16:0390(63)CA - Health Care Financing Administration and AFGE Local 1923 -- 1984 FLRAdec CA

 16 FLRA No. 63
 
 HEALTH CARE FINANCING ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-40060
 
                            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 complaint alleges that the Health Care Financing Administration
 (Respondent) refused to comply with section 7115(a) of the Statute /1/
 by refusing to honor the written assignment authorizing Respondent to
 deduct dues from the pay of Mr. James Young, as requested by the
 American Federation of Government Employees, Local 1923, AFL-CIO (AFGE),
 and thereby violated section 7116(a)(1) and (8) of the Statute.  /2/
 
    On August 21, 1980, the American Federation of Government Employees,
 AFL-CIO was certified as the exclusive representative of a consolidated
 unit of professional and nonprofessional employees at Respondent's
 Headquarters.  At all times material herein, the AFGE has been the
 designated agent of the American Federation of Government Employees,
 AFL-CIO for handling collective bargaining issues arising within the
 Respondent's Baltimore, Maryland location.  On or about October 25,
 1983, the AFGE received from Mr. James Young a written assignment
 authorizing the Respondent to deduct from Mr. Young's pay amounts for
 the payment of regular and periodic dues to the AFGE.  On November 7,
 1983, Respondent received from the AFGE a written assignment authorizing
 Respondent to deduct from Mr. Young's pay amounts for the payment of
 regular and periodic dues to the AFGE.  Respondent refused to honor said
 assignment on November 8, 1983, and continues to refuse to make
 appropriate allotments to the AFGE pursuant to the assignment claiming
 that Mr. Young is a management official within the meaning of section
 7103(a)(11) of the Statute and therefore is not a member of the
 bargaining unit.
 
    At all times material herein, Mr. Young has been employed by
 Respondent as a Review Board Advisor, GS-950-14 for the Provider
 Reimbursement Review Board.  The Board is an administrative body
 comprised of five Board members which adjudicates disputes between the
 provider of services, such as hospitals and health maintenance
 organizations, and the Medicare program when the amount of the disputed
 reimbursement exceeds $10,000.  Mr. Young's duties include:  (1) the
 promotion of settlements between the parties prior to a hearing;  (2) in
 hearings from the Board, presentation of positions of both parties and
 recommendations as to findings;  (3) in preparation for hearings,
 drafting of written summaries for each case;  (4) the preparation of
 written draft opinions of the Board;  (5) making recommendations to the
 Board concerning proposed changes in Medicare law and regulations;  and
 (6) giving interpretations of the law and regulations to the Board.  Mr.
 Young does not have the authority to take final action on the
 disposition of appeals, but rather makes recommendations to the Board
 and prepares draft decisions which are reviewed and edited by the Board
 prior to issuance.  The Board makes all final decisions on appeal cases.
 
    The Respondent contends that Young is a management official within
 the meaning of section 7103(a)(11) of the Statute /3/ and thus is not
 entitled to dues withholding under the meaning of section 7115(a) of the
 Statute.  In the lead case of Department of the Navy, Automatic Data
 Processing Selection Office, 7 FLRA 172 (1981), the Authority
 interpreted the statutory definition of "management official" to include
 those individuals who:  (1) create, establish or prescribe general
 principles. plans, or courses of action for an agency;  (2) decide upon
 or settle upon general principles, plans or courses of action for an
 agency;  or (3) bring about or obtain a result as to the adoption of
 general principles, plans or courses of action for an agency.  Applying
 these criteria to the instant case, the Authority finds that Young is
 not a management official.  Thus, the record establishes that Young has
 no authority to make final decisions on cases but merely makes
 recommendations and prepares draft decisions which are reviewed and
 edited prior to issuance;  that in presenting interpretations of the law
 and regulations to the Board, he is merely following the policy
 formulated by others and that he only makes recommendations concerning
 proposed changes of Medicare laws and regulations and has no authority
 to make such changes.  Based on the above, the Authority finds that Mr.
 Young is a highly trained professional whose actions assist in
 implementing, as opposed to shaping, the Respondent's overall policies.
 Thus, the record is clear that he does not exercise any duties or
 responsibilities which require or authorize him to formulate, determine,
 or influence the policies of the Activity within the meaning of section
 7103(a)(11) of the Statute.
 
    The Authority has held that an agency's determination that an
 employee is a supervisor or management official for purposes of coverage
 under the merit pay provisions of the Civil Service Reform Act of 1978
 has no impact on such employee's inclusion in or exclusion from a unit
 of exclusive recognition under section 7112 of the Statute.  In this
 regard, the Authority has held in Interpretation and Guidance, 4 FLRA
 754, 757, (1980), that an agency acts at its own peril in removing an
 employee from a unit of exclusive recognition simply because of its
 determination that such employee is a supervisor or management official.
  Thus, as the Authority finds that Mr. Young is not a management
 official, the Respondent's failure to honor his dues allotment
 constitutes a violation of section 7116(a)(1) and (8) of the Statute.
 See Department of Health and Human Services, Social Security
 Administration, Chicago, Illinois, 13 FLRA No. 45 (1983);  and
 Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force
 Base, Texas, 9 FLRA 394, 396 (1982), enforcement denied in other
 respects sub nom. AFGE Local 1816 v. FLRA (Goodfellow Air Force Base,
 Texas) 715 F.2d 224 (5th Cir. 1983).
 
    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 Respondent to
 reimburse AFGE in an amount equal to the dues that it would have
 received but for the refusal of Respondent to honor the dues
 authorization of Mr. James Young.
 
                                   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 Health Care Financing Administration, 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 honor
 the dues authorization of Mr. James Young.
 
    (b) In any like or related manner interfering with, restraining or
 coercing any employee in the exercise of any rights 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
 1923, AFL-CIO, in an amount equal to the regular and periodic dues it
 would have received but it did not receive as a result of the unlawful
 refusal to honor the dues authorization of Mr. James Young.
 
    (b) Post at all facilities of the Health Care Financing
 Administration, 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 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 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., November 7, 1984 
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, 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
 honor the dues authorization of Mr. James Young.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce any employee in the exercise of any rights assured by the
 Statute.
 
    WE WILL reimburse the American Federation of Government Employees,
 Local 1923, 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
 refusal to honor the dues allotment of Mr. James Young.
                                       (Agency or Activity)
 
    Date:  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 III, Federal Labor Relations Authority whose address
 is:  1111 18th Street, Rm. 700, P.O. Box 33758, Washington, D.C.
 20033-0758 and whose telephone number is:  (202) 653-8456.
 
 
 
 
 
 
 --------------- 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/ Section 7103(a)(11) of the Statute defines a "management
 official" as:
 
          . . . an individual employed by an agency in a position the
       duties and responsibilities of which require or authorize the
       individual to formulate, determine, or influence the policies of
       the agency . . . .