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).