Department of Defense, U.S. Navy, Norfolk Navy Shipyard (Respondent) and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO (Complainant) 

 1 FLRA No. 32
 
 DEPARTMENT OF DEFENSE,
 U.S. NAVY, NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-5283(CA)
                                            A/SLMR No. 908
                                            FLRC No. 77A-141
 
                      SUPPLEMENTAL DECISION AND ORDER
 
    ON SEPTEMBER 23, 1977, IN A/SLMR NO. 908, THE ASSISTANT SECRETARY OF
 LABOR FOR LABOR-MANAGEMENT RELATIONS FOUND, CONTRARY TO THE
 ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT VIOLATED SECTION 19(A)(1)
 AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED BASED ON ITS DENIAL OF
 UNION REPRESENTATION TO FOUR PROBATIONARY EMPLOYEES WHO HAD REQUESTED
 SUCH REPRESENTATION AT MEETINGS WITH MANAGEMENT WHERE DISCIPLINARY
 ACTION WAS IMPOSED.
 
    ON DECEMBER 28, 1978, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
 ISSUED ITS DECISION ON APPEAL OF THE SUBJECT CASE, IN FLRC NO.
 77A-141,FINDING THAT THE ASSISTANT SECRETARY'S DECISION WAS NOT
 CONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER AND REMANDING THE
 CASE TO HIM FOR APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY, IN A MATTER SUCH AS HERE
 INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF
 REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF
 FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY,
 BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE AND THE RATIONALE
 CONTAINED THEREIN WILL DISMISS THE COMPLAINT HEREIN IN ITS ENTIRETY.
 /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 ON. 22-5283(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 1, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
          DECISION ON APPEAL FROM ASSISTANT SECRETARY'S DECISION
 
                            BACKGROUND OF CASE
 
    THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
 SECRETARY, INVOLVING AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO (THE
 UNION) AGAINST THE DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK NAVAL
 SHIPYARD, NORFOLK, VIRGINIA (THE ACTIVITY).  THE ASSISTANT SECRETARY
 FOUND, IN PERTINENT PART, THAT THE ACTIVITY VIOLATED SECTION 19(A)(6)
 AND-- BASED ON THE SAME CONDUCT-- SECTION 19(A)(1) OF THE ORDER /2/ BY
 DENYING UNION REPRESENTATION TO FOUR PROBATIONARY EMPLOYEES, WHO HAD
 REQUESTED SUCH REPRESENTATION, AT MEETINGS WITH MANAGEMENT WHERE
 DISCIPLINARY ACTION WAS IMPOSED.
 
    THE PERTINENT FACTUAL BACKGROUND OF THIS CASE, AS FOUND BY THE
 ASSISTANT SECRETARY, IS AS FOLLOWS:  FOUR PROBATIONARY EMPLOYEES,
 MEMBERS OF THE BARGAINING UNIT EXCLUSIVELY REPRESENTED BY THE UNION,
 WERE DISCOVERED SLEEPING ON THE JOB BY A SUPERVISOR AT THE ACTIVITY.
 THE ACTIVITY THEREAFTER SCHEDULED INDIVIDUAL MEETINGS WITH EACH OF THE
 PROBATIONERS FOR THE PURPOSE OF TERMINATING THEIR EMPLOYMENT AND GAVE
 THE UNION ADVANCE NOTICE OF THE MEETINGS.  THE ACTIVITY FURTHER ADVISED
 THE UNION THAT, BECAUSE THE MEN WERE PROBATIONARY EMPLOYEES, THEY WERE
 NOT ENTITLED TO UNION REPRESENTATION AS THEY HAD REQUESTED, BUT THAT A
 UNION STEWARD COULD ATTEND THE MEETING AS AN OBSERVER.  /3/ A MANAGEMENT
 REPRESENTATIVE MET WITH EACH EMPLOYEE INDIVIDUALLY AND IN EACH CASE
 INFORMED THE EMPLOYEE THAT HE WAS NOT ENTITLED TO REPRESENTATION BUT
 THAT THE UNION WAS ENTITLED TO HAVE AN OBSERVER PRESENT.  DURING THE
 COURSE OF THE MEETINGS, THE UNION STEWARD TRIED TO SPEAK ON SEVERAL
 OCCASIONS, BUT THE MANAGEMENT REPRESENTATIVE STOPPED HIM EACH TIME AND
 TOLD HIM THAT HE WAS ONLY AN OBSERVER AND COULD MAKE A STATEMENT ON
 BEHALF OF THE UNION AT THE END OF THE MEETING.  EACH OF THE FOUR
 MEETINGS LASTED APPROXIMATELY 5 MINUTES AND RESULTED IN THE TERMINATION
 OF THE EMPLOYEE INVOLVED FOR FAILURE TO MEET THE STANDARDS FOR
 SATISFACTORY PERFORMANCE.  THE UNION SUBSEQUENTLY FILED AN UNFAIR LABOR
 PRACTICE COMPLAINT ALLEGING, IN PERTINENT PART, THAT THE ACTIVITY HAD
 VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    THE ASSISTANT SECRETARY FOUND THAT THE MEETINGS, CONVENED BY
 MANAGEMENT FOR THE EXPLICIT PURPOSE OF NOTIFYING THE PROBATIONARY
 EMPLOYEES OF THEIR TERMINATION, WERE "FORMAL DISCUSSIONS" WITHIN THE
 MEANING OF SECTION 10(E) OF THE ORDER.  /4/ IN THIS REGARD, HE NOTED
 THAT "THE MEETINGS WHICH WERE HELD HEREIN WERE CALLED SPECIFICALLY FOR
 THE PURPOSE OF TERMINATING THE PROBATIONARY EMPLOYEES AND NOT FOR
 INVESTIGATORY PURPOSES," AND THAT THEY INVOLVED THE TERMINATION OF
 PROBATIONARY EMPLOYEES "WHO, EXCEPT IN A LIMITED NUMBER OF INSTANCES NOT
 RELEVANT HERE, HAVE NO STATUTORY APPEAL RIGHTS AND, THEREFORE, NO RIGHT
 OF REPRESENTATION UPON APPEAL FROM AN AGENCY ACTION." THE ASSISTANT
 SECRETARY FURTHER STATED:
 
    SUCH MEETINGS NOT ONLY SUBSTANTIALLY AFFECTED PERSONNEL POLICIES AND
 PRACTICES AS THEY
 
    RELATED TO THE SPECIFIC EMPLOYEES' JOB SECURITY, BUT THEY ALSO
 SUBSTANTIALLY AFFECT PERSONNEL
 
    POLICIES AND PRACTICES AS THEY PERTAIN TO OTHER EMPLOYEES IN THE
 BARGAINING UNIT.  THUS, THE
 
    UNION REPRESENTATIVE WHOSE REPRESENTATION THE PROBATIONARY EMPLOYEES
 WERE SEEKING WOULD, IN
 
    EFFECT, BE SAFEGUARDING NOT ONLY INTERESTS OF THE PARTICULAR
 EMPLOYEES INVOLVED, BUT ALSO THE
 
    INTERESTS OF OTHERS IN THE BARGAINING UNIT BY EXERCISING VIGILANCE TO
 MAKE CERTAIN THAT THE
 
    AGENCY DOES NOT INITIATE OR CONTINUE A PRACTICE OF IMPOSING
 PUNISHMENT UNJUSTLY. THE
 
    REPRESENTATIVE'S PRESENCE IS AN ASSURANCE TO OTHER PROBATIONARY
 EMPLOYEES IN THE BARGAINING
 
    UNIT THAT THEY TOO CAN OBTAIN HIS AID AND PROTECTION IF CALLED UPON
 TO ATTEND A LIKE MEETING
 
    WHERE SUCH DISCIPLINE IS IMPOSED.
 
    FURTHER, IN MY VIEW, SUCH RIGHT OF UNION REPRESENTATION WILL
 EFFECTUATE THE PURPOSES AND
 
    POLICIES OF THE ORDER BY ALLOWING THE 2NDIVIDUAL EMPLOYEE WHO MAY BE
 TOO FEARFUL OR
 
    INARTICULATE TO RELATE ACCURATELY WHAT OCCURRED, OR TOO IGNORANT OF
 THE LAW OF THE SHOP TO
 
    RAISE EXTENUATING FACTORS, THE BENEFIT OF A KNOWLEDGEABLE UNION
 REPRESENTATIVE.  IN VIEW OF
 
    THE PROBATIONARY STATUS OF THE EMPLOYEES IN THIS CASE AND THEIR LACK
 OF APPEAL RIGHTS, THIS,
 
    INDEED, MAY BE THEIR ONLY OPPORTUNITY FOR KNOWLEDGEABLE UNION
 REPRESENTATION.
 
    BASED UPON THE FOREGOING, THE ASSISTANT SECRETARY CONCLUDED THAT THE
 ACTIVITY'S REFUSAL TO ALLOW THE UNION, AS EXCLUSIVE REPRESENTATIVE OF
 THE UNIT EMPLOYEES INVOLVED, THE RIGHT TO PARTICIPATE FULLY IN SUCH
 DISCUSSIONS VIOLATED SECTION 19(A)(6).  FURTHER, NOTING "THE VESTED
 DERIVATIVE RIGHT OF REPRESENTATION AT FORMAL MEETINGS UNDER SECTION 10()
 WHEN THE EMPLOYEE DEEMS SUCH REPRESENTATION IMPERATIVE FOR THE
 PROTECTION OF HIS OWN EMPLOYMENT INTERESTS," THE ASSISTANT SECRETARY
 FOUND THAT THE ACTIVITY'S DENIAL OF THE EMPLOYEES' REQUEST FOR UNION
 REPRESENTATION WAS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
 
    THE AGENCY APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
 COUNCIL.  THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW,
 CONCLUDING THAT THE ASSISTANT SECRETARY'S DECISION RAISES A MAJOR POLICY
 ISSUE, NAMELY:  "WHETHER THE ASSISTANT SECRETARY'S INTERPRETATION AND
 APPLICATION OF SECTION 10(E) OF THE ORDER IN THE CIRCUMSTANCES OF THIS
 CASE ARE CONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER." THE
 COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY, HAVING CONCLUDED
 THAT THE REQUEST MET THE CRITERIA SET FORTH IN SECTION 2411.47(E)(2) OF
 ITS RULES.  THE UNION FILED A BRIEF ON THE MERITS WITH THE COUNCIL AS
 PROVIDED IN SECTION 2411.16 OF THE COUNCIL'S RULES.  THE INTERNATIONAL
 ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, FILED AN
 AMICUS CURIAE BRIEF, AS PROVIDED IN SECTION 2411.49 OF THE COUNCIL'S
 RULES.
 
                                  OPINION
 
    AS NOTED ABOVE, THE COUNCIL CONCLUDED THAT THE DECISION OF THE
 ASSISTANT SECRETARY HEREIN RAISED A MAJOR POLICY ISSUE AS TO WHETHER HIS
 INTERPRETATION AND APPLICATION OF SECTION 10(E) OF THE ORDER IN THE
 CIRCUMSTANCES OF THIS CASE WERE CONSISTENT WITH THE PURPOSES AND
 POLICIES OF THE ORDER.  MORE PARTICULARLY, THE ISSUE PRESENTED CONCERNS
 THE PROPRIETY OF THE ASSISTANT SECRETARY'S INTERPRETATION AND
 APPLICATION OF THE LAST SENTENCE OF SECTION 10(E) IN FINDING "THAT THE
 MEETINGS . . ., CALLED FOR THE EXPLICIT PURPOSE OF TERMINATING
 PROBATIONARY EMPLOYEES, WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF
 (S)ECTION 10(E) OF THE ORDER" WHICH "SUBSTANTIALLY AFFECTED PERSONNEL
 POLICIES AND PRACTICES AS THEY RELATED TO THE SPECIFIC EMPLOYEES' JOB
 SECURITY . .  . (AS WELL AS) OTHER EMPLOYEES IN THE BARGAINING UNIT,"
 AND THAT THE ACTIVITY'S REFUSAL TO PERMIT FULL PARTICIPATION AT THOSE
 MEETINGS BY THE EXCLUSIVE REPRESENTATIVE WAS IN VIOLATION OF SECTION
 19(A)(1) AND (6) OF THE ORDER.
 
    THE LAST SENTENCE OF SECTION 10(E) PROVIDES:
 
    THE (EXCLUSIVE REPRESENTATIVE) SHALL BE GIVEN THE OPPORTUNITY TO BE
 REPRESENTED AT FORMAL
 
    DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
 REPRESENTATIVES CONCERNING
 
    GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
 AFFECTING GENERAL WORKING
 
    CONDITIONS OF EMPLOYEES IN THE UNIT.
 
    WITH REGARD TO THIS SENTENCE, THE COUNCIL HAS PREVIOUSLY STATED IN
 ITS LYNDON B. JOHNSON SPACE CENTER (NASA) DECISION:  /5/
 
    THE LANGUAGE OF THE PERTINENT PORTION OF SECTION 10(E) . . .  MAKES
 CLEAR THAT IT IS NOT THE
 
    INTENT OF THE ORDER TO GRANT TO AN EXCLUSIVE REPRESENTATIVE A RIGHT
 TO BE REPRESENTED IN EVERY
 
    DISCUSSION BETWEEN AGENCY MANAGEMENT AND EMPLOYEES.  RATHER, SUCH A
 RIGHT EXISTS ONLY WHEN THE
 
    DISCUSSIONS ARE DETERMINED TO BE FORMAL DISCUSSIONS AND CONCERN
 GRIEVANCES, PERSONNEL POLICIES
 
    AND PRACTICES, OR OTHER MATTERS AFFECTING THE GENERAL WORKING
 CONDITIONS OF UNIT EMPLOYEES.
 
    THUS, THE DISCUSSION OR MEETING FOR WHICH REPRESENTATION IS SOUGHT
 MUST BE "FORMAL" IN NATURE AND THE TOPIC OF THE MEETING MUST BE ONE OR
 MORE OF THE MATTERS ENUMERATED IN THE LAST SENTENCE OF SECTION 10(E),
 I.E., "GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
 AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." BOTH
 ELEMENTS MUST EXIST FOR THE RIGHT OR REPRESENTATION UNDER SECTION 10(E)
 TO ACCRUE EITHER TO THE EXCLUSIVE REPRESENTATIVE OR, DERIVATIVELY, TO
 THE EMPLOYEE INVOLVED.  /6/
 
    AS TO THE FIRST ELEMENT, THE QUESTION OF WHETHER A MEETING IS
 "FORMAL" OR INFORMAL IS ESSENTIALLY A FACTUAL DETERMINATION WHICH, IN
 OUR VIEW, IS A MATTER BEST RESOLVED ON A CASE-BY-CASE BASIS BY THE
 ASSISTANT SECRETARY AS FINDER OF FACT, TAKING INTO CONSIDERATION AND
 WEIGHING A VARIETY OF FACTORS SUCH AS:  WHO CALLED THE MEETING AND FOR
 WHAT PURPOSE;  WHETHER WRITTEN NOTICE WAS GIVEN;  WHERE THE MEETING WAS
 HELD;  WHO ATTENDED;  WHETHER A RECORD OR NOTES OF THE MEETING WERE
 KEPT;  AND WHAT WAS ACTUALLY DISCUSSED.  /7/ IN THE INSTANT CASE, THE
 ASSISTANT SECRETARY FOUND THE MEETINGS TO BE FORMAL BECAUSE, INTER ALIA,
 THEY "WERE CALLED SPECIFICALLY FOR THE PURPOSE OF TERMINATING THE
 PROBATIONARY EMPLOYEES AND NOT FOR INVESTIGATORY PURPOSES." AS
 PREVIOUSLY NOTED, THE FINDER OF FACT MAY APPROPRIATELY RELY UPON THE
 PURPOSE(S) FOR WHICH A MEETING WAS CALLED IN DECIDING WHETHER IT
 CONSTITUTES A "FORMAL DISCUSSION." THE COUNCIL, THEREFORE, IN ACCORDANCE
 WITH ITS CONSISTENT POLICY, WILL NOT PASS UPON THE ASSISTANT SECRETARY'S
 ADEQUATELY SUPPORTED FACTUAL DETERMINATION IN THIS REGARD.  /8/
 
    WE NEXT TURN TO THE SECOND ELEMENT REQUIRED TO BE MET BY THE LAST
 SENTENCE OF SECTION 10(E), I.E., WHETHER THE FORMAL DISCUSSION CONCERNS
 "GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
 AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." CLEARLY,
 THE SUBJECT OF THE INSTANT DISCUSSION DID NOT CONCERN A GRIEVANCE.
 THUS, THE ASSISTANT SECRETARY DID NOT FIND, AND IT HAS NOT BEEN ALLEGED,
 EITHER THAT A GRIEVANCE WAS FILED BY OR ON BEHALF OF THE FOUR
 PROBATIONARY EMPLOYEES CONCERNING THE TERMINATION OF THEIR EMPLOYMENT AT
 ANY TIME PRIOR TO THE MEETINGS AT ISSUE HEREIN, OR THAT THE SUBJECT OF
 SUCH MEETINGS WAS GRIEVANCES.  /9/ NOR DO WE FIND THAT THE DISCUSSIONS
 HEREIN CONCERNED "PERSONNEL POLICIES" AS THAT TERM IS USED IN SECTION
 10(E) OF THE ORDER.  /10/
 
    THUS, THE ISSUE HERE IS ULTIMATELY NARROWED TO WHETHER THE SUBJECT
 MEETINGS CONCERNED "OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS
 OF EMPLOYEES IN THE UNIT." AS PREVIOUSLY INDICATED, THE MEETINGS WERE
 CALLED FOR THE SPECIFIC PURPOSE OF NOTIFYING THE FOUR PROBATIONERS THAT
 AGENCY MANAGEMENT HAD DECIDED TO TERMINATE THEIR EMPLOYMENT.  IN THIS
 REGARD, THE INSTANT APPEAL BEARS A SIMILARITY TO THE COUNCIL'S
 LOUISVILLE DECISION, /11/ WHEREIN THE TERMINATION OF AN EMPLOYEE
 EXCLUSIVE REPRESENTED BY A LABOR ORGANIZATION ALSO WAS INVOLVED.  IN
 LOUISVILLE, AFTER A UNIT EMPLOYEE WAS NOTIFIED ON HIS PROPOSED REMOVAL,
 THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE SOUGHT AN EXTENSION OF THE TIME
 LIMIT SPECIFIED FOR REPLY TO THE NOTICE ON THE GROUND THAT THE EMPLOYEE
 HAD BEEN HOSPITALIZED, BUT THE REQUEST WAS DENIED.  THE COUNCIL,
 INTERPRETING THE FIRST SENTENCE OF SECTION 10(E), CONCLUDED THAT AN
 AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S STATUS AS AN
 EMPLOYEE'S REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE
 EMPLOYEE DESIGNATES ANOTHER REPRESENTATIVE, DOES NOT CONSTITUTE AN
 UNFAIR LABOR PRACTICE.  IN ITS DECISION (3 FLRC 686 AT 691), THE COUNCIL
 RULES THAT ADVERSE ACTION PROCEEDINGS, "WHICH ARE FUNDAMENTALLY PERSONAL
 TO THE INDIVIDUAL AND ONLY REMOTELY RELATED TO THE RIGHTS OF THE OTHER
 UNIT EMPLOYEES, ARE NOT AUTOMATICALLY WITHIN THE SCOPE OF THE EXCLUSIVE
 REPRESENTATIVE'S 10(E) RIGHTS, WHICH ARE PROTECTED BY THE ORDER."
 SIMILARLY, IN THE INSTANT CASE, WHILE THE EMPLOYEES INVOLVED ARE
 PROBATIONARY EMPLOYEES POSSESSING LIMITED STATUTORY APPEAL RIGHTS
 (RATHER THAN THE CAREER EMPLOYEE IN LOUISVILLE), THE SUBJECT OF THE
 MEETINGS IN BOTH CASES WAS NEVERTHELESS "FUNDAMENTALLY PERSONAL TO THE
 INDIVIDUAL(S) AND ONLY REMOTELY RELATED TO THE RIGHTS OF THE OTHER UNIT
 EMPLOYEES." AS SUCH, IN THE COUNCIL'S OPINION, THE MEETINGS MAY NOT
 PROPERLY BE FOUND TO CONCERN "OTHER MATTERS AFFECTING GENERAL WORKING
 CONDITIONS OF EMPLOYEES IN THE UNIT" WITHIN THE MEANING OF SECTION 10(E)
 OF THE ORDER.
 
    ACCORDINGLY, AS THE "FORMAL DISCUSSIONS" HEREIN DID NOT CONCERN
 "GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
 AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT" UNDER THE
 LAST SENTENCE OF SECTION 10(E), THE EXCLUSIVE REPRESENTATIVE HAD NO
 RIGHT GUARANTEED BY THE ORDER TO BE REPRESENTED AT THE MEETINGS IN
 QUESTION, AND THE INDIVIDUAL PROBATIONARY EMPLOYEES THEREFORE HAD NO
 DERIVATIVE RIGHT TO UNION REPRESENTATION IN THE CIRCUMSTANCES OF THIS
 CASE.  CONSEQUENTLY, THE ASSISTANT SECRETARY'S CONCLUSION THAT THE
 ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER HEREIN BY
 DENYING UNION REPRESENTATION TO FOUR PROBATIONARY EMPLOYEES, BASED UPON
 HIS INTERPRETATION OF THE REQUIREMENTS OF SECTION 10(E), IS INCONSISTENT
 WITH THE PURPOSES AND POLICIES OF THE ORDER AND MUST BE SET ASIDE.
 
    THIS IS NOT TO SAY, HOWEVER, THAT UNIONS AND PROBATIONARY EMPLOYEES
 ARE WITHOUT RECOURSE IN THESE AND SIMILAR CIRCUMSTANCES.  THUS, WHILE
 THE COUNCIL HAS CONCLUDED THAT THE ASSISTANT SECRETARY'S 19(A)(1) AND
 (6) FINDING IN THE INSTANT CASE MUST BE SET ASIDE, THE COUNCIL ALSO
 RECOGNIZED IN LOUISVILLE (3 FLRC 636 AT 691) THAT ". . . THE PARTIES TO
 AN EXCLUSIVE RELATIONSHIP COULD NEGOTIATE RIGHTS TO BE ACCORDED THE
 EXCLUSIVE REPRESENTATIVE RELATED TO INDIVIDUAL EMPLOYEE ADVERSE ACTIONS
 SO LONG AS THEY WERE OTHERWISE CONSISTENT WITH APPLICABLE LAWS AND
 REGULATIONS." FURTHER, THE COUNCIL RULED IN VANDENBERG AIR FORCE BASE
 /12/ THAT "(T)HE RELIEF FOR ALLEGED VIOLATIONS OF NEGOTIATED RIGHTS . .
 . WOULD BE AVAILABLE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE WITH
 SECTION 13 OF THE ORDER REQUIRES THE PARTIES TO INCLUDE IN THEIR
 AGREEMENT." THUS, TO THE EXTENT CONSISTENT WITH LAW AND REGULATION, THE
 PARTIES COULD AGREE TO NEGOTIATE A PROCEDURE PERMITTING UNION
 REPRESENTATION OF PROBATIONARY EMPLOYEES PRIOR TO THEIR TERMINATION.
 /13/ IN THE INSTANT CASE, THE UNION HAS NOT CONTENDED THAT IT HAD ANY
 RIGHT, ARISING FROM THE AGREEMENT, TO REPRESENT PROBATIONARY EMPLOYEES
 DURING TERMINATION PROCEEDINGS.  FURTHERMORE, AS PREVIOUSLY NOTED, THE
 PARTIES' NEGOTIATED AGREEMENT EXPRESSLY BARRED GRIEVANCES AND
 ARBITRATION OVER THE TERMINATION OF PROBATIONARY EMPLOYEES.
 
    IN SUMMARY, FOR THE REASONS SET FORTH ABOVE, THE COUNCIL CONCLUDES
 THAT THE ASSISTANT SECRETARY'S INTERPRETATION AND APPLICATION OF SECTION
 10(E) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE WERE NOT CONSISTENT
 WITH THE PURPOSES AND POLICIES OF THE ORDER.
 
                                CONCLUSION
 
    THEREFORE, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF
 PROCEDURE, WE SET ASIDE THE DECISION AND ORDER OF THE ASSISTANT
 SECRETARY AND REMAND THIS MATTER FOR APPROPRIATE ACTION CONSISTENT WITH
 THIS DECISION.
 
    BY THE COUNCIL.
 
                           HENRY B. FRAZIER III
 
                            EXECUTIVE DIRECTOR
 
    ISSUED:  DECEMBER 28, 1978
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
    /2/ SECTION 19(A) OF THE ORDER PROVIDES IN PERTINENT PART:
 
    SEC. 19.  UNFAIR LABOR PRACTICES.  (A) AGENCY MANAGEMENT SHALL NOT--
 
    (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
 OF THE RIGHTS ASSURED
 
    BY THIS ORDER;
 
   .          .          .          .
 
 
    (6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
 AS REQUIRED BY THIS
 
    ORDER.
 
    /3/ IN THIS CONNECTION, THE ACTIVITY TOOK THE POSITION THAT THE
 GOVERNING REGULATION WHICH CONTAINED THE PROCEDURE FOR TERMINATING
 TEMPORARY AND PROBATIONARY EMPLOYEES, NAVSHIPDNOR/SURSHIPFIVE
 INSTRUCTION 12300.1, DID NOT ENTITLE THE PROBATIONARY EMPLOYEES TO SUCH
 REPRESENTATION.  AS FOUND BY THE ASSISTANT SECRETARY, INSTRUCTION
 12300.1 MADE NO MENTION OF ANY "PRE-ACTION INVESTIGATION" FOR
 PROBATIONARY EMPLOYEES SUCH AS DESCRIBED IN ARTICLE 31 (DISCIPLINARY AND
 ADVERSE ACTIONS), SECTION 2 OF THE PARTIES' NEGOTIATED AGREEMENT, WHICH
 PROVIDES IN PERTINENT PART:
 
    WHEN IT IS DETERMINED BY THE SUPERVISOR HAVING AUTHORITY THAT FORMAL
 DISCIPLINARY OR
 
    ADVERSE ACTION MAY BE NECESSARY, AN INVESTIGATOR WILL NORMALLY BE
 APPOINTED WITHIN 5 WORKDAYS
 
    TO CONDUCT A PRE-ACTION INVESTIGATION OF THE INCIDENT OR KNOWLEDGE OF
 THE INCIDENT BY THE
 
    SUPERVISOR . . .  THE INVESTIGATOR ASSIGNED WILL CONDUCT WHATEVER
 INQUIRY IS NECESSARY TO
 
    DETERMINE AND DOCUMENT THE FACTS.  IN ALL CASES . . . A DISCUSSION
 WILL BE HELD WITH THE
 
    EMPLOYEE AS PART OF THE PRE-ACTION INVESTIGATION.  IT IS AGREED THAT
 DURING ANY DISCUSSION
 
    HELD WITH THE EMPLOYEE AS PART OF THE PRE-ACTION INVESTIGATION THE
 EMPLOYEE SHALL BE ADVISED
 
    OF HIS RIGHT TO BE REPRESENTED BY THE COGNIZANT (UNION) STEWARD.  IF
 THE EMPLOYEE DECLINES
 
    REPRESENTATION, THE COGNIZANT (UNION) STEWARD OR APPROPRIATE CHIEF
 STEWARD IN HIS ABSENCE
 
    SHALL BE GIVEN THE OPPORTUNITY TO BE PRESENT TO REPRESENT THE COUNCIL
 . . .
 
    IN THIS REGARD, AS REFLECTED IN THE DOCUMENTS ACCOMPANYING THE
 AGENCY'S APPEAL IN THIS CASE, APPENDIX 2 OF THE PARTIES' NEGOTIATED
 AGREEMENT FURTHER PROVIDED, IN PART, AS FOLLOWS:
 
    APPENDIX 2:  EXCLUSIONS FROM GRIEVANCE AND ARBITRATION
 
    1.  MATTERS FOR WHICH STATUTORY APPEALS PROCEDURES EXIST OR WHICH ARE
 SUBJECT TO FINAL
 
    ADMINISTRATIVE REVIEW OR REGULATIONS OF THE CIVIL SERVICE COMMISSION
 (CSC) SUCH AS:
 
   .          .          .          .
 
 
    O.  SEPARATION FOR FAILURE TO SATISFACTORILY COMPLETE A TRIAL OR
 PROBATIONARY PERIOD
 
    APPEALABLE UNDER PART 315 OF CSC REGULATIONS.
 
    /4/ SECTION 10(E) PROVIDES AS FOLLOWS:
 
    (E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION, IT IS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
 AND TO NEGOTIATE AGREEMENTS
 
    COVERING ALL EMPLOYEES IN THE UNIT.  IT IS RESPONSIBLE FOR
 REPRESENTING THE INTERESTS OF ALL
 
    EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
 LABOR ORGANIZATION
 
    MEMBERSHIP.  THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO
 BE REPRESENTED AT FORMAL
 
    DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
 REPRESENTATIVES CONCERNING
 
    GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
 AFFECTING GENERAL WORKING
 
    CONDITIONS OF EMPLOYEES IN THE UNIT.
 
    /5/ NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WASHINGTON,
 D.C. AND LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON, TEXAS, A/SLMR
 457, 3 FLRC 617 (FLRC NO.  74A-95 (SEPT. 26, 1975), REPORT ON. 84), AT
 621.
 
    /6/ STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 709 (FLRC NO. 75P-2 (DEC.
 2, 1976), REPORT NO. 116), AT 711.
 
    /7/ THE ASSISTANT SECRETARY HAS IDENTIFIED AND APPLIED THESE AND
 OTHER FACTORS IN A NUMBER OF PREVIOUS DECISIONS.  SEE, E.G., U.S. ARMY
 TRAINING CENTER, INFANTRY, FORT JACKSON LAUNDRY FACILITY, FORT JACKSON,
 SOUTH CAROLINA, A/SLMR 242 (JAN. 17, 1973);  U.S.  DEPARTMENT OF THE
 ARMY, TRANSPORTATION MOTOR POOL, FORT WAINWRIGHT, ALASKA, A/SLMR 278
 (JUNE 25, 1978);  FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
 FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR 438
 (SEPT. 30, 1974);  SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM
 CENTER, CHICAGO, ILLINOIS, A/SLMR 804 (FEB. 18, 19-7);  AND DEPARTMENT
 OF THE TREASURY, U.S.  CUSTOMS SERVICE, REGION VII, LOS ANGELES,
 CALIFORNIA, A/SLMR 926 (NOV. 23, 1977).  WITH REGARD TO WHAT WAS
 ACTUALLY DISCUSSED AT SUCH MEETING(S), THE ASSISTANT SECRETARY HAS FOUND
 DISCUSSIONS TO BE "FORMAL" WHEN THEY HAVE RAMIFICATIONS FOR ALL UNIT
 EMPLOYEES (A/SLMR 242) OR WHEN THEY ARE INTEGRALLY RELATED TO THE FORMAL
 GRIEVANCE PROCESS (A/SLMR 926), BUT HAS FOUND DISCUSSIONS TO BE INFORMAL
 WHEN THEY ARE MERE "COUNSELLING" SESSIONS INVOLVING INDIVIDUAL
 EMPLOYEES' CONDUCT (SEE, E.G., INTERNAL REVENUE SERVICE, MID-ATLANTIC
 SERVICE CENTER, A/SLMR 421 (AUG. 26, 1974)) OR CONCERN CONVERSATIONS
 BETWEEN INDIVIDUAL EMPLOYEES AND THEIR SUPERVISORS IN THE COURSE OF
 DAY-TO-DAY OPERATIONS (SEE, GREAT LAKES CASE, A/SLMR 804).
 
    /8/ HOWEVER, TO THE EXTENT THAT THE ASSISTANT SECRETARY ALSO MAY HAVE
 RELIED UPON THE PROBATIONARY STATUS OF THE EMPLOYEES IN QUESTION AND
 THEIR LACK OF STATUTORY APPEAL OR REPRESENTATION RIGHTS FOLLOWING
 MANAGEMENT'S TERMINATION OF THEIR EMPLOYMENT IN FINDING THAT THE
 MEETINGS WERE FORMAL, SUCH RELIANCE IS INCONSISTENT WITH THE CSC'S
 INTERPRETATION AND APPLICATION OF THE RELEVANT PROVISIONS IN THE FEDERAL
 PERSONNEL MANUAL REGARDING THE STATUS AND RIGHTS OF PROBATIONARY
 EMPLOYEES AND THEREFORE MUST BE SET ASIDE AS INCONSISTENT WITH THE
 PURPOSES AND POLICIES OF THE ORDER.  SEE FPM CHAPTER 315, SUBCHAPTER 8-1
 ("PURPOSE OF PROBATIONARY PERIOD") WHICH STATES THAT ". . . THE
 PROBATIONARY PERIOD DESCRIBED IN THIS SUBCHAPTER (IS) A FINAL AND HIGHLY
 SIGNIFICANT STEP IN THE EXAMINING PROCESS" DURING WHICH A PROBATIONARY
 EMPLOYEE "MAY BE SEPARATED FROM THE SERVICE WITHOUT UNDUE FORMALITY IF
 CIRCUMSTANCES WARRANT," AND SUBCHAPTER 8-4 PERTAINING TO THE SEPARATION
 OF PROBATIONERS FOR UNSATISFACTORY PERFORMANCE OR CONDUCT.
 
    /9/ MOREOVER, AS PREVIOUSLY NOTED, APPENDIX 2 OF THE PARTIES'
 NEGOTIATED AGREEMENT (N. 2, SUPRA) EXPLICITLY BARRED SEPARATION OF
 PROBATIONERS FROM THE GRIEVANCE AND ARBITRATION PROCESS, AND THE
 COGNIZANT INTERNAL REGULATION DID NOT PROVIDE FOR GRIEVANCES OVER SUCH
 ACTION.
 
    /10/ IN THIS REGARD WE NOTE THE UNDISPUTED FACTUAL DETERMINATION
 (RECOMMENDED DECISION AND ORDER OF THE ADMINISTRATIVE LAW JUDGE AT 15),
 TACITLY ADOPTED BY THE ASSISTANT SECRETARY, THAT THE EMPLOYEES'
 SUPERVISOR "WAS NOT A PERSONNEL OFFICER NOR WAS HE SHOWN TO HAVE HAD
 AUTHORITY TO ESTABLISH PERSONNEL POLICIES OR PRACTICES." RATHER, IT WAS
 FOUND THAT THE SUPERVISOR "WAS THE HEAD OF . . . ONLY ONE OF NUMEROUS
 COMPONENTS OF THE . . . (A)CTIVITY, . .  . DID NOT ESTABLISH A POLICY OR
 PRACTICE EVEN FOR (THAT COMPONENT BUT) SIMPLY REACHED A CONCLUSION AND
 ACTED IN EACH CASE (AND) . . . (I)N ANY FUTURE CASE . . . (HE) OR ANY
 ONE ELSE WOULD NOT BE BOUND TO REACH THE SAME RESULT BECAUSE OF WHAT WAS
 DONE IN THIS CASE."
 
    /11/ UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
 LOUISVILLE, KENTUCKY, A/SLMR 400, 3 FLRC 686 (FLRC NO. 74A-54 (OCT. 23,
 1975), REPORT NO. 87).
 
    /12/ DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG
 AIR FORCE BASE, CALIFORNIA, A/SLMR 485, 4 FLRC 586 (FLRC 75A-25 (NOV.
 19, 1976), REPORT NO. 118), AT 595.
 
    /13/ SEE ALSO PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON,
 ASSISTANT SECRETARY CASE NO. 71-3492, 4 FLRC 620 (FLRC 76A-57 (DEC.7,
 1976), REPORT NO. 118), WHEREIN THE COUNCIL DENIED REVIEW OF THE
 ASSISTANT SECRETARY'S FINDING THAT A GRIEVANCE CONCERNING THE
 TERMINATION OF A PROBATIONARY EMPLOYEE FOR ALLEGED MISUSE OF ANNUAL AND
 SICK LEAVE WAS ON A MATTER SUBJECT TO THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE IN THE CIRCUMSTANCES OF THAT CASE.