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 LABO