[ v23 p376 ]
The decision of the Authority follows:
23 FLRA No. 54 DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO Charging Party Case No. 5-CA-50046 DECISION AND ORDER I. Statement of the Case In this unfair labor practice case, the Administrative Law Judge dismissed the General Counsel's complaint alleging that the Respondent committed an unfair labor practice under section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute). The General Counsel asserted that the Respondent violated section 7115(a) of the Statute in recouping overpayments of union dues previously remitted by the Respondent to the Charging Party (the Union) by deducting such overpayments from subsequent remittances. The Judge found that the Respondent properly recouped the overpayment of dues, on behalf of former unit employees who had been promoted to supervisory positions, by using the set-off method. The case is now before the Authority on the General Counsel's exceptions to the Judge's Decision. Both the General Counsel and the Respondent have filed briefs in support of their opposing positions. II. Background In 1978 and again in 1982, the Respondent in this case entered into master labor agreements with the Union. Both agreements provided that "(a)dministrative errors in remittance checks (to the Union) and/or improper deductions will be corrected by the (Respondent) and adjusted in the next remittance check to be issued to the Union local." An official of the Respondent charged with effecting these adjustments at the Wright-Patterson Air Force Base in Ohio testified that, in practice, payroll transactions and adjustments are processed by computer upon receipt of a Standard Form 50 for each change in employment status, and that such adjustments were made during a subsequent pay period. He testified further that underpayments and overpayments of dues were corrected as a matter of course by adding to or subtracting from the amount remitted to the Union during any given pay period, and that he undertook this method of adjustment, in reliance on the master labor agreements' provision quoted above, since at least as early as August of 1981. For pay periods ending on June 23, 1984, September 15, 1984, September 22, 1984 and September 29, 1984, the Respondent deducted from the amount allotted and remitted to the Union a total of $220.50, representing dues allotments withheld erroneously in the past from the salaries of unit employees who had once authorized such allotments but later became ineligible to do so when they were promoted to supervisory positions. The Respondent then reimbursed the supervisors for the amount of dues erroneously withheld from their salaries. This proceeding before the Authority ensued. III. Decision of the Administrative Law Judge In finding the Respondent's dues recoupment procedure to be lawful, the Judge discounted the General Counsel's contention that it violated section 7115(a) of the Statute under the Authority's supplemental decisions in Department of the Air Force, Griffiss Air Force Base, Rome, New York (Griffiss), 15 FLRA 1032 (1984), and Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas (Goodfellow), 14 FLRA 795 (1984). The Judge noted that those decisions were rendered on reversal and remand from the U.S. Courts of Appeals for the Second and Fifth Circuits, /1/ and that the Authority's language in the supplemental decisions indicated that it simply "accepted" the Court's decision in each case as "the law of the case." 14 FLRA at 796; 15 FLRA at 1033. The Judge found that the Authority had not altered its own original interpretation of the Statute in issuing the two decisions on remand because they contained no implication that the Authority was doing so. He therefore concluded that the Respondent's method of recouping erroneously allotted union dues did not violate the Statute under existing Authority precedent. IV. Positions of the Parties The General Counsel contends in its brief that the Judge should have found that the Authority's supplemental decisions on remand in Griffiss and Goodfellow did indeed alter the Authority's position on the lawfulness of the agencies' method of dues recoupment under section 7115(a) of the Statute. The General Counsel argues that the Authority made it clear in the Griffiss and Goodfellow supplemental decisions that an agency may not recoup erroneously withheld union dues of former unit members by deducting overpayments from union dues allotments for current unit members, and then reimbursing the former unit members whose dues had been incorrectly withheld. The General Counsel maintains further that, as the Courts held in Griffiss and Goodfellow, section 7115(a) of the Statute imposes an affirmative duty on an agency to honor the assignments of current unit members by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representative, so that an agency's application of a portion of the pay of current unit members to extinguish a debt to former unit members abrogates the agency's statutory duty to its current member employees. This statutory duty, the General Counsel urges further, cannot be waived by an exclusive representative in a collective bargaining agreement and, even if it could, parole evidence in this case shows that the provision of the master labor agreement regarding the correction of "administrative errors" was intended to apply to "arthmetical errors" only. The Respondent contests these arguments in its reply brief. The Respondent contends that it cannot be found to have committed an unfair labor practice by acting, as it did, in accord with a reasonable interpretation of the master labor agreement: "Improper deductions" fall within the agreement's provision with respect to "administrative errors." It also argues that an exclusive representative is indeed empowered to negotiate restrictions on a statutory right of its members. The Respondent argues in addition that the Authority has correctly not modified its position on the propriety of the Respondent's method of recoupment despite its compliance with the remand orders in Griffiss and Goodfellow. V. Analysis In challenging the Judge's Decision in this case, the General Counsel acknowledges that the Authority's supplemental decisions in Griffiss and Goodfellow "may be interpreted as being limited to those cases" in the Second and Fifth Circuits. It argues that the Authority did not "intend" such a result, however, because it would lead to the anomalous situation of different decisions on the same issue in different federal circuits. We find no merit to this argument. Under section 7123(a) of the Statute, the Authority's decisions and orders are reviewable by the U.S. Court of Appeals for the District of Columbia Circuit, or another of the U.S. Circuit Courts of Appeals depending on the parties' geographic location. Since one circuit court of appeals is not bound by another's decision, judicial review of the Authority's decisions may result in inconsistent rules of law on the same or similar issues among the various circuits. Such inconsistency among the circuit courts may be resolved only by the U.S. Supreme Court. The Judge correctly found that our supplemental decisions in Griffiss and Goodfellow, in which we accepted the decisions of the circuit courts in those cases as the "law of the case," were not intended to convey that the Authority had changed its opinion on the matter. Under the "law of the case" doctrine, an issue of law as decided in a reviewing court becomes binding precedent to be followed in successive stages of litigation involving the same case. The Authority was therefore bound to accept the circuit courts' decisions in Griffiss and Goodfellow. We have consistently held that an agency's recoupment of dues erroneously remitted to the exclusive representative of a bargaining unit on behalf of a former unit member, by deducting the previous overpayment from the subsequent remittance of dues for current members, is not inconsistent with the requirements of section 7115(a) and does not violate section 7116(a)(1) or (8) of the Statute. /2/ For the following reasons we continue to follow this precedent and respectfully disagree with the Second and Fifth Circuits. Section 7115(a) of the Statute enables a bargaining unit member to have his employing agency deduct periodic union membership dues from his regular pay and forward it to the exclusive representative of the bargaining unit directly. Section 7115(b) also provides that such an allotment "shall terminate when . . . the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee . . ." Section 7112(b) provides that a bargaining unit may not be deemed "appropriate" if it includes a supervisor, and, by way of defining "collective bargaining" and "employee," section 7103 of the Statute provides that a supervisor may not be a member of a bargaining unit. Consistent with these provisions, at the time a bargaining unit member is promoted to a supervisory position, he may no longer be included in the unit and, therefore, his statutory right to dues allotment ceases immediately by operation of law. Consequently, an agency's recoupment of dues erroneously paid to an exclusive representative on behalf of an employee after his appointment to a supervisory position constitutes the correction of an administrative error in compliance with the terms of the Statute. The setoff of such overpayments against current allotments and remittances to the union constitutes a lawful and efficient means of recoupment. The Authority adheres to the position that such a method of recoupment does not violate either section 7115(a) or section 7116(a)(1) and (8) of the Statute. In the Goodfellow case, the Fifth Circuit held as follows: Section 7115(a) . . . imposes an affirmative duty on a federal agency to honor the current assignments of unit employees by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representative. Until the funds thus deducted are delivered to the union, they remain the property of the particular members from whose earned wages they are taken. By applying a portion of the pay of unit employees to extinguish the debt owed another, (the agency) abrogated its statutory duty to the former. Goodfellow, supra, 715 F.2d at 228. The Authority respectfully disagrees. Once an agency deducts membership dues from the salary of a unit employee for remittance to the exclusive representative, that money becomes part of a fund designated for forwarding to the union in due course. The employee does not have immediate access to his portion of the fund before it is forwarded to the union. He is also precluded by the terms of section 7115(a) from revoking a dues allotment other than at intervals of one year, unless (1) the bargaining agreement between the agency and the exclusive representative ceases to apply to the employee, as discussed above; or (2) when the employee is suspended or expelled from membership in the exclusive representative, which is inapplicable here. See U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA 194, 199 (1981). There is no adverse impact on an employee's statutory right to a dues allotment which might result from an agency's use of the setoff method of recouping dues overpayments in this case, and the Fifth Circuit mentioned none in Goodfellow, other than the unspecific "impinge(ment) upon employee protections secured by Section 7115(a) . . ." /3/ In the Griffiss case, the Second Circuit considered the legislative history of section 7115(a) of the Statute, and noted Congress' rejection of proposals for mandatory payment of union dues on behalf of all unit employees as well as proposals leaving the issue of dues check-off to negotiation. American Federation of Government Employees, AFL-CIO, Local 2612 v. Federal Labor Relations Authority, 739 F.2d 87 (2d Cir. 1984). The Court found that Congress' final enacted provision, specifying that no dues could be deducted from an employee's paycheck unless he authorized the deduction in writing, was intended "to allow the employee alone to control the manner of dues payment." Id. at 89. The Court found taht, in view of this legislative intent, "an agency's obligation to honor dues check-off authorizations is mandatory and nondiscretionary." Id. The Court therefore concluded that current unit members who assigned portions of their wages for the payment of union dues had the right to expect their assigned wages to be used for that purpose. The Court concluded further that the agency's method of recouping its overpayment of dues on behalf of former unit members by setoff against dues allotments for present unit members violates the current unit members' right to allotment under section 7115(a), and thus constitutes an unfair labor practice under section 7116(a)(1) and (8). In the Authority's view Congress did not intend this interpretation of section 7115(a). When an agency allots and remits more membership dues to the exclusive representative of a bargaining unit than it should have -- in this case by remitting dues withheld from former unit employees who had become supervisors and were therefore no longer eligible for inclusing in the unit or entitled to authorize dues withholding -- the union receives more dues under section 7115(a)'s dues deduction provisions than it would have if the overpayment had not occurred. When the agency corrects the overpayment by setoff against presently allotted dues before remittance to the exclusive representative, the right of current unit members to have their dues remitted to the Union is not violated. Rather, the portion of the dues of current unit members which was not remitted to the union was, in effect, "pre-paid" by the agency through previous overpayments. An agency need not maintain the dues allotments of current member employees intact until they are remitted to the union under section 7115(a) of the Statute, as long as the agency remits sufficient payments to the union to avoid dues arrearage on the part of employees properly covered by section 7115(a). /4/ The Judge did not pass on the General Counsel's two additional contentions: (1) that the provisions of the master labor agreement quoted above did not permit the Respondent to recoup overpayments of union dues; and (2) that the Respondent and the Union could not waive the statutory right of employees to have dues withheld if they so authorize their employer in writing. In view of our interpretation of section 7115(a) of the Statute, it is unnecessary to consider these two additional contentions. VI. Conclusions Having considered all of the facts and circumstances of this case, as well as the positions of the parties, the Authority concludes that the Respondent did not violate section 7115(a) of the Statute and therefore did not commit an unfair labor practice under section 7116(a)(1) or (8), as charged by the General Counsel. Accordingly, we shall dismiss the General Counsel's complaint against the Respondent. ORDER IT IS ORDERED that the complaint in Case No. 5-CA-50046 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., September 23, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 5-CA-50046 DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO Charging Party Lieutenant Colonel Glenn H. Schlabs and Major W. Kirk Underwood For Respondent Paul Palacio For the Charging Party Judity A. Ramey, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. Upon an unfair labor practice charge filed by the American Federation of Government Employees, Council 214, AFL-CIO, against the Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (herein referred to as Respondent), the General Counsel of the Authority, by the Regional Director for Region V, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute when it recouped erroneous union dues checkoff allotments previously transmitted to the Union by reducing subsequent dues remittances. A hearing on the Complaint was conducted in Dayton, Ohio at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel, and have been carefully considered. Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact On January 13, 1978 the American Federation of Government Employees, AFL-CIO, was certified as the exclusive representative of a consolidated unit of all non-supervisory non-professional employees, with certain exclusions, paid from appropriated funds and serviced by the Air Force Logistics Command (AFLC) Civilian Personnel Offices at various AFLC facilities including Kelly Air Force Base, San Antonio, Texas. At all times material herein the American Federation of Government Employees, Council 214, AFL-CIO (the Union) has been an agent of the American Federation of Government Employees with respect to the employees of Respondent, including the employees at Kelly Air Force Base, and Respondent and the Union have been parties to a Master Labor Agreement (MLA) covering the employees described above. The MLA contains a dues withholding provision (Article 8) that includes the following language under the caption "Administrative Errors" in Section 8.08: "Deductions will not be made for an employee who has been in a nonpay status for a pay period. Administrative errors in remittance checks and/or improper deductions will be corrected by the Employer and adjusted in the next remittance check to be issued to the Union local. If the Union local is not scheduled to receive a remittance check after discovery of the error, the Union agrees to promptly refund the amount of the erroneous remittance." Pursuant to section 7115(a) and (b) of the Statute /5/ and and Article 8 of the MLA, supra, management officials at Kelly Air Force Base regularly deduct union dues from the salaries of employees who are members of the bargaining unit who executed written assignments for such allotments and transfer said dues allotments to AFGE local 1617 in a single remittance check. For pay periods ending June 23, 1984, September 15, 1984, September 22, 1984 and September 29, 1984, management officials at Kelly Air Force Base, relying upon MLA Section 8.08 supra, deducted from the total amount due to the local for dues certain amounts representing dues allotments withheld erroneously in the past from the salaries of individuals who had for a period of time been ineligible for dues withholding by virtue of their promotion to supervisory positions. The total amount deducted from the amount due the local for the four above-described pay periods was $220.50. Management officials used these funds to reimburse the supervisors from whose salaries dues had been erroneously withheld and continue to use the above described method of recouping erroneously withheld dues remitted to the union. The Master Labor Agreement was first negotiated in 1978 and renegotiated in 1982. The "Administrative Errors" section of the dues withholding provision, supra, was the same in both agreements. Val Buxton, Chief of Labor and Employees Relations Division and Respondent's Chief negotiator during the negotiations which gave rise to the 1978 and 1982 agreements, testified that during the 1978 negotiations the language of Section 8.08 was adopted to reflect many existing local arrangements. He further testified that during the 1978 negotiations the parties discussed employees leaving the unit and Respondent erroneously continuing dues checkoff. However, Buxton did not provide any significant details regarding the specific nature of those discussions. /6/ John Mullholland, AFGE's Director of Labor-Management Service Department, testified that in 1978 he was the chief negotiator for Council 214 during negotiations with the Respondent for the MLA. According to Mullholland, during the 1978 negotiations there were no discussions about employees being promoted to supervisory positions and the application of Section 8.08 of the agreement to that situation. Rather, according to Mullholland the limited discussion of Section 8.08 concerned the recoupment of money which was occasioned by computer and arithmetical errors and not recouping money erroneously collected and paid to the Union. Major Thayne H. Cuevas, Chief of the Accounting and Finance Branch at Kelly AFB testified to the dues deduction and remittance procedures at the facility. According to Cuevas, the total amount of dues deducted during a pay period is adjusted by those dues which might not have been previously deducted but should have been and dues erroneously deducted. That adjusted sum is then remitted to local 1617. Cuevas testified that such underpayments and overpayments would be corrected when documentation (a Standard Form 50) regarding a payroll change reached his office. Thus, an action requiring a payroll change might occur in one payroll period but would not be reflected in actual payments until a subsequent payroll period when the Standard Form 50 was received and acted upon in the Finance and Accounting Branch. A promotion of someone out of a position eligible for dues checkoff or a voluntary request to terminate dues checkoff could cause such an adjustment. The payroll transactions are computer processed and a recapitulation of adjustments to the remittance check is sent to local 1617. Cuevas testified he relied on Section 8.08 of the agreement to make these adjustments and this procedure has been followed since August 1981 to her personal knowledge and "as long as there's been a dues checkoff" according to some of his payroll employees. Discussion and Conclusions Respondent contends its recoupment actions herein were permissable based upon: (1) Existing Authority decisions, particularly Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force Base, Texas, 9 FLRA 294 (1982) and Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983); (2) A contractual right provided in Section 8.08 the Master Labor Agreement; and (3) Rulings of the Comptroler General In support of its allegations the General Counsel contends: (1) Since the Authority's decisions in Goodfellow and Griffiss were set aside by Circuit Courts of Appeals /7/ and in each case the Authority in Supplemental Decisions accepted the Court's opinion as "the law of the case," /8/ such conduct warrants the conclusion that the Authority has reversed its positions on the issue; and (2) Section 8.08 of the Master Labor Agreement does not privilege Respondent to recoup union dues and, in any event, the parties could not waive the employees' Statutory right to have dues deductions used by Respondent only as authorized by the employees. Respondent's recoupment herein is virtually identical to that previously considered by the Authority in Goodfellow and Griffiss and found to be permissible conduct under the Statute. The General Counsel recognizes that Administrative Law Judges are obligated to follow Authority precidents and denial of enforcement of an Order of the Authority by a Court of Appeals does not "in and of itself, constitute a change of Authority law." The General Counsel argues however that accepting the decisions of the Circuit Courts in Goodfellow and Griffiss as "the law of the case" in those cases warrants the conclusion that the Authority has reversed its position on the matter. I do not agree. In my opinion the Authority's action of accepting a Court's decision as "the law of the case," whether it be one Court of Appeals or more, /9/ gives no indication that the Authority is reversing its approach to the matter. If the Authority desired to change its position on recoupment it had ample opportunity to expressly do so in Goodfellow and Griffiss when it considered the reversals from the Courts of Appeals. However, the Authority merely accepted the Courts' decision as "the law of the case", expressing no view contrary to that articulated in its underlying decisions. Accordingly, since I am constrained to follow the Authority's holding until such time as the Authority specifically revises its position on the matter or it becomes apparent that the Authority will no longer adhere to this position, I conclude that based upon existing Authority precident Respondent's conduct herein did not violate the Statute and I recommend the Authority issue the following: ORDER IT IS HEREBY ORDERED that the Complaint in Case No. 5-CA-50046 be, and hereby is, dismissed. /10/ /s/ SALAVTORE J. ARRIGO Administrative Law Judge Dated: June 13, 1985 Washington, DC --------------- FOOTNOTES$ --------------- (1) American Federation of Government Employees, AFL-CIO, Local 2612 v. Federal Labor Relations Authority (Griffiss), 739 F.2d 87 (2d Cir. 1984); American Federation of Government Employees, AFL-CIO, Local 1816 v. Federal Labor Relations Authority (Goodfellow), 715 F.2d 224 (5th Cir. 1983). (2) In addition to the Griffiss and Goodfellow cases noted above, see Dugway Proving Grounds, Dugway, Utah, 9 FLRA 409 (1982); National Archives and Records Service and National Archives Trust Board, General Services Administration, Washington, D.C., 9 FLRA 413 (1982); and Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981), reversed as to other matters sub nom. Internal Revenue Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983). (3) The Fifth Circuit even acknowledged in Goodfellow, 715 F.2d 229, that the Government has the right "to recover by offset or otherwise sums illegally or erroneously paid," quoting from Lodge 2424, International Association of Machinist and Aerospace Workers, AFL-CIO v. United States, 564 F.2d 66, 71 (Ct. Cl. 1977). (4) The Second and Fifth Circuits would appear to place on management the statutory duty of setting apart or retaining intact the individual and collective dues allotted by employees until the dues are remitted to the Union. Aside from the fact that dues are not allotted of transferred in any individually identifiable for, we respectfully disagree that the Statute imposes such a duty. To require such an interpretation of the Statute would be comparable to the common law recovery action of replevin, in which a plaintiff seeks to have his wrongfully withheld property returned to him without alteration or substitution. See Kelley v. Dunne, 369 F.2d 627 (1st Cir. 1966); Honeywell Information Systems, Inc.v. Demographic Systems, Inc., 396 F. Supp. 273 (S.D.N.Y. 1975). Such an action does not apply to the recovery of money, however, unless the plaintiff can show that the money he seeks to recover constitutes unique currency and may be identified specifically so that recovery of the same money wrongfully withheld by another is both justifiable and possible. Kelley, 369 F.2d at 628. (5) Section 7115(a) and (b) of the Statute provides: "(a) If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year. "(b) An allotment under subsection (a) of this section for the deduction of dues with respect to any employee shall terminate when - "(1) the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee; or; "(2) the employee is suspended or expelled from membership in the exclusive representative." (6) I found Buxton's testimony to be confusing and inconclusive both as to the intent and meaning of Section 8.08 of the agreement as it applies to the issues herein. (7) AFGE, AFL-CIO, Local 1816 v FLRA (Goodfellow), 715 F.2d 224 (5th Cir. 1983) and AFGE, AFL-CIO v. FLRA (Griffiss), 739 F.2d 87 (2nd Cir. 1984). (8) Goodfellow, 14 FLRA 795 (1984) and Griffiss, 15 FLRA No. 188 (1984). (9) I note in Griffiss, 12 FLRA 198, fn 1, the General Counsel sought to withdraw the complaint on the sole ground that Goodfellow, decided subsequent to issuance of the complaint, was dispositive of Griffiss. (10) In view of this disposition I need not reach the other issues presented in this matter.