35:1095(120)CA - - Treasury, Mint and AFGE, Mint Council, C-157 - - 1990 FLRAdec CA - - v35 p1095



[ v35 p1095 ]
35:1095(120)CA
The decision of the Authority follows:


35 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

U.S. MINT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

MINT COUNCIL, C-157

(Charging Party)

3-CA-80531

DECISION AND ORDER

May 14, 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 section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The Respondent and the General Counsel filed briefs with the Authority.

The complaint alleges that the Respondent violated section 7115(a) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to process the dues withholding authorizations from 39 bargaining unit employees, thereby violating section 7116(a)(1) and (8). The Respondent admits that it has refused to process the signed dues withholding authorizations. However, the Respondent asserts that: (1) employees' dues withholding authorizations cannot be processed until the parties agree or the Authority determines which employees are included in the bargaining unit; and (2) the parties must negotiate provisions by which dues are deducted before dues can be withheld.

For the reasons set forth below, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to comply with the requirement of section 7115(a) to honor the dues assignments from employees in an appropriate unit and to make the appropriate allotments to the exclusive representative pursuant to the assignments.

II. Background

In 1980, pursuant to the Authority's decision in U.S. Department of the Treasury, Bureau of the Mint, 2 FLRA 458 (1980), three separate units--professional employees, nonprofessional employees, and guards--were consolidated into a nationwide unit.

On October 20, 1980, upon a request from the parties, an amended Certification of Consolidation of Units was issued that specifically excluded temporary employees from the consolidated unit.

On February 29, 1988, the Regional Director, Washington Regional Office, issued a decision in U.S. Department of the Treasury, United States Mint, Case No. 3-AC-70001, finding that the certification could be further amended to exclude only those temporary employees who are appointed for up to 700 hours and have no reasonable expectation of reappointment. On June 28, 1988, the Authority issued its decision in U.S. Department of the Treasury, United States Mint, 32 FLRA 508 (1988) (United States Mint), denying the Respondent's application for review of the Regional Director's decision.

Accordingly, on July 6, 1988, the Regional Director, Washington Regional Office, clarified the amended Certification of Consolidation of Units by explicitly excluding from the certified bargaining unit the classification of temporary employees who are appointed for up to 700 hours with no reasonable expectation of reappointment.

III. Facts

On June 29, 1988, the day after the Authority's decision in United States Mint, Paulette T. Weinrich, the Respondent's Policy Division Chief and Labor Relations Officer, advised the Charging Party's President, Milton McFarland, that, because temporary employees were excluded from coverage of the parties' collective bargaining agreement, no dues withholding for temporary employees would occur until the parties negotiated appropriate provisions.

On July 21, 1988, the Charging Party submitted to the Respondent 20 signed dues assignments from temporary employees in the bargaining unit at the San Francisco Mint. On that same date, the Respondent refused to process the 20 dues assignments and stated that it would not accept or process any dues assignments from temporary employees in the bargaining unit.

From July 21, 1988, to September 26, 1988, the Charging Party received 9 additional signed dues assignments from bargaining unit temporary employees at the San Francisco Mint and 10 signed dues assignments from temporary employees in the bargaining unit at the Philadelphia Mint. During this period, the Charging Party submitted to the Respondent the 10 dues assignments from the Philadelphia Mint employees, but the Respondent also refused to process these dues assignments. The Charging Party decided not to submit to the Respondent the 9 dues assignments from the San Francisco Mint employees in view of the Respondent's announcement that it would neither process nor accept any dues assignments from temporary employees in the bargaining unit.

IV. Positions of the Parties

The Respondent contends that, under section 7115(b)(1) of the Statute, an agency is prohibited from withholding dues for employees specifically excluded from coverage of a collective bargaining agreement. The Respondent argues that it is prohibited from withholding dues for those temporary employees added to the bargaining unit because the parties' collective bargaining agreement specifically excludes all temporary employees. Next, the Respondent asserts that it is not obligated to withhold dues for temporary employees until such time as the parties come to agreement on how the collective bargaining agreement affects temporary employees. Finally, the Respondent contends that before dues are withheld for temporary employees, the parties must negotiate a dues withholding agreement or an agreement covering all aspects of personnel policies involving temporary employees. In this regard, the Respondent argues that if it is required to apply the collective bargaining agreement to temporary employees with respect to dues withholding, it might be required to apply other provisions of the agreement to those employees in violation of Government-wide regulations.

The General Counsel contends that the language of section 7115(a) of the Statute is clear and unequivocal. The General Counsel argues that the provisions of section 7115(a) are mandatory and, therefore, compel the Respondent to process the dues assignments for the temporary employees now in the bargaining unit. The General Counsel seeks an order reimbursing the Charging Party in an amount equal to the dues the Charging Party would have received but for the Respondent's failure to accept and process the 39 signed dues assignments.

V. Analysis and Conclusion

We conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to comply with the requirement of section 7115(a) to honor the dues assignments from employees in an appropriate unit and to make the appropriate allotments to the exclusive representative pursuant to the assignments. To remedy this violation of the Statute, we will order the Respondent to reimburse the Charging Party in an amount equal to the dues the Charging Party would have received but for the Respondent's failure to accept and process signed dues assignments from temporary employees in the bargaining unit.

Section 7115(a) of the Statute provides that if an agency receives from an employee in an appropriate unit a written assignment authorizing a deduction of dues, the agency shall honor the assignment and make an appropriate allotment to the exclusive representative. The legislative history of section 7115 indicates that the employee alone controls the manner of dues payment and that an agency's obligation to honor dues check-off authorizations is mandatory and nondiscretionary. American Federation of Government Employees, AFL-CIO, Local 2612 v. FLRA, 739 F.2d 87, 89 (2d Cir. 1984), reversing Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983). Section 7115(a) imposes an affirmative duty on an agency to honor current dues assignments of unit employees by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representative. American Federation of Government Employees, AFL-CIO, Local 1816 v. FLRA, 715 F.2d 224, 228 (5th Cir. 1983), reversing Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas, 9 FLRA 394 (1982). An agency must process dues assignments expeditiously. Department of Justice, United States Attorney's Office, Los Angeles, California, 17 FLRA 1005, 1006 (1985) (citing Department of Health and Human Services, Social Security Administration, 13 FLRA 625 (1984) and Department of Health and Human Services and Social Security Administration, Region IX, San Francisco, California, 12 FLRA 250 (1983)). An agency is obligated to honor employees' dues assignments from their effective date even when it questions the unit status of such employees. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 16 FLRA 1124, 1126 (1984).

The Respondent contends that it is prohibited from withholding dues from the temporary employees added to the bargaining unit because the parties' collective bargaining agreement specifically excludes all temporary employees. The Respondent argues that before dues are withheld for temporary employees, the parties must negotiate a dues withholding agreement or an agreement covering all aspects of personnel policies involving temporary employees. We disagree.

It is clear from the legislative history of section 7115(a) that Congress intended the Statute, and not the collective bargaining agreement covering a unit, to govern the area of dues withholding. See American Federation of Government Employees, Council 214, AFL-CIO v. FLRA, 835 F.2d 1458, 1461 (D.C. Cir. 1987), reversing Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 23 FLRA 376 (1986) (court distinguished between Federal sector requirements and the private sector, where dues withholding is a matter reserved for collective bargaining). As the court stated in AFGE, Local 2612, "Congress rejected . . . proposals providing that dues check-off would be a matter negotiated between federal agencies and unions that act as exclusive employee representatives." 739 F.2d at 89 (citing H.R. Rep. No. 1403, 95th Cong., 2d Sess. 48 (1978); Conf. Rep. No. 1717, 95th Cong., 2d Sess. 155 (1978); 124 Cong. Rec. at H9637 (daily ed. Sept. 13, 1978) (statement of Rep. Clay); and 124 Cong. Rec. at H9639 (daily ed. Sept. 13, 1978) (statement of Rep. Collins)). See also Defense Logistics Agency, 5 FLRA 126, 133 (1981).

Accordingly, under section 7115(a) of the Statute, once the temporary employees were included in the bargaining unit, the Respondent was obligated to honor dues assignments from those employees and make appropriate allotments notwithstanding the terms of the parties' collective bargaining agreement. Indeed, even though the procedures that an agency will follow in deducting and remitting the regular and periodic dues to a union are matters subject to the duty to bargain, the Respondent would have been obligated to honor the dues assignments of unit employees and make allotments even if no agreement had been in effect at the time. Cf. Army and Air Force Exchange Service, Dallas, Texas, and Army and Air Force Exchange Service, Peterson Air Force Base, Colorado, 35 FLRA No. 90 (1990) (the procedures an agency will use to deduct and remit dues are within the duty to bargain). Under section 7115(a), the initiation of dues withholding is not dependent on the parties' collective bargaining agreement.(*) Consequently, the Respondent's concerns about potential conflicts with Government-wide regulations in other areas if it complies with its obligations under section 7115(a) of the Statute are unwarranted.

Therefore, we find that the Respondent violated section 7116(a)(1) and (8) when it failed to comply with the requirements of section 7115(a) to honor the assignments from employees in an appropriate unit and to make appropriate allotments pursuant to the assignments.

The remedy for failing to comply with section 7115(a) properly includes a requirement that an agency reimburse a union for the dues it would have received but did not as a result of the unlawful conduct. Naval Underwater Systems Center, 16 FLRA at 1127. We agree with the General Counsel that the affected employees should include the nine whose dues assignments were not presented to the Respondent because to do so would have been a futile act which the Statute does not require. See Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 19 FLRA 586, 609 n.9 (1985) (employee's failure to transmit a request for revocation of dues withholding to an agency does not preclude an unfair labor practice finding in view of record evidence that submitting the request would have been futile because the agency would not have honored the revocation).

Accordingly, we will order the Respondent to reimburse the Charging Party in an amount equal to the dues it would have received from the pay of: (1) the bargaining unit employees named in Appendix A; and (2) other bargaining unit employees who executed valid written dues assignments since June 29, 1988, but which the Charging Party did not receive or which were not submitted to the Respondent as a result of the unlawful refusal by the Respondent to honor the employees' valid written dues assignments. Thus, we leave to the compliance stage of this case the determination of whether there were other employees not specifically covered by the stipulation whose dues assignments would have been submitted to the Respondent had the unlawful conduct not occurred.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Treasury, U.S. Mint shall:

1. Cease and desist from:

(a) Refusing to comply with the provisions of section 7115(a) of the Federal Service Labor-Management Relations Statute by refusing to accept and honor valid written dues assignments from the 39 bargaining unit employees named in Appendix A, or by refusing to accept and honor valid written dues assignments from other bargaining unit employees for the payment of regular and periodic dues to the American Federation of Government Employees, Mint Council, C-157, AFL-CIO, the exclusive representative of the unit employees.

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

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Reimburse the exclusive representative, American Federation of Government Employees, Mint Council, C-157, AFL-CIO, in an amount equal to the regular and periodic dues it would have received from the pay of: (1) the bargaining unit employees named in Appendix A; and (2) other bargaining unit employees who executed valid written dues assignments since June 29, 1988, but which dues it did not receive as a result of the unlawful refusal to honor the employees' valid written dues assignments for such purpose.

(b) Commencing with the first pay period after the date of this Order, deduct regular and periodic dues from the pay of: (1) the bargaining unit employees named in Appendix A; (2) other bargaining unit employees who executed valid written dues assignments since June 29, 1988; and (3) any other bargaining unit employee who may in the future complete a valid written dues assignment for such purpose and make an appropriate allotment of such dues to the exclusive representative, American Federation of Government Employees, Mint Council, C-157, AFL-CIO.

(c) Post at all facilities of the U.S. Department of the Treasury, U.S. Mint, 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 Director of the U.S. Mint and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, 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 the provisions of section 7115(a) of the Federal Service Labor-Management Relations Statute by refusing to accept and honor valid written dues assignments from bargaining unit employees for the payment of regular and periodic dues to the American Federation of Government Employees, Mint Council, C-157, AFL-CIO, the exclusive representative.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL reimburse the exclusive representative, American Federation of Government Employees, Mint Council, C-157, AFL-CIO, in an amount equal to the regular and periodic dues it would have received from the pay of bargaining unit employees who executed valid written dues assignments but which dues it did not receive as a result of our unlawful refusal to honor the employees' valid written dues assignments for such purpose.

WE WILL deduct regular and periodic dues from the pay of bargaining unit employees who executed valid written dues assignments since June 29, 1988, and any other bargaining unit employee who completes a valid written dues assignment for such purpose and makes an appropriate allotment of such dues to the exclusive representative, American Federation of Government Employees, Mint Council, C-157, AFL-CIO.

___________________________
(Activity)

Dated:__________ By:________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W.; Suite 700; P.O. Box 33758; Washington, D.C. 20033-0758; and whose telephone number is: (202) 653-8500.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The termination of a unit employee's dues allotment, on the other hand, is controlled by section 7115(b), which provides, in part, that the agency must terminate dues withholding when the parties' collective bargaining agreement ceases to apply to the employee, for example, when the employee is permanently promoted out of the unit. See United States Department of Labor, 20 FLRA 296, 301-02 (1985), reversed as to other matters sub nom. American Federation of Government Employees, Local 2513 v. FLRA, 834 F.2d 174 (D.C. Cir. 1987). Section 7115(b) is inapposite in this case because