B-6406, OCTOBER 18, 1939, 19 COMP. GEN. 445

B-6406: Oct 18, 1939

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE POSTMASTER GENERAL MAY GRANT LEAVE OF ABSENCE WITHOUT PAY OR FURLOUGH TO EMPLOYEES IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT FOR AN INDEFINITE PERIOD WHILE THEY ARE ON ACTIVE DUTY IN THE NAVY AS MEMBERS OF THE NAVAL RESERVE UNDER AUTHORITY OF THE ACT OF JUNE 25. UNUSED LEAVE OF ABSENCE EARNED BY EMPLOYEES IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT MAY REMAIN TO THEIR CREDIT DURING THEIR INDEFINITE ABSENCE OR FURLOUGH WITHOUT PAY WHILE THEY ARE ON ACTIVE DUTY IN THE NAVY AS MEMBERS OF THE NAVAL RESERVE UNDER AUTHORITY OF THE ACT OF JUNE 25. 1939: I HAVE YOUR LETTER OF OCTOBER 5. AS FOLLOWS: NUMEROUS EMPLOYEES IN THE CUSTODIAL SERVICE OF THIS DEPARTMENT WHO ARE MEMBERS OF THE FLEET RESERVE AND NAVAL RESERVE HAVE BEEN RECALLED TO ACTIVE DUTY IN THE UNITED STATES NAVY.

B-6406, OCTOBER 18, 1939, 19 COMP. GEN. 445

INDEFINITE LEAVE WITHOUT PAY - POST OFFICE DEPARTMENT CUSTODIAL EMPLOYEES ON ACTIVE DUTY AS NAVAL RESERVISTS - EFFECT ON UNUSED LEAVE IN THE ABSENCE OF STATUTE OR REGULATION PROVIDING OTHERWISE, THE POSTMASTER GENERAL MAY GRANT LEAVE OF ABSENCE WITHOUT PAY OR FURLOUGH TO EMPLOYEES IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT FOR AN INDEFINITE PERIOD WHILE THEY ARE ON ACTIVE DUTY IN THE NAVY AS MEMBERS OF THE NAVAL RESERVE UNDER AUTHORITY OF THE ACT OF JUNE 25, 1938, 52 STAT. 1175, AND EXECUTIVE ORDER NO. 8245 DATED SEPTEMBER 8, 1939. UNUSED LEAVE OF ABSENCE EARNED BY EMPLOYEES IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT MAY REMAIN TO THEIR CREDIT DURING THEIR INDEFINITE ABSENCE OR FURLOUGH WITHOUT PAY WHILE THEY ARE ON ACTIVE DUTY IN THE NAVY AS MEMBERS OF THE NAVAL RESERVE UNDER AUTHORITY OF THE ACT OF JUNE 25, 1938, 52 STAT. 1175, AND EXECUTIVE ORDER NO. 8245, DATED SEPTEMBER 8, 1939, THERE BEING NO REGULATION REQUIRING THAT ALL ACCUMULATED UNUSED ANNUAL LEAVE BE GRANTED TO SUCH EMPLOYEES PRIOR TO THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY. 18 COMP. GEN. 653, INVOLVING EMPLOYEES SUBJECT TO UNIFORM ANNUAL LEAVE REGULATIONS ISSUED UNDER ACT OF MARCH 14, 1936, 49 STAT. 1161, DISTINGUISHED.

COMPTROLLER GENERAL BROWN TO THE POSTMASTER GENERAL, OCTOBER 18, 1939:

I HAVE YOUR LETTER OF OCTOBER 5, 1939, AS FOLLOWS:

NUMEROUS EMPLOYEES IN THE CUSTODIAL SERVICE OF THIS DEPARTMENT WHO ARE MEMBERS OF THE FLEET RESERVE AND NAVAL RESERVE HAVE BEEN RECALLED TO ACTIVE DUTY IN THE UNITED STATES NAVY.

YOUR DECISION IS REQUESTED AS TO WHETHER THESE EMPLOYEES MAY BE GRANTED LEAVE WITHOUT PAY FOR THE TIME THEY MAY BE ON ACTIVE DUTY IN THE NAVY.

IT WILL ALSO BE APPRECIATED IF YOU WILL ADVISE WHETHER SUCH EMPLOYEES SHOULD BE REQUIRED TO TAKE THE ANNUAL LEAVE WITH PAY TO WHICH THEY MAY BE ENTITLED OR WHETHER SUCH LEAVE MAY REMAIN TO THEIR CREDIT DURING THEIR INDEFINITE ABSENCE.

SECTION 5 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1176, PROVIDES AS FOLLOWS:

ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309, TITLE III, OF THIS ACT, OR WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: * * *

EXECUTIVE ORDER NO. 8245 DATED SEPTEMBER 8, 1939, PROVIDES, IN PART, AS FOLLOWS:

WHEREAS A PROCLAMATION ISSUED BY ME ON SEPTEMBER 8, 1939, PROCLAIMED THAT A NATIONAL EMERGENCY EXISTS IN CONNECTION WITH AND TO THE EXTENT NECESSARY FOR THE PROPER OBSERVANCE, SAFEGUARDING, AND ENFORCING OF THE NEUTRALITY OF THE UNITED STATES AND THE STRENGTHENING OF OUR NATIONAL DEFENSE WITHIN THE LIMITS OF PEACE AUTHORIZATIONS; AND

4. THE SECRETARY OF THE NAVY IS ALSO AUTHORIZED TO ORDER TO ACTIVE DUTY SUCH OFFICERS AND MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE OTHER THAN TRANSFERRED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, INCLUDING AVIATION CADETS, AS HE MAY DEEM NECESSARY AND AS AGREE VOLUNTARILY TO SERVE.

SECTION 4 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDES AS FOLLOWS:

NOTHING IN THIS ACT SHALL AFFECT THE POSTMASTER GENERAL AND OFFICERS AND EMPLOYEES IN OR UNDER THE POST OFFICE DEPARTMENT: PROVIDED, THAT OFFICERS AND EMPLOYEES IN THE DEPARTMENTAL SERVICE AND IN THE MAIL EQUIPMENT SHOPS OF THE POST OFFICE DEPARTMENT SHALL BE INCLUDED WITHIN THE PROVISIONS OF THIS ACT. SEE, ALSO, SECTION 4 OF THE SICK LEAVE ACT OF THE SAME DATE.

AS EMPLOYEES OF THE CUSTODIAL SERVICE ARE "IN OR UNDER THE POST OFFICE DEPARTMENT" AND DO NOT COME WITHIN EITHER OF THE EXPRESS EXCEPTIONS STATED IN THE STATUTE LAST ABOVE QUOTED, THE GRANTING OF LEAVE OF ABSENCE TO SUCH EMPLOYEES, EITHER WITH OR WITHOUT PAY, IS CONTROLLED BY THE POSTAL LAWS AND REGULATIONS. COMPARE THE STATUS OF SUCH EMPLOYEES FOR COMPENSATION PURPOSES CONSIDERED IN DECISION OF DECEMBER 11, 1934, 14 COMP. GEN. 448. THE ONLY REGULATION WHICH I HAVE BEEN ABLE TO FIND INVOLVING THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY IS THAT CONTAINED IN SECTION 458 (3) OF THE POSTAL LAWS AND REGULATIONS, AS FOLLOWS:

POSTMASTERS MAY, IN ADDITION TO LEAVE OF ABSENCE WITH PAY, PROVIDED BY LAW, GRANT LEAVE OF ABSENCE WITHOUT PAY TO EMPLOYEES FOR PERSONAL REASONS, SUCH LEAVE NOT TO EXCEED 30 DAYS IN ANY CASE DURING ANY ONE FISCAL YEAR. APPLICATION FOR LEAVE OF ABSENCE FOR A PERIOD LONGER THAN 30 DAYS SHALL BE SUBMITTED TO THE FIRST ASSISTANT POSTMASTER GENERAL WITH A FULL STATEMENT OF THE FACTS. AN EMPLOYEE SHALL NOT BE ALLOWED TO START ON SUCH LEAVE UNTIL FORMAL APPROVAL HAS BEEN RECEIVED.

IN DECISION OF MARCH 7, 1939, 18 COMP. GEN. 699, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A CIVILIAN EMPLOYEE OF THE GOVERNMENT, WHO IS ALSO A NAVAL RESERVE OFFICER, ORDERED WITH HIS CONSENT TO 6 MONTHS' ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS UNDER AUTHORITY OF THE APPLICABLE EXECUTIVE ORDER, NEED NOT BE REQUIRED TO RESIGN HIS CIVILIAN POSITION AND MAY BE ADMINISTRATIVELY FURLOUGHED WITHOUT PAY FOR THE DURATION OF SUCH DUTY.

REFERRING TO YOUR FIRST QUESTION, IN THE ABSENCE OF STATUTE OR REGULATION PROVIDING OTHERWISE, IT IS WITHIN YOUR DISCRETION TO GRANT LEAVE OF ABSENCE WITHOUT PAY OR FURLOUGH TO EMPLOYEES IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT FOR AN INDEFINITE PERIOD WHILE THEY ARE ON ACTIVE DUTY IN THE NAVY AS MEMBERS OF THE NAVAL RESERVE UNDER AUTHORITY OF THE ACT OF JUNE 25, 1938, AND EXECUTIVE ORDER NO. 8245, SUPRA.

THE ACT OF MAY 15, 1939, 53 STAT. 745, PROVIDES, IN PART, AS FOLLOWS:

EMPLOYEES IN THE POSTAL SERVICE 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, BUT NO SICK LEAVE WITH PAY IN EXCESS OF SIX MONTHS SHALL BE GRANTED DURING ANY ONE FISCAL YEAR. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS IN ACCORDANCE WITH THE 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.

AS ANNUAL LEAVE GRANTED UNDER THIS STATUTE IS CUMULATIVE FROM YEAR TO YEAR WITHOUT LIMITATION ON THE NUMBER OF FISCAL YEARS DURING WHICH LEAVE MAY ACCUMULATE, AND AS THERE APPEARS TO BE NO REGULATION OF THE POST OFFICE DEPARTMENT ISSUED PURSUANT TO SAID STATUTE OR EARLIER STATUTES OF SIMILAR IMPORT REQUIRING ALL ACCUMULATED UNUSED ANNUAL LEAVE TO BE GRANTED TO AN EMPLOYEE PRIOR TO GRANTING HIM LEAVE OF ABSENCE WITHOUT PAY, THE UNUSED LEAVE EARNED BY EMPLOYEES IN THE CUSTODIAL SERVICE PRIOR TO ENTERING THE NAVAL SERVICE AS RESERVISTS MAY REMAIN TO THEIR CREDIT DURING THEIR INDEFINITE ABSENCE OR FURLOUGH WITHOUT PAY. COMPARE SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, ISSUED UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND 18 COMP. GEN. 653.