Service Employees' International Union, Local 556 and Department of the Army, U.S. Army Support Command, Fort Shafter, Hawaii (Authority decision, June 15, 1979)

Final FLRA decision. This is a final Authority order resolving a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union at the Army's Fort Shafter support command proposed requiring dues-equivalent deductions from the pay of all employees in the bargaining unit, including nonmembers. The Army said the proposal was outside its duty to bargain because federal employees have the right to refrain from assisting a union under 5 U.S.C. § 7102. The Authority agreed, relying on the statutory right and its legislative history. It sustained the Army's nonnegotiability allegation and denied the union's request for a hearing because the written record was sufficient.

Decision snapshot

• Authority: 5 U.S.C. § 7102.
• Outcome: The agency-shop proposal was held nonnegotiable; the Army's allegation was sustained.
• Key point: Mandatory dues-equivalent payments by nonmembers conflict with employees' statutory right to refrain from union assistance.

Full text (FLRA public release)

[ v01 p563 ]

01:0563(64)NG

The decision of the Authority follows:

1 FLRA No. 64

SERVICE EMPLOYEES' INTERNATIONAL UNION,
AFL-CIO, LOCAL 556
(Union)

and

DEPARTMENT OF THE ARMY,
HEADQUARTERS, U.S. ARMY SUPPORT COMMAND,
FORT SHAFTER, HAWAII
(Activity)

Case No. 0-NG-2

DECISION ON NEGOTIABILITY ISSUE

UNION PROPOSAL

AGENCY SHOP

MEMBERSHIP IN THE UNION IS NOT COMPULSORY. EMPLOYEES HAVE THE RIGHT
TO JOIN, NOT JOIN, MAINTAIN, OR DROP THEIR MEMBERSHIP IN THE UNION, AS
THEY SEE FIT. NEITHER PARTY SHALL EXERT PRESSURE ON OR DISCRIMINATE
AGAINST AS REGARDS SUCH MATTERS.

MEMBERSHIP IN THE UNION IS SEPARATE, APART, AND DISTINCT FROM THE
ASSUMPTION BY ONE OF HIS EQUAL OBLIGATION TO THE EXTENT THAT HE RECEIVES
EQUAL BENEFITS. THE UNION IS REQUIRED UNDER THIS AGREEMENT TO REPRESENT
ALL OF THE EMPLOYEES IN THE BARGAINING UNIT FAIRLY AND EQUALLY WITHOUT
REGARD TO WHETHER OR NOT AN EMPLOYEE IS A MEMBER OF THE UNION. THE
TERMS OF THIS AGREEMENT HAVE BEEN MADE FOR ALL EMPLOYEES IN THE
BARGAINING UNIT AND NOT ONLY FOR MEMBERS IN THE UNION.

ACCORDINGLY, IT IS FAIR THAT EACH EMPLOYEE IN THE BARGAINING UNIT PAY
HIS OWN WAY AND ASSUME HIS FAIR SHARE OF THE OBLIGATION ALONG WITH THE
GRANT OF EQUAL BENEFIT CONTAINED IN THIS AGREEMENT. IN CONSONANCE WITH
THIS POLICY, THE EMPLOYER AGREES TO DEDUCT FROM ALL THE EMPLOYEES' WAGES
AN AMOUNT OF MONEY EQUAL TO THE UNION'S REGULAR DUES. FOR PRESENT
EMPLOYEES SUCH DEDUCTIONS SHALL COMMENCE THIRTY-ONE (31) DAYS FOLLOWING
THE EFFECTIVE DATE OF THIS AGREEMENT AND FOR NEW EMPLOYEES, THE PAYMENT
SHALL START THIRTY-ONE (31) DAYS FOLLOWING THE DATE OF EMPLOYMENT.

QUESTIONS HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL FOR AN AGENCY SHOP WOULD
VIOLATE SECTION 7102 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
(FSLMR) STATUTE, AS ALLEGED BY THE AGENCY. /1/

OPINION

CONCLUSION: THE SUBJECT PROPOSAL CONFLICTS WITH SECTION 7102 OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. ACCORDINGLY,
PURSUANT TO 5 C.F.R. 2411.28(1978), THE AGENCY'S ALLEGATION THAT THE
DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED. 2

REASONS: THE PROPOSAL AT ISSUE ESSENTIALLY WOULD PROVIDE FOR THE
INSTITUTION OF AN AGENCY SHOP ARRANGEMENT WITHIN THE UNIT. THE UNION
ASSERTS THAT NEITHER THE LEGISLATIVE HISTORY NOR THE LANGUAGE OF THE
FSLMR STATUTE ITSELF SUPPORTS THE AGENCY'S REFUSAL TO BARGAIN OVER AN
AGENCY SHOP PROPOSAL.

THE LANGUAGE OF THE STATUTE DOES NOT EXPRESSLY REFER TO "AGENCY SHOP"
ARRANGEMENTS, OR THE NEGOTIATION THEREOF. HOWEVER, SECTION 7102
GUARANTEES TO EACH EMPLOYEE THE RIGHT TO REFRAIN FROM ASSISTING ANY
LABOR ORGANIZATION AND THE CLEAR INTENT AND PURPOSE OF CONGRESS, AS
REVEALED BY THE LEGISLATIVE HISTORY OF THE STATUTE, WAS TO PROHIBIT
"AGENCY SHOP" ARRANGEMENTS IN THE FEDERAL SECTOR.

IN THIS REGARD, THE SENATE BILL (S.2640), AS PASSED BY THE SENATE,
CONTAINED A PROVISION PRECLUDING NEGOTIATION OF AGENCY SHOP PROVISIONS
IN LABOR AGREEMENTS. /3/ THE BILL (H.R. 11280) AS REPORTED OUT OF THE
HOUSE COMMITTEE WAS SILENT WITH RESPECT TO AGENCY SHOP ARRANGEMENTS.
HOWEVER, THE COMMITTEE REPORT ACCOMPANYING THE HOUSE BILL CLEARLY
INDICATED THAT THE BILL AS REPORTED TO THE HOUSE FLOOR WAS INTENDED TO
PROHIBIT THE INSTITUTION OF SUCH ARRANGEMENTS. /4/ PROPONENTS OF THE
BILL, ON THE HOUSE FLOOR, LIKEWISE INTERPRETED THE FINAL VERSION OF THE
BILL AS PASSED BY THE HOUSE (THE "UDALL SUBSTITUTE") AS NOT ALLOWING FOR
AGENCY SHOP ARRANGEMENTS. /5/

FINALLY, THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE
BILL WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW, CONTAINED A
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE EMPHASIZING
THAT THE FINAL WORDING OF THE BILL WAS NOT INTENDED TO AUTHORIZE THE
NEGOTIATION OF AGENCY SHOP PROVISIONS. /6/

IN SUMMARY, 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. /7/

THEREFORE, THE PROPOSAL AT ISSUE CONFLICTS WITH SECTION 7102 OF THE
FSLMR STATUTE, AND THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED. /8/

ISSUED, WASHINGTON, D.C., JUNE 15, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
701, SEC. 7102, 92 STAT. 1192, PROVIDES:

SEC. 7102. EMPLOYEES' RIGHTS

EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO

REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH

EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. EXCEPT AS
OTHERWISE PROVIDED UNDER

THIS CHAPTER, SUCH RIGHT INCLUDES THE RIGHT--

(1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
REPRESENTATIVE AND THE RIGHT, IN

THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
HEADS OF AGENCIES AND OTHER

OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
OTHER APPROPRIATE

AUTHORITIES, AND

(2) TO ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF
EMPLOYMENT THROUGH

REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER.

/2/ IN ACCORDANCE WITH SECTION 2400.4 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS (44 FED.REG. 5(1979)), WHICH ARE CURRENTLY IN
EFFECT UNDER SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1215), THIS DECISION IS RENDERED UNDER THE
RULES AND REGULATIONS SET FORTH IN 5 C.F.R. PART 2411, ET SEQ.(1978).

/3/ S.2640, 95TH CONG., 2D SESS. 7218(C) (1978) PROVIDED:

(C) NOTHING IN THE AGREEMENT SHALL REQUIRE AN EMPLOYEE TO BECOME OR
TO REMAIN A MEMBER OF A

LABOR ORGANIZATION OR TO PAY MONEY TO THE ORGANIZATION EXCEPT
PURSUANT TO A VOLUNTARY, WRITTEN

AUTHORIZATION BY A MEMBER FOR THE PAYMENT OF DUES THROUGH PAYROLL
DEDUCTIONS.

/4/ THE COMMITTEE REPORT STATED, IN RELEVANT PART, "TITLE VII . . .
DOES NOT PERMIT AN AGENCY SHOP . . . ." (H.R. REP. NO. 95-1403, 95TH
CONG.,2D SESS. 12(1978).) FURTHER, WITH RESPECT TO ALLOTMENTS TO
REPRESENTATIVES, THE COMMITTEE REPORT (H.R. REP. NO. 95-1403, 95TH
CONG., 2D SESS. 48(1978)) STATED:

SECTION 7115 PROVIDES FOR THE WITHHOLDING OF LABOR ORGANIZATION DUES
THROUGH PAYROLL

DEDUCTIONS. THE SECTION REFLECTS A COMPROMISE BETWEEN TWO SHARPLY
CONTRASTING POSITIONS WHICH

THE COMMITTEE CONSIDERED: NO GUARANTEE OF WITHHOLDING FOR ANY UNIT
EMPLOYEE AND MANDATORY

PAYMENT BY ALL UNIT EMPLOYEES ("AGENCY SHOP"). THE COMMITTEE
BELIEVES SECTION 7115 TO BE A

FAIR RESOLUTION FOR AGENCIES, LABOR ORGANIZATIONS, AND EMPLOYEES.

SUBSECTION (A) PROVIDES THAT IF AN EMPLOYEE IN AN EXCLUSIVELY
REPRESENTED UNIT PRESENTS TO

THE AGENCY A WRITTEN ASSIGNMENT AUTHORIZING THE AGENCY TO DEDUCT THE
LABOR ORGANIZATION'S DUES

FROM THE EMPLOYEE'S PAY EACH PAY PERIOD, THE AGENCY MUST HONOR THE
ASSIGNMENT AND MUST DEDUCT

THE DUES. THE DECISION TO PAY, OR NOT TO PAY IS SOLELY THE
EMPLOYEE'S. IF THE EMPLOYEE

DECIDES TO HAVE DUES WITHHELD, THE AGENCY MUST HONOR THAT DECISION.
THE ALLOTMENTS ARE TO BE

MADE AT NO COST TO THE EMPLOYEES OR TO THE LABOR ORGANIZATION.
ASSIGNMENTS NORMALLY ARE TO BE

IRREVOCABLE FOR ONE YEAR.

/5/ CONCERNING THE FINAL VERSION OF THE HOUSE BILL WITH RESPECT TO
THE AGENCY SHOP ISSUE, THE FOLLOWING EXCHANGE OCCURRED DURING THE FLOOR
DEBATE ON TITLE VII:

MR. GLICKMAN. I THANK THE GENTLEMAN FOR YIELDING.

MR. CHAIRMAN, I WONDER IF THE GENTLEMAN MIGHT TELL ME THE DIFFERENCE
BETWEEN HIS SUBSTITUTE

AND THE COLLINS AMENDMENT WITH RESPECT TO THE ISSUE OF THE AGENCY
SHOP OR THE CLOSED OR UNION

SHOP, AND HOW THAT RELATES TO THE EXISTING EXECUTIVE ORDER.

MR. UDALL. THERE IS NO DIFFERENCE HERE. THE UNIONS HAVE LONG WANTED
AN AGENCY SHOP. WE

DO NOT GIVE THEM THAT IN THE UDALL SUBSTITUTE. THEY DO NOT GET THE
AGENCY SHOP, THEY DO NOT

GET THE UNION SHOP IN EITHER ONE OF THE PROVISIONS.

. . . .

MR. FORD OF MICHIGAN. MR. CHAIRMAN, THIS IS ONE OF THE UNFORTUNATE
THINGS THAT CAN HAPPEN

IN THE DISCUSSION OF THIS MATTER. THE AGENCY SHOP ISSUE HAS NO PLACE
IN THIS DISCUSSION. IT

HAS NOT BEEN IN THIS BILL AT ANY POINT, IT IS NOT IN THIS BILL
DIRECTLY, INDIRECTLY, BACK

DOOR, FRONT DOOR OR SIDE DOOR, AND THE DISCUSSION OF THE AGENCY SHOP
IS TOTALLY IRRELEVANT.

MR. UDALL. NO ONE ADVOCATES IT HERE IN THIS DEBATE. IT IS NOT IN
THE BILL.

124 CONG. REC. H9636 (DAILY ED. SEPT. 13, 1978).

/6/ IN THIS REGARD, THE COMMITTEE STATED:

HOUSE SECTION 7102 GUARANTEES EACH EMPLOYEE THE RIGHT TO FORM, JOIN,
OR ASSIST ANY LABOR

ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY. THE SENATE IN
ADDITION PROVIDES THAT "NO

EMPLOYEE SHALL BE REQUIRED BY AN AGREEMENT TO BECOME OR TO REMAIN A
MEMBER OF A LABOR

ORGANIZATION, OR TO PAY MONEY TO AN ORGANIZATION." THE CONFEREES
ADOPT THE HOUSE

WORDING. THE CONFEREES WISH TO EMPHASIZE, HOWEVER, THAT NOTHING IN
THE CONFERENCE REPORT

AUTHORIZES, OR IS INTENDED TO AUTHORIZE, THE NEGOTIATIONS OF AN
AGENCY SHOP OR UNION SHOP

PROVISION.

S. REP. NO. 95-1272, 95TH CONG.,2D SESS. 159(1978).

/7/ COMPARISON OF THE STATUTE'S EMPLOYEE RIGHTS PROVISION TO THAT IN
THE LABOR MANAGEMENT RELATIONS ACT LENDS FURTHER SUPPORT TO THIS
INTERPRETATION OF THE STATUTE.

SECTION 7102, AS CITED PREVIOUSLY, PROVIDES PERTINENTLY:

SEC. 7102. EMPLOYEES' RIGHTS

EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO

REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH

EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT . . . .

ON THE OTHER HAND, SEC. 7 OF THE LABOR MANAGEMENT RELATIONS ACT (29
U.S.C. 157(1976)) PROVIDES:

RIGHTS OF EMPLOYEES

SEC. 7. EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGANIZATION, TO
FORM, JOIN, OR ASSIST

LABOR ORGANIZATIONS, TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES
OF THEIR OWN CHOOSING,

AND TO ENGAGE IN OTHER CONCERTED ACTIVITIES FOR THE PURPOSE OF
COLLECTIVE BARGAINING OR OTHER

MUTUAL AID OR PROTECTION, AND SHALL ALSO HAVE THE RIGHT TO REFRAIN
FROM ANY OR ALL OF SUCH

ACTIVITIES EXCEPT TO THE EXTENT THAT SUCH RIGHT MAY BE AFFECTED BY AN
AGREEMENT REQUIRING

MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT AS
AUTHORIZED IN SECTION

8(A)(3).

WITH RESPECT TO THIS LANGUAGE OF THE LMRA, THE NATIONAL LABOR
RELATIONS BOARD STATED THAT "WE HAVE NO DOUBT THAT AN AGENCY-SHOP
AGREEMENT IS A PERMISSIBLE FORM OF UNION-SECURITY WITHIN THE MEANING OF
SECTIONS 7 AND 8(A)(3) OF THE ACT." GENERAL MOTORS CORP., 133 N.L.R.B.
451, 457(1961), ENFORCEMENT DENIED, 303 F.2D 428 (6TH CIR. 1962), REV'D
AND REMANDED, 373 U.S. 734(1963), BOARD ORDER ENFORCED, 319 F.2D 134
(6TH CIR. 1963).

/8/ THE UNION REQUESTED A HEARING ON THIS MATTER. PURSUANT TO
SECTION 2411.48 OF THE CITED RULES (5 C.F.R. 2411.48(1978)), THIS
REQUEST IS DENIED BECAUSE THE POSITIONS OF THE PARTIES ARE ADEQUATELY
REFLECTED IN THE RECORD BEFORE THE AUTHORITY.