B-40342, B-132133, JANUARY 7, 1963, 42 COMP. GEN. 342

B-132133,B-40342: Jan 7, 1963

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THE IMPOSITION OF A SERVICE CHARGE AGAINST GOVERNMENT EMPLOYEE UNIONS FOR COLLECTING UNION DUES BY PAYROLL DEDUCTION IS CONSISTENT WITH TITLE V OF THE INDEPENDENT OFFICES APPROPRIATION ACT. YOU REQUESTED OUR DECISION UPON THE FOLLOWING QUESTIONS WHICH WILL BE ANSWERED IN THE ORDER IN WHICH PRESENTED: 1. IS AS FOLLOWS: THE HEAD OF EACH DEPARTMENT IS AUTHORIZED TO ESTABLISH PROCEDURES UNDER WHICH EACH EMPLOYEE OF SUCH DEPARTMENT IS PERMITTED TO MAKE ALLOTMENTS AND ASSIGNMENTS OF AMOUNTS OUT OF HIS COMPENSATION FOR SUCH PURPOSE AS SUCH DEPARTMENT HEAD DEEMS APPROPRIATE. SUCH REGULATIONS AS ARE NECESSARY AND APPROPRIATE TO CARRY OUT THE PROVISIONS. IS AS FOLLOWS: THE CIVIL SERVICE COMMISSION IS HEREBY DESIGNATED AND EMPOWERED.

B-40342, B-132133, JANUARY 7, 1963, 42 COMP. GEN. 342

COMPENSATION - WITHHOLDING - UNION DUES. FEES - SERVICES TO THE PUBLIC CHARGES FOR UNION DUES COLLECTION - UNION LIABILITY A REGULATION PERMITTING THE COLLECTION OF UNION DUES BY PAYROLL DEDUCTION AT THE REQUEST OF EMPLOYEES WOULD BE PROPER UNDER SECTIONS 5 AND 6 OF THE ACT OF SEPTEMBER 26, 1961, 5 U.S.C. 3075 AND 3076, WHICH PERMITS THE ALLOTMENT AND ASSIGNMENT OF COMPENSATION FOR SUCH PURPOSES DEEMED APPROPRIATE BY THE DEPARTMENT HEAD, SUBJECT TO REGULATIONS ISSUED BY THE PRESIDENT. THE IMPOSITION OF A SERVICE CHARGE AGAINST GOVERNMENT EMPLOYEE UNIONS FOR COLLECTING UNION DUES BY PAYROLL DEDUCTION IS CONSISTENT WITH TITLE V OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, 5 U.S.C. 140, WHICH NOT ONLY AUTHORIZES THE HEADS OF FEDERAL AGENCIES TO PRESCRIBE FEES FOR PUBLIC SERVICES BUT DIRECTS THAT SUCH FEES SHALL BE AS UNIFORM AS PRACTICABLE; THEREFORE, IF THE PRESIDENT DETERMINES THAT A UNIFORM FEE SHOULD BE CHARGED, SUCH A DETERMINATION WOULD BE WITHIN THE PURPOSE OF TITLE V OF THE ACT.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 7, 1963:

ON DECEMBER 14, 1962, YOU REQUESTED OUR DECISION UPON THE FOLLOWING QUESTIONS WHICH WILL BE ANSWERED IN THE ORDER IN WHICH PRESENTED:

1. MAY THE COMMISSION, BY REGULATION ISSUED ON AUTHORITY OF PUBLIC LAW 87 -304 AND EXECUTIVE ORDER 10982, PERMIT AGENCIES TO PROVIDE FOR PAYROLL DEDUCTIONS OF UNION DUES AT THE REQUEST OF THE EMPLOYEE?

2. MAY THE AGENCIES, UNDER TITLE V OF THE ACT OF AUGUST 31, 1951, REQUIRE THAT THE UNION PAY A FEE TO COVER THE ESTIMATED EXPENSE OF MAKING THE PAYROLL DEDUCTIONS, THE FEE TO BE PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS?

3. MAY A UNIFORM FEE BE IMPOSED BY PRESIDENTIAL ACTION?

SECTION 5 OF THE ACT OF SEPTEMBER 26, 1961, PUBLIC LAW 87-304, 75 STAT. 663, 5 U.S.C. 3075, IS AS FOLLOWS:

THE HEAD OF EACH DEPARTMENT IS AUTHORIZED TO ESTABLISH PROCEDURES UNDER WHICH EACH EMPLOYEE OF SUCH DEPARTMENT IS PERMITTED TO MAKE ALLOTMENTS AND ASSIGNMENTS OF AMOUNTS OUT OF HIS COMPENSATION FOR SUCH PURPOSE AS SUCH DEPARTMENT HEAD DEEMS APPROPRIATE.

SECTION 6 OF THAT ACT, 5 U.S.C. 3076, PROVIDES IN PART THAT:

(A) TO THE EXTENT PRACTICABLE IN THE PUBLIC INTEREST, THE PRESIDENT SHALL COORDINATE THE POLICIES AND PROCEDURES OF THE RESPECTIVE DEPARTMENTS IN THE EXECUTIVE BRANCH UNDER THIS ACT.

(B) THE PRESIDENT, WITH RESPECT TO THE EXECUTIVE BRANCH, AND THE HEAD OF THE DEPARTMENT CONCERNED, WITH RESPECT TO THE APPROPRIATE DEPARTMENT OUTSIDE THE EXECUTIVE BRANCH, SHALL PRESCRIBE AND ISSUE, OR PROVIDE FOR THE FORMULATION AND ISSUANCE OF, SUCH REGULATIONS AS ARE NECESSARY AND APPROPRIATE TO CARRY OUT THE PROVISIONS, ACCOMPLISH THE PURPOSES, AND GOVERN THE ADMINISTRATION, OF THIS ACT. * * *

SECTION 2 (B) OF EXECUTIVE ORDER NO. 10982 OF DECEMBER 25, 1961, IS AS FOLLOWS:

THE CIVIL SERVICE COMMISSION IS HEREBY DESIGNATED AND EMPOWERED, WITHOUT THE APPROVAL, RATIFICATION, OR OTHER ACTION OF THE PRESIDENT, TO PERFORM THE FUNCTIONS CONFERRED UPON THE PRESIDENT BY THE PROVISIONS OF SECTION 6 OF THE ACT WITH RESPECT TO ALLOTMENTS AND ASSIGNMENTS AUTHORIZED BY SECTION 5 OF THE ACT.

THE LANGUAGE OF SECTION 5 OF THE ACT OF SEPTEMBER 26, 1961, QUOTED ABOVE, WOULD PERMIT ALLOTMENTS AND ASSIGNMENTS OF COMPENSATION FOR SUCH PURPOSES AS THE DEPARTMENT HEAD DEEMS APPROPRIATE--- SUBJECT TO THE REGULATORY AUTHORITY OF THE PRESIDENT WHICH IN TURN HAS BEEN DELEGATED TO THE CIVIL SERVICE COMMISSION BY SECTION 2 (B) OF EXECUTIVE ORDER NO. 10982. THE PURPOSE OF SECTION 5 OF THE ACT IS TO SUPERSEDE AND REPLACE WITH A SINGLE UNIFORM STATUTORY BASIS APPLICABLE TO THOSE DEPARTMENTS AND AGENCIES COVERED BY THE ACT THE SEPARATE STATUTORY AUTHORITIES FOR ALLOTMENTS AND ASSIGNMENTS OF COMPENSATION WHICH THERETOFORE HAD BEEN ENACTED FOR SPECIFIC AGENCIES ONLY. SECTION 9 OF THE ACT, 75 STAT. 663, REPEALS AND AMENDS THE INDIVIDUAL AUTHORIZATIONS THERETOFORE EXISTING TO CONFORM WITH THE PRINCIPLE OF SECTION 5.

OUR CONSIDERED VIEW IS THAT UNDER SECTIONS 5 AND 6 OF PUBLIC LAW 87 304 AND SECTION 2 (B) OF EXECUTIVE ORDER NO. 10982, THE CIVIL SERVICE COMMISSION MAY PROMULGATE REGULATIONS PERMITTING EMPLOYEES TO AUTHORIZE ALLOTMENTS FROM THEIR COMPENSATION (PAYROLL DEDUCTIONS) FOR THE PURPOSE OF PAYING THEIR UNION DUES. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

SECTION 501 OF THE ACT OF AUGUST 31, 1951, 65 STAT. 290, 5 U.S.C. 140, IS IN PART AS FOLLOWS:

IT IS THE SENSE OF THE CONGRESS THAT ANY WORK, SERVICE, PUBLICATION, REPORT, DOCUMENT, BENEFIT, PRIVILEGE, AUTHORITY, USE, FRANCHISE, LICENSE, PERMIT, CERTIFICATE, REGISTRATION, OR SIMILAR THING OF VALUE OR UTILITY PERFORMED, FURNISHED, PROVIDED, GRANTED, PREPARED, OR ISSUED BY ANY FEDERAL AGENCY (INCLUDING WHOLLY OWNED GOVERNMENT CORPORATIONS AS DEFINED IN THE GOVERNMENT CORPORATION CONTROL ACT OF 1945) TO OR FOR ANY PERSON (INCLUDING GROUPS, ASSOCIATIONS, ORGANIZATIONS, PARTNERSHIPS, CORPORATIONS, OR BUSINESSES), EXCEPT THOSE ENGAGED IN THE TRANSACTION OF OFFICIAL BUSINESS OF THE GOVERNMENT, SHALL SELF-SUSTAINING TO THE FULL EXTENT POSSIBLE, AND THE HEAD OF EACH FEDERAL AGENCY IS AUTHORIZED BY REGULATION (WHICH, IN THE CASE OF AGENCIES IN THE EXECUTIVE BRANCH, SHALL BE AS UNIFORM AS PRACTICABLE AND SUBJECT TO SUCH POLICIES AS THE PRESIDENT MAY PRESCRIBE) TO PRESCRIBE THEREFOR SUCH FEE, CHARGE, OR PRICE, IF ANY, AS HE SHALL DETERMINE, IN CASE NONE EXISTS, OR REDETERMINE, IN CASE OF AN EXISTING ONE, TO BE FAIR AND EQUITABLE TAKING INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED, AND OTHER PERTINENT FACTS, AND ANY AMOUNT SO DETERMINED OR REDETERMINED SHALL BE COLLECTED AND PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS * * *.

A REASONABLE CHARGE TO THE UNIONS FOR THE SERVICE OF COLLECTING UNION DUES BY PAYROLL DEDUCTIONS IS CONSISTENT WITH THE PROVISIONS OF SECTION 501 OF THE ACT OF AUGUST 31, 1951, QUOTED ABOVE. YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WHILE SECTION 501 GENERALLY VESTS AUTHORITY IN THE HEAD OF EACH FEDERAL AGENCY TO PRESCRIBE A FAIR AND EQUITABLE FEE OR CHARGE TO BE MADE FOR SERVICES RENDERED BY HIS AGENCY, THE SECTION ALSO PROVIDES THAT IN THE CASE OF AGENCIES IN THE EXECUTIVE BRANCH THE PRACTICES UNDER SECTION 501 SHALL BE AS UNIFORM AS PRACTICABLE AND SUBJECT TO SUCH POLICIES AS THE PRESIDENT MAY PRESCRIBE. HENCE, SHOULD THE PRESIDENT, AS A MATTER OF POLICY, DETERMINE THAT A UNIFORM FEE SHOULD BE CHARGED BY AGENCIES IN THE EXECUTIVE BRANCH FOR THE SERVICE OF COLLECTING UNION DUES BY PAYROLL DEDUCTION, SUCH A DETERMINATION WOULD APPEAR TO BE WITHIN THE PURPOSE AND SPIRIT OF THE STATUTE. QUESTION 3 IS ANSWERED ACCORDINGLY.