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31 FLRA No. 54

LOWRY AIR FORCE BASE,
DENVER, COLORADO

         Respondent

    and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1974

         Charging Party

Case No. 7-CA-70181

DECISION AND ORDER 
I. Statement of the Case 
This unfair labor practice case is before the Authority in accordance with 
section 2429.1(a) of our Rules and Regulations based on the parties' stipulation 
of facts. The complaint alleges that the Respondent violated section 7116(a) (1) 
and (8) of the Federal Service Labor - Management Relations Statute (the 
Statute) in recouping prior incorrect payments of dues to the Charging Party 
(the Union) by deducting the amount of the incorrect payments from later dues 
payments. The Respondent filed a brief. The General Counsel's brief was filed 
untimely and was not considered. 
We conclude that the Respondent violated the Statute as alleged. We reach 
this conclusion based on the reasoning and conclusions of three U.S. courts of 
appeals. We will no longer follow decisions of the Authority to the contrary. 

II. Facts 
For a number of pay periods, the Respondent deducted from employee Herman 
Kramer's pay monies equivalent to union dues in a total amount greater than 
$129. These monies were remitted to the Union. Kramer was not eligible to have 
union dues withheld from his pay pursuant to the parties' collective bargaining 
agreement because Kramer was not a member of the bargaining unit represented by 
the Union. The deduction of monies was due to an administrative error on the 
part of the Respondent. [PAGE] 
In November 1986, the Respondent reduced the monies payable to the Union from 
the regular and periodic dues withheld from the pay of unit employees by the 
amount of $129.00. This money was remitted to Kramer. The reduction of the 
remittance to the Union was accomplished without the consent or agreement of the 
Union. 
III. Position of the Respondent 
The Respondent argues that a recoupment of dues erroneously remitted to an 
exclusive representative by deducting the previous overpayment from a subsequent 
remittance of dues for current members does not violate the Statute. 
IV. Discussion 
This case presents the opportunity for us to reexamine the issue of whether 
an agency violates the Statute in recouping overpayments of union dues 
previously remitted to an exclusive representative by deducting such 
overpayments from subsequent remittances. 
A. Relevant Provisions of the Statute 
Section 7115 of the Statute pertains to allotments to exclusive 
representatives and is relevant to this issue. Section 7115(a) and (b) provide 
as follows: 
(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 [ v31 p2 ] 
(2) the employee is suspended or expelled from membership in the exclusive 
representative. 
B. Current Case Law 
In Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force 
Base, Texas, 9 FLRA 394 (1982) (Goodfellow AFB), the Authority adopted the 
Judge's finding that the agency had not violated the Statute in recouping from 
the union an amount of dues erroneously forwarded to the union on previous 
occasions. The agency had deducted from a dues allotment check remitted to the 
union an amount that the agency had reimbursed an employee who had dues 
improperly withheld from her salary and forwarded to the union after she had 
been promoted to a supervisory position. The Authority noted that section 
7115(b) requires dues withholding authorizations to terminate when an employee 
has been promoted to a supervisory position outside the unit. Consequently, the 
Authority held that an agency's correction of an administrative error in order 
to comply with the statutory mandate did not violate the Statute. 9 FLRA at 396. 

On the basis of Goodfellow AFB, the Authority in Department of the Air Force, 
Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983) (Griffiss AFB), 
reversed the Judge's finding that a recoupment of dues erroneously paid 
previously violated the Statute. A number of employees had been subjected to 
erroneous withholding of dues either because they had never been in the 
bargaining unit represented by the union or had dues withheld after they had 
been promoted out of the unit. The agency had withheld monies from current union 
dues allotments of unit employees and disbursed the monies to the employees who 
had been subjected to the erroneous withholdings. 
Both Goodfellow AFB and Griffiss AFB were reversed and remanded by U.S. 
courts of appeals. 
Goodfellow AFB was reversed by the U.S. Court of Appeals for the Fifth 
Circuit in American Federation of Government Employees Local 1816 v. FLRA, 715 
F.2d 224 (5th Cir. 1983). The court concluded that "(n)othing in the plain 
language of 7115 or its legislative history justifies (the agency's) resort to a 
'self-help' method of recoupment." 715 F.2d at 228. The court held that 
"(s)ection 7115(a) instead imposes an affirmative duty on a federal agency to 
honor the current assignments of unit employees by remitting regular and 
periodic dues deducted from their accrued salaries to their exclusive 
representatives." Id. Accordingly, the [ v31 p3 ] court held that the agency's 
action in recouping dues violated section 7116(a)(1) and (8) of the Statute. Id. 

Griffiss AFB was reversed by the U.S. Court of Appeals for the Second Circuit 
in American Federation of Government Employees Local 2612 v. FLRA, 739 F.2d 87 
(2d Cir. 1984). The court ruled that "Congress fashioned section 7115(a) so that 
an agency's obligation to honor dues checkoff authorizations is mandatory and 
nondiscretionary." 739 F.2d at 89. The court explained that under the clear and 
specific language of section 7115(a), unit employees who assign a portion of 
their wages for payment of union dues have the right to expect that the money 
will be used for that purpose. Id. at 90. Accordingly, the court held that the 
agency's action in recouping dues did not comply with section 7115(a) and 
violated section 7116(a)(8) of the Statute. 
The Authority issued supplemental decisions accepting the court decisions as 
"the law of the case." Department of the Air Force, Griffiss Air Force Base 
Rome, New York, 15 FLRA 1032 (1984); Department of the Air Force, 3480th Air 
Base Group, Goodfellow Air Force Base, Texas, 14 FLRA 795 (1984). 
In Department of the Air Force, Headquarters, Air Force Logistics command, 
Wright - Patterson Air Force Base Ohio, 23 FLRA 376 (1986) (Wright - Patterson 
AFB), the Authority adopted the Judge's finding that the agency had not violated 
the Statute in recouping overpayments of union dues previously remitted to the 
exclusive representative by deducting the overpayments from subsequent 
remittances. The Authority noted its consistent holdings that an agency's 
recoupment of dues by deducting previous incorrect payments from subsequent 
remittances of dues for current members is consistent with section 7115 of the 
Statute and does not violate section 7116(a)(1) or (8) of the Statute. The 
Authority stated that it would continue to follow this precedent and 
respectfully disagreed with the views of the U.S. Courts of Appeals for the 
Second and Fifth Circuits. 23 FLRA at 379-80. 
Wright - Patterson AFB was reversed by the U.S. Court of Appeals for the D.C. 
Circuit in American Federation of Government Employees Council 214 v. FLRA, No. 
86-1631 (D.C. Cir. Dec. 29, 1987). The court interpreted section 7115 "as 
imposing an absolute duty on the employer to turn over to the union all funds 
deducted." Slip op. at 4. The court agreed with the U.S. Court of Appeals for 
the Second Circuit that an agency's obligation to honor an employee's dues 
checkoff is mandatory and nondiscretionary. The court held that under section 
7115, an agency is authorized only to allot, not to [ v31 p4 ] set off. Id. at 
4-5. Accordingly, the court reversed the Authority's decision. 
C. Application of Section 7115 and Approach To Be Followed On Agency 
Recoupment of Dues Payments 
On reexamination of prior Authority decisions, and based on the reasoning and 
conclusions of the U.S. courts of appeals, we now hold that an agency violates 
the Statute in reducing a current remittance to an exclusive representative of 
union dues in order to recoup a previous erroneous payment. Previous decisions 
of the Authority to the contrary will no longer be followed. 
In this and future cases, we will interpret section 7115 of the Statute to 
impose an absolute duty on agencies to honor the current assignments of unit 
employees by remitting regular and periodic dues deducted from their accrued 
salaries to their exclusive representatives. Therefore, under section 7115, an 
agency is authorized only to allot dues, not to set off. Consistent with these 
requirements, we will find recoupment of prior erroneous payments from a 
subsequent remittance of dues to violate section 7116(a)(1) and (8) of the 
Statute. 
The courts specifically did not decide whether an agency has a claim against 
an exclusive representative for erroneous overpayments which may be pursued by 
other means. AFGE Local 2618, 739 F.2d 87, 90 n.1; AFGE Council 214, slip op. at 
7. We likewise express no view on what other actions, if any, an agency may take 
to recover amounts claimed to have been improperly remitted previously as dues 
to an exclusive representative. 
V. Conclusion 
We conclude that the Respondent failed to comply with section 7115 of the 
Statute in reducing the monies payable to the Union from the regular and 
periodic dues withheld from the pay of unit employees by the amount of $129. 
Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (8) 
of the Statute and we will order an appropriate remedy. 
ORDER 
Pursuant to section 2423.29 of the Authority's Rules and Regulations and 
section 7118 of the Statute, we order that Lowry Air Force Base, Denver, 
Colorado, shall: [ v31 p5 ] 
1. Cease and desist from: 
(a) Refusing to comply with the provisions of section 7115 of the Statute by 
failing to remit the regular and periodic dues deducted from unit employee 
salaries to the exclusive representative. 
(b) In any like or related manner, interfering with, restraining, or coercing 
its employees in the exercise of the rights assured them by the Statute. 
2. Take the following affirmative action in order to effectuate the purposes 
and policies of the Statute: 
(a) Reimburse the American Federation of Government Employees, AFL - CIO, 
Local 1974, the exclusive representative of a unit of its employees, the sum of 
$129, the amount equal to the regular and periodic dues it would have received 
from the pay of employees, but did not receive as a result of the unlawful 
withholding of such monies in order to recoup a prior erroneous overpayment. 

(b) Post at all its facilities where bargaining unit employees represented by 
the American Federation of Government Employees, AFL - CIO, Local 1974 are 
located, copies of the attached Notice on forms to be furnished by the Federal 
Labor Relations Authority. Upon receipt of such forms, they shall be signed by 
the Commanding Officer, Lowry Air Force, Denver, Colorado, and shall be posted 
in conspicuous places, including all bulletin boards and other places where 
notices to employees are customarily posted, and shall be maintained for 60 
consecutive days thereafter. Reasonable steps shall be taken to ensure that such 
notices are not altered, defaced, or covered by any other material. 
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, 
notify the Regional Director, Region VII, Federal Labor Relations Authority, in 
writing, within 30 days from the date of this Order as to what steps have been 
taken to comply. 
Issued, Washington, D.C. March 15, 1988 
Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p6 ] 
                   NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
            AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to comply with the provisions of section 7115 of the 
Statute by failing to remit the regular and periodic dues deducted from unit 
employee salaries to their exclusive representative. 
WE WILL NOT, in any like or related manner, interfere with, restrain, or 
coerce our employees in the exercise of their rights assured them by the Federal 
Service Labor - Management Relations Statute. 
WE WILL reimburse the American Federation of Government Employees, AFL - CIO, 
Local 1974, the exclusive representative of a unit of our employees, the sum of 
$129, the amount equal to the regular and periodic dues it would have received 
from the pay of employees, but did not receive as a result of our unlawful 
withholding of such monies in order to recoup a prior erroneous overpayment. 

                               ____________________________
                                      (Activity)

Dated: ___________________ By: ____________________________
                                 (Signature)  (Title)

This Notice must remain posted for 60 consecutive days from the date of 
posting, and must not be altered, defaced, or covered by any other material. 

If employees have any questions concerning this Notice or compliance with its 
provisions, they may communicate directly with the Regional Director, Region 
VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 
310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. 
[PAGE] 

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