORE THAN ONE POSITION. WHILE THE ACT OF MARCH 24, 1944, AUTHORIZES INCREASES IN THE COMPENSATION OF SUBSTITUTE POSTAL EMPLOYEES AFTER 2,448 HOURS OF SERVICE AS SUCH SUBSTITUTES, INCLUDING "SERVICE AS A SPECIAL-DELIVERY MESSENGER," IT APPEARS THAT SERVICE IN OTHER CAPACITIES AT A THIRD CLASS POST OFFICE IS NOT CREDITED IN COMPUTING COMPENSATION AT A FIRST OR SECOND CLASS POST OFFICE, AND, THEREFORE, SERVICE AS A SPECIAL DELIVERY MESSENGER AT A THIRD CLASS OFFICE MAY NOT BE INCLUDED IN THE TOTAL SERVICE TO BE CONSIDERED IN FIXING UNDER SAID ACT THE HOURLY RATE OF COMPENSATION OF A SUBSTITUTE EMPLOYEE AT A FIRST OR SECOND CLASS OFFICE. THE SALARY RATE OF A SUBSTITUTE POSTAL EMPLOYEE WHO WAS RELEGATED FROM A REGULAR TO A SUBSTITUTE POSITION PRIOR TO MARCH 24, 1944--- THE DATE OF ENACTMENT OF THE ACT ESTABLISHING HOURLY RATES OF COMPENSATION FOR SUBSTITUTE EMPLOYEES, AFTER 2,448 HOURS OF SUBSTITUTE SERVICE, BASED ON THE HOURLY EQUIVALENTS OF THE ANNUAL SALARIES OF REGULAR EMPLOYEES--- MAY BE FIXED ADMINISTRATIVELY AT A GRADE AND SALARY RATE NOT HIGHER THAN THE GRADE AND SALARY RATE OF THE REGULAR POSITION HELD IMMEDIATELY PRECEDING THE RELEGATION, IN ORDER TO INCREASE HIS PRESENT HOURLY RATE OF COMPENSATION. CONTRARY TO THE GENERAL RULE THAT LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH A DUTY STATUS, SUCH LEAVE MAY NOT BE INCLUDED IN DETERMINING THE TOTAL NUMBER OF HOURS'"ACTUAL AND SATISFACTORY SERVICE" REQUIRED OF A SUBSTITUTE POSTAL EMPLOYEE FOR AUTOMATIC PROMOTION PURPOSES UNDER THE ACT OF MARCH 24, 1944 (CF. 19 COMP. GEN. 177). 23 COMP. GEN. 766, OVERRULED IN PART.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 5, 1944:

I HAVE YOUR LETTER OF MAY 23, 1944, REQUESTING RECONSIDERATION OF THE DECISION OF APRIL 10, 1944, B-41099, 23 COMP. GEN. 766, PARTICULARLY WITH REFERENCE TO QUESTIONS NUMBERED 3, 5, 9, 11, AND 18, AND REQUESTING, ALSO, ANSWERS TO SIX ADDITIONAL QUESTION, INVOLVING THE APPLICATION OF THE ACT OF MARCH 24, 1944, 58 STAT. 121, PUBLIC LAW 266, ENTITLED," AN ACT TO GRANT INCREASES IN COMPENSATION TO SUBSTITUTE EMPLOYEES IN THE POSTAL SERVICE, AND FOR OTHER PURPOSES.'

IN YOUR LETTER YOU SET FORTH EXCERPTS FROM CORRESPONDENCE RECEIVED BY THE POST OFFICE DEPARTMENT PROTESTING THE ANSWERS TO CERTAIN QUESTIONS IN SAID DECISION OF APRIL 10, 1944, AND YOU STATE MORE IN DETAIL THE ADMINISTRATIVE PRACTICES AND PROBLEMS REGARDING THE INTERCHANGE OF SUBSTITUTE POSTAL EMPLOYEES IN DIFFERENT CLASSES OF SUBSTITUTE POSITIONS. ALSO, THERE HAVE BEEN FILED IN THIS OFFICE, UNDERSTOOD TO BE WITH YOUR CONSENT, BRIEFS PREPARED BY THE NATIONAL FEDERATION OF POST OFFICE CLERKS.

THE EXCERPTS SET FORTH IN YOUR LETTER AND THE BRIEFS OF THE UNION REPRESENTATIVE, AS WELL AS THE STATEMENTS IN YOUR PRESENT LETTER SHOW THAT THE PROTESTS ARE DIRECTED TO TWO GENERAL RULES APPLIED IN THE PRIOR DECISION, SAID RULES BEING, (1) THAT SUBSTITUTE SERVICE IN ONE CLASS OF SUBSTITUTE POSITION MAY NOT BE COUNTED IN COMPUTING LONGEVITY FOR THE PURPOSE OF AUTOMATIC INCREASES IN COMPENSATION IN ANOTHER CLASS OF SUBSTITUTE POSITION BUT THAT THE COUNTING OF SERVICE IN EACH CLASS OF SUBSTITUTE POSITION SHOULD BE KEPT SEPARATE AND DISTINCT FOR THE PURPOSE OF GRANTING AUTOMATIC INCREASES IN COMPENSATION IN EACH CLASS OF SUBSTITUTE POSITION, AND (2) THAT THE LAST PROVISO IN SECTION 1 OF THE ACT OF MARCH 24, 1944, HAS THE EFFECT OF LIMITING SERVICE CREDIT FOR PROMOTION PURPOSES TO PAST SUBSTITUTE SERVICE PERFORMED WITHIN THREE CALENDAR YEARS OR 36 MONTHS NOT ONLY PRIOR TO APRIL 1, 1944, THE EFFECTIVE DATE OF THE STATUTE, BUT ALSO, PRIOR TO THE BEGINNING OF ANY OTHER SUBSEQUENT QUARTER WHEN A SUBSTITUTE EMPLOYEE'S ELIGIBILITY FOR AUTOMATIC PROMOTION IS DETERMINED, WHICH RULE HAS BEEN REFERRED TO IN THE CORRESPONDENCE AS THE ESTABLISHMENT OF THREE YEAR CYCLES.

GENERAL RULE (1) ABOVE REFERRED TO IS REFLECTED IN QUESTIONS AND ANSWERS 11 AND 18 AS STATED IN THE PRIOR DECISION. QUESTION AND ANSWER 11 ARE AS FOLLOWS:

QUESTION 11.

"11. WHEN A SUBSTITUTE EMPLOYEE PERFORMS DUAL SERVICE IN TWO OR MORE POSITIONS IN WHICH THE HOURLY RATES OF PAY ARE DIFFERENT, SUCH AS A SUBSTITUTE GARAGEMAN-DRIVER IN THE MOTOR VEHICLE SERVICE (55 CENTS PER HOUR), WHO PERFORMS DUAL SERVICE UNDER SEVERAL SALARY RATES, SUCH AS A SUBSTITUTE GENERAL MECHANIC (70 CENTS PER HOUR) OR AS A SUBSTITUTE POST OFFICE CLERK (65 CENTS PER HOUR), WILL HIS GRADE AND HOURLY RATE IN EACH POSITION BE BASED ON THE TOTAL SERVICE RENDERED IN THAT POSITION, OR WILL THE NUMBER OF HOURS SERVICE RENDERED IN THE SEVERAL POSITIONS BE COMBINED AND FORM THE BASIS FOR THE GRADES AND SALARY RATES APPLICABLE TO THE SEVERAL POSITIONS?

IN LINE WITH THE ANSWERS TO QUESTION 10, IT IS BELIEVED THE PURPOSE AND INTENT OF SECTION 1 OF THE ACT OF MARCH 24, 1944, IS TO LIMIT "SERVICE AS SUCH SUBSTITUTE" TO SERVICE IN EACH SEPARATE AND DISTINCT CLASS OF SUBSTITUTE POSITIONS, AND THAT THERE IS NO AUTHORITY TO COMBINE SERVICE UNDER DIFFERENT CLASSES OF SUBSTITUTE POSITIONS HAVING DIFFERENT SALARY RATES AND RANGES AND DIFFERENT DUTIES FOR THE PURPOSE OF COUNTING 2,448 HOURS OF SUBSTITUTE SERVICE SO AS TO AUTHORIZE AN INCREASE IN COMPENSATION UNDER AN APPOINTMENT IN EACH CLASS OF SUBSTITUTE POSITION IN WHICH AN EMPLOYEE MAY BE ENGAGED. HENCE, IT IS REQUIRED THAT THE GRADE AND HOURLY RATE IN EACH POSITION BE BASED UPON THE TOTAL SERVICE RENDERED IN THAT POSITION. COMPARE THE FIRST PART OF SECTION 3 OF THE STATUTE.

THE ANSWER TO QUESTION 10 WHICH IS REFERRED TO IN THE ANSWER TO QUESTION 11, SUPRA, INVOLVED THE CASE OF A REGULAR POSTAL EMPLOYEE ASSIGNED DURING OFF-TIME TO SERVE IN ANOTHER CLASS OF SUBSTITUTE POSITION. IT IS UNDERSTOOD THE RULE STATED WITH REGARD TO THAT QUESTION HAS NOT BEEN QUESTIONED.

WITH REGARD TO THE PROBLEM PRESENTED IN QUESTION 11 YOU STATE:

THE STATUTES GOVERNING THE EMPLOYMENT OF SUBSTITUTES PROVIDE FOR INTERCHANGEABILITY BETWEEN SUBSTITUTE CLERKS AND SUBSTITUTE CITY CARRIERS. IT HAS BEEN CONSIDERED NECESSARY, FOR ADMINISTRATIVE REASONS, TO USE SUBSTITUTE CLERKS AND SUBSTITUTE CITY CARRIERS INTERCHANGEABLY FOR A NUMBER OF YEARS. THIS MAKES IT POSSIBLE TO UTILIZE FULLY THE EXPERIENCE AND ABILITY OF SUBSTITUTE EMPLOYEES, AND IT IS IN THE BEST INTEREST OF BOTH THE EMPLOYEES AND THIS DEPARTMENT TO CONTINUE THE PRACTICE. OTHER CLASSES OF SUBSTITUTE EMPLOYEES HAVE BEEN REQUIRED TO RENDER DUAL SERVICE SINCE THE BEGINNING OF THE WAR, AND THIS HAS BEEN A GREAT ADVANTAGE IN PERFORMING THE WORK REQUIRED TO MAINTAIN ADEQUATE POSTAL SERVICE. IT IS FREQUENTLY NECESSARY TO TRANSFER A SUBSTITUTE EMPLOYEE FROM ONE POSITION TO ANOTHER WHERE HIS SERVICES CAN BE USED TO BETTER ADVANTAGE.

IN DETERMINING WHEN A SUBSTITUTE EMPLOYEE HAS COMPLETED SIX MONTHS OF PROBATIONAL SERVICE, CREDIT IS ALLOWED FOR SERVICE RENDERED EITHER AS SUBSTITUTE CLERK, SUBSTITUTE CITY OR VILLAGE CARRIER, SUBSTITUTE MAIL HANDLER AND FOR SERVICE AS A SPECIAL DELIVERY MESSENGER. WHEN REQUIRED BY THE NEEDS OF THE SERVICE, A SUBSTITUTE CLERK MAY BE EMPLOYED AS A SUBSTITUTE CITY LETTER CARRIER AND A SUBSTITUTE CITY LETTER CARRIER MAY BE EMPLOYED AS A SUBSTITUTE CLERK WITHOUT PRIOR AUTHORITY FROM THE DEPARTMENT. THE SAME PROCEDURE IS FOLLOWED IN ASSIGNING SUBSTITUTE EMPLOYEES IN THE MOTOR VEHICLE SERVICE, AFTER THEY HAVE QUALIFIED TO PERFORM THE WORK OF THE VARIOUS CLASSES.

IT IS OBVIOUS THAT SUBSTITUTE EMPLOYEES HEREAFTER WILL BE RELUCTANT TO ACCEPT ASSIGNMENTS IN MORE THAN ONE SUBSTITUTE POSITION, AND TRANSFERS FOR ADMINISTRATIVE REASONS WILL WORK A HARDSHIP UPON EMPLOYEES WHO HAVE RENDERED CONSIDERABLE SERVICE IN A SUBSTITUTE POSITION OF ONE CLASS AND WHO ARE TRANSFERRED TO A SUBSTITUTE POSITION OF SOME OTHER CLASS.

WHILE THE WORDING OF THE STATUTE AS SHOWN IN ANSWERING QUESTION 11 IN THE PRIOR DECISION LENDS MUCH SUPPORT TO THE ANSWER THERE GIVEN, PARTICULARLY IN THE CASES PRESENTED WHERE THE SALARY RATES FOR THE DIFFERENT CLASSES OF SUBSTITUTE POSITIONS VARY, NEVERTHELESS, IN VIEW OF THE PURPOSE OF THE EXISTING LAW (39 U.S.C. 136, 45 STAT. 1441) AUTHORIZING POSTMASTERS AND ACTING POSTMASTERS TO ASSIGN SUBSTITUTE EMPLOYEES IN MORE THAN ONE CAPACITY WITHOUT THE FORMALITY OF TRANSFER OR REAPPOINTMENT, AND AS IT REASONABLY MAY BE PRESUMED THAT THE CONGRESS, IN ENACTING THE LAW HERE INVOLVED (ACT OF MARCH 24, 1944), LEGISLATED WITH REFERENCE TO THE THEN EXISTING EMPLOYMENT CONDITIONS OF SUBSTITUTES, AS SET FORTH IN DETAIL IN YOUR PRESENT LETTER, THERE NOW APPEARS A SUBSTANTIAL BASIS FOR THE VIEW THAT THE ANSWER TO QUESTION 11, IN THE DECISION OF APRIL 10, 1944, SHOULD BE CHANGED SO AS TO HOLD THAT SUBSTITUTE SERVICE IN ANY CLASS OF SUBSTITUTE POSITION IN THE POSTAL SERVICE TO WHICH THEY ARE AUTHORIZED TO BE, AND ARE, ASSIGNED PURSUANT TO 39 U.S.C. 136, MAY BE INCLUDED IN DETERMINING ELIGIBILITY UNDER AUTHORITY OF SECTION 1 OF THE ACT OF MARCH 24, 1944, FOR THE PURPOSE OF INCREASING COMPENSATION IN ANY CLASS OF SUBSTITUTE POSITION IN WHICH THE SUBSTITUTE EMPLOYEES MAY SERVE. THE DECISION IS HEREBY MODIFIED ACCORDINGLY.

QUESTION AND ANSWER 18, IN THE DECISION OF APRIL 10, 1944, ARE AS FOLLOWS:

QUESTION 18

"18. MAY A SUBSTITUTE POST OFFICE CLERK WHO HAS TRANSFERRED TO A POSITION AS SUBSTITUTE CLERK IN THE RAILWAY MAIL SERVICE AT A HIGHER HOURLY RATE OF COMPENSATION BE GIVEN CREDIT FOR THE NUMBER OF HOURS SERVICE RENDERED AS A SUBSTITUTE POST OFFICE CLERK FOR THE PURPOSE OF FIXING HIS RATE OF COMPENSATION AS A SUBSTITUTE CLERK IN THE RAILWAY MAIL SERVICE?

THIS QUESTION IS ANSWERED IN THE NEGATIVE. SEE ANSWERS TO QUESTIONS 10, 11, AND 15.

WHILE, IN ANSWERING THAT QUESTION, THERE APPLIED GENERAL RULE (1) ABOVE REFERRED TO, WHICH NOW IS CHANGED IN THE REVISION ABOVE MADE OF THE ANSWER TO QUESTION 11 IN THE FORMER DECISION, IT DOES NOT FOLLOW THAT QUESTION 18 IS FOR ANSWERING IN THE AFFIRMATIVE. NO ADDITIONAL INFORMATION REGARDING SUBSTITUTE RAILWAY POSTAL CLERKS HAS BEEN PRESENTED. YOU DO NOT STATE THAT SUBSTITUTE POSTAL EMPLOYEES OF ANY OTHER CLASS, INCLUDING SUBSTITUTE POST OFFICE CLERKS, EVER ARE ASSIGNED TO DUTY AS SUBSTITUTE RAILWAY POSTAL CLERKS IN THE RAILWAY MAIL SERVICE, OR VICE VERSA, UNDER THE PROVISIONS OF 39 U.S.C. 136, OR OTHERWISE; AND YOU DO NOT CONTEND THAT SAID STATUTE CONSTITUTES AUTHORITY FOR SUCH ASSIGNMENTS. IT IS UNDERSTOOD FROM INFORMATION OBTAINED INFORMALLY FROM YOUR DEPARTMENT, THAT SUCH ASSIGNMENTS ARE NOT MADE BUT THAT A SUBSTITUTE POSTAL EMPLOYEE OF ANY OTHER CLASS PERFORMS THE DUTIES OF A SUBSTITUTE CLERK IN THE RAILWAY MAIL SERVICE ONLY WHEN ACTUALLY TRANSFERRED TO OR APPOINTED IN THAT POSITION. AS 39 U.S.C. 136, AUTHORIZES POSTMASTERS AND ACTING POSTMASTERS TO MAKE ASSIGNMENTS OF POSTAL EMPLOYEES IN DIFFERENT CAPACITIES AS THE NEEDS OF THE SERVICE MAY REQUIRE AND AS THE RAILWAY MAIL SERVICE IS UNDERSTOOD NOT TO BE UNDER THE JURISDICTION AND AUTHORITY OF A POSTMASTER OR ACTING POSTMASTER, IT DOES NOT APPEAR THAT SAID STATUTE WOULD CONSTITUTE AUTHORITY FOR ASSIGNMENT OF ANY OTHER CLASS OF POSTAL EMPLOYEES TO SERVE AS SUBSTITUTES IN THE RAILWAY MAIL SERVICE. THE INITIAL SALARY RATE OF SUBSTITUTE RAILWAY POSTAL CLERKS IS $1,850 PER ANNUM (39 U.S.C. 614) AND THE SALARY RATES OF REGULAR RAILWAY POSTAL CLERKS BEGIN AT $1,900 PER ANNUM (39 U.S.C. 610, 43 STAT. 1061), WHEREAS THE INITIAL SALARY RATE OF SUBSTITUTE POST OFFICE CLERKS IS $0.65 PER HOUR (39 U.S.C. 113) AND THE SALARY RATES OF REGULAR POST OFFICE CLERKS BEGIN AT $1,700 PER ANNUM (39 U.S.C. 103). SECTION 611, TITLE 39, U.S. CODE, PROVIDES THAT "ALL ORIGINAL APPOINTMENTS SHALL BE MADE TO THE RANK OF SUBSTITUTE RAILWAY POSTAL CLERK.' IN VIEW OF THAT PROVISION NO CREDIT FOR ANY OTHER CLASS OF POSTAL SERVICE IN REGULAR POSITIONS HAS BEEN GRANTED IN DETERMINING ELIGIBILITY FOR AUTOMATIC PROMOTION IN THE RAILWAY MAIL SERVICE. 4 COMP. GEN. 992, 994. SINCE CREDIT IS NOT ALLOWABLE TO AN EMPLOYEE FOR SERVICE IN REGULAR POSITIONS OF POST OFFICE CLERKS WHEN TRANSFERRED TO OR APPOINTED IN THE POSITION OF SUBSTITUTE RAILWAY POSTAL CLERK, IT WOULD BE INEQUITABLE AND UNREASONABLE TO ALLOW CREDIT OF SUBSTITUTE SERVICE AS POST OFFICE CLERK WHEN TRANSFERRED TO OR APPOINTED AS A SUBSTITUTE IN THE RAILWAY MAIL SERVICE. IT IS NOT BELIEVED THAT THE CONGRESS COULD HAVE INTENDED THAT THE PROVISIONS OF SECTION 1 OF THE ACT OF MARCH 24, 1944, SHOULD BE APPLIED IN SUCH A MANNER. IN VIEW OF THE ABOVE CONSIDERATIONS THE NEGATIVE ANSWER TO QUESTION 18 STATED IN THE PRIOR DECISION OF APRIL 10, 1944, IS AFFIRMED.

GENERAL RULE (2), ABOVE REFERRED TO, WAS APPLIED IN THE DECISION OF APRIL 10, 1944, IN ANSWERING QUESTION 3, 5, AND 9 AND TO SOME EXTENT, IN ANSWERING OTHER QUESTIONS PRESENTED IN YOUR FORMER SUBMISSION OF MARCH 30, 1944. QUESTION AND ANSWER 3, WHICH WILL SERVE FOR THE PURPOSE OF RECONSIDERING THAT GENERAL RULE, ARE AS FOLLOWS:

QUESTION 3.

"3. FOR THE PURPOSE OF DETERMINING WHEN THREE YEARS OF PAST CONTINUOUS SERVICE HAVE BEEN RENDERED, WILL THREE YEARS SERVICE CONSTITUTE THREE TIMES 2,448 HOURS, OR THE TOTAL NUMBER OF HOURS SERVICE RENDERED DURING THE 36 MONTHS IMMEDIATELY PRECEDING EACH ADJUSTMENT IN THE HOURLY RATE OF PAY?

THERE IS NOTHING IN THE LAST PROVISO OF SECTION 1 OF THE STATUTE TO JUSTIFY INTERPRETING THE WORDS "THREE YEARS OF PAST CONTINUOUS SERVICE" OTHER THAN IN ACCORDANCE WITH THE USUAL MEANING OF THE WORD; THAT IS, THREE CALENDAR YEARS OR 36 CALENDAR MONTHS IMMEDIATELY PRECEDING THE FIRST ADJUSTMENT IN THE COMPENSATION OF SUBSTITUTE EMPLOYEES UNDER THE STATUTE REGARDLESS OF THE NUMBER OF HOURS OF SERVICE PERFORMED THEREIN. THE TERMS OF THE FIRST PROVISO OF SECTION 1 OF THE STATUTE LIMITING THE INCREASES TO ONE EACH 12 MONTHS TEND TO SUPPORT THAT CONCLUSION. FOR INSTANCE, IF DURING THE PERIOD APRIL 1, 1941, TO MARCH 31, 1944, A SUBSTITUTE EMPLOYEE SERVED LESS THAN 2,448 HOURS OF CREDITABLE SERVICE, NO ADJUSTMENT IN COMPENSATION EFFECTIVE AS OF APRIL 1, 1944, WOULD BE AUTHORIZED, BUT THE ADJUSTMENT TO THE HOURLY EQUIVALENT TO THE FIRST SALARY GRADE OF REGULAR POSTAL EMPLOYEES WOULD BE EFFECTIVE AT THE BEGINNING OF THE FIRST QUARTER AFTER APRIL 1, 1944, THAT THE EMPLOYEE HAD COMPLETED 2,448 HOURS OF CREDITABLE SERVICE DURING THE THREE YEARS OR 36 MONTHS IMMEDIATELY PRECEDING THE FIRST OF A QUARTER. HOWEVER, IF DURING THAT SAME PERIOD A SUBSTITUTE EMPLOYEE SERVED 2,448 HOURS OR MORE OF CREDITABLE SERVICE, BUT LESS THAN 4,896 HOURS, THE EMPLOYEE WOULD BE ENTITLED EFFECTIVE APRIL 1, 1944, TO COMPENSATION REPRESENTING THE PER HOUR EQUIVALENT OF THE ANNUAL SALARY RATE RECEIVED BY REGULAR EMPLOYEES OF THE FIRST GRADE COMPUTED AS PROVIDED BY SECTION 1 OF THE STATUTE, ETC. QUESTION 3 IS ANSWERED ACCORDINGLY. THE LAST PROVISO IN SECTION 1 OF THE ACT OF MARCH 24, 1944, READS:

* * * PROVIDED FURTHER, THAT IN THE ADJUSTMENT OF THE INCREASES IN THE RATES OF PAY PROVIDED HEREIN CREDIT SHALL BE GIVEN FOR NOT EXCEEDING THREE YEARS OF PAST CONTINUOUS SERVICE AND THE HOURLY RATE OF COMPENSATION ADJUSTED ACCORDINGLY.

I AM UNABLE TO AGREE WITH THE CONTENTION ADVANCED IN (1) THE EXCERPTS QUOTED IN YOUR LETTER FROM CORRESPONDENCE RECEIVED IN THE POST OFFICE DEPARTMENT, AND (2) IN THE BRIEF OF THE UNION REPRESENTATIVE, TO THE EFFECT THAT THE ABOVE-QUOTED PROVISO WAS INTENDED TO APPLY ONLY TO THE THREE YEARS IMMEDIATELY PRECEDING THE DATE OF THE ENACTMENT OF THE ACT AND TO LIMIT ONLY THE EXTENT OF THE FIRST PROMOTION UNDER THE ACT. THE "THREE YEARS OF PAST CONTINUOUS SERVICE" RELATES TO THE PRECEDING WORDS IN THE PROVISO "IN THE ADJUSTMENT OF THE INCREASES IN THE RATES OF PAY PROVIDED HEREIN.' SUCH ADJUSTMENTS ARE AUTHORIZED TO BE MADE NOT ONLY ON APRIL 1, 1944, WHEN THE ACT WENT INTO EFFECT BUT, ALSO, AT THE BEGINNING OF ANY QUARTER THEREAFTER. AN ATTEMPT HAS BEEN MADE IN THE REFERRED-TO EXCERPTS AND BRIEFS TO SHOW BY REFERENCE TO THE LEGISLATIVE HISTORY OF THE ENACTMENT--- PARTICULARLY THE ACTION OF THE SENATE COMMITTEE IN MODIFYING THE TERMS OF THE LAST PROVISO TO SECTION 1 AND THE TERMS OF SECTION 3 OF THE BILL AS IT PASSED THE HOUSE OF REPRESENTATIVES AND THE ACTION OF THE CONFERENCE COMMITTEE IN ADOPTING THE SENATE VERSION OF THE LAST PROVISO IN SECTION 1 AND THE HOUSE VERSION OF SECTION 3 OF THE STATUTE--- AN INTENTION TO ALLOW CREDIT FOR ALL PAST SUBSTITUTE SERVICE WITHOUT REFERENCE TO THE THREE YEAR PERIOD STATED IN THE PROVISO TO SECTION 1, BUT I AM UNABLE TO CONCLUDE ON THE BASIS OF SUCH ACTIONS THAT SUCH WAS THE INTENTION. IF THAT WERE SO, THAT INTENTION HAS NOT BEEN MADE CLEAR IN THE STATUTE AS FINALLY ENACTED. THE LAST PROVISO IN SECTION 1 OF THE STATUTE IS A DEFINITE LIMITATION UPON THE FORMULA PRESCRIBED IN THE FIRST PART OF SECTION 1 INCREASING THE COMPENSATION OF SUBSTITUTE POSTAL EMPLOYEES. WOULD APPEAR THAT IF THE CONGRESS HAD INTENDED SUCH A RESTRICTIVE APPLICATION OF THE PROVISO AS HAS BEEN SUGGESTED, IT EASILY COULD, AND PRESUMABLY WOULD, HAVE SO PROVIDED IN EXPRESS TERMS IN THE STATUTE. YOU ARE ADVISED, THEREFORE, THAT NOTHING HAS BEEN PRESENTED, OR OTHERWISE HAS COME TO ATTENTION, REQUIRING OR WARRANTING ANY MODIFICATION OF THE ANSWERS TO QUESTIONS 3, 5, AND 9, OR IN THE ANSWERS TO ANY OF THE OTHER QUESTIONS PREVIOUSLY PRESENTED BY YOU INVOLVING APPLICATION OF THE LAST PROVISO IN SECTION 1 OF THE STATUTE.

THE SIX ADDITIONAL QUESTIONS PRESENTED IN YOUR LETTER ARE STATED AND ANSWERED AS FOLLOWS:

QUESTION 1.

1. MAY THE SERVICE RENDERED BY A SUBSTITUTE VILLAGE DELIVERY CARRIER BE CONSIDERED IN FIXING HIS HOURLY RATE OF COMPENSATION AS A SUBSTITUTE CITY CARRIER UPON A CHANGE IN THE CLASS OF SERVICE FROM VILLAGE DELIVERY TO CITY DELIVERY SERVICE?

IN VIEW OF THE ABOVE-QUOTED STATEMENTS MADE IN YOUR PRESENT LETTER, AND IN LINE WITH THE REVISED ANSWER HEREINBEFORE MADE TO QUESTION 11 IN THE PRIOR DECISION OF APRIL 10, 1944, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE 39 U.S.C. 106, 43 STAT. 1064.

QUESTION 2.

2. MAY SPECIAL DELIVERY SERVICE BE CONSIDERED IN FIXING THE HOURLY RATE OF COMPENSATION OF A SUBSTITUTE EMPLOYEE IN MORE THAN ONE POSITION, OR IN ANY OTHER THAN HIS "REGULAR ROSTER DESIGNATION" POSITION?

IN VIEW OF THE HEREINBEFORE-STATED REVISED ANSWER TO QUESTION 11 IN THE PRIOR DECISION, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3.

3. MAY SPECIAL DELIVERY SERVICE RENDERED AT A THIRD CLASS OFFICE BE CONSIDERED "SERVICE AS A SPECIAL DELIVERY MESSENGER" AND INCLUDED IN THE TOTAL SERVICE CONSIDERED IN FIXING THE HOURLY RATE OF COMPENSATION OF A SUBSTITUTE EMPLOYEE AT A FIRST OR SECOND CLASS OFFICE.

YOU DO NOT SET FORTH THE DOUBT REGARDING THIS QUESTION, BUT IT IS ASSUMED THE DOUBT ARISES FROM THE FACT THAT THE LAWS AUTHORIZING AUTOMATIC PROMOTION OF REGULAR POSTAL EMPLOYEES HAVE NO APPLICATION TO POSTAL EMPLOYEES AT THIRD CLASS POST OFFICES. IF, AS IS UNDERSTOOD, NO CREDIT MAY BE GIVEN FOR SERVICE IN ANY OTHER CAPACITY AT A THIRD CLASS POST OFFICE TOWARD CREDITING COMPENSATION AS A REGULAR OR SUBSTITUTE POSTAL EMPLOYEE AT A FIRST OR SECOND CLASS POST OFFICE, IT IS EXTREMELY DOUBTFUL THAT THE CONGRESS COULD HAVE INTENDED TO SINGLE OUT SERVICE AS A SPECIAL DELIVERY MESSENGER AT A THIRD CLASS POST OFFICE FOR COUNTING IN COMPUTING LONGEVITY OF SUBSTITUTE EMPLOYEES AT FIRST AND SECOND CLASS POST OFFICES. ACCORDINGLY, ON THE PRESENT RECORD THIS QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 4.

4. IN THE EVENT YOUR ANSWER TO QUESTION 11 (IN YOUR LETTER OF APRIL 10, 1944) IS NOT MODIFIED, DOES THE WORDING "IT IS REQUIRED THAT THE GRADE AND HOURLY RATE IN EACH POSITION BE BASED UPON THE TOTAL SERVICE RENDERED IN THAT POSITION" APPLY TO SUBSTITUTE CLERKS AND SUBSTITUTE CITY CARRIERS WHO ALSO RENDER SERVICE AS SUBSTITUTE CITY CARRIERS AND SUBSTITUTE CLERKS, RESPECTIVELY?

IN VIEW OF THE REVISED ANSWER TO QUESTION 11, SUPRA, NO ANSWER TO THIS QUESTION 4 IS REQUIRED.

QUESTION 5.

5. IN ANSWER TO QUESTION 14 IN YOUR LETTER OF APRIL 10, 1944 YOU STATED THAT THERE DOES NOT APPEAR TO BE ANY LEGAL REASON WHY THE SALARY RATE OF A SUBSTITUTE EMPLOYEE WHO PROPERLY HAS BEEN REDUCED FROM A REGULAR POSITION MAY NOT BE FIXED ADMINISTRATIVELY AT A GRADE AND SALARY RATE NOT HIGHER THAN THE GRADE AND SALARY RATE OF THE REGULAR POSITION HELD IMMEDIATELY PRECEDING THE RELEGATION. MAY THIS RULING BE APPLIED TO A SUBSTITUTE EMPLOYEE WHO WAS RELEGATED FROM A REGULAR TO A SUBSTITUTE POSITION PRIOR TO MARCH 24, 1944 IN ORDER TO INCREASE HIS PRESENT HOURLY RATE OF COMPENSATION?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE FOR THE SAME REASON THAT WAS STATED IN ANSWERING QUESTION 14 IN THE DECISION OF APRIL 10, 1944.

QUESTION 6.

6. QUESTION NO. 17 IN MY LETTER OF MARCH 30, 1944 READING " WILL EACH DAY'S ABSENCE ON LEAVE WITH PAY BE CONSIDERED THE SAME AS EIGHT HOURS' SERVICE? " WAS ANSWERED IN THE AFFIRMATIVE. FOLLOWING YOUR ANSWER, CITATION WAS MADE TO A NUMBER OF DECISIONS RENDERED PREVIOUSLY, INCLUDING A DECISION RENDERED BY YOUR OFFICE ON AUGUST 9, 1939, 19 COMP. GEN. 177. THE DECISIONS RENDERED BY YOUR OFFICE ON NUMEROUS OCCASIONS, INCLUDING THOSE OUTLINED IN 13 COMP. GEN. 295 AND 370; 16 COMP. GEN. 757; 18 COMP. GEN. 575; AND 20 COMP. GEN. 555, INDICATE THAT ABSENCE ON ANNUAL OR SICK LEAVE IS SYNONYMOUS WITH ACTUAL SERVICE WHEREAS IN THE DECISION OF AUGUST 9, 1939 A NEGATIVE ANSWER WAS GIVEN TO THE QUESTION," WILL TIME GRANTED AND COMPENSATED FOR AS ANNUAL AND SICK LEAVE BE CREDITED TO SUBSTITUTES AS "ACTUAL TIME SERVED AS A SUBSTITUTE" IN DETERMINING THE GRADE TO WHICH REGULAR APPOINTMENT IS TO BE MADE.' DOES THE DECISION IN YOUR LETTER OF APRIL 10,1944 WITH RESPECT TO QUESTION 17, RENDER INOPERATIVE YOUR DECISION OF AUGUST 9, 1939 (19 COMP. GEN. 177) IN ANSWER TO QUESTION 7A?

WHEN CONSIDERING QUESTION 17 IN THE PRIOR DECISION OF APRIL 10, 1944, THERE WAS OVERLOOKED THE RULE STATED IN QUESTION AND ANSWER 7A, IN THE DECISION OF AUGUST 9, 1939, 19 COMP. GEN. 177, 181, AS FOLLOWS:

"7A. UNDER THE PROVISIONS OF SECTION 104, OF TITLE 39, UNITED STATES CODE, SUBSTITUTES APPOINTED AS REGULARS RECEIVE CREDIT FOR ACTUAL TIME SERVED IN DETERMINING THE GRADE TO WHICH REGULAR APPOINTMENT IS MADE. WILL TIME GRANTED AND COMPENSATED FOR AS ANNUAL AND SICK LEAVE BE CREDITED TO SUBSTITUTES AS "ACTUAL TIME SERVED AS A SUBSTITUTE" IN DETERMINING THE GRADE TO WHICH REGULAR APPOINTMENT IS TO BE MADE?

THE FIRST PARAGRAPH OF SECTION 104, TITLE 39, U.S. CODE, PROVIDES AS FOLLOWS:

" SUBSTITUTE CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND SUBSTITUTE LETTER CARRIERS IN THE CITY DELIVERY SERVICE WHEN APPOINTED REGULAR CLERKS OR CARRIERS SHALL HAVE CREDIT FOR ACTUAL TIME SERVED, INCLUDING TIME SERVED AS SPECIAL-DELIVERY MESSENGERS, ON A BASIS OF ONE YEAR FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS SERVED AS SUBSTITUTE OR MESSENGER, AND SHALL BE APPOINTED TO THE GRADE TO WHICH SUCH CLERK OR CARRIER WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS SUBSTITUTE BEEN TO GRADE 1. ANY FRACTIONAL PART OF A YEAR'S SUBSTITUTE SERVICE WILL BE INCLUDED WITH HIS SERVICE AS A REGULAR CLERK OR CARRIER IN THE CITY DELIVERY SERVICE IN DETERMINING ELIGIBILITY FOR PROMOTION TO THE NEXT HIGHER GRADE FOLLOWING APPOINTMENT TO A REGULAR POSITION.'

THERE IS NOTHING IN THE ACT OF JULY 18, 1939, WHICH COULD BE CONSTRUED AS MODIFYING THE ABOVE QUOTED PROVISION FOR CREDITING ONLY "ACTUAL TIME SERVED.' THE FACT THAT THE ACT OF JULY 18, 1939, GRANTS LEAVE ON THE BASIS OF TIME ACTUALLY EMPLOYED--- OR IN OTHER WORDS GRANTS PAY FOR A CERTAIN NUMBER OF DAYS IN ADDITION TO THE DAYS ON WHICH ACTUALLY EMPLOYED- -- DOES NOT AUTHORIZE CONSTRUING THE PHRASE "ACTUAL TIME SERVED," AS USED IN THE ABOVE QUOTED PROVISION, AS "ACTUAL TIME PAID R.' QUESTION 7A IS ANSWERED IN THE NEGATIVE.

THE EFFECT OF THAT RULE WAS TO CREATE OR RECOGNIZE AN EXCEPTION TO THE GENERAL RULE APPLICABLE TO OTHER CLASSES OF FEDERAL EMPLOYEES THAT LEAVE OF ABSENCE WITH PAY IS REGARDED AS SYNONYMOUS WITH A PAY OR DUTY STATUS FOR PURPOSES OF COMPUTING LONGEVITY. THE EXCEPTION WAS REQUIRED BY REASON OF THE EXPRESS TERMS OF 39 U.S.C. 104, ABOVE QUOTED, WHICH LIMIT THE COUNTING OR SUBSTITUTE SERVICE AS A POSTAL EMPLOYEE AFTER APPOINTMENT AS A REGULAR EMPLOYEE TO "ACTUAL TIME SERVED," WHICH, OF COURSE, WOULD BE EXCLUSIVE OF LEAVE OF ABSENCE WITH OR WITHOUT PAY. THE SAME RULE MUST BE APPLIED IN COMPUTING LONGEVITY FOR THE PURPOSE OF AUTOMATIC PROMOTIONS OF SUBSTITUTE EMPLOYES WHILE THEY REMAIN AS SUBSTITUTES FOR THE REASON THAT SECTION 1 OF THE ACT OF MARCH 24, 1944, LIMITS THE SERVICE THAT MAY BE COUNTED TO "ACTUAL AND SATISFACTORY SERVICE.' ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE. IN OTHER WORDS, THE RULE STATED IN 19 COMP. GEN. 177, IS CORRECT AND IS FOR FOLLOWING IN THE APPLICATION OF THE PROVISIONS OF THE ACT OF MARCH 24, 1944. IT FOLLOWS, THEREFORE, THAT THE ANSWER TO QUESTION 17 IN THE DECISION OF APRIL 10, 1944, SHOULD HAVE BEEN AND NOW IS IN THE NEGATIVE AND NOT IN THE AFFIRMATIVE, AS THERE STATED.