47:1289(118)CO - - Federal Employees Metal Trades Council, AFL-CIO, Mare Island, Naval Shipyard and Dan Goin, an Individual - - 1993 FLRAdec CO - - v47 p1289
[ v47 p1289 ]
The decision of the Authority follows:
47 FLRA No. 118
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL EMPLOYEES METAL TRADES
MARE ISLAND NAVAL SHIPYARD
DAN GOIN, AN INDIVIDUAL
DECISION AND ORDER
July 20, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by directing the Mare Island Naval Shipyard (Agency) to terminate the Charging Party's voluntary dues allotment without his consent.
For the reasons set forth below, we find that the Respondent violated section 7116(b)(1) and (8) of the Statute by directing the Agency to terminate the Charging Party's voluntary dues allotment.
II. Background and Facts
The Respondent is the exclusive representative of a unit of employees at the Agency. The Respondent is composed of several affiliate local unions, including the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 127 (Pipefitters) and the Auto Marine and Specialty Painters Union, Local Union No. 1176 (Painters). Pursuant to the parties' dues allotment agreement, it is Respondent's policy to have dues deducted by an agency only if the employee authorizes those dues to be remitted to the local union affiliate which represents the employee's particular job classification.
At all times relevant, the Charging Party has been a member in good standing of the Pipefitters. In 1980, the Charging Party submitted a written assignment to the Agency authorizing it to deduct dues from his check and remit the dues to the Respondent.(1) The Charging Party was employed as a pipefitter from 1982 through August 23, 1991, but as a result of a reduction in force (RIF) on August 23, 1991, the Charging Party was downgraded from the position of a Pipefitter, WG-10 to a Painter, WG-09. By letter dated April 2, 1992, the Respondent requested that the Agency terminate the Charging Party's voluntary dues allotment. The Charging Party never submitted a request to the Agency to terminate his voluntary dues allotment. Since being removed from voluntary dues allotment, the Charging Party has continued to pay dues to and remain a member of the Pipefitters. There is nothing in the record which indicates that, during this time, the Charging Party joined another local union affiliate.
III. Positions of the Parties
The Respondent states that it is composed of several affiliate local unions "each of which has [the] responsibility to administer the agreement within its assigned work jurisdiction and each respective [job] classification." Respondent's Brief at 4. The Respondent maintains that it has a policy that dues will be deducted only if an employee authorizes those dues to be remitted to the appropriate local union. In Respondent's view, an "appropriate" local union is one that is an "affiliate of the [Respondent] . . . which represents the particular [job] classification held by the individual involved." Id. at 2. According to the Respondent, this policy is set forth in the parties' "'Agreement for Voluntary Allotment of Union Dues'" (dues allotment agreement). Id. at 4. The Respondent contends that, under the agreement, it properly directed the Agency to terminate the Charging Party's dues allotment because, once the Charging Party was transferred to the classification of painter, the Pipefitters was no longer his "'appropriate local union' . . . ." Id.
The Respondent asserts that, although section 7115 of the Statute "contemplates that such dues check[-off] shall be only for 'the exclusive representative[,]'" it does not receive the dues collected from the voluntary dues allotments. Id. at 5.(2) Instead, the Respondent claims that it "maintains its integrity and representation functions by designating the appropriate local union to receive dues check-off." Id. According to the Respondent, "[t]here is nothing in [s]ection 7115 which prohibits this arrangement." Id.
In addition, the Respondent asserts that it needs to "preserve the representation lines agreed to by the [Respondent's] members" through the administration of its voluntary dues allotment agreement. Id. at 4-5. According to the Respondent, changing the dues allotment system would cause the Respondent to "lose [its] ability to control the various affiliates[,]" and "encourage more jurisdictional battles and . . . dissension among such joint representatives." Id. at 5. The Respondent also claims that because "[t]he amount of dues varies form [sic] local to local[,] . . . there is an increased administrative burden in deducting [dues] for a local union which does not represent the individual[.]" Id. at 4. Finally, the Respondent asserts that it has not "interfered with any membership right" of the Charging Party, and that it does not oppose the Charging Party's independent payment of dues to the Pipefitters. Id.
B. General Counsel
The General Counsel contends that the Respondent violated section 7116(b)(1) and (8) of the Statute by directing the Agency to terminate the Charging Party's dues allotment. According to the General Counsel, the initiation and termination of "[d]ues withholding . . . is not premised on the contractual relationship between the parties, but is based on section 7115(a) of the Statute." G.C.'s Brief at 8. Therefore, the General Counsel asserts that the Charging Party's "right to have his dues deducted from his pay is controlled by sections 7115(a) and (b) of the Statute, and not by the [parties'] [d]ues [a]greement . . . ." Id. at 9.
Relying on Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 19 FLRA 586 (1985) (Portsmouth Naval Shipyard), the General Counsel maintains that, "[a]lthough the parties may define through negotiations certain parameters with respect to section 7115(a), if the agreement between the exclusive representative infringes on an employee's unfettered right to have dues withheld . . . it is violative of the Statute." G.C.'s Brief at 9. In this regard, the General Counsel asserts that, under section 7115(b) of the Statute, an agency is permitted to terminate dues only when the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee, or the employee is suspended or expelled from membership in the exclusive representative. According to the General Counsel, the Agency was obligated to honor the Charging Party's dues assignment because neither of those two events occurred.
IV. Analysis and Conclusions
The initiation and termination of dues withholding is controlled by section 7115 of the Statute, not by a dues allotment agreement between the parties. See U.S. Department of the Treasury, U.S. Mint, 35 FLRA 1095, 1099 (1990), citing American Federation of Government Employees, AFL-CIO, Local 2612 v. FLRA, 739 F.2d 87, 89 (2d Cir. 1984) (court noted that "Congress rejected . . . proposals providing that dues check-off would be a matter negotiated between federal agencies and unions that act as exclusive employee representatives." (citation omitted); American Federation of Government Employees, Council 214, AFL-CIO v. FLRA, 835 F.2d 1458, 1461 (D.C. Cir. 1987), reversing Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 23 FLRA 376 (1986) (court distinguished between Federal sector requirements and the private sector, where dues withholding is a matter reserved for collective bargaining).
As relevant here, the termination of a unit employee's dues allotment is controlled by section 7115(b), which provides, in part, that an Agency shall terminate an employee's deduction of dues when the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee or the employee is suspended or expelled from membership in the exclusive representative. It is undisputed, in this regard, that, although the Respondent is comprised of separate local union affiliates, it remains the sole exclusive representative of its affiliates' members and that the Charging Party, both as a pipefitter and a painter, has at all times been covered by the same collective bargaining agreement. It is also undisputed that the Charging Party has been and remains a member in good standing of the Pipefitters. In this connection, the Respondent contends that it "does not in anyway oppose any individual paying dues directly to a local union even if not employed within any classification represented by that [l]ocal [u]nion." Respondent's Brief at 5. In these circumstances, we find that the Respondent's internal jurisdictional and craft considerations are not relevant. Therefore, we find that the Respondent has not established that the collective bargaining agreement has ceased to apply to the Charging Party or that the Charging Party is no longer a member in good standing of the exclusive representative. As such, the statutory requirements for terminating the Charging Party's dues allotment under section 7115(b) of the Statute were not satisfied and, as a result, the Respondent's direction that his allotment be terminated constituted a failure to comply with that section. See, for example, Internal Revenue Service, Seattle District, 12 FLRA 324 (1983).
We reject the Respondent's claim that its action did not violate the Statute because it did not interfere with the Charging Party's right to remain a member of the Pipefitters. Although the Respondent's actions did not preclude the Charging Party from voluntarily paying dues to the Pipefitters, the Respondent has improperly denied the Charging Party's right under 7115(a) to have dues automatically deducted from his pay. Accordingly, we find that the Respondent has interfered with the Charging Party's rights under the Statute.
Further, we reject Respondent's claim that it needs to "preserve the representation lines agreed to by the [Respondent's] members" through the administration of its voluntary dues allotment agreement. Respondent's Brief at 4-5. Although parties may define through negotiations the procedures for implementing section 7115, if an agreement between the exclusive representative and the Agency infringes on an employee's right to have dues deducted from his paycheck, the agreement violates the Statute. See Portsmouth Naval Shipyard, 19 FLRA at 589 (Authority upheld an administrative law judge's determination that the Union violated sections 7116(b)(1), (2), and (8) of the Statute by entering into and enforcing agreements requiring an individual to obtain, execute and submit dues withholding revocation forms in a manner inconsistent with section 7115 of the Statute). Here, the parties' dues allotment agreement, as interpreted and enforced by the Respondent, improperly denies the Charging Party's right, as a member in good standing of one of Respondent's affiliates, to an automatic dues allotment. Therefore, the Respondent's implementation of this agreement violates the Statute.(3)
As such, we find that the Respondent violated section 7116(b)(1) and (8) by directing the Agency to terminate the Charging Party's dues allotment in disregard of section 7115 of the Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Employees Metal Trades Council, AFL-CIO, shall:
1. Cease and desist from:
(a) Requesting the Mare Island Naval Shipyard to terminate the deduction and remittance of dues assignments of unit employees who are members in good standing of one of the affiliate local unions within the Federal Employees Metal Trades Council, AFL-CIO, including the dues of Dan Goin.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Request that Mare Island Naval Shipyard reinstate the deduction and remittance of periodic dues assignments of Dan Goin to the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 127.
(b) Post at its business offices and in all places where notices to employees in its bargaining unit are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the Federal Employees Metal Trades Council, AFL-CIO, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure tha