B-10382, MAY 25, 1940, 19 COMP. GEN. 955

B-10382, MAY 25, 1940, 19 COMP. GEN. 955

LEAVES OF ABSENCE - ADMINISTRATIVE AUTHORITY - "NONWORK DAYS" UNDER SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IT IS WITHIN THE AUTHORITY OF A DEPARTMENT HEAD TO REQUIRE ANY OR ALL EMPLOYEES OF A PARTICULAR UNIT OR OF THE DEPARTMENT, TO TAKE ANNUAL LEAVE AT ANY TIME AND FOR ANY PERIOD WITHIN THE LIMITATIONS OF THE STATUTE AS THE NEEDS OF THE SERVICE MAY REQUIRE. DAYS WHICH ARE A PART OF AN EMPLOYEE'S REGULAR TOUR OF DUTY AND WHICH OCCUR DURING A PERIOD WHEN FIELD ESTABLISHMENTS ARE CLOSED FOR ADMINISTRATIVE REASONS ARE NOT "NONWORK" DAYS FOR WHICH NO CHARGE SHALL BE MADE AGAINST LEAVE WITHIN THE MEANING OF THE AMENDMENT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND THE REGULATIONS ISSUED PURSUANT THERETO, UNLESS THE HEAD OF THE DEPARTMENT FAILS TO EXERCISE HIS STATUTORY AUTHORITY TO REQUIRE THE EMPLOYEES TO TAKE LEAVE FOR SUCH DAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MAY 25, 1940:

I HAVE YOUR LETTER OF MAY 17, 1940, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 11 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, EFFECTIVE MARCH 2, 1940, WHICH READS AS FOLLOWS:

"SEC. 11. EMPLOYEES SHALL BE CHARGED WITH ANNUAL LEAVE ONLY FOR ABSENCES ON DAYS UPON WHICH THEY WOULD OTHERWISE WORK AND RECEIVE PAY. NO CHARGE SHALL BE MADE AGAINST ANNUAL LEAVE FOR ABSENCE ON SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER: PROVIDED, THAT IN THE CASE OF EMPLOYEES WHOSE TERMS OR CONDITIONS OF EMPLOYMENT REQUIRE THAT THEY REGULARLY WORK ON A SUNDAY OR HOLIDAY AND BE OFF DUTY ON ANOTHER DAY OF THE WEEK IN LIEU THEREOF, THE SUNDAY OR HOLIDAY OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE SHALL BE CHARGED AS ANNUAL LEAVE AND THE LIEU DAY SHALL NOT BE SO CHARGED.'; AND SECTION 12 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO.8385, DATED MARCH 29, 1940, EFFECTIVE MARCH 2, 1940, WHICH READS AS FOLLOWS:

"SEC. 12. EMPLOYEES SHALL BE CHARGED FOR SICK LEAVE ONLY FOR ABSENCE ON ACCOUNT OF ILLNESS ON DAYS UPON WHICH THEY WOULD OTHERWISE WORK AND RECEIVE PAY. ABSENCE ON ACCOUNT OF ILLNESS ON SUNDAYS NOT OCCURRING WITHIN A REGULAR TOUR OF DUTY, ON HOLIDAYS, AND ON ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR EXECUTIVE OR ADMINISTRATIVE ORDER SHALL NOT BE CHARGED AS SICK LEAVE.'

IT HAS BEEN THE PRACTICE OF SEVERAL FIELD ESTABLISHMENTS OF THE ORDNANCE DEPARTMENT, ESPECIALLY THOSE ENGAGED ON MANUFACTURING ACTIVITIES, WHICH ARE OPERATING ON A 5-DAY, 40-HOUR WEEK BASIS UNDER THE PROVISIONS OF THE ACT OF MARCH 28, 1934, 48 STAT. 509, TO SHUT DOWN FOR A PERIOD OF FROM TWO TO THREE WEEKS THE EARLY PART OF EACH FISCAL YEAR FOR THE PURPOSES OF GRANTING ANNUAL LEAVE TO EMPLOYEES; OF TAKING INVENTORY; AND MAKING NEEDED REPAIRS TO MACHINERY AND UTILITIES. DURING THE SHUT-DOWN PERIOD THE ONLY EMPLOYEES WHO RENDER SERVICE ARE GUARDS AND FIREFIGHTERS FOR THE PROTECTION OF THE ESTABLISHMENT AND THOSE NEEDED FOR SUCH PURPOSES AS TO CARRY ON CERTAIN ADMINISTRATIVE FUNCTIONS; TO MAKE NEEDED REPAIRS TO FACILITIES; TO TAKE INVENTORY; ETC. EMPLOYEES WHOSE SERVICES ARE NOT REQUIRED DURING THIS PERIOD ARE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY, IF THEY HAVE SUFFICIENT ANNUAL LEAVE TO THEIR CREDIT. OTHERWISE THEY ARE GRANTED LEAVE OF ABSENCE WITHOUT PAY.

THIS PRACTICE HAS ENABLED THE ORDNANCE DEPARTMENT TO PLAN AND MAINTAIN SCHEDULES OF PRODUCTION EFFICIENTLY WITH A MINIMUM AMOUNT OF INTERRUPTION DUE TO REPAIRS AND ABSENCE OF EMPLOYEES FOR LEAVE PURPOSES. IT HAS ALSO PERMITTED A GREAT NUMBER OF EMPLOYEES TO PLAN AND TAKE ANNUAL LEAVE OF ABSENCE AT A GIVEN TIME EACH YEAR, WHICH HAS BEEN TO THE BEST INTEREST OF THE DEPARTMENT AND IN ACCORDANCE WITH THE WISHES OF A MAJORITY OF THE EMPLOYEES.

THE FOLLOWING QUESTIONS HAVE NOW ARISEN:

(1) ARE DAYS UPON WHICH FIELD ESTABLISHMENTS ARE CLOSED FOR ADMINISTRATIVE REASONS TO BE CONSIDERED "NONWORK" DAYS, FOR WHICH NO CHARGE SHALL BE MADE AGAINST ANNUAL OR SICK LEAVE, WITHIN THE MEANING OF SECTION 11 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, AND SECTION 12 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940, WHEN SUCH DAYS ARE A PART OF THE TOUR OF DUTY OF REGULAR EMPLOYEES WORKING ON A 5-DAY, 40-HOUR WEEK BASIS AND ARE DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY.

(2) ARE "NONWORK DAYS ESTABLISHED BY * * * ADMINISTRATIVE ORDER," AS STATED IN THE EXECUTIVE ORDERS REFERRED TO ABOVE, MEANT TO BE ONLY DAYS WHICH ARE ESTABLISHED BY ADMINISTRATIVE ORDER AS NOT COMPRISING A PART OF THE REGULAR TOUR OF DUTY OF EMPLOYEES?

THE ACT OF MARCH 2, 1940, PUBLIC, 419, 54 STAT. 38, PROVIDES AS FOLLOWS:

THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.

IN SENATE REPORT NO. 1136 ACCOMPANYING S. 2876, WHICH BILL WAS ENACTED INTO THE ABOVE-QUOTED LAW, THE PURPOSE OF THE BILL IS STATED, AS FOLLOWS:

THE PURPOSE OF THIS AMENDMENT IS TO EXTEND TO EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, AND OTHER ESTABLISHMENTS OPERATING ON A 5-DAY WEEK THE SAME ANNUAL AND SICK LEAVE RIGHTS GRANTED OTHER EMPLOYEES OF THE GOVERNMENT. UNDER THE PRESENT INTERPRETATION OF THE ANNUAL AND SICK LEAVE ACTS WHEN AN EMPLOYEE ON A 5-DAY WEEK SCHEDULE WHO DOES NOT, OF COURSE, WORK ON SATURDAY, IS ON ANNUAL OR SICK LEAVE ANY SATURDAYS FALLING WITHIN THAT LEAVE ARE COUNTED AGAINST DAYS OF ANNUAL AND SICK LEAVE GRANTED EMPLOYEES BY LAW. ON THE OTHER HAND EMPLOYEES ON A 5 1/2-DAY SCHEDULE DO NOT HAVE ANY SATURDAY AFTERNOONS COMING WITHIN THE PERIOD OF THEIR ABSENCE FROM DUTY COUNTED AGAINST THEIR LEAVE ALLOWANCE. YOUR COMMITTEE FEEL THAT IT WAS NOT THE INTENT OF CONGRESS TO CONSIDER NONWORK DAYS COMING WITHIN A PERIOD OF LEAVE AS APART OF SUCH LEAVE.

THE ACT OF MARCH 2, 1940, AS A MATTER OF FACT, SERVES TO DEFINE THE WORD,"DAYS," AS USED IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, AND THERE IS NOT INDICATED THEREBY ANY PURPOSE OR INTENT TO MODIFY IN ANY OTHER RESPECT THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936.

SECTION 1 OF THE ANNUAL LEAVE ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * THE ANNUAL LEAVE HEREIN AUTHORIZED SHALL BE GRANTED AT SUCH TIMES AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE. * * * UNDER THAT STATUTORY PROVISION IT IS WITHIN THE AUTHORITY OF THE SECRETARY OF WAR TO REQUIRE ANY INDIVIDUAL EMPLOYEE, OR CLASS OF EMPLOYEES, OR ANY OR ALL EMPLOYEES OF A PARTICULAR UNIT OR OF THE DEPARTMENT, TO TAKE ANNUAL LEAVE AT ANY TIME AND FOR ANY PERIOD WITHIN THE LIMITATIONS OF THE STATUTE AS THE NEEDS OF THE SERVICE MAY REQUIRE. THAT AUTHORITY IS NOT IN ANY WAY AFFECTED BY THE ACT OF MARCH 2, 1940, OR BY THE CHANGES MADE IN THE ANNUAL AND SICK LEAVE REGULATIONS INCORPORATED IN EXECUTIVE ORDERS NOS. 8384 AND 8385, ISSUED PURSUANT TO THE NEW STATUTE. THAT BEING SO, NEITHER THE SAID ACT NOR THE EXECUTIVE ORDERS WOULD PRECLUDE THE WAR DEPARTMENT FROM CONTINUING THE PRACTICE OF SHUTTING DOWN FIELD ESTABLISHMENTS OF THE ORDNANCE DEPARTMENT FOR THE PURPOSES STATED IN YOUR LETTER, AND REQUIRING EMPLOYEES TO TAKE ANNUAL LEAVE DURING THE PERIOD OF SHUT-DOWN. IN SUCH CIRCUMSTANCES, THE DAYS OCCURRING WITHIN THE SHUT-DOWN PERIOD WOULD NOT BE REGARDED AS "NONWORK DAYS ESTABLISHED BY * * * ADMINISTRATIVE ORDER," WITHIN THE MEANING OF THE LEAVE ACT AND REGULATIONS. SO FAR AS THE ADMINISTRATIVE PROBLEM PRESENTED IN YOUR LETTER IS CONCERNED, QUESTION (1) IS ANSWERED IN THE NEGATIVE.

REFERRING TO QUESTION (2), NOTWITHSTANDING THE STATEMENT IN THE SENATE REPORT, SUPRA, THE TERMS OF THE ACT OF MARCH 2, 1940, AND THE LANGUAGE OF SECTIONS OF THE ANNUAL AND SICK LEAVE REGULATIONS QUOTED IN YOUR LETTER--- WHICH SECTIONS FOLLOW SUBSTANTIALLY THE WORDING OF THE STATUTE--- DO NOT JUSTIFY, UNDER ALL CIRCUMSTANCES, RESTRICTING THE MEANING OF THE WORDS "NONWORK DAYS ESTABLISHED BY * * * ADMINISTRATIVE ORDER" TO DAYS "NOT COMPRISING A PART OF THE REGULAR TOUR OF DUTY OF MPLOYEES" (QUOTING FROM QUESTION (2) ). THERE IS FOR NOTING THAT THE STATUTE REGULATIONS EXCLUDE FROM DAYS OF LEAVE " SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY" BUT THAT WITH REGARD TO NONWORK DAYS ESTABLISHED EITHER BY FEDERAL STATUTE, EXECUTIVE ORDER, OR ADMINISTRATIVE ORDER, NO SUCH RESTRICTION HAS BEEN MADE. THAT IS TO SAY, A SUNDAY TO BE EXCLUDED FROM DAYS OF LEAVE MUST OCCUR OUTSIDE THE REGULAR TOUR OF DUTY OF EMPLOYEES, BUT A NONWORK DAY ESTABLISHED BY ANY ONE OF THE THREE AUTHORITIES STATES--- STATUTE, EXECUTIVE ORDER, OR ADMINISTRATIVE ORDER--- MAY BE EXCLUDED FROM LEAVE WHETHER IT OCCURS WITHIN OR WITHOUT THE REGULAR TOUR OF DUTY OF EMPLOYEES. IF A STATUTE OR EXECUTIVE ORDER SHOULD CLOSE THE DEPARTMENTS FOR ONE OR MORE DAYS WITHIN THE REGULAR TOUR OF DUTY OF EMPLOYEES, SUCH NONWORK DAYS MAY NOT BE CHARGED AS ANNUAL OR SICK LEAVE. LIKEWISE, IF THE HEAD OF A DEPARTMENT, UNDER PROPER AUTHORITY, SHOULD CLOSE THE DEPARTMENT OR ANY UNIT THEREOF ON A DAY OR DAYS WITHIN A REGULAR TOUR OF DUTY OF EMPLOYEES, AND SHOULD NOT REQUIRE EMPLOYEES TO TAKE ANNUAL LEAVE, THE NONWORK DAYS ESTABLISHED BY SUCH AN ADMINISTRATIVE ORDER WOULD NOT BE CHARGED TO LEAVE. ON THE OTHER HAND, IF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT EXERCISES HIS STATUTORY AUTHORITY TO REQUIRE ALL OR ANY PART OF THE EMPLOYEES UNDER HIS JURISDICTION TO TAKE ANNUAL LEAVE ON A PARTICULAR DAY OR DAYS WHICH BUT FOR SUCH ACTION WOULD BE WITHIN THE REGULAR TOUR OF DUTY OF EMPLOYEES--- AS HE WOULD HAVE A RIGHT TO DO UNDER SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936--- SUCH DAY OR DAYS WOULD BE THE SAME AS DAYS OF DUTY WITHIN THE MEANING OF THE LEAVE LAWS AND REGULATIONS (13 COMP. GEN. 370; 17 ID. 906), AND WOULD NOT BE REGARDED AS "NONWORK DAYS ESTABLISHED BY * * * ADMINISTRATIVE ORDER" WITHIN THE MEANING OF THE LEAVE ACT OF MARCH 2, 1940, AND THE CURRENT LEAVE REGULATIONS.