LODGE 2424, INTERN. ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS v. United States

• Decision Date: 19 October 1977
• Docket Number: No. 172-76.,172-76.
• Citation: 564 F.2d 66
• Parties: LODGE 2424, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO v. The UNITED STATES.
• Court: U.S. Claims Court

564 F.2d 66

LODGE 2424, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO v. The UNITED STATES.

No. 172-76.

United States Court of Claims.

October 19, 1977.

William B. Peer, Washington, D.C., attorney of record for plaintiff; Barr & Peer, Washington, D.C., of counsel.

Lawrence S. Smith, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before COWEN, Senior Judge, DAVIS and KUNZIG, Judges.

COWEN, Senior Judge, delivered the opinion of the court:

Plaintiff brings this action to recover $80.33 of voluntarily allotted union dues, which the Government deducted from the wages of a former member of the union. The case is before us on the parties' cross-motions for summary judgment, there being no genuine issues of material fact in dispute. For the reasons set forth below, we grant defendant's motion for summary judgment and dismiss the petition.

The facts which give rise to this controversy are relatively simple. Plaintiff, a union, is the sole bargaining agent for a group of Government wage grade employees at the Aberdeen Proving Ground (APG), Aberdeen, Maryland. The union is supported by membership dues, collected through a system of "voluntary allotments" by which the employees in the bargaining unit agree in writing to have a specified sum deducted by the Government from their paychecks. The Government collects all of the members' dues in one lump sum each payday and transmits the sum directly to the union, as provided in Article XXXIX of the Collective Bargaining Agreement between the Government and the Union (hereafter, Bargaining Agreement):

Section 2. The Employer will deduct Union dues from the pay of those eligible employees who voluntarily authorize such deductions * * * who are members of the Union * * * and who are employed within the Unit(s) of wage grade employees certified by the US Department of Labor * * * as exclusively represented by the Union * * *.

* * * * * *

Section 9. The Employer's payroll office will transmit to the Financial Secretary or Secretary-Treasurer of the Union not later than three (3) workdays after each payday the following:

* * * * * *

b. A check drawn on the Treasurer of the United States and made payable to the Union in an amount equal to the grand total of all such deductions less two cents for each individual deduction made. Emphasis added.

Among plaintiff's members was one Robert L. Wright, an APG employee. As a member of the collective bargaining unit, Mr. Wright had given his written consent to have the Government deduct $2.77 from his biweekly wages in accordance with the above-quoted procedure. The deduction was always properly made and paid by defendant so long as Mr. Wright was a member of the bargaining unit. However, on October 19, 1971, Mr. Wright was promoted to a position not covered by the Bargaining Agreement. After that time, the Government was no longer authorized to make dues deductions as it had been doing. Article XXXIX, Section 7 of the Bargaining Agreement makes this clear:

Section 7. An employee's voluntary allotment for payment of his regular Union dues will be terminated by the Employer's payroll office with the beginning of the first pay period following the pay period in which any of the following occur:

* * * * * *

b. Transfer of the employee authorizing dues deduction outside of the unit (Except for temporary promotion or detail).

However, when Mr. Wright was promoted out of the bargaining unit, the Government failed to end the dues deduction and continued to make the payments to the plaintiff union. The union did not notify the Army payroll office of Mr. Wright's change in status, although it was required to do so under the Bargaining Agreement.¹ The union continued to retain the excess dues and did not offer to return them to the Government.²

In November 1972, the Government apparently realized the error of its ways and ceased making the dues deductions from Mr. Wright's wages. It then determined the amount that had been incorrectly paid to the union and deducted the sum ($80.33) from its December 1972 payment to the union covering the aggregate of employee dues deductions for that month. The union objected to this "recoupment" procedure. It argued that under Section 9 of Article XXXIX of the Bargaining Agreement, there was no provision for recovery of a previous dues overpayment, and therefore the $80.33 had been illegally withheld from the December 1972 payment. See Article XXXIX, Section 9, supra.

The union sought to resolve the matter by invoking the grievance and arbitration procedure established under the Bargaining Agreement, Articles XXVII and XXVIII.³ On August 3, 1973, the arbitrator issued his decision upholding the union's position. Although he found that the $80.33 had been improperly deducted and paid to the union by mistake, the arbitrator ruled that the "self-help" remedy resorted to by the defendant in recouping the $80.33 was an "improper procedure," which violated the provisions of the Agreement. The opinion concluded:

* * * Whether or not the Employer may have other avenues for recoupment has not been considered by the Arbitrator. His opinion is limited to a finding that the particular method used in the instant case violated the provisions of the Collective Bargaining Agreement.

The defendant did not pay plaintiff the sum awarded by the Arbitrator. Rather, the Government disbursing officer submitted the question to the Comptroller General as permitted by 31 U.S.C. §§ 74 and 82d. On October 1, 1974, the Comptroller General issued Opinion B-180095, ruling that the Government could not legally comply with the arbitrator's award. The decision stated in part:

It is a basic principle of law and commerce that a payee is not entitled to be paid by a payor any more money than is due. So where by mistake of fact at an earlier time a payee is paid more on an obligation than he is due, the payor may rightfully adjust subsequent payments to compensate for such overpayments or advancement of funds, so that the payee may not be unjustly enriched. 70 C.J.S. Payment § 157 (1951).

Therefore, we have concluded that the payments authorized under the agreement have been fully satisfied. Thus, no authority exists to pay any additional amount, notwithstanding the arbitration award.

Upon receipt of this decision, the union filed an unfair labor practice complaint with the Assistant Secretary of Labor for Management Relations, alleging that the defendant had violated sections 19(a)(1) and (6) of Executive Order 11491 as amended, 3 C.F.R. 254 (1974), by neither complying with the Arbitrator's award nor seeking review by the Federal Labor Relations Council. The Assistant Secretary of Labor ruled that although an unfair labor practice may have existed, there remained a question whether the Army had authority to pay the arbitrator's award in view of the Comptroller General's decision barring payment. The union then requested the Comptroller General to review and reconsider the earlier decision.

On April 30, 1975, the Comptroller General issued a second decision (B-180095, 54 Comp.Gen. 921), again barring the defendant from paying the arbitrator's award. In this decision, the Comptroller General noted that 31 U.S.C. § 628 (1970) prohibited payment of Federal funds except "pursuant to law." Thus, the decision continued:

It was therefore not legally permissible for the agency to pay over to the union a sum amounting to $80.33 more than it was indebted to the union for. Accordingly, the arbitrator exceeded his authority in ordering the agency to make a payment for which it was not legally responsible.

The union then brought suit in this court to enforce the arbitrator's award.

I.

Although they agree on the facts, the parties differ in their statements of the issues of law. Plaintiff would have us view the question as the arbitrator viewed it: "Whether the Employer may, in effect, use self help to rectify its own mistake." In the Matter of Arbitration Between ABERDEEN PROVING GROUND DEPARTMENT OF THE ARMY and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS AFL-CIO LOCAL 2424, FMCS File No. 73K/09938, (August 3, 1973).

Defendant, on the other hand considers this formulation of the issues as too narrow and simplistic. Defendant's view of the issue may be paraphrased as whether the court may enforce an arbitrator's award against the Government when the award is not mandated by the terms of the Bargaining Agreement and is contrary to law. As a secondary defense, defendant asserts that the court has no jurisdiction of the claim, but we find that it is not necessary to reach this question.⁴ We agree with defendant's formulation of the issue and conclude that as a matter of law, plaintiff is not entitled to recover.

It is so evident as scarcely to require acknowledgment, that in order to obtain recovery in this court, a plaintiff must show some statute, regulation or contractual agreement which entitles it to recover a sum of money from the Government. 28 U.S.C. § 1491. This requirement means that the plaintiff must show that it is entitled to the $80.33 which was erroneously paid to it after Mr. Wright's transfer and subsequently withheld by the Government from a later payment due the union. Clearly, the plaintiff has failed to show any such entitlement.

It was an integral part of the Bargaining Agreement between the union and the Government that once an employee left the bargaining unit, his dues "check-off" was to be discontinued. As indicated above, section 7b of Article XXXIX of the Bargaining Agreement specifically required that the dues check-off be terminated as soon as an employee was transferred out of the unit. This was not a precatory or advisory contractual provision; rather it was a binding requirement mandated by regulation. Department of Defense Directive 1426.1, VIII B.1.b (March 26, 1970) required that all such agreements for...