United States Department of Labor (Respondent) and American Federation of Government Employees, Local 12, AFL-CIO (Charging Party)
[ v07 p688 ]
07:0688(107)CA
The decision of the Authority follows:
7 FLRA No. 107
UNITED STATES DEPARTMENT OF LABOR
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Charging Party
Case No. 3-CA-506
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT
HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTIONS 7115(A) AND
7116(A)(1), (5) AND (8) OF THE STATUTE AND RECOMMENDING THAT IT CEASE
AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS. EXCEPTIONS
TO THE JUDGE'S RECOMMENDED DECISION AND ORDER WERE FILED BY RESPONDENT,
WITH AN OPPOSITION TO THOSE EXCEPTIONS BEING FILED BY THE CHARGING
PARTY.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE U.S. DEPARTMENT OF LABOR, WASHINGTON,
D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING THE TERMS AND CONDITIONS OF THE NEGOTIATED
AGREEMENT CONCERNING
DUES CHECK-OFF WITHOUT THE AGREEMENT OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 12,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES.
(B) EFFECTUATING DUES REVOCATION REQUESTS OF ITS EMPLOYEES WITHOUT
COMPLYING WITH SECTION
7115(A) OF THE STATUTE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) REIMBURSE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
12, AFL-CIO FOR ALL
DUES REVOCATIONS EFFECTUATED IN A MANNER INCONSISTENT WITH SECTION
7115(A) OF THE STATUTE.
(B) POST AT ALL WASHINGTON, D.C. OFFICES OF THE DEPARTMENT OF LABOR
WHERE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, IS THE
EXCLUSIVE CERTIFIED
REPRESENTATIVE, 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 DIRECTOR OF THE
OFFICE OF LABOR MANAGEMENT RELATIONS, U.S. DEPARTMENT OF LABOR, AND
SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID 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 III, 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.
ISSUED, WASHINGTON, D.C., JANUARY 15, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER BY 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 UNILATERALLY CHANGE THE TERMS AND CONDITIONS OF THE
NEGOTIATED AGREEMENT CONCERNING DUES CHECK-OFF WITHOUT THE AGREEMENT OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL NOT EFFECTUATE DUES REVOCATION REQUESTS FOR OUR EMPLOYEES
WITHOUT COMPLYING WITH SECTION 7115(A) OF THE STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
WE WILL REIMBURSE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 12, AFL-CIO FOR ALL DUES REVOCATIONS EFFECTUATED IN A MANNER
INCONSISTENT WITH SECTION 7115(A) OF THE STATUTE.
(AGENCY OR 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS
IS: 1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005, AND
WHOSE TELEPHONE NUMBER IS (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ARLEAN LELAND, ESQUIRE
FOR THE RESPONDENT
EILEEN H. HAMAMURA, ESQUIRE
FOR THE GENERAL COUNSEL
BETTEJANE LUMPKIN, PRES., LOCAL 12
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV,
PART 2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON SEPTEMBER 18, 1979, BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO,
(HEREINAFTER CALLED THE UNION OR AFGE), A COMPLAINT AND NOTICE OF
HEARING WAS ISSUED ON MAY 16, 1980, BY THE ACTING REGIONAL DIRECTOR FOR
REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C. THE
COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE U.S. DEPARTMENT OF LABOR,
(HEREINAFTER CALLED THE RESPONDENT OR DEPARTMENT OF LABOR), VIOLATED
SECTIONS 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS
ACTION IN UNILATERALLY CHANGING THE TERMS OF AN EXISTING COLLECTIVE
BARGAINING AGREEMENT AND IMPLEMENTING DUES REVOCATIONS OF UNIT EMPLOYEES
IN A MANNER CONTRARY TO THE FEDERAL LABOR RELATIONS AUTHORITY'S
PRONOUNCED INTERPRETATION OF SECTION 7115(A) OF THE STATUTE.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON NOVEMBER 12, 1980, IN
WASHINGTON, D.C. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED POST
HEARING BRIEFS ON DECEMBER 12, 1980, WHICH HAVE BEEN DULY CONSIDERED.
/1/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESS AND HIS DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT, /2/
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION, WHICH IS THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE OF A UNIT OF ALL EMPLOYEES IN RESPONDENT'S NATIONAL
OFFICE, AND THE RESPONDENT WERE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT WHICH REMAINED IN FULL FORCE AND EFFECT UNTIL JULY 7, 1980,
WHEN A NEW CONTRACT WAS SIGNED. THE COLLECTIVE BARGAINING AGREEMENT
PROVIDED IN PERTINENT PART AS FOLLOWS:
ARTICLE II - DURATION OF AGREEMENT
B. IF DURING THE LIFE OF THIS AGREEMENT, A LAW, EXECUTIVE ORDER,
RULE OR REGULATION ISSUED
FROM HIGHER AUTHORITY INVALIDATES, OR REQUIRES AN AMENDMENT TO, ANY
PART OF THIS AGREEMENT OR
ANY SUPPLEMENT HERETO, THE PARTIES AGREE TO MEET WITHIN A REASONABLE
TIME TO NEGOTIATE THE
MANDATED CHANGES.
C. AT ANY TIME IN THE LIFE OF THIS AGREEMENT, EITHER PARTY MAY GIVE
THE OTHER PARTY
WRITTEN NOTICE OF ITS DESIRE TO DISCUSS OTHER CHANGES AND REVISIONS
HEREIN THROUGH JOINT
CONFERENCE. HOWEVER, NO CHANGE IN THIS AGREEMENT MAY BE PUT INTO
EFFECT WITHOUT THE WRITTEN
CONCURRENCE OF BOTH PARTIES.
THE UNION AND THE RESPONDENT WERE ALSO PARTIES TO DUES CHECK-OFF
AGREEMENT WHICH PROVIDED IN PERTINENT PART AS FOLLOWS:
2. REVOCATION AND TERMINATION OF DUES WITHHOLDING;
A. MEMBERS MAY REVOKE THEIR AUTHORIZATIONS AT ANY TIME BY SENDING
NOTICE IN DUPLICATE ON
SF-1188 OR BY A MEMORANDUM TO THEIR BUREAU PERSONNEL OFFICE.
HOWEVER, THE REVOCATION WILL NOT
BECOME EFFECTIVE UNTIL THE BEGINNING OF THE FIRST PAY PERIOD WHICH
STARTS AFTER MARCH 1 OR
SEPTEMBER 1, WHICHEVER DATE FIRST OCCURS, PROVIDED THE REVOCATION IS
RECEIVED BY THE
APPROPRIATE PAYROLL OFFICE BY THAT DATE.
BY LETTER DATED JANUARY 2, 1979, MR. ROBERT HASTINGS, RESPONDENT'S
DIRECTOR OF THE OFFICE OF LABOR-MANAGEMENT RELATIONS, INFORMED THE UNION
THAT AS OF JANUARY 11, 1979, IMPLEMENTATION OF SECTION 7115 OF THE
STATUTE (WITH RESPECT TO DUES REVOCATION) WAS MANDATORY AND ACCORDINGLY,
THE 1 - YEAR DUES REVOCATION PERIOD SET FORTH IN SECTION 7115 OF THE
STATUTE WOULD BECOME EFFECTIVE BEGINNING THE FIRST FULL PAY PERIOD WHICH
BEGAN ON OR AFTER MARCH 1, 1979, AND YEARLY THEREAFTER. THE LETTER
FURTHER INFORMED THE UNION THAT IN THE EVENT THERE WERE ANY QUESTIONS,
THE UNION SHOULD CONTACT A DESIGNATED REPRESENTATIVE OF THE RESPONDENT
WITHIN FIVE DAYS FROM RECEIPT OF THE LETTER. THEREAFTER, ON JANUARY 15,
1979, RESPONDENT, WITHOUT ANY FURTHER CORRESPONDENCE OR CONTACT WITH THE
UNION, ISSUED A MEMORANDUM TO ITS EMPLOYEES WHEREIN THE REVOCATION
PERIOD FOR DUES WITHHOLDING WAS CHANGED FORM A SIX MONTH TO A ONE YEAR
INTERVAL. THE MEMORANDUM, A COPY OF WHICH HAD BEEN ATTACHED TO THE
JANUARY 2, 1979 LETTER TO THE UNION, READS IN PERTINENT PART AS FOLLOWS:
. . . ONE-YEAR REVOCATION PERIOD WILL BECOME EFFECTIVE FROM THE
BEGINNING OF THE FIRST FULL
PAY PERIOD WHICH STARTS ON OR AFTER MARCH 1, 1979, AND YEARLY
THEREAFTER ON THE FIRST FULL PAY
PERIOD WHICH STARTS ON OR AFTER MARCH 1 OF EACH SUCCEEDING CALENDAR
YEAR . . .
ON FEBRUARY 5, 1979, THE AFL-CIO COMMITTEE ON FEDERAL LABOR RELATIONS
WROTE A LETTER TO THE FEDERAL LABOR RELATIONS AUTHORITY WHEREIN IT
REQUESTED THAT THE AUTHORITY PROVIDE A STATEMENT OF POLICY AND GUIDANCE
WITH RESPECT TO THE PROPER INTERPRETATION OF SECTION 7115(A) OF THE
STATUTE. ATTACHED TO THE AFOREMENTIONED LETTER WAS A COPY OF
RESPONDENT'S JANUARY 15TH MEMORANDUM TO THE UNIT EMPLOYEES.
SEVERAL WEEKS LATER ON FEBRUARY 23, 1979, THE AUTHORITY ISSUED A
NOTICE AND DIRECTION "TO THE HEADS OF AGENCIES AND PRESIDENTS OF LABOR
ORGANIZATIONS" WHEREIN THE AUTHORITY DIRECTED THAT:
2. PENDING DISPOSITION OF THE INSTANT MATTER BY THE AUTHORITY . . .
AGENCIES SHALL NOT
EFFECTUATE EMPLOYEE REVOCATIONS OF DUES ASSIGNMENTS RECEIVED BY SUCH
AGENCIES ON OR AFTER
JANUARY 11, 1979. INSTEAD, WHERE EMPLOYEES SEEK OR HAVE SOUGHT TO
TERMINATE SUCH DUES
ASSIGNMENTS THROUGH REVOCATIONS RECEIVED BY AGENCIES ON OR AFTER
JANUARY 11, 1979, AGENCIES
SHALL HOLD SUCH REVOCATIONS IN ABEYANCE AND CONTINUE TO WITHHOLD DUES
AS PREVIOUSLY ASSIGNED,
MAINTAINING THESE FUNDS IN APPROPRIATE SUSPENSE OR ESCROW ACCOUNTS
UNTIL OTHERWISE ADVISED BY
THE AUTHORITY. WHERE AGENCIES HAVE RECEIVED EMPLOYEE REVOCATIONS OF
DUES WITHHOLDING
ASSIGNMENTS ON OR AFTER JANUARY 11, 1979, AND HAVE ALREADY
EFFECTUATED SUCH REVOCATIONS, THE
REVOCATIONS SHALL BE HELD IN ABEYANCE. DUES WITHHELD PURSUANT TO
SUCH REINSTATED ASSIGNMENTS
SHALL ALSO BE MAINTAINED IN APPROPRIATE SUSPENSE OR ESCROW ACCOUNTS
UNTIL OTHERWISE ADVISED BY
THE AUTHORITY.
ON MARCH 19, 1979, MR. HASTINGS SENT A MEMORANDUM TO MR. WILLIAM
REESE, RESPONDENT'S COMPTROLLER, WHEREIN HE ADVISED MR. REESE TO
"PROCEED TO IMPLEMENT THOSE REVOCATIONS OF DUES AUTHORIZATIONS WHICH
HAVE BEEN RECEIVED BY THE (LABOR) DEPARTMENT ON OR AFTER JANUARY 11,
1979, AND NO LATER THAN COB MARCH 1, 1979". MR. HASTINGS ACKNOWLEDGED
IN HIS MEMORANDUM THAT HIS INSTRUCTIONS WITH RESPECT TO THE REVOCATIONS
WERE CONTRARY TO THE NOTICE AND DIRECTION OF THE AUTHORITY. IN THIS
LATTER REGARD, MR. HASTINGS POINTED OUT THAT OPM DID NOT BELIEVE THAT
THE "FLRA HAS THE AUTHORITY TO DIRECT AGENCIES, IN THIS MANNER" AND THAT
HE AGREED WITH OPM'S POSITION. AS FURTHER JUSTIFICATION FOR
IMPLEMENTING THE DUES REVOCATIONS, MR. HASTINGS INFORMED MR. REESE THAT
THE LABOR ORGANIZATIONS INVOLVED "HAVE WAIVED SPECIFICALLY AND
UNEQUIVOCALLY THEIR RIGHTS TO BARGAIN" ON THE MATTER. /3/
IN ACCORDANCE WITH MR. HASTINGS MEMORANDUM OF MARCH 9, 1979,
RESPONDENT COLLECTED ALL DUES REVOCATIONS RECEIVED BETWEEN JANUARY 11
AND MARCH 1, 1979, AND MADE THEM EFFECTIVE FOR THE PAYROLL PERIODS
ENDING ON MARCH 24, 1979, THROUGH JUNE 16, 1979. /4/
ON APRIL 19, 1979, THE AUTHORITY ISSUED ITS INTERPRETATION AND
GUIDANCE, FLRA NO. O-PS-1, WHEREIN IT CONCLUDED IN PERTINENT PART AS
FOLLOWS:
1) THE REQUIREMENT OF SECTION 7115(A), NAMELY THAT "ANY SUCH (DUES)
ASSIGNMENT MAY NOT BE
REVOKED FOR A PERIOD OF 1 YEAR," DOES NOT APPLY IN THOSE SITUATIONS
WHERE THE PARTIES TO AN
EXISTING COLLECTIVE BARGAINING AGREEMENT HAVE MUTUALLY AGREED IN
SUBSTANCE TO RENEW OR
CONTINUE THE SIX-MONTH INTERVALS FOR REVOCATION OF DUES ASSIGNMENTS.
2) THE 1-YEAR PERIOD PROVIDED IN SECTION 7115(A) FOR DUES REVOCATIONS
APPLIES WHERE A LABOR
ORGANIZATION OR AN AGENCY OBJECTS TO SUCH A RENEWAL OR CONTINUATION;
AND SUCH 1-YEAR PERIOD
BEGINS TO RUN FROM EITHER OF THE FOLLOWING DATES, WHICHEVER IS LATER:
(A) THE ENDING DATE OF THE PRECEDING SIX-MONTH INTERVAL DURING WHICH
THE EMPLOYEE COULD
HAVE REVOKED HIS DUES AUTHORIZATION; OR
(B) THE DATE ON WHICH THE EMPLOYEE AUTHORIZED DUES WITHHOLDING.
THIS INTERPRETATION AND GUIDANCE CONSTITUTES ADVICE TO AGENCIES FOR
PURPOSES OF PARAGRAPH 2 OF THE AUTHORITY'S NOTICE AND DIRECTION OF
FEBRUARY 23, 1979, RELATING TO THE MAINTENANCE OF DUES ASSIGNMENTS IN
SUSPENSE OR ESCROW ACCOUNTS.
ON JUNE 4, 1979, MR. RUSSELL BINION, THEN PRESIDENT OF THE UNION,
WROTE A LETTER TO THE RESPONDENT WHEREIN HE COMPLAINED THAT THE
RESPONDENT WAS VIOLATING THE LAW WITH RESPECT TO THE IMPLEMENTATION OF
THE DUES REVOCATIONS AND REQUESTED THAT IT RECTIFY THE SITUATION. MR.
BINION CITED THE AUTHORITY'S NOTICE AND DIRECTION OF FEBRUARY 23, 1979,
AND INTERPRETATION AND GUIDANCE OF APRIL 19, 1979, IN SUPPORT OF HIS
POSITION.
ON JUNE 15, 1979, MR. HASTINGS RESPONDED TO MR. BINION'S LETTER. MR.
HASTINGS TOOK THE POSITION THAT RESPONDENT HAD PROPERLY TERMINATED THE
DUES ALLOTMENTS, CITING AMONG OTHER THINGS, THE FACT THAT RESPONDENT HAD
GIVEN TIMELY NOTICE VIA ITS JANUARY 2, 1979, LETTER OF ITS INTENT TO
IMPLEMENT CHANGES IN DUES REVOCATIONS AND THE UNION'S FAILURE TO RESPOND
THERETO. ACCORDING TO MR. HASTINGS, THE UNION'S FAILURE TO RESPOND
CONSTITUTED A WAIVER OF ITS RIGHT TO NEGOTIATE THE MATTER OF DUES
REVOCATIONS IN A MANNER DIFFERENT THAN THAT SET FORTH IN THE EXISTING
DUES CHECK-OFF AGREEMENT. IN SUCH CIRCUMSTANCES, MR. HASTINGS NOTED
THAT THE AUTHORITY'S INTERPRETATION AND GUIDANCE WAS NOT APPLICABLE
SINCE THE AUTHORITY'S RULING WAS "LIMITED ONLY TO SITUATIONS WHERE THERE
IS EXPRESS AND TIMELY DISAGREEMENT ON CONTINUING ANTECEDENT CONTRACTUAL
DUES DEDUCTIONS PROVISIONS BEYOND THE EFFECTIVE DATE OF THE STATUTE,
JANUARY 11, 1979."
MR. HASTINGS, WHO WAS THE ONLY WITNESS CALLED BY EITHER PARTY AT THE
HEARING, TESTIFIED THAT IT WAS RESPONDENT'S PRACTICE SINCE 1977 TO GIVE
THE UNION NOTICE OF ALL PROPOSED CHANGES IN CONDITIONS OF EMPLOYMENT.
THEREAFTER, FAILING TO RECEIVE ANY RESPONSE FROM THE UNION WITHIN A
REASONABLE TIME, IT WAS RESPONDENT'S PRACTICE TO IMPLEMENT THE
RESPECTIVE PROPOSALS. IN SUPPORT OF MR. HASTINGS TESTIMONY IN THE ABOVE
RESPECT, RESPONDENT PRESENTED TEN EXHIBITS DEALING WITH CHANGES IN
CONDITIONS OF EMPLOYMENT WHICH HAD BEEN IMPLEMENTED BY RESPONDENT AFTER
ALLOWING THE UNION A REASONABLE PERIOD OF TIME TO RESPOND TO PRIOR
NOTICE OF SUCH INTENDED ACTION. ALTHOUGH NOT ENTIRELY CLEAR FORM THE
RECORD, IT APPEARS THAT IN EACH CASE THE UNION HAD FAILED TO RESPOND TO
THE NOTICE. NONE OF THE TEN CHANGES IN CONDITIONS OF EMPLOYMENT,
HOWEVER, WERE SHOWN TO HAVE CONSTITUTED A CHANGE OR ALTERATION IN THE
PROVISIONS OF EITHER THE EXISTING COLLECTIVE BARGAINING AGREEMENT OR THE
SUPPLEMENT THERETO COVERING DUES CHECK-OFF.
DISCUSSION AND CONCLUSIONS
IT IS CLEAR THAT RESOLUTION OF THE INSTANT UNFAIR LABOR PRACTICE
COMPLAINT TURNS ON WHETHER OR NOT THE PARTIES "HAVE MUTUALLY AGREED IN
SUBSTANCE TO RENEW OR CONTINUE THE SIX-MONTH INTERVALS FOR THE
REVOCATION OF DUES ASSIGNMENTS". IN THE ABSENCE OF SUCH MUTUAL
AGREEMENT TO EXTEND THE EXISTING SIX-MONTH INTERVALS, RESPONDENT'S
ACTION IN EFFECTUATING THE DUES REVOCATIONS DURING THE PERIOD MARCH 24,
1979 - JUNE 16, 1979, WAS VIOLATIVE OF SECTIONS 7116(A)(1), (5) AND (8)
OF THE STATUTE SINCE IT AMOUNTED TO A UNILATERAL CHANGE IN THE TERMS OF
THE COLLECTIVE BARGAINING AGREEMENT AND WAS ALSO CONTRARY TO THE
AUTHORITY'S INTERPRETATION OF SECTION 7115(A) OF THE STATUTE.
RESPONDENT TAKES THE POSITION THAT THE RECORD SUPPORTS THE CONCLUSION
THAT THE PARTIES DID MUTUALLY AGREE TO THE EXTENSION OF THE SIX MONTH
INTERVALS CONTAINED IN THE EXISTING DUES CHECK OFF AGREEMENT. IN
SUPPORT OF ITS POSITION IT POINTS TO PAST PRACTICE WITH RESPECT TO
CHANGES IN CONDITIONS OF EMPLOYMENT. ACCORDING, TO THE RESPONDENT, IN
THE PAST, ABSENCE OF A RESPONSE FROM THE UNION CONCERNING A NOTICE OF A
PROPOSED CHANGE BY THE RESPONDENT CONSTITUTED IMPLICIT AGREEMENT WITH
THE PROPOSAL. APPLYING THE PAST PRACTICE TO THE INSTANT SITUATION,
RESPONDENT ARGUES THAT THE UNION'S ACTION IN FAILING TO RESPOND TO ITS
JANUARY 2, 1979, LETTER CONCERNING THE PROPOSED CHANGE IN THE CHECK-OFF
AGREEMENT WITH RESPECT TO DUES REVOCATION, CONSTITUTED AGREEMENT WITH
THE PROPOSAL, AND HENCE ITS ACTIONS IN IMPLEMENTING THE REVOCATIONS IN
ACCORDANCE WITH THE PROPOSAL WAS NOT VIOLATIVE OF EITHER THE COLLECTIVE
BARGAINING AGREEMENT OR SECTION 7115(A) OF THE STATUTE.
HAD THE PAST CHANGES IN CONDITIONS OF EMPLOYMENT CONCERNED CHANGES IN
THE COLLECTIVE BARGAINING AGREEMENT OR SUPPLEMENT THERETO, THERE WOULD
BE MERIT IN RESPONDENT'S POSITION. HOWEVER, SUCH IS NOT THE CASE. THE
CHANGES SUBMITTED BY RESPONDENT IN SUPPORT OF ITS POSITION INVOLVED
WORKING CONDITIONS NOT SPECIFICALLY COVERED BY THE COLLECTIVE BARGAINING
AGREEMENT OR SUPPLEMENT THERETO.
AS A GENERAL RULE, AN AGENCY OR ACTIVITY IS FREE TO MAKE CHANGES IN
CONDITIONS OF EMPLOYMENT WHICH ARE NOT COVERED BY A COLLECTIVE
BARGAINING AGREEMENT AFTER TIMELY NOTICE OF THE PROPOSED CHANGE TO A
UNION AND ABSENT A TIMELY REQUEST TO BARGAIN THEREON BY THE UNION. /5/
THE SAME RULE, IS NOT APPLICABLE, HOWEVER, TO THOSE CONDITIONS OF
EMPLOYMENT WHICH HAVE BEEN EMBODIED IN A COLLECTIVE BARGAINING
AGREEMENT. TO HOLD OTHERWISE WOULD DESTROY NOT ONLY THE INTEGRITY OF
THE AGREEMENT BUT DISRUPT THE LABOR HARMONY THAT THE AGREEMENT WAS
DESIGNED TO FOSTER.
THE ABOVE CONSIDERATIONS ASIDE, A LITERAL READING OF THE COLLECTIVE
BARGAINING AGREEMENT, PARTICULARLY ARTICLE II, MAKES IT CLEAR THAT
CHANGES IN THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT MAY ONLY
OCCUR AFTER NEGOTIATIONS AND THE WRITTEN CONCURRENCE OF BOTH PARTIES.
HERE, THERE WAS DEFINITELY NO WRITTEN CONCURRENCE OF THE UNION TO THE
PROPOSED CHANGES. IN THE ABSENCE OF WRITTEN CONCURRENCE FROM THE UNION,
THE RESPONDENT WAS NOT FREE TO CHANGE THE TERMS OF THE CHECK-OFF
PROVISIONS CONTAINED IN THE SUPPLEMENTAL AGREEMENT. HAVING UNILATERALLY
ALTERED THE AGREEMENT, RESPONDENT COMMITTED A VIOLATION OF SECTIONS
7116(A)(1) AND (5) OF THE STATUTE. /6/
INASMUCH AS THERE WAS NO MUTUAL AGREEMENT TO EXTEND THE SIX MONTH
CHECK-OFF PROVISIONS, THE RESPONDENT'S ACTION WAS CLEARLY CONTRARY TO
THE AUTHORITY'S NOTICE AND DIRECTION OF FEBRUARY 23, 1979, AND
INTERPRETATION AND GUIDANCE, FLRA NO. O-PS-1 OF APRIL 19, 1979 WITH
RESPECT TO SECTION 7115(A) OF THE STATUTE. ACCORDINGLY, I FIND THAT THE
RESPONDENT'S ACTION WITH RESPECT TO THE DUES CHECK-OFF REVOCATIONS WAS
ALSO VIOLATIVE OF SECTION 7116(A)(8) OF THE STATUTE.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5) AND
(8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN UNILATERALLY CHANGING THE
TERMS OF THE PARTIES COLLECTIVE BARGAINING AGREEMENT AND EFFECTUATING
DUES REVOCATIONS IN A MANNER INCONSISTENT WITH THE INTERPRETATION AND
GUIDANCE OF THE FEDERAL LABOR RELATIONS AUTHORITY, I RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSES
OF THE STATUTE.
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C.SECTION 7118(A)(7)(A), AND
SECTION 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R.SECTION
2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE U.S. DEPARTMENT OF
LABOR, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING THE TERMS AND CONDITIONS OF THE NEGOTIATED
AGREEMENT CONCERNING
DUES CHECK-OFF WITHOUT FIRST RECEIVING THE WRITTEN CONCURRENCE OF,
THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE
OF ITS EMPLOYEES.
(B) EFFECTUATING DUES REVOCATION REQUESTS OF ITS EMPLOYEES WITHOUT
COMPLYING WITH THE
FEDERAL LABOR RELATIONS AUTHORITY'S PUBLISHED INTERPRETATION OF
SECTION 7115(A) OF THE
STATUTE.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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) REIMBURSE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
12, AFL-CIO, FOR ALL
DUES REVOCATIONS EFFECTUATED IN A MANNER INCONSISTENT WITH THE
INTERPRETATION AND GUIDANCE OF
THE FEDERAL LABOR RELATIONS AUTHORITY DATED APRIL 19, 1979.
(B) POST AT ALL WASHINGTON, D.C. OFFICES OF THE DEPARTMENT OF LABOR
WHERE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, IS THE
EXCLUSIVE CERTIFIED
REPRESENTATIVE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY
THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE OFFICE OF LABOR MANAGEMENT RELATIONS, U.S.
DEPARTMENT OF LABOR, AND SHALL BE
POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES WHERE NOTICES
ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE
THAT SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE 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.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 4, 1981
WASHINGTON, D.C.
APPENDIX
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 RECOGNIZE THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 12, AFL-CIO IS THE EXCLUSIVE COLLECTIVE-BARGAINING REPRESENTATIVE
OF A UNIT APPROPRIATE FOR COLLECTIVE BARGAINING CONSISTING OF ALL
EMPLOYEES IN THE NATIONAL OFFICE.
WE WILL NOT UNILATERALLY CHANGE THE TERMS AND CONDITIONS OF THE
NEGOTIATED AGREEMENT CONCERNING DUE CHECK-OFF WITHOUT RECEIVING THE
WRITTEN CONCURRENCE OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 12, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED UNDER THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL FOLLOW THE FEDERAL LABOR RELATIONS AUTHORITY'S INTERPRETATION
AND GUIDANCE REGARDING DUES REVOCATIONS, AND WE WILL IMPLEMENT DUES
REVOCATIONS IN COMPLIANCE WITH PROVISIONS OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REIMBURSE THE UNION FOR ALL DUES REVOCATIONS EFFECTUATED IN A
MANNER INCONSISTENT WITH THE INTERPRETATION AND GUIDANCE OF THE FEDERAL
LABOR RELATIONS AUTHORITY DATED APRIL 19, 1979.
(AGENCY OR 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. (202) 653-8452).
(REGARDING CASE 3-CA-506.)
--------------- FOOTNOTES: ---------------
/1/ IN THE ABSENCE OF OBJECTION, GENERAL COUNSEL'S MOTION TO CORRECT
THE TRANSCRIPT IS GRANTED.
/2/ THE RECORD CONSISTS, IN THE MAIN, OF A FACTUAL STIPULATION BY THE
PARTIES. THE ONLY ORAL EVIDENCE ADDUCED AT THE HEARING WAS SOME 20
PAGES OF TESTIMONY BY MR. ROBERT HASTINGS, DIRECTOR OF LABOR MANAGEMENT
RELATIONS FOR THE DEPARTMENT OF LABOR, CONCERNING THE RESPONDENT'S PAST
PRACTICE WITH RESPECT TO CHANGES IN EXISTING CONDITIONS OF EMPLOYMENT.
MR. HASTINGS' TESTIMONY IN THIS REGARD WILL BE SET FORTH AFTER THE
SUMMATION OF THE RELEVANT FACTS CONTAINED IN THE STIPULATION OF THE
PARTIES.
/3/ ATTACHED TO THE MEMORANDUM WAS A COPY OF OPM GUIDANCE TO
AGENCIES" WHICH DISCUSSED THE AUTHORITY'S NOTICE AND DIRECTION AND OPM'S
DISAGREEMENT THEREWITH. CONTRARY TO MR. HASTINGS' INSTRUCTIONS TO MR.
REESE, THE OPM GUIDANCE ADVISED AGENCIES NOT TO EFFECTUATE DUES
REVOCATIONS RECEIVED AFTER JANUARY 1, 1979, AND TO HOLD ALL DUES
DEDUCTIONS FROM SUCH EMPLOYEES IN AN "APPROPRIATE SUSPENSE OR ESCROW
ACCOUNT".
/4/ THE RECORD REFLECTS THAT RESPONDENT EFFECTED DUES REVOCATIONS AS
FOLLOWS: TWENTY-FOUR EMPLOYEES ON MARCH 24, 1979, SEVEN EMPLOYEES ON
APRIL 7, 1979, THREE EMPLOYEES ON APRIL 21, 1979, TWO EMPLOYEES ON MAY
5, 1979, TWO EMPLOYEES ON MAY 19, 1979, AND ONE EMPLOYEE ON JUNE 16,
1979.
/5/ DEPARTMENT OF TREASURY, U.S. CUSTOMS SERVICE, REGION, BOSTON AND
NTEU, 1 FLRA NO. 49; 4392, AEROSPACE SUPPORT GROUP, VANDENBERG AFB,
CALIFORNIA AND NFFE, LOCAL 1001, 2 FLRA NO. 14; IRS BROOKLYN DISTRICT
OFFICE AND NTEU, CHAPTER 53, 2 FLRA NO. 76.
/6/ COLORADO AIR NATIONAL GUARD, BUCKLEY AIR NATIONAL GUARD BASE,
AURORA, COL. AND ASSOC. OF CIVILIAN TECHNICIANS, INC. A/SLMR NO. 758;
WATERVLIET ARSENAL, U.S. ARMY COMMAND AND AFGE LOCAL 2352, A/SLMR NO.
726; PORTSMOUTH NAVAL SHIPYARD, DEPT. OF NAVY AND IFPTE, AFL-CIO, LOCAL
4, A/SLMR NO. 820; FAIRFIELD NURSING HOME, 228 NLRB 1208.