B-37693, NOVEMBER 6, 1943, 23 COMP. GEN. 344

B-37693, NOVEMBER 6, 1943, 23 COMP. GEN. 344

LEAVES OF ABSENCE - POSTMASTERS ALTHOUGH POSTMASTERS ARE NOT WITHIN THE PURVIEW OF THE PROVISIONS IN 39 U.S.C. 832, ESTABLISHED A 40-HOUR, 5 DAY WEEK FOR POSTAL EMPLOYEES, THEY MAY BE REGARDED AS "EMPLOYEES IN THE POSTAL SERVICE" FOR LEAVE PURPOSES WITHIN THE MEANING OF 39 U.S.C. 823, GRANTING ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY TO POSTAL EMPLOYEES, BUT THERE MAY NOT BE EXCLUDED FROM THE COMPUTATION OF THEIR LEAVE SATURDAYS "OR SHORT WORK WEEK DAY OBSERVED BY THE COMMUNITY OTHER THAN SATURDAY.' IF IT BE ADMINISTRATIVELY FOUND AND DETERMINED THAT THE ATTENDANCE OF POSTMASTERS AT STATE OR NATIONAL POSTMASTERS' CONVENTIONS CONSTITUTES OFFICIAL BUSINESS, IT WOULD NOT BE IMPROPER TO GRANT POSTMASTERS LEAVE OF ABSENCE WITH PAY FOR THE PURPOSE OF ATTENDING SUCH CONVENTIONS. THE ACT OF JUNE 25, 1938, EXTENDING THE CLASSIFIED CIVIL SERVICE TO POSTMASTERS OF THE FIRST, SECOND AND THIRD CLASS, HAS NO EFFECT UPON THE GRANTING OF LEAVE OF ABSENCE WITH PAY TO POSTMASTERS. PURSUANT TO THE POSTAL REGULATION WITH RESPECT TO THE ACCUMULATION BY POSTMASTERS OF UNUSED ANNUAL LEAVE ACCRUING DURING A FISCAL YEAR, SUCH LEAVE MAY BE REGARDED AS CUMULATIVE FROM THE DATE OF APPOINTMENT AS POSTMASTER, REGARDLESS OF WHETHER THE APPOINTMENT WAS MADE IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS, OR AS CUMULATIVE FROM THE EFFECTIVE DATE OF THE REGULATIONS, WHICHEVER IS LATER.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL NOVEMBER 6, 1943:

I HAVE YOUR LETTER OF OCTOBER 15, 1943, AS FOLLOWS:

SECTION 44 (A) OF THE POSTAL LAWS AND REGULATIONS (39 U.S.C. 823) READS 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.'

THE REGULATIONS GOVERNING LEAVE GRANTED TO POSTMASTERS WILL BE FOUND IN PARAGRAPH 5, SECTION 445 OF THE POSTAL LAWS AND REGULATIONS, AMENDED BY ORDER NO. 20104, FEBRUARY 13, 1943.

ATTENTION IS INVITED TO YOUR DECISION OF JUNE 5, 1939 (B-93) (18 COMP. GEN. 904) WHICH HOLDS THAT RURAL CARRIERS ARE "EMPLOYEES IN THE POSTAL SERVICE" AND ARE ENTITLED TO LEAVE BENEFITS PROVIDED UNDER SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, AS AMENDED BY THE ACT OF MAY 17, 1928, BUT THAT THEY ARE NOT INCLUDED WITHIN THE PURVIEW OF THE ACT OF AUGUST 14, 1935, AS AMENDED BY THE ACT OF AUGUST 16, 1937, WHICH FIXES A FIVE-DAY WORK WEEK FOR CERTAIN CLASSES OF POSTAL EMPLOYEES.

THE DECISION ALSO HOLDS THAT INASMUCH AS RURAL CARRIERS ARE REQUIRED TO WORK SIX DAYS PER WEEK, INCLUDING SATURDAYS, THAT ABSENCES FOR SATURDAYS SHOULD BE CHARGED TO LEAVE.

THE DEPARTMENT HAS RECEIVED NUMEROUS INQUIRIES FROM THE FIELD AS TO WHETHER TITLE 39, U.S.C. 823 IS APPLICABLE TO POSTMASTERS. ACCORDINGLY, YOUR DECISION IS REQUESTED AS FOLLOWS:

1. IS SECTION 445 OF THE POSTAL LAWS AND REGULATIONS, PARTICULARLY SUBPARAGRAPH (E), IN CONFLICT WITH TITLE 39, U.S.C. 823, AND MAY POSTMASTERS BE GRANTED LEAVE IN ADDITION TO ANNUAL LEAVE TO ATTEND NATIONAL AND STATE POSTMASTERS' CONVENTIONS?

2. ARE POSTMASTERS CONSIDERED "EMPLOYEES IN THE POSTAL SERVICE" AND AS SUCH ENTITLED TO THE BENEFITS OF TITLE 39, U.S.C. 823?

3. IF POSTMASTERS ARE NOT CONSIDERED "EMPLOYEES IN THE POSTAL SERVICE" IS THERE ANY PROVISION FOR GRANTING THEM ANNUAL AND SICKLEAVE?

4. IF POSTMASTERS CAN BE GRANTED ANNUAL AND SICK LEAVE IS SUCH LEAVE CUMULATIVE SINCE THEY WERE CLASSIFIED UNDER THE ACT OF JUNE 25, 1938?

5. IF A POSTMASTER WAS APPOINTED PRIOR TO JUNE 25, 1938, DOES HIS LEAVE ACCUMULATE FROM THE DATE OF HIS APPOINTMENT OR ONLY SUBSEQUENT TO HIS APPOINTMENT AS A CLASSIFIED POSTMASTER?

SECTION 445, PARAGRAPH 5, POSTAL LAWS AND REGULATIONS, 1940, AS AMENDED BY ORDER NO. 20104 OF FEBRUARY 13, 1943, PROVIDES:

5. POSTMASTERS OF ALL CLASSES SHALL BE GRANTED LEAVE OF ABSENCE AS FOLLOWS, AND THE PROVISIONS OF THIS SECTION APPLY IN ALL RESPECTS TO ACTING POSTMASTERS:

(A) ANNUAL LEAVE.--- 15 DAYS ANNUAL LEAVE WITH PAY DURING EACH FISCAL YEAR, THE UNUSED PORTION OF WHICH IS CUMULATIVE, BUT THE TAKING OF THE SAME WILL BE LIMITED TO 30 DAYS IN ANY ONE FISCAL YEAR. SUNDAYS AND HOLIDAYS ARE EXCLUDED IN COUNTING ANNUAL LEAVE, AND SATURDAYS (OR SHORT WORK-WEEK DAY OBSERVED BY THE COMMUNITY OTHER THAN SATURDAY) ARE EXCLUDED IN EXTENDED PERIODS OF A WEEK OR MORE.

(B) SICK LEAVE--- 10 DAYS' SICK LEAVE WITH PAY DURING EACH FISCAL YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, TO BE CUMULATIVE WITHOUT REGARD TO TIME LIMIT, BUT NO SICK LEAVE WITH PAY IN EXCESS OF SIX MONTHS SHALL BE GRANTED IN ANY ONE FISCAL YEAR. THE MINIMUM CHARGE FOR ABSENCE ON ACCOUNT OF SICKNESS SHALL BE ONE-HALF DAY. APPLICATION FOR SICK LEAVE SHALL BE FILED WITHIN 2 DAYS AFTER RETURN TO DUTY OR AT THE END OF EACH 30-DAY PERIOD IN CASES OF EXTENDED ILLNESS. ( POSTAL BULLETIN NO. 18556, FEBRUARY 17, 1943.)

(C) ANNUAL AND SICK LEAVE SHALL NOT BE GRANTED WITH PAY AT THE BEGINNING OF A FISCAL YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS IN THE PRECEDING FISCAL YEAR UNLESS AND UNTIL THERE IS A RETURN TO DUTY.

(D) LEAVE WITHOUT PAY.--- ALL LEAVE WITHOUT PAY IS GRANTED ON THE BASIS OF FULL DAYS ONLY.

(E) CONVENTIONS.--- LEAVE OF ABSENCE WITH PAY IS GRANTED WITHOUT APPLICATION THEREFOR, AND WITHOUT CHARGE TO ANNUAL LEAVE, TO POSTMASTERS WHO DESIRE TO ATTEND THEIR STATE AND NATIONAL POSTMASTER'S CONVENTIONS, FOR THE TIME IN ATTENDANCE AT THE CONVENTION AND ACTUAL TIME TAKEN TO TRAVEL TO AND FROM THE CONVENTION BY THE SHORTEST POSSIBLE ROUTE BY TRAIN. OFFICES MUST BE LEFT IN CHARGE OF COMPETENT AND DULY BONDED EMPLOYEES, AND WHEN A POSTMASTER RETURNS TO HIS OFFICE HE MUST MAKE PROMPT REPORT OF HIS ABSENCE TO THE INSPECTOR IN CHARGE.

IT HAS BEEN RECOGNIZED BY BOTH THE POST OFFICE DEPARTMENT AND THIS OFFICE THAT POSTMASTERS MAY BE GRANTED ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY AS "EMPLOYEES IN THE POSTAL SERVICE," ALTHOUGH THEY DO NOT FALL WITHIN THE PURVIEW OF THE SO-CALLED 40-HOUR, 5-DAY WEEK STATUTE APPLICABLE TO POSTAL EMPLOYEES--- 39 U.S.C. 832. SEE 21 COMP. GEN. 237, AS AMPLIFIED BY THE DECISION OF NOVEMBER 4, 1941, B-20362, 21 COMP. GEN. 422. IT IS UNDERSTOOD THAT THE POST OFFICE DEPARTMENT HAS GRANTED POSTMASTERS LEAVE WITH PAY FOR MANY YEARS. THAT FACT WAS RECOGNIZED IN DECISION B-13341, DATED SEPTEMBER 3, 1941, 21 COMP. GEN. 191, TO YOU. IN THE ABSENCE OF A STATUTE EXPRESSLY SO PROVIDING, IT WOULD BE UNREASONABLE TO DENY POSTMASTERS LEAVE OF ABSENCE WITH PAY WHILE ALL OTHER CLASSES OF FULL-TIME CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT ENJOY LEAVE BENEFITS.

REFERRING TO PARAGRAPH (E) OF SECTION 445 OF THE REGULATIONS, IF IT BE ADMINISTRATIVELY FOUND AND DETERMINED THAT THE ATTENDANCE OF POSTMASTERS AT STATE OR NATIONAL CONVENTIONS OF POSTMASTERS CONSTITUTES OFFICIAL BUSINESS--- WHICH IS UNDERSTOOD TO BE THE SITUATION--- THE PROVISIONS OF THE REGULATION APPEAR PROPER. COMPARE 17 COMP. GEN. 838, AND THE LAWS AND DECISIONS THEREIN CONSIDERED AND CITED. ACCORDINGLY, ON THE ABOVE-STATED BASIS I DO NOT FIND THAT SECTION 445 OF THE POSTAL LAWS AND REGULATIONS, PARTICULARLY PARAGRAPH (E), CONFLICTS WITH 39 U.S.C. 823, EXCEPT THAT THERE SHOULD BE OMITTED FROM PARAGRAPH 5 (A) THE WORDS "AND SATURDAYS (OR SHORT WORK-WEEK DAY OBSERVED BY THE COMMUNITY OTHER THAN SATURDAY) ARE EXCLUDED IN EXTENDED PERIODS OF A WEEK OR ORE"--- IN THAT CONNECTION YOUR ATTENTION BEING INVITED TO ANSWER TO QUESTION 2, INFRA. QUESTION 1 IS ANSWERED ACCORDINGLY.

REFERRING TO QUESTION 2, POSTMASTERS MAY BE REGARDED AS "EMPLOYEES IN THE POSTAL SERVICE" FOR LEAVE PURPOSES WITHIN THE MEANING OF 39 U.S.C. 823, BUT, FOR REASON HEREINBEFORE STATED, THEY MUST BE CHARGED FOR LEAVE FOR ABSENCE FROM DUTY ON SATURDAYS WHICH FALL WITHIN THEIR REGULAR TOUR OF DUTY. COMPARE 18 COMP. GEN. 904.

IN VIEW OF THE ANSWERS TO QUESTIONS 1 AND 2 NO ANSWER TO QUESTION 3 IS REQUIRED.

THE ACT OF JUNE 25, 1938, 52 STAT. 1076, EXTENDS THE CLASSIFIED CIVIL SERVICE TO INCLUDE POSTMASTERS OF THE FIRST, SECOND AND THIRD CLASS. THE STATUTE HAS NO EFFECT UPON THE MATTER OF GRANTING OF LEAVE OF ABSENCE WITH PAY TO POSTMASTERS. PURSUANT TO PARAGRAPH 5 (A) OF SECTION 445 OF THE REGULATIONS, THE LEAVE OF ABSENCE OF POSTMASTERS MAY BE REGARDED AS CUMULATIVE FROM THE DATE OF APPOINTMENT AS POSTMASTER REGARDLESS OF WHETHER SUCH APPOINTMENT WAS MADE IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS, OR AS CUMULATIVE FROM THE EFFECTIVE DATE OF THE REGULATIONS, WHICHEVER IS LATER. QUESTIONS 4 AND 5 ARE ANSWERED ACCORDINGLY.