B-133972, SEP 2, 1970, 50 COMP GEN 154

B-133972, SEP 2, 1970, 50 COMP GEN 154

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - "TO ENFORCE THE LAW" - STRIKES THE DUTIES PERFORMED BY CIVILIAN EMPLOYEES WHO AS RESERVES OF THE ARMED FORCES AND NATIONAL GUARDSMEN WERE CALLED INTO ACTIVE MILITARY SERVICE PURSUANT TO PRESIDENTIAL PROCLAMATION 3972, DATED MARCH 23, 1970, TO CARRY OUT THE WORK OF STRIKING POSTAL SERVICE EMPLOYEES, ARE CONSIDERED MILITARY AID TO ENFORCE THE LAW WITHIN THE MEANING OF 5 U.S.C. 6323(C), AS THE MILITARY SERVICE WAS PERFORMED IN ORDER TO CAUSE THE LAWS RELATING TO THE POST OFFICE TO HAVE FORCE AND TO PROTECT THE MAIL; THEREFORE, THE EMPLOYEES ARE ENTITLED BECAUSE OF SUCH SERVICE TO THE MILITARY LEAVE PRESCRIBED BY 5 U.S.C. 6323(C), AND THEIR PAY SHOULD BE ADJUSTED TO COMPLY WITH 5 U.S.C. 5519 BY CREDITING MILITARY PAY AGAINST THE CIVILIAN COMPENSATION PAYABLE TO THE EMPLOYEES.

TO ROBERT J. SCHULLERY, DEPARTMENT OF TRANSPORTATION, SEPTEMBER 2, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1970, REQUESTING OUR DECISION AS TO WHETHER ACTIVE MILITARY DUTY PERFORMED BY CERTAIN EMPLOYEES OF YOUR AGENCY DURING THE POSTAL STRIKE IN NEW YORK FALLS WITHIN THE PURVIEW OF MILITARY AID TO ENFORCE THE LAW AS INTENDED BY SUBSECTION 2(A) OF PUBLIC LAW 90-588, APPROVED OCTOBER 17, 1968, 5 U.S.C. 6323(C). YOU STATE THAT SUCH A DETERMINATION IS NECESSARY IN ORDER THAT THE PAY ACCOUNTS OF THESE EMPLOYEES MAY BE ADJUSTED, IF APPROPRIATE, TO COMPLY WITH SUBSECTION 2(B) OF PUBLIC LAW 90-588, 5 U.S.C. 5519, REQUIRING THAT THE MILITARY PAY (OTHER THAN A TRAVEL, TRANSPORTATION, OR PER DIEM ALLOWANCE) RECEIVED DURING ANY PERIOD OF LEAVE GRANTED UNDER SUCH LAW SHALL BE CREDITED AGAINST THE PAY PAYABLE TO THE EMPLOYEE IN HIS CIVILIAN POSITION.

THE EMPLOYEES INVOLVED, RESERVES OF THE ARMED FORCES AND NATIONAL GUARDSMEN, WERE CALLED INTO ACTIVE MILITARY SERVICE PURSUANT TO PRESIDENTIAL PROCLAMATION 3972, MARCH 23, 1970, WHICH READS IN PERTINENT PART AS FOLLOWS:

WHEREAS CERTAIN EMPLOYEES OF THE POSTAL SERVICE ARE ENGAGED IN AN UNLAWFUL WORK STOPPAGE WHICH HAS PREVENTED THE DELIVERY OF THE MAILS AND THE DISCHARGE OF OTHER POSTAL FUNCTIONS IN VARIOUS PARTS OF THE UNITED STATES; AND

WHEREAS, AS A RESULT OF SUCH UNLAWFUL WORK STOPPAGE THE PERFORMANCE OF CRITICAL GOVERNMENTAL AND PRIVATE FUNCTIONS, SUCH AS THE PROCESSING OF MEN INTO THE ARMED FORCES OF THE UNITED STATES, THE TRANSMISSION OF TAX REFUNDS AND THE RECEIPT OF TAX COLLECTIONS, THE TRANSMISSION OF SOCIAL SECURITY AND WELFARE PAYMENTS, AND THE CONDUCT OF NUMEROUS AND IMPORTANT COMMERCIAL TRANSACTIONS, HAS WHOLLY CEASED OR IS SERIOUSLY IMPEDED; AND

WHEREAS THE CONTINUANCE OF SUCH WORK STOPPAGE WITH ITS ATTENDANT CONSEQUENCES WILL IMPAIR THE ABILITY OF THIS NATION TO CARRY OUT ITS OBLIGATIONS ABROAD, AND WILL CRIPPLE OR HALT THE OFFICIAL AND COMMERCIAL INTERCOURSE WHICH IS ESSENTIAL TO THE CONDUCT OF ITS DOMESTIC BUSINESS:

NOW, THEREFORE, I, RICHARD NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, PURSUANT TO THE POWERS VESTED IN ME BY THE CONSTITUTION AND LAWS OF THE UNITED STATES AND MORE PARTICULARLY BY THE PROVISIONS OF SECTION 673 OF TITLE 10 OF THE U.S.C. DO HEREBY DECLARE A STATE OF NATIONAL EMERGENCY, AND DIRECT THE SECRETARY OF DEFENSE TO TAKE SUCH ACTION AS HE DEEMS NECESSARY TO CARRY OUT THE PROVISIONS OF THE SAID SECTION 673 IN ORDER THAT THE LAWS OF THE UNITED STATES PERTAINING TO THE POST OFFICE DEPARTMENT MAY BE EXECUTED IN ACCORDANCE WITH THEIR TERMS.

IN ACCORDANCE WITH THE TERMS OF THE PROCLAMATION, THE RESERVES AND GUARDSMEN PRIMARILY CARRIED OUT CIVILIAN DUTIES USUALLY PERFORMED BY EMPLOYEES OF THE POST OFFICE DEPARTMENT RATHER THAN DUTIES OF A POLICE OR MILITARY CHARACTER.

SUBSECTION 6323(C), OF TITLE 5, U.S.C. PROVIDES IN PART AS FOLLOWS:

(C) EXCEPT AS PROVIDED BY SECTION 5519 OF THIS TITLE, AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT A SUBSTITUTE EMPLOYEE IN THE POSTAL FIELD SERVICE) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WHO -

(1) IS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, AS DESCRIBED IN SECTION 261 OF TITLE 10, OR THE NATIONAL GUARD, AS DESCRIBED IN SECTION 101 OF TITLE 32; AND

(2) PERFORMS, FOR THE PURPOSE OF PROVIDING MILITARY AID TO ENFORCE THE LAW -

(A) FEDERAL SERVICE UNDER SECTION 331, 332, 333, 3500, OR 8500 OF TITLE 10, OR OTHER PROVISION OF LAW, AS APPLICABLE, OR

* * * * * IS ENTITLED, DURING AND BECAUSE OF SUCH SERVICE, TO LEAVE WITHOUT LOSS OF, OR REDUCTION IN, PAY, LEAVE TO WHICH HE OTHERWISE IS ENTITLED, CREDIT FOR TIME OR SERVICE, OR PERFORMANCE OR EFFICIENCY RATING. LEAVE GRANTED BY THIS SUBSECTION SHALL NOT EXCEED 22 WORKDAYS IN A CALENDAR YEAR.

SECTION 333 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

THE PRESIDENT, BY USING THE MILITIA OR THE ARMED FORCES, OR BOTH, OR BY ANY OTHER MEANS, SHALL TAKE SUCH MEASURES AS HE CONSIDERS NECESSARY TO SUPPRESS, IN A STATE, ANY *** UNLAWFUL COMBINATION, OR CONSPIRACY, IF IT -

(2) OPPOSES OR OBSTRUCTS THE EXECUTION OF THE LAWS OF THE UNITED STATES

TITLE 39, U.S.C. PROVIDES FOR A POST OFFICE DEPARTMENT. THE CARRIAGE OF LETTERS IS A FEDERAL FUNCTION AND THE DEPARTMENT'S EMPLOYEES ARE FEDERAL EMPLOYEES AND AS SUCH SUBJECT TO THE ANTISTRIKE PROVISIONS OF LAW. U.S.C. 3333; 5 ID. 7311; 18 ID. 1918.

PRESIDENTIAL PROCLAMATION 3972 DECLARED A STATE OF NATIONAL EMERGENCY ON THE BASIS OF AN ILLEGAL WORK STOPPAGE IN THE POSTAL SERVICE AND DIRECTED THE SECRETARY OF DEFENSE TO TAKE SUCH ACTION AS NECESSARY IN ORDER THAT THE LAWS OF THE UNITED STATES POST OFFICE DEPARTMENT MIGHT BE EXECUTED IN ACCORDANCE WITH THEIR TERMS.

TO "ENFORCE" A LAW USUALLY MEANS TO CAUSE AN ARREST AND TO ENFORCE BY "ACTUAL FORCE AND PUNISHMENT" BUT IT DOES NOT NECESSARILY IMPLY THIS; IT MAY MEAN "TO GIVE EFFECT TO, TO CAUSE TO HAVE FORCE." MERIDIAN LIMITED V SIPPY, 128 P. 2D 884, 888 (1942). ALSO, THE TERM "LAW ENFORCEMENT" IS NOT LIMITED TO ENFORCEMENT OF THE CRIMINAL LAW. BRISTOL-MYERS CO. V F.T.C., 284 F. SUPP. 745, 747 (1968).

THE RECORD INDICATES THAT THE MILITARY SERVICE IN QUESTION WAS PERFORMED IN ORDER TO CAUSE THE LAWS RELATING TO THE POST OFFICE TO HAVE FORCE. ALSO, IN ORDER TO CARRY OUT THIS FUNCTION THE RESERVES AND NATIONAL GUARDSMEN WERE INSTRUCTED TO PROTECT THE MAIL ENTRUSTED TO THEM AND NOT TO ALLOW UNAUTHORIZED PERSONS TO TAKE, HARM, OR TAMPER WITH THE MAIL IN THEIR CARE.

IN VIEW OF THE ABOVE THE MILITARY SERVICE PERFORMED BY THE EMPLOYEES INVOLVED SHOULD BE REGARDED AS MILITARY AID TO ENFORCE THE LAW. THEREFORE, THE EMPLOYEES ARE ENTITLED TO MILITARY LEAVE IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 6323(C) AND THEIR PAY SHOULD BE ADJUSTED AS PROVIDED IN 5 U.S.C. 5519.