U.S. DEPARTMENT OF ENERGY, WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION

WASHINGTON, D.C.

U.S. DEPARTMENT OF ENERGY, WASHINGTON, D.C. Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party

Case Nos. WA-CA-70333 WA-CA-80228

Aleshia Duncan Representative of the Respondent
Eileen Hennessey Counsel for the Charging Party
Patricia Armstrong Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge

The consolidated unfair labor practice complaint alleges that the Respondent failed and refused to comply with section 7115(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7115(a), and thereby violated section 7116(a)(1) and (8) of the Statute, by failing to process the SF-1187 dues withholding requests of six bargaining unit employees and by discontinuing the dues withholding of sixteen other bargaining unit employees.

By Order dated August 17, 1998, the Chief Administrative Law Judge granted the Respondent's motion for an extension of time within which to file its answer to the complaint. The Chief Administrative Law Judge extended the Respondent's time for filing an answer to August 26, 1998. The Respondent did not file an answer within the required period.

On August 31, 1998, Counsel for the General Counsel moved for summary judgment and supported the motion by reference to section 2423.20(b) of the Authority's Rules and Regulations. 5 C.F.R. § 2423.20(b)(1997). Section 2423.20(b) provides that "[a]bsent a showing of good cause to the contrary, failure to file an answer or respond to any allegation shall constitute an admission."

The Respondent did not show good cause for failing to file an answer, but did respond to the motion for summary judgment on September 3, 1998, in part, as follows:

The agency is in agreement with this Motion. We have been

working to resolve this matter. Specifically, we have returned

all employees to bargaining unit status and transmitted

retroactive payment for dues owed for all employees named in

the complaint, with one exception. I am working with the

respective parties in the agency to complete payment for the

last employee.

The agency will continue to update Ms. Armstrong and Ms.

Hennessey, National Treasury Employees Union, on our efforts

to resolve this matter.

Efforts to resolve the matter by settlement were unsuccessful. The Respondent failed to participate in a scheduled prehearing conference held on September 2, 1998 pursuant to section 2423.24(d) of the Authority's Rules and Regulations.

Based on the allegations of the complaint, the admissions by operation of section 2423.20(b) of the Authority's Rules and Regulations, and all the pleadings and exhibits, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to summary judgment as a matter of law. See U.S. Department of Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 610 (1990). Accordingly, I make the following findings of fact, conclusions of law, and recommendations.

The Respondent, the U.S. Department of Energy, Washington, D.C., is an agency under 5 U.S.C. § 7103(a)(3).

The Charging Party, the National Treasury Employees Union, a labor organization under 5 U.S.C. § 7103(a)(4), is the certified exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent.

Chapter 228 is an agent of the Charging Party for representing bargaining unit employees at Respondent's Germantown, Maryland facility. Chapter 213 is the agent of the Charging Party for representing bargaining unit employees at the Respondent's Headquarters facility in Washington, D.C.

On the dates specified opposite their names, Chapter 228 submitted a completed SF-1187, dues withholding request, to the Respondent for each of the following employees in the bargaining unit.

Name Date SF-1187

Phillip Altomare 2/28/97

Lydia Chang 7/9/97

Gene Chou 7/24/97

Jonathan Kang 8/8/97

Ram Lahoti 8/13/97

Joseph Payer 7/8/97

On October 21, 1997, Chapter 228 renewed its request to Respondent to commence dues withholding for Phillip Altomare, Lydia Chang, Gene Chou, Jonathan Kang, Ram Lahoti, and Joseph Payer.

Since the dates of submission of the SF-1187s by the employees listed above until the date of the complaint (June 12, 1998), the Respondent has failed and refused to process the dues withholding requests.

During the time period specified opposite their names, the following employees in the bargaining unit had their dues withholding discontinued by the Respondent.

Name Date Dues Date Dues

Withholding Withholding

Discontinued Resumed

Karen E. Alozie 1/18/97 9/28/97

Veronica Bellamy 1/18/97 9/28/97

Deborah D. Black 1/18/97 9/28/97

Deborah Collins 1/18/97 9/28/97

Shirley Derflinger 1/97 9/28/97

Larry Dewey 1/18/97 9/28/97

Dan Funk 1/97 9/28/97

Henry Himpler 4/97 1/18/98

Suzanne Iannucci 1/97 9/28/97

Marvin Mielke 1/97 9/28/97

Genoa Mitchell III 1/97 9/28/97

Bonny Overton 1/18/97 Present

Edward Rizkalla 6/97 1/98

Janet Smith 1/18/97 9/28/97

Lillian Walker 1/18/97 9/28/97

William Weaver 1/97 1/18/98

The Respondent and Charging Party's collective agreement became effective on August 7, 1996 for a period of three years. Article 9 of the collective bargaining agreement is entitled "Dues Withholding." Section 9.11(C) provides, in pertinent part, that "[w]hen the employer fails to commence dues withholding in a timely manner, or otherwise fails to remit dues owed, the employer will pay the full amount to the NTEU and recoup the funds from the employee's salary through an adjustment subject to the employee's right to seek waiver of overpayment."

Section 7115(a) of the Statute provides that "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." The Authority has interpreted this provision of the Statute as an "absolute duty on agencies to honor the current assignments of unit employees by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representatives." Lowry Air Force Base, Denver , Colorado, 31 FLRA 793, 797 (1988). An agency's obligation under section 7115 is mandatory and nondiscretionary. American Federation of Government Employees, Council 214 v. FLRA, 835 F.2d 1458 (D.C. Cir. 1987). An agency must process dues assignments expeditiously. Department of Justice, United States Attorney's Office, Los Angeles, California, 17 FLRA 1005, 1006 (1985) (citing Department of Health and Human Services, Social Security Administration, 13 FLRA 625 (1984) and Department of Health and Human Services and Social Security Administration, Region IX, San Francisco, California, 12 FLRA 250 (1983)). An agency's failure to honor an employees for dues checkoff under section 7115 constitutes a violation of section 7116(a)(1) and (8) of the Statute. See Defense Logistics Agency, 5 FLRA 126, 132-33 (1981).

In the instant case, the Respondent failed to process the SF-1187 submitted by employees Phillip Altomare, Lydia Chang, Gene Chou, Jonathan Kang, Ram Lahoti and Joseph Payer. The Respondent also unilaterally discontinued dues withholding for the following bargaining unit employees: Karen Alozie, Veronica Bellamy, Deborah Black, Deborah Collins, Shirley Derflinger, Larry Dewey, Dan Funk, Henry Himpler, Suzanne Iannucci, Marvin Mielke, Genoa Mitchell III, Bonny Overton, Edward Rizkalla, Janet Smith, Lillian Walker and William Weaver. By failing to deduct Union dues from the salary of these unit employees, the Respondent failed to comply with its obligation to deduct dues allotment under section 7115(a). Therefore, the Respondent committed an unfair labor practice in violation of section 7116(a)(1) and (8) of the Statute.

The General Counsel has requested a cease and desist order, an appropriate posting, and that the Respondent also be required to reimburse the Charging Party the dues it failed to withhold from employees during the relevant time period. The remedy requested by the General Counsel is appropriate. The Authority has long held that the remedy for failing to comply with section 7115(a) properly includes a requirement that an agency reimburse a union for the dues it would have received but did not as a result of the unlawful conduct. Department of the N