B-98453, JANUARY 8, 1951, 30 COMP. GEN. 273

B-98453, JANUARY 8, 1951, 30 COMP. GEN. 273

LEAVES OF ABSENCE - ACCRUAL - TEMPORARY CLOSING OF ADMINISTRATIVE OFFICE AS AFFECTING CONTINUITY OF TEMPORARY EMPLOYEE'S MONTH OF SERVICE THE PLACING OF A TEMPORARY EMPLOYEE IN A LEAVE WITHOUT PAY STATUS DURING A PERIOD HE WAS PREVENTED FROM WORKING DUE TO THE TEMPORARY CLOSING OF AN ADMINISTRATIVE OFFICE, BECAUSE OF A REDUCTION IN THE WORKLOAD, DOES NOT BREAK THE CONTINUITY OF THE EMPLOYEE'S MONTH OF SERVICE WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS SO AS TO PREVENT THE ACCRUAL OF LEAVE FOR SUCH MONTH OF SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JANUARY 8, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 27, 1950, REQUESTING A DECISION AS TO WHETHER A TEMPORARY EMPLOYEE'S CONTINUITY OF SERVICE, FOR PURPOSE OF ACCUMULATION OF LEAVE CREDIT, IS BROKEN BY HIS ABSENCE FROM DUTY IN A NONPAY STATUS ON A DAY WHICH THE COMMANDING OFFICER OF THE ACTIVITY HAD DESIGNATED AS A NONWORK DAY BUT ON WHICH EMPLOYEES HAVING ANNUAL LEAVE TO THEIR CREDIT WERE REQUIRED TO TAKE 1 DAY'S ANNUAL LEAVE.

IT APPEARS THAT YOUR QUESTION ARISES FROM THE STATING OF TWO INFORMAL EXCEPTIONS BY REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE, IN ON-SITE AUDIT OF CIVILIAN PAY ROLLS AT THE NAVAL AIR STATION, SAN DIEGO, CALIFORNIA, REPRESENTING PAYMENTS TO ARTHUR E. WILLIAMS, RESULTING FROM A CREDIT TO HIM OF 2 1/2 DAYS' ANNUAL LEAVE FOR HIS FIRST AND ONLY MONTH OF SERVICE, WHICH EXCEPTIONS HAVE BEEN CLEARED BY COLLECTION FROM THE PAYEE OF THE AMOUNTS INVOLVED.

YOUR LETTER STATES THAT MR. WILLIAMS WAS GIVEN A TEMPORARY DEFINITE APPOINTMENT, NOT TO EXCEED THREE MONTHS, AS CARPENTER, MAXIMUM $1.69 PER HOUR, AT THE NAVAL AUXILIARY AIR STATION, MIRAMAR, CALIFORNIA, EFFECTIVE NOVEMBER 7, 1949; THAT HE RESIGNED AT THE CLOSE OF BUSINESS ON DECEMBER 9, 1949; WAS GRANTED ANNUAL LEAVE FOR DECEMBER 9, AND WAS PAID LUMP-SUM LEAVE PAY FOR 1 1/2 DAYS UPON TERMINATION OF HIS SERVICES, AS IT WAS CONSIDERED THAT HE HAD COMPLETED A FULL CALENDAR MONTH IN A PAY STATUS AS REQUIRED FOR CREDITING 2 1/2 DAYS' LEAVE; AND THAT DURING THE MONTH HE HAD BEEN IN A NONPAY STATUS ON 3 DAYS, NOVEMBER 11, ARMISTICE DAY, NOVEMBER 24, THANKSGIVING DAY, AND NOVEMBER 25, BUT THAT IT WAS BELIEVED THAT THE CONTINUITY OF HIS SERVICE HAD NOT BEEN BROKEN BECAUSE THE FIRST TWO DAYS WERE LEGAL HOLIDAYS AND THE THIRD HAD BEEN DESIGNATED BY THE COMMANDING OFFICER AS A "NONWORK DAY DUE TO TEMPORARY REDUCTION IN WORKLOAD.'

YOUR LETTER STATES WITH RESPECT TO THE ORDER OF THE COMMANDING OFFICER:

MR. WILLIAMS, THROUGH NO FAULT OF HIS OWN, WAS PREVENTED FROM WORKING OR EARNING PAY ON 25 NOVEMBER 1949 BY REASON OF THE COMMANDING OFFICER'S ORDER DESIGNATING THE DAY AS A NONWORK DAY. THE COMMANDING OFFICER STATED IN HIS ORDER THAT EMPLOYEES HAVING ANNUAL LEAVE TO THEIR CREDIT WOULD BE PLACED IN AN ANNUAL-LEAVE STATUS. THIS WAS WITHIN HIS AUTHORITY, AS STATED ABOVE, AND WAS IN THE INTERESTS OF THE GOVERNMENT AND IN ACCORDANCE WITH NAVY DEPARTMENT POLICY. THE QUESTION IS WHETHER, BY PROVIDING THAT OTHER EMPLOYEES BE CHARGED ONE DAY'S LEAVE, THE ORDER OPERATED TO PREVENT TEMPORARY EMPLOYEES (WHO WOULD NOT BE PAID FOR THE DAY IN ANY EVENT) FROM EARNING TWO AND ONE-HALF DAYS' LEAVE CREDIT. YOUR DECISION ON THIS POINT, FOR FUTURE GUIDANCE IN LIKE CASES, WOULD BE APPRECIATED.

BULLETIN NO. 56-49, ISSUED NOVEMBER 8, 1949, BY THE COMMANDING OFFICER, UNITED STATES AIR STATION, SAN DIEGO, CALIFORNIA, DESIGNATING FRIDAY, NOVEMBER 25, AS A NONWORK DAY BECAUSE OF TEMPORARY REDUCTION IN WORKLOAD, STATES IN PART:

ALL CIVILIAN EMPLOYEES WITH ACCRUED ANNUAL LEAVE WILL BE PLACED ON ANNUAL LEAVE 25 NOVEMBER, EXCEPT THOSE REQUIRED TO MAINTAIN 24 HOUR SERVICE. EMPLOYEES WITHOUT ACCRUED ANNUAL LEAVE WILL BE PLACED ON LEAVE WITHOUT PAY ON THAT DATE, EXCEPT THOSE EMPLOYEES WHO REQUEST TO WORK AND WHOSE SERVICES CAN BE UTILIZED BY THE DEPARTMENT. SUCH REQUESTS TO WORK MUST BE APPROVED IN ADVANCE BY THE DEPARTMENT HEAD CONCERNED.

IT IS NOT ESTABLISHED WHETHER THE INVOLVED EMPLOYEE REQUESTED TO WORK ON NOVEMBER 25, 1949, BUT WITHIN THE PURVIEW OF THE ABOVE-QUOTED ORDER IT IS PRESUMED THAT HAD SUCH REQUEST BEEN MADE HIS SERVICES COULD NOT HAVE BEEN UTILIZED.

THE ACT APPROVED MARCH 14, 1936, 49 STAT. 1161, PROVIDES THAT TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORKED AT HOURLY RATES,"SHALL BE ENTITLED TO TWO AND ONE-HALF DAYS LEAVE FOR EACH MONTH OF SERVICE.' SECTION 30.101 (G) OF THE ANNUAL AND SICK LEAVE REGULATIONS STATES:

"MONTH OF SERVICE" MEANS A PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH OR BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR MONTH. SECTION 30.201 AS REVISED DECEMBER 18, 1949, PROVIDES FOR ACCRUAL OF ANNUAL LEAVE AS FOLLOWS:

(D) TEMPORARY EMPLOYEES, INCLUDING TEMPORARY EMPLOYEES PAID ON A "WHEN- ACTUALLY-EMPLOYED" BASIS, SHALL EARN AND BE CREDITED WITH ANNUAL LEAVE OF TWO AND ONE-HALF DAYS FOR EACH FULL CONTINUOUS MONTH OF SERVICE. SECTION 30.203 PROVIDES THAT TEMPORARY EMPLOYEES SHALL NOT BE GRANTED LEAVE UNTIL IMMEDIATELY PRIOR TO THE END OF THE MONTH IN WHICH IT IS EARNED.

IT WAS STATED IN 19 COMP. GEN. 955, AT PAGES 957, 958 (QUOTED IN PART IN YOUR LETTER), AS FOLLOWS:

* * * IF A STATUTE OR EXECUTIVE ORDER SHOULD CLOSE THE DEPARTMENTS FOR ONE OR MORE DAYS WITHIN THE REGULAR TOUR OF DUTY OF EMPLOYEES, SUCH NONWORK DAYS MAY NOT BE CHARGED AS ANNUAL OR SICK LEAVE. LIKEWISE, IF THE HEAD OF A DEPARTMENT, UNDER PROPER AUTHORITY, SHOULD CLOSE THE DEPARTMENT OR ANY UNIT THEREOF ON A DAY OR DAYS WITHIN A REGULAR TOUR OF DUTY OF EMPLOYEES, AND SHOULD NOT REQUIRE EMPLOYEES TO TAKE ANNUAL LEAVE, THE NONWORK DAYS ESTABLISHED BY SUCH AN ADMINISTRATIVE ORDER WOULD NOT BE CHARGED TO LEAVE. ON THE OTHER HAND, IF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT EXERCISES HIS STATUTORY AUTHORITY TO REQUIRE ALL OR ANY PART OF THE EMPLOYEES UNDER HIS JURISDICTION TO TAKE ANNUAL LEAVE ON A PARTICULAR DAY OR DAYS WHICH BUT FOR SUCH ACTION WOULD BE WITHIN THE REGULAR TOUR OF DUTY OF EMPLOYEES--- AS HE WOULD HAVE A RIGHT TO DO UNDER SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936--- SUCH DAY OR DAYS WOULD BE THE SAME AS DAYS OF DUTY WITHIN THE MEANING OF THE LEAVE LAWS AND REGULATIONS (13 COMP. GEN. 370; 17 ID. 906), AND WOULD NOT BE REGARDED AS "NONWORK DAYS ESTABLISHED BY * * * ADMINISTRATIVE ORDER" WITHIN THE MEANING OF THE LEAVE ACT OF MARCH 2, 1940, AND THE CURRENT LEAVE REGULATIONS.

THE ABOVE DECISION CONSTRUED THE PROVISIONS OF THE ANNUAL LEAVE REGULATIONS WITH RESPECT TO CHARGING AN EMPLOYEE WITH LEAVE FOR ABSENCES UNDER THE CIRCUMSTANCES THEREIN SET FORTH BUT IT DID NOT DECIDE THE RIGHT OF TEMPORARY EMPLOYEES TO ACCRUE ANNUAL LEAVE. IN 28 COMP. GEN. 185 IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE CLOSING OF AN ADMINISTRATIVE OFFICE ON LOCAL HOLIDAYS WHEN FEDERAL WORK PROPERLY MAY NOT BE PERFORMED, OR BECAUSE OF WEATHER CONDITIONS, THEREBY PREVENTING AN EMPLOYEE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS FROM PERFORMING SERVICES ON SUCH DAYS, DOES NOT BREAK THE CONTINUITY OF THE EMPLOYEE'S MONTH OF SERVICE WITHIN THE MEANING OF SECTIONS 30.201 (B) AND 30.301 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS SO AS TO PRECLUDE THE ACCRUAL OF LEAVE FOR SUCH MONTH OF SERVICE.

WHILE THE ABOVE DECISION RELATED TO WAE EMPLOYEES IT CONSTRUED THE SAME PARAGRAPHS OF THE LEAVE REGULATIONS THAT RELATE TO TEMPORARY EMPLOYEES AND NO REASON IS APPARENT WHY THE SAME RULES SHOULD NOT APPLY TO TEMPORARY EMPLOYEES. ACCORDINGLY, WHERE AN OFFICE IS CLOSED BY ADMINISTRATIVE ACTION THE FACT THAT A TEMPORARY EMPLOYEE MAY BE PLACED ON LEAVE WITHOUT PAY FOR SUCH DAYS WILL NOT BE CONSIDERED AS BREAKING THE CONTINUITY OF SERVICE FOR THAT MONTH SO AS TO PREVENT THE ACCRUING OF LEAVE CREDITS TO SUCH TEMPORARY EMPLOYEES.