B-58956, JULY 29, 1946, 26 COMP. GEN. 63

B-58956, JULY 29, 1946, 26 COMP. GEN. 63

LEAVES OF ABSENCE - INDEFINITE EMPLOYEE CONCURRENTLY EMPLOYED AS PART TIME OR INTERMITTENT EMPLOYEE THE TIME WORKED BY AN EMPLOYEE APPOINTED TO AN EXCEPTED POSITION UNDER CIVIL SERVICE SCHEDULE A-I-6 AS PART TIME OR INTERMITTENT EMPLOYEE, SUCH EMPLOYEE BEING EXCEPTED BY SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS FROM THE BENEFITS OF THE LEAVE STATUTES OF MARCH 14, 1936, MAY NOT BE COUPLED WITH TIME WORKED UNDER A CONCURRENT APPOINTMENT TO AN EXCEPTED POSITION UNDER SCHEDULE A-I-14 AS AN INDEFINITE EMPLOYEE FOR THE PURPOSE OF DETERMINING WHETHER HE HAS PERFORMED A "MONTH OF SERVICE" WITHIN THE MEANING OF SECTION 1.1 (C) OF THE REGULATIONS SO AS TO BE CREDITED WITH LEAVE AS AN INDEFINITE EMPLOYEE.

COMPTROLLER GENERAL WARREN TO P. F. VON THADEN, DEPARTMENT OF AGRICULTURE, JULY 29, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 20, 1946, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION THE ATTACHED PAYROLL, BUREAU VOUCHER NO. 19373. THIS PAYROLL REPRESENTS LUMP SUM LEAVE PAYMENT IN THE AMOUNT OF $11.52 TO MR. MILTON G. THOMAS.

MR. THOMAS WAS CONCURRENTLY EMPLOYED UNDER TWO LETTER OF AUTHORIZATION APPOINTMENTS. ONE APPOINTMENT WAS AS AN UNSKILLED LABORER AT 72 CENTS AN HOUR UNDER SCHEDULE A-I-14 OF THE CIVIL SERVICE RULES AND REGULATIONS AND THE OTHER APPOINTMENT WAS AS A TRUCK DRIVER AT 87 CENTS PER HOUR UNDER THE PROVISIONS OF SCHEDULE A-I-6.

IN YOUR DECISION B-57538 DATED MAY 22, 1946 (25 COMP. GEN. 796), YOU STATED THAT NO LEAVE ACCRUED TO AN EMPLOYEE APPOINTED UNDER THE PROVISIONS OF SCHEDULE A-1-6. HOWEVER, SINCE MR. THOMAS WORKED UNDER TWO DIFFERENT APPOINTMENTS, AND SINCE THE APPOINTMENT AS UNSKILLED LABORER AT 72 CENTS AN HOUR WAS UNDER SCHEDULE A-I-14, WHICH CONTAINS NO LIMITATION AS TO THE TIME WHICH MAY BE WORKED, IT IS CONCEIVABLE THAT MR. THOMAS MAY BE PROPERLY GRANTED LEAVE.

MR. THOMAS' RECORD OF EMPLOYMENT FROM MARCH 4, 1946, HIS FIRST DAY OF EMPLOYMENT, UNTIL APRIL 29, 1946, HIS LAST DAY OF EMPLOYMENT IS AS FOLLOWS:

CHART

A-I-6 A-I-14

PERIOD EMPLOYED

TRUCK DRIVER LABORER 10.72

10.87 PER HOUR PER HOUR

HOURS HOURS MAR. 4-8, 1946 ------------------------------------ 36 MAR. 11-22, 1946 ---------------------

64 ---------- MAR. 25- APR. 5, 1946 --------------- 80 ---------- APR. 8- 19, 1946 ---------------------- 80 ---------- APR. 22-26, 1946 -----------

40---------- APR. 29, 1946 ------------------------------------- 8

264 44

TIME RECORDS REFLECT THAT THE EMPLOYEE WORKED FROM MARCH 18 THROUGH APRIL 29, 1946, WITHOUT A BREAK IN SERVICE. ALL SUCH EMPLOYMENT, EXCEPT THE LAST DAY, APRIL 29, 1946, WAS AT THE TRUCK DRIVER RATE UNDER THE A-I-6 APPOINTMENT.

THE QUESTIONS INVOLVED ARE:

(1) CAN AN EMPLOYEE WORKING UNDER TWO APPOINTMENTS RUNNING CONCURRENTLY (ONE OF WHICH IS A LIMITED A-I-6 APPOINTMENT) EARN ANNUAL AND SICK LEAVE IF HE HAS WORKED FULL TIME FOR ONE MONTH WORKING FIRST AS AN UNSKILLED LABORER THEN AS A TRUCK DRIVER, AND VICE VERSA?

(2) IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE, AT WHAT SALARY RATE WOULD THE LUMP SUM LEAVE PAYMENT BE COMPUTED, THAT IS, SINCE THE EMPLOYEE HAS TWO APPOINTMENTS WOULD THE LUMP SUM LEAVE PAYMENT BE COMPUTED ON THE BASIS OF THE PARTICULAR POSITION WHICH HE OCCUPIED JUST PRIOR TO HIS TERMINATION OR WOULD IT BE ON THE BASIS OF LEAVE EARNED UNDER EACH POSITION?

CIVIL SERVICE SCHEDULE A-I, LISTING POSITIONS EXCEPTED FROM EXAMINATION UNDER SECTION 3, CIVIL SERVICE RULE II, STATED AS AUTHORITY FOR THE APPOINTMENTS IN THIS CASE, PROVIDES, IN SUBSECTIONS 6 AND 14, AS FOLLOWS:

ANY PERSON RECEIVING FROM ONE DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT FOR HIS PERSONAL SALARY COMPENSATION AGGREGATING NOT MORE THAN $648 PER ANNUM WHOSE DUTIES REQUIRE ONLY A PORTION OF HIS TIME, OR WHOSE SERVICES ARE NEEDED FOR VERY BRIEF PERIODS AT INTERVALS,PROVIDED THAT EMPLOYMENT UNDER THIS PROVISION SHALL NOT BE FOR JOB WORK SUCH AS CONTEMPLATED IN SECTION 4 OF RULE VIII. * * *

14. UNSKILLED LABORERS AT ANY CITY, LOCALITY OR ESTABLISHMENT WHERE THE LABOR REGULATIONS WERE NOT IN EFFECT ON JULY 1, 1941. THE COMMISSION, WITH THE CONCURRENCE OF THE DEPARTMENT OR AGENCY CONCERNED, MAY INCLUDE WITHIN THE CLASSIFIED CIVIL SERVICE UNSKILLED LABOR POSITIONS AT ANY SUCH CITY, LOCALITY OR ESTABLISHMENT.

THE PERTINENT SECTIONS OF THE REVISIONS OF THE ANNUAL AND SICK LEAVE LAWS AND REGULATIONS, EFFECTIVE JANUARY 1, 1945, PROVIDE, AS FOLLOWS:

SECTION 1.1. AS USED IN THESE REGULATIONS:

(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.

(I) "MONTH OF SERVICE" MEANS A PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH OR BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR MONTH.

SECTION 2.1. ANNUAL LEAVE SHALL BE CREDITED TO EMPLOYEES AS FOLLOWS:

(C) INDEFINITE EMPLOYEES SHALL BE CREDITED WITH LEAVE OF 2 DAYS FOR EACH MONTH OF SERVICE PLUS AN ADDITIONAL 1/2 DAY WHEN THE SERVICE AGGREGATES 3 MONTHS.

SECTION 2.3. * * * TEMPORARY AND INDEFINITE EMPLOYEES SHALL NOT BE GRANTED LEAVE UNTIL IMMEDIATELY PRIOR TO THE END OF THE MONTH IN WHICH IT IS EARNED.

IT APPEARS FROM YOUR SUBMISSION THAT ALTHOUGH THE EMPLOYEE'S A-I-14 APPOINTMENT WAS IN EFFECT FOR MORE THAN A FULL MONTH, ONLY 6 DAYS' WORK WAS PERFORMED THEREUNDER--- 5 OF WHICH APPARENTLY WERE CONTINUOUS--- AND THAT DURING THE INTERIM BETWEEN THE FIFTH AND SIXTH DAY'S WORK SERVICES WERE PERFORMED UNDER THE A-I-6 APPOINTMENT.

ALTHOUGH IT IS NOT ENTIRELY CLEAR FROM THE RECORD, IT IS PRESUMED THAT THE APPOINTMENT UNDER SCHEDULE A-I-14 AS AN UNSKILLED LABORER WAS SUCH AS TO BRING THE EMPLOYEE WITHIN THE MEANING OF AN ,INDEFINITE EMPLOYEE" AS DEFINED IN THE LEAVE REGULATIONS, SUPRA, AND THIS DECISION IS RENDERED UPON THAT BASIS. UNDER THE LEAVE REGULATIONS, ANNUAL AND SICK LEAVE MAY BE CREDITED OR GRANTED TO INDEFINITE EMPLOYEES ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE, AND UNLESS AN INDEFINITE EMPLOYEE'S SERVICE CONTINUES FOR AT LEAST ONE MONTH HE NEVER WOULD ACCRUE ANNUAL OR SICK LEAVE. IN ASCERTAINING WHETHER THE EMPLOYEE HAS PERFORMED A FULL MONTH'S SERVICE, IT IS CLEAR THAT TIME WORKED UNDER AN APPOINTMENT NOT COVERED BY THE LEAVE REGULATIONS MAY NOT BE COUPLED UP WITH THAT WORKED UNDER AN APPOINTMENT WHICH IS SUBJECT TO THOSE REGULATIONS, EVEN THOUGH THE APPOINTMENTS BE CONCURRENTLY IN FORCE. APPLYING THAT RULE TO THE CASE AT HAND, IT MUST BE CONCLUDED THAT NO LEAVE WAS EARNED BY THE EMPLOYEE UNDER THE APPOINTMENTS INVOLVED BECAUSE EMPLOYEES APPOINTED UNDER SCHEDULE A-I-6 ARE PART-TIME OR INTERMITTENT EMPLOYEES AND AS SUCH ARE SPECIFICALLY EXCEPTED FROM THE LEAVE REGULATIONS, AND BECAUSE THE LONGEST PERIOD OF CONTINUOUS SERVICE UNDER THE INDEFINITE APPOINTMENT (A-I-14) WAS 5 DAYS, OR LESS THAN ONE MONTH. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (2).

THE PAY ROLL VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.