15:0994(185)CA - Federal Trade Commission and AFGE Local 2211 -- 1984 FLRAdec CA



[ 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