31:1197(106)CA - Air Force, HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1988 FLRAdec CA



[ v31 p1197 ]
31:1197(106)CA
The decision of the Authority follows:


31 FLRA No. 106

DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO

             Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO

              Charging Party

Case No. 5-CA-50046
(23 FLRA 376)

SUPPLEMENTAL DECISION AND ORDER

I. Introduction

In Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base Ohio, 23 FLRA 376 (1986), the Authority found that the Respondent had not violated section 7116(a)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by recouping overpayments of union dues previously remitted to the Charging Party by deducting the overpayments from subsequent remittances. Subsequently, the United States Court of Appeals for the District of Columbia Circuit reversed the Authority's decision. American Federation of Government Employees, Council 214 v. FLRA, 835 F.2d 1458 (D.C. Cir. 1987).

Consistent with our decision in Lowry Air Force Base Denver, Colorado, 31 FLRA No. 54 (1988), we reverse the Authority's previous holding in this case and find that the Respondent violated the Statute as alleged. [PAGE]

II. Background

The American Federation of Government Employees, AFL - CIO (AFGE National) is the exclusive representative of a consolidated unit of employees of the Air Force Logistics Command (AFLC), including employees at Kelly Air Force Base, San Antonio, Texas. AFGE Council 214 (the Union) is the agent of AFGE National regarding AFLC employees and AFGE Local 1617 (the Local)--an affiliate of the Union--is the local union at Kelly Air Force Base. The parties' agreement contains a dues withholding provision that provides that "(a)dministrative errors in remittance checks and/or improper deductions will be corrected by the (Respondent) and adjusted in the next remittance check to be issued to the Union local."

According to the Respondent, underpayments and overpayments of dues were corrected as a matter of course by adding to or subtracting from the amount remitted to the Local during any given pay period. For four pay periods in June and September 1984, management officials at Kelly Air Force Base deducted a total of $220.50 from the amount allotted and remitted to the Local. That total represented dues allotments withheld erroneously in the past from salaries of unit employees who had authorized such assignments but later became ineligible for dues withholding when they were promoted to supervisory positions. The Respondent then used these funds to reimburse the supervisors for the amount of dues erroneously withheld from their salaries.

Following the Union's filing of an unfair labor practice charge, the General Counsel issued a complaint alleging that the Respondent violated the Statute when it recouped erroneous union dues checkoff allotments previously transmitted to the Local by reducing subsequent dues remittances. The Administrative Law Judge concluded that the dues recoupment in this case was the same as that in other Authority decisions in which no unfair labor practices had been found, and he recommended dismissal of the unfair labor practice complaint. The Authority adopted the Judge's recommendation and found that the Respondent had not violated the Statute in recouping overpayments of union dues previously remitted to the exclusive representative by deducting the overpayments from subsequent remittances. Wright - Patterson AFB, Ohio, 23 FLRA 376 (1986).

Subsequently, the Union petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the Authority's decision. In AFGE, Council 214 v. FLRA, 835 F.2d 1458, [ v31 p2 ] the court reversed the Authority's decision and interpreted section 7115 "as imposing an absolute duty on the employer to turn over to the union all funds deducted." Id. at 1460.

III. Current Case Law

On March 15, 1988, we issued our Decision and Order in Lowry Air Force Base, Denver, Colorado, 31 FLRA No. 54 (1988). In that case, we reexamined the issue of whether an agency violates the Statute in recouping overpayments of union dues previously remitted to an exclusive representative by deducting the overpayments from subsequent remittances. On reexamination of relevant provisions of the Statute, prior Authority decisions, and decisions of the courts of appeals, we found that the agency in that case violated the Statute by reducing a current remittance of union dues to an exclusive representative in order to recoup a previous erroneous payment.

We also stated that previous decisions of the Authority to the contrary would no longer be followed. Further, we stated that in future cases, we would 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. Finally, we expressed 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.

IV. Conclusion

In light of our holding in Lowry AFB, Denver and the court's decision in this case, we reverse the Authority's decision in Wright - Patterson AFB, Ohio, 23 FLRA 376 and conclude that the Respondent failed to comply with section 7115 of the Statute in reducing the monies payable to the Local from the regular and periodic dues withheld from the pay of unit employees by the amount of $220.50. 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 [ v31 p3 ] that the Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio shall:

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 American Federation of Government Employees, Local 1617, a Local of 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, Local 1617, a Local of the exclusive representative of a unit of its employees, the sum of $220.50, 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 prior erroneous overpayments.

(b) Post at all its facilities at Kelly Air Force Base, San Antonio, Texas where bargaining unit employees represented by the American Federation of Government Employees, Council 214, AFL - CIO 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, Department of the Air Force, Headquarters, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio 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,