B-65711, MAY 6, 1947, 26 COMP. GEN. 853

B-65711, MAY 6, 1947, 26 COMP. GEN. 853

OFFICERS AND EMPLOYEES - STRIKING AGAINST GOVERNMENT - ENTITLEMENT TO SALARY EARNED PRIOR TO STRIKE THE STOPPAGE OF WORK BY PURCHASE AND HIRE CARPENTERS OF THE VETERANS' ADMINISTRATION ON INSTRUCTIONS FROM THEIR LOCAL UNION BECAUSE OF THE HIRING OF NONUNION EMPLOYEES BY THE GOVERNMENT CONSTITUTES A STRIKE AGAINST THE GOVERNMENT WITHIN THE PURVIEW OF THE PROHIBITION IN SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, AGAINST THE USE OF ANY APPROPRIATED FUNDS "TO PAY"--- CURRENTLY--- THE SALARY OR WAGES OF ANY PERSON "WHO ENGAGES" IN A STRIKE AGAINST THE GOVERNMENT, SO THAT UNPAID COMPENSATION EARNED PRIOR TO THE WORK STOPPAGE MAY NOT BE PAID TO SUCH EMPLOYEES AND NO COMPENSATION WOULD BE PAYABLE FOR SERVICES RENDERED THEREAFTER DURING THE FISCAL YEAR 1947.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MAY 6, 1947.

I HAVE YOUR LETTER OF APRIL 17, 1947, AS FOLLOWS:

ADVICE IS REQUESTED WITH RESPECT TO THE PAYMENT OF SALARIES TO THREE PURCHASE AND HIRE EMPLOYEES OF THE VETERANS' ADMINISTRATION CENTER, WACO, TEXAS, WHO STOPPED WORK ON THE AFTERNOON OF JANUARY 29, 1947, AT 2:30 P.M., UNDER THE FOLLOWING CIRCUMSTANCES:

ROY E. HUDSON, JAMES R. HUDSON, AND RUSSELL H. SALMON, UNION CARPENTERS, HAD PREVIOUSLY EXECUTED THE AFFIDAVIT " STRIKING AGAINST THE FEDERAL GOVERNMENT" REQUIRED UNDER THE PROVISIONS OF SECTION 401, PUBLIC LAW 521, 79TH CONGRESS, AND SIMILAR STATUTES. ON JANUARY 29, 1947, THEY STOPPED WORK ON INSTRUCTIONS OF THE BUSINESS AGENT OF THEIR UNION BECAUSE BOTH NONUNION AND UNION PAINTERS WERE EMPLOYED ON THE JOB. THE MANAGER OF THE WACO CENTER HAS ADVISED THAT THEY WERE DISCHARGED FROM THE SERVICE ON FEBRUARY 4, 1947. SALARY CHECKS ISSUED TO COVER THE PERIOD JANUARY 20 THROUGH JANUARY 25, 1947, ARE BEING WITHHELD AND NO ACTION HAS BEEN TAKEN TO ISSUE CHECKS TO COVER SERVICES RENDERED SUBSEQUENT TO JANUARY 25, 1947. AT THE TIME THESE EMPLOYEES STOPPED WORK THEY WERE ADVISED BY THE UTILITY OFFICER AT WACO THAT THEY WERE VIOLATING THE TERMS OF THEIR EMPLOYMENT AND THE AFFIDAVIT THEY HAD EXECUTED RELATIVE TO STRIKING AGAINST THE FEDERAL GOVERNMENT AND THEY REPLIED THAT THEY WERE VERY WILLING TO WORK BUT THAT THE BUSINESS AGENT OF THEIR UNION TOLD THEM THAT IF THEY DID ANY FURTHER WORK ON THE JOB THEY WOULD BE FINED $50.00 FOR EACH DAY THEY VIOLATED HIS ORDERS; THAT THEY HAD NO INTENTION OF STRIKING AGAINST THE FEDERAL GOVERNMENT BUT IF THEY VIOLATED THE UNION RULES THEY WOULD BE BLACK BALLED FROM FURTHER EMPLOYMENT IN AUSTIN AS CARPENTERS; THAT THEY HAD PREVIOUSLY WORKED FOR THE FEDERAL GOVERNMENT ON VARIOUS PROJECTS AND THAT NEVER BEFORE HAD THERE BEEN A QUESTION AS TO UNION OR NONUNION, THAT ON OTHER JOBS THEY HAD WORKED ALONGSIDE MEN KNOWN TO BE NONUNION WITHOUT INTERFERENCE, AND THAT THEREFORE IN GOING TO WORK FOR THE VETERANS' ADMINISTRATION AND EXECUTING THE AFFIDAVIT THEY DID NOT ANTICIPATE ANY DIFFICULTY WHATEVER AND WERE NOT CONCERNED WITH WHETHER THE OTHER EMPLOYEES ON THE PROJECT WERE UNION MEN OR NOT. A REQUEST FROM THE CARPENTERS THAT THEY BE ALLOWED TO RESIGN WAS REFUSED.

THE FOLLOWING IS QUOTED FROM A LETTER DATED MARCH 17, 1947, FROM THE BUSINESS AGENT, CARPENTERS LOCAL UNION NO. 1266, AUSTIN, TEXAS:

"BEFORE THE REMODELING WORK WAS STARTED ON THIS CENTER, YOUR MR. H. J. NOLEN WHO HAD CHARGE OF THIS WORK CAME TO OUR OFFICE AND AGREED TO EMPLOY ONLY MEMBERS OF THIS UNION ON THE CARPENTER WORK THAT WAS TO BE DONE ON THE JOB, WE WERE ALSO LEAD TO BELIEVE BY MR. NOLEN THAT THE JOB WOULD BE A UNION JOB FOR ALL CRAFTS.

"AS YOU WILL UNDERSTAND THA THIS LOCAL UNION IS AFFILIATED WITH THE AUSTIN BUILDING AND CONSTRUCTION TRADES COUNCIL AND AS SUCH WE ARE OBLIGATED TO REFRAME FROM WORKING ON JOBS WHERE OTHER THAN CRAFTS THAT ARE AFFILIATED WITH THE COUNCIL ARE EMPLOYED.

"ON JANUARY 27TH IT WAS DISCOVERED THAT NONUNION PAINTERS HAD BEEN EMPLOYED ON THIS JOB WHICH CAUSED THE CARPENTERS TO DISCONTINUE TO WORK ON THE JOB.

"BEFORE OUR CARPENTERS LEFT THE JOB I TRIED TO PREVAIL ON MR. NOLEN TO SEE FIT TO MAKE ARRANGEMENTS TO EMPLOY UNION PAINTERS ON THIS JOB, I TOLD MR. NOLEN THAT IF HE WOULD REMOVE THOSE NONUNION PAINTERS FROM THE JOB, THAT OUR CARPENTERS WOULD CONTINUE TO WORK, THIS MR. NOLEN REFUSED TO DO.

"AT THAT TIME THERE WERE THREE CARPENTERS MEMBERS OF THIS UNION EMPLOYED ON THE JOB, NAMELY, ROY E. HUDSON, JAMES R. HUDSON, AND RUSSELL SALMON WHO NOW HAVE $96.00 EACH COMING THAT WAS DUE THEM IN EARNED SALARY AT THE TIME THEY LEFT THE JOB, WHICH THEY HAVE NOT BEEN ABLE TO COLLECT.

"WE WOULD LIKE FOR YOU TO ADVISE US OR GIVE US SUCH INFORMATION AS MIGHT BE HELPFUL IN COLLECTING THIS MONEY FOR THE MEN LISTED ABOVE.

"WE FEEL LIKE WE SHOULD CONTACT YOU AND GET YOUR ADVICE ON THIS MATTER BEFORE TAKING OTHER STEPS. * * *"

THE MANAGER OF OUR OFFICE AT WACO HAS STATED THAT EVERY ATTEMPT WAS MADE TO HIRE UNION PAINTERS AT THE TIME THE PROJECT WAS INITIATED BUT THAT NONE WERE AVAILABLE AND THAT THE UNION WAS CONTACTED BY THE UTILITY FOREMAN BEFORE PAINTERS WERE HIRED ELSEWHERE.

ATTENTION IS INVITED TO THE DECISIONS IN U.S. COAL COMPANY VS.UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, 32 N.E. (2D) 763; JEFFREY DEWITT INSULATOR CO. VS. NATIONAL LABOR RELATIONS BOARD, 91 FED. (2D) 134; UDEN VS. SCHEFER, 188 PAC. 395, AND WALTEROEFLIN, INC. VS. STATE, 188 N.W. 633.

YOUR IMMEDIATE ADVICES WOULD BE APPRECIATED.

SECTION 401 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, APPROVED JULY 23, 1946, PUBLIC LAW 521, 60 STAT. 631, PROVIDES, AS FOLLOWS:

SEC. 401. NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT HAS NOT CONTRARY TO THE PROVISIONS OF THIS SECTION ENGAGED IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, IS NOT A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR THAT SUCH PERSON DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED FURTHER, THAT ANY PERSON WHO ENGAGES IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR WHO IS A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES, OR WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE AND ACCEPTS EMPLOYMENT THE SALARY OR WAGES FOR WHICH ARE PAID FROM ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH: PROVIDED FURTHER, THAT THE ABOVE PENALTY CLAUSE SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL APPROPRIATIONS OR FUNDS AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1947, HOWEVER MADE AVAILABLE, IF NOT HERETOFORE MADE APPLICABLE (ANY EXCLUSIONS MADE IN ANY OTHER ACT EXCEPTED) TO SUCH APPROPRIATIONS OR FUNDS IN THE RESPECTS HEREIN PROVIDED.

BY VIRTUE OF THE LAST PROVISO THE FOREGOING STATUTE IS, BY ITS TERMS, APPLICABLE TO ANY APPROPRIATION OF THE VETERANS' ADMINISTRATION FOR THE FISCAL YEAR 1947 AS NO SIMILAR PROVISION IS FOUND IN THE ACT OF MARCH 28, 1946, PUBLIC LAW 334, 60 STAT. 60, WHICH CONTAINS THE APPROPRIATION FOR THE VETERANS' ADMINISTRATION FOR 1947. THE PROHIBITION APPLIES TO OPEN ACCOUNTS OF SALARY OR WAGES AND IT IS IMMATERIAL WHETHER THAT OPEN ACCOUNT COVERS SERVICES RENDERED PRIOR, OR SUBSEQUENT, TO THE ACTUAL PERIOD OF THE STRIKE.

THERE IS THUS LEFT FOR DETERMINATION THE QUESTION OF WHETHER THE INVOLVED EMPLOYEES ACTUALLY ENGAGED IN A STRIKE AGAINST THE GOVERNMENT WITHIN THE PURVIEW OF THE STATUTE, SUPRA. THAT QUESTION IS ONE PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND SUCH DETERMINATION, WHEN MADE, WILL NOT ORDINARILY BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE UNLESS THE RECORD UPON WHICH IT IS MADE CLEARLY SHOWS IT TO BE ERRONEOUS. YOUR LETTER FAILS TO DISCLOSE WHETHER ANY ADMINISTRATIVE DETERMINATION WAS MADE IN THAT CONNECTION. HOWEVER, I HAVE EXAMINED THE FOUR COURT CASES CITED IN YOUR SUBMISSION AND IT SEEMS TO BE THE VIEW OF THE COURTS THAT A STRIKE INVOLVES, GENERALLY, THE QUITTING OF WORK BY A NUMBER OF EMPLOYEES IN A BODY TO ENFORCE A DEMAND MADE UPON THE EMPLOYER; AND THAT IF THERE BE NO DEMAND UPON THE EMPLOYER OR NO INTENTION OF RETURNING TO WORK, THE QUITTING OF WORK DOES NOT CONSTITUTE A STRIKE. IN THE PRESENT CASE, THE STIPULATION BY THE BUSINESS AGENT OF THE CARPENTERS' UNION THAT THE UNION CARPENTERS WOULD BE PERMITTED TO REMAIN ON THE JOB IF THE NONUNION PAINTERS WERE REMOVED WOULD, IN MY JUDGMENT, BE TANTAMOUNT TO A DEMAND MADE UPON THE VETERANS' ADMINISTRATION, TO ENFORCE WHICH DEMAND THE UNION CARPENTERS WERE ORDERED TO QUIT WORK; HENCE, THE MAKING OF SUCH DEMAND AND THE ACTION RESULTING THEREFROM APPEAR TO SUPPLY THE REQUISITE ELEMENTS OF A STRIKE. IN THE CIRCUMSTANCES, THE ADMINISTRATIVE ACTION IN DISCHARGING THE EMPLOYEES APPEARS TO HAVE BEEN UPON THE GROUND THAT THEY WERE STRIKERS WITHIN THE PURVIEW OF THE STATUTE, SUPRA, AND SUCH ACTION APPEARS TO HAVE BEEN PROPER. HENCE, THE UNDELIVERED CHECKS DRAWN IN THEIR FAVOR TO COVER SERVICES RENDERED DURING THE PERIOD FROM JANUARY 20 THROUGH 25, 1947, WOULD BE FOR CANCELING AND NO COMPENSATION WOULD BE PAYABLE TO THEM FOR SERVICES RENDERED THEREAFTER DURING THE FISCAL YEAR 1947.