B-180095, APR 30, 1975, 54 COMP GEN 921

B-180095, APR 30, 1975, 54 COMP GEN 921

ARBITRATION - AWARD - UNION DUES CHECK OFF - IMPLEMENTATION BY AGENCY - CONTRARY TO STATUTE ARBITRATION AWARD DIRECTING OVERPAYMENT OF DUES CHECK OFF TO UNION IN ORDER TO TECHNICALLY COMPLY WITH TERMS OF AGREEMENT MAY NOT BE ALLOWED, ON RECONSIDERATION, BECAUSE 31 U.S.C. 628 (1970) PROVIDES THAT APPROPRIATIONS SHALL BE APPLIED SOLELY TO OBJECTS FOR WHICH MADE AND NO OTHERS AND HENCE NO AUTHORITY EXISTS FOR PAYMENT OF THE ARBITRATION AWARD. GENERAL ACCOUNTING OFFICE - DECISIONS - REQUESTS - ADVANCE - ARBITRATION AWARD PAYMENTS AGENCY HEADS AND AUTHORIZED CERTIFYING OFFICERS HAVE STATUTORY RIGHTS TO OBTAIN ADVANCE DECISIONS FROM THIS OFFICE ON PROPRIETY OF PAYMENTS, INCLUDING ARBITRATION AWARD PAYMENTS, WITHOUT EXHAUSTING OTHER ADMINISTRATIVE APPEALS PROCEDURES. HOWEVER, TO AVOID AN UNFAIR LABOR PRACTICE, AN AGENCY CAN ALSO FILE AN EXCEPTION TO AN ARBITRATION AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) UNDER REGULATIONS PROMULGATED BY THAT AGENCY. DECISIONS BY THE COMPTROLLER GENERAL ARE BINDING ON THE AGENCY, THE FLRC AND THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.

IN THE MATTER OF IMPLEMENTATION OF ARBITRATION AWARD, APRIL 30, 1975:

THIS MATTER CONCERNS A RECONSIDERATION OF OUR ADVANCE DECISION B 180095, DATED OCTOBER 1, 1974, WHICH HELD THAT THERE WAS NO AUTHORITY TO IMPLEMENT AN ARBITRATION AWARD THAT ORDERED THE UNITED STATES ARMY TEST AND EVALUATION COMMAND, ABERDEEN PROVING GROUND (APG), MARYLAND, TO PAY THE SUM OF $80.33 TO LOCAL 2424 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO.

BRIEFLY STATED, THE FACTS IN THE CASE ARE AS FOLLOWS. FOR SOME TIME PRIOR TO OCTOBER 1971, MR. ROBERT L. WRIGHT WAS AN EMPLOYEE OF APG AND A MEMBER OF LOCAL 2424. PURSUANT TO A NEGOTIATED AGREEMENT PROVIDING FOR DUES CHECK OFF, APG WAS REQUIRED TO DEDUCT DUES OF UNION MEMBERS WITHIN THE BARGAINING UNIT FROM THEIR PAY, AND TRANSFER THE TOTAL OF THE AMOUNTS DEDUCTED TO THE UNION AT STATED INTERVALS. BECAUSE HE WAS A MEMBER OF THE BARGAINING UNIT, MR. WRIGHT'S DUES WERE PROPERLY DEDUCTED UP TO OCTOBER 18, 1971, ON WHICH DATE HE WAS TRANSFERRED TO A POSITION OUTSIDE THE BARGAINING UNIT. HOWEVER, APG CONTINUED TO DEDUCT HIS DUES ERRONEOUSLY AND TO PAY THEM OVER TO THE UNION. IN NOVEMBER 1972, THE APG CIVILIAN PAY SECTION RECOGNIZED THE ERROR, CEASED DEDUCTING DUES FROM THE EMPLOYEE'S PAY, AND REIMBURSED HIM IN THE AMOUNT OF $80.33 THAT HAD BEEN IMPROPERLY DEDUCTED SINCE OCTOBER 18, 1971. IN DECEMBER 1972, THE APG FINANCE OFFICE DELIVERED A CHECK TO THE UNION IN AN AMOUNT THAT WAS $80.33 LESS THAN THE AGGREGATE OF THE DUES DEDUCTED FROM MEMBERS' PAY FOR THE CHECK OFF PERIOD, AND JUSTIFIED SUCH ACTION ON THE BASIS THAT THE GOVERNMENT WAS ENTITLED TO RECOUP AN AMOUNT EQUAL TO THE PREVIOUS OVERPAYMENT TO THE UNION BECAUSE OF THE ERRONEOUS DEDUCTION FROM MR. WRIGHT'S PAY. THE UNION FILED A GRIEVANCE ALLEGING THAT THE APG RECOUPMENT HAD VIOLATED THE TERMS AND CONDITIONS OF THEIR AGREEMENT WHICH REQUIRES THE AGGREGATE OF ALL DUES WITHHELD TO BE PAID TO THE UNION AND WHICH MAKES NO SPECIFIC PROVISION FOR RECOUPMENT. THE GRIEVANCE WAS SUBMITTED TO ARBITRATION AND THE ARBITRATOR FOUND THAT THE AGREEMENT HAD BEEN VIOLATED AND AWARDED THE UNION $80.33. APG DID NOT FILE AN APPEAL WITH THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) PURSUANT TO EXECUTIVE ORDER 11491 BUT INSTEAD SUBMITTED A REQUEST FOR AN ADVANCE DECISION TO THIS OFFICE ON THE PROPRIETY OF PAYING THE AWARD. OUR DECISION, WE CONCLUDED THAT THE PAYMENTS AUTHORIZED UNDER THE AGREEMENT HAD BEEN FULLY SATISFIED, INASMUCH AS THE UNION HAD BEEN PAID ALL MEMBERS' DUES THAT SHOULD HAVE BEEN WITHHELD. THUS, WE REASONED THAT THERE WAS NO LEGAL AUTHORITY TO SUPPORT THE PAYMENT OF ANY ADDITIONAL AMOUNT BECAUSE NOTHING WAS DUE.

AFTER APG REQUESTED THE AFOREMENTIONED ADVANCE DECISION, THE UNION FILED AN UNFAIR LABOR PRACTICE (ULP) COMPLAINT WITH THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS (A/SLMR), WHICH ALLEGED THAT APG VIOLATED SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491 AS AMENDED, 3 C.F.R. SEC. 254 (1974) (HEREINAFTER REFERRED TO AS THE ORDER), BY NEITHER SEEKING REVIEW BY THE FLRC NOR COMPLYING WITH THE BINDING ARBITRATION AWARD ISSUED PURSUANT TO THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT. IN ANSWER TO THE COMPLAINT, APG CONTENDED THAT IT LACKED AUTHORITY TO CARRY OUT THE ARBITRATOR'S AWARD AND FURTHER ASSERTED THAT THE ARBITRATOR IN MAKING HIS AWARD WENT BEYOND INTERPRETING OR APPLYING THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT AND, ALSO, THAT THE ULP COMPLAINT LACKED SPECIFICITY.

ON JULY 11, 1974, THE ASSISTANT SECRETARY ISSUED AN ORDER ON THE ULP COMPLAINT IN DEPARTMENT OF THE ARMY ABERDEEN PROVING GROUND, A/SLMR NO. 412, IN WHICH HE DETERMINED THAT APG'S REFUSAL TO COMPLY WITH THE AWARD PENDING A DETERMINATION OF ITS PROPRIETY BY THE COMPTROLLER GENERAL WOULD BE VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE ORDER SINCE NO EXCEPTION TO THE AWARD WAS FILED WITH THE FLRC. HOWEVER, HE REFERRED THE MATTER AS A MAJOR POLICY ISSUE TO THE FLRC. THE PERTINENT PART OF THE SUMMARY OF THE ORDER OF THE ASSISTANT SECRETARY IS AS FOLLOWS:

THE ASSISTANT SECRETARY REJECTED THE RESPONDENT'S (APG'S) CONTENTION THAT THE COMPLAINT LACKED SPECIFICITY. THE ASSISTANT SECRETARY CONCLUDED THAT THE RESPONDENT'S REFUSAL TO COMPLY WITH AN AWARD ISSUED BY AN ARBITRATOR UNDER CONDITIONS AGREED TO BY THE PARTIES, IN HIS JUDGMENT, WOULD CONSTITUTE A UNILATERAL ACTION WITH RESPECT TO NEGOTIATED TERMS AND CONDITIONS OF EMPLOYMENT, WOULD THWART THE ARBITRATION PROCESS, WOULD BE INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER, AND WOULD BE VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER. HOWEVER, HE NOTED THE RESPONDENT'S DEFENSE, I.E. - THAT IT IS UNABLE TO MAKE PAYMENT OF THE AMOUNT INVOLVED BECAUSE NO APPROPRIATION EXISTS FOR PAYMENT AND A SPECIAL AUTHORIZATION FROM THE COMPTROLLER GENERAL IS NEEDED IN ORDER TO IMPLEMENT THE AWARD - RAISED THE FOLLOWING MAJOR POLICY ISSUES: (1) WHETHER THE ASSISTANT SECRETARY HAS JURISDICTION TO ENFORCE UNDER SECTION 19 OF THE ORDER A BINDING ARBITRATION AWARD IN WHICH NO EXCEPTIONS WERE FILED WITH THE FEDERAL LABOR RELATIONS COUNCIL; AND (2) IF THE ASSISTANT SECRETARY HAS JURISDICTION TO ENFORCE A BINDING ARBITRATION AWARD, IS A DEFENSE THAT A PARTY CANNOT COMPLY WITH AN ARBITRATOR'S AWARD UNTIL IT RECEIVES AUTHORIZATION FROM THE COMPTROLLER GENERAL TO MAKE PAYMENT DISPOSITIVE OF THE MATTER? UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY REFERRED THESE ISSUES TO THE FEDERAL LABOR RELATIONS COUNCIL FOR DECISION.

THE UNION HAS NOW REQUESTED US TO REVIEW AND RECONSIDER OUR DECISION OF OCTOBER 1, 1974, THAT REFUSED TO AUTHORIZE THE AGENCY TO PAY THE UNION'S CLAIM FOR $80.33 AWARDED TO IT BY THE ARBITRATION. IN REQUESTING RECONSIDERATION, THE UNION MAKES THE FOLLOWING CONTENTIONS. IT ASSERTS THAT IT WAS NOT CONSULTED ON THE QUESTION ADDRESSED IN OUR ADVANCE DECISION WHICH WAS BASED UPON EX PARTE SUBMISSION BY THE FINANCE AND ACCOUNTING OFFICER OF THE AGENCY.

THE UNION AGREES WITH THE FACTS SET FORTH IN OUR DECISION BUT POINTS OUT THAT IT WAS NOT OFFICIALLY NOTIFIED OF MR. WRIGHT'S TRANSFER OUTSIDE THE BARGAINING UNIT. IT CONTENDS THAT THE TRANSFER ACTION WAS COMPLETELY WITHIN THE KNOWLEDGE OF THE AGENCY, WHICH CONTINUED TO DEDUCT THE DUES AND SUBMIT THEM TO THE UNION. THE UNION ALSO MAINTAINS THAT MR. WRIGHT ENJOYED ALL THE RIGHTS AND PRIVILEGES OF ANY OTHER UNION MEMBER DURING THE PERIOD IN QUESTION. IN ADDITION, THE UNION NOTES THAT SECTION 4(C)(3) OF THE ORDER CONTAINS PROVISIONS FOR THE RESOLUTION OF ISSUES WHERE THE AGENCY OR THE UNION DOES NOT AGREE WITH AN ARBITRATION AWARD WHICH, IT CONTENDS, IS THE SOLE REMEDY IN SUCH CASES. THE UNION STATES THAT APG DID NOT AVAIL ITSELF OF THIS PROCEDURE BUT INSTEAD ATTEMPTED TO CIRCUMVENT THE PROVISIONS OF THE ORDER BY FILING AN EX PARTE REQUEST WITH OUR OFFICE TO OBTAIN A RULING THAT WOULD INVALIDATE THE AWARD. FINALLY, THE UNION ASSERTS THAT THE GENERAL LAW OF PAYMENT WHICH WE RELIED ON IN OUR DECISION IS NOT CONTROLLING IN LABOR RELATIONS CASES INASMUCH AS THE PARTIES ARE BOUND BY THEIR COLLECTIVE BARGAINING AGREEMENT AS INTERPRETED BY THE ARBITRATOR.

WE ARE NOT PERSUADED BY THE UNION CONTENTION THAT IT WAS IN EFFECT ENTITLED TO THE $80.33 OF DUES INASMUCH AS IT HAD NEVER BEEN OFFICIALLY INFORMED OF THE EMPLOYEE'S TRANSFER OUT OF THE BARGAINING UNIT AND THAT MR. WRIGHT ENJOYED ALL THE BENEFITS OF UNION MEMBERSHIP DURING THE PERIOD. WE THINK IT IS QUESTIONABLE WHETHER THE EMPLOYEE COULD IN FACT HAVE BEEN REPRESENTED BY THE UNION, FOR EXAMPLE, IN A DISPUTE OVER WORKING CONDITIONS, A MAJOR BENEFIT OF UNION MEMBERSHIP, SINCE HE HAD BEEN PROMOTED TO A POSITION OUTSIDE THE UNION'S JURISDICTION. IN ANY EVENT, THIS QUESTION OF FACT WAS COMPLETELY SETTLED BY THE ARBITRATOR, WHO RECOGNIZED THAT APG IMPROPERLY WITHHELD THE DUES FROM THE EMPLOYEE AND MISTAKENLY PAID THEM OVER TO THE UNION WHICH WAS NOT ENTITLED TO SUCH DUES. IN THIS CONNECTION THE ARBITRATOR SAID IN HIS OPINION:

REDUCED TO ITS MOST BASIC ELEMENTS, THE QUESTION IS SIMPLY WHETHER THE EMPLOYER MAY, IN EFFECT, USE SELF HELP TO RECTIFY ITS OWN MISTAKE.

THE EMPLOYER, UNDER THE AGREEMENT, WAS REQUIRED TO WITHHOLD UNION DUES FROM CERTAIN EMPLOYEES' PAYCHECKS AND TO TRANSFER AT STATED INTERVALS THESE MONIES TO THE UNION. THIS IT DID, BUT, IN THE INSTANT CASE, IT IMPROPERLY DEDUCTED DUES FROM ONE WHO WAS NOT SUBJECT TO THE DEDUCTION PROGRAM AND PAID THIS OVER TO THE UNION. SUBSEQUENTLY, AND THIS IS THE CRUX OF THE GRIEVANCE RESULTING IN THE PRESENT ARBITRATION, IT DEDUCTED FROM THE PAYMENT TRANSFERRING THE SUM OF THE DEDUCTED DUES FOR THE CURRENT PAY PERIOD, AN AMOUNT EQUAL TO THAT WHICH IT HAD MISTAKENLY PAID TO THE UNION PREVIOUSLY.

ACCORDINGLY, WE FIND NO MERIT IN THE ARGUMENT THAT THE UNION WAS IN ANY WAY ENTITLED TO THE DUES IT WAS MISTAKENLY PAID. SECTION 7 OF THE COLLECTIVE BARGAINING AGREEMENT CLEARLY CONTEMPLATED THAT THE DUES CHECK- OFF PROCEDURE WOULD BE TERMINATED WITH RESPECT TO A PARTICULAR EMPLOYEE WHEN, AMONG OTHER EVENTS, THE FOLLOWING OCCURRED:

(B) TRANSFER OF THE EMPLOYEE AUTHORIZING DUES DEDUCTION OUTSIDE OF THE UNIT (EXCEPT FOR TEMPORARY PROMOTION OR DETAIL).

WITH FURTHER REFERENCE TO THE UNION'S CONTENTION THAT IT IS ENTITLED TO THE $80.33 OF DUES BECAUSE MR. WRIGHT ENJOYED THE BENEFITS OF UNION MEMBERSHIP DURING THE PERIOD, WE POINT OUT THAT THIS AMOUNT HAS BEEN REFUNDED TO THE EMPLOYEE AND ANY CLAIM THE UNION HAS FOR ALLEGED SERVICES IT MAY HAVE RENDERED TO THE EMPLOYEE FOR THESE DUES SHOULD BE MADE DIRECTLY TO HIM.

THE OCCURRENCE OF THE AFOREMENTIONED TRANSFER OPERATED TO SUSPEND THE REQUIREMENT TO TRANSMIT ALL DUES COLLECTED TO THE UNION. SINCE THERE IS NO DISPUTE AS TO THE FACTS, AS DETERMINED BY THE ARBITRATOR, NAMELY, THAT THE DUES FOR THE TRANSFERRED EMPLOYEE SHOULD NOT HAVE BEEN PAID OVER TO THE UNION, THE QUESTION IS WHETHER THE AGENCY HAD THE RIGHT TO TAKE THE ACTION IT DID TO RECOUP THE FUNDS IT IMPROPERLY PAID OVER TO THE UNION.

THE ARBITRATOR SEEMS TO FEEL THAT THE PARTICULAR METHOD OF RECOUPMENT CHOSEN WAS A SETOFF OF AN AMOUNT OWED TO THE AGENCY BY THE UNION AGAINST AN AMOUNT OWED BY THE AGENCY TO THE UNION, AND THAT THIS WAS A VIOLATION OF THE AGREEMENT BECAUSE ALL THE SUMS OWED BY THE AGENCY TO THE UNION HAD TO BE PAID OVER ON THE SPECIFIED DATE. AS WAS PREVIOUSLY POINTED OUT, WE DO NOT AGREE THAT ANY PRT OF THE SUM IN QUESTION WAS OWED TO THE UNION.

IT IS A WELL-ESTABLISHED PRINCIPLE THAT FEDERAL FUNDS MAY ONLY BE PAID OUT PURSUANT TO LAW. 48 COMP. GEN. 773 (1969), AND 49 ID. 578 (1970). THIS REGARD 31 U.S.C. SEC. 628 (1970) PROVIDES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE AND FOR NO OTHERS.

IT WAS THEREFORE NOT LEGALLY PERMISSIBLE FOR THE AGENCY TO PAY OVER TO THE UNION A SUM AMOUNTING TO $80.33 MORE THAN IT WAS INDEBTED TO THE UNION FOR. ACCORDINGLY, THE ARBITRATOR EXCEEDED HIS AUTHORITY IN ORDERING THE AGENCY TO MAKE A PAYMENT FOR WHICH IT WAS NOT LEGALLY RESPONSIBLE.

THE UNION REFERS TO "VARIOUS CASES" WHICH, IT SAYS, HOLD THAT "NORMAL 'HORNBOOK' LAW DOES NOT APPLY TO COLLECTIVE BARGAINING AGREEMENTS." ASSUME THAT THE "VARIOUS CASES" MENTIONED INVOLVE LABOR RELATIONS DISPUTES IN THE PRIVATE SECTOR SINCE WE ARE AWARE OF NO SIMILAR DECISIONS INVOLVING FEDERAL EMPLOYEES. WE WOULD REMIND THE UNION THAT THERE ARE FUNDAMENTAL DIFFERENCES IN THE OBJECTIVES AND IN THE AUTHORITIES GOVERNING COLLECTIVE BARGAINING IN THE PRIVATE AND IN THE FEDERAL SECTORS. WITHOUT DISCUSSING THIS SUBJECT IN DETAIL AT THIS TIME, WE POINT OUT THAT WHILE IT IS TRUE THAT IN PRIVATE SECTOR CASES GOVERNED BY THE LABOR MANAGEMENT RELATIONS ACT, 1947, APPROVED JUNE 23, 1947, CH. 120, 61 STAT. 136, 29 U.S.C. SEC. 141 ET SEQ. (1970), ARBITRATORS HAVE A PRETTY FREE REIN TO FASHION AND ENFORCE REMEDIES AT WILL, LIMITED ONLY BY THE PROVISIONS OF THE RELEVANT COLLECTIVE BARGAINING AGREEMENT (SEE THE STEELWORKERS TRILOGY CASES, 363 U.S. 564 (1960); COMMONWEALTH COATINGS CORP. V. CONTINENTAL CASUALTY CO., 393 U.S. 145; REHEARING DENIED 393 U.S. 1112 (1968)), ALL FEDERAL SERVICE COLLECTIVE BARGAINING AGREEMENTS ARE SUBJECT TO "EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL;" EXECUTIVE ORDER 11491, AS AMENDED.

WE ALSO DISAGREE WITH THE UNION'S CONTENTION THAT APG WAS REQUIRED TO APPEAL THE ARBITRATION AWARD TO THE FEDERAL LABOR RELATIONS COUNCIL INSTEAD OF TO THIS OFFICE, WHEN IT QUESTIONED THE LEGALITY OF THE AWARD. WE POINT OUT THAT HEADS OF EXECUTIVE AGENCIES AND CERTIFYING OFFICERS ARE ENTITLED BY STATUTE TO APPLY TO THIS OFFICE FOR A DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM, WHETHER OR NOT THEY HAVE EXHAUSTED OTHER AVENUES OF APPEAL. IN THIS REGARD 31 U.S.C. SEC. 74 (1970), PROVIDES: SEC. 74. CERTIFIED BALANCES OF PUBLIC ACCOUNTS; CONCLUSIVENESS; SUSPENSION OF ITEMS; PRESERVATION OF ADJUSTED ACCOUNTS; DECISION UPON QUESTIONS INVOLVING PAYMENTS

DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE GENERAL ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.

AND 31 U.S.C. SEC. 82D PROVIDES:

SEC. 82D. SAME; ENFORCEMENT OF LIABILITY

THE LIABILITY OF CERTIFYING OFFICERS OR EMPLOYEES SHALL BE ENFORCED IN THE SAME MANNER AND TO THE SAME EXTENT AS NOW PROVIDED BY LAW WITH RESPECT TO ENFORCEMENT OF THE LIABILITY OF DISBURSING AND OTHER ACCOUNTABLE OFFICERS; AND THEY SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.

DECISIONS OF THE COMPTROLLER GENERAL ON MATTERS INVOLVING THE PAYMENT OF GOVERNMENT FUNDS HAVE LONG BEEN RECOGNIZED AS FINAL AND CONCLUSIVE AND BINDING IN THE EXECUTIVE BRANCH. THE ATTORNEY GENERAL AS CHIEF LEGAL OFFICER OF THE FEDERAL GOVERNMENT IN 33 OP. ATTY. GEN. 268 (1922) (AN OPINION TO THE SECRETARY OF THE NAVY WHO HAD QUESTIONED THE FINALITY AND CONCLUSIVENESS OF A COMPTROLLER GENERAL'S DETERMINATION), STATED AS FOLLOWS:

SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894 (CH. 174, 28 STAT. 207), PROVIDED THAT THE BALANCES CERTIFIED BY THE AUDITORS OF THE TREASURY, OR UPON REVISION BY THE COMPTROLLER OF THE TREASURY, SHOULD BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THAT WHERE DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, APPLIED TO THE COMPTROLLER OF THE TREASURY FOR HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT, THE DECISION, WHEN RENDERED, SHOULD GOVERN THE CASE. CONSTRUING THESE PROVISIONS OF LAW, MY PREDECESSORS HAVE UNIFORMLY HELD THAT A QUESTION OF PAY FOR THE DETERMINATION OF THE COMPTROLLER CAN NOT BE SUBMITTED TO THE ATTORNEY GENERAL FOR HIS OPINION MERELY BECAUSE IT MAY INCIDENTALLY INVOLVE SOME POWER OR THE EFFECT OF SOME POWER CLAIMED TO EXIST IN THE HEAD OF A DEPARTMENT. (SEE, FOR EXAMPLE, 25 OP. 301, 28 OP. 129.) THE SAME RULE NECESSARILY APPLIES TO THE COMPTROLLER GENERAL, IN WHOM IS VESTED ALL THE POWER FORMERLY CONFERRED BY LAW UPON THE COMPTROLLER OF THE TREASURY. (ACT OF JUNE 10, 1921, CH. 18, SEC. 304, 42 STAT. 20, 24.)

EXECUTIVE AGENCY HEADS AND CERTIFYING OFFICERS OF THE EXECUTIVE BRANCH HAVE BEEN GRANTED THIS STATUTORY RIGHT TO OBTAIN A COMPTROLLER GENERAL DECISION IN ADVANCE OF PAYMENT TO INSURE THAT PUBLIC FUNDS ARE EXPENDED ONLY IN ACCORDANCE WITH LAW AND THEREBY AVOID THEIR PERSONAL LIABILITY FOR PAYMENTS MADE IN ERROR. FREQUENTLY THESE OFFICIALS FIND THAT OBTAINING A DECISION FROM THE COMPTROLLER GENERAL ON AN ARBITRATION AWARD, PARTICULARLY WHEN THE ISSUE IS NOT WHETHER THE COLLECTIVE BARGAINING AGREEMENT WAS VIOLATED BUT ONLY WHETHER THE AWARD MAY BE LEGALLY IMPLEMENTED, IS THE MOST EXPEDITIOUS PROCEDURE TO FOLLOW.

THE FLRC BY A DECISION DATED MARCH 20, 1975, DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND AND INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, A/SLMR NO. 412, FLRC NO. 74A-46, HELD THAT WHERE A PARTY FAILS TO FILE AN EXCEPTION WITH THE COUNCIL TO AN ARBITRATOR'S AWARD UNDER A NEGOTIATED GRIEVANCE PROCEDURE AND HAS REFUSED TO COMPLY WITH THE AWARD, SUCH REFUSAL MAY BE DEEMED AN UNFAIR LABOR PRACTICE. AND IT IS NOT A DEFENSE TO THE UNFAIR LABOR PRACTICE PROCEEDING THAT THE PARTY HAS REQUESTED A DECISION OF THE COMPTROLLER GENERAL AS TO THE LEGALITY OF THE ARBITRATOR'S AWARD. FURTHER THE COUNCIL'S DECISION HELD THAT NOTWITHSTANDING THE ASSISTANT SECRETARY OF LABOR FINDING THAT AN AGENCY HAS COMMITTED AN UNFAIR LABOR PRACTICE, THE ASSISTANT SECRETARY MAY NOT DIRECT THE AGENCY TO COMPLY WITH AN AWARD WHICH THE COMPTROLLER GENERAL HAS DETERMINED TO BE ILLEGAL. IT THUS SEEMS THAT IN CIRCUMSTANCES SUCH AS OUTLINED ABOVE, AN AGENCY CAN MEET ITS OBLIGATION UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY FILING AN EXCEPTION TO THE ARBITRATOR'S AWARD WITH THE COUNCIL WITHIN THE PRESCRIBED TIME LIMITS. BUT WHETHER IT DOES OR DOES NOT FILE THE EXCEPTION WITH THE COUNCIL THE AGENCY AT ANY TIME HAS THE RIGHT TO REQUEST A DECISION OF THE COMPTROLLER GENERAL IN MATTERS RELATING TO THE EXPENDITURE OF GOVERNMENT FUNDS. THAT RIGHT REMAINS INTACT IN EITHER SUCH CASE. ALSO, THE DECISION BY THE COMPTROLLER GENERAL IS BINDING ON THE AGENCY, THE COUNCIL AND THE ASSISTANT SECRETARY OF LABOR.

WITH REGARD TO THE UNION'S CONTENTION THAT WE SHOULD NOT HAVE DECIDED THIS CASE SOLELY ON THE FACTS SUBMITTED BY THE AGENCY BUT SHOULD HAVE ALSO SOUGHT THE VIEWS OF THE UNION, WE WOULD NORMALLY AGREE THAT THIS IS THE APPROPRIATE PROCEDURE TO FOLLOW, HOWEVER IN THIS CASE WE POINT OUT THAT WE WERE RESPONDING TO A QUESTION OF WHETHER A PARTICULAR ARBITRATION AWARD COULD BE PAID. THE ONLY QUESTION WAS THE LEGALITY OF IMPLEMENTING THE AWARD IN THE LIGHT OF THE ARBITRATOR'S FINDINGS AND CONCLUSIONS OF FACT SET FORTH IN HIS OPINION WHICH WE HAD BEFORE US. NEITHER THE AGENCY NOR THE UNION HAD TAKEN AN EXCEPTION TO THESE FINDINGS AND CONCLUSIONS OF FACT; HENCE, WE DID NOT BELIEVE IT NECESSARY TO SOLICIT ADDITIONAL INFORMATION IN THIS CASE. WE DETERMINED THAT THE ARBITRATION AWARD WAS INVALID ON ITS FACE BECAUSE IT ORDERED THE PAYMENT OF FEDERAL FUNDS TO THE UNION IN AN AMOUNT WHICH THE ARBITRATOR HAD FOUND WAS ERRONEOUSLY PAID TO THE UNION AT AN EARLIER TIME SO AS TO TECHNICALLY COMPLY WITH THE LITERAL TERMS OF THE AGREEMENT. WE HAVE, OF COURSE, CAREFULLY CONSIDERED THE ADDITIONAL INFORMATION SUBMITTED BY THE UNION IN ITS REQUEST FOR RECONSIDERATION BUT FOR THE REASONS STATED, SUPRA, FIND NO BASIS TO REACH A DIFFERENT RESULT. ACCORDINGLY, UPON REVIEW AND RECONSIDERATION WE MUST AFFIRM OUR DECISION OF OCTOBER 1, 1974, THAT THE ARBITRATION AWARD CANNOT BE PAID.