36:0025(4)AR - - AFGE Local 1963 and Veterans Affairs, Medical Center, Danville, IL - - 1990 FLRAdec AR - - v36 p25
[ v36 p25 ]
The decision of the Authority follows:
36 FLRA No. 4
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
June 6, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Joseph P. Yaney filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by terminating an employee's dues withholding during the period that he was temporarily promoted to a supervisory position.
For the following reasons, we find that the Arbitrator's award is deficient because it is contrary to section 7115 of the Statute.
II. Background and Arbitrator's Award
This case arose when the Agency terminated the voluntary dues withholding of an employee after the employee had been temporarily promoted to a supervisory position. The Union filed a grievance, claiming that the action violated the parties' collective bargaining agreement.
The parties stipulated that the issue before the Arbitrator was: "Did the agency violate Article 31 of the Master Agreement and 5 USC 7115(b), in terminating the dues deduction of [an employee who had been temporarily promoted to a supervisory position]? If so, what is the remedy?" Award at 3.
The Arbitrator found that it should not matter to the Agency whether an employee wants to continue to pay dues to the Union after being temporarily promoted to a supervisory position. The Arbitrator concluded, therefore, that the Agency should take no action regarding dues withholding when an employee is temporarily promoted to a supervisory position. Accordingly, the Arbitrator ordered the Agency not to make changes in the dues allotments of employees who are temporarily promoted to supervisory positions and to inform unit employees who receive temporary promotions to supervisory positions that dues would continue to be withheld from their pay. The Arbitrator also ruled that the Agency was not required to reimburse the Union for the grievant's dues which had not been withheld during the period of the grievance.
III. Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient because it is contrary to section 7115 of the Statute. The Agency argues that under section 7115 a collective bargaining agreement ceases to apply to an employee when the employee is promoted out of the bargaining unit, even on a temporary basis. The Agency concludes that because the Arbitrator's award requires it to continue to withhold dues under the agreement for an employee to whom the agreement does not apply, the award conflicts with section 7115. The Agency cites International Association of Machinists and Aerospace Workers, Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 25 FLRA 194 (1987) (Aberdeen Proving Ground) and Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371, 371-73 (1981) (Fresno Service Center), reversed as to other matters sub nom. Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) in support of its position.
We agree with the Agency that the award violates section 7115 of the Statute. Accordingly, we will set the award aside.
The Authority has previously addressed the issue of whether dues may continue to be withheld for an employee while that employee is temporarily promoted to a supervisory position. In Fresno Service Center, 7 FLRA at 371-73, the Authority found that section 7115(b)(1) of the Statute requires an agency to terminate dues withholding when an employee has been promoted to a temporary supervisor position and, therefore, is outside the bargaining unit. Relying on Fresno Service Center, the Authority subsequently found a proposal which would have required an agency to maintain an employee on dues withholding when the employee was temporarily promoted to a supervisory position for a period of less than 30 days to be inconsistent with section 7115(b)(1). Aberdeen Proving Ground, 25 FLRA at 197-98.
Based upon Authority precedent, because the award in this case would require the Agency to continue dues withholding for employees who are temporarily promoted to supervisory positions, it is contrary to section 7115(b)(1) of the Statute. We conclude, therefore, that the award is deficient under section 7122(a) of the Statute because it is inconsistent with law and that it must be set aside.
The award is set as