B-115473, JUNE 24, 1953, 32 COMP. GEN. 572

B-115473, JUNE 24, 1953, 32 COMP. GEN. 572

INLAND WATERWAYS CORPORATION - CONTRIBUTION TO UNION'S PENSION AND WELFARE FUND - SALARY DEDUCTIONS THE INLAND WATERWAYS CORPORATION MAY NOT CONTRACT WITH THE NATIONAL MARITIME UNION, WITHOUT SPECIFIC STATUTORY AUTHORITY, TO CONTRIBUTE FROM CORPORATE FUNDS TO THE NATIONAL MARITIME UNION RIVERS PENSION AND WELFARE PLAN; HOWEVER, THE CORPORATION MAY FIX THE COMPENSATION OF EMPLOYEES TO INCLUDE AN AMOUNT SUFFICIENT TO ENABLE THE EMPLOYEES TO CONTRIBUTE TO THE PLAN, BUT CORPORATION IS PROHIBITED BY LAW FROM COLLECTING SUCH CONTRIBUTIONS FOR THE UNION BY PAYROLL DEDUCTIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JUNE 24, 1953:

REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1953, REQUESTING A DECISION CONCERNING THE LEGALITY OF THE EXPENDITURE OF FUNDS OF THE INLAND WATERWAYS CORPORATION FOR EMPLOYEE CONTRIBUTIONS TO THE NATIONAL MARITIME UNION RIVERS PENSION AND WELFARE PLAN UNDER THE FOLLOWING PROPOSED CONTRACTUAL PROVISION:

BEGINNING AS OF JANUARY ST, 1953, THE COMPANY AGREES TO CONTRIBUTE, FOR THE DURATION OF THIS AGREEMENT, THE SUM OF 50 CENTS PER DAY WORKED FOR EACH EMPLOYEE COVERED BY THIS AGREEMENT TO THE NATIONAL MARITIME UNION RIVERS PENSION AND WELFARE PLAN BUT IN THE EVENT THE "POOL" COMPANIES AGREE AS OF JUNE 30, 1954 OR THEREAFTER TO INCREASE THEIR CONTRIBUTIONS TO SUCH FUND, THE COMPANY WILL INCREASE ITS CONTRIBUTIONS TO CORRESPOND FOR THE DURATION OF THIS AGREEMENT.

YOUR LETTER STATES THAT THIS PROVISION HAS BEEN PROPOSED FOR INCLUSION IN A CONTRACT BY THE NATIONAL MARITIME UNION WHICH IS RECOGNIZED AS A BARGAINING AGENCY FOR UNLICENSED EMPLOYEES OF AND ON THE PAY ROLL OF THE INLAND WATERWAYS CORPORATION ON VESSELS OWNED, OPERATED OR CHARTERED BY THE CORPORATION. YOUR LETTER STATES FURTHER THAT THE UNION CONTENDS THAT AT LEAST ONE OTHER GOVERNMENT AGENCY, THE PANAMA CANAL COMPANY, CONTRIBUTES TO A SIMILAR FUND AND MAKES REFERENCE TO OFFICE DECISIONS OF JANUARY 3, 1949, B-82293, TO THE THEN SECRETARY OF COMMERCE AND OF JUNE 5, 1952, B-24641, 31 COMP. GEN. 647, TO THE CHAIRMAN, NATIONAL ADVISORY COMMITTEE OF AERONAUTICS.

WHILE IT IS UNDERSTOOD THAT THE PANAMA CANAL COMPANY CONTRIBUTES TO A SIMILAR FUND, THAT PRACTICE IS PRESENTLY BEING CONSIDERED BY THE GENERAL ACCOUNTING OFFICE ESPECIALLY IN VIEW OF THE BROADER PROVISIONS OF LAW UNDER WHICH THE PANAMA CANAL COMPANY IS OPERATED.

THERE IS NO SPECIFIC STATUTORY AUTHORITY AUTHORIZING THE EXPENDITURE OF FUNDS OF THE CORPORATION FOR THE PURPOSE OF COMPLYING WITH THE PROPOSED CONTRACTUAL PROVISION QUOTED ABOVE AND THE ONLY APPARENT BASIS THEREFOR IS SECTION 5 (F) OF THE ACT OF JUNE 3, 1924, 43 STAT. 362, 49 U.S.C. 155, WHICH AUTHORIZES THE CORPORATION TO FIX THE "COMPENSATION" OF ITS OFFICERS, EMPLOYEES, ATTORNEYS AND AGENTS. FOR THE REASONS STATED IN THE DECISION OF JANUARY 3, 1949, B-82293, CITED IN YOUR LETTER, THE CONTRIBUTION OF $0.50 PER DAY WORKED FOR EACH EMPLOYEE MAY BE CONSTRUED AS CONSTITUTING PART OF THE "COMPENSATION" OF THE EMPLOYEES AS THAT TERM IS USED IN SECTION 5 (F) OF THE SAID ACT OF JUNE 3, 1924, AND AS SUCH, MAY BE PAID BY THE CORPORATION TO THE EMPLOYEES SUBJECT TO ANY STATUTORY LIMITATIONS UPON THE TOTAL COMPENSATION PAYABLE, SUCH AS SECTION 301 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1953, PUBLIC LAW 455, APPROVED JULY 5, 1952, 66 STAT. 417.

AS INDICATED IN THE DECISION OF JUNE 5, 1952, 31 COMP. GEN. 647, CITED IN YOUR LETTER, THE MAKING OF DEDUCTIONS FROM THE SALARIES OF EMPLOYEES OF THE DEPARTMENTS AND AGENCIES OF THE FEDERAL GOVERNMENT FOR PAYMENTS TO PRIVATE ORGANIZATIONS IS PRECLUDED BY SECTIONS 3477, 3620 AND 3678, REVISED STATUTES (31 U.S.C. 203; ID. 492; ID. 628). WHILE THOSE PROVISIONS OF LAW RELATE GENERALLY TO THE NORMAL OPERATIONS OF THE GOVERNMENT AND DO NOT SPECIFICALLY RELATE TO THE INLAND WATERWAYS CORPORATION WHICH OPERATES UNDER BROADER LEGISLATIVE PROVISIONS, NEVERTHELESS THEY ESTABLISH A FIRM LEGISLATIVE POLICY AND MAY NOT BE DISREGARDED IN A CONSIDERATION OF THIS MATTER.

ACCORDINGLY, IF THE INLAND WATERWAYS CORPORATION DESIRES TO INCLUDE IN A CONTRACT THE CITED PROVISION PROPOSED BY THE UNION, EXPRESS LEGISLATIVE AUTHORITY SHOULD BE OBTAINED. SEE OFFICE DECISION OF DECEMBER 19, 1951, B -105819, TO YOUR PREDECESSOR, CONCERNING A PROPOSAL TO CHECK OFF OR WITHHOLD FROM THE PAY OF EMPLOYEES OF THE INLAND WATERWAYS CORPORATION THEIR UNION DUES FOR PAYMENT TO THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL.