[ v15 p994 ]
15:0994(185)CA
The decision of the Authority follows:
15 FLRA No. 185
FEDERAL TRADE COMMISSION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2211, AFL-CIO
Charging Party
Case No. 3-CA-30397
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, /1/ the
Authority finds: The complaint alleges that the Federal Trade
Commission (Respondent) violated section 7116(a)(1), (5) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by
instituting substantive changes in conditions of employment without
affording the Charging Party, American Federation of Government
Employees, Local 2211, AFL-CIO (the Union), a labor organization holding
national consultation rights, prior notice and a reasonable time in
which to submit its views and recommendations concerning an impending
reduction in force (RIF) affecting the Respondent's regional office
employees, thereby refusing to consult in good faith with the Union and
refusing to comply with the requirements of section 7113 of the Statute.
/2/ The Respondent contends that the Union had never properly been
determined to be entitled to national consultation rights, and thus the
Respondent was under no obligation to comply with the provisions of
section 7113(b)(1) of the Statute; that the RIF and any attendant
impact arising therefrom did not affect conditions of employment of
bargaining unit employees; and that even if a consultation obligation
did exist, the Union, upon receiving prior notice of the RIF, waived its
rights by failing to act in a timely manner.
The Charging Party is the exclusive representative of a unit composed
solely of nonprofessional and technical employees of the Respondent
located in the Washington, D.C. area. On January 29, 1982, Local 2211
was determined to be entitled to national consultation rights, pursuant
to a Report and Findings on Petition for National Consultation Rights in
Case No. 3-NCR-20001, issued by a Regional Director of the Authority.
The Respondent did not avail itself of the opportunity specifically
noted by the Regional Director to file a request for review of the
Regional Director's Report and Findings with the Authority pursuant to
the Authority's Rules and Regulations. /3/
Thereafter, the Union, by letter dated November 30, 1982, stated to
the Respondent that it had come to the Union's attention that a RIF
might occur and that, if one was contemplated, the Union would expect to
be informed of the RIF and be supplied certain information so that it
could "serve notice of a demand to bargain on the procedures that will
be followed to effect the reduction in force and appropriate
arrangements for employees who may be adversely affected." The
Respondent replied on December 7, 1982, stating that it would notify the
Union if such a decision to conduct a RIF were made and give the Union a
reasonable period of time to present its views and recommendations, as
appropriate under the Statute. In January 1983, the Respondent orally
notified the Union that it was experiencing a serious budgetary
shortfall and that some regional office closings and/or reductions in
regional staffing levels might be required. At about the same time, the
Respondent sent a series of budget submissions to the Congress,
proposing to close certain of its regional offices and to reduce its
staffing levels in certain other regional offices. On February 1, 1983,
the Respondent sent a letter to the Union stating that "The Commission
will close offices in . . . and reduce the staff in . . . pending
consultations with Congress." The letter supplied the Union with the
numbers of separations and reductions that would be involved and
explained the proposed procedures dealing with voluntary early
retirement, reassignment, competitive areas and retention registers.
Accompanying the letter were copies of news releases explaining the
Commission's vote, and a copy of a detailed examination into the
budgetary considerations submitted to the Commissioners by its Executive
Director. On February 9 and 24, 1983, the Respondent was notified by
Congress that its proposal to close regional offices was disapproved,
but that it could reduce staffing levels within certain discretionary
limits, provided that the affected employees were offered transfers to
other offices. On March 1, 1983, the Respondent sent a letter to the
Union stating that "On February 28, 1983, the decision was made to
conduct a reduction in force in seven regional offices. The effective
date of the RIF is April 9, 1983." This letter was accompanied by a copy
of the Respondent's detailed decision. During the period from March 2 -
March 4, 1983, RIF notices were served upon those employees who were to
be separated from their regional office jobs; the right to transfer to
the Respondent's Headquarters office was offered to all. On March 11,
1983, the Union responded, stating, inter alia, that "It is our
conclusion that this RIF is a final agency action. It therefore
violates our right of national consultation . . . we are filing a charge
of an unfair labor practice." The parties stipulated that "At no time
did the Union submit comments to Respondent as to the reorganization and
reductions in force . . . ," and that "No employees of Respondent's
Washington, D.C. Headquarters, for whom the Union is the currently
certified representative, were affected by the reorganization plan or
reductions in force. . . "
In the Authority's opinion, the Respondent fulfilled its obligation
to inform the Union of proposed substantive changes in conditions of
employment and to permit the Union reasonable time to present its views
and recommendations as required pursuant to section 7113 of the Statute.
Thus, on February 1, 1983, the Respondent gave the Union written notice
of its proposed decision, and the Union had been aware from that time on
of the Respondent's plans. Accordingly, the Respondent's February 1,
1983 letter to the Union satisfied the Respondent's section 7113(b)(1)
obligation to inform the Union "of any substantive change in conditions
of employment proposed by the agency . . . ," and we find that the Union
had a reasonable time to present its views and recommendations prior to
the Respondent's final decision of February 28, 1983. As the Union did
not present any views or recommendations prior thereto, the Authority
concludes that the Respondent did not fail to comply with section
7113(b) of the Statute. Therefore, we shall dismiss the complaint. /4/
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-30397 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ As the Charging Party's brief was untimely filed, it has not been
considered by the Authority.
/2/ Section 7113(b)(1) provides that:
(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of this
section shall--
(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
(B) be permitted reasonable time to present its views and
recommendations regarding the changes.
/3/ See section 2426.2(b)(3)(vii) and section 2422.6(d) of the
Authority's Rules and Regulations.
/4/ In view of this conclusion, we find it unnecessary to pass upon
the Respondent's remaining contentions.