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,