A-80997, OCTOBER 26, 1936, 16 COMP. GEN. 442

A-80997: Oct 26, 1936

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HAVE BEEN EMPLOYED OVER AN EXTENDED PERIOD ON AN INTERMITTENT BASIS. ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF MARCH 14. AS FOLLOWS: DECISION IS REQUESTED ON THE QUESTIONS PRESENTED BY THE LANGLEY FIELD QUARTERMASTER IN HIS COMMUNICATION AS FOLLOWS: "1. REQUEST IS HEREBY MADE FOR A DECISION ON LEAVE STATUS FOR EMPLOYEES OF THIS OFFICE WHO WERE PERMANENTLY EMPLOYED PRIOR TO THE ECONOMY ACT BUT WHO HAVE. WHEN RECALLED THESE EMPLOYEES HAVE BEEN PAID. DURING THE LONGER PERIODS WERE PAID FROM THREE OR FOUR OF THE ABOVE APPROPRIATIONS ACCORDING TO TIME SPENT ON EACH JOB. "3. INFORMATION IS REQUESTED AS TO WHETHER LEAVE ACCUMULATES FOR THOSE EMPLOYEES IN PROPORTION TO AMOUNT OF TIME EMPLOYED.

A-80997, OCTOBER 26, 1936, 16 COMP. GEN. 442

LEAVES OF ABSENCE - ANNUAL - ACT MARCH 14, 1936 - PERMANENT EMPLOYEES INTERMITTENTLY EMPLOYED EMPLOYEES OF THE WAR DEPARTMENT WHO, ALTHOUGH HOLDING PERMANENT APPOINTMENTS, HAVE BEEN EMPLOYED OVER AN EXTENDED PERIOD ON AN INTERMITTENT BASIS, ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 26, 1936:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 7, 1936, AS FOLLOWS:

DECISION IS REQUESTED ON THE QUESTIONS PRESENTED BY THE LANGLEY FIELD QUARTERMASTER IN HIS COMMUNICATION AS FOLLOWS:

"1. REQUEST IS HEREBY MADE FOR A DECISION ON LEAVE STATUS FOR EMPLOYEES OF THIS OFFICE WHO WERE PERMANENTLY EMPLOYED PRIOR TO THE ECONOMY ACT BUT WHO HAVE, SINCE JUNE 30, 1933, BEEN FURLOUGHED AND RECALLED TO DUTY, TO DATE, AS MANY AS TWENTY-FIVE DIFFERENT TIMES FOR PERIODS OF FROM THREE DAYS' TO NINETY DAYS' SERVICE DURING RECALL.

"2. WHEN RECALLED THESE EMPLOYEES HAVE BEEN PAID, ON SHORT JOBS, FROM VARIOUS APPROPRIATIONS SUCH AS B AND Q, ACA, A.T. (PACKING AND CRATING), C.C.C., C AND R OF H., O.R., AND N.I.R.A. AND DURING THE LONGER PERIODS WERE PAID FROM THREE OR FOUR OF THE ABOVE APPROPRIATIONS ACCORDING TO TIME SPENT ON EACH JOB.

"3. SINCE 1933 NO LEAVE HAS BEEN REQUESTED OR GRANTED TO SUCH EMPLOYEES, DUE TO LIMITED FUNDS BEING APPROPRIATED FOR EACH INDIVIDUAL JOB, AND INFORMATION IS REQUESTED AS TO WHETHER LEAVE ACCUMULATES FOR THOSE EMPLOYEES IN PROPORTION TO AMOUNT OF TIME EMPLOYED, AND, IF SO, SHOULD IT ACCUMULATE AT THE RATE OF TWO AND ONE-SIXTH DAYS PER MONTH OF SERVICE AS A PERMANENT EMPLOYEE OR AT TWO AND ONE-HALF DAYS PER MONTH AS A TEMPORARY EMPLOYEE. IF LEAVE IS ALLOWED TO ACCUMULATE FOR THESE EMPLOYEES AND LEAVE SHOULD BE REQUESTED DURING A PERIOD OF SERVICE ON A SMALL JOB, THERE WOULD NOT BE SUFFICIENT FUNDS TO GRANT THE LEAVE AND COMPLETE THE JOB. AS THE EMPLOYEES ARE, IN MOST CASES, FURLOUGHED, DUE TO LACK OR SHORTAGE OF FUNDS, A REQUEST FOR ACCUMULATED LEAVE PRIOR TO FURLOUGH COULD NOT BE GRANTED EITHER, AS THERE WOULD BE NO FUNDS OF ANY KIND AVAILABLE WITH WHICH TO PAY THE EMPLOYEES WHILE ON LEAVE TO WHICH THEY WOULD BE ENTITLED.

"4. DUE TO LIMITED FUNDS FOR THE PRESENT FISCAL YEAR, MOST OF THE EMPLOYEES OF THIS NATURE WILL BE RECALLED FOR SHORT PERIODS TO ACCOMPLISH NECESSARY WORK, AND IT IS THOUGHT THAT SOME DECISION SHOULD BE MADE REGARDING LEAVE STATUS. SINCE EARLY SPRING THERE HAS BEEN A GREAT SCARCITY OF SKILLED MECHANICS IN THIS LOCALITY; AND ALL MEN ON FURLOUGH, THOUGH ABLE TO SECURE STEADY WORK AT A LARGER SALARY IN THE SURROUNDING COMMUNITIES, HAVE ALWAYS RETURNED TO THIS STATION WHEN RECALLED TO DUTY, IN ORDER TO RETAIN THEIR CIVIL SERVICE STATUS. THIS WORKS QUITE A HARDSHIP ON THESE EMPLOYEES, AND THEY FEEL THAT THEY ARE ENTITLED TO LEAVE PRIVILEGES IN ORDER TO COMPENSATE THEM FOR TIME LOST IN LEAVING OTHER EMPLOYMENT.

"5.FOLLOWING IS A TYPICAL CASE OF THE ABOVE NATURE:

"HARRY A. POWELL--- CARPENTER, $1,680 PER ANNUM; PROBATIONAL APPOINTED 6/22/31.

TABLE

FURLOUGH 1 YEAR, WOP RETURNED FROM FURLOUGH APPROPRIATION

FROM WHICH PAID JUNE 30, 1933 ---------- AUG. 1, 1933 -------------- B AND Q. AUG. 21, 1933 ---------- SEPT. 28, 1933 ------------- A.T.'D.' OCT. 7, 1933 ----------- OCT. 9, 1933 (TEM. A., N.I.R.A.

N.I.R.A.). DEC. 1, 1933 (TERM. JAN. 29, 1934 (TEM. A., DO.

N.I.R.A.). N.I.R.A.). JUNE 1, 1934 (TERM., JUNE 4, 1934 --------------- B AND Q, A.T.,

N.I.R.A.). ACA, AND C AND R

OF H. JUNE 30, 1934 ---------- JULY 2, 1934 ------------- - A.T. JULY 10, 1934 ---------- JULY 18, 1934 -------------- DO. JULY 23, 1934 ---------- AUG. 1, 1934 --------------- A.T., ACA. SEPT. 5, 1934 ---------- SEPT. 12, 1934 ------------- A.T. SEPT. 21, 1934 --------- SEPT. 24, 1934 (TEM. A., N.I.R.A.

N.I.R.A.). SEPT. 28, 1934 (TERM., OCT. 1, 1934 --------------- A.T.

N.I.R.A.) OCT. 9, 1934 ----------- OCT. 10, 1934 (TEM. A., N.I.R.A.

N.I.R.A.). OCT. 15, 1934 (TERM., OCT. 23, 1934 -------------- ACA, A.T., B AND

N.I.R.A.). Q, C AND R OF H. DEC. 6, 1934 ----------- DEC. 11, 1934 ----- --------- A.T. DEC. 21, 1934 ---------- JAN. 7, 1935 --------------- DO. JAN. 9, 1935 ----------- JAN. 21, 1935 -------------- DO. FEB. 5, 1935 - - -------- FEB. 8, 1935 --------------- ACA, A.T., AND

C AND R OF H. APR. 17, 1935 ---------- APR. 22, 1935 -------------- A.T., ACA. JUNE 30, 1935 ---------- JULY 1, 1935 --------------- A.T. JULY 13, 1935 ---------- JULY 24, 1935 ---------- --- A.T., O.R. AUG. 2, 1935 ----- ------ AUG. 20, 1935 (TEM. A., E.R., E.C.W.,

C.C.C.). C.C.C. NOV. 22, 1935 (TERM., NOV. 25, 1935 -------------- A.T., ACA., C

C.C.C.). AND R OF H. JAN. 24, 1936 ---------- FEB. 3, 1936 ------------- -- A.T. FEB. 11, 1936 ---------- MAR. 4, 1936 --------------- DO. MAR. 7, 1936 -------- -- APR. 29, 1936 -------------- A.C.A., A.T.,

O.R., B AND Q,

C AND R OF H. STILL EMPLOYED.

"6. ALLOWING LEAVE AT THE RATE OF 1 1/4 DAYS PER MONTH FOR CALENDAR YEAR 1933-4-5 AND 2 1/6 DAYS PER MONTH FOR 1936, THIS EMPLOYEE HAS ACCUMULATED APPROXIMATELY 29 DAYS' LEAVE UP TO JULY 31, 1936, EXCLUSIVE OF N.I.R.A. OR C.C.C. PROJECT SERVICE. MR. POWELL IS AT PRESENT EMPLOYED ON MAKING ABSOLUTELY NECESSARY B AND Q REPAIRS TO BUILDINGS. SHOULD HE MAKE A REQUEST FOR THIS LEAVE WHILE IN SERVICE AT THIS TIME, DECISION IS REQUESTED AS TO WHETHER SAME SHOULD BE GRANTED AND, IF SO, FROM WHAT FUNDS SHOULD HE BE PAID WHILE ON LEAVE. TO GRANT ACCUMULATED LEAVE TO TWELVE EMPLOYEES WITH PRACTICALLY THE SAME CONDITIONS EXISTING AS IN THE ABOVE CASE WILL GREATLY REDUCE THE AMOUNT OF WORK EXPECTED TO BE ACCOMPLISHED WITH THIS YEAR'S LIMITED FUNDS.'

WHILE THE PERMANENT APPOINTMENTS OF THESE EMPLOYEES EVIDENTLY HAVE NOT BEEN FORMALLY AMENDED, THE ACTUAL CONDITIONS OF INTERMITTENT EMPLOYMENT SINCE 1933, AS STATED IN YOUR LETTER, HAVE OPERATED TO MODIFY THE BASIS OF EMPLOYMENT FROM PERMANENT TO ONE THAT IS SUBSTANTIALLY "WHEN ACTUALLY EMPLOYED" OR AT LEAST ONE MORE OR LESS INTERMITTENT AND NOT ON A REGULAR AND CONTINUOUS BASIS.

SECTION 19 (F) (1), (3), AND (6) OF UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES IN PART AS FOLLOWS:

SEC. 19. THESE REGULATIONS SHALL NOT APPLY TO:

(F) * * * (1) EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED; * * * (3) PART-TIME OR INTERMITTENT EMPLOYEES; * * * (6) EMPLOYEES WHO ARE PAID AT HOURLY RATES BUT WHO ARE NOT ENGAGED ON CONSTRUCTION WORK, SUCH AS MECHANICS, SKILLED LABORERS, AND OTHERS ENGAGED IN VARIOUS SERVICES ON MAINTENANCE, REPAIR, CLEAN-UP WORK, ETC., WHERE EMPLOYMENT IS MORE OR LESS INTERMITTENT AND NOT ON A REGULAR AND CONTINUOUS BASIS; * * *

(SEE ALSO 15 COMP. GEN. 1059; 16 ID. 139.)

YOU ARE ADVISED, THEREFORE, THAT MR. HARRY A. POWELL AND OTHERS IN THE SAME STATUS ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161.

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