B-53436, B-51521, B-51710, JANUARY 24, 1947, 26 COMP. GEN. 526

B-53436, B-51521, B-51710, JANUARY 24, 1947, 26 COMP. GEN. 526

LEAVES OF ABSENCE - POSTAL SERVICE - RURAL CARRIERS - SATURDAYS IN VIEW OF SECTION 6 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1946, PROVIDING FOR GRANTING ANNUAL AND SICK LEAVE WITH PAY TO POSTAL SERVICE EMPLOYEES EXCLUSIVE OF SATURDAYS, SUNDAYS AND HOLIDAYS, AND SECTION 17 (A) OF SAID ACT, FIXING THE COMPENSATION OF RURAL CARRIERS ON THE BASIS OF PERFORMANCE OF SERVICES "SIX DAYS A WEEK," ABSENCES OF RURAL CARRIERS ON SATURDAYS MAY NOT BE CHARGED AGAINST THEIR ANNUAL OR SICK LEAVE, NOR MAY SUCH CARRIERS BE COMPENSATED FOR SATURDAYS WHEN NO SERVICE IS RENDERED. 25 COMP. GEN. 412, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JANUARY 24, 1947:

I HAVE YOUR LETTER OF DECEMBER 31, 1946, REFERENCE 15, AS FOLLOWS:

THIS WILL ACKNOWLEDGE YOUR LETTER OF DECEMBER 16 IN WHICH YOU QUESTION THE INTERPRETATION MADE BY THIS DEPARTMENT WITH RESPECT TO YOUR DECISION OF NOVEMBER 20, 1945, (25 COMP. GEN. 412) RELATIVE TO THE GRANTING OF ANNUAL AND SICK LEAVE TO CARRIERS IN THE RURAL DELIVERY SERVICE. IN YOUR LETTER YOU REFER TO A COMMUNICATION RECEIVED FROM RURAL CARRIER JOSEPH A. THOMPSON, MOBEETIE, TEXAS, WHEREIN HE STATES THAT THE DEPARTMENT IS NOT PERMITTING HIS ABSENCE FROM OFFICIAL DUTY ON SATURDAY WITHOUT CHARGING SUCH ABSENCE TO ANNUAL LEAVE. YOU STATE IN THE LAST PARAGRAPH OF YOUR LETTER THAT WHILE THE DECISION OF NOVEMBER 20, 1945, HOLDS THAT NO LEAVE MAY BE CHARGED FOR ABSENCES ON SATURDAY IT DOES NOT HOLD THAT COMPENSATION MAY BE PAID FOR SUCH DAYS ON WHICH NO SERVICES ARE PERFORMED.

IN YOUR LETTER DATED JUNE 5, 1939 (18 COMP. GEN. 904) YOU HELD THAT ABSENCES ON SATURDAYS COULD NOT BE EXCLUDED. QUOTING FROM THE SYLLABUS: "THE ACT OF MAY 15, 1939, PUBLIC NO. 78, 53 STAT. 745, "GRANTING POSTAL EMPLOYEES CREDIT FOR SATURDAY IN ANNUAL AND SICK LEAVE LAW, THEREBY CONFORMING TO THE FORTY-HOUR WORKWEEK OR FIVE-DAY WEEK LAW," DOES NOT AUTHORIZE THE EXCLUSION OF SATURDAYS IN COMPUTING THE ANNUAL OR SICK LEAVE OF RURAL CARRIERS, WHO, WHEN NOT ON LEAVE ARE REQUIRED TO WORK ON SATURDAYS, AND LEAVE OF ABSENCE OF SUCH EMPLOYEES SHOULD CONTINUE TO BE CHARGED AS EXCLUSIVE OF ONLY SUNDAYS AND HOLIDAYS.'

THE DECISION SET FORTH IN YOUR LETTER OF NOVEMBER 20, 1945, READS IN PART:

"THE CONCLUSION REACHED IN 18 COMP. GEN. 904 * * *, WAS BASED UPON THE LEGISLATIVE HISTORY AND TITLE OF THE LEAVE ACT OF MAY 15, 1939, WHICH DECLARED ITS PURPOSE TO CONFORM TO THE FORTY-HOUR WORK WEEK OR THE FIVE- DAY-WEEK LAW. HOWEVER, THE PRESENT ACT OF JULY 6, 1945, CONSTITUTES A COMPLETE REVISION OF THE FORMER POSTAL PAY AND LEAVE ACTS, AND THE REASONING MOTIVATING THE DECISIONS RENDERED UNDER THE PRIOR POSTAL ACTS ARE NOT NECESSARILY CONTROLLING ITS INTERPRETATION. IT IS FOR OBSERVING THAT THE VARIOUS SECTIONS OF THE ACT OF JULY 6, 1945, INDICATE WITH CONSIDERABLE PARTICULARITY THE EXTENT TO WHICH THEY ARE TO BE APPLIED. FOR INSTANCE, SECTION 1, IN DEFINING THE TERM "EMPLOYEES" EXCEPTS POSTMASTERS AND CERTAIN OTHER EMPLOYEES THEREFROM BUT DOES NOT EXCEPT RURAL CARRIERS WHO MUST, THEREFORE, BE CONSIDERED "EMPLOYEES" WITHIN THE PROVISION OF THAT ACT UNLESS OTHERWISE SPECIFICALLY EXCEPTED THEREFROM. ON THE OTHER HAND, RURAL CARRIERS SPECIFICALLY ARE EXCEPTED FROM SECTIONS 2, 3, 4, AND 5, OTHERWISE APPLICABLE TO EMPLOYEES, WHICH EXCEPTIONS READILY ARE UNDERSTOOD WHEN THE NATURE OF THE DUTIES OF RURAL CARRIERS ARE COMPARED WITH THOSE OF OTHER POSTAL EMPLOYEES--- THE RURAL CARRIERS BEING REQUIRED TO WORK SIX DAYS A WEEK AND TO COVER THEIR ESTABLISHED ROUTES EACH DAY IRRESPECTIVE OF THE NUMBER OF HOURS REQUIRED.

"THE CONGRESS THUS HAVING SPECIFICALLY EXCEPTED RURAL CARRIERS AND POSTMASTERS FROM ALL SECTIONS OF THE ACT OF JULY 6, 1945, WHICH WERE NOT TO BE APPLIED TO THEM, IT APPEARS REASONABLE TO CONCLUDE THAT IN NAMING POSTMASTERS AND EMPLOYEES IN SECTION 6 WITHOUT EXCEPTING RURAL CARRIERS THEREFROM, SECTION 6 WAS INTENDED TO APPLY TO ALL SUCH POSTMASTERS AND EMPLOYEES, INCLUDING RURAL CARRIERS, IRRESPECTIVE OF WHETHER THEIR DUTIES WERE TO BE PERFORMED WITHIN AN ESTABLISHED FORTY HOUR WORKWEEK OR WITHOUT REGARD TO SUCH ESTABLISHED WORKWEEK. ACCORDINGLY, IN GRANTING SICK OR ANNUAL LEAVE TO POSTMASTERS AND RURAL CARRIERS ALL SATURDAYS, SUNDAYS, AND HOLIDAYS OCCURRING WITHIN OR AT THE BEGINNING OR ENDING OF SUCH SICK OR ANNUAL LEAVE PROPERLY APPEARS FOR EXCLUDING IN COMPUTING THE NUMBER OF DAYS OF LEAVE TO BE CHARGED AGAINST THE EARNED LEAVE FOR POSTMASTERS OR RURAL CARRIERS. ANY DECISIONS TO THE CONTRARY SO FAR AS THEY RELATE TO LEAVE GRANTED AND TAKEN SUBSEQUENT TO JUNE 30, 1945, WILL NOT BE FOLLOWED HEREAFTER.'

YOUR DECISION OF NOVEMBER 20, 1945, PARTS OF WHICH ARE QUOTED ABOVE, WAS INTERPRETED TO MEAN THAT THE DECISION RENDERED ON JUNE 5, 1939, WAS MODIFIED TO THE EXTENT THAT RURAL CARRIERS WOULD NOT THEREAFTER HAVE ABSENCES ON SATURDAY CHARGED TO ANNUAL OR SICK LEAVE WHEN SUCH ABSENCES OCCURRED AT THE BEGINNING, WITHIN, OR AT THE END OF SUCH ANNUAL OR SICK LEAVE. THERE IS NOTHING IN THAT DECISION EVEN INTIMATING THAT A RURAL CARRIER'S ABSENCE ON SATURDAY OCCURRED AT THE BEGINNING, WITHIN OR AT THE END OF A PERIOD OF ANNUAL OR SICK LEAVE.

IF IT IS YOUR INTENTION THAT ABSENCES OF RURAL CARRIERS ON ANY SATURDAY OCCURRING AT THE BEGINNING, WITHIN, OR END OF LEAVE WITH PAY MAY NOT BE PAID LEAVE THEN THIS WILL HAVE THE EFFECT OF RENDERING INOPERATIVE TO A GREAT EXTENT THE PROVISIONS OF SECTION 6 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, WITH RESPECT TO RURAL CARRIERS. THAT SECTION OF THE ACT SPECIFICALLY PROVIDES THAT EMPLOYEES (INCLUDING RURAL CARRIERS) SHALL BE GRANTED 15 DAYS ANNUAL LEAVE AND 10 DAYS SICK LEAVE WITH PAY EACH FISCAL YEAR. IF ABSENCES ON SATURDAY CAN NOT BE CHARGED TO ANNUAL OR SICK LEAVE, AS STATED IN YOUR LETTER OF NOVEMBER 20, 1945, OR THE CARRIER PAID FOR SUCH ABSENCE, AS STATED IN THE LAST PARAGRAPH OF YOUR LETTER DATED DECEMBER 16, 1946, THEN RURAL CARRIERS CAN NOT TAKE ANY LEAVE EXTENDING BEYOND FIVE WORK DAYS A WEEK WITHOUT BEING PENALIZED BY HAVING A DEDUCTION MADE FROM THEIR PAY FOR EACH SATURDAY ABSENCE. THIS IS NOT IN ACCORD WITH ANY LEAVE LAW EVER PASSED BY THE CONGRESS OR ANY PRIOR DECISION EVER ISSUED BY YOUR OFFICE CONCERNING POSTAL EMPLOYEES. I CAN NOT SEE WHERE ANY OTHER INTERPRETATION COULD BE MADE OF YOUR DECISION OF NOVEMBER 20, 1945, THAN THAT RURAL CARRIERS ABSENT ON LEAVE WITH PAY SHALL NOT HAVE A DEDUCTION MADE FROM EITHER PAY OR ACCRUED LEAVE FOR ANY SATURDAY OCCURRING DURING THEIR ABSENCE WHEN SUCH DAY IS AT THE BEGINNING, WITHIN, OR AT THE END OF THE LEAVE OF ABSENCE. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO SECTION 7 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, WHICH PROVIDES THAT POSTAL EMPLOYEES, INCLUDING RURAL CARRIERS, ARE IN A PAY STATUS EVERY DAY OF THE MONTH INCLUDING SATURDAYS, SUNDAYS AND HOLIDAYS, WITH CERTAIN MODIFICATIONS MADE FOR A 31-DAY MONTH.

IN ANSWER TO THE TWO SPECIFIC QUESTIONS RAISED IN YOUR LETTER OF DECEMBER 16, 1946, YOU ARE ADVISED THAT (1) RURAL CARRIERS ARE NEVER PAID THE EQUIPMENT MAINTENANCE ALLOWANCE FOR ANY DAYS WHEN THEY ARE ABSENT ON LEAVE OF ANY KIND OR SUNDAYS, HOLIDAYS OR ANY OTHERNON WORK DAYS. IN ANSWER TO QUESTION (2) THIS DEPARTMENT IS COMPLYING WITH YOUR DECISION OF NOVEMBER 20, 1945, IN ACCORDANCE WITH OUR INTERPRETATION THEREOF AS PREVIOUSLY STATED. HOWEVER, IN VIEW OF YOUR LETTER OF NOVEMBER ( DECEMBER) 16, 1946, OUR INSTRUCTIONS WILL BE AMENDED TO PROVIDE THAT ABSENCES ON SATURDAY MAY NOT BE CHARGED TO EITHER ANNUAL OR SICK LEAVE AND THAT WHERE THE LEAVE TAKEN IS LESS THAN FIVE DAYS' CONTINUOUS LEAVE AN ABSENCE FOR SATURDAY WILL BE CHARGED AS LEAVE WITHOUT PAY. THE FACT THAT RURAL CARRIERS ARE REQUIRED TO TAKE FIVE DAYS CONTINUOUS LEAVE IN ORDER TO HAVE SATURDAY EXCLUDED AS A CHARGE IS BASED ON AN ADMINISTRATIVE DECISION FOR THE PURPOSE OF GRANTING LEAVE IN A WAY THAT IS EQUITABLE AND FAIR TO ALL RURAL CARRIERS. IF THIS WAS NOT DONE A RURAL CARRIER COULD, UNDER OUR INTERPRETATION OF YOUR LETTER OF NOVEMBER 20, 1945, OBTAIN 30 DAYS' LEAVE WITH A CHARGE OF ONLY 15 DAYS AGAINST HIS ACCRUED LEAVE BY TAKING OFF EACH FRIDAY FOR 15 WEEKS.

THE DECISION OF NOVEMBER 20, 1945, 25 COMP. GEN. 412, WAS RENDERED IN RESPONSE TO YOUR LETTER OF OCTOBER 24, 1945, WHICH MADE THE FOLLOWING REQUEST:

YOUR OPINION IS REQUESTED WHETHER IN ADMINISTRATIVELY GRANTING ANNUAL AND SICK LEAVE TO POSTMASTERS AND RURAL CARRIERS SATURDAYS, SUNDAYS, AND HOLIDAYS, OCCURRING WITHIN OR AT THE BEGINNING OR END OF SUCH SICK OR ANNUAL LEAVE SHALL BE COUNTED IN DETERMINING THE NUMBER OF DAYS TO BE CHARGED AGAINST THE EARNED LEAVE OF THE POSTMASTER OR RURAL CARRIER.

SAID DECISION DID NOT PASS UPON THE QUESTION OF PAY TO RURAL CARRIERS FOR SATURDAYS WHEN OTHERWISE EXCUSED FROM DUTY, BUT CONFINED THE ANSWER TO THE QUESTION ASKED, AS INDICATED IN THE ANSWER QUOTED THEREFROM IN YOUR PRESENT SUBMISSION.

SECTION 17 (A) OF THE POSTAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 134, 59 STAT. 455, IN FIXING THE COMPENSATION OF RURAL CARRIERS, BASED SUCH COMPENSATION UPON THE PERFORMANCE OF SERVICES "SIX DAYS A WEEK.' WHEN AN ACT OF THE CONGRESS SPECIFICALLY FIXES THE MINIMUM OF SERVICES REQUIRED FOR A SPECIFIED COMPENSATION, THERE IS NO AUTHORITY IN ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT TO WAIVE THE PERFORMANCE OF SERVICES OF INDIVIDUAL EMPLOYEES WITHOUT CORRESPONDING DEDUCTION FROM THEIR AUTHORIZED COMPENSATION, EXCEPT TO THE EXTENT AUTHORIZED BY STATUTE, SUCH AS THE ANNUAL AND SICK LEAVE AUTHORIZED TO POSTAL EMPLOYEES. SEE, IN THAT CONNECTION, 17 COMP. GEN. 564, WHICH HELD, PRIOR TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, THAT THERE WAS NO AUTHORITY TO ESTABLISH A FIVE-DAY WEEK FOR DEPARTMENTAL EMPLOYEES WHOSE SERVICES WERE CONTROLLED BY SECTION 5 OF THE ACT OF MAY 3, 1893, AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, ALTHOUGH IT WAS PERMISSIBLE TO ESTABLISH A SHORTER WORKWEEK IN THE FIELD SERVICE, WHERE THE AMOUNT OF SERVICE TO BE RENDERED WAS NOT FIXED BY STATUTE. SEE, ALSO, 17 COMP. GEN. 298.

ACCORDINGLY, IN VIEW OF THE PROVISIONS OF SECTIONS 6 AND 17 (A), OF THE POSTAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 436, 455, ABSENCES ON SATURDAYS MAY NOT BE CHARGED AGAINST THE SICK OR ANNUAL LEAVE OF RURAL CARRIERS, NOR MAY RURAL CARRIERS BE PAID COMPENSATION FOR SATURDAYS WHEN NO SERVICE IS RENDERED.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES WHICH HAVE GIVEN RISE TO THE CONFUSION WHICH HAS EXISTED IN THE POST OFFICE DEPARTMENT AND POSTAL SERVICE WITH RESPECT TO THIS MATTER, ADVERSE ACTION WILL NOT BE TAKEN BY THIS OFFICE IN CONNECTION WITH PAYMENTS FOR PERIODS PRIOR TO FEBRUARY 1, 1947, PROVIDED CORRECTIVE ADMINISTRATIVE ACTION IS TAKEN BY THAT DATE.