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)