[ v23 p435 ]
23:0435(63)CA
The decision of the Authority follows:
23 FLRA No. 63
U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT AND U.S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT, KANSAS
CITY REGION, KANSAS CITY, MISSOURI
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL
OF HUD LOCALS, COUNCIL #222
Charging Party
Case Nos. 3-CA-30726-1
37-CA-30523
37-CA-30537(1)
DECISION AND ORDER
1. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the Respondents to the attached Decision of the
Administrative Law Judge. The Charging Party (the Union) filed
cross-exceptions and an opposition to the Respondents' exceptions. The
issue is whether the Respondents, by issuing notices of transfer of
function and of reduction-in-force (RIF) actions to unit employees while
the Federal Service Impasses Panel (the Panel) had before it the
parties' impasse regarding ground rules matters, violated section
7116(a)(1) and (6) of the Federal Service Labor-Management Relations
Statute (the Statute).
II. Background and the Judge's Conclusion
Following an announcement by the Respondents in early 1983 of a
proposed major field reorganization, the Union requested to negotiate
concerning the impact and implementation of the reorganization. The
parties met, but reached an impasse on certain ground rules. The
services of the Panel were invoked, and the Panel asserted jurisdiction.
The Judge found, and it is not disputed, that the Respondents issued
notices of transfer of function and of RIF actions to unit employees
while the Panel had before it the parties' impasse. The Panel, among
other things, ordered the Respondents to extend the effective dates of
certain RIF notices.
The Judge found that the Respondents violated the Statute as alleged.
In so finding, he rejected the Respondents' argument that the costs of
maintaining employees in their then current job functions justified the
position that their action in issuing the notices was consistent with
the necessary functioning of the agency.
III. Positions of the Parties
The Respondents argue first that the Panel was without jurisdiction
to resolve a dispute over negotiation ground rules, and that the Judge
therefore should not have found a violation in the Respondents' alleged
failure to cooperate in the Panel's procedures. They point to the fact
that the Judge did not find them to have bargained in bad faith, and to
the fact that they complied with the Panel's final order.
As to the Judge's remaining findings, the Respondents take issue with
his rejection of their argument as to cost justification. The
Respondents argued before the Judge that maintenance of the status quo
would cost approximately $30,000 a day, plus approximately $300,000 "to
rerun the RIF." The Respondents also assert that the daily costs could
have continued for a very long time because "(i)f the agency refused to
comply" with a Panel decision, the process of resolving the
noncompliance "would normally take several years(.)" Respondents Brief
in Support of Exceptions at 3.
The Union argues generally in support of the Judge's findings and
conclusions, pointing particularly to the fact that lack of good faith
bargaining was not alleged and arguing that costs alone do not relieve
the Respondents of their statutory duty to bargain.
IV. Analysis
In Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, 18 FLRA No. 61 (1985), issued subsequent to the Judge's
decision in this case, the Authority determined that once parties have
reached an impasse in their negotiations and one party timely invokes
the services of the Federal Service Impasses Panel (the Panel), the
status quo must be maintained to the maximum extent possible, that is,
to the extent consistent with the necessary functioning of the agency,
in order to allow the Panel to take whatever action is deemed
appropriate. The Authority further found that, while the foregoing
policy would not preclude agency management from taking action which
alters the status quo to the extent that such action is consistent with
the necessary functioning of the agency, an agency taking such action
would be required to provide affirmative support for the assertion that
the action taken was consistent with the necessary functioning of the
agency if its actions were subsequently contested in an unfair labor
practice proceeding.
We agree with the Respondents that costs are a legitimate factor in
deciding what is necessary for the efficient functioning of an agency.
We find that in the circumstances of this case, however, the Judge was
correct in rejecting the Respondents' specific argument that costs alone
justified their actions. While the amount of the daily costs is not
disputed, the length of time the costs would have continued, conditioned
on an assumption of noncompliance with an unfavorable Panel order, is
purely speculative. The daily costs of retaining the employees subject
to the RIF were to continue at least until the RIF notices became
effective. The record contains evidence that daily costs would have
continued until Congressional approval was received, and therefore those
daily costs may not be attributable solely to the maintenance of the
status quo while awaiting Panel action. In this case, the matter was
resolved by the Panel's designee prior to the original effective dates
of the transfers of function and the RIFs. The Respondents, in
complying with the Panel's final order, extended the effective dates of
the RIF notices, thus actually continuing the daily personnel costs and
also incurring the costs of issuing new notices of some transfers of
function. The costs of rerunning the transfers of function and RIF
actions could have been totally avoided by compliance with the
Respondents' statutory obligation in the first instance. We also note
that, prior to impasse, the Respondents had offered to postpone the
transfers and RIFs and that among the impasse items originally submitted
to the Panel were (1) the completion of bargaining prior to
implementation of any part of the reorganization, and (2) the content
and scope of the notices, particularly the RIF notices, that were to be
sent to unit employees.
Thus, in agreement with the Judge, we find that the Respondents
failed to maintain the status quo to the maximum extent possible, while
an impasse concerning the issuance of those very notices was pending
before the Panel. Accordingly, we agree with the Judge's conclusion
that the Respondents thereby unlawfully failed to cooperate in impasse
procedures by issuing the notices while the dispute was pending. /1/ We
shall therefore order, as did the Judge, that the Respondents not repeat
such unlawful action in the future. In view of the fact that the
Respondents have complied with the Panel's final order, and in the
absence of exceptions to the Judge's order, we find it unnecessary to
require that the Respondents take further action to rerun RIFs or issue
further new notices, or otherwise return to the status quo that existed
prior to the unlawful action taken.
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, /2/ and thus affirms those rulings. The Authority has
considered the Judge's Decision, the exceptions, the opposition and
cross-exceptions, and the entire record, and adopts the Judge's
findings, conclusions and recommended Order. We therefore conclude that
the Respondents, by failing to cooperate in impasse procedures by
issuing notices of transfer of function and notices of RIF while the
dispute was pending before the Panel, violated section 7116(a)(1) and
(6) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the U.S. Department of Housing and Urban
Development and the U.S. Department of Housing and Urban Development,
Kansas City Region, Kansas City, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in impasse proceedings by
issuing notices of transfer of function and/or notices of
reduction-in-force actions while an impasse concerning the impact
and implementation of that reorganization is pending before the
Federal Service Impasses Panel.
(b) In any like or related manner interfering with,
restraining, or coercing their 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) Post at their facilities wherever bargaining unit employees
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 the Secretary, Department
of Housing and Urban Development, or a designee, 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 posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(b) 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 of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., September 25, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, 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 or refuse to cooperate in impasse proceedings by
issuing notices of transfer of function and/or notices of
reduction-in-force actions while an impasse concerning the impact and
implementation of that reorganization is pending before the Federal
Service Impasses Panel.
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.
. . . (Agency or Activity)
Dated: . . . 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, NW., Room 700, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-30726-1
37-CA-30523
37-CA-30537(1)
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Respondent
and
NATIONAL COUNCIL OF HUD LOCALS #222, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
John Kosloske, Esquire
For the Respondent
Joe Goldberg, Esquire
For the Charging Party
Patricia Eanet Dratch, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /3/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether
Respondent's issuance of notices of transfer of function and specific
notices of RIF after the National Council of HUD Locals #222, American
Federation of Government Employees, AFL-CIO (hereinafter referred to as
the "Union") had filed a request for the assistance of the Federal
Service Impasses Panel (hereinafter referred to as "FSIP"), violated
Sections 16(a)(6) and (1) of the Statute. This case was initiated by a
charge filed on August 2, 1983, in Case No. 7-CA-30523 which alleged
violations of Sections 16(a)(1), (5) and (8) of the Statute (G.C. Exh.
1(a); a first amended charge in Case No. 7-CA-30523 filed on November
21, 1983, which alleged violations only of Sections 16(a)(1) and (6); a
charge filed on August 15, 1983, in Case No. 7-CA-30537(1) (G.C. Exh.
1(c)) and a first amended charge in Case No. 7-CA-30537(1) filed on
November 21, 1983 (G.C. Exh. 1(g)), each charge in Case No.
7-CA-30537(1) alleging violation of Sections 16(a)(1) and (6) of the
Statute; Order Consolidating Case Nos. 7-CA-30523 and 7-CA-30537(1),
Consolidated Complaint and Notice of Hearing, for a hearing at a date
and location to be determined, in Case Nos. 7-CA-30523 and 7-CA-30537(1)
issued on November 30, 1983 (G.C. Exh. 1(1); by a Charge filed in Case
No. 3-CA-3072-1 on August 31, 1983, alleging violation of Sections
16(a)(1) and (6) of the Statute; a Complaint and Notice of Hearing in
Case No. 3-CA-30726-1 issued on November 28, 1983, for a hearing on
February 1, 1984 (G.C. Exh. 1(j); by Order dated November 30, 1983
(G.C. Exh. 1(m)) Case Nos. 7-CA-30523 and 7-CA-30537(1) were transferred
to Region III; by Order dated December 16, 1983, Case Nos. 7-CA-30523,
redesignated as Case No. 37-CA-30523, and 7-CA-30537(1), redesignated as
Case No. 37-CA-30537(1), were Consolidated with Case No. 3-CA-30726-1
for hearing on February 1, 1984, pursuant to which a hearing was duly
held on February 1, 1984, in Washington, D.C. before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. At the close of the hearing,
March 2, 1984, was fixed as the date for filing post-hearing briefs,
which time was subsequently extended, upon timely motion of Respondent,
to which the other parties did not object, for good cause shown, to
April 2, 1984. Respondent, the Union and the General Counsel each
timely filed an excellent brief on April 2, 1984, which have been
carefully considered. Upon the basis of the entire record, /4/ I make
the following findings and conclusions:
Findings
1. At all times material, the Union was the designated agent of the
American Federation of Government Employees, AFL-CIO, the exclusive
representative of two consolidated units consisting of approximately
9,000 of Respondent's nonprofessional and professional employees. At
all times material, Respondent and the Union have been parties to a
collective bargaining agreement (Jt. Exh. 1), which expired on November
10, 1982, but which the parties agree continued to govern (Tr. 7-8).
2. On February 22, 1983, Respondent announced a proposed major field
reorganization (46 F.R. 7562 (1983), Res. Exh. 5) pursuant to which
Respondent's field organization would be restructured and the field
staff reduced.
3. The Union requested negotiations concerning the impact and
implementation of the proposed reorganization and reduction-in-force and
on, or about, June 17, 1983, the parties reached agreement on ground
rules to be used to negotiate the impact and implementation (Tr. 37,
105) and the ground rules agreement was executed on June 27, 1983, (Res.
Exh. 1, Tr. 37, 105). The following day, June 28, 1983, the parties
began negotiations.
4. Prior to agreeing to ground rules, the Union's chief negotiator,
Ms. Jane E. Newberry, had, inter alia, on June 17, demanded that
Respondent pay travel and per diem expenses for the Union negotiators.
Mr. Melvin S. Weinstein, Respondent's chief negotiator had responded, in
essence, that the expired contract provided that payment of per diem and
travel expenses was discretionary with management and that Respondent
would not agree to payment of the Union negotiators' travel and per diem
expenses (Tr. 44). Ms. Newberry first stated that she had been
instructed to go to impasse on that issue; however, Ms. Newberry
subsequently called Mr. Weinstein and informed him that payment by
management of travel and per diem for Union negotiators was "not an
issue"; that the Union agreed to the ground rules; and that she would
see him on June 28 (Tr. 108).
5. Negotiations on the impact and implementation of the field
reorganization and RIF began at 9:00 a.m. on June 28, 1983 (Tr. 37,
108-109). Mr. John Lynn, a member of Respondent's negotiating team,
gave a briefing on the reorganization in which he highlighted
information set forth in the February 22, 1983, Federal Register notice
(Res. Exh. 5) and pointed out changes that had been made (Tr. 38). At
the conclusion of the briefing, the parties caucused, at the Union's
request, until about 1:00 p.m. During the caucus, the Union delivered a
letter to Mr. Weinstein in which it requested the following information.
"1. Current staffing plans/new approved staffing plans.
"2. Current out-stationed positions and proposed out-stationed
positions.
"3. All proposed transfers of function.
"4. FPM Chapter 351, as amended.
"5. Cost-benefit analysis of the field reorganization as
required under the Dole Amendment." (Res. Exh. 3).
6. Negotiations resumed after lunch (Tr. 60) and the Union's request
for information was discussed. Mr. Weinstein stated that Respondent
had, in fact, already furnished the Union with current staffing data,
proposed staffing plans (see, for example, Res. Exh. 2, Tr. 58),
proposed out-stationed positions, FPM Chapter 351, and the cost benefit
analysis required by the Dole Amendment (Tr. 113-115); however, he
stated that Respondent could not provide the final, approved staffing
plans because they were not yet available. Mr. Weinstein stated,
however, that the proposed staffing plans should be 90-95% of what the
final approved plans will reflect and that the only changes expected
were in supervisory positions (Tr. 113). Mr. Weinstein suggested that,
since one of the major things the Union was looking for was final
approved staffing plans, the negotiations be recessed until the final
approved staffing plans were available. The Union responded with "AFGE
proposal #1" (G.C. Exh. 2) which provided, in part, as follows:
"1. . . . negotiations . . . be deferred until such time as
the Employer furnishes the . . . information as outlined in
UNION'S letter of 6/28/83. . . .
"2. Additionally, the negotiations shall be delayed for two
weeks. . . .
"3. Employer agrees to pay travel, per diem and related
expenses. . . .
"4. Employer agreed that implementation of any part of this
reorganization will not take place without first fulfilling its
obligation to bargain including the furnishing of requested
information." (G.C. Exh. 2).
Thereafter, Respondent submitted a handwritten counter proposal, the
first paragraph of which read: "Negotiations on the proposed field
reorganization will be deferred unitl the employer furnish the
following:", and, at Respondent's request, the Union specified the items
of information that it desired which Mr. Weinstein entered in the
counter proposal as 1a.-e. (Tr. 117-118). The handwritten counter
proposal was then typed and given to the Union (Tr. 118). "Management's
Counter Proposal - 6/28/83" (G.C. Exh. 3), provided as follows:
"1. Negotiations on the proposed Field reorganization will be
deferred until the Employer furnish the following:
a. Current staffing plans to include PFT's and Staff years by
account by Region by Office;
b. New approved staffing plans;
c. Proposed out-stationed positions by Region by Office;
d. All proposed functional transfers designated by physical or
administrative moves; and
e. Copies of response(s) to Congress reflecting management's
compliance with DOLE.
2. Negotiations shall be delayed 48 hours after the final
documents are sent to Jane Newberry, Executive Vice President for
Council.
3. Employer agrees to pay travel and per diem for . . . (four
employees) NTE three workdays for negotiations. Per diem will not
include weekends.
4. Employer agrees to meet its obligations under law, rules,
regulations and contract with the Union prior to implementing the
reorganization." (G.C. Exh. 3).
Upon receipt of Respondent's counter proposal, the Union gave Mr.
Weinstein copies of two unfair labor practice charges and negotiations
were adjourned for the day (Tr. 118).
7. A general RIF notice had been issued on June 9, 1983, which was
subsequently rescinded. On June 28, 1983, Respondent "shared" with the
Union a preliminary letter prior to the issuance of the general RIF
notice (Res. Exh. 8, Tr. 97) and this "preliminary letter was issued to
all HUD employees on, or about, June 29, 1983 (Tr. 97). The general RIF
notice was dated June 28, 1983 (Jt. Exh. 3, Attachment); was shown to
the Union "on or about the same the same day" it was actually issued
which was, apparently, June 30, 1983 (Tr. 172).
8. Negotiations reconvened at 9:00 a.m. on June 29, 1983. Following
a caucus, the Union submitted "AFGE Proposal #2" which provided, in
part, as follows:
"1. (same as Respondent's Counterproposal - 6/28/83)
"2. Negotiations shall be delayed for 10 working days after
the final documents are received by all UNION designated
negotiators.
"3. Employer agrees to pay travel, per diem, and related
travel expenses for UNION designated negotiators . . . UNION . . .
negotiators shall be on official time and in travel status for
negotiations and up to three working days preparation time prior
to the resumption of bargaining.
"4. (Essentially the same as Respondent's Counter Proposal
6/28/83).
"5. Employer shall not issue a General Notice of
Reduction-in-Force until such time as negotiations with the UNION
have been completed.
"6. Employer agrees to include the following in any General
Notice of Reduction-in-Force:
'a. Notice to employees of the right to UNION representation.
'b. Written acknowledgement form for employee to request or
decline UNION representation by signature.
'c. A statement that Employer has agreed with UNION to a
minimum General Notice period of ninety days prior to the
effective date of any Reduction-in-Force.
"7. The parties to this agreement agree that any dispute over
the application of this agreement shall be referred directly to
arbitration . . . the prevailing party shall not be held liable
for any expenses related to arbitration." (G.C. Exh. 4).
Subsequently, at about 4:30 p.m., Respondent gave the Union
"Management's Counter Proposal #2 - 6/29/83" which provided, in part, as
follows :
"1. (Same as Respondent's Counterproposal - 6/28/83).
"2. Management will provide the information in 1 above to the
union team of Jane Newberry, Dave Ronaldi, Sharon Turner,
Ernestine Napue and Norris Crenshaw.
"3. Upon receipt of the above stated information, the union
team will be allowed two consecutive work days of official time at
their duty stations to analyze the information. The Team will
then be paid travel and per diem for two workdays to Washington,
D.C. to prepare for negotiations. On the third workday in
Washington, the Union team will present their proposals. . . .
The negotiations shall be limited to three workdays for which the
union will be paid travel and per diem. Per diem and travel will
not apply for Norris Crenshaw.
"4. (Same as Respondent's Counter Proposal - 6/28/83)."
Negotiations were adjourned for the day without discussion of
Respondent's second counterproposal. During the day, the Union had
contacted the Federal Mediation and Conciliation Service and requested
the services of a mediator and a Mr. Emmet De Deyn, a FMCS mediator, had
agreed to be present the following day.
9. Mr. De Deyn met with parties on June 30, 1983, and at his request
the Union prepared and submitted a counter proposal to Respondent's
second counter proposal. "AFGE Proposal #3", provided, in part, as
follows:
"1. (Same as Respondent's Counterproposal - 6/28/83).
"2. Employer shall provide the information in #1 above to five
members of the UNION team designated by the Council President.
"3. The UNION team will be paid by Employer for travel, per
diem and related travel expenses for five days in Washington, D.C.
to prepare for negotiations. On the following day in Washington,
the UNION team shall present their proposals . . . negotiations
shall be limited to ten days for which the UNION team shall be
paid travel, per diem and related expenses. Should negotiations
continue beyond ten days the UNION will continue to be on official
time without entitlement to per diem.
"4. The parties shall not be bound by provisions #2 of the
6/27/83 ground rules. /5/
(5, 6, 7 and 8 same as Paragraphs 4, 5, 6 and 7 of AFGE
Proposal #2.) (G.C. Exh. 6).
The parties then discussed each section of AFGE Proposal #3. Mr.
Weinstein testified that Respondent would agree to Sections 1 and 2 but
would not agree to Sections 4, 5, 6 and 7(c) (Tr. 133-137). With
respect to Section 3, Mr. Weinstein stated that Respondent would agree
to the concept of payment of travel and per diem but objected to the
amount (Tr. 134). With respect to Section 7(a) and (b), Mr. Weinstein
was agreeable to the concept but requested the specific language that
the Union wanted to include in the General RIF notice which the Union
did not provide (Tr. 135-136). Mr. Weinstein stated that Respondent
would agree to Section 8, arbitration, if the Union agreed to insert a
clause expressly waiving the applicability of the negotiated procedure
contained in the expired agreement (Tr. 137).
Mr. De Deyn asked Respondent to prepare a counterproposal to AFGE
Proposal #3 which Respondent did. "Management Proposal #3 - 6/30/83"
provided as follows:
"The following options are presented to the Union for their
choice as to a course of action:
'1. Proceed to negotiate the impact and implementation of the
regional reorganization, or
'2. Recess the present negotiations and provide the desired
information to the Union. Subsequently have the Union return to
Washington, D.C. for negotiations in accordance with the June 27,
1983 Ground Rules.'" (G.C. Exh. 7).
Mr. Weinstein stated that the Union found this proposal unacceptable,
because, as Ms. Newberry stated, " . . . it appeared to me that
management pulled everything off the table they had previously given us
and there was no where for me to try to negotiate with them cause they
took all their proposals off the table." (Tr. 49). Mr. Weinstein
conceded that "In our proposal of 6/30/83, we were no longer offering
per diem and travel." (Tr. 144). Although there is a dispute whether
Mr. De Deyn stated that the parties were at impasse and that they should
go to the FSIP (compare, Newberry Tr. 49, 73 and Weinstein Tr. 139-140),
there is no dispute that Ms. Newberry asked Mr. Weinstein if he would
like to "go on a joint submission" to FSIP (Tr. 49, 139) and Mr.
Weinstein said he would not (Tr. 49). The Union served two more unfair
labor practice charges and left (Tr. 140). No further meetings were
requested (Tr. 140).
10. On July 6, 1983, the Union filed a request with FSIP for
assistance (Jt. Exh. 3).
11. On July 18, 1983, Respondent issued notices of transfer of
function (Consolidated Complaint, Pars. 8(a) and 9(a) (G.C. Exh. 1(1));
Answer (G.C. Exh. 1(q); G.C. Exh. 8)).
12. By letter dated July 28, 1983, Respondent advised FSIP that it
rejected the Union's proposal of July 22 whereby the Union would
withdraw their request for FSIP assistance in return for Respondent's
agreeing to allow one day of preparation for negotiations, "Capping"
negotiations at five days, and withdrawing the specific RIF notices
(actually, transfer of function notices) issued in Region VII (Res. Exh.
11).
13. On, or about, August 2 and 3, 1983, Mr. Weinstein gave the Union
negotiating team the final approved staffing plans (Tr. 85, 86; Res.
Exh. 4).
14. On August 4, 1983, Respondent issued about 1565 specific RIF
notices /6/ to its employee, 758 of whom were bargaining unit employees.
15. On August 4, 1983, FSIP asserted jurisdiction and referred "all
issues in dispute" to FSIP Chairman Robert G. Howlett for
mediation-arbitration.
16. At 9:00 a.m. on August 22, 1983, the parties met with Chairman
Howlett. Mr. Harold W. Henry, Acting Deputy Director of Personnel and
Respondent's spokesman, asserted that the parties were not at impasse,
because the Union had never presented any "substantive" bargaining
proosals and questioned the jurisdiction of FSIP. (Tr. 159-160) Mr.
Henry stated that the Union stated that " . . . they were there because
management had refused to give it the information that it needed to
develop substantive negotiating proposals dealing with the
implementation of the reorganization." (Tr. 159-160). Mr. Henry stated
that Chairman Howlett stated that, " . . . he was serving as a mediator,
that he was not interested on (sic) what took place prior to that date
(August 22), that he was more interested in finding out what the
Parties' positions were, and to see if he could not get the Parties to
come to some agreement." (Tr. 161). After Mr. Henry, at Chairman
Howlett's request, had explained the field reorganization, Chairman
Howlett asked the Union if they had any bargaining proposals and the
Union said they did not and requested two weeks to prepare them (Tr.
162). The Chairman gave the Union two days, until August 25, to develop
their proposals (Tr. 162).
17. On August 25, 1983, the meetings with Chairman Howlett
reconvened and the Union gave the Chairman its proposals (Jt. Exh. 5).
Mr. Henry again " . . . raised the issue of whether or not he (Chairman
Howlett) had jurisdiction, because these proposals had never been
presented to management prior to that date; that had those same
proposals been put on the negotiating table on June the 28th, it was
highly unlikely that we would be before the Impasses Panel; that most
of those proposals simply could have been submitted on the 28th of June,
without regard to the information that the Union was insisting on, that
supposedly brought us before that impasses panel." (Tr. 164). Mr. Henry
stated that, " . . . the Chairman again reminded me that he was not
interested on (sic) fault finding, that there were simply other avenues
available for management to pursue or to use, if we wanted to find out
who was at fault; that he was more concerned for the Parties trying to
reach an agreement on those proposals and, therefore, asked me to go
through each proposal, item by item, and state the management position,
which I did." (Tr. 164). Thereafter, the session broke up and for the
rest of the day Chairman Howlett conducted "shuttle negotiations" with
the parties separately (Tr. 164-165).
18. The parties reconvened as a group on the morning of August 26.
Chairman Howlett " . . . explained pretty much to the Parties where he
was coming out on each of those proposals" (Tr. 165); Respondent agreed
to some of the Union's proposals but did not agree to others (Tr. 165).
Mr. Henry stated that Chairman Howlett then stated that, as there was
not an agreement, " . . . he was going to put on his arbitrator's hat
and arbitrate and issue an award, which he did." (Tr. 165).
19. Chairman Howlett's "Arbitrator's Opinion and Decision" (Jt. Exh.
6; 83 FSIP 115) was issued by the Executive Director of FSIP on
September 2, 1983. It is conceded that Respondent complied with that
decision in its entirety (Tr. 165, 153, 84-85).
20. The first, of 14, issues addressed in the decision was:
"1. Notification of Employees.
The Union requests that the general and specific
reduction-in-force notices be withdrawn and that new ones be
issued. It contends that the failure of the Agency to bargain
with its prior to sending out the notices requires that such
action be taken. . . . " (Jt. Exh. 6, Arbitrator's Opinion and
Decision, pp. 2-3).
Chairman Howlett addressed each of the Union's 14 proposals and
specifically ordered that as to employees assigned to position outside
their commuting areas who have been directed to move to their new
position on September 12, 1983.
" . . . the notice period shall be extended to a date no later
than November 7, 1983, or an earlier date if requested by the
employee." (Jt. Exh. 6, Arbitrator's Opinion and Decision, p. 8).
Conclusions
The Union on July 6, 1983, filed a request with FSIP for assistance
and on August 4, 1983, FSIP asserted jurisdiction. On July 18, 1983,
Respondent issued notices of transfer of function and on August 4, 1983,
Respondent issued specific RIF notices to some 758 employees in the
bargaining unit (1565 specific RIF notices were issued in total).
Implementation of the reorganization by the issuance of notices of
transfer of function /7/ and the specific notices of RIF while the
dispute was pending before the FSIP, violated the Statute inasmuch as
the law requires that parties maintain the status quo while a matter at
impasse is pending before the FSIP. U.S. Army Corps of Engineers,
Philadelphia District, supra; Warner Robins Air Logistics Center,
Robins Air Force Base, Georgia, A/SLMR No. 912, 7 A/SLMR 859 (1977);
U.S. Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
5 FLRA No. 39, 5 FLRA 288 (1981); National Aeronautics and Space
Administration, Headquarters, Washington, D.C., 12 FLRA No. 94, 12 FLRA
480 (1983). In concluding that Respondent violated Section 16(a)(6) of
the Statute, and derivatively Section 16(a)(1) of the Statute, by
issuing notices of transfer of function and the specific notices of RIF
while the dispute was pending before the FSIP, and that a remedial order
should issue, I have given long and thoughtful consideration to the fact
that the FSIP took action on the notices issued by Respondent: inter
alia, directed that a letter, to be prepared by the Union, be
transmitted to the 758 employees in the bargaining unit, and that the
notice period for employees being moved outside the commuting area be
extended to November 7, 1983 (from September 12, 1983) unless the
employee requests an earlier date; and the further fact that Respondent
has fully complied with the decision of the FSIP. Because the FSIP took
action with respect to the notices issued by Respondent and Respondent
has complied with the decision of the FSIP, a compelling argument can be
made that it would not effectuate the purposes and policies of the
Statute to find as an unfair labor practice that the same notices, as to
which the FSIP has already acted, nevertheless violated the Statute.
Cf., Department of the Navy, Norfolk Naval Shipyard, Portsmouth,
Virginia, 13 FLRA No. 95, 13 FLRA 571 (1984). I have, with considerable
reluctance, rejected this argument for the reason that, although the
FSIP acted with respect to the notices, it was Respondent's
implementation of the reorganization, while an impasse was pending
before the FSIP, as to which the FSIP asserted jurisdiction, that
impelled the FSIP to consider the substantive aspects of the impact and
implementation of the reorganization, as to which there had been no
negotiations, in light of Respondent's imposed time sequence. That is,
but for Respondent's change of the status quo while an impassed matter
was pending before the FSIP, the substantive issues of impact and
implementation would not have been before the FSIP, the FSIP would
perforce have had jurisdiction only as to the issues at impasse, /8/
essentially in the nature of ground rules. By issuing the notices when,
and as it did, Respondent interferred with the processes of the FSIP and
interfered with and restrained the Union in the exercise of its
statutory rights. The relief requested, an appropriate notice, will
effectuate the purposes and policies of the Statute by protecting the
integrity of the FSIP's processes.
In U.S. Army Corps of Engineers, Philadelphia District, A/SLMR No.
673, 6 A/SLMR 339 (1976), the Assistant Secretary stated, in part, as
follows:
" . . . should one of the parties involved in an impasse . . .
request the services of the Panel, I believe that it will
effectuate the purposes of the Order to require that the parties
must, in the absence of an overriding exigency, maintain the
status quo and permit the processes of the Panel to run its course
before a unilateral change in conditions of employment can be
effectuated." (6 A/SLMR at 341).
In Internal Revenue Service, Ogden Service Center, et al., 6 FLRC 310
(1978) the Counsel stated, in part, that in denying review of U.S. Army
Corps of Engineers, Philadelphia District, supra, 5 FLRC 177 (1977), it,
" . . . did not pass upon the Assistant Secretary's statement
concerning the obligation of the parties involved in an impasse to
maintain the status quo (absent an overriding exigency) once the
services of the Panel have been requested and to avoid
effectuating any unilateral changes in terms and conditions of
employment until the Panel's processes have run their course." (6
FLRC at 314, n. 3).
In Ogden Service Center, supra, the Council held, in part, that,
" . . . once the Panel's processes are invoked . . . the
parties must adhere to established personnel policies and
practices . . . to the maxim extent possible -- i.e., to the
extent consistent with the necessary functioning of the agency."
(6 FLRC at 322; see, also, 6 FLRC at 320 and n. 18).
While in substantial agreement with the Assistant Secretary (6 FLRA
at 320), the Council adopted, "to the maximum extent possible -- i.e.,
to the extent consistent with the necessary functioning of the agency"
rather than the Assistant Secretary's, "absent an overriding exigency",
qualification. The Authority has not, so far as I am aware,
specifically addressed this question. There is no doubt that the
Council quite deliberately adopted language different than that employed
by the Assistant Secretary from which I infer an even more stringent
qualification, i.e., as the Council stated, "to the maximum extent
possible -- i.e., to the extent consistent with the necessary
functioning of the agency", rather than "overriding exigency" as stated
by the Assistant Secretary. Although Respondent showed substantial
daily cost for salaries, Respondent showed no justification whatever for
its failure to give the Union reasonable notice and opportunity to
negotiate on impact and implementation prior to issuing the notices of
transfer of function and the specific RIF notices to employees. Nor,
having issued the notices unilaterally, does cost alone establish either
that Respondent could not have maintained the status quo "to the extent
consistent with the necessary functioning of the agency" or that cost
alone was "an overriding exigency" such as would have justified
Respondent not maintaining the status quo while a matter at impasse was
pending before the FSIP.
I have considered Respondent's other arguments and find them without
merit. The Complaints allege no refusal to bargain in good faith,
either by the Union or by Respondent, and whether either the Union, or
Respondent, or both, bargained in bad faith is neither material nor
relevant to this proceeding. The absence of good faith bargaining is no
bar to invocation of the services of the FSIP: Section 19(b) of the
Statute provides, in part, only that,
"(b) If voluntary arrangements, including the services of the
Federal Mediation and Conciliation Service . . . fail to resolve a
negotiation impasse --
"(1) either party may request the Federal Service Impasses
Panel to consider the matter. . . . " (5 U.S.C. Section
7119(b)(1)).
The Regulations of the FSIP, as noted in n. 6 above, define "impasse"
as " . . . that point in the negotiations of conditions of employment at
which the parties are unable to reach agreement, notwithstanding their
efforts to do so by direct negotiations and by the use of mediation. . .
. " (5 C.F.R. Section 2470.2(e)), and, as noted above, the FSIP has
broad discretion as how to resolve any particular negotiating impasse,
the only limitation on its jurisdiction being that "the parties are
unable to reach agreement . . . by direct negotiations and by the use of
mediation. . . . " Moreover, FSIP does not decide questions of good
faith bargaining, such jurisdiction being the exclusive province of the
Authority pursuant to Section 18 of the Statute. Consequently, in this
proceeding, which concerns violation of Section 16(a)(6) of the Statute
by failure to cooperate in impasse procedures, whether any party
bargained in bad faith prior to the FSIP's assertion of jurisdiction is
immaterial.
Having found that Respondent violated Sections 16(a)(6) and (1) of
the Statute by its issuance of notices of transfer of function and
notices of RIF while the dispute was pending before the FSIP, it is
recommended that the Authority issue the following:
ORDER
Pursuant to Section 18 of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. Section 7118, and Section 2423.29 of the
Regulations, 5 C.F.R. Section 2423.29, it is hereby ordered that the
U.S. Department of Housing and Urban Development shall:
1. Cease and desist from:
a. Failing and refusing to cooperate in impasse procedures by
issuing notices of transfer of function and/or specific notices of
RIF while a negotiating impasse concerning the impact and
implementation of the reorganization is pending before the Federal
Service Impasses Panel.
b. In any like or related manner interfering with,
restraining, or coercing 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
purpose and policies of the Statute:
a. Post at its facilities wherever bargaining unit employees
are located, /9/ copies of the attached Notice on forms to be
furnished by the Authority. Upon receipt of such forms, they
shall be signed by the Secretary, Department of Housing and Urban
Development, or his designee, and shall be posted and maintained
for 60 consecutive days in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure
that such Notices are not altered, defaced, or covered by any
other material.
b. 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.
/s/ William B. Devaney
William B. Devaney
Administrative Law Judge
Dated: September 24, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) In so concluding, it is noted that the Authority has previously
found that ground rules negotiations are a part of the negotiation
process leading to an agreement. Department of Defense Dependents
Schools, 14 FLRA 191 (1984).
(2) The Judge denied the Union the right to cross-examine one of the
Respondents' witnesses, solely on the ground that the General Counsel
had declined to cross-examine. The Union excepted to this ruling.
While we find that the Judge was in error in so ruling, in view of the
disposition of these cases, the Authority concludes that such ruling has
resulted in no prejudice to the Charging Party.
(3) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(6) will be referred to, simply,
as "Section 16(a)(6)".
(4) Respondent filed a Motion to Correct Transcript, to which no
opposition was filed, and said motion is granted expect as noted
hereinafter: a) the requested change on p. 18, 1.8 to change "evidence"
to "evident" is denied; b) p. 18, 1. 17 to change "controls" to
controlled" is denied and on my own motion the word "controls" is
deleted; c) p. 138, 1. 25, to correct spelling is denied as the name
does not appear at 1. 25; and on my own motion the same name at p. 139,
1. 25 is corrected from "DeDyn" to De Deyn"; p. 20, 1. 3 the second
correction, "insert 'the" after "one" is denied, and on my own motion
the word "one" is deleted and the word "the" is inserted. The
transcript is hereby corrected as fully set forth in the Appendix
hereto.
(5) Section 2 of the Ground Rules agreement (Res. Exh. 1) provided
for the daily schedule for negotiations. As Mr. Weinstein stated, this
was a new item (Tr. 134) and Mr. Weinstein stated that the intent was
not made clear (Tr. 134).
(6) As far as separations, there were approximately 200 (Tr. 148),
the balance involved transfers, reassignments, demotions, etc. (Tr.
148).
(7) Where the FSIP asserts jurisdiction, here on August 4, 1983, the
date of communication of the request to Respondent, here on, or about,
July 6, 1983, was the beginning date that the matter was pending before
the FSIP. This is consistent with U.S. Army Corps of Engineers,
Philadelphia District, A/SLMR No. 676, 6 A/SLMR 339 (1976) and
effectuates the purpose and intent of Sections 19(b)(1) and (5) of the
Statute.
(8) The record is clear that on July 6, 1983, when the Union
requested the assistance of the FSIP, the parties were in disagreement
over per diem, travel expenses, and time for preparation for
negotiations and for negotiations. As I stated at the hearing, I will
not go behind the FSIP's assertion of jurisdiction where, as here, it
clearly appears that the parties have reached a deadlock in
negotiations, albeit on essentially "ground rules", without reaching
substantive negotiations on impact and implementation (the single
exception had been the Union's proposal on arbitration to which
Respondent agreed, provided only that the Union agree that that
provision govern rather than the procedure under the parties' expired
agreement). The Statute gives the FSIP wide discretion to decide, where
the parties have negotiated and remain at loggerheads, whether to
decline jurisdiction because it determined that voluntary efforts to
reach settlement had not been exhausted, National Aeronautics and Space
Administration, Washington, D.C., Case No. 80 FSIP 24 (1980); Office of
Personnel Management, Washington, D.C., Case No. 80 FSIP 72 (1980); to
assert jurisdiction and order negotiations, Federal Deposit Insurance
Corporation, Headquarters Office, Washington, D.C., Case No. 83 FSIP 63
(1983); or to resolve the impasse, Department of the Navy, Naval Air
Propulsion Center, Trenton, New Jersey, Case No. 83 FSIP 93 (1983).
Although orders of the FSIP are not subject to direct review, Council of
Prison Locals v. Ronald Brewer, 735 F.2d 1497 (D.C. Cir. 1984), this
does not mean that its actions are immune from review. To the contrary,
orders of the FSIP are subject to review in unfair labor practice
proceedings. By way of example, the FSIP's Regulations define "impasse"
as follows:
"(e) The term "impasse" means that point in the negotiation of
conditions of employment at which the parties are unable to reach
agreement, notwithstanding their efforts to do so by direct
negotiations and by the use of mediation or other voluntary
arrangements for settlement." (5 C.F.R. Section 2470.2(e))
Quite obviously, the parties never negotiated over any substantive
proposal concerning the impact and implementation of the reorganization,
except the Union's proposal on arbitration as to which there was no
apparent disagreement, and, never having negotiated, certainly had never
reached a point at which they were unable to reach agreement. By the
definition of "impasse" in its Regulations there was not "impasse"
except as to the essentially ground rules disagreement, Social Security
Administration, Mid-America Service Center, Kansas City, Missouri, 9
FLRA No. 33, 9 FLRA 229, 241 (1982), and it is highly questionable that
Chairman Howlett had jurisdiction to consider any other issue. If he
had jurisdiction over matters as to which there had been no negotiations
and no impasse, on some theory of ancillary or pendent jurisdiction, it
was only because of Respondent's issuance of the notices of transfer of
function and specific notices of RIF. While Chairman Howlett may or may
not have had jurisdiction over the substantive issues, as to which there
had been no negotiations, he recognized that Respondent's implementation
of the reorganization by issuance of the notices of transfer of function
and RIF cried for action. That he might have ordered the notices
withdrawn and the parties to negotiate, rather than proceeding as he
did, is beside the point as no party has challenged the procedure he
followed (Respondent's challenge to jurisdiction was without basis as,
clearly, the FSIP had jurisdiction as to the matters on which the
parties had bargained and were at loggerheads.) To the contrary, the
Union submitted proposals, Chairman Howlett conducted "shuttle
negotiations", Chairman Howlett resolved the dispute by his Arbitrator's
decision, and Respondent fully complied with that decision. Nor,
indeed, is the propriety of that decision questioned or in issue.
Suffice it to say, in a proper case jurisdiction of the FSIP is
subject to review in an unfair labor practice proceeding and, while the
FSIP has wide discretion, it cannot with impunity disregard its own
Regulations and the Statute.
(9) The notices of transfer of function were issued in Respondent's
Kansas City Region (Des Moines, Iowa, Service Office and Omaha, Nebraska
Area Office); but the reorganization was nationwide and the notices of
RIF were issued nationwide. Accordingly, the posting is ordered
nationwide.
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 LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to cooperate in impasse procedures by
issuing notices of transfer of function and/or specific notices of RIF
while a negotiating impasse concerning the impact and implementation of
a reorganization is pending before the Federal Service Impasses Panel.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . . (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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, NW., Suite 700, P.O. Box 33758,
Washington, DC 20033-0758 and whose telephone number is: (202)
653-8507.