B-25199, MAY 26, 1942, 21 COMP. GEN. 1055

B-25199, MAY 26, 1942, 21 COMP. GEN. 1055

DETAIL OF OFFICERS AND EMPLOYEES TO CONGRESSIONAL COMMITTEES AN EXECUTIVE AGENCY OF THE GOVERNMENT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, MAY NOT LEND OR DETAIL EMPLOYEES TO A CONGRESSIONAL INVESTIGATING COMMITTEE UNLESS THE WORK OF THE COMMITTEE ACTUALLY AIDS THE AGENCY IN THE ACCOMPLISHMENT OF A PURPOSE FOR WHICH ITS APPROPRIATIONS ARE MADE, OR UNLESS THE SERVICES OF EMPLOYEES WHO ARE ALREADY ON THE ROLLS OF THE AGENCY MAY BE SPARED FOR BRIEF PERIODS, SUCH AS A FEW DAYS OR A WEEK OR SO, WITHOUT DETRIMENT TO THE WORK OF THE AGENCY AND WITHOUT NECESSITATING THE HIRING OF ADDITIONAL EMPLOYEES. 21 COMP. GEN. 954, AMPLIFIED. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, APPROPRIATED FUNDS OF THE NATIONAL LABOR RELATIONS BOARD MAY NOT BE USED TO PAY THE SALARIES OF NEWLY APPOINTED EMPLOYEES DETAILED OR LOANED TO A CONGRESSIONAL INVESTIGATING COMMITTEE, WHERE THE EMPLOYEES WERE NOT NEEDED FOR ANY WORK REQUIRED TO BE PERFORMED BY THE BOARD BUT WERE APPOINTED TO FILL EXISTING VACANCIES SOLELY FOR THE PURPOSE OF BEING ASSIGNED TO SUCH COMMITTEE FOR AN EXTENDED PERIOD.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, MAY 26, 1942:

I HAVE YOUR LETTER OF MAY 19, 1942, AS FOLLOWS:

WE REFER TO YOUR OPINION OF APRIL 27, 1942, CONCERNING THE ASSIGNMENT OF CERTAIN PERSONNEL OF THE FEDERAL HOUSING ADMINISTRATION TO SERVICE WITH A CONGRESSIONAL COMMITTEE. TO AVOID ANY POSSIBLE MISCONCEPTION IN RELATION TO THE COURSE OF THE NATIONAL LABOR RELATIONS BOARD, WE RESPECTFULLY INVITE YOUR ATTENTION TO THE BASIS UPON WHICH SOME OF OUR OWN PERSONNEL HAVE BEEN ASSIGNED TO AND ARE NOW SERVING WITH THE SENATE COMMITTEE ON SMALL BUSINESS PROBLEMS, OF WHICH THE CHAIRMAN IS SENATOR JAMES E. MURRAY, OF MONTANA.

NATURALLY, ANY COMPREHENSIVE INVESTIGATION OF SMALL-BUSINESS PROBLEMS NECESSARILY INVOLVES CONSIDERATION OF THE EXPERIENCE OF SMALL BUSINESS UNDER THE NATIONAL LABOR RELATIONS ACT. SENATOR MURRAY'S COMMITTEE HAS CALLED UPON THIS BOARD FOR ASSISTANCE ALONG THESE LINES.

THE NATIONAL LABOR RELATIONS ACT EXPRESSLY DECLARES COLLECTIVE BARGAINING BETWEEN LABOR AND MANAGEMENT TO BE AN IMPORTANT FACTOR IN STABILIZING LABOR COSTS FOR ALL AMERICAN BUSINESS, SMALL BUSINESS INCLUDED. WE QUOTE FROM THE " FINDINGS AND POLICY" IN SECTION 1, PARAGRAPH 2 OF THE CT:

"THE INEQUALITY OF BARGAINING POWER BETWEEN EMPLOYEES WHO DO NOT POSSESS FULL FREEDOM OF ASSOCIATION OR ACTUAL LIBERTY OF CONTRACT, AND EMPLOYERS WHO ARE ORGANIZED IN THE CORPORATE OR OTHER FORMS OF OWNERSHIP ASSOCIATION SUBSTANTIALLY BURDENS AND AFFECTS THE FLOW OF COMMERCE, AND TENDS TO AGGRAVATE RECURRENT BUSINESS DEPRESSIONS, BY DEPRESSING WAGE RATES AND THE PURCHASING POWER OF WAGE EARNERS IN INDUSTRY AND BY PREVENTING THE STABILIZATION OF COMPETITIVE WAGE RATES AND WORKING CONDITIONS WITHIN AND BETWEEN INDUSTRIES.'

THE BOARD WISHES TO KNOW THE ACTUAL EFFECTS OF THE POLICIES OF THE ACT IN THE SMALL-BUSINESS FIELD, AND PERTINENT ELEMENTS IN SUCH AN INVESTIGATION ARE THE EXTENT TO WHICH CONGRESS' DECLARED POLICIES HAVE RESULTED IN THE "STABILIZATION OF COMPETITIVE WAGE RATES AND WORKING CONDITIONS WITHIN AND BETWEEN INDUSTRIES," AND IN THE ELIMINATION OF DISPUTES WHICH BURDEN OR THREATEN TO BURDEN THE FLOW OF COMMERCE. THE BOARD IS ALSO INTERESTED IN HEARING ESTIMATES BY SMALL BUSINESSES THEMSELVES OF THEIR EXPERIENCE UNDER THE ACT.

SENATOR MURRAY'S COMMITTEE IS EMPOWERED TO INVESTIGATE "ALL PROBLEMS OF AMERICAN SMALL USINESS" (S. RES. 298, COPY ATTACHED), WHICH WOULD INCLUDE THE EXPERIENCE OF SMALL BUSINESS UNDER THE NATIONAL LABOR RELATIONS ACT.

WE MIGHT ADD THAT SUCH A SURVEY IS ESPECIALLY TIMELY NOW IN LIGHT OF THE URGENT NECESSITY OF FULLY UTILIZING SMALL BUSINESS PLANT CAPACITY IN THE WAR PRODUCTION EFFORT BY THE CULTIVATION OF THOSE CONDITIONS WHICH CONDUCE TO HARMONIOUS RELATIONS BETWEEN LABOR AND SMALL BUSINESS.

THE NATIONAL LABOR RELATIONS BOARD, ANXIOUS TO RENDER THE COMMITTEE ANY ASSISTANCE WITHIN ITS AUTHORITY, LACKED THE REQUISITE PERSONNEL FOR ASSIGNMENT WHEN SENATOR MURRAY'S REQUEST WAS MADE. ACCORDINGLY, IT PROCEEDED TO FILL CERTAIN REGULARLY EXISTING VACANCIES WITH PERSONNEL SINCE DETAILED TO THE SENATE SMALL BUSINESS COMMITTEE, FOR THE ABOVE INVESTIGATIONS, THE RESULTS OF WHICH IT EXPECTS TO BE OF DIRECT BENEFIT TO THE NATIONAL LABOR RELATIONS BOARD.

YOUR OPINION IS RESPECTFULLY REQUESTED UPON THE PROPRIETY OF CONTINUING OUR ASSIGNMENT OF THIS PERSONNEL TO SENATOR MURRAY'S COMMITTEE.

SENATE RESOLUTION 298, SEVENTY-SIXTH CONGRESS, THIRD SESSION, AGREED TO OCTOBER 8, 1940, CREATING THE SENATE COMMITTEE ON SMALL BUSINESS PROBLEMS AND AUTHORIZING IT "TO REQUEST SUCH ASSISTANCE AND INFORMATION FROM ANY DEPARTMENTS AND AGENCIES OF THE GOVERNMENT * * * AS IT DEEMS ADVISABLE," DOES NOT HAVE THE FORCE AND EFFECT OF A STATUTE AND MAY NOT BE REGARDED AS AUTHORIZING THE USE OF FUNDS APPROPRIATED FOR THE PERSONNEL OF THE NATIONAL LABOR RELATIONS BOARD EXCEPT IN ACCORDANCE WITH THE DECISION OF APRIL 27, 1942, B-25199, 21 COMP. GEN. 954, WHEREIN IT WAS STATED AS FOLLOWS:

YOU UNDERSTAND, OF COURSE, THAT SENATE AND HOUSE RESOLUTIONS DO NOT HAVE THE FORCE AND EFFECT OF A STATUTE AND THAT THE PROVISIONS THEREOF MAY BE GIVEN EFFECT ONLY WHEN TO DO SO WILL NOT CONFLICT WITH ANY STATUTE LAW. DEPARTMENT OR OTHER AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT MAY DETAIL OR LEND EMPLOYEES TO ASSIST INVESTIGATING COMMITTEES OF EITHER HOUSE OF THE CONGRESS, CREATED BY A HOUSE OR SENATE RESOLUTION THE TERMS OF WHICH PROVIDE FOR SUCH DETAIL OR LOAN OF EMPLOYEES FOR TEMPORARY SERVICES, ONLY IN CASES (1) WHERE THE INVESTIGATION OF THE CONGRESSIONAL COMMITTEE INVOLVES MATTERS SIMILAR OR RELATED TO THOSE ORDINARILY HANDLED BY THE PARTICULAR AGENCY DETAILING OR LENDING THE EMPLOYEES AND, THEREFORE, WILL FURTHER THE PURPOSES FOR WHICH AGENCY'S APPROPRIATION WAS MADE, AND (2) WHERE THE SERVICES OF AN EMPLOYEE ALREADY ON THE ROLLS OF THE AGENCY DETAILING OR LENDING THE EMPLOYEE MAY BE SPARED WITHOUT DETRIMENT TO THE WORK OF THE AGENCY AND WITHOUT NECESSITATING THE EMPLOYMENT OF AN ADDITIONAL EMPLOYEE. THAT RULE IS REQUIRED BY SECTION 3678, REVISED STATUTES, WHICH PROVIDES AS FOLLOWS:

"ALL 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.'

SEE, ALSO, DECISION OF JUNE 20, 1927, 6 COMP. GEN. 836, WHEREIN IT WAS STATED:

"* * * THE CONGRESS HAS SEPARATED THE LEGISLATIVE FROM THE EXECUTIVE APPROPRIATIONS, AND THIS IS CONSIDERED GENERALLY TO FORBID THE USE OF THE APPROPRIATIONS FOR ONE BRANCH FOR THE EXPENSES OF THE OTHER, EXCEPT WHERE THE INTENT TO SO USE THE APPROPRIATION SPECIFICALLY APPEARS. 4 COMP. DEC. 287; 9 ID. 59; 23 ID. 493; 4 COMP. GEN. 848.'

IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, THERE IS NO AUTHORITY FOR ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT TO EMPLOY A PERSON SOLELY FOR THE PURPOSE OF DETAILING OR LENDING SUCH EMPLOYEE TO A COMMITTEE CREATED BY A HOUSE OR SENATE RESOLUTION, NOTWITHSTANDING THE TERMS OF THE RESOLUTION MAY SPECIFICALLY SO PROVIDE -- SUCH A RESOLUTION, AS HEREINBEFORE STATED, NOT HAVING THE FORCE AND EFFECT OF A STATUTE.

THAT DECISION STATED TWO SEPARATE AND DISTINCT SITUATIONS FOR CONSIDERATION IN DETERMINING WHETHER EMPLOYEES IN THE EXECUTIVE BRANCH OF THE SERVICE MAY BE LOANED OR DETAILED TO CONGRESSIONAL INVESTIGATING COMMITTEES WITHOUT CONTRAVENING SECTION 3678, REVISED STATUTES, THAT IS TO SAY, THE TWO CASES (1) AND (2) ARE SEPARATE AND DISTINCT.

TO SATISFY THE CONDITION STATED IN CASE (1) AND SECTION 3678, REVISED STATUTES, THE TERMS OF WHICH ARE PLAIN AND UNAMBIGUOUS, THE INVESTIGATION THAT THE CONGRESSIONAL COMMITTEE IS AUTHORIZED TO MAKE BY A SENATE OR HOUSE RESOLUTION MUST INVOLVE WORK TO BE PERFORMED BY THE LOANED OR DETAILED EMPLOYEE WHICH WILL RELIEVE THE EXECUTIVE AGENCY FROM DOING IN SOME OTHER WAY EITHER BY ANOTHER AND INDEPENDENT INVESTIGATION WHICH THE EXECUTIVE AGENCY IS AUTHORIZED BY LAW TO MAKE, OR BY DUTIES REQUIRED IN THE PERFORMANCE OF THE REGULAR FUNCTIONS IMPOSED BY LAW ON THE EXECUTIVE AGENCY IS AUTHORIZED BY LAW TO MAKE, OR BY DUTIES REQUIRED IN THE PERFORMANCE OF WHICH THE APPROPRIATIONS FOR THE EXECUTIVE AGENCY HAVE BEEN PROVIDED BY THE CONGRESS. STATUTES CREATING AND PRESCRIBING THE FUNCTIONS OF AN EXECUTIVE AGENCY USUALLY CLEARLY DEFINE THE DUTIES AND RESPONSIBILITIES OF SUCH EXECUTIVE AGENCY. HENCE, IT IS ONLY IN RARE INSTANCES THAT THE APPROPRIATIONS FOR AN EXECUTIVE AGENCY MAY BE REGARDED AS INTENDED TO REQUIRE OR AUTHORIZE THE EXECUTIVE AGENCY TO USE ITS PERSONNEL FOR INVESTIGATIONS FOR THE PURPOSE OF ADDITIONAL LEGISLATION OR OF OBTAINING INFORMATION RELATIVE TO THE OPERATIONS OF SUCH AGENCY UNDER EXISTING LEGISLATION OR OTHERWISE. IN ORDER TO COME WITHIN THE REQUIREMENTS OF SECTION 3678, REVISED STATUTES, IN CASES SUCH AS REFERRED TO UNDER (1) IN THE DECISION OF APRIL 27, 1942, IT IS NOT ENOUGH THAT THERE MAY BE A MUTUALITY OF INTEREST BETWEEN THE WORK OF A CONGRESSIONAL INVESTIGATING COMMITTEE AND THE WORK OF AN EXECUTIVE AGENCY, OR THAT THE KNOWLEDGE OR INFORMATION GAINED BY A CONGRESSIONAL INVESTIGATING COMMITTEE MAY BE OF INTEREST OR EVEN HELPFUL TO AN EXECUTIVE AGENCY, BUT IT MUST APPEAR THAT THE WORK OF THE COMMITTEE TO WHICH THE DETAIL OR LOAN OF THE EMPLOYEE IS MADE WILL ACTUALLY AID THE AGENCY IN THE ACCOMPLISHMENT OF A PURPOSE FOR WHICH ITS APPROPRIATION WAS MADE SUCH AS BY OBVIATING THE NECESSITY FOR THE PERFORMANCE BY SUCH AGENCY OF THE SAME OR SIMILAR WORK.

SECTION 1 OF SAID SENATE RESOLUTION NO. 298 READS AS FOLLOWS:

RESOLVED, THAT A SPECIAL COMMITTEE CONSISTING OF SEVEN SENATORS, TO BE APPOINTED BY THE VICE PRESIDENT, IS HEREBY AUTHORIZED AND DIRECTED TO STUDY AND SURVEY BY MEANS OF RESEARCH ALL THE PROBLEMS OF AMERICAN SMALL BUSINESS ENTERPRISES, OBTAINING ALL FACTS POSSIBLE IN RELATION THERETO WHICH WOULD NOT ONLY BE OF PUBLIC INTEREST, BUT WHICH WOULD AID THE CONGRESS IN ENACTING REMEDIAL LEGISLATION. THE COMMITTEE SHALL BEGIN ITS STUDY AND RESEARCH SURVEY AS SOON AS PRACTICABLE AND SHALL CONTINUE AND PROSECUTE SUCH STUDY AND RESEARCH SURVEY EXPEDITIOUSLY AND WITH ALL POSSIBLE DISPATCH AND SHALL REPORT TO THE SENATE AS SOON AS PRACTICABLE WITH RECOMMENDATIONS FOR LEGISLATION.

IT DOES NOT APPEAR THAT THERE IS ANY DUTY ON YOUR BOARD UNDER EXISTING LAW TO OBTAIN FACTS RELATING TO THE PROBLEMS OF SMALL BUSINESS ENTERPRISES WHICH WOULD BE OF PUBLIC INTEREST OR WHICH WOULD AID THE CONGRESS IN ENACTING REMEDIAL LEGISLATION. NEITHER DOES IT APPEAR THAT THE OBTAINING OF SUCH FACTS BY THE INVESTIGATING COMMITTEE WOULD RELIEVE THE BOARD OF THE PERFORMANCE OF ANY WORK FOR THE ACCOMPLISHMENT OF WHICH ITS APPROPRIATIONS ARE MADE. HENCE, THE REPRESENTATIONS MADE IN YOUR LETTER RELATIVE TO THE CONNECTION BETWEEN THE WORK OF THE INVESTIGATING COMMITTEE AND THE WORK OF YOUR BOARD DO NOT MEET THE REQUIREMENTS OF THE LAW SO AS TO AUTHORIZE THE USE OF YOUR APPROPRIATIONS TO PAY THE SALARIES OF EMPLOYEES ENGAGED ON THE WORK OF THE INVESTIGATING COMMITTEE.

THE CASE REFERRED TO UNDER (2) IN THE DECISION OF APRIL 27, 1942, WAS INTENDED TO INCLUDE ONLY THOSE SITUATIONS INVOLVING A TEMPORARY LOAN OR DETAIL OF AN EMPLOYEE OF AN EXECUTIVE AGENCY TO A CONGRESSIONAL COMMITTEE FOR A BRIEF PERIOD--- THAT IS, A SITUATION WHERE THE SERVICES OF AN EMPLOYEE ALREADY ON THE ROLLS OF AN EXECUTIVE AGENCY MAY BE SPARED FOR A FEW DAYS OR PERHAPS A WEEK OR SO WITHOUT DETRIMENT TO THE WORK OF THE AGENCY AND WITHOUT NECESSITATING THE EMPLOYMENT OF AN ADDITIONAL EMPLOYEE.

THE PENULTIMATE PARAGRAPH OF YOUR LETTER STATES THAT THE NATIONAL LABOR RELATIONS BOARD LACKED THE REQUISITE PERSONNEL FOR ASSIGNMENT TO THE SENATE COMMITTEE AND ACCORDINGLY FILLED EXISTING VACANCIES FOR THE PURPOSE OF DETAILING THE NEWLY APPOINTED EMPLOYEES TO THE SENATE COMMITTEE. WOULD APPEAR FROM YOUR LETTER THAT THESE EMPLOYEES WERE NOT NEEDED FOR ANY WORK REQUIRED TO BE PERFORMED BY THE NATIONAL LABOR RELATIONS BOARD BUT THAT THE EXISTING VACANCIES WERE FILLED SOLELY FOR THE PURPOSE OF ACCOMMODATING THE SENATE COMMITTEE AND THAT THE PERIOD OF SUCH SERVICE WITH THE COMMITTEE WAS NOT INTENDED TO BE, AND HAS NOT BEEN, FOR A BRIEF PERIOD, ONLY.

ACCORDINGLY, BASED ON THE FACTS STATED IN YOUR LETTER, I HAVE TO ADVISE THAT THE CONTINUED USE OF YOUR APPROPRIATION TO PAY THE SALARIES OF THE REFERRED-TO PERSONNEL TO PERFORM SERVICES FOR " SENATOR MURRAY'S COMMITTEE" IS NOT AUTHORIZED.