12:0250(58)CA - HHS and SSA Region IX, San Francisco, CA and AFGE, Council of SS District Office Locals, San Francisco Region, AFGE Council 147 -- 1983 FLRAdec CA



[ 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