B-53935, DECEMBER 6, 1945, 25 COMP. GEN. 438

B-53935: Dec 6, 1945

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LONGSHOREMEN AND STEVEDORES PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS WHO ARE NOT EMPLOYED CONTINUOUSLY BY THE GOVERNMENT OR CONTINUOUSLY AVAILABLE FOR GOVERNMENT WORK. WHOSE AVAILABILITY FOR GOVERNMENT WORK DEPENDS UPON THEIR NOT BEING ENGAGED UPON PRIVATE WORK WHEN THEIR SERVICES ARE REQUESTED THROUGH THE MEDIUM OF A HIRING HALL WHICH IS JOINTLY CONTROLLED AND OPERATED BY PRIVATE EMPLOYEE AND EMPLOYER ORGANIZATIONS. ARE NOT PERMANENT. 1945: I HAVE YOUR LETTER OF NOVEMBER 16. EMPLOYS LONGSHOREMEN AND STEVEDORES WHO ARE ENGAGED IN THE LOADING AND/OR UNLOADING OF FOREIGN AND DOMESTIC VESSELS. SUCH PERSONNEL ARE REQUIRED TO BE APPOINTED UNDER SCHEDULE A-IV-3 OF THE CIVIL SERVICE RULES AND ALTHOUGH THEY ARE NOT PRESENTLY BEING PROCESSED IN SO FAR AS REQUIRED CIVIL SERVICE APPOINTING PAPERS ARE CONCERNED.

B-53935, DECEMBER 6, 1945, 25 COMP. GEN. 438

LONGSHOREMEN AND STEVEDORES - STATUS FOR LEAVES OF ABSENCE PURPOSES THE AUTHORITY CONTAINED IN SECTION 5.2 OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR THE HEAD OF ANY GOVERNMENT AGENCY TO PROMULGATE SUPPLEMENTAL REGULATIONS "CONSISTENT WITH THESE REGULATIONS" FOR ADMINISTERING LEAVE FOR EMPLOYEES "WHO WORK 24-HOUR SHIFTS, OR OTHER UNCOMMON TOURS OF DUTY" DOES NOT AUTHORIZE THE ISSUANCE OF SUPPLEMENTAL REGULATIONS GRANTING ANNUAL LEAVE TO EMPLOYEES SPECIFICALLY EXCEPTED FROM SAID REGULATIONS BY THE PROVISIONS OF SECTION 6.1 THEREOF. LONGSHOREMEN AND STEVEDORES PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS WHO ARE NOT EMPLOYED CONTINUOUSLY BY THE GOVERNMENT OR CONTINUOUSLY AVAILABLE FOR GOVERNMENT WORK, BUT WHOSE AVAILABILITY FOR GOVERNMENT WORK DEPENDS UPON THEIR NOT BEING ENGAGED UPON PRIVATE WORK WHEN THEIR SERVICES ARE REQUESTED THROUGH THE MEDIUM OF A HIRING HALL WHICH IS JOINTLY CONTROLLED AND OPERATED BY PRIVATE EMPLOYEE AND EMPLOYER ORGANIZATIONS, ARE NOT PERMANENT, TEMPORARY, OR INDEFINITE GOVERNMENT EMPLOYEES ENTITLED TO ANNUAL AND SICK LEAVE BENEFITS UNDER THE ANNUAL AND SICK LEAVE REGULATIONS, BUT, RATHER, COME WITHIN THE EXCEPTIONS THERETO AS SET FORTH IN SECTION 6.1 (E) OF SAID REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 6, 1945:

I HAVE YOUR LETTER OF NOVEMBER 16, 1945, AS FOLLOWS:

THE TRANSPORTATION CORPS, AT ITS SEVERAL PORTS OF EMBARKATION, EMPLOYS LONGSHOREMEN AND STEVEDORES WHO ARE ENGAGED IN THE LOADING AND/OR UNLOADING OF FOREIGN AND DOMESTIC VESSELS. SUCH PERSONNEL ARE REQUIRED TO BE APPOINTED UNDER SCHEDULE A-IV-3 OF THE CIVIL SERVICE RULES AND ALTHOUGH THEY ARE NOT PRESENTLY BEING PROCESSED IN SO FAR AS REQUIRED CIVIL SERVICE APPOINTING PAPERS ARE CONCERNED, AS GOVERNMENT EMPLOYEES, BY REASON OF SPECIAL DISPENSATION GIVEN BY THE CIVIL SERVICE COMMISSION, THEY ARE, NEVERTHELESS, PAID DIRECTLY FROM PAYROLLS PREPARED BY THE PORTS OF EMBARKATION.

SUCH PERSONNEL CONSTITUTE A THOROUGHLY ORGANIZED GROUP OF EMPLOYEES AND THE PREVAILING WAGE PRACTICES ARE REQUIRED TO BE OBSERVED IN ORDER THAT THE TRANSPORTATION CORPS MAY AVAIL ITSELF OF SUCH PERSONNEL TO PERFORM LOADING AND DISCHARGING FUNCTIONS ON VESSELS OWNED AND OPERATED BY THE WAR DEPARTMENT. SUCH PERSONNEL ALTHOUGH PAID WHEN ACTUALLY EMPLOYED ARE REQUIRED TO BE AVAILABLE FOR DUTY WHENEVER DISPATCHED BY THE HIRING HALLS. THE HIRING HALLS WHICH DISPATCHES SUCH PERSONNEL FOR DUTY TO THE VARIOUS OPERATORS, INCLUDING THE ARMY, ARE CONTROLLED AND MAINTAINED JOINTLY BY THE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, CIO, AND THE WATERFRONT EMPLOYERS' ASSOCIATION, TO WHICH THE ARMY IS NOT A PARTY.

IT IS THE CONSIDERED OPINION OF THE DEPARTMENT THAT SUCH PERSONNEL ARE CIVIL SERVICE EMPLOYEES OF THE GOVERNMENT. THEY ARE REQUIRED TO BE APPOINTED UNDER SCHEDULE A-IV-3 OF THE CIVIL SERVICE RULES. THEY ARE UNDER DIRECT SUPERVISION AND CONTROL OF WAR DEPARTMENT OFFICIALS, AND THEY ARE PAID DIRECTLY FROM APPROPRIATED FUNDS ON PAYROLL VOUCHERS UTILIZED FOR DIRECT HIRES.

THE DEPARTMENT DESIRES TO RESPECTFULLY CALL YOUR ATTENTION TO THE FACT THAT ON 10 AUGUST 1932 IN DECISION A-43643 (12 COMP. GEN. 224) AND IN DECISION A-43643 OF 25 AUGUST 1932 (12 COMP. GEN. 283) YOU HAVE RULED THAT "LONGSHOREMEN OR STEVEDORES WHILE TEMPORARILY ENGAGED IN LOADING OR UNLOADING FEDERAL GOODS, WHOSE RATE OF WAGES IS PAID BY THE GOVERNMENT PURSUANT TO A GENERAL AGREEMENT BETWEEN A GROUP OF EMPLOYERS, INCLUDING A FEDERAL AGENCY, AND AN ORGANIZATION OF SUCH EMPLOYEES ARE NOT "EMPLOYEES" OF THE GOVERNMENT WORKING UNDER A PERSONAL-SERVICE CONTRACT WITH THE GOVERNMENT, AND THEIR RATE OF WAGES IS NOT SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY THE ECONOMY ACT.' IT IS TO BE NOTED, HOWEVER, THAT THE DECISIONS TO WHICH REFERENCE IS MADE ABOVE WERE CONFINED TO THE SOLE QUESTION AS TO WHETHER THE LONGSHOREMEN AND STEVEDORES REFERRED TO THEREIN WERE "EMPLOYEES" WITHIN THE MEANING OF THE ECONOMY ACT, ON THE BASIS OF THE FACTS PRESENTED BY THE DISBURSING OFFICERS REQUESTING YOUR DECISIONS, WITHOUT APPARENTLY PRESENTING ALL THE FACTS INCIDENT TO THE REQUIRED CIVIL SERVICE APPOINTING AUTHORITY FOR SUCH PERSONNEL, AND THE PROCEDURES THEN IN EFFECT FOR IMPLEMENTING SUCH APPOINTMENTS.

AT ANY RATE, IN A RECENT DIRECTIVE ORDER OF THE NATIONAL WAR LABOR BOARD, DATED 18 AUGUST 1945, CASE 111-11744-D, IN THE MATTER OF THE WATERFRONT EMPLOYERS' ASSOCIATION OF THE PACIFIC COAST AND THE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, CIO, THE STRAIGHT TIME HOURLY WAGE RATES WERE INCREASED BY 5 CENTS PER HOUR AND THE OVERTIME RATE BY 7 AND A HALF CENTS PER HOUR. SUCH INCREASE WAS IMPLEMENTED BY THE WAR DEPARTMENT WAGE ADMINISTRATION AGENCY ACTING FOR THE NATIONAL WAR LABOR BOARD WITH RESPECT TO EMPLOYEES UNDER DIRECT HIRE BY THE GOVERNMENT. HOWEVER, THAT PORTION OF THE NATIONAL WAR LABOR BOARD'S DECISION, WHICH DIRECTED THAT A PAID VACATION OF 1 WEEK BE PROVIDED FOR EMPLOYEES, BOTH RETROACTIVELY TO 1 OCTOBER 1944 AND PROSPECTIVELY, WAS NOT IMPLEMENTED PENDING DETERMINATION OF THE APPLICABILITY OF THE LEAVE LAWS AND REGULATIONS TO THIS CLASS OF EMPLOYEES.

WITH REFERENCE TO THE VACATION PAY AUTHORIZED IN THE DIRECTIVE ORDER REFERRED TO ABOVE, THE NATIONAL WAR LABOR BOARD DETERMINED THAT THE PARTIES THEMSELVES WERE BEST ABLE TO NEGOTIATE THE METHOD OF THE VACATION, THE ELIGIBILITY REQUIREMENTS, THE METHOD OF ADMINISTRATION OF AN APPROPRIATE VACATION PLAN AND OTHER DETAILS. IN ACCORDANCE THEREWITH, A VACATION PLAN HAS BEEN TENTATIVELY AGREED UPON AMONG ALL WATERFRONT EMPLOYERS. THE PLAN PROVIDES THAT LONGSHOREMEN OR STEVEDORES TO BE ELIGIBLE FOR ONE-WEEK VACATION WOULD BE REQUIRED TO WORK 1,500 HOURS WITHIN THE INDUSTRY AND THE COST OF SUCH VACATION PAY WOULD BE ALLOCATED AMONG THE VARIOUS EMPLOYERS ON A PRO RATA BASIS, DEPENDING ON THE NUMBER OF HOURS THE LONGSHOREMEN OR STEVEDORES WORK FOR EACH RESPECTIVE EMPLOYER.

THIS TENTATIVE AGREEMENT IS HELD IN ABEYANCE PENDING DETERMINATION AS TO WHETHER THE ARMY, AS ANOTHER EMPLOYER OR OPERATOR, IS LEGALLY CAPABLE OF PARTICIPATING IN THE PLAN PROPOSED. CONSIDERABLE UNREST PRESENTLY EXISTS IN THE INDUSTRY BECAUSE OF THE DELAY IN IMPLEMENTING THIS VACATION PLAN. AS A MATTER OF FACT, THE SECRETARY OF LABOR HAS RECENTLY REQUESTED THIS DEPARTMENT TO EXPEDITE THE IMPLEMENTATION OF THE DIRECTIVE ORDER OF THE NATIONAL WAR LABOR BOARD SO AS TO AVOID THE GROWING FEELING OF UNREST AMONG THIS GROUP OF EMPLOYEES. THE QUESTION HAS THEREFORE ARISEN AS TO WHETHER THE DEPARTMENT MAY BY VIRTUE OF THE LEAVE LAWS AND REGULATIONS PARTICIPATE IN THE VACATION PLAN ON A BASIS SIMILAR TO THAT PROPOSED BY THE WATERFRONT EMPLOYERS' ASSOCIATION.

THE ANNUAL AND SICK LEAVE ACTS OF 14 MARCH 1936 (49 STAT. 1161 AND 1162,) AS AMENDED BY THE ACT OF 2 MARCH 1940 (54 STAT. 38) AND THE ACT OF 17 DECEMBER 1943 (56 STAT. 1052) PROVIDE THAT WITH CERTAIN EXCEPTIONS SPECIFICALLY ENUMERATED THEREIN, WHICH ARE NOT APPLICABLE TO THIS GROUP OF EMPLOYEES,"ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED....REGARDLESS OF THEIR TENURE...., SHALL BE ENTITLED TO 26 DAYS ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.' THE LEAVE ACTS CITED ABOVE FURTHER PROVIDE THAT "THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.' THE PRESIDENT IN ISSUING EXECUTIVE ORDER 9414 DEFINES THREE CLASSES OF EMPLOYEES AS FOLLOWS:

PERMANENT EMPLOYEES--- THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR OR FOR THE DURATION OF THE PRESENT WAR OR FOR 6 MONTHS THEREAFTER.

TEMPORARY EMPLOYEES--- THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR.

INDEFINITE EMPLOYEES--- THOSE APPOINTED "FOR THE DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH AS DISTINGUISHED FROM "PART TIME" OR "INTERMITTENT" EMPLOYEES.

FOR THE PURPOSE OF THIS PROBLEM, THE DEFINITION OF "PART TIME" EMPLOYEES DOES NOT APPEAR RELEVANT. HOWEVER, THE DEFINITION OF "INTERMITTENT EMPLOYEES" IS PERTINENT IN ORDER TO DISTINGUISH THIS GROUP OF EMPLOYEES FROM "INDEFINITE EMPLOYEES" FOR LEAVE PURPOSES.

IN YOUR DECISION A-98989 OF 17 NOVEMBER 1938 (18 COMP. GEN. 457,) " INTERMITTENT EMPLOYEES," FOR LEAVE PURPOSES, HAVE BEEN DEFINED AS THOSE EMPLOYEES RENDERING SERVICE UNDER REPEATED APPOINTMENTS OR EMPLOYMENTS FOR SHORT PERIODS, NONE OF WHICH EXTEND FOR A FULL MONTH. THE LONGSHOREMEN AND STEVEDORES BY REASON OF THE NATURE OF THEIR EMPLOYMENT DO NOT FALL WITHIN THE PURVIEW OF THE DEFINITION OF " INTERMITTENT EMPLOYEES.' AS A MATTER OF FACT, THE NATURE OF THEIR EMPLOYMENT IS MORE CONSISTENT WITH THE DEFINITION OF " INDEFINITE EMPLOYEES.' IN THAT CONNECTION, ATTENTION IS ALSO RESPECTFULLY INVITED TO THE FACT THAT THE WORDING OF AN EMPLOYEE'S APPOINTMENT IS NOT NECESSARILY DETERMINATIVE TO HIS RIGHT OF ANNUAL AND SICK LEAVE UNDER THE ACTS OF 14 MARCH 1936 (49 STAT. 1161, 1162) AND THE APPLICABLE REGULATIONS ISSUED THEREUNDER, IF HIS ACTUAL SERVICES DIFFER FROM THAT INDICATED IN THE APPOINTMENT (16 COMP. GEN. 442). IN THE AFOREMENTIONED DECISION, IT WAS HELD THAT "EMPLOYEES OF THE WAR DEPARTMENT WHO, ALTHOUGH HOLDING PERMANENT APPOINTMENTS, HAVE BEEN EMPLOYED OVER AN EXTENDED PERIOD ON AN INTERMITTENT BASIS ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF 14 MARCH 1936 (49 STAT. 1161).' THE FACTS PRESENTED TO YOU FOR DECISION IN THAT CASE WERE ENTIRELY DIFFERENT FROM THE FACTS IN THIS CASE AND SHOULD THEREFORE BE DISTINGUISHED ACCORDINGLY. IN THAT CASE THE FACTS WERE THAT THE EMPLOYEES REFERRED TO THEREIN WERE PERMANENTLY EMPLOYED SINCE 30 JUNE 1933, HAD BEEN FURLOUGHED AND HAD BEEN RECALLED TO DUTY FROM THAT DATE TO THE DATE OF YOUR DECISION RENDERED 26 OCTOBER 1936, AS MANY AS 25 DIFFERENT TIMES FOR PERIODS OF FROM 3 DAYS TO 90 DAYS SERVICE DURING RECALL.

IN THE INSTANT CASE, THE LONGSHOREMEN OR STEVEDORES ALTHOUGH PAID "WHEN ACTUALLY EMPLOYED" ARE EITHER CONTINUOUSLY EMPLOYED OR ARE REQUIRED TO BE AVAILABLE FOR DUTY WITHOUT TIME LIMITATION. IN THAT CONNECTION, IT IS DESIRED TO POINT OUT THAT THE INDUSTRY IS COMPOSED IN THE MAIN OF TWO GROUPS OF EMPLOYEES, NAMELY,"REGISTERED LONGSHOREMEN" WHO ARE MEMBERS OF THE UNION, REGISTERED WITH THE HIRING HALL, AND WHO ARE REQUIRED TO BE AVAILABLE FOR DUTY EVERY SINGLE WORKING DAY OF THE YEAR. THE REQUEST FOR YOUR DECISION IN THIS CASE IN CONFINED SOLELY TO THE "REGISTERED LONGSHOREMEN," RATHER THAN THE "CASUAL LONGSHOREMEN" WHOSE EMPLOYMENT IS CONCEDED AS BEING ,INTERMITTENT" AND THEREFORE NOT ENTITLED TO LEAVE EITHER ON THE BASIS OF THE PROPOSED VACATION PLAN OR ON THE BASIS OF THE LEAVE LAWS AND REGULATIONS.

THE DEPARTMENT CONSIDERS THAT SINCE THE "REGISTERED LONGSHOREMEN" ARE REQUIRED TO BE AVAILABLE FOR DUTY EVERY SINGLE WORKING DAY OF THE YEAR, AND ARE REGISTERED WITH A HIRING HALL (WHICH AGENCY DISPATCHES EACH SUCH REGISTERED LONGSHOREMAN FOR DUTY WITH THE VARIOUS OPERATORS OR EMPLOYERS IN THE INDUSTRY), THEY PROPERLY FALL WITHIN THE DEFINITION OF " INDEFINITE EMPLOYEES" AS DEFINED IN EXECUTIVE ORDER 9414. HOWEVER, SINCE THE HIRING HALL CONTROLS THE DISPATCHING OF REGISTERED LONGSHOREMEN, ALBEIT, THAT SUCH PERSONNEL ACTUALLY WORK OR ARE REQUIRED TO BE AVAILABLE FOR WORK EVERY SINGLE WORKING DAY OF THE YEAR, THEY MAY NOT NECESSARILY BE DISPATCHED TO THE ARMY EVERY SINGLE WORKING DAY OF A CALENDAR MONTH.

IT IS RECOGNIZED THAT IN YOUR PREVIOUS DECISIONS (17 COMP. GEN. 1017, 16 COMP. GEN. 678, AND OTHERS) WITH RESPECT TO THE APPLICABILITY OF THE LEAVE LAWS AND REGULATIONS TO "INDEFINITE EMPLOYEES," YOU HAVE RULED THAT "INDEFINITE EMPLOYEES" EARN LEAVE PROVIDED THEY SERVE OR ARE ON CALL FOR DUTY FOR 1 MONTH. HOWEVER, YOU HAVE ALSO PREVIOUSLY RULED, CONSISTENT WITH THIS LINE OF DECISIONS, THAT THE MINIMUM PERIOD OF 1 MONTH DOES NOT MEAN THAT ANNUAL OR SICK LEAVE MAY BE CREDITED TO AN EMPLOYEE FOR LAY-OFF OR FURLOUGH PERIODS WITHOUT PAY OR FOR PERIODS OF CONTINUOUS SERVICE OF LESS THAN 1 MONTH. SINCE IN THE INSTANT CASE, LONGSHOREMEN ARE NOT FURLOUGHED, LAID OFF, OR TERMINATED WHEN NOT DISPATCHED FOR DUTY FOR THE ARMY, BUT RATHER ARE WORKING IN THE INDUSTRY FOR OTHER OPERATORS OR EMPLOYERS TO WHOM DISPATCHED FOR DUTY, A DISTINCTION DOES EXIST, WHICH MUST BE RECOGNIZED AS RENDERING THE LINE OF YOUR PREVIOUS DECISIONS REFERRED TO ABOVE AS NOT BEING APPLICABLE TO THE INSTANT CASE.

SINCE EXECUTIVE ORDER 9414 DEFINES A "MONTH OF SERVICE" AS A PERIOD OF 30 CONSECUTIVE CALENDAR DAYS, AND, IN ADDITION, CONTAINS A FURTHER PROVISO UNDER SECTION 5.2 OF SAID ORDER THAT:

"THE HEAD OR GOVERNING BODY OF ANY GOVERNMENTAL AGENCY WHICH HAS EMPLOYEES WHO WORK 24-HOUR SHIFTS OR OTHER UNCOMMON TOURS OF DUTY IS AUTHORIZED TO PROMULGATE SUPPLEMENTAL REGULATIONS CONSISTENT WITH THESE REGULATIONS FOR ADMINISTERING LEAVE FOR SUCH EMPLOYEES.'

IT IS BELIEVED THAT THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN SECTION 5.2 MAY DEFINE A "MONTH OF SERVICE" FOR LEAVE ACCRUAL PURPOSES OF "REGISTERED LONGSHOREMEN" IN A MANNER SIMILAR TO THAT PREVAILING IN THE LONGSHORE INDUSTRY, AND THAT SUCH DEFINITION WILL NOT ONLY BE CONSISTENT WITH THE REGULATIONS SET FORTH IN THE EXECUTIVE ORDER AS A WHOLE, BUT WILL FURTHER ASSIST THE WAR DEPARTMENT IN CONFORMING WITH ITS POLICY OF ADHERING SO AR AS MAY BE PRACTICABLE TO THE PREVAILING EMPLOYMENT PRACTICES OF THE MARITIME AND RELATED INDUSTRIES.

TO CONFORM WITH THE PREVAILING PRACTICES OF THE INDUSTRY, A "MONTH OF SERVICE" WOULD BE DEFINED AS 1/12TH OF THE TOTAL NUMBER OF HOURS AT STRAIGHT TIME RATES WHICH WOULD BE WORKED ON A FULL YEAR'S EMPLOYMENT, REGARDLESS OF WHETHER SUCH STRAIGHT TIME HOURS ARE CONSECUTIVE WITH ANY ONE OPERATOR, DUE COGNIZANCE BEING TAKEN OF THE FACT THAT EMPLOYMENT IS CONTINUOUS ON AN INDUSTRY-WIDE BASIS, ALTHOUGH NOT NECESSARILY CONTINUOUS WITH ANY SINGLE OPERATOR.

ACCORDINGLY, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE SECRETARY OF WAR IS AUTHORIZED, UNDER THE AUTHORITY GRANTED IN SECTION 5.2 OF SAID ORDER, TO DEFINE A "MONTH OF SERVICE" IN ACCORD WITH THE FORMULA SET FORTH IN THE PRECEDING PARAGRAPH FOR LONGSHORE PERSONNEL WHOSE TOURS OF DUTY, BY REASON OF THE PRACTICES OF THE INDUSTRY, CANNOT BE REGULATED OR DEFINED, AND, THEREFORE, MUST NECESSARILY BE REGARDED AS "UNCOMMON.' YOUR ADVICE AS TO THE PROPER LEGAL ACTION TO BE TAKEN UNDER THE CIRCUMSTANCES IS RESPECTFULLY REQUESTED AND A PROMPT DECISION WOULD INDEED BE APPRECIATED.

IN 12 COMP. GEN. 224, IT WAS HELD (QUOTING FROM THE SYLLABUS):

LONGSHOREMEN OR STEVEDORES WHILE TEMPORARILY ENGAGED IN LOADING OR UNLOADING FEDERAL GOODS, WHOSE RATE OF WAGES IS PAID BY THE GOVERNMENT PURSUANT TO A GENERAL AGREEMENT BETWEEN A GROUP OF EMPLOYERS, INCLUDING A FEDERAL AGENCY, AND AN ORGANIZATION OF SUCH EMPLOYEES, ARE NOT "EMPLOYEES" OF THE GOVERNMENT WORKING UNDER A PERSONAL-SERVICE CONTRACT WITH THE GOVERNMENT, AND THEIR RATE OF WAGES IS NOT SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY THE ECONOMY ACT. A SIMILAR RULING WAS MADE IN 12 COMP. GEN. 283. THOSE TWO DECISIONS COVER SERVICES OF LONGSHOREMEN AND STEVEDORES AT THE PORTS OF NEW YORK AND SAN FRANCISCO, RESPECTIVELY. HAD IT BEEN HELD AT THAT TIME THAT LONGSHOREMEN AND STEVEDORES WERE GOVERNMENT CONTRACT EMPLOYEES, IT WOULD HAVE BEEN NECESSARY TO REDUCE THEIR COMPENSATION BY 8 1/3 PERCENT UNDER THE ECONOMY ACT OF 1932.

THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, GRANT LEAVE WITH PAY, WITH CERTAIN STATED EXCEPTIONS, TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES. SECTIONS 7 OF THE RESPECTIVE ACTS AUTHORIZE THE ISSUANCE OF REGULATIONS BY THE PRESIDENT OF THE UNITED STATES. IN THE REGULATIONS ISSUED EFFECTIVE JANUARY 1, 1945, EMPLOYEES SUBJECT TO THE LEAVE ACTS ARE DEFINED AS FOLLOWS:

SECTION 1.1 AS USED IN THESE REGULATIONS:

(A) "EMPLOYEE" AND "EMPLOYEES" INCLUDE OFFICER AND OFFICERS, RESPECTIVELY.

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 1 YEAR, OR FOR THE DURATION OF THE PRESENT WAR AND FOR 6 MONTHS THEREAFTER.

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR.

(D) "INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

SECTION 6.1 OF THE LEAVE REGULATIONS PROVIDES AS FOLLOWS:

THESE REGULATIONS SHALL NOT APPLY TO:

(C) TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES.

(E) EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS (1) PER DIEM OR PER HOUR EMPLOYEES ENGAGED IN AN EMERGENCY WHO MAY BE EMPLOYED FOR MORE THAN ONE 7- OR 8- HOUR SHIFT WITHIN 24 HOURS DURING THE EMERGENCY; (2) PART-TIME OR INTERMITTENT EMPLOYEES; (3) PERSONS ENGAGED UNDER CONTRACT; (4) EMPLOYEES ENGAGED TEMPORARILY FOR LESS THAN A MONTH ON A PIECE-PRICE BASIS; (5) EMPLOYEES WHO ARE PAID AT HOURLY RATES BUT WHO ARE NOT ENGAGED ON CONSTRUCTION WORK, SUCH AS MECHANICS, SKILLED LABORERS, AND OTHERS ENGAGED IN VARIOUS SERVICES ON MAINTENANCE, REPAIR, CLEAN-UP WORK, ETC., WHERE EMPLOYMENT IS MORE OR LESS INTERMITTENT AND NOT ON A REGULAR AND CONTINUOUS BASIS; (6) CONSULTANTS EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED; " AND (7) EMPLOYEES PAID ON A FEE BASIS, SUCH AS PHYSICIANS, SURGEONS, AND OTHER CONSULTANTS.

WHILE YOUR SUBMISSION IS CONFINED TO THE GRANTING OF ANNUAL LEAVE, IT SHOULD NOT BE OVERLOOKED THAT, WITH SOME MINOR EXCEPTIONS, EMPLOYEES COMING UNDER THE ANNUAL LEAVE STATUTES AND REGULATIONS ARE ENTITLED TO SICK LEAVE, ALSO. FURTHERMORE, IT WILL BE OBSERVED FROM THE FOREGOING EXCEPTIONS TO THE LEAVE REGULATIONS THAT THE FACT THAT INDIVIDUALS MAY RECEIVE THEIR COMPENSATION DIRECTLY FROM GOVERNMENT PAY ROLLS, OR MAY WORK UNDER DIRECT SUPERVISION OF GOVERNMENT OFFICERS, IS NOT CONCLUSIVE UPON THEIR RIGHT TO SICK OR ANNUAL LEAVE BENEFITS.

THE AUTHORITY IN SECTION 5.2 OF THE LEAVE REGULATIONS FOR THE HEAD OF ANY GOVERNMENT AGENCY TO PROMULGATE SUPPLEMENTAL REGULATIONS "CONSISTENT WITH THESE REGULATIONS" FOR ADMINISTERING LEAVE FOR EMPLOYEES "WHO WORK 24-HOUR SHIFTS, OR OTHER UNCOMMON TOURS OF DUTY" DOES NOT AUTHORIZE SUPPLEMENTAL REGULATIONS GRANTING ANNUAL LEAVE TO EMPLOYEES SPECIFICALLY EXCEPTED FROM THE LEAVE REGULATIONS, AS SUCH ACTION WOULD NULLIFY SUCH EXCEPTIONS AND, THEREFORE, WOULD NOT BE "CONSISTENT WITH THESE REGULATIONS.'

IN 18 COMP. GEN. 457, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE WORDING OF AN EMPLOYEE'S APPOINTMENT IS NOT NECESSARILY DETERMINATIVE OF HIS RIGHT TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND THE APPLICABLE REGULATIONS ISSUED THEREUNDER IF HIS ACTUAL SERVICE DIFFERS FROM THAT INDICATED IN THE APPOINTMENT. 16 COMP. GEN. 442.

AN EMPLOYEE GIVEN AN APPOINTMENT FOR AN INDEFINITE PERIOD WITH COMPENSATION AT PER DIEM RATES WHEN ACTUALLY EMPLOYED--- WHETHER OR NOT IT IS THE ADMINISTRATIVE POLICY NOT TO CONSIDER THESE EMPLOYEES AS "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH"--- IS PRESUMED TO BE AVAILABLE FOR DUTY WHENEVER CALLED, ALTHOUGH PERFORMANCE EACH TIME CALLED MAY NOT BE COMPULSORY, AND SUCH EMPLOYEE IS AN INDEFINITE EMPLOYEE AND ENTITLED TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND THE LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, WHEN A SUFFICIENT CONTINUOUS PERIOD OF SERVICE HAS BEEN RENDERED, AND A STATEMENT IN THE APPOINTMENT THAT THE APPOINTEE IS NOT REQUIRED TO BE AVAILABLE FOR DUTY AT ANY TIME WOULD NOT REMOVE HIM FROM THE CLASS OF INDEFINITE EMPLOYEES, BUT IF THE APPOINTMENT IS LIMITED TO A DEFINITE PERIOD OF LESS THAN 6 MONTHS THE EMPLOYEE IS A TEMPORARY EMPLOYEE, AND AS SUCH ENTITLED TO ANNUAL AND SICK LEAVE WHEN A SUFFICIENT PERIOD OF SERVICE HAS BEEN RENDERED. SEE 17 COMP. GEN. 1017; 18 ID. 400.

INTERMITTENT EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, ARE THOSE RENDERING SERVICES UNDER REPEATED APPOINTMENTS OR EMPLOYMENTS FOR SHORT PERIODS NONE OF WHICH EXTENDS FOR A FULL CALENDAR MONTH, BUT SHOULD THE SERVICES UNDER SUCH INTERMITTENT APPOINTMENTS COVER A CONTINUOUS PERIOD OF 1 MONTH THE EMPLOYEE WOULD BECOME ENTITLED TO LEAVE AS A TEMPORARY EMPLOYEE.

IN 17 COMP. GEN. 1017, THE RULES FOR APPLYING THE ANNUAL LEAVE REGULATIONS TO INDEFINITE EMPLOYEES ARE EXPLAINED AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE PHRASE "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH" AS USED IN THE DEFINITION OF "INDEFINITE EMPLOYEES" IN THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, MEANS THE MINIMUM PERIOD THE EMPLOYEE SERVES, OR IS ON CALL FOR DUTY WHEN NEEDED, MUST NOT BE LESS THAN 1 MONTH, BUT THE PHRASE DOES NOT MEAN THAT ANNUAL OR SICK LEAVE MAY BE CREDITED TO AN EMPLOYEE FOR LAY OFF OR FURLOUGH PERIODS WITHOUT PAY OR FOR PERIODS OF CONTINUOUS SERVICE OF LESS THAN 1 MONTH.

AN EMPLOYEE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR A PERIOD OF 1 MONTH OR MORE, WHO, ALTHOUGH NOT CONTINUOUSLY EMPLOYED FOR A MONTH AT ANY TIME, IS REQUIRED TO BE IN READINESS FOR CALL TO WORK AT ANY TIME, IS AN "INDEFINITE EMPLOYEE" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, BUT UNLESS HE SERVED CONTINUOUSLY FOR AT LEAST 1 MONTH AT SOME TIME HE WOULD NEVER ACCRUE ANY ANNUAL OR SICK LEAVE.

WITH RESPECT TO YOUR CONTENTION THAT LONGSHOREMEN AND STEVEDORES, ALTHOUGH PAID WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR ARE REQUIRED TO BE AVAILABLE FOR DUTY WITHOUT TIME LIMITATION, IT IS UNDERSTOOD THAT SUCH INDIVIDUALS ARE NOT EMPLOYED CONTINUOUSLY IN THE GOVERNMENT SERVICE, AND THAT NO PARTICULAR INDIVIDUALS ARE REQUIRED TO BE CONTINUOUSLY AVAILABLE FOR GOVERNMENT WORK, BUT THAT THEIR EMPLOYMENT OR AVAILABILITY FOR EMPLOYMENT ON GOVERNMENT WORK IS DEPENDENT UPON THEIR NOT BEING ENGAGED UPON OTHER WORK WHEN THEIR SERVICES ARE REQUESTED; THAT THE GOVERNMENT ACCEPTS WHATEVER INDIVIDUALS ARE AVAILABLE AND HAS NO CHOICE IN THEIR SELECTION; THAT THERE IS NO ASSURANCE THAT THE INDIVIDUAL EMPLOYEES ON ONE GOVERNMENT JOB AGAIN WILL BE EMPLOYED ON GOVERNMENT WORK AT ANY SPECIFIED TIME (OR EVER) UNLESS THEY HAPPEN TO BE AT THE TOP OF THE LIST AWAITING WORK WHEN THE CALL IS RECEIVED AT THE HIRING HALL. ALL DEFINITIONS OR EXCEPTIONS IN THE GOVERNMENT LEAVE REGULATIONS RELATE TO EMPLOYMENT IN THE GOVERNMENT SERVICE AND NOT TO EMPLOYMENT IN PRIVATE INDUSTRY.

I HAVE GIVEN MOST CAREFUL CONSIDERATION TO THE VARIOUS ARGUMENTS ADVANCED, BUT MUST CONCLUDE THAT LONGSHOREMEN AND STEVEDORES EMPLOYED UPON THE BASIS STATED IN YOUR LETTER ARE NOT PERMANENT, TEMPORARY, OR INDEFINITE EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF THE GOVERNMENT LEAVE REGULATIONS, BUT THAT THEY COME WITHIN THE EXCEPTIONS TO SUCH REGULATIONS SET FORTH IN SECTION 6.1 (E), SUPRA. ACCORDINGLY, I FIND NO AUTHORITY UNDER SUCH REGULATIONS TO EXTEND TO LONGSHOREMEN OR STEVEDORES THE ANNUAL OR SICK LEAVE BENEFITS APPLICABLE TO PERMANENT, TEMPORARY, OR INDEFINITE EMPLOYEES.