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OPM Contact: Murray M. Meeker
On January 14, 1998, an employee at the [agency] filed a claim
for "erroneously deducted union dues." For the reasons expressed
herein the employee's claim is granted.
Prior to 1991, the claimant had been a member of the bargaining
unit subject to the collective bargaining agreement between the
[union] and the [agency]. On or before March 11, 1989, while
employed in a position in the bargaining unit, the claimant
voluntarily executed an allotment to have union dues withheld from
her salary by automatic payroll deduction. However, on January 27,
1991, the claimant was promoted to a secretarial position that was
not in the bargaining unit. Notwithstanding the fact that the
claimant was no longer a member of the bargaining unit, union dues
continued to be deducted from her salary. The employee requests a
refund of the erroneous union dues deductions, a refund totalling
Employees who are members of a bargaining unit and who choose to
become members of the labor organization that is their exclusive
representative may elect to have their dues deducted from their
paychecks. 5 U.S.C. 7115(b). This statute, however, authorizes
payroll deductions only for persons who are "in an appropriate
unit", 5 U.S.C. 7115(a), and expressly states that the deductions
must terminate when "the agreement between the agency and the
exclusive representative involved ceases to be applicable to the
employee . . . ." 5 U.S.C. 7115(b)(1). Therefore, when
bargaining unit members who have elected to pay membership dues to
their exclusive representative through payroll deductions are
promoted or transferred out of the bargaining unit, 5 U.S.C.
7115 no longer authorizes the deduction of union dues from
their paychecks. Accordingly, such deductions must terminate as a
matter of law. Deductions made contrary to this statute are
erroneous and must be refunded to the employees.
This conclusion is consistent with the statute, its legislative
history, and other administrative interpretations of 5 U.S.C.
7115. See AFGE, Local 1963, and Department of
Veterans Affairs Medical Center Danville, Illinois, 36 FLRA
25 (1990) ("Local 1963"); International Association of Machinists
and Aerospace Workers, Lodge 2424, and Department of the Army,
Aberdeen Proving Ground, Maryland, 25 FLRA 194 (1987)
("Aberdeen Proving Ground"); Local 3062, AFGE, 63 Comp. Gen.
351 (1984); and Fort
Stewart/Hunter Army Airfield, 59 Comp. Gen. 710 (1980).
Both the words of the statute and the legislative history of
section 7115 provide that employees in a bargaining unit may
authorize an automatic payroll deduction for the payment of union
dues. House Report No. 95-1403, p. 48; Senate Report (Conference)
No. 95-1272, p. 155. It is significant that section 7115 does not
authorize the payment of union dues by automatic payroll deduction
for individuals who are not members of the bargaining unit. Section
7115 does provide that the deduction must terminate when an
employee is promoted or reassigned from a bargaining unit position
to a position outside of the bargaining unit. House Report No.
95-1403, p. 49.
Neither section 7115 nor its legislative history discusses the
payment of union dues by individuals who are not members of a
bargaining unit. Indeed, there is no indication in either the
statute or its legislative history that the payment of union
membership dues by individuals who are not members of the
bargaining unit is relevant to the provisions in section 7115,
including the provision in section 7115(b) which mandates that a
payroll deduction for union dues be terminated. Thus, we find no
basis in either the statute or in its legislative history to
support the position that the termination of a union dues deduction
would ever be dependent on any action to be taken by a former
bargaining unit member. Congress simply did not intend that former bargaining
unit members could continue a payroll deduction for union dues by
delaying submission of a standard form or by any other action. The
Federal Labor Relations Authority (Authority or FLRA) has
determined that procedures applicable to other types of allotments
are not applicable to allotments for union dues deductions. Aberdeen Proving Ground, supra.
In Local 1963, supra, an Arbitrator found that
the Department of Veterans Affairs (VA) violated a collective
bargaining agreement by terminating an employee's dues withholding
during the period that he was temporarily promoted to a supervisory
position. The Arbitrator concluded that it should not matter to the
VA if an employee wishes to continue an automatic payroll deduction
for the payment of union dues. The Arbitrator also ruled, however,
that the VA was not required to reimburse the labor organization
for the dues which had not been withheld during the period of the
grievance. The VA filed exceptions to the award with the Authority,
arguing that because the Arbitrator's award would require that the
VA continue to withhold dues under the agreement for an employee to
whom the agreement did not apply, the award conflicted with section
The Authority agreed with the VA's exceptions and set aside the
award, explaining that section 7115(b)(1) requires an agency to
terminate dues withholding when an employee has been promoted to a
position that is outside the bargaining unit. See Aberdeen Proving Ground, supra, and Internal Revenue Service, Fresno
Service Center, Fresno, California, 7 FLRA 371, 371-73
(1981), reversed as to other
matters sub nom. Internal Revenue Service, Fresno Service
Center v. FLRA, 706
F.2d 1019 (9th Cir. 1983). An employee's entitlement to erroneously
deducted dues was not an issue in these decisions.
In both Fort Stewart,
supra, and Local 3062, supra, the Comptroller General
denied employee claims for the reimbursement of erroneously
deducted union dues. To the extent that our decision is
inconsistent with the decisions of the Comptroller General, we
respectfully decline to follow the Comptroller General's
determinations. It should be noted, however, that the instant claim
is factually distinguishable from both Fort Stewart, supra, and Local 3062, supra, in that the Shipyard
employee was unaware that her promotion had removed her from the
bargaining unit. Additionally, the Notice of Personnel Action
(Standard Form 50) that the employee received in connection with
the promotion did not document a change concerning her bargaining
unit status. See Horner v. Acosta, 803 F.2d 687, 689 n.2,
693 (Fed. Cir. 1986). Moreover, upon becoming aware of the fact
that she had been removed from the bargaining unit, this employee
took prompt action to notify the [agency] that the deduction should
be terminated and to request a refund of the erroneous
We note that 5 U.S.C. 5525 authorizes the heads of agencies to
establish procedures under which employees may make allotments and
assignments of amounts of pay "for such purposes as the head of the
agency considers appropriate." Thus, an agency, by regulation, may
authorize employees who are not members of a bargaining unit to
contribute to labor organizations through payroll deductions. DOD,
however, has not adopted such a regulation.
Accordingly, the [agency] is directed to instruct the Defense
Finance and Accounting Service to refund the erroneous deductions
to the claimant without interest.