09:0394(48)CA - Air Force, 3480th Air Base Group, Goodfellow AFB, TX and AFGE Local 1816 -- 1982 FLRAdec CA
[ v09 p394 ]
09:0394(48)CA
The decision of the Authority follows:
9 FLRA No. 48
DEPARTMENT OF THE AIR FORCE
3480TH AIR BASE GROUP
GOODFELLOW AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1816
Charging Party
Case No. 6-CA-139
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND THE
RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND THE RESPONDENT
FILED AN OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN.
OVIDA BROWN, WHO HAD BEEN A MEMBER OF THE BARGAINING UNIT HEREIN, WAS
PROMOTED TO A SUPERVISORY POSITION BUT, DUE TO THE RESPONDENT'S
ADMINISTRATIVE ERROR, WAS NOT REMOVED FROM DUES WITHHOLDING STATUS.
FOLLOWING BROWN'S REQUEST TO REVOKE HER DUES WITHHOLDING AUTHORIZATION
AND TO BE REIMBURSED FOR DUES WITHHELD FROM HER SALARY AFTER HER
PROMOTION, THE RESPONDENT DISCONTINUED DUES WITHHOLDING, REIMBURSED
BROWN, AND DEDUCTED AN EQUAL AMOUNT FROM THE CURRENT BI-WEEKLY DUES
ALLOTMENT FORWARDED TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1816 (THE UNION). UPON DISCOVERY OF THE ADJUSTMENT AND
THE RESPONDENT'S REFUSAL TO REVERSE ITS ACTION, THE UNION FILED CHARGES
WHICH LED TO THE ISSUANCE OF A COMPLAINT ALLEGING VIOLATIONS OF SECTION
7116(A)(1), (5) AND (8) /1/ FOR FAILURE TO COMPLY WITH SECTION 7115(A)
OF THE STATUTE. /2/
THE JUDGE FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTION
7116(A)(1), (5) AND (8) OF THE STATUTE BY FAILING TO REMIT BROWN'S DUES
ALLOTMENT TO THE UNION PURSUANT TO HER WRITTEN AUTHORIZATION. NOTING
THAT SECTION 7115(A) STATES THAT AN AGENCY MUST HONOR A WRITTEN
ASSIGNMENT "FROM AN EMPLOYEE IN AN APPROPRIATE UNIT," AND THAT SECTION
7AA5(B) REQUIRES SUCH AN ALLOTMENT WITH RESPECT TO AN EMPLOYEE TO
TERMINATE WHEN "THE AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE
REPRESENTATIVE INVOLVED CEASES TO BE APPLICABLE TO THE EMPLOYEE," THE
JUDGE CONCLUDED THAT WHERE, AS HERE, AN EMPLOYEE HAS BEEN PROMOTED TO A
SUPERVISORY POSITION OUTSIDE OF THE BARGAINING UNIT, THE DUES ALLOTMENT
OF THAT EMPLOYEE IS TERMINATED BY OPERATION OF LAW. ACCORDINGLY, THE
JUDGE CONCLUDED THAT THE RESPONDENT NO LONGER WAS REQUIRED TO HONOR
BROWN'S DUES ASSIGNMENT AFTER SHE HAD BEEN PROMOTED TO A SUPERVISORY
POSITION AND, ACCORDINGLY, DID NOT VIOLATE SECTION 7116(A)(1), (5) AND
(8), AS ALLEGED, BY FAILING TO DO SO. THE AUTHORITY AGREES. SEE
INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER, FRESNO, CALIFORNIA, 7
FLRA NO. 54 (1981), APPEAL DOCKETED, NO. 82-7092 (9TH CIR. FEB. 12,
1982).
THE JUDGE FURTHER FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTION
7116(A)(1), (5) AND (8), AS ALLEGED, BY DEDUCTING FROM A DUES ALLOTMENT
CHECK REMITTED TO THE UNION THE AMOUNT PAID TO BROWN IN REIMBURSEMENT
FOR DUES IMPROPERLY WITHHELD FROM HER SALARY AND FORWARDED TO THE UNION
AFTER SHE HAD BEEN PROMOTED TO A SUPERVISORY POSITION. IN SO FINDING,
THE JUDGE CITED AND RELIED UPON DECISIONS ISSUED PRIOR TO ENACTMENT OF
THE STATUTE WHICH HELD THAT AN AGENCY MAY LAWFULLY RECOUP DUES WHICH
WERE IMPROPERLY DEDUCTED FROM EMPLOYEES' WAGES AND MISTAKENLY PAID TO
THE UNION. /3/ THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE,
THAT THE SAME RESULT OBTAINS UNDER THE STATUTE. THUS, AS PREVIOUSLY
FOUND, SECTION 7115(B) REQUIRES DUES WITHHOLDING AUTHORIZATIONS TO
TERMINATE WHEN AN EMPLOYEE HAS BEEN PROMOTED TO A SUPERVISORY POSITION
OUTSIDE THE BARGAINING UNIT, AND THEREFORE MANAGEMENT DOES NOT VIOLATE
SECTION 7116(A)(1) AND (8) BY TERMINATING SUCH ALLOTMENTS. INTERNAL
REVENUE SERVICE, FRESNO SERVICE CENTER, FRESNO CALIFORNIA, SUPRA. IT
FOLLOWS THAT MANAGEMENT'S CORRECTION OF AN ADMINISTRATIVE ERROR IN ORDER
TO COMPLY WITH A STATUTORY MANDATE, ALBEIT BELATEDLY, CANNOT ITSELF
CONSTITUTE A VIOLATION OF THE STATUTE.
THE GENERAL COUNSEL CONTENDS, HOWEVER, THAT THE RESPONDENT'S ACTION
CONSTITUTED A UNILATERAL CHANGE IN EXISTING CONDITIONS OF THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT CONCERNING DUES WITHHOLDING, AND
THEREFORE VIOLATED THE DUTY TO BARGAIN IN GOOD FAITH. THE AUTHORITY
DISAGREES. THUS, WHERE MANAGEMENT'S COMPLIANCE WITH THE REQUIREMENTS OF
SECTION 7115 OF THE STATUTE CONFLICTS WITH THE PROVISIONS OF A
PREEXISTING DUES WITHHOLDING AGREEMENT, NO VIOLATION OF SECTION
7116(A)(5) IS ESTABLISHED. /4/ ACCORDINGLY, THE AUTHORITY FINDS IT
UNNECESSARY TO REACH OR PASS UPON, AND SPECIFICALLY DOES NOT ADOPT, THE
JUDGE'S DISCUSSION CULMINATING IN THE FINDING THAT THE RESPONDENT'S
ACTION DID NOT RISE TO THE LEVEL OF A CLEAR AND PATENT BREACH OF THE
PARTIES' AGREEMENT AND AN UNFAIR LABOR PRACTICE UNDER THE STATUTE. SEE
FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7 FLRA NO. 23
(1981), AT P. 6 OF THE DECISION. /5/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-139 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES A. HARPER, ESQUIRE
FOR THE RESPONDENT
JAMES W. DEMIK, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (THE STATUTE) AS
A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT DATED FEBRUARY 8, 1980
FILED BY THE REGIONAL DIRECTOR, SIXTH REGION, FEDERAL LABOR REGULATIONS
AUTHORITY (FLRA), DALLAS, TEXAS, AGAINST THE DEPARTMENT OF THE AIR
FORCE, 3480TH /6/ AIR BASE GROUP, GOODFELLOW AIR FORCE BASE, TEXAS
(RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
U.S.C. 7115(A), 7116(A)(1), (5), AND (8) BY FAILING TO COMPLY WITH A
DUES DEDUCTION ASSIGNMENT IN APRIL 1979 AND BY UNILATERALLY DEDUCTING
FROM A DUES ALLOTMENT PAYMENT SUBMITTED TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1816 (CHARGING PARTY OR UNION) AN
AMOUNT ALLEGED TO HAVE BEEN ERRONEOUSLY TRANSMITTED IN PRIOR PERIODS ON
BEHALF OF AN EMPLOYEE WHO HAD BEEN PROMOTED TO SUPERVISOR AND, THUS, WAS
OUT OF THE BARGAINING UNIT. RESPONDENT DENIED ANY VIOLATION OF THE
STATUTE.
A HEARING WAS HELD IN THIS MATTER IN SAN ANGELO, TEXAS. THE
RESPONDENT AND THE GENERAL COUNSEL, FLRA WERE REPRESENTED BY COUNSEL
AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
EXAMINE AND CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS HAVE BEEN
RECEIVED FROM THE GENERAL COUNSEL AND THE RESPONDENT AND DULY
CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1816, AT ALL TIMES MATERIAL, WAS THE EXCLUSIVE REPRESENTATIVE OF AN
APPROPRIATE UNIT OF CIVILIAN EMPLOYEES AT GOODFELLOW AIR FORCE BASE,
(AFB) TEXAS. THE APPROPRIATE UNIT EXCLUDED, AMONG OTHERS, SUPERVISORS.
(GENERAL COUNSEL'S EX. 1(D) AND 1(F), PAR. 3).
2. THE UNION AND REPRESENT WERE PARTIES, AT ALL TIMES MATERIAL, TO A
COLLECTIVE BARGAINING AGREEMENT ENTERED INTO IN NOVEMBER 1975. (GENERAL
COUNSEL EX. 1(D) AND 1(F), PAR. 3). RELEVANT PORTIONS OF THE COLLECTIVE
BARGAINING AGREEMENT (GENERAL COUNSEL EX. 2) ARE AS FOLLOWS:
ARTICLE III
RIGHTS OF EMPLOYEES
SECTION 1. IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS
AGREEMENT, OFFICIALS AND
EMPLOYEES ARE GOVERNED BY 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 CONTROLLING
AGREEMENT AT A HIGHER
AGENCY LEVEL. ANY REFERENCE MADE, IN THIS AGREEMENT, TO SPECIFIC AIR
FORCE DIRECTIVES, OR
CIVIL SERVICE COMMISSION REGULATIONS IS NOT INTENDED TO PRECLUDE
APPLICATION OF ANY OTHER
LAWS, RULES OR REGULATIONS OF HIGHER HEADQUARTERS OR OTHER AGENCIES
THAT ARE GOVERNING.
. . . .
ARTICLE IV
RIGHTS OF EMPLOYEES
. . . .
SECTION 4. NOTHING IN THIS AGREEMENT SHALL REQUIRE AN EMPLOYEE TO
BECOME OR TO REMAIN A
MEMBER OF A LABOR ORGANIZATION, OR TO PAY MONEY TO THE ORGANIZATION
EXCEPT PURSUANT TO A
VOLUNTARY, WRITTEN AUTHORIZATION BY A MEMBER FOR THE PAYMENT OF DUES
THROUGH PAYROLL
DEDUCTIONS.
ARTICLE V
RIGHTS OF UNION
. . . .
SECTION 6. THE EMPLOYER WILL, ANNUALLY, AS OF 31 DEC, FURNISH THE
UNION A LIST OF NAMES,
POSITION TITLES, GRADES, AND DUTY STATION OF ALL EMPLOYEES UNDER
THEIR JURISDICTION. WITHIN
THE FIRST FIVE WORKING DAYS OF EACH MONTH, THE UNION WILL BE
FURNISHED A LIST OF THE NAMES AND
DUTY SECTION OF EMPLOYEES APPOINTED, PROMOTED, AND SEPARATED DURING
THE PRECEDING MONTH.
. . . .
ARTICLE XXI
DUES WITHHOLDING
SECTION 1. MANAGEMENT AGREES TO DEDUCT THE MEMBERSHIP DUES OF THE
UNION FOR (SIC) THE PAY
OF ELIGIBLE MEMBERS WHO MAKE A VOLUNTARY ALLOTMENT FOR THAT PURPOSE.
SECTION 2. ELIGIBILITY: ANY CIVILIAN EMPLOYEE OFFICIALLY ASSIGNED
TO GOODFELLOW AIR FORCE
BASE WHO IS A MEMBER IN GOOD STANDING OF THE UNION MAY AUTHORIZE AN
ALLOTMENT OF PAY FOR THE
PAYMENT OF HIS DUES FOR SUCH MEMBERSHIP, PROVIDED:
A. THE EMPLOYEE IS INCLUDED IN THE UNIT FOR WHICH EXCLUSIVE
RECOGNITION HAS BEEN GRANTED.
B. THE EMPLOYEE HAS VOLUNTARILY COMPLETED A REQUEST FOR SUCH
ALLOTMENT OF PAY.
C. THE EMPLOYEE RECEIVES PAY ON THE REGULARLY SCHEDULED PAYDAY AT
THIS INSTALLATION AND
SUCH PAY IS SUFFICIENT, AFTER OTHER LEGAL DEDUCTIONS, TO COVER THE
FULL AMOUNT OF THE
ALLOTMENT.
SECTION 3. INITIAL AUTHORIZATION:
THE UNION WILL BE RESPONSIBLE FOR PROCURING THE PRESCRIBED ALLOTMENT
FORM (STANDARD FORM
1187), DISTRIBUTING THE FORM TO ITS MEMBERS, CERTIFYING AS TO THE
AMOUNT OF DUES, AND
INFORMING AND EDUCATING ITS MEMBERS ON THE PROGRAM FOR ALLOTMENTS FOR
PAYMENT OF DUES, AND THE
USES AND AVAILABILITY OF THE REQUIRED FORMS. THE UNION PRESIDENT
WILL COMPLETE SECTION A OF
STANDARD FORM 1187 AND FORWARD THE COMPLETED FORM TO CIVILIAN PAY
OFFICE. AN ALLOTMENT FORM
MAY BE SUBMITTED TO THE UNION PRESIDENT AT ANY TIME BUT MUST BE
RECEIVED IN THE CIVILIAN PAY
OFFICE NOT LATER THAN THE LAST WORK DAY PRECEDING THE PAY PERIOD IN
WHICH THE ALLOTMENT IS TO
BECOME EFFECTIVE.
SECTION 4. WITHHOLDING:
ALLOTED DUES WILL BE WITHHELD FROM THE PAYROLL PREPARED EACH PAY
PERIOD. THE AMOUNT TO BE
WITHHELD SHALL BE THE AMOUNT OF THE BI-WEEKLY DUES OF THE MEMBER
(EXCLUSIVE OF INITIATION
FEES, ASSESSMENTS, BACK DUES, FINES AND SIMILAR CHANGES AND FEES).
IF THE AMOUNT OF THE
REGULAR DUES IS CHANGED BY THE UNION, THE CIVILIAN PAY OFFICE WILL BE
NOTIFIED IN WRITING BY
THE UNION PRESIDENT OF THE NEW RATE, WHICH WILL BE WITHHELD FROM THE
NEXT PAYROLL AFTER SUCH
NOTIFICATION. ONLY ONE SUCH CHANGE MAY BE MADE DURING ANY ONE
CALENDAR YEAR.
SECTION 5. TERMINATION OF ALLOTMENT:
A. THE CIVILIAN PAY OFFICE WILL TERMINATE AN ALLOTMENT WHEN:
1. THE EMPLOYEE LEAVES THE UNIT AS A RESULT OF ANY TYPE OF
SEPARATION, TRANSFER OR OTHER
PERSONNEL ACTION (EXCEPT TEMPORARY PROMOTION OR DETAIL).
2. THE UNION LOSES EXCLUSIVE RECOGNITION.
3. THE MEMORANDUM OF AGREEMENT IS SUSPENDED OR TERMINATED BY
APPROPRIATE AUTHORITY OUTSIDE
THE DEPARTMENT OF DEFENSE.
4. THE EMPLOYEE REVOKES HIS ALLOTMENT BY NOTIFICATION TO THE
CIVILIAN PAY OFFICE. THE
REVOCATION WILL BECOME EFFECTIVE THE FIRST FULL PAY PERIOD FOLLOWING
1 MARCH OR 1 SEPTEMBER,
WHICHEVER DATE FIRST OCCURS AFTER THE REQUEST IS RECEIVED IN THE
CIVILIAN PAY OFFICE. THIS
REVOCATION MAY BE MADE ON STANDARD FORM 1188, AVAILABLE IN THE
CIVILIAN PAY OFFICE.
B. THE UNION WILL NOTIFY THE CIVILIAN PAY OFFICE IN WRITING WITHIN
FIVE WORKDAYS WHEN AN
EMPLOYEE WITH A CURRENT ALLOTMENT AUTHORIZATION CEASES TO BE A MEMBER
IN GOOD STANDING FOR ANY
REASON.
C. THE CIVILIAN PAY OFFICE WILL SEND A COPY OF EACH WRITTEN
REVOCATION OF VOLUNTARY
AUTHORIZATION FOR ALLOTMENT OF COMPENSATION FOR PAYMENT OF DUES TO
THE UNION WITH THE
REMITTANCE FOR THE FIRST DEDUCTION PAYROLL PREPARED AFTER RECEIPT OF
THE REVOCATION.
SECTION 6. REMITTANCE OF DUES WITHHELD:
THE CIVILIAN PAY OFFICE WILL PREPARE A BI-WEEKLY REMITTANCE CHECK AT
THE CLOSE OF EACH PAY
PERIOD FOR THE TOTAL AMOUNT ALLOTTED FOR DUES FOR THAT PAY PERIOD,
LESS THE ADMINISTRATIVE
COST OF TWO CENTS FOR EACH ALLOTMENT MADE. THE CHECK WILL BE MAILED
TO THE PRESIDENT, LODGE
1816, AFGE, WITH A LISTING OF THE NAMES AND THE AMOUNT WITHHELD.
3. SHORTLY AFTER MS. OUIDA F. BROWN BEGAN WORKING AS A MEMBER OF THE
BARGAINING UNIT AT GOODFELLOW AIR FORCE BASE IN 1966, SHE JOINED THE
UNION AND AUTHORIZED THE PAYROLL OFFICE TO DEDUCT UNION DUES FROM HER
GROSS EARNINGS. (TR. 18-19).
4. ON OCTOBER 3, 1976, /7/ MS. BROWN WAS PROMOTED TO A SUPERVISORY
POSITION, WHICH WAS OUTSIDE OF THE BARGAINING UNIT. (TR. 20). THERE IS
NO EVIDENCE THAT THE CIVILIAN PAY OFFICE TOOK ANY ACTION TO TERMINATE
HER ALLOTMENT AT THAT TIME, PURSUANT TO ARTICLE XXI, SECTION 5A.1. OF
THE COLLECTIVE BARGAINING AGREEMENT, OR THAT MS. BROWN REQUESTED THE
UNION TO DROP HER MEMBERSHIP AT THAT TIME.
5. PURSUANT TO ARTICLE V, SECTION 6 OF THE COLLECTIVE BARGAINING
AGREEMENT, THE UNION RECEIVES EACH MONTH A LIST OF THE NAMES AND DUTY
STATIONS OF EMPLOYEES PROMOTED DURING THE PRECEDING MONTH. (TR. 33;
GENERAL COUNSEL EX. 2).
6. MS. BROWN WORKED IN THE SAME OFFICE WITH EDITH DOWNS,
SECRETARY-TREASURER OF THE UNION. DURING THE LATTER PART OF 1977, MS.
BROWN TOLD MS. DOWNS THAT SINCE SHE WAS NOT REPRESENTED BY THE UNION
BECAUSE OF HER SUPERVISORY CAPACITY, SHE WOULD NOT GO ON PAYING DUES.
MS. DOWNS REPLIED THAT MS. BROWN WOULD HAVE TO WAIT UNTIL SEPTEMBER TO
WITHDRAW FROM DUES WITHHOLDING. (TR. 24).
7. MS. BROWN FORGOT TO REQUEST THAT HER DUES WITHHOLDING BE
TERMINATED IN SEPTEMBER 1977, AS MENTIONED BY MS. DOWNS, AND WAS UNDER
THE IMPRESSION THAT SHE COULD NOT THEREAFTER TERMINATE THE ALLOTMENT
UNTIL THE FOLLOWING SEPTEMBER. SHE LEARNED ABOUT A NORTH CAROLINA CASE
WHILE TAKING A PERSONNEL COURSE, AND CONCLUDED THAT SHE MIGHT BE ABLE TO
RECOUP ALL DUES PAID AFTER SHE BECAME A SUPERVISOR (TR. 24-26).
8. MS. BROWN WROTE A LETTER TO THE CIVILIAN PAY OFFICE REQUESTING
REIMBURSEMENT OF ALL DUES PAID SINCE SHE HAD BECOME A SUPERVISOR. (TR.
19-20). SHE TURNED THE LETTER IN TO THE CIVILIAN PAY CLERK FOR
FORWARDING TO KELLY AIR FORCE BASE, WHICH HANDLES PAYROLL ACCOUNTS FOR
GOODFELLOW AFB. (TR. 28, 47).
9. PURSUANT TO MS. BROWN'S REQUEST, THE KELLY AIR FORCE BASE
ACCOUNTING AND FINANCE OFFICE DEDUCTED $172.95 FROM THE TOTAL BI-WEEKLY
UNION DUES DEDUCTIONS FORWARDED TO THE UNION FOR THE PAY PERIOD OF APRIL
14, 1979 AND SENT THIS AMOUNT TO MS. BROWN. (TR. 21-22; 31-32; 34;
GENERAL COUNSEL EX. 3).
10. THE UNION LEARNED OF THE ADJUSTMENT WHEN IT RECEIVED THE
BI-WEEKLY UNION DUES DEDUCTION. (TR. 31-32). THE UNION PRESIDENT, CLEO
HAVINS, BROUGHT THE MATTER OF THE ADJUSTED DUES DEDUCTIONS TO THE
ATTENTION OF HUGH S. EPPS, CIVILIAN PERSONNEL OFFICER FOR GOODFELLOW
AFB, WHO IS RESPONSIBLE FOR ADMINISTERING THE DUES ALLOTMENT AND
WITHHOLDING PORTION OF THE COLLECTIVE BARGAINING AGREEMENT FOR
RESPONDENT. (TR. 31; 49-50). THE UNION HAD NO PRIOR INCIDENTS OF A
REDUCTION IN DUES BEING FORWARDED TO THE UNION. (TR. 32).
11. MR. EPPS CONTACTED THE KELLY AIR FORCE BASE PAYROLL DEPARTMENT.
HE WAS INFORMED THAT THE RECOUPMENT ACTION WAS A NORMAL PRACTICE BY THE
KELLY PAYROLL OFFICE. (TR. 46). MR. EPPS CONCLUDED THAT THE ACTION
WHICH HAD BEEN TAKEN BY KELLY WAS PROPER UNDER ARTICLE 21 OF THE
COLLECTIVE BARGAINING AGREEMENT. (TR. 53-54).
12. SOME OF THE DUES WITHHELD FROM THE PAY OF UNIT EMPLOYEES IS USED
BY THE UNION AT THE LOCAL LEVEL. AN UNSPECIFIED PORTION IS ALSO USED TO
PAY THE NATIONAL OFFICE PER CAPITA FEES, AND AN UNSPECIFIED PORTION IS
USED TO PAY INSURANCE CARRIER'S FOR INSURANCE PROTECTION. (TR. 42-43).
13. IT DOES NOT APPEAR IN THE RECORD WHAT BENEFITS, IF ANY, MS.
BROWN RECEIVED FROM THE UNION FOR DUES PAID AFTER SHE LEFT THE
BARGAINING UNIT ON OCTOBER 3, 1976.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATION
A. ALLEGED FAILURE TO COMPLY WITH DUES DEDUCTION ASSIGNMENT IN APRIL
1979
THE GENERAL COUNSEL ALLEGES IN PARAGRAPH 4(A) OF THE COMPLAINT THAT
RESPONDENT VIOLATED 5 U.S.C. 7116(A)(1), (5), AND (8) BY FAILING TO
COMPLY WITH 5 U.S.C. 7115(A) IN THAT "ON OR ABOUT APRIL 1979, 3480TH
AIR BASE GROUP, FAILED TO MAKE AN APPROPRIATE ALLOTMENT TO LOCAL 1816,
AFGE, A LABOR ORGANIZATION ENTITLED TO DUES ALLOTMENT, PURSUANT TO THE
WRITTEN ASSIGNMENT FROM MS. OUIDA BROWN, AUTHORIZING THE AGENCY TO
DEDUCT FROM HER PAY AMOUNTS FOR PAYMENT OF REGULAR AND PERIODIC DUES OF
THE LABOR ORGANIZATION."
PURSUANT TO 5 U.S.C. 7115(A) AN AGENCY WHICH HAS RECEIVED A WRITTEN
ASSIGNMENT "FROM AN EMPLOYEE IN AN APPROPRIATE UNIT" MUST "HONOR THE
ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE
ASSIGNMENT." IN APRIL 1979 AND, IN FACT, SINCE OCTOBER 3, 1976, MS.
BROWN WAS A SUPERVISOR AND WAS NOT "AN EMPLOYEE IN AN APPROPRIATE UNIT."
THUS, THE RESPONDENT WAS NOT REQUIRED BY SECTION 7115(A) TO CONTINUE TO
HONOR SUCH ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT IN APRIL 1979
PURSUANT TO SUCH ASSIGNMENT, AS ALLEGED. 5 U.S.C. 7115(B)(1) PROVIDES
THAT SUCH AN ALLOTMENT TERMINATES WHEN "THE AGREEMENT BETWEEN THE
AGENCY
AND THE EXCLUSIVE REPRESENTATIVE INVOLVED CEASES TO BE APPLICABLE TO THE
EMPLOYEE." SINCE THE AGREEMENT BETWEEN THE RESPONDENT AND THE EXCLUSIVE
REPRESENTATIVE WAS NOT APPLICABLE TO MS. BROWN, A SUPERVISOR, IN APRIL
1979, AND IN FACT HAD NOT BEEN APPLICABLE SINCE OCTOBER 3, 1976, THE
ALLOTMENT HAD TERMINATED BY OPERATION OF LAW, AND THE RESPONDENT WAS NOT
OBLIGATED TO MAKE AN APPROPRIATE ALLOTMENT IN APRIL 1979, AS ALLEGED.
CONSEQUENTLY, IT IS CONCLUDED THAT RESPONDENT, BY NOT MAKING AN
ALLOTMENT ON OR ABOUT APRIL 1979 PURSUANT TO MS. BROWN'S ASSIGNMENT, DID
NOT VIOLATE 5 U.S.C. 7116(A)(1), (5), AND (8) BY FAILING TO COMPLY WITH
5 U.S.C. 7115(A), AS ALLEGED BY THE GENERAL COUNSEL.
B. ALLEGED UNILATERAL DEDUCTION FROM DUES ALLOTMENT CHECK
THE GENERAL COUNSEL ALLEGES IN PARAGRAPH 4(B) OF THE COMPLAINT THAT
RESPONDENT VIOLATED 5 U.S.C. 7116(A)(1), (5), AND (8) BY FAILING TO
COMPLY WITH 5 U.S.C. 7115(A) IN THAT RESPONDENT HAS REFUSED TO BARGAIN
IN GOOD FAITH, AND ON OR ABOUT APRIL 1979 UNILATERALLY CHANGED EXISTING
CONDITIONS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY
UNILATERALLY DEDUCTING FROM A DUES ALLOTMENT CHECK REMITTED TO LOCAL
1816 THE MONEY PAID BY MS. BROWN AS DUES FROM OCTOBER 1976 THROUGH APRIL
1979.
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT CLEARLY AND PATENTLY
VIOLATED ARTICLE XXI, SECTION 6 OF THE COLLECTIVE BARGAINING AGREEMENT
BY NOT REMITTING A CHECK TO THE UNION PRESIDENT "FOR THE TOTAL AMOUNT
ALLOTTED FOR DUES FOR THAT PAY PERIOD . . . ."
RESPONDENT ASSERTS THAT IT CORRECTLY INTERPRETED THE NEGOTIATED
AGREEMENT TO INCLUDE THE RIGHT TO SET-OFF ERRONEOUS PAYMENTS.
RESPONDENT RELIES ON DECISIONS OF THE COURT OF CLAIMS, COMPTROLLER
GENERAL, AND FEDERAL LABOR RELATIONS COUNCIL RENDERED UNDER EXECUTIVE
ORDER 11491, AS AMENDED.
IT IS WELL RECOGNIZED THAT A PARTY TO A NEGOTIATED AGREEMENT ACTS AT
ITS PERIL IN INTERPRETING AND APPLYING SUCH AGREEMENT. THUS, IF THE
RESPONDENT'S INTERPRETATION OF THE NEGOTIATED AGREEMENT WAS SUCH THAT IT
RESULTED IN A CLEAR AND PATENT BREACH OF THE TERMS OF THE AGREEMENT,
THEN SUCH INTERPRETATION COULD RISE TO THE LEVEL OF AN UNFAIR LABOR
PRACTICE. ON THE OTHER HAND, IF RESPONDENT'S INTERPRETATION WAS
ARGUABLY WITHIN THE TERMS OF THE NEGOTIATED AGREEMENT, THEN SUCH
INTERPRETATION WOULD MERELY BE A MATTER OF CONTRACT INTERPRETATION TO BE
RESOLVED THROUGH THE PARTIES'S GRIEVANCE AND ARBITRATION MACHINERY.
OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA, 3
FLRA NO. 82 (1980); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION,
CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA 19 (1979); DEPARTMENT OF
THE NAVY, NAVAL AIR REWORK FACILITY, A/SLMR NO. 1089, 8 A/SLMR 815, 816
(1978) AND CASES CITED THEREIN.
THE COLLECTIVE BARGAINING AGREEMENT IN ISSUE WAS ENTERED INTO IN
NOVEMBER 1975 UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.
/8/ BY ITS TERMS, THE AGREEMENT REMAINED IN EFFECT FOR THREE YEARS (TO
NOVEMBER 1978) AND WAS AUTOMATICALLY RENEWED FOR ONE ADDITIONAL YEAR (TO
NOVEMBER 1979). (GENERAL COUNSEL EX. 2, P. 29). ON OCTOBER 13, 1978
THE STATUTE WAS ADOPTED, EFFECTIVE JANUARY 11, 1979. /9/ CERTAIN
"SAVINGS PROVISIONS" WERE ENACTED AS INTEGRAL PARTS OF THE STATUTE. THE
SAVINGS PROVISIONS RELEVANT HERE, SECTION 7135(A) AND (B), READ, IN
PERTINENT PART, AS FOLLOWS:
SEC. 7135. CONTINUATION OF EXISTING LAWS, RECOGNITIONS, AGREEMENTS,
AND PROCEDURES
(A) NOTHING CONTAINED IN THIS (STATUTE) SHALL PRECLUDE--
(1) THE RENEWAL OR CONTINUATION OF . . . A LAWFUL AGREEMENT BETWEEN
AN AGENCY AND AN
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, WHICH IS ENTERED INTO
BEFORE THE EFFECTIVE DATE OF
THIS (STATUTE); . . .
(B) POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER AND
DECISIONS ISSUED UNDER
EXECUTIVE ORDERS 11491, 11616, 11636, 11787, AND 118,8, OR UNDER ANY
OTHER EXECUTIVE ORDER, AS
IN EFFECT ON THE EFFECTIVE DATE OF THIS (STATUTE), SHALL REMAIN IN
FULL FORCE AND EFFECT UNTIL
REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS SUPERSEDED BY SPECIFIC
PROVISIONS OF THIS
(STATUTE) OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO THIS
(STATUTE).
IN LODGE 2424, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO V. UNITED STATES, 564 F.2D 66 (1977), THE COURT OF
CLAIMS DEALT WITH A PROVISION IN A COLLECTIVE BARGAINING AGREEMENT WHICH
IS VERY SIMILAR TO SECTION 6 OF THE COLLECTIVE BARGAINING AGREEMENT IN
THE INSTANT CASE. THAT PROVISION, IN PART, REQUIRED THAT THE GOVERNMENT
PAY THE UNION A "CHECK . . . IN THE AMOUNT EQUAL TO THE GRAND TOTAL OF
ALL SUCH (DUES) DEDUCTIONS." THE COURT OF CLAIMS HELD THAT THIS
PROVISION "IS INTENDED TO GUARANTEE PAYMENT ONLY OF THE DUES TO WHICH
THE UNION IS ENTITLED. WE CANNOT READ IT TO MEAN THAT THE UNION IS
ENTITLED TO RETAIN DUES WHICH WERE IMPROPERLY DEDUCTED FROM THE
EMPLOYEE'S WAGES AND MISTAKENLY PAID TO THE UNION." 564 F.2D AT 71. THE
COURT OF CLAIMS CONCLUDED THAT THE MEANS WHICH THE GOVERNMENT TOOK TO
RECOVER THE ILLEGAL PAYMENT WERE NOT ONLY AUTHORIZED BY REGULATIONS, BUT
SANCTIONED BY WELL SETTLED RULES OF LAW DEALING WITH RECOUPMENT AND
SET-OFF. THE COURT OF CLAIMS HELD THAT WHERE THE GOVERNMENT ERRONEOUSLY
CONTINUED TO DEDUCT UNION DUES FROM THE WAGES OF AN EMPLOYEE WHO HAD
BEEN TRANSFERRED OUT OF THE UNION, DESPITE A PROVISION OF THE COLLECTIVE
BARGAINING AGREEMENT SPECIFICALLY REQUIRING THAT THE DUES CHECK-OFF BE
TERMINATED AS SOON AS THE EMPLOYEE WAS TRANSFERRED OUT OF THE UNIT, THE
GOVERNMENT WAS ENTITLED TO RECOUP THAT PAYMENT BY SUBTRACTING THE
AMOUNT
ERRONEOUSLY DEDUCTED FROM AN AGGREGATE DUES PAYMENT MADE TO THE UNION.
HEADQUARTERS, XVIII AIRBORNE CORPS AND FORT BRAGG AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770, AFL-CIO, FLRC NO.
76A-145, 6 FLRC 93 (1978) WAS A LATER CASE AND INVOLVED A REVIEW BY THE
FEDERAL LABOR RELATIONS COUNCIL OF AN ARBITRATOR'S AWARD. THE
ARBITRATOR CONCLUDED THAT AN ACTIVITY HAD VIOLATED THE PARTIES'
AGREEMENT BY SUBTRACTING FROM THE TOTAL AMOUNT OF INDIVIDUAL DUES
DEDUCTIONS FOR A PARTICULAR PAY PERIOD A SUM OF MONEY WHICH HAD BEEN
ERRONEOUSLY DEDUCTED FROM AN EMPLOYEE'S SALARY, THEREBY FAILING TO PAY
THE UNION THE PROPER AMOUNT OF DUES DEDUCTION FOR THE PERIOD IN
QUESTION. THEREFORE, AS HIS AWARD, THE ARBITRATOR DIRECTED THE ACTIVITY
TO PAY THE UNION THE SUM OF MONEY THAT HAD BEEN DEDUCTED. BECAUSE THE
CASE CONCERNED ISSUES WITHIN THE JURISDICTION OF THE COMPTROLLER
GENERAL'S OFFICE, ESPECIALLY THE APPLICABILITY OF PRIOR COMPTROLLER
GENERAL DECISIONS TO THE FACTS OF THE CASE, THE COUNCIL REQUESTED THE
COMPTROLLER GENERAL TO RENDER A DECISION AS TO WHETHER THE ARBITRATOR'S
AWARD VIOLATED APPLICABLE LAW.
THE COMPTROLLER GENERAL HELD THAT THE ACTIVITY'S ONE-TIME RECOUPMENT
WAS APPROPRIATE AS RECOGNIZED BY EARLIER DECISIONS IN ABERDEEN PROVING
GROUND, B-180095, OCTOBER 1, 1974, AND 54 COMP.GEN. 921 (1975) WHICH HAD
BEEN UPHELD BY THE COURT OF CLAIMS IN LODGE 2424, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO V. UNITED
STATES, SUPRA. BASED ON THE COMPTROLLER GENERAL DECISION, THE FEDERAL
LABOR RELATIONS COUNCIL HELD THAT THE ARBITRATOR'S AWARD VIOLATED
APPLICABLE LAW AND APPROPRIATE REGULATIONS, AND SET IT ASIDE.
THE FEDERAL LABOR RELATIONS COUNCIL DECISION IN HEADQUARTERS, XVIII
AIRBORNE AND FORT BRAGG CONCERNING THE APPROPRIATENESS OF AN AGENCY
SET-OFF AGAINST DUES HAS NOT BEEN SUPERSEDED BY SPECIFIC PROVISIONS OF
THE STATUTE, OR BY REGULATIONS, OR DECISIONS ISSUED PURSUANT TO THE
STATUTE. THEREFORE, IT IS ARGUABLE THAT, UNDER THESE DECISIONS,
RESPONDENT'S ACTION IN INTERPRETING ARTICLE XXI, SECTION 6 OF THE
AGREEMENT SO AS TO AUTHORIZE THE RECOUPMENT OF DUES, CONSTITUTED
REASONABLE INTERPRETATION OF THE PARTIES' AGREEMENT.
THE GENERAL COUNSEL URGES THAT THE COMPTROLLER GENERAL, COURT OF
CLAIMS, AND, CONSEQUENTLY, THE FEDERAL LABOR RELATIONS COUNCIL, CASES
WERE WRONGLY DECIDED; THAT THEY WERE RENDERED UNDER EXECUTIVE ORDER
11491, AS AMENDED, AND ARE NOT BINDING ON THE AUTHORITY UNDER THE NEW
STATUTE; AND THAT THE ONLY TENABLE LEGAL PRECEDENT IS THE DECISION OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA,
NORTHEASTERN DIVISION ON A MOTION FOR PRELIMINARY INJUNCTION IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858 (AFL-CIO) V. CLIFFORD
ALEXONDER, SECRETARY OF THE ARMY, CIVIL ACTION NO. 78-W-5023-NE (APRIL
14, 1978).
HOWEVER, I CONCLUDE THAT, UNDER THE CIRCUMSTANCES, THE RESPONDENT'S
ACTION DID NOT RISE TO THE LEVEL OF A CLEAR AND PATENT BREACH OF THE
AGREEMENT AND AN UNFAIR LABOR PRACTICE UNDER THE STATUTE, AND SUCH
CONTRACTUAL DISPUTE SHOULD BE RESOLVED BY THE MEANS THE PARTIES
THEMSELVES HAVE ADOPTED FOR THE RESOLUTION OF DISPUTES OVER THE MEANING
OF PROVISIONS IN THE AGREEMENT. IT MUST BE PRESUMED, ABSENT CLEAR
EVIDENCE TO THE CONTRARY, THAT THE GRIEVANCE AND ARBITRATION PROCEDURES
CONTAINED IN A COLLECTIVE BARGAINING AGREEMENT CAN ADEQUATELY RESOLVE
ALL DISPUTES CONCERNING INTERPRETATION AND APPLICATION OF THAT
COLLECTIVE BARGAINING AGREEMENT. /10/ CF. SOCIAL SECURITY
ADMINISTRATION, DISTRICT OFFICES IN DENVER, PUEBLO, AND GREELEY,
COLORADO, ET AL, 3 FLRA NO. 10 (1980).
IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
A VIOLATION OF SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE, AS
ALLEGED. THEREFORE, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE
FOLLOWING ORDER PURSUANT TO 5 U.S.C. 7118(A)(8) AND 5 C.F.R. 2423.29(C):
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-139 BE, AND
IT HEREBY IS, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 8, 1980 WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE PROVIDES:
SEC. 7116 UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/2/ SECTION 7115(A) AND (B) OF THE STATUTE PROVIDES:
SEC. 7115. ALLOTMENTS TO REPRESENTATIVES
(A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
A WRITTEN ASSIGNMENT WHICH AUTHORIZES THE AGENCY TO DEDUCT FROM THE PAY
OF THE EMPLOYEE AMOUNTS FOR THE PAYMENT OF REGULAR AND PERIODIC DUES OF
THE EXCLUSIVE REPRESENTATIVE OF THE UNIT, THE AGENCY SHALL HONOR THE
ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE ASSIGNMENT.
ANY SUCH ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE
REPRESENTATIVE OR THE EMPLOYEE. EXCEPT AS PROVIDED UNDER SUBSECTION (B)
OF THIS SECTION, ANY SUCH ASSIGNMENT MAY NOT BE REVOKED FOR A PERIOD OF
1 YEAR.
(B) AN ALLOTMENT UNDER SUBSECTION (A) OF THIS SECTION FOR THE
DEDUCTION OF DUES WITH RESPECT TO ANY EMPLOYEE SHALL TERMINATE WHEN--
(1) THE AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE
INVOLVED CEASES TO BE
APPLICABLE TO THE EMPLOYEE; OR
(2) THE EMPLOYEE IS SUSPENDED OR EXPELLED FROM MEMBERSHIP IN THE
EXCLUSIVE REPRESENTATIVE.
/3/ SEE LODGE 2424, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO V. UNITED STATES, 564 F.2D 66 (CT. CL. 1977);
HEADQUARTERS, XVIII AIRBORNE CORPS AND FORT BRAGG AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770, AFL-CIO, 6 FLRC 93
(1978); 54 COMP.GEN. 921 (1975).
/4/ SEE U.S. ARMY, U.S. ARMY MATERIEL DEVELOPMENT AND READINESS
COMMAND, WARREN, MICHIGAN, 7 FLRA NO. 30 (1981), WHEREIN THE AUTHORITY
(AT N.17) DISMISSED A SIMILAR ALLEGATION EVEN WHERE MANAGEMENT'S ATTEMPT
TO COMPLY WITH THE REQUIREMENTS OF SECTION 7115 REGARDING REVOCATION OF
DUES ASSIGNMENTS WAS DEFICIENT.
/5/ WHILE THE AUTHORITY CONCLUDES THAT THE RESPONDENT DID NOT COMMIT
AN UNFAIR LABOR PRACTICE UNDER THE STATUTE BY RECOUPING FROM THE UNION
THE AMOUNT OF DUES ERRONEOUSLY FORWARDED TO THE UNION ON PREVIOUS
OCCASIONS, IT SHOULD BE NOTED THAT THE UNION MAY HAVE RECOURSE TO OTHER
PROCEDURES REGARDING THE RECOVERY OF SUCH FUNDS. THUS, UNDER 5 U.S.C.
5584, THE UNION IS ENTITLED TO REQUEST A WAIVER OF THE GOVERNMENT'S
CLAIM ARISING OUT OF THE ERRONEOUS TRANSMITTAL OF VOLUNTARY DUES
ALLOTMENTS TO THE UNION, AND SUCH CLAIM MAY BE WAIVED IF CERTAIN
CONDITIONS ARE MET. SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1239, CASE NO. B-201817 (JAN. 27, 1982), WHEREIN THE COMPTROLLER
GENERAL WAIVED THE COLLECTION OF ERRONEOUSLY PAID UNION DUES ALLOTMENTS
FOR INELIGIBLE EMPLOYEES INASMUCH AS THE ERRONEOUS PAYMENTS WERE MADE
THROUGH THE AGENCY'S ADMINISTRATIVE ERROR AND WERE RECEIVED BY THE UNION
IN GOOD FAITH AND WITHOUT FRAUD OR MISREPRESENTATION.
/6/ A MOTION WAS MADE, AND GRANTED, AT THE HEARING TO CORRECT THE
DESIGNATION OF "8480TH" IN THE PLEADINGS TO "3480TH."
/7/ THE DATE OF OCTOBER 3, 1976 FOR THE PROMOTION ACTION WAS
ACKNOWLEDGED BY BOTH PARTIES. THE DATE OCTOBER 1979, SET FORTH IN
PARAGRAPH 4(B) OF THE COMPLAINT, IS AN OBVIOUS TYPOGRAPHICAL ERROR.
(GENERAL COUNSEL EX. 1(D)).
/8/ SECTION 21 OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDED AS
FOLLOWS:
SECTION. 21. ALLOTMENT OF DUES. (A) WHEN A LABOR ORGANIZATION HOLDS
EXCLUSIVE RECOGNITION, AND THE AGENCY AND THE ORGANIZATION AGREE IN
WRITING TO THIS COURSE OF ACTION, AN AGENCY MAY DEDUCT THE REGULAR AND
PERIODIC DUES OF THE ORGANIZATION FROM THE PAY OF MEMBERS OF THE
ORGANIZATION IN THE UNIT OF RECOGNITION TO MAKE A VOLUNTARY ALLOTMENT
FOR THAT PURPOSE. SUCH AN ALLOTMENT IS SUBJECT TO THE REGULATIONS OF
THE CIVIL SERVICE COMMISSION, WHICH SHALL INCLUDE PROVISION FOR THE
EMPLOYEE TO REVOKE HIS AUTHORIZATION AT STATED SIX-MONTH INTERVALS.
SUCH AN ALLOTMENT TERMINATES WHEN-- (1) THE DUES WITHHOLDING AGREEMENT
BETWEEN THE AGENCY AND THE LABOR ORGANIZATION IS TERMINATED OR CEASES TO
BE APPLICABLE TO THE EMPLOYEE; OR (2) THE EMPLOYEE HAS BEEN SUSPENDED
OR EXPELLED FROM THE LABOR ORGANIZATION.
/9/ 5 U.S.C. 7115, RELATING TO DUES ALLOTMENTS, READS IN PERTINENT
PART, AS FOLLOWS:
ALLOTMENTS TO REPRESENTATIVES
(A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
A WRITTEN ASSIGNMENT WHICH AUTHORIZES THE AGENCY TO DEDUCT FROM THE PAY
OF THE EMPLOYEE AMOUNTS FOR THE PAYMENT OF REGULAR AND PERIODIC DUES OF
THE EXCLUSIVE REPRESENTATIVE OF THE UNIT, THE AGENCY SHALL HONOR THE
ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE ASSIGNMENT.
ANY SUCH ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE
REPRESENTATIVE OR THE EMPLOYEE. EXCEPT AS PROVIDED UNDER SUBSECTION (B)
OF THIS SECTION, ANY SUCH ASSIGNMENT MAY NOT BE REVOKED FOR A PERIOD OF
1 YEAR.
(B) AN ALLOTMENT UNDER SUBSECTION (A) OF THIS SECTION FOR THE
DEDUCTION OF DUES WITH RESPECT TO ANY EMPLOYEE SHALL TERMINATE WHEN -
(1) THE AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE
INVOLVED CEASES TO BE APPLICABLE TO THE EMPLOYEE; OR
(2) THE EMPLOYEE IS SUSPENDED OR EXPELLED FROM MEMBERSHIP IN THE
EXCLUSIVE REPRESENTATIVE.
/10/ IT IS NOTED THAT NOT ONLY IS THE MEANING OF ARTICLE XXI, SECTION
6 OF THE AGREEMENT PRIMARILY INVOLVED, BUT RESPONDENT URGES THAT THE
UNION'S FAILURE TO COMPLY WITH ARTICLE XXI, SECTION 3-- "INFORMING AND
EDUCATING . . . MEMBERS ON THE PROGRAM FOR ALLOTMENTS FOR PAYMENT OF
DUES, AND THE USES AND AVAILABILITY OF THE REQUIRED FORMS"-- MADE IT
NECESSARY FOR THE ACTIVITY TO RESORT TO THE SELF-HELP. THE GENERAL
COUNSEL REPLIES THAT THE RESPONDENT'S FAILURE TO TERMINATE THE
EMPLOYEE'S ALLOTMENT PROMPTLY PURSUANT TO ARTICLE XXI, SECTION 5.A.1.
"SHOWS THAT ANY CLAIM MS. BROWN MAY HAVE HAD WAS COUCHED IN RESPONDENT'S
WRONGFUL ACTS AND NOT THOSE OF THE UNION." THUS, THE DISPUTE INVOLVES
MULTIPLE DIFFERING AND ARGUABLE INTERPRETATIONS OF THE AGREEMENT AS
DISTINGUISHED FROM ACTIONS WHICH WOULD CONSTITUTE FUNDAMENTAL CLEAR AND
UNILATERAL BREACHES OF THE AGREEMENT WHICH WOULD BE VIOLATIVE OF THE
STATUTE.