City of Birmingham v. Hendrix

• Decision Date: 24 January 1952
• Docket Number: 6 Div. 217
• Citation: 257 Ala. 300,58 So.2d 626
• Parties: CITY OF BIRMINGHAM et al. v. HENDRIX et al.
• Court: Alabama Supreme Court

Page 626

58 So.2d 626

257 Ala. 300

CITY OF BIRMINGHAM et al. v. HENDRIX et al.

6 Div. 217.

Supreme Court of Alabama.

Jan. 24, 1952.

Rehearing Denied May 15, 1952.

Frank Bainbridge and Mayer U. New-field, Birmingham, for appellants.

Graham, Bibb, Wingo & Foster, Birmingham, for appellees. Pertinent Rules of the Personnel Board are as follows:

'9.8 An employee who is a member of the National Guard or Naval Militia of Alabama, or a member of the Army, Navy, or Marine Corps Reserve, shall be granted leave of absence with pay for a period not to exceed twenty-one days for the purpose of attending field training of such organization when ordered to do so by competent military authority.

'An employee who is called for active duty in the armed forces of Alabama or of the United States other than during the field training period, shall be granted leave of absence without pay for the period of service. At the expiration of such leave he shall be entitled to resume his position and his service in the classified service will be continuous. Adopted March 1, 1940.'

'9.8 (b) An employee holding permannet status who shall be or shall have been since October 16, 1940, called for active duty in the armed forces of the United States shall be granted a military leave of absence without pay for the period of such active duty, and shall be entitled to resume his position within forty days following termination of such service by honorable discharge. The period of such military leave, and until resumption of position as hereinabove provided, shall be counted as continuous employment in the classified service, annexed directly to his previous employment in the classified service, for the purpose of computing time of service for advancement of pay within the salary limits of the position of such employee and for the purpose of determining seniority in respect of promotion, but shall not be so counted for the purpose of accumulation of vacation or sick leave. If such employee should fail to return to duty in the classified service within the prescribed forty day period, the person holding the position under temporary appointment shall be deemed to have been appointed to a permanent position.

'An employee who, while serving his probationary period, is called to duty shall have his name returned to the top of the eligible list from which he was appointed. Should the eligible list be abolished during his absence in such service, his name shall be transferred to the top of the succeeding eligible register. If, upon reappointment, he is employed by the department in which he was previously employed, this previous service shall be counted as a part of the probationary period. Adopted February 5, 1941.'

'9.8 (C) An employee holding permanent status who is not subject to call, but who shall or shall have since December 8, 1941, voluntarily enlisted for active duty in the armed services of the United States, shall be granted a military or naval leave of absence according to the conditions prescribed in Rule 9.8(b). Except that, an appointing authority may at any time notify the Board in writing that the application of this rule is causing, or is likely to cause, serious impairment of the operating efficiency of any department, in which event the provisions of this rule shall not apply to the employees of the department or departments specified, until and unless the appointing authority shall so recommend to the Board in writing. Approved January 26, 1944.'

'9.8 (d) Effective upon the adoption of this Rule, a permanent employee who is called for active duty in the armed forces of Alabama or of the United States other than during a field training period, shall be granted a military or naval leave of absence without pay for the period of such active duty. No employee who voluntarily enlists in such armed forces or who, having been granted a military or naval leave of absence, voluntarily re-enlists in such armed forces, shall be entitled to such leave of absence or to a continuation of such previously granted leave of absence. Approved July 24, 1946.'

'9.5 Each employee occupying a permanent position for which pay is fixed on a monthly basis shall, after one year's continuous service, be allowed a vacation with pay at the rate of one work day per month of service, except that those employees whose duties require them to work seven days per week shall be allowed a vacation of fourteen calendar days. Vacation allowance with the approval of the appointing authority may be accumulated for twenty-eight work days. Vacations shall be taken in accordance with a vacation schedule prepared by the appointing authority or department head, with due regard to the operation of the department. Such schedule shall be forwarded to the Director for verification and shall not become effective until approved by him.

'Any employee who is suspended without pay for a total of fifteen or more days for cause shall forfeit all vacation earned during the calendar year in which the suspension occurred. Service, for the purpose of determining vacation allowance, shall begin on the date of the return of the employee to duty. Effective March 1, 1940.'

'9.5(b) Employees who resign in good standing or who are separated from the service without fault or delinquency on their part shall be allowed credit for the actual number of vacation days earned, but not for Sundays or holidays occurring after actual separation from the job. Effective September 25, 1946.'

'9.6. Sick leave is hereby defined to mean an absence from duty by reason of the illness of the employee; exposure to contagious disease; or, attendance upon members of the immediate family of the employee whose illness requires the care of such employee; or, death in the immediate family of the employee. The Director may require evidence, in the form of a doctor's certificate or otherwise, to substantiate a claim for sick leave.

'Each employee occupying a permanent position, the pay of which is fixed on a monthly basis, shall, after one year's service, be entitled to sick leave with pay at the rate of twelve working days per year of service. Such leave not taken during the year shall be accumulative for sixty working days. Such leave shall be granted at the request of the appointing authority or department head subject to the approval of the Director. Sick leave shall not be granted any employee whose absence from duty is a result of his own misconduct. Absence from such cause shall be reported as 'Absence Without Leave' and shall subject the employee to disciplinary action. Effective March 1, 1940.'

GOODWYN, Justice.

The question for decision in this case is whether two employees of the City of Birmingham are entitled to credit for annual vacation and sick leave which they contend accumulated in their favor during their absence on extended active duty as members of the United States Naval Reserve.

At the time of their entry on active duty, both were working in the City Police Department, where they had been so employed continuously for a long time; both were members of the United States Naval Reserve, and both were subject to the Civil Service Laws applicable to employees of the City of Birmingham. One of them, S. L. Nabers, joined the Naval Reserve on April 7, 1941, and went on active duty on May 1, 1941. He served until October 15, 1945, and on November 9, 1945, returned to his position of employment with the City of Birmingham; similarly with respect to the other employee, R. J. Hendrix, except as to dates. He joined the Reserve on November 11, 1942, went on active duty on November 17, 1942, served until October 11, 1945, and returned to his job with the city on November 1, 1945.

Both were granted leaves of absence from their employment for the period of their service with the Navy. Also, they were paid in full for all accumulated leave to which they were entitled at the time of their entry on active duty, including an additional 21 day military leave of absence with pay.

With respect to leave received during their service in the Navy, it was stipulated 'that while the aforesaid Nabers served in the United States Naval Reserve he received twenty-seven days' leave of absence with pay, that he received no sick leave, and that he received $750.00 for terminal leave pay; and that while the aforesaid Hendrix served in the United States Naval Reserve he received twenty-nine days' leave of absence with pay, that he received no sick leave, and that for terminal leave pay he received a $400.00 terminal leave bond, plus $11.00 in cash; * * * that the leave pay referred to, and the terminal leave pay referred to, * * * consisted of leave pay and terminal leave pay from the United States Government, or from the United States Naval Reserve, and did not consist of any benefit from the City of Birmingham.'

On August 9, 1948, they filed a demand in writing with the Personnel Board of Jefferson County that they be allowed the accumulated vacation and sick leave claimed in this proceeding. It was stipulated that prior to said filing they presented, through counsel, on oral claim to the City of Birmingham and were advised that their claim should be presented to the Personnel Board. On December 1, 1948, the Personnel Board denied the claim. Thereupon, petitioners (appellees) commenced this declaratory judgment proceeding seeking establishment of their claimed right to accumulated vacation and sick leave credit. The Personnel Board of Jefferson County, the Personnel Director of Jefferson County, the individual members of the Personnel Board and the City of Birmingham were made respondents. It was further stipulated that petitioners made oral demand on each of the respondents for allowance of their claims prior to the institution of this suit.

Hendrix claimed an accumulation of 35 days vacation leave and 35 days sick leave while on duty with the Navy. Nabers claimed 53 days vacation leave and 53 days sick leave. This...