The President stated that the Standards of Conduct for Employee Organizations and Code of Fair Labor Practices (28 F.R. 5127) were designed to assist in securing the uniform and effective implementation of the policies, rights, and responsibilities described in Executive Order No. 10988 (27 F.R. 551, 3 CFR 19591963 Comp., p. 521). This part fixes responsibilities and provides guidance to achieve these goals in the Department of Defense.

§ 269.2 Applicability.

(a) Except as provided in paragraph (b) of this section, this part is applicable to all components of the Department of Defense (Military Departments, Defense Agencies, and the Office of the Secretary of Defense), hereinafter referred to as "Department of Defense components".

(b) This part does not apply to those Department of Defense components or parts thereof to which, pursuant to subsection II. 1. of Department of Defense Directive No. 1426.1, the provisions of Executive Order No. 10988 do not apply. § 269.3

Standards of Conduct for Employee Organizations.

(a) The head of each Department of Defense component, or the person designated by him for this purpose, shall be responsible for assuring that the requirements of section 2.2 of the Standards

of Conduct (hereinafter referred to as the "Standards") are met before recognition under Executive Order 10988 is accorded to any employee organization. Recognition of an employee organization shall be denied, suspended, or withdrawn because of failure to comply with the requirements of section 2.2 of the Standards, only as provided in this part. As used herein "recognition" shall include informal, formal, and exclusive recognition.

(b) A prima facie case of compliance with the requirements of section 2.2 of the Standards will be established when they are covered by express provisions in the constitution, by-laws, or other governing principles (such as the Code of Ethical Practices of the AFL-CIO) which have been adopted by the organization, or by the national or international organization or federation of organizations with which it is affiliated and to which the organization subscribes, copies of which have been supplied to the appropriate Department of Defense official. The Assistant Secretary of Defense (Manpower) will take appropriate action to avoid unnecessary duplication of requirements for the submission of documents to establish prima facie cases of compliance with the requirements of section 2.2 of the Standards.

(c) Any employee organization which, prior to the date of issuance of this part, has been granted recognition under Executive Order 10988 and has not submitted satisfactory proof of compliance with section 2.2 of the Standards will be given written notice to that effect and requested to submit such proof not later than 60 days from the date of the notice. In the case of a local organization, copies of the written notice will be sent to the national or international organization, if any, with which it is affiliated. Failure of any employee-organization so notified to submit satisfactory proof of compliance with section 2.2 of the Standards will be reported to the ASD(M), together with a full and complete statement of the facts and any information submitted by the organization.

(d) Any employee organization which after the date of issuance of this part applies for recognition under Executive Order 10988 must simultaneously submit satisfactory proof of compliance with section 2.2 of the Standards. In any such case in which there is a question as to whether the proof submitted is satis

factory, the employee organization will be notified in writing and advised as to the particulars in which the proof is deficient and that further action on the request for recognition will be withheld pending submission of further information. In the case of a local organization, copies of the written notice will be sent to the national or international organization, if any, with which it is affiliated. Failure of any employee organization so notified to submit satisfactory proof of compliance with section 2.2 of the Standards will be reported to the ASD (M), together with a full and complete statement of the facts and any information submitted by the organization.

(e) When information of the nature covered by section 2.4(a) (1), (2), or (3) of the Standards comes to the attention of a DOD component, appropriate inquiry or investigation will be made to develop all pertinent facts. A full and complete report will then be made to the ASD (M).

(f) Responsibility for denying, suspending, or withdrawing recognition of any employee organization for failure to comply with the Standards, for holding any required hearings under section 2.4 (b), and for all necessary consultations with the Secretary of Labor in connection with such matters is delegated to the ASD(M). Decisions made by the ASD(M) under this delegation shall be binding upon all DOD components and upon the employee organizations involved. The ASD(M) will establish such procedures as may be required to carry out this responsibility.

(g) No action affecting the recognition of an employee organization involved in a compliance case under this § 269.3 (c), (d), or (e), and no action affecting any unit for which such organization is seeking exclusive recognition will be taken pending advice from the ASD(M).

(h) A determination denying, suspending, or withdrawing recognition of an employee organization for failure to comply with the Standards will be applied only to the particular organization and to any subordinate or affiliated organizations. Any such determination with respect to one subordinate or affiliated organization will not be applied to the parent organization nor to any other subordinate or affiliated organization.

§ 269.4 Code of Fair Labor Practices.

(a) The head of each DOD component, for his component, will establish procedures for enforcement of the Code of Fair Labor Practices (hereinafter referred to as the "Code"), including fair and adequate procedures for the filing, investigation, and processing of complaints of violations of section 3.2. Such procedures will provide as a minimum, that:

(1) All cases which would be subject to established grievance or appeals procedures, whether initiated by an individual employee or several employees with the same complaint, will be processed under such procedures. An employee who files a grievance or appeals an adverse action will be required, at the time of such filing or appeal, to specify in writing whether a fair labor practice complaint is involved and, if so, to indicate clearly the nature of his complaint. In all grievance or appeal cases which involve fair labor practice complaints provision will be made for appeals to the head of the DOD component, or to the official designated by him to act for him on all cases arising under the Code.

(2) All cases involving any strike, work stoppage, slow-down, or related picketing against the Government of the United States will be governed by the procedures stated in paragraph (b) of this section.

(3) Procedures governing other cases arising under the Code and not covered by this 269.4(a) (1) and (2) (which will include cases initiated by employee organizations and cases initiated by an employee or employees charging a fair labor practice violation against an employee organization) above will provide for:

(1) Maximum use of informal contacts and discussions with and between the parties involved and any national or international organization with which a local organization is affiliated, so as to produce an acceptable resolution or adjustment of the complaint without resort to more formal procedures.

(ii) The designation of impartial hearing officers to conduct hearings on complaints not otherwise satisfactorily adjusted. To be "impartial" a hearing officer must not be a member of an employee organization involved in the complaint nor the immediate superior or a subordinate of any Defense official

or employee who is a party to the complaint or who was directly involved in the action which gave rise to the complaint. When performing their duties as such, hearing officers will be responsible directly to the head of the DOD component, or to the official designated by him to act for him on all cases arising under the Code.

(iii) Compliance with all procedural requirements of subsections 3.3 (a) and (b) of the Code.

(iv) An appeal to the head of the DOD component or to the official designated by him to act for him on all cases arising under the Code, when the initial decision is made below that level.

(b) The proscriptions in subsection 3.2(b) (4) of the Code and the provisions of this section are directed specifically at employee organizations. Employees of the Department of Defense engaging in any of these acts will be subject to established disciplinary procedures, which will apply without regard to the Code and this Directive.

(1) In proceeding against an employee organization under subsection 3.2(b) (4) of the Code it will be necessary to establish:

(i) That members of the organization are participating in a prohibited act; and,

(ii) (a) That the prohibited act was ordered, approved, or authorized by the organization; or, (b) that, when apprised of participation by its members in the prohibited act, the employee organization did not take prompt steps to disavow the act and order its members to cease their participation.

(2) Whenever the head of a Defense installation, activity, or other organizational entity has evidence that members of a recognized employee organization who are employed in such installation, activity, or other organizational entity are engaging in any act prohibited by subsection 3.2(b)(4) of the Code, he will immediately advise the head of the employee organization of this fact. If there is no evidence that the employee organization ordered, approved, or authorized the prohibited act and prompt steps are taken by it to disavow the act and order its members to cease their participation, no further action will be taken against the organization. If, however, (i) there is evidence that the employee organization ordered, approved, or authorized the prohibited act (even though it took prompt steps to stop the

act), or (ii) the organization fails to take prompt steps to disavow the prohibited act and order its members to cease their participation, or (iii) the organization denies that a prohibited act has taken place, the head of the installation, activity, or other organizational entity will promptly report all facts with respect to the matter to the head of his DOD component, or to the official designated by him to act for him on all matters arising under the Code.

(3) Upon receipt of a report on prohibted acts under subsection 3.2(b) (4) of the Code the head of the DOD component, or the official designated by him will, if the employee organization involved is affiliated with a national or international organization, notify the head of such organization and acquaint him with the facts which indicate a violation of the Code. At this time such informal discussions as may be necessary to clarify the facts should take place and, if required, further investigations will be made by the Defense official and by the head of the national or international organization. If the case cannot then be resolved to the satisfaction of the head of the DOD component involved and if he considers that withdrawal, withholding, or suspension of recognition of the employee organization is warranted, he will submit the case, with all supporting facts to the ASD(M) for action.

(4) The ASD(M) is hereby delegated authority to withdraw, withhold, or suspend recognition of an employee organization for violation of subsection 3.2(b) (4) of the Code when, following such investigation and discussion with the parties involved as he considers necessary, he determines that such action is warranted. Before taking such action, however, the ASD(M) will afford the employee organization involved, and any national or international organization with which it is affiliated, an opportunity to present any defense which it may have.

(c) No fair labor practice complaint involving the same individual or individuals and substantially the same facts will be processed under more than one procedure, either concurrently or sequentially. However, when a fair labor practice complaint is processed under grievance procedures and involves, either directly or indirectly, an employee organization which has not been made a party to the proceedings or which is not

representing the employee or employees involved, an opportunity will be afforded such employee organization to participate in the proceedings to the extent of its interest.

(d) The procedures available for processing cases under the Code will not be available for re-hearing issues processed under the provisions of the Standards or of Section 11 of Executive Order 10988.

(e) The ASD (M) will from time to time as he considers desirable, and after consultation with representatives of employee organizations to which he has granted formal recognition at the national level, issue appropriate guidance for Department of Defense officials with respect to the practices covered by section 3.2 of the Code.

§ 269.5 Implementation and effective date.

(a) Regulations required to implement this part in the DOD components will, after appropriate consultation with representatives of employee organizations, be issued not later than November 20, 1963. Two copies of such regulations will be furnished to the ASD(M).

(b) The delegations of authority made in this part are effective immediately. The part is fully effective on and after November 21, 1963 and, insofar as possible, determinations made under the provisions of the Standards of Conduct for Employee Organizations and Code of Fair Labor Practices prior to that date shall conform to the procedures prescribed in this part. In no case where an opportunity for a hearing or a final notice is provided for in Standards of Conduct for Employee Organizations and Code of Fair Labor Practices shall recognition be withheld, suspended, or withdrawn from an employee organization without an opportunity for such hearing and without such final notice.

The purpose of this part is to recognize and define the role of employee organizations and to promote effective, equitable, and uniform implementation within the Department of Defense of the policies, rights, and responsibilities prescribed in Executive Order 10988 (3 CFR, 1962 Supp., p. 130).

§ 270.2 Applicability.

(a) Except as provided in paragraph (b) of this section, this part and Executive Order 10988 are applicable to all components of the Department of Defense (Military Departments, DoD Agencies, and the Office of the Secretary of Defense) referred to in this part as "DoD Components."

(b) Pursuant to section 16 of Executive Order 10988 it is determined that the provisions of this part and Executive Order 10988, except section 14 thereof, shall not apply:

(1) To the National Security Agency, the Defense Intelligence Agency, or any organization within a Military Department which primarily performs intelligence, investigative, or security functions, except to the extent that the Director of the Agency or the Secretary of the Military Department may determine such provisions can be applied in a manner consistent with national security requirements and considerations; or,

(2) To any employee organization composed predominately of non-U.S. citizen employees located at an installation or activity of the Department of Defense which is outside the United States, except as may otherwise be authorized by the Secretary of the Army with respect to the Canal Zone. Relationships with such organizations of non-U.S. citizen employees will be consistent with pertinent intergovernmental agreements and local practices and customs.

For the purpose of this part, the terms listed below are defined as follows:

(a) Employee organization. Any lawful association, labor organization, federation, council, or brotherhood having as a primary purpose the improvement of working conditions among Federal employees; and any craft, trade or industrial union whose membership includes or is open to both Federal employees and employees of private organizations. This shall not include any organization (1) which asserts the right to strike against the Government of the United States or any agency thereof, or to assist or participate in any such strike, or which imposes a duty or obligation to conduct, assist, or participate in any such strike, or (2) which advocates the overthrow of the constitutional form of Government in the United States, or (3) which discriminates with regard to the terms or conditions of membership because of race, color, creed, or national origin.

(b) Employee organization representative. An official of an employee organization, or any other person specfically designated by an employee organization to represent the organization in dealings with management, irrespective of whether the official or representative so designated is an employee of the Federal Government.

(c) Managerial executive. An individual who makes or responsibly recommends management policies or who directs or manages a program, activity, or major function of the Department of Defense, and his principal subordinates having significant supervisory responsibilities of a managerial nature.

(d) Professional employee. Any employee whose duties are to perform advisory, administrative or research work which (1) is based on an understanding and application of, as opposed to mere application of, the established principles of a science or other field of knowledge which is generally recognized as conferring professional standing on a person engaged in such work; (2) requires knowledge in a field of science or learning customarily acquired through study at a college or hospital as distinguished from a general education; and (3) if established as a position under the Classification Act of 1949, as amended, is properly placed in one of the series of

that Act appropriate for such positions at a level of GS-5 or higher.

(e) Unit. A grouping of employees found to be appropriate for purposes of formal or exclusive recognition.

The

(f) Regular working hours. hours of the work day, including any required or regularly scheduled overtime, during which an employee is required to be at his work place. Lunch periods are not considered within regular working hours.

(g) Grievance. Any alleged violation or difference of opinion as to the interpretation or application of personnel policies and practices or the application of any negotiated agreement or any law, rule or regulation governing civilian personnel matters.

(h) DoD Activity. An organizational entity within the Department of Defense to which responsibility for civilian personnel management has been delegated by the appropriate DoD component. § 270.4

General policy.

(a) In the interest of the effective and efficient operation of the Department of Defense and of equitable treatment for employees, the Department recognizes the right of civilian employees to form, join and assist any employee organizations, or to refrain from any such activity, and to exercise these rights freely and without fear of penalty or reprisal. Except as provided in paragraph (1) of this section, this right shall extend to participation in the management of the employee organization and to acting as an employee organization representative.

(b) Informal, formal, or exclusive recognition will be granted upon request, to employee organizations meeting the criteria specified in this part and in Part 269 of this chapter for such recognition. Recognition will be withdrawn at any time it is determined, after discussion with the national office, if any, of the employee organization involved, and compliance with Part 269 of this chapter and any other established procedures, that the organization fails to meet such criteria. Recognition of employee organizations shall not preclude relationships of the character specified in section 3(c) of Executive Order 10988 with individual employees and organizations.

(c) Advisory groups or councils of employees established in a DoD activity pursuant to regulations of a particular DoD component are not employee organizations for purposes of Executive