B-53891, DECEMBER 19, 1945, 25 COMP. GEN. 450

B-53891, DECEMBER 19, 1945, 25 COMP. GEN. 450

CLASSIFIED SUBSTITUTE POSTAL EMPLOYEES - COUNTING LEAVES OF ABSENCE WITH PAY FOR AUTOMATIC PROMOTION AND LEAVE ACCRUAL PURPOSES CLASSIFIED SUBSTITUTE POSTAL EMPLOYEES MAY INCLUDE AUTHORIZED ANNUAL AND SICK LEAVES OF ABSENCE WITH PAY IN DETERMINING THE TOTAL NUMBER OF HOURS OF "SATISFACTORY SERVICE IN A PAY STATUS" REQUIRED FOR AUTOMATIC PROMOTION PURPOSES UNDER SECTION 12 (F) OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945. 23 COMP. GEN. 920, DISTINGUISHED. IN DETERMINING THE ANNUAL AND SICK LEAVE CREDITS OF CLASSIFIED SUBSTITUTE POSTAL EMPLOYEES UNDER SECTION 6 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, GRANTING TO SUCH EMPLOYEES THE SAME ANNUAL AND SICK LEAVE BENEFITS THAT ACCRUE TO REGULAR EMPLOYEES "IN PROPORTION TO THE TIME EMPLOYED IN A PAY STATUS," THE TIME SUCH SUBSTITUTE EMPLOYEES ARE ABSENT ON AUTHORIZED LEAVE WITH PAY MAY BE COUNTED AS CREDITABLE SERVICE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, DECEMBER 19, 1945:

I HAVE YOUR LETTER OF NOVEMBER 9, 1945, REFERENCE 15, AS FOLLOWS:

IN YOUR LETTER OF JUNE 5, 1944 (B-41099) (23 COMP. GEN. 920) CONCERNING THE APPLICATION OF THE ACT OF MARCH 24, 1944, PUBLIC LAW 266, WITH RESPECT TO SUBSTITUTE POSTAL EMPLOYEES YOU STATE IN ANSWER TO QUESTION 6 CONCERNING WHETHER EACH DAY'S ABSENCE ON LEAVE WITH PAY WILL BE CONSIDERED AS "ACTUAL TIME SERVED AS A SUBSTITUTE" THAT SUCH ABSENCE MAY NOT BE COUNTED FOR THE PURPOSE OF DETERMINING THE ELIGIBILITY OF A SUBSTITUTE EMPLOYEE FOR PROMOTION. IN EXPLANATION OF YOUR DECISION YOU STATE THAT,"THE EFFECT OF THAT RULE WAS TO CREATE OR RECOGNIZE AN EXCEPTION TO THE GENERAL RULE APPLICABLE TO OTHER CLASSES OF FEDERAL EMPLOYEES THAT LEAVE OF ABSENCE WITH PAY IS REGARDED AS SYNONYMOUS WITH A PAY OR DUTY STATUS FOR PURPOSES OF COMPUTING LONGEVITY. THE EXCEPTION WAS REQUIRED BY REASON OF THE EXPRESS TERMS OF 39 U.S.C. 104, ABOVE QUOTED, WHICH LIMIT THE COUNTING OF SUBSTITUTE SERVICE AS A POSTAL EMPLOYEE AFTER APPOINTMENT AS A REGULAR EMPLOYEE TO "ACTUAL TIMESERVED," WHICH, OF COURSE, WOULD BE EXCLUSIVE OF LEAVE OF ABSENCE WITH OR WITHOUT PAY. THE SAME RULE MUST BE APPLIED IN COMPUTING LONGEVITY FOR THE PURPOSE OF AUTOMATIC PROMOTIONS OF SUBSTITUTE EMPLOYEES WHILE THEY REMAIN AS SUBSTITUTES FOR THE REASON THAT SECTION 1 OF THE ACT OF MARCH 24, 1944, LIMITS THE SERVICE THAT MAY BE COUNTED TO "ACTUAL AND SATISFACTORY SERVICE.' ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE. IN OTHER WORDS, THE RULE STATED IN 19 COMP. GEN. 177, IS CORRECT AND IS FOR FOLLOWING IN THE APPLICATION OF THE PROVISIONS OF THE ACT OF MARCH 24, 1944. IT FOLLOWS, THEREFORE, THAT THE ANSWER TO QUESTION 17 IN THE DECISION OF APRIL 10, 1944, SHOULD HAVE BEEN AND NOW IS IN THE NEGATIVE AND NOT IN THE AFFIRMATIVE, AS THERE ATED.'

SECTION 12 (F) OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, STATES IN PART THAT ,"* * * SUBSTITUTE EMPLOYEES LISTED IN THIS SECTION SHALL BE PROMOTED TO THE NEXT HIGHER GRADE AT THE BEGINNING OF THE QUARTER FOLLOWING 2,024 HOURS SATISFACTORY SERVICE IN A PAY STATUS, INCLUDING TIME SERVED AS SPECIAL DELIVERY MESSENGER * * * .' IN VIEW OF THIS WORDING OF THE ACT AM I CORRECT IN DETERMINING THAT ALL TIME NOW GRANTED TO SUBSTITUTE POSTAL EMPLOYEES AND COMPENSATED FOR AS ANNUAL AND SICK LEAVE WILL BE CREDITABLE SUBSTITUTE SERVICE IN DETERMINING THE ELIGIBILITY OF A SUBSTITUTE EMPLOYEE FOR PROMOTION UNDER THE PROVISIONS OF PUBLIC LAW 134?

SECTION 6 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, READS IN PART: " * * * PROVIDED FURTHER, THAT CLASSIFIED SUBSTITUTE EMPLOYEES, UNDERSUCH REGULATIONS AS THE POSTMASTER GENERAL MAY PRESCRIBE, SHALL BE GRANTED THE SAME RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUE TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME EMPLOYED IN A PAY STATUS AND ONE HUNDRED AND SIXTY-EIGHT HOURS AND FORTY MINUTES OF SUCH EMPLOYMENT SHALL ENTITLE THE EMPLOYEE TO ONE AND ONE-QUARTER DAYS' ANNUAL LEAVE AND SIX HOURS AND FORTY MINUTES' SICK LEAVE: AND PROVIDED FURTHER, THAT IN NO EVENT SHALL A CLASSIFIED SUBSTITUTE EMPLOYEE BE CREDITED DURING A TWELVE- MONTH PERIOD WITH MORE THAN FIFTEEN DAYS' ANNUAL AND TEN DAYS' SICK LEAVE.' IN VIEW OF THE CHANGE OF WORDING IN THIS ACT AS COMPARED WITH THAT APPEARING IN THE ACT OF MARCH 24, 1944, PUBLIC LAW 266, AM I CORRECT IN CONSTRUING THIS LANGUAGE TO MEAN THAT TIME GRANTED SUBSTITUTE POSTAL EMPLOYEES FOR LEAVE WITH PAY MAY BE COUNTED AS CREDITABLE SERVICE FOR THE EARNING OF SICK AND ANNUAL LEAVE, UNDER THE PROVISIONS OF PUBLIC LAW 134?

THE LANGUAGE IN SECTION 12 (F) OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 445, AUTHORIZING THE PROMOTION OF SUBSTITUTE EMPLOYEES TO THE NEXT HIGHER GRADE FOLLOWING "2,024 HOURS OF SATISFACTORY SERVICE IN A PAY STATUS" ENTITLES SUCH SUBSTITUTE EMPLOYEES TO CREDIT, FOR PROMOTION PURPOSES, FOR TIME COVERING ANNUAL AND SICK LEAVE WITH PAY WHEN AUTHORIZED BY LAW AND ADMINISTRATIVELY GRANTED. THIS LANGUAGE IS DISTINGUISHABLE FROM THAT IN THE PRIOR STATUTE, 39 U.S.C. 104, WHICH LIMITED CREDIT TO "ACTUAL TIME SERVED.' SEE 23 COMP. GEN. 920, 926. IN THAT CONNECTION, THERE WHOULD NOT BE OVERLOOKED THE DECISION OF NOVEMBER 2, 1945, B-53179, 25 COMP. GEN. 386, IN WHICH IT WAS HELD THAT SUBSTITUTE POSTAL EMPLOYEES HOLDING WAR SERVICE APPOINTMENTS ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE DURING THE PRESENT FISCAL YEAR, AS THEY CANNOT BE CONSIDERED AS ,CLASSIFIED SUBSTITUTE EMPLOYEES" UNDER THE CIVIL SERVICE RULES AND SECTION 6 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 436.

IN ORDER TO ANSWER YOUR SECOND QUESTION IT IS NECESSARY TO CONSIDER SECTION 6 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, IN ITS ENTIRETY. SAID SECTION READS AS FOLLOWS:

POSTMASTERS AND EMPLOYEES SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY, EXCLUSIVE OF SATURDAYS, SUNDAYS, AND HOLIDAYS, EACH FISCAL YEAR AND SICK LEAVE WITH PAY AT THE RATE OF TEN DAYS A YEAR, EXCLUSIVE OF SATURDAYS, SUNDAYS, AND HOLIDAYS, TO BE CUMULATIVE. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE POSTMASTER GENERAL: PROVIDED, THAT THE FIFTEEN DAYS' LEAVE SHALL BE CREDITED AT THE RATE OF ONE AND ONE-QUARTER DAYS FOR EACH MONTH OF ACTUAL SERVICE: PROVIDED FURTHER, THAT CLASSIFIED SUBSTITUTE EMPLOYEES, UNDER SUCH REGULATIONS AS THE POSTMASTER GENERAL MAY PRESCRIBE, SHALL BE GRANTED THE SAME RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUE TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME EMPLOYED IN A PAY STATUS AND ONE HUNDRED AND SIXTY-EIGHT HOURS AND FORTY MINUTES OF SUCH EMPLOYMENT SHALL ENTITLE THE EMPLOYEES TO ONE AND ONE-QUARTER DAYS' ANNUAL LEAVE AND SIX HOURS AND FORTY MINUTES' SICK LEAVE: AND PROVIDED FURTHER, THAT IN NO EVENT SHALL A CLASSIFIED SUBSTITUTE EMPLOYEE BE CREDITED DURING A TWELVE- MONTH PERIOD WITH MORE THAN FIFTEEN DAYS' ANNUAL AND TEN DAYS' SICK LEAVE.

WHILE SAID SECTION OF THE STATUTE PROVIDES FOR THE CREDITING OF LEAVE TO REGULAR EMPLOYEES ON THE BASIS OF "EACH MONTH OF ACTUAL SERVICE" IT USES DIFFERENT LANGUAGE WHEN REFERRING TO CLASSIFIED SUBSTITUTE EMPLOYEES AND WHILE IT GRANTS CLASSIFIED SUBSTITUTE POSTAL EMPLOYEES THE SAME RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUE TO REGULAR EMPLOYEES IT PRESCRIBES SPECIFICALLY THE BASIS FOR COMPUTING SUCH ANNUAL AND SICK LEAVE AND PROVIDES FOR THE ALLOWANCE OF SUCH LEAVE "IN PROPORTION TO THE TIME EMPLOYED IN A PAY STATUS.' THE PHRASE,"EMPLOYED IN A PAY STATUS," IS SIMILAR TO THE ONE USED IN SECTION 12 (F) OF THE STATUTE, SUPRA, THAT IS "SATISFACTORY SERVICE IN A PAY STATUS," AND IS TO BE GIVEN LIKE CONSTRUCTION. ACCORDINGLY, YOU ARE CORRECT IN CONSTRUING THE LANGUAGE OF SECTION 6 TO AUTHORIZE THE COUNTING--- FOR THE PURPOSE OF DETERMINING SICK AND ANNUAL LEAVE CREDITS--- OF THE TIME CLASSIFIED SUBSTITUTE EMPLOYEES ARE ABSENT ON AUTHORIZED LEAVE WITH PAY AS CREDITABLE SERVICE.