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.