B-53436, B-51521, B-51710, NOVEMBER 20, 1945, 25 COMP. GEN. 412

B-53436, B-51521, B-51710, NOVEMBER 20, 1945, 25 COMP. GEN. 412

LEAVES OF ABSENCE - POSTAL SERVICE - POSTMASTERS AND RURAL CARRIERS THE PROVISIONS OF SECTION 6 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945--- EFFECTIVE JULY 1, 1945--- EXCLUDING SATURDAYS, SUNDAYS, AND HOLIDAYS FROM CHARGES FOR LEAVES OF ABSENCE WITH PAY OF POSTMASTERS AND EMPLOYEES, APPLY TO ALL POSTMASTERS AND EMPLOYEES, INCLUDING RURAL CARRIERS, IRRESPECTIVE OF WHETHER THEIR DUTIES ARE PERFORMED DURING, OR WITHOUT REGARD TO, AN ESTABLISHED 40-HOUR ADMINISTRATIVE WORKWEEK, SO THAT IN GRANTING ANNUAL OR SICK LEAVE TO POSTMASTERS AND RURAL CARRIERS, ALL SATURDAYS, SUNDAYS, AND HOLIDAYS OCCURRING WITHIN OR AT THE BEGINNING OR ENDING OF SUCH LEAVE SHOULD BE EXCLUDED IN COMPUTING CHARGES AGAINST THEIR EARNED LEAVE. 25 COMP. GEN. 192, OVERRULED; 18 ID. 904, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 20, 1945:

I HAVE YOUR LETTER OF OCTOBER 24, 1945, REFERENCE 15, AS FOLLOWS:

SECTION 6 OF THE ACT OF JULY 24, 1945, PUBLIC LAW 134, READS IN PART AS FOLLOWS:

"POSTMASTERS AND EMPLOYEES 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. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS IN ACCORDANCE WITH 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 * * * .'

YOUR OPINION IS REQUESTED WHETHER IN ADMINISTRATIVELY GRANTING ANNUAL AND SICK LEAVE TO POSTMASTERS AND RURAL CARRIERS SATURDAYS, SUNDAYS, AND HOLIDAYS OCCURRING WITHIN OR AT THE BEGINNING OR END OF SUCH SICK OR ANNUAL LEAVE SHALL BE COUNTED IN DETERMINING THE NUMBER OF DAYS TO BE CHARGED AGAINST THE EARNED LEAVE OF THE POSTMASTER OR RURAL CARRIER.

SECTION 1 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 435, DEFINES THE ,"EMPLOYEES," AS FOLLOWS:

THAT THE TERM "EMPLOYEES" WHENEVER USED IN THIS ACT SHALL INCLUDE OFFICERS, SUPERVISORS, SPECIAL-DELIVERY MESSENGERS IN OFFICES OF THE FIRST CLASS, AND ALL OTHER EMPLOYEES PAID FROM FIELD APPROPRIATIONS OF THE POSTAL SERVICE, OTHER THAN POSTMASTERS, SKILLED-TRADES EMPLOYEES OF THE MAIL-EQUIPMENT SHOPS, JOB CLEANERS IN FIRST- AND SECOND-CLASS POST OFFICES, AND EMPLOYEES WHO ARE PAID ON A FEE OR CONTRACT BASIS.

SECTIONS 2, 3, 4, AND 5 OF SAID ACT OF JULY 6, 1945, 59 STAT. 435, 436, PROVIDE, RESPECTIVELY, FOR AN 8-HOUR DAY, COMPENSATORY TIME, OVERTIME, AND NIGHT DIFFERENTIAL FOR "EMPLOYEES" BUT EACH OF THOSE SECTIONS SPECIFICALLY EXCEPTS "RURAL CARRIERS" FROM ITS PROVISIONS. THE COMPENSATION TO BE PAID POSTMASTERS IS SET FORTH IN SECTION 8 OF THE ACT, 59 STAT. 437, NO HOURS OF DUTY BEING SPECIFIED, AND THE COMPENSATION OF RURAL CARRIERS IS SET FORTH IN SECTION 17 OF THAT ACT, 59 STAT. 455, THE COMPENSATION OF SUCH CARRIERS NOT BEING BASED UPON HOURS OF SERVICE BUT UPON THE LENGTH OF THE RURAL ROUTES SERVED BY THEM SIX DAYS EACH WEEK PLUS A FIXED PER ANNUM PAYMENT.

IN 18 COMP. GEN. 904, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE ACT OF MAY 15, 1939, PUBLIC, NO. 78, 53 STAT. 745,"GRANTING POSTAL EMPLOYEES CREDIT FOR SATURDAY IN ANNUAL AND SICK LEAVE LAW, THEREBY CONFORMING TO THE 40-HOUR WORKWEEK OR 5-DAY-WEEK LAW," DOES NOT AUTHORIZE THE EXCLUSION OF SATURDAYS IN COMPUTING THE ANNUAL AND SICK LEAVE OF RURAL CARRIERS WHO, WHEN NOT ON LEAVE, ARE REQUIRED TO WORK ON SATURDAYS, AND LEAVE OF ABSENCE OF SUCH EMPLOYEES SHOULD CONTINUE TO BE CHARGED AS EXCLUSIVE OF ONLY SUNDAYS AND HOLIDAYS.

IN DECISION OF AUGUST 17, 1945, B-51521, 25 COMP. GEN. 192, TO YOU, THERE WERE CONSIDERED THE PROVISIONS OF THE ACT OF JULY 6, 1945, SUPRA, AND IT WAS THEREIN STATED:

THE ABOVE QUOTED PORTIONS OF THE ACT OF JULY 6, 1945, APPEAR TO HAVE THE SAME FORCE AND EFFECT AS THEIR PREDECESSOR STATUTES WHICH WERE CONSIDERED AND APPLIED IN THE CITED DECISIONS. HENCE, THE REASONS UNDERLYING THE HOLDINGS IN THOSE DECISIONS WOULD APPLY WITH EQUAL FORCE UNDER THE NEW STATUTE. STATED IN OTHER WORDS, THE AUTHORITY FOR EXCLUDING SATURDAY FROM CHARGES FOR LEAVE OF ABSENCE WITH PAY PURSUANT TO SECTION 6 OF THE NEW STATUTE APPEARS INTENDED TO APPLY ONLY TO EMPLOYEES WHO REGULARLY ARE NOT REQUIRED TO WORK ON SATURDAY AS A PART OF THEIR BASIC WORKWEEK EXCLUSIVE OF OVERTIME--- THE ONLY PERIOD FOR WHICH LEAVE IS CHARGEABLE--- UNDER THE PROVISIONS OF THE NEW STATUTE.

* * * THEREFORE, NEITHER OF THE ALTERNATE QUESTIONS PRESENTED MAY BE ANSWERED SPECIFICALLY OTHER THAN TO SAY THAT UNDER THE RULE STATED IN THE CITED DECISIONS OF THIS OFFICE, SUPRA, LEAVE SHOULD NOT BE CHARGED FOR ABSENCE ON SATURDAY IN THE CASE OF ANY OFFICER OR EMPLOYEE FOR WHOM A 40- HOUR BASIC WORKWEEK EXCLUSIVE OF SATURDAY IS ESTABLISHED UNDER AUTHORITY OF ANY PROVISION OF THE LAW, BUT LEAVE SHOULD BE CHARGED FOR ABSENCE ON SATURDAY FOR ANY EMPLOYEE FOR WHOM A 40-HOUR BASIC WORKWEEK EXCLUSIVE OF SATURDAY IS NOT ESTABLISHED UNDER AUTHORITY OF ANY PROVISION OF THE LAW.

THE CONCLUSION REACHED IN 18 COMP. GEN. 904, AND WHICH WAS FOLLOWED IN THE ABOVE DECISION OF AUGUST 17, 1945, WAS BASED UPON THE LEGISLATIVE HISTORY AND TITLE OF THE LEAVE ACT OF MAY 15, 1939, 53 STAT. 745, WHICH DECLARED ITS PURPOSE TO CONFORM TO THE 40-HOUR WORKWEEK OR THE 5-DAY-WEEK LAW. HOWEVER, THE PRESENT ACT OF JULY 6, 1945, CONSTITUTES A COMPLETE REVISION OF THE FORMER POSTAL PAY AND LEAVE ACTS, AND THE REASONING MOTIVATING THE DECISIONS RENDERED UNDER THE PRIOR POSTAL ACTS IS NOT NECESSARILY CONTROLLING IN ITS INTERPRETATION. IT IS FOR OBSERVING THAT THE VARIOUS SECTIONS OF THE ACT OF JULY 6, 1945, INDICATE WITH CONSIDERABLE PARTICULARITY THE EXTENT TO WHICH THEY ARE TO BE APPLIED. FOR INSTANCE, SECTION 1 IN DEFINING THE TERM,"EMPLOYEES," EXCEPTS POSTMASTERS AND CERTAIN OTHER EMPLOYEES THEREFROM BUT DOES NOT EXCEPT RURAL CARRIERS WHO MUST, THEREFORE, BE CONSIDERED "EMPLOYEES" WITHIN THE PROVISION OF THAT ACT UNLESS OTHERWISE SPECIFICALLY EXCEPTED THEREFROM. ON THE OTHER HAND, RURAL CARRIERS SPECIFICALLY ARE EXCEPTED FROM SECTIONS 2, 3, 4, AND 5, OTHERWISE APPLICABLE TO EMPLOYEES, WHICH EXCEPTIONS ARE UNDERSTOOD WHEN THE NATURE OF THE DUTIES OF RURAL CARRIERS ARE COMPARED WITH THOSE OF OTHER POSTAL EMPLOYEES--- THE RURAL CARRIERS BEING REQUIRED TO WORK SIX DAYS A WEEK AND TO COVER THEIR ESTABLISHED ROUTES EACH DAY IRRESPECTIVE OF THE NUMBER OF HOURS REQUIRED.

THE CONGRESS THUS HAVING SPECIFICALLY EXCEPTED RURAL CARRIERS AND POSTMASTERS FROM ALL SECTIONS OF THE ACT OF JULY 6, 1945, WHICH WERE NOT TO BE APPLIED TO THEM, IT APPEARS REASONABLE TO CONCLUDE THAT IN NAMING POSTMASTERS AND EMPLOYEES IN SECTION 6, 59 STAT. 436, WITHOUT EXCEPTING RURAL CARRIERS THEREFROM, SECTION 6 WAS INTENDED TO APPLY TO ALL SUCH POSTMASTERS AND EMPLOYEES, INCLUDING RURAL CARRIERS, IRRESPECTIVE OF WHETHER THEIR DUTIES WERE TO BE PERFORMED WITHIN AN ESTABLISHED 40-HOUR WORKWEEK OR WITHOUT REGARD TO SUCH ESTABLISHED WORKWEEK. ACCORDINGLY, IN GRANTING SICK OR ANNUAL LEAVE TO POSTMASTERS AND RURAL CARRIERS ALL SATURDAYS, SUNDAYS, AND HOLIDAYS OCCURRING WITHIN OR AT THE BEGINNING OR ENDING OF SUCH SICK OR ANNUAL LEAVE PROPERLY APPEAR FOR EXCLUDING IN COMPUTING THE NUMBER OF DAYS OF LEAVE TO BE CHARGED AGAINST THE EARNED LEAVE OF POSTMASTERS OR RURAL CARRIERS. ANY DECISIONS TO THE CONTRARY, SO FAR AS THEY RELATE TO LEAVE GRANTED AND TAKEN SUBSEQUENT TO JUNE 30, 1945, WILL NOT BE FOLLOWED HEREAFTER.