[ v13 p625 ]
13:0625(104)CA
The decision of the Authority follows:
13 FLRA No. 104
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-20286
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 stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The amended complaint alleges that the Department of Health and Human
Services, Social Security Administration, Chicago-Region (the
Respondent) refused to comply with section 7115(a) of the Statute /1/ by
failing or refusing to effectuate a change in the amount of dues
withholding for employees in its South Bend, Kokomo, Indianapolis,
Richmond and Columbus, Indiana District Offices, as requested by the
American Federation of Government Employees, Local 3571, AFL-CIO, and
thereby violated section 7116(a)(1) and (8) of the Statute. /2/
On August 30, 1979, pursuant to consolidation proceedings, the
American Federation of Government Employees, AFL-CIO (AFGE) was
certified as the exclusive representative of the Respondent's
professional and non-professional employees. At all times material
herein, the American Federation of Government Employees, Local 3571,
AFL-CIO (AFGE Local 3571), has served as an agent of the AFGE for unit
employees at the South Bend, Kokomo, Indianapolis, Richmond and
Columbus, Indiana District Offices. The Respondent and the AFGE are
parties to a master collective bargaining agreement, which includes a
provision (Article 6) entitled "Dues Withholding, effective June 11,
1982, covering unit employees represented by AFGE Local 3571. Prior to
the effective date of the master collective bargaining agreement, the
Respondent and AFGE Local 3571 were parties to an "Agreement for the
Allotment of Dues," effective October 13, 1977, covering its unit
employees. Since 1977, the Respondent has deducted regular dues from
unit employees who had filed a request for dues withholding.
In June 1981 the AFGE approved changes in AFGE Local 3571's
constitution in regard to an increase in membership dues, which in
January 1982 increased by 60 cents per pay period per member. On
January 19, 1982, Local 3571 notified the Respondent that the amount of
dues withholding for its members was being increased from $4.20 to $4.80
per pay period effective immediately, and requested the Respondent to
effectuate the change in the amounts submitted to Local 3571
accordingly. The Respondent did not effectuate the dues increase. The
Local repeated its request for the dues increase on April 28 and June
28, 1982. Finally in May 1982 the Respondent effectuated the dues
increase in two of the five District Offices, South Bend and Kokomo. On
October 6, 1982, the AFGE made a fourth request to effectuate the dues
increase in the remaining three District Offices, i.e., Indianapolis,
Richmond and Columbus. The dues increase for the remaining three
District Offices was effectuated on December 11, 1982. The parties
stipulate that the dues increase for the five District Offices should
have been effected on January 24, 1982.
The General Counsel argues that the Respondent is obligated under
section 7115(a) of the Statute to honor an employee's written assignment
to deduct periodic dues, in the amount certified by the exclusive
representative, and pay such dues to the Union. It also contends that,
under section 7115(a) of the Statute, the Respondent has a duty to honor
dues withholding allotments in a reasonably prompt and effective manner.
The Respondent takes the position that it complied with section 7115(a)
of the Statute and noted that there was no indication that the "Agency
did not do everything administratively possible to comply with the
Union's request".
The Authority finds that the Respondent failed to honor the
authorized dues allotment increase in a timely manner, thereby failing
to comply with the requirements of section 7115(a) of the Statute, which
provides that an agency is obligated to "honor . . . and make an
appropriate allotment pursuant to the assignment." Thus, despite three
specific requests by AFGE Local 3571 for action in two District Offices
and a fourth request by AFGE for action in three additional District
Offices, the authorized dues allotment increase was not implemented for
periods ranging from four to eleven months. As the Authority concludes
that this constituted a failure to timely honor the AFG's authorized
dues allotment increase requests, it constituted a violation of section
7116(a)(1) and (8) of the Statute. While the Respondent's failure to
timely process the dues increase authorized by the employees may have
been unintentional, the Statute does not require a willful refusal to
comply with section 7115(a) in order to establish a violation. /3/
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 126,
133 (1981). In order to accord the statutory mandate its full meaning,
the employee's decision must be processed expeditiously. Department of
Health and Human Services, Social Security Administration, Chicago,
Illinois, 13 FLRA No. 45(1983). As the mandate encompasses withholding
of the authorized amount in a timely manner, it is clear that the
Respondent violated the Statute herein since there is no question that
the delay in implementing the authorized increase for four months in one
instance and eleven months in another was an unreasonable delay in the
circumstances of this case. See Department of Health and Human Services
and Social Security Administration, Region IX, San Francisco,
California, 12 FLRA No. 58(1982)
Accordingly, having found that the Respondent 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
Respondent to reimburse AFGE Local 3571 in an amount equal to the dues
that it would have received but for the unreasonable delay in
implementing its authorized request to increase the appropriate dues
allotment.
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, Social Security
Administration, Region V, Chicago, Illinois, 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, Local
3571, AFL-CIO, 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 Local 3571's authorized request to increase
the appropriate dues allotment.
(b) Post at all facilities of the Social Security Administration,
Region V, Chicago, Illinois, 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 Respondent and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin board and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent 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 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.
Issued, Washington, D.C., January 13, 1984
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,
Local 3571, AFL-CIO, 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 Local 3571's authorized request to increase
the appropriate dues allotment.
(Agency or 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, Region V, Federal Labor Relations Authority whose address is:
Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
--------------- 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;
* * * *
(8) to otherwise fail or refuse to comply with any provision of this
chapter(.)
/3/ 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.