13:0264(45)CA - HHS, SSA, Chicago, IL and AFGE Local 1346 -- 1983 FLRAdec CA

 13 FLRA No. 45
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 SOCIAL SECURITY ADMINISTRATION
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1346, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-90
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices under the Federal Service
 Labor-Management Relations Statute (the Statute), as alleged in the
 complaint, and recommending that it cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other unfair labor practices under Executive
 Order 11491, as amended, and recommended dismissal of that portion of
 the complaint.  /1/ Thereafter, the Respondent filed exceptions to the
 Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and sections 7118 and 7135(b) of 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 Decision and the entire record, the
 Authority hereby adopts the Judge's findings, conclusions and
 recommended Order, except as modified herein.
 
    The Judge found that the Department of Health and Human Services,
 Social Security Administration, Chicago, Illinois (the Respondent)
 violated section 7116(a)(1) and (8) of the Statute when it ceased
 deducting and remitting union dues of Mary Moes for the period she was
 in training for a management position.  He found that the selection of
 Moes for the Respondent's Management Intern Program and her
 administrative transfer to the Respondent's offices in Baltimore,
 Maryland, during the training period, did not remove her from the
 bargaining unit exclusively represented by the Charging Party, American
 Federation of Government Employees, Local 1346, AFL-CIO (the Union)
 inasmuch as she continued to perform bargaining unit work.  The
 Authority adopts the Judge's conclusion that the Respondent violated
 section 7116(a)(1) and (8) of the Statute by such conduct.  /2/ However,
 the remedial order recommended by the Judge will be modified so as not
 to direct the Respondent to pay to the Charging Party the dues that were
 not withheld, inasmuch as the record indicates that Moes paid her dues
 directly to the Union by personal check during that period of time.
 
    The Authority also adopts the Judge's conclusion that the
 Respondent's failure to timely honor two employees' written dues
 withholding authorizations, although the failure allegedly was
 unintentional, was a failure to comply with the requirements of section
 7115(a) of the Statute /3/ and therefore was a violation of section
 7116(a)(1) and (8).  /4/
 
    On May 12 and 14, 1978, respectively, Mary Bahlert and Edward
 Lesperance, both Waukesha unit employees, signed dues withholding
 authorization forms.  The forms were sent to the Respondent's Region V
 personnel office on May 26, 1978 and assigned an account number.  The
 forms were submitted to the Respondent's central payroll division on
 June 8, 1978, to be effective on June 18, 1978.
 
    In early August 1978, not having received the dues deductions, the
 Union's president, William McKillen, contacted the regional personnel
 office and spoke to Linda Thompson who verified that the dues
 withholding had been "input" into the computer and stated that she would
 do so again.  These actions were repeated in the latter part of August.
 
    On September 6, 1978, after still not receiving the dues, McKillen
 telephoned the Respondent's Chicago regional personnel office and
 inquired about the matter.  He was told that the problem appeared to be
 the Union's failure to submit a letter designating the name and address
 of its remittance official for the Waukesha unit, as required by the
 parties' dues withholding agreement.  McKillen informed the Respondent
 that Deborah Stoecker was the Union's remittance official for the
 Waukesha unit.  The Judge credited McKillen's testimony that he sent a
 letter dated September 6, 1978 to the Respondent confirming that
 telephone conversation.  /5/ The Respondent did not program the computer
 to withhold dues for Bahlert until February 11, 1979, and dues
 withholding did not begin until the payroll period ending February 24.
 Lesperance's withholding was effectuated as of March 25, 1979.  Inasmuch
 as the Judge's finding of the unfair labor practice pertains to the
 period after January 11, 1979, when the Statute became effective and the
 withholding of dues became a statutory obligation pursuant to section
 7115(a), the Authority finds, in agreement with the Judge, that the
 Respondent failed to "honor the assignment and make an appropriate
 allotment pursuant to the assignment," in violation of section
 7116(a)(1) and (8) of the Statute.  While the Respondent's failure to
 timely process the written dues withholding authorizations of Bahlert
 and Lesperance may have been unintentional, the Statute does not require
 a willful refusal to comply with section 7115(a) in order to establish a
 violation.  See, e.g., National Archives and Records Service and
 National Archives Trust Board, General Services Administration,
 Washington, D.C., 9 FLRA No. 50 (1982).  Further, 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.  See Department of
 Health and Human Services and Social Security Administration, Region IX,
 San Francisco, California, 12 FLRA No. 58 (1983).  The delays of one
 month for Bahlert and more than two months for Lesperance in honoring
 their dues withholding authorizations under section 7115(a) of the
 Statute, particularly in light of the Respondent's delay of seven and
 eight months, respectively, in processing their requests immediately
 prior to enactment of the Statute, must be found to constitute
 unreasonable delays in the circumstances of this case.
 
    Accordingly, having found that the Respondent 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
 Respondent to reimburse the Union in an amount equal to the dues that
 the Union would have received but for the unlawful failure to timely
 honor the employees' valid dues withholding authorizations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Authority hereby orders that the Department of Health and
 Human Services, Social Security Administration, Chicago, Illinois,
 shall:
 
    1.  Cease and desist from:
 
    (a) Failing to timely honor the written dues withholding
 authorizations of Mary Bahlert and Edward Lesperance and to remit their
 union dues to the American Federation of Government Employees, Local
 1346, AFL-CIO, as required by the provisions of section 7115(a) of the
 Federal Service Labor-Management Relations Statute.
 
    (b) Failing to honor a valid written dues withholding authorization
 from Mary Moes, or any other unit employee, for the payment of regular
 and periodic dues to the American Federation of Government Employees,
 Local 1346, AFL-CIO, or any other exclusive representative, as required
 by section 7115(a) of the Federal Service Labor-Management Relations
 Statute.
 
    (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) Pay to the American Federation of Government Employees, Local
 1346, AFL-CIO, the union dues of Mary Bahlert and Edward Lesperance for
 the periods January 11, 1979 through February 11, 1979 in the case of
 Bahlert, and January 11, 1979 through March 25, 1979 in the case of
 Lesperance.
 
    (b) Post at its Milwaukee North Wisconsin District Office, Milwaukee
 Teleservice Center Office and Waukesha Wisconsin District Office, 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
 a responsible official of the Respondent and they 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 by the
 Respondent to insure that such 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 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 those allegations of the complaint found
 to be without merit be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., September 30, 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 fail to timely honor the written dues withholding
 authorizations of Mary Bahlert and Edward Lesperance or to remit their
 union dues to the American Federation of Government Employees, Local
 1346, AFL-CIO, as required by the provisions of section 7115(a) of the
 Federal Service Labor-Management Relations Statute.  WE WILL NOT fail to
 honor a valid written dues withholding authorization from Mary Moes, or
 any other unit employee, for the payment of regular and periodic dues to
 the American Federation of Government Employees, Local 1346, AFL-CIO or
 any other exclusive representative, as required by the provisions of
 section 7115(a) of the Federal Service Labor-Management Relations
 Statute.  WE WILL NOT in any like or related manner interfere with,
 restrain, or coerce our employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL pay to the American Federation of Government Employees, Local 1346,
 AFL-CIO, the union dues of Mary Bahlert and Edward Lesperance which we
 failed to withhold for the periods January 11, 1979 through February 11,
 1979 in the case of Bahlert, and January 11, 1979 through March 25, 1979
 in the case of Lesperance.
                                       (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
 questions concerning this Notice or compliance with its provisions, they
 may communicate directly with the Regional Director, Region V, Federal
 Labor Relations Authority, whose address is:  Suite 1359-A, 175 W.
 Jackson Boulevard, Chicago, Illinois 60604, and whose telephone number
 is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 5-CA-90
 
    Edward L. Koven, Esquire
    Ms. Katherine Luntz
          For the Respondent
 
    Charles R. Prock, Esquire
    Gregory A. Miksa, Esquire
         For the General Counsel
 
    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, 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 amended charges first filed on April 17, 1979, by Local
 1346, American Federation of Government Employees, (hereinafter called
 the Union or AFGE), a Complaint and Notice of Hearing was issued on
 December 11, 1980, by the Acting Regional Director for Region V, Federal
 Labor Relations Authority, Chicago, Illinois.  The Complaint alleges
 that the Department of Health and Human Services, Social Security
 Administration, Chicago, Illinois, (hereinafter called the Respondent or
 SSA), violated Sections 7116(a)(1) and (8) of the Federal Service
 Labor-Management Relations Statute, (hereinafter called the Statute),
 and Sections 19(a)(1), (5) and (6) of Executive Order 11491, as amended,
 (hereinafter called EO 11491), by virtue of its actions in (1) failing
 to process and/or honor the dues withholding requests of Ms. Mary
 Bahlert and Mr. Edward Lesperance and (2) unilaterally terminating Ms.
 Mary Moes dues withholding because of her entrance into Respondent's
 Management Intern Program.
 
    A hearing was held in the captioned matter on February 2, 1981, in
 Milwaukee, Wisconsin.  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 General Counsel and the
 Respondent submitted post-hearing briefs which have been duly
 considered.
 
    Upon the basis of the entire record, /6/ including my observation of
 the witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union was certified on March 21, 1978, as the exclusive
 representative of Respondent's non-managerial employees working in the
 District Office located in Waukesha, Wisconsin.  Thereafter, on April
 26, 1978, the Respondent and the Union entered into a dues withholding
 agreement which provided in pertinent part as follows:
 
    B.  Remittances and Reports
 
          1.  The Union will advise the Local Labor relations Officer, in
       writing, of the name and complete address of the person or office
       authorized to receive remittances and reports.  The LLRO will in
       turn submit HEW Form 610 to the Division of Central Payroll
       transmitting such information.  Remittances will be made directly
       to the person designated in writing by the Union.  /7/
 
    Although the exact dates of recognition are not set forth in the
 record, it appears that at all times material herein, the Union was also
 (1) the exclusive representative for the non-managerial employees
 working in Respondent's Milwaukee North and Teleservice Center
 installations and (2) a party to a number of dues withholding
 agreements.  Pursuant to the dues withholding agreements, Ms. Deborah
 Stoecker had been designated remittance official for some eight separate
 offices of Respondent.  Further, according to the record, Ms. Stoecker
 had held such position since 1977.
 
    On May 12, 1978 and May 14, 1978, respectively, Mary Bahlert and
 Edward Lesperance, both Waukesha unit employees, signed dues withholding
 authorization forms.  Thereafter, on May 24, 1978, Mr. William McKillen,
 President of Local 1346, signed both of the forms and forwarded them to
 the Respondent's Region V Personnel Office located in Chicago, Illinois.
  The forms were received by the Personnel Office on May 26, 1978, and
 assigned account number 432 by Ms. Cynthia Soltes, Respondent's Labor
 Relations Office located in Chicago.  The forms were then submitted to
 Respondent's central payroll division on June 8, 1978, to be effective
 on June 18, 1978.
 
    Having failed to receive dues for Ms. Bahlert and Mr. Lesperance by
 the first pay period in August 1978, Mr. McKillen contacted the Regional
 Personnel Office and spoke to a Miss Linda Thompson who "verified" to
 him that the dues withholding had been "input" into the computer, but
 could offer no explanation for the non-acceptance of the dues
 withholding.  Ms. Thompson assured Mr. McKillen that there had been no
 mistake on the part of the Union and that she would "input" again.  When
 the dues for Ms. Bahlert and Mr. Lesperance still were not forthcoming,
 Mr. McKillen again spoke to Ms. Thompson in the latter part of August.
 Ms. Thompson who was perplexed by the situation, told Mr. McKillen that
 she would again "input" the dues withholding for Ms. Bahlert and Mr.
 Lesperance.
 
    On September 6, 1978, after still not receiving Ms. Bahlert and Mr.
 Lesperance's respective dues, Mr. McKillen telephoned Ms. Katherine
 Luntz, a Labor Relations Specialist in Respondent's Chicago Regional
 Personnel Office and inquired about the matter.  Ms. Luntz reviewed the
 records and then informed Mr. McKillen that the problem appeared to be
 the Union's failure to submit a letter designating the remittance
 official for the Waukesha unit.  Mr. McKillen expressed surprise at Ms.
 Luntz revelation since Ms. Deborah Stoecker had been the only remittance
 official listed in numerous other agreements between the Respondent and
 the Union concerning dues withholding.  Mr. McKillen informed Ms. Luntz
 that Ms. Stoecker would be the remittance official for the Waukesha
 unit.  Later that afternoon, Mr. McKillen sent a letter to Ms. Cynthia
 Soltes wherein he informed her that Ms. Stoecker was the remittance
 official for the Waukesha unit and that she, Ms. Stoecker, had a new
 address.  The new address was 1642 Bolivan, Apt. 4, Milwaukee,
 Wisconsin.  Ms. Stoecker's previous address had been 3655 S. 20th St.,
 Milwaukee, Wisconsin.  According to Mr. McKillen, while he had orally
 informed Ms. Luntz of the remittance official, he did not orally inform
 her of the remittance official's new address.  /8/
 
    Based upon Mr. McKillen's oral promise to submit the name of the
 remittance official in writing, Ms. Soltes, who had been informed by Ms.
 Luntz of her telephone conversation with Mr. McKillen, again inputted on
 October 18, 1978, Account Number 432 for the Waukesha unit.  According
 to Ms. Soltes, Account Number 432 was established effective October 24,
 1978.  /9/
 
    Effective November 19, 1978, Mr. Lesperance left the Waukesha unit
 and began working in the Milwaukee North unit, which was also
 represented by the Union and had been assigned Account No. 353 for the
 withholding of union dues.  Admittedly, the Union did not advise the
 local labor relations officer of the transfer.  However, according to
 the uncontested testimony of Mr. McKillen there was no necessity for
 such notice since Mr. Lesperance's dues withholding authorization was
 applicable to both units.
 
    On January 9, 1979, Respondent's Local Labor Relations Office again
 submitted a request to the Central Payroll computer to start dues
 withholding for Mr. Lesperance and Ms. Bahlert.  When the dues were
 still not withheld, the Local Labor Relations Department again
 resubmitted another request to Central Payroll to effectuate the dues
 withholding for Ms. Bahlert.  Mr. Lesperance was not included in the
 aforementioned request, according to Ms. Soltes, since he had
 transferred out of the Waukesha unit and did not fall within Account No.
 432.  Subsequently, the withholding for Ms. Bahlert was accepted by the
 computer on February 11, 1979, and dues withholding for Ms. Bahlert
 began for the payroll period ending February 24, 1979.
 
    On March 21, 1979, the Local Labor Relations Department resubmitted a
 request for dues withholding for Mr. Lesperance who then was assigned to
 the Milwaukee North Office.  Although not clear from the record, it
 appears that dues withholding for Mr. Lesperance were affectuated as of
 March 25, 1979.
 
    Ms. Mary Moes began working for the Respondent as a contact or
 "Teleservice" representative in December 1976.  She signed a dues
 withholding authorization form on October 27, 1977.  Pursuant to the
 dues withholding authorization, union dues were withheld from her salary
 and remitted to the Union, the unit representative, through September
 1979.  Thereafter, due to the fact that Ms. Moes had been accepted into
 Respondent's Management Intern Program on September 9, 1979, Respondent
 unilaterally and without prior notice to Ms. Moes or the Union ceased
 withholding and remitting Ms. Moes' union dues.
 
    The Management Intern Program is designed to train employees for
 management or staff positions.  Upon selection for the program, the
 employee's official personnel file is transferred to Respondent's main
 office in Baltimore, Maryland, and the slot occupied by such intern and
 the money to pay same are both charged to the Baltimore office.  A
 separate development plan is prepared for each management intern.  The
 development plan outlines how the newly selected intern will progress
 towards the targeted management position.  Mr. Jimmie Roberts, who was a
 Training Specialist in Chicago and had the responsibility for
 administering the Management Intern Program, met with Ms. Moes in
 September of 1979 and they then mutually developed an initial individual
 development plan for Ms. Moes.  Inasmuch as Ms. Moes had an eyesight
 problem, Respondent, contrary to past practice, decided to confine Ms.
 Moes to offices in the Milwaukee area rather than assign her to other
 geographical areas throughout the United States.
 
    Following her selection for the Management Intern Program, Ms. Moes
 continued to work in the Teleservice Office until September 12, 1979,
 when she went to the Baltimore, Maryland, for one week of orientation.
 Thereafter, she returned to the Teleservice Center and performed her
 usual duties until October 1, when she was assigned to a nine week
 claims representative trainee program at Respondent's Milwaukee South
 Office.  From October 1 through approximately December 19, 1979, Ms.
 Moes engaged in classroom and on-the-job training.  Both Claims
 Representatives and Claims Representatives Trainees fall within the
 Union's certified bargaining unit.
 
    From December 19, 1979, through June 14, 1980, Ms. Moes worked at the
 Milwaukee Vliet Street Office, a branch of Milwaukee South, as a Claims
 Representative Trainee.  In such position, she performed essentially the
 same work as other rank and file employees who were classified as Claims
 Representatives and Claims Representatives Trainees.  The only
 difference in her job was that for three hours per week she trained some
 six newly hired development clerks.  Because of this latter work, Ms.
 Moes worked under a different supervisor than her fellow Claims
 Representative Trainees.
 
    On June 14, 1980, Ms. Moes became the Acting Area Administrative
 Assistant in the Area Director's office, a position that was,
 concededly, a management position outside the certified unit.
 
                        DISCUSSION AND CONCLUSIONS
 
    Respondent, with the exception of denying receipt of Mr. McKillen's
 letter of September 6, 1978, designating Ms. Stoecker as remittance
 official, does not dispute the foregoing recitation of facts.  However,
 Respondent takes the position that the Complaint should be dismissed on
 a number of alternate grounds.  Thus, Respondent defends its actions in
 failing to timely remit the dues of Mr. Lesperance and Ms. Bahlert on
 the Union's failure to comply with the withholding agreement and submit
 in writing the name of the remittance official.  Additionally,
 Respondent urges dismissal of this aspect of the Complaint on the
 grounds that a contract breach due to inadvertence does not constitute
 an unfair labor practice, and that in any event the alleged violations
 were of such a de minimus nature that a remedy is not in order.  With
 respect to Ms. Moes, Respondent takes the position that Ms. Moes became
 a part of management on September 9, 1979, and, that in any event, the
 violation with respect to her was, at best, also de minimus.
 
    With respect to Ms. Moes, I find, contrary to the contention of
 Respondent, that the appointment or selection of Ms. Moes to the
 Management Intern Program on September 9, 1979, did not serve to remove
 her from the unit.  Thus, it has been held that position description or
 job title alone, is an insufficient basis for determining whether or not
 a particular employee falls within the recognized unit.  Department of
 the Navy, Naval Training Center, San Diego, A/SLMR No. 1121, and cases
 cited therein.
 
    Inasmuch as the record indicates that Ms. Moes continued, at least
 until June 14, 1980, to perform duties similar if not identical to those
 performed by her fellow unit employees, she was entitled to remain in
 the unit and have her dues withheld and remitted to the Union in
 accordance with her existing dues withholding authorization.  The
 selection for the management intern program and attendant ramifications,
 i.e. transfer of her personnel records, payroll records and employment
 slot to the Respondent's office in Baltimore, does not alter this
 conclusion.  It is the place of work, type of duties and supervision,
 etc., which controls the determination of unit eligibility.
 Accordingly, inasmuch as Ms. Moes performed no supervisory or
 confidential functions until June 14, 1980, when she was then made
 Acting Administration Assistant, I find that Respondent violated
 Sections 7116(a)(1) and (8) of the Statute when it ceased deducting and
 remitting Ms. Moes dues during the period September 9, 1979 through June
 14, 1980.  Cf. Department of the Treasury, Bureau of Engraving and
 Printing, 4 FLRA No. 6, wherein trainees for supervisory positions were
 found to be unit employees while performing unit work.
 
    Further, inasmuch as unions cannot effectively exist without the
 monetary support derived from the modest membership dues in effect for
 the Government sector, I find that the failure to deduct and remit union
 dues, irrespective of the monetary amount involved, constitutes more
 than a de minimus violation of the Statute.
 
    Turning now to Respondent's failure to deduct and remit the dues of
 Mr. Lesperance and Ms. Bahlert, I find that since on or about September
 6, 1978, through February 11, 1979 in the case of Ms. Bahlert, and March
 25, 1978, in the case of Mr. Lesperance, Mr. Lesperance and Ms. Bahlert
 were entitled to have their respective union dues deducted and remitted
 to the Union.  /10/
 
    In reaching the above conclusion I credit the testimony of Mr.
 McKillen that on September 6, 1978, he addressed a letter to Respondent
 at 300 S. Wacker Drive, 31st Floor, Attention "llro" and informed
 Respondent in such letter of not only the name of the remittance
 official but a new change of address for the remittance official.
 Further according to Mr. McKillen's uncontradicted testimony on the
 point, this was the first and only time that he informed Respondent of
 the change of address for Ms. Stoecker, who had been the remittance
 official for a number of the Union's recognized units for many years.
 The record reveals that Respondent inputted the change in Ms. Stoecker's
 address on October 18, 1978.  Accordingly, in the absence of any
 evidence indicating that Respondent received Ms. Stoecker's change of
 address from any source other than Mr. McKillen's letter of September 6,
 1978, I must, and do, conclude that Respondent, contrary to the
 testimony of Ms. Soltes, did receive Mr. McKillen's September 6, 1978
 letter.
 
    Inasmuch as the letter of September 6, 1978, fulfilled the
 obligations imposed upon the Union by the dues withholding agreement
 entered into pursuant to Section 21 of Executive Order 11491, as
 amended, the Respondent was under an obligation to deduct and remit the
 dues of Mr. Lesperance and Ms. Bahlert.  Having failed to do so until
 March 25, 1979, and February 11, 1979, respectively, Respondent violated
 the dues withholding agreement.
 
    The General Counsel takes the position that by failing to honor the
 dues withholding agreement prior to January 11, 1979, when the Statute
 became effective, intentionally or otherwise, Respondent violated
 Section 19(a)(1), (5) and (6) of the Executive Order.  For the reasons
 set forth below, I cannot agree.
 
    While there is no doubt that a breach of contract occurred herein, it
 is equally clear that the breach was not intentional but rather
 predicated upon a breakdown in communications between the Respondent's
 Labor Relations Office and the computer.  This is evidenced by the fact
 that the Labor Relations Office did on numerous occasions, send the
 necessary papers for inputting the dues deductions of Mr. Lesperance and
 Ms. Bahlert to the computer.  However, for some unexplained reason the
 instructions were never recorded in the computer and acted upon.
 
    In view of the foregoing, I cannot conclude, as urged by the General
 Counsel, that Respondent's actions prior to January 11, 1979, when the
 Statute became effective, constituted violations of Sections 19(a)(1),
 (5) and (6) of Executive Order 11491, as amended.  All breaches of
 contract do not constitute an unfair practice.  General Service
 Administration, Region 5, Public Building Service, Chicago Field Office,
 A/SLMR No. 528, 5 A/SLMR 424.  It is only those contract breaches which
 are of a clear and flagrant nature that rise to the level of an unfair
 labor practice.  Watervliet Arsenal, U.S. Army Armament Command,
 Watervliet, N.Y., A/SLMR No. 726;  6 A/SLMR 526.  Although not
 specifically stated, it appears that the rationale behind a 19(a)(1),
 (5) and (6) finding predicated on a patent, blatant and flagrant breach,
 is that such action makes the collective bargain agreement a nullity and
 in turn denigrates the Union's representational status.  Here, the
 contract breach was unintentional and based upon a communications
 breakdown between the Labor Relations Office and the computer.
 Accordingly, I find that the Union's remedy for the contract breach here
 involved is through either the grievance machinery or the appropriate
 courts.  Accordingly, I shall dismiss that portion of the Complaint
 which is predicated on the failure of Respondent to withhold and remit
 the dues of Mr. Lesperance and Ms. Bahlert prior to January 11, 1979,
 when the Statute became effective.
 
    On January 11, 1979, the Statute became effective and the withholding
 of dues, pursuant to Section 7115, became a mandatory obligation rather
 than a permissive contractual obligation.  Accordingly, an agency's
 failure to honor an employee's written dues withholding authorization
 would clearly be violative of Sections 7116(a)(1) and (8) of the
 Statute.
 
    Inasmuch as Respondent failed to adhere to the obligation imposed by
 Section 7115 during the period January 11, 1979 through February 11,
 1979 in the case of Ms. Bahlert's dues withholding authorization and
 January 11, 1979 through March 25, 1979, in the case of Mr. Lesperance's
 dues withholding authorization, I find that by such actions the
 Respondent violated Sections 7116(a)(1) and (8) of the Statute.
 
    Having found and concluded that the Respondent violated Sections
 7116(a)(1) and (8) of the Statute by virtue of its failure to (1)
 withhold and remit the dues of Ms. Moes during the period September 9,
 1979 - June 14, 1980, (2) withhold and remit the dues of Ms. Bahlert
 during the period January 11, 1979 - February 11, 1979, and (3) withhold
 and remit the dues of Mr. Lesperance during the period January 11, 1979
 - March 25, 1979, I recommend that the Authority issue the following
 order.
 
                                   ORDER
 
    Pursuant to Sections 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 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 Federal Labor Relations Authority hereby orders that
 the Department of Health and Human Services, Social Security
 Administration, Chicago, Illinois, shall:
 
    1.  Cease and desist from:
 
          (a) Failing to honor the written dues withholding
       authorizations of Mary Bahlert, Edward Lesperance and Mary Moes
       and remitting the respective dues of such employees to the
       American Federation of Government Employees, Local 1346, AFL-CIO.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing its employees in the rights assured by
       the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute.
 
          (a) Pay to the American Federation of Government Employees,
       Local 1346, AFL-CIO, the union dues of Mary Moes, Mary Bahlert and
       Edward Lesperance for the periods, September 9, 1979 through June
       14, 1980 in the case of Mary Moes, January 11, 1979 through
       February 11, 1979, in the case of Mary Bahlert, and January 11,
       1979 through March 25, 1979, in the case of Edward Lesperance.
 
          (b) Post at its Milwaukee North Wisconsin District Office,
       Milwaukee Teleservice Center Office and Waukesha Wisconsin
       District Office, 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 posted for 60
       consecutive days thereafter in conspicuous places, including all
       places where notices to employees are customarily posted.  The
       Respondent's managers in the respective locations set forth above
       shall take reasonable steps to insure that such 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, what steps have been
       taken to comply therewith.
 
    It is further Ordered, that those allegations of the Complaint found
 above to be without merit, should be, and hereby are, dismissed.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Dated:  May 19, 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 WILL NOT fail to honor the written dues withholding authorizations of
 Mary Bahlert, Edward Lesperance and Mary Moes and remit the respective
 dues of such employees to the American Federation of Government
 Employees, Local 1346, AFL-CIO.  WE WILL NOT in any like or related
 manner, interfere with, restrain, or coerce our employees in the rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL pay to the American Federation of Government Employees, Local 1346,
 AFL-CIO, the union dues of Mary Moes, Mary Bahlert and Edward Lesperance
 which we failed to withhold for the periods, September 9, 1979, through
 June 14, 1980, in the case of Mary Moes, January 11, 1979, through
 February 11, 1979, in the case of Mary Bahlert, and January 11, 1979,
 through March 25, 1979, in the case of Edward Lesperance.
                                       (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 of Region V, Federal
 Labor Relations Authority, whose address is:  175 West Jackson
 Boulevard, Suite A-1359, Chicago, Illinois 60606;  Telephone No. (312)
 886-3468.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The functions of the Assistant Secretary of Labor for
 Labor-Management Relations under Executive Order 11491, as amended, were
 transferred to the Authority under section 304 of Reorganization Plan
 No. 2 of 1978 (43 F.R. 36040), which transfer of functions is
 implemented by section 2423.1 of the Authority's Rules and Regulations.
 The Authority continues to be responsible for the performance of these
 functions as provided in section 7135(b) of the Statute.
 
 
    /2/ See Department of the Treasury, Bureau of Engraving and Printing,
 4 FLRA 33 (1981).
 
 
    /3/ Section 7115(a) provides in pertinent part:
 
          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 . . . .
 
 
    /4/ Section 7116(a)(1) and (8) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /5/ The Respondent excepted to this and other credibility findings
 made by the Judge.  The demeanor of witnesses is a factor of consequence
 in resolving issues of credibility, and the Judge has had the advantage
 of observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates such resolution
 was incorrect.  The Authority has examined the record carefully, and
 finds no basis for reversing the Judge's credibility findings.
 
 
    /6/ In the absence of objections, Respondent's "Motion to Correct
 Hearing Transcript" is hereby granted.
 
 
    /7/ The aforecited paragraph is a restatement of HEW's Departmental
 Instructions which implement the Federal Personnel Manual.
 
 
    /8/ Ms. Soltes denies receiving Mr. McKillen's letter of September 6,
 1978, which indicated as addressee C. Soltes, LLRO, D.H.E.W. RPO,
 Chicago, Illinois.  According to Mr. McKillen, the envelope containing
 the letter was addressed as follows:  300 South Wacker Drive, 31st
 Floor, Attention:  LLRO.
 
 
    /9/ Also on October 18, 1978, Respondent changes its records to
 reflect Ms. Stoecker's new address.
 
 
    /10/ Inasmuch as dues withholding under Executive Order 11491,
 pursuant to Section 21, was a matter of contract between the agency and
 the labor organization involved, Respondent was under no obligation to
 withhold and remit the dues of the unit employees until such time as the
 Union complied with the terms of the dues withholding agreement.  The
 Union did not perfect the terms of the withholding agreement until
 September 6, 1978, when Mr. McKillen sent the letter to Respondent
 wherein Respondent was informed for the first time in writing of the
 name of the remittance official.  Accordingly, prior to September 6,
 1978, Respondent was not, under the terms of the withholding agreement,
 obligated to withhold and remit the union dues of Mr. Lesperance and Ms.
 Bahlert.