[ v01 p240 ]
01:0240(32)CA
The decision of the Authority follows:
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.