Federal Trade Commission and American Federation of Government Employees Local 2211 (Authority decision, August 31, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Federal Trade Commission planned staffing reductions in several regional offices. AFGE Local 2211, which held national consultation rights, alleged that the Commission failed to provide advance notice and time for its views before the reductions. The Authority found that the Commission's February 1 letter described the proposed changes and gave the union a reasonable opportunity to respond before the February 28 final decision. The union submitted no views or recommendations during that period. The Authority dismissed the unfair labor practice complaint on the stipulated record.

Decision snapshot

• Authority: National consultation rights under 5 U.S.C. § 7113(b)(1).
• Outcome: Complaint dismissed; no violation found.
• Key point: Written notice of a proposed staffing reduction and time to respond satisfied the statutory consultation requirement.

Full text (FLRA public release)

[ v15 p994 ]

15:0994(185)CA

The decision of the Authority follows:

15 FLRA No. 185

FEDERAL TRADE COMMISSION
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2211, AFL-CIO
Charging Party

Case No. 3-CA-30397

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the parties' contentions, /1/ the Authority finds: The complaint alleges that the Federal Trade Commission (Respondent) violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by instituting substantive changes in conditions of employment without affording the Charging Party, American Federation of Government Employees, Local 2211, AFL-CIO (the Union), a labor organization holding national consultation rights, prior notice and a reasonable time in which to submit its views and recommendations concerning an impending reduction in force (RIF) affecting the Respondent's regional office employees, thereby refusing to consult in good faith with the Union and refusing to comply with the requirements of section 7113 of the Statute.
/2/ The Respondent contends that the Union had never properly been determined to be entitled to national consultation rights, and thus the Respondent was under no obligation to comply with the provisions of section 7113(b)(1) of the Statute; that the RIF and any attendant impact arising therefrom did not affect conditions of employment of bargaining unit employees; and that even if a consultation obligation did exist, the Union, upon receiving prior notice of the RIF, waived its rights by failing to act in a timely manner.

The Charging Party is the exclusive representative of a unit composed solely of nonprofessional and technical employees of the Respondent located in the Washington, D.C. area. On January 29, 1982, Local 2211 was determined to be entitled to national consultation rights, pursuant to a Report and Findings on Petition for National Consultation Rights in Case No. 3-NCR-20001, issued by a Regional Director of the Authority. The Respondent did not avail itself of the opportunity specifically noted by the Regional Director to file a request for review of the Regional Director's Report and Findings with the Authority pursuant to the Authority's Rules and Regulations. /3/

Thereafter, the Union, by letter dated November 30, 1982, stated to the Respondent that it had come to the Union's attention that a RIF might occur and that, if one was contemplated, the Union would expect to be informed of the RIF and be supplied certain information so that it could "serve notice of a demand to bargain on the procedures that will be followed to effect the reduction in force and appropriate arrangements for employees who may be adversely affected." The Respondent replied on December 7, 1982, stating that it would notify the Union if such a decision to conduct a RIF were made and give the Union a reasonable period of time to present its views and recommendations, as appropriate under the Statute. In January 1983, the Respondent orally notified the Union that it was experiencing a serious budgetary shortfall and that some regional office closings and/or reductions in regional staffing levels might be required. At about the same time, the Respondent sent a series of budget submissions to the Congress, proposing to close certain of its regional offices and to reduce its staffing levels in certain other regional offices. On February 1, 1983, the Respondent sent a letter to the Union stating that "The Commission will close offices in . . . and reduce the staff in . . . pending consultations with Congress." The letter supplied the Union with the numbers of separations and reductions that would be involved and explained the proposed procedures dealing with voluntary early retirement, reassignment, competitive areas and retention registers. Accompanying the letter were copies of news releases explaining the Commission's vote, and a copy of a detailed examination into the budgetary considerations submitted to the Commissioners by its Executive Director. On February 9 and 24, 1983, the Respondent was notified by Congress that its proposal to close regional offices was disapproved, but that it could reduce staffing levels within certain discretionary limits, provided that the affected employees were offered transfers to other offices. On March 1, 1983, the Respondent sent a letter to the Union stating that "On February 28, 1983, the decision was made to conduct a reduction in force in seven regional offices. The effective date of the RIF is April 9, 1983." This letter was accompanied by a copy of the Respondent's detailed decision. During the period from March 2 - March 4, 1983, RIF notices were served upon those employees who were to be separated from their regional office jobs; the right to transfer to the Respondent's Headquarters office was offered to all. On March 11, 1983, the Union responded, stating, inter alia, that "It is our conclusion that this RIF is a final agency action. It therefore violates our right of national consultation . . . we are filing a charge of an unfair labor practice." The parties stipulated that "At no time did the Union submit comments to Respondent as to the reorganization and reductions in force . . . ," and that "No employees of Respondent's Washington, D.C. Headquarters, for whom the Union is the currently certified representative, were affected by the reorganization plan or reductions in force. . . "

In the Authority's opinion, the Respondent fulfilled its obligation to inform the Union of proposed substantive changes in conditions of employment and to permit the Union reasonable time to present its views and recommendations as required pursuant to section 7113 of the Statute. Thus, on February 1, 1983, the Respondent gave the Union written notice of its proposed decision, and the Union had been aware from that time on of the Respondent's plans. Accordingly, the Respondent's February 1, 1983 letter to the Union satisfied the Respondent's section 7113(b)(1) obligation to inform the Union "of any substantive change in conditions of employment proposed by the agency . . . ," and we find that the Union had a reasonable time to present its views and recommendations prior to the Respondent's final decision of February 28, 1983. As the Union did not present any views or recommendations prior thereto, the Authority concludes that the Respondent did not fail to comply with section 7113(b) of the Statute. Therefore, we shall dismiss the complaint. /4/

ORDER

IT IS ORDERED that the complaint in Case No. 3-CA-30397 be, and it hereby is, dismissed.

Issued, Washington, D.C., August 31, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ As the Charging Party's brief was untimely filed, it has not been considered by the Authority.

/2/ Section 7113(b)(1) provides that:

(b)(1) Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall--

(A) be informed of any substantive change in conditions of employment proposed by the agency, and

(B) be permitted reasonable time to present its views and recommendations regarding the changes.

/3/ See section 2426.2(b)(3)(vii) and section 2422.6(d) of the Authority's Rules and Regulations.

/4/ In view of this conclusion, we find it unnecessary to pass upon the Respondent's remaining contentions.