B-6493, NOVEMBER 2, 1939, 19 COMP. GEN. 474

B-6493: Nov 2, 1939

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IS NO LONGER IN EFFECT. 1939: I HAVE YOUR LETTER OF OCTOBER 10. IT WAS PROVIDED: "THAT HEREAFTER NOT EXCEEDING FIVE DAYS OF THE FIFTEEN DAYS' ANNUAL LEAVE WITH PAY. YOUR DECISION IS REQUESTED AS TO WHETHER THE FIVE-DAY CARRY-OVER LIMITATION OF THE ACT OF FEBRUARY 28. IS STILL IN EFFECT. THE FOLLOWING CITATIONS ARE GIVEN FOR YOUR CONVENIENCE IN THE CONSIDERATION OF THIS QUESTION: SECTIONS 7 AND 11. IT WAS PROVIDED: THAT THE FIRST PARAGRAPH OF SECTION 11 OF THE ACT ENTITLED "AN ACT RECLASSIFYING THE SALARIES OF POSTMASTERS AND EMPLOYEES OF THE POSTAL SERVICE. IS AMENDED TO READ AS FOLLOWS: "EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EXCLUSIVE OF SUNDAYS AND HOLIDAYS.

B-6493, NOVEMBER 2, 1939, 19 COMP. GEN. 474

LEAVES OF ABSENCE - ANNUAL - POSTAL EMPLOYEES - CUMULATION THE 5-DAY ANNUAL LEAVE CARRY-OVER--- TO THE SUCCEEDING FISCAL YEAR--- LIMITATION OF THE ACT OF FEBRUARY 28, 1925, ORIGINALLY APPLICABLE TO RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY, IS NO LONGER IN EFFECT, IN VIEW OF THE ANNUAL LEAVE PROVISIONS OF SECTION 215 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 407, AND THE ANNUAL LEAVE CUMULATIVE AUTHORITY OF THE POSTAL SERVICE EMPLOYEES' LEAVE ACT OF MAY 15, 1939, 53 STAT. 745.

COMPTROLLER GENERAL BROWN TO THE POSTMASTER GENERAL, NOVEMBER 2, 1939:

I HAVE YOUR LETTER OF OCTOBER 10, 1939, AS FOLLOWS:

BY SECTION 7 OF THE ACT APPROVED FEBRUARY 28, 1925 (43 STAT. 1063), IT WAS PROVIDED:

"THAT HEREAFTER NOT EXCEEDING FIVE DAYS OF THE FIFTEEN DAYS' ANNUAL LEAVE WITH PAY, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, GRANTED TO RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY EACH FISCAL YEAR MAY BE CARRIED OVER TO THE SUCCEEDING FISCAL YEAR.'

SECTION 11, PARAGRAPH 1, OF THE SAME ACT DEFINED THE ANNUAL AND SICK LEAVE PRIVILEGES OF ALL EMPLOYEES OF THE POSTAL SERVICE.

YOUR DECISION IS REQUESTED AS TO WHETHER THE FIVE-DAY CARRY-OVER LIMITATION OF THE ACT OF FEBRUARY 28, 1925, IS STILL IN EFFECT.

THE FOLLOWING CITATIONS ARE GIVEN FOR YOUR CONVENIENCE IN THE CONSIDERATION OF THIS QUESTION: SECTIONS 7 AND 11, ACT OF FEBRUARY 28, 1925 (43 STAT. 1063); ACTS OF JUNE 5, 1920, MAY 17, 1928, AND MAY 15, 1939 ( U.S.C. TITLE 39 (1934 ED.) SEC. 823); SECTIONS 215 AND 802 OF THE ACT OF JUNE 30, 1932 (47 STAT. 407; U.S.C., TITLE 5 (1934 ED.), SEC. 30A); ACT OF MARCH 14, 1936, 49 STAT. 1161 ( U.S.C., TITLE 5 (1934 ED.), SUPP. IV, SEC. 30B, 30E, 30-1), PUBLIC, NO. 78, APPROVED MAY 15, 1939.

SECTION 3 OF THE ACT OF JUNE 19, 1922, 42 STAT. 660, PROVIDES AS FOLLOWS:

THAT THE PARAGRAPH OF THE ACT ENTITLED "AN ACT TO RECLASSIFY POSTMASTERS AND EMPLOYEES OF THE POSTAL SERVICE AND READJUST THEIR SALARIES AND COMPENSATION ON AN EQUITABLE BASIS," APPROVED JUNE 5, 1920, PROVIDING FOR LEAVES OF ABSENCE, BE AMENDED TO READ AS FOLLOWS:

"HEREAFTER EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, EACH FISCAL YEAR, AND SICK LEAVE WITH PAY AT THE RATE OF TEN DAYS A YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, TO BE CUMULATIVE FOR A PERIOD OF THREE YEARS, BUT NO SICK LEAVE WITH PAY IN EXCESS OF THIRTY DAYS SHALL BE GRANTED DURING ANY THREE CONSECUTIVE YEARS. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS AND IF MORE THAN TWO DAYS THE APPLICATION THEREFOR SHALL BE ACCOMPANIED BY A PHYSICIAN'S CERTIFICATE.'

SECTION 7 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1063, PROVIDED IN PERTINENT PART, AS OLLOWS:

THAT SECTION 3 OF THE ACT APPROVED JUNE 19, 1922 ( FORTY-FIRST STATUTES, PAGE 660 ( FORTY-SECOND) (, PROVIDING FOR LEAVES OF ABSENCE OF EMPLOYEES IN THE POSTAL SERVICE, BE AMENDED BY ADDING THE FOLLOWING PROVISO: "PROVIDED, THAT HEREAFTER NOT EXCEEDING FIVE DAYS OF THE FIFTEEN DAYS' ANNUAL LEAVE WITH PAY, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, GRANTED TO RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY EACH FISCAL YEAR MAY BE CARRIED OVER TO THE SUCCEEDING FISCAL YEAR.' AND SECTION 11 OF THE SAME ACT, 43 ID. 1064, PROVIDED:

EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EXCLUSIVE OF SUNDAYS AND HOLIDAYS, EACH FISCAL YEAR, AND SICK LEAVE WITH PAY AT THE RATE OF TEN DAYS A YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, TO BE CUMULATIVE, BUT NO SICK LEAVE WITH PAY IN EXCESS OF THIRTY DAYS SHALL BE GRANTED DURING ANY ONE FISCAL YEAR. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE POSTMASTER GENERAL.

THE FIFTEEN DAYS' LEAVE SHALL BE CREDITED AT THE RATE OF ONE AND ONE- QUARTER DAYS FOR EACH MONTH OF ACTUAL SERVICE.

BY THE ACT OF MAY 17, 1928, 45 STAT. 594, IT WAS PROVIDED:

THAT THE FIRST PARAGRAPH OF SECTION 11 OF THE ACT ENTITLED "AN ACT RECLASSIFYING THE SALARIES OF POSTMASTERS AND EMPLOYEES OF THE POSTAL SERVICE, READJUSTING THEIR SALARIES AND COMPENSATION ON AN EQUITABLE BASIS, INCREASING POSTAL RATES TO PROVIDE FOR SUCH READJUSTMENT, AND FOR OTHER PURPOSES," APPROVED FEBRUARY 28, 1925 ( FORTY-THIRD STATUTES, PAGE 1064, U.S.C. TITLE 39, SECTION 823), IS AMENDED TO READ AS FOLLOWS:

"EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EXCLUSIVE OF SUNDAYS AND HOLIDAYS, EACH FISCAL YEAR, AND SICK LEAVE WITH PAY AT THE RATE OF TEN DAYS A YEAR, EXCLUSIVE OF 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.'

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1928.

SECTION 215 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 407, CONTAINS A PROVISION AS FOLLOWS:

HEREAFTER NO CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO RECEIVES ANNUAL LEAVE WITH PAY SHALL BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY IN EXCESS OF FIFTEEN DAYS IN ANY ONE YEAR, EXCLUDING SUNDAYS AND LEGAL HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR MAY BE CUMULATIVE FOR ANY SUCCEEDING YEAR: PROVIDED FURTHER, THAT NOTHING HEREIN SHALL APPLY TO CIVILIAN OFFICERS AND EMPLOYEES OF THE PANAMA CANAL LOCATED ON THE ISTHMUS AND WHO ARE AMERICAN CITIZENS OR TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICES OF THE UNITED STATES HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES: * * *

THE STATUTE LAST ABOVE-QUOTED WAS APPLICABLE TO ALL CIVILIAN EMPLOYEES OF THE GOVERNMENT EXCEPT THOSE IN THE CLASSES EXPRESSLY EXCLUDED BY ITS SPECIFIC TERMS. AS POSTAL EMPLOYEES, INCLUDING RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY, WERE NOT EXPRESSLY EXCLUDED BY ITS TERMS IT MUST BE CONCLUDED THAT SAID NAMED PERSONNEL WERE AMONG THOSE EMBRACED THEREUNDER. HENCE, SECTION 44 OF THE POSTAL LAWS AND REGULATIONS WAS PROPERLY AMENDED BY ORDER 5345, DATED APRIL 20, 1934, TO APPLY SECTION 215 OF THE ECONOMY ACT, SUPRA, TO POSTAL EMPLOYEES. SAID STATUTE AND REGULATION PROVIDE ,THAT THE PART (OF ANNUAL LEAVE) UNUSED IN ANY YEAR MAY BE CUMULATIVE FOR ANY SUCCEEDING YEAR.' SAID SECTION 215 BEING INCONSISTENT OR IN CONFLICT WITH THE 1925 STATUTE HEREINABOVE QUOTED, HAD, BY VIRTUE OF THE PROVISIONS OF SECTION 802 OF THE ACT OF JUNE 30, 1932, 47 STAT. 419, THE EFFECT OF SUPERSEDING OR RENDERING INOPERATIVE THE QUOTED PORTION OF SECTION 7 OF THE ACT OF FEBRUARY 28, 1925, LIMITING TO 5 DAYS THE ANNUAL LEAVE THAT RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY WERE PERMITTED TO CARRY OVER TO THE SUCCEEDING FISCAL YEAR.

POSTAL EMPLOYEES, EXCEPT THOSE IN THE MAIL EQUIPMENT SHOPS, ARE EXPRESSLY EXCLUDED FROM THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, APPLICABLE TO OTHER CIVILIAN EMPLOYEES OF THE GOVERNMENT WITH CERTAIN EXCEPTIONS. SEE SECTION 4 OF THE STATUTE.

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

THAT PARAGRAPH 1 OF SECTION 11 OF THE ACT ENTITLED "AN ACT RECLASSIFYING THE SALARIES OF POSTMASTERS AND EMPLOYEES OF THE POSTAL SERVICE, READJUSTING THEIR SALARIES AND COMPENSATION ON AN EQUITABLE BASIS, INCREASING POSTAL RATES TO PROVIDE FOR SUCH READJUSTMENT, AND FOR OTHER POSES," APPROVED FEBRUARY 28, 1925 ( U.S.C., TITLE 39, 1934 EDITION, SEC. 823), AS AMENDED, IS AMENDED TO READ 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.'

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE AS OF FEBRUARY 1, 1939.

THE STATUTE LAST ABOVE-QUOTED REENACTED AND AMENDED ONLY PARAGRAPH 1 OF SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, AND IN NOWISE REVIVED THE PROVISIONS OF SECTION 7 OF SAID ACT RELATIVE TO THE 5-DAY CARRY OVER LIMITATION REPEALED OR RENDERED INOPERATIVE BY THE ECONOMY ACT, SUPRA. THE RDS,"TO BE CUMULATIVE" APPEARING IN THE 1939 STATUTE SHOULD, IN THE LIGHT OF THE PROVISIONS OF SECTION 215 OF THE ECONOMY ACT, BE APPLIED TO AUTHORIZE THE ACCUMULATION OF ANNUAL LEAVE OF ALL POSTAL EMPLOYEES TO WHOM THE STATUTE IS APPLICABLE. THE STATUTE HAS BEEN SO APPLIED BY THIS OFFICE. SEE QUESTION AND ANSWER 3, DECISION OF AUGUST 9, 1939, B-5235, 19 COMP. GEN. 177, 180, INVOLVING SUBSTITUTE POSTAL EMPLOYEES, AND DECISION OF OCTOBER 18, 1939, B-6406, INVOLVING EMPLOYEES OF THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT, THE LATTER DECISION SPECIFICALLY STATING THAT " * * * 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.'

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT "THE 5 DAY CARRY-OVER LIMITATION OF THE ACT OF FEBRUARY 28, 1925" (QUOTING FROM YOUR LETTER), ORIGINALLY APPLICABLE TO RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY, IS NO LONGER IN EFFECT.