[ v12 p244 ]
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 Interpretation and Guidance, 1 FLRA 183 at 186 (1979). /3/ In so finding, the Authority notes that while the parties stipulated that the Respondent's Fiscal Service erroneously informed the employees in early December 1979 that dues revocation requests should be submitted in January 1980, there was no allegation or showing that the employees had been prevented from filing such revocation forms prior to December 1, 1979, in accordance with the unambiguous terms of the previously executed written Memorandum of Understanding between the Union and the Respondent. /4/ The parties' Memorandum of Understanding concerning Payroll Allotment for Collection of Dues was executed in February 1979. The dates when the 25 affected employees herein executed their original voluntary dues withholding authorizations are not indicated in the record. As it is not independently asserted in the complaint or otherwise contended that the Respondent's action in effectuating dues revocations and prematurely cancelling individual authorizations in January 1980, was, as to any of the individual revocations, contrary to the specific requirement of section 7115(a) of the Statute "that any such assignment may not be revoked for a period of 1 year," the Authority finds it unnecessary to reach such question herein.