A-79026, APRIL 25, 1940, 19 COMP. GEN. 895

A-79026, APRIL 25, 1940, 19 COMP. GEN. 895

LEAVES OF ABSENCE - ANNUAL AND SICK - ALASKA RAILROAD TRAINMEN TRAINMEN OF THE ALASKA RAILROAD WHO ARE EMPLOYED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS AND WHO HOLD SENIORITY RIGHTS ARE "PERMANENT EMPLOYEES" AND NOT "INDEFINITE EMPLOYEES" WITHIN THE MEANING OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS. PERMANENT TRAINMEN OF THE ALASKA RAILROAD WORKING OFF THE "EXTRA BOARD" MAY BE GIVEN CREDIT IN THE COMPUTATION OF ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, FOR EVERY DAY OF ACTUAL SERVICE THAT THEY WORK OFF THE "EXTRA BOARD," EVEN THOUGH THE PERIODS OF SERVICE ARE NOT CONTINUOUS AND NO ONE PERIOD CONTINUES FOR A FULL MONTH. 16 COMP. GEN. 865, MODIFIED. RULE AS TO "INDEFINITE" EMPLOYEES DISTINGUISHED. SECTION 17 OF THE UNIFORM SICK LEAVE REGULATIONS DOES NOT PRECLUDE THE GRANTING OF SICK LEAVE TO A PERMANENT TRAINMAN OF THE ALASKA RAILROAD WORKING OFF THE "EXTRA BOARD," FOR A PERIOD OF SICKNESS DURING WHICH HE WOULD HAVE BEEN REQUIRED TO WORK HAD HE NOT BEEN SICK, EVEN THOUGH SAID PERIOD IMMEDIATELY FOLLOWED A PERIOD OF INACTIVE DUTY DURING WHICH HE WAS REQUIRED TO BE AVAILABLE FOR WORK.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, APRIL 25, 1940:

I HAVE YOUR LETTER OF APRIL 8, 1940, AS FOLLOWS:

WILL YOU PLEASE ADVISE ABOUT THE FOLLOWING MATTERS RELATING TO THE APPLICATION OF THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 49 STAT. 1162, TO THE TRAINMEN ON THE ALASKA RAILROAD.

THE WORKING AGREEMENT WITH THE TRAINMEN ON THE ALASKA RAILROAD PROVIDES THAT ALL PASSENGER, FREIGHT, MIXED, WORK, SNOW, ROTARY, YARD, AND HELPER TRAIN SERVICE USING THE MAIN LINE FOR A PERIOD OF MORE THAN SEVEN DAYS SHALL BE BULLETINED FOR FIVE DAYS AND THE SENIOR TRAINMEN MAKING APPLICATION FOR SUCH POSITION SHALL BE ASSIGNED THERETO. TRAINMEN ASSIGNED TO BULLETINED POSITIONS ARE CONSIDERED ASSIGNED TRAINMEN AND ARE NOT REQUIRED TO WORK MORE THAN 26 DAYS PER MONTH AND ARE PAID ON THE BASIS OF A GUARANTEED MONTHLY MINIMUM SALARY.

WHEN A PASSENGER TRAIN, FREIGHT TRAIN, WORK TRAIN, OR OTHER TRAIN SERVICE IS REQUIRED AND IT IS CONSIDERED THAT IT WILL NOT BE OPERATED FOR MORE THAN SEVEN DAYS OR PENDING THE BULLETINING AND ASSIGNMENT OF CREWS TO AN ASSIGNED RUN, THE SENIOR AVAILABLE TRAINMEN ON THE EXTRA BOARD ARE CALLED FOR THE SERVICE AND WHILE SO WORKING ARE CONSIDERED UNASSIGNED TRAINMEN WORKING ON EXTRA OR UNASSIGNED RUNS, OR "WORKING OFF THE EXTRABOARD.'

THE MAJORITY OF THE TRAINMEN ON THE ALASKA RAILROAD HOLD SENIORITY RIGHTS AS CONDUCTOR AND BRAKEMAN AND DURING A YEAR MANY OF THEM WILL WORK FROM TIME TO TIME AS EITHER CONDUCTOR OR BRAKEMAN AND AS ASSIGNED TRAINMEN AND UNASSIGNED TRAINMEN.

WHEN AN ASSIGNED RUN IS DISCONTINUED A TRAINMAN---

(1) MAY TRANSFER OVER TO ANOTHER ASSIGNED RUN OR UNASSIGNED RUN EITHER AS CONDUCTOR OR BRAKEMAN BY EXERCISING HIS SENIORITY OVER A JUNIOR EMPLOYEE;

(2) MAY GO ON THE EXTRA BOARD AND BE AVAILABLE FOR SERVICE IN THE FIRST POSITION, EITHER AS CONDUCTOR OR BRAKEMAN, THAT HIS SENIORITY WOULD ENTITLE HIM TO HOLD OR FOR WHICH HE MAY BE CALLED, AND WORK INTERMITTENTLY.

(3) MAY TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY.

TRAINMEN DO NOT RECEIVE ANY SALARY FOR TIME ON THE EXTRA BOARD UNLESS THEY PERFORM SERVICE AND WHILE ON THE EXTRA BOARD THEY MUST BE READY AT ANY TIME, DAY OR NIGHT, TO ANSWER A CALL ON 1 1/2 HOURS' NOTICE TO PERFORM SERVICE FOR WHICH THEY ARE PAID THE REGULAR RATE FOR POSITION FILLED AND CAN BE DISCIPLINED FOR FAILURE TO ANSWER CALL ON SUCH NOTICE. WHEN THE EXTRA SERVICE IS COMPLETED THEY GO BACK ON THE EXTRA BOARD AND ARE AVAILABLE FOR SUBSEQUENT CALLS.

TRAINMEN WORKING OFF THE EXTRA BOARD, THAT IS, PERFORMING SERVICE ON EXTRA RUNS AND UNASSIGNED SERVICE WHEN NEEDED, VERY RARELY WORK EVERY DAY DURING A THIRTY-DAY PERIOD AND WHILE NOT GUARANTEED A MONTHLY MINIMUM WAGE FOR EXTRA SERVICE LIKE ON ASSIGNED RUNS, THEY SOMETIMES EARN DURING A THIRTY-DAY PERIOD OR A CALENDAR MONTH, MORE THAN THE GUARANTEED MONTHLY MINIMUM WAGE OF AN ASSIGNED TRAINMAN.

IN DECISION OF JANUARY 14, 1937, 16 COMP. GEN. 648, IT WAS HELD AS FOLLOWS:

"* * * 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, 1936, "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.' AND IN DECISION OF MARCH 17, 1937, 16 COMP. GEN. 865, IT WAS STATED:

"YOUR LETTER WOULD SEEM TO INDICATE AN UNDERSTANDING THAT WHEN A REGULARLY ASSIGNED TRAINMAN IS TEMPORARILY PERFORMING SERVICE OTHER THAN ON AN ASSIGNED RUN, HE DOES NOT EARN LEAVE. SUCH WAS NOT THE INTENT OF THE DECISION. IF, AS WE UNDERSTOOD FROM YOUR FORMER SUBMISSION, THESE REGULARLY ASSIGNED TRAINMEN ARE PERMANENT EMPLOYEES OF THE UNITED STATES AND, THEREFORE, ENTITLED TO LEAVE WITH PAY UNDER THE LAW AND REGULATIONS, THEY EARN LEAVE DURING ALL PERIODS OF SERVICE FOR THE ALASKA RAILROAD WHETHER ON AN ASSIGNED RUN, OR ON AN EXTRA OR UNASSIGNED RUN OR WHILE PERFORMING ANY OTHER KIND OF SERVICE UNDER THE TERMS OF THEIR EMPLOYMENT. IT IS NOT THE CHARACTER OF THE SERVICE PERFORMED WHICH ENTITLES THEM TO LEAVE BUT THE PERMANENT BASIS OR CONTINUOUS NATURE OF THE EMPLOYMENT. COURSE, THEY ARE NOT ENTITLED TO ACCRUE LEAVE FOR PERIODS ON THE "EXTRA BOARD" OR DURING ANY OTHER PERIOD OF LAY-OFF WITHOUT PAY.

"* * * AS REGULARLY ASSIGNED TRAINMEN ARE PERMANENT EMPLOYEES, NOT TEMPORARY, THEY MAY ACCRUE LEAVE THROUGH MORE THAN ONE PERIOD OF CONTINUOUS ACTIVE SERVICE OF NOT LESS THAN ONE MONTH, REGARDLESS OF THE CHARACTER OF THE SERVICE PERFORMED, SEPARATED BY LAY-OFF OR FURLOUGH PERIODS WITHOUT PAY.'

TO PROPERLY ADMINISTER THE ANNUAL LEAVE ACT IN ITS APPLICATION TO TRAINMEN AN EXPLANATION IS DESIRABLE REGARDING THE LAST PARAGRAPH QUOTED ABOVE, PARTICULARLY THE THIRTY-DAY SERVICE RESTRICTION REQUIRED TO ACCRUE ANNUAL LEAVE IN VIEW OF THE FACT THAT ANNUAL LEAVE FOR PERMANENT EMPLOYEES IS ON AN ANNUAL BASIS.

REVIEW IS REQUESTED OF DECISION THAT TRAINMEN "ARE NOT ENTITLED TO ACCRUE LEAVE FOR PERIODS ON THE "EXTRA BOARD.'" IT IS BELIEVED THAT THIS DECISION HAS REFERENCE ONLY TO THE DAYS ON THE EXTRA BOARD WHEN NO SERVICE IS PERFORMED. IN VIEW OF THE OTHER DECISIONS IT WOULD APPEAR THAT TRAINMEN WHO HOLD SENIORITY RIGHTS AND ARE CLASSED AS PERMANENT EMPLOYEES WHEN ON ASSIGNED RUNS SHOULD NOT LOSE THEIR STATUS AS PERMANENT EMPLOYEES WHEN THEY GO ON THE EXTRA BOARD AND THAT THEY SHOULD ACCRUE ANNUAL LEAVE WHILE ON THE EXTRA BOARD IN PROPORTION TO THE NUMBER OF DAYS WORKED.

IF IT IS HELD THAT TRAINMEN WORKING OFF THE EXTRA BOARD RETAIN THEIR STATUS AS PERMANENT EMPLOYEES, SHALL THE 1 1/4 DAYS' SICK LEAVE ACCRUE FOR EACH 30 DAYS ON THE EXTRA BOARD OR FOR EACH ACCRUAL OF 30 DAYS ON WHICH WORK IS PERFORMED?

THE LAST DAY WORKED BY A TRAINMAN WORKING OFF THE EXTRA BOARD WAS MAY 19TH AND, THOUGH HE CONTINUED TO PROTECT THE EXTRA BOARD AND WAS AVAILABLE FOR SERVICE, HE PERFORMED NO WORK MAY 20TH TO JUNE ST, INCLUSIVE. ON JUNE 2ND HE BECAME SICK AND WAS HOSPITALIZED FOR NINE DAYS, JUNE 2ND TO 10TH, INCLUSIVE. HE WORKED JUNE 11TH AND WAS SICK JUNE 12TH AND 13TH. HE WAS ON THE EXTRA BOARD, BUT PERFORMED NO SERVICE JUNE 14TH TO 17TH, INCLUSIVE, AND ON JUNE 18TH HE WENT ON AN ASSIGNED RUN. DURING THE PERIOD THAT HE WAS SICK, WORK THAT HE WOULD HAVE DONE IF NOT PREVENTED BY ILLNESS WAS PERFORMED BY EMPLOYEES JUNIOR IN SENIORITY ON TWO OCCASIONS, ONE EMPLOYEE WORKED 19 HOURS 40 MINUTES (WORK AND DEADHEAD TIME) ON JUNE 2ND AND ANOTHER EMPLOYEE WORKED 9 HOURS 10 MINUTES EACH DAY, JUNE 8TH AND 9TH. THE TIME THAT HE WAS TAKEN SICK ON JUNE 2ND, HE HAD NO ACCUMULATED OR CURRENT ANNUAL LEAVE TO HIS CREDIT, BUT HAD ACCUMULATED 16 DAYS SICK LEAVE. SECTION 17 OF E.O. NO. 7846 PROVIDES THAT SICK LEAVE SHALL NOT BE GRANTED IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS AND IN ACCORDANCE THEREWITH SICK LEAVE WAS NOT GRANTED THE TRAINMAN IN THE CASE CITED FOR THE PERIOD JUNE 2ND TO 10TH, BUT HE WAS PAID SICK LEAVE FOR JUNE 12TH AND 13TH. SHOULD THIS TRAINMAN HAVE BEEN PAID SICK LEAVE FOR ALL OR ANY PART OF THE PERIOD JUNE 2-10, INCLUSIVE, IN VIEW OF THE FACT THAT HE HAD ACCUMULATED SICK LEAVE TO HIS CREDIT?

IN THE ABOVE SUBMISSION REFERENCE IS MADE TO TRAINMEN, WHO CONSIST OF THE CONDUCTORS AND BRAKEMEN, AND IT SHOULD BE NOTED THAT THE ENGINE MEN, CONSISTING OF THE LOCOMOTIVE ENGINEERS AND FIREMEN, WORK UNDER THE SAME CONDITIONS AND HAVE A SIMILAR WORKING AGREEMENT AND THAT THE DECISIONS WILL LIKEWISE APPLY TO THEM.

THE STATEMENT IN THE DECISION OF MARCH 17, 1937, 16 COMP. GEN. 865, THAT THE EMPLOYEES THERE INVOLVED "ARE NOT ENTITLED TO ACCRUE LEAVE FOR PERIODS ON THE "EXTRA BOARD," " DOES NOT EXPRESSLY HOLD, NOR WAS IT INTENDED TO HOLD, THAT TRAINMEN OF THE ALASKA RAILROAD DID NOT EARN LEAVE FOR PERIODS ON THE "EXTRA BOARD" WHEN ACTUAL SERVICE IS PERFORMED. THEREFORE, YOUR UNDERSTANDING "THAT THIS DECISION HAS REFERENCE ONLY TO THE DAYS ON THE EXTRA BOARD WHEN NO SERVICE IS PERFORMED," IS CORRECT. HOWEVER, THE DECISION DID STATE THE RULE THAT LEAVE IS EARNED BY TRAINMEN OF THE ALASKA RAILROAD ONLY FOR CONTINUOUS PERIODS OF ACTUAL SERVICE OF NOT LESS THAN 1 MONTH. THAT IS THE RULE WHICH HAS BEEN APPLIED IN THE DECISIONS OF THIS OFFICE TO FEDERAL EMPLOYEES CLASSED AS NDEFINITE," AS DEFINED IN THE ANNUAL AND SICK LEAVE REGULATIONS (SEC. 1) AS FOLLOWS:

"INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES. SEE 17 COMP. GEN. 1017; 18 ID. 400; ID. 457.

THE DEFINITION OF "PERMANENT EMPLOYEES," SECTION 1 OF THE SAME REGULATIONS, IS AS FOLLOWS:

"PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.

FROM THE FACTS NOW PRESENTED, IT IS BELIEVED THAT PERMANENT TRAINMEN OF THE ALASKA RAILROAD WHO ARE APPOINTED OR EMPLOYED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS AND WHO HOLD SENIORITY RIGHTS ARE MORE ACCURATELY CLASSED AS "PERMANENT EMPLOYEES" AS DEFINED IN THE LEAVE REGULATIONS. ALTHOUGH THE CONDITIONS OF THEIR EMPLOYMENT REQUIRE THEM TO GO ON THE "EXTRA BOARD" UPON TERMINATION OF AN ASSIGNED RUN--- THERE REMAINING AVAILABLE FOR PERIODS OF DUTY RARELY, IF EVER, LASTING AS LONG AS 30 DAYS CONTINUOUSLY--- THE CONCLUSION IS JUSTIFIED THAT THE 30 CONTINUOUS DAY RULE STATED IN THE DECISION OF MARCH 17, 1937, SUPRA, NEED NOT BE APPLIED TO THEM. THAT IS TO SAY, EVERY DAY OF ACTUAL SERVICE (WHETHER CONTINUOUS OR NOT) THAT THEY WORK OFF THE EXTRA BOARD--- EXCLUDING PERIODS IN A NONPAY STATUS--- MAY BE INCLUDED IN COMPUTING THE AMOUNT OF ANNUAL AND SICK LEAVE EARNED.

SECTION 18 OF THE UNIFORM ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940) PROVIDES AS FOLLOWS:

THE HEADS OR GOVERNING BODIES OF THE VARIOUS GOVERNMENTAL AGENCIES TO WHICH THIS EXECUTIVE ORDER APPLIES SHALL BE RESPONSIBLE FOR THE PROPER ADMINISTRATION OF THESE REGULATIONS INSOFAR AS THEY PERTAIN TO THE GRANTING OF ANNUAL LEAVE TO EMPLOYEES UNDER THEIR RESPECTIVE JURISDICTIONS; AND THEY MAY, WITHIN THE LIMITS AUTHORIZED BY LAW, ISSUE SUCH REGULATIONS AS ARE NOT INCONSISTENT WITH THESE REGULATIONS. SEE, ALSO, CORRESPONDING SECTION 22 OF THE UNIFORM SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940).

AS THERE IS NOTHING IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, OR IN THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS TO THE CONTRARY, IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION TO ADOPT REGULATIONS APPLICABLE TO THE PERMANENT TRAINMEN OF THE ALASKA RAILROAD TO AUTHORIZE THE ACCRUAL OF ANNUAL AND SICK LEAVE OF ABSENCE FOR EVERY DAY OF ACTUAL SERVICE WHILE ON THE "EXTRA BOARD" (REGARDLESS OF WHETHER THE SERVICE BE CONTINUOUS), TO CREDIT ANNUAL LEAVE--- GRANTED ON AN ANNUAL BASIS--- IN PROPORTION TO THE NUMBER OF DAYS WORKED, AND TO CREDIT SICK LEAVE--- GRANTED ON A MONTHLY BASIS--- AT THE RATE OF 1 1/4 DAYS FOR EACH ACCRUAL OF 30 DAYS ON WHICH ACTUAL WORK IS PERFORMED.

REGARDING THE CASE PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THERE IS FOR CONSIDERATION SECTION 17 OF THE UNIFORM SICK LEAVE REGULATIONS WHICH PROVIDES AS FOLLOWS:

SICK LEAVE MAY NOT BE GRANTED FOR A PERIOD IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS, UNLESS AND UNTIL THERE IS A RETURN TO ACTUAL DUTY, NOR MAY SUCH LEAVE WITHOUT PAY BE CONVERTED INTO SICK LEAVE. IN THE CASE PRESENTED THE SICK LEAVE DID NOT FOLLOW "A PERIOD OF ABSENCE IN A NONPAY STATUS," AS THOSE WORDS ARE USED IN THE QUOTED REGULATIONS, BUT RATHER, IT FOLLOWED A PERIOD OF INACTIVE DUTY--- DAYS ON WHICH THE EMPLOYEE WAS REQUIRED TO BE AVAILABLE FOR DUTY BUT WAS NOT CALLED UPON TO RENDER SERVICE. THEREFORE, IF THE TRAINMAN WOULD HAVE WORKED FROM JUNE 2 TO 10, AND ON JUNE 12 AND 13, OR ON ANY OF THOSE DAYS, HAD HE NOT BEEN SICK--- WORK BY A UNION IN HIS PLACE BEING DETERMINATIVE OF THE DAYS ON WHICH HE WOULD HAVE WORKED--- THE QUOTED REGULATION DOES NOT PRECLUDE GRANTING HIM SICK LEAVE WITH PAY FOR THE DAYS ON WHICH HE WOULD HAVE WORKED.