13:0625(104)CA - HHS, SSA and AFGE -- 1984 FLRAdec CA

 13 FLRA No. 104
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-20286
 
                            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 stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
 
    The amended complaint alleges that the Department of Health and Human
 Services, Social Security Administration, Chicago-Region (the
 Respondent) refused to comply with section 7115(a) of the Statute /1/ by
 failing or refusing to effectuate a change in the amount of dues
 withholding for employees in its South Bend, Kokomo, Indianapolis,
 Richmond and Columbus, Indiana District Offices, as requested by the
 American Federation of Government Employees, Local 3571, AFL-CIO, and
 thereby violated section 7116(a)(1) and (8) of the Statute.  /2/
 
    On August 30, 1979, pursuant to consolidation proceedings, the
 American Federation of Government Employees, AFL-CIO (AFGE) was
 certified as the exclusive representative of the Respondent's
 professional and non-professional employees.  At all times material
 herein, the American Federation of Government Employees, Local 3571,
 AFL-CIO (AFGE Local 3571), has served as an agent of the AFGE for unit
 employees at the South Bend, Kokomo, Indianapolis, Richmond and
 Columbus, Indiana District Offices.  The Respondent and the AFGE are
 parties to a master collective bargaining agreement, which includes a
 provision (Article 6) entitled "Dues Withholding, effective June 11,
 1982, covering unit employees represented by AFGE Local 3571.  Prior to
 the effective date of the master collective bargaining agreement, the
 Respondent and AFGE Local 3571 were parties to an "Agreement for the
 Allotment of Dues," effective October 13, 1977, covering its unit
 employees.  Since 1977, the Respondent has deducted regular dues from
 unit employees who had filed a request for dues withholding.
 
    In June 1981 the AFGE approved changes in AFGE Local 3571's
 constitution in regard to an increase in membership dues, which in
 January 1982 increased by 60 cents per pay period per member.  On
 January 19, 1982, Local 3571 notified the Respondent that the amount of
 dues withholding for its members was being increased from $4.20 to $4.80
 per pay period effective immediately, and requested the Respondent to
 effectuate the change in the amounts submitted to Local 3571
 accordingly.  The Respondent did not effectuate the dues increase.  The
 Local repeated its request for the dues increase on April 28 and June
 28, 1982.  Finally in May 1982 the Respondent effectuated the dues
 increase in two of the five District Offices, South Bend and Kokomo.  On
 October 6, 1982, the AFGE made a fourth request to effectuate the dues
 increase in the remaining three District Offices, i.e., Indianapolis,
 Richmond and Columbus.  The dues increase for the remaining three
 District Offices was effectuated on December 11, 1982.  The parties
 stipulate that the dues increase for the five District Offices should
 have been effected on January 24, 1982.
 
    The General Counsel argues that the Respondent is obligated under
 section 7115(a) of the Statute to honor an employee's written assignment
 to deduct periodic dues, in the amount certified by the exclusive
 representative, and pay such dues to the Union.  It also contends that,
 under section 7115(a) of the Statute, the Respondent has a duty to honor
 dues withholding allotments in a reasonably prompt and effective manner.
  The Respondent takes the position that it complied with section 7115(a)
 of the Statute and noted that there was no indication that the "Agency
 did not do everything administratively possible to comply with the
 Union's request".
 
    The Authority finds that the Respondent failed to honor the
 authorized dues allotment increase in a timely manner, thereby failing
 to comply with the requirements of section 7115(a) of the Statute, which
 provides that an agency is obligated to "honor . . . and make an
 appropriate allotment pursuant to the assignment." Thus, despite three
 specific requests by AFGE Local 3571 for action in two District Offices
 and a fourth request by AFGE for action in three additional District
 Offices, the authorized dues allotment increase was not implemented for
 periods ranging from four to eleven months.  As the Authority concludes
 that this constituted a failure to timely honor the AFG's authorized
 dues allotment increase requests, it constituted a violation of section
 7116(a)(1) and (8) of the Statute.  While the Respondent's failure to
 timely process the dues increase authorized by the employees may have
 been unintentional, the Statute does not require a willful refusal to
 comply with section 7115(a) in order to establish a violation.  /3/
 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 126,
 133 (1981).  In order to accord the statutory mandate its full meaning,
 the employee's decision must be processed expeditiously.  Department of
 Health and Human Services, Social Security Administration, Chicago,
 Illinois, 13 FLRA No. 45(1983).  As the mandate encompasses withholding
 of the authorized amount in a timely manner, it is clear that the
 Respondent violated the Statute herein since there is no question that
 the delay in implementing the authorized increase for four months in one
 instance and eleven months in another was an unreasonable delay in the
 circumstances of this case.  See Department of Health and Human Services
 and Social Security Administration, Region IX, San Francisco,
 California, 12 FLRA No. 58(1982)
 
    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 AFGE Local 3571 in an amount equal to the dues
 that it would have received but for the unreasonable delay in
 implementing its authorized request to increase the appropriate dues
 allotment.
 
                                   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, Social Security
 Administration, Region V, Chicago, Illinois, 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 manner an authorized request to
 increase unit employees' dues allotments.
 
    (c) 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) Reimburse the American Federation of Government Employees, Local
 3571, AFL-CIO, in an amount equal to the regular and periodic dues it
 would have received but did not receive as a result of the unlawful
 delay in implementing AFGE Local 3571's authorized request to increase
 the appropriate dues allotment.
 
    (b) Post at all facilities of the Social Security Administration,
 Region V, Chicago, Illinois, where employees in the bargaining unit are
 located, 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 authorized representatives of the Respondent and
 shall be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including bulletin board 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.
 
    Issued, Washington, D.C., January 13, 1984
 
                                       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 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.
 
    WE WILL NOT interfere with, restrain, or coerce unit employees by
 failing to implement in a timely manner an authorized request to
 increase unit employees' dues allotments.
 
    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 reimburse the American Federation of Government Employees,
 Local 3571, AFL-CIO, in an amount equal to the regular and periodic dues
 it would have received but did not receive as a result of the unlawful
 delay in implementing AFGE Local 3571's authorized request to increase
 the appropriate dues allotment.
                                       (Agency or 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, 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.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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.
 . . .
 
 
    /2/ Section 7116(a) provides in pertinent part:
 
    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(.)
 
 
    /3/ See, e.g., National Archives and Records Service and National
 Archives Trust Board, General Services Administration, Washington, D.C.,
 9 FLRA No. 50(1982), wherein the Authority found that management
 violated section 7116(a)(1) and (8) of the Statute by removing an
 employee from dues withholding in the erroneous belief that the employee
 had become a supervisor.