dissenting. I cannot agree that the legislative provision here in question merely permits the Arkansas State Highway Commission (if so desired) to deduct union dues from the salaries and wages of members of appellant Employees Local 1315.
In my opinion, Section 23 (B) of Act 876 of the General Assembly of 1973 is mandatory. The provisions of that section include items that we all know to be mandatory, viz-, (1) withholding taxes; (2) Social Security contributions; (3) contributions to State Retirement System; the other authorized deductions certainly inure to the welfare of the employee, for whose benefit, in my opinion, the act was passed. For instance, provisions No. 4 authorizes deductions for group hospital, medical and life insurance. Under the act, an employee can thus pay this important item on a semimonthly basis, a small amount at a time, without having to save for, or remember to send in quarterly, semiannual, or annual premiums. No. 5 authorizes deductions to State employee credit unions, and this is certainly a valuable benefit. There may be many employees who desire to borrow money but can offer no collateral to assure the repayment of the debt; the provision mentioned provides that collateral. This payroll deduction also affords a means for one to accumulate savings by adding small amounts each payday (about all that State employees can do with the present high cost of living) for the purchase of United States Government Savings Bonds. The examples, to me, clearly support my original premise, viz., that the act was passed for the benefit of the individual State employees, and was a mandate to the several State departments.1
Actually, since the deductions entail additional book work, and perhaps in some departments, even an extra employee, I seriously doubt that deductions would be made on a voluntary basis, i.e., simply because the department was permitted to do so. For that matter, appellees deducted union dues under the provisions of Section 23 (B) for about a year and a half before deciding that the provision was not compulsory.
Appellees cite the Federal case of American Federation of Government Employees v. Hampton, et al., 77 LRRM 2977, U. S. District Court, District of Columbia, which deals with 5 USCA § 7301, the section being entitled “Allotment of Dues”. There, the court held that the statute was permissive rather than mandatory, but I should like to point out that there is a vast difference in the two statutes. 5 USCA § 7301 provides that “an agency may (my emphasis) deduct the regular and periodic dues of the organization from the pay of members of the organization in the unit of recognition who make a voluntary allotment for that purpose. Such an allotment is subject to the regulations of the Civil Service Commission, which shall include provision for the employee to revoke his authorization at stated six-month intervals.” To the contrary, our statute provides:
“Deductions from the payrolls of State employees, both regular and extra help, shall be (my emphasis) permitted only for the following purposes ***.”
I agree with appellant’s argument that the words “shall be” are mandatory, and require the various State agencies to implement the deductions requested by their respective employees. The words “permitted only”, in my opinion, mean that the State agency can only make the payroll deductions for the particular classifications enumerated, i.e,, “permitted only” are simply words of restriction, which limit the type of payroll deductions, and prevent deductions from wages for other purposes not specifically mentioned.
It is my view that the statute imposes a clear legal duty on appellees to deduct the dues, and the petition for mandamus should have been granted.
I respectfully dissent.
Brown and Holt, JJ., join in this dissent.While I recognize that the testimony has no probative value, it is interesting to note that State Senator W. D. Moore, Jr., who sponsored the bill in the Senate, testified that in response to questions from the Senate floor during discussion of the measure, he informed the Senators that the provision here in controversy was discretionary on the part of the employee, i.e., the employee had to make the written request — but the deduction was mandatory on the part of the employer (the State agency) once the request was made.