National Treasury Employees Union (Union) and Internal Revenue Service (Agency) 

 



[ v03 p693 ]
03:0693(112)NG
The decision of the Authority follows:


 3 FLRA No. 112
 
 NATIONAL TREASURY EMPLOYEES UNION
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE
 (Agency)
 
                                            Case No. 0-NG-82
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                             UNION PROPOSAL I
 
    ARTICLE 3 - SECTION 5
 
    B.  THE EMPLOYER AGREES THAT EMPLOYEES MAY OBTAIN OUTSIDE EMPLOYMENT
 WHERE SUCH EMPLOYMENT
 
    DOES NOT CREATE:
 
    1.  INTERFERENCE WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES;
 
    2.  BRING DISCREDIT ON OR CAUSE UNFAVORABLE AND JUSTIFIABLE CRITICISM
 OF THE GOVERNMENT;  OR
 
    3.  RESULT IN A CONFLICT, OR APPARENT CONFLICT OF INTEREST, WITH
 THEIR OFFICIAL DUTIES.
 
    C.  APPLICATIONS FOR OUTSIDE EMPLOYMENT WHICH HAVE BEEN APPROVED WILL
 NOT BE SUBSEQUENTLY
 
    DENIED.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL I, CONCERNING OUTSIDE
 EMPLOYMENT IS OUTSIDE THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION
 7117 OF THE STATUTE /1/ AND CONFLICTS WITH RETAINED MANAGEMENT RIGHTS
 UNDER SECTION 7106(A) OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL I IS WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE AND DOES NOT CONFLICT WITH SECTION 7106(A) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 45 FED. REG. 3513 (1980), THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.  IN SO DECIDING
 THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY
 MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
 
    REASONS:  UNION PROPOSAL I ESSENTIALLY SEEKS TO ESTABLISH THE
 CRITERIA TO BE USED IN DETERMINING WHETHER TO APPROVE OR DISAPPROVE
 APPLICATIONS FOR OUTSIDE EMPLOYMENT SUBMITTED BY IRS EMPLOYEES.  THE
 AGENCY TAKES THE POSITION THAT THE MATTER OF OUTSIDE EMPLOYMENT IS NOT A
 CONDITION OF EMPLOYMENT AFFECTING UNIT EMPLOYEES WITHIN THE MEANING OF
 THE STATUTE BECAUSE IT DOES NOT DIRECTLY CONCERN THE EMPLOYMENT
 RELATIONSHIP BUT INSTEAD RELATES TO MATTERS ARISING OUTSIDE THE WORK
 AREA AND NORMAL DUTY HOURS OF IRS EMPLOYEES.
 
    IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE MATTER OF OUTSIDE
 EMPLOYMENT DOES AFFECT THE WORK SITUATION AND EMPLOYMENT RELATIONSHIP.
 SPECIFICALLY, THE MATTER OF OUTSIDE EMPLOYMENT BY IRS EMPLOYEES IS
 COVERED BY AN AGENCY REGULATION ENTITLED "HANDBOOK OF EMPLOYEE
 RESPONSIBILITIES AND CONDUCT," IRM 0735.1.  THE REGULATION SETS FORTH
 AGENCY POLICY CONCERNING "(E)MPLOYEE (O)BLIGATIONS WITH RESPECT TO
 (O)UTSIDE (E)MPLOYMENT AND (B)USINESS (A)CTIVITIES" THAT IS
 DETERMINATIVE OF WHETHER A UNIT EMPLOYEE MAY BE ELIGIBLE FOR CERTAIN
 POSITIONS WITHIN THE AGENCY OR MAY CONTINUE TO BE EMPLOYED BY THE AGENCY
 AT ALL.
 
    ACCORDINGLY, IT IS CONCLUDED THAT THE ESTABLISHMENT OF CRITERIA FOR
 MANAGEMENT'S APPROVAL OF OUTSIDE EMPLOYMENT APPLICATIONS SUBMITTED BY
 IRS EMPLOYEES IS A CONDITION OF EMPLOYMENT.  IT IS DIRECTLY RELATED TO
 THE PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
 CONDITIONS OF UNIT EMPLOYEES AND IS WITHIN THE SCOPE OF BARGAINING UNDER
 SECTION 7117 OF THE STATUTE.
 
    THE AGENCY ASSERTS, FURTHER, THAT UNION PROPOSAL I VIOLATES
 MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 7106(A)(2)(A) OF THE STATUTE
 TO DIRECT AND DISCIPLINE ITS EMPLOYEES AND UNDER SECTION 7106(A)(1) OF
 THE STATUTE TO DETERMINE THE INTERNAL SECURITY PRACTICES OF THE AGENCY.
 SUCH ASSERTIONS ARE UNSUPPORTED BY THE RECORD HEREIN AND APPEAR TO BE
 BASED UPON A MISINTERPRETATION BY THE AGENCY OF THE DISPUTED PROPOSAL.
 THUS, NOTHING CONTAINED IN THE LANGUAGE OF THE PROPOSAL WOULD RESTRICT
 THE AGENCY'S RIGHT TO DISCIPLINE OR DENY A SECURITY CLEARANCE TO A UNIT
 EMPLOYEE WHO EITHER FAILED TO APPLY FOR OR TO OBTAIN PERMISSION TO HOLD
 OUTSIDE EMPLOYMENT CONSISTENT WITH THE ESTABLISHED CRITERIA.  MOREOVER,
 CONTRARY TO THE AGENCY'S ASSERTION, NEITHER THE LANGUAGE NOR THE STATED
 INTENT OF THE PROPOSAL WOULD PREVENT MANAGEMENT FROM DIRECTING AN
 EMPLOYEE TO DISCONTINUE OUTSIDE EMPLOYMENT FOR WHICH PERMISSION HAD BEEN
 GRANTED BUT WHICH IS DEEMED NO LONGER CONSISTENT WITH THE ESTABLISHED
 CRITERIA OR PRECLUDE DISCIPLINARY ACTION AGAINST AN EMPLOYEE WHO REFUSED
 TO TERMINATE SUCH OUTSIDE EMPLOYMENT.  SIMILARLY, THE RECORD FAILS TO
 ESTABLISH, AND IT DOES NOT OTHERWISE APPEAR, THAT THE SUBJECT PROPOSAL
 CONFLICTS WITH OTHER RESERVED MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF
 THE STATUTE.  HOWEVER, EVEN IF MANAGEMENT'S RIGHTS ARE INVOLVED IN SOME
 OF THE DECISIONS WHICH MANAGEMENT MAKES, THE INSTANT PROPOSAL INVOLVES A
 PROCEDURAL ASPECT AND IT IS A MANDATORY SUBJECT OF BARGAINING UNDER
 SECTION 7106(B)(2) OF THE STATUTE.  ACCORDINGLY, NOTING THAT NO
 COMPELLING NEED WAS RAISED BY THE AGENCY FOR THE REGULATION HEREIN,
 UNION PROPOSAL I IS A MATTER WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER
 THE STATUTE;  AND THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
                             UNION PROPOSAL II
 
    ARTICLE 3 - SECTION 8
 
    SECTION 8 INCORPORATES THE PROVISIONS OF 5 U.S.C. 2302(B) (PROHIBITED
 PERSONNEL PRACTICES) INTO THE NEGOTIATED AGREEMENT.  (THE PROPOSAL IS
 SET FORTH IN ITS ENTIRETY IN APPENDIX A.)
 
                            UNION PROPOSAL III
 
    ARTICLE 3 - SECTION 9
 
    SECTION 9 INCORPORATES THE PROVISIONS OF 5 U.S.C. 2301(B) (MERIT
 SYSTEM PRINCIPLES) INTO THE NEGOTIATED AGREEMENT.  (THE PROPOSAL IS SET
 FORTH IN ITS ENTIRETY IN APPENDIX B.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSALS II AND III, EMBODYING THE
 PROHIBITED PERSONNEL PRACTICES AND THE MERIT SYSTEM PRINCIPLES CONTAINED
 IN 5 U.S.C. 2301 AND 5 U.S.C. 2302, RESPECTIVELY, ARE WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSALS II AND III ARE WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS, 45 FED. REG. 3513, THE AGENCY'S
 ALLEGATION THAT THE PROPOSALS ARE NOT WITHIN THE DUTY TO BARGAIN IS SET
 ASIDE.  IN SO DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSALS.
 
    REASONS:  UNION PROPOSALS II AND III ARE ESSENTIALLY RESTATEMENTS OF
 SECTIONS 2301(B) (MERIT SYSTEM PRINCIPLES) AND 2302(B) (PROHIBITED
 PERSONNEL PRACTICES) OF THE CIVIL SERVICE REFORM ACT OF 1978 (5 U.S.C.
 2301 AND 2302).  THE UNION'S STATED INTENT IS TO INCORPORATE THESE TWO
 PROVISIONS OF LAW INTO THE NEGOTIATED AGREEMENT AND TO ENFORCE THEM
 THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE. THE AGENCY CONTENDS THAT
 THE
 PORTIONS OF UNION PROPOSALS II AND III WHICH DEAL WITH "RECRUITMENT" AND
 APPLICANTS FOR EMPLOYMENT" ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE "SUCH
 MATTERS DO NOT RELATE TO PERSONNEL POLICIES, PRACTICES AND MATTERS
 AFFECTING THE WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES (BUT) . .
 . RELATE TO THE RIGHTS OF PERSONS OUTSIDE THE BARGAINING UNIT." THE
 AGENCY FURTHER ASSERTS THAT "SOME SUBSECTIONS (OF THE PROPOSALS) DEAL
 WITH MANAGEMENT'S RIGHT TO TAKE OR REFRAIN FROM TAKING ANY PERSONNEL
 ACTION" AND THEREFORE VIOLATE MANAGEMENT'S RESERVED RIGHTS CONTAINED IN
 SECTION 7106(A)(2)(A) OF THE STATUTE (SUPRA NOTE 2).  FOR THE REASONS
 STATED BELOW, THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSALS ARE NOT
 WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.
 
    AS PREVIOUSLY STATED, THE UNION SEEKS TO "ENFORCE" THE MERIT SYSTEM
 PRINCIPLES AND PROHIBITED PERSONNEL PRACTICES THROUGH THE PARTIES'
 NEGOTIATED GRIEVANCE PROCEDURE BY INCORPORATING THOSE PROVISIONS OF LAW
 INTO THE AGREEMENT. IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL
 3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
 MINNESOTA, CASE NO. 0-NG-32, 3 FLRA IN SECTION 7103(A)(9) OF THE STATUTE
 /3/ AS WELL AS THE LANGUAGE OF SECTION 7121 OF THE STATUTE /4/ AND THE
 LEGISLATIVE HISTORY OF THAT SECTION IN ITS ENTIRETY, /5/ CONCLUDED THAT:
 
    CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A NEGOTIATED
 GRIEVANCE PROCEDURE
 
    SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISIONS OF LAW" COULD
 BE COVERED UNLESS THE
 
    PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS TO A
 PROCEDURE HAVING A NARROWER
 
    COVERAGE . . . (S)ECTION 7121, AS EXPLAINED BY THE COMMITTEE ON
 CONFERENCE, . . . PROVIDES
 
    THAT NEGOTIATED GRIEVANCE PROCEDURE COVER, AT A MAXIMUM, MATTERS
 WHICH UNDER THE PROVISIONS OF
 
    LAW COULD BE SUBMITTED TO THE PROCEDURES.
 
    NOTHING IN THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE CIVIL
 SERVICE REFORM ACT OF 1978 INDICATES THAT CONGRESS INTENDED TO EXCLUDE
 MATTERS CONCERNING THE MERIT SYSTEM PRINCIPLES AND PROHIBITED PERSONNEL
 PRACTICES FROM THE COVERAGE OF A NEGOTIATED GRIEVANCE PROCEDURE.  ON THE
 CONTRARY, WHILE SECTION 7121(C) OF THE STATUTE SPECIFICALLY EXCLUDES
 CERTAIN MATTERS FROM COVERAGE THEREUNDER (NOTE 4, SUPRA), MATTERS
 CONCERNING THE MERIT SYSTEM PRINCIPLES AND PROHIBITED PERSONNEL
 PRACTICES ARE NOT SO EXCLUDED.  RATHER, SUCH MATTERS ARE CLEARLY
 ENCOMPASSED WITHIN THE DEFINITION OF "GRIEVANCE" CONTAINED IN SECTION
 7103(A)(9) OF THE STATUTE.  AS PREVIOUSLY SET FORTH (NOTE 3, SUPRA),
 "GRIEVANCE" IS DEFINED TO INCLUDE, AMONG OTHERS, "ANY COMPLAINT BY ANY
 EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING . . . ANY CLAIMED
 VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF ANY LAW . . .
 AFFECTING CONDITIONS OF EMPLOYMENT." THEREFORE, SINCE THE MATTERS IN
 DISPUTE ARE LAWS AFFECTING CONDITIONS OF EMPLOYMENT THEY ARE WITHIN THE
 SCOPE OF A NEGOTIATED PROCEDURE "FOR THE SETTLEMENT OF GRIEVANCES" UNDER
 SECTION 7121 (SUPRA NOTE 4) UNLESS THE PARTIES EXCLUDE THEM THROUGH THE
 COLLECTIVE BARGAINING PROCESS AS PREVIOUSLY DISCUSSED IN CONNECTION WITH
 THE VETERANS ADMINISTRATION MEDICAL CENTER CASE.  THIS CONCLUSION IS
 FURTHER SUPPORTED BY THE REFERENCE IN SECTION 7121(D) OF THE STATUTE TO
 "(A)N AGGRIEVED EMPLOYEE AFFECTED BY A PROHIBITED PERSONNEL PRACTICE
 UNDER SECTION 2302(B)(1) OF THIS TITLE WHICH ALSO FALLS UNDER THE
 COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE . . . ." /6/
 
    FINALLY, THE AGENCY'S CONTENTIONS THAT, IN ESSENCE, UNION PROPOSALS
 II AND III ARE NOT WITHIN THE DUTY TO BARGAIN BECAUSE THEY MAY BE
 INTERPRETED AS APPLICABLE TO PERSONS OUTSIDE THE BARGAINING UNIT
 (INCLUDING APPLICANTS WHO ARE NOT "EMPLOYEES" WITHIN THE MEANING OF THE
 STATUTE) OR IN A MANNER THAT WOULD VIOLATE MANAGEMENT'S RESERVED RIGHTS
 UNDER SECTION 7106(A)(2)(A) OF THE STATUTE, CANNOT BE SUSTAINED.  IN
 THIS REGARD, AS THE AUTHORITY STATED IN VETERANS ADMINISTRATION MEDICAL
 CENTER, CASE NO.0-NG-32, SUPRA:
 
    IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE
 NONGRIEVABLE AND
 
    NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM
 MAY BE CHALLENGED BY THE
 
    AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
 FACTUAL CIRCUMSTANCES.  IN
 
    THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO
 "PROVIDE PROCEDURES FOR
 
    THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY.
 . . . " FURTHERMORE,
 
    . . . THE AGENCY WOULD HAVE AN OPPORTUNITY TO CHALLENGE (AN
 ARBITRATOR'S) AWARD BY FILING
 
    EXCEPTIONS THERETO WITH THE AUTHORITY PURSUANT TO SECTION 7122 OF THE
 STATUTE (92 STAT. 1212)
 
    ON THE BASIS THAT THE AWARD IS "CONTRARY TO ANY LAW, RULE OR
 REGULATION."
 
    FOR THE FOREGOING REASONS, UNION PROPOSALS II AND III ARE MATTERS
 WITHIN THE DUTY TO BARGAIN, AND THE AGENCY'S ALLEGATION THAT THE
 PROPOSALS ARE NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JULY 23, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED BELOW:
 
    MS. PHYLLIS M. BELZER
 
    ATTORNEY, OFFICE OF CHIEF COUNSEL
 
    GENERAL LEGAL SERVICES DIVISION
 
    BRANCH NO. 1
 
    INTERNAL REVENUE SERVICE
 
    1111 CONSTITUTION AVENUE, N.W., RM. 4566
 
    WASHINGTON, D.C. 20224
 
    ROBERT M. TOBIAS
 
    GENERAL COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
    MR. HENRY DE SEGUIRANT
 
    ACTING DIRECTOR OF PERSONNEL
 
    DEPARTMENT OF THE TREASURY
 
    15TH STREET & PENNSYLVANIA AVE., N.W.
 
    ROOM 2426
 
    WASHINGTON, D.C.  20220
 
                                APPENDIX A
 
                             UNION PROPOSAL II
 
    ARTICLE 3-- SECTION 8
 
    ANY EMPLOYEE OF THE INTERNAL REVENUE SERVICE WHO HAS AUTHORITY TO
 TAKE, DIRECT OTHERS TO TAKE, RECOMMEND, OR APPROVE ANY PERSONNEL ACTION,
 SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--
 
    (1) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
 EMPLOYMENT ON THE BASIS OF
 
    RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, HANDICAPPING
 CONDITION, MARITAL STATUS, OR
 
    POLITICAL AFFILIATION;
 
    (2) SOLICIT OR CONSIDER ANY RECOMMENDATION OR STATEMENT, ORAL OR
 WRITTEN, WITH RESPECT TO
 
    ANY INDIVIDUAL WHO REQUESTS OR IS UNDER CONSIDERATION FOR ANY
 PERSONNEL ACTION UNLESS SUCH
 
    RECOMMENDATION OR STATEMENT IS BASED ON THE PERSONAL KNOWLEDGE OR
 RECORDS OF THE PERSON
 
    FURNISHING IT AND CONSISTS OF--
 
    (A) AN EVALUATION OF THE WORK PERFORMANCE, ABILITY, APTITUDE, OR
 GENERAL QUALIFICATIONS OF
 
    SUCH INDIVIDUAL;  OR
 
    (B) AN EVALUATION OF THE CHARACTER, LOYALTY, OR SUITABILITY OF SUCH
 INDIVIDUAL:
 
    (3) COERCE THE POLITICAL ACTIVITY OF ANY PERSON (INCLUDING THE
 PROVIDING OF ANY POLITICAL
 
    CONTRIBUTION OR SERVICE), OR TAKE ANY ACTION AGAINST ANY EMPLOYEE OR
 APPLICANT FOR EMPLOYMENT
 
    AS A REPRISAL FOR THE REFUSAL OF ANY PERSON TO ENGAGE IN SUCH
 POLITICAL ACTIVITY;
 
    (4) DECEIVE OR WILLFULLY OBSTRUCT ANY PERSON WITH RESPECT TO SUCH
 PERSON'S RIGHT TO COMPETE
 
    FOR EMPLOYMENT;
 
    (5) INFLUENCE ANY PERSON TO WITHDRAW FROM COMPETITION FOR ANY
 POSITION FOR THE PURPOSE OF
 
    IMPROVING OR INJURING THE PROSPECTS OF ANY OTHER PERSON FOR
 EMPLOYMENT;
 
    (6) GRANT ANY PREFERENCE OR ADVANTAGE NOT AUTHORIZED BY LAW, RULE, OR
 REGULATIONS TO ANY
 
    EMPLOYEE OR APPLICANT FOR EMPLOYMENT (INCLUDING DEFINING THE SCOPE OR
 MANNER OF COMPETITION OR
 
    THE REQUIREMENTS FOR ANY POSITION) FOR THE PURPOSE OF IMPROVING OR
 INJURING THE PROSPECTS OF
 
    ANY PARTICULAR PERSON FOR EMPLOYMENT;
 
    (7) APPOINT, EMPLOY, PROMOTE, ADVANCE, OR ADVOCATE FOR APPOINTMENT,
 EMPLOYMENT, PROMOTION,
 
    OR ADVANCEMENT, IN OR TO A CIVILIAN POSITION, ANY INDIVIDUAL WHO IS A
 RELATIVE OF SUCH
 
    EMPLOYEE IF SUCH POSITION IS IN THE AGENCY IN WHICH SUCH EMPLOYEE IS
 SERVING AS A PUBLIC
 
    OFFICIAL OR OVER WHICH SUCH EMPLOYEE EXERCISES JURISDICTION OR
 CONTROL AS SUCH AN OFFICIAL;
 
    (8) TAKE OR FAIL TO TAKE A PERSONNEL ACTION WITH RESPECT TO ANY
 EMPLOYEE OR APPLICANT FOR
 
    EMPLOYMENT AS A REPRISAL FOR--
 
    (A) A DISCLOSURE OF INFORMATION BY AN EMPLOYEE OR APPLICANT WHICH THE
 EMPLOYEE OR APPLICANT
 
    REASONABLY BELIEVES EVIDENCES--
 
    (I) A VIOLATION OF ANY LAW, RULE, OR REGULATION, OR
 
    (II MISMANAGEMENT, A GROSS WASTE OF FUNDS, AN ABUSE OF AUTHORITY, OR
 SUBSTANTIAL AND
 
    SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY, IF SUCH DISCLOSURE IS NOT
 SPECIFICALLY PROHIBITED
 
    BY LAW OR IF SUCH INFORMATION IS NOT SPECIFICALLY REQUIRED BY
 EXECUTIVE ORDER TO BE KEPT
 
    SECRET IN THE INTEREST OF NATIONAL DEFENSE OR THE CONDUCT OF FOREIGN
 AFFAIRS;  OR
 
    (B) A DISCLOSURE TO THE SPECIAL COUNSEL OF THE MERIT SYSTEMS
 PROTECTION BOARD, OR TO THE
 
    INSPECTOR GENERAL OF AN AGENCY OR ANOTHER EMPLOYEE DESIGNATED BY THE
 HEAD OF THE AGENCY TO
 
    RECEIVE SUCH DISCLOSURES, OF INFORMATION WHICH THE EMPLOYEE OR
 APPLICANT REASONABLY BELIEVES
 
    EVIDENCES--
 
    (I) A VIOLATION OF ANY LAW, RULE, OR REGULATION, OR
 
    (II) MISMANAGEMENT, A GROSS WASTE OF FUNDS, AN ABUSE OF AUTHORITY, OR
 A SUBSTANTIAL AND
 
    SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY;
 
    (9) TAKE OR FAIL TO TAKE ANY PERSONNEL ACTION AGAINST ANY EMPLOYEE OR
 APPLICANT FOR
 
    EMPLOYMENT AS A REPRISAL FOR THE EXERCISE OF ANY APPEAL RIGHT GRANTED
 BY ANY LAW, RULE, OR
 
    REGULATION;
 
    (10) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
 EMPLOYMENT ON THE BASIS OF
 
    CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE
 EMPLOYEE OR APPLICANT OR THE
 
    PERFORMANCE OF OTHERS;  EXCEPT THAT NOTHING IN THIS PARAGRAPH SHALL
 PROHIBIT AN AGENCY FROM
 
    TAKING INTO ACCOUNT IN DETERMINING SUITABILITY OR FITNESS ANY
 CONVICTION OF THE EMPLOYEE OR
 
    APPLICANT FOR ANY CRIME UNDER THE LAWS OF ANY STATE, OF THE DISTRICT
 OF COLUMBIA, OR OF THE
 
    UNITED STATES;  OR
 
    (11) TAKE OR FAIL TO TAKE ANY PERSONNEL ACTION IF THE TAKING OF OR
 FAILURE TO TAKE SUCH
 
    ACTION VIOLATES ANY LAW, RULE, OR REGULATION IMPLEMENTING, OR
 DIRECTLY CONCERNING, THE MERIT
 
    SYSTEM PRINCIPLES CONTAINED IN SECTION 2301 OF THIS TITLE.
 
                                APPENDIX B
 
                            UNION PROPOSAL III
 
    ARTICLE 3-- SECTION 9
 
    A.  THE INTERNAL REVENUE SERVICE RECOGNIZES AND AGREE TO ABIDE BY THE
 MERIT SYSTEM PRINCIPLES SET FORTH IN THE CIVIL SERVICE REFORM ACT OF
 1978.
 
    B.  IN THIS REGARD THE EMPLOYER AGREES:
 
    (1) RECRUITMENT WILL BE FROM QUALIFIED INDIVIDUALS FROM APPROPRIATE
 SOURCES IN AN ENDEAVOR
 
    TO ACHIEVE A WORK FORCE FROM ALL SEGMENTS OF SOCIETY, AND SELECTION
 AND ADVANCEMENT SHOULD BE
 
    DETERMINED SOLELY ON THE BASIS OF RELATIVE ABILITY, KNOWLEDGE, AND
 SKILLS, AFTER FAIR AND OPEN
 
    COMPETITION WHICH ASSURES THAT ALL RECEIVE EQUAL OPPORTUNITY.
 
    (2) ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT WILL RECEIVE FAIR AND
 EQUITABLE TREATMENT
 
    IN ALL ASPECTS OF PERSONNEL MANAGEMENT WITHOUT REGARD TO POLITICAL
 AFFILIATION, RACE, COLOR,
 
    RELIGION, NATIONAL ORIGIN, SEX, MARITAL STATUS, AGE, OR HANDICAPPING
 CONDITION, AND WITH
 
    PROPER REGARD FOR THEIR PRIVACY AND CONSTITUTIONAL RIGHTS.
 
    (3) EQUAL PAY WILL BE PROVIDED FOR WORK OF EQUAL VALUE, WITH
 APPROPRIATE CONSIDERATION OF
 
    BOTH NATIONAL AND LOCAL RATES PAID BY EMPLOYERS IN THE PRIVATE
 SECTOR, AND APPROPRIATE
 
    INCENTIVES AND RECOGNITION SHOULD BE PROVIDED FOR EXCELLENCE IN
 PERFORMANCE.
 
    (4) ALL EMPLOYEES WILL MAINTAIN HIGH STANDARDS OF INTEGRITY, CONDUCT,
 AND CONCERN FOR (THE)
 
    PUBLIC INTEREST.
 
    (5) THE FEDERAL WORK FORCE WILL BE USED EFFICIENTLY AND EFFECTIVELY.
 
    (6) EMPLOYEES WILL BE RETAINED ON THE BASIS OF ADEQUACY OF THEIR
 PERFORMANCE, INADEQUATE
 
    PERFORMANCE WILL BE CORRECTED, AND EMPLOYEES WILL BE SEPARATED WHO
 CANNOT OR WILL NOT IMPROVE
 
    THEIR PERFORMANCE TO MEET REQUIRED STANDARDS.
 
    (7) EMPLOYEES WILL BE PROVIDED EFFECTIVE EDUCATION AND TRAINING IN
 CASES (IN) WHICH SUCH
 
    EDUCATION AND TRAINING WILL RESULT IN BETTER ORGANIZATIONAL AND
 INDIVIDUAL PERFORMANCE.
 
    (8) EMPLOYEES WILL BE--
 
    (A) PROTECTED AGAINST ARBITRARY ACTION, PERSONAL FAVORITISM, OR
 COERCION FOR PARTISAN
 
    POLITICAL PURPOSES, AND
 
    (B) PROHIBITED FROM USING THEIR OFFICIAL AUTHORITY OR INFLUENCE FOR
 THE PURPOSE OF
 
    INTERFERING WITH OR AFFECTING THE RESULT OF AN ELECTION OR A
 NOMINATION FOR ELECTION.
 
    (9) EMPLOYEES WILL BE PROTECTED AGAINST REPRISAL FOR THE LAWFUL
 DISCLOSURE OF INFORMATION
 
    WHICH THE EMPLOYEES REASONABLY BELIEVE EVIDENCES -
 
    (A) A VIOLATION OF LAW, RULE, OR REGULATION, OR
 
    (B) MISMANAGEMENT, A GROSS WASTE OF FUNDS, AN ABUSE OF AUTHORITY, OR
 A SUBSTANTIAL AND
 
    SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY.
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION, EXTEND TO
 
    MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE
 
    RULE OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF
 THE STATUTE:
 
    SEC. 7103. DEFINITIONS:  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   *          *          *          *
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . . .
 
   *          *          *          *
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS . . . .
 
    /2/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY;
  AND
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR PAY, OR TAKE OTHER DISCIPLINARY
 ACTION AGAINST SUCH
 
    EMPLOYEES;  . . .
 
    /3/ SECTION 7103(A)(9) OF THE STATUTE PROVIDES:
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
    (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;
 
    /4/ SECTION 7121 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
 COLLECTIVE BARGAINING
 
    AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF
 
    ARBITRABILITY.  EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
 SECTION, THE PROCEDURES
 
    SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
 WITHIN ITS COVERAGE.
 
    (2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE
 
    GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
 
   *          *          *          *
 
 
    (C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
 RESPECT TO ANY GRIEVANCE
 
    CONCERNING--
 
    (1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
 TITLE (RELATING TO
 
    PROHIBITED POLITICAL ACTIVITIES);
 
    (2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
 
    (3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;
 
    (4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT;  OR
 
    (5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
 REDUCTION IN GRADE OR
 
    PAY OF AN EMPLOYEE.
 
    /5/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 157 (1978).
 
    /6/ SEE ALSO SECTION 1201.3(B)(1) OF THE FINAL REGULATIONS OF THE
 MERIT SYSTEMS PROTECTION BOARD, 5 C.F.R. 2101.3(B)(1) (1979), WHICH
 PROVIDES:
 
    (1) WHERE AN EMPLOYEE IS COVERED BY A COLLECTIVE BARGAINING AGREEMENT
 WHICH PROVIDES
 
    EXCLUSIVE NEGOTIATED GRIEVANCE PROCEDURES FOR SPECIFIC MATTERS UNDER
 5 U.S.C. 7121, THE
 
    EMPLOYEE MAY NOT APPEAL THOSE MATTERS TO THE BOARD.