[ v25 p523 ]
25:0523(39)CA
The decision of the Authority follows:
25 FLRA No. 39
VETERANS ADMINISTRATION
MEDICAL CENTER, PITTSBURGH,
PENNSYLVANIA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2028, AFL-CIO
Union
Case No. 0-AR-1183
DECISION
I. STATEMENT OF THE CASE
This case is before the Authority on exceptions to the award of
Arbitrator Henry Shore filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
A grievance was filed and submitted to arbitration in this case
disputing the reassignment of the grievant, a registered nurse, from a
night tour of duty (midnight to 8:00 a.m.). In December 1985 the
grievant received her annual proficiency report in which she was rated
"satisfactory." In the narrative comment to the report quoted by the
Arbitrator in his award, the grievant was informed that she had not
demonstrated the ability to function effectively as the charge nurse on
an off tour of duty and that she was being reassigned to rotating tours
of duty in order to receive additional guidance, support, and
supervision of the head nurse. The Arbitrator determined that this
reassignment of the grievant violated Article XI, Section VIII of the
parties' collective bargaining agreement which provides that
continuation on an indefinite night tour of duty will depend upon
satisfactory performance. He concluded that under this provision the
grievant was entitled to have remained on the night tour of duty as a
result of her "satisfactory" rating on her annual proficiency report.
Accordingly, as his award, the Arbitrator directed the Activity to
restore the grievant to her former midnight to 8:00 a.m. shift and to
make her whole for any loss of shift differential pay which she may have
suffered as a result of her shift reassignment.
III. EXCEPTIONS
In its exceptions the Agency primarily contends that the award is
contrary to management's right to assign employees under section
7106(a)(2)(A) of the Statute. In essence the Agency argues that the
Arbitrator erred because when the grievant was reassigned, she was
assigned to different duties and a different position. She was no
longer in a position of charge nurse. Instead, she was assigned to a
different position, different duties, and a different shift where she
would have a less independent role and be subject to greater and
personal supervision by the head nurse. Thus, the Agency maintains that
the Arbitrator erroneously applied a provision of the parties' agreement
pertaining solely to shift assignments and tours of duty and improperly
enforced that provision to prevent management's assignment of the
grievant to a particular position.
IV. ANALYSIS AND CONCLUSIONS
We conclude that the award is contrary to management's right to
assign employees in accordance with section 7106(a)(2)(A) of the
Statute. We find that the Agency has established that the reassignment
of the grievant was not only to a different shift or tour of duty, but
also to a different position with different duties. Furthermore, it is
clear that the award interferes with the Activity's exercise of its
right to assign employees by rescinding management's assignment of the
grievant to a position and shift where she would be supervised by the
head nurse and by directing that she be reassigned to the midnight shift
where she would not be in a position personally supervised by the head
nurse. See Naval Undersea Warfare Engineering Station, Keyport,
Washington and International Association of Machinists and Aerospace
Workers, Local 282, 22 FLRA No. 96 (1986); Department of Health and
Human Services, Social Security Administration, Charlotte, North
Carolina District and American Federation of Government Employees, Local
3509, AFL-CIO, 17 FLRA 103 (1985). In contrast, we note that if there
were such a position on the midnight shift personally supervised by the
head nurse, the Arbitrator's award would have simply constituted an
enforcement of the provisions of the parties' agreement pertaining to
shift assignments and tours of duty. See, for example, National
Treasury Employees Union and Department of the Treasury, Internal
Revenue Service, 14 FLRA 243 (1984) (provision 4). However, in this
case, the Arbitrator's remedy effectively rescinded the assignment of
the grievant to a different position and different duties and is
therefore deficient as contrary to section 7106(a)(2)(A) of the Statute.
See Naval Undersea Warfare Engineering Station, slip op. at 3-4.
DECISION
The Arbitrator's award is set aside. /*/
Issued, Washington, D.C., February 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 2-CA-40484
VETERANS ADMINISTRATION AND
VETERANS ADMINISTRATION MEDICAL CENTER
NORTHPORT, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1843
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached decision of the
Administrative Law Judge. The Respondent (Agency) filed an opposition
to the exceptions. The complaint alleges that the Agency violated
section 7116(a)(1) and (8) of the Statute by not remitting to the
Charging Party (Union) dues from the backpay awarded to an Systems
Protection Board (MSPB). The complaint also alleges that the Respondent
violated section 7116(a)(1) and (8) of the Statute by failing to
reinstate the employee to dues withholding status from the date of his
reinstatement until the date he affirmatively stated his desire not to
be on dues checkoff. For the reasons stated below, we find no merit to
the allegations and we will order that the complaint be dismissed in its
entirety.
II. Facts
The Union acts as the agent for the American Federation of Government
Employees National Veterans Administration Council (AFGE Council) in
representing the employees of the Respondent's Northport Medical Center.
The AFGE Council and the Respondent Veterans Administration are parties
to a negotiated agreement covering in part the employees of the
Respondent Medical Center. On January 16, 1982, Richard Greenwood, a
dues paying member of the Union, was discharged by the Respondent. On
March 5, 1984, Greenwood was reinstated and returned to duty at the
Respondent's Northport Medical Center pursuant to a decision by the MSPB
finding that his dismissal was unwarranted and unjustified. Greenwood
was entitled to backpay for the period he was discharged. The Union
requested that it be paid the dues that would have been withheld from
his pay during the period that Greenwood was discharged. The Respondent
paid Greenwood his backpay, but did not deduct any union dues. The
Respondent subsequently denied the Union's requests for payment of dues
and for reinstatement of Greenwood on payroll dues withholding without
the employee's consent.
The parties stipulated that Greenwood did not complete a new dues
withholding form after his reinstatement and did not provide consent for
payment of back dues or for reinstatement of his dues allotment. The
parties also stipulated that Greenwood never executed a dues revocation
form. No dues were withheld from Greenwood's pay from the date of his
reinstatement on March 5, 1984 until September 11, 1984. At that time,
the Respondent accidentally withheld dues from Greenwood's pay for one
pay period and submitted it to the Union. Greenwood went to the
Respondent and stated that he had not authorized any dues deduction and
that he wanted it stopped immediately. The Respondent terminated
Greenwood's dues withholding as of September 24, 1984, the next pay
period. The parties stipulated that the propriety of the September 24,
1984 cessation is not at issue in this case.
III. The Administrative Law Judge's Decision
The Judge concluded that the Respondent had not violated section
7116(a)(1) and (8) of the Statute when it refused to remit a portion of
Greenwood's backpay award to the Union to cover his dues during the
period when he was wrongfully discharged, or when it refused to
reinstate the employee's union dues withholding allotment upon his
return to duty. In reaching that conclusion, the Judge found that the
Respondent acted in accordance with section 7115 of the Statute when it
terminated Greenwood's dues withholding upon his discharge as he was no
longer an employee within the meaning of the Statute. The Judge further
found that neither the Back Pay Act nor section 7115 of the Statute
require the deduction of union dues from a backpay award or the
reinstatement of a dues allotment. The Judge also found that section
7115 clearly requires that an agency must first receive a written
authorization from an employee before effectuating dues withholding and
Greenwood did not give his consent for such withholding upon his return
to Federal employment. The Judge determined that neither the Back Pay
Act nor section 7115 were designated to be used to enforce union claims
for unpaid dues.
In reaching his decision, the Judge relied on decisions of the
Assistant Secretary of Labor for Labor-Management Relations under
Executive Order 11491, as amended, in Veterans Administration Hospital,
Murfreesboro, Tennessee, 6 A/SLMR 445 (1976) and the Comptroller General
in an unpublished opinion issued In the Matter of Henry A. Wade,
B-180095 (November 15, 1976). Those cases involved a similar discharge,
reinstatement, and request by the union for the repayment of union dues
from the employee's backpay award. The Comptroller General ruled that
the agency acted properly in refusing the union's request for lost dues
and the Assistant Secretary ruled that such an action was not an unfair
labor practice if it was consistent with the requirements of the
Comptroller General.
IV. Positions of the Parties
The General Counsel argues that the Back Pay Act requires that an
employee who is the subject of an unjustified personnel action shall be
made whole not only for lost wages but that the employee should be
treated as if the improper personnel action had never taken place and as
if the employee was continuously employed throughout the period of his
discharge. Given that premise, the General Counsel argues that the
employee's work-related obligations, such as the agreement to have union
dues checked off, also must be restored to the extent possible. While
the Respondent may have acted properly in removing Greenwood from dues
authorization when he was discharged because he was no longer an
employee subject to the parties' collective bargaining agreement
pursuant to section 7115(b) of the Statute, the General Counsel argues
that the Respondent was obligated by section 7115(a) of the Statute to
treat Greenwood, upon his reinstatement, as if he was continuously
employed for purposes of dues checkoff. The General Counsel agrees that
a properly executed dues revocation could end the employee's obligation
to pay dues to the Union, but notes that Greenwood never executed a dues
revocation, even after his return to duty. The General Counsel also
contends that the Wade and VA Murfreesboro cases relied on by the Judge
in reaching his conclusion are not applicable to the present case
because Executive Order 11491, as amended, under which those cases were
decided, made dues checkoff a function of a collective bargaining
agreement, while section 7115 of the Statute obligates agencies to
deduct dues when properly authorized to do so by an employee and thus
collective bargaining agreements merely delineate the mechanisms for
fulfilling that obligation.
The Respondent asserts that the Judge's decision is correct and
should be affirmed. It contends that there is nothing in the Back Pay
Act which permits an agency to deduct union dues from a backpay award.
The Respondent further contends that requiring an employee to remit a
portion of a backpay award to pay union dues interferes with the
employee's right, under section 7115(a) of the Statute, to cancel a dues
obligation at a specified annual time.
V. Analysis
There is no disagreement among the parties that the Respondent acted
properly when it discontinued Greenwood's dues withholding at the time
of his discharge. Section 7115(b)(1) of the Statute requires the
termination of a dues deduction authorization when "the agreement
between the agency and the exclusive representative involved ceases to
be applicable to the employee. . . . " The parties' agreement was no
longer applicable to Greenwood when his employment was terminated.
The parties do differ, however, in their interpretation of the
requirement that the backpay computations for an employee who has been
wrongfully discharged are to be made as "if the personnel action had not
occurred." The General Counsel argues that Greenwood would have had
union dues deducted from his wages if his employment had been continuous
and that there is no legal impediment to taking such payments from his
backpay award because the purpose of the award is to make him whole with
respect to all pay, allowances, and differentials.
We conclude that the Respondent did not violate section 7116(a)(1)
and (8) of the Statute when it failed to remit a portion of Greenwood's
backpay award to the Union in lieu of dues payments which Greenwood
would have had checked off from his pay had he remained in continuous
employment with the Respondent. When an agency calculates an employee's
backpay award, some payments must be withheld from the award, some
payments may not be credited to the employee, and some matters require
the exercise of discretion by the affected employee. Thus, the courts
have held that an agency must deduct from an employee's backpay award
those payments for which the employee is legally obligated, including
Federal and state taxes, Federal Insurance Contributions Act ("FICA")
payments, retirement and Medicare deductions, annual leave payments, and
any withdrawals which were made by the employee from the Civil Service
Retirement Fund at the time of his separation. Tanaka v. Department of
the Navy, 788 F.2d 1552 (Fed. Cir. 1986). However, the courts have held
that claims for such items as the monetary equivalent of annual leave,
for per diem expenses, for interest, or for private insurance for which
the employee only qualified when he was in a civilian technician status,
are not lost "pay, allowances, or differentials" which an employee would
have earned but for a wrongful discharge and therefore they may not be
claimed as part of a backpay award. See Polos v. United States, 231 Ct.
Cl. 929 (1982) and the cases cited therein.
Some Federal employee benefit programs require the employee to
exercise options concerning whether or not to participate in the program
and concerning the nature of their participation. When employees who
are found to have been wrongfully terminated are reinstated, they are
given the option of retroactively participating in these optional
programs and paying for them out of their backpay award. Thus,
employees may refuse to "purchase" life insurance through the
government's program or they may choose varying levels of participation.
For employees who are reinstated the Federal Personnel Manual (FPM)
provides that there will be no life insurance withholdings made from the
retroactive pay adjustment of an employee who is retroactively restored
to duty with pay after an erroneous separation, suspension or removal.
However, if death or accidental dismemberment occurs during the period
between the employee's separation, suspension or removal and the finding
that the agency action was erroneous, premiums will be withheld from the
backpay awarded for the period of separation, suspension or removal and
the employee or their estate will be entitled to the benefits which
would have accrued to them but for the erroneous agency action.
Similarly, Federal employees can decide whether or not to participate
in the health benefits program, and they have a variety of options
regarding the medical insurance they want to choose. An employee who is
removed or suspended without pay and whose enrollment in the health
benefits program has been terminated is given the option when he is
reinstated of having his prior health benefits reinstated retroactive to
the date they were terminated or he may enroll in the same program as a
new employee. If the employee elects to have the prior enrollment
reinstated retroactively, withholdings and contributions must also be
made retroactively just as though the erroneous suspension or removal
had not taken place and the health benefits coverage is considered to
have been continuously in effect, with the employee and any covered
family members being entitled to the full benefits of the plan.
From the above, we conclude that the Federal Personnel Manual's
policy regarding retroactive payments for optional programs by an
employee who is reinstated after a finding that the employee's removal
was unwarranted or unjustified allows an employee to choose whether or
not to have those payments made retroactively.
We find that an employee's decision to become a union member and to
pay union dues through checkoff is a voluntary decision like those which
an employee makes regarding life insurance and health benefits.
Therefore, we conclude, in the absence of any statutory or regulatory
constraint requiring a different policy, that the purposes of the
Statute are best served by a policy which gives to an employee who is
reinstated after a determination that his termination was unwarranted or
unjustified the option of having his union membership retroactively
restored. If the employee so chooses, he will incur a retroactive
obligation for the dues not paid during the period of his termination
and the union will be obligated to provide him with any benefits which
might have accrued to him as a union member during that period. A
reinstated employee should be given the option, alternatively, of
joining the union as if he were a newly hired employee and his
obligation to the union would then begin only with the signing of a new
dues authorization form.
This policy is not inconsistent with our recent decision in
International Association of Machinists and Aerospace Workers, Lodge
2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 25
FLRA No. 14 (1987), in which we found that a proposal which would
require that an employee who was temporarily promoted to a supervisory
position would have his dues authorization reinstated without the
necessity for executing a new dues authorization form when he returned
to the bargaining unit. In that case, the implicit assumption is that
the employee will return to the bargaining unit within a fixed period of
time and such a policy is consistent with a policy of stability in the
labor-management relationship. However, when an employee is terminated,
the expectation is that such a decision is permanent. When such a
decision is reversed, the employee is entitled to the widest possible
discretion in resuming obligations which were purely discretionary and
our decision supports such a policy.
In the circumstances of this case, we find that the Respondent did
not violate section 7116(a)(1) and (8) of the Statute, as alleged.
While, as we have indicated, an agency should give a reinstated employee
the option of having his union membership retroactively reinstated, of
executing a new dues authorization as if he were a new employee, or of
deciding not to join the union, the Respondent's failure to do so at the
time of Greenwood's reinstatement did not harm the Union, as the
employee made it clear when the matter arose that he did not want to
join the Union. The Union would have been harmed only if the Respondent
failed to timely implement the employee's decision to either
retroactively or prospectively fulfill a dues authorization commitment.
Under section 2423.29 of the Authority's Rules and Regulations and
section 7118 of the Statute, we have reviewed the rulings of the Judge
made at the hearing, find that no prejudicial error was committed, and
affirm those rulings. Having considered the Judge's Decision, the
General Counsel's exceptions to that decision, the Respondent's
opposition and the entire record, we conclude, in agreement with the
Judge, that the Respondent did not violate section 7116(a)(1) and (8) of
the Statute by failing to offset a reinstated employee's backpay award
in order to pay dues sought by the Union for the period of his
termination or by failing to automatically reinstate the employee to
dues withholding status upon his reinstatement. We will therefore order
that the complaint be dismissed in its entirety.
ORDER
The complaint in Case No. 2-CA-40484 is dismissed.
Issued, Washington, D.C., February 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 2-CA-40484
VETERANS ADMINISTRATION
AND VETERANS ADMINISTRATION MEDICAL
CENTER, NORTHPORT, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1843
Charging Party
Mitchell E. Ignatoff, Esquire
For the Respondent
Cecile O'Connor, Esquire
For the General Counsel
Mr. Donald T. Hagen
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The complaint alleges that since on or about a date in July 1984, the
Veterans Administration, and Veterans Administration Medical Center,
Northport, New York (Respondent) has continuously refused and failed to
pay to American Federation of Government Employees, AFL-CIO, Local 1843
(Charging Party, Local or Union) union dues which would have been
deducted from a bargaining unit employee's pay during the period January
23, 1982 to March 5, 1984, if the employee had not been unlawfully
discharged by the Respondent; and that from the date of the employee's
return to duty on March 5, 1984, until September 11, 1984, the
Respondent continuously failed to reinstate the unlawfully discharged
employee to a dues withholding status. The complaint further alleges
that the conduct outlined involves unfair labor practices within the
purview of Section 7116(a)(1) and (8) of the Statute. /1/
Based upon the entire record herein, including a stipulation of
facts, stipulated exhibits, and briefs filed by the parties, I make the
following findings of fact, conclusions and recommendations:
Findings of Fact
The facts in this case are not in dispute. A stipulation of facts
filed by the parties disclosed the following:
1. At all times material herein, the American Federation of
Government Employees, AFL-CIO (AFGE), has been, and is now, the
exclusive representative for a nationwide unit of certain professional
and non-professional employees of the Veterans Administration, including
non-professional employees at Respondent's Veterans Administration
Medical Center, Northport, New York.
2. At all times material herein, AFGE has delegated to the National
Veterans Administration Council, AFGE (Council), authority to act as its
representative for the purposes of collective bargaining for
Respondent's employees, including the non-professional employees of
Respondent's Veterans Administration Medical Center, Northport, New York
and the Council's delegation has been recognized by Respondent.
3. At all times material herein, the Charging Party has acted as the
agent of the Council for the purposes of collective bargaining on behalf
of the employees in the AFGE certified unit at Respondent's Northport,
New York, Veterans Administration Medical Center, and the Charging
Party's delegation has been recognized by Respondent.
4. The Veterans Administration and the AFGE, have entered into a
nationwide collective bargaining agreement effective August 13, 1982,
covering the employees in the above-described unit. It specifically
covers employees at Respondent's Veterans Administration Medical Center,
Northport, New York. (Stipulated Exhibit 5).
5. On January 16, 1982 the Respondent, in a disciplinary action
based on alleged sick leave abuse, discharged bargaining unit employee
Richard Greenwoood, hereinafter referred to as Greenwood, from his
position as Housekeeping Aide, WG-2.
6. At the time of his separation, Greenwood was a dues paying member
in good standing of the Local and had never submitted a revocation of
dues withholding allotment, Form 1188. (Stipulated Exhibit 6). At no
time since the date of his separation has Greenwood submitted a Form
1188 to revoke his dues withholding allotment.
7. Members of the Local may only revoke their union dues allotment
annually, at the time of the year when they originally authorized the
allotment. A revocation must be submitted to the union between the
anniversary date of the effective date of the dues withholding and
thirty calendar days prior to the anniversary date. Greenwood's
anniversary date is March 1, of each year.
8. In 1982, the Charging Party received from Respondent its last
allotment of money for Greenwood's union dues. The allotment was for
the payroll period ending January 23, 1982.
9. By decision dated February 15, 1984 the Merit Systems Protection
Board (MSPB) upheld an April 27, 1982 initial decision of a hearing
officer in Greenwood's case. This decision ordered that Greenwood be
reinstated because his dismissal was an unwarranted and unjustified
removal action. Under the Federal Personnel Manual (FPM Chapter 550
Subchapter 8,) and Title 5, Section 5596 of the United States Code (also
known as the Backpay Act), Greenwood was entitled to a backpay award
under these circumstances. (Stipulated Exhibit 7).
10. On March 5, 1984 employee Greenwood was reinstated and returned
to duty at Respondent's Northport facility.
11. For the period subsequent to January 23, 1982 up to and
including March 5, 1984 the Local did not receive union dues for
Greenwood either from the Respondent or from Greenwood himself.
12. For the period March 5, 1984 to September 11, 1984 the
Respondent has not deducted dues withholding allotments from the pay of
Greenwood nor paid the Local any union dues on behalf of Greenwood.
13. Subsequent to his return to duty on March 5, 1984, and at all
times since, Greenwood has not filled out a new dues withholding
allotment assignment, Form 1187. (Stipulated Exhibit 8).
14. By letter dated June 29, 1984 the Charging Party requested that
the Respondent supply it with back union dues for Greenwood for the
period January 23, 1982 up to March 5, 1984. In this same letter, the
Local also requested that Greenwood be reinstated on payroll dues
withholding allotment as of March 5, 1984. (Stipulated Exhibit 9).
15. In or around July 1984 the Respondent issued a check to
Greenwood in payment of his backpay award. The Respondent did not
deduct any back union dues allegedly owed for Greenwood for the period
January 23, 1982 to March 5, 1984 and the Respondent did not pay such
dues to the Charging Party.
16. By letter dated July 17, 1984, the Respondent notified the
Charging Party that it believed that the deduction of back union dues
allegedly owed to the Local by Greenwood for the relevant period was
inappropriate and requested the Charging Party to provide any authority
for authorization of such a payment. The Respondent further stated that
it would inquire to determine if Greenwood had filed a new form for
authorizing a payroll dues withholding assignment of his union dues.
(Stipulated Exhibit 10).
17. By letter dated July 18, 1984 the Charging Party restated its
June 29, 1984 request for back union dues for Greenwood for the period
January 23, 1982 to March 5, 1984. (Stipulated Exhibit 11).
18. By letter dated August 15, 1984 the Charging Party reiterated
its requests for back union dues for Greenwood for the period January
23, 1982 to March 5, 1984, and for the reinstatement of Greenwood on
dues payroll withholding allotment without the execution of a new dues
assignment form by the employee. The August 15, 1984 letter from the
Charging Party supplied a rationale for its request and cited FPM
Chapter 550, a sub-chapter 8, 8-5(a), FPM letter 550-76 Para. 4.
(Stipulated Exhibit 12).
19. By letter dated August 17, 1984, Respondent replied to the
August 15, 1984, letter from the Charging Party and stated that in its
opinion, under a Comptroller General Decision, In the Matter of Henry A.
Wade, Comptroller General Decision No. B-180095 (November 15, 1976) it
could neither authorize payment of the back union dues nor reinstatement
of a dues withholding allotment for Greenwood without Greenwood's
consent. (Stipulated Exhibits 13 and 14).
20. The November 15, 1976, Comptroller General Decision referenced
above refers to Civil Service Commission regulations published in 5 CFR
Section 550.321 et seq. (1976) and relies, in part, on Section
550.322(c). The most recent regulations are found in Office of
Personnel Management Regulations at 5 CFR Sections 550.321 and 550.322
(1984). (Stipulated Exhibits 15(a) and 15(b)).
21. Greenwood has not completed a new dues withholding Form 1187
since his return to service, nor has he provided his consent to
Respondent for the payment of back union dues or for reinstatement of
his dues withholding allotment.
22. At the time of his termination Greenwood did not request a
termination or revocation of dues withholding from either Respondent or
the Local.
23. Determinations to not deduct union dues from Greenwood's back
pay award, and to not reactivate Greenwood's dues withholding allotment
were made by Respondent.
24. In the payroll period ending September 11, 1984, the Respondent
accidentally paid a union dues withholding allotment for Greenwood to
the Local. On September 21, 1984, Greenwood told a Labor Relations
Specialist (F. Blatt) of Respondent's Personnel Service that union dues
were deducted from his last paycheck. Greenwood stated that since he
had not authorized this dues deduction he wanted it stopped immediately.
Thereafter, the Respondent again terminated the dues withholding
allotment of Greenwood's union dues on September 24, 1984. (Stipulated
Exhibits 16(a) through 16(d)). /2/
25. Prior to September 21, 1984, Greenwood did not inform any agent
or official of the Local that the union dues deduction was not
authorized by him and that he wanted it stopped immediately.
26. From January 16, 1982 through March 5, 1984, the period of his
discharge, and continuing to date, Greenwood was not suspended or
expelled from membership in the Local. During the above mentioned
period of time, Greenwood was a member in good standing of the Local
within the meaning of Article 31, Section 1 of the collective bargaining
agreement. (Stipulated Exhibit 5).
27. The Local filed a grievance dated October 2, 1984, concerning
the Respondent's September 24, 1984, cessation of dues withholding. The
cessation of September 24, 1984 is not the subject of this case.
28. The instant case concerns first, whether the Respondent is
obligated under Section 7115 to pay back union dues, from Greenwood's
backpay award, to the Local for the period of Greenwood's unjustified
termination from service; second, whether the Respondent's failure to
pay back union dues withholding allotments from Greenwood's backpay
award to the Local constitutes a violation of Section 7115 of the
Statute and thus violates Section 7116(a)(1) and (8) of the Statute;
and third, whether the Respondent's failure to reinstate Greenwood to
dues withholding allotment upon his return to service constitutes a
violation of Section 7115 of the Statute and thus violates Section
7116(a)(1) and (8) of the Statute.
Discussion and Conclusions
The General Counsel contends that the Respondent violated Sections
7116(a)(1) and (8) of the Statute by not deducting and paying over to
the Union, a sum amounting to the union dues allotments which the Union
would have received during the period intervening between January 23,
1982 and March 5, 1984. It is also contended that the Respondent
violated Sections 7116(a)(1) and (8) by failing to reinstate Greenwood's
union dues withholding authorization upon his return to work.
The General Counsel does not contend that Greenwood's dues allotment
authorization was wrongfully terminated at the time of his discharge in
1982. Instead, it is argued that the Union was wrongfully deprived of
deductions for such allotments when the Respondent reimbursed Greenwood
for his backpay; and that dues withholding should have been resumed
upon reinstatement even in the absence of a new authorization executed
by Greenwood. Although the legitimacy of Respondent's revocation of
dues withholding in 1982 is not in issue, it is important to note that
Respondent's discontinuance was fully justified and involved no
misconduct.
Section 7115(b) of the Statute provides for agency termination of a
union dues allotment, "when the agreement between the agency and the
exclusive representative involved ceases to be applicable to the
employee. . . . " /3/ Regardless of the subsequent favorable Merit
Systems Protection Board decision ordering reinstatement; for union
dues withholding purposes, Greenwood ceased to be a federal employee as
of January 16, 1982. Because of this fact he ceased to be a member of
the bargaining unit, and ceased to be covered by the collective
bargaining agreement. The statute clearly requires the discontinuance
of union dues withholding under such circumstances. The continuation of
dues payments after this date would be a personal obligation of the
employee, and would be a matter of appropriate concern only to the
employee and the union.
Greenwood's reinstatement on March 5, 1984, was accompanied by his
receipt of backpay. The award was governed by the Backpay Act, 5 U.S.C.
Section 5596, and by regulations issued to implement the Backpay Act, 5
C.F.R. Section 550.801 et seq. Section 5596(b)(1)(A)(i) of the Backpay
Act provides:
"(b)(1) An employee of an agency who, on the basis or a timely
appeal or an administrative determination including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee --
(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in
effect --
(i) an amount equal to all or any part of the pay, allowances,
or differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action
had not occurred, less any amounts earned by the employee through
other employment during that period. . . .
Section 550.801 of Title 5 C.F.R. reflects that the Backpay Act was
designed to make "an employee financially whole (to the extent
possible). . . . " Section 550.805, of the Title 5 C.F.R. prescribes the
method of computing back pay. Section 505.805(e)(1) and (2) provide for
deducting amounts earned from other employment during the period covered
by the corrective action, and for erroneous payments received by the
employee from the Government as a result of the unjustified or
unwarranted personnel action. Neither the Backpay Act nor implementing
regulations require a deduction for union dues which would have been
deducted had the employment relationship continued without interruption;
nor do they require, by operation of law, the reinstatement of a union
dues authorization. Furthermore, Section 7115 does not require the
deduction of union dues from a backpay award, and Section 7115(a) makes
it clear that an agency must first receive a written authorization from
an employee before effectuating dues withholding. Greenwood did not
give his consent for such withholding of dues upon his return to federal
employment, and he did not authorize deductions from his backpay award.
Neither the Backpay Act nor Section 7115 of the Statute was designed to
be used as a tool to enforce union claims for unpaid dues. /4/
The issue posed in this case was squarely addressed by the Assistant
Secretary of Labor for Labor-Management Relations in Veterans
Administration Hospital, Murfreesboro, Tennessee, A/SLMR No. 702 (1976);
and by the Comptroller General in an unpublished opinion issued In the
Matter of Henry A. Wade, B-180095 (November 5, 1976). The cases cited
arose out of the same factual circumstances. Wade, a Veterans
Administration employee was restored to duty after a wrongful discharge.
/5/ The Veterans Administration Hospital had on file a signed
authorization calling for the withholding of union dues at the time of
his discharge, and Wade never canceled the authorization. The Union
handled his appeal initially, but was replaced by a private attorney
shortly after Wade's separation. When Wade was reinstated he elected
not to become a union member. When he was reimbursed for backpay no
union dues were deducted. However, the union involved requested the
Veterans Administration Hospital to withhold union dues from the backpay
award. At this point the Veterans Administration requested a
Comptroller General opinion.
An unfair labor practice complaint alleging violations of Section
19(a)(1), (2) and (6) of Executive Order 11491 was based on the refusal
to deduct union dues from the backpay award, and on direct contacts
between Wade and a Veterans Administration Hospital official. In
dismissing the complaint the Assistant Secretary for Labor-Management
Relations held that because there was genuine uncertainty concerning the
deduction of union dues from the backpay award, the Hospital should be
allowed a reasonable time to comply with the decision requested from the
Comptroller General; and further that the conduct involved did not tend
to encourage or discourage membership in the union. The subsequently
issued decision of the Comptroller General made it clear that the
Veterans Administration refusal to deduct such dues from Wade's backpay
award was in compliance with law. /6/
Although Section 7115 of the Statute and a new regulatory pattern
became effective after the Assistant Secretary and Comptroller General
decisions, there is no basis for concluding that a different result
should ensue.
In summary, the record failed to disclose any evidence that the
Respondent's conduct herein was violative of Sections 7116(a)(1) and (8)
of the Statute. Accordingly, it is recommended that the Authority issue
the following Order pursuant to 5 C.F.R. Section 2423.29.
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 2-CA-40484, be,
and hereby is dismissed.
/s/ Louis Scalzo
Administrative Law Judge
Dated: June 28, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(*) In view of this decision, it is not necessary that we address the
Agency's other exceptions.
(1) The alleged violation of Section 7116(a)(8) is based upon the
premise that the conduct described contravenes Section 7115 of the
Statute. This section provides in pertinent part:
Section 7115. Allotments to representatives
(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 employees 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.
(2) The record reflects that Greenwood was reimbursed for this dues
deduction, and that no effort was made by the Respondent to recoup from
the Union, the amount paid to Greenwood. (Stipulated Exhibits 16(a)
through 16(c)).
(3) The legislative history of Section 7115 also indicates that a
union dues allotment must be terminated when an employee "leaves the
employ of the agency." H.R. REP. NO. 95-1403. 95th Cong., 2d Sess. at
695. This result is also required by the terms of the collective
bargaining agreement governing the Respondent and the Charging Party.
Article 31 entitled "DUES WITHHOLDING" provides:
Section 1 -- Eligibility
Any bargaining unit employee may have dues deducted through
payroll deductions. Such deductions will be discontinued when the
employee leaves the unit of recognition. . . . (Stipulated
Exhibit 5 at 57).
(4) It may be assumed that such claims would vary considerably
depending upon the employee's membership status following termination,
and whether dues assessments have been paid to the union by the
employee. Also, the General Counsel's argument assumes that Greenwood
would not have exercised his right to revoke dues withholding had his
employment continued. He would have had this option in March of 1982,
1983, and 1984.
(5) The facts were gleaned from the Assistant Secretary and
Comptroller General opinions.
(6) Counsel for the General Counsel argues that a published decision
of the Comptroller decision in 60 Comp. Gen. 93 (1980) operates to
negate the earlier decision in Wade. The decision relied upon related
to a case involving wrongful termination of dues allotments by an
agency, and the approval of reimbursement of a union from appropriated
funds with an agency right to collect or waive the debt from employees
affected by the action. The holding is not relevant here, and does not
operate to modify the earlier decision issued in the Wade case.