B-126278, DECEMBER 9, 1955, 35 COMP. GEN. 354

B-126278, DECEMBER 9, 1955, 35 COMP. GEN. 354

COMPENSATION - CONTRIBUTIONS FROM OUTSIDE SOURCES - MEMBERS OF EMERGENCY BOARDS INVESTIGATING RAILWAY DISPUTES THE PAYMENT TO MEMBERS OF AN EMERGENCY BOARD CREATED BY THE PRESIDENT PURSUANT TO SECTION 10 OF THE RAILWAY LABOR ACT OF COMPENSATION IN ADDITION TO OR IN LIEU OF THAT PRESCRIBED IN THEIR LETTERS OF APPOINTMENT BY CARRIERS OR ORGANIZATIONS OF RAILWAY EMPLOYEES NAMED IN THE RAILWAY DISPUTE WOULD VIOLATE THE PROHIBITION IN SAID SECTION AGAINST MEMBERS BEING PECUNIARILY OR OTHERWISE INTERESTED IN ANY CARRIER OR ORGANIZATION OF EMPLOYEES AND THE PROHIBITION IN 18 U.S.C. 1914 AGAINST EMPLOYEES RECEIVING ANY SALARY FROM SOURCES OTHER THAN THE GOVERNMENT.

TO THE CHAIRMAN, NATIONAL MEDIATION BOARD, DECEMBER 9, 1955:

YOUR LETTER OF DECEMBER 5, 1955, REQUESTS OUR DECISION WHETHER THE THREE MEMBERS OF THE EMERGENCY BOARD CREATED BY THE PRESIDENT OF THE UNITED STATES PURSUANT TO SECTION 10 OF THE RAILWAY LABOR ACT, 45 U.S.C. 160, TO INVESTIGATE AND REPORT TO HIM ON A DISPUTE BETWEEN CERTAIN CARRIERS, LAWFULLY MAY RECEIVE COMPENSATION FROM THE RESPECTIVE PARTIES TO THE DISPUTE IN ADDITION TO OR IN LIEU OF COMPENSATION OF $100 A DAY PRESCRIBED IN THEIR LETTERS OF APPOINTMENT PLUS $12 PER DIEM IN LIEU OF SUBSISTENCE.

BY EXECUTIVE ORDER NO. 10643, NOVEMBER 7, 1955, PURSUANT TO AUTHORITY VESTED IN HIM BY SECTION 10 OF THE RAILWAY LABOR ACT, THE PRESIDENT OF THE UNITED STATES CREATED A BOARD OF THREE MEMBERS TO INVESTIGATE A DISPUTE BETWEEN CERTAIN NAMED CARRIERS AND ORGANIZATIONS OF RAILWAY EMPLOYEES. YOUR LETTER STATES THAT THE BOARD IS INFORMED BY THE VARIOUS CARRIERS AND LABOR ORGANIZATIONS THAT THEY DESIRE TO COMPENSATE THE THREE MEMBERS OF THE EMERGENCY BOARD IN AN AMOUNT LARGER THAN THAT AUTHORIZED BY THE PRESIDENT IN HIS LETTER OF APPOINTMENT.

SECTION 10 OF THE RAILWAY LABOR ACT, AS AMENDED, 45 U.S.C. 160, PROVIDES:

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. ( ITALICS SUPPLIED.)

TITLE 4 OF THE ACT OF AUGUST 1, 1955, 69 STAT. 410, 45 U.S.C. 157 (E), CONTAINS AN APPROPRIATION FOR EXPENSES NECESSARY FOR EMERGENCY BOARDS APPOINTED BY THE PRESIDENT PURSUANT TO SECTION 10 OF THE RAILWAY LABOR ACT.

18 U.S.C. 1914 PROVIDES:

WHOEVER, BEING A GOVERNMENT OFFICIAL OR EMPLOYEE, RECEIVES ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY; OR

WHOEVER, WHETHER A PERSON, ASSOCIATION, OR CORPORATION, MAKES ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENTS THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES---

SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR BOTH. ( JUNE 25, 1948, CH. 645, SECTION 1, 62 STAT. 793.)

ASIDE FROM THE FACT THAT THE ACCEPTANCE OF THE PROPOSAL MADE BY THE INVOLVED PARTIES WOULD RESULT IN AN AUGMENTATION OF FUNDS APPROPRIATED BY THE CONGRESS FOR OPERATION OF THE EMERGENCY BOARD--- WHICH MAY NOT BE DONE IN ABSENCE OF A STATUTORY PROVISION AUTHORIZING IT--- WE MUST CONCLUDE THAT THE PAYMENT OR AUGMENTATION OF THE SALARIES OF THE THREE EMERGENCY BOARD MEMBERS BY THE RESPECTIVE ORGANIZATIONS INVOLVED IN THE DISPUTE WOULD BE IN VIOLATION OF BOTH 45 U.S.C. 160 AND 18 U.S.C. 1914, ABOVE QUOTED. CF. 26 COMP. GEN. 15; 16 ID. 911.