09:0409(49)CA - Dugway Proving Grounds, Dugway, UT and NFFE Local 1239 -- 1982 FLRAdec CA



[ v09 p409 ]
09:0409(49)CA
The decision of the Authority follows:


 9 FLRA No. 49
 
 DUGWAY PROVING GROUNDS
 DUGWAY, UTAH
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1239
 Charging Party
 
                                            Case No. 7-CA-442
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
 FINDS:
 
    THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1239 (UNION) IS
 THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF ALL NON-APPROPRIATED FUND
 GUARD EMPLOYEES AT DUGWAY PROVING GROUNDS, DUGWAY, UTAH (RESPONDENT).
 THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, IN EFFECT AT ALL TIMES
 MATERIAL, CONTAINED A PROVISION (ARTICLE XXIV) ENTITLED "ALLOTMENT OF
 DUES".  /1/
 
    IN SEPTEMBER 1979, PURSUANT TO A LETTER FROM NFFE PRESIDENT JAMES M.
 PEIRCE WHICH ADVISED UNION OFFICIALS TO ASSURE THAT NO SUPERVISORY
 PERSONNEL WERE ON DUES WITHHOLDING BECAUSE OF THE POSSIBILITY THAT
 AGENCIES WOULD ATTEMPT TO RECOUP ERRONEOUS OVERPAYMENTS, WAYNE
 RINDLISBACHER, THE PRESIDENT OF LOCAL 1239, CONTACTED AN OFFICIAL OF THE
 RESPONDENT AND REQUESTED THAT FIVE SUPERVISORS, BERT BARLOW, DARRELL
 COFFMAN, BUD COX, FARREN DUNCAN AND LAWRENCE FAUX, BE REMOVED FROM DUES
 WITHHOLDING STATUS.  ON OR BEFORE OCTOBER 13, 1979, THE RESPONDENT
 CEASED DEDUCTING DUES FOR BARLOW, COFFMAN AND COX.  /2/
 
    IN EARLY OCTOBER, COFFMAN REQUESTED THAT THE RESPONDENT REPAY HIM FOR
 THE DUES THAT HAD BEEN WITHHELD FOLLOWING HIS PROMOTION TO SUPERVISOR.
 THE RESPONDENT PAID COFFMAN'S CLAIM AND RECOUPED THIS PAYMENT IN TWO
 INSTALLMENTS (ON NOVEMBER 7 AND ON NOVEMBER 10) FROM THE DUES
 WITHHOLDING ALLOTMENT OWED TO THE UNION UNDER THE PARTIES' AGREEMENT.
 UPON DISCOVERING THE RESPONDENT'S FIRST RECOUPMENT ACTION, RINDLISBACHER
 PROTESTED TO THE INSTALLATION COMMANDER AND, SUBSEQUENTLY, ASKED TO BE
 NOTIFIED OF ANY FUTURE CLAIMS FOR REFUNDS BY SUPERVISORS.  WHEN
 RINDLISBACHER RECEIVED NOTICE OF AN ADDITIONAL CLAIM IN JANUARY 1980, HE
 SENT A LETTER TO THE INSTALLATION COMMANDER, DATED JANUARY 15,
 REQUESTING THAT NO ACTION BE TAKEN ON THAT CLAIM, THAT THE PRIOR
 RECOUPMENT ACTION BE RESCINDED, AND THAT THE RESPONDENT WAIVE ANY FUTURE
 CLAIMS.  ON JANUARY 28, FOLLOWING RECEIPT OF A REPLY FROM THE
 INSTALLATION COMMANDER INDICATING THAT FUTURE CLAIMS FOR REIMBURSEMENT
 SUBMITTED BY SUPERVISORS WOULD BE PROCESSED, RINDLISBACHER REQUESTED
 THAT THE RESPONDENT PRESENT THE ISSUE OF DUES WITHHOLDING TO THE GENERAL
 ACCOUNTING OFFICE FOR RESOLUTION.  /3/ DURING THE NEXT TWO MONTHS, THE
 RESPONDENT MADE FOUR MORE RECOUPMENTS WITH RESPECT TO CLAIMS FILED BY
 THE OTHER TWO SUPERVISORS, COX AND BARLOW.
 
    THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE WHICH LED TO THE
 ISSUANCE OF A COMPLAINT ALLEGING THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) OF THE STATUTE /4/ WHEN IT FAILED TO HONOR DUES
 ASSIGNMENTS RECEIVED FROM EMPLOYEES AND TO REMIT APPROPRIATE ALLOTMENTS
 TO THE UNION AS REQUIRED BY SECTION 7115(A).  /5/ THE COMPLAINT FURTHER
 ALLEGED THAT BY DEDUCTING AMOUNTS FROM UNION DUES WITHHOLDING ALLOTMENTS
 PAYABLE TO THE UNION UNDER THE TERMS OF THE COLLECTIVE BARGAINING
 AGREEMENT, THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE
 STATUTE.
 
    IN DEPARTMENT OF THE AIR FORCE, 3480TH AIR BASE GROUP, GOODFELLOW AIR
 FORCE BASE, TEXAS, 9 FLRA NO. 48 (1982), THE AUTHORITY HELD THAT
 MANAGEMENT DID NOT COMMIT AN UNFAIR LABOR PRACTICE EITHER BY
 DISCONTINUING DUES WITHHOLDING ON BEHALF OF AN INDIVIDUAL WHO HAD BEEN
 PROMOTED TO A SUPERVISORY POSITION OR BY DEDUCTING FROM A DUES ALLOTMENT
 CHECK REMITTED TO THE UNION PURSUANT TO THE PARTIES' AGREEMENT THE
 AMOUNT OF DUES PREVIOUSLY WITHHELD FROM THAT INDIVIDUAL'S WAGES AND
 SUBMITTED TO THE UNION AFTER THAT INDIVIDUAL HAD BECOME A SUPERVISOR.
 ACCORDINGLY, FOR THE REASONS STATED IN THAT DECISION, THE AUTHORITY
 CONCLUDES THAT THE SECTION 7116(A)(1), (5) AND (8) COMPLAINT HEREIN
 LIKEWISE MUST BE DISMISSED.  /6/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-442 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
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTIONS 5 AND 6 OF ARTICLE XXIV STATE:
 
    SECTION 5.  THE EMPLOYER AGREES TO TRANSMIT THE FOLLOWING TO THE
 TREASURER, NFFE LOCAL
 
    1239, BLDG. 5438, DUGWAY, UTAH 84022, THREE (3) WORKING DAYS
 FOLLOWING THE DAY ON WHICH
 
    RELATED SALARIES WERE PAID TO THE EMPLOYEE:
 
    A.  LISTING OF DUES ALLOTMENT BY UNION, EMPLOYEE'S NAME AND PAYROLL
 NUMBER, AND AMOUNTS OF
 
    DUES DEDUCTED, AND TOTAL DEDUCTIONS BY NUMBER AND AMOUNT.
 
    B.  A CHECK DRAWN ON THE TREASURER OF THE UNITED STATES MADE PAYABLE
 TO THE UNION IN THE
 
    AMOUNT EQUAL TO THE TOTAL DEDUCTIONS, LESS EXPENSES INCURRED BY THE
 GOVERNMENT IN EFFECTING
 
    DUES DEDUCTIONS, IN THE AMOUNT OF FIVE (5) CENTS FOR EACH DEDUCTION.
 
    SECTION 6.  AN ALLOTMENT SHALL BE TERMINATED WHEN THE EMPLOYEE LEAVES
 THE UNION AS A RESULT
 
    OF ANY TYPE OF SEPARATION, TRANSFER, OR OTHER PERSONNEL ACTION
 (EXCEPT TEMPORARY PROMOTION OR
 
    DETAIL);  UPON LOSS OF EXCLUSIVE RECOGNITION BY THE UNION;  WHEN THIS
 AGREEMENT PROVIDING FOR
 
    DUES WITHHOLDING IS SUSPENDED OR TERMINATED BY AN APPROPRIATE
 AUTHORITY OUTSIDE DOD
 
    (DEPARTMENT OF DEFENSE);  OR WHEN THE EMPLOYEE HAS BEEN SUSPENDED OR
 EXPELLED FROM THE UNION.
 
    /2/ HOWEVER, DUES DEDUCTIONS CONTINUED FOR SUPERVISORS DUNCAN AND
 FAUX WHO HAD BEEN ON DUES WITHHOLDING PRIOR TO THE EFFECTIVE DATE OF
 EXECUTIVE ORDER 11491, AND ACCORDINGLY HAD BEEN "GRANDFATHERED" IN BY
 PROVISIONS THEREOF.  THE RESPONDENT'S ACTIONS WITH RESPECT TO DUNCAN AND
 FAUX ARE NOT AT ISSUE HEREIN.
 
    /3/ AS INDICATED INFRA, THE COMPTROLLER GENERAL SUBSEQUENTLY ISSUED A
 DECISION ON THE MATTER.
 
    /4/ 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.
 
    /5/ SECTION 7115(A) 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.
 
    /6/ HOWEVER, THE UNION HAD RECOURSE TO OTHER PROCEDURES REGARDING THE
 RESTITUTION OF FUNDS DEDUCTED BY THE RESPONDENT, AND IN FACT EXERCISED
 SUCH RIGHTS SUCCESSFULLY.  THUS, IN NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1239, CASE NO. B-201817 (JAN.27, 1982), THE COMPTROLLER
 GENERAL RULED THAT, UNDER 5 U.S.C. 5584, THE UNION WAS ENTITLED TO
 REQUEST A WAIVER OF THE GOVERNMENT'S CLAIM ARISING OUT OF THE ERRONEOUS
 TRANSMITTAL OF VOLUNTARY DUE