U.S. Federal Labor Relations Authority

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National Association of Government Employees, Local R7-51 (Union) and United States Department of the Navy, Naval Public Works Center, Great Lakes, Illinois (Agency)

[ v56 p941 ]

56 FLRA No. 157







November 29, 2000


Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves the negotiability of a Union proposal for the Agency to deduct $2.00 for use by the Union from each paycheck of bargaining unit employees who have not joined the Union.

      For the reasons that follow, we find that the proposal is contrary to law and dismiss the petition for review.

II.     Preliminary Matter

      The Union notes that the Agency checked "no" in its answer to Question 11 on the standard form for Agency statements of position in negotiability cases. That question inquires whether there are any other grounds on which the Agency asserts the proposal is nonnegotiable. The Union argues that the Agency's negative response to Question 11 should preclude Authority consideration of the Agency's response to Question 11a, which contains the bulk of the Agency's legal argument. The Agency states that its negative answer to Question 11 was a typographical error that should not preclude Authority consideration of its answer to Question 11a.

      The Authority has declined to dismiss filings on the basis of minor deficiencies that did not impede the opposing party's ability to respond. See, e.g., AFGE, Local 2006, 52 FLRA 380, 384-85 (1996) (Union failed to date exceptions, date or sign certificate of service or correctly specify manner of service) (citations omitted). In its Response, the Union addresses the arguments raised by the Agency in Question 11a of its Statement of Position. Thus, the Agency's clerical error did not impede the Union's ability to respond to the Agency's argument, and we will consider the Agency's arguments raised in answer to Question 11a.

III.     The Proposal

A.     The employer agrees to withhold from biweekly pay a sum of $2.00 from all bargaining unit members who do not have voluntary dues deduction already in place.
B.     The Union agrees to maintain an account for these funds which are to be used for local issues that have or could have an impact on the entire bargaining unit.
C.     These funds will not be used in any manner that could be misconstrued as assisting the Union. The Union will ensure the funds only for the purposes that will benefit the members of the bargaining unit, not for any expenditures that are connected with the internal workings of the Local.
D.     Any employee who desires not to participate by contributing to this fund may be relieved of this deduction by requesting such release from either the Union or the employer in writing that will be forwarded to the pay office for action.
E.     The deduction will begin the third pay period after distribution of this agreement to all bargaining unit employees in order to enable employees who desire not to participate the opportunity to submit requests to be released from the deduction.

IV.     Positions of the Parties

A.     Agency

      The Agency asserts that the proposal is inconsistent with 5 C.F.R. §§ 550.311, 550.312 and 550.321. [n2] According to the Agency, § 550.312(a) requires written employee authorization for agency deductions of allotments pursuant to § 550.311. The Agency additionally argues that § 550.321 "confers sole allotment authority in regard to labor organizations to the employee, not the union or employer." Statement of Position at 5. [ v56 p942 ]

      The Agency disagrees with the Union's characterization of the proposed deduction as similar to an income tax deduction. The Agency argues that tax law requires a deduction to be made from an employee's pay. In contrast, according to the Agency, 5 C.F.R. § 550.311 allows a payroll deduction and subsequent payment to the Union only pursuant to employee authorization.

      The Agency argues that the proposal is inconsistent with §§ 7102, 7114(a)(1), 7115(a) and 7116(a)(1) of the Statute. The Agency also contends that the proposal does not constitute an "appropriate arrangement" under § 7106(b)(3) of the Statute.

B.     Union

      The Union states that its proposed deduction falls "within the strict definition" of an allotment established by the Office of Personnel Management (OPM) in 5 C.F.R. § 550.301. Response at 6. The Union also states, however, that it considers the deduction "more in the realm of" deduction of income tax, medicare tax or money owed the federal government than an allotment. Id. Deduction for such purposes, the Union argues, may be withheld until and unless the employee requests otherwise. The Union also claims that the deduction "is not and will not be considered `dues.'" Id. at 7.

      The Union additionally asserts that its proposal does not violate §§ 7102, 7114(a)(1), 7115(a) or 7116(a)(1) of the Statute. Finally, the Union argues that the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute.

V.     Meaning of the Proposal

      The proposal would require the Agency to deduct $2.00 from each biweekly paycheck of bargaining unit employees who have not joined the Union and thus do not have dues voluntarily deducted. Under the proposal, each employee may choose at any time not to make such a contribution by written request to either the Union or the Agency. Under the proposal, the funds would be used exclusively for issues that have or could have an impact on the entire bargaining unit and would not be used for expenditures connected with the internal workings of the Union.

VI.     Analysis and Conclusions

      Under government-wide regulations, an employee may make an allotment from his or her paycheck for various specific purposes, see 5 C.F.R. § 550.311(a)(2000), as well as "any legal purpose deemed appropriate by the head of the agency," 5 C.F.R. § 550.311(b). However, an employee may only make an allotment if he or she "specifically designate[s] the allottee and the amount of the allotment." 5  C.F.R. § 550.312(a). [n3]  Under the proposal, the Agency would deduct $2.00 from the pay of bargaining unit employees who are not Union members unless the employee submitted a request to the Union or the Agency that the deduction not be made. Accordingly, the deduction would be made without specific designation by the employee of the allottee and the amount to be deducted, and would thus be inconsistent with 5 C.F.R. § 550.312(a).

      The Union argues that the deduction is not governed by the regulations on allotments, and is more like other types of deductions. In support, however, the Union cites an allotment regulation, 5 C.F.R. § 550.311(a)(4), that addresses only certain tax deductions. [n4] As with the other allotments allowed by the regulations, such a deduction may be made only pursuant to specific designation by the employee of the allottee and the amount to be deducted. See 5 C.F.R. § 550.312(a). None of the other types of deductions specified by the Union provides legal authority for the deduction proposed in this case. Thus, the Union's proposal is contrary to 5 C.F.R. § 550.312(a). [n5] 

      In view of our determination, we do not address the Agency's remaining claims.

VII.     Order

      The petition for review is dismissed.

Footnote # 1 for 56 FLRA No. 157

   Member Pope did not take part in this decision.

Footnote # 2 for 56 FLRA No. 157

   5 C.F.R. § 550.311 states, in pertinent part:

"(a) An agency shall permit an employee to make: (1) An allotment for dues to a labor organization . . . (b) . . . an allotment for any legal purpose deemed appropriate by the head of the agency."

5 C.F.R. § 550.312 states, in pertinent part:

"(a) The allotter must specifically designate the allottee and the amount of the allotment."

5 C.F.R. § 550.321 states, in pertinent part:

"Section 7115, title 5, United States Code, authorizes an employee to make an allotment for dues to a labor organization . . . in accordance with such rules and regulations as may be prescribed by the Federal Labor Relations Authority."

Footnote # 3 for 56 FLRA No. 157

   The Agency argues that an allotment under 550.312(a) must be made pursuant to a "written authorization." Statement of Position at 5, 7. The Office of Personnel Management eliminated this requirement from the regulation effective January 10, 2000 in order to allow employees to personally process allotments through automated computer programs. See Miscellaneous Changes in Compensation Regulations, 63 Fed. Reg. 64,880, 64,882, 64,889 (1998) (proposed rule); 64 Fed. Reg. 69,165, 69,176 (1999) (final rule).

Footnote # 4 for 56 FLRA No. 157

   The Union cites 5 C.F.R. § 550.301(a)(4). This subsection does not exist. Given the Union's ensuing discussion of 5 C.F.R. § 550.311(a)(4), it is clear that it simply made a typographical error.

Footnote # 5 for 56 FLRA No. 157

   The Authority has held that a proposal that is contrary to a Government-wide regulation remains so regardless of whether it is an appropriate arrangement. See, e.g., NTEU, 55 FLRA 1174, 1181 (1999) (dissenting opinion on other grounds). Accordingly, it is unnecessary to address the Union's assertion that the proposal constitutes an appropriate arrangement.