B-37589, OCTOBER 23, 1943, 23 COMP. GEN. 305

B-37589, OCTOBER 23, 1943, 23 COMP. GEN. 305

AMERICAN NATIONAL RED CROSS - STATUS; REEMPLOYMENT, ETC., RIGHTS OF EMPLOYEES TRANSFERRED FROM FEDERAL AGENCIES THE AMERICAN NATIONAL RED CROSS, A CORPORATION CHARTERED UNDER THE ACT OF JANUARY 5, 1905, AS AMENDED, IS NOT A " FEDERAL SERVICE" WITHIN THE MEANING OF THE PROVISION IN SECTION 6 OF THE ANNUAL LEAVE REGULATIONS RESPECTING THE RECREDITING OF ACCUMULATED AND ACCRUED LEAVE OF EMPLOYEES WHO ARE REAPPOINTED TO POSITIONS WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AFTER HAVING BEEN EMPLOYED IN POSITIONS IN THE FEDERAL SERVICE NOT WITHIN THE PURVIEW OF SAID ACT. PERSONNEL OF THE AMERICAN NATIONAL RED CROSS ARE NOT "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SECTIONS 1 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, RESPECTIVELY, AND ACCORDINGLY, SUCH PERSONNEL ARE NOT TO BE REGARDED AS COMING WITHIN ANY OF THE PROVISIONS OF THE SAID ACTS OR THE EXECUTIVE REGULATIONS ISSUED PURSUANT THERETO. THE AMERICAN NATIONAL RED CROSS IS NOT SUCH AN INSTRUMENTALITY OF THE UNITED STATES AS TO BRING AN EMPLOYEE THEREOF WITHIN THE SCOPE OF THE VARIOUS DUAL COMPENSATION STATUTES SO AS TO PROHIBIT SUCH AN EMPLOYEE FROM RECEIVING PAY FROM THE RED CROSS WHILE IN A LEAVE-WITH PAY STATUS FROM A FEDERAL AGENCY. AN EMPLOYEE TRANSFERRED UNDER AUTHORITY DERIVED FROM THE PROVISIONS OF WAR MANPOWER COMMISSION DIRECTIVE NO. 10 AND EXECUTIVE ORDERS NOS. 9063 AND 9243 FROM HIS FEDERAL POSITION TO THE AMERICAN NATIONAL RED CROSS "AS AN ESSENTIAL ACTIVITY CARRIED ON BY A PRIVATE ENTERPRISE" WITHIN THE MEANING OF SAID DIRECTIVE IS ENTITLED TO THE REEMPLOYMENT BENEFITS--- INCLUDING THE RIGHT TO HAVE HIS UNUSED ANNUAL LEAVE RECREDITED--- PRESCRIBED BY THE WAR SERVICE REGULATIONS IN CONNECTION WITH SUCH TRANSFERS, UPON MEETING ALL OF THE TERMS AND CONDITIONS OF SAID REGULATIONS REGARDING REEMPLOYMENT IN THE AGENCY FROM WHICH TRANSFERRED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, OCTOBER 23, 1943:

I HAVE YOUR LETTER OF OCTOBER 8, 1943, AS FOLLOWS:

MR. WILFRED DE ST. AUBIN, OF THIS AGENCY, HAS BEEN, BY THE ACTION OF THE CIVIL SERVICE COMMISSION, TRANSFERRED TO THE AMERICAN RED CROSS, EFFECTIVE SEPTEMBER 13, 1943. SUCH TRANSFER WAS EFFECTED UNDER AUTHORITY DERIVED FROM THE PROVISIONS OF THE WAR MANPOWER COMMISSION DIRECTIVE NO. 10 AND EXECUTIVE ORDERS NOS. 9243 AND 9063.

THE APPROPRIATE PROVISION OF THE WAR MANPOWER COMMISSION DIRECTIVE NO. 10 STIPULATES:

"II. WHENEVER THE CIVIL SERVICE COMMISSION SHALL FIND THAT A CIVILIAN EMPLOYEE OF ANY DEPARTMENT OR AGENCY OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT IS QUALIFIED TO PERFORM WORK IN A CRITICAL WAR OCCUPATION (AS DEFINED IN THE ESSENTIAL ACTIVITIES AND ESSENTIAL OCCUPATIONS DIRECTIVE) AND CAN MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR EFFORT IN AN ESSENTIAL ACTIVITY CARRIED ON BY A PRIVATE ENTERPRISE, THE COMMISSION, WITH THE CONSENT OF THE EMPLOYEE, BUT WITH OR WITHOUT THE CONSENT OF THE DEPARTMENT OR AGENCY IN WHICH HE IS EMPLOYED, SHALL, UPON REQUEST OF SUCH PRIVATE ENTERPRISE, AUTHORIZE THE RELEASE OF SUCH EMPLOYEES TO SUCH PRIVATE ENTERPRISE, FOR WORK IN SUCH CRITICAL WAR OCCUPATION IN SUCH ESSENTIAL ACTIVITY. AN EMPLOYEE WHOSE RELEASE HAS BEEN AUTHORIZED PURSUANT TO THIS PARAGRAPH SHALL BE CARRIED ON A LEAVE-WITHOUT- PAY BASIS FROM HIS FEDERAL POSITION FOR THE PERIOD OF SUCH EMPLOYMENT WITH A PRIVATE ENTERPRISE, EXCEPT THAT SUCH LEAVE-WITHOUT-PAY STATUS SHALL NOT CONTINUE BEYOND SIX MONTHS AFTER THE END OF THE WAR.'

THE CONDITIONS UNDER WHICH SUCH TRANSFER WAS CARRIED OUT ARE SET FORTH IN THE COMMISSION'S WAR SERVICE REGULATION NO. 9, SECTION 4, WHICH PROVIDES:

"/4) THE CONSENT OF THE AGENCY IN WHICH THE EMPLOYEE IS SERVING SHALL NOT BE REQUIRED FOR RELEASE UNDER THIS SECTION, BUT SUCH AGENCY SHALL BE NOTIFIED BY THE COMMISSION AND ALLOWED SUCH PERIOD OF TIME AS THE COMMISSION SHALL SPECIFY TO PRESENT EVIDENCE THAT ITS WORK WILL BE JEOPARDIZED BY THE LOSS OF THE EMPLOYEE'S SERVICES AND AS TO THE EXTENT TO WHICH THE EMPLOYEE'S SKILLS, ABILITIES, TRAINING, AND EXPERIENCE ARE BEING AND WILL BE UTILIZED IN SUCH DEPARTMENT OR AGENCY. THE COMMISSION WILL CONSIDER THIS, AND ALL OTHER RELEVANT EVIDENCE, AND UNLESS A DECISION TO THE CONTRARY IS REACHED BY THE COMMISSION, THE RELEASE SHALL BECOME EFFECTIVE WITHIN TEN DAYS OF THE ORIGINAL NOTIFICATION. IN THE EVENT THAT THE COMMISSION FINDS THAT THE AGENCY'S WORK WILL BE JEOPARDIZED BY AN IMMEDIATE RELEASE OF THE EMPLOYEE, THE RELEASE SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION MAY SPECIFY.'

MR. DE ST. AUBIN HAS REQUESTED THAT HE BE PLACED IN A LEAVE-WITHOUT PAY STATUS COMMENCING WITH THE EFFECTIVE DATE OF HIS TRANSFER TO THE AMERICAN RED CROSS AND THAT HIS ACCRUED ANNUAL LEAVE BE LEFT TO HIS CREDIT UNTIL SUCH TIME AS HE SHOULD RETURN TO DUTY IN THIS AGENCY.

SECTION 6 OF EXECUTIVE ORDER NO. 8384 OF MARCH 29, 1940, PRESCRIBING REGULATIONS RELATING TO ANNUAL LEAVE OF GOVERNMENT EMPLOYEES, AS AMENDED, PROVIDES AS FOLLOWS:

"SEC. 6. AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936. AN EMPLOYEE TRANSFERRED OR APPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY OR INDEFINITE POSITION WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936, TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT, SHALL BE CREDITED WITH ALL LEAVE ACCUMULATED AND ACCRUED ON THE DATE OF SUCH TRANSFER OR APPOINTMENT AT SUCH TIME AS HE MAY BE SUBSEQUENTLY RETRANSFERRED OR REAPPOINTED TO A POSITION WITHIN THE PURVIEW OF THAT ACT, PROVIDED SUCH SUBSEQUENT RETRANSFER OR REAPPOINTMENT IS ALSO WITHOUT BREAK IN SERVICE. "BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.'

THE AMERICAN RED CROSS, GENERALLY, DOES NOT APPEAR TO HAVE BEEN CONSIDERED A PART OF THE FEDERAL SERVICE" AS THAT TERM IS USED IN THE ANNUAL LEAVE REGULATIONS WHICH WOULD PERMIT THE ,BANKING" OF MR. DE ST. AUBIN'S LEAVE DURING THE PERIOD OF HIS SERVICE WITH THE AMERICAN RED CROSS. HOWEVER, THE PRESIDENT'S PROCLAMATION OF DECEMBER 12, 1941 ( NO. 2530), DESIGNATES ITS FUNCTIONS "AS AN ESSENTIAL AUXILIARY OF OUR ARMED FORCES, PARTICULARLY AS A FRIENDLY LIAISON IN WELFARE PROBLEMS BETWEEN THE MAN IN SERVICE AND HIS FAMILY AT HOME, AND AS A KEY AGENCY IN THE CIVIL DEFENSE PLANS" AND THE ACT OF APRIL 24, 1912, (37 STAT. 90) AS AMENDED BY THE ACT OF JUNE 29, 1943 ( PUB. LAW 99, 78TH CONGRESS, ST SESSION; SEE HOUSE REPORT NO. 334 TO ACCOMPANY H.R. 2292) WOULD APPEAR TO WARRANT THE ASSUMPTION THAT THIS AGENCY IS TO BE CONSIDERED AS A PART OF THE FEDERAL SERVICE AS THAT TERM IS USED IN SECTION 6 OF THE ANNUAL LEAVE REGULATIONS AS SET FORTH ABOVE. THEN AGAIN, THE AMERICAN RED CROSS MAY BE CONSIDERED A CRITICAL WAR OCCUPATION IN ACCORDANCE WITH THE WAR MANPOWER COMMISSION DIRECTIVE NO. 10 SO AS TO PERMIT MR. DE ST. AUBIN THE BENEFIT OF HIS ACCRUED LEAVE IN ACCORDANCE WITH PARAGRAPH 2, SECTION 5 OF RE-EMPLOYMENT BENEFITS OF THE WAR SERVICE REGULATIONS ISSUED UNDER DATE OF MAY 19, 1943, WHICH PROVIDES:

"/2) HE SHALL BE REINSTATED WITHIN THIRTY DAYS OF HIS APPLICATION IN THE SAME DEPARTMENT OR AGENCY AND TO THE MAXIMUM EXTENT PRACTICABLE IN THE SAME LOCALITY, IN HIS FORMER POSITION, OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IN SUCH MANNER, TO THE EXTENT CONSISTENT WITH THE LAW, THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED, PROVIDED THAT SUCH A POSITION THEN EXISTS.'

IN THE EVENT IT IS DETERMINED THAT THE AMERICAN RED CROSS IS NOT WITHIN THE " FEDERAL SERVICE" AS THAT TERM IS USED IN SECTION 6 OF THE ANNUAL LEAVE REGULATIONS THERE IS, THEN AGAIN, THE QUESTION AS TO WHETHER OR NOT IT IS SUCH AN INSTRUMENTALITY OF THE UNITED STATES AS WOULD BRING HIS EMPLOYMENT WITHIN THE SCOPE OF THE VARIOUS DUAL COMPENSATION STATUTES SO AS TO PROHIBIT MR. DE ST. AUBIN FROM RECEIVING PAY FROM THE AMERICAN RED CROSS WHILE ON A "LEAVE WITH PAY" STATUS FROM THIS AGENCY.

IN VIEW OF THE EXISTING DOUBT AS TO THE STATUS OF THE AMERICAN RED CROSS AND TO THE LEAVE RIGHTS OF MR. DE ST. AUBIN, HE IS BEING RETAINED IN A LEAVE WITH PAY STATUS PENDING A DECISION IN THIS MATTER SINCE IT IS NOT BELIEVED THAT EXISTING LEAVE REGULATIONS PROMULGATED BY EXECUTIVE ORDER NO. 8384 WOULD PERMIT AN EMPLOYEE TO ENTER A LEAVE WITHOUT PAY STATUS WHILE ACCRUED ANNUAL LEAVE REMAINS, SINCE SECTION 9 OF SUCH REGULATIONS PROVIDES:

"SEC. 9. LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED.

IN VIEW OF THE ABOVE YOUR DECISION IS REQUESTED AS TO WHETHER THIS AGENCY CAN PROPERLY PAY THE EMPLOYEE IN QUESTION FOR THE ACCRUED ANNUAL LEAVE OR PERMIT HIM TO LEGALLY BANK SUCH LEAVE WITH THIS AGENCY UNTIL HIS RETURN TO DUTY.

THE AMERICAN NATIONAL RED CROSS IS A CORPORATION CHARTERED UNDER THE ACT OF JANUARY 5, 1905, 33 STAT. 599, AS AMENDED BY SUBSEQUENT STATUTES. SEE 36 U.S.C. 1-12. IT IS NOT A " FEDERAL SERVICE" WITHIN THE MEANING OF THE SECOND SENTENCE OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, QUOTED IN YOUR LETTER. ALSO, THE MEMBERS OF ITS PERSONNEL ARE NOT "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, OR SECTION 1 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, AND, ACCORDINGLY, SUCH MEMBERS ARE NOT TO BE REGARDED AS COMING WITHIN ANY OF THE PROVISIONS OF THE LEAVE STATUTES OR THE REGULATIONS OF THE PRESIDENT ISSUED PURSUANT THERETO. FURTHERMORE, SUCH PERSONNEL DOES NOT FALL WITHIN THE PURVIEW OF ANY OF THE DUAL COMPENSATION STATUTES. HOWEVER, SINCE MR. DE ST. AUBIN'S TRANSFER TO THE AMERICAN RED CROSS WAS EFFECTED "UNDER AUTHORITY DERIVED FROM THE PROVISIONS OF THE WAR MANPOWER COMMISSION DIRECTIVE NO. 10 AND EXECUTIVE ORDERS NOS. 9243 AND 63," IT IS TO BE ASSUMED THAT THE AMERICAN NATIONAL RED CROSS PROPERLY IS REGARDED AS "AN ESSENTIAL ACTIVITY CARRIED ON BY A PRIVATE ENTERPRISE" WITHIN THE MEANING OF THE WAR MANPOWER COMMISSION DIRECTIVE NO. 10, QUOTED IN YOUR LETTER, IN WHICH EVENT HE WOULD BE ENTITLED TO THE REEMPLOYMENT BENEFITS OF THE WAR SERVICE REGULATION, QUOTED IN YOUR LETTER, UPON MEETING THE CONDITIONS THEREIN SPECIFIED. COMPARE 22 COMP. GEN. 969, AND DECISION OF OCTOBER 8, 1943, B- 37199, 23 COMP. GEN. 265, TO THE FEDERAL SECURITY ADMINISTRATOR.

SPECIFICALLY, THEREFORE, BOTH QUESTIONS POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER ARE ANSWERED IN THE AFFIRMATIVE, PROVIDING, IN RESPECT OF THE SECOND QUESTION, THAT ALL OF THE TERMS AND CONDITIONS OF THE WAR SERVICE REGULATIONS, REGARDING REEMPLOYMENT IN THE FEDERAL WORKS AGENCY, BE MET.