15:0423(87)CA - Bureau of Government Financial Operations, HQ and NTEU and NTEU Chapter 202 -- 1984 FLRAdec CA



[ v15 p423 ]
15:0423(87)CA
The decision of the Authority follows:


 15 FLRA No. 87
 
 BUREAU OF GOVERNMENT FINANCIAL
 OPERATIONS, HEADQUARTERS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 202
 Charging Party
 
                                            Case No. 3-CA-2646
                                                     13 FLRA No. 5
 
                      SUPPLEMENTAL DECISION AND ORDER
 
    On September 15, 1983, the Authority issued its decision in the
 above-entitled case finding that the Respondent, Bureau of Government
 Financial Operations, Headquarters, had not violated section 7116(a)(1)
 and (8) of the Federal Service Labor-Management Relations Statute (the
 Statute) and ordering that the complaint be dismissed.  More
 specifically, the Authority concluded, based on Internal Revenue Service
 and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven), that the
 Respondent was not obligated under section 7114(a)(2)(A) of the Statute
 /1/ to afford the Union, the National Treasury Employees Union and
 National Treasury Employees Union, Chapter 202, the opportunity to be
 present at an interview of a unit employee in preparation for a hearing
 before the Merit Systems Protection Board (MSPB).
 
    Subsequent to the issuance of the Authority's decision herein, the
 Union petitioned for review of the Authority's decision in the U.S.
 Court of Appeals for the District of Columbia Circuit (No. 83-2180).
 Thereafter, the Authority filed a motion to remand in order "to address
 with more particularity in a supplemental decision the application of
 Brookhaven to the facts and circumstances of the instant case," which
 motion was granted by the Court.  Before addressing the application of
 Brookhaven to the instant case, however, it will be helpful to review
 the facts presented in Brookhaven and the conclusions reached therein.
 
    The situation presented in Brookhaven, which was based upon a
 stipulation of facts, involved meetings with unit employees for the
 purpose of enabling the respondent to prepare its case for a pending
 unfair labor practice proceeding and for an upcoming arbitration hearing
 conducted pursuant to the parties' collective bargaining agreement.  The
 Authority determined that the meetings in question did not constitute
 "formal discussions" within the meaning of section 7114(a)(2)(A) of the
 Statute at which the union was entitled to be represented.  In so doing,
 the Authority noted that not all meetings with unit employees constitute
 formal discussions under that section.  /2/ Based on the facts presented
 in Brookhaven, the Authority reached the conclusion that the meetings,
 which the Authority characterized as fact gathering sessions, did not
 constitute formal discussions on the basis that attendance thereat was
 not mandatory and that no agenda had been established by the respondent
 to discuss matters involving general conditions of employment or
 specific changes in job duties.  /3/ Thus, the Authority found the
 respondent did not unlawfully deny the Union the opportunity to be
 present at the interview in question.  In addition, the Authority found
 that the respondent did not unlawfully question its employees.  /4/
 
    In the instant case, as observed by the Administrative Law Judge and
 noted by the Authority in its September 15, 1983 decision, the sole
 question before the Authority is whether the interview in question was a
 "formal discussion" within the meaning of section 7114(a)(2)(A) of the
 Statute.
 
    Section 7114(a)(2)(A) of the Statute provides that an exclusive
 representative shall be given the opportunity to be represented at a
 formal discussion between one or more representatives of the agency and
 one or more employees in the unit or their representatives concerning
 any grievance or any personnel policy or practices or other general
 conditions of employment.  In order for that right to attach, therefore,
 all elements set forth in that section must be found to exist:  (1) a
 discussion;  (2) which is formal;  (3) between one or more
 representatives of the agency and one or more employees in the unit or
 their representatives;  (4) concerning any grievance or any personnel
 policy or practices or other general conditions of employment.  While
 the Authority did not separately address each of these elements in
 Brookhaven, more recent cases have separately analyzed one or more of
 these elements.  Thus, for example, in Defense Logistics Agency, Defense
 Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984), the Authority
 addressed the elements of subject matter and formality, concluding that
 even though the meeting concerned a condition of employment, it was not
 formal in nature.  Similarly, in Office of Program Operations, Field
 Operations, Social Security Administration, San Francisco Region, 10
 FLRA 172 (1982), the Authority separately addressed who was present at
 the meeting, whether the meeting was formal, and the subject matter of
 the meeting, concluding that the meeting therein was a formal discussion
 within the meaning of section 7114(a)(2)(A) of the Statute.  The
 Authority reaffirms herein this analytical approach for determining
 whether a right to union representation exists under section
 7114(a)(2)(A), i.e., examination of the statutory elements based upon
 the facts presented in each case.
 
    Turning to the instant case, the question raised is whether a
 pre-trial interview of a potential witness in preparation for a
 scheduled hearing before MSPB constitutes a formal discussion within the
 meaning of section 7114(a)(2)(A) at which the Union should have been
 given an opportunity to be represented.  For the reasons which follow,
 we conclude that it was not.
 
    The facts of the present matter, set forth in greater detail in the
 Judge's Decision, indicate that James Lewis, an employee of the
 Respondent, was called to the Office of Personnel by a Labor Relations
 Specialist where he was questioned concerning a pending hearing before
 MSPB regarding an appeal filed by a co-worker.  Lewis had witnessed an
 incident which was apparently considered in the proposed dismissal of
 the co-worker, Philip Murphy.  As found by the Judge, Lewis was
 interviewed by an attorney who was to represent the Respondent at
 Murphy's MSPB hearing and two Labor Relations Specialists.  During the
 course of a meeting which lasted approximately 20 to 30 minutes, the
 attorney asked Lewis a number of questions concerning his observations
 of the incident in which Murphy was involved.
 
    Under the circumstances noted above, the Authority concludes that the
 interview of Lewis by an attorney in preparation of Respondent's case
 for Murphy's MSPB hearing did not concern "any grievance, personnel
 policy or practices or other general conditions of employment" and was
 not "formal" within the meaning of section 7114(a)(2)(A) of the Statute.
  With respect to the subject matter of the discussion, first, the
 meeting did not concern a grievance as that term is used in section
 7114(a)(2)(A).  While section 7103(a)(9) of the Statute contains a broad
 definition of "grievance," /5/ the applicable legislative history of the
 Statute indicates that Congress did not intend it to be all-inclusive.
 /6/ Rather, a union's right to be represented at a formal discussion
 concerning a grievance pursuant to section 7114(a)(2)(A) must be read in
 the context of the Statute as a whole which consistently distinguishes
 between grievances and statutory appeals procedures.  With respect to
 this distinction, see generally section 7121 of the Statute.  In
 particular, sections 7121(d) and 7121(e) of the Statute /7/ provide that
 an employee may raise certain issues under a statutory appeals procedure
 or under the negotiated grievance procedure, but not both.  Further,
 section 7114(a)(5) of the Statute draws distinctions between negotiated
 grievance procedures and other forums.  /8/ Moreover, the United States
 Court of Appeals for the Ninth Circuit reversed a decision of the
 Authority in which the Authority held that a meeting to discuss an Equal
 Employment Opportunity (EEO) complaint concerned a "grievance" within
 the meaning of section 7114(a) since an EEO complaint fell within the
 broad definition of section 7103(a)(9) of the Statute.  /9/ In its
 decision, the Court, noting that the EEO complaint was filed pursuant to
 statutory procedures of the Equal Employment Opportunity Commission
 (EEOC), decided that the EEO claim of discrimination did not constitute
 a "grievance" within the meaning of section 7114(a)(2)(A).  In this
 regard, the Court stated, " . . . the EEOC procedures involved in this
 case are not controlled by 5 U.S.C. 7114(a)(2)(A) because they are
 separate and distinct from the grievance process to which 5 U.S.C. 7103
 and 7114 are directed." Thus, the Authority finds, based on the
 distinctions in the Statute and its legislative history noted above, and
 the Court decision in the IRS, Fresno case, supra, that a grievance
 within the meaning of section 7114(a)(2)(A) does not encompass a
 statutory appeal.  /10/ In the instant case, the meeting was held solely
 in connection with a statutory appeal-- namely, an MSPB appeal.
 Accordingly, the Authority concludes that the meeting did not concern a
 "grievance" within the meaning of section 7114(a)(2)(A) of the Statute.
 
    Second, the meeting between Lewis and the Respondent's
 representatives did not concern "any personnel policy or practices." In
 this regard, the record is clear that the meeting was limited to
 questioning Lewis regarding his observations related to a discrete
 incident relied upon by the Respondent in proposing a dismissal action
 concerning another employee.  There was no discussion of any personnel
 policy or practice.  The meeting was held for the sole purpose of
 preparing Respondent's representatives for a hearing before MSPB on the
 other employee's appeal.  Further, the personnel policies and practices
 referred to in section 7114(a)(2)(A) are general rules applicable to
 agency personnel, not discrete actions taken with respect to individual
 employees.  The language of Sec. 7114(a)(2)(A) refers to " . . .
 personnel policy or practices or other general conditions of employment.
 . . . " Use of the phrase "or other" indicates that 'general' refers
 back to "personnel policy or practice." Had Congress not intended
 'general conditions of employment,' to subsume personnel policy or
 practice, it would have omitted the word 'other.' This interpretation is
 bolstered by Representative Udall's sectional analysis /11/ which
 clearly states if a discussion does not concern conditions of employment
 which affect employees in the unit generally, and is not a grievance,
 the union has no right to representation under section 7114(a)(2)(A).
 The agency staff personnel were interviewing Mr. Lewis to ascertain the
 facts concerning Mr. Murphy's actions;  they were not discussing general
 personnel policy or practices.  /12/
 
    Finally, the meeting cannot be said to have involved any "other
 general condition of employment." Section 7103(a)(14) of the Statute
 defines "conditions of employment" as " . . . personnel policies,
 practices, and matters, whether established by rule, regulation, or
 otherwise, affecting working conditions(.)" However, the legislative
 history of section 7114(a)(2)(A) of the Statute clearly indicates the
 Congressional intent that formal discussions are limited to those
 discussions (other than grievance meetings) "which concern conditions of
 employment affecting employees in the unit generally." /13/ As noted
 above, the meeting was concerned solely with the questioning of a
 witness to an event which served as a basis for the proposed adverse
 action against another employee.
 
    Therefore, the Authority concludes that the subject matter of the
 meeting between Lewis and Respondent's representatives did not involve a
 grievance or any personnel policy or practices or other general
 conditions of employment-- at least one of which must be present as a
 prerequisite for finding that the subject matter of the discussion falls
 within the purview of section 7114(a)(2)(A) of the Statute.
 
    Moreover, the Authority concludes that the interview of Lewis was not
 "formal" in nature.  In Department of Health and Human Services, Social
 Security Administration, Bureau of Field Operations, San Francisco,
 California, 10 FLRA 115 (1982), the Authority noted a number of factors
 relevant to a determination of whether meetings, alleged to be formal
 discussions within the meaning of section 7114(a)(2)(A) of the Statute,
 are in fact "formal" in nature.  Thereafter, in Defense Logistics
 Agency, Defense Depot Tracy, Tracy, California, supra, the Authority
 emphasized that such factors were not intended to be exhaustive, and
 that other factors may be identified and applied as appropriate in a
 particular case.  Thus, in determining formality, the Authority will
 consider the totality of facts and circumstances presented.
 
    The Judge herein found that the interview of Lewis constituted a
 formal meeting because the meeting was initiated by management, was held
 in an area apart from the employee's normal work area, and was marked by
 the taking of notes by "high level" representatives of the Respondent.
 In disagreeing with the Judge's conclusion that the meeting in question
 was formal in nature, the Authority notes particularly that the meeting
 was called by staff t specialists who did not have any supervisory or
 managerial responsibility over the employee being interviewed;  that the
 meeting was held in a staff specialist's office and not in the office of
 anyone in the employee's chain of supervision and no one in that chain
 attended the meeting;  and that there was no clear finding that Lewis'
 continued presence at the meeting was mandatory.  Additionally, the
 record does not establish that there was any advance notice of the
 meeting or that any formal agenda was prepared and distributed prior to
 the interview.  /14/
 
    In summary, section 7114(a)(2)(A) rights arise only when all of the
 statutory criteria exist.  That is, there must be a discussion which is
 formal in nature between one or more representatives of the agency and
 one or more employees or their representatives in an exclusively
 represented bargaining unit concerning grievances, personnel policy or
 practices, or other general conditions of employment.  The absence of
 any one of these criteria is fatal to a complaint alleging that an
 agency has failed to accord an exclusive representative its right to be
 represented.  As noted above, in the instant case at least two of these
 criteria are not met.  The subject matter of the meeting did not involve
 a grievance, personnel policy or practices, or other general conditions
 of employment.  In addition, the totality of the facts and circumstances
 does not establish that the meeting was formal in nature.
 
    Having found that the interview of Lewis by the Respondent's
 representatives was not a formal discussion within the meaning of
 section 7114(a)(2)(A) of the Statute, the Authority concludes that the
 Respondent's failure to provide the Union with an opportunity to be
 represented was not violative of section 7116(a)(1) and (8) of the
 Statute, and the Judge's finding to the contrary must be set aside.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-2646 be, and
 it hereby is, dismissed.
 
    Issued, Washington, D.C., August 1, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
    Member Haughton, concurring in part and dissenting in part:
 
    Today the Authority issues a supplemental decision in the instant
 case.  As a result of reconsideration by the Authority of the issues
 presented, today's decision changes the earlier analysis but reaches the
 same conclusion.  While I generally support the analysis my colleagues
 set forth, I believe its application must lead to the conclusion that
 the Respondent violated section 7116(a)(1) and (8) of the Statute by not
 affording the Union the opportunity to be present at a pre-MSPB hearing
 interview between the Respondent's representative and a bargaining unit
 employee.  In the decision issued on September 15, 1983, the Authority
 found that the interview of the employee did not constitute a formal
 discussion based on its earlier decision in Internal Revenue Service and
 Brookhaven Service Center, 9 FLRA 930 (1982).  In Brookhaven the
 Authority concluded
 
          (T)he . . . meetings did not constitute formal discussions
       within the meaning of section 7114(a)(2)(A).  Rather, they were
       fact-gathering sessions between a representative of the Respondent
       and a unit employee wherein management was merely seeking
       information to aid in the preparation of its cases for
       presentation at proceedings before a third-party neutral, in the
       same manner as an exclusive representative may gather the facts
       from employees prior to such proceedings.
 
    Brookhaven, at 933.  Because the Authority regarded the interview in
 the instant case as such a "fact-gathering session," it did not
 separately consider whether, for example, the meeting in question here
 was "formal" in nature or concerned "any grievance or any personnel
 policy or practices or other general conditions of employment."
 
    The Authority today does not rest on the use of "fact-gathering" as a
 determinant in deciding cases arising under section 7114(a)(2)(A) but
 reaffirms the approach used in more recent cases where the specific
 statutory language is analyzed and applied to the facts of each case.
 When this is done the conclusion must be that there was, in fact, a
 "formal" discussion within the meaning of section 7114(a)(2)(A) and it
 did concern "personnel policy or practices" as provided in that section.
 
    The majority finds that the interview in question did not concern
 "any grievance or any personnel policy or practices or other general
 conditions of employment." I agree with the majority's finding that the
 interview here did not concern a grievance but, rather, concerned a
 statutory appeal.  I must differ, however, with the finding that the
 interview was not a discussion "concerning . . . any personnel policy or
 practices. . . . "
 
    In the absence of any specific legislative history on this particular
 phrase, it must be given its ordinary meaning.  Thus, a meeting which
 has significance for, or is related to, an agency's personnel policy or
 practice is one that concerns such policy or practice.
 
    It is clear from the record that the agency proposed the dismissal of
 an employee following that employee's participation in an altercation
 with a supervisor.  The action proposed either must have been based on
 the application of some existing personnel policy or practice, or itself
 established a personnel policy or practice.  In either event, it follows
 that the proposed dismissal action concerned a personnel policy or
 practice.  It is also clear that the interview concerned that same
 policy or practice.  That is, the purpose of the interview was to
 discuss the situation that formed the basis of the Respondent's action
 and to provide the Respondent with information with which to defend the
 action before MSPB.  Therefore, I find that the interview was a
 discussion "concerning" the application of "personnel policy or
 practices."
 
    It is important to emphasize that the application of the previously
 existing or newly-established personnel policy or practice that led to
 the imposition of discipline in this instance could have an effect on
 unit employees generally.  For example, if dismissal or discipline of a
 unit employee is proposed at some future date, the way in which the
 Respondent has previously applied a personnel policy or practice could
 have precedential effect and thus would be a concern to the Union in
 fulfilling its representational responsibilities.  For this reason, the
 interview also concerned the interests of employees in the unit
 generally.  /15/
 
    Furthermore, I find based on the record that the interview herein was
 "formal" within the meaning of section 7114(a)(2)(A) of the Statute.
 The interview was held away from the employee's desk in the office of
 the Respondent's labor relations specialist, the interview lasted
 approximately 20 to 30 minutes, and notes of the interview were taken.
 Additionally, the record indicates that the interview was more than
 simply a spontaneous or informal meeting but was a planned effort to
 elicit information from the particular employee.  Indeed the employee
 was not called in for questioning until Respondent's representatives
 learned the employee was scheduled to appear at the MSPB hearing in the
 capacity of a Union witness.  Finally, it would be hard to say that the
 meeting was entirely voluntary in light of the witness' testimony that
 the Respondent's agents told him "it would be in the best interest of
 everybody if he cooperated, but he did not have to." See p. 3 of the
 Judge's Decision in this matter.  Bureau of Government Financial
 Operations, Headquarters, 13 FLRA No. 5 (1983).  Therefore, based on the
 totality of the facts and circumstances presented here, I am of the view
 that the interview in question meets the test of formality as defined by
 the Authority in previous decisions.  /16/
 
    In sum, I find that the interview here was formal and concerned a
 personnel policy or practice.  I also find that a discussion took place
 between one or more representatives of the agency and an employee in the
 unit.  Therefore, based on the entire record, and in consideration of
 the specific statutory language, I conclude that the Union was entitled
 to be represented at the interview under section 7114(a)(2)(A) of the
 Statute and that the Respondent's failure to afford the Union an
 opportunity to be represented there constituted a violation of section
 7116(a)(1) and (8) of the Statute.
 
    Issued, Washington, D.C., August 1, 1984
 
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general conditions of employment(.)
 
 
    /2/ The Authority specifically noted the following statement of
 Representative Clay of Missouri concerning the word "formal":
 
          The word "formal" was inserted before "discussion" in order to
       make clear the intention that this subsection does not require
       that an exclusive representative be present during highly
       personal, informal meetings such as counseling sessions . . .
 
          124 Cong.Rec. 29187 (1978).
 
 
    /3/ We disagree, therefore, with our colleague's characterization of
 Brookhaven as set forth in his separate opinion.  However, in order to
 clarify any possible ambiguity along these lines, we are issuing this
 Supplemental Decision and Order in the instant case.
 
 
    /4/ In this regard, the Authority discussed the precautions agency
 management must take prior to conducting interviews of unit employees in
 preparation for third party proceedings.  The Authority found, from the
 facts of the case, that the manner in which the employees were
 questioned did not constitute an independent violation of section
 7116(a)(1) of the Statute.  Thus, the employees had been advised prior
 to the meetings as to their purpose, that they were under no obligation
 to be interviewed and that they would not be subject to reprisals from
 agency management regardless of whether they consented to be
 interviewed.  Moreover, the Authority concluded that the General Counsel
 had not established that the questioning of employees was done in a
 coercive context or exceeded its legitimate scope and purpose of
 otherwise interfered with employees' rights under the Statute.
 
 
    /5/ Section 7103(a)(9) provides that:
 
          (9) 'grievance' means any complaint--
 
          (A) by any employee concerning any matter relating to the
       employment of the employee;
 
          (B) by any labor organization concerning any matter relating to
       the employment of any employee;  or
 
          (C) by any employee, labor organization, or agency concerning--
 
          (i) the effect or interpretation, or a claim of breach, of a
       collective bargaining agreement;  or
 
          (ii) any claimed violation, misinterpretation, or
       misapplication of any law, rule, or regulation affecting
       conditions of employment(.)
 
 
    /6/ In this regard, the House Committee on Post Office and Civil
 Service noted in its Report accompanying H.R. 11280 with regard to the
 definition of "grievance" in section 7103(a)(9), which is identical to
 that contained in section 7103(a)(9) of the Statute:
 
          It should be noted that, although this subsection is virtually
       all-inclusive in defining "grievance," section 7121 excludes
       certain grievances from being processed under a negotiated
       grievance procedure, thereby limiting the net effect of the term.
 
    H.R. Rep. No. 95-1403, 95th Cong. 2d Sess. 40 (1978), reprinted in
 Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 686
 (1979).
 
 
    /7/ Sections 7121(d) and (e) state that:
 
          (d) An aggrieved employee affected by a prohibited personnel
       practice under section 2302(b)(1) of this title which also fails
       under the coverage of the negotiated grievance procedure may raise
       the matter under a statutory procedure or the negotiated
       procedure, but not both.  An employee shall be deemed to have
       exercised his option under this subsection to raise the matter
       under either a statutory procedure or the negotiated procedure at
       such time as the employee timely initiates an action under the
       applicable statutory procedure or timely files a grievance in
       writing, in accordance with the provisions of the parties'
       negotiated procedure, whichever event occurs first.  Selection of
       the negotiated procedure in no manner prejudices the right of an
       aggrieved employee to request the Merit Systems Protection Board
       to review the final decision pursuant to section 7702 of this
       title in the case of any personnel action that could have been
       appealed to the Board, or, where applicable, to request the Equal
       Employment Opportunity Commission to review a final decision in
       any other matter involving a complaint of discrimination of the
       type prohibited by any law administered by the Equal Employment
       Opportunity Commission.
 
          (e)(1) Matters covered under sections 4303 and 7512 of this
       title which also fall within the coverage of the negotiated
       grievance procedure may, in the discretion of the aggrieved
       employee, be raised either under the appellate procedures of
       section 7701 of this title or under the negotiated grievance
       procedure, but not both.  Similar matters which arise under other
       personnel systems applicable to employees covered by this chapter
       may, in the discretion of the aggrieved employee, be raised either
       under the appellate procedures, if any, applicable to those
       matters, or under the negotiated grievance procedure, but not
       both.  An employee shall be deemed to have exercised his option
       under this subsection to raise a matter either under the
       applicable appellate procedures or under the negotiated grievance
       procedure at such time as the employee timely files a notice of
       appeal under the applicable appellate procedures or timely files a
       grievance in writing in accordance with the provisions of the
       parties' negotiated grievance procedure, whichever event occurs
       first.
 
          (2) In matters covered under sections 4303 and 7512 of this
       title which have been raised under the negotiated grievance
       procedure in accordance with this section, an arbitrator shall be
       governed by section 7701(c)(1) of this title, as applicable.
 
 
    /8/ Section 7114(a)(5) of the Statute provides that:
 
          (5) The rights of an exclusive representative under the
       provisions of this subsection shall not be construed to preclude
       an employee from--
 
          (A) being represented by an attorney or other representative,
       other than the exclusive representative, of the employee's own
       choosing in any grievance or appeal action;  or
 
          (B) exercising grievance or appellate rights established by
       law, rule, or regulation;  except in the case of grievance or
       appeal procedures negotiated under this chapter.
 
 
    /9/ Internal Revenue Service, Fresno Service Center, Fresno,
 California, 7 FLRA 371 (1981);  rev'd sub nom Internal Revenue Service,
 Fresno Service Center, Fresno, California v. Federal Labor Relations
 Authority, 706 F.2d 1019 (9th Cir. 1983).
 
 
    /10/ Such a determination is consistent with those rights
 specifically granted an exclusive representative under section 7121(b)
 of the Statute and those granted employees under section 7114(a)(5) of
 the Statute.  Thus, section 7121(b) of the Statute provides an exclusive
 representative the sole right to represent an employee in connection
 with a grievance filed pursuant to a negotiated grievance procedure and
 it provides an exclusive representative the right to be present during a
 negotiated grievance proceeding should the employee elect to present a
 grievance on his own behalf, while section 7114(a)(5) of the Statute
 gives an employee the option of being represented by an attorney or by a
 representative of the employee's own choosing, other than the exclusive
 representative.  In any grievance or appellate action initiated in any
 forum other than through a negotiated grievance procedure.
 
    Section 7121(b) of the Statute provides that:
 
          (b) Any negotiated grievance procedure referred to in
       subsection (a) of this section shall--
 
          (1) be fair and simple,
 
          (2) provide for expeditious processing, and
 
          (3) include procedures that--
 
          (A) assure an exclusive representative the right, in its own
       behalf or on behalf of any employee in the unit represented by the
       exclusive representative, to present and process grievances;
 
          (B) assure such an employee the right to present a grievance on
       the employee's own behalf, and assure the exclusive representative
       the right to be present during the grievance proceeding;  and
 
          (C) provide that any grievance not satisfactorily settled under
       the negotiated grievance procedure shall be subject to binding
       arbitration which may be invoked by either the exclusive
       representative or the agency.
 
 
    /11/ In his sectional analysis of the "Udall substitute,"
 Representative Udall, in describing the proposed section 7114 stated:
 
          The reported section 7114 provides the right of representation
       for any discussion between one or more representatives of the
       agency and one or more unit employees or their representatives
       concerning any grievance, personnel policy or practice, or other
       conditions of employment.  By inserting the word "general" before
       "conditions of employment," the substitute limits the right of
       representation to those formal discussions (other than grievance
       discussions) which concern conditions of employment affecting
       employees in the unit generally. 124 Cong.Rec. 29184 (1978).
 
 
    /12/ The thrust of our colleague's theory in dissenting on this point
 is that since Respondent's action in terminating Murphy must have been
 based on the application of a personnel policy or practice, it follows
 that an interview of a witness to the event which ultimately led to the
 termination necessarily "concerned" this same underlying personnel
 policy or practice.  Given the facts of this case, such an analysis is
 strained at best.  While the Respondent's action in terminating Murphy
 may have been taken pursuant to some personnel or practice of Respondent
 (and this is not at all clear from the record), we cannot find that an
 interview, in preparation for an MSPB hearing, of a witness to an event
 which led to the termination was a discussion concerning this same
 personnel policy or practice.  Any connection between the policy and the
 interview is simply far too attenuated.
 
 
    /13/ See n. 11, supra.
 
 
    /14/ See, e.g., Department of Health and Human Services, Social
 Security Administration, Bureau of Field Operations, San Francisco
 Region, 10 FLRA 120 (1982);  Veterans Administration Medical and
 Regional Office Center, Cheyenne, Wyoming, 13 FLRA No. 70 (1983);
 Department of Health and Human Services, Social Security Administration,
 14 FLRA No. 5 (1984);  Defense Logistics Agency, Defense Depot Tracy,
 Tracy, California, 14 FLRA No. 78 (