[ v12 p250 ]
12:0250(58)CA
The decision of the Authority follows:
12 FLRA No. 58
DEPARTMENT OF HEALTH AND HUMAN SERVICES
and
SOCIAL SECURITY ADMINISTRATION
REGION IX, SAN FRANCISCO, CALIFORNIA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION, AFGE COUNCIL 147
Charging Party
Case No. 9-CA-511
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 the briefs submitted by
the Respondents and the General Counsel, the Authority finds:
The amended complaint alleges that the Respondents' failure and
refusal to implement an increase in the dues allotment of Local 3172 of
the American Federation of Government Employees, AFL-CIO, Council of
Social Security District Office Locals, San Francisco Region, AFGE
Council 147, notwithstanding written requests by that union's authorized
representative to do so, constituted a patent breach of the parties'
collective bargaining agreement in violation of section 7116(a)(1) and
(5) of the Statute, and a failure and refusal to comply with the
requirement of section 7115(a) of the Statute /1/ to "make an
appropriate allotment" in violation of section 7116(a)(1) and (8) of the
Statute. /2/
The undisputed facts as stipulated by the parties are as follows:
/3/ On August 9, 1972, AFGE Council 147 was certified as the exclusive
representative of a unit of General Schedule employees of Respondent
Social Security Administration, Region IX, San Francisco (SSA). At all
times relevant herein, SSA and AFGE Council 147 have been parties to a
collective bargaining agreement which includes a provision (Article 27)
entitled "Dues Withholding." On August 30, 1979, the American Federation
of Government Employees, AFL-CIO (AFGE), was certified as the exclusive
representative of a national consolidated unit of employees of the
Social Security Administration including the unit represented by AFGE
Council 147. Notwithstanding AFGE's certification, no collective
bargaining agreement covering the consolidated unit was in existence and
therefore the terms and conditions of the local agreement remained in
full force and effect at all times material herein. /4/
Respondent Department of Health and Human Services (HHS) administers
SSA's dues allotment program and dues allotment forms signed by
employees are forwarded to HHS for processing. On January 16, 1980,
AFGE Council 147's Secretary-Treasurer, John Finkowski, sent a letter
requesting that, effective immediately, the basic dues allotment for
Local 3172 be raised from $2.65 to $3.50 per pay period, pursuant to a
vote of the membership of Local 3172. On February 13, 1980, Finkowski
sent a second letter, again requesting that the dues allotment be
raised. On February 22, 1980, Steve Saunders and Robert Campbell of the
Regional Personnel Office of HHS authorized changes in the various
accounts that applied to employee members of Local 3172. These changes
were key-punched into the payroll computer on March 6, 1980, to be
effective the pay period beginning February 24, 1980. On March 12,
1980, Finkowski sent a third letter, again requesting that the basic
dues allotment for Local 3172 be increased. Thereafter, on May 16,
1980, Finkowski had a telephone conversation with Judith Scherr of HHS'
Regional Personnel Office in which he again requested that the increase
in dues allotment be effectuated. On that date, Scherr asked another
member of the Regional HHS Personnel Office Staff to implement the
increase in dues allotment immediately. Although Scherr was advised
that the increase was processed to be effective for the pay period
beginning May 18, 1980, no change in the dues allotment actually
occurred until July 13, 1980 (for the pay period ending July 26, 1980).
The charge in this matter was filed by AFGE Council 147 on May 29, 1980.
As noted above, the complaint alleges, inter alia, that the
Respondent's violated section 7116(a)(1) and (8) by failing to comply
with section 7115(a) of the Statute, which states that an agency is
obligated to "honor . . . and make an appropriate allotment pursuant to
the assignment" authorized in writing by a unit employee. The record
indicates that, despite four specific requests by AFGE Council 147, the
authorized dues allotment increase was not implemented for a period of
six months. The Authority concludes that the Respondents, by failing to
honor the authorized dues allotment increase in a timely manner, were in
noncompliance with the requirements of section 7115(a) and thereby
violated section 7116(a)(1) and (8) of the Statute. While the
Respondents' failure to timely process the dues increase authorized by
the employees involved may have been unintentional, as stipulated, the
Statute does not require a willful refusal to comply with section
7115(a) in order to establish a violation. /5/ Rather, as the Authority
has previously observed, Congress expressly intended that "(i)f the
employee decides to have dues withheld, the agency must honor that
decision." Defense Logistics Agency, 5 FLRA No. 21 at 8 (1981). In
order to accord the statutory mandate its full meaning, the employee's
decision must also be required to be processed expeditiously. As the
mandate encompasses withholding of the authorized amount in a timely
manner, it is clear that the Respondents violated the Statute herein
since there is no question that six months was an unreasonable delay in
the circumstances of this case.
Accordingly, having found that the Respondents violated section
7116(a)(1) and (8) of the Statute by failing to comply with the
requirements of section 7115(a), the Authority shall order the
Respondents to reimburse AFGE Council 147 in an amount equal to the dues
that it would have received but for the unreasonable delay in
implementing AFGE Council 147's authorized request to increase the
appropriate dues allotment for Local 3172. /6/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Statute, the Authority hereby orders
that the Department of Health and Human Services and the Social Security
Administration, Region IX, San Francisco, California, shall:
1. Cease and desist from:
(a) Failing to comply with the provisions of section 7115(a) of the
Federal Service Labor-Management Relations Statute by failing to
implement in a timely manner an authorized request to increase unit
employees' dues allotments.
(b) Interfering with, restraining, or coercing unit employees by
failing to implement in a timely manner an authorized request to
increase unit employees' dues allotments.
(c) 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) Reimburse the American Federation of Government Employees,
AFL-CIO, Council of Social Security District Office Locals, San
Francisco Region, AFGE Council 147, Local 3172 in an amount equal to the
regular and periodic dues it would have received but did not receive as
a result of the unlawful delay in implementing AFGE Council 147's
authorized request to increase the appropriate dues allotment.
(b) Post at all of those facilities of Social Security Administration
Region IX, San Francisco, California, where employees in the bargaining
unit are located, 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 authorized representatives of the Respondents
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 by the Respondents to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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 section 7116(a)(5) allegation of the
complaint 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 fail to comply with the provisions of section 7115(a) of the
Federal Service Labor-Management Relations Statute by failing to
implement in a timely manner an authorized request to increase unit
employees' dues allotments. WE WILL NOT interfere with, restrain, or
coerce unit employees by failing to implement in a timely manner an
authorized request to increase unit employees' dues allotments. 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 reimburse the American Federation of Government Employees, AFL-CIO,
Council of Social Security District Office Locals, San Francisco Region,
AFGE Council 147, Local 3172 in an amount equal to the regular and
periodic dues it would have received but did not receive as a result of
the unlawful delay in implementing AFGE Council 147's authorized request
to increase the appropriate dues allotment.
Social Security Administration,
Region IX, San Francisco,
California
Dated: By: (Signature)
Department of Health and Human
Services
Dated: By: (Signature) This Notice must remain posted for 60
consecutive days from the day of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
question concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director, Region IX, Federal
Labor Relations Authority, whose address is 530 Bush Street, Room 542,
San Francisco, California 94108 and whose telephone number is (415)
556-8105.
--------------- FOOTNOTES$ ---------------
/1/ Section 7115(a) provides in pertinent part:
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. . . .
/2/ Section 7116(a) provides in pertinent part:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ The General Counsel moved to strike portions of the Respondents'
brief on the ground that it contains factual material not included in
the stipulation, including references to settlement proposals. In
reaching its decision in the instant case, the Authority has, of course,
considered only facts contained in the stipulation, and therefore the
motion to strike is denied.
/4/ See section 2422.2(h)(8) of the Authority's Rules and
Regulations.
/5/ See, e.g., National Archives and Records Service and National
Archives Trust Board, General Services Administration, Washington, D.C.,
9 FLRA No. 50 (1982), wherein the Authority found that management
violated section 7116(a)(1) and (8) of the Statute by removing an
employee from dues withholding in the erroneous belief that the employee
had become a supervisor.
/6/ In view of the foregoing, the Authority finds it unnecessary to
pass upon the allegation that the Respondents' unintentional failure to
process the changes in allotments also violated Section 7116(a)(5) of
the Statute.