25:0523(39)CA - VA Medical Center, Pittsburgh, PA and AFGE Local 2028 -- 1987 FLRAdec CA
[ v25 p523 ]
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 decision issued in the Wade case.