A-77697, JULY 27, 1936, 16 COMP. GEN. 74

A-77697: Jul 27, 1936

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NOTWITHSTANDING IT MAY HAVE BEEN PREVIOUSLY APPLIED FOR AND DENIED. IS. AS FOLLOWS: YOUR ANSWER TO THE FOLLOWING QUESTIONS IS REQUESTED: 1. IS IT MANDATORY ON THE NATIONAL LABOR RELATIONS BOARD TO GRANT TO AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935. IS IT MANDATORY ON THE BOARD TO GRANT AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935. IS IT MANDATORY ON THE BOARD TO GRANT AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935. IS IT MANDATORY ON THE BOARD TO GRANT AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935. CERTAIN EMPLOYEES OF THE PRESENT NATIONAL LABOR RELATIONS BOARD WERE TRANSFERRED TO IT BY SEC. 4 (B) OF THE NATIONAL LABOR RELATIONS ACT (48 STAT. 449).

A-77697, JULY 27, 1936, 16 COMP. GEN. 74

LEAVES OF ABSENCE - ANNUAL - ACCRUALS PRIOR TO ACT OF MARCH 14, 1936 THE GRANTING OF ANNUAL LEAVE AUTHORIZED BY THE ACT OF MARCH 14, 1936, INCLUDING LEAVE ACCRUED AND NOT TAKEN DURING PRIOR YEARS, NOTWITHSTANDING IT MAY HAVE BEEN PREVIOUSLY APPLIED FOR AND DENIED, IS, BY SAID ACT, MADE MANDATORY, BUT THE ADMINISTRATIVE OFFICE MAY DETERMINE WHEN LEAVE MAY BEST BE GRANTED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, JULY 27, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 27, 1936, AS FOLLOWS:

YOUR ANSWER TO THE FOLLOWING QUESTIONS IS REQUESTED:

1. IN VIEW OF THE TERMS OF PUBLIC, NO. 471, 74TH CONGRESS, WHICH STATES IN PART---

"* * * ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.'

IS IT MANDATORY ON THE NATIONAL LABOR RELATIONS BOARD TO GRANT TO AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935, WHILE IN THE EMPLOY OF THE BOARD, AND WHICH HAD NOT BEEN DISALLOWED BY THE BOARD BEFORE MARCH 14, 1936, THE EFFECTIVE DATE OF PUBLIC, NO. 471?

2. IS IT MANDATORY ON THE BOARD TO GRANT AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935, WHILE IN THE EMPLOY OF THE BOARD, AND WHICH HAD BEEN DISALLOWED BY THE BOARD BEFORE MARCH 14, 1936?

3. IS IT MANDATORY ON THE BOARD TO GRANT AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935, WHILE IN THE EMPLOY OF ANOTHER AGENCY OF THE GOVERNMENT, AND WHICH HAD NOT BEEN DISALLOWED BY THE BOARD BEFORE MARCH 14, 1936?

4. IS IT MANDATORY ON THE BOARD TO GRANT AN EMPLOYEE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT DURING THE CALENDAR YEAR 1935, WHILE IN THE EMPLOY OF ANOTHER AGENCY OF THE GOVERNMENT AND WHICH HAD BEEN DISALLOWED BY THE BOARD BEFORE MARCH 14, 1936?

5. CERTAIN EMPLOYEES OF THE PRESENT NATIONAL LABOR RELATIONS BOARD WERE TRANSFERRED TO IT BY SEC. 4 (B) OF THE NATIONAL LABOR RELATIONS ACT (48 STAT. 449), THE RELEVANT PORTION OF THIS SUBSECTION STATING:

"ALL EMPLOYEES OF THE OLD BOARD SHALL BE TRANSFERRED TO AND BECOME EMPLOYEES OF THE BOARD WITH SALARIES UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITHOUT ACQUIRING BY SUCH TRANSFER A PERMANENT OR CIVIL SERVICE STATUS.'

IS THE ANNUAL LEAVE WHICH HAD ACCRUED TO THE CREDIT OF THESE EMPLOYEES BEFORE AUGUST 27, 1935, THE DATE THE BOARD MEMBERS TOOK OFFICE, AND THUS THE EFFECTIVE DATE OF THE TRANSFER OF THE EMPLOYEES, IN THE SAME STATUS AS LEAVE EARNED WHILE IN THE EMPLOY OF ANOTHER AGENCY, OR IS IT IN THE SAME STATUS AS LEAVE EARNED WHILE IN THE EMPLOY OF THIS BOARD?

SECTION 215 OF THE ACT OF JUNE 30, 1932, 47 STAT. 407, PROVIDED:

HEREAFTER NO CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO RECEIVES ANNUAL LEAVE WITH PAY SHALL BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY IN EXCESS OF FIFTEEN DAYS IN ANY ONE YEAR, EXCLUDING SUNDAYS AND LEGAL HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR MAY BE CUMULATIVE FOR ANY SUCCEEDING YEAR: * * *

WHILE THE GRANTING OF LEAVE UNDER THE ABOVE ACT WAS DISCRETIONARY WITH THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT INVOLVED, ANY LEAVE WHICH WAS NOT GRANTED DURING THE LEAVE YEAR 1935, IRRESPECTIVE OF WHETHER THE FAILURE TO RECEIVE THE LEAVE WAS DUE TO THE FAILURE TO APPLY FOR IT ORDUE TO THE DENIAL OF SUCH LEAVE BY THE ADMINISTRATIVE OFFICE, ACCRUED TO THE CREDIT OF THE EMPLOYEE. THE ACT OF MARCH 14, 1936 (49 STAT. 1161), MAKES THE GRANTING OF LEAVE MANDATORY, AND INCORPORATES WITHIN THE MANDATORY PROVISION ANY ACCUMULATED LEAVE ACCRUED AND NOT TAKEN DURING THE PRIOR YEARS. OF COURSE, NOTWITHSTANDING THE MANDATORY CHARACTER OF THE LEAVE, THE ADMINISTRATIVE OFFICE MAY STILL EXERCISE DISCRETION AS TO WHEN LEAVE MAY BEST BE GRANTED. SEE SECTION 8 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PRESCRIBED IN EXECUTIVE ORDER NO. 7409, DATED JULY 9, 1936. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

QUESTIONS 3, 4, AND 5 WOULD APPEAR TO BE ANSWERED BY SECTION 5 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, ABOVE REFERRED TO, WHICH SECTION PROVIDES:

EMPLOYEES TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH ACCUMULATED LEAVE AND CHARGED WITH UNACCRUED LEAVE ADVANCED.