B-130090, MAY 8, 1957

B-130090, MAY 8, 1957

TO AUTHORIZED CERTIFYING OFFICER, NATIONAL MEDIATION BOARD:

YOUR LETTER OF APRIL 9, 1957, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF MR. NATHAN CAYTON, RETIRED CHIEF JUDGE OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. THE VOUCHER PROPOSES PAYMENT IN THE GROSS AMOUNT OF $5,050 TO MR. CAYTON AS COMPENSATION FOR SERVICES AS A MEMBER OF EMERGENCY BOARD 116 FOR A TOTAL OF 50 1/2 DAYS AT $100 A DAY.

MR. CAYTON WAS APPOINTED BY PRESIDENT EISENHOWER, DECEMBER 22, 1956, TO SERVE AS A MEMBER OF AN EMERGENCY BOARD CREATED BY THE PRESIDENT UNDER THE RAILWAY LABOR ACT TO INVESTIGATE AND REPORT ON THE DISPUTE BETWEEN THE AKRON AND BARBERTON BELT RAILROAD AND OTHER CARRIERS AND CERTAIN OF THEIR EMPLOYEES. THE APPOINTMENT STATES THAT EACH MEMBER OF THE BOARD IS TO RECEIVE COMPENSATION AT THE RATE OF $100 PER DAY FOR EACH DAY THAT HE IS ACTUALLY ENGAGED IN THE PERFORMANCE OF HIS DUTIES OR IN TRAVEL IN CONNECTION THEREWITH.

45 U.S.C. 160 PROVIDES:

"SEC. 160. EMERGENCY BOARD. IF A DISPUTE BETWEEN A CARRIER AND ITS EMPLOYEES BE NOT ADJUSTED UNDER THE FOREGOING PROVISIONS OF THIS CHAPTER AND SHOULD, IN THE JUDGMENT OF THE MEDIATION BOARD, THREATEN SUBSTANTIALLY TO INTERRUPT INTERSTATE COMMERCE TO A DEGREE SUCH AS TO DEPRIVE ANY SECTION OF THE COUNTRY OF ESSENTIAL TRANSPORTATION SERVICE, THE MEDIATION BOARD SHALL NOTIFY THE PRESIDENT, WHO MAY THEREUPON, IN HIS DISCRETION, CREATE A BOARD TO INVESTIGATE AND REPORT RESPECTING SUCH DISPUTE. SUCH BOARD SHALL BE COMPOSED OF SUCH NUMBER OF PERSONS AS TO THE PRESIDENT MAY SEEM DESIRABLE: PROVIDED, HOWEVER, THAT NO MEMBER APPOINTED SHALL BE PECUNIARILY OR OTHERWISE INTERESTED IN ANY ORGANIZATION OF EMPLOYEES OR ANY CARRIER. THE COMPENSATION OF THE MEMBERS OF ANY SUCH BOARD SHALL BE FIXED BY THE PRESIDENT. SUCH BOARD SHALL BE CREATED SEPARATELY IN EACH INSTANCE AND IT SHALL INVESTIGATE PROMPTLY THE FACTS AS TO THE DISPUTE AND MAKE A REPORT THEREON TO THE PRESIDENT WITHIN THIRTY DAYS FROM THE DATE OF ITS CREATION.

"THERE IS AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS MAY BE NECESSARY FOR THE EXPENSES OF SUCH BOARD, INCLUDING THE COMPENSATION AND THE NECESSARY TRAVELING EXPENSES AND EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE, OF THE MEMBERS OF THE BOARD. ALL EXPENDITURES OF THE BOARD SHALL BE ALLOWED AND PAID ON THE PRESENTATION OF ITEMIZED VOUCHERS THEREFOR APPROVED BY THE CHAIRMAN.

"AFTER THE CREATION OF SUCH BOARD AND FOR THIRTY DAYS AFTER SUCH BOARD HAS MADE ITS REPORT TO THE PRESIDENT, NO CHANGE, EXCEPT BY AGREEMENT SHALL BE MADE BY THE PARTIES TO THE CONTROVERSY IN THE CONDITIONS OUT OF WHICH THE DISPUTE AROSE.'

IN 31 COMP. GEN. 505 WE HELD THAT RETIRED JUDGES OF THE MUNICIPAL COURT OF APPEALS ARE SUBJECT TO THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, WHICH PROHIBITS THE RECEIPT OF MORE THAN ONE SALARY WHEN THE COMBINED RATE OF THE TWO SALARIES EXCEEDS $2,000 PER ANNUM. WE FURTHER HELD IN THAT DECISION THAT NO PART OF THE JUDGES RETIRED PAY COULD BE WAIVED.

IN OUR DECISION OF JANUARY 2, 1957, B-130090, WE HELD THAT JUDGE CAYTON COULD BE APPOINTED AND RECEIVE COMPENSATION AS A MEMBER OF A COMMITTEE APPOINTED BY THE SECRETARY OF LABOR UNDER SECTION 5 OF THE FAIR LABOR STANDARDS ACT, BECAUSE SECTION 5/B) OF THAT ACT, 29 U.S.C. 205/B), AUTHORIZES THE APPOINTMENT OF AN INDUSTRY COMMITTEE "WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW REGARDING THE APPOINTMENT AND COMPENSATION OF EMPLOYEES OF THE UNITED STATES.' NO SUCH PROVISION IS FOUND APPLICABLE TO MEMBERS OF EMERGENCY BOARDS CREATED UNDER THE RAILWAY LABOR ACT. ACCORDINGLY, WE ARE REQUIRED TO HOLD THAT NO PAYMENT MAY BE MADE TO JUDGE CAYTON ON THE VOUCHER SUBMITTED BY YOU.