12:0244(57)CA - VA Lakeside Medical Center, Chicago, IL and Service Employees International Union Local No. 73 -- 1983 FLRAdec CA



[ 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 Interpretatio