A-2804, JULY 5, 1924, 4 COMP. GEN. 17

A-2804: Jul 5, 1924

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MAY BE GRANTED ONLY SUCH EMPLOYEES AS HOLD PERMANENT APPOINTMENTS OF INDEFINITE DURATION AT THE TIME THE LEAVE IS TAKEN. OR A NUMBER OF TEMPORARY APPOINTMENTS OF LESS DURATION AGGREGATING TWELVE MONTHS OR MORE ARE NOT ENTITLED TO THE LEAVE OF ABSENCE AUTHORIZED TO EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS BY THE ACT OF AUGUST 29. IRRESPECTIVE OF WHETHER THEIR EMPLOYMENT IS OR IS NOT TO BE CONTINUED AFTER SUCH LEAVE WOULD HAVE EXPIRED. 3 COMP. 1924: I HAVE YOUR LETTER OF MAY 13. AS FOLLOWS: ARE EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS FOR A PERIOD OF TWELVE CONSECUTIVE MONTHS OR MORE ENTITLED TO ACCRUED LEAVE WITH PAY IF THEY ARE CONTINUED IN EMPLOYMENT AFTER EXPIRATION OF SUCH LEAVE?

A-2804, JULY 5, 1924, 4 COMP. GEN. 17

LEAVE OF ABSENCE - TEMPORARY EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS THE LEAVE OF ABSENCE AUTHORIZED TO EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS BY THE ACT OF AUGUST 29, 1916, 39 STAT. 617, MAY BE GRANTED ONLY SUCH EMPLOYEES AS HOLD PERMANENT APPOINTMENTS OF INDEFINITE DURATION AT THE TIME THE LEAVE IS TAKEN; SUCH EMPLOYEES MAY BE GIVEN CREDIT IN COMPUTING THEIR ACCRUED LEAVE FOR THE TIME SERVED UNDER A PRIOR TEMPORARY APPOINTMENT IMMEDIATELY PRECEDING OR SEPARATING PERMANENT APPOINTMENTS IF THE EMPLOYMENT HAS BEEN CONTINUOUS. EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS SERVING UNDER A TEMPORARY APPOINTMENT OF TWELVE MONTHS OR MORE DURATION, OR A NUMBER OF TEMPORARY APPOINTMENTS OF LESS DURATION AGGREGATING TWELVE MONTHS OR MORE ARE NOT ENTITLED TO THE LEAVE OF ABSENCE AUTHORIZED TO EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS BY THE ACT OF AUGUST 29, 1916, 39 STAT. 617, IRRESPECTIVE OF WHETHER THEIR EMPLOYMENT IS OR IS NOT TO BE CONTINUED AFTER SUCH LEAVE WOULD HAVE EXPIRED. 3 COMP. GEN. 382, AFFIRMED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 5, 1924:

I HAVE YOUR LETTER OF MAY 13, 1924, REQUESTING DECISION OF A NUMBER OF QUESTIONS RELATIVE TO LEAVE OF ABSENCE OF EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS, AS FOLLOWS:

ARE EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS FOR A PERIOD OF TWELVE CONSECUTIVE MONTHS OR MORE ENTITLED TO ACCRUED LEAVE WITH PAY IF THEY ARE CONTINUED IN EMPLOYMENT AFTER EXPIRATION OF SUCH LEAVE?

ARE EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS FOR A PERIOD OF TWELVE CONSECUTIVE MONTHS OR MORE ENTITLED TO ACCRUED LEAVE WITH PAY IF THEY ARE NOT CONTINUED IN EMPLOYMENT AFTER EXPIRATION OF SUCH LEAVE?

ARE EMPLOYEES SERVING UNDER A NUMBER OF TEMPORARY APPOINTMENTS AGGREGATING TWELVE CONSECUTIVE MONTHS OR MORE ENTITLED TO ACCRUED LEAVE WITH PAY?

ARE EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS, WHO ARE SUBSEQUENTLY PERMANENTLY APPOINTED WITHOUT BREAK IN THE CONTINUITY OF SERVICE, ENTITLED TO ACCRUED LEAVE WITH PAY FROM THE DATE OF THEIR TEMPORARY APPOINTMENT AFTER TWELVE CONSECUTIVE MONTHS OF SERVICE IN BOTH TEMPORARY AND PERMANENT STATUS?

ARE SHOP EMPLOYEES SERVING UNDER PERMANENT APPOINTMENTS WHO ARE GIVEN TEMPORARY APPOINTMENTS IN OFFICE RATINGS AND LATER PERMANENT APPOINTMENTS AS SUCH OR, AFTER TERMINATION OF TEMPORARY APPOINTMENTS IN OFFICE EMPLOYEES, RETURNED TO THEIR SHOPS IN A PERMANENT STATUS, ENTITLED TO ACCRUED LEAVE WITH PAY AT THE EXPIRATION OF TWELVE CONSECUTIVE MONTHS' SERVICE?

WHAT IS THE MEANING OF THE WORDS "PERMANENT" AND "TEMPORARY" AS USED IN THE DECISION OF THE COMPTROLLER OF DECEMBER 19, 1923? THE WORD "PERMANENT" ABOVE QUOTED IS CONSTRUED BY THE DEPARTMENT IN ACCORDANCE WITH THE RULES OF THE CIVIL SERVICE COMMISSION TO MEAN "PROBATIONAL" OR ABSOLUTE. PROBATIONAL APPOINTMENTS ARE MADE AS A RESULT OF CERTIFICATION OF ELIGIBLES FROM REGISTERS ESTABLISHED AS A RESULT OF EXAMINATION. SUCH APPOINTMENTS BECOME ABSOLUTE UPON COMPLETION OF THE ESTABLISHED PROBATIONARY PERIOD, PROVIDED THE INCUMBENT IS NOT SEPARATED ON OR BEFORE THE EXPIRATION OF THE PROBATIONARY PERIOD ON ACCOUNT OF BEING UNSATISFACTORY.

THE WORD "TEMPORARY" IS UNDERSTOOD TO REFER TO THOSE EMPLOYEES WHO HAVE NOT YET ATTAINED A PROBATIONAL STATUS--- WHO HAVE NOT ESTABLISHED QUALIFICATIONS FOR ELIGIBILITY IN ACCORDANCE WITH THE REGULATIONS GOVERNING THE EMPLOYMENT OF LABOR AT NAVY YARDS, OR WHO HAVE FILED APPLICATIONS WHICH HAVE NOT BEEN GRADED AND HAVE BEEN APPOINTED TEMPORARILY IN THE ABSENCE OF QUALIFIED ELIGIBLES OR IN THE CASE OF EMPLOYEES OF THE CLERICAL, DRAFTING, AND TECHNICAL FORCES, ETC., THOSE EMPLOYEES APPOINTED UNDER SECTIONS 1, 2, 3, AND 4 OF RULE VIII OF THE CIVIL SERVICE RULES.

THE ACT OF AUGUST 29, 1916, 39 STAT. 617, PROVIDES FOR LEAVE OF ABSENCE OF EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS AS FOLLOWS:

* * * THAT EACH AND EVERY EMPLOYEE OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT IS HEREBY GRANTED THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR, WITHOUT FORFEITURE OF PAY DURING SUCH LEAVE: PROVIDED FURTHER, THAT IT SHALL BE LAWFUL TO ALLOW PRO RATA LEAVE ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE: AND PROVIDED FURTHER, THAT IN ALL CASES THE HEADS OF DIVISIONS SHALL HAVE DISCRETION AS TO THE TIME WHEN THE LEAVE CAN BEST BE ALLOWED: AND PROVIDED FURTHER, THAT NOT MORE THAN THIRTY DAYS' LEAVE WITH PAY SHALL BE ALLOWED ANY SUCH EMPLOYEE IN ONE YEAR: * * *

IN DECISION OF DECEMBER 19, 1923, 3 COMP. GEN. 382, IT WAS SAID:

THE CONTEXT OF THE ENACTMENT LIMITS ITS APPLICATION TO THOSE WHO ARE IN SERVICE OVER ONE YEAR AND THUS CONTEMPLATES PERMANENT APPOINTMENTS OF INDEFINITE DURATION, SO THAT THEY CAN ACCUMULATE THE LEAVE AS PROVIDED BY THE ACT. IT NEGATIVES APPLICATION THEREOF TO ONE TEMPORARILY EMPLOYED. IT IS APPARENTLY INCONSISTENT WITH TEMPORARY EMPLOYMENT TO GRANT PROLONGED LEAVE. THE ORIGINAL APPOINTMENT OF THE EMPLOYEE IN THIS CASE WAS TEMPORARY FOR NOT TO EXCEED NINETY DAYS. THE FACT THAT BY SUCCESSIVE TEMPORARY APPOINTMENTS EMPLOYMENT LASTED FOR A YEAR DOES NOT ITSELF ENTITLE TO LEAVE.

THE STATUTE MAKES THE CONDITION THAT PRO RATA LEAVE MAY BE GRANTED ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE, THE EFFECT OF WHICH IS TO PROHIBIT GRANTING OF ANY LEAVE DURING THE FIRST SERVICE YEAR.

THE FIRST FOUR QUESTIONS SUBMITTED RELATE TO LEAVE OF ABSENCE OF TEMPORARY EMPLOYEES. AS STATED IN THE DECISION CITED, 3 COMP. GEN. 382, A PROLONGED LEAVE OF ABSENCE WITH PAY IS INCONSISTENT WITH TEMPORARY EMPLOYMENT. THE GRANTING OF LEAVE AFTER 12 MONTHS' SERVICE STIPULATED BY THE STATUTE SHOWS IT HAD RELATION TO EMPLOYEES HAVING SOME PERMANENCY OF TENURE. A TEMPORARY EMPLOYMENT IMPLIES A CERTAINTY OF ENDING THE EMPLOYMENT AND IT IS ASSUMED THAT IN THE TEMPORARY EMPLOYMENTS REFERRED TO, THE APPOINTMENTS DESIGNATE THE PERIOD OF EMPLOYMENT AND ARE RENEWED FROM TIME TO TIME, SO THAT THE EMPLOYMENT HAS A FIXED TIME FOR ENDING ALTHOUGH IT MAY BE RENEWED. THIS THEN MUST BE THE CONDITION OF EMPLOYMENT WHEN A QUESTION OF LEAVE ARISES--- THAT UNDER THE CURRENT APPOINTMENT THE EMPLOYMENT WILL END AT A CERTAIN DATE UNLESS RENEWED. THERE APPEARS UNDER SUCH CONDITIONS NO RIGHT TO GRANT LEAVE OF ABSENCE WITH PAY. IT IS UNDERSTOOD THAT THE TEMPORARY EMPLOYMENT IS EITHER BECAUSE THE EMPLOYEE CAN NOT QUALIFY AS A REGULAR EMPLOYEE OR THE WORK CONDITIONS ARE SUCH THAT EMPLOYMENT AS A REGULAR EMPLOYEE WOULD NOT BE AUTHORIZED.

QUESTIONS 4 AND 5 ARE ANSWERED IN THE AFFIRMATIVE. SEE 27 COMP. DEC. 1031.