B-159992, AUG. 28, 1967

B-159992: Aug 28, 1967

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EMPLOYEES WHO REFUSE TO ACCOMPANY FUNCTION IN TRANSFER CASES AND WHO ARE PLACED IN FURLOUGH STATUS ARE CONSIDERED TO HOLD THEIR POSITIONS DURING FURLOUGH STATUS AND EMPLOYEES WHO ARE HIRED AT NEW LOCATION AS REPLACEMENTS SHOULD NOT BE REGARDED AS HOLDING SAME POSITION AS EMPLOYEES WHO REFUSED TRANSFER. THE HOLDING IN THAT DECISION IS QUOTED IN YOUR LETTER AS FOLLOWS: "DURING THE EXISTENCE OF THE FURLOUGH STATUS THE EMPLOYEE CONTINUES TO HOLD THE POSITION FROM WHICH FURLOUGHED. YOU SAY THAT THIS HOLDING HAS BEEN QUESTIONED AS NOT BEING GERMANE TO THE STATUS OF AN EMPLOYEE WHO IS PLACED ON FURLOUGH FOR REFUSAL TO ACCOMPANY HIS FUNCTION IN A TRANSFER OF FUNCTION SITUATION. IN THE LATTER SITUATION YOU SAY THAT IT IS INCONSISTENT TO HOLD HIS POSITION OPEN FOR HIM FOR THE ONE-YEAR FURLOUGH PERIOD.

B-159992, AUG. 28, 1967

COMPENSATION - SAVED PAY - TRANSFER OF FUNCTION DECISION TO DISBURSING OFFICER OF DEFENSE CONSTRUCTION SUPPLY, COLUMBUS, OHIO, RE STATUS OF POSITIONS OF EMPLOYEES WHO REFUSE TO ACCOMPANY FUNCTION IN TRANSFER CASES. EMPLOYEES WHO REFUSE TO ACCOMPANY FUNCTION IN TRANSFER CASES AND WHO ARE PLACED IN FURLOUGH STATUS ARE CONSIDERED TO HOLD THEIR POSITIONS DURING FURLOUGH STATUS AND EMPLOYEES WHO ARE HIRED AT NEW LOCATION AS REPLACEMENTS SHOULD NOT BE REGARDED AS HOLDING SAME POSITION AS EMPLOYEES WHO REFUSED TRANSFER. THE REPLACEMENT EMPLOYEES MAY BE REGARDED AS MERELY HOLDING IDENTICAL POSITIONS. DECISION OF JUNE 21, 1967 AFFIRMED.

TO R. A. YOUNG, DISBURSING OFFICER:

WE REFER TO YOUR LETTER OF JULY 21, 1967, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 21, 1967, B-159992. THE HOLDING IN THAT DECISION IS QUOTED IN YOUR LETTER AS FOLLOWS:

"DURING THE EXISTENCE OF THE FURLOUGH STATUS THE EMPLOYEE CONTINUES TO HOLD THE POSITION FROM WHICH FURLOUGHED. SALARY RETENTION, THEREFORE, WOULD NOT COMMENCE UNTIL THE DAY FOLLOWING THE EXPIRATION OF THE FURLOUGH PERIOD * * *.'

YOU SAY THAT THIS HOLDING HAS BEEN QUESTIONED AS NOT BEING GERMANE TO THE STATUS OF AN EMPLOYEE WHO IS PLACED ON FURLOUGH FOR REFUSAL TO ACCOMPANY HIS FUNCTION IN A TRANSFER OF FUNCTION SITUATION. ALSO YOU POINT OUT THAT THE REGULATIONS OF THE CIVIL SERVICE COMMISSION (SECTION 351.604) IN AUTHORIZING THE FURLOUGH OF AN EMPLOYEE IN A REDUCTION IN FORCE PROCEEDING WHEN IT EXPECTS TO RECALL HIM FOR DUTY WITHIN ONE YEAR MAKES A DISTINCTION BETWEEN THAT SITUATION AND THE SITUATION IN WHICH AN EMPLOYEE REFUSES TO ACCOMPANY HIS FUNCTION. IN THE LATTER SITUATION YOU SAY THAT IT IS INCONSISTENT TO HOLD HIS POSITION OPEN FOR HIM FOR THE ONE-YEAR FURLOUGH PERIOD, ESPECIALLY WHEN, IN FACT, DURING SUCH FURLOUGH PERIOD HIS POSITION MAY BE FILLED BY ANOTHER EMPLOYEE. FINALLY, YOU SAY THAT DEFERMENT OF THE EFFECTIVE DATE FOR SAVED PAY ENTITLEMENT UNTIL THE EXPIRATION OF THE FURLOUGH PERIOD IS NOT SUPPORTED BY LAW OR REGULATION.

IN THE CASES CONSIDERED IN OUR DECISION OF JUNE 21 THE EMPLOYEES WERE FURLOUGHED WHEN THEY REFUSED TO ACCOMPANY THEIR ACTIVITIES TO NEW LOCATIONS. THIS ACTION WAS TAKEN INSTEAD OF SEPARATING SUCH EMPLOYEES. THE EMPLOYMENT RELATIONSHIP OF EACH EMPLOYEE CONCERNED WAS CONSIDERED AS CONTINUING DURING HIS FURLOUGH STATUS NOT ONLY BY THIS OFFICE BUT BY THE CIVIL SERVICE COMMISSION AND BY THE DEFENSE SUPPLY AGENCY AS WELL. FACT, ENTITLEMENT TO SAVED PAY UNDER 5 U.S.C. 1107 (NOW 5 U.S.C. 5337) WAS DEPENDENT UPON THE CONTINUATION OF THE EMPLOYMENT STATUS AFTER COMMENCEMENT OF THE FURLOUGH. UPON RECONSIDERATION OF THE STATUS OF THE EMPLOYEES INVOLVED DURING THE PERIODS OF THEIR FURLOUGHS WE STILL ARE OF THE OPINION THAT THEY CONTINUED TO HOLD THEIR POSITIONS DURING SUCH PERIODS.

THE HOLDING THAT THE EMPLOYMENT STATUS OF THE EMPLOYEES CONCERNED CONTINUED FOR THE DURATION OF THEIR FURLOUGHS AND THAT SAVED PAY ENTITLEMENT IN TEMPORARY POSITIONS DOES NOT ATTACH UNTIL THE EXPIRATION OF THEIR FURLOUGHS WAS NOT INTENDED TO AND DOES NOT PRECLUDE THE DEFENSE SUPPLY AGENCY FROM EMPLOYING OTHER INDIVIDUALS AT THE PLACE WHERE THE FUNCTION IS TRANSFERRED TO REPLACE THE EMPLOYEES CARRIED IN A FURLOUGH STATUS BECAUSE OF THEIR REFUSAL TO ACCOMPANY THEIR FUNCTIONS TO SUCH PLACES. WE DOUBT THAT IT CAN BE SAID THAT THE EMPLOYEES HIRED AT THE NEW LOCATION AS REPLACEMENTS SHOULD BE REGARDED AS HOLDING THE SAME POSITIONS OCCUPIED BY THE EMPLOYEES IN A FURLOUGH STATUS. RATHER IT SEEMS MORE REASONABLE TO CONCLUDE THAT THE REPLACEMENT EMPLOYEES MERELY HOLD IDENTICAL POSITIONS. MOREOVER, WE ARE AWARE OF NO EXPRESS STATUTORY PROVISION PRECLUDING MORE THAN ONE EMPLOYEE FROM HOLDING A POSITION AT THE SAME TIME UNDER THE CIRCUMSTANCES HERE INVOLVED.