09:0413(50)NG AFGE, LOCAL 2578 VS GSA -- 1982 FLRAdec NG



[ v09 p413 ]
09:0413(50)NG
The decision of the Authority follows:


 9 FLRA NO. 50

NATIONAL ARCHIVES AND RECORDS SERVICE
AND NATIONAL ARCHIVES TRUST BOARD,
GENERAL SERVICES ADMINISTRATION
WASHINGTON, D.C.,

Respondent

and

LOCAL 2578, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO

                   Charging Party

Case Nos. 3-CA-1043
3-CA-1048

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Cases 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, the General Counsel, and the Charging Party, the Authority finds:

At all times material herein, the American Federation of Government Employees, Local 2578, AFL - CIO (the Union) has been the exclusive representative of a unit consisting of all professional and nonprofessional employees in the National Archives and Records Service and the National Archives Trust Board (the Respondent), and the parties have had a collective bargaining agreement covering the unit employees which contained, inter alia, a provision (Article XX) entitled "Dues Withholding." 1 [ v9 p413 ]

In Case No. 3-CA-1043, two bargaining unit employees who had authorized the deduction of union dues from their paychecks were transferred out of the unit but did not revoke their dues withholding authorizations. The Respondent continued to withhold union dues on their behalf until December 20, 1979 (a period of 15 months in one case and 10 months in the other), when the Respondent's Personnel Officer notified the payroll branch by memorandum to terminate dues checkoff for these employees retroactive to the dates of their transfers and to refund to them all deductions made after their transfer dates. Thereafter, although the Union notified the Respondent of its position that refunds to employees were caused by management's error and therefore should be charged to the Respondent rather than the Union, the Respondent deducted from a subsequent dues allotment submitted to the Union an amount sufficient to offset what had been refunded to the two employees.

Three other employees had timely submitted revocation of dues forms (SF 1188s) to the Respondent to be effective on the first pay period after September 1, 1979, the next "open" period provided for in the parties' negotiated agreement. However, the Respondent failed to process the forms until December 20, 1979, at which time it refunded to the employees their payments retroactive to September 1, 1979 and withheld sufficient funds from a subsequent dues allotment submitted to the Union so as to offset the money refunded to these employees.

The complaint in Case No. 3-CA-1043 alleges that, by the [ v9 p414 ] foregoing conduct, the Respondent interfered with the Union's rights and duties under section 7115 of the Statute 2 in violation of section 7116(a)(1), (5) and (8). 3 The Authority Disagrees. 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 out of the unit 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 [ v9 p415 ] and submitted to the union after the 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 in Case No. 3-CA-1043 must be dismissed. See also Dugway Proving Grounds, Dugway, Utah, 9 FLRA No. 49 (1982). 4

In Case No. 3-CA-1048, the Respondent notified the Union on October 11, 1979, that an employee, Richard Sheldon, was being removed from union dues withholding because he had become a supervisor. It is conceded that Sheldon was not a supervisor but rather remained a bargaining unit employee at all times material herein, and that he had not executed a revocation of his voluntary authorization for dues withholding. Nevertheless, the Respondent removed Sheldon from dues withholding in or about November 1979, and thereafter has refused to restore Sheldon's dues withholding authorization or to pay the Union an amount equal to the dues that would have been received if Sheldon had not been removed from checkoff.

The complaint in Case No. 3-CA-1048 alleges that, by such conduct, the Respondent interfered with the Union's rights under section 7115 and violated section 7116(a)(1), (5) and (8) of the Statute. The Authority agrees. The Respondent's continued refusal [ v9 p416 ] to honor the employee's voluntary written authorization to have periodic dues deducted from his wages and paid to his exclusive representative constitutes noncompliance with section 7115(a) of the Statute and, therefore, a violation of section 7116(a)(1) and (8). Defense Logistics Agency, 5 FLRA No. 21 (1981). 5 Accordingly, the Authority shall order the Respondent to honor employee Sheldon's dues withholding authorization and to reimburse the Union in an amount equal to the dues that the Union would have received but did not receive as a result of the unlawful refusal to honor Sheldon's valid dues withholding authorization.

ORDER

(Case No. 3-CA-1048)

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that the National Archives and Records Service and National Archives Trust Board, General Services Administration, Washington, D.C., shall:

1. Cease and desist from:

(a) Refusing to comply with the provisions of section 7115 of the Federal Service Labor - Management Relations Statute by refusing to honor a valid written assignment from Richard Sheldon, or any other unit employee, for the payment of regular and periodic dues to American Federation of Government Employees, Local 2578, AFL - CIO, or any other exclusive representative.

(b) Interfering with, restraining, or coercing unit employees by refusing to honor and accept a valid written assignment from Richard Sheldon, or any other unit employee, for the payment of regular and periodic dues to American Federation of Government Employees, Local 2578, AFL - CIO, or any other exclusive representative.

(c) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of any right assured by the Statute. [ v9 p417 ]

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Reimburse the exclusive representative, American Federation of Government Employees, Local 2578, AFL - CIO, in an amount equal to the regular and periodic dues it would have received from the pay of Richard Sheldon but did not receive as a result of the unlawful refusal to honor his valid written allotment for such purpose.

(b) Commencing with the first pay period after the date of this Order, deduct regular and periodic dues from the pay of Richard Sheldon and remit such dues to the exclusive representative, American Federation of Government Employees, Local 2578, AFL - CIO.

(c) Post at its facilities in Washington, D.C., 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 Archivist of the United States and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

IT IS FURTHER ORDERED that the complaint in Case No. 3-CA-1043 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 [ v9 p418 ]

                       NOTICE TO ALL EMPLOYEES
                             PURSUANT TO
                     A DECISION AND ORDER OF THE
                  FEDERAL LABOR RELATIONS AUTHORITY
             AND IN ORDER TO EFFECTUATE THE POLICIES OF
                     CHAPTER 71 OF TITLE 5 OF THE
                          UNITED STATES CODE
              FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
                 WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to comply with the provisions of section 7115 of the Federal Service Labor - Management Relations Statute by refusing to honor a valid written assignment from Richard Sheldon, or any other unit employee, for the payment of regular and periodic dues to American Federation of Government Employees, Local 2578, AFL - CIO, or any other exclusive representative.

WE WILL NOT interfere with, restrain, or coerce unit employees by refusing to honor and accept a valid written assignment from Richard Sheldon, or any other unit employee, for the payment of regular and periodic dues to American Federation of Government Employees, Local 2578, AFL - CIO, or any other exclusive representative.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of any right assured by the Statute.

WE WILL reimburse the exclusive representative, American Federation of Government Employees, Local 2578, AFL - CIO, in an amount equal to the regular and periodic dues it would have received from the pay of Richard Sheldon but did not receive as a result of the unlawful refusal to honor his valid written allotment for such purpose.

WE WILL, commencing with the first pay period after the date of this Order, deduct regular and periodic dues from the pay of Richard [ v9 p419 ] Sheldon and remit such dues to the exclusive representative, American Federation of Government Employees, Local 2578, AFL - CIO.

                            ______________________________
                                 (Agency or Activity)

Dated: ________________ By: ______________________________
                                      (Signature)

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 question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, N.W., Suite 700, Washington, D.C. 20036 and whose telephone number is (202) 653-8452. [ v9 p420 ]

FOOTNOTES

Footnote 1 Section 5, Revocation of Dues Withholding Authorization, provides in part: b. Management shall terminate the allotment of an employee when the employee leaves the Unit 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 labor organization; or when the employee has been suspended or expelled from the labor organization. c. An employee may request at any time his dues withholding be discontinued by completing SF 1188, Revocation of Voluntary Authorization for Allotment of Compensation for Payment of Employee Organization Dues, and forwarding it to BPON. A signed Privacy Act notice must accompany the form. Such a request will not be effective until the first full pay period following either March 1 or September 1, whichever is earlier, provided the SF 1188 is received no later than 2 weeks before the above dates. The GSA Office of Finance will notify the Union of the names of those employees whose allotments have been revoked.

Footnote 2 Section 7115(a) and (b) of the Statute provides: 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.

Footnote 3 Section 7116(a)(1), (5) and (8) of the Statute provides: 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.

Footnote 4 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 restitution 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 age