B-59747, AUGUST 13, 1946, 26 COMP. GEN. 111

B-59747: Aug 13, 1946

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DO NOT REQUIRE THAT THE AFFIDAVIT FOR USE IN MAKING PAYMENTS OF SALARIES UNDER APPROPRIATIONS WHICH ARE SUBJECT TO SUCH PROVISIONS CONTAIN AN AVERMENT THAT THE EMPLOYEE HAS NOT STRUCK AGAINST THE GOVERNMENT PRIOR TO THE EFFECTIVE DATE OF SAID ACT. SHOULD THE AFFIDAVITS FOR USE IN MAKING PAYMENTS OF SALARIES UNDER APPROPRIATIONS WHICH ARE SUBJECT TO THE ANTI-STRIKE PROVISIONS OF SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT. AS SUCH ANTI-STRIKE PROVISIONS ARE APPLICABLE TO APPROPRIATIONS FOR THE FISCAL YEAR 1947. THERE IS NO OBJECTION TO THE ACCEPTANCE OF AN AFFIDAVIT EFFECTIVE "DURING THE FISCAL YEAR 1947.'. AGAINST THE USE OF APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1947 TO PAY THE SALARY OR WAGES OF PERSONS WHO ENGAGE IN A STRIKE AGAINST THE GOVERNMENT OR WHO ARE MEMBERS OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES WHICH ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT.

B-59747, AUGUST 13, 1946, 26 COMP. GEN. 111

OFFICERS AND EMPLOYEES - PROHIBITION AGAINST STRIKES THE ANTI-STRIKE PROVISIONS OF SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, DO NOT REQUIRE THAT THE AFFIDAVIT FOR USE IN MAKING PAYMENTS OF SALARIES UNDER APPROPRIATIONS WHICH ARE SUBJECT TO SUCH PROVISIONS CONTAIN AN AVERMENT THAT THE EMPLOYEE HAS NOT STRUCK AGAINST THE GOVERNMENT PRIOR TO THE EFFECTIVE DATE OF SAID ACT. SHOULD THE AFFIDAVITS FOR USE IN MAKING PAYMENTS OF SALARIES UNDER APPROPRIATIONS WHICH ARE SUBJECT TO THE ANTI-STRIKE PROVISIONS OF SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, NOT CONTAIN A STATEMENT IN FUTURO, A NEW AFFIDAVIT WOULD BE REQUIRED EACH PAY PERIOD; HOWEVER, AS SUCH ANTI-STRIKE PROVISIONS ARE APPLICABLE TO APPROPRIATIONS FOR THE FISCAL YEAR 1947, THERE IS NO OBJECTION TO THE ACCEPTANCE OF AN AFFIDAVIT EFFECTIVE "DURING THE FISCAL YEAR 1947.' THE PROHIBITION IN SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, AGAINST THE USE OF APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1947 TO PAY THE SALARY OR WAGES OF PERSONS WHO ENGAGE IN A STRIKE AGAINST THE GOVERNMENT OR WHO ARE MEMBERS OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES WHICH ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT, RELATES TO GOVERNMENT EMPLOYEES WHOSE SALARY OR WAGES ARE PAYABLE DIRECTLY FROM APPROPRIATED FUNDS AND DOES NOT EXTEND TO EMPLOYEES OF GOVERNMENT CONTRACTORS. THE PROHIBITION IN SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, AGAINST THE USE OF APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATIONS DURING THE FISCAL YEAR 1947 TO PAY THE SALARY OR WAGES OF PERSONS WHO ARE MEMBERS OF "AN ORGANIZATION OF GOVERNMENT EMPLOYEES" WHICH ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT IS APPLICABLE TO MEMBERSHIP IN ANY ORGANIZATION HAVING FOR ITS PURPOSE THE WELFARE OF, AND THE MAJORITY OF WHOSE VOTING MEMBERSHIP IS COMPOSED OF, GOVERNMENT EMPLOYEES AND IS NOT LIMITED IN ITS APPLICATION TO MEMBERSHIP IN AN ORGANIZATION COMPOSED EXCLUSIVELY OF GOVERNMENT EMPLOYEES.

ACTING COMPTROLLER GENERAL YATES TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 13, 1946:

I HAVE YOUR LETTER OF AUGUST 5, 1946, AS FOLLOWS:

IN CONNECTION WITH THE PROVISIONS IN THE SEVERAL APPROPRIATION ACTS FOR THE FISCAL YEAR 1947 REGARDING STRIKING BY GOVERNMENT EMPLOYEES AGAINST THE GOVERNMENT OF THE UNITED STATES, OR ASSERTING, OR MEMBERSHIP IN AN ORGANIZATION OF GOVERNMENT EMPLOYEES WHICH ASSERTS, THE RIGHT TO STRIKE AGAINST THE GOVERNMENT, THE COMMISSION HAS RECEIVED A LETTER DATED AUGUST 5, 1946, A COPY OF WHICH IS ATTACHED, FROM MR. JOSEPH A. PADWAY, GENERAL COUNSEL OF THE AMERICAN FEDERATION OF LABOR, WHICH CONTAINS CERTAIN COMMENTS REGARDING THE ADMINISTRATION OF THE PROVISIONS REFERRED TO.

IT WILL BE NOTED THAT MR. PADWAY DESIRES AN ASSURANCE THAT THE AFFIDAVITS REQUIRED OF GOVERNMENT EMPLOYEES NEED MAKE NO REFERENCE TO STRIKES AGAINST THE GOVERNMENT IN THE PAST, NEED MAKE NO COMMITMENT AS TO STRIKING IN THE FUTURE BEYOND THE PERIOD COVERED BY THE VARIOUS APPROPRIATION LAWS, THAT NO AFFIDAVIT SHOULD BE REQUIRED OF EMPLOYEES OF PRIVATE PERSONS WHO MAY HAVE CONTRACTS WITH THE GOVERNMENT AND THAT THE PHRASE "ORGANIZATION OF GOVERNMENT EMPLOYEES" MEANS, AND IS INTENDED TO MEAN, AN ORGANIZATION COMPOSED EXCLUSIVELY OF GOVERNMENT EMPLOYEES.

SINCE THESE QUESTIONS HAVE TO DO WITH THE USE OF APPROPRIATED FUNDS THE COMMISSION DOES NOT BELIEVE THAT IT IS IN A POSITION TO RULE ON THESE MATTERS. THE INQUIRIES ARE THEREFORE BEING FORWARDED TO YOU WITH THE REQUEST THAT YOU ADVISE THE COMMISSION AS TO YOUR DECISION IN THE MATTER SO THAT THE COMMISSION MAY IN TURN INFORM MR. PADWAY.

IT WILL BE APPRECIATED IF YOU WILL ALSO ADVISE THE COMMISSION WHETHER YOUR OFFICE PROPOSES TO ISSUE INSTRUCTIONS AND INTERPRETATIONS FOR THE GUIDANCE OF THE AGENCIES ALONG THE LINES INDICATED BY MR. PADWAY.

THE COPY OF THE REFERRED-TO LETTER FROM MR. PADWAY REQUESTS CONCURRENCE IN THE FOLLOWING POINTS:

(1) THAT THE AFFIDAVIT NEED NOT AND SHOULD NOT CONTAIN THE STATEMENT THAT THE GOVERNMENT EMPLOYEE HAS NOT STRUCK AGAINST THE GOVERNMENT OF THE UNITED STATES IN THE PAST--- THAT IS, BEFORE THE EFFECTIVE DATE OF THE VARIOUS LAWS;

(2) THAT THE AFFIDAVIT NEED NOT AND SHOULD NOT CONTAIN THE STATEMENT THAT THE GOVERNMENT EMPLOYEE WILL NEVER STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES; THAT IS, THAT THE COMMITMENT AS TO FUTURE STRIKES SHOULD BE LIMITED TO THE PERIOD OF THE OPERATION OF THE VARIOUS APPROPRIATION LAWS;

(3) THAT THE LAW IN NO MANNER APPLIES TO THE EMPLOYEES OF PRIVATE PERSONS WHO MAY HAVE CONTRACTS WITH THE GOVERNMENT;

(4) THAT THE PHRASE "ORGANIZATION OF GOVERNMENT EMPLOYEES" MEANS, AND IS INTENDED TO MEAN, AN ORGANIZATION COMPOSED EXCLUSIVELY OF GOVERNMENT EMPLOYEES.

THE SO-CALLED ANTI-STRIKE PROVISION, AS IT APPEARS IN SECTION 401 OF THE THIRD DEFICIENCY ACT FOR 1946, APPROVED JULY 23, 1946, PUBLIC 521, 60 STAT. 631, PROVIDES AS FOLLOWS:

SEC. 401. NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT HAS NOT CONTRARY TO THE PROVISIONS OF THIS SECTION ENGAGED IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, IS NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR THAT SUCH PERSON DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE:PROVIDED FURTHER, THAT ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF THE ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE AND ACCEPTS EMPLOYMENT THE SALARY OR WAGES FOR WHICH ARE PAID FROM ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH: PROVIDED FURTHER, THAT THE ABOVE PENALTY CLAUSE SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1947, HOWEVER MADE AVAILABLE, IF NOT HERETOFORE MADE APPLICABLE (ANY EXCLUSIONS MADE IN ANY OTHER ACT EXCEPTED) TO SUCH APPROPRIATIONS OR FUNDS IN THE RESPECTS HEREIN PROVIDED.

BY DEPARTMENTAL CIRCULAR NO. 560, DATED JUNE 28, 1946, THE CIVIL SERVICE COMMISSION PRESCRIBED THE FOLLOWING FORM OF AFFIDAVITS FOR USE IN MAKING PAYMENTS OF SALARIES UNDER APPROPRIATIONS THAT ARE SUBJECT TO SUCH STATUTORY PROVISIONS:

FORM

I, ....................., DO HEREBY SWEAR (OR AFFIRM) THAT I AM NOT ENGAGED IN ANY STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES AND THAT I WILL NOT SO ENGAGE WHILE AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES; THAT I AM NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, AND THAT I WILL NOT WHILE A GOVERNMENT EMPLOYEE BECOME A MEMBER OF SUCH AN ORGANIZATION.

( SIGNATURE OF EMPLOYEE OR APPOINTEE)

WITH RESPECT TO POINT NO. 1 HEREINBEFORE QUOTED, IT WILL BE NOTED THAT THE AFFIDAVIT SO PRESCRIBED DOES NOT CONTAIN ANY AVERMENT THAT THE EMPLOYEE HAS NOT STRUCK AGAINST THE GOVERNMENT PRIOR TO THE EFFECTIVE DATE OF THE RESPECTIVE LAWS, AND THIS OFFICE DOES NOT CONSIDER THAT SUCH AN AVERMENT IS REQUIRED BY THE ABOVE-QUOTED STATUTORY PROVISION.

WITH RESPECT TO POINT NO. 2, IF THE AFFIDAVITS REQUIRED OF GOVERNMENT EMPLOYEES DID NOT CONTAIN A STATEMENT IN FUTURO, IT WOULD BE NECESSARY TO REQUIRE A NEW AFFIDAVIT EACH PAY PERIOD BEFORE THE CERTIFYING OFFICER COULD SAFELY CERTIFY, AS HE IS REQUIRED TO DO, THAT THE EMPLOYMENT OF THE PERSONS NAMED ON THE PAY ROLL IS NOT PROHIBITED BY ANY PROVISION OF LAW LIMITING THE AVAILABILITY OF THE APPROPRIATIONS INVOLVED. AS THE ANTI- STRIKE PROVISIONS IS LIMITED PRESENTLY IN ITS APPLICATION TO APPROPRIATIONS FOR THE FISCAL YEAR 1947, THERE WOULD BE NO OBJECTION TO THE ACCEPTANCE OF AN AFFIDAVIT WITH THE WORDS "DURING THE FISCAL YEAR 1947" INSERTED IMMEDIATELY BEFORE THE SEMICOLON IN THE FORM OF AFFIDAVIT QUOTED ABOVE IN THE CASE OF ANY EMPLOYEE WHO REFUSES TO SIGN THE AFFIDAVIT IN ITS PRESENT FORM.

WITH RESPECT TO POINT NO. 3, THE PROHIBITION IN THE STATUTE IS AGAINST THE USE OF THE APPROPRIATION TO PAY THE SALARY OR WAGES OF PERSONS WHO ENGAGE IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO ARE MEMBERS OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT. THIS LANGUAGE CLEARLY INDICATES THAT IT RELATES TO GOVERNMENT EMPLOYEES WHOSE SALARY OR WAGES ARE PAYABLE DIRECTLY FROM APPROPRIATED FUNDS AND WAS NOT INTENDED TO BE EXTENDED TO THE EMPLOYEES OF PRIVATE CONTRACTORS WHO MAY BE ENGAGED UPON GOVERNMENT CONTRACTS.

WITH RESPECT TO POINT NO. 4, THIS OFFICE DOES NOT AGREE THAT THE PROVISION REFERRED TO IS LIMITED IN ITS APPLICATION TO MEMBERSHIP IN "AN ORGANIZATION COMPOSED EXCLUSIVELY OF GOVERNMENT EMPLOYEES," AS AN ORGANIZATION WHICH HAS A FEW MEMBERS WHO ARE NOT GOVERNMENT EMPLOYEES COULD STILL BE AN ORGANIZATION OF GOVERNMENT EMPLOYEES WITHIN THE MEANING OF THAT TERM AS USED IN THE STATUTE. ACCORDINGLY, SAID TERM WILL BE CONSIDERED BY THIS OFFICE AS INCLUDING ALL ORGANIZATIONS HAVING FOR THEIR PURPOSE THE WELFARE OF, AND THE MAJORITY OF THOSE VOTING MEMBERSHIP IS COMPOSED OF, GOVERNMENT EMPLOYEES.

THIS OFFICE DOES NOT CONTEMPLATE ISSUING ANY REGULATIONS, INSTRUCTIONS, OR VOLUNTARY INTERPRETATIONS WITH RESPECT TO THE WORDING OR USE OF AFFIDAVITS TO SHOW COMPLIANCE WITH THE ANTI-STRIKE PROVISIONS, THE MATTER AS TO THE EVIDENCE ON WHICH THE CERTIFYING OFFICER RELIES IN MAKING HIS CERTIFICATE AS TO THE LEGALITY OF THE SALARY PAYMENTS ON ROLLS OR VOUCHERS WHICH HE CERTIFIES BEING HIS RESPONSIBILITY. SEE 20 COMP. GEN. 924.