A-79026, JUNE 22, 1940, 19 COMP. GEN. 1015

A-79026, JUNE 22, 1940, 19 COMP. GEN. 1015

LEAVES OF ABSENCE - RATE OF COMPENSATION PAYABLE COMPENSATION IS PAYABLE DURING LEAVE OF ABSENCE AT THE RATE APPLICABLE TO THE POSITION FROM WHICH THE EMPLOYEE IS EXCUSED FROM DUTY AND NOT AT THE RATE PAYABLE FOR THE PERIOD DURING WHICH THE LEAVE IS EARNED. PERMANENT EMPLOYEES OF THE ALASKA RAILROAD WHO ARE TEMPORARILY REASSIGNED OR PROMOTED TO POSITIONS AT HIGHER SALARY RATES, AND WHO ARE RETURNED TO THEIR FORMER POSITION PRIOR TO THE EFFECTIVE DATE OF GRANTED ANNUAL LEAVE, ARE ENTITLED TO COMPENSATION FOR THE LEAVE SO TAKEN ONLY AT THE RATE APPLICABLE TO THE POSITION TO WHICH RETURNED EVEN THOUGH NO DUTY BE PERFORMED UNDER SUCH REASSIGNMENT OR RETURN BEFORE THE LEAVE IS TAKEN. PERMANENT EMPLOYEES OF THE ALASKA RAILROAD WHO ARE TEMPORARILY REASSIGNED OR PROMOTED TO POSITIONS AT HIGHER SALARY RATES, AND WHO ARE GRANTED ANNUAL LEAVE WHILE SERVING UNDER THE TEMPORARY ASSIGNMENT TO TAKE EFFECT PRIOR TO RETURN OR REASSIGNMENT TO THEIR FORMER POSITION, ARE ENTITLED TO COMPENSATION FOR THE LEAVE SO TAKEN AT THE HIGHER RATE OF COMPENSATION OF THE TEMPORARILY ASSIGNED POSITION FOR THE ENTIRE PERIOD OF THE LEAVE EVEN THOUGH SAID LEAVE MAY BE IN EXCESS OF THAT EARNED IN THE TEMPORARILY ASSIGNED POSITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JUNE 22, 1940:

I HAVE YOUR LETTER OF MAY 29, 1940, AS FOLLOWS:

WILL YOU PLEASE ADVISE CONCERNING THE FOLLOWING MATTER RELATING TO THE APPLICATION OF THE LEAVE ACT OF MARCH 14, 1936 (49 STAT. 1161), TO EMPLOYEES OF THE ALASKA RAILROAD:

THE ALASKA RAILROAD'S WORKING AGREEMENT WITH THE CLERKS PROVIDES AS FOLLOWS:

"RULE 14--- SHORT VACANCY: POSITIONS OR VACANCIES OF NINETY (90) WORKING DAYS OR LESS DURATION, WILL BE CONSIDERED TEMPORARY, AND MAY BE FILLED WITHOUT BULLETINING, PROVIDED THAT SENIOR EMPLOYEES IN IMMEDIATE OFFICE OR STATION BE GIVEN PREFERENCE * * *.

"RULE 15--- LONG VACANCY: POSITIONS OR VACANCIES KNOWN TO BE OF MORE THAN NINETY (90) WORKING DAYS WILL BE IMMEDIATELY BULLETINED.

"RULE 27--- RATING POSITIONS: POSITIONS (NOT EMPLOYEES) SHALL BE RATED AND THE TRANSFER OF RATES FROM ONE POSITION TO ANOTHER SHALL NOT BE PERMITTED.' AND THE WORKING AGREEMENT WITH THE MAINTENANCE OF WAY EMPLOYEES PROVIDES AS FOLLOWS:

"RULE 4--- AN EMPLOYEE REQUIRED TO FILL A TEMPORARY VACANCY PAYING A HIGHER RATE OF PAY SHALL RECEIVE THE HIGHER RATE OF PAY AFTER EIGHT (8)HOURS; BUT IF REQUIRED TO FILL TEMPORARILY A VACANCY PAYING A LOWER RATE, HIS RATE WILL NOT BE CHANGED.'

FREQUENTLY AN EMPLOYEE IS PROMOTED TO A HIGHER PAYING POSITION DURING A VACANCY CAUSED BY A LEAVE OF ABSENCE AND WHEN THE EMPLOYEE WHO WAS ON LEAVE RETURNS THE EMPLOYEE WHO WAS FILLING THE VACANCY WILL RETURN TO HIS FORMER POSITION AND SALARY. BEFORE RESUMING HIS FORMER POSITION, THE LATTER EMPLOYEE MAY APPLY FOR LEAVE OF ABSENCE AND IT IS GENERALLY CONVENIENT FOR THE RAILROAD TO GRANT IT AT SUCH TIME BECAUSE HIS POSITION LIKEWISE HAS BEEN FILLED BY ANOTHER EMPLOYEE DURING HIS TEMPORARY PROMOTION. A SIMILAR CONDITION EXISTS WHEN A CARPENTER IS PROMOTED TO FOREMAN AT A HIGHER RATE OF PAY DURING THE SUMMER SEASON AND WHEN THE GANG IS LAID OFF IN THE FALL HE WILL RETURN TO HIS FORMER POSITION AS CARPENTER ON ANOTHER GANG. THESE EMPLOYEES RETAIN THEIR STATUS AS PERMANENT EMPLOYEES WHEN THEY FILL THE POSITIONS PAYING THE HIGHER RATE OF PAY.

SECTION 8 OF EXECUTIVE ORDER NO. 7845 PROVIDES IN PART AS FOLLOWS:

"SEC. 8. AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE ENTITLED TO ALL OF HIS ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE AND THE DATE OF HIS DISCHARGE SHALL BE FIXED SO AS TO PERMIT HIM TO TAKE SUCH LEAVE * * *.' AND IN 16 COMP. GEN. 865 IT WAS STATED THAT:

"SINCE LEAVE IS EARNED DURING ALL PERIODS OF ACTIVE SERVICE, PAYMENT OF COMPENSATION DURING SUCH PERIOD MUST BE AT THE LAST RATE PAID FOR ACTIVE SERVICE ON THE BASIS THAT THE PERIOD OF LEAVE IS A CONTINUATION OF SUCH EMPLOYMENT.'

THE ALASKA RAILROAD TAKES THE VIEW THAT THE ABOVE-QUOTED DECISION RELATED TO POSITIONS THAT WERE CONTINUED OR WHERE NO SERVICE WAS PERFORMED FOR A PERIOD PRIOR TO THE LEAVE AND THAT SINCE LEAVE IS SYNONYMOUS WITH WORK AN EMPLOYEE WHO HAS BEEN RELEASED FROM A POSITION UNDER CONDITIONS AS STATED ABOVE TO RETURN TO ANOTHER POSITION AND THEN GOES ON LEAVE BEFORE PERFORMING ANY SERVICE IN THE LATTER POSITION, IS GRANTED LEAVE FROM THE LATTER POSITION AND THAT THE LEAVE SHOULD BE COMPENSATED FOR ACCORDINGLY INSTEAD OF AT THE LAST RATE OF PAY FOR ACTIVE SERVICE. MAY I BE ADVISED IF THE INTERPRETATION AND PROCEDURE OF THE ALASKA RAILROAD ARE CORRECT.

AS SECTION 8 OF EXECUTIVE ORDER NO. 7845 AUTHORIZES THE FIXING OF THE SEPARATION DATE OF AN INVOLUNTARILY SEPARATED EMPLOYEE SO AS TO PERMIT HIM TO USE HIS ACCUMULATED LEAVE, IT WOULD APPEAR TO BE ALONG THE SAME LINE IF THE TRANSFER DATE OF AN EMPLOYEE WHO IS RETURNING TO A FORMER POSITION WERE SET SO THAT HE COULD TAKE THE LEAVE EARNED AT A HIGHER RATE OF PAY AT THE HIGHER RATE OF COMPENSATION.

A PERMANENT EMPLOYEE WHO HAS LEAVE TO HIS CREDIT IS PROMOTED TO A POSITION PAYING A HIGHER SALARY FOR THREE MONTHS AT THE END OF WHICH TIME HE IS TO RETURN TO HIS FORMER POSITION. IF HE IS GRANTED ANNUAL LEAVE AT THE END OF THE THREE MONTHS AND BEFORE PERFORMING ANY SERVICE IN THE POSITION TO WHICH HE IS TO RETURN, MAY HE BE COMPENSATED FOR THE FIRST 6 1/2 DAYS LEAVE AT THE HIGHER RATE AS HE HAD ACCRUED IT AT THAT RATE AND THEN BE COMPENSATED FOR THE BALANCE OF THE LEAVE AT THE RATE FOR THE POSITION TO WHICH HE IS TO RETURN?

THE GENERAL PURPOSE AND INTENT OF THE LEAVE STATUTES IS TO GRANT A RIGHT TO BE ABSENT FROM DUTY WITHOUT LOSS OF PAY DURING AUTHORIZED PERIODS OF ABSENCE. THE LEAVE STATUTE DOES NOT VEST A RIGHT IN THE EMPLOYEE TO BE PAID COMPENSATION DURING LEAVE AT THE RATE PAYABLE WHEN THE LEAVE WAS EARNED. IN OTHER WORDS, COMPENSATION IS PAYABLE DURING LEAVE AT THE RATE APPLICABLE TO THE POSITION FROM WHICH THE EMPLOYEE IS EXCUSED FROM DUTY; NOT AT THE RATE PAYABLE FOR THE PERIOD DURING WHICH THE LEAVE IS EARNED. SEE SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS, REQUIRING REFUND FOR ADVANCED LEAVE "ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED (ANNUAL OR SICK) LEAVE.'

THAT GENERAL PRINCIPLE WAS APPLIED IN STATING THE RULE QUOTED IN YOUR LETTER FROM DECISION OF MARCH 17, 1937, 16 COMP. GEN. 865, 867, IT BEING UNDERSTOOD THAT THE LEAVE THERE INVOLVED WAS TAKEN AT THE END OF ONE ASSIGNMENT AND BEFORE STARTING UPON ANOTHER ASSIGNMENT; THAT IS, UPON THE BASIS THAT THE PERIOD OF LEAVE WAS A CONTINUATION OF THE PRIOR EMPLOYMENT. HOWEVER, IF AN EMPLOYEE BE ACTUALLY REASSIGNED OR RETURNED TO HIS PRIOR EMPLOYMENT BEFORE THE BEGINNING OF THE LEAVE GRANTED, EVEN THOUGH NO DUTY BE PERFORMED UNDER SUCH REASSIGNMENT OR RETURN, THE COMPENSATION RATE PAYABLE DURING LEAVE IS THE RATE APPLICABLE TO THE POSITION TO WHICH THE EMPLOYEE IS RETURNED PRIOR TO THE EFFECTIVE DATE OF THE GRANTED LEAVE; THAT IS, THE RATE OF COMPENSATION PAYABLE FOR THE POSITION FROM WHICH THE EMPLOYEE IS EXCUSED FROM PERFORMING DUTY. ACCORDINGLY, THE VIEW EXPRESSED IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER APPEARS CORRECT.

REFERRING TO THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, WHERE THE RATE OF COMPENSATION PAYABLE WHEN THE LEAVE IS EARNED DIFFERS FROM THE RATE OF COMPENSATION PAYABLE WHEN THE LEAVE IS TAKEN, THE LATTER RATE MUST BE PAID DURING LEAVE. IN THE ILLUSTRATION GIVEN, ONLY ONE RATE OF COMPENSATION DURING THE SAME PERIOD OF LEAVE WOULD BE PAYABLE AND THAT RATE WOULD BE THE RATE APPLICABLE TO THE POSITION FROM WHICH THE EMPLOYEE IS EXCUSED FROM DUTY. THEREFORE, IF THE EMPLOYEE WERE RETURNED TO HIS FORMER POSITION PRIOR TO THE EFFECTIVE DATE OF THE GRANTED LEAVE, THE ONLY RATE PAYABLE DURING LEAVE WOULD BE THAT FIXED FOR THE SAID FORMER POSITION, BUT, ON THE OTHER HAND, IF THE LEAVE WERE GRANTED WHILE THE EMPLOYEE WAS SERVING UNDER THE TEMPORARY ASSIGNMENT TO A POSITION PAYING THE HIGHER RATE TO TAKE EFFECT PRIOR TO HIS RETURN OR REASSIGNMENT TO HIS FORMER POSITION, THE HIGHER RATE OF COMPENSATION FOR THE POSITION TO WHICH HE WAS TEMPORARILY ASSIGNED WOULD BE PAYABLE ON THE BASIS THAT THE LEAVE IS A CONTINUATION OF SUCH EMPLOYMENT.