Service Employees' International Union, AFL-CIO, Local 556 (Union) and Department of the Army, Headquarters, U.S. Army Support Command, Fort Shafter, Hawaii (Activity) 

 1 FLRA No. 64
 
 SERVICE EMPLOYEES' INTERNATIONAL UNION,
 AFL-CIO, LOCAL 556
 (Union)
 
 and
 
 DEPARTMENT OF THE ARMY,
 HEADQUARTERS, U.S. ARMY SUPPORT COMMAND,
 FORT SHAFTER, HAWAII
 (Activity)
 
                                            Case No. 0-NG-2
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
                                AGENCY SHOP
 
    MEMBERSHIP IN THE UNION IS NOT COMPULSORY.  EMPLOYEES HAVE THE RIGHT
 TO JOIN, NOT JOIN, MAINTAIN, OR DROP THEIR MEMBERSHIP IN THE UNION, AS
 THEY SEE FIT.  NEITHER PARTY SHALL EXERT PRESSURE ON OR DISCRIMINATE
 AGAINST AS REGARDS SUCH MATTERS.
 
    MEMBERSHIP IN THE UNION IS SEPARATE, APART, AND DISTINCT FROM THE
 ASSUMPTION BY ONE OF HIS EQUAL OBLIGATION TO THE EXTENT THAT HE RECEIVES
 EQUAL BENEFITS.  THE UNION IS REQUIRED UNDER THIS AGREEMENT TO REPRESENT
 ALL OF THE EMPLOYEES IN THE BARGAINING UNIT FAIRLY AND EQUALLY WITHOUT
 REGARD TO WHETHER OR NOT AN EMPLOYEE IS A MEMBER OF THE UNION.  THE
 TERMS OF THIS AGREEMENT HAVE BEEN MADE FOR ALL EMPLOYEES IN THE
 BARGAINING UNIT AND NOT ONLY FOR MEMBERS IN THE UNION.
 
    ACCORDINGLY, IT IS FAIR THAT EACH EMPLOYEE IN THE BARGAINING UNIT PAY
 HIS OWN WAY AND ASSUME HIS FAIR SHARE OF THE OBLIGATION ALONG WITH THE
 GRANT OF EQUAL BENEFIT CONTAINED IN THIS AGREEMENT.  IN CONSONANCE WITH
 THIS POLICY, THE EMPLOYER AGREES TO DEDUCT FROM ALL THE EMPLOYEES' WAGES
 AN AMOUNT OF MONEY EQUAL TO THE UNION'S REGULAR DUES.  FOR PRESENT
 EMPLOYEES SUCH DEDUCTIONS SHALL COMMENCE THIRTY-ONE (31) DAYS FOLLOWING
 THE EFFECTIVE DATE OF THIS AGREEMENT AND FOR NEW EMPLOYEES, THE PAYMENT
 SHALL START THIRTY-ONE (31) DAYS FOLLOWING THE DATE OF EMPLOYMENT.
 
                    QUESTIONS HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL FOR AN AGENCY SHOP WOULD
 VIOLATE SECTION 7102 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 (FSLMR) STATUTE, AS ALLEGED BY THE AGENCY.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROPOSAL CONFLICTS WITH SECTION 7102 OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.  ACCORDINGLY,
 PURSUANT TO 5 C.F.R.  2411.28(1978), THE AGENCY'S ALLEGATION THAT THE
 DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.  2
 
    REASONS:  THE PROPOSAL AT ISSUE ESSENTIALLY WOULD PROVIDE FOR THE
 INSTITUTION OF AN AGENCY SHOP ARRANGEMENT WITHIN THE UNIT.  THE UNION
 ASSERTS THAT NEITHER THE LEGISLATIVE HISTORY NOR THE LANGUAGE OF THE
 FSLMR STATUTE ITSELF SUPPORTS THE AGENCY'S REFUSAL TO BARGAIN OVER AN
 AGENCY SHOP PROPOSAL.
 
    THE LANGUAGE OF THE STATUTE DOES NOT EXPRESSLY REFER TO "AGENCY SHOP"
 ARRANGEMENTS, OR THE NEGOTIATION THEREOF.  HOWEVER, SECTION 7102
 GUARANTEES TO EACH EMPLOYEE THE RIGHT TO REFRAIN FROM ASSISTING ANY
 LABOR ORGANIZATION AND THE CLEAR INTENT AND PURPOSE OF CONGRESS, AS
 REVEALED BY THE LEGISLATIVE HISTORY OF THE STATUTE, WAS TO PROHIBIT
 "AGENCY SHOP" ARRANGEMENTS IN THE FEDERAL SECTOR.
 
    IN THIS REGARD, THE SENATE BILL (S.2640), AS PASSED BY THE SENATE,
 CONTAINED A PROVISION PRECLUDING NEGOTIATION OF AGENCY SHOP PROVISIONS
 IN LABOR AGREEMENTS.  /3/ THE BILL (H.R. 11280) AS REPORTED OUT OF THE
 HOUSE COMMITTEE WAS SILENT WITH RESPECT TO AGENCY SHOP ARRANGEMENTS.
 HOWEVER, THE COMMITTEE REPORT ACCOMPANYING THE HOUSE BILL CLEARLY
 INDICATED THAT THE BILL AS REPORTED TO THE HOUSE FLOOR WAS INTENDED TO
 PROHIBIT THE INSTITUTION OF SUCH ARRANGEMENTS.  /4/ PROPONENTS OF THE
 BILL, ON THE HOUSE FLOOR, LIKEWISE INTERPRETED THE FINAL VERSION OF THE
 BILL AS PASSED BY THE HOUSE (THE "UDALL SUBSTITUTE") AS NOT ALLOWING FOR
 AGENCY SHOP ARRANGEMENTS.  /5/
 
    FINALLY, THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE
 BILL WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW, CONTAINED A
 JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE EMPHASIZING
 THAT THE FINAL WORDING OF THE BILL WAS NOT INTENDED TO AUTHORIZE THE
 NEGOTIATION OF AGENCY SHOP PROVISIONS.  /6/
 
    IN SUMMARY, ALTHOUGH THE LANGUAGE OF THE STATUTE DOES NOT EXPRESSLY
 REFER TO "AGENCY SHOP" ARRANGEMENTS, SECTION 7102 DOES GUARANTEE TO EACH
 EMPLOYEE THE RIGHT TO REFRAIN FROM ASSISTING ANY LABOR ORGANIZATION AND
 THE LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE CLEAR INTENT OF
 CONGRESS TO PRECLUDE THE NEGOTIATION OF AGENCY SHOP ARRANGEMENTS IN THE
 FEDERAL SECTOR.  /7/
 
    THEREFORE, THE PROPOSAL AT ISSUE CONFLICTS WITH SECTION 7102 OF THE
 FSLMR STATUTE, AND THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED.  /8/
 
    ISSUED, WASHINGTON, D.C., JUNE 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
 701, SEC. 7102, 92 STAT. 1192, PROVIDES:
 
    SEC. 7102.  EMPLOYEES' RIGHTS
 
    EACH 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.  EXCEPT AS
 OTHERWISE PROVIDED UNDER
 
    THIS CHAPTER, SUCH RIGHT INCLUDES THE RIGHT--
 
    (1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
 REPRESENTATIVE AND THE RIGHT, IN
 
    THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
 HEADS OF AGENCIES AND OTHER
 
    OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
 OTHER APPROPRIATE
 
    AUTHORITIES, AND
 
    (2) TO ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF
 EMPLOYMENT THROUGH
 
    REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER.
 
    /2/ IN ACCORDANCE WITH SECTION 2400.4 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 FED.REG. 5(1979)), WHICH ARE CURRENTLY IN
 EFFECT UNDER SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THIS DECISION IS RENDERED UNDER THE
 RULES AND REGULATIONS SET FORTH IN 5 C.F.R. PART 2411, ET SEQ.(1978).
 
    /3/ S.2640, 95TH CONG., 2D SESS. 7218(C) (1978) PROVIDED:
 
    (C) NOTHING IN THE AGREEMENT SHALL REQUIRE AN EMPLOYEE TO BECOME OR
 TO REMAIN A MEMBER OF A
 
    LABOR ORGANIZATION OR TO PAY MONEY TO THE ORGANIZATION EXCEPT
 PURSUANT TO A VOLUNTARY, WRITTEN
 
    AUTHORIZATION BY A MEMBER FOR THE PAYMENT OF DUES THROUGH PAYROLL
 DEDUCTIONS.
 
    /4/ THE COMMITTEE REPORT STATED, IN RELEVANT PART, "TITLE VII . .  .
 DOES NOT PERMIT AN AGENCY SHOP . . . ." (H.R. REP. NO. 95-1403, 95TH
 CONG.,2D SESS. 12(1978).) FURTHER, WITH RESPECT TO ALLOTMENTS TO
 REPRESENTATIVES, THE COMMITTEE REPORT (H.R. REP. NO.  95-1403, 95TH
 CONG., 2D SESS. 48(1978)) STATED:
 
    SECTION 7115 PROVIDES FOR THE WITHHOLDING OF LABOR ORGANIZATION DUES
 THROUGH PAYROLL
 
    DEDUCTIONS.  THE SECTION REFLECTS A COMPROMISE BETWEEN TWO SHARPLY
 CONTRASTING POSITIONS WHICH
 
    THE COMMITTEE CONSIDERED:  NO GUARANTEE OF WITHHOLDING FOR ANY UNIT
 EMPLOYEE AND MANDATORY
 
    PAYMENT BY ALL UNIT EMPLOYEES ("AGENCY SHOP").  THE COMMITTEE
 BELIEVES SECTION 7115 TO BE A
 
    FAIR RESOLUTION FOR AGENCIES, LABOR ORGANIZATIONS, AND EMPLOYEES.
 
    SUBSECTION (A) PROVIDES THAT IF AN EMPLOYEE IN AN EXCLUSIVELY
 REPRESENTED UNIT PRESENTS TO
 
    THE AGENCY A WRITTEN ASSIGNMENT AUTHORIZING THE AGENCY TO DEDUCT THE
 LABOR ORGANIZATION'S DUES
 
    FROM THE EMPLOYEE'S PAY EACH PAY PERIOD, THE AGENCY MUST HONOR THE
 ASSIGNMENT AND MUST DEDUCT
 
    THE DUES.  THE DECISION TO PAY, OR NOT TO PAY IS SOLELY THE
 EMPLOYEE'S.  IF THE EMPLOYEE
 
    DECIDES TO HAVE DUES WITHHELD, THE AGENCY MUST HONOR THAT DECISION.
 THE ALLOTMENTS ARE TO BE
 
    MADE AT NO COST TO THE EMPLOYEES OR TO THE LABOR ORGANIZATION.
 ASSIGNMENTS NORMALLY ARE TO BE
 
    IRREVOCABLE FOR ONE YEAR.
 
    /5/ CONCERNING THE FINAL VERSION OF THE HOUSE BILL WITH RESPECT TO
 THE AGENCY SHOP ISSUE, THE FOLLOWING EXCHANGE OCCURRED DURING THE FLOOR
 DEBATE ON TITLE VII:
 
    MR. GLICKMAN.  I THANK THE GENTLEMAN FOR YIELDING.
 
    MR. CHAIRMAN, I WONDER IF THE GENTLEMAN MIGHT TELL ME THE DIFFERENCE
 BETWEEN HIS SUBSTITUTE
 
    AND THE COLLINS AMENDMENT WITH RESPECT TO THE ISSUE OF THE AGENCY
 SHOP OR THE CLOSED OR UNION
 
    SHOP, AND HOW THAT RELATES TO THE EXISTING EXECUTIVE ORDER.
 
    MR. UDALL.  THERE IS NO DIFFERENCE HERE.  THE UNIONS HAVE LONG WANTED
 AN AGENCY SHOP.  WE
 
    DO NOT GIVE THEM THAT IN THE UDALL SUBSTITUTE.  THEY DO NOT GET THE
 AGENCY SHOP, THEY DO NOT
 
    GET THE UNION SHOP IN EITHER ONE OF THE PROVISIONS.
 
   .          .          .          .
 
 
    MR. FORD OF MICHIGAN.  MR. CHAIRMAN, THIS IS ONE OF THE UNFORTUNATE
 THINGS THAT CAN HAPPEN
 
    IN THE DISCUSSION OF THIS MATTER.  THE AGENCY SHOP ISSUE HAS NO PLACE
 IN THIS DISCUSSION.  IT
 
    HAS NOT BEEN IN THIS BILL AT ANY POINT, IT IS NOT IN THIS BILL
 DIRECTLY, INDIRECTLY, BACK
 
    DOOR, FRONT DOOR OR SIDE DOOR, AND THE DISCUSSION OF THE AGENCY SHOP
 IS TOTALLY IRRELEVANT.
 
    MR. UDALL.  NO ONE ADVOCATES IT HERE IN THIS DEBATE.  IT IS NOT IN
 THE BILL.
 
    124 CONG. REC. H9636 (DAILY ED. SEPT. 13, 1978).
 
    /6/ IN THIS REGARD, THE COMMITTEE STATED:
 
    HOUSE SECTION 7102 GUARANTEES EACH EMPLOYEE THE RIGHT TO FORM, JOIN,
 OR ASSIST ANY LABOR
 
    ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY.  THE SENATE IN
 ADDITION PROVIDES THAT "NO
 
    EMPLOYEE SHALL BE REQUIRED BY AN AGREEMENT TO BECOME OR TO REMAIN A
 MEMBER OF A LABOR
 
    ORGANIZATION, OR TO PAY MONEY TO AN ORGANIZATION." THE CONFEREES
 ADOPT THE HOUSE
 
    WORDING.  THE CONFEREES WISH TO EMPHASIZE, HOWEVER, THAT NOTHING IN
 THE CONFERENCE REPORT
 
    AUTHORIZES, OR IS INTENDED TO AUTHORIZE, THE NEGOTIATIONS OF AN
 AGENCY SHOP OR UNION SHOP
 
    PROVISION.
 
    S. REP. NO. 95-1272, 95TH CONG.,2D SESS. 159(1978).
 
    /7/ COMPARISON OF THE STATUTE'S EMPLOYEE RIGHTS PROVISION TO THAT IN
 THE LABOR MANAGEMENT RELATIONS ACT LENDS FURTHER SUPPORT TO THIS
 INTERPRETATION OF THE STATUTE.
 
    SECTION 7102, AS CITED PREVIOUSLY, PROVIDES PERTINENTLY:
 
    SEC. 7102.  EMPLOYEES' RIGHTS
 
    EACH 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 . . .  .
 
    ON THE OTHER HAND, SEC. 7 OF THE LABOR MANAGEMENT RELATIONS ACT (29
 U.S.C. 157(1976)) PROVIDES:
 
                            RIGHTS OF EMPLOYEES
 
    SEC. 7.  EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO
 FORM, JOIN, OR ASSIST
 
    LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES
 OF THEIR OWN CHOOSING,
 
    AND TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
 COLLECTIVE BARGAINING OR OTHER
 
    MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN
 FROM ANY OR ALL OF SUCH
 
    ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN
 AGREEMENT REQUIRING
 
    MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
 AUTHORIZED IN SECTION
 
    8(A)(3).
 
    WITH RESPECT TO THIS LANGUAGE OF THE LMRA, THE NATIONAL LABOR
 RELATIONS BOARD STATED THAT "WE HAVE NO DOUBT THAT AN AGENCY-SHOP
 AGREEMENT IS A PERMISSIBLE FORM OF UNION-SECURITY WITHIN THE MEANING OF
 SECTIONS 7 AND 8(A)(3) OF THE ACT." GENERAL MOTORS CORP., 133 N.L.R.B.
 451, 457(1961), ENFORCEMENT DENIED, 303 F.2D 428 (6TH CIR. 1962), REV'D
 AND REMANDED, 373 U.S. 734(1963), BOARD ORDER ENFORCED, 319 F.2D 134
 (6TH CIR. 1963).
 
    /8/ THE UNION REQUESTED A HEARING ON THIS MATTER.  PURSUANT TO
 SECTION 2411.48 OF THE CITED RULES (5 C.F.R. 2411.48(1978)), THIS
 REQUEST IS DENIED BECAUSE THE POSITIONS OF THE PARTIES ARE ADEQUATELY
 REFLECTED IN THE RECORD BEFORE THE AUTHORITY.