51:1427(117)CA_CO - - AFGE and AFGE Locals 1666 & 1931 and VA, Northern CA System of Clinics, Pleasant Hill, CA and VA Washington, DC and Dennis C. Partlow and Bonnie J. Greelman - - 1996 FLRAdec CA CO - - v51 p1427

Other Files: 


[ v51 p1427 ]
51:1427(117)CO
The decision of the Authority follows:


51 FLRA No. 117

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

(Respondent/Union)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1666, AFL-CIO

(Respondent/Local 1666)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1931, AFL-CIO

(Respondent/Local 1931)

and

DEPARTMENT OF VETERANS AFFAIRS

NORTHERN CALIFORNIA SYSTEM OF CLINICS

PLEASANT HILL, CALIFORNIA

(Respondent/Activity)

and

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Respondent/Agency)

and

DENNIS C. PARTLOW, AN INDIVIDUAL

BONNIE J. GREELMAN, AN INDIVIDUAL

(Charging Parties)

SF-CO-31242, SF-CO-31347, SF-CO-31426, SF-CO-31430,

SF-CA-31427, SF-CA-31428, SF-CA-31429, SF-CA-31431

_____

DECISION AND ORDER

June 27, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the Department of Veterans Affairs (the Agency) and the American Federation of Government Employees, AFL-CIO (the Union), and on limited cross exceptions filed by the General Counsel, to the attached decision of the Administrative Law Judge.(1) The General Counsel also filed an opposition to the exceptions of the Agency and the Union.

The consolidated complaint alleges that the Agency violated section 7116(a)(1), (2), (3) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), and that the Union violated section 7116(b)(1), (2), and (8) of the Statute, by including in their nationwide collective bargaining agreement a provision that interferes with employees' rights to freely revoke their dues withholding authorizations. The consolidated complaint also alleges that the Department of Veterans Affairs, Northern California System of Clinics, Pleasant Hill, California (the Activity) violated section 7116(a)(1), (2), (3) and (8) of the Statute, and that Local 1666 and/or Local 1931 violated section 7116(b)(1) and (8) of the Statute,by failing and refusing to provide the Charging Parties, upon their request, with copies of Standard Form 1188 ("Cancellation of Payroll Deductions for Labor Organization Dues") (SF 1188), and by failing and refusing to process their dues revocation requests. The Judge concluded that all Respondents violated the Statute as alleged.

For the reasons stated below, we: (1) find that the the Agency and the Union did not violate the Statute as alleged, and dismiss all allegations in the consolidated complaint pertaining to these Respondents (Case Nos. SF-CO-31426,  SF-CO-31430, SF-CA-31427 and SF-CA-31431); (2) find that the Activity violated section 7116(a)(1) and (8) by failing or refusing to promptly furnish Charging Party Partlow with an SF 1188 dues revocation form; (3) find that Local 1931 violated section 7116(b)(1) and (8) by failing or refusing to promptly honor both Charging Parties' requests for SF 1188's, as well as by failing or refusing to promptly process the SF 1188 submitted by Charging Party Greelman; and (4) dismiss the allegations that the Activity violated section 7116(a)(2) and (3). Because it is undisputed by the parties that Local 1666 was merged into Local 1931 on June 1, 1993, and is no longer an active labor organization, we dismiss all allegations pertaining to it. In our decision hereafter we will refer to Local 1666 and Local 1931 as "the Local."

II. Background and Judge's Decision

The facts, which are set forth in the Judge's decision, are briefly summarized here. Two employees (Bonnie Greelman and Dennis Partlow) at the Activity's facility in Redding, California joined the Local on or about April 16, 1992. Both employees decided in early 1993 to revoke their memberships and, starting in January and February, made several requests to Local officials for dues revocation forms. Partlow also contacted the Activity's personnel office, as well as the Local, about revoking his membership, but never received an SF 1188. After making several requests to Local representatives, Greelman received an SF 1188 in April. She completed the form on April 22, 1993, and sent it to the Activity's payroll office. The Activity, however, refused to process her form because it had not been dated and signed by a Local official.

The Activity's Chief of Human Resources testified to the effect that the Activity had a longstanding practice of not providing SF 1188's to employees who wanted to revoke their dues withholding authorizations, leaving it to the Local to maintain a supply of the forms and furnish them to employees. The applicable negotiated procedures for revoking an employee's dues withholding authorization are set out in the August 13, 1982, collective bargaining agreement between the Agency and the Union. This agreement covers a nationwide exclusive unit and provides at Article 31, section 6 that, among other things, employees must submit their SF 1188's to the Local for processing.(2)

The Judge determined that Article 31, section 6 of the nationwide agreement per se interfered with employees' rights under the Statute. He also determined that the conduct of the Activity and the Local in response to the Charging Parties' efforts to revoke their dues withholding authorizations interfered with the Charging Parties' rights under the Statute.

As a remedy, the Judge recommended an order directing all Respondents to cease and desist from "[m]aintaining and enforcing" Article 31, section 6, or any other similar provision of their nationwide agreement. Judge's Decision at 11. His recommended order also directed the Respondents to cease and desist from requiring employees to obtain SF 1188's from the Local and to "assure that these forms can be obtained from the local Department of Veterans Affairs personnel office." Id. at 12. The Judge recommended that the Respondents post nationwide notices to employees and members containing provisions corresponding to his order. He also included in these notices, although not in his order, an assurance that the Respondents would make whole any other employee for whom dues had been wrongfully withheld because the employee's dues revocation form "had not been certified and/or dated by an American Federation of Government Employees representative." Id.(3)

III. Positions of the Parties

A. Respondent Agency's Exceptions

The Agency asserts several exceptions to the relief found appropriate by the Judge. In particular, the Agency excepts to the Judge's requirement that the Secretary of Veterans Affairs sign the recommended notice to employees and that the notice be posted nationwide, contending that the violations in these cases occurred only at the Activity. The Agency also objects to that portion of the Judge's recommended notice making whole any other employees whose attempted dues withholding revocations were denied or delayed in violation of the Statute. The Agency argues that the Judge exceeded his authority because this relief: (a) would extend to employees who attempted to revoke their dues withholding authorizations more than six months before the first charge in these cases was filed, and (b) would reach individuals who were not parties to these proceedings.

B. Respondent Union's Exceptions

The Union first objects to what it characterizes as the Judge's finding that Article 31, section 6 of the agreement "require[s] that the union be the only source from which employees may obtain SF-1188 revocation forms." Union's Exceptions at 11. It argues that this construction of the agreement was never alleged by the General Counsel and is not supported by the record evidence or the plain language of the agreement.

The Union also objects to the Judge's conclusion that Article 31, section 6 per se interferes with employees' rights under the Statute. It contends that what it calls the "certification requirement" of that section presents nothing more than "an administrative procedure established between the union and agency for the processing of the forms to indicate the date on which the revocation form was submitted by the employee" and "does not unfairly impinge upon employees' rights to revoke their dues-withholding authority." Id. at 16.

Finally, the Union argues that the Judge had no basis for finding that either of the two Charging Parties' dues revocation requests was timely submitted. It asserts that Partlow's request "was made well outside of his anniversary date and window period" and that "the record establishes serious doubt as to whether Ms. Greelman's SF-1188 dated April 22, 1993, ever reached the local." Id. at 19.

C. General Counsel's Opposition

The General Counsel contends that the Secretary of Veterans Affairs should be required to sign the notice to employees, and relies for this contention on the Judge's determination that Article 31, section 6 of the nationwide agreement per se interferes with employee rights under the Statute. The General Counsel agrees with the Agency's position that make whole relief should not extend to employees who attempted to revoke their dues withholding authorizations more than six months before the first charge in these cases was filed, but rejects the Agency's argument that such relief should be limited only to the two Charging Parties.

As to the Union's exceptions, the General Counsel disagrees that the Judge found that Article 31, section 6 of the agreement requires employees to obtain SF 1188's exclusively from the Local. The General Counsel acknowledges that "the plain language of Article 31, section 6 does not state that employees must obtain the SF 1188 from the union." General Counsel's Opposition at 4. The General Counsel also disputes the Union's argument that the Charging Parties did not timely request revocation of their dues withholding allotments.

D. General Counsel's Cross-Exceptions

The General Counsel points out that the Judge inadvertently failed to include in his recommended order the make whole relief that he references both in his decision and in the notices to members and employees, and asks that the Authority amend the Judge's recommended order to include such relief.

IV. Analysis and Conclusions

A. Article 31, Section 6 Does Not Per Se Interfere with Employee Rights under the Statute

1. Section 7115 Guarantees Employees the Right to Revoke Their Dues Withholding Authorizations at Annual Intervals

Section 7115 of the Statute ("Allotments to representatives") authorizes employees both to establish and to revoke dues withholding allotments from their pay.(4) As relevant here, the only condition that section 7115 imposes on the revocation of an employee's dues withholding authorization is contained in the last sentence of section 7115(a). That sentence provides that an employee's assignment "may not be revoked for a period of 1 year."(5)

The Authority has recognized that "parties may define through negotiations the procedures for implementing section 7115" of the Statute, so long as those procedures do not infringe on employees' rights. Federal Employees Metal Trades Council, AFL-CIO, Mare Island Naval Shipyard, 47 FLRA 1289, 1294 (1993). To ensure that employee rights are not infringed, any procedures negotiated by the parties for the processing of dues revocation requests must conform with the guarantee in section 7115 that employees remain free to revoke their dues authorizations at annual intervals. To the extent that negotiated procedures interfere with, restrain or coerce employees in the exercise of this right, those procedures will be found to violate the Statute.

The Authority has found such a violation in negotiated procedures requiring that "revocation of dues withholding authorizations were to be executed on forms which could only be obtained from the Union at the Union hall, and which had to be executed and submitted directly to the Union there." Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 19 FLRA 586, 589 (1985) (Portsmouth). The Authority found these provisions "inherently coercive of the employees' right to refrain from joining or assisting a labor organization as set forth in section 7102 of the Statute." Id. (citations omitted).(6) However, it expressly declined in Portsmouth to pass upon whether "dues revocation forms provided by an exclusive representative are per se unlawful," holding only that "the Union's control of the forms in the circumstances of this case was unlawfully coercive." Id. at 590, n.8.

The Authority relied on two private sector decisions in finding the provisions before it in Portsmouth unlawful. In the first of these decisions, Felter v. Southern Pacific Co. et al., 359 U.S. 326 (1959) (Felter), the Supreme Court held that the Railway Labor Act, 45 U.S.C. §§ 151-163 (1988), did not authorize a contract provision requiring that employees could revoke their dues withholding authorizations only by completing a form furnished by the union. The Court concluded that Congress had deliberately chosen to deny unions and employers the power to bargain for any restrictions on the freedom of employees to revoke their dues withholding authorizations by notifying the employer in writing after one year. In the second decision cited by the Authority, Newport News Shipbuilding and Dry Dock Company, 253 NLRB 721, enforced sub nom. Peninsula Shipbuilders Association v. NLRB, 663 F.2d 488 (4th Cir. 1981), the Fourth Circuit Court of Appeals found that a similar contract provision violated the National Labor Relations Act, 29 U.S.C. §§ 141-187 (1988 & Supp. V 1993). It determined, however, only that the provision was unlawful as applied and did not reach the question of whether, under Felter, the provision was also unlawful per se.

While it is clear that employers and unions in the private sector cannot infringe on the basic right of employees to revoke their dues withholding authorizations, neither the National Labor Relations Board (NLRB) nor the courts have held every contract provision that bears in some manner on dues revocation to be unlawful.(7) For example, in Boston Gas Company, 130 NLRB 1230 (1961), the NLRB found that Felter did not apply to a contract provision requiring employees to give notice to the union and the employer as a precondition to revoking their dues withholding authorizations. The NLRB reasoned that the notification provision at issue did "not constitute . . . an impediment to an employee's freedom of revocation[,]" that it was "not unduly burdensome upon employees, and that employees [were] not thereby 'effectively' precluded from revoking their dues assignments." 130 NLRB at 1231. Although the issue in Boston Gas was whether a contract containing such a provision was valid as a bar to an election, the NLRB has since held that similar provisions are themselves enforceable. E.g., Rock-Tenn Company, 238 NLRB 403 (1978) (employer violated Labor Management Relations Act by honoring dues revocations from employees who had not notified the union.) See also American Commercial Lines, 296 NLRB 622 (1989). The Fifth and Fourth Circuits have agreed with the NLRB that notification provisions are not in and of themselves unlawful. NLRB v. Cameron Iron Works, 591 F.2d 1 (5th Cir. 1979) (per curiam); NLRB v. Shen-Mar Food Products, Inc., 557 F.2d 396 (4th Cir 1977).

2. Article 31, Section 6 Is Not Inconsistent With Rights Guaranteed to Employees by Section 7115 of the Statute

Article 31, section 6 imposes only one requirement on an employee seeking to revoke a dues withholding authorization: the employee must submit "a timely SF 1188 to the union representatives designated for such purpose."(8) As previously noted, the General Counsel acknowledges that Article 31, section 6 does not require employees to obtain SF 1188's from any particular source. Contrary to the Union's assertion in its exceptions, the Judge found no such requirement in the agreement. Instead, he found only that the Local and the Activity had established a practice under which the Local alone maintained copies of SF 1188's and the Activity referred employees seeking to revoke their dues withholding authorizations to the Local. Judge's Decision at 9. As a result, we must decide whether the requirement that an employee submit his or her SF 1188 directly to the Local violates the Statute. Specifically, we must decide whether this requirement per se interferes with, restrains or coerces employees in the exercise of their right under section 7115 to revoke their dues withholding authorizations at annual intervals.

In explaining why he found this requirement a per se interference with employee rights, the Judge stated as follows:

[A] requirement that the individual leave the SF 1188 with the union after filling it out, thus leaving the responsibility of seeing that the SF 1188 is delivered, is [sic] in the union's hands, when clearly all the employee wants is out, offers a distinct possibility for anxiety and tension and, indeed can reasonably be seen as creating a coercive effect. That is the substance of this case.

Judge's Decision at 6. Requiring an employee to submit an SF 1188 to the Local in order to revoke his or her dues withholding authorization may indeed, as the Judge found, offer a "possibility for anxiety and tension." However, the "possibility" that a contract provision interferes with employee rights does not lead to the conclusion that the provision per se interferes with those rights. Therefore, we cannot conclude from this possibility alone that Article 31, section 6 per se interferes with employee rights under the Statute.

As we have noted previously, section 7115 prescribes no particular means for revoking an employee's dues withholding authorization. The General Counsel has not alleged, and it is not otherwise apparent, that the SF 1188's contemplated by Article 31, section 6 serve any purpose other than to provide the requisite written notice of an employee's desire to revoke his or her dues withholding authorization. The requirement in Article 31, section 6 that this notice be directed to the Local does not, in our view, have any more effect on an employee's ability to freely revoke his or her dues withholding authorization than do similar notice provisions that have been found lawful by the NLRB and the courts in the private sector.(9) Section 302(c)(4) requires, in relevant part, that the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one yar, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.(10) Therefore, we do not agree with the Judge that this requirement of Article 31, section 6 per se interferes with rights guaranteed by the Statute.

We note that the Judge did not specify the rights with which he found Article 31, section 6 interfered. However, we have concluded that Article 31, section 6 does not per se interfere with, restrain or coerce employees in the exercise of their right under section 7115 of the Statute to revoke their dues withholding authorizations at annual intervals. It follows that Article 31, section 6 also does not per se interfere with, restrain or coerce employees in exercising the right guaranteed them by section 7102 of the Statute to refrain from joining or assisting a labor organization. We hold, therefore, that Article 31, section 6 does not per se interfere with, restrain or coerce employees in their exercise of rights under either section 7115 or section 7102 of the Statute.

B. The Conduct of the Activity and the Local Violated the Statute

The Judge determined that the Activity and the Local, "simply by their inaction," failed to process the Charging Parties' "timely requests" to revoke their dues withholding authorizations, and thereby violated the Statute. Judge's Decision at 11. The Activity does not except to this finding. We therefore uphold the allegations in the complaint that the Activity violated section 7116(a)(1) and (8) of the Statute by interfering with employee rights under section 7102 and section 7115.

The Union bases its exception solely on its disagreement with the Judge's characterization of the Charging Parties' requests as "timely." The Union asserts that Partlow attempted to revoke his dues withholding authorization "well outside of his anniversary date and [30 day] window period." Union's Exceptions at 19. As to Greelman, the Union asserts only that "the record establishes serious doubt" that her SF 1188 was ever received. Id.

The Union's argument that the Charging Parties were untimely in seeking to revoke their dues withholding authorizations misapprehends the nature of the violation in these cases. The Union does not dispute the Judge's findings that, between January and April, 1993, both Charging Parties repeatedly expressed to the Local their desire to revoke their memberships and made several unsuccessful requests to the Local for SF 1188's. These findings are clearly supported by the record evidence and these findings lead us to conclude that the Local violated the Statute. The timeliness of the Charging Parties' requests for SF 1188's is irrelevant.

We conclude, therefore, that the Local's conduct violated section 7116(b)(1) and (8) of the Statute by interfering with, restraining or coercing the Charging Parties in the exercise of the right guaranteed by section 7115 of the Statute to revoke their dues withholding authorizations after one year. We also conclude that, by interfering with the Charging Parties' right to revoke their dues withholding authorizations, the Local interfered with, restrained or coerced the Charging Parties in the exercise of their right under section 7102 to refrain from joining or assisting a labor organization.

Although the complaint additionally alleges that the Agency, the Activity, and the Union by their conduct discriminated against the Charging Parties in violation of section 7116(a)(2) and (b)(2), the record contains nothing to show how, or whether, the Charging Parties were treated any differently from other, similarly situated employees who may have sought to revoke their dues withholding authorizations in the past.(11) The Judge does not explain the reasons for his determination that the Respondents engaged in discriminatory conduct, and no reasons for that determination are apparent. Thus, we find no grounds upon which to conclude that any of the Respondents discriminated against the Charging Parties in violation of the Statute. See, e.g., Pension Benefit Guaranty Corporation v. FLRA, 967 F.2d 658, 667 (D.C. Cir. 1992) (PBGC) ("The linchpin of the disparate treatment analysis is the similarly situated status of the employees being compared.").(12) Therefore, we dismiss all section 7116(a)(2) and (b)(2) allegations in the complaint.

The General Counsel similarly offers no theory, and none is otherwise apparent, in support of the allegation that the Agency violated section 7116(a)(3) of the Statute. We will accordingly dismiss that allegation. As to the Activity, which is also alleged to have violated section 7116(a)(3), the Judge found only that it violated the Statute by its "inaction" in response to Charging Party Partlow's inquiry about revoking his membership in the Local. Judge's Decision at 11. Unlike Greelman, Partlow never submitted an SF 1188 to the Activity. Although the Activity did not act on Greelman's SF 1188 but, instead, forwarded it to the Local for processing, the evidence shows that it did so in accordance with the provisions of Article 31, section 6, which we have determined not to interfere per se with section 7115 of the Statute. Thus, because the Activity did not fail or refuse to process a valid dues withholding revocation from either Charging Party in these cases, it is unnecessary to decide whether it would have violated section 7116(a)(3) of the Statute had it done so.

C. The Appropriate Remedy Requires Only the Posting of Local Notices to Employees and Members and Does Not Warrant Make Whole Relief

Because we find that the Agency and the Union have not violated the Statute in these cases, either through their own conduct or through the conduct of their local components for which they may be held responsible, a nationwide posting of notices to members and employees signed by the Secretary of Veterans Affairs and the president of the American Federation of Government Employees is unwarranted. We will, accordingly, amend the Judge's recommended Order to provide that the notices to members and employees be signed by the president of Local 1931 and the Agency's San Francisco Regional Director and be posted at the Activity.

The record in this case presents no reason to conclude that either the Local or the Activity has failed or refused to promptly honor any other employee's request for SF 1188's or has failed or refused to promptly process any SF 1188's received from other employees in conformance with Article 31, section 6 of the nationwide agreement. In addition, it is undisputed that the Charging Parties have already been made whole for all dues wrongfully withheld from their pay. Accordingly, we will not include in our order any further provision for make whole relief.

Finally, we note the admitted allegation in the complaint that Local 1931 is the successor to Local 1666 as a result of the June 1, 1993, merger. Since there is no allegation or evidence that Local 1666 remains a viable and active labor organization, an order that it undertake remedial relief in these cases would not effectuate the purposes of the Statute. Accordingly, we will dismiss all allegations of the complaint pertaining to Local 1666.

VI. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute:

A. The U.S. Department of Veterans Affairs, Northern California System of Clinics, Pleasant Hill, California shall:

1. Cease and desist from:

(a) Failing or refusing, by its application of the nationwide collective bargaining agreement between the Department of Veterans Affairs and the American Federation of Government Employees, AFL-CIO or otherwise, to promptly furnish an SF 1188 to any bargaining unit employee who requests one.

(b) Interfering with, restraining or coercing employees in the exercise of their rights to revoke their dues withholding authorizations at intervals of one year.

(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at its facilities at Redding, California, where bargaining unit members represented by American Federation of Government Employees, Local 1931, 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 the Regional Director, San Francisco Region, U.S. Department of Veterans Affairs and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, San Francisco Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

B. The American Federation of Government Employees Local 1931, shall:

1. Cease and desist from:

(a) Failing or refusing, by its application of the nationwide collective bargaining agreement between the Department of Veterans Affairs and the American Federation of Government Employees, AFL-CIO or otherwise, to promptly furnish an SF 1188 to any Local 1931 member who requests one.

(b) Failing or refusing, by its application of the nationwide collective bargaining agreement between the Department of Veterans Affairs and the American Federation of Government Employees, AFL-CIO or otherwise, to promptly process any SF 1188 received from a Local 1931 member in conformance with Article 31, section 6 of the agreement.

(c) Interfering with, restraining or coercing employees in the exercise of their rights to revoke their dues withholding authorizations at intervals of one year.

(d) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its business offices, and in all places where notices to bargaining unit employees represented by it are customarily posted, 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 President of Local 2943, AFGE and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(b) Submit appropriate signed copies of the Notice to the Regional Director, San Francisco Region, U.S. Department of Veterans Affairs, for posting in conspicuous places where unit employees represented by AFGE Local 1931 are located. Copies of the Notice shall be maintained for a period of 60 consecutive days from the date of posting.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

All allegations in the complaint pertaining to the Respondent Agency, Respondent Union, and Respondent Local 1666 are dismissed. The allegation in the complaint that the Respondent Activity violated section 7116(a)(2) and (3) by its failure or refusal to provide Charging Party Partlow with an SF 1188 is also dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Northern California System of Clinics, Pleasant Hill, California violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice:

We hereby notify bargaining unit employees that:

WE WILL NOT, by our application of our collective bargaining agreement or otherwise, fail or refuse to promptly furnish an SF 1188 to any bargaining unit employee who requests one.

WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

____________________________
(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 any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103-1791 and whose telephone number is: (415) 356-5000

NOTICE TO OUR MEMBERS

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that Local 1931 of the American Federation of Government Employees, AFL-CIO, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice:

We hereby notify all Local 1931 members that:

WE WILL NOT, by our application of our collective bargaining agreement or otherwise, fail or refuse to promptly furnish an SF 1188 to any employee who requests one.

WE WILL NOT, by our application of our collective bargaining agreement or otherwise, fail or refuse to promptly process any SF 1188 received from an employee in conformance with Article 31, section 6 of the nationwide collective bargaining agreement between the Department of Veterans Affairs and the American Federation of Government Employees, AFL-CIO.

WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

____________________________
(AFGE Local 1931)

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 any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103-1791 and whose telephone number is: (415) 356-5000




FOOTNOTES:
(If blank, the decision does not have footnotes.)

1. The Activity did not file exceptions. The Union filed exceptions on behalf of itself and the Locals.

2. The full text of Article 31, section 6 is as follows:

A. Employees may revoke their dues withholding only once a year, on the anniversary date of their original allotment, by submitting a timely SF 1188 to the union representatives designated for such purpose. The union representative must certify by date and signature the date the 1188 is given to the union representative or by some other appropriate date stamping device. In order for the SF 1188 to be timely, it must be submitted to the Union between the anniversary date of the effective date of the dues withholding and 30 calendar days prior to the anniversary date.

B. The union official will, by reference to the remittance listing, determine the anniversary date of the allotment. The ending date of the pay period in which the anniversary date occurs will be entered in Item (6) on the SF 1188. The entry will be initiated by the union official, who will then deliver the form to the Fiscal Officer prior to the close of business of the Friday following the date entered in Item (6). If, through error of the Union, a form 1188 is received in the Fiscal office later than the agreed to date, the Fiscal office will process the form at the earliest possible time, but no later than the first pay period following receipt. Union representatives may be in a duty status while receiving and processing the SF 1188, and will be released from normal duties to carry out these duties under local release procedures.

3. It is undisputed that Greelman and Partlow were both reimbursed in December 1993 for dues withheld from their pay after their anniversary dates.

4. Section 7115 provides, in relevant part, that:

(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. . . . Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.

Section 7115 itself prescribes no particular means for initiating or revoking an employee's dues withholding authorization. However, regulations of the Office of Personnel Management (OPM) require that the establishment or revocation of any form of employee pay allotment, including an allotment for labor organization dues, be made in writing. 5 C.F.R. § 550.312(c) (1995). SF 1188's were developed by OPM for use in revoking dues withholding authorizations, although their use was never mandatory and agencies were permitted to develop their own forms if they chose to do so. Federal Personnel Manual Supplement 990-2, Subchapter S3-8(3) (1982) (discontinued 1993).

5. Based on the legislative history of the Statute, and on provisions of its predecessor, Executive Order 11491, as amended, the Authority has construed the phrase "may not be revoked for a period of 1 year" to mean that dues withholding authorizations "may be revoked only at intervals of 1 year." U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA 194, 199 (1981).

6. The relevant portion of the contract in Portsmouth provided only that "[u]nit employees shall obtain a copy of the Dues Revocation Form (SF-1188) from the Council office during nonwork hours." 19 FLRA at 595, n.1. The form that employees signed to authorize their dues withholding allotments, however, provided that SF 1188's "may only be obtained and filled out in the offices of the employee organization." Id. at 597.

7. As the Supreme Court pointed out in Felter, administrative arrangements between the parties for the processing of dues revocation requests are not themselves improper:

Of course, the parties may act to minimize the procedural problems caused by Congress' choice [of language controlling dues revocations]. [Employers] and labor organizations may set up procedures through the collective agreement for processing, between themselves, individual assignments and revocations received, and [employers] may make reasonable designations, in or out of collective bargaining contracts, of agents to whom revocations may be sent. Revocations, after all, must be sent somewhere.

Felter, 359 U.S. at 334-5.

8. The remaining provisions of section 6 apply to the Local, not to the employee; they describe steps to be followed in processing an SF 1188 once it has been submitted, but have no bearing on the circumstances under which the employee may submit that SF 1188.

9. Like section 7115 of the Statute, section 302(c)(4) of the Labor Management Relations Act, 29 U.S.C. § 186(c)(4), which authorizes a private sector employer to deduct and remit dues to a union, is also silent about the procedures for revoking those dues deductions.

10. Nevertheless, as discussed previously, the NLRB and the courts have enforced private sector contract provisions requiring that employees seeking to revoke their dues withholding authorizations do so by giving written notice to the union and the employer. In some cases, these provisions have required that employees serve notice of their revocation by registered mail. E.g., Shen-Mar Food Products, Inc.; Rock-Tenn Company; American Commercial Lines.

11. The Judge found that Local 1666 and Local 1931 also violated section 7116(b)(2). Because no such violation by the Locals was alleged in the complaint or otherwise litigated, we do not consider this finding.

12. We acknowledge the view of the NLRB, expressed in cases such as Industrial Towel and Uniform Service, 195 NLRB 1122 (1972), enforcement denied on other grounds sub nom. NLRB v. Industrial Towel and Uniform Service, 473 F.2d 1258 (1973), that the failure by an employer to honor a valid dues revocation request amounts to discrimination that encourages union membership in violation of the Labor Management Relations Act, and that a union that causes an employer to engage in such discrimination also violates the Act. Under the Statute, however, we require a showing of disparate treatment of similarly situated employees in order to find a violation of section 7116(a)(2) or (b)(