16:1124(146)CA NAGE, LOCAL R1-144 VS NAVY -- 1984 FLRAdec CA



[ v16 p1124 ]
16:1124(146)CA
The decision of the Authority follows:


16 FLRA NO. 146

DEPARTMENT OF THE NAVY
NAVAL UNDERWATER SYSTEMS CENTER
NEWPORT, RHODE ISLAND

     Respondent

     and

FEDERAL UNION FOR SCIENTISTS AND ENGINEERS/
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-144

     Charging Party

Case No. 1-CA-354

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, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds:

The second amended complaint herein alleges that the Naval Underwater Systems Center (the Respondent) violated section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) 1 [ v16 p1124 ] when it failed to comply with the provisions of section 7115 of the Statute 2 by failing and/or refusing to make an appropriate allotment of dues to the Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144 (the Union) pursuant to written dues assignments of employees John Sullivan, George Anderson, Armand Bergeron and Fred Nussbaum.

At all times material herein, the Union has been the exclusive bargaining representative for a unit of the Respondent's non-supervisory professional employees. On or about November 19, 1979, the Respondent identified, among others, Anderson and Sullivan as being subject to the merit pay provisions of Title V of the Civil Service Reform Act of 1978. 3 On March 17, 1980, the Respondent and the Union jointly filed a clarification of unit (CU) petition to determine whether, inter alia, the two employees should be in or excluded from the bargaining unit represented by the Union. The parties now stipulate that Anderson was in the unit at all times material herein. Further, there is nothing in the record to indicate that Sullivan also was not in the unit at the time Respondent declined to honor his written dues assignment. During the hearing concerning the CU petition, the parties withdrew from consideration the position occupied by Sullivan because he had been reassigned to a supervisory position on April 5, 1981. The Authority [ v16 p1125 ] issued its Decision and Order Clarifying Unit on June 1, 1982, finding that the position occupied by Anderson was included in the bargaining unit. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 9 FLRA 30 (1982).

Sullivan and Anderson executed written dues assignments on April 4 and April 9, 1980, respectively, which the Respondent refused to honor. If the dues assignments had been honored, they would have been effective with the payroll period ending April 1, 1980. Effective with the payroll period ending November 28, 1982, the Respondent commenced allotment of dues to the Union pursuant to the dues assignment of Anderson.

The Respondent stipulated that its refusal to honor dues assignments of Sullivan and Anderson was "inconsistent with the requirements of (section) 7115(a) and thereby constituted a violation of (section) 7116(a)(1) and (8) ... but denies any liability to reimburse the Union...." As Noted, section 7115(a) requires an agency to honor a valid written dues assignment from an employee in an appropriate unit. As noted above, the subject employees were in the unit at the time Respondent refused to honor the dues assignments. The pendency of a petition filed to question the continued unit status of employees cannot negate management's obligation under section 7115(a) to honor valid assignments from their effective date.

Section 7115 of the Statute authorizes an agency to deduct dues for an employee "in an appropriate unit" and provides that any such allotment terminates when agreement between the agency and the exclusive representative involved "ceases to be applicable." Thus, the Authority has held that it is not an unfair labor practice for an agency to terminate the dues allotment of an employee no longer in the unit. Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981), rev'd as to other matters sub nom. Internal Revenue Service, Fresno Service Center, Fresno, California v. Federal Labor Relations Authority, 706 F.2d 1019 (9th Cir. 1983). However, the agency acts at its own peril by removing an employee from a bargaining unit on the basis that the employee is a supervisor or management official for merit pay purposes. Interpretation and Guidance, 4 FLRA 754, 757 (1980). In the circumstances of this case, the record reveals that Sullivan was not assigned to a supervisory position out of the unit until April 1981 and that Anderson was in the unit at all times. Thus, Respondent failed to honor the dues assignments of these employees while they were in the unit.

The Authority finds that, based on the stipulation, the only issue to be resolved herein involves the Respondent's refusal to honor dues assignments for Sullivan and Anderson. Thus, it appears from the stipulation and the entire record, including the briefs of the parties, that the Respondent's termination of dues allotments pursuant to the dues withholding assignments of Nussbaum and Bergeron was concededly inconsistent with the requirements of section 7115(a) of the Statute and that the Respondent therefore is obligated to reimburse the Union for the dues

[ v16 p1126 ] it would have received but did not receive for the payroll periods between May 17, 1980, when the dues allotments were improperly terminated and November 28, 1982, when the allotments were reinstated.

In view of the foregoing, and the Respondent's stipulation, the Authority finds the Respondent violated section 7116(a)(1) and (8) when it failed to comply with the requirement of section 7115(a) to honor the assignments from employees in an appropriate unit and make appropriate allotments pursuant to the assignments. Therefore, the only issue remaining to be decided is the remedy.

As has been stated previously by the Authority and conceded by the Respondent, the remedy for such failure to comply with section 7115(a) properly includes a requirement that the Respondent reimburse the Union for the dues it would have received but did as a result of the unlawful conduct. To remedy the section 7116(a)(1) and (8) violation, the Authority shall include in its order a requirement that such reimbursement be made to the extent it has not already been done. National Archives and Records Service and National Archives Trust Board, General Services Administration, Washington, D.C., 9 FLRA 413 (1982); Defense Logistics Agency et al., 5 FLRA 126 (1981).

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that the Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, shall:

1. Cease and desist from:

(a) Refusing to comply with the provisions of section 7115(a) of the Federal Service Labor - Management Relations Statute by refusing to accept and honor valid written dues assignments from John Sullivan and George Anderson, by improperly terminating valid written dues assignments of Armand Bergeron and Fred Nussbaum, or by similarly treating valid written dues assignments for the payment of regular and periodic dues by any other unit employees to Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144, or any other exclusive representative.

(b) Interfering with, restraining, or coercing unit employees by refusing to accept and honor valid written dues assignments from John Sullivan and George Anderson, by improperly terminating valid written dues assignments of Armand Bergeron and Fred Nussbaum, or by similarly treating valid written dues assignments for the payment of regular and periodic dues by any other unit employees to Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144, or any other exclusive representative. [ v16 p1127 ]

(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

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

(a) Reimburse the exclusive representative, Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144, in an amount equal to the regular and periodic dues it would have received from the pay of John Sullivan and George Anderson but did not receive as a result of the unlawful refusal to honor the employees' valid written dues assignments for such purpose, and reimburse the Union in an amount equal to the regular and periodic dues it would have received from the pay of Armand Bergeron and Fred Nussbaum but did not receive as a result of the unlawful termination of their valid written dues assignments 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 any unit employee who makes voluntary assignments for such purpose, and make an appropriate allotment of such dues to the exclusive representative, Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144.

(c) Post at the Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 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 a responsible official of Respondent 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 I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps h ave been taken to comply herewith.

Issued, Washington, D.C., December 27, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v16 p1128 ]

                      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(a) of the Federal Service Labor - Management Relations Statute by refusing to accept and honor valid written dues assignments from John Sullivan and George Anderson, by improperly terminating valid written dues assignments of Armand Bergeron and Fred Nussbaum, or by similarly treating valid written dues assignments for the payment of regular and periodic dues by any other unit employees to Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144, or any other exclusive representative.

WE WILL NOT interfere with, restrain, or coerce our employees by refusing to accept and honor valid written dues assignments from John Sullivan and George Anderson, by improperly terminating valid written dues assignments of Armand Bergeron and Fred Nussbaum, or by similarly treating valid written dues assignments for the payment of regular and periodic dues by any other unit employees to Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144, or any other 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 by the Federal Service Labor - Management Relations Statute.

WE WILL reimburse the exclusive representative, Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144, in an amount equal to the regular and periodic dues it would have received from the pay of John Sullivan and George Anderson but did not receive as a result of our unlawful refusal to honor the employees' valid written dues assignments for such purpose, and reimburse the Union in an amount equal to the regular and periodic dues it would have received from the pay of Armand Bergeron and Fred Nussbaum but did not receive as a result of our unlawful termination of the valid written dues assignments for such purpose. [ v16 p1129 ]

WE WILL deduct regular and periodic dues from the pay of any unit employee who makes voluntary assignments for such purpose, and make an appropriate allotment of such dues to the exclusive representative, Federal Union for Scientists and Engineers/National Association of Government Employees, Local R1-144.

                                     __________________________
                                              (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 wit