25:0194(14)NG - IAM Lodge 2424 and Army, Aberdeen Proving Ground, MD -- 1987 FLRAdec NG
[ v25 p194 ]
25:0194(14)NG
The decision of the Authority follows:
25 FLRA No. 14
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, LODGE 2424
Union
and
DEPARTMENT OF THE ARMY
ABERDEEN PROVING GROUND,
MARYLAND
Agency
Case No. 0-NG-1263
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of two proposals concerning deduction of union dues. We
find Proposal 1 and the second sentence of Proposal 2 to be
nonnegotiable. We find the first sentence of Proposal 2 to be
negotiable.
II. Union Proposal 1
SECTION 37.11. When a Bargaining Unit Employee transfers out
of the Unit, Employer's Payroll Sections will forward a copy of
Employee's SF-1187, together with other payroll records, to the
new payroll office.
A. Positions of the Parties /1/
The Agency asserts that the proposal is nonnegotiable for two
reasons: (1) It violates the requirement in section 7115(b)(1) of the
Statute that individual dues deductions be terminated when the parties'
negotiated agreement ceases to be applicable to an employee; and (2) it
applies to employees who are outside the bargaining unit.
The Union's position that the proposal is negotiable appears to be
based on two theories: (1) since the right to have union dues deducted
from pay flows directly to an employee, termination of that right is the
prerogative of the employee; (2) an employee's written authorization
for dues deductions cannot be revoked for a period of one year. The
Union also cites Federal Personnel Manual (FPM) chapter 550 as
authorizing the continuance of allotments of an employee who transfers
to a new payroll office.
B. Analysis
Both parties agree that the purpose of Union Proposal 1 is to
continue the employees' voluntary authorization of dues withholding
under section 7115 of the Statute even after they have left the
bargaining unit. Section 7115, entitled, "Allotments to
representatives" governs the subject matter of this proposal. Section
7115(a) provides for written authorization of union dues withholding
from the pay of employees in an appropriate unit. Such authorizations
must be honored by the employer. Subsection (a) also requires that
authorizations may not be revoked for a one-year period, "(e)xcept as
provided under subsection (b) of this section. . . ." Section 7115(b)
requires the termination of a dues withholding authorization in less
than one year and without employee action in specified circumstances.
Insofar as is applicable to Union Proposal 1, section 7115(b)(1)
requires the termination of dues deduction authorization when "the
agreement between the agency and the exclusive representative involved
ceases to be applicable to the employee. . . ." The Authority has
previously held that the agreement between the parties ceases to be
applicable to an employee when she or he is promoted, even temporarily,
to a supervisory position. Internal Revenue Service, Fresno Service
Center, Fresno, California, 7 FLRA 371 (1981), reversed as to other
matters sub nom. I.R.S., Fresno Service Center v. FLRA, 706 F.2d 1019
(9th Cir. 1983). Similarly, the Authority found that the parties'
agreement was no longer applicable to an employee transferred to a
position outside the unit of exclusive recognition. Department of
Health and Human Services, Region X, Seattle, Washington, 19 FLRA No. 8
(1985). In both of the cited cases the Authority found that the agency
involved had not committed an unfair labor practice when it unilaterally
terminated the dues deductions of employees in the situations described.
Union Proposal 1 ignores the requirement that dues deductions be
terminated in the circumstances described in section 7115(b)(1).
Because it obligates the Agency to act in a manner contrary to that
section of the Statute it is nonnegotiable. The fact that an agency may
be found to have committed an unfair labor practice if it terminates
dues withholding in the mistaken belief that an employee is no longer in
an appropriate unit does not make this proposal negotiable. While, as
the Union points out, an agency acts at its peril in terminating dues
withholding, an agency is insulated from penalty when it acts in full
compliance with the statutory requirement.
Finally, the Union's assertion that FPM chapter 550 supports the
negotiability of this proposal is without merit. The specific section
of the FPM alluded to by the Union, FPM chapter 550, subchapter
3-5a(2)(b), is concerned exclusively with allotments to the Combined
Federal Campaign. Hence, the provision requiring transfer of the
allotment authorization to a new payroll office is inapplicable to the
allotment of union dues, the subject of Union Proposal 1.
C. Conclusion
Union Proposal 1 violates section 7115(b)(1) of the Statute.
Consequently, under section 7117(a)(1) of the Statute, it is outside the
duty to bargain. /2/
III. Union Proposal 2
SECTION 37.12. If an employee is temporary (sic) promoted to a
supervisory position for more than 30 days, the employee who is on
dues deduction will have his dues deduction revoked till the
return back to the bargaining unit at which time the dues
deductions will begin again as if there was no interruption. Any
temporary promotion of 30 days or less, the employee's dues
deduction will continue.
A. Positions of the Parties
The Agency points out that the first sentence of Union Proposal 2
requires that dues deductions be resumed for employees returning to the
bargaining unit after temporary promotions to supervisory positions.
Thus, the Agency argues, the first sentence violates section 7115(a) of
the Statute and 5 C.F.R. Section 550.342(d) which permit allotments to
be made only be an employee's written authorization. The Agency
contends that the proposal's second sentence continues dues deductions
for employees temporarily promoted out of the bargaining unit for 30
days or less. Consequently, it violates section 7115(b)(1) of the
Statute which requires termination of an employee's dues withholding
when that employee is no longer covered by the unit's collective
bargaining agreement.
The Union states that employees temporarily leaving the bargaining
unit do not lose such benefits as the Union's obligation to represent
them. Therefore, in the Union's view, automatic resumption of the
withholding of union dues upon return to the unit is appropriate.
B. Analysis
To facilitate analysis of this proposal, we will discuss its last
sentence first. The last sentence of Union Proposal 2 would obligate
the Agency to continue dues withholding for employees who, because of
temporary promotions, are removed from the bargaining unit for 30 days
or less. As has been noted, section 7115(b)(1) of the Statute requires
that an allotment of union dues "shall terminate" when the parties'
negotiated agreement is no longer applicable to an employee. In Fresno
Service Center, 7 FLRA 371, the Authority examined the effect of section
7115(b)(1) on circumstances like those covered by the last sentence in
this case. The Authority observed in Fresno Service Center, 7 FLRA at
372, that:
(w)hen an employee has been promoted to a supervisory position,
such employee is outside the bargaining unit, and thereupon the
collective bargaining agreement, "ceases to be applicable to the
employee." Accordingly, effectuation of the employee's allotment
(of union dues) must terminate pursuant to section 7115 of the
Statute. It follows that action of IRS in terminating such
allotments was not violative of section 7116(a)(8) of the Statute
but rather was required by section 7115. (Footnotes omitted.)
Consequently, based on the reasoning in Fresno Service Center, the
last sentence of Union Proposal 2 conflicts with section 7115(b)(1) of
the Statute.
The proposal's first sentence requires resupmtion of dues withholding
upon an employee's return to the bargaining unit after a temporary
promotion to a supervisory position. The issue raised by this sentence
is not controlled by the holding in Fresno Service Center where the
issue was limited to whether the agency committed an unfair labor
practice when it terminated the dues withholding of employees who ceased
to be covered by the parties' collective bargaining supervisory
positions.
Contrary to the Agency's position, there is nothing in section 7115,
its legislative history or the Fresno Service Center decision which
suggests that an employee who previously has authorized dues withholding
must be required to execute a second dues withholding authorization when
that employee returns to the bargaining unit after a temporary promotion
or detail to a nonbargaining unit position. Of course, when an employee
receives a permanent promotion to a position outside the bargaining
unit, there is no expectation of a return to the unit and any previous
authorization for dues withholding terminates. In this situation the
collective bargaining agreement permanently ceases to be applicable to
the employee. In the circumstance of a temporary promotion however,
there is a definite expectation of return to the unit and the collective
bargaining agreement is inapplicable during the period of the temporary
promotion only. In our view, allowing the parties to negotiate the
automatic resumption of dues withholding after an employee's temporary
absence from the bargaining unit is fully consistent with the Statute.
Dues withholding is treated differently under the Statute than under
the Executive Order 11491 program which preceded it. Specifically,
under Executive Order 11491 dues deduction was a matter to be negotiated
between the parties. Both the right to have dues withheld and the
charge to be levied by the agency for providing that service were
subjected to collective bargaining. Moreover, any voluntary dues
allotment was revocable at six month intervals. Under the Statute,
voluntary dues deduction without charge to the union is not a matter for
negotiation -- these are rights of employees and of the exclusive
representative. Also, the Statute provides that voluntary assignment of
dues are irrevocable for a period of one year.
Employees who voluntarily elect to have dues withheld are on notice
that their elections are irrevocable for a period of one year. This
portion of Proposal 2 would apply during that one year period and but
for the intervention of the temporary promotion, dues deduction would
have continued. According to this portion of the proposal, employees
will not be required to execute, and the agency to process, new dues
withholding authorizations each time employees return to the unit after
temporary promotions or details to positions outside of the bargaining
unit.
Further, the inclusion in the proposal of the condition that
deductions would be reinstated "as if there was no interruption"
indicates the Union's intent that this sentence not divest employees of
their right to revoke dues withholding at yearly intervals. That is,
the first sentence would not extend the dues deduction period beyond one
year from the date of authorization. We also construe the first
sentence as permitting timely revocation of the allotment even where an
employee is temporarily out of the unit. The sentence therefore does
not interfere with an employee's right to make, or refuse to make a
written assignment of union dues, nor does it prevent an employee from
exercising his or her right to revoke such assignment at the appropriate
time.
In further support of its position that the first sentence of Union
Proposal 2 is nonnegotiable, the Agency cites 5 C.F.R. Section
550.342(d) which provides that "a discontinued allotment may not be
reinstated." However, the cited regulation does not concern allotments
to labor organizations. Rather, that regulation deals with allotments
to the Combined Federal Campaign and is not relevant to this dispute.
C. Conclusion
The first sentence of Union Proposal 2 is not in conflict with either
law or regulation. It is therefore within the duty to bargain. The
proposal's last sentence, however, conflicts with section 7115(a)(1) of
the Statute and consequently, it is outside the duty to bargain under
section 7117(a)(1).
IV. Order
The Union's petition for review as it concerns Union Proposal 1 and
the last sentence of Union Proposal 2 is dismissed. Further, the Agency
must bargain upon request (or as otherwise agreed to by the parties)
over the first sentence of Union Proposal 2. /3/
Issued, Washington, D.C., January 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Because the Union submitted no reply brief, its position on these
proposals is drawn from its explanation of the proposals' meaning.
(2) Because we find that Union Proposal 1 violates the Statute, we do
not reach the issue of whether the proposal concerns personnel outside
the bargaining unit so as to be negotiable only at the Agency's
election.
(3) In finding the first sentence of Union Proposal 2 to be
negotiable, we make no judgment as to that part of the proposal's
merits.