PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL TREASURY EMPLOYEES
UNION,
Petitioner,
v. No. 10-1857
FEDERAL LABOR RELATIONS
AUTHORITY,
Respondent.
On Petition for Review of an Order of
the Federal Labor Relations Authority
(FLRA-1: 0-AR-4212).
Argued: May 12, 2011
Decided: July 26, 2011
Before TRAXLER, Chief Judge, and GREGORY and
DAVIS, Circuit Judges.
Petition denied by published opinion. Judge Davis wrote the
opinion, in which Chief Judge Traxler and Judge Gregory
joined.
COUNSEL
ARGUED: Richard John Bialczak, NATIONAL TREA-
SURY EMPLOYEES UNION, Washington, D.C., for Peti-
2 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
tioner. Rosa M. Koppel, FEDERAL LABOR RELATIONS
AUTHORITY, Washington, D.C., for Respondent. ON
BRIEF: Gregory O’Duden, General Counsel, Barbara A.
Atkin, Deputy General Counsel, NATIONAL TREASURY
EMPLOYEES UNION, Washington, D.C., for Petitioner.
Joyce G. Friedman, FEDERAL LABOR RELATIONS
AUTHORITY, Washington, D.C., for Respondent.
OPINION
DAVIS, Circuit Judge:
The National Treasury Employees’ Union ("NTEU" or
"Union") seeks review of an adverse ruling by the Federal
Labor Relations Authority ("FLRA" or "the Authority"). The
Union filed a grievance alleging that the Internal Revenue
Service ("IRS" or "Agency") was processing its members’
dues revocation forms without following contractually-
mandated procedures. When the Union and the Agency were
unable to resolve the matter, they submitted the dispute to
arbitration. Following a hearing, the arbitrator issued an
award, sustaining in part and denying in part the Union’s
grievance. After the Agency and the Union filed exceptions
to the arbitrator’s award with the FLRA, the FLRA denied the
parties’ exceptions and confirmed the award in its entirety.
We deny the Union’s petition for review.
I.
As the exclusive representative for IRS employees, NTEU
negotiated a collective bargaining agreement ("CBA") with
the IRS that governed, among other issues, procedures for
handling dues withholding and revocations. After the CBA
expired without a successor agreement in place in June 2006,
the IRS notified NTEU that it would no longer honor what it
deemed to be permissive provisions of the CBA that it consid-
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 3
ered to be a violation of law or regulations, including Article
10, Sections 6.A.3 and 6.A.4, which governed revocation of
dues withholding. Pursuant to Article 10, an employee’s dues
revocation could
only be effected by submission of a completed [revo-
cation form] that has been initialed by the chapter
president or his or her designee. If the [form] is not
initialed, the Employer shall return the [form] to the
employee and direct the employee to the proper
Union official for initialing.
J.A. 38 (hereinafter "union sign-off"). In effect for nearly 12
years, the union sign-off served two goals: (1) to provide the
Union with an opportunity to learn why an employee wished
to revoke membership and attempt to change her mind and (2)
to facilitate budgeting for the upcoming fiscal year. On July
13, 2006, the IRS informed NTEU that the Agency would
begin processing revocation forms even if such forms did not
have a union sign-off; the Agency then notified employees of
the change. Subsequently, during the annual two-week period
for submission of revocation forms, the Agency processed
approximately 1,000 forms without a union sign-off.
On July 14, 2006, the Union filed a grievance alleging that
the Agency’s decision to process the forms constituted a vio-
lation of Article 10 of the CBA, an unfair labor practice
("ULP") under 5 U.S.C. § 7116(a)(1), (2), and (5) of the Fed-
eral Service Labor-Management Relations Statute, 5 U.S.C.
§ 7101-7135 ("Statute"),1 and a violation of past practice. Fol-
1
Section 7116(a)(1) makes it an unfair labor practice for an agency "to
interfere with, restrain, or coerce any employee in the exercise by the
employee of any right under this chapter." 5 U.S.C. § 7116(a)(1). Section
7116(a)(2) makes it an unfair labor practice "to encourage or discourage
membership in any labor organization by discrimination in connection
with hiring, tenure, promotion, or other conditions of employment." 5
U.S.C. § 7116(a)(2). Section 7116(a)(5) makes it an unfair labor practice
"to refuse to consult or negotiate in good faith with a labor organization
as required by this chapter." 5 U.S.C. § 7116(a)(5).
4 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
lowing a hearing on November 22, 2006, the arbitrator issued
an opinion and award on February 23, 2007, sustaining in part
the Union’s grievance. The arbitrator found that Article 10
was a lawful and mandatory provision that continued to be
effective past the expiration of the CBA; thus, the Agency’s
decision to process revocation forms without a union sign-off
violated Article 10 and constituted a ULP under the Statute.
In finding that the Agency’s actions violated the Statute, how-
ever, the arbitrator refused to find that the Agency’s actions
illegally interfered with or coerced employees in the exercise
of their statutory rights. Because at least some employees
might have changed their minds about their revocations had
the IRS honored the union sign-off procedures, the arbitrator
found that the Agency violated the Union’s right to receive
some dues.
As a remedy, the arbitrator ordered the Agency to follow
the revocation procedures set out in Article 10 of the CBA, to
post a notice admitting its statutory violations, and to pay
75% of the arbitration fees and expenses. While agreeing with
the Union that a return to the status quo ante was the appropri-
ate remedy, the arbitrator rejected the Union’s demand for
reinstatement of dues withholding and reimbursement to the
Union for all employees whose revocation forms were pro-
cessed without a union sign-off. The arbitrator found it
"highly speculative to assume that all, or most, employees
whose revocation forms were improperly processed would
have withdrawn their revocations had Article 10 procedures
been faithfully followed." J.A. 68. Instead, the arbitrator
ordered the IRS to provide the Union with a list of employees
who had revoked membership without the requisite union
sign-off, stating that the Union could contact those employees
about voluntarily reinstating their dues withholding. The arbi-
trator directed the IRS to process any reinstatement authoriza-
tions submitted as a result of the Union’s contact with those
employees, retroactively withhold dues from those employ-
ees, and pay those dues to the Union.
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 5
The parties filed timely exceptions to the arbitrator’s award
with the FLRA. The Agency argued that its decision not to
honor the Article 10 revocation procedures was not contrary
to law and that the arbitrator erred in finding its actions vio-
lated the CBA and constituted a ULP. NTEU excepted to the
arbitrator’s remedy, arguing that the decision not to reimburse
the Union for dues of all employees whose revocation forms
were improperly processed was contrary to law.
On May 28, 2010, FLRA issued a final decision and order
rejecting both parties’ exceptions. National Treasury Employ-
ees Union and United States Dep’t of Treasury Internal Reve-
nue Service, 64 F.L.R.A. 833 (2010). With respect to the
IRS’s exceptions, FLRA held that the negotiated union sign-
off procedures were valid and that, in improperly processing
revocation forms, the Agency violated the contract and com-
mitted a ULP. With respect to NTEU’s exceptions, FLRA
found that the Union had failed to provide support showing
that full reimbursement was compelled by law. FLRA
reviewed the arbitrator’s decision pursuant to a deferential
standard that directs affirmance of a remedy unless it is a "pa-
tent attempt to achieve means other than those that can prop-
erly be said to effectuate the policies of the Statute." 64
F.L.R.A. at 839. It found the remedy ordered by the arbitrator
passed muster and confirmed the award.
We have jurisdiction under 5 U.S.C. § 7123(a)(1).
II.
This court will uphold the Authority’s decision unless it is
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law. U.S. Dep’t of Health and Human
Servs. v. FLRA, 844 F.2d 1087, 1090 (4th Cir. 1988) (en
banc); Nuclear Regulatory Comm’n v. FLRA, 859 F.2d 302,
306 (4th Cir. 1988); 5 U.S.C. § 706(2)(A); 5 U.S.C.
§ 7123(c). While the Authority is entitled to considerable def-
erence in exercising its mandate, the Supreme Court has cau-
6 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
tioned that courts must not "rubber-stamp . . . administrative
decisions that they deem inconsistent with a statutory mandate
or that frustrate the congressional policy underlying a statute."
Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S.
89, 97 (1983) (citations and internal quotation marks omit-
ted); U.S. Immigration and Naturalization Service v. FLRA, 4
F.3d 268, 271 (4th Cir. 1993). Notably, where we are review-
ing the Authority’s choice of remedy, the standard of review
is "particularly narrow," as Congress has given the Authority
broad discretion "to fashion appropriate remedies for an
unfair labor practice." NTEU v. FLRA, 910 F.2d 964, 967
(D.C. Cir. 1990) (en banc); see also Dep’t of Commerce,
Bureau of Census v. FLRA, 976 F.2d 882, 885 (4th Cir. 1992).
Thus, we will uphold the Authority’s remedial order "‘unless
it can be shown that the order is a patent attempt to achieve
ends other than those which can fairly be said to effectuate the
policies of the Act.’" NTEU v. FLRA, 910 F.2d at 968 (cita-
tions and internal quotation marks omitted).
Here, the Authority upheld the arbitrator’s remedy, finding
that "[b]ecause the Union has failed to establish that its
requested remedy was compelled by law, the Union has failed
to establish that the Arbitrator committed legal error." 64
F.L.R.A. at 839. The FLRA found that the Union had failed
to provide support for its contention that the arbitrator erred
by considering the intent of the employees who improperly
revoked their authorization for dues withholding. Id. In reject-
ing the Union’s requested remedy, the arbitrator reasoned as
follows:
The fact that the Agency may have deprived the
Union of a contractual opportunity to persuade
employees—some of whom might have been recep-
tive to the Union’s efforts—to withdraw their revo-
cations is not a lawful reason to deprive those
employees who would have stuck with their original
decision of their statutory right to freely withdraw
their support from the Union.
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 7
J.A. 68.2 The arbitrator nonetheless found that status quo ante
relief required a "return to the point at which the improper
action occurred" and ordered the Agency to permit the Union
to contact the employees whose revocation forms were
2
The arbitrator made passing reference to potential sovereign immunity
concerns raised by the Union’s requested remedy, but such concerns do
not obtain here. The Agency had argued that sovereign immunity barred
the remedy requested by the Union, citing Department of Army v. FLRA,
56 F.3d 273 (D.C. Cir. 1995). At oral argument before us, counsel for the
FLRA argued that sovereign immunity was not a bar to the remedy
requested in this case because the CBA between the IRS and the Union
created a mechanism by which any dues the Agency failed to remit would
be deducted from the employees’ pay and would not impose upon the gov-
ernment fisc.
While we are somewhat skeptical of the correctness of the FLRA’s rea-
soning in this regard, we need not address it here, as we conclude that the
Union’s requested remedy is of an equitable nature and thus falls outside
the scope of the D.C. Circuit’s analysis in Department of Army. In that
case, the court determined that the remedy requested by the union consti-
tuted money damages for which the agency had not waived sovereign
immunity. Id. at 276. The union there was seeking compensatory damages
on behalf of its members for consequential losses (bank overdraft fees and
interest) incurred by its members as a result of the agency’s delayed pay-
ment of salaries to members/employees. In effect, the union’s complaint
could be characterized as a "class-action" of sorts, with the union attempt-
ing to assert damages claims against the government on behalf of a class
consisting of its members; theoretically, each union member could have
filed suit against the government for her loss.
The remedy requested by NTEU here is dramatically unlike that struck
down in Department of Army. Here, the Union seeks reimbursement for
dues payments it claims are owed to it by its members as a result of the
IRS’s actions. In no way can such a remedy be considered "a substitute
for a consequential loss," but is rather "‘the very thing’" to which the
Union claims it is entitled. See id. (distinguishing between legal and equi-
table monetary awards). While the IRS did not take away money from the
Union which it owed the Union, it impeded the Union’s receipt of dues
payments owed to the Union by members who were permitted to resign
from the Union too easily. In short, the Union seeks to be restored to the
position it would have occupied but for the IRS’s wrongdoing. Thus, its
requested remedy is a form of restitution, albeit in the form of a monetary
award, as to which the government has waived sovereign immunity.
8 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
improperly processed, the very opportunity that had been lost
as a result of the Agency’s actions. J.A. 68. We discern no
reason to disturb the remedy upheld by the Authority.
Section 7102 of the Statute gives employees the right to
refrain from union participation "freely and without fear of
penalty or reprisal." 5 U.S.C. § 7102. Section 7115 of the
Statute allows employees to establish and to revoke dues
withholding from their pay, subject only to the condition that
the employee’s assignment "may not be revoked for a period
of 1 year." 5 U.S.C. § 7115(a). While the union and an agency
may bargain for the specific procedures for implementing
§ 7115, the negotiated procedures may not infringe on the
employees’ right to "remain free to revoke their dues authori-
zations at annual intervals." AFGE, AFL-CIO and Dep’t of
Veterans Affairs, 51 F.L.R.A. 1427, 1433 (1996) (finding
negotiated procedures at issue did not "interfere with, restrain
or coerce employees in their exercise of rights" to freely
revoke). See also Felter v. Southern Pacific Co. et al., 359
U.S. 326 (1959) (concluding that revocation procedures in
agreement with private sector employer unlawfully infringed
on right of employees to revoke authorization after one year).
While not all provisions specifying the manner in which an
employee can revoke are unlawful restrictions, such provi-
sions must not unduly burden the employee or effectively pre-
clude her from exercising her right to revoke dues
withholding authorization after one year. AFGE, AFL-CIO
and Dep’t of Veterans Affairs, 51 F.L.R.A. at 1435-37.
The majority of the cases cited by the Union before the
Authority and in its brief to this court do not implicate the
right of an employee to revoke her dues withholding authori-
zation; instead, they turn on the failure of the employer to pro-
cess dues assignments properly submitted by employees. See
Dep’t of Treasury, U.S. Mint and AFGE, Mint Council, 35
F.L.R.A. 1095, 1098 (1990); Naval Underwater Systems Ctr.
and Nat’l Ass’n of Gov’t Employees, 16 F.L.R.A. 1124, 1126
(1984); Defense Logistics Agency and AFGE, 5 F.L.R.A. 126
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 9
(1981); Dep’t of Energy and NTEU, 1998 FLRA Lexis 228,
at *7-8 (FLRA ALJ Dec. No. 138 Nov. 12, 1998).
The Union cites to only one case in which revocation was
at issue. Veterans Admin. Lakeside Med. Ctr. and Serv.
Employees Int’l Union, 12 F.L.R.A. 244, 247-48 (1983). In
that case, the agency wrongfully processed dues revocations
outside the annual period set out in the CBA. Id. The Authori-
ty’s decision there, however, relied on the fact that the agen-
cy’s decision to honor the revocations ran afoul of the only
statutory condition imposed on revocation procedures: that an
employee’s dues withholding authorization could not be
revoked for a period of one year. Id. at 246 (citing 5 U.S.C.
§7115(a)). In fashioning a remedy, the Authority ordered the
agency to reinstate dues withholding for each employee
whose revocation was untimely under the CBA and "whose
assignment has not reached a date appropriate for termina-
tion pursuant to section 7115(a) of the Statute." Id. at 247-48
(emphasis added). The Authority also ordered the agency to
reimburse the union for dues "it would have received from the
pay of bargaining unit employees but for the Respondent’s
effectuation of untimely submitted dues revocations." Id.
Here, neither the Union nor the Agency argues that any of the
revocation forms, despite being improperly filed, violated the
one-year statutory bar on revocation. Thus, the circumstances
presented in Veterans Administration are clearly distinguish-
able from the circumstances presented in this case, where the
revocations processed by the Agency violated the CBA, but
not the statutory condition on revocation. Consequently, the
Authority did not act arbitrarily in sustaining a remedial order
that differed somewhat from that at issue in Veterans Admin-
istration.
The Union fails to persuade us that it has a right to demand
dues from the Agency for employees who voluntarily submit-
ted revocation forms consistent with their statutory rights. Cf.
Felter, 359 U.S. at 333-35 (stating that parties may not "treat
as nullities revocation notices which are clearly intended as
10 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
such and about whose authenticity there is no dispute"). It is
doubtful, at best, that all employees who voluntarily chose to
submit timely revocations would have changed their minds if
subject to the union sign-off procedure.3 The arbitrator found
that such an assumption by the Union "is purely speculative,"
and, consequently, his ordered remedy, which provided the
Union with the opportunity to contact employees whose with-
holding was improperly revoked, was appropriate so as not to
"deprive those employees who would have stuck with their
original decision of their statutory right to freely withdraw
their support from the Union." J.A. 67-68.
Because the Authority’s decision upholding the arbitrator’s
award was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, we have no warrant to
disturb the Authority’s decision.
III.
For the foregoing reasons, the petition for review is
DENIED.
3
We candidly acknowledge that affording the Union an opportunity to
persuade a former union member to rescind a dues revocation form that
has already been processed by the Agency is not exactly the same opportu-
nity afforded the Union by the collective bargaining agreement: an oppor-
tunity to dissuade a union member from submitting a dues revocation form
before it is submitted to the Agency. Nevertheless, we are satisfied that the
marginally-increased burden thus imposed on the Union does not under-
mine the efficacy of the remedial order sustained by the Authority in this
case, or otherwise support the conclusion that the Authority abused its dis-
cretion in doing so.