Social Security Administration, Department of Health, Education and Welfare, Region V, Chicago, Illinois (Respondent) and American Federation of Government Employees, Local 2474, AFL-CIO (Charging Party)
[ v06 p538 ]
06:0538(99)CA
The decision of the Authority follows:
6 FLRA No. 99
SOCIAL SECURITY ADMINISTRATION
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, REGION V, CHICAGO,
ILLINOIS
Respondent
and
LOCAL 2474, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-281
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT
HAD NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND ORDERED THAT THE
CASE BE DISMISSED IN ITS ENTIRETY. THEREAFTER THE GENERAL COUNSEL FILED
EXCEPTIONS WITH RESPECT TO THE JUDGE'S DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-281 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
WILSON G. SCHUERHOLZ,
FOR THE RESPONDENT
GLENN L. BROWN, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON FEBRUARY 29, 1980 BASED UPON A CHARGE FILED ON OCTOBER 24, 1979 AND
AN AMENDED CHARGE FILED ON JANUARY 29, 1980 BY LOCAL 2474, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREIN REFERRED TO AS
CHARGING PARTY OR UNION).
THE COMPLAINT ALLEGES THAT THE SOCIAL SECURITY ADMINISTRATION (ALSO
REFERRED TO HEREIN AS THE RESPONDENT) VIOLATED SECTIONS 7116(A)(1) AND
(5) OF THE ACT BY FAILING TO IMPLEMENT A "SUPPLEMENTAL COMPRESSED WORK
SCHEDULE AGREEMENT" WHICH ALLEGEDLY BECAME EFFECTIVE PURSUANT TO SECTION
7114(C) BECAUSE OF RESPONDENT'S FAILURE TO APPROVE OR DISAPPROVE SAID
"AGREEMENT" WITH 30 DAYS AFTER ITS SUBMISSION TO THE RESPONDENT.
AT THE HEARING IN GREEN BAY, WISCONSIN ALL PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENT AND COUNSEL FOR
GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. TO THE
EXTENT APPLICABLE, THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED WITH APPROPRIATE
MODIFICATION. FURTHER, THE GENERAL COUNSEL'S MOTION TO CORRECT THE
TRANSCRIPT HAS BEEN CAREFULLY REVIEWED AND IS HEREBY GRANTED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
FINDINGS OF FACT
1. THE CHARGING PARTY, ON JULY 26, 1965 WAS RECOGNIZED AS AND AT ALL
TIMES PERTINENT HERETO HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF ALL
EMPLOYEES OF THE RESPONDENT EMPLOYED AT THE GREEN BAY DISTRICT OFFICE
EXCEPT THE DISTRICT MANAGER, ASSISTANT DISTRICT MANAGER, BRANCH MANAGER,
OPERATIONS SUPERVISOR, OPERATIONS ANALYST, CONFIDENTIAL EMPLOYEES
(ADMINISTRATIVE AIDE) AND OTHERS AS APPROPRIATE IN THE EVENT OF FUTURE
ADDITIONS TO MANAGEMENT STAFF OF THE DISTRICT.
2. THE EVIDENCE DISCLOSES THAT EMPLOYEE-MANAGEMENT RELATIONS IN THE
GREEN BAY OFFICE WERE HARMONIOUS; THAT REPRESENTATIVES OF THE UNION MET
WITH REPRESENTATIVE OF MANAGEMENT APPROXIMATELY TWICE A MONTH ON A
REGULAR BASIS TO DISCUSS PROBLEMS OF MUTUAL CONCERN; THAT THESE
MEETINGS SOMETIMES CONSTITUTED NEGOTIATIONS AND RESULTED IN AGREEMENT ON
MATTERS NOT REQUIRING AN AMENDMENT OF THE BASIC AGREEMENT BETWEEN THE
PARTIES.
ROBERT GRUNERT, DISTRICT MANAGER OF THE GREEN BAY OFFICE CREDIBLY
TESTIFIED WITH RESPECT TO THE PAST PRACTICE OF COLLECTIVE BARGAINING
NEGOTIATIONS IN THE GREEN BAY OFFICE. HE NEGOTIATED AND SIGNED THE LAST
THREE MAJOR AGREEMENTS IN 1972, 1975 AND 1978. THE LAST AGREEMENT, FOR
EXAMPLE, WAS SIGNED LOCALLY ON APRIL 24, 1978 AND SUBMITTED TO HIGHER
AUTHORITY FOR APPROVAL, THE NOTIFICATION OF APPROVAL ASSIGNED ON
EFFECTIVE DATE OF MAY 19, 1978 TO THE AGREEMENT. THE SAME APPROVAL
PROCEDURE WAS FOLLOWED WHEN AN AMENDMENT TO THE 1978 AGREEMENT WAS
NEGOTIATED ON THE SUBJECT OF DUES WITHHOLDING AND, AFTER APPROVAL WAS
RECEIVED, THE AMENDMENT TO THE AGREEMENT BECAME EFFECTIVE ON JUNE 29,
1979.
3. ON SEPTEMBER 29, 1978, THE PRESIDENT SIGNED THE FEDERAL EMPLOYEES
FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978 (PUBLIC LAW 95-390).
PERTINENT PROVISIONS ARE AS FOLLOWS:
SECTION 2, ENTITLED "CONGRESSIONAL FINDINGS," STATES THAT NEW TRENDS
IN WORKDAY AND WORKWEEK SCHEDULES IN THE PRIVATE SECTOR "APPEAR TO SHOW
SUFFICIENT PROMISE TO WARRANT CAREFULLY DESIGNED, CONTROLLED, AND
EVALUATED EXPERIMENTATION BY FEDERAL AGENCIES OVER A 3-YEAR PERIOD . . .
"
SECTION 4(A)(1) AUTHORIZED THE CIVIL SERVICE COMMISSION (NOW THE
OFFICE OF PERSONNEL MANAGEMENT) TO ESTABLISH A PROGRAM WHICH PROVIDES
FOR THE CONDUCTING OF EXPERIMENTS IN ORDER TO ESTABLISH AN "ADEQUATE
BASIS ON WHICH TO EVALUATE THE EFFECTIVENESS AND DESIRABILITY OF
PERMANENTLY MAINTAINING FLEXIBLE OR COMPRESSED WORK SCHEDULES IN THE
EXECUTIVE BRANCH."
SECTION 4(A)(2) FURTHER PROVIDES THAT EACH AGENCY "MAY CONDUCT ONE OR
MORE EXPERIMENTS UNDER TITLES I AND II OF THIS ACT. SUCH EXPERIMENTS
SHALL BE SUBJECT TO SUCH REGULATIONS AS THE COMMISSION MAY PRESCRIBE
UNDER SECTION 305 OF THIS ACT".
SECTION 305 PROVIDES THAT THE COMMISSION "SHALL PRESCRIBE REGULATIONS
NECESSARY FOR THE ADMINISTRATION OF THE FOREGOING PROVISIONS OF THIS
ACT."
4. AS A RESULT OF NEWSPAPER AND OTHER PUBLICITY, NEWS CONCERNING THE
FOREGOING LEGISLATION REACHED THE GREEN BAY OFFICE IN APPROXIMATELY
OCTOBER 1978 AND BECAME THE SUBJECT OF "SMALL TALK" AND CASUAL
CONVERSATION AMONG EMPLOYEES. THE MORE THAT EMPLOYEES TALKED ABOUT THE
CONCEPT OF COMPRESSED WORK SCHEDULES, THE MORE THEY LIKED THE IDEA.
ACCORDINGLY, UNION PRESIDENT PRISCILLA FONTAINE APPROACHED DISTRICT
MANAGER ROBERT GRUNERT AND FOUND THAT HE WAS RECEPTIVE TO DISCUSSING THE
SUBJECT. FROM OCTOBER 1978 UNTIL APRIL 1979, DISCUSSIONS BETWEEN THE
UNION AND MANAGEMENT REPRESENTATIVES WAS INTERMITTENT AND INFORMAL. THE
FACT THERE WAS INFORMALITY DOES NOT DETRACT FROM THE SERIOUSNESS OF THE
DISCUSSIONS BECAUSE INFORMALITY ITSELF APPEARED TO BE A SUCCESSFUL
INGREDIENT IN THE AMICABLE LABOR RELATIONS POLICIES AND PROCEDURES
INSTITUTED BY DISTRICT MANAGER GRUNERT. DURING APRIL AND MAY THE
DISCUSSIONS BECAME SLIGHTLY MORE FORMALIZED TO THE EXTENT THAT SOMETHING
WAS FINALLY PUT DOWN ON A PIECE OF PAPER AND REFERRED TO AS "THE PLAN."
5. DURING THE COURSE OF THESE DISCUSSIONS DISTRICT MANAGER GRUNERT
MADE QUITE CLEAR THAT HE DID NOT HAVE AUTHORITY TO IMPLEMENT ANY PLAN
THAT WAS MUTUALLY AGREED UPON, AND THAT IT WOULD HAVE TO BE SUBMITTED
FOR APPROVAL TO HIGHER AUTHORITY. GRUNERT'S TESTIMONY IS CORROBORATED
BY PRISCILLA FONTAINE AND MARK KULINSKI, OF THE UNION. IT IS ALSO QUITE
CLEAR THAT THE PARTIES HAD NO GUIDANCE IN THE WAY OF OFFICIAL
INSTRUCTIONS FROM HIGHER AUTHORITY WITH RESPONDENT'S AGENCY OR FROM THE
OFFICE OF PERSONNEL MANAGEMENT. THUS, MARK KULINSKI, FORMER UNION
OFFICIAL TESTIFIED AS FOLLOWS:
"FROM WHAT I REMEMBER OF IT, IT . . . WAS MASS CONFUSION. NO ONE
KNEW EXACTLY WHAT TO DO."
PRISCILLA FONTAINE TESTIFIED:
"THERE WAS A LOT OF CONFUSION AT THE TIME WE CAME UP WITH THE PLAN.
AND I WAS
CONFUSED. AND MR. GRUNERT I'M SURE WAS CONFUSED AS TO EXACTLY HOW TO
HANDLE THIS COMPRESSED
TIME. BECAUSE THERE WERE NO GUIDELINES. SO, HE SAID HE DIDN'T HAVE
THE AUTHORITY THAT IT
WOULD HAVE TO BE SENT ON UP. THAT'S ABOUT ALL I CAN TELL YOU ON
THAT."
FONTAINE FURTHER TESTIFIED THAT SHE WAS INFORMED BY GRUNERT "BEFORE
WE CAME UP WITH A PLAN" THAT HE DIDN'T HAVE AUTHORITY TO APPROVE IT
HIMSELF. (TR. 26)
6. IN APRIL AND EARLY MAY OF 1979, DISCUSSIONS BECAME MORE FREQUENT
AND MORE SPECIFIC. ACCORDING TO FONTAINE THERE WAS NOT AN EXCHANGE OF
WRITTEN PROPOSALS BUT, RATHER, A DISCUSSION OF DIFFERENT PLANS. WHAT
WAS FINALLY ARRIVED AT CONSISTED OF THREE PAGES AND WAS ENTITLED "GREEN
BAY, WISCONSIN PLAN." THE FIRST SENTENCE STATED AS FOLLOWS: "THE
EXPERIMENT WILL APPLY TO FULL TIME PERSONNEL ONLY AND EMPLOYEES ARE FREE
TO PARTICIPATE OR NOT." THE SECOND PAGE LISTED SEVERAL ALTERNATE WORK
SCHEDULES. THE THIRD PAGE CONTAINED THE SIGNATURES OF GRUNERT AND
FONTAINE IN THEIR REPRESENTATIVE CAPACITY AND STATED: "THIS PLAN IS
SUBMITTED BY MUTUAL AGREEMENT OF THE GREEN BAY, WISCONSIN DISTRICT AND
LOCAL 2474, AFGE, AFL-CIO." THE DOCUMENT WAS UNDATED AND MADE NO
REFERENCE TO THE EXISTING COLLECTIVE BARGAINING AGREEMENT. THE DURATION
OF THE EXPERIMENT WAS NOT STATED.
7. THE GREEN BAY PLAN WAS ATTACHED TO A TRANSMITTAL MEMO FROM
GRUNERT TO THE AREA DIRECTOR OF REGION V, AREA 12, AND WAS DATED MAY 10,
1979. THE TRANSMITTAL MEMO WAS SHOWN BY GRUNERT TO UNION PRESIDENT
FONTAINE BEFORE HE SUBMITTED IT AND SHE AGREED WITH IT "AT THE TIME."
(TR. 35, 36) THE FIRST AND LAST PARAGRAPHS STATED AS FOLLOWS:
"I AM SUBMITTING FOR YOUR REVIEW AND FORWARDING TO REGIONAL OFFICE A
COPY OF THE GREEN BAY
COMPRESSED WORK SCHEDULE PLAN. THIS OFFICE WISHES TO VOLUNTEER FOR
AN EXPERIMENT."
"PLEASE TAKE THE STEPS NECESSARY TO FORWARD THE PLAN FOR REVIEW AND
RECOMMENDATION."
BOTH FONTAINE AND KULINSKI TESTIFIED THAT THE PLAN WAS INCOMPLETE AND
THAT IF IT HAD BEEN APPROVED BY HIGHER AUTHORITY, THE "FINE POINTS"
WOULD THEN BE NEGOTIATED. (TR. 21, 50)
8. I WILL DISPENSE WITH ANY RECITATION OF WHAT HAPPENED TO THE PLAN
AFTER IT LEFT GREEN BAY AND BECAME ENMESHED IN THE BUREAUCRATIC CHAIN OF
COMMAND AT THE SOCIAL SECURITY ADMINISTRATION, AND THE THEN DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE. SUFFICE TO SAY, THE PLAN WAS NEITHER
APPROVED NOR DISAPPROVED WITHIN 30 DAYS. INDEED, GRUNERT TESTIFIED THAT
HE DID NOT RECEIVE ANYTHING OFFICIAL UNTIL LATE DECEMBER 1979 OR EARLY
JANUARY 1980 AT WHICH TIME HE WAS TOLD THAT "THE CHICAGO REGION IS NOT
GOING TO PARTICIPATE IN THE COMPRESSED WORK SCHEDULING." I CREDIT
GRUNERT'S TESTIMONY THAT HE ADVISED THE UNION OF THIS DECISION.
HOWEVER, I ALSO CREDIT FONTAINE'S TESTIMONY THAT THE UNION NEVER
RECEIVED A WRITTEN DISAPPROVAL FROM RESPONDENTS.
9. DISTRICT MANAGER GRUNERT CONCEDED, IN RETROSPECT, THAT HE
PROBABLY COULD HAVE CALLED HIGHER AUTHORITY IN THE FIRST INSTANCE AND
SIMPLY STATED A DESIRE TO PARTICIPATE IN ANY EXPERIMENT THAT MIGHT BE
DECIDED UPON. INSTEAD, HE USED A DIFFERENT APPROACH AS INDICATED IN THE
FOLLOWING TESTIMONY:
"BUT I GUESS WHAT WE WANTED TO DO WAS TO GET OUR FOOT IN THE DOOR AND
GET GOING. AND SAY,
HE, (SIC) THAT OFFICE TOOK THE TIME, THE IMPETUS TO AT LEAST GET
SOMETHING AND IT LOOKS PRETTY
GOOD. AND LET'S GET THAT OFFICE INVOLVED. I GUESS THAT'S WHAT WE
WANTED TO DO." (TR. 96,
80)
GRUNERT FURTHER DESCRIBED THIS UNDERTAKING AS A "JOINT VENTURE" AND
STATED THAT "WE" WANTED TO GET IN ON "THE GROUND FLOOR." (TR. 81, 82,
83) HE FURTHER STATED THAT IF THE SOCIAL SECURITY ADMINISTRATION WAS ONE
OF THE AGENCIES SELECTED AS PART OF AN EXPERIMENT "WE WANTED TO GET OUR
PLAN IN FIRST." (TR. 82)
10. THE EVIDENCE ADDUCED BY THE GENERAL COUNSEL DOES NOT ESTABLISH
THAT THE UNION AT ANY TIME AFTER THE EXPIRATION OF THE 3-DAY PERIOD (FOR
APPROVAL OR DISAPPROVAL) EVER ASKED RESPONDENT TO IMPLEMENT THE
"AGREEMENT" IT NOW CONTENDS WAS MADE EFFECTIVE ON OR ABOUT JUNE 10,
1979.
11. THE UNCONTRADICTED EVIDENCE DOES ESTABLISH, THROUGH THE CREDITED
TESTIMONY (AT TR. 93) OF MR. GRUNERT THAT (A) THE DISTRICT OFFICE OF
RESPONDENT DID NOT REFUSE TO IMPLEMENT THE COMPRESSED WORK SCHEDULE
PLAN, AND (B) THE REGIONAL OFFICE OF RESPONDENT DID NOT REFUSE TO ALLOW
THE DISTRICT OFFICE TO IMPLEMENT THE PLAN. HOWEVER, AS NOTED ABOVE, AND
AS ALLEGED IN THE COMPLAINT, RESPONDENT "FAILED" TO IMPLEMENT THE
COMPRESSED WORK SCHEDULE PLAN IN GREEN BAY.
12. SUBSEQUENT TO THE ALLEGED UNFAIR LABOR PRACTICE IN THIS CASE,
IMPLEMENTING REGULATIONS BY THE OFFICE OF PERSONNEL MANAGEMENT AND BY
RESPONDENT FINALLY WERE PROMULGATED. THESE ARE REFERRED TO IN THE
RECORD HEREIN BUT, IN MY VIEW, NEED NOT BE EXPLICATED IN THIS DECISION.
APPLICABLE STATUTORY PROVISIONS
SECTION 7114(C) OF THE STATUTE PROVIDES IN PERTINENT PART:
(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE REPRESENTATIVE
SHALL BE SUBJECT TO
APPROVAL BY THE HEAD OF AN AGENCY.
(2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
FROM THE DATE THE
AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
HAS GRANTED AN EXCEPTION
TO THE PROVISION).
(3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
AGREEMENT WITHIN THE
30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
ON THE AGENCY AND THE
EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE
LAW, RULE, OR REGULATION.
SECTION 7116(A)(5) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR AN AGENCY "REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED BY THIS CHAPTER."
SECTION 7116(A)(1) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR AN AGENCY TO "INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN
THE EXERCISE BY AN EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER."
CONTENTIONS OF THE PARTIES
THE GENERAL COUNSEL CONTENDS THAT THE "SOLE ISSUE IN THIS CASE IS
WHETHER THE RESPONDENT REFUSED TO CONSULT, CONFER AND NEGOTIATE WITH THE
UNION IN VIOLATION OF 5 U.S.C 7116(A)(1) AND (5) BY REFUSING TO
IMPLEMENT THE AGREEMENT SIGNED BY THE PARTIES ON MAY 9, 1979." THE
GENERAL COUNSEL'S ENTIRE CASE HINGES ON A RESOLUTION OF THE THRESHOLD
ISSUE RAISED BY RESPONDENT AS TO WHETHER OR NOT THE GREEN BAY PLAN IS
REALLY AN "AGREEMENT" WITHIN THE MEANING OF SECTION 7114(B) AND (C) OF
THE STATUTE.
IN ITS BRIEF, RESPONDENT SETS FORTH THE FOLLOWING DEFENSES:
1. THE MUTUAL SUBMISSION OF AN EXPERIMENTAL PLAN ASKING FOR
CONSIDERATION AND ACCEPTANCE IS A DIFFERENT MATTER THAN A LABOR
RELATIONS AGREEMENT BEING FORWARDED TO THE AGENCY HEAD FOR APPROVAL.
ACCORDINGLY, THE GREEN BAY PLAN WAS NOT A LOCALLY EXECUTED LABOR
RELATIONS AGREEMENT WITHIN THE MEANING OF SECTION 7114(C).
2. AT THE TIME THE PLAN WAS DEVELOPED, THIS MATTER WAS NOT A
"CONDITION OF EMPLOYMENT" AS DEFINED IN 5 U.S.C. 7103(A)(14).
3. THE GREEN BAY DISTRICT MANAGER WAS NOT AND IS NOT
ORGANIZATIONALLY DELEGATED ANY AUTHORITY TO COMMIT HIS DISTRICT IN THE
COMPRESSED WORKWEEK AREA. THE ORGANIZATION OF AN AGENCY IS A PROTESTED
7106(A)(1) AREA AND IS NON-NEGOTIABLE.
4. RESPONDENT'S DECISION NOT TO EXPERIMENT IN THE CHICAGO REGION,
INCLUDING THE GREEN BAY DISTRICT, SHOULD BE ALLOWED TO STAND BECAUSE IT
IS TANTAMOUNT TO A DECISION TO TERMINATE AS PROVIDED IN SECTION 202(C)
OF PUBLIC LAW 95-930 AS NOT BEING IN THE BEST INTEREST OF THE PUBLIC,
THE GOVERNMENT, OR THE EMPLOYEES.
DISCUSSIONS AND CONCLUSIONS OF LAW
1. IN ENACTING THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK
SCHEDULES ACT OF 1978, CONGRESS DID NOT INTEND TO GIVE TO AGENCIES CARTE
BLANCHE AUTHORITY TO ESTABLISH EXPERIMENTAL PROGRAMS. RATHER, CONGRESS
CLEARLY INTENDED THAT EXPERIMENTS BE CAREFULLY DESIGNED, CONTROLLED AND
SUBJECT TO REGULATIONS PREPARED BY THE OFFICE OF PERSONNEL MANAGEMENT
(OPM) AND PROMULGATED PURSUANT TO SECTION 305 THEREOF.
2. SINCE CONGRESS INTENDED TO RESTRICT THE ABILITY OF AN AGENCY TO
"RUN WITH THE HALL," SO TO SPEAK, SURELY IT DID NOT INTEND TO GIVE
LOW-LEVEL MANAGEMENT OFFICIALS ANY GREATER AUTHORITY THAN THE AGENCY
ITSELF. FROM THIS IT FOLLOWS, I BELIEVE, THAT IF GOVERNMENT AGENCIES AS
A GROUP WERE REQUIRED TO AWAIT IMPLEMENTING REGULATIONS FROM OPM BEFORE
EMBARKING ON ANY EXPERIMENTAL PROGRAMS, THE SAME RESTRICTIONS AND LACK
OF AUTHORITY WOULD APPLY TO THE DISTRICT MANAGER OF THE GREEN BAY OFFICE
IN THE SOCIAL SECURITY ADMINISTRATION. AS A PRACTICAL MATTER, THEN
DISTRICT MANAGER GRUNERT DID NOT HAVE THE AUTHORITY TO NEGOTIATE OR
IMPLEMENT A COMPRESSED WORK SCHEDULE AND, IN MY OPINION, HE ADEQUATELY
CONVEYED THIS LACK OF AUTHORITY TO THE UNION BEFORE REACHING AGREEMENT
ON THE PLAN. THE UNION, THEREFORE, WAS NOT MISLED. BY THE SAME TOKEN,
THE REGIONAL OFFICIALS TO WHOM THE PLAN WAS SUBMITTED WERE THEMSELVES
WITHOUT AUTHORITY TO MAKE A DECISION UNTIL THEY RECEIVED INSTRUCTIONS
AND GUIDELINES FROM THE HEAD OF THE AGENCY, IN VIEW OF THE CONGRESSIONAL
INTENT THAT THE ENTIRE PROGRAM BE CONTROLLED FROM "THE TOP", IT SEEMS TO
ME THAT SUBORDINATE OFFICIALS IN ANY AGENCY HAVE TO WAIT TO RECEIVE
THEIR "MARCHING ORDERS" BEFORE EMBARKING ON THEIR OWN TO IMPLEMENT PL
95-930. I CAN'T IMAGINE THAT CONGRESS EVER INTENDED THAT A MYRIAD
NUMBER OF LOCAL UNION" AND LOCAL MANAGEMENT OFFICIALS AROUND THE NATION
WOULD "JUMP THE GUN" AND ENTER INTO COMPRESSED WORK SCHEDULE
"AGREEMENTS" WHICH WOULD AUTOMATICALLY BECOME EFFECTIVE IN 30 DAYS IF
THE AGENCY HEAD FAILED TO TIMELY DISAPPROVE THIS "SELECTION" PROCESS.
IT SEEMS TO ME THAT WHERE THE LOCAL MANAGEMENT OFFICIALS LACK THE
AUTHORITY TO COMMIT THE AGENCY HEAD TO AN AGREEMENT (AS IN THIS CASE),
THAN ANY "AGREEMENT" NEGOTIATED BY THAT OFFICIAL DOES NOT COME WITHIN
THE PURVIEW OF SECTION 7114(C), EVEN IF IT WERE IN ALL OTHER RESPECTS A
VALID COLLECTIVE BARGAINING AGREEMENT.
IN THIS CASE, HOWEVER, I FIND THAT THE GREEN BAY PLAN WAS NOT AN
AGREEMENT WITHIN THE MEANING OF SECTION 7114 FROM ITS VERY INCEPTION.
RATHER, I CONCLUDE IN AGREEMENT WITH RESPONDENT, THAT THE GREEN BAY PLAN
WAS NOTHING MORE THAN A JOINT PROPOSAL TO REQUEST BEING SELECTED AS AN
EXPERIMENTAL LOCATION.
FROM THE TESTIMONY OF GRUNERT IT IS CLEAR THAT HE SHARED THE DESIRES
OF HIS EMPLOYEES AND THE UNION TO BE SELECTED FOR EXPERIMENTATION AND HE
GENUINELY HOPED THAT BY GOING TO THE TROUBLE OF SKETCHING OUT A ROUGH
OUTLINE OR PLAN, IT WOULD IMPROVE THE CHANGES OF HIS OFFICE BEING
SELECTED. CLEARLY, THE GREEN BAY PLAN WAS NOT ONLY A JOINTLY AGREED
UPON MANAGEMENT-UNION PROPOSAL BUT, IN ADDITION, IT WAS A REQUEST FROM A
MANAGEMENT REPRESENTATIVE AT THE DISTRICT LEVEL TO MANAGEMENT OFFICIALS
AT THE REGION LEVEL TO PLEASE GIVE SERIOUS CONSIDERATION TO SELECTING
GREEN BAY WHICH WAS VOLUNTEERING FOR AN EXPERIMENT. UNFORTUNATELY,
NEITHER MR. GRUNERT NOR THE UNION RECEIVED THE COURTESY OF A REPLY AND
IT WAS THIS FAILURE OF COMMUNICATION WHICH, IN MY OPINION, GAVE RISE TO
THE INSTANT CASE.
5. I AGREE WITH RESPONDENT THAT THE MUTUAL SUBMISSION OF AN
EXPERIMENTAL PLAN ASKING FOR CONSIDERATION AND ACCEPTANCE IS A DIFFERENT
MATTER THAN A LABOR RELATIONS AGREEMENT BEING FORWARDED TO AN AGENCY
HEAD FOR APPROVAL. I AM NOT PERSUADED BY THE EVIDENCE THAT THE UNION
OFFICIALS REALLY THOUGHT THIS WAS AN AGREEMENT SIMILAR TO PAST
AGREEMENTS SUBMITTED FOR APPROVAL OR DISAPPROVAL. WHEN THE 30 DAY
PERIOD EXPIRED, THERE WAS NO ALLEGATION (ORAL OR WRITTEN) THAT THE GREEN
BAY PLAN WAS NOW EFFECTIVE. THERE WAS NO REQUEST TO IMPLEMENT THE PLAN
BY VIRTUE OF THE FAILURE OF THE AGENCY HEAD TO TIMELY DISAPPROVE THE
PLAN.
THE PLAN ITSELF DOES NOT PURPORT TO BE AN AMENDMENT OF THE EXISTING
CONTRACT, IT WAS NOT IDENTIFIED AS AN AGREEMENT AND WAS NOT SUBMITTED
LIKE PREVIOUSLY EXECUTED AGREEMENTS PLACED INTO EVIDENCE. THE PLAN WAS
UNDATED, INCOMPLETE IN FINAL DETAILS, AND AS NOTED IN THE TRANSMITTAL
MEMO, THE OFFICE "WISHES TO VOLUNTEER FOR AN EXPERIMENT;" IT IS NOT
SURPRISING THAT THE RECIPIENT OF THE PLAN DID NOT PERCEIVE IT AS BEING A
LABOR AGREEMENT AND TREAT IT AS SUCH. THE TRANSMITTAL MEMO DID NOT
REQUEST APPROVAL OR DISAPPROVAL, RATHER, IT ENDED WITH THE STATEMENT,
"PLEASE TAKE THE STEPS NECESSARY TO FORWARD THE PLAN FOR REVIEW AND
RECOMMENDATION." SUCH LANGUAGE IS MORE CONSISTENT WITH THE IDEA OF
VOLUNTEERING TO BE SELECTED AS AN EXPERIMENTAL OFFICE. NOR IS THERE
ANYTHING IN THE MEMO TO SUGGEST THAT TIME WAS OF THE ESSENCE IN
RESPONDING THERETO.
SINCE I RESOLVE THE THRESHOLD QUESTION IN FAVOR OF RESPONDENT, I FIND
IT UNNECESSARY TO ADDRESS ITS OTHER DEFENSE. BECAUSE I CONCLUDE THAT
THE GREEN BAY PLAN IS NOT AN AGREEMENT WITHIN THE PURVIEW OF SECTION
7114(C), I CONCLUDE THAT THE PLAN DID NOT BECOME EFFECTIVE WHEN IT WAS
NOT DISAPPROVED WITHIN 30 DAYS BY THE AGENCY HEAD. I FURTHER FIND AND
CONCLUDE THAT RESPONDENT HAS NOT VIOLATED SECTION 7116(A)(5) AND (1) AS
ALLEGED IN THE COMPLAINT.
IN VIEW OF THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT
THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
DISMISSED IN ITS ENTIRETY.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 8, 1980
WASHINGTON, D.C.