[ v13 p264 ]
13:0264(45)CA
The decision of the Authority follows:
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.