[ v25 p194 ]
The decision of the Authority follows:
25 FLRA No. 14 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LODGE 2424 Union and DEPARTMENT OF THE ARMY ABERDEEN PROVING GROUND, MARYLAND Agency Case No. 0-NG-1263 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two proposals concerning deduction of union dues. We find Proposal 1 and the second sentence of Proposal 2 to be nonnegotiable. We find the first sentence of Proposal 2 to be negotiable. II. Union Proposal 1 SECTION 37.11. When a Bargaining Unit Employee transfers out of the Unit, Employer's Payroll Sections will forward a copy of Employee's SF-1187, together with other payroll records, to the new payroll office. A. Positions of the Parties /1/ The Agency asserts that the proposal is nonnegotiable for two reasons: (1) It violates the requirement in section 7115(b)(1) of the Statute that individual dues deductions be terminated when the parties' negotiated agreement ceases to be applicable to an employee; and (2) it applies to employees who are outside the bargaining unit. The Union's position that the proposal is negotiable appears to be based on two theories: (1) since the right to have union dues deducted from pay flows directly to an employee, termination of that right is the prerogative of the employee; (2) an employee's written authorization for dues deductions cannot be revoked for a period of one year. The Union also cites Federal Personnel Manual (FPM) chapter 550 as authorizing the continuance of allotments of an employee who transfers to a new payroll office. B. Analysis Both parties agree that the purpose of Union Proposal 1 is to continue the employees' voluntary authorization of dues withholding under section 7115 of the Statute even after they have left the bargaining unit. Section 7115, entitled, "Allotments to representatives" governs the subject matter of this proposal. Section 7115(a) provides for written authorization of union dues withholding from the pay of employees in an appropriate unit. Such authorizations must be honored by the employer. Subsection (a) also requires that authorizations may not be revoked for a one-year period, "(e)xcept as provided under subsection (b) of this section. . . ." Section 7115(b) requires the termination of a dues withholding authorization in less than one year and without employee action in specified circumstances. Insofar as is applicable to Union Proposal 1, section 7115(b)(1) requires the termination of dues deduction authorization when "the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee. . . ." The Authority has previously held that the agreement between the parties ceases to be applicable to an employee when she or he is promoted, even temporarily, to a supervisory position. Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981), reversed as to other matters sub nom. I.R.S., Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983). Similarly, the Authority found that the parties' agreement was no longer applicable to an employee transferred to a position outside the unit of exclusive recognition. Department of Health and Human Services, Region X, Seattle, Washington, 19 FLRA No. 8 (1985). In both of the cited cases the Authority found that the agency involved had not committed an unfair labor practice when it unilaterally terminated the dues deductions of employees in the situations described. Union Proposal 1 ignores the requirement that dues deductions be terminated in the circumstances described in section 7115(b)(1). Because it obligates the Agency to act in a manner contrary to that section of the Statute it is nonnegotiable. The fact that an agency may be found to have committed an unfair labor practice if it terminates dues withholding in the mistaken belief that an employee is no longer in an appropriate unit does not make this proposal negotiable. While, as the Union points out, an agency acts at its peril in terminating dues withholding, an agency is insulated from penalty when it acts in full compliance with the statutory requirement. Finally, the Union's assertion that FPM chapter 550 supports the negotiability of this proposal is without merit. The specific section of the FPM alluded to by the Union, FPM chapter 550, subchapter 3-5a(2)(b), is concerned exclusively with allotments to the Combined Federal Campaign. Hence, the provision requiring transfer of the allotment authorization to a new payroll office is inapplicable to the allotment of union dues, the subject of Union Proposal 1. C. Conclusion Union Proposal 1 violates section 7115(b)(1) of the Statute. Consequently, under section 7117(a)(1) of the Statute, it is outside the duty to bargain. /2/ III. Union Proposal 2 SECTION 37.12. If an employee is temporary (sic) promoted to a supervisory position for more than 30 days, the employee who is on dues deduction will have his dues deduction revoked till the return back to the bargaining unit at which time the dues deductions will begin again as if there was no interruption. Any temporary promotion of 30 days or less, the employee's dues deduction will continue. A. Positions of the Parties The Agency points out that the first sentence of Union Proposal 2 requires that dues deductions be resumed for employees returning to the bargaining unit after temporary promotions to supervisory positions. Thus, the Agency argues, the first sentence violates section 7115(a) of the Statute and 5 C.F.R. Section 550.342(d) which permit allotments to be made only be an employee's written authorization. The Agency contends that the proposal's second sentence continues dues deductions for employees temporarily promoted out of the bargaining unit for 30 days or less. Consequently, it violates section 7115(b)(1) of the Statute which requires termination of an employee's dues withholding when that employee is no longer covered by the unit's collective bargaining agreement. The Union states that employees temporarily leaving the bargaining unit do not lose such benefits as the Union's obligation to represent them. Therefore, in the Union's view, automatic resumption of the withholding of union dues upon return to the unit is appropriate. B. Analysis To facilitate analysis of this proposal, we will discuss its last sentence first. The last sentence of Union Proposal 2 would obligate the Agency to continue dues withholding for employees who, because of temporary promotions, are removed from the bargaining unit for 30 days or less. As has been noted, section 7115(b)(1) of the Statute requires that an allotment of union dues "shall terminate" when the parties' negotiated agreement is no longer applicable to an employee. In Fresno Service Center, 7 FLRA 371, the Authority examined the effect of section 7115(b)(1) on circumstances like those covered by the last sentence in this case. The Authority observed in Fresno Service Center, 7 FLRA at 372, that: (w)hen an employee has been promoted to a supervisory position, such employee is outside the bargaining unit, and thereupon the collective bargaining agreement, "ceases to be applicable to the employee." Accordingly, effectuation of the employee's allotment (of union dues) must terminate pursuant to section 7115 of the Statute. It follows that action of IRS in terminating such allotments was not violative of section 7116(a)(8) of the Statute but rather was required by section 7115. (Footnotes omitted.) Consequently, based on the reasoning in Fresno Service Center, the last sentence of Union Proposal 2 conflicts with section 7115(b)(1) of the Statute. The proposal's first sentence requires resupmtion of dues withholding upon an employee's return to the bargaining unit after a temporary promotion to a supervisory position. The issue raised by this sentence is not controlled by the holding in Fresno Service Center where the issue was limited to whether the agency committed an unfair labor practice when it terminated the dues withholding of employees who ceased to be covered by the parties' collective bargaining supervisory positions. Contrary to the Agency's position, there is nothing in section 7115, its legislative history or the Fresno Service Center decision which suggests that an employee who previously has authorized dues withholding must be required to execute a second dues withholding authorization when that employee returns to the bargaining unit after a temporary promotion or detail to a nonbargaining unit position. Of course, when an employee receives a permanent promotion to a position outside the bargaining unit, there is no expectation of a return to the unit and any previous authorization for dues withholding terminates. In this situation the collective bargaining agreement permanently ceases to be applicable to the employee. In the circumstance of a temporary promotion however, there is a definite expectation of return to the unit and the collective bargaining agreement is inapplicable during the period of the temporary promotion only. In our view, allowing the parties to negotiate the automatic resumption of dues withholding after an employee's temporary absence from the bargaining unit is fully consistent with the Statute. Dues withholding is treated differently under the Statute than under the Executive Order 11491 program which preceded it. Specifically, under Executive Order 11491 dues deduction was a matter to be negotiated between the parties. Both the right to have dues withheld and the charge to be levied by the agency for providing that service were subjected to collective bargaining. Moreover, any voluntary dues allotment was revocable at six month intervals. Under the Statute, voluntary dues deduction without charge to the union is not a matter for negotiation -- these are rights of employees and of the exclusive representative. Also, the Statute provides that voluntary assignment of dues are irrevocable for a period of one year. Employees who voluntarily elect to have dues withheld are on notice that their elections are irrevocable for a period of one year. This portion of Proposal 2 would apply during that one year period and but for the intervention of the temporary promotion, dues deduction would have continued. According to this portion of the proposal, employees will not be required to execute, and the agency to process, new dues withholding authorizations each time employees return to the unit after temporary promotions or details to positions outside of the bargaining unit. Further, the inclusion in the proposal of the condition that deductions would be reinstated "as if there was no interruption" indicates the Union's intent that this sentence not divest employees of their right to revoke dues withholding at yearly intervals. That is, the first sentence would not extend the dues deduction period beyond one year from the date of authorization. We also construe the first sentence as permitting timely revocation of the allotment even where an employee is temporarily out of the unit. The sentence therefore does not interfere with an employee's right to make, or refuse to make a written assignment of union dues, nor does it prevent an employee from exercising his or her right to revoke such assignment at the appropriate time. In further support of its position that the first sentence of Union Proposal 2 is nonnegotiable, the Agency cites 5 C.F.R. Section 550.342(d) which provides that "a discontinued allotment may not be reinstated." However, the cited regulation does not concern allotments to labor organizations. Rather, that regulation deals with allotments to the Combined Federal Campaign and is not relevant to this dispute. C. Conclusion The first sentence of Union Proposal 2 is not in conflict with either law or regulation. It is therefore within the duty to bargain. The proposal's last sentence, however, conflicts with section 7115(a)(1) of the Statute and consequently, it is outside the duty to bargain under section 7117(a)(1). IV. Order The Union's petition for review as it concerns Union Proposal 1 and the last sentence of Union Proposal 2 is dismissed. Further, the Agency must bargain upon request (or as otherwise agreed to by the parties) over the first sentence of Union Proposal 2. /3/ Issued, Washington, D.C., January 15, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Because the Union submitted no reply brief, its position on these proposals is drawn from its explanation of the proposals' meaning. (2) Because we find that Union Proposal 1 violates the Statute, we do not reach the issue of whether the proposal concerns personnel outside the bargaining unit so as to be negotiable only at the Agency's election. (3) In finding the first sentence of Union Proposal 2 to be negotiable, we make no judgment as to that part of the proposal's merits.