The opinion of the court was delivered by: MCCURN
MEMORANDUM DECISION AND ORDER
NEAL P. McCURN, UNITED STATES DISTRICT JUDGE
This case concerns a dispute between the Secretary of the Department of the Air Force, Hans Mark (defendant), and plaintiffs, Local 2612 of the American Federation of Government Employees and five civilian employees of the Air Force who are current members of Local 2612 at Griffiss Air Force Base (Griffiss)
in Rome, New York. (Plaintiffs are hereafter referred to as "plaintiffs", "plaintiff union members", or "plaintiff union" where appropriate.)
The dispute arose when the Air Force notified plaintiff union that it was required to repay the Air Force $ 2,884.00 which the Air Force had mistakenly withheld from the pay of thirty-seven (37) civilian employees and paid to plaintiff union as union dues between 1973 and 1978.
These employees were plaintiff union members at Griffiss who had left the bargaining unit at various dates and who continued as union members, but were ineligible for an automatic withholding of their union dues upon separation from the unit. After plaintiff union failed to reimburse the Air Force, it was notified that the amount claimed due would be set off against union dues withheld from the pay of present members of plaintiff union, including the five individual plaintiff union members.
Article 35 of the Collective Bargaining Agreement between Griffiss and plaintiff union provided for union dues withholding.
Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101, et seq. (Title VII is hereafter referred to as the Federal Labor Relations Statute, or "FLRS") became effective on January 11, 1979. As of that date plaintiff union's entitlement to a dues withholding was also provided for by statute. See 5 U.S.C. § 7115.
On November 30, 1979, plaintiffs brought this action against defendant seeking a temporary restraining order, preliminary and permanent injunction, writ of mandamus, and declaratory judgment to prevent defendant from recouping any money from the current members' dues. Plaintiffs' complaint alleges that the jurisdiction of this Court "is based on 28 U.S.C. § 1331(a) in that this is an action arising under the First and Fifth Amendments of the Constitution and the laws of the United States -- 5 U.S.C. § 701 and 7101 et seq. " Complaint at 2. In the complaint plaintiffs assert that "[d]efendant's actions to recoup money on behalf of former union members' dues allotments is without any authority in law and is a wrongful conversion without due process of law under the Fifth Amendment." Complaint at 2 Further, plaintiffs state that "[b]y seeking to recoup money on behalf of former union members from dues allotments for the sole purpose of payment of their union dues, defendant is endangering and infringing upon plaintiffs' membership status in violation of the First Amendment Right of Freedom of Association and [the FLRS]." Complaint at 26. In their memorandum of law plaintiffs assert that defendant's proposed recoupment violates the union dues assignment agreement (Article 35 of the Collective Bargaining Agreement). They allege that if the proposed recoupment of erroneously withheld dues takes place, plaintiff union members and other union members will not have their dues paid in full and will possibly lose their union membership and benefits. Complaint at 22-25.
After the complaint and motion for a temporary restraining order were filed, plaintiffs and defendant entered into an agreement preserving the status quo and preventing the proposed recoupment until this Court rules on the plaintiffs' motion for a preliminary injunction. Thereafter, defendant filed a motion to dismiss on grounds that the complaint fails to state a claim upon which relief can be granted and lack of subject matter jurisdiction. On January 10, 1980, this Court held a hearing on plaintiffs' motion for a preliminary injunction during which defendant presented a jurisdictional challenge. After taking evidence and hearing argument, the Court reserved decision and allowed the parties to submit further papers with respect to defendant's motion to dismiss.
These proceedings were consolidated into a hearing on the merits. Rule 65, Fed. R. Civ. P.
On January 24, 1980, pursuant to Rule 24, Fed. R. Civ. P., the Federal Labor Relations Authority (hereinafter referred to as FLRA) moved to intervene for the purpose of asserting its exclusive jurisdiction over disputes relating to alleged violation of the FLRS. 5 U.S.C. § 7101, et seq. The FLRA asserted that it has a right to intervene because it has sole responsibility under 5 U.S.C. § 7105(a)(2)(G) to determine plaintiffs' claims of violations of the FLRS and that action by this Court on this issue would usurp its authority. In the alternative, the FLRA asserted that allowing intervention here would be a proper exercise of this Court's discretion because the FLRA is charged with administration of the FLRS. On February 25, 1980, after hearing oral argument the Court granted the motion to intervene from the Bench.
Presently before this Court are:
(1) plaintiffs' motion for a preliminary and permanent injunction, mandamus and declaratory judgment;
(2) defendant's motion to dismiss; and
(3) FLRA's motion to dismiss the claims in the complaint which are based on alleged violations of the FLRS.
Defendant Secretary's motion to dismiss is based on alleged exclusive jurisdiction of the FLRA and upon the failure of plaintiff to demonstrate a minimum probable irreparable injury, a necessary requisite for preliminary injunctive relief.
The intervenor FLRA's motion to dismiss under Rule 12(b)(1), Fed. R. Civ. P., is similarly based on its alleged exclusive jurisdiction over the subject matter of this suit. The FLRA argues that plaintiffs' allegations constitute unfair labor practices under the FLRS for which it has exclusive jurisdiction and that plaintiffs at the time of argument had not filed an unfair labor practice claim with it.
In opposition to defendant's and intervenor's motion to dismiss, plaintiffs argue that their complaint. is based essentially on violations of the First and Fifth Amendments and not solely on violations of the Collective Bargaining Agreement and the FLRS. Plaintiffs assert that the unfair labor practice provision, 5 U.S.C. § 7116, is not an exclusive remedy here, but merely a secondary alternative remedy. They argue that the FLRA cannot decide the Constitutional issues which are the heart of their claims in this case. Further, they assert that this Court's jurisdiction over their Consitutional claims is not pre-empted by that of the FLRA even though they have not exhausted FLRA administrative remedies. Plaintiffs allege that defendant has no authority to order the recoupment of money in contradiction to the Article 35 allotment provisions. They frame the issue of this case as whether the defendant has a right to unilaterally take and use an employee's dues assignment monies for an unauthorized purpose.
A. Claims Under the FLRS.
Plaintiffs' complaint and submitted memoranda clearly demonstrate that their allegations are covered, at least in part, by the FLRS. In the Complaint plaintiffs allege that "this is an action arising under . . . the laws of the United States -- 5 U.S.C. § 7101, et seq."; that "[u]nder . . . 5 U.S.C. § 7115, an allotment is terminated when the employee leaves the bargaining unit"; that "[t]he plain duty of Griffiss Air Force Base under the collective bargaining contract it has entered into with plaintiff AFGE Local 2612, now being administered in accordance with 5 U.S.C. § 7115, is to transmit to the union the full amount of dues deducted from the pay of union members"; and "[p]laintiffs request ...