A-79026, JANUARY 14, 1937, 16 COMP. GEN. 648

A-79026, JANUARY 14, 1937, 16 COMP. GEN. 648

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - ALASKA RAILROAD EMPLOYEES REGULARLY ASSIGNED TRAINMEN (ENGINEERS, FIREMEN, CONDUCTORS, BAGGAGE MEN, AND BRAKEMEN) OF THE ALASKA RAILROAD ARE ENTITLED TO ANNUAL AND SICK LEAVE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162. COMP. GEN. 139, MODIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JANUARY 14, 1937:

YOUR LETTER OF NOVEMBER 12, 1936, AS IS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION A-79026 DATED AUGUST 10 REGARDING CERTAIN QUESTIONS POSED BY THE GENERAL MANAGER OF THE ALASKA RAILROAD CONCERNING THE APPLICATION OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936 (49 STAT. 1161-1162), TO EMPLOYEES OF THE ALASKA RAILROAD, WITH THE FURTHER REQUEST THAT CONSIDERATION BE GIVEN TO A LETTER DATED OCTOBER 29 FROM THE GENERAL MANAGER TO THE DIRECTOR OF THE DIVISION OF TERRITORIES AND ISLAND POSSESSIONS, A COPY OF WHICH IS ENCLOSED.

THE GENERAL MANAGER MAKES REFERENCE TO RULES 3, 4, AND 5 OF THE SCHEDULE OF RULES AND RATES OF PAY FOR THE GOVERNMENT OF ENGINEERS, FIREMEN, CONDUCTORS, BAGGAGE MEN, AND BRAKEMEN. THESE RULES READ AS FOLLOWS:

"RULE 3. REGULARLY ASSIGNED TRAIN AND ENGINE MEN WHO ARE READY FOR SERVICE THE ENTIRE MONTH AND DO NOT LAY OFF OF THEIR OWN ACCORD, SHALL RECEIVE THE MONTHLY GUARANTEE PROVIDED IN ARTICLE 1, RULE 1.

"RULE 4. TIME ALLOWANCE SHALL BE COMPUTED BY ADDING TOGETHER ALL HOURS MADE OR CREDITED TO EACH MAN IN THE MONTH. IF THE SUM EXCEEDS 240 HOURS, ALL HOURS IN EXCESS OF 240 SHALL BE PAID FOR AT ONE-EIGHTH ( 1/8 ( OF THE DAILY RATE. THE MILEAGE SHALL ALSO BE ADDED AND IF THE SUM EXCEEDS 3,000 MILES, SHALL BE PAID FOR AT THE MILEAGE RATE. MILES OR HOURS SHALL BE PAID, WHICHEVER PRODUCES THE LARGER AMOUNT. SHOULD NEITHER THE MILES OR HOURS PRODUCE THE MONTHLY MINIMUM, THE MONTHLY MINIMUM SHALL BE PAID. ALL TIME WORKED OR HELD FOR DUTY IN EXCESS OF EIGHT (8) HOURS SHALL BE COMPUTED ON THE MINUTE BASIS.

"RULE 5. (A) CREWS SHALL NOT BE REQUIRED TO WORK MORE THAN TWENTY SIX (26) DAYS PER MONTH, EXCEPT IN CASES OF NECESSITY. SO FAR AS PRACTICABLE, THE LAY-OFF DAY SHALL BE ON SUNDAY. IT IS UNDERSTOOD THAT IT MAY BE NECESSARY FOR WORK TRAIN, AND IN SOME INSTANCES OTHER CREWS, TO WORK SUNDAYS AND HOLIDAYS; BUT THE POLICY SHALL BE TO AVOID SUNDAY AND HOLIDAY WORK.

(B) WHEN SERVICE IS NOT RENDERED ON SUNDAYS OR HOLIDAYS, REGULARLY ASSIGNED MEN WILL BE CREDITED WITH EIGHT (8) HOURS.'

IN THE DECISION OF AUGUST 10, 1936, 16 COMP. GEN. 139, 141, IT WAS HELD:

* * * UNDER THE ANSWER TO QUESTION 7 IN THE DECISION OF JUNE 4, 1936, SUPRA (15 COMP. GEN. 1058), AND IF THEIR STATUS OTHERWISE PERMITTED IT, THE EMPLOYEES OF THE ALASKA RAILROAD REGULARLY EMPLOYED WHO HERETOFORE HAVE NOT BEEN ENTITLED TO LEAVE OR TO LEAVE IN AN AMOUNT LESS THAN THAT ALLOWED BY THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, WOULD NOW BE ENTITLED TO LEAVE UNDER SAID STATUTES. HOWEVER, IT WOULD APPEAR FROM THE INFORMATION FURNISHED THAT THE EMPLOYEES INVOLVED MAY BE DEEMED TO BE OF THAT CLASS WHOSE COMPENSATION IS UPON THE "WHEN ACTUALLY EMPLOYED" BASIS, IN VIEW OF WHICH NONE OF THE EMPLOYEES MENTIONED WOULD, UNDER ANSWER TO QUESTION 5 IN THE CITED DECISION, BE ENTITLED EITHER TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS OF THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162.

THAT DECISION WAS BASED ON THE FACTS THEN BEFORE THIS OFFICE INDICATING THAT THE BASIS OF PAYMENT OF ALL THE EMPLOYEES OF THE ALASKA RAILROAD WAS "WHEN ACTUALLY EMPLOYED.' HOWEVER, IT NOW APPEARS FROM RULES QUOTED IN YOUR LETTER, SUPRA, THAT REGULARLY ASSIGNED ENGINEERS, FIREMEN, CONDUCTORS, BAGGAGE MEN, AND BRAKEMEN ARE PAID A GUARANTEED MONTHLY MINIMUM WAGE IF THEY ARE AVAILABLE FOR DUTY EVEN THOUGH WORK IS NOT PERFORMED, AND, UNDER CERTAIN CONDITIONS, ARE CREDITED FOR PAY PURPOSES WITH 8 HOURS ON SUNDAYS AND HOLIDAYS ON WHICH NO WORK IS PERFORMED. THIS BASIS OF PAYMENT CLEARLY HAS NOT THE ELEMENTS OF "WHEN ACTUALLY EMPLOYED" AS THAT TERM IS ORDINARILY UNDERSTOOD AND AS USED IN SECTION 19 OF THE UNIFORM ANNUAL LEAVE REGULATIONS AND IN SECTION 22 OF THE UNIFORM SICK LEAVE REGULATIONS EXCLUDING FROM THE BENEFITS OF THE LEAVE ACTS OF MARCH 14, 6,"EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS: (1) EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED.' HENCE, THEY MAY BE REGARDED AS PAID ON A FULL-TIME BASIS RATHER THAN WHEN ACTUALLY EMPLOYED AND ARE ENTITLED TO BOTH ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY UNDER THE TERMS OF THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND PURSUANT TO THE TERMS AND CONDITIONS OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS ISSUED PURSUANT THERETO.

THIS DECISION IS LIMITED IN EFFECT TO REGULARLY ASSIGNED TRAINMEN WHOSE CONDITIONS OF EMPLOYMENT AND COMPENSATION ARE CONTROLLED BY THE RULES QUOTED IN YOUR LETTER.