23:0435(63)CA - HUD and HUD Kansas City Region, Kansas City, MO and AFGE, National Council of HUD Locals, Council #222 -- 1986 FLRAdec CA



[ 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.
                                       . . . (Ag