B-5235, MARCH 31, 1944, 23 COMP. GEN. 739

B-5235, MARCH 31, 1944, 23 COMP. GEN. 739

LEAVES OF ABSENCE - SUBSTITUTE POSTAL EMPLOYEES - BASIS OF ACCRUAL WHILE ANNUAL AND SICK LEAVE MAY BE CHARGED TO POSTAL EMPLOYEES ONLY ON DAYS WITHIN THEIR REGULAR TOUR OF DUTY, EXCLUSIVE OF SATURDAYS, SUNDAYS AND HOLIDAYS, UNDER 39 U.S.C. 823, SUCH LEAVE ACCRUES ONLY UPON THE BASIS OF THE FISCAL YEAR, INCLUDING EACH CALENDAR DAY THEREOF. IN VIEW OF THE PROVISIONS OF 39 U.S.C. 104 FIXING 2,448 HOURS OF SERVICE BY SUBSTITUTE POSTAL EMPLOYEES AS THE EQUIVALENT OF ONE YEAR'S SERVICE OF A REGULAR EMPLOYEE (306 DAYS OF 8 HOURS EACH), A YEAR'S ANNUAL AND SICK LEAVE MAY NOT BE CREDITED TO SUBSTITUTE POSTAL EMPLOYEES FOR EACH 2,024 HOURS OF SUBSTITUTE SERVICE (365 8 HOUR DAYS LESS 8 HOURS FOR EACH SATURDAY, SUNDAY AND HOLIDAY OF THE YEAR, WHICH IS THE ACTUAL SERVICE REQUIRED PER YEAR OF REGULAR EMPLOYEES). 19 COMP. GEN. 177, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MARCH 31, 1944:

I HAVE YOUR LETTER OF MARCH 15, 1944, AS FOLLOWS:

IN YOUR LETTER DATED AUGUST 9, 1939 (B-5235) YOU STATE IN ANSWER TO QUESTION TWO THAT," IT IS UNDERSTOOD THAT 2,448 HOURS OF SUBSTITUTE SERVICE IS EQUIVALENT TO ONE YEAR'S SERVICE OF REGULAR EMPLOYEES (306 DAYS OF 8 HOURS EACH, SEC. 104, TITLE 39, U.S. CODE) AND THAT ONE TWELFTH OR 204 HOURS OF SUBSTITUTE SERVICE IS EQUIVALENT TO ONE MONTH'S SERVICE OF REGULAR EMPLOYEES. SECTION 1 OF THE ACT PROVIDES THAT SUBSTITUTES "SHALL BE GRANTED THE SAME RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUES TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME ACTUALLY EMPLOYED.' ACCORDINGLY, IF REGULAR POSTAL EMPLOYEES ARE CREDITED WITH ANNUAL LEAVE AT THE RATE OF 1 1/4 DAYS AND SICK LEAVE AT THE RATE OF TEN- TWELFTHS OF A DAY FOR EACH MONTH OF SERVICE, ANNUAL LEAVE MAY BE CREDITED TO SUBSTITUTE POSTAL EMPLOYEES AT THE RATE OF 1 1/4 DAYS AND SICK LEAVE AT THE RATE OF TEN TWELFTHS OF A DAY FOR EACH 204 HOURS OF SUBSTITUTE SERVICE ACTUALLY RENDERED AFTER JULY 18, 1939, OR AFTER THE COMPLETION OF 2,448 HOURS OF ACTUAL SERVICE WHICHEVER IS THE LATER. HENCE, THE FIRST ALTERNATIVE IN QUESTION TWO IS ANSWERED IN THE AFFIRMATIVE, SUBJECT TO THE RULES STATED IN ANSWER TO QUESTION ONE.'

SECTION 104, TITLE 39, U.S.C. PROVIDES THAT, FOR THE PURPOSE OF FIXING THE RATE OF PAY UPON BEING APPOINTED REGULAR, SUBSTITUTE POST OFFICE CLERKS AND CARRIERS SHALL BE GIVEN CREDIT FOR ONE YEAR OF SERVICE FOR EVERY 2,448 HOURS OF SUBSTITUTE SERVICE PERFORMED. WITH RESPECT TO THE GRANTING OF SICK AND ANNUAL LEAVE, PUBLIC LAW, NO. 492, APPROVED APRIL 30, 1940, STATES THAT SUBSTITUTES SHALL BE GRANTED THE SAME RIGHTS AND BENEFITS THAT ACCRUE TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME ACTUALLY EMPLOYED, SUCH LEAVE TO BE AVAILABLE AFTER SERVING 2,448 HOURS OF SUBSTITUTE TIME (39 U.S.C. 824D).

REGULAR CLERKS AND CARRIERS ARE ACTUALLY EMPLOYED 2,024 HOURS PER ANNUM, COMPUTED AS FOLLOWS:

CHART

TOTAL HOURS IN YEAR (365 X 8/---------------------------------2,920

LESS: SUNDAYS (52 X 8 HOURS/-----------------------416

SATURDAYS (52 X 8 HOURS/---------------------416

HOLIDAYS (8 X 8 HOURS/----------------------- 64 896

NET HOURS ACTUALLY EMPLOYED---------------------------2,024

IN VIEW OF THE PROVISION THAT SUBSTITUTES SHALL BE GRANTED THE RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUE TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME ACTUALLY EMPLOYED AND, AS SET OUT BY THE ABOVE TABULATION, REGULAR EMPLOYEES ARE EMPLOYED ONLY 168.66 HOURS PER MONTH OR 2,024 HOURS PER ANNUM, A CLARIFICATION OF YOUR RULING IS REQUESTED WITH RESPECT TO THE FOLLOWING QUESTIONS:

(1) WILL ANNUAL LEAVE ACCRUE TO EACH SUBSTITUTE CLERK AND CARRIER AT THE RATE OF 1.25 DAYS FOR EACH 168.66 HOURS WORKED WHICH IS THE NUMBER OF HOURS A REGULAR CLERK OR CARRIER IS EMPLOYED EACH MONTH?

(2) IN A SIMILAR MANNER WILL SICK LEAVE ACCRUE TO SUBSTITUTE CLERKS AND CARRIERS AT THE RATE OF 6.66 HOURS FOR EACH 168.66 HOURS EMPLOYED?

(3) MAY A SUBSTITUTE CLERK OR CARRIER EARN ANNUAL LEAVE IN EXCESS OF 1.25 DAYS PER MONTH PROVIDING HE IS NOT CREDITED WITH AN AMOUNT EXCEEDING 15 DAYS PER YEAR?

(4) SIMILARLY, MAY A SUBSTITUTE CLERK OR CARRIER EARN SICK LEAVE IN EXCESS OF 6.66 HOURS PER MONTH PROVIDING HE IS NOT CREDITED WITH AN AMOUNT EXCEEDING 19 DAYS PER YEAR?

IN THE DECISION OF AUGUST 9, 1939, 19 COMP. GEN. 177, THE FIRST ALTERNATIVE OF QUESTION NO. 2 WAS STATED AS FOLLOWS:

2. IF YOUR DECISION BE THAT CREDIT IS PERMISSIBLE ONLY FOR SERVICE PERFORMED SUBSEQUENT TO JULY 18, 1939, MAY CREDIT BE CURRENTLY ALLOWED AT THE RATE OF 1 1/4 DAYS ANNUAL LEAVE FOR EACH 204 HOURS OF EMPLOYMENT AND 10/12 OF A DAY SICK LEAVE BE ALLOWED FOR EACH 204 HOURS OF EMPLOYMENT * *

THE ANSWER TO THAT QUESTION, WHICH WAS IN THE AFFIRMATIVE, WAS BASED UPON THE PROVISIONS OF 39 U.S.C. 104, PROVIDING IN PERTINENT PART, 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 * * *. SEE THE FIRST SENTENCE OF THE ANSWER TO QUESTION NO. 2, IN SAID DECISION--- QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER.

REFERRING TO THE THIRD PARAGRAPH OF YOUR LETTER, WHILE ANNUAL AND SICK LEAVE MAY BE CHARGED TO POSTAL EMPLOYEES ONLY ON THE DAYS WITHIN THEIR REGULAR TOUR OF DUTY, EXCLUSIVE OF SATURDAYS, SUNDAYS AND HOLIDAYS, SUCH LEAVE DOES NOT ACCRUE TO POSTAL EMPLOYEES UPON THAT BASIS, BUT RATHER, UPON THE BASIS OF THE FISCAL YEAR INCLUDING EVERY CALENDAR DAY THEREOF. SEE 39 U.S.C. 823. ACCORDINGLY, SINCE 39 U.S. CODE, 104, FIXES 2,448 HOURS OF SUBSTITUTE SERVICE AS THE EQUIVALENT OF ONE YEAR'S SERVICE OF A REGULAR EMPLOYEE (306 DAYS OF 8 HOURS EACH) THERE IS NO BASIS OF LAW FOR CREDITING A YEAR'S ANNUAL AND SICK LEAVE TO SUBSTITUTE POSTAL EMPLOYEES FOR EACH 2,204 HOURS OF SUBSTITUTE SERVICE AS SUGGESTED.

ACCORDINGLY, ALL FOUR QUESTIONS PRESENTED IN YOUR LETTER ARE ANSWERED IN THE NEGATIVE.