WASHINGTON, D.C.
|
U.S. DEPARTMENT OF ENERGY, WASHINGTON, D.C.
and NATIONAL TREASURY EMPLOYEES UNION Charging Party |
WA-CA-80228 |
Aleshia Duncan Representative of the Respondent
Eileen Hennessey Counsel for the Charging Party
Patricia Armstrong Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
The consolidated unfair labor practice complaint alleges that the Respondent failed and refused to comply with section 7115(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7115(a), and thereby violated section 7116(a)(1) and (8) of the Statute, by failing to process the SF-1187 dues withholding requests of six bargaining unit employees and by discontinuing the dues withholding of sixteen other bargaining unit employees.
By Order dated August 17, 1998, the Chief Administrative Law
Judge granted the Respondent's motion for an extension of time
within which to file its answer to the complaint. The Chief
Administrative Law Judge extended the Respondent's time for filing
an answer to August 26, 1998. The Respondent did not file an answer
within the required period.
On August 31, 1998, Counsel for the General Counsel moved for
summary judgment and supported the motion by reference to section
2423.20(b) of the Authority's Rules and Regulations. 5 C.F.R. §
2423.20(b)(1997). Section 2423.20(b) provides that "[a]bsent a
showing of good cause to the contrary, failure to file an answer or
respond to any allegation shall constitute an admission."
The Respondent did not show good cause for failing to file an
answer, but did respond to the motion for summary judgment on
September 3, 1998, in part, as follows:
The agency is in agreement with this Motion. We have been
working to resolve this matter. Specifically, we have returned
all employees to bargaining unit status and transmitted
retroactive payment for dues owed for all employees named in
the complaint, with one exception. I am working with the
respective parties in the agency to complete payment for the
last employee.
The agency will continue to update Ms. Armstrong and Ms.
Hennessey, National Treasury Employees Union, on our efforts
to resolve this matter.
Efforts to resolve the matter by settlement were unsuccessful.
The Respondent failed to participate in a scheduled prehearing
conference held on September 2, 1998 pursuant to section 2423.24(d)
of the Authority's Rules and Regulations.
Based on the allegations of the complaint, the admissions by
operation of section 2423.20(b) of the Authority's Rules and
Regulations, and all the pleadings and exhibits, it appears that
there are no genuine issues of material fact and that the General
Counsel is entitled to summary judgment as a matter of law.
See U.S. Department of Treasury, Customs Service,
Washington, D.C. and Customs Service, Region IV, Miami,
Florida, 37 FLRA 603, 610 (1990). Accordingly, I make the
following findings of fact, conclusions of law, and
recommendations.
The Respondent, the U.S. Department of Energy, Washington,
D.C., is an agency under 5 U.S.C. § 7103(a)(3).
The Charging Party, the National Treasury Employees Union, a
labor organization under 5 U.S.C. § 7103(a)(4), is the certified
exclusive representative of a unit of employees appropriate for
collective bargaining at the Respondent.
Chapter 228 is an agent of the Charging Party for representing
bargaining unit employees at Respondent's Germantown, Maryland
facility. Chapter 213 is the agent of the Charging Party for
representing bargaining unit employees at the Respondent's
Headquarters facility in Washington, D.C.
On the dates specified opposite their names, Chapter 228 submitted a completed SF-1187, dues withholding request, to the Respondent for each of the following employees in the bargaining unit.
Name Date SF-1187
Phillip Altomare 2/28/97
Lydia Chang 7/9/97
Gene Chou 7/24/97
Jonathan Kang 8/8/97
Ram Lahoti 8/13/97
Joseph Payer 7/8/97
On October 21, 1997, Chapter 228 renewed its request to Respondent to commence dues withholding for Phillip Altomare, Lydia Chang, Gene Chou, Jonathan Kang, Ram Lahoti, and Joseph Payer.
Since the dates of submission of the SF-1187s by the employees
listed above until the date of the complaint (June 12, 1998), the
Respondent has failed and refused to process the dues withholding
requests.
During the time period specified opposite their names, the following employees in the bargaining unit had their dues withholding discontinued by the Respondent.
Name Date Dues Date
Dues
Withholding Withholding
Discontinued Resumed
Karen E. Alozie 1/18/97 9/28/97
Veronica Bellamy 1/18/97 9/28/97
Deborah D. Black 1/18/97 9/28/97
Deborah Collins 1/18/97 9/28/97
Shirley Derflinger 1/97 9/28/97
Larry Dewey 1/18/97 9/28/97
Dan Funk 1/97 9/28/97
Henry Himpler 4/97 1/18/98
Suzanne Iannucci 1/97 9/28/97
Marvin Mielke 1/97 9/28/97
Genoa Mitchell III 1/97 9/28/97
Bonny Overton 1/18/97 Present
Edward Rizkalla 6/97 1/98
Janet Smith 1/18/97 9/28/97
Lillian Walker 1/18/97 9/28/97
William Weaver 1/97 1/18/98
The Respondent and Charging Party's collective agreement became
effective on August 7, 1996 for a period of three years. Article 9
of the collective bargaining agreement is entitled "Dues
Withholding." Section 9.11(C) provides, in pertinent part, that
"[w]hen the employer fails to commence dues withholding in a timely
manner, or otherwise fails to remit dues owed, the employer will
pay the full amount to the NTEU and recoup the funds from the
employee's salary through an adjustment subject to the employee's
right to seek waiver of overpayment."
Section 7115(a) of the Statute provides that "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." The Authority has interpreted this provision of the
Statute as an "absolute duty on agencies to honor the current
assignments of unit employees by remitting regular and periodic
dues deducted from their accrued salaries to their exclusive
representatives." Lowry Air Force Base, Denver , Colorado,
31 FLRA 793, 797 (1988). An agency's obligation under section 7115
is mandatory and nondiscretionary. American Federation of
Government Employees, Council 214 v. FLRA, 835 F.2d 1458 (D.C.
Cir. 1987). An agency must process dues assignments expeditiously.
Department of Justice, United States Attorney's Office, Los
Angeles, California, 17 FLRA 1005, 1006 (1985) (citing Department
of Health and Human Services, Social Security Administration, 13
FLRA 625 (1984) and Department of Health and Human
Services and Social Security Administration, Region IX, San
Francisco, California, 12 FLRA 250 (1983)). An agency's
failure to honor an employees for dues checkoff under section 7115
constitutes a violation of section 7116(a)(1) and (8) of the
Statute. See Defense Logistics Agency, 5 FLRA 126, 132-33
(1981).
In the instant case, the Respondent failed to process the
SF-1187 submitted by employees Phillip Altomare, Lydia Chang, Gene
Chou, Jonathan Kang, Ram Lahoti and Joseph Payer. The Respondent
also unilaterally discontinued dues withholding for the following
bargaining unit employees: Karen Alozie, Veronica Bellamy, Deborah
Black, Deborah Collins, Shirley Derflinger, Larry Dewey, Dan Funk,
Henry Himpler, Suzanne Iannucci, Marvin Mielke, Genoa Mitchell III,
Bonny Overton, Edward Rizkalla, Janet Smith, Lillian Walker and
William Weaver. By failing to deduct Union dues from the salary of
these unit employees, the Respondent failed to comply with its
obligation to deduct dues allotment under section 7115(a).
Therefore, the Respondent committed an unfair labor practice in
violation of section 7116(a)(1) and (8) of the Statute.
The General Counsel has requested a cease and desist order, an
appropriate posting, and that the Respondent also be required to
reimburse the Charging Party the dues it failed to withhold from
employees during the relevant time period. The remedy requested by
the General Counsel is appropriate. The Authority has long held
that the remedy for failing to comply with section 7115(a) properly
includes a requirement that an agency reimburse a union for the
dues it would have received but did not as a result of the unlawful
conduct. Department of the Navy, Naval Underwater Systems
Center, Newport, Rhode Island, 16 FLRA 1124, 1127 (1984).
I also agree with Counsel for the General Counsel that the
doctrine of sovereign immunity does not apply to prevent the
Respondent from reimbursing the Charging Party. The dues money to
be remitted to the Charging Party was not intended to be from
Government appropriations, but from authorized deductions from
employees' pay pursuant to section 7115 of the Statute. The
Respondent has contractually agreed that in cases where it has
failed to remit or withhold the dues in a timely manner, it will
pay the Charging Party the dues and recoup the funds from the
employees' salary through an adjustment subject to the employees'
right to seek waiver of overpayment. The reimbursement remedy
imposed is consistent with this contractual provision, the Statute,
and Authority precedent.
Based on the above findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.41 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the U.S. Department of Energy,
Washington, D.C. shall:
1. Cease and desist from:
(a) Refusing to comply with the provisions of section 7115 of the Federal Service Labor-Management Relations Statute by refusing to honor or discontinuing valid written assignments from unit employees for the payment of regular and periodic dues to National Treasury Employees Union, the exclusive representative of the unit employees.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of 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 Federal Service Labor-Management
Relations Statute:
(a) Reimburse the exclusive representative, National
Treasury Employees Union, in an amount equal to the regular and
periodic dues it would have received from the pay of employees
named in the Complaint in Case Nos. WA-CA-70333 and
WA-CA-80228.
(b) Commencing with the first pay period after the
date of this Order, deduct regular and periodic dues from the pay
of employees named in the Complaint in Case Nos. WA-CA-70333 and
WA-CA-80228 and any other bargaining unit employee who may in the
future complete a valid written dues assignment for such purpose
and make an appropriate allotment of such dues to the exclusive
representative.
(c) Post at its Headquarters and Germantown, Maryland
facilities 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 Secretary of the Department of
Energy, and shall be posted and maintained for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily are posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by other material.
(d) Pursuant to section 2423.41 of the Authority's
Rules and Regulations, notify the Regional Director of the
Washington Region, Federal Labor Relations Authority, 1255
22nd Street, NW, Suite 400, Washington, DC 20037-1206,
in writing within 30 days of the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, September 28, 1998
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of Energy, Washington, D.C. violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT refuse to comply with the
provisions of
section 7115 of the Federal Service Labor-Management Relations Statute by refusing to honor or discontinuing valid written assignments from bargaining unit employees for the payment of regular and periodic dues to the National Treasury Employees Union, the exclusive representative of the unit employees.
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 reimburse the National Treasury Employees Union in an
amount equal to the regular and periodic dues it would have
received from the pay of employees named in the Complaint in Case
Nos. WA-CA-70333 and WA-CA-80228 who executed valid written dues
assignments but which dues it did not receive as a result of our
unlawful refusal to honor the employees' valid written dues
assignments for such purpose.
(Agency)
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 any of its provisions, they may communicate
directly with the Regional Director of the Washington Region,
Federal Labor Relations Authority, whose address is: 1255
22nd Street, NW, Suite 400, Washington, DC 20037-1206,
and whose telephone number is 202-653-8500.