B-106537, FEBRUARY 12, 1952, 31 COMP. GEN. 376

B-106537, FEBRUARY 12, 1952, 31 COMP. GEN. 376

OFFICERS AND EMPLOYEES - STRIKING AGAINST GOVERNMENT - ADMINISTRATIVE JURISDICTION TO DETERMINE WHAT CONSTITUTES STRIKE THE QUESTION OF WHETHER GOVERNMENT EMPLOYEES ACTUALLY ENGAGE IN STRIKES AGAINST THE GOVERNMENT, WITHIN PURVIEW OF SECTION 1209 OF THE GENERAL APPROPRIATIONS ACT, 1951, AND SUBSEQUENT LEGISLATION PROHIBITING THE PAYMENT OF COMPENSATION TO EMPLOYEES WHO ENGAGE IN A STRIKE, IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICERS CONCERNED, RATHER THAN THE ACCOUNTING OFFICERS, AND THEREFORE, IN THE ABSENCE OF SUCH DETERMINATION BY THE INLAND WATERWAYS CORPORATION IN THE CASE OF EMPLOYEES WHO PARTICIPATED IN A WORK STOPPAGE ABOARD A GOVERNMENT VESSEL, THE GENERAL ACCOUNTING OFFICE MAY NOT RENDER A DECISION CONCERNING THE STATUS OF SAID EMPLOYEES FOR PAY PURPOSES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, FEBRUARY 12, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1951, CONCERNING CERTAIN EMPLOYEES OF THE INLAND WATERWAYS CORPORATION WHO PARTICIPATED IN A WORK STOPPAGE ABOARD ITS STEAMER " ILLINOIS" ON AUGUST 22-23, 1951, AND REQUESTING A DECISION AS TO THEIR RESULTANT STATUS FOR PAY PURPOSES.

YOU ADVISE THAT UPON NOTIFICATION OF THE WORK STOPPAGE STEPS WERE TAKEN TO ENSURE COMPLIANCE WITH SECTION 1209 OF THE GENERAL APPROPRIATIONS ACT, 1951 (64 STAT. 547, 764-5), AND SUBSEQUENT LEGISLATION ( PUBLIC LAW 71, 65 STAT. 111, 82D CONGRESS, MAKING TEMPORARY APPROPRIATIONS FOR THE FISCAL YEAR 1952, AND EXTENSIONS THEREOF), FORBIDDING THE PAYMENT OF WAGES TO EMPLOYEES WHO HAVE ENGAGED IN A STRIKE. HEARINGS WERE ORDERED AT WHICH TESTIMONY WAS TAKEN FROM THE EMPLOYEES INVOLVED, FROM THE UNION OFFICIAL WHO ADMITTEDLY HAD ORDERED THE WORK STOPPAGE, AND FROM VARIOUS OFFICIALS OF THE CORPORATION. A TRANSCRIPT OF THE HEARING, SUPPLEMENTED BY COPIES OF PERTINENT EXHIBITS AND BY OTHER DOCUMENTS OF SIMILAR IMPORT OBTAINED BY THE SOLICITOR OF THE DEPARTMENT OF COMMERCE, ACCOMPANIED YOUR LETTER. YOU REPORT THAT THE SOLICITOR, RELYING UPON GENERAL RULES CONSIDERED IN 26 COMP. GEN. 853, IS OF OPINION THAT THE EMPLOYEES "ENGAGED IN A STRIKE.' COPIES OF THE FINDINGS OF FACT PRESUMABLY SUBMITTED BY THE BOARD CONVENED TO HOLD THE HEARINGS AND OF THE OPINION OF THE SOLICITOR WERE NOT FURNISHED, AND YOU APPARENTLY HAVE NEITHER ACCEPTED NOR REJECTED SUCH FINDINGS OR OPINION. IN FACT, AFTER NOTICING THAT SOME DISTINCTIONS EXIST BETWEEN THE CASE REFERRED TO BY THE SOLICITOR (1947) AND THE PRESENT CASE, YOU STATE AS FOLLOWS:

* * * THE CORPORATION DESIRES TO TAKE NO STEPS WHICH WOULD DEPRIVE ANY EMPLOYEE OF HIS WAGES UNLESS IN YOUR FINAL OPINION THE APPLICABLE LAWS SO REQUIRE. FOR THIS REASON, WE ARE TRANSMITTING TO YOU HEREWITH THE COMPLETE RECORD OF FACTS AVAILABLE TO SERVE AS A BASIS OF DECISION. IT IS RESPECTFULLY REQUESTED THAT YOU RENDER YOUR DECISION AS TO WHETHER THE UNLICENSED PERSONNEL ABOARD THE STEAMER " ILLINOIS" DID ENGAGE IN A STRIKE WITHIN THE MEANING OF STATUTES WHICH PROHIBIT USE OF THE CORPORATION'S FUNDS TO PAY WAGES OF STRIKING EMPLOYEES.

I BELIEVE IT IS SELF-EVIDENT THAT THE CONGRESS, IN IMPOSING THE RESTRICTION WITH RESPECT TO STRIKES, INTENDED THAT THE ADMINISTRATIVE OFFICERS, RATHER THAN THE ACCOUNTING OFFICERS, INITIALLY WOULD MAKE NECESSARY FACTUAL DETERMINATIONS. AS STATED IN 26 COMP. GEN. 853, THE MATTER OF WHETHER EMPLOYEES ENGAGE IN STRIKES AGAINST THE GOVERNMENT PRIMARILY IS ONE FOR ADMINISTRATIVE DETERMINATION, AND SUCH DETERMINATION, WHEN MADE, ORDINARILY WILL NOT BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE UNLESS THE RECORD UPON WHICH IT IS PREDICATED CLEARLY SHOWS IT TO BE WITHOUT SUBSTANTIAL FOUNDATION.

WHILE IT IS THE PRACTICE OF THIS OFFICE TO COOPERATE WITH ALL AGENCIES OF THE GOVERNMENT BY RENDERING DECISIONS TO THEM, UPON PROPER REQUEST, CONCERNING THE LEGALITY OF ANY PROPOSED TRANSACTION WHICH WOULD BE SUBJECT TO AUDIT (SEE 27 COMP. GEN. 429), THE EXISTENCE OR NON EXISTENCE OF A STRIKE IN THE CIRCUMSTANCES REPORTED IS A FACTUAL MATTER, AND I FEEL THAT TO REACH A CONCLUSION CONCERNING THE STATUS OF THE EMPLOYEES FOR PAY PURPOSES IN ADVANCE OF AN ADMINISTRATIVE DETERMINATION OF THAT FACT WOULD BE INAPPROPRIATE. I MAY SAY, HOWEVER, THAT THE EVIDENCE FURNISHED THIS OFFICE LENDS SUBSTANTIAL SUPPORT TO THE CONCLUSION REACHED BY THE SOLICITOR OF YOUR DEPARTMENT AND, SHOULD YOUR DEPARTMENT REACH THAT SAME CONCLUSION, THERE WOULD BE NO SUBSTANTIAL BASIS FOR THIS OFFICE TO QUESTION SUCH DETERMINATION.