11:0600(101)CA AFGE, LOCAL 3342, 3343 VS HHS, SSA -- 1983 FLRAdec CA



[ v11 p600 ]
11:0600(101)CA
The decision of the Authority follows:


11 FLRA NO. 101
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD
OPERATIONS (NEW YORK, NEW YORK)

     Respondent

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCALS 3342 AND 3343

     Charging Party

Case Nos. 21-CA-481
          21-CA-546

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD
OPERATIONS, NEW YORK, NEW YORK

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL SSA COUNCIL,
FIELD OPERATIONS, AFL-CIO

     Charging Party

Case No. 2-CA-630

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 and the parties' contentions, 1 the Authority finds:

The consolidated complaint in Case Nos. 21-CA-481 and 21-CA-546 alleges that the Respondent violated sections 7116(a)(1),(5) and (8) and the complaint in Case No. 2-CA-630 alleges that the Respondent [ v11 p 600] violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by its actions in continuing a practice of revoking dues all allotments twice annually in violation of section 7115 of the Statute. 2

The Charging Parties (the Locals) are the exclusives bargaining representatives of certain of the Respondent's employees. In January 1979, the New York - New Jersey AFGE SSA Council (the Council) met with the Social Security Administration, Region II (SSA) and an oral understanding was apparently reached that, pursuant to the terms of the Statute, requests by employees to revoke dues allotments would be effectuated only one (rather than twice) a year and that the revocation period would occur in March. 3 However, this understanding was never implemented. Rather, subsequent to the meeting at which the understanding was reached, SSA submitted to each of the Locals involved a written "Amendment to the Memorandum of Understanding for Dues Withholding." This "Amendment" was never agreed to by the Locals. Thereafter, on August 30, 1979, the American Federation of Government Employees (AFGE) was certified as the exclusive bargaining representative for a nationwide, consolidated bargaining unit which included the units involved herein. Following consolidation, the Respondent took the position that it no longer had any obligation to bargain with the Locals regarding the subject of revocation of dues allotments and that, inasmuch as the Locals had failed to sign the written documents, the previously existing memoranda of understanding providing for effectuation of revocation twice a year remained in effect.

Thereafter, the Respondent, which had effectuated revocations of dues allotments in March 1979, did so again in September 1979 and March 1980. The Council raised no objection to the revocations of September 1979, later indicating that it had not objected because it [ v11 p601 ] felt such revocations were "justified on the basis of fairness to members who had joined the various Locals prior to the passage of the (Statute)." However, by letters dated March 10, June 13 and August 25, 1980, the Council registered its objection to a continuation of the Respondent's effectuation of revocations at periods occurring twice annually. It argued that the Statute dictated that such revocations should be effectuated only at annual intervals and reiterated its desire that the terms of the Statute in this regard be implemented. The Respondent, noting that no changes to the previously existing memoranda of understanding had been reduced to writing prior to the unit consolidation, and that dues allotment was one of the subjects being negotiated at the national level, informed the Council that, absent any management-initiated change relating thereto, the Respondent had no option but to continue to adhere to the terms of the existing memoranda of understanding which it viewed as still in effect and binding on the parties. The Respondent again effectuated revocations of dues allotments in September 1980.

The Statute, in contrast to Executive Order 11491, does not make dues allotments dependent upon a written agreement between an agency and an exclusive representative. Additionally, unlike the Executive Order which required a contractual provision that employees could revoke dues authorizations at six-month intervals, section 7115 of the Statute requires that authorizations may not be revoked for a period of one year. Parties to an existing agreement are not precluded, however, from mutually agreeing to continue or renew contractual provisions establishing six-month intervals for revocations. However, when either party objects to the continuation of a provision for the revocation of dues allotments at six-month intervals, the provision in section 7115(a) of the Statute limiting such revocations to one-year periods would apply. Interpretation and Guidance, 1 FLRA 183 (1979). Moreover, 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 in section 7115(a) that 'any such assignment may not be revoked for a period of 1 year' must be interpreted to mean that authorized dues allotments may be revoked only at intervals of 1 year."

With respect to the instant case, in view of the Council's expressed opposition to continuing or renewing the practice of permitting revocations at six-month intervals, as first communicated to the Respondent in January 1979, the statutory provision requiring revocations only at one-year intervals became applicable prior to the unit consolidation. Thus, pursuant to section 7115 of the Statute, and absent any agreement to the contrary, the unit consolidation had no impact upon the Respondent's obligation to honor dues revocation requests only at yearly intervals. Furthermore, the annual dues revocations should have commenced in September 1979 or on the [ v11 p602 ] anniversary date of an employee's dues withholding authorization, whichever was later. Interpretation and Guidance, 1 FLRA 183 (1979). Hence, the Authority finds that the Respondent, by effectuating revocations of dues allotments in March 1980, 4 failed to comply with section 7115(a) of the Statute and thereby violated section 7116(a)(1) and (8) of the Statute as alleged in Case No. 21-CA-481. U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA No. 30 (1981). 5 Noting however, that the unfair labor practice charges in Case Nos. 21-CA-546 and 2-CA-630 were filed on November 10, 1980 and October 17, 1980, respectively, i.e., more than six months after the March 22, 1980 revocations, the Authority finds that such charges are untimely and that the complaints pertaining thereto must be dismissed. 6

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, New York, New York, shall:

1. Cease and desist from:

(a) Honoring revocations from bargaining unit employees of assignments authorizing the deduction from pay of the amount of regular and periodic union dues at other than one-year intervals.

(b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of any rights assured by the Statute.

2. Take the following affirmative action: [ v11 p603 ]

(a) Reinstate to dues withholding status every bargaining unit employee whose dues assignment was terminated improperly at less than one-year intervals, by reason of an improper dues revocation procedure, and whose assignment has not reached a date appropriate for termination pursuant to section 7115(a) of the Federal Service Labor - Management Relations Statute.

(b) Reimburse the American Federation of Government Employees, AFL - CIO, or its constituent Local 3343, an appropriate, for all dues revocations effectuated in a manner inconsistent with section 7115(a) of the Statute as interpreted in this Decision and Order.

(c) Post at its facilities 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 an authorized official and shall be posted and maintained by that official 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 of Region II, 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 complaints in Case Nos. 21-CA-546 and 2-CA-630 be, and they hereby are, dismissed.

Issued, Washington, D.C., March 14, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p604 ]

                         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 revocations from bargaining unit employees of assignments authorizing the deduction from pay of the amount of regular and periodic union dues at other than one-year intervals.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of any rights assured by the Statute.

WE WILL reinstate to dues withholding status every bargaining unit employee whose dues assignment was terminated improperly at less than one-year intervals, by reason of an improper dues revocation procedure, and whose assignment has not reached a date appropriate for termination pursuant to section 7115(a) of the Federal Service Labor - Management Relations Statute.

WE WILL reimburse the American Federation of Government Employees, AFL - CIO, or its constituent Local 3343, as appropriate, for all dues revocations effectuated in a manner inconsistent with Section 7115 of the Statute.

                                       ________________________
                                            (Activity)

Dated:________________________ By:    _________________________
                                             (Signature)

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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 24-102, New York, New York 10278, and whose telephone number is: (212) 264-4934. [ v11 p605 ]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD
OPERATIONS (NEW YORK, NEW YORK)

     Respondent

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCALS 3342 and 3343

     Charging Party

Case Nos. 21-CA-481
          21-CA-546

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD
OPERATIONS, NEW YORK, NEW YORK

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL SSA COUNCIL,
FIELD OPERATIONS, AFL-CIO

     Charging Party

Case No. 2-CA-630
11 FLRA No. 101

ORDER DENYING MOTION FOR RECONSIDERATION

This matter is before the Authority on a motion by Counsel for the General Counsel for reconsideration of a portion of the Authority's decision in Department of Health and Human Services, Social Security Administration, Bureau of Field Operations (New York, New York), 11 FLRA No. 101 (1983).

On March 14, 1983, the Authority issued its Decision and Order in the above case, dismissing as untimely that part of the consolidated complaint pertaining to Case No. 21-CA-546 and the separate complaint in Case No. 2-CA-630, since the unfair labor practice charges in those cases had been filed more than six months after March 1980, but finding a violation as to that part of the consolidated complaint pertaining to Case No. 21-CA-481. [ v11 p ]

Counsel for the General Counsel now seeks reconsideration of the timeliness determination in Case No. 21-CA-546, contending that record evidence indicates that the Respondent prematurely terminated dues allotments for employees Monocelli and Cole in September 1980, less than six months prior to the filing of the charge on November 10, 1980. However, the Authority notes that the consolidated complaint, as it pertains to Case No. 21-CA-546, alleges only that a termination of dues withholding authorizations on March 22, 1980 for certain named employees was violative of the Statute. Since there was no allegation that the termination of dues withholding authorizations for Monocelli or Cole in September 1980 was in derogation of section 7115(a) and thus constituted a violation of section 7116(a)(1) and (8) of the Statute, it is clear that the Authority's failure to consider or decide that issue cannot establish "extraordinary circumstances" within the meaning of section 2429.17 of the Authority's Rules and Regulations so as to warrant reconsideration. 7

Accordingly, IT IS ORDERED that the instant motion for reconsideration be, and it hereby is, denied.

Issued, Washington, D.C., August 4, 1983

Barbara J. Mahone, Chairman

Ronald W. Haughton, Member

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p2 ]

FOOTNOTES

Footnote 1 The Respondent's brief, which was untimely filed, has not been considered.

Footnote 2 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.

Footnote 3 Previously, pursuant to Memoranda of Understanding between the respective Locals involved (each Local being a member of the Council) and the Respondent, which memoranda were executed under Executive Order 11491, revocation had been effectuated twice yearly - in March and September.

Footnote 4 While the Respondent also effectuated revocations of dues allotments in March 1979, such revocations were not encompassed within the allegations of the complaints herein.

Footnote 5 In the circumstances of this cas