17:0469(74)CA - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 -- 1985 FLRAdec CA



[ v17 p469 ]
17:0469(74)CA
The decision of the Authority follows:


 17 FLRA No. 74
 
 DEPARTMENT OF THE AIR FORCE 
 LOWRY AIR FORCE BASE 
 DENVER, COLORADO
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1974 
 Charging Party
 
                                            Case No. 7-CA-30298
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed.  The General Counsel filed exceptions
 to the Judge's Decision, and the Respondent filed an opposition thereto.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 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 Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in case No. 7-CA-30298 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., April 15, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 7-CA-30298
    Lt. Colonel Franklin E. Wright
    For the Respondent
 
    James J. Gonzales, Esquire
    Joseph Swerdzewski, Esquire
    For the General Counsel
 
    Mr. Dariel S. Case
    For the Charging Party
 
    Before:  WILLIAM B. DEVANEY, Administrative Law Judge
 
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
 7101,et seq.  /1/, and the final Rules and Regulations issued
 thereunder, 5 C.F.R. 2423.1, et seq., concerns the meaning of Sec.
 21(b)(3)(B) and specifically where a grievance is presented on employees
 own behalf;  the employees do not want the exclusive representative's
 assistance;  and there are no meetings or discussions, is the employer
 under a duty, pursuant to Sec. 21(b)(3)(B), violation of which is an
 unfair labor practice, pursuant to Sec. 16(a)(8) and/or (1), to:  a)
 give the exclusive representative notice of the filing of the grievance;
  /2/ and/or b) serve the exclusive representative with a copy of the
 grievance;  and/or c) serve the exclusive representative with all
 documents and letters issued by the employer concerning such grievance?
 So far as I am aware, this is a case of first impression.
 
    This proceeding was initiated by a charge filed on March 24, 1983
 (G.C. Exh. 1A), which alleged a violation of Sec. 16(a)(1);  and a First
 Amended charge filed on June 2, 1983 (G.C. Exh. 1C), which alleged
 violations of Secs. 16(a)(1) and (8).  The Complaint and Notice of
 Hearing issued on June 20, 1983 (G.C. Exh. 1E), pursuant to which a
 hearing was duly held on August 23, 1983, in Denver, Colorado, before
 the undersigned.  All parties were represented at the hearing, were
 afforded full opportunity to be heard, to examine and cross-examine
 witnesses, to introduce evidence bearing on the issues involved and were
 afforded opportunity to present oral argument which each party waived.
 At the close of the hearing, September 23, 1983, was fixed as the date
 for mailing post-hearing briefs which time was subsequently extended,
 upon timely motion of the Respondent, for good cause shown, to October
 21, 1983.  General Counsel and Respondent each timely mailed an
 excellent brief, received on October 24, 1983, which have been carefully
 considered.  Upon the basis of the entire record, /3/ including my
 observation of the witnesses and their demeanor, I make the following
 findings and conclusions:
 
                                 Findings
 
    1.  American Federation of Government Employees, AFL-CIO, Local 1974
 (hereinafter, also, referred to as the "Union"), is the exclusive
 representative of all eligible non-professional civilian employees
 employed by Lowry Air Force Base, Denver, Colorado (hereinafter, also,
 referred to as "Respondent"), as more fully set forth in the Agreement
 of the parties (G.C. Exh. 2, Art. 2).
 
    2.  On January 28, 1983, representatives of the Union and Respondent
 negotiated an agreement concerning the hours of work of all full-time
 and part-time Commissary sales store checkers (cashiers) (G.C. Exh. 3
 Attachment).  This agreement inter alia, changed the hours of work for
 full-time cashiers from 8:45 a.m. to 5:30 p.m. to 10:30 a.m. to 7:30
 p.m., Tuesday through Friday.  Part-time cashiers would work varying
 shifts with the early shift being 9:00 a.m. to 3:00 p.m. and the late
 shift being 2:00 p.m. to 8:00 p.m. (G.C. Exh. 3, Attachment).  The new
 schedule was announced to employees, and posted, on January 28, 1983, to
 be effective February 8, 1983.  Respondent on Saturday, January 29,
 1983,met separately with the full-time and part-time cashiers to inform
 them of the new work schedules (G.C. Exh. 5, Par. 2).  At the meeting
 with the full-time cashiers, Mr. Calvin Mullins, Commissary Officer, was
 asked to come to the meeting to explain the rationale for the change.
 Mr. Mullins stated that the revised schedule was necessary, " . . .
 because we were needed during the revised schedule periods.  He also
 stated that the action had been discussed with responsible persons and
 negotiated with the Union . . . ." (G.C. Exh. 5, Par. 4.), and after
 making these remarks, Mr. Mullins left the meeting.
 
    3.  The full-time cashiers were dissatisfied with the new schedule of
 hours /4/ and, on February 2, 1983, met with Mr. Dariel Case, President
 of Local 1974, Ms. Vickie Sampson, steward, and assistant commissary
 manager Tydinko (as spelled in Respondents Brief;  the name is spelled
 in the transcript and G.C. Exh. 5 as "Tydingco").  Ms. Lillie M. Masby
 testified that they, the full-time cashiers, requested the meeting, " .
 . . to find out why we hadn't been notified . . . had been given no
 consideration whatsoever, and . . . part-time cashiers had been asked .
 . . their opinion, and we wanted to first find out with him (Mr. Case)
 just why is it that we were discriminated against and they (part-time
 cashiers) weren't." (Tr. 118).  Mr. Case conceded that, "They wanted
 to-- they were curious as to why we hadn't sought input from them.  They
 felt that it was unfair for us to negotiate those hours without having
 checked with them first . . . ." (Tr. 51).  There is no dispute that Mr.
 Case stated at this meeting, " . . . that a person who was not a union
 member could not file within the Union a grievance against a union
 officer" (Tr. 123).  Although it appears that Mr. Case's reference to
 "grievance" related to action within the Union (Tr. 73, 123), Ms. Masby
 very credibly testified that Mr. Case said, '"If you file a grievance,
 you wouldn't be represented anyway, because you know, if you are too
 lazy to get off your butts and go to the Union meeting and all this then
 I wouldn't bother to even look at your case.' Look at your grievance, I
 am sorry" (Tr. 122), from which Ms. Masby understood Mr. Case meant any
 grievance, "In my mind, it just-- just grievance, period.  That's the
 way I took it." (Tr. 124-125).  /5/
 
    4.  The full-time cashiers prepared a group grievance, dated February
 5, 1983 (G.C. Exh. 5), which purported to be pursuant to AFR 40-771,
 which Ms. Masby and Ms. Cecilia Jones sought to file with Ms. Cheryl
 Lepard, Respondent's Chief of Labor and Employee Relations, on February
 7, 1983.  Ms. Lepard told Ms. Masby and Ms. Jones that:  a) " . . . the
 771 procedure was not appropriate and that they had to, since they were
 bargaining unit employees, use the procedure in the negotiated
 agreement" (Tr. 141, 106);  and b) " . . . They said that they had
 informally discussed the grievance with the supervisor.  Therefore, . .
 . the next step was the first step formal . . ." and that " . . . they
 should submit the grievance to Mr. Day (Commissary Complex Director) at
 Peterson Field in Colorado Springs." (Tr. 141;  107).  Ms. Lepard
 further told Ms. Masby and Ms. Jones that the second step would be to
 the Wing Commander at Lowry Air Force Base (Tr. 107).  Ms. Lepard
 retained a copy of the grievance.
 
    5.  On February 8, the grievance was mailed to the Director, Rocky
 Mountain Complex Air Force Commissary Service, and was received on
 February 10, 1983 (Tr. 110).  Before Mr. Day responded, the employees
 wrote Colonel Kellum (the letter was not dated), Vice-Commander of Lowry
 Technical Training Center, the "second level" official, complaining of
 the lack of response to their grievance (G.C. Exh. 6).  In the meantime,
 Mr. Day responded to the grievance (undated, but received by the
 employees on March 8, 1983, G.C. Exh. 7), as follows:
 
          "1.  Your group grievance is being processed under the
       negotiated grievance procedure . . . rather than AFR 40-771, the
       grievance procedure you stated.  This is required as you are
       bargaining unit employees represented by AFGE Local 1974.
 
          "2.  As a result of your grievance, we are proposing to the
       union a different work schedule for the full-time sales store
       checkers.
 
          "3.  While I cannot grant the total remedy you requested, I
       hope that the proposed schedule will provide flexibility to the
       full-time sales store checkers to work a more desirable schedule
       on a rotating basis.
 
          "4.  I will notify you of the outcome of these negotiations on
       this matter.  A copy of the letter to the union is attached.
 
          "5.  I trust this will resolve your grievance." (G.C. Exh. 7).
 
 The attachment (G.C. Exh. 9) referenced in Mr. Day's response was not
 received by the employees.
 
    6.  By letter dated March 9, 1983, to the attention of Mr. Day (G.C.
 Exh. 8), the full-time cashiers protested the refusal to accept the
 grievance under AFR 40-771 and requested a copy of the referenced letter
 to the Union which had not been provided as Mr. Day's letter had
 purported to show.
 
    7.  Both a copy of Mr. Day's undated response (G.C. Exh. 7) and Mr.
 Calvin Mullins' (Commissary Officer) memorandum (also undated) to Mr.
 Case were received by Mr. Case;  however, Mr. Case was not given a copy
 of the group grievance (G.C. Exh. 5) at any time (Tr. 148).  In his
 memorandum to Mr. Case, Mr. Mullins stated as follows:
 
          "We are proposing a change in the tour of duty for two of the
       full-time sales store checkers.  Our proposal is to place two
       full-time sales store checkers on the 9:00 a.m. to 6:00 p.m. shift
       and rotate the full-time cashiers from their previously negotiated
       shift.
 
          "Request your input no later than 21 March 1983." (G.C. Exh.
       9).
 
    8.  By letter dated March 15, 1983, Mr. Case responded as follows:
 
          "Concerning undated letter from Curtis Day, Commissary
       Director.  Management's acceptance and adjudication of a grievance
       concerning tours of duty for full time cashiers constitutes an
       unfair labor practice by management on internal affairs of the
       union.
 
          "The union negotiated in good faith with management to set up
       temporary schedules for cashiers less than thirty days ago.
       Management's failure to honor that agreement would constitute
       another unfair labor practice.  Management had the obligation to
       inform the employees that they did not have a grievance and that
       the matter had been properly negotiated and therefore, was an
       internal union matter." (G.C. Exh. 10).
 
    9.  Respondent considered the grievant's letter to Mr. Day (G.C. Exh.
 8), together with their earlier letter to Colonel Kellum (G.C. Exh. 6),
 as an elevation of the grievance to the second level (Tr. 144) and
 Colonel Swain by letter dated April 5, 1983, addressed to Ms. Masby,
 responded as follows:
 
          "1.  This is in response to you (sic) grievance.  This
       grievance is being processed under the negotiated grievance
       procedure between Lowry AFB and AFGE Local 1974.  This negotiated
       grievance procedure is the sole grievance procedure available to
       you since you are members of that bargaining unit.
 
          "2.  Management of the Lowry AFB Commissary and Local 1974,
       representing the bargaining unit, entered into negotiations on
       changing the work schedule of part-time and full-time sales store
       checkers so as to have more complete coverage of the store when
       needed.  An agreement was reached between the Commissary
       Management and Local 1974 concerning the matter.  After receiving
       your grievance, Mr. Day of the Rocky Mountain Complex offered to
       renegotiate some changes for you in this schedule.  The union has
       declined to renegotiate.  Also, since you did not consider this
       remedy to be sufficient, management has decided to remain with the
       schedule initially negotiated.  /6/
 
          "3.  After carefully considering the facts as presented, I find
       I must deny your grievance." (G.C. Exh. 11).
 
    10.  Mr. Lepard testified that she had instructed one of her
 assistants, Mr. Vannoy, to furnish a copy of Colonel Swain's letter on
 April 5, 1983 (G.C. Exh. 11) to the Union (Tr. 145);  however, Mr. Case
 testified that he never received a copy of General Counsel's Exhibit 11
 (Tr. 61).
 
                                Conclusions
 
    Sec. 21(b) of the Statute provides, in pertinent part, that:
 
          "(b) Any negotiated grievance procedure referred to in
       subsection (a) of this section shall--
 
                                .  .  .  .
 
          (3) include procedures that -
 
                                .  .  .  .
 
          "(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 . . . ." (5 U.S.C. 7121(b)(3)(B).
 
 The collective bargaining agreement of the parties (G.C. Exh. 2) does
 assure employees the right to present a grievance on the employee's own
 behalf and assures the exclusive representative the right to be present
 during the grievance proceeding.  Thus, Article 24, Section E, Par. 2 a.
 provides:
 
          "a.  An employee is entitled to a Union representative at any
       stage of the grievance procedure.  Any unit employee may present
       and process a grievance under this procedure without the
       intervention of the Union except that only the Union or the
       Employer may invoke arbitration.  If the employee represents
       himself/herself, the Union will be given an opportunity to be
       present during the grievance proceeding." (G.C. Exh. 2, Article
       24, Section E, Par. 2 a.).
 
    Where, as here, the parties' negotiated grievance procedure fully
 complies with the statutory requirement that the negotiated grievance
 procedure "assure . . . 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", is there any
 further right enforceable under Sec. 16(a) of the Statute?  For reasons
 set forth hereinafter, I conclude there is not.
 
    Under the Executive Order, the Assistant Secretary consistently held
 that Section 7(d)(1), /7/ inter alia, did not confer any rights
 enforceable under Section 19 (unfair labor practices).  U.S. Department
 of the Army, Transportation Motor Pool, Fort Wainright, Alaska, A/SLMR
 No. 278, 3 A/SLMR 290 (1973);  Internal Revenue Service, Chicago
 District, A/SLMR No. 279, 3 A/SLMR 304 (1973);  U.S. Department of the
 Treasury, Internal Revenue Service, Western Service Center, Ogden, Utah,
 A/SLMR No. 280, 3 A/SLMR 310 (1973).
 
    I am aware that the Executive Order did not contain a provision like
 Sec. 16(a)(8);  nevertheless, as the Statute imposes no duty to serve
 the Union with a copy of any grievance filed by an employee, or group of
 employees, the allegation of the Complaint that Respondent committed an
 unfair labor practice by its failure "to serve the Union with a copy of
 the grievance and all documents and letters filed by employees and
 issued by Respondent, to which the Union was, and is entitled under 5
 U.S.C. 7121(b)(3)(B) . . ." (Complaint, G.C. Exh. 1E, Par. 12), in
 violation of Sec. 16(a)(8) /8/ must be dismissed.  Not only does Sec.
 21(b)(3)(B) not impose any duty to serve the Union with a copy of any
 document, including the grievance, filed by employees or issued by
 Respondent, but the tenor of the Statute is to the effect that the duty
 of an agency to furnish material to the exclusive representative is upon
 request.  Thus, Sec. 14(b)(4) provides:
 
          "(4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data-- . . . . "
 
    The more difficult question is whether the statutory requirement,
 that any negotiated grievance procedure include procedures that " . . .
 assure the exclusive representative the right to be present during the
 grievance proceeding . . . ", carries with it the implied duty of
 management to notify the exclusive representative when a grievance has
 been filed by an employee, or by employees, on the employee's own
 behalf.  Logic strongly indicates that, if the exclusive
 representative's "right to be present during the grievance proceeding",
 is to be assured, the exclusive representative must know that a
 grievance has been filed;  but whether logical, or desirable, does the
 failure to give such notice to the exclusive representative constitute
 an unfair labor practice?
 
    The Authority has made it clear that there is a duty to give the
 Union notice and an opportunity to be present at any meeting, Office of
 Program Operations, Field Operations, Social Security Administration,
 San Francisco Region, 10 FLRA No. 36, 10 FLRA 172 (1982), where it
 stated, in part, as follows:
 
          "Reading Sections 7114(a)(2)(A) and 7121(b)(3)(B) together, it
       is clear that Congress intended that negotiated grievance
       procedures assure the exclusive representative the right to be
       present (represented) during formal discussions of a grievance,
       such as the discussions at issue in this case." (10 FLRA at 177).
 
 Respondent concedes that there is an obligation to give the Union notice
 of any meeting or discussion, but asserts that where, as here, there are
 no meetings or discussions, /9/ Sec. 14(a)(2)(A) does not apply, and
 Sec. 21(b)(3)(B) imposes no obligation to give notice to the Union that
 an individual grievance has been filed.  Office of Program Operations,
 supra, although the specific issue was not an allegation of the
 Complaint before the Authority, at least by inference, can be read as
 supporting Respondent's position.  There, a unit employee filed on her
 own behalf a written grievance on, or about, November 7;  at the first
 step of the grievance procedure, without any notice to the union or any
 meeting between the grievant and the supervisor, one item of the
 grievance was granted and the other four items raised by the grievance
 were denied.  Grievant was not satisfied and appealed.  Meetings were
 held with grievant at the second step, on December 12, 1979, and at the
 third step, on January 17, 1980.  The Complaint alleged that the
 respondent violated the Statute by conducting formal discussions on
 December 12, 1979, and January 17, 1980.  The Complaint did not allege
 that respondent violated the statute either by its failure to notify the
 union that a grievance had been filed or by its adjustment of the
 grievance at step one;  and the Authority, as set forth above, addressed
 Sec. 21(b)(3)(B) only in conjunction with Sec. 14(a)(2)(A) and held, in
 essence, that there is a duty to give the union notice and an
 opportunity to be present at any meeting.
 
    Each party has referred to the legislative history of the Statute,
 but the legislative history, beyond showing that S. 2640 had
 incorporated the language of the Executive Order (Legis. History p.
 470-471);  that Representative Clay's bill, H.R. 13, provided that any
 negotiated procedure, " . . . shall include procedures that insure the
 labor organization the right to be present when the grievance is
 adjusted if it is not the representative of the employee." (Legis.
 History, p. 162);  that Representative Ford's bill, H.R. 1589 contained
 no similar provision;  that when Representatives Clay and Ford combined
 their efforts in H.R. 9094 the provision of Mr. Clay's bill, H.R. 13,
 was adopted;  that Mr. Nick's bill, H.R. 11280, provided that procedures
 " . . . shall assure the labor organization the right to be present when
 the grievance is adjusted" (Legis. History p. 355);  and that, after
 amendments, H.R. 11280 was reported on July 31, 1978, and then contained
 the language as passed (Legis. History p. 419), namely that procedure
 shall, " . . . assure the exclusive representative the right to be
 present during the grievance proceeding", sheds no light on the meaning
 of "proceeding" or on the reason that "proceeding" supplanted "adjusted"
 or "adjustment."
 
    Certainly, the provision of the Executive Order " . . . opportunity
 to be present at the adjustment" (Section 13(a)) is not the same as the
 provision of the Statute, "to be present during the grievance
 proceeding" (Sec. 21(b)(3)(B)).  Indeed, the word "proceeding" is
 broader than "adjustment" and, inter alia, means, "a particular step or
 series of steps adopted for doing or accomplishing something . . .
 necessary for bringing the case to a successful conclusion" (Webster's
 Third New International Dictionary (1971)), which, in my opinion, would
 include Respondent's disposition of the grievance by Mr. Day's letter,
 undated but received by the employees on March 8, 1983, as, whether it
 constituted an "adjustment" of the grievance or merely a proposal to the
 Union, it was an act taken to resolve the grievance;  in fact, Mr. Day's
 letter concluded by stating "5. I trust this will resolve your
 grievance" (G.C. Exh. 7).
 
    Executive Order 11491 (October 29, 1969) in Section 7(d)(1) provided
 that Recognition does not:
 
          "(1) preclude an employee, regardless of whether he is a member
       of a labor organization, from bringing matters of personal concern
       to the attention of appropriate officials . . . or from choosing
       his own representative in a grievance or appellate action;"
 
 but Section 13 made no reference to the exclusive representative being
 present at the adjustment of any grievance.  This language first
 appeared in the 1971 amendments to Executive Order 11491 and Section
 13(a) provided, in part, as follows:
 
       " . . . However, any employee or group of employees in the unit
       may present such grievance to the agency and have them adjusted,
       without the intervention of the exclusive representative, as long
       as the adjustment is not inconsistent with the terms of the
       agreement and the exclusive representative has been given
       opportunity to be present at the adjustment."
 
    If Sec. 21(b)(3)(B), like Sec. 14(a)(2)(A), conferred a direct right
 to the exclusive representative, I would agree that a "right to be
 present during the grievance proceeding" carries with it the right to
 notice, violation of which would constitute an unfair labor practice;
 but Sec. 21(b)(3)(B), rather than giving the exclusive a direct right,
 provides that;
 
    "(b) Any negotiated grievance procedure . . . shall--
 
                                .  .  .  .
 
          "(3) include procedures that--
 
                                .  .  .  .
 
          "(B) assure such an employee the right to present a grievance
       on the employee's own behalf, and assure that exclusive
       representative the right to be present during the grievance
       proceeding . . . ."
 
 Article 24, "Grievance Procedure" in Section E 2, provides as follows:
 
          "2.  Representation Rights
 
          "a.  An employee is entitled to a Union representative at any
       stage of the grievance procedure.  Any unit employee may present
       and process a grievance under this procedure without the
       intervention of the Union except that only the Union or the
       Employee may invoke arbitration.  If the employee represents
       himself/herself, the Union will be given an opportunity to be
       present during the grievance proceeding." (G.C. Exh. 2).
 
 Section F. Procedural Steps provides, in part, as follows:
 
    1.  Employee Grievance . . .
 
          a.  Informal Discussion-- Within 15 calendar days of the action
       complained of . . . the employee will discuss resolution with the
       immediate supervisor, if the employee desires Union representation
       at this stage, notifies his/her immediate supervisor and steward .
       . . .
 
          b.  Formal Grievance--
 
          Step One.  The written grievance shall be filed with the Group
       Commander or comparable level management official (reviewing
       authority) under which the employee serves . . .  Within 15
       calendar days from receipt of the grievance, a written decision
       will be provided to the employee.  During the said 15 day period,
       the Reviewing Authority will consider all evidence, statements of
       the employee, and the Union representative, if the employee is
       represented by the Union, and conduct such investigation and
       interviews as in his/her opinion is necessary to resolve the
       complaint . . .
 
          Step Two.  A request for review . . . shall be directed by the
       Civilian Personnel Officer who will forward it immediately to the
       Final Administrative Authority (i.e., Vice Commander/LTTC).  The
       Final Administrative Authority shall render his/her written
       decision to the employee within 15 calendar days . . . .
 
    "2.  Union Grievances . . . .
 
    "3.  Employer Grievances . . . .  (G.C. Exh. 2).
 
    By contrast, Section H of Article 24, which provides for expedited
 grievance/arbitration, states, in part, as follows:
 
          " . . .
 
          "3.  . . . a notice of decision to remove an employee . . .
       will be delivered to the employee and the Union . . . .
 
                                .  .  .  .
 
          "5.  . . .
 
          "b.  Arrange as soon as possible . . . a meeting of the Union
       and the affected employee(s) . . . for the purpose of resolving
       the grievance. . . . " (G.C. Exh. 2.)
 
    The informal discussion stage of the negotiated grievance procedure
 appears to contemplate discussion by the grieving employee and the
 immediate supervisor without notice to the Union unless the employee
 wants Union representation (I express no opinion as to the effect of
 Sec. 14(a)(2)(A) on the informal discussion since this issue is not
 before me).  Step One of the formal grievance procedure contemplates
 consideration of statements of the Union only "if the employee is
 represented by the Union";  directs "such investigation and interviews"
 as the reviewing authority deems "necessary to resolve the Complaint."
 Meetings within the meaning of Office of Program Operations, Field
 Operations, Social Security Administration, San Francisco Region, supra,
 may well occur and, as noted previously, Respondent concedes an
 obligation to give notice to the Union and an opportunity to be present
 during formal discussion of a grievance;  however the negotiated
 grievance procedure, neither in Section E 2 nor in Section F b, Step
 One, addresses specifically either notice to the Union or the right of
 the Union to be present in the absence of any meeting or discussion, and
 the right conferred by Sec. 14(a)(2)(A) does not attach in the absence
 of a meeting or discussion of the grievance.  Of course, not every
 breach of contract constitutes an unfair labor practice and, here, I
 find no clear breach of contract much less such egregious conduct as to
 constitute an unfair labor practice.  See, Harry S. Truman Memorial
 Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516
 (1983);  Iowa National Guard and National Guard Bureau, 8 FLRA No. 101,
 8 FLRA 500 (1982).
 
    Obviously, where notice to the Union was desired, the negotiated
 grievance procedure so provided;  and where a meeting was mandated, the
 negotiated grievance procedure also so provided.  Sec. 21(b)(3)(B)
 simply requires that any negotiated grievance procedure shall, inter
 alia, assure the exclusive representative " . . . the right to be
 present during the grievance proceeding" without providing at what point
 in the grievance proceeding the exclusive representative shall have the
 right to be present;  and Respondent's construction and interpretation
 of the negotiated procedure to mean that the Union's right to be present
 at an individual's grievance attaches only when there is a meeting or
 discussion, as required by Sec. 14(a)(2)(A), is not unreasonable but, to
 the contrary, is consistent with specific provisions of the negotiated
 procedure, including, for example, providing written decision "to the
 employee" (Steps One and Two);  consideration of evidence and statement
 of the Union Representative "if the employee is represented by the
 Union".  Beyond deciding that the record does not show a clear or patent
 breach of contract which could constitute an unfair labor practice, I
 express no opinion as to whether Respondent did, or did not, breach its
 agreement as,
 
       " . . . the appropriate avenue for resolution of the dispute is
       through the parties' mutually agreed upon contractual grievance
       and arbitration procedure rather than through the unfair labor
       practice procedures . . . ." Harry S. Truman Memorial Veterans
       Hospital, supra, 11 FLRA at 519.
 
    As Respondent notes in its Brief (Respondent's Brief, pp. 10-11),
 under the Executive Order, the opportunity to be "present" at any
 adjustment was read to mean presence at some meeting.  See, Local R7-51,
 National Association of Government Employees, A/SLMR No. 896, 7 A/SLMR
 775 (1977);  Internal Revenue Service, Memphis Service Center, Memphis,
 Tennessee, A/SLMR No. 444, 4 A/SLMR 717 (1974).  No basis was shown for
 an independent violation of Sec. 16(a)(1), i