B-12925, OCTOBER 29, 1940, 20 COMP. GEN. 223

B-12925: Oct 29, 1940

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LEAVES OF ABSENCE - ANNUAL AND SICK - "TEMPORARY EMPLOYEES ON CONSTRUCTION WORK AT HOURLY RATES" A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT AN HOURLY RATE IS EXPRESSLY EXCLUDED FROM THE BENEFITS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14. HIS STATUS IS NOT CHANGED FROM TEMPORARY TO PERMANENT OR INDEFINITE BY REASON OF THE FACT HE HAS SERVED MORE THAN SIX MONTHS IN THE AGGREGATE UNDER HIS ORIGINAL AND SUCCESSIVE SUBSEQUENT APPOINTMENTS WHERE EACH OF THE APPOINTMENTS WAS FOR A PERIOD OF LESS THAN SIX MONTHS. 1940: IT HAVE YOUR COMMUNICATION OF OCTOBER 11. THE CONSTRUCTING QUARTERMASTER AT THIS STATION HAS PRESENTED A PAY ROLL FOR PAYMENT ON WHICH AMONG OTHER EMPLOYEES IS ONE M-SCOPE OPERATOR EMPLOYED ON CONSTRUCTION ACTIVITIES AT THIS STATION.

B-12925, OCTOBER 29, 1940, 20 COMP. GEN. 223

LEAVES OF ABSENCE - ANNUAL AND SICK - "TEMPORARY EMPLOYEES ON CONSTRUCTION WORK AT HOURLY RATES" A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT AN HOURLY RATE IS EXPRESSLY EXCLUDED FROM THE BENEFITS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND HIS STATUS IS NOT CHANGED FROM TEMPORARY TO PERMANENT OR INDEFINITE BY REASON OF THE FACT HE HAS SERVED MORE THAN SIX MONTHS IN THE AGGREGATE UNDER HIS ORIGINAL AND SUCCESSIVE SUBSEQUENT APPOINTMENTS WHERE EACH OF THE APPOINTMENTS WAS FOR A PERIOD OF LESS THAN SIX MONTHS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 29, 1940:

IT HAVE YOUR COMMUNICATION OF OCTOBER 11, 1940 (TENTH ENDORSEMENT), PRESENTING FOR DECISION THE QUESTION CONTAINED IN LETTER OF MAY 17, 1940, FROM THE FINANCE OFFICER, SAVANNA ORDNANCE DEPOT, L., TO THE CHIEF OF FINANCE, WAR DEPARTMENT, AS FOLLOWS:

1. THE CONSTRUCTING QUARTERMASTER AT THIS STATION HAS PRESENTED A PAY ROLL FOR PAYMENT ON WHICH AMONG OTHER EMPLOYEES IS ONE M-SCOPE OPERATOR EMPLOYED ON CONSTRUCTION ACTIVITIES AT THIS STATION. THIS EMPLOYEE WAS GIVEN A TEMPORARY APPOINTMENT ON OCTOBER 26, 1939, AT THE RATE OF 75 CENTS PER HOUR WHEN ACTUALLY EMPLOYED. THIS APPOINTMENT WAS MADE WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION AND HAS BEEN EXTENDED TO JUNE 26, 1940. THIS EMPLOYEE HAS BEEN PAID FOR ANNUAL LEAVE AND THIS OFFICE RAISES THE QUESTION AS TO WHETHER OR NOT HE IS ENTITLED TO SAME.

2. IT WILL BE NOTED FROM SECTION 23; PARAGRAPH 2, AR-35-3900, THAT TEMPORARY EMPLOYEES ENGAGED IN CONSTRUCTION WORK AT HOURLY RATES DO NOT COME WITHIN THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1936.

3. INFORMATION IS REQUESTED AS TO WHETHER OR NOT IT IS THE OPINION OF YOUR OFFICE THAT THIS EMPLOYEE IS ENTITLED TO LEAVE OF ABSENCE.

IN AN ENDORSEMENT DATED JUNE 19, 1940, FROM THE FINANCE OFFICER, SAVANNA ORDNANCE DEPOT TO THE CHIEF OF FINANCE, WAR DEPARTMENT, THERE ARE SET FORTH FACTS REGARDING THE STATUS OF THIS EMPLOYEE, AS FOLLOWS:

1. WITH REFERENCE TO THIRD ENDORSEMENT, YOU ARE ADVISED THAT AUTHORITY WAS GRANTED THE CONSTRUCTING QUARTERMASTER, SAVANNA ORDNANCE DEPOT, ON SEPTEMBER 6, 1939, BY THE CIVIL SERVICE COMMISSION FOR THE TEMPORARY APPOINTMENT OF THREE M-SCOPE OPERATORS FOR A PERIOD NOT TO EXCEED NINETY DAYS, THE APPOINTMENT BEING APPROVED UNDER SECTION 2, RULE VIII. OCTOBER 26, 1939, JOSEPH E. WINKLER WAS GIVEN TEMPORARY EMPLOYMENT AS M- SCOPE OPERATOR AT 75 CENTS PER HOUR UNDER THIS AUTHORITY. EXTENSIONS OF THIS APPOINTMENT WERE APPROVED BY THE CIVIL SERVICE COMMISSION AS FOLLOWS: JANUARY 17, 1940---------------------- --60 DAYS TO MARCH 26, 1940. MARCH 16, 1940-------------------------- 30 DAYS TO APRIL 26, 1940. APRIL 11, 1940---------------------------60 DAYS TO JUNE 26, 1940.

2. MR. WINKLER HAS BEEN CONTINUOUSLY EMPLOYED SINCE HIS ORIGINAL APPOINTMENT, AND IT IS THE OPINION OF THIS OFFICE THAT ALTHOUGH GIVEN A TEMPORARY APPOINTMENT, HIS APPOINTMENT CAN BE CLASSIFIED AS THAT OF AN INDEFINITE EMPLOYEE, THEREBY ENTITLING HIM TO LEAVE OF ABSENCE.

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. * * * ( ITALICS SUPPLIED.) SEE, ALSO, SECTION 2 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, CONTAINING A PROVISION, AS FOLLOWS:

* * * TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO ONE AND ONE QUARTER DAYS SICK LEAVE FOR EACH MONTH OF SERVICE. * * * ( ITALICS SUPPLIED.)

IT CAN THUS BE SEEN THAT BOTH LEAVE STATUTES EXPRESSLY EXCLUDE FROM THE BENEFITS OF ANNUAL AND SICK LEAVE "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES.'

PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTIONS 7 OF THE ANNUAL AND SICK LEAVE ACTS, THE PRESIDENT PROMULGATED REGULATIONS FOR THE ADMINISTRATION OF THE STATUTES, IN WHICH REGULATIONS THE TERM "TEMPORARY EMPLOYEES" IS DEFINED AS FOLLOWS:

"TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS. SEE SECTION 1 (C) OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, AND SECTION 1 (C) OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, BOTH DATED MARCH 29, 1940. EACH OF THE EARLIER REGULATIONS CONTAINED THE SAME DEFINITION. I FIND NOTHING, EITHER IN THE STATUTES OR IN THE REGULATIONS, FROM WHICH IT MAY BE CONCLUDED THAT THE DEFINITION IS NOT FOR APPLICATION IN DETERMINING WHETHER ANY PARTICULAR EMPLOYEES ARE TO BE CLASSED AS "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES.'

IN THE INSTANT CASE THE EMPLOYEE WAS ENGAGED ON CONSTRUCTION WORK, AND WAS PAID COMPENSATION AT THE RATE OF 75 CENTS PER HOUR. HIS ORIGINAL APPOINTMENT WAS FOR A DEFINITE PERIOD OF TIME LESS THAN 6 MONTHS AND HIS SERVICES WERE CONTINUED UNDER A SERIES OF SUBSEQUENT APPOINTMENTS, EACH FOR A PERIOD OF LESS THAN 6 MONTHS, THE AGGREGATE OF SERVICE UNDER ALL OF THE APPOINTMENTS BEING MORE THAN 6 MONTHS.

IN DECISION OF THIS OFFICE DATED APRIL 9, 1938, 17 COMP. GEN. 830, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE PERMANENT OR TEMPORARY CHARACTER OF A POSITION UNDER SECTION 6 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, RELATIVE TO THE TRANSFER OF ANNUAL LEAVE, IS DETERMINED BY THE STATUS OF THE EMPLOYEE APPOINTED TO OCCUPY THE SAME, AND THE TERM OF THE APPOINTMENT DETERMINES THE EMPLOYEE'S STATUS UNDER THE DEFINITIONS OF TEMPORARY AND PERMANENT EMPLOYEES IN THE REGULATIONS.

WHILE THIS OFFICE HELD IN DECISION OF JANUARY 7, 1939, 18 COMP. GEN. 596, THAT A TEMPORARY APPOINTMENT FOR 3 MONTHS WHICH HAS BEEN EXTENDED FOR ANOTHER 3 MONTHS UNDER AUTHORITY OF SECTION 2, OF RULE VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS, MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT FOR LEAVE PURPOSES, THE DECISION OF MAY 13, 1939, 18 COMP. GEN. 853, 854, HELD AS FOLLOWS:

* * * A SERIES OF ADMINISTRATIVE APPOINTMENTS EACH FOR A DEFINITE PERIOD NOT EXCEEDING 6 MONTHS (BUT THE SERIES OF APPOINTMENTS AGGREGATING MORE THAN 6 MONTHS) DOES NOT CHANGE THE STATUS OF THE EMPLOYEE FROM TEMPORARY TO PERMANENT OR EMERGENCY FOR LEAVE PURPOSES, AND ANNUAL AND SICK LEAVE IN SUCH A SITUATION MAY NOT BE ADVANCED. * * * NEITHER WOULD THE STATUS OF THE EMPLOYEE BE CHANGED FROM TEMPORARY TO INDEFINITE, AS CONTENDED IN THE CORRESPONDENCE FORWARDED WITH YOUR LETTER. IN OTHER WORDS, WHILE A SERIES OF TEMPORARY APPOINTMENTS FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING THE LEAVE CREDIT OF A TEMPORARY EMPLOYEE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER, THE STATUS OF THE EMPLOYEE IS NOT CHANGED FROM TEMPORARY TO PERMANENT OR INDEFINITE AS A RESULT OF THE FACT THAT THE AGGREGATE PERIOD OF SERVICE UNDER THE SERIES OF SUCH TEMPORARY APPOINTMENTS EXCEEDED 6 MONTHS. NOTWITHSTANDING THE NUMBER OF SUCCESSIVE TEMPORARY APPOINTMENTS, THE FACT REMAINS THAT THE EMPLOYEE WAS APPOINTED FOR "DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS" WITHIN THE MEANING OF THE DEFINITION OF A TEMPORARY EMPLOYEE, AS PRESCRIBED IN THE REGULATIONS.

ACCORDINGLY, YOU ARE ADVISED THAT THE EMPLOYEE IN THE INSTANT CASE WAS A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT AN HOURLY RATE OF COMPENSATION WITHIN THE MEANING OF THE CITED STATUTES AND REGULATIONS AND, THEREFORE, IS EXPRESSLY EXCLUDED THEREBY FROM THE BENEFITS OF ANNUAL AND SICK LEAVE.