A-79026, AUGUST 10, 1936, 16 COMP. GEN. 139

A-79026, AUGUST 10, 1936, 16 COMP. GEN. 139

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - ALASKA RAILROAD EMPLOYEES EMPLOYEES OF THE ALASKA RAILROAD, BEING EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 10, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 24, 1936, AS FOLLOWS:

THE LEAVE LAWS OF MARCH 14, 1936 (PUBLIC, NOS. 471 AND 472, 74TH CONGRESS) AND THE EXECUTIVE ORDERS OF JULY 9, PRESCRIBING REGULATIONS RELATING TO ANNUAL AND SICK LEAVE, RAISE CERTAIN QUESTIONS WITH RESPECT TO THE PERSONNEL OF THE ALASKA RAILROAD. THE FOLLOWING IS QUOTED FROM A RADIOGRAM FROM THE GENERAL MANAGER OF THAT ORGANIZATION:

"* * * THE PAY AND WORKING RULES GOVERNING TRAINMEN, INCLUDING LOCOMOTIVE ENGINEERS AND FIREMEN, CONDUCTORS, BRAKEMEN, AND BAGGAGE MEN WERE ADOPTED SOME YEARS AGO BY THE GENERAL MANAGER OF THE RAILROAD AFTER CONFERENCE WITH REPRESENTATIVES OF THE MEN. FOR REGULAR ASSIGNED TRAINMEN AGREEMENT PROVIDES THAT ONE HUNDRED MILES OR LESS OR EIGHT HOURS OR LESS SHALL CONSTITUTE A DAY'S WORK AND IF ACTUAL TIME WORKED OR RUN MADE IS LESS THAN EIGHT HOURS AND ONE HUNDRED MILES THEY ARE CREDITED WITH CONSTRUCTIVE TIME AND MILES TO MAKE MINIMUM OF EIGHT HOURS AND ONE HUNDRED MILES. WHEN TRIP OVER MORE THAN ONE DIVISION TRAINMEN CREDITED ONE HUNDRED MILES OR EIGHT HOURS OR ELSE ACTUAL MILES OR HOURS FOR EACH DIVISION, ALSO CREDITED WITH EIGHT HOURS CONSTRUCTIVE TIME PER DAY FOR SUNDAYS OR DAYS WHEN NO SERVICE PERFORMED, THUS MAKING THEIR MONTHLY GUARANTEE WHICH IS BASED ON TWO HUNDRED FORTY HOURS PER MONTH. WHEN TRIP OVER ONE HUNDRED MILES OR EIGHT HOURS PER DAY THEY ARE CREDITED WITH ACTUAL MILEAGE OR HOURS AND PAID FOR MONTH EITHER TOTAL MILES OR TOTAL HOURS (BOTH ACTUAL AND CONSTRUCTIVE), WHICHEVER GREATER. TRAINMEN NOT WORKING ON ASSIGNED RUN ARE PAID FOR MILES OR HOURS, WHICHEVER GREATER, EACH DAY OF SERVICE, WITH MINIMUM ONE HUNDRED MILES OR EIGHT HOURS, ALSO PAID DAY FOR EACH DIVISION RUN OVER BUT ARE NOT PAID FOR SUNDAY OR DAYS NO SERVICE PERFORMED AND NO MONTHLY GUARANTEE. ALL TRAINMEN HOLD SENIORITY RIGHTS AND WHEN PASSENGER, FREIGHT, OR WORK TRAIN REQUIRED FOR SERVICE SEVEN DAYS OR OVER TRAIN IS BULLETINED AND MEN BID FOR JOB AND ASSIGNED TO SENIOR TRAINMEN IN POINT OF SERVICE SENIORITY AND THIS CONSIDERED REGULAR ASSIGNED TRAIN CREW. WHEN TRAIN OPERATED FOR SHORT PERIOD OR BEFORE CREW ASSIGNED, SENIOR AVAILABLE TRAINMEN OPERATE TRAIN AND ARE EXTRA OR UNASSIGNED TRAINMEN. HERETOFORE TRAINMEN HAVE NOT BEEN GRANTED ANNUAL LEAVE BUT REGULAR ASSIGNED TRAINMEN WERE ALLOWED TWENTY HOURS SICK LEAVE PER MONTH ACCUMULATIVE TO TWO HUNDRED FORTY HOURS DURING CALENDAR YEAR AND NOT EXTEND BEYOND YEAR. UNASSIGNED TRAINMEN NOT ALLOWED SICK LEAVE. SICK AND ANNUAL LEAVE ACTS MARCH FOURTEEN THIRTY-SIX APPLICABLE TO RAILROAD * * *.

"QUESTION ONE. CAN REGULAR ASSIGNED TRAINMEN BE ALLOWED SICK AND ANNUAL LEAVES UNDER ACTS MARCH FOURTEENTH?

"QUESTION TWO. CAN UNASSIGNED TRAINMEN BE ALLOWED LEAVE ON BASIS TIME WORKED?

"LABORERS EMPLOYED IN SECTION GANGS PAID HOURLY RATE WHEN ACTUALLY EMPLOYED AND HOLD SENIORITY RIGHTS AND IF FORCE REDUCED LABORER LAID OFF CAN EXERCISE SENIORITY AND DISPLACE AN EMPLOYEE WITH LESS SENIORITY ANOTHER SECTION WITHIN DIVISION OF RAILROAD WHERE EMPLOYED. SECTION LABORER FORCES INCREASED DURING SUMMER MONTHS AND NOTHING DEFINITE AS TO NUMBER EMPLOYED ANY SECTION GANGS DURING WINTER BUT AS RAILROAD EMPLOYS ABOUT ONE HUNDRED SEVENTY LABORERS YEAR ROUND SOME LABORERS WORK ALL YEAR BY EXERCISING SENIORITY IF NECESSARY AND LARGE NUMBER HAVE WORKED STEADY ON SAME SECTION GANG FOR SEVERAL YEARS. WHEN LABORER HIRED IMPOSSIBLE TO DETERMINE HOW LONG HE WILL BE EMPLOYED AS WEATHER OR OTHER CONDITIONS MAY REQUIRE EXTENSION CONTEMPLATED WORK ON TRACK AND IT MAY TURN OUT TO BE A STEADY JOB OR WHEN PARTICULAR JOB FINISHED EMPLOYEE MAY BE TRANSFERRED OR EXERCISE SENIORITY TO ANOTHER JOB. LABORERS HAVE NOT HERETOFORE BEEN ALLOWED ANNUAL LEAVE BUT WERE ALLOWED ONE DAY PER MONTH SICK LEAVE.

"QUESTION THREE. CAN SECTION GANG LABORERS BE ALLOWED LEAVE UNDER ACT MARCH FOURTEENTH THIRTY-SIX?

"QUESTION FOUR. CAN RAILROAD LEAVE REGULATIONS SPECIFY THAT SECTION GANG LABORERS PAID AT HOURLY RATE WHERE LENGTH OF SERVICE CANNOT BE DETERMINED IN ADVANCE WILL BE ALLOWED ANNUAL LEAVE AFTER A CERTAIN PERIOD OF CONTINUOUS SERVICE AS FOR INSTANCE AFTER SIX MONTHS SERVICE?

"QUESTION FIVE. IF IT IS HELD THAT TRAINMEN AND SECTION GANG LABORERS CANNOT BE ALLOWED SICK LEAVE UNDER ACT MARCH FOURTEENTH, THIRTY-SIX, CAN THEY BE ALLOWED SICK LEAVE UNDER PREVIOUS ACTS AND RAILROAD REGULATIONS WHICH ALLOWED THIRTY DAYS AND TWELVE DAYS SICK LEAVE RESPECTIVELY?

YOUR DECISION IS RESPECTFULLY REQUESTED ON THE QUESTIONS RAISED IN THE ABOVE-QUOTED RADIOGRAM.

IT IS UNDERSTOOD FROM THE QUOTED RADIOGRAM AND THE REGULATIONS OF THE ALASKA RAILROAD ON FILE IN THIS OFFICE THAT WHILE ASSIGNED TRAINMEN ARE REGULARLY EMPLOYED IN THE GENERAL SENSE, THEY ARE PAID ONLY FOR ACTUAL SERVICE ON A MILEAGE OR PER DIEM BASIS WITH A MINIMUM MONTHLY GUARANTEE; THAT UNASSIGNED TRAINMEN AND LABORERS ARE PAID ONLY WHEN ACTUALLY EMPLOYED; AND THAT THE ONLY LEAVE OF ABSENCE HERETOFORE ALLOWED TO ANY OF THE CLASSES OF EMPLOYEES MENTIONED IN THE QUOTED LETTER HAS BEEN 20 HOURS' SICK LEAVE PER MONTH TO REGULARLY ASSIGNED TRAINMEN (WHICH, UPON A WORK- HOUR OR WORK-DAY BASIS, IS IN EXCESS OF THE AMOUNT GRANTED BY THE SICK LEAVE ACT OF MARCH 14, 1936 (49 STAT. 1162), WITH PRIVILEGE OF ACCUMULATION TO A TOTAL OF 240 HOURS DURING THE YEAR--- THE ACCUMULATION, HOWEVER, NOT EXTENDING BEYOND THE CALENDAR YEAR.

IN THE DECISION OF JUNE 4, 1936, A-75907, 15 COMP. GEN. 1058, QUESTION 7 WAS STATED AND ANSWERED AS FOLLOWS:

"QUESTION 7. SECTION 5 OF PUBLIC, NO. 471 AND SECTION 5 OF PUBLIC, NO. 472, READ:

" "NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.'

"THERE IS GREAT VARIATION IN THE GRANTS OF ANNUAL LEAVE AND SICK LEAVE TO FEDERAL EMPLOYEES STATIONED IN ALASKA, HAWAII, PUERTO RICO, CANAL ZONE, ETC., AND IN FOREIGN COUNTRIES. SOME STATUTES PERMIT THIRTY DAYS ANNUAL LEAVE WITHOUT ACCUMULATION, AND SOME HAVE BEEN CONSTRUED AS NOT PERMITTING SICK LEAVE.

"DECISION IS DESIRED WHETHER THE LANGUAGE OF SECTION 5 OF THE TWO ACTS IS SUCH AS TO PERMIT A CHOICE BETWEEN THE LEAVE GRANTED BY PUBLIC, NO. 471 AND PUBLIC, NO. 472, RESPECTIVELY, AS A WHOLE, AND THE LEAVE GRANTED BY OTHER EXISTING AND APPLICABLE LAWS AS A WHOLE; OR WHETHER IT IS PERMISSIBLE TO SELECT THE MOST DESIRABLE FEATURES OF THE LAWS AND MERGE THEM INTO REGULATIONS FOR EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. AS A SPECIFIC ILLUSTRATION, MAY AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE STATIONED IN ALASKA FOR WHOM EXISTING LAW (SEC. 583, TITLE 5 U.S. CODE) GRANTS THIRTY DAYS ANNUAL LEAVE WITHOUT ACCUMULATION, BE PERMITTED TO HAVE THE THIRTY DAYS LEAVE PLUS THE ACCUMULATION PERMITTED BY PUBLIC, NO. 471? OR, MAY HE BE PERMITTED TO COME WITHIN THE TERMS OF PUBLIC, NO. 471 AS A WHOLE?

REFERRING TO QUESTION 7, IT MAY BE STATED THAT THE LEGISLATIVE INTENT OF SECTION 5 OF THE LEAVE ACTS OF MARCH 14, 1936, IS NOT ENTIRELY CLEAR. WOULD SEEM, HOWEVER, THAT AS THERE COULD BE NO ,CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL" WITHOUT CONTINUING ALSO THE TERMS AND CONDITIONS ON WHICH SUCH DIFFERENTIAL NOW OBTAINS, IT IS CONCLUDED THAT ALL EXISTING LEAVE LAWS APPLICABLE TO "EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED TATES" WHICH ALLOW AN AMOUNT OF ANNUAL OR SICK LEAVE IN EXCESS OF THAT GRANTED BY THE LEAVE ACTS OF MARCH 14, 1936, REMAIN IN FULL FORCE AND EFFECT AND THAT NO PORTIONS OF THE RESPECTIVE ANNUAL OR SICK-LEAVE ACTS OF MARCH 14, 1936, SO EXCEEDED, WILL BE APPLICABLE TO SUCH EMPLOYEES.

IT WAS HELD, ALSO, IN SAID DECISION, IN ANSWER TO QUESTION 5, THAT "AN APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDING FOR PAYMENT OF COMPENSATION ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" OR ON A FEE BASIS FOR THE PARTICULAR SERVICE RENDERED, IS INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY.' THIS RULE HAS BEEN INCORPORATED IN BOTH THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS ISSUED BY THE PRESIDENT. UNDER THE ANSWER TO QUESTION 7 IN THE DECISION OF JUNE 4, 1936, SUPRA, AND IF THEIR STATUS OTHERWISE PERMITTED IT, THE EMPLOYEES OF THE ALASKA RAILROAD REGULARLY EMPLOYED WHO HERETOFORE HAVE NOT BEEN ENTITLED TO LEAVE OR TO LEAVE IN AN AMOUNT LESS THAN THAT ALLOWED BY THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, WOULD NOW BE ENTITLED TO LEAVE UNDER SAID STATUTES. HOWEVER, IT WOULD APPEAR FROM THE INFORMATION FURNISHED THAT THE EMPLOYEES INVOLVED MAY BE DEEMED TO BE OF THAT CLASS WHOSE COMPENSATION IS UPON THE "WHEN ACTUALLY EMPLOYED" BASIS, IN VIEW OF WHICH NONE OF THE EMPLOYEES MENTIONED WOULD, UNDER ANSWER TO QUESTION 5 IN THE CITED DECISION, BE ENTITLED EITHER TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS OF THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162.