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 ma