Federal Labor Relations Authority v. Social Sec. Admin.

• Decision Date: 29 January 1985
• Docket Number: No. 84-1015,84-1015
• Citation: 753 F.2d 156
• Parties: 118 L.R.R.M. (BNA) 2457, 243 U.S.App.D.C. 338 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. SOCIAL SECURITY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 156

753 F.2d 156

118 L.R.R.M. (BNA) 2457, 243 U.S.App.D.C. 338

FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. SOCIAL SECURITY ADMINISTRATION, Respondent.

No. 84-1015.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 19, 1984.

Decided Jan. 29, 1985.

Jill Griffin, Atty., Federal Labor Relations Authority, Washington, D.C., with whom Ruth E. Peters, Sol., Federal Labor Relations Authority and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for petitioner. William R. Persina, Washington, D.C., entered an appearance for petitioner.

Mary Mitchell Armstrong, Atty., Dept. of Health and Human Services, Washington, D.C., for respondent. William Kanter, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondent.

Before WALD, EDWARDS, and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The Federal Labor Relations Authority petitions for enforcement of its order in Social Security Administration and American Federation of Government Employees, 11 F.L.R.A. 390 (1983). That order directed the Social Security Administration (SSA) to cease and desist from failing to negotiate in good faith with the National Office of the American Federation of Government Employees (AFGE National), the exclusive collective bargaining agent for certain SSA employees, over flexible and compressed work schedules. Id. at 390. The order also required the SSA to take several affirmative steps, including the reinstatement of certain terminated work schedule experiments at SSA offices if the AFGE National so requests. See id. at 391. The SSA attacks the order on the grounds that it is not supported by substantial evidence and is contrary to the policies of the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the 1982 Work Schedules Act), Pub.L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. Secs. 3401, 6101 & note, 6106, 6120-6133). The SSA also argues that enforcement should be denied because it has complied with the order and there is no reasonable expectation of any future violations. As we read the Authority's order in light of the facts in this case and statements by the parties to the court, the order does not require the SSA to reinstate any work schedule experiments properly terminated under section 4(b) of the 1982 Work Schedules Act, 5 U.S.C. Sec. 6101 note. Based on that interpretation, we grant the petition for enforcement.

I. BACKGROUND

This case involves a complicated and lengthy dispute between the AFGE National and the SSA over the use of flexible and compressed work schedules, or "flexitime," at SSA offices. The story begins with passage of the Federal Employees Flexible and Compressed Work Schedules Act of 1978 (the 1978 Work Schedules Act), Pub.L. No. 95-390, 92 Stat. 755 (codified as amended at 5 U.S.C. Secs. 5550a, 6101 note). That act declared:

The Congress finds that new trends in the usage of 4-day workweeks, flexible work hours, and other variations 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 to determine whether and in what situations such varied work schedules can be successfully used by Federal agencies on a permanent basis.

Id. Sec. 2. The act provided that during the three years following its enactment, federal agencies could establish work schedule experiments under the conditions described in the act. See id. Sec. 4(a)(2). ¹

In March of 1979, the SSA informed various local unions of the American Federation of Government Employees that the SSA intended to conduct flexitime experiments in some of its offices. ² The following summer, the SSA opened negotiations over flexitime with the AFGE locals that represented employees at locations selected for the experiments. However, on August 30, 1979, local AFGE units were consolidated into a national unit, AFGE National, which became the nationwide exclusive bargaining agent for SSA employees represented by AFGE. In September, SSA officials met with representatives of AFGE National, who expressed interest in bargaining over flexitime. Nonetheless, in September and October of 1979, the SSA executed flexitime agreements with several local AFGE representatives in the SSA's Atlanta region. See ALJ Op. at 397, 399-400.

The AFGE National, which was unaware of the Atlanta region agreements, reiterated its position during the following months that the SSA was required to bargain with it over flexitime experiments. See id. at 397-98. On December 20, 1978, an SSA official informed the AFGE National by letter that the Department of Health, Education, and Welfare (now the Department of Health and Human Services) had delegated authority to approve flexitime experiments in regional offices to the principal regional officers for the SSA, and not to the commissioner of the SSA. Accordingly, the SSA stated that it would "ensure that appropriate discussions with the local representatives occur prior to implementation of any experiment recommended for the organizational components identified." Letter from Herbert C. Creech to Art Johnson (Dec. 20, 1978), General Counsel's Exhibit 4, Petitioner's Appendix [hereinafter cited as Pet. A.] at 258 (emphasis added). The letter also noted that the SSA was considering flexitime experiments in the Atlanta region. Id. The AFGE National then filed the first of the two unfair labor practice charges at issue in this case. The charge alleged that the December 20, 1978 letter constituted an unlawful refusal to bargain. See General Counsel's Exhibit 1(a), Pet. A. at 251.

Between January 3 and February 1, 1980, the SSA negotiated, signed, and implemented a number of flexitime agreements with local union representatives. See ALJ Op. at 400. Further communications between the AFGE National and the SSA resulted in a meeting during March of 1980, at which the SSA disclosed to the AFGE National for the first time that the SSA had already put numerous flexitime agreements with local unions into effect. In light of this discovery and the pending unfair labor practice complaint, the AFGE National did not offer any bargaining proposals concerning flexitime at the meeting. See id. at 401. Eventually, the SSA settled the complaint by agreeing that it would not change work schedules through flexitime programs without giving the AFGE National an opportunity to bargain over the issue and that it would not engage in certain other specified practices. See Joint Exhibit 1, Pet. A. at 205.

The AFGE National wrote further letters to the SSA demanding bargaining over flexitime on October 8, 1980; December 4, 1980; and February 2, 1981. The SSA did not answer these letters. Finally, a fourth letter dated March 23, 1981 produced a meeting on April 9, 1981, at which the SSA apparently told the AFGE National representatives that the flexitime programs were not "working out," and that the SSA would "get back" to the union representatives on the issue. On April 15, the AFGE National submitted flexitime proposals to the SSA, and on May 11, the AFGE National again demanded immediate negotiations. The SSA did not respond. See ALJ Op. at 402-04, 410. On July 6, 1981, the AFGE National filed a second unfair labor practice charge, which claimed that the SSA had refused to bargain in violation of the settlement agreement covering the earlier unfair labor practice charge. See General Counsel's Exhibit 1(e), Pet. A. at 242. On July 13, the SSA informed the AFGE National that unless agreements with local unions required otherwise, the SSA would end all flexitime experiments on August 15, 1981. See ALJ Op. at 410.

After further skirmishes between the SSA and the AFGE National, the Authority withdrew its approval of the settlement agreement in the first unfair labor practice charge. The General Counsel then consolidated the two charges and issued a complaint in both. See General Counsel's Exhibit 1(g), Pet. A. at 235. The administrative law judge found that the SSA had committed unfair labor practices in both of the consolidated cases. He consequently proposed that the Authority order the SSA to cease and desist from failing to bargain in good faith over flexitime, and to take certain other remedial measures. See ALJ Op. at 412-14. The Authority adopted the findings and conclusions of the administrative law judge and issued the proposed order. Social Sec. Admin. and American Fed'n of Gov't Employees, 11 F.L.R.A. 390 (1983). The Authority now petitions for enforcement.

II. THE SUBSTANTIAL EVIDENCE CHALLENGE

The Federal Labor Relations Authority is charged with the administration of section 701 of the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1101, 1191 (codified at 5 U.S.C. Secs. 7101-7135), which comprehensively regulates labor relations between the federal government and its employees. See Bureau of Alcohol, Tobacco, and Firearms v. Federal Labor Relations Auth., 464 U.S. 89, 104 S.Ct. 439, 441-42, 78 L.Ed.2d 195 (1983). The Authority may petition an appropriate court of appeals for enforcement of its orders. 5 U.S.C. Sec. 7123(b). We review such a petition under the standards of section 10(e) of the Administrative Procedure Act, 5 U.S.C. Sec. 706. See 5 U.S.C. Sec. 7123(c).

The SSA maintains that the Authority's order is not "supported by substantial evidence on the record considered as a whole," 5 U.S.C. Sec. 7123(c); see also 5 U.S.C. Sec. 706(2)(E), and therefore should not be enforced. We have thoroughly reviewed the SSA's objections to the Authority's factfinding. We believe those objections are fully answered in the carefully prepared opinion of the Authority's administrative law judge, and we therefore uphold the Authority's determination that the SSA committed the unfair labor practices charged.

III. THE EFFECT OF...