B-167198, AUG 19, 1970, 50 COMP GEN 108

B-167198, AUG 19, 1970, 50 COMP GEN 108

COMPENSATION - WITHHOLDING - UNION DUES - DISCONTINUANCE A TIMELY MAILED REVOCATION OF A DUES ALLOTMENT TO AN EMPLOYEE ORGANIZATION MADE PURSUANT TO 5 U.S.C. 5525, WHICH WAS RECEIVED IN THE PAYROLL OFFICE ON MONDAY, MARCH 2, THE FIRST WORKDAY AFTER THE MARCH 1 DEADLINE SET BY THE CIVIL SERVICE COMMISSION, 5 C.F.R. 550.308, CONSTITUTES COMPLIANCE WITH THE REGULATION UNDER THE RULE THAT WHEN AN ACT IS TO BE PERFORMED BY A CERTAIN DATE AND THE LAST DAY OF THE PERIOD FALLS ON A SUNDAY, THE REQUIREMENT IS COMPLIED WITH IF THE ACT IS PERFORMED ON THE FOLLOWING DAY. THEREFORE, THE DISCONTINUANCE OF THE ALLOTMENT HAVING BECOME EFFECTIVE AT THE BEGINNING OF THE FIRST FULL PAY PERIOD FOLLOWING THE MARCH 1 DEADLINE, THE DUES DEDUCTED SUBSEQUENT TO THE REVOCATION ARE FOR COLLECTION FROM THE EMPLOYEE ORGANIZATION AND REPAYMENT TO THE EMPLOYEE.

TO ROBERT J. SCHULLERY, DEPARTMENT OF TRANSPORTATION, AUGUST 19, 1970:

THIS WILL REFER TO YOUR LETTER DATED MAY 26, 1970, IN WHICH YOU REQUEST A DECISION AS TO WHETHER A REVOCATION OF AUTHORIZATION TO DEDUCT DUES OF AN EMPLOYEE ORGANIZATION FROM THE PAY OF MR. THOMAS M. LANE MAY BE CONSIDERED TO HAVE BEEN IN COMPLIANCE WITH THE GOVERNING STATUTORY REGULATION 5 CFR 550.308(E). THE QUESTION ARISES BECAUSE THE REVOCATION WAS RECEIVED IN THE AGENCY PAYROLL OFFICE ON MONDAY, MARCH 2, 1 DAY AFTER THE DEADLINE OF MARCH 1 (A SUNDAY) SET BY THE REGULATIONS.

NOTHING IN THE LAW, SECTION 5525 OF TITLE 5 OF THE U.S.C. WHICH PROVIDES AUTHORITY FOR DEDUCTIONS OF ORGANIZATION DUES FROM AGENCY PAYROLLS, 42 COMP. GEN. 342 (1963), ESTABLISHES ANY CRITERIA AS TO THE EFFECTIVE DATES ON WHICH INDIVIDUAL EMPLOYEES MAY AUTHORIZE OR REVOKE AUTHORIZATIONS OF DEDUCTIONS FROM THEIR PAY FOR PARTICULAR PURPOSES. HOWEVER, AS YOUR LETTER POINTS OUT, THE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION, 5 CFR 550.308, PROVIDE, WITH RESPECT TO DISCONTINUANCE OF ALLOTMENTS, AS FOLLOWS:

SEC 550.308 DISCONTINUANCE OF ALLOTMENT.

AN AGENCY SHALL DISCONTINUE PAYING AN ALLOTMENT WHEN;

(E) THE WRITTEN REVOCATION OF AN ALLOTMENT FOR THE PAYMENT OF DUES AS AUTHORIZED BY 550.304(A)(5) IS RECEIVED IN THE EMPLOYEE'S PAYROLL OFFICE EITHER BY MARCH 1 OR SEPTEMBER 1 OF ANY CALENDAR YEAR. IN THIS CASE THE AGENCY WILL DISCONTINUE THE ALLOTMENT AT THE BEGINNING OF THE FIRST FULL PAY PERIOD FOR WHICH A DEDUCTION WOULD OTHERWISE BE MADE EITHER AFTER MARCH 1 OR SEPTEMBER 1, AS APPROPRIATE ***

WE HAVE INTERPRETED THE REGULATIONS TO MEAN THAT WHEN A REVOCATION OF AUTHORIZATION FOR WITHHOLDING ORGANIZATION DUES IS RECEIVED AFTER MARCH 1 OF ANY YEAR THE ALLOTMENT MAY NOT BE DISCONTINUED BEFORE THE FOLLOWING SEPTEMBER 1 AND, LIKEWISE, A REVOCATION RECEIVED AFTER SEPTEMBER 1 WILL NOT BE EFFECTIVE UNTIL MARCH 1 OF THE FOLLOWING YEAR. 49 COMP. GEN. 97 (1969).

IN THE CASE YOU PRESENT, THE DEADLINE DATE OF MARCH 1, 1970, FOR REVOCATION OF DUES DEDUCTION FELL ON A SUNDAY. MR. LANE, WHO IS EMPLOYED AT LOGAN FIELD, BILLINGS, MONTANA, EXECUTED HIS NOTICE OF REVOCATION AND MAILED IT ON FEBRUARY 25, 1970, TO THE PAYROLL OFFICE, WHICH WE UNDERSTAND TO BE LOCATED AT KANSAS CITY, MISSOURI. THIS WAS SUFFICIENTLY IN ADVANCE OF MARCH 1 TO ASSUME, REASONABLY, THAT IT WOULD BE RECEIVED IN THE PAYROLL OFFICE BY THAT DATE. HOWEVER, IT WAS NOT RECEIVED UNTIL MONDAY, MARCH 2. IT IS THE VIEW OF THE EMPLOYEE AND OF THE ASSISTANT REGIONAL COUNSEL THAT THE RECEIPT OF THE REVOCATION ON MONDAY, THE FIRST WORKDAY AFTER THE DUE DATE ON SUNDAY, CONSTITUTED COMPLIANCE WITH THE ABOVE-CITED REGULATION AND THAT THE DEDUCTIONS SHOULD HAVE BEEN DISCONTINUED BEGINNING WITH THE FIRST PAY PERIOD IN MARCH.

THE COURTS HAVE HELD THAT WHEN A POWER MAY BE EXERCISED OR AN ACT PERFORMED UP TO AND INCLUDING A GIVEN DAY OF THE MONTH IT MAY GENERALLY, WHEN THAT DAY HAPPENS TO FALL ON A SUNDAY, BE EXERCISED OR PERFORMED ON THE SUCCEEDING DAY. STREET V UNITED STATES, 133 U.S. 299, 306 (1890); MONROE CATTLE COMPANY V BECKER, 147 U.S. 47, 55, 56 (1893); SHERWOOD BROTHERS, INC. V DISTRICT OF COLUMBIA, 113 F. 2D 162, 163 (1940); SIMON V COMMISSIONER OF INTERNAL REVENUE, 176 F. 2D 230, 232 (1949); ARMSTRONG V MCGOUGH, 247 S.W. 790 (1923). ALTHOUGH WE FIND NO DECISION OF THIS OFFICE IN WHICH THIS RULE HAS BEEN APPLIED TO THE REGULATION IN QUESTION HERE, IT HAS BEEN RECOGNIZED IN OTHER SOMEWHAT SIMILAR SITUATIONS. SEE 20 COMP. GEN. 310 (1940); B-104419, DATED SEPTEMBER 21, 1951, AND B-108143, DATED FEBRUARY 29, 1952.

ACCORDINGLY, WE BELIEVE THAT IN THIS CASE RECEIPT OF THE REVOCATION OF AUTHORIZATION IN THE PAYROLL OFFICE ON MONDAY FOLLOWING THE MARCH 1 DEADLINE DATE MAY BE CONSIDERED AS COMPLIANCE WITH THE REGULATION. THUS IT FOLLOWS THAT MR. LANE'S REVOCATION OF AUTHORIZATION FOR DEDUCTION OF ORGANIZATION DUES FROM HIS PAY BECAME EFFECTIVE AT THE BEGINNING OF THE FIRST FULL PAY PERIOD AFTER MARCH 1, 1970. THE AMOUNT OF THE DEDUCTIONS, WHICH WE ASSUME THE EMPLOYEE ORGANIZATION HAS RECEIVED, SHOULD BE COLLECTED BACK FROM SUCH ORGANIZATION AND PAID TO MR. LANE.