American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Council (Union) and U.S. Department of the Justice, Immigration and Naturalization Service (Agency)



[ v08 p347 ]
08:0347(75)NG
The decision of the Authority follows:


 8 FLRA No. 75
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
 IMMIGRATION & NATURALIZATION SERVICE COUNCIL
 Union
 
 and
 
 U.S. DEPARTMENT OF JUSTICE,
 IMMIGRATION & NATURALIZATION SERVICE
 Agency
 
                                            Case No. O-NG-52
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN 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 (THE STATUTE) (5
 U.S.C. 7101-7135).  THE ISSUE INVOLVED IS THE NEGOTIABILITY OF SIXTEEN
 PROPOSALS.
 
                             UNION PROPOSAL 1
 
    ACCESS TO INTERNAL INVESTIGATION FILES SHALL BE RESTRICTED.  DURING
 THE INVESTIGATION, ONLY
 
    THE OFFICER OR OFFICERS ASSIGNED TO CONDUCT THE INVESTIGATION WILL
 HAVE ACCESS TO THE RELATED
 
    FILE AND MATERIAL THEREIN.
 
    . . . ACCESS TO THIS SUBJECT FILE MAY BE AUTHORIZED TO ANY SERVICE
 OFFICIAL FOR CAUSE.  A
 
    WRITTEN STATEMENT OF CAUSE SHALL BE SUBMITTED BY THE SERVICE OFFICIAL
 REQUESTING THE FILE AND
 
    A PERMANENT RECORD WILL BE KEPT ON SUCH REQUESTS.  THE SERVICE AND
 THE UNION AGREE THAT
 
    INTERNAL INVESTIGATION FILE(S) MAY CONTAIN EXTREMELY SENSITIVE
 MATERIAL.  THEREFORE, ACCESS IN
 
    NO CASE WOULD BE AUTHORIZED FOR INDISCRIMINATE PURPOSES.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE THE PROPOSAL DOES NOT RELATE
 TO THE "CONDITIONS OF EMPLOYMENT" OF UNIT EMPLOYEES WITHIN THE MEANING
 OF SECTION 7103(A)(14) OF THE STATUTE;  OR BECAUSE IT CONFLICTS WITH THE
 AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES PURSUANT TO
 SECTION 7106(A)(1), OR THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED PURSUANT TO SECTION 7106(A)(B) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS NOT CONCERNED WITH THE
 CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION
 7103(A)(14) OF THE STATUTE AND, THUS, IT IS NOT WITHIN THE AGENCY'S DUTY
 TO BARGAIN.  /1/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW OF THIS DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  THE DUTY TO BARGAIN ESTABLISHED IN THE STATUTE /2/ EXTENDS
 TO MATTERS RELATING TO "CONDITIONS OF EMPLOYMENT," I.E., PERSONNEL
 POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS OF UNIT
 EMPLOYEES.  /3/ THE PROPOSAL, HOWEVER, BY ITS LANGUAGE AND THE UNION'S
 STATED INTENT, IS CONCERNED WITH RESTRICTING THE ACCESS OF MANAGEMENT
 OFFICIALS TO THE AGENCY'S INTERNAL INVESTIGATORY FILES.  IN THIS REGARD,
 THE PROPOSAL DOES NOT DIRECTLY INVOLVE PERSONNEL POLICIES, PRACTICES OR
 MATTERS AFFECTING UNIT EMPLOYEES' WORKING CONDITIONS.  WHILE THE UNION
 STATES THAT THE PURPOSE OF THE PROPOSAL IS TO PROTECT EMPLOYEES AGAINST
 THE CONSIDERATION OF SENSITIVE BUT IRRELEVANT INFORMATION IN THE FILES
 IN CONNECTION WITH PERSONNEL ACTIONS AFFECTING THEM, THE PROPOSAL, AS
 DRAFTED, IS DIRECTED TOWARD MANAGEMENT'S ACCESS TO THE AGENCY FILES IN
 QUESTION RATHER THAN MANAGEMENT'S CONSIDERATION OF OR OTHER USE OF SUCH
 INFORMATION.  THEREFORE, NOTWITHSTANDING THE OBJECTIVE OF THE PROPOSAL,
 ON ITS FACE THE PROPOSAL, WHICH IS DIRECTLY CONCERNED ONLY WITH
 RESTRICTING MANAGEMENT'S ACCESS TO ITS FILES, DOES NOT CONCERN
 CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.
 
                             UNION PROPOSAL 2
 
    IN ADDITION TO OTHER INSIGNIA OR A BADGE ALREADY PROVIDED, UNIFORMED
 EMPLOYEES MAY BE
 
    ISSUED AN IDENTIFICATION PLATE SHOWING, AMONG OTHER THINGS, AN
 OFFICIAL EMBLEM AND A NUMBER
 
    FOR IDENTIFICATION PURPOSES.  EMPLOYEES' NAMES WILL NOT BE REQUIRED
 ON IDENTIFICATION PLATES
 
    TO AVOID ABUSE OF THE EMPLOYEES' PRIVACY AND TO AVOID HARASSMENT.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN,
 AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT WITH THE AGENCY'S
 RIGHT TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK PURSUANT TO
 SECTION 7106(B)(1) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL DOES NOT CONFLICT WITH THE
 AGENCY'S RIGHT TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK
 PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE.  THEREFORE, THE PROPOSAL
 IS WITHIN THE AGENCY'S DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO
 SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10
 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THIS PROPOSAL.
 /4/
 
    REASONS:  THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES CONCERNING
 THIS PROPOSAL IS WHETHER THE STATUTE RESERVES TO MANAGEMENT, PURSUANT TO
 ITS RIGHT TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK, THE
 RIGHT TO UNILATERALLY DETERMINE THAT THE IDENTIFICATION PLATES WORN BY
 UNIFORMED OFFICERS SHALL DISPLAY THE EMPLOYEES' NAMES RATHER THAN A
 NUMBER.
 
    NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION
 VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254 (1979), INVOLVED AN AGENCY
 REQUIREMENT THAT UNIFORMED CUSTOMS OFFICERS WEAR NAMEPLATES FOR THE
 PURPOSE OF "PERSONALIZING" THE PUBLIC'S DEALINGS WITH SUCH OFFICERS.
 THE AUTHORITY FOUND THAT, IN THOSE CIRCUMSTANCES, NAMEPLATES CONSTITUTED
 A "MEANS" OF PERFORMING THE WORK OF THE AGENCY, WITHIN THE MEANING OF
 SECTION 7106(B)(1) OF THE STATUTE, /5/ IN THAT THEY WERE AN INSTRUMENT
 USED TO ACCOMPLISH THAT ASPECT OF THE WORK OF A CUSTOMS OFFICER WHICH
 INVOLVED CONTACT WITH THE PUBLIC.  THE UNION, HOWEVER, TO AVOID ADVERSE
 EFFECTS ON THE PRIVACY AND SAFETY OF THE OFFICERS AND THEIR FAMILIES,
 PROPOSED THAT THE NAMEPLATES CARRY, INSTEAD OF AN EMPLOYEE'S ACTUAL FULL
 NAME, ANY OF A VARIETY OF IDENTIFYING SYMBOLS SUCH AS ONLY FIRST OR ONLY
 LAST NAMES WITH INITIALS OR PSEUDONYMS.  THE AUTHORITY HELD THE PROPOSAL
 TO BE WITHIN THE DUTY TO BARGAIN, ON THE BASIS THAT THE AGENCY DID NOT
 SHOW AND IT WAS NOT OTHERWISE APPARENT THAT THE AGENCY'S OBJECTIVE OF
 PERSONALIZING OFFICERS' CONTACTS WITH THE PUBLIC COULD ONLY BE ACHIEVED
 IF THE NAMEPLATES DISPLAYED ACTUAL AND COMPLETE NAMES.  CONSEQUENTLY,
 NEGOTIATIONS ON THE FORMATS PROPOSED BY THE UNION WOULD NOT PREVENT THE
 AGENCY FROM REQUIRING NAMEPLATES TO BE WORN FOR THE OBJECTIVE INTENDED.
 
    SIMILARLY, IN THE PRESENT DISPUTE, THE AGENCY HAS DETERMINED THAT ITS
 UNIFORMED OFFICERS WILL WEAR IDENTIFICATION PLATES AS A "MEANS" OF
 PERFORMING THE AGENCY'S WORK INVOLVING PUBLIC CONTACT.  HOWEVER, IN THE
 INSTANT CASE, THE AGENCY'S AVOWED PURPOSE IN REQUIRING NAMEPLATES IS NOT
 TO "PERSONALIZE" THE CONTACTS BETWEEN ITS OFFICERS AND THE PUBLIC.
 RATHER, THE PURPOSE IS TO PROVIDE FOR THE IDENTIFICATION OF ITS OFFICERS
 AND TO FACILITATE THE WORK OF SUPERVISORY PERSONNEL IN MAKING
 ASSIGNMENTS FOR THE OFFICERS, AND IN CONDUCTING ON-SITE INSPECTIONS.  IN
 THIS REGARD, THE AGENCY HAS NOT SHOWN AND IT IS NOT APPARENT TO THE
 AUTHORITY THAT THESE OBJECTIVES CAN ONLY BE ACHIEVED BY THE USE OF
 IDENTIFICATION PLATES WHICH DISPLAY THE OFFICERS' NAMES, RATHER THAN
 PLATES WHICH DISPLAY IDENTIFICATION NUMBERS OR SOME COMBINATION OF
 NUMBERS AND LETTERS, AS THE UNION PROPOSES.  FURTHERMORE, AS IN THE
 CUSTOMS SERVICE CASE, THE UNION HAS STATED THAT THE USE OF NAMEPLATES
 MAY ADVERSELY AFFECT THE EMPLOYEES' OFF-THE-JOB PRIVACY.
 
    ACCORDINGLY, THE AGENCY REQUIREMENT THAT OFFICERS WEAR IDENTIFICATION
 PLATES CONSTITUTES A DECISION AS TO THE "MEANS" OF PERFORMING ITS WORK
 PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE.  HOWEVER, THE PROPOSAL
 THAT IDENTIFYING SYMBOLS OTHER THAN AN EMPLOYEE'S NAME BE USED ON SUCH
 PLATES WOULD CONSTITUTE AN "APPROPRIATE ARRANGEMENT" FOR EMPLOYEES WHO
 MAY BE ADVERSELY AFFECTED BY SUCH A DECISION.  THUS, PURSUANT TO SECTION
 7106(B)(3) OF THE STATUTE, /6/ THE PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN.
 
                             UNION PROPOSAL 3
 
    (1) THE PERSONAL APPEARANCE OF EMPLOYEES IS A MATTER OF CONCERN TO
 BOTH THE UNION AND THE
 
    SERVICE.  UNIFORMS AND CIVILIAN ATTIRE WORN WHILE IN AN ON-DUTY
 STATUS WILL BE CLEAN AND KEPT
 
    IN GOOD REPAIR.
 
    (2) THE NEGOTIATED GROOMING STANDARD AND THE APPLICATION OF THAT
 STANDARD WILL NOT
 
    DISCRIMINATE ON THE BASIS OF SEX.
 
    (3) PERSONAL APPEARANCE AND GROOMING STANDARDS SHALL BE AT THE
 DISCRETION OF THE INDIVIDUAL
 
    EMPLOYEE, SUBJECT TO THE LIMITATIONS SET FORTH IN THIS PORTION OF THE
 CONTRACT.  PERSONAL
 
    APPEARANCE AND GROOMING WILL NOT IMPEDE THE GENERAL PUBLIC'S READY
 RECOGNITION OF THE EMPLOYEE
 
    AS A REPRESENTATIVE OF THE IMMIGRATION AND NATURALIZATION SERVICE.
 
    (4) THE SERVICE AND THE UNION AGREE THAT THE OFFICIAL UNIFORM, WHEN
 WORN IN ITS ENTIRETY,
 
    AFFORDS SUFFICIENT IDENTIFICATION OF THE EMPLOYEE AS A REPRESENTATIVE
 OF THE IMMIGRATION AND
 
    NATURALIZATION SERVICE.
 
    (5) BEARDS, MUSTACHES AND HAIR ON THE HEAD SHALL BE NEATLY TRIMMED,
 CLEAN AND SHALL NOT
 
    INTERFERE WITH THE EMPLOYEE'S VISION OR THE WEARING OF HEADGEAR THAT
 MAY BE REQUIRED AS A PART
 
    OF THE OFFICIAL UNIFORM.
 
    IN ITS STATEMENT OF POSITION, THE AGENCY, WITHOUT CONTRADICTION BY
 THE UNION, DESCRIBES THE DISPUTE CONCERNING THE PROPOSAL AS FOLLOWS:
 
    THE (UNION) MADE IT CLEAR AT THE BARGAINING TABLE THAT THE UNDERLYING
 PURPOSE OF THE
 
    LANGUAGE OF SUBSECTIONS (2)-(5) . . . IS TO PERMIT MALE UNIFORMED
 IMMIGRATION OFFICERS TO WEAR
 
    THEIR HAIR SO THAT IT FALLS OVER THEIR COLLAR AND/OR OVER THEIR EARS,
 TO GROW BEARDS AND TO
 
    LET MUSTACHES GROW TO LENGTHS THAT EXTEND MORE THAN 1/4 INCH BEYOND
 THE CORNER OF THE MOUTH.
 
    BASED ON THIS STATEMENT AND THE RECORD AS A WHOLE, THE PARTIES'
 DISPUTE WITH RESPECT TO THE PROPOSAL CENTERS ON GROOMING STANDARDS FOR
 HAIR FOR MALE UNIFORMED OFFICERS.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL, AS IT RELATES TO GROOMING
 STANDARDS, IS NOT WITHIN THE DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY,
 PRINCIPALLY BECAUSE IT CONFLICTS WITH THE AGENCY'S RIGHT TO DETERMINE
 THE "MEANS" OF PERFORMING WORK UNDER SECTION 7106(B)(1) OF THE STATUTE,
 OR BECAUSE IT CONFLICTS WITH THE AGENCY'S RIGHT TO DETERMINE ITS
 "ORGANIZATION" UNDER SECTION 7106(A)(1) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL DOES NOT CONFLICT WITH THE
 AGENCY'S RIGHT TO DETERMINE THE MEANS OF PERFORMING WORK WITHIN THE
 MEANING OF SECTION 7106(B)(1) OR ITS RIGHT TO DETERMINE ITS ORGANIZATION
 WITHIN THE MEANING OF SECTION 7106(A)(1) OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, (5
 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
 (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE
 PROPOSAL.  /7/
 
    REASONS:  THE AGENCY HAS DETERMINED THAT ITS UNIFORMED OFFICERS MUST
 ADHERE TO GROOMING STANDARDS TO ENSURE THAT SUCH OFFICERS ARE READILY
 RECOGNIZED AS REPRESENTATIVES OF THE AGENCY IN THEIR DEALINGS WITH THE
 PUBLIC.  IN THE CIRCUMSTANCES HERE PRESENTED, SUCH A DETERMINATION
 CONSTITUTES A DECISION REGARDING THE "MEANS" OF PERFORMING THE AGENCY'S
 WORK UNDER SECTION 7106(B)(1) OF THE STATUTE.  /8/ HOWEVER, IT IS NOTED
 THAT THE PROPOSAL, PROVIDING FOR GROOMING STANDARDS VARYING FROM THE
 AGENCY'S STANDARDS, INCLUDES THE EXPRESS QUALIFICATION THAT "(P)ERSONAL
 APPEARANCE AND GROOMING WILL NOT IMPEDE THE GENERAL PUBLIC'S READY
 RECOGNITION OF THE EMPLOYEE AS A REPRESENTATIVE OF THE IMMIGRATION AND
 NATURALIZATION SERVICE." IN THIS REGARD, THE AGENCY'S OBJECTIVE IS
 EXPRESSLY INCORPORATED INTO THE PROPOSAL.  FURTHERMORE, WHILE THE UNION
 STATES, WITHOUT DISPUTE FROM THE AGENCY, THAT THE LATTER'S DECISION TO
 REQUIRE GROOMING STANDARDS AFFECTS THE EMPLOYEES' OFF-THE-JOB PRIVACY,
 THE AGENCY HAS NOT SHOWN AND IT IS NOT APPARENT TO THE AUTHORITY THAT
 THE AGENCY'S OBJECTIVE OF PROVIDING FOR THE READY RECOGNITION OF ITS
 UNIFORMED OFFICERS BY THE PUBLIC CAN ONLY BE ACHIEVED BY ITS
 UNILATERALLY ESTABLISHED STANDARDS.  ACCORDINGLY, IN THESE
 CIRCUMSTANCES, IT IS DETERMINED THAT WHILE THE AGENCY'S REQUIREMENT THAT
 THERE SHALL BE GROOMING STANDARDS CONSTITUTES A DECISION REGARDING
 "MEANS" UNDER SECTION 7106(B)(1) OF THE STATUTE, THE PROPOSAL
 CONSTITUTES A "APPROPRIATE ARRANGEMENT" FOR EMPLOYEES ADVERSELY AFFECTED
 BY SUCH A DECISION PURSUANT TO SECTION 7106(B)(3).
 
    AS TO THE AGENCY'S CONTENTION REGARDING ITS RIGHT TO DETERMINE ITS
 ORGANIZATION UNDER SECTION 7106(A)(1) OF THE STATUTE, /9/ THE TERM
 "ORGANIZATION" GENERALLY REFERS TO THE ADMINISTRATIVE AND FUNCTIONAL
 STRUCTURE OF AN ENTERPRISE, INSTITUTION, ETC., INCLUDING THE
 RELATIONSHIPS OF PERSONNEL THROUGH LINES OF AUTHORITY AND RESPONSIBILITY
 WITH DELEGATED AND ASSIGNED DUTIES.  /10/ THE INSTANT PROPOSAL IS NOT
 DIRECTLY CONCERNED WITH OR INTEGRALLY RELATED TO ANY OF THESE MATTERS.
 ACCORDINGLY, THE AGENCY'S CONTENTIONS IN THIS AREA ALSO CANNOT BE
 SUSTAINED.  /11/
 
                             UNION PROPOSAL 4
 
    IN ITS STATEMENT OF POSITION, THE AGENCY STATES THAT THE PARTIES HAVE
 REACHED AGREEMENT ON A CLARIFICATION OF THIS PROPOSAL WHICH HAS HAD THE
 EFFECT OF ELIMINATING THE AGENCY'S PRIOR OBJECTIONS.  THE UNION TACITLY
 CONCURS WITH THIS STATEMENT.  THE AUTHORITY CONCLUDES THAT THE PARTIES'
 DISPUTE CONCERNING THIS PROPOSAL'S NEGOTIABILITY HAS BEEN RENDERED MOOT.
  ACCORDINGLY, WE NEED NOT CONSIDER THE PROPOSAL FURTHER HEREIN.
 
                             UNION PROPOSAL 5
 
    THE SERVICE AGREES THAT PRIOR TO QUESTIONING ANY EMPLOYEE ON A MATTER
 RELATING TO A
 
    DISCIPLINARY ACTION, THE EMPLOYEE WILL BE ADVISED IN WRITING OF THE
 RIGHT TO BE REPRESENTED BY
 
    THE UNION OR A PERSONAL REPRESENTATIVE APPROVED BY THE UNION.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT CONCERN A MATTER
 DIRECTLY RELATED TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES
 WITHIN THE MEANING OF SECTION 7103(A)(14);  OR BECAUSE IT WOULD CONFLICT
 WITH ENTITLEMENTS TO REPRESENTATION PROVIDED IN SECTION 7114(A)(2), OR
 MANAGEMENT'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
 THE STATUTE.
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
 IT IS DIRECTLY CONCERNED WITH THE CONDITIONS OF EMPLOYMENT OF UNIT
 EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE;  AND
 IT WOULD NOT CONFLICT WITH SECTION 7114(A)(2) OR SECTION 7106(A)(2)(A)
 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
 THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
 PARTIES) BARGAIN CONCERNING THE PROPOSAL.  /12/
 
    REASONS:  ACCORDING TO THE UNION, THIS PROPOSAL WOULD GIVE BARGAINING
 UNIT EMPLOYEES THE RIGHT TO BE REPRESENTED BY THE UNION OR AN APPROVED
 PERSONAL REPRESENTATIVE DURING CERTAIN MANAGEMENT INQUIRIES FOR WHICH NO
 RIGHT TO BE REPRESENTED IS ESTABLISHED BY THE STATUTE.  MORE
 PARTICULARLY, THE PROPOSAL WOULD ESTABLISH SUCH RIGHT AND REQUIRE
 WRITTEN NOTICE OF IT TO ANY EMPLOYEE ORDERED BY MANAGEMENT TO SUBMIT TO
 INTERROGATION PRIOR TO THE EMPLOYEE'S BEING QUESTIONED "ON A MATTER
 RELATING TO A DISCIPLINARY ACTION" CONCERNING THAT OR ANOTHER EMPLOYEE.
 THE UNION ASSERTS AND THE AGENCY TACITLY CONCEDES THAT, IN THE
 CIRCUMSTANCES COVERED BY THE PROPOSAL, "THE EMPLOYER REQUIRES THAT
 EMPLOYEES BE SWORN WHEN ANSWERING THE QUESTIONS DURING AN
 INTERROGATION."
 
    THE AGENCY DISPUTES THE NEGOTIABILITY OF THE PROPOSAL INSOFAR AS IT
 WOULD APPLY IN VARIOUS CIRCUMSTANCES:  WHERE DISCIPLINARY ACTION HAS NOT
 BEEN PROPOSED OR CARRIED OUT AGAINST THE EMPLOYEE BEING QUESTIONED;
 WHERE SUSPICION HAS NOT CENTERED ON THAT EMPLOYEE;  OR WHERE THE
 EMPLOYEE DOES NOT HAVE A REASONABLE EXPECTATION OF DISCIPLINARY ACTION.
 IN THESE SITUATIONS, THE AGENCY ESSENTIALLY ARGUES THAT THE PROPOSAL
 DOES NOT DIRECTLY CONCERN MATTERS RELATED TO THE CONDITIONS OF
 EMPLOYMENT OF THE EMPLOYEE BEING QUESTIONED UNDER SECTION 7103(A)(14).
 RATHER, IN ITS VIEW, THE CONNECTION BETWEEN THE PROPOSAL AND "CONDITIONS
 OF EMPLOYMENT" WOULD BE ONLY INDIRECT, REMOTE AND SPECULATIVE.  THIS
 AGENCY CONTENTION CANNOT BE SUSTAINED.
 
    THE QUESTIONING UNDER OATH OF EMPLOYEES BY MANAGEMENT ON MATTERS
 RELATING TO DISCIPLINARY ACTIONS PLAINLY IS A PERSONNEL POLICY AND
 PRACTICE AND A MATTER AFFECTING THE WORKING CONDITIONS OF THE EMPLOYEES
 INVOLVED WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE.  THE
 PARTICIPATION OF EMPLOYEES IN SUCH INTERROGATIONS IS UNDER COMPULSION
 DERIVING SOLELY FROM THE EMPLOYMENT RELATIONSHIP AND CONSEQUENCES MAY
 FLOW FROM THE INTERROGATIONS WHICH WOULD DIRECTLY AFFECT THE WORK
 SITUATION AND EMPLOYMENT RELATIONSHIP OF THE EMPLOYEES QUESTIONED.  /13/
 ACCORDINGLY, IT IS CONCLUDED THAT THE PROPOSAL DIRECTLY RELATES TO
 CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN THE BARGAINING UNIT SO
 AS TO BE WITHIN THE SCOPE OF BARGAINING UNLESS OTHERWISE EXCLUDED.
 
    THE AGENCY'S SECOND ARGUMENT IS THAT THE PROPOSAL IS INCONSISTENT
 WITH THE STATUTE INSOFAR AS IT WOULD ESTABLISH A RIGHT TO REPRESENTATION
 IN CIRCUMSTANCES BEYOND THOSE FOR WHICH THERE IS SUCH AN ENTITLEMENT
 UNDER SECTION 7114(A)(2).  /14/ THIS ARGUMENT IS INAPPOSITE, HOWEVER:
 THE PROPOSAL WOULD CREATE A CONTRACTUAL RIGHT FOR UNIT EMPLOYEES TO BE
 REPRESENTED DURING QUESTIONING.  IT IS NOT BASED UPON INTERPRETATION AND
 APPLICATION OF SECTION 7114(A)(2) OF THE STATUTE.  MOREOVER, NOTHING
 CONTAINED IN THAT SECTION OF THE STATUTE WOULD PRECLUDE THE UNION FROM
 SEEKING TO NEGOTIATE PROCEDURAL PROTECTIONS FOR EMPLOYEES BEYOND THOSE
 CREATED BY THE STATUTE.  /15/ ACCORDINGLY, SECTION 7114(A)(2) OF THE
 STATUTE DOES NOT PROVIDE A BASIS FOR DETERMINING THAT THIS PROPOSAL IS
 OUTSIDE OF THE AGENCY'S DUTY TO BARGAIN.
 
    FINALLY, THE AGENCY ARGUES THAT THIS PROPOSAL WOULD CONFLICT WITH ITS
 RIGHT TO DIRECT EMPLOYEES PURSUANT TO SECTION 7106(A)(2)(A) OF THE
 STATUTE /16/ BECAUSE IT WOULD INTERFERE WITH THE AGENCY'S OBTAINING
 TIMELY, ACCURATE, AND TRUTHFUL INFORMATION.  THE AUTHORITY FINDS NOTHING
 TO SUPPORT SUCH A CONCLUSION, EITHER IN THE LANGUAGE OF THE PROPOSAL OR
 THE UNION'S STATEMENT AS TO ITS MEANING.  THE PROPOSAL LITERALLY
 REQUIRES ONLY THAT EMPLOYEES WILL BE GIVEN NOTICE OF THEIR RIGHT TO
 REPRESENTATION PRIOR TO QUESTIONING.  IMPLICITLY AND AS EXPLAINED BY THE
 UNION, IT REQUIRES THE OPPORTUNITY FOR SUCH REPRESENTATION TO OCCUR.
 FURTHERMORE, AS TO TIMELINESS, EVEN ASSUMING SOME DELAY WOULD INEVITABLY
 RESULT FROM APPLICATION OF THE PROPOSED PROCEDURES, THE AGENCY HAS NOT
 ESTABLISHED THAT SUCH DELAY WOULD PREVENT IT, ULTIMATELY, FROM ACTING
 PURSUANT TO ITS RESERVED RIGHTS UNDER THE STATUTE.  CONSEQUENTLY, SUCH
 DELAY IS NOT A BASIS FOR DETERMINING THAT THIS PROPOSAL IS OUTSIDE OF
 THE DUTY TO BARGAIN UNDER SECTION 7106 OF THE STATUTE.  /17/
 
                             UNION PROPOSAL 6
 
    WHEN AN EMPLOYEE HAS A REASONABLE EXPECTATION THAT DISCIPLINARY
 ACTION MAY BE BASED UPON
 
    THE RESULTS OF AN INTERVIEW WITH A SUPERVISOR OR OTHER MANAGEMENT
 OFFICIAL AND ELECTS TO HAVE
 
    A REPRESENTATIVE PRESENT, THE INTERVIEW OR INTERROGATION WILL BE
 POSTPONED FOR NO MORE THAN
 
    TWO WORK DAYS FROM THE TIME THE EMPLOYEE RECEIVES NOTIFICATION OF THE
 INTERROGATION.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT CONCERN A MATTER
 DIRECTLY RELATED TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES
 WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE;  OR BECAUSE IT
 WOULD CONFLICT WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL
 SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE, /18/ OR THE
 AGENCY'S RIGHTS TO DIRECT OR DISCIPLINE ITS EMPLOYEES UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE.  /19/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS CONCERNED WITH CONDITIONS OF
 EMPLOYMENT, DOES NOT INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE ITS
 INTERNAL SECURITY PRACTICES OR ITS RIGHT TO DIRECT OR DISCIPLINE ITS
 EMPLOYEES AND THUS IS WITHIN THE AGENCY'S DUTY TO BARGAIN.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
 (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE
 PROPOSAL.  /20/
 
    REASONS:  BASED ON THE RECORD, THE DELAY WHICH IS THE SUBJECT OF THE
 PROPOSAL IS FOR THE PURPOSE OF ARRANGING REPRESENTATION FOR AN EMPLOYEE
 TO BE QUESTIONED IN AN INTERVIEW OR INTERROGATION.  THE AGENCY CONTENDS
 THAT THE PROPOSAL IS NOT CONCERNED WITH THE "CONDITIONS OF EMPLOYMENT"
 OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE
 STATUTE.  AS PREVIOUSLY EXPLAINED, IN CONNECTION WITH PROPOSAL 5, THE
 PARTICIPATION OF EMPLOYEES AT THE INTERROGATIONS IS UNDER COMPULSION
 DERIVING SOLELY FROM THE EMPLOYMENT RELATIONSHIP AND CONSEQUENCES MAY
 FLOW FROM THE INTERROGATION WHICH WOULD DIRECTLY AFFECT THE WORK
 SITUATION AND EMPLOYMENT RELATIONSHIP OF THE EMPLOYEES QUESTIONED;
 THUS, THE AGENCY'S ARGUMENT THAT THE PROPOSAL DOES NOT CONCERN
 CONDITIONS OF EMPLOYMENT CANNOT BE SUSTAINED.
 
    THE AGENCY ALSO CONTENDS THAT THERE ARE SITUATIONS RELATING TO ITS
 LAW ENFORCEMENT FUNCTIONS WHERE ITS NEED FOR THE INFORMATION WHICH MAY
 BE OBTAINED THROUGH AN INTERVIEW OR INTERROGATION IS IMMEDIATE, AND THE
 DELAY CONTEMPLATED BY THE PROPOSAL TO PROVIDE FOR REPRESENTATION WOULD
 INTERFERE WITH ITS ABILITY TO OBTAIN THIS INFORMATION.  AS SUCH, IN ITS
 VIEW, THE PROPOSAL WOULD INTERFERE WITH ITS RIGHT TO DETERMINE ITS
 INTERNAL SECURITY PRACTICES AND ITS RIGHT TO DIRECT OR DISCIPLINE
 EMPLOYEES UNDER, RESPECTIVELY, SECTION 7106(A)(1) AND SECTION
 7106(A)(2)(A) OF THE STATUTE.
 
    AS WAS NOTED WITH RESPECT TO PROPOSAL 5, A MERE DELAY IN THE EXERCISE
 OF MANAGEMENT'S AUTHORITY UNDER SECTION 7106 OF THE STATUTE IS NOT A
 BASIS FOR DETERMINING THAT THE PROPOSAL IS NOT WITHIN AN AGENCY'S DUTY
 TO BARGAIN.  /21/ THE AGENCY HAS NOT SHOWN THAT THE DELAY CONTEMPLATED
 BY THE PROPOSAL WOULD NEGATE ITS RIGHTS UNDER SECTION 7106.  ALTHOUGH
 THE BARGAINING PROCESS LENDS ITSELF TO A CONSIDERATION OF THE
 CONSEQUENCES OF THE PROPOSAL, SHOULD MATTERS OF CONCERN TO EITHER PARTY,
 SUCH AS THE APPLICATION OF THE DELAY TO A SPECIFIC SITUATION, PREVENT
 THE PARTIES FROM REACHING AGREEMENT, SUCH CONSIDERATIONS COULD BE
 PRESENTED TO THE FEDERAL SERVICE IMPASSES PANEL IN A PROCEEDING TO
 RESOLVE A NEGOTIATION IMPASSE PURSUANT TO SECTION 7119 OF THE STATUTE.
 
                             UNION PROPOSAL 7
 
    SHOULD AN EMPLOYEE BE REQUIRED TO GIVE A WRITTEN STATEMENT ON A
 MATTER WHICH COULD RESULT
 
    IN DISCIPLINARY ACTION, REPRESENTATION WILL BE MADE AVAILABLE TO THE
 EMPLOYEE BEFORE GIVING
 
    THE STATEMENT.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT IS NOT DIRECTLY RELATED TO
 THE WORKING CONDITIONS OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION
 7103(A)(14) OF THE STATUTE, OR BECAUSE IT WOULD CONFLICT WITH
 MANAGEMENT'S RIGHTS TO DIRECT AND ASSIGN WORK TO EMPLOYEES UNDER SECTION
 7106(A)(2)(A) AND (B), OR MANAGEMENT'S RIGHT TO DETERMINE THE METHODS
 AND MEANS BY WHICH ITS WORK IS PERFORMED PURSUANT TO SECTION 7106(B)(1)
 OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN.  IT IS CONCERNED WITH THE CONDITIONS OF EMPLOYMENT OF UNIT
 EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE, AND
 IT DOES NOT CONFLICT WITH MANAGEMENT'S RIGHT TO DIRECT EMPLOYEES, ASSIGN
 WORK TO EMPLOYEES, OR DETERMINE THE METHODS OR MEANS BY WHICH ITS WORK
 IS PERFORMED UNDER, RESPECTIVELY, SECTION 7106(A)(2)(A) AND (B) AND
 SECTION 7106(B)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)),
 IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
 TO BY THE PARTIES) BARGAIN CONCERNING THIS PROPOSAL.  /22/
 
    REASONS:  THE AGENCY AGAIN ARGUES THAT THE PROPOSAL DOES NOT DEAL
 WITH "CONDITIONS OF EMPLOYMENT." AS PREVIOUSLY DISCUSSED IN CONNECTION
 WITH UNION PROPOSALS 5 AND 6, AND FOR THE REASONS STATED IN CONNECTION
 WITH THOSE PROPOSALS, THE INSTANT PROPOSAL IS CONCERNED WITH THE
 CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION
 7103(A)(14).  THE AGENCY'S ARGUMENTS TO THE CONTRARY CANNOT BE
 SUSTAINED.
 
    THE AGENCY'S ARGUMENTS CONCERNING ITS RIGHT TO DIRECT EMPLOYEES, /23/
 TO ASSIGN WORK TO EMPLOYEES, /24/ AND TO DETERMINE THE METHODS AND MEANS
 BY WHICH ITS WORK IS PERFORMED /25/ ARE INTERRELATED.  EACH IS BASED
 UPON THE AGENCY'S MISINTERPRETATION OF THE PROPOSAL'S INTENDED EFFECT.
 BASED ON ITS EXPRESS LANGUAGE AND THE UNION'S EXPLANATION OF ITS INTENT,
 WHICH IS CONSISTENT WITH THE PROPOSAL, THE PROPOSAL WOULD ONLY REQUIRE
 THAT EMPLOYEES WHO MUST GIVE WRITTEN STATEMENTS SHALL HAVE THE
 OPPORTUNITY FOR REPRESENTATION BEFORE THEY GIVE SUCH STATEMENTS.
 CONTRARY TO THE AGENCY'S ARGUMENTS, THIS REQUIREMENT DOES NOT AFFECT THE
 AGENCY'S DISCRETION TO CONDUCT INQUIRIES, TO DETERMINE WHAT QUESTIONS
 SHOULD BE ASKED OR ANSWERED, OR ABSOLVE THE EMPLOYEE FROM ANSWERING ANY
 QUESTION TO THE BEST OF HIS OR HER ABILITY.  NOR DOES IT IMPLY, AS
 ARGUED BY THE AGENCY, THAT TWO EMPLOYEES WILL COMPLETE THE STATEMENT,
 RATHER THAN ONLY ONE.
 
    FURTHER, AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL IS INTENDED TO
 BE APPLICABLE TO ROUTINE, DAY-TO-DAY REPORTS, THE UNION HAS EXPLAINED,
 IN ESSENCE, THAT THE PROPOSAL IS ONLY INTENDED TO BE APPLICABLE TO THOSE
 SITUATIONS IN WHICH THE AGENCY REQUIRES A WRITTEN STATEMENT IN
 CONNECTION WITH A FORMAL INVESTIGATION OF AN INCIDENT OR AN EMPLOYEE'S
 CONDUCT WHICH MAY INVOLVE A VIOLATION OF LAW, THE AGENCY'S REGULATIONS,
 OR OTHER AUTHORITIES WHICH MAY REQUIRE DISCIPLINARY ACTION.  THIS IS THE
 INTERPRETATION WHICH THE AUTHORITY ADOPTS FOR THE PURPOSE OF THIS
 DECISION AND, ACCORDINGLY, IT IS NOT NECESSARY TO CONSIDER THE
 NEGOTIABILITY OF THE PROPOSAL AS IF IT WERE TO APPLY TO THE ROUTINE
 REPORTS WHICH EMPLOYEES MAY BE REQUIRED TO COMPLETE, ON A DAILY BASIS,
 UNRELATED TO AN INVESTIGATION.
 
    AS TO THE AGENCY'S ARGUMENT THAT IMPLEMENTATION OF THE PROPOSAL MAY
 HAVE THE EFFECT OF DELAYING ITS ACTIONS, AS WITH THE PRIOR PROPOSALS,
 THE AGENCY HAS NOT SHOWN THAT THE DELAYS WOULD HAVE THE PRACTICAL EFFECT
 OF PREVENTING THE AGENCY FROM ACTING AT ALL TO EXERCISE OF ITS RIGHTS
 UNDER SECTION 7106.  /26/
 
                             UNION PROPOSAL 8
 
    WHILE EMPLOYEES MAY BE REQUIRED TO FURNISH INFORMATION RELATING TO
 MATTERS OF EMPLOYMENT
 
    (IN) CONFLICT-OF-INTEREST SITUATIONS, NO EMPLOYEE WILL BE REQUIRED TO
 GIVE A STATEMENT UNDER
 
    OATH EXCEPT AS MAY BE REQUIRED BY LAW.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE DISPUTED PROPOSAL IS OUTSIDE THE
 AGENCY'S DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT
 RELATE TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHIN THE
 MEANING OF SECTION 7103(A)(14) OF THE STATUTE;  OR BECAUSE IT WOULD
 CONFLICT WITH 5 U.S.C. 303(A), THE AGENCY'S RIGHT TO DETERMINE ITS
 INTERNAL SECURITY PRACTICES PURSUANT TO SECTION 7106(A)(1) OF THE
 STATUTE, OR THE AGENCY'S RIGHT TO DISCIPLINE ITS EMPLOYEES PURSUANT TO
 SECTION 7106(A)(2)(A) OF THE STATUTE.
 
    CONCLUSION AND ORDER:  THE PROPOSAL RELATES TO CONDITIONS OF
 EMPLOYMENT OF UNIT EMPLOYEES BUT IS OUTSIDE THE AGENCY'S DUTY TO BARGAIN
 IN THAT IT WOULD CONFLICT WITH THE AGENCY'S RIGHT TO DETERMINE ITS
 INTERNAL SECURITY PRACTICES PURSUANT TO SECTION 7106(A)(1) OF THE
 STATUTE.  /27/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW OF THIS DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  THE PROPOSAL CONCERNS REQUIRING EMPLOYEES TO FURNISH
 INFORMATION RELATING TO "CONFLICT-OF-INTEREST SITUATIONS" AND WOULD
 PREVENT THE AGENCY FROM REQUIRING STATEMENTS BY EMPLOYEES IN THIS
 CONNECTION TO BE MADE UNDER OATH EXCEPT WHERE A STATEMENT UNDER OATH IS
 REQUIRED BY LAW.  /28/ WITH RESPECT TO THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL DOES NOT CONCERN CONDITIONS OF EMPLOYMENT, FOR THE REASONS
 STATED IN CONNECTION WITH PROPOSALS 5 AND 6, THIS CONTENTION CANNOT BE
 SUSTAINED.
 
    THE AGENCY FURTHER CONTENDS THAT THE PROPOSAL'S RESTRICTION ON THE
 USE OF SWORN STATEMENTS WOULD INTERFERE WITH ITS RIGHT TO DETERMINE ITS
 INTERNAL SECURITY PRACTICES, PURSUANT TO SECTION 7106(A)(1) OF THE
 STATUTE.  /29/ THE AUTHORITY HAS DETERMINED THAT AN AGENCY'S RIGHT TO
 DETERMINE INTERNAL SECURITY PRACTICES UNDER THE STATUTE EXTENDS TO THE
 ESTABLISHMENT OF RULES TO PREVENT DISRUPTION OF ITS OPERATIONS,
 UNWARRANTED DISCLOSURE OF PRIVILEGED INFORMATION, AND DESTRUCTION OF ITS
 PROPERTY.  /30/ IN THE OPINION OF THE AUTHORITY, THE RIGHT TO DETERMINE
 INTERNAL SECURITY PRACTICES ALSO EXTENDS TO THE ESTABLISHMENT OF RULES
 APPLICABLE TO INTERNAL INVESTIGATIONS RELATING TO THE INTEGRITY OF AN
 AGENCY'S OPERATIONS VIS-A-VIS ACTUAL OR ALLEGED CONFLICTS OF INTEREST.
 IN THIS CONNECTION, THE AGENCY HAS STATED THAT IT HAS ESTABLISHED A
 RULE, IN CONDUCTING INVESTIGATIONS RELATING TO THE INTEGRITY OF AGENCY
 OPERATIONS, OF REQUIRING OATHS TO ENSURE OBTAINING TRUTHFUL AND RELIABLE
 INFORMATION IN SUCH CIRCUMSTANCES.  THUS, THE AGENCY'S DECISION TO
 REQUIRE OATHS TO ENSURE ITS OBTAINING TRUTHFUL AND RELIABLE INFORMATION
 IN CONDUCTING INVESTIGATIONS, WHICH ARE THE SUBJECT OF THIS DISPUTED
 PROPOSAL, IS AN INTERNAL SECURITY PRACTICE UNDER SECTION 7106(A)(1).
 ACCORDINGLY, SINCE THE PROPOSAL WOULD PREVENT THE AGENCY FROM
 ADMINISTERING OATHS IN SUCH INVESTIGATIONS EXCEPT WHERE IT MUST DO SO
 UNDER LAW, THE PROPOSAL IS NOT WITHIN THE AGENCY'S DUTY TO BARGAIN.  OF
 COURSE, PURSUANT TO THE PROVISIONS OF SECTION 7106(B)(2) OF THE STATUTE,
 THE PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN
 EXERCISING THEIR AUTHORITY TO DETERMINE INTERNAL SECURITY PRACTICES,
 INCLUDING THE PROCEDURES TO BE FOLLOWED IN CONNECTION WITH THE USE OF
 OATHS IN SPECIFIC SITUATIONS, WOULD BE WITHIN THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 9
 
    WHEN A RECORDING IS MADE OF AN INTERVIEW THE EMPLOYEE OR THE
 REPRESENTATIVE WILL BE ALLOWED
 
    TO ALSO RECORD THE ENTIRE PROCEEDINGS.  IF A TRANSCRIPT IS MADE THE
 UNION WILL RECEIVE A COPY.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE DISPUTED PROPOSAL IS NOT WITHIN THE
 AGENCY'S DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT
 RELATE TO CONDITIONS OF EMPLOYMENT;  OR BECAUSE IT WOULD CONFLICT WITH
 THE REQUIREMENTS OF FEDERAL LAW (THE PRIVACY ACT (5 U.S.C. 552A) AND THE
 FREEDOM OF INFORMATION ACT (5 U.S.C. 552)), THE FEDERAL PERSONNEL MANUAL
 (FPM), OR THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY
 PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE /31/ OR THE METHODS
 AND MEANS OF PERFORMING WORK UNDER SECTION 7106(B)(1) OF THE STATUTE.
 /32/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 BECAUSE IT CONFLICTS WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL
 SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE.  /33/
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THIS DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  THE AGENCY'S ARGUMENTS THAT THE PROPOSAL DOES NOT PERTAIN
 TO CONDITIONS OF EMPLOYMENT ARE SUBSTANTIALLY IDENTICAL TO THOSE
 PREVIOUSLY CONSIDERED AND REJECTED IN CONNECTION WITH PROPOSALS 5-8.
 FOR THE REASONS PREVIOUSLY STATED WITH RESPECT TO THOSE PROPOSALS, THE
 AGENCY'S CLAIM THAT THE PROPOSAL DOES NOT CONCERN CONDITIONS OF
 EMPLOYMENT CANNOT BE SUSTAINED.
 
    BASED UPON THE RECORD, THE INTERVIEWS WHICH ARE THE SUBJECT OF THE
 INSTANT PROPOSAL ARE PART OF THE AGENCY'S INTERNAL INVESTIGATIONS.  THE
 AGENCY STATES THAT TESTIMONY OBTAINED DURING SUCH INVESTIGATIONS FROM
 PROSPECTIVE WITNESSES AS WELL AS EMPLOYEES SUSPECTED OF VIOLATIONS OF
 LAW OR REGULATION FREQUENTLY CONTAIN SENSITIVE, CONFIDENTIAL AND
 PERSONAL INFORMATION WHICH MAY OR MAY NOT RESULT IN PROSECUTION OF A
 DISCIPLINARY OR CRIMINAL ACTION AGAINST AN EMPLOYEE.  UNDER THESE
 CIRCUMSTANCES, THE AGENCY CLAIMS THAT IN ORDER TO SAFEGUARD THE
 ANONYMITY OF WITNESSES AND THE CONFIDENTIALITY OF THEIR TESTIMONY, TO
 PREVENT PREMATURE DISCLOSURE OF INFORMATION WHICH MIGHT IMPEDE ITS
 INVESTIGATIVE GOALS, AND TO PROTECT THE PRIVACY RIGHTS OF EMPLOYEE
 SUSPECTS FROM DISCLOSURE OF UNSUPPORTED ALLEGATIONS, IT HAS A PRACTICE
 OF RESTRICTING ACCESS TO SUCH INFORMATION.
 
    AS DISCUSSED WITH RESPECT TO PROPOSAL 8, AN AGENCY'S RIGHT TO
 DETERMINE ITS INTERNAL SECURITY PRACTICES PURSUANT TO SECTION 7106(A)(1)
 OF THE STATUTE INCLUDES THE RIGHT TO ESTABLISH RULES TO SAFEGUARD THE
 AGENCY'S PROPERTY AND TO PREVENT UNAUTHORIZED DISCLOSURE OF
 INVESTIGATIVE FILES.  THIS PROPOSAL WOULD GIVE THE UNION THE RIGHT TO
 MAINTAIN RECORDINGS AND TRANSCRIBED COPIES OF ALL INTERVIEWS OF
 EMPLOYEES.  BY ITS TERMS, THE PROPOSAL WOULD APPLY WHETHER THE EMPLOYEE
 HAS REQUESTED AND HAS BEEN ACCOMPANIED BY A REPRESENTATIVE OR WHETHER
 THE EMPLOYEE HAS SUBMITTED TO THE QUESTIONING OR INTERROGATION,
 INCLUDING AT HIS OR HER OWN REQUEST, WITHOUT THE PRESENCE OF A
 REPRESENTATIVE.  IN SUM, THE UNION'S PROPOSAL WOULD GRANT UNION
 OFFICIALS ESSENTIALLY AN UNCONTROLLED RIGHT UNDER THE CONTRACT TO
 MAINTAIN RECORDINGS AND TRANSCRIPTIONS OF AGENCY INVESTIGATIVE
 INTERVIEWS CONTAINING PRIVILEGED AND CONFIDENTIAL INFORMATION.  SUCH A
 PROPOSAL WOULD DENY THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) OF
 THE STATUTE TO PREVENT UNAUTHORIZED DISCLOSURE OF INVESTIGATIVE
 MATERIAL, I.E., DETERMINE ITS INTERNAL SECURITY PRACTICES, AND THUS IS
 OUTSIDE THE DUTY TO BARGAIN.
 
    IT IS NOTED, HOWEVER, THAT THE AGENCY HAS STATED THAT IT HAS A
 PRACTICE OF PROVIDING A TRANSCRIPT TO THE QUESTIONED EMPLOYEE UPON
 REQUEST, WHICH PRACTICE IT APPARENTLY DOES NOT CONSIDER WILL IMPEDE THE
 SAFEGUARDING OF ITS INVESTIGATIVE FILES.  UNDER THESE CIRCUMSTANCES, THE
 AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES WOULD NOT BE
 VIOLATED BY A PROPOSAL WHICH PROVIDES THAT A TRANSCRIPT BE GIVEN TO A
 UNION IN CIRCUMSTANCES WHERE ITS REPRESENTATIVE WAS PRESENT AT THE
 REQUEST OF THE QUESTIONED EMPLOYEE AND WHERE THERE HAS BEEN COMPLIANCE
 WITH ALL APPLICABLE LAWS.  FURTHER, THE RECORD INDICATES THE AGENCY'S
 WILLINGNESS TO PROVIDE MATERIALS TO THE UNION IN CONNECTION WITH ITS
 REPRESENTATIONAL RESPONSIBILITIES UNDER THE STATUTE AND NOTHING HEREIN
 SHALL BE CONSTRUED AS PREVENTING THE UNION FROM OBTAINING NECESSARY
 INFORMATION SUBJECT TO REQUIREMENTS OF THE PRIVACY ACT.  /34/
 
                             UNION PROPOSAL 10
 
    WHEN AN EMPLOYEE IS REQUIRED TO GIVE INFORMATION RELATING TO ANOTHER
 EMPLOYEE, THE
 
    OPPORTUNITY TO HAVE A REPRESENTATIVE PRESENT WILL BE PROVIDED PRIOR
 TO QUESTIONING.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT RELATE TO THE
 CONDITIONS OF EMPLOYMENT OF ITS EMPLOYEES, OR WOULD CONFLICT WITH
 MANAGEMENT'S RIGHT TO DIRECT ITS EMPLOYEES PURSUANT TO SECTION
 7106(A)(2)(A) OF THE STATUTE.  /35/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS CONCERNED WITH THE CONDITIONS
 OF EMPLOYMENT OF THE AGENCY'S EMPLOYEES AND IT WOULD NOT CONFLICT WITH
 THE AGENCY'S RIGHT TO DIRECT ITS EMPLOYEES UNDER SECTION 7106(A)(2)(A)
 OF THE STATUTE.  THEREFORE, IT IS WITHIN THE AGENCY'S DUTY TO BARGAIN.
 /36/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY
 SHALL UPON REQUEST (OR OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THIS PROPOSAL.
 
    REASONS:  THIS PROPOSAL REQUIRES THAT AN EMPLOYEE GIVING TESTIMONY
 RELATING TO ANOTHER EMPLOYEE SHALL BE GIVEN AN OPPORTUNITY TO BE
 REPRESENTED IN A MANNER SUBSTANTIALLY IDENTICAL TO PROPOSAL 7, SUPRA.
 THE ONLY DIFFERENCES, THAT THE TESTIMONY COVERED BY THIS PROPOSAL MAY BE
 ORAL WHEREAS THE TESTIMONY COVERED BY PROPOSAL 7 IS WRITTEN AND THAT
 THIS PROPOSAL SPECIFICALLY APPLIES TO INFORMATION RELATING TO ANOTHER
 EMPLOYEE, ARE NOT DETERMINATIVE OF WHETHER THERE IS A DUTY TO BARGAIN.
 THE AGENCY'S ARGUMENTS WITH RESPECT TO THIS ARE THE SAME AS THOSE IT
 RAISED AS TO PROPOSAL 7 AND THE AGENCY SIMILARLY MISINTERPRETS THE
 INTENDED EFFECT OF THE PRESENT PROPOSAL.
 
    CONSEQUENTLY, AS THIS PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM
 PROPOSAL 7, WE FIND IT, LIKEWISE, TO BE WITHIN THE DUTY TO BARGAIN FOR
 THE REASONS FULLY STATED HEREIN IN CONNECTION WITH THAT PROPOSAL.
 
                             UNION PROPOSAL 11
 
    TERMINATION OF PROBATIONARY EMPLOYEES SHALL BE GRIEVABLE ON THE BASIS
 OF WHETHER THE
 
    SERVICE'S ACTIONS WERE REASONABLE AND NOT ARBITRARY AND CAPRICIOUS,
 NOTWITHSTANDING ANY OTHER
 
    PROVISION OF THIS AGREEMENT.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN,
 AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT WITH SECTION
 7121(C)(4) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL DOES NOT CONFLICT WITH SECTION
 7121(C)(4) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
 ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN CONCERNING THE PROPOSAL.  /37/
 
    REASONS:  THE AGENCY AND THE OFFICE OF PERSONNEL MANAGEMENT (OPM),
 WHICH HAS FILED AND AMICUS BRIEF AS TO THIS PROPOSAL, ESSENTIALLY ARGUE
 THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE, IN
 PROVIDING THAT GRIEVANCES CONCERNING THE TERMINATION OF PROBATIONARY
 EMPLOYEES ARE COVERED BY THE NEGOTIATED GRIEVANCE PROCEDURE, THE
 PROPOSAL WOULD CONFLICT WITH THE LANGUAGE OF SECTION 7121(C)(4) /38/ AS
 WELL AS THE INTENT OF CONGRESS IN ENACTING THE CIVIL SERVICE REFORM ACT
 OF 1978, PUB. L. NO. 95-454, 92 STAT. 1111 (CSRA).  /39/
 
    THIS ARGUMENT IS SUBSTANTIVELY IDENTICAL TO THE ARGUMENT REJECTED BY
 THE AUTHORITY IN NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES DEPARTMENT
 OF LABOR, 4 FLRA NO. 51 (1980).  /40/ SINCE NO PERSUASIVE REASONS HAVE
 BEEN PRESENTED WHICH WOULD WARRANT A CONTRARY RESULT ON THIS ISSUE IN
 THE INSTANT CASE, THE HOLDING OF NATIONAL COUNCIL, SUPRA, THAT SECTION
 7121(C)(4) DOES NOT MANDATE THE EXCLUSION OF GRIEVANCES OVER THE
 SEPARATION OF PROBATIONERS FROM NEGOTIATED GRIEVANCE PROCEDURES, IS
 HEREBY EXPRESSLY REAFFIRMED.  /41/
 
    THE APPLICABLE PROVISIONS OF SECTION 7121, WHICH SET FORTH THE SCOPE
 OF GRIEVANCE PROCEDURES, ARE AS FOLLOWS:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
    (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
 SUBSECTION, 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.
 
    (B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
 OF THIS SECTION
 
    SHALL--
 
    (1) BE FAIR AND SIMPLE,
 
    (2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
 
    (3) INCLUDE PROCEDURES THAT--
 
    (A) ASSURE AN EXCLUSIVE REPRESENTATIVE THE RIGHT, IN ITS OWN BEHALF
 OR ON BEHALF OF ANY
 
    EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO
 PRESENT AND PROCESS
 
    GRIEVANCES;
 
    (B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE IN THE
 EMPLOYEE'S OWN BEHALF,
 
    AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
 DURING THE GRIEVANCE
 
    PROCEEDING;  AND
 
    (C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
 INVOKED BY EITHER THE EXCLUSIVE
 
    REPRESENTATIVE OR THE AGENCY.
 
    (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.
 
    UNDER SECTION 7121(A)(1), PARTIES TO COLLECTIVE BARGAINING AGREEMENTS
 UNDER THE STATUTE MUST INCLUDE, AS PART OF THEIR AGREEMENT, PROCEDURES
 FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY.
 THIS IS QUALIFIED, IN PART, BY SUBSECTION 7121(A)(2), WHICH PROVIDES
 THAT "(A)NY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE GRIEVANCE PROCEDURES." IT WAS THE INTENT OF
 CONGRESS THAT THE REQUIRED GRIEVANCE PROCEDURES SHALL EXTEND TO ALL
 MATTERS WHICH MIGHT LAWFULLY BE COVERED UNLESS THE PARTIES AGREE THROUGH
 THE COLLECTIVE BARGAINING PROCESS TO NARROWER COVERAGE.  /42/ SECTION
 7121(B) PROVIDES THAT THE PROCEDURES MUST HAVE CERTAIN CHARACTERISTICS;
 E.G., THEY MUST BE "FAIR AND SIMPLE," THEY MUST PROVIDE FOR THE
 "EXPEDITIOUS PROCESSING" OF GRIEVANCES, AND "ANY GRIEVANCE NOT
 SATISFACTORILY SETTLED UNDER THE NEGOTIATED PROCEDURES SHALL BE SUBJECT
 TO BINDING ARBITRATION WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
 REPRESENTATIVE OR THE AGENCY."
 
    SECTION 7121(C) ENUMERATES CERTAIN MATTERS WHICH ARE EXCLUDED FROM
 THE COVERAGE OF THE PROCEDURES.  CLEARLY, THE INTENT OF THE EXCLUSIONS
 IS TO PROHIBIT, AS A MATTER OF LAW, MATTERS COVERED BY ONE OF THE
 EXCLUSIONS FROM BEING SUBMITTED FOR RESOLUTION UNDER THE NEGOTIATED
 PROCEDURES.  /43/
 
    THE AGENCY AND THE OPM CONTEND THAT THE INSTANT PROPOSAL PROVIDING
 FOR GRIEVANCES OVER THE TERMINATION OF PROBATIONARY EMPLOYEES FALLS
 WITHIN THE AMBIT OF SECTION 7121(C)(4) WHICH EXCLUDES "ANY EXAMINATION,
 CERTIFICATION, OR APPOINTMENT." THEY ASSERT THAT THE TERMS "EXAMINATION"
 AND "APPOINTMENT" WERE INTENDED BY CONGRESS TO REFER TO THE PROBATIONARY
 PERIOD, INCLUDING AN AGENCY'S ACTIONS IN EVALUATING A PROBATIONARY
 EMPLOYEE DURING THE PROBATIONARY PERIOD.  /44/ ACCORDINGLY, THEY CLAIM
 THAT SECTION 7121(C)(4) EXCLUDES GRIEVANCES CONCERNING THE TERMINATION
 OF A PROBATIONARY EMPLOYEE FROM THE COVERAGE OF THE NEGOTIATED GRIEVANCE
 PROCEDURES AND, THEREFORE, THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY
 TO BARGAIN.
 
    IN NATIONAL COUNCIL, SUPRA, THE AUTHORITY DETERMINED THAT NOTHING IN
 THE LANGUAGE OR LEGISLATIVE HISTORY OF SECTION 7121(C) SUPPORTS THIS
 INTERPRETATION.  THE AUTHORITY FOUND, RATHER, THAT THE REQUIREMENT OF
 SECTION 7121 OF THE STATUTE THAT ALL COLLECTIVE BARGAINING AGREEMENTS
 MUST PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES MUST BE READ IN
 CONJUNCTION WITH THE DEFINITIONS OF "GRIEVANCE" AND "EMPLOYEE" PROVIDED
 BY CONGRESS IN SUBSECTIONS 7103(A)(9) AND (A)(2), RESPECTIVELY, AS
 FOLLOWS:
 
    (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(.)
 
    (2) "EMPLOYEE" MEANS AN INDIVIDUAL--
 
    (A) EMPLOYED IN AN AGENCY;  OR
 
    (B) WHOSE EMPLOYMENT . . . HAS CEASED BECAUSE OF ANY UNFAIR LABOR
 PRACTICE . . .; BUT DOES
 
    NOT INCLUDE--
 
    (I) AN ALIEN OR NONCITIZEN OF THE UNITED STATES WHO OCCUPIES A
 POSITION OUTSIDE OF THE
 
    UNITED STATES;
 
    (II) A MEMBER OF THE UNIFORMED SERVICES;
 
    (III) A SUPERVISOR OR A MANAGEMENT OFFICIAL;
 
    (IV) AN OFFICER OR EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED
 STATES . . .; OR
 
    (V) ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF (5 U.S.C.
 7311(.)
 
    UNDER THESE PROVISIONS, "GRIEVANCE" IS BROADLY DEFINED AS REGARDS THE
 POTENTIAL SUBJECT MATTER OF A COMPLAINT (E.G., "ANY MATTER RELATING TO
 THE EMPLOYMENT OF THE EMPLOYEE" AND "ANY CLAIMED VIOLATION,
 MISINTERPRETATION, OR MISAPPLICATION OF ANY LAW, RULE, OR REGULATION
 AFFECTING CONDITIONS OF EMPLOYMENT") AS WELL AS IN CONNECTION WITH WHO
 MAY RAISE SUCH A COMPLAINT (E.G., "ANY EMPLOYEE, LABOR ORGANIZATION, OR
 AGENCY".  "EMPLOYEE" IS DEFINED TO INCLUDE ANY INDIVIDUAL "EMPLOYED IN
 AN AGENCY" UNLESS THE INDIVIDUAL IN QUESTION IS COVERED BY ONE OF THE
 ENUMERATED EXCEPTIONS IN SECTION 7103(A)(2)(I)-(V).  SINCE CONGRESS DID
 PROVIDE A VARIETY OF SPECIFIC EXCLUSIONS FROM THE DEFINITION OF
 "EMPLOYEE" IN THESE PROVISIONS, BUT DID NOT EXCLUDE INDIVIDUALS BASED ON
 PROBATIONARY STATUS, THE AUTHORITY HAS CONCLUDED IN THE CONTEXT OF THE
 DEFINITION OF "GRIEVANCE" IN SECTION 7103(A)(9), PROBATIONERS ARE
 "EMPLOYEES" UNDER THE STATUTE AND THEIR COMPLAINTS FALL WITHIN THE BROAD
 DEFINITION OF THE TERM "GRIEVANCE." /45/
 
    TURNING TO SECTION 7121, THE EXCLUSIONS THEREIN (SECTION 7121(C))
 RELATE TO TYPES OF COMPLAINTS OR SUBJECT MATTER ISSUES.  NONE, HOWEVER,
 EVIDENCES CONGRESSIONAL INTENT TO DISTINGUISH AMONG "EMPLOYEES" AS THE
 TERM IS DEFINED IN SECTION 7103(A)(9).  MOREOVER, SECTION 7121(C)(3)
 EXCLUDES FROM THE PERMISSIBLE SCOPE OF COVERAGE BY NEGOTIATED GRIEVANCE
 PROCEDURES "A SUSPENSION OR REMOVAL UNDER (5 U.S.C. 7532," WHICH
 AUTHORIZES AN AGENCY HEAD TO SUMMARILY SUSPEND OR REMOVE AN "EMPLOYEE"
 FOR NATIONAL SECURITY REASONS.  THUS, WITH REGARD TO THE TYPE OF
 GRIEVANCES INVOLVED UNDER THE DISPUTED PROPOSAL, I.E., REMOVALS OF
 EMPLOYEES, SECTION 7121 INCLUDES A SPECIFIC EXCLUSION ADDRESSED TO
 SUSPENSIONS OR REMOVALS IN A CERTAIN SITUATION.  IN THE ABSENCE OF A
 SPECIFIC EXCLUSION IN SECTION 7121(C) WITH RESPECT TO PROBATIONARY
 PERIODS OR PROBATIONARY EMPLOYEES, THE AUTHORITY CONCLUDES THAT SUCH AN
 EXCLUSION WAS NOT INTENDED.
 
    NEVERTHELESS, THE AGENCY AND THE OPM ARGUE THAT BY EXCLUDING
 GRIEVANCES OVER "ANY EXAMINATION . . . OR APPOINTMENT" FROM THE SCOPE OF
 NEGOTIATED PROCEDURES, SECTION 7121(C)(4) EXCLUDES GRIEVANCES OVER THE
 TERMINATION OF PROBATIONERS.  AS TO "EXAMINATION," THEY REFER TO CHAP.
 315, SUBCHAPTER. 8-1A, OF THE FEDERAL PERSONNEL MANUAL WHICH DESCRIBES
 THE PROBATIONARY PERIOD AS "A FINAL AND HIGHLY SIGNIFICANT STEP IN THE
 EXAMINING PROCESS." THEY ARGUE THAT SINCE THIS DESCRIPTION PREDATED
 CONGRESS' ENACTMENT OF THE STATUTE, THE TERM "EXAMINATION" IN THE
 STATUTE CARRIES A TRADITIONAL MEANING ENCOMPASSING THE PROBATIONARY
 PERIOD.
 
    IN NATIONAL COUNCIL, SUPRA, THE AUTHORITY CONCLUDED THAT NOTHING IN
 THE STATUTE OR THE LEGISLATIVE HISTORY SUPPORTS A FINDING THAT THE TERMS
 "EXAMINATION" AND "EXAMINING PROCESS" ARE SYNONYMOUS.  FURTHER, THE
 AUTHORITY NOTED THAT IT WAS NOT AWARE OF ANY OTHER PROVISION OF LAW IN
 WHICH CONGRESS USED THESE TERMS EQUIVALENTLY.  /46/ IN THIS REGARD, A
 REVIEW OF RELEVANT LAWS AND REGULATIONS INDICATES THAT THE TERM
 "EXAMINATION" GENERALLY REFERS TO AN EVENT BY WHICH AN APPLICANT'S
 QUALIFICATION FOR EMPLOYMENT IS DETERMINED BEFORE THE APPLICANT IS
 "CERTIFIED" TO AN AGENCY OR A SELECTING OFFICIAL AS A CANDIDATE FOR AN
 "APPOINTMENT." /47/
 
    AS REGARDS THE TERM "APPOINTMENT" IN SECTION 7121, THE AGENCY AND THE
 OPM ARGUE THAT THIS TERM ADVERTS TO THE CHARACTERIZATION OF THE
 PROBATIONARY PERIOD IN 5 U.S.C.  3321 AS SERVICE "BEFORE AN APPOINTMENT
 BECOMES FINAL." THEY CONCLUDE THAT CONGRESS INTENDED THE TERM
 "APPOINTMENT" IN SUBSECTION 7121(C)(4) TO PRECLUDE GRIEVANCES OVER
 SEPARATION OF PROBATIONERS FROM COVERAGE BY NEGOTIATED GRIEVANCE
 PROCEDURES.  AS EXPLAINED IN NATIONAL COUNCIL, SUPRA, AT 6, THIS
 INTERPRETATION DOES NOT COMPORT WITH THE MEANING GIVEN THE TERM
 "APPOINTMENT" IN CHAPTER 33, SUBCHAPTER I OF TITLE 5 AND IN TITLE 5 AS A
 WHOLE, AND PARTICULARLY THE MEANING IN 5 U.S.C.  3321, THAT AN
 "APPOINTMENT" INITIATES AN INDIVIDUAL'S EMPLOYMENT WITH AN AGENCY;
 I.E., IT IS A CONDITION PRECEDENT TO A PROBATIONARY PERIOD.  /48/
 ACCORDINGLY, THE CONTENTIONS OF THE AGENCY AND THE OPM IN THIS REGARD
 MUST ALSO BE REJECTED.
 
    THE AGENCY AND OPM, NOTING THAT CONGRESS EXPRESSLY DENIED STATUTORY
 APPELLATE RIGHTS TO PROBATIONERS, FURTHER ARGUE THAT SECTION 7121(C),
 THEREFORE, SHOULD BE READ TO SIMILARLY DENY PROBATIONERS THE RIGHT TO
 GRIEVE UNDER NEGOTIATED PROCEDURES.  AS WAS NOTED IN NATIONAL COUNCIL,
 CONGRESS HAS EXPLICITLY DENIED PROBATIONERS THE RIGHT TO APPEAL REMOVALS
 OR REDUCTIONS IN GRADE BASED ON UNACCEPTABLE PERFORMANCE AND ADVERSE
 ACTIONS TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB).  /49/ THE
 AUTHORITY, IN NATIONAL COUNCIL, PARTICULARLY TOOK NOTE OF THESE
 STATUTORY PROVISIONS TO CONCLUDE THAT WHERE CONGRESS SPECIFICALLY
 INTENDED TO IDENTIFY AND DENY PROBATIONERS CERTAIN RIGHTS ACCORDED TO
 OTHER EMPLOYEES IN THE CSRA, IT EXPRESSED ITS INTENT CLEARLY AND
 UNMISTAKABLY.  THE AUTHORITY FOUND NO SUCH INTENT WAS INDICATED IN
 SECTION 7121.  IT FOUND NO BASIS FOR INFERRING SUCH CONGRESSIONAL INTENT
 IN SECTION 7121(C)(4) IN LIGHT OF THE LANGUAGE USED BY CONGRESS IN THAT
 SECTION AS WELL AS THE BROAD DEFINITIONS GIVEN BY CONGRESS TO THE TERMS
 "EMPLOYEE" AND "GRIEVANCE" IN THE STATUTE.
 
    IN THIS REGARD, THE CLEAR INTENT TO DENY PROBATIONERS ACCESS TO
 STATUTORY APPEALS PROCEDURES CARRIES NO PERSUASIVE INFERENCE OF A
 SIMILAR INTENT WITH RESPECT TO NEGOTIATED GRIEVANCE AND ARBITRATION
 PROCEDURES UNDER THE STATUTE.  THE SCOPE OF STATUTORY APPEALS PROCEDURES
 IS NOT COEXTENSIVE WITH THE STATUTE'S BROAD SCOPE GRIEVANCE PROCEDURES.
 /50/
 
    FURTHER, THE AGENCY REFERS TO VARIOUS STATEMENTS IN THE LEGISLATIVE
 HISTORY, OF THE CSRA TO THE EFFECT THAT THE PURPOSE OF THE ACT WAS TO
 MAKE IT EASIER TO DISCHARGE INCOMPETENT EMPLOYEES.  IT CONCLUDES THAT
 THE UNION'S PROPOSAL IS INCONSISTENT WITH SUCH PURPOSE.  THE CSRA WAS,
 OF COURSE, ENACTED IN PART TO PROVIDE INCREASED MANAGEMENT AUTHORITY,
 AMONG OTHER THINGS, TO REMOVE EMPLOYEES.  /51/ AT THE SAME TIME,
 HOWEVER, CONGRESS PROVIDED ADDITIONAL PROCEDURAL PROTECTIONS IN THE
 STATUTE FOR EMPLOYEES TO BALANCE INCREASED MANAGEMENT PREROGATIVES,
 INCLUDING THE EXPANDED GRIEVANCE AND ARBITRATION PROVISIONS OF SECTION
 7121 AS WELL AS THE PROVISION IN SECTION 7106(B)(2) PERMITTING AGENCIES
 AND UNIONS TO NEGOTIATE FULLY ON PROCEDURES REGARDING THE EXERCISE OF
 MANAGEMENT RIGHTS.  /52/
 
    IN THIS REGARD, CONGRESSMAN UDALL STATED THAT UNDER HIS SUBSTITUTE
 BILL, WHICH WAS ULTIMATELY ENACTED IN LARGE PART INTO LAW AS THE
 STATUTE:  /53/
 
    (M)ANAGEMENT HAS THE RESERVED RIGHT TO MAKE THE FINAL DECISION TO
 "REMOVE" AN EMPLOYEE, BUT
 
    THAT DECISION MUST BE MADE IN ACCORDANCE WITH APPLICABLE LAWS AND
 PROCEDURES, AND THE
 
    PROVISIONS OF ANY APPLICABLE COLLECTIVE BARGAINING AGREEMENT.  THE
 RESERVED MANAGEMENT RIGHT
 
    TO "REMOVE" WOULD IN NO WAY AFFECT THE EMPLOYEE'S RIGHT TO APPEAL THE
 DECISION THROUGH
 
    STATUTORY PROCEDURES OR, IF APPLICABLE, THROUGH THE PROCEDURES SET
 FORTH IN A COLLECTIVE
 
    BARGAINING AGREEMENT.
 
    THUS, CONTRARY TO THE AGENCY'S ARGUMENT, OUR DECISION HEREIN IS
 CONSISTENT WITH THE BALANCED PURPOSES OF CONGRESS IN ENACTING THE CSRA,
 RELEVANTLY, TO "(A)LLOW CIVIL SERVANTS TO BE ABLE TO BE HIRED AND FIRED
 MORE EASILY, BUT FOR THE RIGHT REASONS." /54/
 
    FINALLY, IN CONNECTION WITH THEIR ARGUMENTS CONCERNING THE INTENDED
 APPLICATION OF SECTION 7121(C)(4), THE AGENCY AND OPM HAVE ARGUED THAT
 THE PROPOSAL CANNOT BE WITHIN THE DUTY TO BARGAIN BECAUSE IT WOULD IN
 EFFECT ABOLISH THE PROBATIONARY PERIOD ESTABLISHED UNDER LAW AND
 REGULATION BY PROVIDING PROBATIONERS WITH THE SAME PROCEDURAL PROTECTION
 AGAINST DISMISSAL THROUGH THE ARBITRAL PROCESS AS TENURED EMPLOYEES HAVE
 UNDER LAW.  APART FROM OTHER CONSIDERATIONS, THE AGENCY AND OPM HAVE
 MISINTERPRETED THE UNION'S PROPOSAL IN THIS REGARD.  ON ITS FACE, THE
 PROPOSAL PROVIDES THAT PROBATIONARY EMPLOYEES SHALL BE PROTECTED ONLY
 AGAINST AGENCY ACTION WHICH IS UNREASONABLE, ARBITRARY OR CAPRICIOUS.
 THE UNION EXPLAINS THAT UNDER THIS PROPOSAL, "THE BURDEN OF PROOF WOULD
 BE ON THE GRIEVANT TO SHOW THAT THE AGENCY'S ACTION WAS 'UNREASONABLE,
 ARBITRARY OR CAPRICIOUS," AS OPPOSED TO THE CASE WHERE THE
 NON-PROBATIONER GRIEVES A SEPARATION WHERE, OF COURSE, THE AGENCY MUST
 BEAR THE BURDEN OF PROOF . . . ." THE UNION FURTHER STATES THAT THE
 STANDARD STATED IN THE PROPOSAL IS NOT INTENDED TO EQUATE TO THE "MUCH
 STRONGER" STANDARDS FOR NON-PROBATIONERS OF "SUBSTANTIAL EVIDENCE" OR
 "PREPONDERANCE OF EVIDENCE."
 
    THE UNION'S STATEMENT REFLECTS THE PROVISIONS OF 5 U.S.C. 7701
 CONCERNING STANDARDS OF PROOF FOR MSPB REVIEW OF AGENCY ACTIONS AND THE
 STATEMENT OF THE CONFERENCE COMMITTEE CONCERNING BURDENS OF PROOF
 UNDER
 STATUTORY APPEALS PROCEDURES.  /55/ UNDER SECTION 7121(E)(2) OF THE
 STATUTE, THE SAME STANDARDS AND BURDENS OF PROOF APPLY TO MATTERS
 BROUGHT TO ARBITRATION WHICH COULD HAVE BEEN RAISED UNDER 5 U.S.C. 7701
 BEFORE THE MSPB.  THEREFORE, CONTRARY TO THE AGENCY'S AND OPM'S
 ARGUMENTS, THE UNION'S PROPOSAL WOULD NOT PROVIDE PROBATIONARY EMPLOYEES
 WITH THE SAME PROCEDURAL PROTECTIONS AGAINST DISMISSAL AS ARE PROVIDED
 NON-PROBATIONERS UNDER THE CSRA.  THUS, UNDER THE FACTS OF THIS CASE,
 THE CONTENTION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE
 IT WOULD ABOLISH THE PROBATIONARY PERIOD CANNOT BE SUSTAINED.
 
    IN CONCLUSION, FOR THE REASONS SET FORTH ABOVE AND CONSISTENT WITH
 OUR DECISION IN NATIONAL COUNCIL THAT SECTION 7121(C)(4) OF THE STATUTE
 DOES NOT MANDATE THE EXCLUSION OF GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS FROM THE BROAD SCOPE GRIEVANCE PROCEDURE, PROPOSAL 11 IS
 WITHIN THE DUTY TO BARGAIN.  WE NOTE IN THIS REGARD, HOWEVER, THAT AS IS
 TRUE WITH OTHER PROPOSALS FOUND NEGOTIABLE, THE PARTIES' OBLIGATION TO
 NEGOTIATE IN GOOD FAITH DOES NOT COMPEL EITHER PARTY TO AGREE TO THE
 PROPOSAL.  5 U.S.C. 7103(A)(12). IF THEY SHOULD NEGOTIATE IN GOOD FAITH
 AND REACH IMPASSE ON THE MATTER, EITHER PARTY MAY REQUEST THE ASSISTANCE
 OF THE FEDERAL SERVICE IMPASSES PANEL, AS PROVIDED UNDER SECTION 7119 OF
 THE STATUTE.  IF THIS OCCURS, THE PANEL, WHICH IS COMPOSED OF MEMBERS
 "WHO ARE FAMILIAR WITH GOVERNMENT OPERATIONS AND (WHO ARE) KNOWLEDGEABLE
 IN LABOR-MANAGEMENT RELATIONS," /56/ MAY ULTIMATELY "TAKE WHATEVER
 ACTION IS NECESSARY AND NOT INCONSISTENT WITH (THE STATUTE) TO RESOLVE
 THE IMPASSE." /57/ IN THIS REGARD, THE PARTIES IN THE INSTANT CASE HAVE
 SUCCESSFULLY USED THE ASSISTANCE OF THE PANEL IN A PREVIOUS IMPASSE
 SITUATION.  SEE DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND
 NATURALIZATION SERVICE, WASHINGTON, D.C.  AND NATIONAL INS COUNCIL,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 79 FSIP 27 (JULY
 19, 1979), FSIP RELEASE NO. 125.
 
                             UNION PROPOSAL 12
 
    THE UNION'S REQUEST WITHOUT OBJECTION BY THE AGENCY, TO BE ALLOWED TO
 WITHDRAW PROPOSAL 12 FROM ITS APPEAL, IS GRANTED.
 
                             UNION PROPOSAL 13
 
    EXCEPT FOR TRAINING COURSES, TRAVEL AWAY FROM THE NORMAL DUTY STATION
 WILL NOT EXCEED 35
 
    CALENDAR DAYS UNLESS THE EMPLOYEE VOLUNTEERS FOR A LONGER PERIOD.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE AGENCY'S DUTY
 TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT WITH
 MANAGEMENT'S RIGHTS TO ASSIGN OR DIRECT EMPLOYEES PURSUANT TO SECTION
 7106(A)(2)(A);  TO ASSIGN WORK TO EMPLOYEES PURSUANT TO SECTION
 7106(A)(2)(B);  OR TO DETERMINE THE NUMBERS, TYPES AND GRADES OF
 EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR
 TOUR OF DUTY PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL CONFLICTS WITH THE AGENCY'S RIGHT
 TO ASSIGN WORK TO ITS EMPLOYEES UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE.  /58/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW OF THIS DISPUTED PROPOSAL BE, AND IT HEREBY
 IS, DISMISSED.  /59/
 
    REASONS:  IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
 TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119 (1980) AT 7, APPEAL
 DOCKETED, NO. 80-1895 (D.C. CIR. AUG. 4, 1980), THE EXTENT OF AN
 AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106 OF THE STATUTE WAS
 EXPLAINED, IN PART, AS FOLLOWS:
 
    THE RIGHT TO ASSIGN WORK TO EMPLOYEES OR POSITIONS UNDER SECTION
 7106(A), SUBJECT TO THE
 
    PROVISIONS OF SECTION 7106(B), IS COMPOSED OF TWO DISCRETIONARY
 ELEMENTS:  (1) THE PARTICULAR
 
    DUTIES AND WORK TO BE ASSIGNED, AND (2) THE PARTICULAR EMPLOYEES TO
 WHOM OR POSITIONS TO WHICH
 
    IT WILL BE ASSIGNED.  FURTHERMORE, MANAGEMENT DISCRETION IN THIS
 REGARD INCLUDES THE RIGHT TO
 
    ASSIGN GENERAL CONTINUING DUTIES, TO MAKE SPECIFIC PERIODIC WORK
 ASSIGNMENTS TO EMPLOYEES, TO
 
    DETERMINE WHEN SUCH ASSIGNMENTS WILL OCCUR AND TO DETERMINE WHEN THE
 WORK WHICH HAS BEEN
 
    ASSIGNED WILL BE PERFORMED.  (CITATIONS OMITTED.)
 
    THUS, THE RIGHT TO ASSIGN WORK INCLUDES DISCRETION TO DETERMINE THE
 PARTICULAR EMPLOYEE TO WHOM THE WORK WILL BE ASSIGNED AND TO DETERMINE
 WHEN THE WORK WHICH HAS BEEN ASSIGNED WILL BE PERFORMED.  THE INSTANT
 PROPOSAL WOULD PREVENT THE AGENCY FROM EXERCISING ITS RIGHTS TO ASSIGN
 WORK AS JUST DESCRIBED.  BY ITS TERMS, THE PROPOSAL WOULD REQUIRE THE
 AGENCY TO DISCONTINUE OR REASSIGN THE WORK INVOLVED AFTER 35 DAYS,
 REGARDLESS OF WHETHER IT HAD BEEN COMPLETED, UNLESS THE EMPLOYEE TO WHOM
 IT HAD BEEN ASSIGNED VOLUNTEERED TO CONTINUE WORKING AWAY FROM THE
 NORMAL DUTY STATION FOR A LONGER PERIOD OF TIME.  ACCORDINGLY, THE
 PROPOSAL WOULD PREVENT THE AGENCY FROM EXERCISING ITS DISCRETION TO
 ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, AND IS NOT
 WITHIN THE AGENCY'S DUTY TO BARGAIN.  /60/
 
                             UNION PROPOSAL 14
 
    THE PARTIES AGREE THAT, EXCEPT WHERE THE SERVICE WOULD BE
 SIGNIFICANTLY IMPEDED IN CARRYING
 
    OUT ITS OVERALL LAW ENFORCEMENT MISSION, DUTIES NOT SPECIFIED IN AN
 EMPLOYEE'S POSITION
 
    DESCRIPTION, OR REASONABLY RELATED THERETO, WILL BE AVOIDED UNLESS
 TEMPORARILY REQUIRED BY THE
 
    NEEDS OF THE SERVICE.  (EMPHASIS IN ORIGINAL.)
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE OF THE AGENCY'S
 DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT
 WITH THE AGENCY'S RIGHT TO DETERMINE ITS ORGANIZATION UNDER SECTION
 7106(A)(1) OF THE STATUTE;  /61/ OR TO DETERMINE THE NUMBERS, TYPES, AND
 GRADES OF EMPLOYEES OR POSITIONS TO BE ASSIGNED TO ANY ORGANIZATIONAL
 SUBDIVISION, WORK PROJECT, OR TOUR OF DUTY UNDER SECTION 7106(B)(1) OF
 THE STATUTE.  /62/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL DOES NOT CONFLICT WITH SECTION
 7106(A)(1) OR SECTION 7106(B)(1) OF THE STATUTE, AND IS WITHIN THE DUTY
 TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE
 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING THIS PROPOSAL.  /63/
 
    REASONS:  THE AGENCY INTERPRETS THE PROPOSAL AS PREVENTING THE AGENCY
 FROM VARYING THE CONTENT OF PARTICULAR JOBS OR VARYING THE DUTIES IT MAY
 ASSIGN TO INDIVIDUAL EMPLOYEES.  UNDER THE EXPRESS LANGUAGE OF THE
 PROPOSAL AND THE UNION'S EXPLANATION OF ITS INTENT, THE AUTHORITY
 CONCLUDES THAT THE AGENCY HAS MISINTERPRETED THE PROPOSAL.  THIS
 PROPOSAL WOULD REQUIRE THE AGENCY TO AVOID ASSIGNING DUTIES TO AN
 EMPLOYEE WHICH ARE NOT SPECIFIED IN OR REASONABLY RELATED TO THE
 EMPLOYEE'S POSITION DESCRIPTION "UNLESS TEMPORARILY REQUIRED BY THE
 NEEDS OF THE SERVICE." THE LANGUAGE AND INTENT OF THE PROPOSAL ARE
 CONCERNED WITH INSURING THAT POSITION DESCRIPTIONS ARE ACCURATE.  ITS
 EFFECT WOULD BE TO PREVENT THE AGENCY FROM REGULARLY OR PERMANENTLY
 REQUIRING AN EMPLOYEE TO PERFORM DUTIES NOT SPELLED OUT IN THE POSITION
 DESCRIPTION OR REASONABLY RELATED TO DUTIES IN THE DESCRIPTION.  IN THIS
 REGARD, THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM PROPOSAL II IN
 DIX-MCGUIRE EXCHANGE, /64/ WHICH WAS HELD TO BE WITHIN THE DUTY TO
 BARGAIN.  AS THE AUTHORITY STATED IN THAT DECISION:  /65/
 
    NOTHING IN THE LANGUAGE OF THE PROPOSAL OR THE RECORD INDICATES THAT
 IT IS INTENDED TO
 
    SHIELD THE EMPLOYEE FROM BEING ASSIGNED ADDITIONAL "UNRELATED"
 DUTIES, I.E., DUTIES WHICH ARE
 
    NOT WITHIN THOSE DESCRIBED IN HIS OR HER EXISTING POSITION
 DESCRIPTION AND WHICH ARE NOT
 
    RELATED TO THOSE WHICH ARE SO DESCRIBED.  RATHER, AS A CONSEQUENCE OF
 THIS PROPOSAL, IF THE
 
    AGENCY DECIDED TO ADD UNRELATED DUTIES, TO BE PERFORMED REGULARLY, TO
 A POSITION, IT WOULD
 
    NEED TO CHANGE THE POSITION DESCRIPTION IN ORDER TO DO SO.  THE
 PROPOSAL WOULD IN NO WAY
 
    PRECLUDE THE AGENCY FROM INCLUDING ADDITIONAL, THOUGH UNRELATED,
 DUTIES IN THE POSITION
 
    DESCRIPTION.  THUS, IN THE CIRCUMSTANCES OF THIS CASE, THE RIGHT OF
 THE AGENCY TO ASSIGN WORK
 
    REMAINS UNAFFECTED, WHILE THE EMPLOYEE IS ASSURED THAT HIS OR HER
 POSITION DESCRIPTION
 
    ACCURATELY REFLECTS THE WORK ASSIGNED TO THE POSITION.
 
    ACCORDINGLY, THE INSTANT PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN.
 
                             UNION PROPOSAL 15
 
    IMMIGRATION INSPECTORS, INVESTIGATORS AND DEPORTATION OFFICER
 TRAINEES SHALL WORK UNDER THE
 
    SUPERVISION AND GUIDANCE OF A JOURNEYMAN OR SUPERVISORY OFFICER.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS PRESENTED ARE:  WHETHER THE APPEAL AS TO THIS PROPOSAL
 SHOULD BE DISMISSED AS UNTIMELY FILED;  AND, IF NOT, WHETHER THE
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD CONFLICT WITH
 THE AGENCY'S RIGHTS TO DETERMINE ITS ORGANIZATION UNDER SECTION
 7106(A)(1) OF THE STATUTE, TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE, OR TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 OR POSITIONS TO BE ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY UNDER
 SECTION 7106(B)(1) OF THE STATUTE, /66/ ALL AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE APPEAL AS TO THIS PROPOSAL WAS TIMELY AND
 IS PROPERLY BEFORE THE AUTHORITY FOR DECISION.  THE PROPOSAL, HOWEVER,
 WOULD CONFLICT WITH THE AGENCY'S RIGHT TO DETERMINE THE NUMBERS AND
 TYPES OF EMPLOYEES TO BE ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY
 UNDER SECTION 7106(B)(1) OF THE STATUTE, AND THEREFORE IS NEGOTIABLE
 ONLY AT THE ELECTION OF THE AGENCY.  THE AGENCY HAS ELECTED NOT TO
 NEGOTIATE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE
 PETITION FOR REVIEW CONCERNING THIS PROPOSAL BE, AND IT HEREBY IS,
 DISMISSED.
 
    REASONS:  AS TO WHETHER THE PROPOSAL IS PROPERLY BEFORE THE AUTHORITY
 FOR DECISION, BASED ON THE RECORD, THE BACKGROUND FOR THIS QUESTION IS
 AS FOLLOWS:  DURING THE NEGOTIATIONS WHICH GAVE RISE TO THIS APPEAL, THE
 LOCAL PARTIES FORWARDED CERTAIN MATTERS, INCLUDING THIS PROPOSAL AND
 PROPOSAL 16, INFRA, CONCERNING WHICH THEY HAD NOT YET EXECUTED AN
 AGREEMENT, TO THE AGENCY HEAD FOR REVIEW "IN ORDER TO EXPEDITE . . .
 IMPLEMENTATION FOLLOWING EXECUTION." /67/ UPON REVIEW, PURPORTEDLY
 PURSUANT TO SECTION 7114(C) OF THE STATUTE, THE AGENCY INFORMED THE
 LOCAL PARTIES IN WRITING THAT SOME OF THE MATTERS SO FORWARDED,
 INCLUDING PROPOSALS 15 AND 16, WERE NOT WITHIN THE DUTY TO BARGAIN.
 
    AT A LATER DATE, THE UNION REQUESTED AGENCY ALLEGATIONS AS TO THE
 DUTY TO BARGAIN ON PROPOSALS 15 AND 16 (AS WELL AS ON CERTAIN OTHER
 MATTERS WHICH HAD NOT BEEN SUBJECT TO THE EARLIER REVIEW BY THE AGENCY).
  THE AGENCY RESPONDED INTER ALIA, THAT, AS PROPOSALS 15 AND 16 WERE NOT
 WITHIN THE DUTY TO BARGAIN AND HAD BEEN THE SUBJECT OF AN AGENCY
 "NEGOTIABILITY DETERMINATION IN ACCORDANCE WITH 5 U.S.C. 7114" MORE THAN
 A MONTH EARLIER, "ANY APPEAL OF THAT DETERMINATION TO THE FLRA IS NOW
 UNTIMELY." THE UNION FILED ITS APPEAL WHICH WAS TIMELY IF MEASURED FROM
 THE DATE OF THIS AGENCY ALLEGATION.  THE AGENCY CONTENTION THAT THE
 EARLIER REVIEW SET THE TIME LIMITS RUNNING CANNOT BE SUSTAINED.  THE
 EARLIER REVIEW WAS NOT CONDUCTED IN ACCORDANCE WITH SECTION 7114(C) OF
 THE STATUTE AND DID NOT START THE TIME LIMIT RUNNING FOR THE UNION TO
 FILE ITS APPEAL.
 
    SECTION 7114(C) PROVIDES, AS RELEVANT, THAT COLLECTIVE BARGAINING
 AGREEMENTS ARE SUBJECT TO APPROVAL BY THE HEAD OF THE AGENCY WHO "SHALL
 APPROVE THE AGREEMENT WITHIN 30 DAYS FROM THE DATE THE AGREEMENT IS
 EXECUTED." THUS, SECTION 7114(C) CONTEMPLATES THAT APPROVAL OR
 DISAPPROVAL AS IN THE INSTANT CASE, WILL OCCUR ONLY AFTER THE AGREEMENT
 IN QUESTION HAS BEEN "EXECUTED." HOWEVER, AS PREVIOUSLY QUOTED HEREIN,
 THE AGENCY CONCEDES THAT ITS REVIEW AND DISAPPROVAL OCCURRED BEFORE
 THERE WAS AN EXECUTED AGREEMENT.  ACCORDINGLY, THE AGENCY'S CLAIM THAT
 THE APPEAL IS NOT PROPERLY BEFORE THE AUTHORITY AS REGARDS PROPOSALS 15
 AND 16 BECAUSE THE UNION FAILED TO TIMELY APPEAL THE AGENCY'S SECTION
 7114(C) DISAPPROVAL OF THOSE PROPOSALS IS WITHOUT BASIS AND THE APPEAL
 AS TO THOSE MATTERS IS PROPERLY BEFORE THE AUTHORITY FOR DECISION.
 
    AS TO WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN, THE
 PROPOSAL AS EXPLAINED BY THE PARTIES WOULD REQUIRE AGENCY MANAGEMENT TO
 ASSIGN A JOURNEYMAN OR A SUPERVISORY OFFICER TO WORK PROJECTS OR TOURS
 OF DUTY WITH TRAINEE OFFICERS IN CIRCUMSTANCES WHERE THE AGENCY WOULD
 ORDINARILY ASSIGN TRAINEE OFFICERS ALONE.  THUS, THE PROPOSAL WOULD
 DIRECTLY AFFECT AND BE DETERMINATIVE OF BOTH THE NUMBERS AND THE TYPES
 OF EMPLOYEES THAT AGENCY MANAGEMENT WOULD ASSIGN TO WORK PROJECTS OR
 TOURS OF DUTY UNDER THE CIRCUMSTANCES COVERED.
 
    UNDER SECTION 7106(B)(1) OF THE STATUTE, SUCH MATTERS ARE NEGOTIABLE
 ONLY AT THE ELECTION OF THE AGENCY.  /68/ THE UNION CONTENDS THAT THE
 AGENCY, THROUGH ITS LOCAL MANAGEMENT OFFICIALS WHO TENTATIVELY AGREED TO
 THE PROPOSAL, HAS ELECTED TO NEGOTIATE UNDER SECTION 7106(B)(1).  FOR
 THE FOLLOWING REASONS, THIS CONTENTION CANNOT BE SUSTAINED.
 
    WITH RESPECT TO SECTION 7106(B)(1) OF THE STATUTE, REPRESENTATIVE
 FORD STATED DURING THE HOUSE DEBATES AS FOLLOWS:  /69/
 
    I MIGHT SAY THAT NOT ONLY ARE (THE AGENCIES) UNDER NO OBLIGATION TO
 BARGAIN (CONCERNING THE
 
    MATTERS ENUMERATED IN SECTION 7106(B)(1)), BUT IN FACT THEY CAN START
 BARGAINING AND CHANGE
 
    THEIR MINDS AND DECIDE THEY DO NOT WANT TO TALK ABOUT IT ANY MORE,
 AND PULL IT OFF THE
 
    TABLE.  IT IS COMPLETELY WITHIN THE CONTROL OF THE AGENCY TO BEGIN
 DISCUSSING THE MATTER OR
 
    TERMINATE THE DISCUSSION AT ANY POINT THEY WISH WITHOUT A CONCLUSION
 . . . .
 
    IT IS COMPLETELY, IF YOU WILL, AT THE PLEASURE AND THE WILL OF THE
 AGENCY.  WHERE AN AGENCY
 
    WANTS TO RESOLVE A PARTICULAR PROBLEM WITH AN ORGANIZATION AND COME
 TO SOME AGREEMENT, IT CAN
 
    CHOOSE TO DO SO.
 
    SIMILARLY, THE CONFERENCE COMMITTEE, DISCUSSING OTHER MATTERS
 ENUMERATED IN SECTION 7106(B)(1), EXPLAINED:  /70/
 
    (A)N AGENCY CAN, IN PROVIDING GUIDANCE AND ADVICE TO BARGAINING
 REPRESENTATIVES, INSTRUCT
 
    THEM TO APPROACH ANY NEGOTIATIONS INVOLVING METHODS AND MEANS WITH
 CAREFUL ATTENTION TO THE
 
    IMPACT ANY RESULTING AGREEMENTS MAY HAVE AND UNDER NO CIRCUMSTANCES
 AGREE TO LANGUAGE
 
    IMPACTING ADVERSELY ON THE EFFICIENCY AND EFFECTIVENESS OF AGENCY
 OPERATIONS.  SUCH GUIDANCE,
 
    AND ANY REQUIREMENT PLACED ON NEGOTIATORS TO CONSULT WITH HIGHER
 AUTHORITY BEFORE AGREEING TO
 
    ANY LANGUAGE CONCERNING METHODS AND MEANS WOULD NOT CONFLICT WITH THE
 CONFERENCE REPORT NOR
 
    CONSTITUTE EVIDENCE OF AN UNFAIR LABOR PRACTICE.
 
    THUS, THE RELEVANT LEGISLATIVE HISTORY DEMONSTRATES THE CONGRESSIONAL
 INTENT THAT AGENCIES WERE TO BE PROVIDED WITH ABSOLUTE DISCRETION IN
 CONSULTING WITH THEIR CONSTITUENT ELEMENTS ON NEGOTIATIONS CONCERNING
 MATTERS COVERED BY SECTION 7106(B)(1) OF THE STATUTE, PRIOR TO FINAL
 AGREEMENT ON SUCH MATTERS.  IN THE PRESENT CASE, IT IS PLAIN THAT THE
 LOCAL PARTIES HAD NOT EXECUTED AN AGREEMENT ON THE MATTERS IN QUESTION.
 THEREFORE, NOTWITHSTANDING THEIR NEGOTIATIONS AND TENTATIVE AGREEMENT,
 THE AGENCY WAS ACTING WITHIN ITS RIGHT UNDER THE STATUTE TO ELECT NOT TO
 BARGAIN FURTHER ON THE PROPOSAL.
 
                             UNION PROPOSAL 16
 
    IF A DETAIL OF MORE THAN 60 DAYS IS MADE TO A HIGHER GRADED POSITION
 OR TO A POSITION WITH
 
    KNOWN PROMOTION POTENTIAL, IT MUST BE MADE UNDER COMPETITIVE
 PROMOTION PROCEDURES.  (EMPHASIS
 
    IN ORIGINAL.)
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS PRESENTED ARE:  WHETHER THE APPEAL AS TO THIS PROPOSAL
 SHOULD BE DISMISSED AS UNTIMELY FILED;  AND, IF NOT, WHETHER THE
 PROPOSAL IS OUTSIDE OF THE DUTY TO BARGAIN BECAUSE IT WOULD CONFLICT
 WITH THE AGENCY'S RIGHT TO ASSIGN EMPLOYEES PURSUANT TO SECTION
 7106(A)(2)(A) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE APPEAL AS TO THIS PROPOSAL WAS TIMELY AND
 IS PROPERLY BEFORE THE AUTHORITY FOR DECISION.  FURTHER, THE PROPOSAL
 DOES NOT CONFLICT WITH SECTION 7106(A)(2)(A) OF THE STATUTE AND IS
 WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
 ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN CONCERNING THIS PROPOSAL.  /71/
 
    REASONS:  FOR THE REASONS FULLY STATED WITH RESPECT TO PROPOSAL 15,
 PROPOSAL 16 IS ALSO PROPERLY BEFORE THE AUTHORITY FOR DECISION.
 
    IN SUPPORT OF ITS CONTENTION THAT THE PROPOSAL WOULD CONFLICT WITH
 ITS RIGHT TO ASSIGN EMPLOYEES PURSUANT TO SECTION 7106(A)(2)(A), THE
 AGENCY RELIES ON CERTAIN PROVISIONS OF THE FEDERAL PERSONNEL MANUAL
 (FPM) WHICH REQUIRE THE USE OF COMPETITIVE PROCEDURES FOR DETAILS OF
 THIS TYPE WHICH WOULD LAST FOR 120 DAYS OR MORE.  THE AGENCY ARGUES THAT
 SINCE THE FPM ONLY REQUIRES THE USE OF COMPETITIVE PROCEDURES FOR
 DETAILS OF 120 DAYS OR MORE, THE AGENCY MAY NOT BE OBLIGATED THROUGH
 NEGOTIATIONS TO USE SUCH PROCEDURES FOR DETAILS OF SHORTER PERIODS.
 /72/ THE FPM REQUIREMENT TO USE COMPETITIVE PROMOTION PROCEDURES FOR
 DETAILS OF 120 DAYS OR MORE DOES NOT PROHIBIT AGENCIES FROM USING SUCH
 PROCEDURES FOR DETAILS FOR SHORTER PERIODS.  ACCORDINGLY, CONTRARY TO
 THE AGENCY'S ARGUMENT, THE PROPOSAL WOULD NOT CONFLICT WITH THE CITED
 FPM REQUIREMENT.
 
    AS TO THE RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
 THE STATUTE, /73/ THIS RIGHT ENCOMPASSES THE RIGHT TO DETAIL EMPLOYEES
 TO POSITIONS AND THE DISCRETION TO SELECT A PARTICULAR EMPLOYEE FOR A
 DETAIL.  /74/ HOWEVER, THE DISPUTED PROPOSAL DOES NOT DENY MANAGEMENT
 THIS RIGHT.  INSTEAD, THE PROPOSAL MERELY PROVIDES THAT, WHERE DETAILS
 ARE MADE FOR A PERIOD LONGER THAN 60 DAYS, COMPETITIVE PROCEDURES SHALL
 BE APPLIED.  THUS, IT WOULD NOT APPLY TO AND WOULD HAVE NO IMPACT ON
 MANAGEMENT'S ABILITY TO DETAIL EMPLOYEES FOR PERIODS OF UP TO 60 DAYS.
 
    MOREOVER, AS TO DETAILS FOR PERIODS OF OVER 60 DAYS, THE REQUIREMENT
 THAT MANAGEMENT USE COMPETITIVE PROCEDURES DOES NOT VIOLATE ITS RIGHT TO
 ASSIGN EMPLOYEES UNDER THE STATUTE BECAUSE IT PRESERVES MANAGEMENT'S
 CHARACTERISTICS.  /75/ SINCE THE DISPUTED PROPOSAL THERFORE CONCERNS
 ONLY THE MAXIMUM PERIOD FOR WHICH THE AGENCY WILL EFFECT DETAILS
 NONCOMPETITIVELY, AND SINCE THE PROPOSAL PLAINLY DOES NOT DIRECTLY
 INTERFERE WITH THE AGENCY'S RIGHT TO ASSIGN EMPLOYEES TO DETAILS, THE
 PROPOSAL IS WITHIN THE AGENCY'S DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., APRIL 6, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    LEON B. APPLEWHAITE, MEMBER, CONCURRING:
 
    ALTHOUGH I AGREE WITH THE RESULTS ATTAINED IN THIS CASE, I FEEL IT
 NECESSARY TO ARTICULATE A SPECIFIC CONCERN.  INSOFAR AS UNION PROPOSAL
 11 RELATES TO THE PROCEDURAL ASPECTS OF THE TERMINATION OF PROBATIONARY
 EMPLOYEES, AND THE DISPOSITION OF THE PROPOSAL IS TOTALLY WITHIN THE
 CONFINES OF THE AUTHORITY'S DECISION IN NATIONAL COUNCIL, 4 FLRA NO. 51
 (1980), I CONCUR WITH MY FELLOW MEMBERS.  I AM, HOWEVER, UNABLE TO AGREE
 WITH ANY EXPANSION OF THIS REASONING TO INCLUDE THE SUBSTANTIVE
 CONSIDERATIONS OF MANAGEMENT'S ACTIONS.
 
    ISSUED, WASHINGTON, D.C., APRIL 6, 1982
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN VIEW OF THIS CONCLUSION, IT IS UNNECESSARY TO REACH THE
 ADDITIONAL CONTENTIONS OF THE PARTIES AS TO THE NEGOTIABILITY OF THE
 PROPOSAL UNDER SECTION 7106 OF THE STATUTE.
 
    /2/ SEE SECTIONS 7103(A)(12), 7103(A)(14) AND 7114 OF THE STATUTE.
 
    /3/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, CLC, LOCAL
 F-116 AND DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR FORCE BASE,
 CALIFORNIA, 7 FLRA 123, 124-25 (1981);  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3403 AND NATIONAL SCIENCE
 FOUNDATION, WASHINGTON, D.C., 6 FLRA 669, 671-72 (1981).
 
    /4/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /5/ SECTION 7106(B)(1) PROVIDES IN PERTINENT PART:
 
    (B)NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION,
 WORK PROJECT, OR TOUR OF DUTY, OR ON THE TECHNOLOGY, METHODS, AND MEANS
 OF PERFORMING WORK(.)
 
    /6/ SECTION 7106(B)(3) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
   .          .          .          .
 
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT
 OFFICIALS.
 
    /7/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /8/ SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
 REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254 (1979) AND THE
 DISCUSSION HEREIN IN CONNECTION WITH UNION PROPOSAL 2, SUPRA.
 
    /9/ SECTION 7106(A)(1) PROVIDES:
 
    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 MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY(.)
 
    /10/ WEBSTER'S THIRD NEW INTERNATIONAL DIRECTORY 1590 (UNABRIDGED
 1976);  SEE CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION AND THE LIBRARY
 OF CONGRESS, 3 FLRA NO.  117 (1980), WHERE THE AUTHORITY FOUND THAT THE
 PLAIN LANGUAGE OF A UNION PROPOSAL ("(F)OUR SECTIONS FOR ATTORNEYS WILL
 BE CREATED IN PLACE OF THE PRESENT TWO)" WOULD REQUIRE THE AGENCY TO
 ADOPT A CERTAIN ORGANIZATION STRUCTURE.
 
    /11/ THE AGENCY CITES FEDERAL COURT DECISIONS, INCLUDING KELLY V.
 JOHNSON, 425 U.S. 238 (1976) IN SUPPORT OF ITS POSITION.  THESE
 DECISIONS ARE INAPPOSITE TO THE PRESENT CASE.  EACH INVOLVED A CLAIM
 THAT AN AGENCY'S GROOMING STANDARDS HAD THE EFFECT OF DEPRIVING AN
 EMPLOYEE OF HIS OR HER RIGHTS UNDER THE CONSTITUTION.  AS EXPLAINED BY
 THE SUPREME COURT, THIS TYPE OF ISSUE IS TO BE RESOLVED IN ACCORDANCE
 WITH A DETERMINATION AS TO WHETHER THE AGENCY'S DECISION TO REQUIRE
 GROOMING STANDARDS IS IRRATIONAL.  KELLY V. JOHNSON, 425 U.S. 238, 248
 (1976).  WHAT IS AT ISSUE HERE IS WHETHER THE UNION'S PROPOSAL WOULD
 DIRECTLY INFRINGE UPON THE AGENCY'S RIGHT TO DETERMINE ITS MEANS OF
 PERFORMING WORK UNDER SECTION 7106 SO AS TO BE OUTSIDE THE DUTY TO
 BARGAIN.
 
    /12/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /13/ SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
 SERVICE, 3 FLRA NO. 112 (1980).
 
    /14/ SECTION 7114(A) PROVIDES, IN PERTINENT PART:
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT--
 
    (A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
 AGENCY AND ONE OR MORE
 
    EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
 GRIEVANCE OR ANY PERSONNEL
 
    POLICY OR PRACTICES OR OTHER GENERAL CONDITIONS OF EMPLOYMENT;  OR
 
    (B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
 THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF--
 
    (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE;  AND
 
    (II) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    (3) EACH AGENCY SHALL ANNUALLY INFORM ITS EMPLOYEES OF THEIR RIGHTS
 UNDER PARAGRAPH (2)(B) OF THIS SUBSECTION.
 
    /15/ INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL
 1186 AND NAVY PUBLIC WORKS CENTER, PEARL HARBOR, HONOLULU, HAWAII, 4
 FLRA NO. 32 (1980) AT 6, APPEAL DOCKETED, NO. 80-7640 (9TH CIR. NOV. 14,
 1980).
 
    /16/ SECTION 7106(A)(2)(A) PROVIDES:
 
    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--
 
    (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 TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES(.)
 
    /17/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
 JERSEY, 2 FLRA 152 (1=79), ENFORCED SUB NOM., DEPARTMENT OF DEFENSE V.
 FEDERAL LABOR RELATIONS AUTHORITY, 659 F. 2D 1140 (D.C. CIR. 1981),
 CERT. DENIED SUB NOM., AFGE V. FLRA, 50 U.S.L.W. 3669 (FEB. 23, 1982).
 
    /18/ NOTE 5, SUPRA.
 
    /19/ NOTE 16, SUPRA.
 
    /20/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /21/ SEE NOTE 17, SUPRA.
 
    /22/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /23/ NOTE 16, SUPRA.
 
    /24/ SECTION 7106(A)(2)(B) PROVIDES:
 
    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--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS ARE CONDUCTED(.)
 
    /25/ NOTE 5, SUPRA.
 
    /26/ SEE NOTE 17, SUPRA.
 
    /27/ IN VIEW OF THIS DECISION, THE AUTHORITY FINDS IT UNNECESSARY TO
 ADDRESS THE REMAINING CONTENTIONS OF THE AGENCY AS TO THE NEGOTIABILITY
 OF THE PROPOSAL.
 
    /28/ THE PHRASE "CONFLICT-OF-INTEREST SITUATIONS" AS USED IN THE
 PROPOSAL IS NOT DEFINED IN THE RECORD.  THEREFORE, IT IS DETERMINED THAT
 THE PHRASE REFERS TO "CONFLICTS-OF-INTEREST" AS GENERALLY DEFINED IN
 AGENCY AND GOVERNMENT-WIDE REGULATIONS;  E.G., SITUATIONS IN WHICH AN
 EMPLOYEE HAS AN INTEREST CONNECTED WITH ANOTHER PERSON, AN INSTITUTION,
 OR A TRANSACTION WHICH WOULD INTERFERE WITH THE PROPER PERFORMANCE OF
 THE EMPLOYEE'S DUTIES AS A REPRESENTATIVE OF THE AGENCY.  SEE 28 CFR
 45.735-4;  5 CFR PART 735.
 
    /29/ NOTE 9, SUPRA.
 
    /30/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15
 AND DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, NORTH ATLANTIC
 REGION, 2 FLRA 874 (1980), AND NATIONAL LABOR RELATIONS BOARD UNION AND
 GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD, 5 FLRA NO. 95
 (1981).
 
    /31/ NOTE 9, SUPRA.
 
    /32/ NOTE 5, SUPRA.
 
    /33/ IN VIEW OF THIS DECISION, THE AUTHORITY FINDS IT UNNECESSARY TO
 ADDRESS THE REMAINING CONTENTIONS OF THE AGENCY AS TO THE NEGOTIABILITY
 OF THE PROPOSAL.
 
    /34/ IN THIS REGARD, SECTION 7114(B) OF THE STATUTE PROVIDES IN
 RELEVANT PART:
 
    (B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
 NEGOTIATE IN GOOD FAITH UNDER SUBSECTION (A) OF THIS SECTION SHALL
 INCLUDE THE OBLIGATION--
 
   .          .          .          .
 
 
    (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--
 
    (A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
 OF BUSINESS;
 
    (B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
 DISCUSSION,
 
    UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
 COLLECTIVE BARGAINING;  AND
 
    (C) WHICH DOES NOT CONSTITUTE GUIDANCE, ADVICE, COUNSEL, OR TRAINING
 PROVIDED FOR
 
    MANAGEMENT OFFICIALS OR SUPERVISORS, RELATING TO COLLECTIVE
 BARGAINING(.)
 
    /35/ NOTE 16, SUPRA.
 
    /36/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /37/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /38/ TEST PROVIDED WITH OTHER PROVISIONS OF SECTION 7121, INFRA.
 
    /39/ THE AGENCY AND THE OPM ADDITIONALLY REFER TO DECISIONS OF STATE
 COURTS AND THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) TO PROVIDE SUPPORT
 FOR THEIR POSITION.  APART FROM OTHER CONSIDERATIONS, HOWEVER, THERE IS
 NO INDICATION IN THE STATUTE OR ITS LEGISLATIVE HISTORY THAT CONGRESS
 INTENDED THE AUTHORITY TO FOLLOW STATE STATUTES AND POLICIES IN
 RESOLVING NEGOTIABILITY DISPUTES UNDER THE FEDERAL STATUTE, AND CONGRESS
 CLEARLY DID NOT INTEND THAT THE AUTHORITY SHOULD DEFER TO FLRC DECISIONS
 IN THIS REGARD.  SEE, E.G., 124 CONG. REC. H 9638 (DAILY ED. SEPT. 13,
 1978) (REMARKS OF REP. CLAY);  AND 124 CONG. REC. H 9651 (DAILY ED.
 SEPT. 13, 1978) (REMARKS OF REP. FORD), CITED IN DEPARTMENT OF DEFENSE
 V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140, 1162-63 (D.C. CIR.
 1981).
 
    /40/ NATIONAL COUNCIL WAS BEFORE THE AUTHORITY ON AN EXCEPTION TO AN
 ARBITRATOR'S AWARD, FILED BY A UNION UNDER SECTION 7122(A) OF THE
 STATUTE.  THE ARBITRATOR'S AWARD INVOLVED A GRIEVANCE CONCERNING THE
 TERMINATION OF A PROBATIONARY EMPLOYEE.  THE ARBITRATOR STATED THE
 ISSUES PRESENTED TO HIM AS FOLLOWS:
 
    IS THE FOLLOWING (THE GRIEVANCE CONCERNING THE TERMINATION OF THE
 PROBATIONARY EMPLOYEE)
 
    GRIEVABLE/ARBITRABLE UNDER THE TERMS OF THE AGREEMENT AS THOSE TERMS
 ARE AFFECTED BY
 
    CONTROLLING LAW?
 
    IF SO, DID MANAGEMENT VIOLATE THE AGREEMENT BY NOT STAYING THE ACTION
 . . . .
 
    AND, IF SO, DID THE EMPLOYEE HAVE A FULL AND FAIR TRIAL PRIOR TO HIS
 SEPARATION?
 
    IF NOT, WHAT IS THE REMEDY?
 
    4 FLRA NO. 51 AT 1 (EMPHASIS ADDED).  THE ARBITRATOR DETERMINED THAT
 THE GRIEVANCE HAD BEEN RENDERED NONGRIEVABLE AND NONARBITRABLE AS A
 MATTER OF LAW AFTER THE EFFECTIVE DATE OF THE STATUTE, BY SECTION
 7121(C)(4).  ACCORDINGLY, BASED ON THIS DETERMINATION, HE DISMISSED THE
 GRIEVANCE IN ITS ENTIRETY WITHOUT DELIBERATIONS OR RULINGS ON THE
 SUBSEQUENT ISSUES.  PURSUANT TO SECTION 7122(A) OF THE STATUTE AND
 SECTION 2425.4 OF ITS REGULATIONS, THE AUTHORITY SET ASIDE THE AWARD ON
 THE SOLE GROUND THAT THE ARBITRATOR'S INTERPRETATION OF SECTION
 7121(C)(4) WAS IN ERROR.
 
    /41/ IN HOLDING THAT SECTION 7121(C)(4) DOES NOT MANDATE SUCH
 EXCLUSIONS, THE AUTHORITY IN NATIONAL COUNCIL ALSO STATED THAT
 "(S)ECTION 7121(A)(2) OF THE STATUTE PERMITS THE PARTIES IN THE FEDERAL
 SECTOR TO NEGOTIATE EXCLUSIONS TO THE BROAD SCOPE GRIEVANCE PROCEDURE
 PERMITTED BY THE STATUTE IF THEY CHOOSE TO DO SO, INCLUDING EXCLUSIONS
 PERTAINING TO GRIEVANCES OVER THE SEPARATION OF PROBATIONERS." 4 FLRA
 NO. 51, AT 7.
 
    /42/ CIVIL SERVICE REFORM ACT OF 1978:  CONFERENCE REPORT, H.R.  REP.
 NO. 95-1717, 95TH CONG., 2D SESS. 157 (1978), CITED IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS
 ADMINISTRATIO