B-205768, MAR 2, 1982
Highlights
MOFFETT WAS BILLED $250.00 ON AUGUST 15. IF THE SERVICE WERE TO PAY THE DUES IN ITS OWN NAME. THE SUBMISSION CONTENDS THAT ALTHOUGH THIS PROHIBITION IS "VERY SPECIFIC AND CLEAR. ARE CITED: "*** THE DIRECTOR MAY ESTABLISH SUITABLE PROCEDURES FOR COOPERATION WITH STATE AND LOCAL MEDIATION AGENCIES. ***" 29 U.S.C. SEC. 172(C). "*** THE DIRECTOR AND THE SERVICE ARE DIRECTED TO AVOID ATTEMPTING TO MEDIATE DISPUTES WHICH WOULD HAVE ONLY A MINOR EFFECT ON INTERSTATE COMMERCE IF STATE OR OTHER CONCILIATION SERVICES ARE AVAILABLE TO THE PARTIES. THE SUBMISSION ARGUES THAT: "*** IT APPEARS THAT CONGRESS MAY HAVE PURPOSELY PASSAGES. MEMBERSHIP IN THE ASSOCIATION OF LABOR RELATIONS AGENCIES IS AN EFFECTIVE AND UNIQUE WAY TO ESTABLISH COMMUNICATIONS WITH STATE AND LOCAL PARTIES INVOLVED IN DISPUTES AND TO PROVIDE THE SERVICE WITH NEEDED PROGRAM SUPPORT.
B-205768, MAR 2, 1982
DIGEST: FEDERAL MEDIATION AND CONCILIATION SERVICE MAY NOT PAY MEMBERSHIP FEE OF EMPLOYEE IN ASSOCIATION OF LABOR RELATIONS AGENCIES SINCE 5 U.S.C. SEC. 5946 PROHIBITS PAYMENT OF MEMBERSHIP FEES OR DUES FOR GOVERNMENT EMPLOYEES AS INDIVIDUALS. AGENCY MAY PAY FOR MEMBERSHIP IN NAME OF AGENCY, HOWEVER.
FEDERAL MEDIATION AND CONCILIATION SERVICE - PAYMENT OF MEMBERSHIP DUES:
A CERTIFYING OFFICER OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE HAS ASKED WHETHER THE SERVICE MAY SPEND APPROPRIATED FUNDS FOR THE MEMBERSHIP DUES OF DEPUTY DIRECTOR KENNETH MOFFETT IN THE ASSOCIATION OF LABOR RELATIONS AGENCIES. MR. MOFFETT WAS BILLED $250.00 ON AUGUST 15, 1981, FOR HIS DUES FOR THE YEAR JUNE 1, 1981 - MAY 31, 1982. FOR THE FOLLOWING REASONS, WE CONCLUDE THAT THE SERVICE MAY NOT PAY MR. MOFFETT'S ANNUAL MEMBERSHIP DUES. HOWEVER, IF THE SERVICE WERE TO PAY THE DUES IN ITS OWN NAME, RATHER THAN THAT OF MR. MOFFETT, WE WOULD NOT OBJECT TO THE EXPENDITURE.
SECTION 5946 OF TITLE 5, U.S.C. PROHIBITS, WITH STATED EXCEPTIONS, THE EXPENDITURE OF APPROPRIATED FUNDS TO PAY THE MEMBERSHIP DUES OF FEDERAL EMPLOYEES IN A SOCIETY OR ASSOCIATION. THE SUBMISSION CONTENDS THAT ALTHOUGH THIS PROHIBITION IS "VERY SPECIFIC AND CLEAR," AN EXCEPTION MAY BE "JUSTIFIABLE AND WARRANTED" IN THE GIVEN CIRCUMSTANCES. TWO PASSAGES FROM THE LABOR-MANAGEMENT RELATIONS ACT, 1947, ARE CITED:
"*** THE DIRECTOR MAY ESTABLISH SUITABLE PROCEDURES FOR COOPERATION WITH STATE AND LOCAL MEDIATION AGENCIES. ***" 29 U.S.C. SEC. 172(C).
"*** THE DIRECTOR AND THE SERVICE ARE DIRECTED TO AVOID ATTEMPTING TO MEDIATE DISPUTES WHICH WOULD HAVE ONLY A MINOR EFFECT ON INTERSTATE COMMERCE IF STATE OR OTHER CONCILIATION SERVICES ARE AVAILABLE TO THE PARTIES. WHENEVER THE SERVICE DOES PROFFER ITS SERVICES IN ANY DISPUTE, IT SHALL BE THE DUTY OF THE SERVICE PROMPTLY TO PUT ITSELF IN COMMUNICATION WITH THE PARTIES AND TO USE ITS BEST EFFORTS, BY MEDIATION AND CONCILIATION, TO BRING THEM TO AGREEMENT." 29 U.S.C. 173(B).
BASED ON THESE PASSAGES, THE SUBMISSION ARGUES THAT:
"*** IT APPEARS THAT CONGRESS MAY HAVE PURPOSELY PASSAGES, THE SUBMISSION ARGUES THAT: PROVIDED FOR CONSIDERABLE DISCRETION BY THE DIRECTOR AND OTHER MANAGEMENT OFFICIALS IN ORDER TO BEST FULFILL THE SERVICE'S CHARGES BY CONGRESS. MEMBERSHIP IN THE ASSOCIATION OF LABOR RELATIONS AGENCIES IS AN EFFECTIVE AND UNIQUE WAY TO ESTABLISH COMMUNICATIONS WITH STATE AND LOCAL PARTIES INVOLVED IN DISPUTES AND TO PROVIDE THE SERVICE WITH NEEDED PROGRAM SUPPORT, E.G., TRAINING FOR THE SERVICE'S MEDIATORS AND CONCILIATORS. THE SERVICE'S ASSOCIATION WITH THIS AND OTHER SIMILAR GROUPS IS ONE OF FEW 'PROCEDURES' AVAILABLE FOR THE ESTABLISHMENT OF COOPERATIVE CHANNELS OF COMMUNICATIONS WITH STATE AND LOCAL AGENCIES."
WE UNDERSTAND THE BENEFIT WHICH THE FEDERAL MEDIATION AND CONCILIATION SERVICE DERIVES FROM MR. MOFFETT'S MEMBERSHIP IN THE ASSOCIATION OF LABOR RELATIONS AGENCIES. NEVERTHELESS, IN OUR OPINION, THE PROHIBITION SET FORTH AT 5 U.S.C. SEC. 5946 AGAINST THE PAYMENT OF MEMBERSHIP FEES OR DUES IN ORGANIZATIONS OR SOCIETIES FOR GOVERNMENT EMPLOYEES AS INDIVIDUALS BARS PAYMENT OF MR. MOFFETT'S DUES. WE HAVE PREVIOUSLY HELD, IN A SIMILAR CASE INVOLVING THE PAYMENT BY THE ENVIRONMENTAL PROTECTION AGENCY OF MEMBERSHIP FEES FOR ITS EMPLOYEES IN PROFESSIONAL ORGANIZATIONS, THAT "THE FACT THAT SUBSTANTIAL BENEFIT TO THE GOVERNMENT WOULD RESULT FROM AN INDIVIDUAL MEMBERSHIP IS NOT SUFFICIENT TO OVERCOME THE PROHIBITION OF 5 U.S.C. 5946." 53 COMP.GEN. 429, 431 (1973). SEE ALSO 52 COMP.GEN. 495 (1973).
WE NOTE, HOWEVER, THAT THE PROHIBITION AGAINST THE PAYMENT OF MEMBERSHIP DUES DOES NOT APPLY WHEN THE MEMBERSHIP IS ENTERED IN THE NAME OF THE AGENCY RATHER THAN THE INDIVIDUAL. IF THE MEMBERSHIP WOULD BE OF PRIMARY BENEFIT TO THE AGENCY, AND AN ADMINISTRATIVE DETERMINATION HAS BEEN MADE THAT AGENCY MEMBERSHIP IN A PARTICULAR PROFESSIONAL ASSOCIATION IS NECESSARY TO CARRY OUT THE FUNCTIONS OF THE AGENCY, APPROPRIATED FUNDS MAY BE USED TO PAY THE AGENCY'S DUES. 53 COMP.GEN. AT 431. ACCORDINGLY, IF THE FEDERAL MEDIATION AND CONCILIATION SERVICE PURCHASES A MEMBERSHIP IN THE ASSOCIATION OF LABOR RELATIONS AGENCIES IN ITS OWN NAME AND JUSTIFIES THE EXPENDITURE AS OF DIRECT BENEFIT TO THE AGENCY AND NECESSARY TO CARRY OUT ITS FUNCTIONS, WE WILL NOT OBJECT.