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WHERE NURSES WORKED PART -TIME AND WERE TERMED "INTERMITTENT EMPLOYEES.". SINCE THE NURSES IN QUESTION DID NOT HAVE AN ESTABLISHED WORK SCHEDULE DURING EACH ADMINISTRATIVE WORKWEEK WHEN THEY WERE TO REGULARLY PERFORM THEIR DUTIES. THEY WERE NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951. WERE NOT ENTITLED TO ACCRUE ANNUAL OR SICK LEAVE. FOUR OF WHOM WERE NURSES WHO HAVE BEEN SCHEDULED AND HAVE WORKED EVERY THIRD WEEKEND. AT WHICH TIME THERE WAS FORWARDED TO THEM AND ONE OTHER INTERMITTENT A LETTER AS FOLLOWS: "I AM ATTACHING A PERSONNEL ACTION FORM. TO EXPLAIN WHY IT IS NECESSARY TO EFFECT THIS CHANGE. FOR MANY YEARS THOSE EMPLOYEES WHO WORKED LESS THAN A FORTY HOUR WEEK WERE CALLED INTERMITTENT.

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B-111206, NOV 24, 1971

CIVILIAN EMPLOYEES - PART-TIME - ENTITLEMENT TO ANNUAL AND SICK LEAVE DECISION CONCERNING ENTITLEMENT OF CERTAIN NURSES EMPLOYED BY THE NATIONAL GALLERY OF ART TO SICK AND ANNUAL LEAVE, WHERE NURSES WORKED PART -TIME AND WERE TERMED "INTERMITTENT EMPLOYEES." SINCE THE NURSES IN QUESTION DID NOT HAVE AN ESTABLISHED WORK SCHEDULE DURING EACH ADMINISTRATIVE WORKWEEK WHEN THEY WERE TO REGULARLY PERFORM THEIR DUTIES, THEY WERE NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AND WERE NOT ENTITLED TO ACCRUE ANNUAL OR SICK LEAVE.

TO MR. J. W. WOODARD:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 30, 1971, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION WHETHER A VOUCHER IN THE AMOUNT OF $1,266.25 REPRESENTING ACCRUED ANNUAL LEAVE OF FOUR NURSES EMPLOYED BY THE NATIONAL GALLERY OF ART MAY BE CERTIFIED FOR PAYMENT.

YOU STATE THAT THE NATIONAL GALLERY OF ART HAS USED INTERMITTENT EMPLOYEES FOR SOME TIME AND HAS AVERAGED A HALF-DOZEN SUCH TYPE OF APPOINTMENTS ON THE ROLLS AT ONE TIME, FOUR OF WHOM WERE NURSES WHO HAVE BEEN SCHEDULED AND HAVE WORKED EVERY THIRD WEEKEND, SOMETIMES COVERING A DAY IN EACH ADMINISTRATIVE WORKWEEK. ONE NURSE ALSO WORKED AS A RELIEF NURSE DURING LEAVE FOR THE REGULAR FULL-TIME NURSE, AND ONE WORKED PART TIME DURING THE GALLERY'S SUMMER EVENING SCHEDULE.

IN JANUARY 1971 THE GALLERY RENEWED THE APPOINTMENTS OF THE FOUR NURSES, AT WHICH TIME THERE WAS FORWARDED TO THEM AND ONE OTHER INTERMITTENT A LETTER AS FOLLOWS:

"I AM ATTACHING A PERSONNEL ACTION FORM, SF-50, WHICH HAS THE EFFECT OF EXTENDING YOUR APPOINTMENT WITH THE GALLERY.

"HOWEVER, I WOULD LIKE TO POINT OUT ONE DIFFERENCE BETWEEN THIS APPOINTMENT AND THOSE EXPIRING AT THE END OF PRIOR YEARS, AND TO EXPLAIN WHY IT IS NECESSARY TO EFFECT THIS CHANGE. FOR MANY YEARS THOSE EMPLOYEES WHO WORKED LESS THAN A FORTY HOUR WEEK WERE CALLED INTERMITTENT. THE VERY TERM IMPLIES THAT SERVICES WERE ON AN ON-CALL BASIS FOR OCCASIONAL WORK.

"IT HAS COME TO OUR ATTENTION, HOWEVER, THAT WE HAVE BEEN IN ERROR CREDITING LEAVE TO THOSE INDIVIDUALS WHO DO NOT WORK EACH WEEK ON A REGULARLY SCHEDULED TOUR OF DUTY. THE FEDERAL PERSONNEL MANUAL STATES THAT TO EARN LEAVE 'A PART-TIME EMPLOYEE MUST HAVE A REGULAR TOUR OF DUTY PRESCRIBED IN ADVANCE FOR AN ADMINISTRATIVE WORKWEEK.' THUS WE ARE PROHIBITED FROM CALLING OUR EMPLOYEES 'PART-TIME' UNLESS THERE IS A REGULAR PATTERN OF WORK SCHEDULED AND PERFORMED IN EACH WEEK.

"THIS MEANS THAT YOU WILL NOT ACCRUE ANNUAL AND SICK LEAVE AFTER JANUARY 1, 1971. WE ARE LOOKING INTO THE QUESTION OF WHETHER OR NOT WE MAY LEGALLY LIQUIDATE THE ANNUAL AND SICK LEAVE WHICH HAS BEEN CREDITED TO YOUR LEAVE ACCOUNT. WE WILL KEEP YOU ADVISED IN THIS MATTER."

FROM THE FOREGOING IT IS APPARENT THAT THE NURSES REFERRED TO WERE INTERMITTENT EMPLOYEES AND WERE NOT ASSIGNED A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK. 5 U.S.C. 6301(2)(B)(II) EXCEPTS FROM COVERAGE OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, "A PART- TIME EMPLOYEE WHO DOES NOT HAVE AN ESTABLISHED REGULAR TOUR OF DUTY DURING THE ADMINISTRATIVE WORKWEEK." THE TERM "REGULAR TOUR OF DUTY DURING THE ADMINISTRATIVE WORKWEEK" AS USED IN 5 U.S.C. 6301(2)(II) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 CONTEMPLATES A DEFINITE AND CERTAIN TIME, DAY OR HOUR OF ANY DAY, DURING THE WORKWEEK WHEN THE EMPLOYEE REGULARLY WILL BE REQUIRED TO PERFORM DUTY SO THAT A PART-TIME EMPLOYEE MAY NOT EARN LEAVE UNLESS THERE IS ESTABLISHED IN ADVANCE A SPECIFIC TIME DURING AN ADMINISTRATIVE WORKWEEK WHEN HE IS REGULARLY REQUIRED TO PERFORM DUTY.

SINCE THERE HAD NOT BEEN ESTABLISHED A SPECIFIC TIME DURING EACH ADMINISTRATIVE WORKWEEK WHEN THE NURSES WERE REGULARLY REQUIRED TO PERFORM DUTY, THEY WERE NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AND WERE NOT ENTITLED TO ACCRUE ANNUAL AND SICK LEAVE.

THEREFORE, THE VOUCHER WHICH IS RETAINED IN OUR OFFICE MAY NOT BE CERTIFIED FOR PAYMENT. NEITHER IS THERE AUTHORITY TO HAVE RESTORED TO THEIR ACCOUNTS THE UNAUTHORIZED ACCRUED SICK LEAVE IF THEY TRANSFER TO A FEDERAL CIVIL SERVICE POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951.

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