A-75907, JUNE 25, 1936, 15 COMP. GEN. 1129

A-75907, JUNE 25, 1936, 15 COMP. GEN. 1129

LEAVES OF ABSENCE - SICK AND ANNUAL - WORKS PROGRESS ADMINISTRATION PREVAILING WAGE EMPLOYEES - ACTS OF MARCH 14, 1936 EMPLOYEES ON WORKS PROGRESS ADMINISTRATION PROJECTS PAID THE PREVAILING WAGE UNDER THE SECURITY WAGE EXEMPTION PROVISION OF EXECUTIVE ORDER NO. 7046, DATED JUNE 5, 1935, WHO ARE NOT REQUIRED TO TAKE AN OATH OF OFFICE, AND ARE NOT APPOINTED BY THE HEAD OF AN ESTABLISHMENT, BUT ARE EMPLOYED FROM RELIEF ROLLS THROUGH THE UNITED STATES EMPLOYMENT SERVICE, OR SIMILAR LABOR ASSIGNMENT FACILITY, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, ID. 1162, RESPECTIVELY, REGARDLESS OF THE CAPACITY IN WHICH EMPLOYED. DECISION OF JUNE 4, 1936, A-75907, 15 COMP. GEN. 1058, AMPLIFIED.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, WORKS PROGRESS ADMINISTRATION, JUNE 25, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 11, 1936, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 4, 1936, ADDRESSED TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION (A-75907), ANSWERING SEVERAL QUESTIONS PRESENTED BY THE CIVIL SERVICE COMMISSION REGARDING ANNUAL AND SICK LEAVE BENEFITS PRESCRIBED IN PUBLIC, NO. 471, AND PUBLIC, NO. 472, 74TH CONGRESS, APPROVED MARCH 14, 1936. YOUR ATTENTION IS SPECIFICALLY INVITED TO QUESTION 8, PARTS (A), (B), AND (C), REGARDING THE APPLICATION OF LEAVE BENEFITS CREATED BY THE NEW STATUTES TO EMPLOYEES OF THE WORKS PROGRESS ADMINISTRATION PAID FROM FUNDS MADE AVAILABLE TO THE WORKS PROGRESS ADMINISTRATION FROM THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935.

UNFORTUNATELY, DUE TO THE MANNER IN WHICH THE QUESTIONS WERE SUBMITTED TO YOUR OFFICE FOR DECISION, THERE STILL REMAINS SOME DOUBT WITHIN THIS ADMINISTRATION AS TO WHETHER OR NOT CERTAIN CLASSES OF PROJECT EMPLOYEES ARE ELIGIBLE TO THE SICK AND ANNUAL LEAVE BENEFITS PRESCRIBED. IN ORDER THAT THESE QUESTIONS MIGHT BE CLARIFIED IT IS DEEMED ADVISABLE TO REQUEST YOUR FURTHER CONSIDERATION OF THE MATTER INVOLVED.

THE EMPLOYEES OF THE WORKS PROGRESS ADMINISTRATION FALL WITHIN THE THREE FOLLOWING CLASSIFICATIONS:

(1) ADMINISTRATIVE EMPLOYEES--- THOSE EMPLOYEES APPOINTED BY PROPERLY AUTHORIZED APPOINTING OFFICERS OF THE WORKS PROGRESS ADMINISTRATION, SUBJECT TO TAKING THE OATH OF OFFICE, AND WHOSE SALARIES ARE PAYABLE FROM THE ADMINISTRATIVE EXPENSE APPROPRIATION, SYMBOL 065019.

(2) PREVAILING WAGE EMPLOYEES--- THOSE PERSONS EXEMPT FROM SECURITY WAGE RATES AS ESTABLISHED BY EXECUTIVE ORDER NO. 7046 AND WHO ARE PAID FROM FUNDS MADE AVAILABLE FOR PROJECT OPERATION.

(3) SECURITY WAGE EMPLOYEES; THOSE PERSONS PAID SECURITY WAGE RATES IN ACCORDANCE WITH THE SCHEDULE ESTABLISHED BY EXECUTIVE ORDER NO. 7046.

IT IS CLEAR THAT THE BENEFITS ESTABLISHED BY PUBLIC, NO. 471, AND PUBLIC, NO. 472, APPLY TO THOSE EMPLOYEES FALLING WITHIN CLASSIFICATION(1) ABOVE, AND IT IS ALSO CLEAR THAT SUCH BENEFITS DO NOT EXTEND TO SECURITY WAGE WORKERS AS DESCRIBED IN CLASSIFICATION (3) ABOVE. THERE IS CONSIDERABLE DOUBT, HOWEVER, AS TO THE APPLICATION OF SUCH BENEFITS TO CLASSIFICATION (2) PREVAILING WAGE PROJECT EMPLOYEES, DUE TO THE MANY CONDITIONS OF EMPLOYMENT AND DUTIES PERFORMED BY SUCH EMPLOYEES.

AS AN ILLUSTRATION OF THE POINT INVOLVED, PREVAILING WAGE EMPLOYEES ON A SMALL CONSTRUCTION OR MANUAL LABOR PROJECT MAY CONSIST OF PERSONS ASSIGNED TO THE DUTIES OF FOREMAN, TIMEKEEPERS, PROJECT OFFICE CLERKS, SKILLED CRAFTSMEN, AND PROJECT WORKERS ASSIGNED AS A RESULT OF EXEMPTIONS TO THE SECURITY WAGE BASIS OF PAYMENT. ON A LARGER PROJECT OF THE SAME TYPE SUCH EMPLOYEES MIGHT CONSIST OF SUPERINTENDENTS, ENGINEERS, AND PROJECT OFFICE PERSONNEL, INCLUDING STENOGRAPHERS, BOOKKEEPERS, PAY ROLL CLERKS, SUPERVISING TIMEKEEPERS, ETC. PREVAILING WAGE EMPLOYEES ASSIGNED TO CLERICAL STATISTICAL, AND SO CALLED WHITE COLLAR PROJECTS, WHICH QUITE OFTEN ARE ESTABLISHED ON A NATION-WIDE BASIS, WITH NATIONAL PROJECT ADMINISTRATIVE OFFICES CONSIST OF NECESSARY CLERICAL PERSONNEL REQUIRED TO DIRECT AND ADMINISTER THE PROJECT'S NATIONAL ACTIVITIES.

PRACTICALLY ALL EMPLOYEES FALLING WITHIN THE CLASSIFICATION MENTIONED IN THE PRECEDING PARAGRAPH ARE PAID ON A MONTHLY OR ANNUAL SALARY BASIS, AND ALL SUCH EMPLOYEES ARE REQUIRED TO WORK HOURS COMPARABLE TO THOSE OF ADMINISTRATIVE EMPLOYEES AS DEFINED IN CLASSIFICATION (1) ABOVE. IN MANY CASES THE WORK ASSIGNED TO SUCH PREVAILING WAGE PROJECT EMPLOYEES IS COMPARABLE TO THE WORK PERFORMED BY ADMINISTRATIVE EMPLOYEES.

IT IS TO BE CONSIDERED, HOWEVER, THAT PREVAILING WAGE PROJECT EMPLOYEES ARE NOT APPOINTED TO THEIR POSITIONS BY THE USUAL ADMINISTRATIVE APPOINTMENT METHODS, AND ARE NOT REQUIRED TO TAKE THE PRESCRIBED OATH OF OFFICE. THESE EMPLOYEES ARE ASSIGNED IN ACCORDANCE WITH THE ASSIGNMENT PROCEDURE PRESCRIBED IN EXECUTIVE ORDER NO. 7060, THROUGH THE UNITED STATES EMPLOYMENT SERVICE OR SOME OTHER PROPERLY DESIGNATED AND AUTHORIZED LABOR ASSIGNMENT FACILITY.

ADVICE IS REQUESTED AS TO WHETHER THE DECISION RENDERED IN YOUR COMMUNICATION OF JUNE 4, 1936, TO THE CIVIL SERVICE COMMISSION INTENDED THAT THE LEAVE BENEFITS PRESCRIBED BY PUBLIC, NO. 471, AND PUBLIC, NO. 472, SHOULD BE EXTENDED TO ALL OR PART OF THE EMPLOYEES DESCRIBED HEREIN AS PREVAILING WAGE EMPLOYEES.

QUESTION 8 REFERRED TO IN YOUR LETTER WAS STATED AND ANSWERED IN THE DECISION OF JUNE 4, 1936, A-75907 (15 COMP. GEN. 1058), AS FOLLOWS:

QUESTION 8.--- MAY ANNUAL LEAVE OR SICK LEAVE BE GRANTED TO PERSONS WHO ARE COMPENSATED OUT OF FUNDS APPROPRIATED FOR OR ALLOTTED TO THE WORKS PROGRESS ADMINISTRATION AND WHO COME WITHIN THE FOLLOWING GROUPS:

(A) PERSONS ON A STATE, MUNICIPAL, OR OTHER PUBLIC BUT NON-FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES OUT OF FUNDS ALLOTTED BY W.P.A.;

(B) PERSONS ON A FEDERAL PROJECT PAID SECURITY OR PREVAILING WAGES OUT OF FUNDS ALLOTTED BY W.P.A.;

(C) PERSONS EMPLOYED IN ADMINISTRATIVE OR CLERICAL CAPACITY IN CONNECTION WITH W.P.A. PROJECTS WHO ARE PAID FROM FUNDS ALLOTTED BY W.P.A., BUT WHO ARE NOT DIRECTLY EMPLOYED IN THE CENTRAL OFFICE OF W.P.A. IN THE DISTRICT OF COLUMBIA OR AT ONE OF ITS DISTRICT OR LOCAL HEADQUARTERS. IT IS UNDERSTOOD, OF COURSE, THAT EMPLOYEES OF THE CENTRAL OFFICE AND THE DISTRICT OFFICES OF THE W.P.A. COME WITHIN THE TERMS OF PUBLIC, NO. 471, AND PUBLIC, NO. 472.

THE CLASSES OF EMPLOYEES OR WORKERS MENTIONED IN PARAGRAPHS (A) AND (B) UNDER QUESTION 8 ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY, BUT AS BOTH OF THE LEAVE STATUTES OF MARCH 14, 1936, GRANT LEAVE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED," WITH CERTAIN EXCEPTIONS, THE EMPLOYEES MENTIONED IN PARAGRAPH (C) OF QUESTION 8 ARE ENTITLED TO BOTH SICK AND ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND SUBJECT TO THE CONDITIONS OF SAID STATUTES.

IT WAS UNDERSTOOD BY THIS OFFICE THAT THE EMPLOYEES FALLING WITHIN THE CLASS DESCRIBED UNDER CLASSIFICATION (2) SET FORTH IN YOUR LETTER CAME WITHIN THE CLASS OF WORKERS DESCRIBED IN GROUP (B) UNDER QUESTION 8 PRESENTED BY THE CIVIL SERVICE COMMISSION. THE LEAVE STATUTES ARE APPLICABLE TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED.' PERSONS ASSIGNED TO WORKS PROGRESS ADMINISTRATION PROJECTS BY OR THROUGH THE UNITED STATES EMPLOYMENT SERVICE FROM RELIEF ROLLS OR OTHERWISE, PURSUANT TO THE PROCEDURE PRESCRIBED BY EXECUTIVE ORDER NO. 7060, DATED JUNE 5, 1935, ARE "SECURITY WAGE WORKERS" AS DISTINGUISHED FROM "OFFICERS AND EMPLOYEES," AND ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY, IRRESPECTIVE OF THE CLASS OF WORK TO WHICH THEY ARE ASSIGNED; THAT IS, WHETHER "WHITE COLLAR," OR MECHANICAL OR LABOR WORK, AND NOTWITHSTANDING THEY ARE PAID PREVAILING WAGES PURSUANT TO EXCEPTION (E) TO THE SCHEDULE OF MONTHLY EARNINGS UNDER PART I OF EXECUTIVE ORDER NO. 7046, DATED MAY 20, 1935.

YOU ARE ADVISED, THEREFORE, THAT THE WORKERS DESCRIBED UNDER CLASSIFICATION (2) SET FORTH IN YOUR LETTER, AND WHO ARE NOT APPOINTED BY THE HEAD OF AN ESTABLISHMENT OR REQUIRED TO TAKE AN OATH OF OFFICE, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, ID. 1162, RESPECTIVELY.