National Treasury Employees Union (Union) and Internal Revenue Service (Agency)
[ v06 p522 ]
06:0522(98)NG
The decision of the Authority follows:
6 FLRA No. 98
NATIONAL TREASURY EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE
Agency
Case No. O-NG-85
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 ET SEQ.) THE ISSUE PRESENTED IS THE NEGOTIABILITY OF EIGHT
UNION PROPOSALS. /1/
UNION PROPOSAL I
ARTICLE 19, SECTION 7C
IF AN EMPLOYEE REQUESTS ASSISTANCE FOR HIS/HER PROBLEM, THE
RESPONSIBLE SUPERVISORY
OFFICIAL MUST WEIGH THIS FACT IN DETERMINING APPROPRIATE DISCIPLINARY
AND ADVERSE ACTION IF
SUCH ACTIONS BECOME NECESSARY.
SUCH DISCIPLINARY ACTION SHALL NOT BE INSTITUTED IF THE AFFECTED
EMPLOYEE IS AN ACTIVE
PARTICIPANT IN A RECOGNIZED DRUG/ALCOHOLISM PROGRAM, OR SHALL BE
STAYED IF THE AFFECTED
EMPLOYEE ENTERS SUCH A PROGRAM. /2/
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE DISPUTED PORTIONS OF UNION PROPOSAL I ARE
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE, /3/ AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE DISPUTED PORTIONS OF UNION PROPOSAL I ARE
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE AND THEREFORE THE DUTY TO BARGAIN
DOES NOT EXTEND TO THESE MATTERS. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)),
IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW
RELATING TO THE DISPUTED PORTIONS OF UNION PROPOSAL I BE DISMISSED.
REASONS: THE DISPUTED PORTIONS OF UNION PROPOSAL I WOULD (1)
PROHIBIT THE AGENCY FROM DISCIPLINING AN EMPLOYEE AS LONG AS THE
EMPLOYEE IS AN ACTIVE PARTICIPANT IN A RECOGNIZED DRUG/ALCOHOLISM
PROGRAM, AND (2) REQUIRE THE AGENCY TO STAY ANY DISCIPLINARY ACTION IF
THE EMPLOYEE ENTERS SUCH A PROGRAM. AS A RESULT, THE PROPOSAL WOULD
PREVENT THE AGENCY FROM INSTITUTING DISCIPLINE WITH RESPECT TO EMPLOYEES
WHO ARE ACTIVE PARTICIPANTS IN A RECOGNIZED DRUG/ALCOHOLISM PROGRAM AND
WOULD REQUIRE THE AGENCY TO STAY DISCIPLINARY ACTION WITH RESPECT TO
EMPLOYEES WHO ENTER SUCH A PROGRAM. HENCE, UNDER THE DISPUTED PORTIONS
OF THE PROPOSAL, AN EMPLOYEE COULD SECURE IN EFFECT COMPLETE IMMUNITY
FROM DISCIPLINE, WITHOUT REGARD TO HIS OR HER BEHAVIOR OR PERFORMANCE ON
THE JOB, SIMPLY BY ENTERING AND REMAINING A PARTICIPANT IN SUCH A
PROGRAM. THEN, THE AGENCY WOULD BE WHOLLY PRECLUDED FROM TAKING
DISCIPLINARY ACTION AGAINST THE EMPLOYEE UNLESS THE EMPLOYEE STOPPED
PARTICIPATING IN THE PROGRAM. THUS, THE PROPOSAL WOULD GRANT EMPLOYEES
THE OPTION TO TOTALLY DENY THE AGENCY'S STATUTORY AUTHORITY BY
PARTICIPATING IN SUCH A PROGRAM AND HENCE, EVEN IF CONSIDERED TO BE
PROCEDURAL IN NATURE, THE PROPOSAL WOULD HAVE THE EFFECT OF PREVENTING
THE AGENCY FROM ACTING AT ALL IN THE EXERCISE OF ITS AUTHORITY TO
DISCIPLINE EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. /4/
ACCORDINGLY, THE PROPOSAL IS INCONSISTENT WITH THE AUTHORITY OF THE
AGENCY TO DISCIPLINE EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE AND IS NOT WITHIN THE DUTY TO BARGAIN.
UNION PROPOSAL II
ARTICLE . . . , SECTION 1A
TELEPHONE MONITORING WILL BE ASSIGNED TO QUALITY REVIEW PERSONNEL WHO
HAVE RECEIVED QUALITY
REVIEW TRAINING.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL II IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE, /5/ AS ALLEGED BY AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL II IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE AND THEREFORE THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS
MATTER. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS, (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL II
BE DISMISSED.
REASONS: UNION PROPOSAL II WOULD REQUIRE THE AGENCY TO ASSIGN
TELEPHONE MONITORING DUTIES TO QUALITY REVIEW PERSONNEL ONLY IF THESE
QUALITY REVIEW PERSONNEL HAVE RECEIVED QUALITY REVIEW TRAINING. THUS,
UNDER THE PROPOSAL THE AGENCY COULD NOT ASSIGN SUCH DUTIES TO EMPLOYEES
WHO WERE NOT QUALITY REVIEW PERSONNEL OR TO QUALITY REVIEW PERSONNEL
LACKING THE REQUISITE TRAINING.
UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, HOWEVER, IT IS CLEAR THAT
THE AGENCY HAS THE AUTHORITY TO ASSIGN WORK, /6/ INCLUDING THE
DISCRETION AS TO THE PARTICULAR EMPLOYEE TO WHOM THE WORK WILL BE
ASSIGNED. /7/ UNION PROPOSAL II, AS ALREADY INDICATED, PRESCRIBES THE
ASSIGNMENT OF SPECIFIC DUTIES TO PARTICULAR EMPLOYEES AND PRECLUDES THE
AGENCY FROM ASSIGNING THOSE DUTIES TO OTHER EMPLOYEES. THUS, UNION
PROPOSAL II WOULD ELIMINATE THE DISCRETION INHERENT IN THE AGENCY'S
AUTHORITY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE.
THEREFORE, IT IS INCONSISTENT WITH THAT SECTION AND NOT WITHIN THE DUTY
TO BARGAIN. /8/
UNION PROPOSALS III, IV, AND V /9/
ARTICLE . . . , SECTIONS 2A, 2B, AND 3B
SECTION 2A. THE EMPLOYER WILL MAKE NO WRITTEN DOCUMENTATION WHICH
IDENTIFIES SPECIFIC
EMPLOYEES NOR MAINTAIN ANY RECORDATIONS CONCERNING SPECIFIC
EMPLOYEES.
SECTION 2B. THE MONITOR WILL NOT INTERRUPT TELEPHONE CALLS. IF THE
MONITOR BELIEVES THE
EMPLOYEE IS GIVING OUT INCORRECT INFORMATION, THE MONITOR WILL
DISCUSS THE ALLEGED
MISINFORMATION WITH THE EMPLOYEE AFTER THE TELEPHONE CONVERSATION HAS
BEEN COMPLETED. IF IT
IS NECESSARY TO CALL THE TAXPAYER AFTER THE DISCUSSION, THE EMPLOYEE
WILL DO SO.
SECTION 3B. THE EMPLOYER WILL NOT RECORD THE CONVERSATION OF A
TAXPAYER AND EMPLOYEE
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSALS III, IV, AND V ARE
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO DETERMINE THE METHODS OF
PERFORMING ITS WORK UNDER SECTION 7106(B)(1) OF THE STATUTE, /10/ AS
ALLEGED BY THE AGENCY. /11/
OPINION
CONCLUSION AND ORDER: UNION PROPOSALS III, IV, V ARE INCONSISTENT
WITH THE AGENCY'S AUTHORITY TO DETERMINE THE METHODS OF PERFORMING ITS
WORK AND ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
7106(B)(1) OF THE STATUTE. THEREFORE THE DUTY TO BARGAIN DOES NOT
EXTEND TO THESE MATTERS. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO
UNION PROPOSALS III, IV, AND V BE DISMISSED.
REASONS: THE AGENCY HAS ADOPTED TELEPHONE MONITORING FOR THE STATED
PURPOSE OF INSURING THAT ACCURATE INFORMATION IS BEING GIVEN TO
TAXPAYERS. THE UNION DOES NOT DISPUTE THE AGENCY'S AUTHORITY TO
UNILATERALLY ADOPT TELEPHONE MONITORING AS A METHOD OF PERFORMING ITS
WORK. RATHER, UNION PROPOSALS III, IV, AND V CONCERN HOW THE AGENCY
WILL IMPLEMENT ITS SYSTEM OF MONITORING THE WORK RELATED TELEPHONE
CONVERSATIONS OF EMPLOYEES. THEY ARE, THE UNION CLAIMS, PROCEDURES
NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE, /12/ WHICH THE
AGENCY WILL OBSERVE IN EXERCISING ITS AUTHORITY TO ADOPT THE MONITORING
SYSTEM AS A METHOD OF PERFORMING WORK. NEVERTHELESS, THE AGENCY
CONTENDS THAT THE UNION'S PROPOSALS CONCERN MATTERS SO INTERTWINED WITH
THE AGENCY'S CHOICE OF THIS PARTICULAR METHOD OF PERFORMING ITS WORK
THAT THE PROPOSALS, IN EFFECT, WOULD DEFEAT THE PURPOSE THE METHOD
CHOSEN WAS INTENDED TO ACCOMPLISH.
IF TELEPHONE MONITORING IS TO ACCOMPLISH THE PURPOSE FOR WHICH IT WAS
ADOPTED IN THIS CASE, THE AUTHORITY AGREES WITH THE AGENCY'S CONTENTION
THAT MONITORING MUST ENCOMPASS MORE THAN MERELY LISTENING TO THE
TELEPHONE CONVERSATIONS. THE AGENCY MUST BE ABLE TO USE THE INFORMATION
IT HAS GATHERED TO INSURE THAT THE ASSISTANCE PROVIDED TAXPAYERS IS
ACCURATE. AS DISCUSSED IN DETAIL BELOW, UNION PROPOSALS III, IV, AND V
WOULD INTERFERE WITH THE AGENCY'S REASONABLE USE OF THE INFORMATION
GAINED THROUGH TELEPHONE MONITORING TO SUCH AN EXTENT THAT THEY WOULD
PREVENT THE AGENCY FROM ACTING AT ALL TO ACHIEVE THE PURPOSE FOR WHICH
THE AGENCY ADOPTED TELEPHONE MONITORING AS A METHOD OF PERFORMING WORK.
/13/
SECTION 2A, UNION PROPOSAL III, PROHIBITS THE AGENCY FROM MAKING ANY
WRITTEN DOCUMENTATION WHICH IDENTIFIES SPECIFIC EMPLOYEES OR MAINTAINING
ANY RECORDATIONS CONCERNING SPECIFIC EMPLOYEES. WITHOUT SUCH
DOCUMENTATION, THE AGENCY WOULD BE UNABLE TO TAKE APPROPRIATE ACTION TO
CORRECT THE DISSEMINATION OF INACCURATE INFORMATION BY PARTICULAR
EMPLOYEES. SIMILARLY, SECTION 3B, UNION PROPOSAL V, WHICH PROHIBITS THE
AGENCY FROM RECORDING THE CONVERSATION OF A TAXPAYER AND EMPLOYEE,
WOULD
PREVENT THE AGENCY'S MAKING AN ACCURATE RECORD OF WHAT WAS SAID SO AS TO
PROPERLY EVALUATE WHAT ACTION, IF ANY, IS APPROPRIATE TO TAKE.
CONSEQUENTLY, THESE PROPOSED PROCEDURES WOULD PREVENT THE AGENCY FROM
ACTING AT ALL TO INSURE THAT ACCURATE INFORMATION IS BEING PROVIDED TO
TAXPAYERS, THUS DEFEATING THE PURPOSE FOR WHICH TELEPHONE MONITORING WAS
ADOPTED. THEREFORE, UNION PROPOSALS III AND V DO NOT CONSTITUTE
NEGOTIABLE PROCEDURES WHICH THE AGENCY WILL OBSERVE IN EXERCISING ITS
AUTHORITY TO USE TELEPHONE MONITORING AS A METHOD OF PERFORMING ITS WORK
AND ARE NOT WITHIN THE DUTY TO BARGAIN.
SECTION 2B, UNION PROPOSAL IV, PROHIBITS THE AGENCY FROM CORRECTING
THE DISSEMINATION OF MISINFORMATION BY INTERRUPTING TELEPHONE
CONVERSATIONS WITH TAXPAYERS. IN THE CIRCUMSTANCES IN WHICH THE
PROPOSAL IS TO APPLY IT WOULD NOT ALWAYS BE POSSIBLE SUBSEQUENTLY TO
RECONTACT THE TAXPAYER AND CORRECT MISINFORMATION. THEREFORE,
INTERRUPTING THE CONVERSATION WOULD BE THE ONLY MANNER OF INSURING THAT
THE TAXPAYER RECEIVES CORRECT INFORMATION OVER THE TELEPHONE. SINCE THE
PROPOSED PROCEDURE WOULD PROHIBIT SUCH INTERRUPTIONS, IT WOULD PREVENT
THE AGENCY FROM ACTING AT ALL TO ACHIEVE THIS PURPOSE. ACCORDINGLY,
UNION PROPOSAL IV DOES NOT CONSTITUTE A NEGOTIABLE PROCEDURE WHICH THE
AGENCY WILL OBSERVE IN EXERCISING ITS AUTHORITY TO USE TELEPHONE
MONITORING AS A METHOD OF PERFORMING WORK AND IS NOT WITHIN THE DUTY TO
BARGAIN.
UNION PROPOSAL VI
ARTICLE . . . , SECTION 3A.
THE TAXPAYER WILL BE NOTIFIED AT THE BEGINNING OF THE CONVERSATION
THAT THE CALL IS SUBJECT
TO MONITORING.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VI PERTAINS TO MATTERS WHICH
ARE OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL VI PERTAINS TO MATTERS WHICH
ARE OUTSIDE THE DUTY TO BARGAIN AND THEREFORE THE DUTY TO BARGAIN DOES
NOT EXTEND TO THIS MATTER. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO
UNION PROPOSAL VI BE DISMISSED.
REASONS: SECTION 7103(A)(12) OF THE STATUTE DEFINES "COLLECTIVE
BARGAINING" AS "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 . . . BARGAIN IN A
GOOD-FAITH EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH EMPLOYEES . . . " /14/ THUS, THE OBLIGATION
IMPOSED BY SECTIONS 7114 AND 7117 OF THE STATUTE TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND BEYOND MATTERS DIRECTLY AFFECTING UNIT EMPLOYEES.
UNION PROPOSAL VI PROVIDES THAT THE TAXPAYER WILL BE NOTIFIED AT THE
BEGINNING OF THE CONVERSATION THAT THE CALL IS SUBJECT TO MONITORING.
THE PROPOSAL, BY ITS TERMS, CONCERNS MANAGEMENT ACTION CONCERNING THE
TAXPAYER AND WOULD NOT HAVE ANY DIRECT EFFECT ON THE EMPLOYEE. THE
UNION TACITLY RECOGNIZED THE LACK OF DIRECT RELATIONSHIP OF THE PROPOSAL
TO THE WORKING CONDITIONS OF EMPLOYEES, WHEN IT STATED: "NOTIFICATION
OF MONITORING PUTS ALL PARTIES ON NOTICE THAT THEIR BEST BEHAVIOR IS
REQUIRED. THIS CHANGE IN THE TAXPAYER AFFECTS THE EASE AND EFFICIENCY
WITH WHICH THE EMPLOYEE CONDUCTS HIS/HER JOB." SUCH A POSTULATE, EVEN IF
VALID, CLEARLY ILLUSTRATES THAT THE INTENDED EFFECT OF THE PROPOSAL, TO
MODIFY TAXPAYER BEHAVIOR, AS WELL AS THE EXPRESS TERMS OF THE PROPOSAL
DO NOT DIRECTLY RELATE TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.
ACCORDINGLY, UNION PROPOSAL VI IS NOT WITHIN THE DUTY TO BARGAIN. /15/
UNION PROPOSAL VII
ARTICLE . . . , SECTION 6A
EACH EMPLOYEE WILL BE INFORMED, AS PART OF HIS/HER TRAINING, THAT THE
MONITORING IS FOR THE
PURPOSE OF HELPING THEM TO PERFORM QUALITY WORK AND THAT THE
INFORMATION WILL BE USED FOR
TRAINING NOT EVALUATION.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VII IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO DIRECT EMPLOYEES, TO ASSIGN WORK, AND TO TAKE
DISCIPLINARY ACTIONS UNDER SECTION 7106(A)(2) OF THE STATUTE. /16/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL VII IS INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO DIRECT EMPLOYEES, TO ASSIGN WORK, AND TO TAKE
DISCIPLINARY ACTIONS UNDER SECTION 7106(A)(2) 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 PORTION OF THE
UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL VII BE DISMISSED.
REASONS: UNION PROPOSAL VII IS COUCHED IN TERMS OF INSURING THAT
EMPLOYEES, WHO ARE BEING TRAINED TO RENDER ASSISTANCE TO TAXPAYERS OVER
THE TELEPHONE, RECEIVE CERTAIN INFORMATION ABOUT THE MONITORING
OPERATIONS THAT WILL BE PERFORMED IN CONNECTION WITH THEIR WORK.
IMPLICITLY, HOWEVER, UNION PROPOSAL VII WOULD PROHIBIT THE AGENCY FROM
USING INFORMATION GATHERED THROUGH THE TELEPHONE MONITORING PROCEDURE
FOR THE PURPOSE OF EVALUATING EMPLOYEES ON THEIR PERFORMANCE OF
TELEPHONE ASSISTANCE DUTIES. THE USE OF SUCH INFORMATION, HOWEVER, IS
ESSENTIAL TO THE AGENCY'S EVALUATION OF THE JOB PERFORMANCE OF EMPLOYEES
WHOSE PRIMARY RESPONSIBILITY IT IS TO RENDER TELEPHONE ASSISTANCE TO
TAXPAYERS. THERE IS NO TANGIBLE WORK PRODUCT WHICH CAN BE REVIEWED AND
EVALUATED EXCEPT FOR THE CONVERSATIONS OVER THE TELEPHONE.
THE AUTHORITY RESERVED TO THE AGENCY UNDER SECTION 7106(A)(2) OF THE
STATUTE, I.E., TO DIRECT EMPLOYEES, TO ASSIGN WORK, AND TO TAKE
DISCIPLINARY ACTIONS, WOULD BE VIRTUALLY MEANINGLESS IF IT DID NOT
ENCOMPASS THE ABILITY OF THE AGENCY TO REVIEW AND EVALUATE EMPLOYEE
PERFORMANCE OF ASSIGNED DUTIES. /17/ THEREFORE, CONTRARY TO THE UNION'S
ASSERTION, THIS PROPOSAL CANNOT BE CONSIDERED A NEGOTIABLE PROCEDURE.
RATHER, IT EFFECTIVELY PREVENTS THE AGENCY FROM ACTING AT ALL WITH
REGARD TO EVALUATING EMPLOYEE PERFORMANCE OF TELEPHONE ASSISTANCE
DUTIES. ACCORDINGLY, UNION PROPOSAL VII IS NOT WITHIN THE DUTY TO
BARGAIN. /18/
UNION PROPOSAL VIII
ARTICLE . . . , RULES OF CONDUCT.
SECTION 1
IRM 0735 (HANDBOOK OF EMPLOYEES CONDUCT) PRESCRIBES THE RULES OF
CONDUCT REQUIRED OF ALL
EMPLOYEES OF THE REVENUE SERVICE. THE ABSENCE OF A SPECIFIC
PUBLISHED RULE OF CONDUCT,
CONCERNING AN ACT WHICH ADVERSELY AFFECTS THE EFFICIENCY OF THE
SERVICE DOES NOT MEAN THAT THE
SERVICES HAS WAIVED ITS RIGHT TO DISCIPLINE AN EMPLOYEE IF THE ACT
DOES ADVERSELY AFFECT THE
EFFICIENCY OF THE SERVICE.
SECTION 2.
A. EACH EMPLOYEE IS RESPONSIBLE FOR CONDUCTING HIMSELF OR HERSELF IN
A MANNER WHICH WILL
NOT ADVERSELY AFFECT THE EFFICIENCY OF THE SERVICE AND FOR OBSERVING
THE LAWS AND REGULATIONS
OF THE REVENUE SERVICE AND THE TREASURY DEPARTMENT.
B. AN EMPLOYEE IS RESPONSIBLE FOR BECOMING FAMILIAR WITH CONTENTS OF
THE HANDBOOK AND
HE/SHE IS OBLIGATED TO ABIDE BY THOSE INSTRUCTIONS REASONABLY
ASCERTAINABLE FROM THE TEXT.
SECTION 3
A. AN ATTEMPT TO BRIBE IS AN OFFER TO GIVE SOMETHING OF VALUE WITH
THE INTENT THAT THE
RECIPIENT WILL DO SOMETHING IMPROPER, OR WILL FAIL TO DO SOMETHING OR
SHOULD DO, IN
DISCHARGING THE DUTIES OF HIS POSITION.
B. BRIBE OFFER ATTEMPTS MUST BE PROMPTLY REPORTED.
SECTION 4
THE EMPLOYER IDENTIFIES THROUGH THE ISSUANCE OF RULES CERTAIN
ACTIVITY WHICH IS
PROHIBITED. THAT ACTIVITY WHICH IS NOT IDENTIFIED BUT WHICH
ADVERSELY AFFECTS THE EFFICIENCY
OF THE SERVICE MAY BE THE BASIS FOR DISCIPLINE OR ADVERSE ACTION.
SECTION 5
A CONFLICT OF INTEREST SITUATION IS ONE IN WHICH A FEDERAL EMPLOYEES
PRIVATE INTEREST,
USUALLY OF A FINANCIAL OR ECONOMIC NATURE, CONFLICTS WITH HIS/HER
PUBLIC DUTIES AND
RESPONSIBILITIES.
SECTION 6
EMPLOYEES MAY PURCHASE GOVERNMENT PROPERTY NOT SUBJECT TO THE
DIRECTION OR INCIDENT TO THE
FUNCTIONS OF THE INTERNAL REVENUE SERVICE.
SECTION 7
AN EMPLOYEE MAY PURCHASE OR SELL CORPORATE STOCKS INCLUDING THE
PURCHASE OR SALE OF STOCKS
OR MARGIN, SELLING STOCKS SHORT OR TRADING IN THE SAME SECURITIES IS
A VERY SHORT SPAN OF
TIME.
SECTION 8
EMPLOYEES HAVE THE RIGHT TO ASSOCIATE WITH WHOMEVER THEY WISH DURING
NON-DUTY HOURS.
SECTION 9
AN EMPLOYEE MAY ENGAGE IN ALL LEGAL FORMS OF GAMBLING. EMPLOYEES MAY
NOT GAMBLE ON
GOVERNMENT PROPERTY.
SECTION 10
AN EMPLOYEE'S USE OF INTOXICANTS WHICH ADVERSELY AFFECTS THE
EFFICIENCY OF THE SERVICE MAY
BE THE BASIS FOR DISCIPLINARY OR ADVERSE ACTION.
SECTION 11
A. EMPLOYEES ARE EXPECTED TO MANAGE THEIR PRIVATE FINANCIAL AFFAIRS
IN A MANNER WHICH WILL
NOT ADVERSELY AFFECT THE EFFICIENCY OF THE SERVICE.
B. EMPLOYEES ARE RESPONSIBLE FOR THE PROMPT SETTLEMENT OF JUST
FINANCIAL OBLIGATIONS IN A
PROPER AND TIMELY MANNER.
1. A "JUST FINANCIAL OBLIGATION" MEANS ONE ACKNOWLEDGED BY THE
EMPLOYEE OR REDUCED TO
JUDGMENT BY A COURT.
2. IN "PROPER AND TIMELY MANNER" MEANS IN SUCH A TIME SO AS NOT TO
ADVERSELY REFLECT ON
THE EFFICIENCY OF THE SERVICE.
SECTION 12
EMPLOYEES MAY ACCEPT INVITATIONS TO BE A NON-PAYING GUEST AT LUNCH BY
TAXPAYERS,
PRACTITIONERS AND OTHERS IF THE INVITATION IS IN THE CONTEXT OF A
NORMAL BUSINESS RELATIONSHIP
AND AN ONGOING OFFICIAL ASSIGNMENT.
SECTION 13
EMPLOYEES ARE EXPECTED TO CONDUCT THEMSELVES IN THE OFFICIAL
RELATIONS WITH THE PUBLIC IN A
WHOLLY IMPARTIAL MANNER AND SO AS NOT TO ADVERSELY AFFECT THE
EFFICIENCY OF THE SERVICE.
SECTION 14
AN EMPLOYEE MAY BE AN OFFICER OF NTEU AND RECEIVE COMPENSATION FROM
NTEU WITHOUT SEEKING
PERMISSION FROM THE EMPLOYER.
SECTION 15
SECTION 237.2(11) APPLIES TO EMPLOYEES WHOSE DUTIES PUT THEM IN
DIRECT CONTACT WITH
TAXPAYERS.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER, COLLECTIVELY, THE PROPOSED RULES OF
CONDUCT ARE INCONSISTENT WITH THE AGENCY'S AUTHORITY TO DISCIPLINE
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE, AS PRINCIPALLY
ALLEGED BY THE AGENCY OR, IF NOT, WHETHER, INDIVIDUALLY, ANY OF THE
SECTIONS IS INCONSISTENT WITH CERTAIN LAWS OR GOVERNMENT-WIDE RULES OR
REGULATIONS AS ALLEGED BY THE AGENCY AND, HENCE, OUTSIDE THE DUTY TO
BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: COLLECTIVELY, THE PROPOSED RULES OF CONDUCT
ARE NOT INCONSISTENT WITH THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES
UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. FURTHER, THE AGENCY HAS NOT
ESTABLISHED THAT ANY OF THE SECTIONS, INDIVIDUALLY, IS INCONSISTENT WITH
LAWS OR GOVERNMENT-WIDE RULES OR REGULATIONS AS ALLEGED BY THE AGENCY.
HOWEVER, SECTION 15 OF UNION PROPOSAL VIII IS NOT SUFFICIENTLY SPECIFIC
AND DELIMITED IN FORM AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A
NEGOTIABILITY DECISION THEREON. 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 UNION PROPOSAL VIII, /19/ WITH THE
EXCEPTION OF THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO
SECTION 15 OF UNION PROPOSAL VIII WHICH IS DISMISSED.
REASONS: EXECUTIVE ORDER 11222 REQUIRES THAT FEDERAL EMPLOYEES
ADHERE TO CERTAIN STANDARDS OF CONDUCT. THE GENERAL IMPLEMENTING
REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT (OPM), IN 5 CFR 735,
REQUIRE AGENCIES TO PREPARE, AND SUBMIT TO OPM FOR APPROVAL, REGULATIONS
WHICH SPECIFICALLY IMPLEMENT APPROPRIATE STANDARDS OF ETHICAL AND OTHER
CONDUCT WITHIN AN AGENCY. AGENCIES RETAIN SOME DISCRETION, UNDER 5 CFR
735.201, IN FORMULATING THE SPECIFIC LANGUAGE OF THESE STANDARDS PRIOR
TO SUBMITTING THEM TO OPM FOR APPROVAL. WHILE UNION PROPOSAL VIII WOULD
REQUIRE THE AGENCY TO NEGOTIATE OVER ITS EXERCISE OF THIS DISCRETION,
NOTHING IN THE RECORD INDICATES AN INTENT THAT THE PRODUCT OF THESE
NEGOTIATIONS SHOULD BYPASS THE OPM APPROVAL PROCESS. ACCORDINGLY, THE
AUTHORITY INTERPRETS THE PROPOSAL AS SUBJECT TO, AND THEREFORE
CONSISTENT WITH, THE APPROVAL PROCESS REQUIRED BY 5 CFR 735.104(A).
THE AUTHORITY STATED IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6
AND INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO.
118(1980), THAT EXCEPT WHERE PROVIDED OTHERWISE BY LAW OR REGULATION,
"TO THE EXTENT THAT AN AGENCY HAS DISCRETION WITH RESPECT TO A MATTER
AFFECTING THE CONDITIONS OF EMPLOYMENT OF ITS EMPLOYEES, THAT MATTER IS
WITHIN THE DUTY TO BARGAIN OF THE AGENCY."
IN THIS CASE, AS ALREADY INDICATED, THE AGENCY ALLEGES GENERALLY THAT
NEGOTIATING OVER STANDARDS OF CONDUCT WOULD VIOLATE LAW, I.E., THE
AUTHORITY RESERVED TO THE AGENCY TO DISCIPLINE EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. THE AGENCY STATES, "WORK RULES BY
DEFINITION DELINEATE STANDARDS OF EMPLOYEE CONDUCT OR PERFORMANCE FOR
WHICH AN EMPLOYEE MAY BE DISCIPLINED OR REMOVED FOR FAILING TO FOLLOW."
THEREFORE, THE AGENCY ARGUES THAT UNION PROPOSAL VIII WOULD IMPROPERLY
LIMIT THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE.
THE AUTHORITY HAS CONSIDERED WHETHER NEGOTIATING THE DISCRETIONARY
ASPECTS OF AN AGENCY'S POLICY WITH REGARD TO CERTAIN CONDUCT IS
INCONSISTENT WITH THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE, IN NATIONAL TREASURY EMPLOYEES
UNION AND INTERNAL REVENUE SERVICE, 3 FLRA NO. 112(1980). IN THAT CASE
THE AUTHORITY FOUND WITHIN THE DUTY TO BARGAIN A PROPOSAL THAT WOULD
ESTABLISH THE CRITERIA TO BE USED IN DETERMINING WHETHER TO APPROVE OR
DISAPPROVE APPLICATIONS FOR OUTSIDE EMPLOYMENT SUBMITTED BY IRS
EMPLOYEES. IN FINDING THAT THE PROPOSAL WAS NOT INCONSISTENT WITH THE
AGENCY'S AUTHORITY TO DISCIPLINE, UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE, THE AUTHORITY STATED:
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 RULES OF CONDUCT HEREIN WOULD NOT BE INCONSISTENT WITH
THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES BECAUSE NOTHING IN UNION
PROPOSAL VIII RESTRICTS THE AGENCY FROM DISCIPLINING EMPLOYEES FOR
VIOLATIONS OF THE RULES OF CONDUCT. MOREOVER, THE PROPOSAL IS NOT AN
EXCLUSIVE ENUMERATION OF THE RULES OR STANDARDS OF CONDUCT APPLICABLE TO
EMPLOYEES IN THE BARGAINING UNIT. IN THIS REGARD, THE UNION'S INTENT
BEHIND THE PROPOSAL, AS WELL AS THE TERMS OF THE PROPOSAL, INDICATE THE
PROPOSAL PRESERVES THE AGENCY'S DISCIPLINARY AUTHORITY, IN THE ABSENCE
OF A SPECIFIC RULE OF CONDUCT. AS FOR THE UNION'S INTENT, THE UNION
STATES AT PAGE 9 OF ITS PETITION FOR REVIEW, "IT IS NOT NTEU'S INTENT
SPECIFICALLY OR IMPLICITLY TO LIMIT THE IRS PROTECTED MANAGEMENT RIGHT
TO DETERMINE WHEN TO IMPOSE DISCIPLINE OR DISCHARGE." AS FOR THE
PROPOSAL ITSELF, SECTION 1 OF THE PROPOSAL STATES, IN PART: "THE
ABSENCE OF A SPECIFIC PUBLISHED RULE OF CONDUCT, CONCERNING AN ACT WHICH
ADVERSELY AFFECTS THE EFFICIENCY OF THE SERVICE, DOES NOT MEAN THAT THE
SERVICE HAS WAIVED ITS RIGHT TO DISCIPLINE AN EMPLOYEE IF THE ACT DOES
ADVERSELY AFFECT THE EFFICIENCY OF THE SERVICE." FURTHER SINCE SECTION 4
OF THE RULES OF CONDUCT SPECIFIES, "(T)HAT ACTIVITY WHICH IS NOT
IDENTIFIED BUT WHICH ADVERSELY AFFECTS THE EFFICIENCY OF THE SERVICE MAY
BE THE BASIS FOR DISCIPLINE OR ADVERSE ACTION," THE AGENCY'S AUTHORITY
TO DISCIPLINE, UNDER 5 U.S.C. 7503(A) AND SEC. 7513(A), "FOR SUCH CAUSE
AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE" IS PRESERVED.
THE QUESTION REMAINS, HOWEVER, WHETHER ANY ONE OF THE SECTIONS OF
UNION PROPOSAL VIII, INDIVIDUALLY, IS INCONSISTENT WITH LAWS OR
GOVERNMENT-WIDE RULES OR REGULATIONS AS CLAIMED BY THE AGENCY. THE
AUTHORITY HAS EXAMINED THIS CLAIM CAREFULLY AND CONCLUDES THE AGENCY HAS
NOT ESTABLISHED THAT ANY OF THE PROPOSED RULES OF CONDUCT NECESSARILY
CONFLICTS WITH THE LAWS, RULES OR REGULATIONS CITED BY THE AGENCY.
SPECIFICALLY:
1) THE STANDARD IN SECTIONS 1,2,4,10, AND 13 OF THE PROPOSAL THAT AN
EMPLOYEE CONDUCT HIMSELF OR HERSELF IN A MANNER WHICH WILL NOT ADVERSELY
AFFECT THE EFFICIENCY OF THE SERVICE IS NOT NECESSARILY INCONSISTENT
WITH THE STANDARD IN 5 U.S.C. 7513(A) THAT AN AGENCY MAY TAKE
DISCIPLINARY ACTION AGAINST AN EMPLOYEE "ONLY FOR SUCH CAUSE AS WILL
PROMOTE THE EFFICIENCY OF THE SERVICE";
2) THE DEFINITION OF "BRIBE" IN SECTION 3 OF THE PROPOSAL DOES NOT
NECESSARILY IMPLICITLY COUNTENANCE EMPLOYEE CONDUCT VIOLATIVE OF 18
U.S.C. 201;
3) THE DEFINITION OF "CONFLICT OF INTEREST" IN SECTION 5 OF THE
PROPOSAL IS NOT NECESSARILY INCONSISTENT WITH CHAPTER 11 OF TITLE 18 OF
THE UNITED STATES CODE;
4) THE STANDARD FOR EMPLOYEE PURCHASE OF GOVERNMENT PROPERTY AND
CORPORATE SECURITIES IN SECTIONS 6 AND 7 OF THE PROPOSAL IS NOT
NECESSARILY INCONSISTENT WITH 5 CFR 735.204, WHICH SERVES AS THE BASIS
FOR THE FORMULATION OF AGENCY INTERNAL POLICIES GOVERNING EMPLOYEES'
FINANCIAL INTERESTS;
5) THE STANDARD IN SECTION 8 OF THE PROPOSAL ALLOWING EMPLOYEES TO
ASSOCIATE WITH WHOMEVER THEY WISH DURING NONDUTY TIME IS NOT NECESSARILY
INCONSISTENT WITH 5 CFR 735.209, WHICH SERVES AS THE BASIS FOR THE
FORMULATION OF AGENCY INTERNAL POLICIES GOVERNING EMPLOYEES' CONDUCT
PREJUDICIAL TO THE GOVERNMENT;
6) THE STANDARD ESTABLISHING PERMISSIBLE FORMS OF EMPLOYEE GAMBLING
IN SECTION 9 OF THE PROPOSAL IS NOT NECESSARILY INCONSISTENT WITH 5 CFR
735.208, WHICH SERVES AS THE BASIS FOR THE FORMULATION OF AGENCY
INTERNAL POLICIES GOVERNING EMPLOYEES' GAMBLING;
7) THE STANDARD IN SECTION 10 OF THE PROPOSAL PROVIDING FOR THE
DISCIPLINE OF EMPLOYEES WHOSE USE OF INTOXICANTS ADVERSELY AFFECTS THE
EFFICIENCY OF THE SERVICE IS NOT NECESSARILY INCONSISTENT WITH 5 U.S.C
7352;
8) THE STANDARD IN SECTION 11 OF THE PROPOSAL GOVERNING EMPLOYEE
SETTLEMENT OF JUST FINANCIAL OBLIGATIONS IS NOT NECESSARILY INCONSISTENT
WITH 5 CFR 735.207, WHICH SERVES AS THE BASIS FOR THE FORMULATION OF
AGENCY INTERNAL POLICIES GOVERNING SUCH SETTLEMENTS; AND
9) THE STANDARD IN SECTION 12 OF THE PROPOSAL GOVERNING EMPLOYEE
ACCEPTANCE OF FREE LUNCHES IS NOT NECESSARILY INCONSISTENT WITH CHAPTER
11 OF TITLE 18 OF THE UNITED STATES CODE.
WHILE SECTIONS 1-14 OF UNION PROPOSAL VIII ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY IS UNABLE TO DETERMINE FROM THE RECORD THE
SUBSTANTIVE EFFECT OF SECTION 15 OF THE PROPOSAL, WHICH MERELY STATES,
"(S)ECTION 237.2(11) APPLIES TO EMPLOYEES WHOSE DUTIES PUT THEM IN
DIRECT CONTACT WITH TAXPAYERS." SINCE THE UNION DOES NOT IN ANY MANNER
EXPLAIN THE REFERENCE TO SECTION 237.2(11), SECTION 15 OF THE PROPOSAL
IS NOT SUFFICIENTLY SPECIFIC AND DELIMITED TO FORM THE BASIS OF A
NEGOTIABILITY DETERMINATION AND THE APPEAL AS TO SECTION 15 MUST BE
DISMISSED. /20/
ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ DURING PENDENCY OF THIS APPEAL, THE UNION REQUESTED AND THE
AUTHORITY GRANTED WITHDRAWAL OF THE APPEAL OF THE FOLLOWING THREE
ADDITIONAL PROPOSALS: ARTICLE 12, SECTION 3; ARTICLE 25, SECTION 22;
AND ARTICLE 6, SECTION 3.
/2/ ONLY THE UNDERLINED PORTIONS OF UNION PROPOSAL I ARE IN DISPUTE.
/3/ SECTION 7106(A)(2)(A) OF THE STATUTE PROVIDES, IN PERTINENT PART:
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 SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES(.)
/4/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA NO. 16(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
CIR. 1981).
/5/ SECTION 7106(A)(2)(B) OF THE STATUTE PROVIDES, IN PERTINENT PART:
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. . . (.)
/6/ ASSOCIATION OF CIVILIAN TECHNICIANS AND STATE OF GEORGIA NATIONAL
GUARD, 2 FLRA NO. 75(1980), AT 2 OF THE DECISION.
/7/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
NO. 77(1980), AT 28 OF THE DECISION, ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
CIR. 1981).
/8/ ID. AT 20 OF THE DECISION.
/9/ FOR CONVENIENCE OF DECISION, THESE PROPOSALS ARE CONSIDERED
TOGETHER BECAUSE THEY PRESENT THE SAME QUESTION FOR THE AUTHORITY TO
RESOLVE.
/10/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE . . . METHODS . . . OF
PERFORMING WORK(.)
/11/ NO QUESTION IS RAISED IN THIS CASE AND THE AUTHORITY MAKES NO
JUDGMENT AS TO WHETHER THE AGENCY'S METHOD OF PERFORMING WORK, I.E.,
RECORDING CONVERSATIONS, IS IN ACCORDANCE WITH APPLICABLE LAWS AND
REGULATIONS.
/12/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION(.)
/13/ SEE NOTE 4, SUPRA.
/14/ "CONDITIONS OF EMPLOYMENT" IS DEFINED IN SECTION 7103(A)(14) OF
THE STATUTE AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
(A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
OF CHAPTER 73 OF THIS
TITLE;
(B) RELATING TO THE CLASSIFICATION OF ANY POSITION; OR
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE(.)
/15/ SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND
NAVAL TRAINING CENTER, ORLANDO, FLORIDA, 3 FLRA NO. 14(1980) AND
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA
NAVAL SHIPYARD, 3 FLRA NO. 66 (1980), AT 7-8 OF THE DECISION.
/16/ SECTION 7106(A)(2) OF THE STATUTE PROVIDES, IN PERTINENT PART:
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 . . . DIRECT . . . EMPLOYEES IN THE AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE
OR PAY, OR TAKE OTHER DISCIPLINARY ACTION AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK . . . (.)
/17/ CF. NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), AT PAGE 7
WHEREIN THE AUTHORITY IDENTIFIED THE KIND OF AGENCY ACTIONS WHICH
CONSTITUTE AN EXERCISE OF THE AGENCY'S RIGHT TO DIRECT EMPLOYEES, UNDER
SECTION 7106(A)(2)(A) OF THE STATUTE, AND THE RIGHT TO ASSIGN WORK,
UNDER SECTION 7106(A)(2)(B) OF THE STATUTE.
/18/ SEE NOTE 4, SUPRA.
/19/ IN SO DECIDING THAT SECTIONS 1-14 OF UNION PROPOSAL VIII ARE
WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE
MERITS OF THESE SECTIONS OF UNION PROPOSAL VIII.
/20/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2578 AND GENERAL SERVICES ADMINISTRATION, NATIONAL ARCHIVES AND
RECORDS SERVICE, WASHINGTON, D.C., 3 FLRA NO. 92(1980); ASSOCIATION OF
CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, 2
FLRA NO. 39(1979).