[ v12 p244 ]
12:0244(57)CA
The decision of the Authority follows:
12 FLRA No. 57
VETERANS ADMINISTRATION
LAKESIDE MEDICAL CENTER,
CHICAGO, ILLINOIS
Respondent
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL NO. 73, AFL-CIO
Charging Party
Case No. 5-CA-571
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the parties'
stipulation of facts, accompanying exhibits, and briefs submitted by the
General Counsel and the Respondent, the Authority finds:
At all times material herein, the Service Employees International
Union, Local No. 73, AFL-CIO (the Union) has been the exclusive
representative of a unit consisting of all employees of the Veterans
Administration Lakeside Medical Center, Chicago, Illinois (the
Respondent) including the Veterans Canteen Service employees assigned to
the Center. In February 1979, the parties executed a Memorandum of
Understanding concerning Payroll Allotment for Collection of Dues which
provides, in part, with respect to terminating allotments:
. . . .
F. A written revocation of an allotment received from an
employee will be held until December 1 of each year. The
termination will become effective at the beginning of the next pay
period.
Twenty-five employees submitted to the Respondent dues revocation
forms dated after December 1, 1979. During or before the early part of
December 1979, representatives of the Respondent's Payroll Office
erroneously informed employees that revocation forms should be submitted
in January 1980, and that they would be processed effective the first
pay period thereafter. The Respondent processed the employees' dues
revocation forms during the period from January 13 through January 26,
1980. Although the Respondent concedes that it erroneously processed
such dues revocation forms after December 1, 1979, thereby terminating
the employees' dues withholding authorizations during the one-year
period commencing on December 2, 1979 and ending on December 1, 1980, it
has continued to honor the revocations and therefore has not been
withholding dues monies from these employees.
The complaint alleges that, by the foregoing conduct, the Respondent
has refused to bargain in good faith with the Union and has refused to
allot dues as required by section 7115 of the Statute /1/ in violation
of section 7116(a)(1), (5) and (8) of the Statute.
In U.S. Army, U.S. Army Materiel Development and Readiness Command,
Warren, Michigan, 7 FLRA No. 30 (1981), the Authority held that the
language of section 7115(a) of the Statute "must be interpreted to mean
that authorized dues allotments may be revoked only at intervals of 1
year." In so concluding, the Authority, through analysis of the
legislative history, found that "Congress intended in section 7115(a) of
the Statute to maintain the procedure for revocation of dues withholding
authorizations set forth in Executive Order 11491 (i.e., only upon
stated intervals of time) . . . ." In the Authority's opinion,
maintenance of that procedure would include the retention of the
practice whereby the stated intervals upon which employees might revoke
dues allotments have been embodied in negotiated agreements. /2/
Therefore, the Authority concludes that parties may implement section
7115(a) by defining through negotiations the yearly intervals required
by that section and failure to act in a manner consistent therewith
would constitute a violation of the statutory mandate of section
7115(a). Such conclusion is consistent with the statutory purpose of
providing a greater measure of union security, thereby fostering
stability in labor-management relations. See U.S. Army Materiel
Development and Readiness Command, supra.
In the present case, the stipulated record indicates that the dues
revocation forms in question were submitted by the 25 affected employees
after December 1, 1979. Consistent with the parties' negotiated
mechanism for implementing section 7115(a) of the Statute, such
revocations should have been held until completion of the next yearly
interval on December 1, 1980. Accordingly, the Authority finds that by
effectuating revocations which were submitted too late to have been
processed as of the first pay period after December 1, 1979, the
Respondent improperly terminated dues withholding authorizations
contrary to the requirements of section 7115(a) of the Statute in
violation of section 7116(a)(1) and (8). /3/ Clearly not every
erroneous application (or even every alleged violation) of a provision
of a negotiated agreement could be said to violate section 7116(a)(1)
and (8) of the Statute. In the specific circumstances of this case,
where the contractual provisions are closely tied to, and implement
rights and obligations established by, a specific substantive provision
of the Statute, the finding of a violation of section 7116(a)(1) and (8)
is appropriate. However, inasmuch as the Respondent's effectuation of
untimely submitted dues revocations was not based upon a withdrawal of
the Union's exclusive recognition, unlike Defense Logistics Agency, 5
FLRA No. 21 (1981), but rather was based upon an erroneous attempt to
comply with the stated yearly interval requirement of section 7115(a),
as in U.S. Army Materiel and Readiness Command, supra, 7 FLRA No. 30 at
n. 17, the Authority does not find a violation of section 7116(a)(5) of
the Statute. /4/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Veterans Administration Lakeside Medical Center, Chicago,
Illinois, shall:
1. Cease and desist from:
(a) Honoring untimely submitted revocations from bargaining unit
employees of assignments authorizing the deduction from their pay of the
amount of regular and periodic union dues.
(b) In any like or related manner interfering with, restraining, or
coercing any employee in the exercise of any right assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reinstate to dues withholding status each bargaining unit
employee whose dues revocation was submitted after December 1, 1979 and
was improperly effectuated during January 1980, and whose assignment has
not reached a date appropriate for termination pursuant to section
7115(a) of the Statute.
(b) Reimburse the exclusive representative, Service Employees
International Union, Local No. 73, AFL-CIO, in an amount equal to the
regular and periodic dues it would have received from the pay of
bargaining unit employees but for the Respondent's effectuation of
untimely submitted dues revocations.
(c) Post at the Veterans Administration Lakeside Medical Center,
Chicago, Illinois, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Center Director or his designee
and shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the portion of the complaint alleging a
violation of section 7116(a)(5) of the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C., June 24, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT honor untimely submitted revocations from bargaining unit
employees of assignments authorizing the deduction from their pay of the
amount of regular and periodic union dues. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce any employee in the
exercise of any right assured by the Statute. WE WILL reinstate to dues
withholding status each bargaining unit employee whose dues revocation
was submitted after December 1, 1979 and was improperly effectuated
during January, 1980, and whose assignment has not reached a date
appropriate for termination pursuant to section 7115(a) of the Statute.
WE WILL reimburse the exclusive representative, Service Employees
International Union, Local No. 73, AFL-CIO, in an amount equal to the
regular and periodic dues it would have received from the pay of
bargaining unit employees but for our effectuation of untimely submitted
dues revocations.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Federal Labor
Relations Authority, Region V, whose address is: Suite A-1359, 175 West
Jackson Boulevard, Chicago, Illinois 60604 and whose telephone number
is: (312) 353-0139.
--------------- FOOTNOTES$ ---------------
/1/ Section 7115(a) and (b) of the Statute provides:
Sec. 7115. Allotments to representatives
(a) If an agency has received from an employee in an
appropriate unit a written assignment which authorizes the agency
to deduct from the pay of the employee amounts for the payment of
regular and periodic dues of the exclusive representative of the
unit, the agency shall honor the assignment and make an
appropriate allotment pursuant to the assignment. Any such
allotment shall be made at no cost to the exclusive representative
or the employee. Except as provided under subsection (b) of this
section, any such assignment may not be revoked for a period of 1
year.
(b) An allotment under subsection (a) of this section for the
deduction of dues with respect to any employee shall terminate
when--
(1) the agreement between the agency and the exclusive
representative involved cases to be applicable to the employee;
or
(2) the employee is suspended or expelled from membership in
the exclusive representative.
/2/ In this regard, see 7 FLRA No. 30 at n. 16, wherein the Authority
quoted the Civil Service Commission's guidance (as predecessor to the
Office of Personnel Management) to Federal agencies that they may wish
to renegotiate the 6-month-interval revocation periods embodied in their
agreements with the exclusive representatives of their employees in
order to establish the anniversary date for the one-year-interval
revocation period required by the Statute. See also the quotation of
such OPM guidance by the Authority in its Interpretation and Guidance, 1
FLRA 183 at 186 (1979).
/3/ In so finding, the Authority notes that while the parties
stipulated that the Respondent's Fiscal Service erroneously informed the
employees in early December 1979 that dues revocation requests should be
submitted in January 1980, there was no allegation or showing that the
employees had been prevented from filing such revocation forms prior to
December 1, 1979, in accordance with the unambiguous terms of the
previously executed written Memorandum of Understanding between the
Union and the Respondent.
/4/ The parties' Memorandum of Understanding concerning Payroll
Allotment for Collection of Dues was executed in February 1979. The
dates when the 25 affected employees herein executed their original
voluntary dues withholding authorizations are not indicated in the
record. As it is not independently asserted in the complaint or
otherwise contended that the Respondent's action in effectuating dues
revocations and prematurely cancelling individual authorizations in
January 1980, was, as to any of the individual revocations, contrary to
the specific requirement of section 7115(a) of the Statute "that any
such assignment may not be revoked for a period of 1 year," the
Authority finds it unnecessary to reach such question herein.