23:0376(54)CA - Air Force HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1986 FLRAdec CA



[ v23 p376 ]
23:0376(54)CA
The decision of the Authority follows:


 23 FLRA No. 54
 
 DEPARTMENT OF THE AIR FORCE
 HEADQUARTERS, AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, COUNCIL 214, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-50046
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    In this unfair labor practice case, the Administrative Law Judge
 dismissed the General Counsel's complaint alleging that the Respondent
 committed an unfair labor practice under section 7116(a)(1) and (8) of
 the Federal Service Labor-Management Relations Statute (the Statute).
 The General Counsel asserted that the Respondent violated section
 7115(a) of the Statute in recouping overpayments of union dues
 previously remitted by the Respondent to the Charging Party (the Union)
 by deducting such overpayments from subsequent remittances.  The Judge
 found that the Respondent properly recouped the overpayment of dues, on
 behalf of former unit employees who had been promoted to supervisory
 positions, by using the set-off method.
 
    The case is now before the Authority on the General Counsel's
 exceptions to the Judge's Decision.  Both the General Counsel and the
 Respondent have filed briefs in support of their opposing positions.
 
                              II.  Background
 
    In 1978 and again in 1982, the Respondent in this case entered into
 master labor agreements with the Union.  Both agreements provided that
 "(a)dministrative errors in remittance checks (to the Union) and/or
 improper deductions will be corrected by the (Respondent) and adjusted
 in the next remittance check to be issued to the Union local." An
 official of the Respondent charged with effecting these adjustments at
 the Wright-Patterson Air Force Base in Ohio testified that, in practice,
 payroll transactions and adjustments are processed by computer upon
 receipt of a Standard Form 50 for each change in employment status, and
 that such adjustments were made during a subsequent pay period.  He
 testified further that underpayments and overpayments of dues were
 corrected as a matter of course by adding to or subtracting from the
 amount remitted to the Union during any given pay period, and that he
 undertook this method of adjustment, in reliance on the master labor
 agreements' provision quoted above, since at least as early as August of
 1981.
 
    For pay periods ending on June 23, 1984, September 15, 1984,
 September 22, 1984 and September 29, 1984, the Respondent deducted from
 the amount allotted and remitted to the Union a total of $220.50,
 representing dues allotments withheld erroneously in the past from the
 salaries of unit employees who had once authorized such allotments but
 later became ineligible to do so when they were promoted to supervisory
 positions.  The Respondent then reimbursed the supervisors for the
 amount of dues erroneously withheld from their salaries.  This
 proceeding before the Authority ensued.
 
              III.  Decision of the Administrative Law Judge
 
    In finding the Respondent's dues recoupment procedure to be lawful,
 the Judge discounted the General Counsel's contention that it violated
 section 7115(a) of the Statute under the Authority's supplemental
 decisions in Department of the Air Force, Griffiss Air Force Base, Rome,
 New York (Griffiss), 15 FLRA 1032 (1984), and Department of the Air
 Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas
 (Goodfellow), 14 FLRA 795 (1984).  The Judge noted that those decisions
 were rendered on reversal and remand from the U.S. Courts of Appeals for
 the Second and Fifth Circuits, /1/ and that the Authority's language in
 the supplemental decisions indicated that it simply "accepted" the
 Court's decision in each case as "the law of the case." 14 FLRA at 796;
 15 FLRA at 1033.  The Judge found that the Authority had not altered its
 own original interpretation of the Statute in issuing the two decisions
 on remand because they contained no implication that the Authority was
 doing so.  He therefore concluded that the Respondent's method of
 recouping erroneously allotted union dues did not violate the Statute
 under existing Authority precedent.
 
                       IV.  Positions of the Parties
 
    The General Counsel contends in its brief that the Judge should have
 found that the Authority's supplemental decisions on remand in Griffiss
 and Goodfellow did indeed alter the Authority's position on the
 lawfulness of the agencies' method of dues recoupment under section
 7115(a) of the Statute.  The General Counsel argues that the Authority
 made it clear in the Griffiss and Goodfellow supplemental decisions that
 an agency may not recoup erroneously withheld union dues of former unit
 members by deducting overpayments from union dues allotments for current
 unit members, and then reimbursing the former unit members whose dues
 had been incorrectly withheld.
 
    The General Counsel maintains further that, as the Courts held in
 Griffiss and Goodfellow, section 7115(a) of the Statute imposes an
 affirmative duty on an agency to honor the assignments of current unit
 members by remitting regular and periodic dues deducted from their
 accrued salaries to their exclusive representative, so that an agency's
 application of a portion of the pay of current unit members to
 extinguish a debt to former unit members abrogates the agency's
 statutory duty to its current member employees.  This statutory duty,
 the General Counsel urges further, cannot be waived by an exclusive
 representative in a collective bargaining agreement and, even if it
 could, parole evidence in this case shows that the provision of the
 master labor agreement regarding the correction of "administrative
 errors" was intended to apply to "arthmetical errors" only.
 
    The Respondent contests these arguments in its reply brief.  The
 Respondent contends that it cannot be found to have committed an unfair
 labor practice by acting, as it did, in accord with a reasonable
 interpretation of the master labor agreement:  "Improper deductions"
 fall within the agreement's provision with respect to "administrative
 errors." It also argues that an exclusive representative is indeed
 empowered to negotiate restrictions on a statutory right of its members.
  The Respondent argues in addition that the Authority has correctly not
 modified its position on the propriety of the Respondent's method of
 recoupment despite its compliance with the remand orders in Griffiss and
 Goodfellow.
 
                               V.  Analysis
 
    In challenging the Judge's Decision in this case, the General Counsel
 acknowledges that the Authority's supplemental decisions in Griffiss and
 Goodfellow "may be interpreted as being limited to those cases" in the
 Second and Fifth Circuits.  It argues that the Authority did not
 "intend" such a result, however, because it would lead to the anomalous
 situation of different decisions on the same issue in different federal
 circuits.  We find no merit to this argument.
 
    Under section 7123(a) of the Statute, the Authority's decisions and
 orders are reviewable by the U.S. Court of Appeals for the District of
 Columbia Circuit, or another of the U.S. Circuit Courts of Appeals
 depending on the parties' geographic location.  Since one circuit court
 of appeals is not bound by another's decision, judicial review of the
 Authority's decisions may result in inconsistent rules of law on the
 same or similar issues among the various circuits.  Such inconsistency
 among the circuit courts may be resolved only by the U.S. Supreme Court.
 
    The Judge correctly found that our supplemental decisions in Griffiss
 and Goodfellow, in which we accepted the decisions of the circuit courts
 in those cases as the "law of the case," were not intended to convey
 that the Authority had changed its opinion on the matter.  Under the
 "law of the case" doctrine, an issue of law as decided in a reviewing
 court becomes binding precedent to be followed in successive stages of
 litigation involving the same case.  The Authority was therefore bound
 to accept the circuit courts' decisions in Griffiss and Goodfellow.  We
 have consistently held that an agency's recoupment of dues erroneously
 remitted to the exclusive representative of a bargaining unit on behalf
 of a former unit member, by deducting the previous overpayment from the
 subsequent remittance of dues for current members, is not inconsistent
 with the requirements of section 7115(a) and does not violate section
 7116(a)(1) or (8) of the Statute.  /2/ For the following reasons we
 continue to follow this precedent and respectfully disagree with the
 Second and Fifth Circuits.
 
    Section 7115(a) of the Statute enables a bargaining unit member to
 have his employing agency deduct periodic union membership dues from his
 regular pay and forward it to the exclusive representative of the
 bargaining unit directly.  Section 7115(b) also provides that such an
 allotment "shall terminate when . . . the agreement between the agency
 and the exclusive representative involved ceases to be applicable to the
 employee . . ." Section 7112(b) provides that a bargaining unit may not
 be deemed "appropriate" if it includes a supervisor, and, by way of
 defining "collective bargaining" and "employee," section 7103 of the
 Statute provides that a supervisor may not be a member of a bargaining
 unit.
 
    Consistent with these provisions, at the time a bargaining unit
 member is promoted to a supervisory position, he may no longer be
 included in the unit and, therefore, his statutory right to dues
 allotment ceases immediately by operation of law.  Consequently, an
 agency's recoupment of dues erroneously paid to an exclusive
 representative on behalf of an employee after his appointment to a
 supervisory position constitutes the correction of an administrative
 error in compliance with the terms of the Statute.  The setoff of such
 overpayments against current allotments and remittances to the union
 constitutes a lawful and efficient means of recoupment.  The Authority
 adheres to the position that such a method of recoupment does not
 violate either section 7115(a) or section 7116(a)(1) and (8) of the
 Statute.
 
    In the Goodfellow case, the Fifth Circuit held as follows:
 
          Section 7115(a) . . . 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 representative.  Until the funds thus
       deducted are delivered to the union, they remain the property of
       the particular members from whose earned wages they are taken.  By
       applying a portion of the pay of unit employees to extinguish the
       debt owed another, (the agency) abrogated its statutory duty to
       the former.
 
    Goodfellow, supra, 715 F.2d at 228.  The Authority respectfully
 disagrees.
 
    Once an agency deducts membership dues from the salary of a unit
 employee for remittance to the exclusive representative, that money
 becomes part of a fund designated for forwarding to the union in due
 course.  The employee does not have immediate access to his portion of
 the fund before it is forwarded to the union.  He is also precluded by
 the terms of section 7115(a) from revoking a dues allotment other than
 at intervals of one year, unless (1) the bargaining agreement between
 the agency and the exclusive representative ceases to apply to the
 employee, as discussed above;  or (2) when the employee is suspended or
 expelled from membership in the exclusive representative, which is
 inapplicable here.  See U.S. Army, U.S. Army Materiel Development and
 Readiness Command, Warren, Michigan, 7 FLRA 194, 199 (1981).  There is
 no adverse impact on an employee's statutory right to a dues allotment
 which might result from an agency's use of the setoff method of
 recouping dues overpayments in this case, and the Fifth Circuit
 mentioned none in Goodfellow, other than the unspecific "impinge(ment)
 upon employee protections secured by Section 7115(a) . . ." /3/
 
    In the Griffiss case, the Second Circuit considered the legislative
 history of section 7115(a) of the Statute, and noted Congress' rejection
 of proposals for mandatory payment of union dues on behalf of all unit
 employees as well as proposals leaving the issue of dues check-off to
 negotiation.  American Federation of Government Employees, AFL-CIO,
 Local 2612 v. Federal Labor Relations Authority, 739 F.2d 87 (2d Cir.
 1984).  The Court found that Congress' final enacted provision,
 specifying that no dues could be deducted from an employee's paycheck
 unless he authorized the deduction in writing, was intended "to allow
 the employee alone to control the manner of dues payment." Id. at 89.
 The Court found taht, in view of this legislative intent, "an agency's
 obligation to honor dues check-off authorizations is mandatory and
 nondiscretionary." Id.  The Court therefore concluded that current unit
 members who assigned portions of their wages for the payment of union
 dues had the right to expect their assigned wages to be used for that
 purpose.  The Court concluded further that the agency's method of
 recouping its overpayment of dues on behalf of former unit members by
 setoff against dues allotments for present unit members violates the
 current unit members' right to allotment under section 7115(a), and thus
 constitutes an unfair labor practice under section 7116(a)(1) and (8).
 In the Authority's view Congress did not intend this interpretation of
 section 7115(a).
 
    When an agency allots and remits more membership dues to the
 exclusive representative of a bargaining unit than it should have -- in
 this case by remitting dues withheld from former unit employees who had
 become supervisors and were therefore no longer eligible for inclusing
 in the unit or entitled to authorize dues withholding -- the union
 receives more dues under section 7115(a)'s dues deduction provisions
 than it would have if the overpayment had not occurred.  When the agency
 corrects the overpayment by setoff against presently allotted dues
 before remittance to the exclusive representative, the right of current
 unit members to have their dues remitted to the Union is not violated.
 Rather, the portion of the dues of current unit members which was not
 remitted to the union was, in effect, "pre-paid" by the agency through
 previous overpayments.  An agency need not maintain the dues allotments
 of current member employees intact until they are remitted to the union
 under section 7115(a) of the Statute, as long as the agency remits
 sufficient payments to the union to avoid dues arrearage on the part of
 employees properly covered by section 7115(a).  /4/
 
    The Judge did not pass on the General Counsel's two additional
 contentions:  (1) that the provisions of the master labor agreement
 quoted above did not permit the Respondent to recoup overpayments of
 union dues;  and (2) that the Respondent and the Union could not waive
 the statutory right of employees to have dues withheld if they so
 authorize their employer in writing.  In view of our interpretation of
 section 7115(a) of the Statute, it is unnecessary to consider these two
 additional contentions.
 
                             VI.  Conclusions
 
    Having considered all of the facts and circumstances of this case, as
 well as the positions of the parties, the Authority concludes that the
 Respondent did not violate section 7115(a) of the Statute and therefore
 did not commit an unfair labor practice under section 7116(a)(1) or (8),
 as charged by the General Counsel.  Accordingly, we shall dismiss the
 General Counsel's complaint against the Respondent.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-50046 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., September 23, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 5-CA-50046
 
    DEPARTMENT OF THE AIR FORCE
    HEADQUARTERS, AIR FORCE LOGISTICS
    COMMAND, WRIGHT-PATTERSON AIR FORCE
    BASE, OHIO
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, COUNCIL 214, AFL-CIO
         Charging Party
 
    Lieutenant Colonel Glenn H. Schlabs and
    Major W. Kirk Underwood
         For Respondent
 
    Paul Palacio
         For the Charging Party
 
    Judity A. Ramey, Esq.
         For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
 et seq.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, Council 214, AFL-CIO, against the Department of
 the Air Force, Headquarters, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio (herein referred to as
 Respondent), the General Counsel of the Authority, by the Regional
 Director for Region V, issued a Complaint and Notice of Hearing alleging
 Respondent violated the Statute when it recouped erroneous union dues
 checkoff allotments previously transmitted to the Union by reducing
 subsequent dues remittances.
 
    A hearing on the Complaint was conducted in Dayton, Ohio at which all
 parties were represented and afforded full opportunity to adduce
 evidence, call, examine and cross-examine witnesses and argue orally.
 Briefs were filed by Respondent and the General Counsel, and have been
 carefully considered.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    On January 13, 1978 the American Federation of Government Employees,
 AFL-CIO, was certified as the exclusive representative of a consolidated
 unit of all non-supervisory non-professional employees, with certain
 exclusions, paid from appropriated funds and serviced by the Air Force
 Logistics Command (AFLC) Civilian Personnel Offices at various AFLC
 facilities including Kelly Air Force Base, San Antonio, Texas.  At all
 times material herein the American Federation of Government Employees,
 Council 214, AFL-CIO (the Union) has been an agent of the American
 Federation of Government Employees with respect to the employees of
 Respondent, including the employees at Kelly Air Force Base, and
 Respondent and the Union have been parties to a Master Labor Agreement
 (MLA) covering the employees described above.  The MLA contains a dues
 withholding provision (Article 8) that includes the following language
 under the caption "Administrative Errors" in Section 8.08:
 
          "Deductions will not be made for an employee who has been in a
       nonpay status for a pay period.  Administrative errors in
       remittance checks and/or improper deductions will be corrected by
       the Employer and adjusted in the next remittance check to be
       issued to the Union local.  If the Union local is not scheduled to
       receive a remittance check after discovery of the error, the Union
       agrees to promptly refund the amount of the erroneous remittance."
 
    Pursuant to section 7115(a) and (b) of the Statute /5/ and and
 Article 8 of the MLA, supra, management officials at Kelly Air Force
 Base regularly deduct union dues from the salaries of employees who are
 members of the bargaining unit who executed written assignments for such
 allotments and transfer said dues allotments to AFGE local 1617 in a
 single remittance check.  For pay periods ending June 23, 1984,
 September 15, 1984, September 22, 1984 and September 29, 1984,
 management officials at Kelly Air Force Base, relying upon MLA Section
 8.08 supra, deducted from the total amount due to the local for dues
 certain amounts representing dues allotments withheld erroneously in the
 past from the salaries of individuals who had for a period of time been
 ineligible for dues withholding by virtue of their promotion to
 supervisory positions.  The total amount deducted from the amount due
 the local for the four above-described pay periods was $220.50.
 Management officials used these funds to reimburse the supervisors from
 whose salaries dues had been erroneously withheld and continue to use
 the above described method of recouping erroneously withheld dues
 remitted to the union.
 
    The Master Labor Agreement was first negotiated in 1978 and
 renegotiated in 1982.  The "Administrative Errors" section of the dues
 withholding provision, supra, was the same in both agreements.  Val
 Buxton, Chief of Labor and Employees Relations Division and Respondent's
 Chief negotiator during the negotiations which gave rise to the 1978 and
 1982 agreements, testified that during the 1978 negotiations the
 language of Section 8.08 was adopted to reflect many existing local
 arrangements.  He further testified that during the 1978 negotiations
 the parties discussed employees leaving the unit and Respondent
 erroneously continuing dues checkoff.  However, Buxton did not provide
 any significant details regarding the specific nature of those
 discussions.  /6/
 
    John Mullholland, AFGE's Director of Labor-Management Service
 Department, testified that in 1978 he was the chief negotiator for
 Council 214 during negotiations with the Respondent for the MLA.
 According to Mullholland, during the 1978 negotiations there were no
 discussions about employees being promoted to supervisory positions and
 the application of Section 8.08 of the agreement to that situation.
 Rather, according to Mullholland the limited discussion of Section 8.08
 concerned the recoupment of money which was occasioned by computer and
 arithmetical errors and not recouping money erroneously collected and
 paid to the Union.
 
    Major Thayne H. Cuevas, Chief of the Accounting and Finance Branch at
 Kelly AFB testified to the dues deduction and remittance procedures at
 the facility.  According to Cuevas, the total amount of dues deducted
 during a pay period is adjusted by those dues which might not have been
 previously deducted but should have been and dues erroneously deducted.
 That adjusted sum is then remitted to local 1617.  Cuevas testified that
 such underpayments and overpayments would be corrected when
 documentation (a Standard Form 50) regarding a payroll change reached
 his office.  Thus, an action requiring a payroll change might occur in
 one payroll period but would not be reflected in actual payments until a
 subsequent payroll period when the Standard Form 50 was received and
 acted upon in the Finance and Accounting Branch.  A promotion of someone
 out of a position eligible for dues checkoff or a voluntary request to
 terminate dues checkoff could cause such an adjustment.  The payroll
 transactions are computer processed and a recapitulation of adjustments
 to the remittance check is sent to local 1617.  Cuevas testified he
 relied on Section 8.08 of the agreement to make these adjustments and
 this procedure has been followed since August 1981 to her personal
 knowledge and "as long as there's been a dues checkoff" according to
 some of his payroll employees.
 
                        Discussion and Conclusions
 
    Respondent contends its recoupment actions herein were permissable
 based upon:  (1) Existing Authority decisions, particularly Department
 of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base,
 Texas, 9 FLRA 294 (1982) and Department of the Air Force, Griffiss Air
 Force Base, Rome, New York, 12 FLRA 198 (1983);  (2) A contractual right
 provided in Section 8.08 the Master Labor Agreement;  and (3) Rulings of
 the Comptroler General
 
    In support of its allegations the General Counsel contends:  (1)
 Since the Authority's decisions in Goodfellow and Griffiss were set
 aside by Circuit Courts of Appeals /7/ and in each case the Authority in
 Supplemental Decisions accepted the Court's opinion as "the law of the
 case," /8/ such conduct warrants the conclusion that the Authority has
 reversed its positions on the issue;  and (2) Section 8.08 of the Master
 Labor Agreement does not privilege Respondent to recoup union dues and,
 in any event, the parties could not waive the employees' Statutory right
 to have dues deductions used by Respondent only as authorized by the
 employees.
 
    Respondent's recoupment herein is virtually identical to that
 previously considered by the Authority in Goodfellow and Griffiss and
 found to be permissible conduct under the Statute.  The General Counsel
 recognizes that Administrative Law Judges are obligated to follow
 Authority precidents and denial of enforcement of an Order of the
 Authority by a Court of Appeals does not "in and of itself, constitute a
 change of Authority law." The General Counsel argues however that
 accepting the decisions of the Circuit Courts in Goodfellow and Griffiss
 as "the law of the case" in those cases warrants the conclusion that the
 Authority has reversed its position on the matter.
 
    I do not agree.  In my opinion the Authority's action of accepting a
 Court's decision as "the law of the case," whether it be one Court of
 Appeals or more, /9/ gives no indication that the Authority is reversing
 its approach to the matter.  If the Authority desired to change its
 position on recoupment it had ample opportunity to expressly do so in
 Goodfellow and Griffiss when it considered the reversals from the Courts
 of Appeals.  However, the Authority merely accepted the Courts' decision
 as "the law of the case", expressing no view contrary to that
 articulated in its underlying decisions.  Accordingly, since I am
 constrained to follow the Authority's holding until such time as the
 Authority specifically revises its position on the matter or it becomes
 apparent that the Authority will no longer adhere to this position, I
 conclude that based upon existing Authority precident Respondent's
 conduct herein did not violate the Statute and I recommend the Authority
 issue the following:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Complaint in Case No. 5-CA-50046 be,
 and hereby is, dismissed.  /10/
                                       /s/ SALAVTORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  June 13, 1985
 
    Washington, DC
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) American Federation of Government Employees, AFL-CIO, Local 2612
 v. Federal Labor Relations Authority (Griffiss), 739 F.2d 87 (2d Cir.
 1984);  American Federation of Government Employees, AFL-CIO, Local 1816
 v. Federal Labor Relations Authority (Goodfellow), 715 F.2d 224 (5th
 Cir. 1983).
 
    (2) In addition to the Griffiss and Goodfellow cases noted above, see
 Dugway Proving Grounds, Dugway, Utah, 9 FLRA 409 (1982);  National
 Archives and Records Service and National Archives Trust Board, General
 Services Administration, Washington, D.C., 9 FLRA 413 (1982);  and
 Internal Revenue Service, Fresno Service Center, Fresno, California, 7
 FLRA 371 (1981), reversed as to other matters sub nom.  Internal Revenue
 Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir.
 1983).
 
    (3) The Fifth Circuit even acknowledged in Goodfellow, 715 F.2d 229,
 that the Government has the right "to recover by offset or otherwise
 sums illegally or erroneously paid," quoting from Lodge 2424,
 International Association of Machinist and Aerospace Workers, AFL-CIO v.
 United States, 564 F.2d 66, 71 (Ct. Cl. 1977).
 
    (4) The Second and Fifth Circuits would appear to place on management
 the statutory duty of setting apart or retaining intact the individual
 and collective dues allotted by employees until the dues are remitted to
 the Union.  Aside from the fact that dues are not allotted of
 transferred in any individually identifiable for, we respectfully
 disagree that the Statute imposes such a duty.  To require such an
 interpretation of the Statute would be comparable to the common law
 recovery action of replevin, in which a plaintiff seeks to have his
 wrongfully withheld property returned to him without alteration or
 substitution.  See Kelley v. Dunne, 369 F.2d 627 (1st Cir. 1966);
 Honeywell Information Systems, Inc.v. Demographic Systems, Inc., 396 F.
 Supp. 273 (S.D.N.Y. 1975).  Such an action does not apply to the
 recovery of money, however, unless the plaintiff can show that the money
 he seeks to recover constitutes unique currency and may be identified
 specifically so that recovery of the same money wrongfully withheld by
 another is both justifiable and possible.  Kelley, 369 F.2d at 628.
 
    (5) Section 7115(a) and (b) of the Statute provides:
 
          "(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."
 
    (6) I found Buxton's testimony to be confusing and inconclusive both
 as to the intent and meaning of Section 8.08 of the agreement as it
 applies to the issues herein.
 
    (7) AFGE, AFL-CIO, Local 1816 v FLRA (Goodfellow), 715 F.2d 224 (5th
 Cir. 1983) and AFGE, AFL-CIO v. FLRA (Griffiss), 739 F.2d 87 (2nd Cir.
 1984).
 
    (8) Goodfellow, 14 FLRA 795 (1984) and Griffiss, 15 FLRA No. 188
 (1984).
 
    (9) I note in Griffiss, 12 FLRA 198, fn 1, the General Counsel sought
 to withdraw the complaint on the sole ground that Goodfellow, decided
 subsequent to issuance of the complaint, was dispositive of Griffiss.
 
    (10) In view of this disposition I need not reach the other issues
 presented in thi