For citation please see the Reporter for this jurisdiction.

6 FPER ¶ 11212

Summary: Voluntary payroll deductions, to be used for partisan political activity, are not "uniform assessments" or "special assessments" within meaning of Section 447.303 of Act. Assessment is involuntary, compulsory payment required by union as condition for maintaining union membership or avoiding union disciplinary action.

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MANATEE COUNTY SCHOOL BOARD

Decision of PERC

In re Petition for Declaratory Statement of the Manatee County School Board.

Case No. DS-80-003, 80D-175

August 13, 1980

Before Powers, Chairman; Parrish and Parker, Commissioners

Beverly McLean, Bradenton, representative for petitioner.

ORDER

PER CURIAM. On February 14, 1980, a Petition for Declaratory Statement was filed by the Manatee County School Board (Board).⁽¹⁾ A response to the petition was filed by the Manatee Education Association (MEA).

The Petitioner poses the following questions:

Is an annual voluntary payroll deduction of a standard amount, which is designated for the purpose of partisan political activity, a "uniform assessment" or "special assessment" pursuant to the provisions of Section 447.303. Florida Statutes (1979)?

If it is a "uniform assessment" does it fall within the requirements of United Faculty of Palm Beach Junior College and Board of Trustees of Palm Beach Junior College. 3 FPER 74 (1977)?

Section 447.303, Florida Statutes (1979), provides in pertinent part:

Any employee organization which has been certified as a bargaining agent shall have the right to have its dues and uniform assessments deducted and collected by the employer from the salaries of those employees who authorize the deduction of said dues and uniform assessments... The public employer is expressly prohibited from any involvement in the collection of fines, penalties, or special assessments.

The statute does not define the terms "uniform assessments" and "special assessments." The dictionary definition of the word assessment includes: "A levy made on members of an organization (as a club or union) for a special purpose not covered by dues."⁽²⁾ An essential aspect of an assessment is an element of obligation or duty to pay.⁽³⁾ By definition an assessment is involuntary. Therefore, a voluntary payroll deduction is not an assessment, either uniform or special.

Because the payroll deductions in question are not "uniform assessments" or "special assessments" their deduction by a public employer is neither required nor prohibited by Section 447.303, Florida Statutes (1979). For the foregoing reasons the first question posed by the petition is answered in the negative. The second question is, therefore, moot.

It is so ordered.

POWERS, Chairman, concurring specially with separate opinion.

While I concur in my colleagues' conclusion, it is my belief that further analysis is essential to explicate the rationale underlying my concurrence. Therefore, I enter this separate opinion.

Employees joining a labor organization undertake certain obligations in turn for their membership which characteristically include financial support and obedience to the organization's constitution and by-laws. An assessment,⁽⁴⁾ like dues, is an incident of membership in the organization. Such membership is a contract between the member and the union.⁽⁵⁾ Because an assessment is a contractual incident of membership, it is enforceable through the membership obligation established by the union's constitution and by-laws.⁽⁶⁾

While union membership is voluntary in a right-to-work state, the obligation to pay dues and uniform assessments is certainly an obligation of each member of the organization who desire to retain membership. Indeed, the refusal to pay such obligation would subject the defaulting member to expulsion from the union or to some lesser discipline authorized by the constitution and by-laws. Because dues and assessments may be mandated by the union as a condition precedent to maintaining membership, neither may be accurately characterized as voluntary. Conversely, a member's refusal to authorize voluntary payroll deductions for any purpose cannot legitimately impact upon his or her membership or its attendant rights and benefits.⁽⁷⁾ In summary, an assessment is a compulsory, rather than voluntary, levy imposed in addition to fixed union dues upon all union members, the payment of which is uniformly required by the union as a condition of retaining union membership or avoiding union disciplinary action. Therefore, a voluntary payroll deduction is neither a uniform nor a special assessment.

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15 FPER ¶ 20331

Summary: County engaged in unlawful interference by maintaining provision in collective agreement allowing for payroll deductions of union's "special assessments" contrary to § 447.303 of Act. Assessment levied by union for purpose related to collective bargaining or contract administration, and shared equally among all members of union, constitutes "uniform assessment," which union is entitled to have deducted from wages of consenting employees pursuant to § 447.303 of Act. Conversely, assessment against select portion of membership for purpose other than collective bargaining or contract administration constitutes "special assessment," which may not be deducted from wages even if authorized by employees.

BROWARD COUNTY (DIVISION OF MASS TRANSIT

Benevolent Association of Coachmen, Charging Party, v. Broward County, Division of Mass Transit, Respondent, v. Amalgamated Transit Union, Local 1267, Intervenor.

Docket No. CA-89-015; Order No. 89U-281

October 2, 1989

Before Mattimore, Chairman; Sloan and Poole, Commissioners

Rancy F. Snyder, Ft. Lauderdale, representative for charging party.

John D. Gronda, Miami, attorney for respondent.

Joseph Egan, Jr., Orlando, attorney for intervenor.

FINAL ORDER

MATTIMORE, Chairman.

On March 24, 1989, the Benevolent Association of Coachmen, Inc. (Association), filed an unfair labor practice charge alleging that the Broward County, Division of Mass Transit (County), violated § 447,501(l)(a), Florida Statutes (1987),⁽⁸⁾

by entering into a collective bargaining agreement with the Amalgamated Transit Union, Local 1267 (Local 1267), which provides for the deduction of special assessments from bargaining unit employees' wages, and for deducting amounts for such purposes without authorization in violation of § 447.303. The Association also charged that the County violated § 447.501(l)(a) by including an unlawful grievance procedure provision in the collective bargaining agreement.

On April 10, the Commission's General Counsel summarily dismissed the portion of the charge relating to the grievance procedure and found the remainder of the charge to be sufficient. See Benevolent Association of Coachmen, Inc. v. Broward County, Division of Mass Transit, 15 FPER ¶ 20139 (G.C. Summary Dismissal 1989), aff'd, 15 FPER ¶ 20213 (1989), appeal filed, No. 89-1873 (Fla. 4th DCA July 10, 1989). On April 27, the County filed a response to the charge. Local 1267 voluntarily intervened in this case on May 15. Both the County and Local 1267 filed requests for attorney's fees and costs pursuant to § 447.503(6)(c).⁽⁹⁾

An evidentiary hearing on the portion of the charge found sufficient was conducted before a Commission-designated hearing officer on May 17. On July 3, the hearing officer issued a recommended order in which he concluded that the County had not committed an unfair labor practice, and that neither the County nor Local 1267 were entitled to attorney's fees for their defense of the charge.

The Association filed three exceptions to the hearing officer's recommended order and the County filed seven exceptions. We will first resolve the exceptions to the hearing officer's factual findings. The Association's exception one takes issue with the hearing officer's finding that Association members were expelled from Local 1267 in December 1988, and Association representative Snyder resigned from the union in January 1989. Our review of the record discloses that the Association members were expelled in January and February 1989. (Tr. at 80-81, 117) Furthermore, the record does not support the finding regarding the resignation of Snyder. Accordingly, we grant the exception and modify the finding, although this does not alter our resolution of this case.

The County's first exception objects to the hearing officer's rejection of a proposed finding that the Association's stated purpose is to become the bargaining representative of employees currently represented by Local 1267. The proposed finding is not supported by a preponderance of the record evidence and therefore is denied.

In exception four the County contends that the hearing officer erred in rejecting a proposed finding that the Association's representative refused to disclose the identity of its members. Upon consideration, we conclude that this proposed finding is unnecessary and irrelevant to the dispositive issues in this case. Therefore, the County's exception four is denied. See Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978) (hearing officer is not required to make subordinate, cumulative, unnecessary or immaterial findings of fact).

The Commission has reviewed the record in this case and concludes that except as specifically noted above, the hearing officer's factual findings are supported by competent, substantial evidence. We further conclude that the proceedings upon which these findings are based comply with the essential requirements of law. Accordingly, the Commission adopts the hearing officer's findings of fact, with the modifications specifically noted in the above discussion. § 120.57(l)(b)10, Fla. Stat.

Incorporating our resolution of the exceptions to the hearing officer's findings, the following is a summary of the salient facts of this case. The Association is an employee organization composed of County employees seeking to redress employee concerns. Local 1267 is the certified bargaining representative for a unit of County bus drivers, mechanics, and maintenance personnel. Upon joining Local 1267, members agree to pay all dues, fines, and assessments. See intervenor's Exhibit 9. Since 1979, Article 5 of the collective bargaining agreement between the County and Local 1267 has provided that the County "where so authorized and directed in writing by an individual employee ... will deduct that individual's membership dues in the Union and special assessments from the wages of such individual employees." The contract further provides that the County will not deduct any fines or penalties and sets forth the form to be utilized for the authorization of wage deductions. This form authorizes the County "to deduct from [the employee's) wages, on each and every pay period, [the employee's) union dues, consisting of one twenty-sixth (1/26th) of [the employee's] annual [union] membership dues." See Charging Party's Exhibit 3. Periodically since 1985, and most recently in June 1988, the members of Local 1267 have elected to levy an assessment among the membership to cover the union's share of the cost of taking a grievance to arbitration. On each occasion, the County has deducted the assessment from the wages of those employees who have signed dues deduction authorization forms. These deductions are the only assessments which have been taken pursuant to the "special assessment" provision of the contract.

Before considering the substantive issues in this case, we must decide how the six-month statute of limitations set forth in § 447.503(6)(b) applies to the charge. The Association has charged that the County committed unfair labor practices by (1) maintaining and administering an unlawful contract provision, (2) deducting special assessments from wages, and (3) deducting assessments without authorization. It is undisputed that the County did not deduct an assessment, special or uniform, authorized or not, from employees' wages within the six-month period preceding March 24, the date on which the charge was filed. Therefore, because the discrete incidents of wage deductions which form the basis of the latter two alleged unfair labor practices fall outside the limitations period, we are unable to find that those events constitute unfair labor practices. However, since the allegedly unlawful contract provision was maintained during the six months preceding the filing of this charge, we conclude that this aspect of the charge is not time-barred. See Speigel v. Dade County PBA, 14 FPER ¶ 19092 (1988); AFSCME Local 3032 v. Delaney. 9 FPER ¶ 14339 (1983), aff'd, 458 So.2d 372 (Fla

1st DCA 1984).⁽¹⁰⁾

We turn now to the substantive issues of this case. Section 447.303 provides in pertinent part:

Any employee organization which has been certified as a bargaining agent shall have the right to have its dues and uniform assessments deducted and collected by the employer from the salaries of those employees who authorize the deduction of said dues and uniform assessments.... The public employer is expressly prohibited from any involvement in the collection of fines, penalties, or special assessments.

Pursuant to this statutory provision, a public employer and certified bargaining agent may enter into a contract which includes provisions for employer deduction of union dues and "uniform assessments" from the wages of consenting employees.⁽¹¹⁾ However, the employer is expressly barred from deducting "fines, penalties, or special assessments." Accordingly, a contract provision, such as Article 5, providing for the deduction of "special assessments" from employees wages is facially unlawful.

In exceptions two and three, the County urges us to look beyond the four corners of the contract and interpret this clause of Article 5 in light of the intent of the parties. However, it is appropriate to consider bargaining history and the surrounding circumstances to construe a disputed clause in a manner to effectuate the intent of the parties only upon a finding that the clause is ambiguous and in need of construction, See Local 783. Allied Industrial Workers of America v. General Electric Company, 471 F.2d 751, 757 (6th Cir, 1973); Federation of Public Employees v, City of Pompano Beach, 9 FPER ¶ 14111 at 219 (1983) (absent ambiguity in the language of a contract, the Commission will not resort to examination of evidence outside the four corners of the document to determine if waiver exists). The clause before us specifically and unambiguously authorizes the deduction of "special assessments." This language is a term of art contained in and proscribed by Chapter 447. It requires no further construction. Therefore, the County's exceptions two and three are denied. Article 5 of the collective bargaining agreement purports to authorize actions expressly prohibited by § 447.303. Accordingly, we conclude that maintenance of this clause of the agreement violates § 447.501(1)(a) and that the unlawful clause is void.

Next we consider the alleged violation of deducting a special assessment. Although the County has not deducted an assessment within the statutory limitations period, we address these allegations as guidance for the parties' future actions. As noted by the hearing officer, the distinction between special and uniform assessments is an issue of first impression for the Commission. Upon consideration we agree with the hearing officer's analysis of the nature of the assessments levied by Local 1267. We conclude that an assessment levied for a purpose related to the collective bargaining or contract administration functions of the bargaining agent and shared equally shared among all members of the union constitutes a uniform assessment, which the bargaining agent is entitled to have deducted from the wages of consenting employees pursuant to § 447.303. Conversely, a levy which is imposed upon a select portion of the membership for a purpose other than collective bargaining or contract negotiation is a special assessment not subject to wage deduction even if authorized by the employees. The assessments which were deducted from the wages of members of Local 1267, pursuant to Article 5. without exception, have been levied uniformly upon all members of Local 1267 for the payment of arbitration costs. Therefore, these levies are uniform, not special, assessments and do not constitute unfair labor practices.

We turn now to an examination of the County's authority to deduct these uniform assessments from employees' pay. Employees have the right to refrain from engaging in union activity, including the right to refrain from executing a dues deduction authorization. § 447.301(1), Fla. Stat. Public employers are prohibited from interfering with, restraining, or coercing employees in the exercise of such rights by § 447.501(l)(a). Further, public employers are prohibited from interfering with or assisting in the formation, existence, or administration of any employee organization. § 447.501(1)(e), Fla. Stat. An employer who deducts union dues or assessments from an employee's pay and remits the proceeds to the bargaining representative without the employee's written authorization violates § 501(l)(a) and (e). See NLRB v. Brotherhood of Railway, Airline and Steamship Clerks, 498 F.2d 1105,1109 (5th Cir. 1974); Chun King Sales, Inc., 126 NLRB 851 (1960).

In the case before us, the members of Local 1267 have authorized the union to levy periodic dues and assessments upon the members by their membership oath and subsequent vote on each levy. However, this is not equivalent to an authorization to deduct such dues and assessments from members' paychecks.⁽¹²⁾ An individually signed authorization is required by § 447.303 for the deduction of dues or uniform assessments. The wage deduction authorization form signed by union members in this case only authorizes the County to deduct "my union dues, consisting of one twenty-sixth (1/26th) of my annual membership dues." It does not authorize the payroll deduction of uniform assessments or any other monies beyond the described dues.

Furthermore, the County and Local 1267 cannot rely upon their collective bargaining agreement as the sole authority for the deduction of assessments. A payroll deduction authorization is an agreement between the employer and the employee. A union and an employer cannot create or change the terms of the agreement without obtaining the individual employee's consent in the form of a signature on an authorization card. See NLRB v. Atlanta Printing Specialties and Paper Products Union 527. 523 F.2d 783. 785 (5th Cir. 1975). Accordingly, we caution the County that deduction of assessments is not authorized by the current authorization forms signed by employees and further assessment of deductions without appropriate authorization would violate § 447.501 (1)(a) and (e)

In its seventh exception, the County objects to the hearing officer's conclusion that it is not entitled to an award of attorney's fees and costs. We agree with the hearing officer's analysis and deny the County's request for fees both because we have found that the County and Local 1267 are maintaining a void contractual provision regarding special assessments and because, in regard to the remaining issues, there was no clear precedent upon which the parties could have relied. Therefore, the County's exception seven is denied.

Based upon the foregoing, we conclude that Broward County, Division of Mass Transit has not deducted any assessments from employee wages within six-months preceding the filing of this charge and, therefore, by operation of § 447.503(6)(b) we dismiss the allegations that prior deductions were unauthorized and illegal. Broward County, Division of Mass Transit violated § 447.501(l)(a) by maintaining a contractual provision purporting to authorize the deduction of special assessments and this contractual provision is void because this action is prohibited by § 447.303. We further conclude that the deduction of assessments is not authorized by the current authorization forms executed by employees and any further assessments without appropriate authorization would violate § 447.501 (1) (a) and (e).

Therefore, the Commission ORDERS the following:

1. The Broward County, Division of Mass Transit, shall cease and desist from:

a. Maintaining Article 5 of the collective bargaining agreement insofar as that provision authorizes the deduction of special assessments from employees' wages.

b. In any like or related manner, interfering with, restraining or coercing employees in any exercise of rights guaranteed them by Chapter 447, Part II.

2. The Broward County, Division of Mass Transit, shall take the following affirmative action:

a. Notify the Public Employees Relations Commission by affidavit or other proof of final compliance with this order.

This order may be appealed to the appropriate district court of appeal. A notice of appeal must be received by the Commission and the district court of appeal within 30 days from the date of this order. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. Further explanation of the right to appeal is provided in §§ 447.504 and 120.68, Florida Statutes (1987), and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Commission within 15 days from the date of this order. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15,005.

It is so ordered.

FOOTNOTES and ENDNOTES

1. On February 22, 1980, notice of the petition was published in the Florida Administrative Weekly.

2. Webster's Third New International Dictionary 131 (unabridged ed. 1976).

3. Id., at 1301 (definition of levy).

4. The term "assessment" is statutorily undefined and should be given its usual and ordinary meaning. Gasson v. Gay, 49 So. 2d 525 (Fla. 1950). Webster's Third New International Dictionary 131 (unabridged ad. 1976) defines "assessment" as a levy made on members of an organization (as a club or union) for a special purpose not by dues. Similarly, "assessment" is defined in Ballentine's Law Dictionary (3d ad. 1969), as the imposition or levying of a tax against taxpayers or organizational members. Definitional examples set forth in Ballentine's include a plan requiring payment by all holding similar insurance policies; a levy against members for the purpose of paying benefits extended by an organization under the terms of a membership contract; imposition of a tax on property owners for improvements enhancing the value of all their property; and a levy on corporate stock subscribers to correct an impairment of capital.

5. Distinguishing periodic dues from assessment&, the Third Circuit characterized the latter as ". . . a charge levied on each member in the nature of a tax or some other burden for a special purpose, not having the character of being susceptible of anticipation as a regularly recurring obligation. . . NLRB v. Food Fair Stores, Inc., 307 F.2d. 3, 11 (3rd Cir., 1962).

6. In DeMille v. American Federation of Radio Artists, 187 P.2d 769, 31 C.2d 139, 175 A.L.R. 382. cert. denied, 68 S.Ct. 906. 333 U.S. 876, 92 Led, 1152. in individual's membership was terminated for failure to pay a $1.00 assessment to oppose California anti-closed shop law.

7. NLRB v. Die and Tool Makers Lodge No. 113, 213 F.2d 298 (1956). Tool makers' union unlawfully sought to enforce their "voluntary donation" by threatening that it would not process grievances for employees who refused to pay the donation and by causing the company to discharge them.

8. All statutory references are to the 1987 edition of Florida Statutes.

9. In his recommended order the hearing officer incorrectly states that all parties made timely requests for fees and costs. (HORO at 1 1). The Association, which was not represented by legal counsel, did not file such a request and excepts to this statement. Accordingly, the hearing officer's recommended order is modified to reflect this fact and the Association's exception two is granted.

10. Consistent with our resolution of this issue, we deny the County's exceptions five and six.

11. Indeed, since § 447.303 vests certified bargaining representatives with the right to have dues and uniform assessments deducted and collected, a public employer may not lawfully ref use to do so even in the absence of a contract provision on the subject.

12. Therefore, the Association's third exception is granted and the hearing officer's finding three, which suggests that the members' agreement to pay dues and assessments is equivalent to authorization of a payroll deduction, is modified accordingly.