[ v03 p693 ]
03:0693(112)NG
The decision of the Authority follows:
3 FLRA No. 112
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
INTERNAL REVENUE SERVICE
(Agency)
Case No. 0-NG-82
DECISION ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
UNION PROPOSAL I
ARTICLE 3 - SECTION 5
B. THE EMPLOYER AGREES THAT EMPLOYEES MAY OBTAIN OUTSIDE EMPLOYMENT
WHERE SUCH EMPLOYMENT
DOES NOT CREATE:
1. INTERFERENCE WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES;
2. BRING DISCREDIT ON OR CAUSE UNFAVORABLE AND JUSTIFIABLE CRITICISM
OF THE GOVERNMENT; OR
3. RESULT IN A CONFLICT, OR APPARENT CONFLICT OF INTEREST, WITH
THEIR OFFICIAL DUTIES.
C. APPLICATIONS FOR OUTSIDE EMPLOYMENT WHICH HAVE BEEN APPROVED WILL
NOT BE SUBSEQUENTLY
DENIED.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL I, CONCERNING OUTSIDE
EMPLOYMENT IS OUTSIDE THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION
7117 OF THE STATUTE /1/ AND CONFLICTS WITH RETAINED MANAGEMENT RIGHTS
UNDER SECTION 7106(A) OF THE STATUTE, /2/ AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION: UNION PROPOSAL I IS WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE AND DOES NOT CONFLICT WITH SECTION 7106(A) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, 45 FED. REG. 3513 (1980), THE AGENCY'S ALLEGATION THAT THE
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE. IN SO DECIDING
THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY
MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
REASONS: UNION PROPOSAL I ESSENTIALLY SEEKS TO ESTABLISH THE
CRITERIA TO BE USED IN DETERMINING WHETHER TO APPROVE OR DISAPPROVE
APPLICATIONS FOR OUTSIDE EMPLOYMENT SUBMITTED BY IRS EMPLOYEES. THE
AGENCY TAKES THE POSITION THAT THE MATTER OF OUTSIDE EMPLOYMENT IS NOT A
CONDITION OF EMPLOYMENT AFFECTING UNIT EMPLOYEES WITHIN THE MEANING OF
THE STATUTE BECAUSE IT DOES NOT DIRECTLY CONCERN THE EMPLOYMENT
RELATIONSHIP BUT INSTEAD RELATES TO MATTERS ARISING OUTSIDE THE WORK
AREA AND NORMAL DUTY HOURS OF IRS EMPLOYEES.
IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE MATTER OF OUTSIDE
EMPLOYMENT DOES AFFECT THE WORK SITUATION AND EMPLOYMENT RELATIONSHIP.
SPECIFICALLY, THE MATTER OF OUTSIDE EMPLOYMENT BY IRS EMPLOYEES IS
COVERED BY AN AGENCY REGULATION ENTITLED "HANDBOOK OF EMPLOYEE
RESPONSIBILITIES AND CONDUCT," IRM 0735.1. THE REGULATION SETS FORTH
AGENCY POLICY CONCERNING "(E)MPLOYEE (O)BLIGATIONS WITH RESPECT TO
(O)UTSIDE (E)MPLOYMENT AND (B)USINESS (A)CTIVITIES" THAT IS
DETERMINATIVE OF WHETHER A UNIT EMPLOYEE MAY BE ELIGIBLE FOR CERTAIN
POSITIONS WITHIN THE AGENCY OR MAY CONTINUE TO BE EMPLOYED BY THE AGENCY
AT ALL.
ACCORDINGLY, IT IS CONCLUDED THAT THE ESTABLISHMENT OF CRITERIA FOR
MANAGEMENT'S APPROVAL OF OUTSIDE EMPLOYMENT APPLICATIONS SUBMITTED BY
IRS EMPLOYEES IS A CONDITION OF EMPLOYMENT. IT IS DIRECTLY RELATED TO
THE PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
CONDITIONS OF UNIT EMPLOYEES AND IS WITHIN THE SCOPE OF BARGAINING UNDER
SECTION 7117 OF THE STATUTE.
THE AGENCY ASSERTS, FURTHER, THAT UNION PROPOSAL I VIOLATES
MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 7106(A)(2)(A) OF THE STATUTE
TO DIRECT AND DISCIPLINE ITS EMPLOYEES AND UNDER SECTION 7106(A)(1) OF
THE STATUTE TO DETERMINE THE INTERNAL SECURITY PRACTICES OF THE AGENCY.
SUCH ASSERTIONS ARE UNSUPPORTED BY THE RECORD HEREIN AND APPEAR TO BE
BASED UPON A MISINTERPRETATION BY THE AGENCY OF THE DISPUTED PROPOSAL.
THUS, NOTHING CONTAINED IN THE LANGUAGE OF THE PROPOSAL WOULD RESTRICT
THE AGENCY'S RIGHT TO DISCIPLINE OR DENY A SECURITY CLEARANCE TO A UNIT
EMPLOYEE WHO EITHER FAILED TO APPLY FOR OR TO OBTAIN PERMISSION TO HOLD
OUTSIDE EMPLOYMENT CONSISTENT WITH THE ESTABLISHED CRITERIA. MOREOVER,
CONTRARY TO THE AGENCY'S ASSERTION, NEITHER THE LANGUAGE NOR THE STATED
INTENT OF THE PROPOSAL WOULD PREVENT MANAGEMENT FROM DIRECTING AN
EMPLOYEE TO DISCONTINUE OUTSIDE EMPLOYMENT FOR WHICH PERMISSION HAD BEEN
GRANTED BUT WHICH IS DEEMED NO LONGER CONSISTENT WITH THE ESTABLISHED
CRITERIA OR PRECLUDE DISCIPLINARY ACTION AGAINST AN EMPLOYEE WHO REFUSED
TO TERMINATE SUCH OUTSIDE EMPLOYMENT. SIMILARLY, THE RECORD FAILS TO
ESTABLISH, AND IT DOES NOT OTHERWISE APPEAR, THAT THE SUBJECT PROPOSAL
CONFLICTS WITH OTHER RESERVED MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF
THE STATUTE. HOWEVER, EVEN IF MANAGEMENT'S RIGHTS ARE INVOLVED IN SOME
OF THE DECISIONS WHICH MANAGEMENT MAKES, THE INSTANT PROPOSAL INVOLVES A
PROCEDURAL ASPECT AND IT IS A MANDATORY SUBJECT OF BARGAINING UNDER
SECTION 7106(B)(2) OF THE STATUTE. ACCORDINGLY, NOTING THAT NO
COMPELLING NEED WAS RAISED BY THE AGENCY FOR THE REGULATION HEREIN,
UNION PROPOSAL I IS A MATTER WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER
THE STATUTE; AND THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
UNION PROPOSAL II
ARTICLE 3 - SECTION 8
SECTION 8 INCORPORATES THE PROVISIONS OF 5 U.S.C. 2302(B) (PROHIBITED
PERSONNEL PRACTICES) INTO THE NEGOTIATED AGREEMENT. (THE PROPOSAL IS
SET FORTH IN ITS ENTIRETY IN APPENDIX A.)
UNION PROPOSAL III
ARTICLE 3 - SECTION 9
SECTION 9 INCORPORATES THE PROVISIONS OF 5 U.S.C. 2301(B) (MERIT
SYSTEM PRINCIPLES) INTO THE NEGOTIATED AGREEMENT. (THE PROPOSAL IS SET
FORTH IN ITS ENTIRETY IN APPENDIX B.)
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSALS II AND III, EMBODYING THE
PROHIBITED PERSONNEL PRACTICES AND THE MERIT SYSTEM PRINCIPLES CONTAINED
IN 5 U.S.C. 2301 AND 5 U.S.C. 2302, RESPECTIVELY, ARE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
OPINION
CONCLUSION: UNION PROPOSALS II AND III ARE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS, 45 FED. REG. 3513, THE AGENCY'S
ALLEGATION THAT THE PROPOSALS ARE NOT WITHIN THE DUTY TO BARGAIN IS SET
ASIDE. IN SO DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSALS.
REASONS: UNION PROPOSALS II AND III ARE ESSENTIALLY RESTATEMENTS OF
SECTIONS 2301(B) (MERIT SYSTEM PRINCIPLES) AND 2302(B) (PROHIBITED
PERSONNEL PRACTICES) OF THE CIVIL SERVICE REFORM ACT OF 1978 (5 U.S.C.
2301 AND 2302). THE UNION'S STATED INTENT IS TO INCORPORATE THESE TWO
PROVISIONS OF LAW INTO THE NEGOTIATED AGREEMENT AND TO ENFORCE THEM
THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE. THE AGENCY CONTENDS THAT
THE
PORTIONS OF UNION PROPOSALS II AND III WHICH DEAL WITH "RECRUITMENT" AND
APPLICANTS FOR EMPLOYMENT" ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE "SUCH
MATTERS DO NOT RELATE TO PERSONNEL POLICIES, PRACTICES AND MATTERS
AFFECTING THE WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES (BUT) . .
. RELATE TO THE RIGHTS OF PERSONS OUTSIDE THE BARGAINING UNIT." THE
AGENCY FURTHER ASSERTS THAT "SOME SUBSECTIONS (OF THE PROPOSALS) DEAL
WITH MANAGEMENT'S RIGHT TO TAKE OR REFRAIN FROM TAKING ANY PERSONNEL
ACTION" AND THEREFORE VIOLATE MANAGEMENT'S RESERVED RIGHTS CONTAINED IN
SECTION 7106(A)(2)(A) OF THE STATUTE (SUPRA NOTE 2). FOR THE REASONS
STATED BELOW, THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSALS ARE NOT
WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.
AS PREVIOUSLY STATED, THE UNION SEEKS TO "ENFORCE" THE MERIT SYSTEM
PRINCIPLES AND PROHIBITED PERSONNEL PRACTICES THROUGH THE PARTIES'
NEGOTIATED GRIEVANCE PROCEDURE BY INCORPORATING THOSE PROVISIONS OF LAW
INTO THE AGREEMENT. IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL
3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, CASE NO. 0-NG-32, 3 FLRA IN SECTION 7103(A)(9) OF THE STATUTE
/3/ AS WELL AS THE LANGUAGE OF SECTION 7121 OF THE STATUTE /4/ AND THE
LEGISLATIVE HISTORY OF THAT SECTION IN ITS ENTIRETY, /5/ CONCLUDED THAT:
CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A NEGOTIATED
GRIEVANCE PROCEDURE
SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISIONS OF LAW" COULD
BE COVERED UNLESS THE
PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS TO A
PROCEDURE HAVING A NARROWER
COVERAGE . . . (S)ECTION 7121, AS EXPLAINED BY THE COMMITTEE ON
CONFERENCE, . . . PROVIDES
THAT NEGOTIATED GRIEVANCE PROCEDURE COVER, AT A MAXIMUM, MATTERS
WHICH UNDER THE PROVISIONS OF
LAW COULD BE SUBMITTED TO THE PROCEDURES.
NOTHING IN THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE CIVIL
SERVICE REFORM ACT OF 1978 INDICATES THAT CONGRESS INTENDED TO EXCLUDE
MATTERS CONCERNING THE MERIT SYSTEM PRINCIPLES AND PROHIBITED PERSONNEL
PRACTICES FROM THE COVERAGE OF A NEGOTIATED GRIEVANCE PROCEDURE. ON THE
CONTRARY, WHILE SECTION 7121(C) OF THE STATUTE SPECIFICALLY EXCLUDES
CERTAIN MATTERS FROM COVERAGE THEREUNDER (NOTE 4, SUPRA), MATTERS
CONCERNING THE MERIT SYSTEM PRINCIPLES AND PROHIBITED PERSONNEL
PRACTICES ARE NOT SO EXCLUDED. RATHER, SUCH MATTERS ARE CLEARLY
ENCOMPASSED WITHIN THE DEFINITION OF "GRIEVANCE" CONTAINED IN SECTION
7103(A)(9) OF THE STATUTE. AS PREVIOUSLY SET FORTH (NOTE 3, SUPRA),
"GRIEVANCE" IS DEFINED TO INCLUDE, AMONG OTHERS, "ANY COMPLAINT BY ANY
EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING . . . ANY CLAIMED
VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF ANY LAW . . .
AFFECTING CONDITIONS OF EMPLOYMENT." THEREFORE, SINCE THE MATTERS IN
DISPUTE ARE LAWS AFFECTING CONDITIONS OF EMPLOYMENT THEY ARE WITHIN THE
SCOPE OF A NEGOTIATED PROCEDURE "FOR THE SETTLEMENT OF GRIEVANCES" UNDER
SECTION 7121 (SUPRA NOTE 4) UNLESS THE PARTIES EXCLUDE THEM THROUGH THE
COLLECTIVE BARGAINING PROCESS AS PREVIOUSLY DISCUSSED IN CONNECTION WITH
THE VETERANS ADMINISTRATION MEDICAL CENTER CASE. THIS CONCLUSION IS
FURTHER SUPPORTED BY THE REFERENCE IN SECTION 7121(D) OF THE STATUTE TO
"(A)N AGGRIEVED EMPLOYEE AFFECTED BY A PROHIBITED PERSONNEL PRACTICE
UNDER SECTION 2302(B)(1) OF THIS TITLE WHICH ALSO FALLS UNDER THE
COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE . . . ." /6/
FINALLY, THE AGENCY'S CONTENTIONS THAT, IN ESSENCE, UNION PROPOSALS
II AND III ARE NOT WITHIN THE DUTY TO BARGAIN BECAUSE THEY MAY BE
INTERPRETED AS APPLICABLE TO PERSONS OUTSIDE THE BARGAINING UNIT
(INCLUDING APPLICANTS WHO ARE NOT "EMPLOYEES" WITHIN THE MEANING OF THE
STATUTE) OR IN A MANNER THAT WOULD VIOLATE MANAGEMENT'S RESERVED RIGHTS
UNDER SECTION 7106(A)(2)(A) OF THE STATUTE, CANNOT BE SUSTAINED. IN
THIS REGARD, AS THE AUTHORITY STATED IN VETERANS ADMINISTRATION MEDICAL
CENTER, CASE NO.0-NG-32, SUPRA:
IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE
NONGRIEVABLE AND
NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM
MAY BE CHALLENGED BY THE
AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
FACTUAL CIRCUMSTANCES. IN
THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO
"PROVIDE PROCEDURES FOR
THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY.
. . . " FURTHERMORE,
. . . THE AGENCY WOULD HAVE AN OPPORTUNITY TO CHALLENGE (AN
ARBITRATOR'S) AWARD BY FILING
EXCEPTIONS THERETO WITH THE AUTHORITY PURSUANT TO SECTION 7122 OF THE
STATUTE (92 STAT. 1212)
ON THE BASIS THAT THE AWARD IS "CONTRARY TO ANY LAW, RULE OR
REGULATION."
FOR THE FOREGOING REASONS, UNION PROPOSALS II AND III ARE MATTERS
WITHIN THE DUTY TO BARGAIN, AND THE AGENCY'S ALLEGATION THAT THE
PROPOSALS ARE NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
ISSUED, WASHINGTON, D.C., JULY 23, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
MS. PHYLLIS M. BELZER
ATTORNEY, OFFICE OF CHIEF COUNSEL
GENERAL LEGAL SERVICES DIVISION
BRANCH NO. 1
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, N.W., RM. 4566
WASHINGTON, D.C. 20224
ROBERT M. TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
MR. HENRY DE SEGUIRANT
ACTING DIRECTOR OF PERSONNEL
DEPARTMENT OF THE TREASURY
15TH STREET & PENNSYLVANIA AVE., N.W.
ROOM 2426
WASHINGTON, D.C. 20220
APPENDIX A
UNION PROPOSAL II
ARTICLE 3-- SECTION 8
ANY EMPLOYEE OF THE INTERNAL REVENUE SERVICE WHO HAS AUTHORITY TO
TAKE, DIRECT OTHERS TO TAKE, RECOMMEND, OR APPROVE ANY PERSONNEL ACTION,
SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--
(1) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
EMPLOYMENT ON THE BASIS OF
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, HANDICAPPING
CONDITION, MARITAL STATUS, OR
POLITICAL AFFILIATION;
(2) SOLICIT OR CONSIDER ANY RECOMMENDATION OR STATEMENT, ORAL OR
WRITTEN, WITH RESPECT TO
ANY INDIVIDUAL WHO REQUESTS OR IS UNDER CONSIDERATION FOR ANY
PERSONNEL ACTION UNLESS SUCH
RECOMMENDATION OR STATEMENT IS BASED ON THE PERSONAL KNOWLEDGE OR
RECORDS OF THE PERSON
FURNISHING IT AND CONSISTS OF--
(A) AN EVALUATION OF THE WORK PERFORMANCE, ABILITY, APTITUDE, OR
GENERAL QUALIFICATIONS OF
SUCH INDIVIDUAL; OR
(B) AN EVALUATION OF THE CHARACTER, LOYALTY, OR SUITABILITY OF SUCH
INDIVIDUAL:
(3) COERCE THE POLITICAL ACTIVITY OF ANY PERSON (INCLUDING THE
PROVIDING OF ANY POLITICAL
CONTRIBUTION OR SERVICE), OR TAKE ANY ACTION AGAINST ANY EMPLOYEE OR
APPLICANT FOR EMPLOYMENT
AS A REPRISAL FOR THE REFUSAL OF ANY PERSON TO ENGAGE IN SUCH
POLITICAL ACTIVITY;
(4) DECEIVE OR WILLFULLY OBSTRUCT ANY PERSON WITH RESPECT TO SUCH
PERSON'S RIGHT TO COMPETE
FOR EMPLOYMENT;
(5) INFLUENCE ANY PERSON TO WITHDRAW FROM COMPETITION FOR ANY
POSITION FOR THE PURPOSE OF
IMPROVING OR INJURING THE PROSPECTS OF ANY OTHER PERSON FOR
EMPLOYMENT;
(6) GRANT ANY PREFERENCE OR ADVANTAGE NOT AUTHORIZED BY LAW, RULE, OR
REGULATIONS TO ANY
EMPLOYEE OR APPLICANT FOR EMPLOYMENT (INCLUDING DEFINING THE SCOPE OR
MANNER OF COMPETITION OR
THE REQUIREMENTS FOR ANY POSITION) FOR THE PURPOSE OF IMPROVING OR
INJURING THE PROSPECTS OF
ANY PARTICULAR PERSON FOR EMPLOYMENT;
(7) APPOINT, EMPLOY, PROMOTE, ADVANCE, OR ADVOCATE FOR APPOINTMENT,
EMPLOYMENT, PROMOTION,
OR ADVANCEMENT, IN OR TO A CIVILIAN POSITION, ANY INDIVIDUAL WHO IS A
RELATIVE OF SUCH
EMPLOYEE IF SUCH POSITION IS IN THE AGENCY IN WHICH SUCH EMPLOYEE IS
SERVING AS A PUBLIC
OFFICIAL OR OVER WHICH SUCH EMPLOYEE EXERCISES JURISDICTION OR
CONTROL AS SUCH AN OFFICIAL;
(8) TAKE OR FAIL TO TAKE A PERSONNEL ACTION WITH RESPECT TO ANY
EMPLOYEE OR APPLICANT FOR
EMPLOYMENT AS A REPRISAL FOR--
(A) A DISCLOSURE OF INFORMATION BY AN EMPLOYEE OR APPLICANT WHICH THE
EMPLOYEE OR APPLICANT
REASONABLY BELIEVES EVIDENCES--
(I) A VIOLATION OF ANY LAW, RULE, OR REGULATION, OR
(II MISMANAGEMENT, A GROSS WASTE OF FUNDS, AN ABUSE OF AUTHORITY, OR
SUBSTANTIAL AND
SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY, IF SUCH DISCLOSURE IS NOT
SPECIFICALLY PROHIBITED
BY LAW OR IF SUCH INFORMATION IS NOT SPECIFICALLY REQUIRED BY
EXECUTIVE ORDER TO BE KEPT
SECRET IN THE INTEREST OF NATIONAL DEFENSE OR THE CONDUCT OF FOREIGN
AFFAIRS; OR
(B) A DISCLOSURE TO THE SPECIAL COUNSEL OF THE MERIT SYSTEMS
PROTECTION BOARD, OR TO THE
INSPECTOR GENERAL OF AN AGENCY OR ANOTHER EMPLOYEE DESIGNATED BY THE
HEAD OF THE AGENCY TO
RECEIVE SUCH DISCLOSURES, OF INFORMATION WHICH THE EMPLOYEE OR
APPLICANT REASONABLY BELIEVES
EVIDENCES--
(I) A VIOLATION OF ANY LAW, RULE, OR REGULATION, OR
(II) MISMANAGEMENT, A GROSS WASTE OF FUNDS, AN ABUSE OF AUTHORITY, OR
A SUBSTANTIAL AND
SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY;
(9) TAKE OR FAIL TO TAKE ANY PERSONNEL ACTION AGAINST ANY EMPLOYEE OR
APPLICANT FOR
EMPLOYMENT AS A REPRISAL FOR THE EXERCISE OF ANY APPEAL RIGHT GRANTED
BY ANY LAW, RULE, OR
REGULATION;
(10) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
EMPLOYMENT ON THE BASIS OF
CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE
EMPLOYEE OR APPLICANT OR THE
PERFORMANCE OF OTHERS; EXCEPT THAT NOTHING IN THIS PARAGRAPH SHALL
PROHIBIT AN AGENCY FROM
TAKING INTO ACCOUNT IN DETERMINING SUITABILITY OR FITNESS ANY
CONVICTION OF THE EMPLOYEE OR
APPLICANT FOR ANY CRIME UNDER THE LAWS OF ANY STATE, OF THE DISTRICT
OF COLUMBIA, OR OF THE
UNITED STATES; OR
(11) TAKE OR FAIL TO TAKE ANY PERSONNEL ACTION IF THE TAKING OF OR
FAILURE TO TAKE SUCH
ACTION VIOLATES ANY LAW, RULE, OR REGULATION IMPLEMENTING, OR
DIRECTLY CONCERNING, THE MERIT
SYSTEM PRINCIPLES CONTAINED IN SECTION 2301 OF THIS TITLE.
APPENDIX B
UNION PROPOSAL III
ARTICLE 3-- SECTION 9
A. THE INTERNAL REVENUE SERVICE RECOGNIZES AND AGREE TO ABIDE BY THE
MERIT SYSTEM PRINCIPLES SET FORTH IN THE CIVIL SERVICE REFORM ACT OF
1978.
B. IN THIS REGARD THE EMPLOYER AGREES:
(1) RECRUITMENT WILL BE FROM QUALIFIED INDIVIDUALS FROM APPROPRIATE
SOURCES IN AN ENDEAVOR
TO ACHIEVE A WORK FORCE FROM ALL SEGMENTS OF SOCIETY, AND SELECTION
AND ADVANCEMENT SHOULD BE
DETERMINED SOLELY ON THE BASIS OF RELATIVE ABILITY, KNOWLEDGE, AND
SKILLS, AFTER FAIR AND OPEN
COMPETITION WHICH ASSURES THAT ALL RECEIVE EQUAL OPPORTUNITY.
(2) ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT WILL RECEIVE FAIR AND
EQUITABLE TREATMENT
IN ALL ASPECTS OF PERSONNEL MANAGEMENT WITHOUT REGARD TO POLITICAL
AFFILIATION, RACE, COLOR,
RELIGION, NATIONAL ORIGIN, SEX, MARITAL STATUS, AGE, OR HANDICAPPING
CONDITION, AND WITH
PROPER REGARD FOR THEIR PRIVACY AND CONSTITUTIONAL RIGHTS.
(3) EQUAL PAY WILL BE PROVIDED FOR WORK OF EQUAL VALUE, WITH
APPROPRIATE CONSIDERATION OF
BOTH NATIONAL AND LOCAL RATES PAID BY EMPLOYERS IN THE PRIVATE
SECTOR, AND APPROPRIATE
INCENTIVES AND RECOGNITION SHOULD BE PROVIDED FOR EXCELLENCE IN
PERFORMANCE.
(4) ALL EMPLOYEES WILL MAINTAIN HIGH STANDARDS OF INTEGRITY, CONDUCT,
AND CONCERN FOR (THE)
PUBLIC INTEREST.
(5) THE FEDERAL WORK FORCE WILL BE USED EFFICIENTLY AND EFFECTIVELY.
(6) EMPLOYEES WILL BE RETAINED ON THE BASIS OF ADEQUACY OF THEIR
PERFORMANCE, INADEQUATE
PERFORMANCE WILL BE CORRECTED, AND EMPLOYEES WILL BE SEPARATED WHO
CANNOT OR WILL NOT IMPROVE
THEIR PERFORMANCE TO MEET REQUIRED STANDARDS.
(7) EMPLOYEES WILL BE PROVIDED EFFECTIVE EDUCATION AND TRAINING IN
CASES (IN) WHICH SUCH
EDUCATION AND TRAINING WILL RESULT IN BETTER ORGANIZATIONAL AND
INDIVIDUAL PERFORMANCE.
(8) EMPLOYEES WILL BE--
(A) PROTECTED AGAINST ARBITRARY ACTION, PERSONAL FAVORITISM, OR
COERCION FOR PARTISAN
POLITICAL PURPOSES, AND
(B) PROHIBITED FROM USING THEIR OFFICIAL AUTHORITY OR INFLUENCE FOR
THE PURPOSE OF
INTERFERING WITH OR AFFECTING THE RESULT OF AN ELECTION OR A
NOMINATION FOR ELECTION.
(9) EMPLOYEES WILL BE PROTECTED AGAINST REPRISAL FOR THE LAWFUL
DISCLOSURE OF INFORMATION
WHICH THE EMPLOYEES REASONABLY BELIEVE EVIDENCES -
(A) A VIOLATION OF LAW, RULE, OR REGULATION, OR
(B) MISMANAGEMENT, A GROSS WASTE OF FUNDS, AN ABUSE OF AUTHORITY, OR
A SUBSTANTIAL AND
SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY.
/1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION, EXTEND TO
MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE
RULE OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF
THE STATUTE:
SEC. 7103. DEFINITIONS: APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . . .
* * * *
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . . .
/2/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY;
AND
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR PAY, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST SUCH
EMPLOYEES; . . .
/3/ SECTION 7103(A)(9) OF THE STATUTE PROVIDES:
(A) FOR THE PURPOSE OF THIS CHAPTER--
(9) "GRIEVANCE" MEANS ANY COMPLAINT-
(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;
(B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF ANY
EMPLOYEE; OR
(C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING
AGREEMENT; OR
(II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
ANY LAW, RULE, OR
REGULATION AFFECTING CONDITIONS OF EMPLOYMENT;
/4/ SECTION 7121 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
* * * *
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE
CONCERNING--
(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO
PROHIBITED POLITICAL ACTIVITIES);
(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR
(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR
PAY OF AN EMPLOYEE.
/5/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 157 (1978).
/6/ SEE ALSO SECTION 1201.3(B)(1) OF THE FINAL REGULATIONS OF THE
MERIT SYSTEMS PROTECTION BOARD, 5 C.F.R. 2101.3(B)(1) (1979), WHICH
PROVIDES:
(1) WHERE AN EMPLOYEE IS COVERED BY A COLLECTIVE BARGAINING AGREEMENT
WHICH PROVIDES
EXCLUSIVE NEGOTIATED GRIEVANCE PROCEDURES FOR SPECIFIC MATTERS UNDER
5 U.S.C. 7121, THE
EMPLOYEE MAY NOT APPEAL THOSE MATTERS TO THE BOARD.