B-76752, JULY 26, 1948, 28 COMP. GEN. 54

B-76752: Jul 26, 1948

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HAVE NO APPLICATION SO AS TO REQUIRE THE SUBMISSION BY STATE EMPLOYEES ENGAGED IN SUCH EMPLOYMENT WORK OF AFFIDAVITS PRESCRIBED THEREIN. FEDERAL FUNDS GRANTED TO THE SEVERAL STATES IN CONNECTION WITH THE ADMINISTRATION AND ENFORCEMENT OF THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938 AND THE WALSH-HEALEY PUBLIC CONTRACTS ACT UNDER AGREEMENTS WHEREBY THE FUNDS ARE PAID TO THE STATES AS REIMBURSEMENT OF COSTS. ARE TO BE REGARDED AS STATE FUNDS SUBJECT TO STATE CONTROL. HAVE NO APPLICATION SO AS TO REQUIRE THE SUBMISSION BY STATE EMPLOYEES ENGAGED IN SUCH ENFORCEMENT DUTIES OF AFFIDAVITS PRESCRIBED THEREIN. PRESENTING CERTAIN PROBLEMS WHICH HAVE ARISEN IN CONNECTION WITH THE POSSIBLE APPLICATION OF THE PROVISIONS OF SECTION 601 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT.

B-76752, JULY 26, 1948, 28 COMP. GEN. 54

ANTI-STRIKE AFFIDAVIT REQUIREMENTS - APPLICABILITY TO STATE EMPLOYEES FEDERAL FUNDS APPROPRIATED FOR GRANTS TO THE SEVERAL STATES FOR THE ADMINISTRATION OF STATE PUBLIC EMPLOYMENT OFFICES UNDER THE ACT OF JUNE 6, 1933, AS AMENDED, UPON BEING RECEIPTED FOR BY THE STATE, LOSE THEIR IDENTITY AS FEDERAL FUNDS AND BECOME FUNDS OF THE STATE, AND, THEREFORE, THE ANTI-STRIKE PROVISIONS OF SECTION 601 OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT, 1948, HAVE NO APPLICATION SO AS TO REQUIRE THE SUBMISSION BY STATE EMPLOYEES ENGAGED IN SUCH EMPLOYMENT WORK OF AFFIDAVITS PRESCRIBED THEREIN. FEDERAL FUNDS GRANTED TO THE SEVERAL STATES IN CONNECTION WITH THE ADMINISTRATION AND ENFORCEMENT OF THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938 AND THE WALSH-HEALEY PUBLIC CONTRACTS ACT UNDER AGREEMENTS WHEREBY THE FUNDS ARE PAID TO THE STATES AS REIMBURSEMENT OF COSTS, INCLUDING SALARIES PAID BY THE STATES TO THEIR EMPLOYEES, ARE TO BE REGARDED AS STATE FUNDS SUBJECT TO STATE CONTROL, AND, THEREFORE, THE ANTI -STRIKE PROVISIONS OF SECTION 601 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, HAVE NO APPLICATION SO AS TO REQUIRE THE SUBMISSION BY STATE EMPLOYEES ENGAGED IN SUCH ENFORCEMENT DUTIES OF AFFIDAVITS PRESCRIBED THEREIN.

ACTING COMPTROLLER GENERAL YATES TO THE ACTING SECRETARY OF LABOR, JULY 26, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 25, 1948, PRESENTING CERTAIN PROBLEMS WHICH HAVE ARISEN IN CONNECTION WITH THE POSSIBLE APPLICATION OF THE PROVISIONS OF SECTION 601 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, 61 STAT. 278, TO THE ADMINISTRATION BY YOUR DEPARTMENT OF THE FAIR LABOR STANDARDS ACT AND THE WALSH-HEALEY PUBLIC CONTRACTS ACT, AS WELL AS TO GRANTS TO THE SEVERAL STATES AUTHORIZED UNDER THE REFERRED-TO LABOR-FEDERAL SECURITY APPROPRIATION ACT.

SECTION 601 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, SUPRA, IS AS FOLLOWS.

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, 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 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 AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST 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.

THE PERTINENT PROVISIONS OF THE FAIR LABOR STANDARD ACT, 52 STAT. 1066, AND THE WALSH-HEALEY ACT, 49 STAT. 2038, BY THE TERMS OF WHICH THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR AND THE SECRETARY OF LABOR ARE AUTHORIZED TO UTILIZE THE SERVICES OF STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES FOR THE PURPOSE OF CARRYING OUT INSPECTION AND INVESTIGATIVE FUNCTIONS THEREUNDER AND TO REIMBURSE SUCH AGENCIES AND THEIR EMPLOYEES FOR THE SERVICES SO UTILIZED ARE, AS FOLLOWS:

FAIR LABOR STANDARDS ACT

SECTION 11 (B). WITH THE CONSENT AND COOPERATION OF STATE AGENCIES CHARGED WITH ADMINISTRATION OF STATE LABOR LAWS, THE ADMINISTRATOR AND SECRETARY OF LABOR (BY AMENDMENT SEC. 1, REORGANIZE. PLAN NUMBER 2, 1946) MAY, FOR THE PURPOSE OF CARRYING OUT THEIR RESPECTIVE FUNCTIONS AND DUTIES UNDER THIS ACT, UTILIZE THE SERVICES OF STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES AND, NOTWITHSTANDING ANY OTHER PROVISIONS OF THE LAW MAY REIMBURSE SUCH STATE AND LOCAL AGENCIES AND THEIR EMPLOYEES FOR SERVICES RENDERED FOR SUCH PURPOSES.

WALSH-HEALEY ACT

SEC. 4. THE SECRETARY OF LABOR IS AUTHORIZED AND DIRECTED TO ADMINISTER THE PROVISIONS OF THIS ACT AND TO UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES AND, WITH THE CONSENT OF THE STATE, SUCH STATE AND LOCAL OFFICES AND EMPLOYEES AS HE MAY FIND NECESSARY TO ASSIST IN THE ADMINISTRATION OF THIS ACT.

IT IS SET FORTH IN YOUR LETTER THAT, IN THE ADMINISTRATION AND ENFORCEMENT OF SUCH ACTS, IT HAS BEEN THE PRACTICE OF THE DEPARTMENT TO ENTER INTO AGREEMENTS WITH THE SEVERAL STATES UNDER WHICH THE STATE INSPECTION STAFF PERFORMS INSPECTION SERVICES FOR BOTH THE STATE AND FEDERAL GOVERNMENTS IN RETURN FOR THE REIMBURSEMENT TO THE STATE UNDER AN ESTIMATED EXPENDITURE SCHEDULE OF THE SALARIES AND AUTHORIZED EXPENDITURES OF A PROPORTIONATE NUMBER OF SUCH EMPLOYEES ONLY. YOU STATE THAT THE RENEWAL OF SUCH STATE AGREEMENTS IS CONTEMPLATED AND REQUEST A DECISION AS TO WHETHER THE PROVISIONS OF SECTION 601 OF THE LABOR-FEDERAL SECURITY ACT OF 1948, SUPRA, ARE APPLICABLE TO FUNDS WITH WHICH THE STATES ARE REIMBURSED FOR SERVICES RENDERED BY THEIR EMPLOYEES PURSUANT TO SAID AGREEMENTS SO AS TO REQUIRE THE SUBMISSION BY SUCH STATE EMPLOYEES OF AFFIDAVITS AS DESCRIBED THEREIN.

ALSO, YOU REQUEST A DECISION AS TO WHETHER THE PROVISIONS OF SAID SECTION 601 OF THE LABOR-FEDERAL SECURITY ACT, 1948, ARE APPLICABLE TO FUNDS APPROPRIATED FOR GRANTS TO THE SEVERAL STATES FOR THE ADMINISTRATION OF STATE PUBLIC EMPLOYMENT OFFICES UNDER THE ACT OF JUNE 6, 1933, 48 STAT. 115, 29 U.S.C. 49, AS AMENDED BY THE FOLLOWING PROVISIONS OF THE REFERRED- TO LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, 61 STAT. 262:

FOR GRANTS TO THE SEVERAL STATES (INCLUDING ALASKA AND HAWAII) IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 6, 1933, AS AMENDED (29 U.S.C. 49-491) * * *: PROVIDED, THAT NO STATE SHALL BE REQUIRED TO MAKE ANY APPROPRIATION AS PROVIDED IN SECTION 5 (A) OF SAID ACT OF JUNE 6, 1933, PRIOR TO JULY 1, 1949 * * *.

IN CONNECTION WITH THE QUESTIONS SUBMITTED IT IS NOTED THAT THE APPROPRIATION ACTS FOR THE DEPARTMENT OF LABOR AND THE FEDERAL SECURITY AGENCY FOR THE FISCAL YEAR 1949, CONTAIN PROVISIONS SIMILAR TO THOSE SET FORTH BELOW. SEE PUBLIC LAWS 639, 62 STAT. 407, AND 646, ID. 449, 80TH CONGRESS.

AS IS STATED IN YOUR LETTER, IT CONSISTENTLY HAS BEEN HELD WITH RESPECT TO FEDERAL FUNDS GRANTED TO A STATE THAT, WHEN SUCH FUNDS ARE RECEIPTED FOR BY THE STATE, THEY BECOME STATE FUNDS AND, IN THE ABSENCE OF A CONDITION OF THE GRANT SPECIFICALLY PRESCRIBING TO THE CONTRARY, ARE TOTALLY DIVESTED OF THEIR IDENTITY AS FEDERAL FUNDS AND BECOME FUNDS OF THE STATE AND THE EXPENDITURE THEREOF IS SUBJECT TO THE LAWS AND REGULATIONS APPLICABLE TO THE EXPENDITURE OF STATE FUNDS RATHER THAN FEDERAL LAWS APPLICABLE TO THE EXPENDITURE OF APPROPRIATED MONEYS BY THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. 14 COMP. GEN. 916; 16 ID. 948; 17 ID. 593; 25 ID. 868. THE RULE APPLIED IN SAID DECISIONS APPEARS APPLICABLE TO FUNDS GRANTED TO THE SEVERAL STATES UNDER THE ACT OF JUNE 6, 1933, SUPRA, AS AMENDED AND, CONSEQUENTLY, SECTION 601 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, HAS NOT APPLICATION THERETO.

UNDER THE REFERRED-TO AGREEMENTS ENTERED INTO WITH THE SEVERAL STATES IN CONNECTION WITH THE ENFORCEMENT OF THE PROVISIONS OF THE FAIR LABOR STANDARDS AND WALSH-HEALEY ACTS, SUPRA--- A SAMPLE FORM OF WHICH WAS TRANSMITTED WITH YOUR LETTER--- THE STATE IS DESIGNATED AS THE REPRESENTATIVE OF THE DEPARTMENT OF LABOR TO MAKE OR CAUSE TO BE MADE SUCH INVESTIGATIONS, INSPECTIONS AND REPORTS, AND TO PERFORM OR CAUSE TO BE PERFORMED SUCH SERVICES AS AGREED TO BY THE PARTIES UNDER A SPECIFIED PLAN. IN RETURN FOR SUCH SERVICES IT IS PROVIDED THAT THE GOVERNMENT WILL REIMBURSE THE STATE FOR A PROPORTIONATE SHARE OF THE EXPENSES INCURRED BY THE STATE, MEASURED BY SUCH PART OF THE SALARIES AND AUTHORIZED EXPENSES OF STATE EMPLOYEES AS ARE ATTRIBUTABLE TO THE PERFORMANCE OF SUCH WORK FOR THE FEDERAL GOVERNMENT.

SINCE, UNDER SUCH CIRCUMSTANCES, THE FUNDS ARE NOT PAID TO THE STATE EMPLOYEES AS SALARY OR WAGES BUT ARE PAID TO THE STATE AS REIMBURSEMENT OF COSTS, INCLUDING SALARIES PAID BY THE STATE TO EMPLOYEES AND OTHER EXPENSES, INCURRED BY THE STATE IN FURNISHING INSPECTION AND OTHER SERVICES, AND AS SAID PAYMENTS BECOME STATE FUNDS, THE SUBSEQUENT EXPENDITURE OF WHICH IS SUBJECT TO THE LAWS AND REGULATIONS APPLICABLE TO THE EXPENDITURE OF STATE FUNDS, THE RULE HEREINBEFORE SET FORTH AS APPLICABLE TO GRANTS OF FUNDS TO THE SEVERAL STATES WOULD APPEAR EQUALLY APPLICABLE TO FUNDS PAID TO STATES UNDER AGREEMENTS SUCH AS HERE INVOLVED AND, CONSEQUENTLY, THE PROVISIONS OF SECTION 601 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1948, WOULD APPEAR NOT FOR APPLICATION THERETO.