B-27680, AUGUST 5, 1942, 22 COMP. GEN. 119

B-27680: Aug 5, 1942

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- SHOULD BE CHARGED 2 DAYS' ANNUAL OR SICK LEAVE FOR AN ABSENCE ON ANNUAL OR SICK LEAVE FOR ONE SUCH DUTY PERIOD AND AN ABSENCE FOR 1 WEEK SHOULD BE CHARGED AS 7 DAYS' LEAVE WHERE SUNDAYS ARE INCLUDED WITHIN THE REGULAR TOUR OF DUTY. 1942: I HAVE YOUR LETTER OF JULY 23. WHICH IS AS FOLLOWS (QUOTING FROM THE SYLLABUS): "WHERE THE WEEKLY TOUR OF DUTY OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SUBJECT TO THE FORTY-HOUR WEEK LAW IS CHANGED. SHOULD BE CHARGED ON A BASIS OF THE LENGTH OF THE WORK DAY IN FORCE WHEN THE LEAVE IS TAKEN. THE DENOMINATOR OF WHICH IS THE TOTAL NUMBER OF WORK HOURS CONSTITUTING THE DAY. IF THE RULING OF 20 C.G. 170 IS STRICTLY ADHERED TO. AN EMPLOYEE WHO IS ON LEAVE OF ABSENCE FROM A TWENTY-FOUR HOUR SHIFT WILL BE CHARGED FOR ONE DAY'S LEAVE.

B-27680, AUGUST 5, 1942, 22 COMP. GEN. 119

LEAVE OF ABSENCE - ANNUAL AND SICK - EMPLOYEES ON 24-HOUR DUTY WITH 24 HOUR REST PERIODS THE WORD "DAYS" AS USED IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, MEANS CALENDAR DAYS AND NOT WORK DAYS, AND, THEREFORE, EMPLOYEES ASSIGNED TO SHIFTS OF 24 HOURS OF CONTINUOUS DUTY ON ALTERNATE DAYS, FROM 8 P.M. ONE DAY UNTIL 8 P.M. THE FOLLOWING DAY, WITH A 24-HOUR REST PERIOD IN BETWEEN--- THUS WORKING A PART OF EACH CALENDAR DAY--- SHOULD BE CHARGED 2 DAYS' ANNUAL OR SICK LEAVE FOR AN ABSENCE ON ANNUAL OR SICK LEAVE FOR ONE SUCH DUTY PERIOD AND AN ABSENCE FOR 1 WEEK SHOULD BE CHARGED AS 7 DAYS' LEAVE WHERE SUNDAYS ARE INCLUDED WITHIN THE REGULAR TOUR OF DUTY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 5, 1942:

I HAVE YOUR LETTER OF JULY 23, 1942, AS FOLLOWS:

THE ACT OF MARCH 2, 1940 ( PUBLIC LAW 419--- 76TH CONGRESS), AMENDS THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936 BY DEFINING LEAVE DAYS 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.'

YOUR DECISION OF SEPTEMBER 21, 1940, 20 C.G. 170, HOLDS THAT THIS PROVISION OF LAW SHALL BE INTERPRETED IN LINE WITH THE RULING FOUND IN 16 C.G. 600, WHICH IS AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"WHERE THE WEEKLY TOUR OF DUTY OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SUBJECT TO THE FORTY-HOUR WEEK LAW IS CHANGED, FOR ADMINISTRATIVE REASONS, FROM 5 DAYS OF 8 HOURS EACH, MONDAY TO FRIDAY, INCLUSIVE, TO 5 DAYS OF 7 HOURS EACH, MONDAY TO FRIDAY, INCLUSIVE, AND 5 HOURS ON SATURDAY, ANNUAL AND SICK LEAVE, BOTH CURRENT AND ADVANCED, SHOULD BE CHARGED ON A BASIS OF THE LENGTH OF THE WORK DAY IN FORCE WHEN THE LEAVE IS TAKEN, A FULL WORK DAY'S ABSENCE, REGARDLESS OF THE NUMBER OF WORK HOURS CONSTITUTING THE DAY, TO BE COMPUTED AS ONE DAY'S LEAVE, A PARTIAL DAY AS A FRACTION OF A DAY, THE DENOMINATOR OF WHICH IS THE TOTAL NUMBER OF WORK HOURS CONSTITUTING THE DAY, AND THE NUMERATOR THE NUMBER OF WORK HOURS' ABSENCE THEREON.'

IN VIEW OF THE PECULIAR NATURE OF THE DUTIES PERFORMED, IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT FIREFIGHTERS IN FIELD ESTABLISHMENTS OF THIS DEPARTMENT SHALL BE ON DUTY TWELVE HOURS PER DAY, SEVEN DAYS PER WEEK. IN CERTAIN INSTANCES, HOWEVER, LOCAL CONDITIONS REQUIRE THAT SUCH EMPLOYEES BE ASSIGNED TO SHIFTS OF TWENTY-FOUR HOURS OF CONTINUOUS DUTY ON ALTERNATE DAYS, FROM 8 P.M. ONE DAY UNTIL 8 P.M. THE FOLLOWING DAY, WITH A 24-HOUR REST PERIOD IN BETWEEN.

THE QUESTION HAS BEEN PRESENTED TO THIS OFFICE AS TO THE METHOD OF COMPUTING SICK AND ANNUAL LEAVE FOR THOSE EMPLOYEES WHOSE TOUR OF DUTY CONSISTS OF A FULL TWENTY-FOUR HOUR PERIOD ON ALTERNATE DAYS. IF THE RULING OF 20 C.G. 170 IS STRICTLY ADHERED TO, AN EMPLOYEE WHO IS ON LEAVE OF ABSENCE FROM A TWENTY-FOUR HOUR SHIFT WILL BE CHARGED FOR ONE DAY'S LEAVE, AND IF ABSENT FOR TWO WEEKS, HE WILL BE CHARGED FOR SEVEN DAYS' LEAVE. IF, HOWEVER, AN EMPLOYEE PERFORMING IDENTICAL SERVICES BUT ASSIGNED TO SEVEN TWELVE-HOUR SHIFTS PER WEEK IS ABSENT FOR THE SAME NUMBER OF HOURS OR WEEKS, HE WILL BE CHARGED FOR TWO DAYS' AND FOURTEEN DAYS' LEAVE, RESPECTIVELY. IT IS SUBMITTED THAT SUCH A PRACTICE, IF ADHERED TO, WILL WORK INJUSTICE ON THE LATTER GROUP. TO ALLOW A TWENTY- FOUR HOUR TOUR OF DUTY TO BE CONSIDERED AS ONE "DAY" FOR THE PURPOSE OF COMPUTING LEAVE WOULD, IN REALITY, HAVE THE EFFECT OF EXTENDING TO SUCH EMPLOYEES TWICE AS MUCH LEAVE AS IS GRANTED TO OTHERS IN THE SAME EMPLOYMENT CATEGORY.

IT WOULD SEEM THAT AN EQUITABLE SOLUTION TO THE PROBLEM MIGHT BE REACHED BY CONSIDERING THE TWENTY-FOUR HOUR TOUR OF DUTY AS TWO "DAYS" WITHIN THE MEANING OF THE LEAVE REGULATIONS, BUT SERVED CONTINUOUSLY. SUCH AN INTERPRETATION, HOWEVER, DOES NOT APPEAR TO BE CONSISTENT WITH THE DECISIONS CITED ABOVE. YOUR OPINION IS THEREFORE REQUESTED AS TO THE PROPER METHOD OF CHARGING LEAVE TO EMPLOYEES IN THESE POSITIONS.

YOUR LETTER WOULD APPEAR TO INDICATE A MISCONCEPTION OF THE MEANING OF THE WORD "DAYS" AS USED IN THE ANNUAL AND SICK LEAVE STATUTES, AS AMENDED. IN DECISION OF MAY 4, 1938, 17 COMP. GEN. 906, IT WAS HELD (QUOTING FROM THE SYLLABUS):

"DAYS" AS USED IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, MEANS CALENDAR DAYS AND NOT WORK DAYS.

AN EMPLOYEE WHO IS "ASSIGNED TO SHIFTS OF TWENTY-FOUR HOURS OF CONTINUOUS DUTY ON ALTERNATE DAYS, FROM 8 P.M. ONE DAY UNTIL 8 P.M. THE FOLLOWING DAY, WITH A 24-HOUR REST PERIOD IN BETWEEN" (QUOTING FROM THE THIRD PARAGRAPH OF YOUR LETTER) WORKS A PART OF EVERY CALENDAR DAY OF THE WEEK. AN ABSENCE ON ANNUAL OR SICK LEAVE FROM 8 P.M. ONE CALENDAR DAY TO 8 P.M. THE NEXT CALENDAR DAY DURING THE ENTIRE TOUR OF DUTY ON 2 SUCCEEDING CALENDAR DAYS, SHOULD BE CHARGED AS 2 DAYS' ANNUAL OR SICK LEAVE. ABSENCE OF 1 WEEK WOULD BE CHARGEABLE AS 7 DAYS' LEAVE AND ABSENCE OF 2 WEEKS WOULD BE CHARGEABLE AS 14 DAYS' LEAVE, IT BEING UNDERSTOOD THAT SUNDAYS FOR THESE EMPLOYEES "OCCUR WITHIN A REGULAR TOUR OF DUTY" (QUOTING FROM THE ACT OF MARCH 2, 1940, 54 STAT. 38). SEE ALSO, SECTION 11 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 12 OF THE SICK LEAVE REGULATIONS. IS TO BE UNDERSTOOD, OF COURSE, THAT ABSENCE ON A HOLIDAY OCCURRING WITHIN A REGULAR TOUR OF DUTY IS NOT CHARGEABLE AS ANNUAL OR SICK LEAVE. COMP. GEN. 901.

ACCORDINGLY, THE SOLUTION SUGGESTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER NOT ONLY IS ,EQUITABLE" AS STATED, BUT CONSTITUTES THE ONLY PROPER LEGAL PROCEDURE, AND IS ENTIRELY CONSISTENT WITH THE RULES STATED IN THE DECISIONS OF THIS OFFICE CITED IN YOUR LETTER.