Office of the General Counsel

Date: February 25, 1998
Matter of: [xxx]
File Number: s9801017

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 $302.00.

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 7115.

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 deductions.

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.