Number 138                    December 2000

COURT DECISIONS  |   FLRA   |   MSPB

National Association of Government Employees, Local R7-51 and United States Department of the Navy, Naval Public Works Center, Great Lakes, Illinois, 0-NG-2550, November 29, 2000, 56 FLRA No. 157.

A proposal requiring the agency to deduct $2.00 from each biweekly paycheck of bargaining unit employees who have not joined the union (unless the employee submits a request that the deduction not be made) is contrary to 5 CFR 550.312(a) which allows an employee to make an allotment only if he or she "specifically designate[s] the allottee and the amount of the allotment."

The disputed proposal reads as follows:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

In addition to arguing that the proposal is inconsistent with 5 CFR 550.311, 550.312 and 550.321, the agency also claimed that it violated 7102 (employee's right to join or not join a union), 7114(a)(1) (the union must represent the interests of all unit employees, without regard to union membership), 7115(a) (written employee assignments authorizing the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues), and 7116(a)(1) (it is an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise of any employee right). It also contended that the proposal did not constitute an appropriate arrangement under 7106(b)(3).

In finding the proposal contrary to law, FLRA said the following:

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). 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 of the employee or the allottee and the amount to be deducted, and would thus be inconsistent with 5 C.F.R. 550.312(a).

Since FLRA found that the proposal violated 5 CFR 550.312(a), it found it unnecessary to address the agency's other contentions. In a footnote FLRA also noted that since the proposal is contrary to a Government-wide regulation, it was unnecessary to address the union's claim that the proposal constituted a 7106(b)(3) appropriate arrangement.

Early in the statutory program (see 1 FLRA No. 64), the Authority held that agency-shop proposals (i.e., proposals requiring that all employees in the unit pay dues or fees to the union to defray the costs of providing representation) violate 5 U.S.C. 7102. It there said that "although the language of the Statute does not expressly refer to 'agency shop' arrangements, Section 7102 does guarantee to each employee the right to refrain from assisting any labor organization and the legislative history of the Statute reflects the clear intent of Congress to preclude the negotiation of agency shop arrangements in the Federal sector." See, also, 44 FLRA No. 8.

The proposal in dispute in this case differs mainly from the aforementioned agency shop proposals by permitting the employee to opt out, i.e., to "refrain from assisting any labor organization" (although the drafters of the proposal undoubtedly hoped that many unit employees would not protest the unauthorized deduction). Hence the importance of 5 CFR 550.312(a) in determining the negotiability of the disputed proposal.