B-180095, OCT 1, 1974

B-180095, OCT 1, 1974

LABOR RELATIONS ARBITRATOR HELD THAT GOVERNMENT COULD NOT DEDUCT PRIOR OVERPAYMENTS TO UNION FROM CURRENT PAYMENT OF DUES TO UNION AND ORDERED GOVERNMENT TO MAKE FULL PAYMENT. SUCH OVERPAYMENT MAY NOT BE MADE INASMUCH AS NO AUTHORITY EXISTS TO MAKE PAYMENTS IN EXCESS OF AMOUNT ACTUALLY DUE.

ARBITRATION AWARD DENYING GOVERNMENT THE RIGHT OF RECOUPMENT OF PRIOR OVERPAYMENTS AGAINST CURRENT UNION DUES CHECK OFF PAYMENT:

THIS IS AN ADVANCE DECISION PURSUANT TO A REQUEST BY THE FINANCE AND ACCOUNTING OFFICER, U.S. ARMY TEST AND EVALUATION COMMAND, ABERDEEN PROVING GROUND (APG), MARYLAND, CONCERNING THE PROPRIETY OF PAYING AN ARBITRATION AWARD IN THE AMOUNT OF $80.33 TO THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL 2424.

PRIOR TO OCTOBER 18, 1971, ROBERT L. WRIGHT WAS AN APG EMPLOYEE AND A MEMBER OF LOCAL 2424. THE UNION AND APG WERE OPERATING UNDER AN AGREEMENT THAT REQUIRED APG TO DEDUCT DUES OF UNION MEMBERS WITHIN THE BARGAINING UNIT FROM THEIR PAYCHECKS AND TRANSFER AMOUNTS SO DEDUCTED TO THE UNION AT STATED INTERVALS. AS A MEMBER OF THE BARGAINING UNIT, MR. WRIGHT'S DUES WERE PROPERLY DEDUCTED UP TO OCTOBER 18, 1971, ON WHICH DATE MR. WRIGHT WAS TRANSFERRED TO A POSITION OUTSIDE THE BARGAINING UNIT. HOWEVER, APG CONTINUED TO DEDUCT HIS DUES ERRONEOUSLY AND TO PAY THEM OVER TO THE UNION. IN NOVEMBER 1972 THE APG CIVILIAN PAY SECTION RECOGNIZED THE ERROR, CEASED DEDUCTING DUES FROM MR. WRIGHT'S PAY, AND REIMBURSED HIM IN THE AMOUNT OF $80.33 THAT HAD BEEN IMPROPERLY DEDUCTED SINCE OCTOBER 18, 1971. IN DECEMBER 1972 THE APG FINANCE OFFICE DELIVERED A CHECK TO THE UNION IN AN AMOUNT WHICH WAS $80.33 LESS THAN THE AGGREGATE OF THE DUES DEDUCTED FROM MEMBERS' PAY FOR THE PERIOD, AND JUSTIFIED SUCH ACTION ON THE BASIS THAT THE GOVERNMENT WAS ENTITLED TO RECOUP AN AMOUNT EQUAL TO THE PREVIOUS OVERPAYMENT TO THE UNION BECAUSE OF THE ERRONEOUS DEDUCTION FROM MR. WRIGHT'S PAY. THE UNION FILED A GRIEVANCE ALLEGING THAT THE APG RECOUPMENT HAD VIOLATED THE TERMS AND CONDITIONS OF THEIR AGREEMENT WHICH REQUIRES THE AGGREGATE OF ALL DUES WITHHELD TO BE PAID TO THE UNION AND WHICH MAKES NO SPECIFIC PROVISION FOR RECOUPMENT. PURSUANT TO THE PROCEDURES SET FORTH IN THE AGREEMENT, THE GRIEVANCE WAS SUBMITTED TO ARBITRATION.

THE ARBITRATOR CONSIDERED THE GRIEVANCE AND MADE THE FOLLOWING FINDINGS, CONCLUSIONS AND AWARD:

"IN ORDER TO RESOLVE THE DIFFICULT QUESTION CONFRONTING THE ARBITRATOR, IT WOULD BE WELL TO REFER TO CERTAIN PROVISIONS IN THE COLLECTIVE BARBAINING AGREEMENT GOVERNING THE PARTIES.

"ARTICLE XXXIX, SECTION 2 READS AS FOLLOWS:

'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 UNITS) OF WAGE GRADE EMPLOYEES CERTIFIED BY THE U.S. DEPARTMENT OF LABOR ... AS EXCLUSIVELY REPRESENTED BY THE UNION ...'

"SECTION 9 OF ARTICLE XXXIX IN IMPLEMENTING THE ABOVE PROVIDES:

'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 THE AMOUNT EQUAL TO THE GRAND TOTAL OF ALL SUCH DEDUCTIONS LESS TWO CENTS FOR EACH INDIVIDUAL DEDUCTION MADE.'

"THE LANGUAGE OF THE AGREEMENT, PARTICULARLY THE REQUIREMENT THAT THE EMPLOYER WILL TRANSMIT 'A CHECK ... MADE PAYABLE TO THE UNION IN AN AMOUNT EQUAL TO THE GRAND TOTAL OF ALL SUCH DEDUCTIONS ...', WOULD SEEM TO THE ARBITRATOR TO BE BINDING ON THE EMPLOYER.

"THE ARBITRATOR, THEREFORE, IS OF THE OPINION THAT, SINCE THE EMPLOYER IS, BY THE TERMS OF THE AGREEMENT, REQUIRED TO PAY THE UNION 'NOT LATER THAN THREE (3) WORKDAYS AFTER EACH PAYDAY. ...' 'A CHECK ... IN AN AMOUNT EQUAL TO THE GRAND TOTAL OF ALL SUCH DEDUCTIONS', ITS PAYMENT IN DECEMBER 1972 OF AN AMOUNT LESS THAN THE 'TOTAL OF ALL SUCH DEDUCTIONS' BY $80.33 IS CLEARLY IMPROPER AND IN VIOLATION OF THE ABOVE QUOTED PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT.

"THE ARBITRATOR DESIRES TO ADD BY WAY OF CLARIFICATION THE FOLLOWING: THE ARBITRATOR FINDING, AWARD AND OPINION ARE BASED UPON AN IMPROPER PROCEDURE WHEREBY THE EMPLOYER RECOUPED THE SUM OF $80.33 BY REDUCING BY THAT AMOUNT A REQUIRED TRANSFER OF TOTAL DUES DEDUCTED FROM ELIGIBLE EMPLOYEES DURING A PARTICULAR PAY PERIOD. 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 GRIEVANCE IS THEREFORE SUSTAINED, AND THE AMOUNT OF $80.33 IS AWARDED TO THE UNION."

THE FINANCE AND ACCOUNTING OFFICER, U.S. ARMY TEST AND EVALUATION COMMAND, ABERDEEN PROVING GROUND, MARYLAND, HAS ASKED US TO RESPOND TO THE FOLLOWING QUESTIONS WITH REGARD TO THE AWARD:

(1) WAS THE ACTION TO DEDUCT THE $80.33 FOR THE ERRONEOUS PAYMENTS TO THE UNION CORRECT?

(2) IF THE DEDUCTION FOR THE ERRONEOUS PAYMENTS WAS CORRECT, WHAT ACTION THEN SHOULD BE TAKEN IN REPLY TO THE AWARD OF ARBITRATION?

(3) IF IT IS HELD THAT THE ARBITRATOR WAS CORRECT, WHAT IS THE APPROPRIATE FUND CITATION FROM WHICH TO MAKE PAYMENTS?

BY SUBMITTING THE ARBITRATION AWARD TO THIS OFFICE FOR A RULING ON THE LEGALITY OF ITS IMPLEMENTATION, WE ASSUME THAT THE DEPARTMENT OF THE ARMY HAS NOT DESIRED TO NOTE AN EXCEPTION WITH THE FEDERAL LABOR RELATIONS COUNCIL ON GROUNDS PERMITTED UNDER PROVISIONS OF SECTION 13(B) OF EXECUTIVE ORDER 11491 OF OCTOBER 29, 1969, 3 CFR 254 (1974), AS AMENDED.

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 SECTION 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.

ACCORDINGLY, QUESTION NUMBER 1 IS ANSWERED IN THE AFFIRMATIVE. WITH REGARD TO QUESTION NUMBER 2, THE FINANCE AND ACCOUNTING OFFICER, U.S. ARMY TEST AND EVALUATION COMMAND, APG, SHOULD PROVIDE COPIES OF THIS DECISION TO ARBITRATOR AND THE UNION FOR THEIR INFORMATION AND GUIDANCE. SINCE QUESTION NUMBER 1 WAS ANSWERED IN THE AFFIRMATIVE, IT IS UNNECESSARY TO RESPOND TO QUESTION NUMBER 3. ..END :