31:0793(54)CA - Lowry AFB, Denver, CO and AFGE Local 1974 -- 1988 FLRAdec CA



[ v31 p793 ]
31:0793(54)CA
The decision of the Authority follows:


31 FLRA No. 54

LOWRY AIR FORCE BASE,
DENVER, COLORADO

         Respondent

    and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1974

         Charging Party

Case No. 7-CA-70181

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of our Rules and Regulations based on the parties' stipulation of facts. The complaint alleges that the Respondent violated section 7116(a) (1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) in recouping prior incorrect payments of dues to the Charging Party (the Union) by deducting the amount of the incorrect payments from later dues payments. The Respondent filed a brief. The General Counsel's brief was filed untimely and was not considered.

We conclude that the Respondent violated the Statute as alleged. We reach this conclusion based on the reasoning and conclusions of three U.S. courts of appeals. We will no longer follow decisions of the Authority to the contrary.

II. Facts

For a number of pay periods, the Respondent deducted from employee Herman Kramer's pay monies equivalent to union dues in a total amount greater than $129. These monies were remitted to the Union. Kramer was not eligible to have union dues withheld from his pay pursuant to the parties' collective bargaining agreement because Kramer was not a member of the bargaining unit represented by the Union. The deduction of monies was due to an administrative error on the part of the Respondent. [PAGE]

In November 1986, the Respondent reduced the monies payable to the Union from the regular and periodic dues withheld from the pay of unit employees by the amount of $129.00. This money was remitted to Kramer. The reduction of the remittance to the Union was accomplished without the consent or agreement of the Union.

III. Position of the Respondent

The Respondent argues that a recoupment of dues erroneously remitted to an exclusive representative by deducting the previous overpayment from a subsequent remittance of dues for current members does not violate the Statute.

IV. Discussion

This case presents the opportunity for us to reexamine the issue of whether an agency violates the Statute in recouping overpayments of union dues previously remitted to an exclusive representative by deducting such overpayments from subsequent remittances.

A. Relevant Provisions of the Statute

Section 7115 of the Statute pertains to allotments to exclusive representatives and is relevant to this issue. Section 7115(a) and (b) provide as follows:

(a) if an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.

(b) An allotment under subsection (a) of this section for the deduction of dues with respect to any employee shall terminate when--

(1) the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee; or [ v31 p2 ]

(2) the employee is suspended or expelled from membership in the exclusive representative.

B. Current Case Law

In Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas, 9 FLRA 394 (1982) (Goodfellow AFB), the Authority adopted the Judge's finding that the agency had not violated the Statute in recouping from the union an amount of dues erroneously forwarded to the union on previous occasions. The agency had deducted from a dues allotment check remitted to the union an amount that the agency had reimbursed an employee who had dues improperly withheld from her salary and forwarded to the union after she had been promoted to a supervisory position. The Authority noted that section 7115(b) requires dues withholding authorizations to terminate when an employee has been promoted to a supervisory position outside the unit. Consequently, the Authority held that an agency's correction of an administrative error in order to comply with the statutory mandate did not violate the Statute. 9 FLRA at 396.

On the basis of Goodfellow AFB, the Authority in Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983) (Griffiss AFB), reversed the Judge's finding that a recoupment of dues erroneously paid previously violated the Statute. A number of employees had been subjected to erroneous withholding of dues either because they had never been in the bargaining unit represented by the union or had dues withheld after they had been promoted out of the unit. The agency had withheld monies from current union dues allotments of unit employees and disbursed the monies to the employees who had been subjected to the erroneous withholdings.

Both Goodfellow AFB and Griffiss AFB were reversed and remanded by U.S. courts of appeals.

Goodfellow AFB was reversed by the U.S. Court of Appeals for the Fifth Circuit in American Federation of Government Employees Local 1816 v. FLRA, 715 F.2d 224 (5th Cir. 1983). The court concluded that "(n)othing in the plain language of 7115 or its legislative history justifies (the agency's) resort to a 'self-help' method of recoupment." 715 F.2d at 228. The court held that "(s)ection 7115(a) instead imposes an affirmative duty on a federal agency to honor the current assignments of unit employees by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representatives." Id. Accordingly, the [ v31 p3 ] court held that the agency's action in recouping dues violated section 7116(a)(1) and (8) of the Statute. Id.

Griffiss AFB was reversed by the U.S. Court of Appeals for the Second Circuit in American Federation of Government Employees Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984). The court ruled that "Congress fashioned section 7115(a) so that an agency's obligation to honor dues checkoff authorizations is mandatory and nondiscretionary." 739 F.2d at 89. The court explained that under the clear and specific language of section 7115(a), unit employees who assign a portion of their wages for payment of union dues have the right to expect that the money will be used for that purpose. Id. at 90. Accordingly, the court held that the agency's action in recouping dues did not comply with section 7115(a) and violated section 7116(a)(8) of the Statute.

The Authority issued supplemental decisions accepting the court decisions as "the law of the case." Department of the Air Force, Griffiss Air Force Base Rome, New York, 15 FLRA 1032 (1984); Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas, 14 FLRA 795 (1984).

In Department of the Air Force, Headquarters, Air Force Logistics command, Wright - Patterson Air Force Base Ohio, 23 FLRA 376 (1986) (Wright - Patterson AFB), the Authority adopted the Judge's finding that the agency had not violated the Statute in recouping overpayments of union dues previously remitted to the exclusive representative by deducting the overpayments from subsequent remittances. The Authority noted its consistent holdings that an agency's recoupment of dues by deducting previous incorrect payments from subsequent remittances of dues for current members is consistent with section 7115 of the Statute and does not violate section 7116(a)(1) or (8) of the Statute. The Authority stated that it would continue to follow this precedent and respectfully disagreed with the views of the U.S. Courts of Appeals for the Second and Fifth Circuits. 23 FLRA at 379-80.

Wright - Patterson AFB was reversed by the U.S. Court of Appeals for the D.C. Circuit in American Federation of Government Employees Council 214 v. FLRA, No. 86-1631 (D.C. Cir. Dec. 29, 1987). The court interpreted section 7115 "as imposing an absolute duty on the employer to turn over to the union all funds deducted." Slip op. at 4. The court agreed with the U.S. Court of Appeals for the Second Circuit that an agency's obligation to honor an employee's dues checkoff is mandatory and nondiscretionary. The court held that under section 7115, an agency is authorized only to allot, not to [ v31 p4 ] set off. Id. at 4-5. Accordingly, the court reversed the Authority's decision.

C. Application of Section 7115 and Approach To Be Followed On Agency Recoupment of Dues Payments

On reexamination of prior Authority decisions, and based on the reasoning and conclusions of the U.S. courts of appeals, we now hold that an agency violates the Statute in reducing a current remittance to an exclusive representative of union dues in order to recoup a previous erroneous payment. Previous decisions of the Authority to the contrary will no longer be followed.

In this and future cases, we will interpret section 7115 of the Statute to impose an absolute duty on agencies to honor the current assignments of unit employees by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representatives. Therefore, under section 7115, an agency is authorized only to allot dues, not to set off. Consistent with these requirements, we will find recoupment of prior erroneous payments from a subsequent remittance of dues to violate section 7116(a)(1) and (8) of the Statute.

The courts specifically did not decide whether an agency has a claim against an exclusive representative for erroneous overpayments which may be pursued by other means. AFGE Local 2618, 739 F.2d 87, 90 n.1; AFGE Council 214, slip op. at 7. We likewise express no view on what other actions, if any, an agency may take to recover amounts claimed to have been improperly remitted previously as dues to an exclusive representative.

V. Conclusion

We conclude that the Respondent failed to comply with section 7115 of the Statute in reducing the monies payable to the Union from the regular and periodic dues withheld from the pay of unit employees by the amount of $129. Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute and we will order an appropriate remedy.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that Lowry Air Force Base, Denver, Colorado, shall: [ v31 p5 ]

1. Cease and desist from:

(a) Refusing to comply with the provisions of section 7115 of the Statute by failing to remit the regular and periodic dues deducted from unit employee salaries to the exclusive representative.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Reimburse the American Federation of Government Employees, AFL - CIO, Local 1974, the exclusive representative of a unit of its employees, the sum of $129, the amount equal to the regular and periodic dues it would have received from the pay of employees, but did not receive as a result of the unlawful withholding of such monies in order to recoup a prior erroneous overpayment.

(b) Post at all its facilities where bargaining unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 1974 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, Lowry Air Force, Denver, Colorado, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C. March 15, 1988

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

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                   NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
            AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to comply with the provisions of section 7115 of the Statute by failing to remit the regular and periodic dues deducted from unit employee salaries to their exclusive representative.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our emp