[ v09 p409 ]
09:0409(49)CA
The decision of the Authority follows:
9 FLRA No. 49
DUGWAY PROVING GROUNDS
DUGWAY, UTAH
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1239
Charging Party
Case No. 7-CA-442
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
FINDS:
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1239 (UNION) IS
THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF ALL NON-APPROPRIATED FUND
GUARD EMPLOYEES AT DUGWAY PROVING GROUNDS, DUGWAY, UTAH (RESPONDENT).
THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, IN EFFECT AT ALL TIMES
MATERIAL, CONTAINED A PROVISION (ARTICLE XXIV) ENTITLED "ALLOTMENT OF
DUES". /1/
IN SEPTEMBER 1979, PURSUANT TO A LETTER FROM NFFE PRESIDENT JAMES M.
PEIRCE WHICH ADVISED UNION OFFICIALS TO ASSURE THAT NO SUPERVISORY
PERSONNEL WERE ON DUES WITHHOLDING BECAUSE OF THE POSSIBILITY THAT
AGENCIES WOULD ATTEMPT TO RECOUP ERRONEOUS OVERPAYMENTS, WAYNE
RINDLISBACHER, THE PRESIDENT OF LOCAL 1239, CONTACTED AN OFFICIAL OF THE
RESPONDENT AND REQUESTED THAT FIVE SUPERVISORS, BERT BARLOW, DARRELL
COFFMAN, BUD COX, FARREN DUNCAN AND LAWRENCE FAUX, BE REMOVED FROM DUES
WITHHOLDING STATUS. ON OR BEFORE OCTOBER 13, 1979, THE RESPONDENT
CEASED DEDUCTING DUES FOR BARLOW, COFFMAN AND COX. /2/
IN EARLY OCTOBER, COFFMAN REQUESTED THAT THE RESPONDENT REPAY HIM FOR
THE DUES THAT HAD BEEN WITHHELD FOLLOWING HIS PROMOTION TO SUPERVISOR.
THE RESPONDENT PAID COFFMAN'S CLAIM AND RECOUPED THIS PAYMENT IN TWO
INSTALLMENTS (ON NOVEMBER 7 AND ON NOVEMBER 10) FROM THE DUES
WITHHOLDING ALLOTMENT OWED TO THE UNION UNDER THE PARTIES' AGREEMENT.
UPON DISCOVERING THE RESPONDENT'S FIRST RECOUPMENT ACTION, RINDLISBACHER
PROTESTED TO THE INSTALLATION COMMANDER AND, SUBSEQUENTLY, ASKED TO BE
NOTIFIED OF ANY FUTURE CLAIMS FOR REFUNDS BY SUPERVISORS. WHEN
RINDLISBACHER RECEIVED NOTICE OF AN ADDITIONAL CLAIM IN JANUARY 1980, HE
SENT A LETTER TO THE INSTALLATION COMMANDER, DATED JANUARY 15,
REQUESTING THAT NO ACTION BE TAKEN ON THAT CLAIM, THAT THE PRIOR
RECOUPMENT ACTION BE RESCINDED, AND THAT THE RESPONDENT WAIVE ANY FUTURE
CLAIMS. ON JANUARY 28, FOLLOWING RECEIPT OF A REPLY FROM THE
INSTALLATION COMMANDER INDICATING THAT FUTURE CLAIMS FOR REIMBURSEMENT
SUBMITTED BY SUPERVISORS WOULD BE PROCESSED, RINDLISBACHER REQUESTED
THAT THE RESPONDENT PRESENT THE ISSUE OF DUES WITHHOLDING TO THE GENERAL
ACCOUNTING OFFICE FOR RESOLUTION. /3/ DURING THE NEXT TWO MONTHS, THE
RESPONDENT MADE FOUR MORE RECOUPMENTS WITH RESPECT TO CLAIMS FILED BY
THE OTHER TWO SUPERVISORS, COX AND BARLOW.
THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE WHICH LED TO THE
ISSUANCE OF A COMPLAINT ALLEGING THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) OF THE STATUTE /4/ WHEN IT FAILED TO HONOR DUES
ASSIGNMENTS RECEIVED FROM EMPLOYEES AND TO REMIT APPROPRIATE ALLOTMENTS
TO THE UNION AS REQUIRED BY SECTION 7115(A). /5/ THE COMPLAINT FURTHER
ALLEGED THAT BY DEDUCTING AMOUNTS FROM UNION DUES WITHHOLDING ALLOTMENTS
PAYABLE TO THE UNION UNDER THE TERMS OF THE COLLECTIVE BARGAINING
AGREEMENT, THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE
STATUTE.
IN DEPARTMENT OF THE AIR FORCE, 3480TH AIR BASE GROUP, GOODFELLOW AIR
FORCE BASE, TEXAS, 9 FLRA NO. 48 (1982), THE AUTHORITY HELD THAT
MANAGEMENT DID NOT COMMIT AN UNFAIR LABOR PRACTICE EITHER BY
DISCONTINUING DUES WITHHOLDING ON BEHALF OF AN INDIVIDUAL WHO HAD BEEN
PROMOTED TO A SUPERVISORY POSITION OR BY DEDUCTING FROM A DUES ALLOTMENT
CHECK REMITTED TO THE UNION PURSUANT TO THE PARTIES' AGREEMENT THE
AMOUNT OF DUES PREVIOUSLY WITHHELD FROM THAT INDIVIDUAL'S WAGES AND
SUBMITTED TO THE UNION AFTER THAT INDIVIDUAL HAD BECOME A SUPERVISOR.
ACCORDINGLY, FOR THE REASONS STATED IN THAT DECISION, THE AUTHORITY
CONCLUDES THAT THE SECTION 7116(A)(1), (5) AND (8) COMPLAINT HEREIN
LIKEWISE MUST BE DISMISSED. /6/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-442 BE, AND
IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., JULY 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTIONS 5 AND 6 OF ARTICLE XXIV STATE:
SECTION 5. THE EMPLOYER AGREES TO TRANSMIT THE FOLLOWING TO THE
TREASURER, NFFE LOCAL
1239, BLDG. 5438, DUGWAY, UTAH 84022, THREE (3) WORKING DAYS
FOLLOWING THE DAY ON WHICH
RELATED SALARIES WERE PAID TO THE EMPLOYEE:
A. LISTING OF DUES ALLOTMENT BY UNION, EMPLOYEE'S NAME AND PAYROLL
NUMBER, AND AMOUNTS OF
DUES DEDUCTED, AND TOTAL DEDUCTIONS BY NUMBER AND AMOUNT.
B. A CHECK DRAWN ON THE TREASURER OF THE UNITED STATES MADE PAYABLE
TO THE UNION IN THE
AMOUNT EQUAL TO THE TOTAL DEDUCTIONS, LESS EXPENSES INCURRED BY THE
GOVERNMENT IN EFFECTING
DUES DEDUCTIONS, IN THE AMOUNT OF FIVE (5) CENTS FOR EACH DEDUCTION.
SECTION 6. AN ALLOTMENT SHALL BE TERMINATED WHEN THE EMPLOYEE LEAVES
THE UNION AS A RESULT
OF ANY TYPE OF SEPARATION, TRANSFER, OR OTHER PERSONNEL ACTION
(EXCEPT TEMPORARY PROMOTION OR
DETAIL); UPON LOSS OF EXCLUSIVE RECOGNITION BY THE UNION; WHEN THIS
AGREEMENT PROVIDING FOR
DUES WITHHOLDING IS SUSPENDED OR TERMINATED BY AN APPROPRIATE
AUTHORITY OUTSIDE DOD
(DEPARTMENT OF DEFENSE); OR WHEN THE EMPLOYEE HAS BEEN SUSPENDED OR
EXPELLED FROM THE UNION.
/2/ HOWEVER, DUES DEDUCTIONS CONTINUED FOR SUPERVISORS DUNCAN AND
FAUX WHO HAD BEEN ON DUES WITHHOLDING PRIOR TO THE EFFECTIVE DATE OF
EXECUTIVE ORDER 11491, AND ACCORDINGLY HAD BEEN "GRANDFATHERED" IN BY
PROVISIONS THEREOF. THE RESPONDENT'S ACTIONS WITH RESPECT TO DUNCAN AND
FAUX ARE NOT AT ISSUE HEREIN.
/3/ AS INDICATED INFRA, THE COMPTROLLER GENERAL SUBSEQUENTLY ISSUED A
DECISION ON THE MATTER.
/4/ SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/5/ SECTION 7115(A) OF THE STATUTE PROVIDES:
SEC. 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.
/6/ HOWEVER, THE UNION HAD RECOURSE TO OTHER PROCEDURES REGARDING THE
RESTITUTION OF FUNDS DEDUCTED BY THE RESPONDENT, AND IN FACT EXERCISED
SUCH RIGHTS SUCCESSFULLY. THUS, IN NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1239, CASE NO. B-201817 (JAN.27, 1982), THE COMPTROLLER
GENERAL RULED THAT, UNDER 5 U.S.C. 5584, THE UNION WAS ENTITLED TO
REQUEST A WAIVER OF THE GOVERNMENT'S CLAIM ARISING OUT OF THE ERRONEOUS
TRANSMITTAL OF VOLUNTARY DUES ALLOTMENTS TO THE UNION, AND THAT THE
COLLECTION OF SUCH FUNDS SHOULD BE WAIVED IN THIS INSTANCE BECAUSE THE
ERRONEOUS PAYMENTS WERE MADE THROUGH MANAGEMENT'S ADMINISTRATIVE ERROR
AND WERE RECEIVED BY THE UNION IN GOOD FAITH AND WITHOUT FRAUD OR
MISREPRESENTATION.