44:0098(8)NG - - AFGE Local 1857 and Air Force, McClellan AFB, CA - - 1992 FLRAdec NG - - v44 p98
[ v44 p98 ]
The decision of the Authority follows:
44 FLRA No. 8
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
MCCLELLAN AIR FORCE BASE, CALIFORNIA
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
February 26, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal, which requires certain "regular" unit employees to pay a fee to the Union for representation expenses.(1) For the following reasons, we find that the proposal is nonnegotiable.(2)
Section 1: All regular employees in the exclusive bargaining unit hired at McClellan or converted to a regular category position after this agreement is ratified shall pay a fee, starting by the beginning of the fourth full pay period, to cover all the expenses directly associated with the Union's contractual representational obligations. This fee shall be adjusted on a [sic] annual basis. Such fee shall not exceed the amount determined by the Union as reasonable recompense for the expense of representation under the terms of the Labor Agreement.
Section 2: This fee shall be based solely on expenses incurred due to contractual obligations including; [sic] the percentage of the staff time used to administer the contract; arbitration costs; negotiations expenses; percentage of overhead costs. None of this revenue will be used directly, or indirectly for internal union business.
Section 3: A separate account will be set-up to administrate [sic] these funds. Any funds left over from the previous year shall be applied to the next year's budget and used to offset the direct representational expenses. All expenditures shall be accounted for and all financial records shall be available for inspections.
Section 4: When determining the fee, the Union will prepare a detailed line item projection of all expected expenses. Any revenue from the previous year shall be applied to the next years expenses. The remainder shall be divided equally and deducted from all regular employees pay. Those regular employees hired prior to the ratification of this agreement shall not be required to pay a representational fee, however may elect to do so by submitting a variation of the SF-1187.
Section 5: Any regular employee may elect to give this fee to a certified charity in lieu of the Union if they notify the Union or the NAF Personnel Office between ninety and sixty days prior to the end of the fee's yearly cycle, and said fee violates any religious beliefs.
Section 6: In order to accurately determine the fee to be paid, the Agency shall inform the Union of its total number of regular employees sixty days prior to the next yearly fee cycle.
Section 7: A person wishing to examine either the projected expenses or actual expenditures shall notify the Union or NAF Personnel in writing. The Union shall make the records available for inspection at either a facility on the base, or at the Union Hall depending on the preference of the person wishing to review the records.
Section 8: This fee shall be automatically withheld from the employee's pay in 26 equal installments annually.
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal conflicts with 5 U.S.C. § 7102. The Agency claims that the proposal would establish an agency shop and, as such, is nonnegotiable based on the Authority's decision in Service Employees' International Union, AFL-CIO, Local 556 and Department of the Army, Headquarters, U.S. Army Support Command, Fort Shafter, Hawaii, 1 FLRA 563 (1979) (SEIU).
B. The Union
The Union asserts that the disputed proposal differs significantly from the one held nonnegotiable in SEIU. The Union argues, in this regard, that the proposed fee would cover only "direct representational expenses." Reply Brief at 2. Also, according to the Union, the proposed fee is voluntary because an individual can decline a job offered by the Agency if the individual does not want to pay the fee. The Union also notes that the proposal would apply both to Union members and nonmembers.
In addition, the Union notes that the employees involved in this case are employees of nonappropriated fund (NAF) instrumentalities. The Union claims that the portions of the legislative history of the Statute relied on by the Authority in SEIU do not concern NAF employees. The Union also argues, based on Fort Stewart Schools v. FLRA, 110 S. Ct. 2043, 2049 (1990) (Fort Stewart), that the proposal is negotiable because, according to the Union, "[t]here is no specific law that prohibits a fee being charged to bargaining unit employees." Attachment to Petition for Review at 7.
IV. Analysis and Conclusions
Section 7102 of the Statute provides, in pertinent part, that "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right." As noted by the parties, the Authority determined in SEIU that a proposal obligating an agency to deduct from all unit employees' wages an amount equal to regular union dues was inconsistent with the portion of section 7102 guaranteeing employees the right to refrain from assisting a labor organization. We reach the same conclusion here.
As plainly worded, the proposal would require all employees who are hired for or converted to a regular unit position after ratification of the parties' collective bargaining agreement to pay a fee to the Union to "cover all the expenses directly associated with the Union's contractual representational obligations." The Union confirms that, consistent with its plain wording, the proposed fee would be used to fund Union representational activities. Attachment to Petition for Review at 3. The Union offers no support, and none is apparent to us, for its argument that the Union's obligations under the Statute to engage in such activities means that the proposed fee would not "assist" the Union, within the meaning of section 7102 of the Statute. Instead, it is clear to us that, by offsetting Union expenses incurred in connection with such matters as contract administration and negotiations, the proposed fee payments would clearly and directly "assist" the Union, within the meaning of section 7102 of the Statute. It is also clear that covered employees would be precluded from exercising their right to refrain from such activity.
We reject the Union's claim that the proposed fee is consistent with section 7102 because an individual could decline to accept a regular unit position if he or she did not want to pay the fee. Once an individual becomes an employee under the Statute, that individual has the right, under section 7102 of the Statute, to refrain from assisting the Union or to cease assisting the Union, even if the assistance previously was given voluntarily. Under the proposal, covered employees would be unable to refrain from providing the representational fee to the Union. Accordingly, the proposal is inconsistent with section 7102 of the Statute. Moreover, that employees who objected to the fee on religious grounds could elect to donate to charity an amount of money equal to the fee does not alter this conclusion.
As the proposal is inconsistent with section 7102 of the Statute, it is nonnegotiable. We note, in this regard, that nothing in the Statute or its legislative history indicates that NAF employees are accorded any different rights under section 7102 than are other employees. Similarly, as section 7102 expressly guarantees employees the right to refrain from assisting a union, the Union's claim that the Statute does not expressly prohibit a representational fee, and its reliance on Fort Stewart, are misplaced. Finally, as