B-207507-OM,(2), SEP 22, 1982

B-207507-OM,(2): Sep 22, 1982

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WHICH WAS SUBMITTED BY THE CHIEF. WE ARE ALSO RETURNING HEREWITH YOUR FILE. WE HAVE INFORMED THE CLAIMANT. THAT WE ARE WITHHOLDING CONSIDERATION OF MR. THOMAS' CLAIMS FOR TRAVEL AND RELOCATION EXPENSES UNTIL THE LEGAL STATUS AND EFFECT OF HIS REMOVAL FROM THE FEDERAL AVIATION ADMINISTRATION IS FINALLY DETERMINED BY THE MERIT SYSTEMS PROTECTION BOARD OR FURTHER COURT PROCEEDINGS. WHEN THIS MATTER IS FINALLY DETERMINED. IS AS FOLLOWS: "WHAT EFFECT. DO FEDERAL LAWS PROHIBITING STRIKING AGAINST THE GOVERNMENT HAVE ON THE TRAVEL AND RELOCATION EXPENSE CLAIMS OF FORMER FEDERAL EMPLOYEES WHO WERE REMOVED FROM THEIR POSITIONS FOR PARTICIPATION IN AN ILLEGAL STRIKE?". AS WE HAVE MORE FULLY DETAILED IN OUR LETTER TO REPRESENTATIVE THOMAS J.

B-207507-OM,(2), SEP 22, 1982

SUBJECT: EFFECT OF FEDERAL LAWS PROHIBITING STRIKING ON FORMER FEDERAL EMPLOYEES' CLAIMS FOR TRAVEL AND RELOCATION EXPENSES, B-207507-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

THIS MEMORANDUM RESPONDS TO THE QUESTION RAISED IN THE REQUEST FOR LEGAL ASSISTANCE DATED MAY 12, 1982, WHICH WAS SUBMITTED BY THE CHIEF, PAYMENT BRANCH, SHARON S. GREEN, CONCERNING THE ABOVE-CAPTIONED MATTER. WE ARE ALSO RETURNING HEREWITH YOUR FILE, Z-2837417. BY A SEPARATE LETTER, DATED TODAY, WE HAVE INFORMED THE CLAIMANT, MR. RONALD C. THOMAS, THROUGH REPRESENTATIVE THOMAS J. DOWNEY, THAT WE ARE WITHHOLDING CONSIDERATION OF MR. THOMAS' CLAIMS FOR TRAVEL AND RELOCATION EXPENSES UNTIL THE LEGAL STATUS AND EFFECT OF HIS REMOVAL FROM THE FEDERAL AVIATION ADMINISTRATION IS FINALLY DETERMINED BY THE MERIT SYSTEMS PROTECTION BOARD OR FURTHER COURT PROCEEDINGS. WHEN THIS MATTER IS FINALLY DETERMINED, MR. THOMAS MAY RESUBMIT HIS CLAIMS TO THIS OFFICE.

THE QUESTION IN YOUR REQUEST, AS WE PERCEIVE THE SCOPE OF IT, IS AS FOLLOWS:

"WHAT EFFECT, IF ANY, DO FEDERAL LAWS PROHIBITING STRIKING AGAINST THE GOVERNMENT HAVE ON THE TRAVEL AND RELOCATION EXPENSE CLAIMS OF FORMER FEDERAL EMPLOYEES WHO WERE REMOVED FROM THEIR POSITIONS FOR PARTICIPATION IN AN ILLEGAL STRIKE?"

IN VIEW OF THE CIRCUMSTANCES OF MR. THOMAS' CLAIMS, AS WE HAVE MORE FULLY DETAILED IN OUR LETTER TO REPRESENTATIVE THOMAS J. DOWNEY, WE BELIEVE IT IS NOT NECESSARY TO RESOLVE THIS QUESTION AT THE PRESENT TIME. WE WILL, HOWEVER, PROVIDE THE FOLLOWING FOR YOUR INFORMATION.

HISTORICAL BACKGROUND

BEGINNING IN 1946, CONGRESS ATTACHED A RIDER TO AN APPROPRIATION BILL WHICH PROHIBITED STRIKES BY GOVERNMENT EMPLOYEES. SEE S.REP. NO. 1256, 84TH CONG., 1ST SESS. 1-2 (1955), REPRINTED IN (1955) U.S.C. CONG. & AD. NEWS 2873 WHICH GIVES A BRIEF HISTORY OF THE VARIOUS STRIKE PROHIBITION RIDERS. THIS ORIGINAL STRIKE PROHIBITION PROVISION APPEARED AS SEC. 201 OF THE THIRD URGENT DEFICIENCY APPROPRIATION ACT, 1946, CH. 425, 60 STAT. 268-69 (1946). IT PROVIDED, INTER ALIA, THAT NO PART OF THE APPROPRIATION COULD BE USED TO PAY ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT, OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT. IT ALSO PROVIDED FOR AFFIDAVITS AGAINST STRIKING AND CRIMINAL PENALTIES.

IN 1947, CONGRESS ENACTED LEGISLATION OF A MORE PERMANENT NATURE WHICH MADE IT UNLAWFUL FOR A FEDERAL EMPLOYEE TO PARTICIPATE IN A STRIKE, PROVIDED FOR THE IMMEDIATE DISCHARGE AND FORFEITURE OF CIVIL SERVICE STATUS OF ANY FEDERAL EMPLOYEE WHO DID, AND MADE SUCH AN EMPLOYEE INELIGIBLE FOR EMPLOYMENT BY THE GOVERNMENT FOR 3 YEARS. LABOR MANAGEMENT RELATIONS ACT, 1947, CH. 120, SEC. 305, 61 STAT. 160 (1947). THIS SECTION WAS SPECIFICALLY REPEALED IN 1955, BUT WAS ALSO REENACTED IN THE SAME ACT AS PART OF AN OVERALL ATTEMPT TO CLARIFY AND CONSOLIDATE THE STRIKE PROHIBITION. ACT OF AUGUST 9, 1955, CH. 690, SECS. 1-4, 69 STAT. 624-25 (1955). THIS ACT IS CURRENTLY CODIFIED, WITH MINOR CHANGES OF WORDING, IN 5 U.S.C. SECS. 3333 AND 7311, AND 18 U.S.C. SEC. 1918 (1976).

BEFORE EXAMINING THE TEXT OF THESE CURRENT STATUTES, WE NOTE THAT THE PREVIOUS PROVISIONS IN THE VARIOUS APPROPRIATION ACTS GENERALLY REQUIRED FORFEITURE OF ALL COMPENSATION DUE TO ANY FEDERAL EMPLOYEE WHO PARTICIPATED IN A STRIKE, INCLUDING EVEN UNPAID COMPENSATION EARNED PRIOR TO THE STRIKE. SEE E.G. 31 COMP.GEN. 376 (1952), 26 ID. 853 (1947); B-63079, FEBRUARY 26, 1947. HOWEVER, THIS WAS CHANGED BY THE ACT OF AUGUST 9, 1955, SUPRA, WHICH MADE THE PROHIBITION APPLICABLE ONLY TO THE HOLDING OF OFFICE OR EMPLOYMENT, AS OUR OFFICE HAS RECOGNIZED. B-170730-O.M., DECEMBER 7, 1970; B-142399, JULY 11, 1960.

CURRENT FEDERAL STATUTES ON STRIKING AGAINST THE GOVERNMENT

TITLE 5 U.S.C. SEC. 7311 (1976), IN RELEVANT PART, PROVIDES:

"AN INDIVIDUAL MAY NOT ACCEPT OR HOLD A POSITION IN THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IF HE -

"(3) PARTICIPATES IN A STRIKE, OR ASSERTS THE RIGHT TO STRIKE, AGAINST THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA; OR

"(4) IS A MEMBER OF AN ORGANIZATION OF EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES OR OF INDIVIDUALS EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THAT HE KNOWS ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA."

IN THIS REGARD WE NOTE THAT 5 U.S.C. SEC. 3333 (1976) FURTHER PROVIDES FOR THE EXECUTION OF AFFIDAVITS AGAINST STRIKING BY ALMOST ALL GOVERNMENT OR DISTRICT OF COLUMBIA EMPLOYEES.

TITLE 18 U.S.C. SEC. 1918 (1976), IN RELEVANT PART, PROVIDES:

"WHOEVER VIOLATES THE PROVISION OF SECTION 7311 OF TITLE 5 THAT AN INDIVIDUAL MAY NOT ACCEPT OR HOLD A POSITION IN THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IF HE -

"(3) PARTICIPATES IN A STRIKE, OR ASSERTS THE RIGHT TO STRIKE, AGAINST THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA; OR THE UNITED STATES.

"(4) IS A MEMBER OF AN ORGANIZATION OF EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES OR OF INDIVIDUALS EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THAT HE KNOWS ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA; SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN ONE YEAR AND A DAY, OR BOTH."

IN ADDITION TO THE ABOVE STATUTES, TITLE 5 U.S.C. SECS. 8311-8322 (1976) CONTAIN, INTER ALIA, SPECIFIC LISTS OF CRIMES AND CONDITIONS UNDER WHICH ANNUITIES OR RETIRED PAY MUST BE FORFEITED. MORE SPECIFICALLY, 5 U.S.C. SEC. 8315(A) (1976), IN RELEVANT PART, PROVIDES:

"AN INDIVIDUAL, OR HIS SURVIVOR OR BENEFICIARY, MAY NOT BE PAID ANNUITY OR RETIRED PAY ON THE BASIS OF THE SERVICE OF THE INDIVIDUAL WHICH IS CREDITABLE TOWARD THE ANNUITY OR RETIRED PAY, SUBJECT TO THE EXCEPTIONS IN SECTION 8311(2) AND (3) OF THIS TITLE, IF THE INDIVIDUAL KNOWINGLY AND WILLFULLY MADE OR MAKES A FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR REPRESENTATION, OR KNOWINGLY AND WILLFULLY CONCEALED OR CONCEALS A MATERIAL FACT -

"(1) BEFORE, ON, OR AFTER SEPTEMBER 1, 1954, CONCERNING HIS -

"(A) PAST OR PRESENT MEMBERSHIP IN, AFFILIATION OR ASSOCIATION WITH, OR SUPPORT OF THE COMMUNIST PARTY, OR A CHAPTER, BRANCH, OR SUBDIVISION THEREOF, IN OR OUTSIDE THE UNITED STATES, OR OTHER ORGANIZATION, PARTY, OR GROUP ADVOCATING -

(I) THE OVERTHROW, BY FORCE, VIOLENCE, OR OTHER UNCONSTITUTIONAL MEANS, OF THE GOVERNMENT

(II) THE ESTABLISHMENT BY FORCE, VIOLENCE OR OTHER UNCONSTITUTIONAL MEANS, OF A COMMUNIST TOTALITARIAN DICTATORSHIP IN THE UNITED STATES; OR

(III) THE RIGHT TO STRIKE AGAINST THE UNITED STATES;"

SIGNIFICANT DECISIONS ON STATUTES PROHIBITING STRIKING AGAINST THE GOVERNMENT

IN UNITED FEDERATION OF POSTAL CLERKS V. BLOUNT, 325 F.SUPP. 879 (D.D.C.), AFF'D, 404 U.S. 802 (1971), THE THREE-JUDGE COURT UPHELD THE CONSTITUTIONALITY OF THOSE PORTIONS OF 5 U.S.C. SEC. 7311(3), PARAGRAPH C OF THE APPOINTMENT AFFIDAVIT REQUIRED BY 5 U.S.C. SEC. 3333, 18 U.S.C. SEC. 1918(3), AND EXECUTIVE ORDER WHICH PROHIBIT FEDERAL EMPLOYEES FROM PARTICIPATING IN STRIKES AGAINST THE GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. THE COURT, NOTING THAT NO EMPLOYEE HAD THE RIGHT TO STRIKE IN CONCERT WITH HIS FELLOW WORKERS AT COMMON LAW, AND THAT SUCH ACTIONS WERE OFTEN CONSIDERED A CONSPIRACY SAID THAT IT SEEMED CLEAR THAT PUBLIC EMPLOYEES STOOD ON NO STRONGER FOOTING WITH REGARD TO THE RIGHT TO STRIKE THAN PRIVATE EMPLOYEES, AND THAT THEY TOO DID NOT POSSESS THE RIGHT TO STRIKE. GIVEN THE FACT THAT THERE IS THUS NO FIRST AMENDMENT OR OTHER CONSTITUTIONAL GROUND FOR THE RIGHT TO STRIKE, THE COURT FURTHER STATED THAT IT IS NOT IRRATIONAL NOR ARBITRARY FOR THE GOVERNMENT TO CONDITION EMPLOYMENT ON A PROMISE NOT TO WITHHOLD LABOR COLLECTIVELY OR TO PROHIBIT STRIKES BY GOVERNMENT EMPLOYEES. CONGRESS' PROHIBITION OF SUCH STRIKES WAS, THEREFORE, VIEWED AS A REASONABLE IMPLEMENTATION OF ITS OBLIGATION TO INSURE THAT THE GOVERNMENT CONTINUES TO FUNCTION AT ALL TIMES WITHOUT INTERFERENCE.

THE BLOUNT COURT, HOWEVER, ALSO NOTED ITS AGREEMENT WITH TWO OTHER COURT DECISIONS. 325 F.SUPP. AT 881. THE FIRST DECISION WAS STEWART V. WASHINGTON, 301 F.SUPP. 610 (D.D.C. 1969) WHICH HELD UNCONSTITUTIONAL 5 U.S.C. SEC. 7311(1) AND (2), PROVISIONS WHICH PROHIBITED FEDERAL EMPLOYEES FROM ADVOCATING AND FROM BEING MEMBERS OF ORGANIZATIONS KNOWN TO ADVOCATE THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT. THE SECOND DECISION WAS NATIONAL ASSOCIATION OF LETTER CARRIERS V. BLOUNT, 305 F.SUPP. 546 (D.D.C. 1969), APPEAL DISMISSED, 400 U.S. 801 (1971), WHICH HELD UNCONSTITUTIONAL THAT PORTION OF 5 U.S.C. SEC. 7311(3) WHICH PROHIBITS FEDERAL EMPLOYEES FROM ASSERTING THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, AND ALL OF 5 U.S.C. SEC. 7311(4) WHICH PROHIBITS FEDERAL EMPLOYEES FROM BEING MEMBERS OF ORGANIZATIONS THAT THEY KNOW ASSERT THE RIGHT TO STRIKE AGAINST SUCH GOVERNMENTS.

AS TO 5 U.S.C. SEC. 8315(A)(1)(A)(III) (1976), THE SPECIFIC SUBSECTION WHICH PROHIBITS KNOWINGLY OR WILLFULLY CONCEALING A MATERIAL FACT ON A FEDERAL EMPLOYMENT APPLICATION CONCERNING MEMBERSHIP IN AN ORGANIZATION ADVOCATING THE RIGHT TO STRIKE AGAINST THE GOVERNMENT, WE OBSERVE THAT IT CLEARLY IS NOT APPLICABLE IN THE CASE OF MR. THOMAS. IN ANY EVENT, ITS CONSTITUTIONALITY HAS NOT BEEN RULED ON ALTHOUGH WE NOTE THAT HISS V. HAMPTON, 338 F.SUPP. 1141 (D.D.C. 1972) (THREE-JUDGE COURT) HELD THE PRECEDING SUBSECTION OF THIS STATUTE UNCONSTITUTIONAL ON THE GROUND THAT IT WAS AN EX POST FACTO LAW INSOFAR AS IT WAS APPLIED RETROACTIVELY TO PLAINTIFFS IN THAT CASE.

THE DECISIONS CITED ABOVE ILLUSTRATE HOW THE ANTI-STRIKE STATUTES ARE GENERALLY VIEWED. FOR THE MOST RECENT VIEWS ON THIS MATTER WHICH ARE CONSISTENT WITH THE LEADING CASES CITED ABOVE, SEE E.G., PATCO V. FLRA, F.2D , NO. 81-2135 (D.C.CIR. JUNE 11, 1982) (PATCO DECERTIFICATION); AMERICAN POSTAL WORKERS UNION V. UNITED STATES, F.2D , NO. 80-4250 (9TH CIR. JUNE 8, 1982); AIR TRANSPORT ASSOCIATION OF AMERICA V. PATCO, 667 F.2D 316 (2D CIR. 1981); KETCHEM V. DEPARTMENT OF TRANSPORTATION, MSPB DOCKET NO. DA075281F0713 (MAY 28, 1982).