American Federation of Government Employees, Council 214, AFL-CIO v. Federal Labor Relations Authority

• Decision Date: 29 December 1987
• Docket Number: AFL-CI,No. 86-1631,P,86-1631
• Citation: 835 F.2d 1458
• Parties: 127 L.R.R.M. (BNA) 2141, 266 U.S.App.D.C. 362 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1458

835 F.2d 1458

127 L.R.R.M. (BNA) 2141, 266 U.S.App.D.C. 362

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 86-1631.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 29, 1987.

Decided Dec. 29, 1987.

Charles A. Hobbie, with whom Mark D. Roth, Washington, D.C., was on the brief, for petitioner.

William E. Persina, Deputy Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol. and Pamela P. Johnson, Atty., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.

Before BUCKLEY and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, Jr., ^* Chief Judge, United States District Court for the District of Columbia.

Opinion for the court filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Circuit Judge WILLIAMS.

BUCKLEY, Circuit Judge:

This is a petition for review of a decision of the Federal Labor Relations Authority holding that an employer could reduce remittances to a union of dues withheld from employees in order to compensate for overpayments previously made by the employer to the union. We reverse.

I. BACKGROUND

Pursuant to 5 U.S.C. Sec. 7115(a), management officials at Kelly Air Force Base in San Antonio, Texas deducted union dues from salaries of employees who had executed assignments authorizing the deductions. The deducted amounts were then remitted in a single check to the union (American Federation of Government Employees ("AFGE") Local 1617, an affiliate of AFGE Council 214). The parties agree that the statute does not permit such deductions with respect to supervisory employees. See 5 U.S.C. Secs. 7103(a)(2), 7112(b), 7115(b). In some instances, however, management continued to deduct union dues from employees for a short time following their promotion to supervisory positions. When the error was discovered, management reimbursed these employees, and deducted the amounts from the remittance to the union of dues withheld from other employees in a subsequent period.

The union challenged the deductions as an unfair labor practice in a proceeding before the Federal Labor Relations Authority ("FLRA" or "Authority"). The union relied on the rulings of two courts of appeals that the employer lacked statutory authority to reduce remittances to compensate for similar errors. American Fed'n of Gov't Employees, Local 2612 v. FLRA, 739 F.2d 87 (2d Cir.1984) ("Griffiss "); American Fed'n of Gov't Employees, Local 1816 v. FLRA, 715 F.2d 224 (5th Cir.1983) ("Goodfellow "). Nevertheless, both the administrative law judge who initially heard the case and the FLRA held that management had acted properly. The FLRA did not attempt to distinguish the previous cases but disagreed with their reasoning and declined to follow them.

II. DISCUSSION

A. Statutory Issue

1. Standard of Review

We review the FLRA's decision under the abuse of discretion standard. 5 U.S.C Sec. 7123(c); 5 U.S.C. Sec. 706. The FLRA "is entitled to considerable deference when it exercises its 'special function of applying the general provisions of the Act to the complexities' of federal labor relations." Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) ("BATF ") (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963)). We may not defer, however, to an administrative decision that is inconsistent with the plain language of a statute. BATF, 464 U.S. at 97, 104 S.Ct. at 444 (quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 988-89, 13 L.Ed.2d 839 (1965)); see also 464 U.S. at 98 n. 8, 104 S.Ct. at 444 n. 8. "If the statute is clear and unambiguous 'that is the end of the matter[;] for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.' " Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986) (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984)); see also 474 U.S. at 373-75, 106 S.Ct. at 688-89.

2. Statutory Language

5 U.S.C. Sec. 7115(a) provides:

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.

We interpret this section as imposing an absolute duty on the employer to turn over to the union all funds deducted.

The FLRA argues that the funds erroneously withheld and remitted to the union constitute monies that the union wrongfully obtained, and which the union was obliged to repay. The Authority characterizes the deducted dues as union property, against which the employer can set off the union's debt.

Even if we were to agree with the FLRA that a set-off is appropriate in this situation, we do not agree that the withheld dues are union property until they are actually delivered to the union. Cf. Goodfellow, 715 F.2d at 228 (withheld dues property of employees until delivered to union). The statute clearly was designed for the primary benefit and convenience of the employee. The employee has the right to decide whether to opt for withholding and to control the disposition of the funds so withheld. The employer acts as the agent of the employee with respect to the withheld funds. In the words of the statute, the employer "shall honor the assignment." 5 U.S.C. Sec. 7115(a). We agree with the Second Circuit that "shall honor" indicates "a mandatory intent"; the employer's obligation to honor the dues check-off is "nondiscretionary." Griffiss, 739 F.2d at 89.

We are aided in this conclusion by the inclusion of the word "allotment" in 5 U.S.C. Sec. 7115(a). To allot is to "set apart specific property ... to a distinct party." Black's Law Dictionary 70 (5th ed. 1979). An allotment therefore is an apportionment of an identifiable res to the person entitled to the property by law or contract. Under section 7115, the employer is authorized only to allot, not to set off. The statute does not contemplate the creditor's remedy utilized here.

We find a helpful analogy in 5 C.F.R. Sec. 550.312(e), which provides: "Allotters shall agree that disputes regarding any authorized allotment shall be a matter between the allotter [employee] and the allottee [union]." The employer is viewed as a neutral and passive intermediary between the employee and the union. Although this regulation appears to apply primarily to disputes between the employee and the union concerning the amount of dues owed, it also indicates that the employer is properly viewed as performing the passive and ministerial function of turning over employee's dues to the union. Cf. Griffiss, 739 F.2d at 89-90.

The FLRA relies on cases that hold, in different factual and legal contexts, that "assignments" operate as conveyances to the assignee upon their execution. See, e.g., Seaboard Small Loan Corp. v. Ottinger, 50 F.2d 856, 857 (4th Cir.1931); Moutsopoulos v. American Mutual Ins. Co., 607 F.2d 1185, 1189 (7th Cir.1979). It therefore follows, says the Authority, that at the moment monies are withheld from the employee's wages for payment of union dues, they become the union's property. The FLRA points to private labor law cases that support this position. See, e.g., English v. Cunningham, 269 F.2d 517, 539 (D.C.Cir.) (employer who withholds dues under checkoff system is agent of union), cert. denied, 361 U.S. 897, 905, 80 S.Ct. 195, 4 L.Ed.2d 152, 181 (1959); Bassick Co. v. Bassick Local 229, 126 F.Supp. 777, 779 (D.Conn.1954); Kidde & Co. v. United Electrical, Radio & Machine Workers of America, 7 N.J. 528, 82 A.2d 184 (1951).

The FLRA overlooks a critical distinction between these private labor cases and the case at bar. When a union and an employer negotiate a dues check-off, as in the cases cited by the Authority, the courts rightly conclude that the employer acts primarily for the benefit of the union. As the dues check-off was obtained by the union, the withholding employer acts as the union's agent. Indeed, the cases relied upon by the FLRA are premised specifically on the contractual relationship between the union and the employer. See, e.g., West Virginia Pulp & Paper Co. v. Lewis, 17 Misc.2d 94, 191 N.Y.S.2d 303, 307 (Sup.Ct.1958), aff'd mem., 8 A.D.2d 899, 187 N.Y.S.2d 1002 (1959). Here, however, the withholding is authorized by statute and is made at the explicit request of the employee. The union has no role in negotiating the checkoffs, and the withholding employer acts solely as the employee's agent.

We previously have cautioned against an inappropriate reliance on private labor precedents in litigation concerning the Federal Labor Relations Act ("Act"). As we recognized in Library of Congress v. FLRA, 699 F.2d 1280, 1287 (D.C.Cir.1983), labor-management relations in the public and private sectors are "determined by different statutory provisions and by different policy considerations." Thus, private labor cases are relevant only when they involve statutory provisions and policy considerations comparable to those governing labor relations under the Act. See National Treasury Employees Union v. FLRA, 826 F.2d 114, 122 (D.C.Cir.1987). The dues withholding provision of the Act, 5 U.S.C. Sec. 7115, has no counterpart in the National Labor Relations Act or the Labor Management Relations Act. In private cases, dues withholding is a matter reserved for collective bargaining. See United States Gypsum Co., 94 N.L.R.B. 112, 113 n. 7, amended, 97 N.L.R.B. 889 (1951), mod., 206 F.2d 410 (5th Cir.1953), cert. denied, 347 U.S. 912, 74 S.Ct. 475, 98 L.Ed. 1068 (1954); 2 The Developing Labor Law 1406 (Morris ed. 1983). We therefore...