25:0523(39)CA - VA Medical Center, Pittsburgh, PA and AFGE Local 2028 -- 1987 FLRAdec CA



[ v25 p523 ]
25:0523(39)CA
The decision of the Authority follows:


 25 FLRA No. 39
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER, PITTSBURGH,
 PENNSYLVANIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2028, AFL-CIO
 Union
 
                                            Case No. 0-AR-1183
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This case is before the Authority on exceptions to the award of
 Arbitrator Henry Shore filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed and submitted to arbitration in this case
 disputing the reassignment of the grievant, a registered nurse, from a
 night tour of duty (midnight to 8:00 a.m.).  In December 1985 the
 grievant received her annual proficiency report in which she was rated
 "satisfactory." In the narrative comment to the report quoted by the
 Arbitrator in his award, the grievant was informed that she had not
 demonstrated the ability to function effectively as the charge nurse on
 an off tour of duty and that she was being reassigned to rotating tours
 of duty in order to receive additional guidance, support, and
 supervision of the head nurse.  The Arbitrator determined that this
 reassignment of the grievant violated Article XI, Section VIII of the
 parties' collective bargaining agreement which provides that
 continuation on an indefinite night tour of duty will depend upon
 satisfactory performance.  He concluded that under this provision the
 grievant was entitled to have remained on the night tour of duty as a
 result of her "satisfactory" rating on her annual proficiency report.
 Accordingly, as his award, the Arbitrator directed the Activity to
 restore the grievant to her former midnight to 8:00 a.m. shift and to
 make her whole for any loss of shift differential pay which she may have
 suffered as a result of her shift reassignment.
 
                             III.  EXCEPTIONS
 
    In its exceptions the Agency primarily contends that the award is
 contrary to management's right to assign employees under section
 7106(a)(2)(A) of the Statute.  In essence the Agency argues that the
 Arbitrator erred because when the grievant was reassigned, she was
 assigned to different duties and a different position.  She was no
 longer in a position of charge nurse.  Instead, she was assigned to a
 different position, different duties, and a different shift where she
 would have a less independent role and be subject to greater and
 personal supervision by the head nurse.  Thus, the Agency maintains that
 the Arbitrator erroneously applied a provision of the parties' agreement
 pertaining solely to shift assignments and tours of duty and improperly
 enforced that provision to prevent management's assignment of the
 grievant to a particular position.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the award is contrary to management's right to
 assign employees in accordance with section 7106(a)(2)(A) of the
 Statute.  We find that the Agency has established that the reassignment
 of the grievant was not only to a different shift or tour of duty, but
 also to a different position with different duties.  Furthermore, it is
 clear that the award interferes with the Activity's exercise of its
 right to assign employees by rescinding management's assignment of the
 grievant to a position and shift where she would be supervised by the
 head nurse and by directing that she be reassigned to the midnight shift
 where she would not be in a position personally supervised by the head
 nurse.  See Naval Undersea Warfare Engineering Station, Keyport,
 Washington and International Association of Machinists and Aerospace
 Workers, Local 282, 22 FLRA No. 96 (1986);  Department of Health and
 Human Services, Social Security Administration, Charlotte, North
 Carolina District and American Federation of Government Employees, Local
 3509, AFL-CIO, 17 FLRA 103 (1985).  In contrast, we note that if there
 were such a position on the midnight shift personally supervised by the
 head nurse, the Arbitrator's award would have simply constituted an
 enforcement of the provisions of the parties' agreement pertaining to
 shift assignments and tours of duty.  See, for example, National
 Treasury Employees Union and Department of the Treasury, Internal
 Revenue Service, 14 FLRA 243 (1984) (provision 4).  However, in this
 case, the Arbitrator's remedy effectively rescinded the assignment of
 the grievant to a different position and different duties and is
 therefore deficient as contrary to section 7106(a)(2)(A) of the Statute.
  See Naval Undersea Warfare Engineering Station, slip op. at 3-4.
 
                                 DECISION
 
    The Arbitrator's award is set aside.  /*/
 
    Issued, Washington, D.C., February 4, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
    Case No. 2-CA-40484
 
    VETERANS ADMINISTRATION AND
    VETERANS ADMINISTRATION MEDICAL CENTER
    NORTHPORT, NEW YORK
    Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO, LOCAL 1843
    Charging Party
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the General Counsel to the attached decision of the
 Administrative Law Judge.  The Respondent (Agency) filed an opposition
 to the exceptions.  The complaint alleges that the Agency violated
 section 7116(a)(1) and (8) of the Statute by not remitting to the
 Charging Party (Union) dues from the backpay awarded to an Systems
 Protection Board (MSPB).  The complaint also alleges that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by failing to
 reinstate the employee to dues withholding status from the date of his
 reinstatement until the date he affirmatively stated his desire not to
 be on dues checkoff.  For the reasons stated below, we find no merit to
 the allegations and we will order that the complaint be dismissed in its
 entirety.
 
                                II.  Facts
 
    The Union acts as the agent for the American Federation of Government
 Employees National Veterans Administration Council (AFGE Council) in
 representing the employees of the Respondent's Northport Medical Center.
  The AFGE Council and the Respondent Veterans Administration are parties
 to a negotiated agreement covering in part the employees of the
 Respondent Medical Center.  On January 16, 1982, Richard Greenwood, a
 dues paying member of the Union, was discharged by the Respondent.  On
 March 5, 1984, Greenwood was reinstated and returned to duty at the
 Respondent's Northport Medical Center pursuant to a decision by the MSPB
 finding that his dismissal was unwarranted and unjustified.  Greenwood
 was entitled to backpay for the period he was discharged.  The Union
 requested that it be paid the dues that would have been withheld from
 his pay during the period that Greenwood was discharged.  The Respondent
 paid Greenwood his backpay, but did not deduct any union dues.  The
 Respondent subsequently denied the Union's requests for payment of dues
 and for reinstatement of Greenwood on payroll dues withholding without
 the employee's consent.
 
    The parties stipulated that Greenwood did not complete a new dues
 withholding form after his reinstatement and did not provide consent for
 payment of back dues or for reinstatement of his dues allotment.  The
 parties also stipulated that Greenwood never executed a dues revocation
 form.  No dues were withheld from Greenwood's pay from the date of his
 reinstatement on March 5, 1984 until September 11, 1984.  At that time,
 the Respondent accidentally withheld dues from Greenwood's pay for one
 pay period and submitted it to the Union.  Greenwood went to the
 Respondent and stated that he had not authorized any dues deduction and
 that he wanted it stopped immediately.  The Respondent terminated
 Greenwood's dues withholding as of September 24, 1984, the next pay
 period.  The parties stipulated that the propriety of the September 24,
 1984 cessation is not at issue in this case.
 
               III.  The Administrative Law Judge's Decision
 
    The Judge concluded that the Respondent had not violated section
 7116(a)(1) and (8) of the Statute when it refused to remit a portion of
 Greenwood's backpay award to the Union to cover his dues during the
 period when he was wrongfully discharged, or when it refused to
 reinstate the employee's union dues withholding allotment upon his
 return to duty.  In reaching that conclusion, the Judge found that the
 Respondent acted in accordance with section 7115 of the Statute when it
 terminated Greenwood's dues withholding upon his discharge as he was no
 longer an employee within the meaning of the Statute.  The Judge further
 found that neither the Back Pay Act nor section 7115 of the Statute
 require the deduction of union dues from a backpay award or the
 reinstatement of a dues allotment.  The Judge also found that section
 7115 clearly requires that an agency must first receive a written
 authorization from an employee before effectuating dues withholding and
 Greenwood did not give his consent for such withholding upon his return
 to Federal employment.  The Judge determined that neither the Back Pay
 Act nor section 7115 were designated to be used to enforce union claims
 for unpaid dues.
 
    In reaching his decision, the Judge relied on decisions of the
 Assistant Secretary of Labor for Labor-Management Relations under
 Executive Order 11491, as amended, in Veterans Administration Hospital,
 Murfreesboro, Tennessee, 6 A/SLMR 445 (1976) and the Comptroller General
 in an unpublished opinion issued In the Matter of Henry A. Wade,
 B-180095 (November 15, 1976).  Those cases involved a similar discharge,
 reinstatement, and request by the union for the repayment of union dues
 from the employee's backpay award.  The Comptroller General ruled that
 the agency acted properly in refusing the union's request for lost dues
 and the Assistant Secretary ruled that such an action was not an unfair
 labor practice if it was consistent with the requirements of the
 Comptroller General.
 
                       IV.  Positions of the Parties
 
    The General Counsel argues that the Back Pay Act requires that an
 employee who is the subject of an unjustified personnel action shall be
 made whole not only for lost wages but that the employee should be
 treated as if the improper personnel action had never taken place and as
 if the employee was continuously employed throughout the period of his
 discharge.  Given that premise, the General Counsel argues that the
 employee's work-related obligations, such as the agreement to have union
 dues checked off, also must be restored to the extent possible.  While
 the Respondent may have acted properly in removing Greenwood from dues
 authorization when he was discharged because he was no longer an
 employee subject to the parties' collective bargaining agreement
 pursuant to section 7115(b) of the Statute, the General Counsel argues
 that the Respondent was obligated by section 7115(a) of the Statute to
 treat Greenwood, upon his reinstatement, as if he was continuously
 employed for purposes of dues checkoff.  The General Counsel agrees that
 a properly executed dues revocation could end the employee's obligation
 to pay dues to the Union, but notes that Greenwood never executed a dues
 revocation, even after his return to duty.  The General Counsel also
 contends that the Wade and VA Murfreesboro cases relied on by the Judge
 in reaching his conclusion are not applicable to the present case
 because Executive Order 11491, as amended, under which those cases were
 decided, made dues checkoff a function of a collective bargaining
 agreement, while section 7115 of the Statute obligates agencies to
 deduct dues when properly authorized to do so by an employee and thus
 collective bargaining agreements merely delineate the mechanisms for
 fulfilling that obligation.
 
    The Respondent asserts that the Judge's decision is correct and
 should be affirmed.  It contends that there is nothing in the Back Pay
 Act which permits an agency to deduct union dues from a backpay award.
 The Respondent further contends that requiring an employee to remit a
 portion of a backpay award to pay union dues interferes with the
 employee's right, under section 7115(a) of the Statute, to cancel a dues
 obligation at a specified annual time.
 
                               V.  Analysis
 
    There is no disagreement among the parties that the Respondent acted
 properly when it discontinued Greenwood's dues withholding at the time
 of his discharge.  Section 7115(b)(1) of the Statute requires the
 termination of a dues deduction authorization when "the agreement
 between the agency and the exclusive representative involved ceases to
 be applicable to the employee. . . . " The parties' agreement was no
 longer applicable to Greenwood when his employment was terminated.
 
    The parties do differ, however, in their interpretation of the
 requirement that the backpay computations for an employee who has been
 wrongfully discharged are to be made as "if the personnel action had not
 occurred." The General Counsel argues that Greenwood would have had
 union dues deducted from his wages if his employment had been continuous
 and that there is no legal impediment to taking such payments from his
 backpay award because the purpose of the award is to make him whole with
 respect to all pay, allowances, and differentials.
 
    We conclude that the Respondent did not violate section 7116(a)(1)
 and (8) of the Statute when it failed to remit a portion of Greenwood's
 backpay award to the Union in lieu of dues payments which Greenwood
 would have had checked off from his pay had he remained in continuous
 employment with the Respondent.  When an agency calculates an employee's
 backpay award, some payments must be withheld from the award, some
 payments may not be credited to the employee, and some matters require
 the exercise of discretion by the affected employee.  Thus, the courts
 have held that an agency must deduct from an employee's backpay award
 those payments for which the employee is legally obligated, including
 Federal and state taxes, Federal Insurance Contributions Act ("FICA")
 payments, retirement and Medicare deductions, annual leave payments, and
 any withdrawals which were made by the employee from the Civil Service
 Retirement Fund at the time of his separation.  Tanaka v. Department of
 the Navy, 788 F.2d 1552 (Fed. Cir. 1986).  However, the courts have held
 that claims for such items as the monetary equivalent of annual leave,
 for per diem expenses, for interest, or for private insurance for which
 the employee only qualified when he was in a civilian technician status,
 are not lost "pay, allowances, or differentials" which an employee would
 have earned but for a wrongful discharge and therefore they may not be
 claimed as part of a backpay award.  See Polos v. United States, 231 Ct.
 Cl. 929 (1982) and the cases cited therein.
 
    Some Federal employee benefit programs require the employee to
 exercise options concerning whether or not to participate in the program
 and concerning the nature of their participation.  When employees who
 are found to have been wrongfully terminated are reinstated, they are
 given the option of retroactively participating in these optional
 programs and paying for them out of their backpay award.  Thus,
 employees may refuse to "purchase" life insurance through the
 government's program or they may choose varying levels of participation.
  For employees who are reinstated the Federal Personnel Manual (FPM)
 provides that there will be no life insurance withholdings made from the
 retroactive pay adjustment of an employee who is retroactively restored
 to duty with pay after an erroneous separation, suspension or removal.
 However, if death or accidental dismemberment occurs during the period
 between the employee's separation, suspension or removal and the finding
 that the agency action was erroneous, premiums will be withheld from the
 backpay awarded for the period of separation, suspension or removal and
 the employee or their estate will be entitled to the benefits which
 would have accrued to them but for the erroneous agency action.
 
    Similarly, Federal employees can decide whether or not to participate
 in the health benefits program, and they have a variety of options
 regarding the medical insurance they want to choose.  An employee who is
 removed or suspended without pay and whose enrollment in the health
 benefits program has been terminated is given the option when he is
 reinstated of having his prior health benefits reinstated retroactive to
 the date they were terminated or he may enroll in the same program as a
 new employee.  If the employee elects to have the prior enrollment
 reinstated retroactively, withholdings and contributions must also be
 made retroactively just as though the erroneous suspension or removal
 had not taken place and the health benefits coverage is considered to
 have been continuously in effect, with the employee and any covered
 family members being entitled to the full benefits of the plan.
 
    From the above, we conclude that the Federal Personnel Manual's
 policy regarding retroactive payments for optional programs by an
 employee who is reinstated after a finding that the employee's removal
 was unwarranted or unjustified allows an employee to choose whether or
 not to have those payments made retroactively.
 
    We find that an employee's decision to become a union member and to
 pay union dues through checkoff is a voluntary decision like those which
 an employee makes regarding life insurance and health benefits.
 Therefore, we conclude, in the absence of any statutory or regulatory
 constraint requiring a different policy, that the purposes of the
 Statute are best served by a policy which gives to an employee who is
 reinstated after a determination that his termination was unwarranted or
 unjustified the option of having his union membership retroactively
 restored.  If the employee so chooses, he will incur a retroactive
 obligation for the dues not paid during the period of his termination
 and the union will be obligated to provide him with any benefits which
 might have accrued to him as a union member during that period.  A
 reinstated employee should be given the option, alternatively, of
 joining the union as if he were a newly hired employee and his
 obligation to the union would then begin only with the signing of a new
 dues authorization form.
 
    This policy is not inconsistent with our recent decision in
 International Association of Machinists and Aerospace Workers, Lodge
 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 25
 FLRA No. 14 (1987), in which we found that a proposal which would
 require that an employee who was temporarily promoted to a supervisory
 position would have his dues authorization reinstated without the
 necessity for executing a new dues authorization form when he returned
 to the bargaining unit.  In that case, the implicit assumption is that
 the employee will return to the bargaining unit within a fixed period of
 time and such a policy is consistent with a policy of stability in the
 labor-management relationship.  However, when an employee is terminated,
 the expectation is that such a decision is permanent.  When such a
 decision is reversed, the employee is entitled to the widest possible
 discretion in resuming obligations which were purely discretionary and
 our decision supports such a policy.
 
    In the circumstances of this case, we find that the Respondent did
 not violate section 7116(a)(1) and (8) of the Statute, as alleged.
 While, as we have indicated, an agency should give a reinstated employee
 the option of having his union membership retroactively reinstated, of
 executing a new dues authorization as if he were a new employee, or of
 deciding not to join the union, the Respondent's failure to do so at the
 time of Greenwood's reinstatement did not harm the Union, as the
 employee made it clear when the matter arose that he did not want to
 join the Union.  The Union would have been harmed only if the Respondent
 failed to timely implement the employee's decision to either
 retroactively or prospectively fulfill a dues authorization commitment.
 
    Under section 2423.29 of the Authority's Rules and Regulations and
 section 7118 of the Statute, we have reviewed the rulings of the Judge
 made at the hearing, find that no prejudicial error was committed, and
 affirm those rulings.  Having considered the Judge's Decision, the
 General Counsel's exceptions to that decision, the Respondent's
 opposition and the entire record, we conclude, in agreement with the
 Judge, that the Respondent did not violate section 7116(a)(1) and (8) of
 the Statute by failing to offset a reinstated employee's backpay award
 in order to pay dues sought by the Union for the period of his
 termination or by failing to automatically reinstate the employee to
 dues withholding status upon his reinstatement.  We will therefore order
 that the complaint be dismissed in its entirety.
 
                                   ORDER
 
    The complaint in Case No. 2-CA-40484 is dismissed.
 
    Issued, Washington, D.C., February 4, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 2-CA-40484
 
    VETERANS ADMINISTRATION
    AND VETERANS ADMINISTRATION MEDICAL
    CENTER, NORTHPORT, NEW YORK
    Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO, LOCAL 1843
    Charging Party
 
    Mitchell E. Ignatoff, Esquire
    For the Respondent
 
    Cecile O'Connor, Esquire
    For the General Counsel
 
    Mr. Donald T. Hagen
    For the Charging Party
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
 "the Statute"), and the Rules and Regulations issued thereunder.
 
    The complaint alleges that since on or about a date in July 1984, the
 Veterans Administration, and Veterans Administration Medical Center,
 Northport, New York (Respondent) has continuously refused and failed to
 pay to American Federation of Government Employees, AFL-CIO, Local 1843
 (Charging Party, Local or Union) union dues which would have been
 deducted from a bargaining unit employee's pay during the period January
 23, 1982 to March 5, 1984, if the employee had not been unlawfully
 discharged by the Respondent;  and that from the date of the employee's
 return to duty on March 5, 1984, until September 11, 1984, the
 Respondent continuously failed to reinstate the unlawfully discharged
 employee to a dues withholding status.  The complaint further alleges
 that the conduct outlined involves unfair labor practices within the
 purview of Section 7116(a)(1) and (8) of the Statute.  /1/
 
    Based upon the entire record herein, including a stipulation of
 facts, stipulated exhibits, and briefs filed by the parties, I make the
 following findings of fact, conclusions and recommendations:
 
                             Findings of Fact
 
    The facts in this case are not in dispute.  A stipulation of facts
 filed by the parties disclosed the following:
 
    1.  At all times material herein, the American Federation of
 Government Employees, AFL-CIO (AFGE), has been, and is now, the
 exclusive representative for a nationwide unit of certain professional
 and non-professional employees of the Veterans Administration, including
 non-professional employees at Respondent's Veterans Administration
 Medical Center, Northport, New York.
 
    2.  At all times material herein, AFGE has delegated to the National
 Veterans Administration Council, AFGE (Council), authority to act as its
 representative for the purposes of collective bargaining for
 Respondent's employees, including the non-professional employees of
 Respondent's Veterans Administration Medical Center, Northport, New York
 and the Council's delegation has been recognized by Respondent.
 
    3.  At all times material herein, the Charging Party has acted as the
 agent of the Council for the purposes of collective bargaining on behalf
 of the employees in the AFGE certified unit at Respondent's Northport,
 New York, Veterans Administration Medical Center, and the Charging
 Party's delegation has been recognized by Respondent.
 
    4.  The Veterans Administration and the AFGE, have entered into a
 nationwide collective bargaining agreement effective August 13, 1982,
 covering the employees in the above-described unit.  It specifically
 covers employees at Respondent's Veterans Administration Medical Center,
 Northport, New York.  (Stipulated Exhibit 5).
 
    5.  On January 16, 1982 the Respondent, in a disciplinary action
 based on alleged sick leave abuse, discharged bargaining unit employee
 Richard Greenwoood, hereinafter referred to as Greenwood, from his
 position as Housekeeping Aide, WG-2.
 
    6.  At the time of his separation, Greenwood was a dues paying member
 in good standing of the Local and had never submitted a revocation of
 dues withholding allotment, Form 1188.  (Stipulated Exhibit 6).  At no
 time since the date of his separation has Greenwood submitted a Form
 1188 to revoke his dues withholding allotment.
 
    7.  Members of the Local may only revoke their union dues allotment
 annually, at the time of the year when they originally authorized the
 allotment.  A revocation must be submitted to the union between the
 anniversary date of the effective date of the dues withholding and
 thirty calendar days prior to the anniversary date.  Greenwood's
 anniversary date is March 1, of each year.
 
    8.  In 1982, the Charging Party received from Respondent its last
 allotment of money for Greenwood's union dues.  The allotment was for
 the payroll period ending January 23, 1982.
 
    9.  By decision dated February 15, 1984 the Merit Systems Protection
 Board (MSPB) upheld an April 27, 1982 initial decision of a hearing
 officer in Greenwood's case.  This decision ordered that Greenwood be
 reinstated because his dismissal was an unwarranted and unjustified
 removal action.  Under the Federal Personnel Manual (FPM Chapter 550
 Subchapter 8,) and Title 5, Section 5596 of the United States Code (also
 known as the Backpay Act), Greenwood was entitled to a backpay award
 under these circumstances.  (Stipulated Exhibit 7).
 
    10.  On March 5, 1984 employee Greenwood was reinstated and returned
 to duty at Respondent's Northport facility.
 
    11.  For the period subsequent to January 23, 1982 up to and
 including March 5, 1984 the Local did not receive union dues for
 Greenwood either from the Respondent or from Greenwood himself.
 
    12.  For the period March 5, 1984 to September 11, 1984 the
 Respondent has not deducted dues withholding allotments from the pay of
 Greenwood nor paid the Local any union dues on behalf of Greenwood.
 
    13.  Subsequent to his return to duty on March 5, 1984, and at all
 times since, Greenwood has not filled out a new dues withholding
 allotment assignment, Form 1187.  (Stipulated Exhibit 8).
 
    14.  By letter dated June 29, 1984 the Charging Party requested that
 the Respondent supply it with back union dues for Greenwood for the
 period January 23, 1982 up to March 5, 1984.  In this same letter, the
 Local also requested that Greenwood be reinstated on payroll dues
 withholding allotment as of March 5, 1984.  (Stipulated Exhibit 9).
 
    15.  In or around July 1984 the Respondent issued a check to
 Greenwood in payment of his backpay award.  The Respondent did not
 deduct any back union dues allegedly owed for Greenwood for the period
 January 23, 1982 to March 5, 1984 and the Respondent did not pay such
 dues to the Charging Party.
 
    16.  By letter dated July 17, 1984, the Respondent notified the
 Charging Party that it believed that the deduction of back union dues
 allegedly owed to the Local by Greenwood for the relevant period was
 inappropriate and requested the Charging Party to provide any authority
 for authorization of such a payment.  The Respondent further stated that
 it would inquire to determine if Greenwood had filed a new form for
 authorizing a payroll dues withholding assignment of his union dues.
 (Stipulated Exhibit 10).
 
    17.  By letter dated July 18, 1984 the Charging Party restated its
 June 29, 1984 request for back union dues for Greenwood for the period
 January 23, 1982 to March 5, 1984.  (Stipulated Exhibit 11).
 
    18.  By letter dated August 15, 1984 the Charging Party reiterated
 its requests for back union dues for Greenwood for the period January
 23, 1982 to March 5, 1984, and for the reinstatement of Greenwood on
 dues payroll withholding allotment without the execution of a new dues
 assignment form by the employee.  The August 15, 1984 letter from the
 Charging Party supplied a rationale for its request and cited FPM
 Chapter 550, a sub-chapter 8, 8-5(a), FPM letter 550-76 Para. 4.
 (Stipulated Exhibit 12).
 
    19.  By letter dated August 17, 1984, Respondent replied to the
 August 15, 1984, letter from the Charging Party and stated that in its
 opinion, under a Comptroller General Decision, In the Matter of Henry A.
 Wade, Comptroller General Decision No. B-180095 (November 15, 1976) it
 could neither authorize payment of the back union dues nor reinstatement
 of a dues withholding allotment for Greenwood without Greenwood's
 consent.  (Stipulated Exhibits 13 and 14).
 
    20.  The November 15, 1976, Comptroller General Decision referenced
 above refers to Civil Service Commission regulations published in 5 CFR
 Section 550.321 et seq. (1976) and relies, in part, on Section
 550.322(c).  The most recent regulations are found in Office of
 Personnel Management Regulations at 5 CFR Sections 550.321 and 550.322
 (1984).  (Stipulated Exhibits 15(a) and 15(b)).
 
    21.  Greenwood has not completed a new dues withholding Form 1187
 since his return to service, nor has he provided his consent to
 Respondent for the payment of back union dues or for reinstatement of
 his dues withholding allotment.
 
    22.  At the time of his termination Greenwood did not request a
 termination or revocation of dues withholding from either Respondent or
 the Local.
 
    23.  Determinations to not deduct union dues from Greenwood's back
 pay award, and to not reactivate Greenwood's dues withholding allotment
 were made by Respondent.
 
    24.  In the payroll period ending September 11, 1984, the Respondent
 accidentally paid a union dues withholding allotment for Greenwood to
 the Local.  On September 21, 1984, Greenwood told a Labor Relations
 Specialist (F. Blatt) of Respondent's Personnel Service that union dues
 were deducted from his last paycheck.  Greenwood stated that since he
 had not authorized this dues deduction he wanted it stopped immediately.
  Thereafter, the Respondent again terminated the dues withholding
 allotment of Greenwood's union dues on September 24, 1984.  (Stipulated
 Exhibits 16(a) through 16(d)).  /2/
 
    25.  Prior to September 21, 1984, Greenwood did not inform any agent
 or official of the Local that the union dues deduction was not
 authorized by him and that he wanted it stopped immediately.
 
    26.  From January 16, 1982 through March 5, 1984, the period of his
 discharge, and continuing to date, Greenwood was not suspended or
 expelled from membership in the Local.  During the above mentioned
 period of time, Greenwood was a member in good standing of the Local
 within the meaning of Article 31, Section 1 of the collective bargaining
 agreement.  (Stipulated Exhibit 5).
 
    27.  The Local filed a grievance dated October 2, 1984, concerning
 the Respondent's September 24, 1984, cessation of dues withholding.  The
 cessation of September 24, 1984 is not the subject of this case.
 
    28.  The instant case concerns first, whether the Respondent is
 obligated under Section 7115 to pay back union dues, from Greenwood's
 backpay award, to the Local for the period of Greenwood's unjustified
 termination from service;  second, whether the Respondent's failure to
 pay back union dues withholding allotments from Greenwood's backpay
 award to the Local constitutes a violation of Section 7115 of the
 Statute and thus violates Section 7116(a)(1) and (8) of the Statute;
 and third, whether the Respondent's failure to reinstate Greenwood to
 dues withholding allotment upon his return to service constitutes a
 violation of Section 7115 of the Statute and thus violates Section
 7116(a)(1) and (8) of the Statute.
 
                        Discussion and Conclusions
 
    The General Counsel contends that the Respondent violated Sections
 7116(a)(1) and (8) of the Statute by not deducting and paying over to
 the Union, a sum amounting to the union dues allotments which the Union
 would have received during the period intervening between January 23,
 1982 and March 5, 1984.  It is also contended that the Respondent
 violated Sections 7116(a)(1) and (8) by failing to reinstate Greenwood's
 union dues withholding authorization upon his return to work.
 
    The General Counsel does not contend that Greenwood's dues allotment
 authorization was wrongfully terminated at the time of his discharge in
 1982.  Instead, it is argued that the Union was wrongfully deprived of
 deductions for such allotments when the Respondent reimbursed Greenwood
 for his backpay;  and that dues withholding should have been resumed
 upon reinstatement even in the absence of a new authorization executed
 by Greenwood.  Although the legitimacy of Respondent's revocation of
 dues withholding in 1982 is not in issue, it is important to note that
 Respondent's discontinuance was fully justified and involved no
 misconduct.
 
    Section 7115(b) of the Statute provides for agency termination of a
 union dues allotment, "when the agreement between the agency and the
 exclusive representative involved ceases to be applicable to the
 employee. . . . " /3/ Regardless of the subsequent favorable Merit
 Systems Protection Board decision ordering reinstatement;  for union
 dues withholding purposes, Greenwood ceased to be a federal employee as
 of January 16, 1982.  Because of this fact he ceased to be a member of
 the bargaining unit, and ceased to be covered by the collective
 bargaining agreement.  The statute clearly requires the discontinuance
 of union dues withholding under such circumstances.  The continuation of
 dues payments after this date would be a personal obligation of the
 employee, and would be a matter of appropriate concern only to the
 employee and the union.
 
    Greenwood's reinstatement on March 5, 1984, was accompanied by his
 receipt of backpay.  The award was governed by the Backpay Act, 5 U.S.C.
 Section 5596, and by regulations issued to implement the Backpay Act, 5
 C.F.R. Section 550.801 et seq.  Section 5596(b)(1)(A)(i) of the Backpay
 Act provides:
 
          "(b)(1) An employee of an agency who, on the basis or a timely
       appeal or an administrative determination including a decision
       relating to an unfair labor practice or a grievance) is found by
       appropriate authority under applicable law, rule, regulation, or
       collective bargaining agreement, to have been affected by an
       unjustified or unwarranted personnel action which has resulted in
       the withdrawal or reduction of all or part of the pay, allowances,
       or differentials of the employee --
 
          (A) is entitled, on correction of the personnel action, to
       receive for the period for which the personnel action was in
       effect --
 
          (i) an amount equal to all or any part of the pay, allowances,
       or differentials, as applicable which the employee normally would
       have earned or received during the period if the personnel action
       had not occurred, less any amounts earned by the employee through
       other employment during that period. . . .
 
    Section 550.801 of Title 5 C.F.R. reflects that the Backpay Act was
 designed to make "an employee financially whole (to the extent
 possible). . . . " Section 550.805, of the Title 5 C.F.R. prescribes the
 method of computing back pay.  Section 505.805(e)(1) and (2) provide for
 deducting amounts earned from other employment during the period covered
 by the corrective action, and for erroneous payments received by the
 employee from the Government as a result of the unjustified or
 unwarranted personnel action.  Neither the Backpay Act nor implementing
 regulations require a deduction for union dues which would have been
 deducted had the employment relationship continued without interruption;
  nor do they require, by operation of law, the reinstatement of a union
 dues authorization.  Furthermore, Section 7115 does not require the
 deduction of union dues from a backpay award, and Section 7115(a) makes
 it clear that an agency must first receive a written authorization from
 an employee before effectuating dues withholding.  Greenwood did not
 give his consent for such withholding of dues upon his return to federal
 employment, and he did not authorize deductions from his backpay award.
 Neither the Backpay Act nor Section 7115 of the Statute was designed to
 be used as a tool to enforce union claims for unpaid dues.  /4/
 
    The issue posed in this case was squarely addressed by the Assistant
 Secretary of Labor for Labor-Management Relations in Veterans
 Administration Hospital, Murfreesboro, Tennessee, A/SLMR No. 702 (1976);
  and by the Comptroller General in an unpublished opinion issued In the
 Matter of Henry A. Wade, B-180095 (November 5, 1976).  The cases cited
 arose out of the same factual circumstances.  Wade, a Veterans
 Administration employee was restored to duty after a wrongful discharge.
  /5/ The Veterans Administration Hospital had on file a signed
 authorization calling for the withholding of union dues at the time of
 his discharge, and Wade never canceled the authorization.  The Union
 handled his appeal initially, but was replaced by a private attorney
 shortly after Wade's separation.  When Wade was reinstated he elected
 not to become a union member.  When he was reimbursed for backpay no
 union dues were deducted.  However, the union involved requested the
 Veterans Administration Hospital to withhold union dues from the backpay
 award.  At this point the Veterans Administration requested a
 Comptroller General opinion.
 
    An unfair labor practice complaint alleging violations of Section
 19(a)(1), (2) and (6) of Executive Order 11491 was based on the refusal
 to deduct union dues from the backpay award, and on direct contacts
 between Wade and a Veterans Administration Hospital official.  In
 dismissing the complaint the Assistant Secretary for Labor-Management
 Relations held that because there was genuine uncertainty concerning the
 deduction of union dues from the backpay award, the Hospital should be
 allowed a reasonable time to comply with the decision requested from the
 Comptroller General;  and further that the conduct involved did not tend
 to encourage or discourage membership in the union.  The subsequently
 issued decision of the Comptroller General made it clear that the
 Veterans Administration refusal to deduct such dues from Wade's backpay
 award was in compliance with law.  /6/
 
    Although Section 7115 of the Statute and a new regulatory pattern
 became effective after the Assistant Secretary and Comptroller General
 decisions, there is no basis for concluding that a different result
 should ensue.
 
    In summary, the record failed to disclose any evidence that the
 Respondent's conduct herein was violative of Sections 7116(a)(1) and (8)
 of the Statute.  Accordingly, it is recommended that the Authority issue
 the following Order pursuant to 5 C.F.R. Section 2423.29.
 
                                   ORDER
 
    IT IS HEREBY ORDERED, that the complaint in Case No. 2-CA-40484, be,
 and hereby is dismissed.
                                       /s/ Louis Scalzo
                                       Administrative Law Judge
 
    Dated:  June 28, 1985
    Washington, DC
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In view of this decision, it is not necessary that we address the
 Agency's other exceptions.
 
    (1) The alleged violation of Section 7116(a)(8) is based upon the
 premise that the conduct described contravenes Section 7115 of the
 Statute.  This section provides in pertinent part:
 
          Section 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 employees 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.
 
    (2) The record reflects that Greenwood was reimbursed for this dues
 deduction, and that no effort was made by the Respondent to recoup from
 the Union, the amount paid to Greenwood.  (Stipulated Exhibits 16(a)
 through 16(c)).
 
    (3) The legislative history of Section 7115 also indicates that a
 union dues allotment must be terminated when an employee "leaves the
 employ of the agency." H.R. REP. NO. 95-1403. 95th Cong., 2d Sess. at
 695.  This result is also required by the terms of the collective
 bargaining agreement governing the Respondent and the Charging Party.
 Article 31 entitled "DUES WITHHOLDING" provides:
 
                         Section 1 -- Eligibility
 
          Any bargaining unit employee may have dues deducted through
       payroll deductions.  Such deductions will be discontinued when the
       employee leaves the unit of recognition. . . .  (Stipulated
       Exhibit 5 at 57).
 
    (4) It may be assumed that such claims would vary considerably
 depending upon the employee's membership status following termination,
 and whether dues assessments have been paid to the union by the
 employee.  Also, the General Counsel's argument assumes that Greenwood
 would not have exercised his right to revoke dues withholding had his
 employment continued.  He would have had this option in March of 1982,
 1983, and 1984.
 
    (5) The facts were gleaned from the Assistant Secretary and
 Comptroller General opinions.
 
    (6) Counsel for the General Counsel argues that a published decision
 of the Comptroller decision in 60 Comp. Gen. 93 (1980) operates to
 negate the earlier decision in Wade.  The decision relied upon related
 to a case involving wrongful termination of dues allotments by an
 agency, and the approval of reimbursement of a union from appropriated
 funds with an agency right to collect or waive the debt from employees
 affected by the action.  The holding is not relevant here, and does not
 operate to modify the earlier deci