35:0835(90)CA - - Army and Air Force Exchange Service, Dallas, TX and Army and Air Force Exchange Service, Peterson AFB, CO and AFGE Local 1345 - - 1990 FLRAdec CA - - v35 p835



[ v35 p835 ]
35:0835(90)CA
The decision of the Authority follows:


35 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

AND

ARMY AND AIR FORCE EXCHANGE SERVICE

PETERSON AIR FORCE BASE, COLORADO

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 1345

(Charging Party/Union)

7-CA-90280

DECISION AND ORDER

April 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with part 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The General Counsel filed a brief with the Authority. Neither the Respondents nor the Union filed a brief.

The complaint alleged that the Respondents violated: (1) section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to properly deduct Union dues from certain employees' pay; and (2) section 7116(a)(1) and (5) of the Statute by subsequently increasing certain employees' deductions for Union dues without bargaining with the Union.

II. Facts

The Union is an agent of the American Federation of Government Employees, AFL-CIO, the exclusive representative of a worldwide consolidated unit of employees of the Army and Air Force Exchange Services (AAFES). The consolidated bargaining unit includes AAFES employees at Peterson Air Force Base.

Through administrative error, the Respondents failed to deduct $7 in Union dues from the pay of certain employees at Peterson Air Force Base for the pay period ending February 3, 1989. The Respondents and the Union had several conversations on how to correct the administrative error, but did not reach an agreement. For the next pay period, the Respondents deducted $21 from the pay of each employee whose Union dues had not been collected in the previous pay period. This deduction collected not only the dues owed for the current and previous pay periods, but, because of another administrative error, an extra $7 per employee. To correct the over-deduction, the Respondents then remitted $7 to each employee affected by the error.

III. Position of the General Counsel

The General Counsel argues that by failing to collect Union dues for the pay period ending February 3, 1989, the Respondents breached their duty to deduct regular and periodic Union dues under section 7115(a) of the Statute, and, therefore, violated section 7116(a)(1) and (8). The General Counsel further argues that the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing a "lump sum collection of uncollected dues" without giving the Union notice and the opportunity to bargain about how the dues collection problem was to be corrected. Brief at 5. According to the General Counsel, this "is not a case where the impact on unit employees needs to be examined" because "[m]anagement was not exercising one of its reserved rights under the Statute in this case." Id.

IV. Analysis

We find that the Respondents violated: (1) section 7116(a)(1) and (8) of the Statute by failing to deduct regular and periodic Union dues from certain employees for the pay period ending February 3, 1989; and (2) section 7116(a)(1) and (5) of the Statute by implementing a collection of uncollected dues without first giving the Union notice and an opportunity to bargain about the change in its deduction of Union dues from the pay of bargaining unit employees.

A. Section 7116(a)(1) and (8)

Section 7115 of the Statute imposes "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." Lowry Air Force Base, Denver, Colorado, 31 FLRA 793, 797 (1988) (Lowry Air Force Base). An agency's obligation to honor an employee's dues checkoff is mandatory and nondiscretionary. American Federation of Government Employees, Council 214 v. FLRA, 835 F.2d 1458 (D.C. Cir. 1987). An agency's failure to honor its section 7115 obligation violates section 7116(a)(1) and (8) of the Statute. See Lowry Air Force Base.

The parties stipulated that the Respondents failed to deduct Union dues from the pay of certain employees at Peterson Air Force Base for the pay period ending February 3, 1989. By failing to deduct Union dues from the pay of certain unit employees, the Respondents violated their duty under section 7115 to honor an employee's dues checkoff and, therefore, violated section 7116(a)(1) and (8).

B. Section 7116(a)(1) and (5)

An agency has the duty to bargain with the exclusive representative over changes in unit employees' conditions of employment, except as provided otherwise by Federal law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. See Department of the Army, Fort Greely, Alaska, 23 FLRA 858, 864 (1986). Even if the subject matter of a change in conditions of employment is outside the duty to bargain, an agency must bargain about the impact and implementation of a change that has more than a de minimis impact on unit employees. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986). An agency's failure to bargain over either of the changes in conditions of employment noted above violates section 7116(a)(1) and (5) of the Statute.

Section 7115(a) of the Statute establishes a mechanism for the payment of union dues by bargaining unit employees but does not prescribe how those dues are to be paid. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 363-64 (1986) (Proposal 7), affirmed as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). The procedures an agency will follow in deducting and remitting the regular and periodic dues to the union are matters subject to the duty to bargain. In this case, the parties stipulated that: (1) for the pay period ending February 3, 1989, the Respondents failed to deduct the regular and periodic Union dues (which amounted to $7) from the pay of certain employees; and (2) for the following pay period, the Respondents collected $21 from each employee whose dues had not been withheld in the previous pay period. Stipulation at 3. By collecting dues from certain employees in an amount higher than the regular and periodic amount agreed to by the parties, the Respondents changed conditions of employment. The Respondents do not argue that bargaining over that change would interfere with Federal law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. We conclude that the Respondents had a duty to bargain over the change and that, by failing to do so, the Respondents violated section 7116(a)(1) and (5) of the Statute.

Finally, in our view the dispute in this case should not have required resort to the formal appellate processes of the Statute. We urge representatives of both agency management and unions to resolve disputes of this nature bilaterally.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of Federal Service Labor-Management Relations Statute (the Statute), the Army and Air Force Exchange Service, Dallas, Texas and the Army and Air Force Exchange Service, Peterson Air Force Base, Colorado shall:

1. Cease and desist from:

(a) Refusing to comply with provisions of section 7115 of the Statute by failing to properly deduct the regular and periodic dues owed to the exclusive representative from the pay of bargaining unit employees.

(b) Failing to provide timely notice to the American Federation of Government Employees, AFL-CIO, Local 1345, the exclusive representative of their employees, of any changes in deducting Union dues from the pay of bargaining unit employees.

(c) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of the employees' rights assured by the Statute.

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

(a) Notify the American Federation of Government Employees, AFL-CIO, Local 1345, the exclusive representative of their employees, of any changes in deducting Union dues from the pay of bargaining unit employees and, on request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1345, to the extent consistent with law and regulations, on those changes.

(b) Post at its facilities at the Army and Air Force Exchange Service, Peterson Air Force Base, Colorado, 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 of the Army and Air Force Exchange Service, Peterson Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.20 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.



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 provisions of section 7115 of the Statute by failing to properly deduct the regular and periodic dues owed to the exclusive representative from the pay of bargaining unit employees.

WE WILL NOT fail to provide timely notice to the American Federation of Government Employees, AFL-CIO, Local 1345, the exclusive representative of our employees, of any changes in deducting Union dues from the pay of bargaining unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL notify the American Federation of Government Employees, AFL-CIO, Local 1345, the exclusive representative of our employees, of any changes in deducting Union dues from the pay of bargaining unit employees and, on request, bargain with the A