A-79026, MARCH 17, 1937, 16 COMP. GEN. 865

A-79026, MARCH 17, 1937, 16 COMP. GEN. 865

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - ALASKA RAILROAD EMPLOYEES - SWITCHING OF DUTIES - ACCRUALS AND RATES OF PAYMENT FOR LEAVE TAKEN REGULARLY ASSIGNED TRAINMEN OF THE ALASKA RAILROAD WHO ARE PERMANENT EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND REGULATIONS OF THE PRESIDENT ISSUED THEREUNDER, ARE ENTITLED TO LEAVE WITH PAY FOR ALL PERIODS OF SERVICE WHETHER ON AN "ASSIGNED RUN," OR ON AN EXTRA OR UNASSIGNED RUN, OR WHILE PERFORMING ANY OTHER KIND OF SERVICE UNDER THE TERMS OF THEIR EMPLOYMENT. A TRAINMAN OF THE ALASKA RAILROAD WHO PERFORMS DUTY ON AN "ASSIGNED RUN" FOR LESS THAN ONE MONTH IS NOT ENTITLED TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND REGULATIONS OF THE PRESIDENT ISSUED THEREUNDER, IF HE IS NOT OTHERWISE IN A PAY STATUS FOR A CONTINUOUS PERIOD OF ONE MONTH, BUT IF HIS STATUS IS OTHERWISE SUCH AS TO ENTITLE HIM TO LEAVE WITH PAY, THE FACT THAT HE WAS LESS THAN ONE MONTH ON AN "ASSIGNED RUN" WOULD NOT DEPRIVE HIM OF THE RIGHT TO SUCH LEAVE. REGULARLY ASSIGNED TRAINMEN OF THE ALASKA RAILROAD BEING PERMANENT AND NOT TEMPORARY EMPLOYEES, THEY MAY ACCRUE LEAVE UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND REGULATIONS OF THE PRESIDENT ISSUED THEREUNDER, THROUGH MORE THAN ONE PERIOD OF CONTINUOUS ACTIVE SERVICE OF NOT LESS THAN ONE MONTH, REGARDLESS OF THE CHARACTER OF THE SERVICE PERFORMED AND WHETHER SEPARATED BY LAY-OFF OR FURLOUGHS WITHOUT PAY. REGULARLY ASSIGNED TRAINMEN OF THE ALASKA RAILROAD WHO UNDER THE TERMS OF THEIR EMPLOYMENT MAY BE ASSIGNED DIFFERENT DUTIES AT DIFFERENT RATES OF PAY MAY SUBSTITUTE ACCRUED UNUSED ANNUAL LEAVE FOR AN EQUAL PERIOD OF LAY- OFF OR FURLOUGH WITHOUT PAY, BUT PAYMENT OF COMPENSATION DURING SUCH PERIOD MUST BE AT THE LAST RATE PAID FOR ACTIVE SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MARCH 17, 1937:

YOUR LETTER OF MARCH 10, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JANUARY 14, 1937 (A-79026), REGARDING LEAVE FOR EMPLOYEES OF THE ALASKA RAILROAD. THE GENERAL MANAGER HAS SUBMITTED THE FOLLOWING ADDITIONAL QUESTIONS, ON WHICH YOUR DECISION IS RESPECTFULLY REQUESTED:

THE MAJORITY OF THE TRAINMEN ON THE ALASKA RAILROAD HOLD SENIORITY RIGHTS AS CONDUCTOR AND BRAKEMEN AND DURING A YEAR MANY OF THEM WILL WORK FROM TIME TO TIME AS EITHER CONDUCTOR OR BRAKEMAN AND ARE PAID THE RATE FOR POSITION WORKED. SOME OF THIS WORK MAY BE ON AN ASSIGNED RUN, AND DURING THE TIME THAT THEY ARE ON ASSIGNED RUN THEY EARN ANNUAL AND SICK LEAVE. WHEN THE ASSIGNED RUN IS DISCONTINUED, AN EMPLOYEE MAY TRANSFER OVER TO ANOTHER ASSIGNED RUN OR TO AN UNASSIGNED RUN EITHER AS CONDUCTOR OR BRAKEMAN, OR HE MAY GO ON THE EXTRA BOARD AND BE AVAILABLE FOR SERVICE IN THE FIRST POSITION WHICH HIS SENIORITY WOULD ENTITLE HIM TO HOLD, OR TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY,

(1) DOES A TRAINMAN EARN LEAVE IF HE IS LESS THAN ONE MONTH ON AN ASSIGNED RUN?

(2) WHEN A TRAINMAN CHANGES FROM AN ASSIGNED RUN TO AN EXTRA OR UNASSIGNED RUN, CAN HE PERMIT THE ANNUAL LEAVE THAT HE HAS EARNED ON THE ASSIGNED RUN TO ACCRUE BY NOT TAKING THE LEAVE PRIOR TO THE CHANGE?

(3) CAN A TRAINMAN GO ON THE "EXTRA BOARD" (AVAILABLE FOR SERVICE, TO BE CALLED FOR FIRST POSITION TO WHICH HIS SENIORITY ENTITLES, BUT NOT PAID ANY SALARY WHILE WAITING FOR ASSIGNMENT) WITHOUT USING HIS ACCUMULATED AND CURRENT ACCRUED LEAVE?

(4) IF A TRAINMAN CAN TRANSFER FROM AN ASSIGNED RUN TO AN UNASSIGNED RUN OR TO THE EXTRA BOARD WITHOUT TAKING HIS ACCRUED LEAVE PRIOR TO TRANSFER, AND THEN LATER GOES ON ANNUAL LEAVE, SHOULD THE ANNUAL LEAVE BE PAID AT THE RATE THE EMPLOYEE WAS PAID ON THE LAST ASSIGNED RUN OR AT THE RATE OF HIS LAST EMPLOYMENT, CONSIDERING THAT HE EARNS LEAVE ONLY ON ASSIGNED RUN AND MAY HAVE WORKED AS A BRAKEMAN ON THE ASSIGNED RUN AND THE SUBSEQUENT SERVICE ON THE UNASSIGNED RUN MAY HAVE BEEN AS A CONDUCTOR?

(5) IN VIEW OF THE FACT THAT TRAINMEN CHANGE BACK AND FORTH BETWEEN POSITIONS OF CONDUCTOR AND BRAKEMAN, IT WOULD APPEAR EQUITABLE THAT THEY BE PAID FOR ANNUAL LEAVE TAKEN ON THE BASIS OF THE PROPORTION EARNED IN EACH POSITION. CAN PAYMENT BE MADE ON THIS BASIS?

IN DECISION OF JANUARY 14, 1937, 16 COMP. GEN. 648, IT WAS HELD AS FOLLOWS:

* * * IT NOW APPEARS FROM RULES QUOTED IN YOUR LETTER, SUPRA, THAT REGULARLY ASSIGNED ENGINE MEN, FIREMEN, CONDUCTORS, BAGGAGE MEN, AND BRAKEMEN ARE PAID A GUARANTEED MONTHLY MINIMUM WAGE IF THEY ARE AVAILABLE FOR DUTY EVEN THOUGH WORK IS NOT PERFORMED AND UNDER CERTAIN CONDITIONS ARE CREDITED FOR PAY PURPOSES WITH 8 HOURS ON SUNDAYS AND HOLIDAYS ON WHICH NO WORK IS PERFORMED. THIS BASIS OF PAYMENT CLEARLY HAS NOT THE ELEMENTS OF "WHEN ACTUALLY EMPLOYED," AS THAT TERM IS ORDINARILY UNDERSTOOD AND AS USED IN SECTION 19 OF THE UNIFORM ANNUAL LEAVE REGULATIONS AND IN SECTION 22 OF THE UNIFORM SICK LEAVE REGULATIONS EXCLUDING FROM THE BENEFITS OF THE LEAVE ACTS OF MARCH 14, 1936, "EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS: (1) EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED.' HENCE, THEY MAY BE REGARDED AS PAID ON A FULL TIME BASIS RATHER THAN WHEN ACTUALLY EMPLOYED AND ARE ENTITLED TO BOTH ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY UNDER THE TERMS OF THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND PURSUANT TO THE TERMS AND CONDITIONS OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS ISSUED PURSUANT THERETO.

THIS DECISION IS LIMITED IN EFFECT TO REGULARLY ASSIGNED TRAINMEN WHOSE CONDITIONS OF EMPLOYMENT AND COMPENSATION ARE CONTROLLED BY THE RULES QUOTED IN YOUR LETTER.

YOUR LETTER WOULD SEEM TO INDICATE AN UNDERSTANDING THAT WHEN A REGULARLY ASSIGNED TRAINMAN IS TEMPORARILY PERFORMING SERVICE OTHER THAN ON AN ASSIGNED RUN, HE DOES NOT EARN LEAVE. SUCH WAS NOT THE INTENT OF THE DECISION. IF, AS WAS UNDERSTOOD FROM YOUR FORMER SUBMISSION, THESE REGULARLY ASSIGNED TRAINMEN ARE PERMANENT EMPLOYEES OF THE UNITED STATES AND THEREFORE ENTITLED TO LEAVE WITH PAY UNDER THE LAW AND REGULATIONS, THEY EARN LEAVE DURING ALL PERIODS OF SERVICE FOR THE ALASKA RAILROAD WHETHER ON AN ASSIGNED RUN OR ON AN EXTRA OR UNASSIGNED RUN OR WHILE PERFORMING ANY OTHER KIND OF SERVICE UNDER THE TERMS OF THEIR EMPLOYMENT. IT IS NOT THE CHARACTER OF THE SERVICE PERFORMED WHICH ENTITLES THEM TO LEAVE BUT THE PERMANENT BASIS OR CONTINUOUS NATURE OF THE EMPLOYMENT. COURSE, THEY ARE NOT ENTITLED TO ACCRUE LEAVE FOR PERIODS ON THE "EXTRA BOARD" OR DURING ANY OTHER PERIOD OF LAY-OFF WITHOUT PAY.

IN DECISION OF JANUARY 26, 1937, 16 COMP. GEN. 678, 680, IT WAS HELD:

* * * EMPLOYEES WHO ARE APPOINTED ON A FULL-TIME BASIS FOR AN INDEFINITE PERIOD BUT WHOSE WORK THEREUNDER IS PERFORMED PERIODICALLY BY BEING REQUIRED TO SERVE CONTINUOUSLY DURING REGULAR TOURS OF DUTY OF 1 MONTH OR MORE SEPARATED BY PERIODS OF LAY-OFF OR FURLOUGH WITHOUT PAY DUE TO LACK OF WORK, NONAVAILABILITY OF FUNDS, ETC., ARE TO BE REGARDED FOR LEAVE PURPOSES NOT AS INTERMITTENT EMPLOYEES BUT AS PERMANENT EMPLOYEES. ACCORDINGLY, IF SUCH ARE THE CONDITIONS OF EMPLOYMENT OF MR. POWELL AND OTHERS REFERRED TO IN YOUR LETTER, THEY MAY BE CREDITED WITH LEAVE WITH PAY AT THE RATE OF 2 1/6 DAYS FOR EACH FULL MONTH OF SERVICE. THIS, OF COURSE, DOES NOT APPLY TO EMPLOYEES WHO ARE TO BE PAID ONLY WHEN ACTUALLY EMPLOYED.

REFERRING TO YOUR QUESTION (1), IF THE TRAINMAN IS NOT OTHERWISE IN A PAY STATUS FOR A CONTINUOUS PERIOD OF 1 MONTH, THE QUESTION IS ANSWERED IN THE NEGATIVE. BUT IF HIS STATUS IS OTHERWISE SUCH AS TO ENTITLE HIM TO LEAVE WITH PAY, THE FACT THAT HE WAS LESS THAN 1 MONTH ON AN ,ASSIGNED RUN" WOULD NOT DEPRIVE HIM OF THE RIGHT TO SUCH LEAVE.

AS REGULARLY ASSIGNED TRAINMEN ARE PERMANENT EMPLOYEES, NOT TEMPORARY, THEY MAY ACCRUE LEAVE THROUGH MORE THAN ONE PERIOD OF CONTINUOUS ACTIVE SERVICE OF NOT LESS THAN 1 MONTH, REGARDLESS OF THE CHARACTER OF THE SERVICE PERFORMED, SEPARATED BY LAY-OFF OR FURLOUGH PERIODS WITHOUT PAY. QUESTION (2) IS ANSWERED ACCORDINGLY.

FOR REASONS HEREINBEFORE STATED, QUESTION (3) IS ANSWERED IN THE AFFIRMATIVE.

ACCRUED UNUSED ANNUAL LEAVE MAY BE SUBSTITUTED FOR AN EQUAL PERIOD OF LAY -OFF OR FURLOUGH WITHOUT PAY. DECISION OF MARCH 6, 1937, A 80007, 16 COMP. GEN. 818. 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. QUESTION (4) IS ANSWERED ACCORDINGLY.