¶ 32. concurring in part and dissenting in part. If, as the majority holds, it is “impermissible” under the State Employees Labor Relation Act (SELRA) for the Department to unilaterally require its officers to protect inmates from physical abuse, ante, ¶ 24, we are left to wonder why the Legislature would even call for the Department to hire, control, and supervise corrections officers at all, if not for the very purpose of protecting inmates and maintaining order within the facilities. The majority would apparently bar the Department from unilaterally requiring its officers to lock the cell doors or close a prison’s gate on their way out. Certainly the majority’s application of the statute would not allow instant termination, without union agreement, of employees for supplying prisoners with weapons or for releasing inmates at their pleasure.
¶ 33. The majority is correct insofar as some parts of the Department’s disciplinary-guidance memorandum overstep the bounds of the collective-bargaining agreement. Other parts, however, clearly do not. Until today, it should have come as no surprise that corrections officers could be summarily fired for *381smuggling narcotics to inmates, having sex with inmates, failing to protect inmates from attack, being convicted of a felony, being incarcerated, or ignoring orders to check on inmates at risk for suicide. Such misconduct so obviously violates an officer’s fundamental duty, and is so inherently contrary to the Department’s mission, that it requires no negotiation with VSEA either to be forbidden or to warrant instant termination from employment. Yet the Board held that the Department can never immediately fire its employees for inexcusably serious, and even criminal, misconduct, unless the union first agrees. Because some of the activities targeted for severe response by the Department fall well within its statutory rights to respond -with immediate dismissal, as well as within the kinds of egregious misbehavior already subject to immediate dismissal under the contract, I dissent from the majority’s wholesale affirmation of the Board’s overbroad ruling.
¶ 34. To be sure, the Department was also overbroad, as well as overly vague, in its declared intent to bypass some bargained-for step discipline in an effort to address a myriad of potential employee misconduct that could lead to, or enable, conflicts of interests for officers, prisoner suicide, and abuse or discrimination against inmates. Indeed, not all of the infractions outlined in the memorandum necessarily deserve the summary dismissal threatened by the Department. The two examples noted by the Board and the majority, unlawful discriminatory actions and failure to honestly report an event, can easily occur in different degrees: neglect in reporting a minor incident is not the same as covering up a major violation; an insensitive comment or ignorant joke may not be as serious as a disciplinary focus on some prisoners based on ethnicity or race. Similarly, in the Department’s quest to eliminate, and obligate its employees to affirmatively protect inmates from, the substantial harm of actual mental abuse, the fine between mere teasing and bullying emotional mistreatment can be blurry.
¶ 35. Lesser misbehaviors under such categories of misconduct may be appropriately amenable to incremental discipline or remedial training. The disciplinary-guidance memorandum nevertheless purported to reserve to the Department the option of summary dismissal in any and all of those events. The majority properly concludes that such a unilateral declaration is inconsistent with the progressive discipline bargained for under Article 14.
¶ 36. At the same time, however, other infractions identified by the Department as likely to earn summary dismissal, like smug*382gling, sex with inmates, commission of felonies, incarceration, or failure to perform required inmate-safety checks, are so obviously impermissible and serious as to defy degree. These kinds of violations do warrant immediate firing — and without negotiating to do so. Moreover, the Department’s warning that its officers could expect instant dismissal for such misconduct was entirely authorized by statute, and fully within the exceptions from bargaining set forth in Article 14. Notwithstanding the general provisions in Article 14 for progressive discipline and prior notice before termination, Part 3 of the article allows the Department to
dismiss an employee immediately without . . . notice for any of the following reasons:
(a) gross neglect of duty;
(b) gross misconduct;
(c) refusal to obey lawful and reasonable orders given by superiors;
(d) conviction of a felony;
(e) conduct which places in jeopardy the life or health of a co-worker or of a person under the employee’s care.
Thus, neither SELRA, nor the contract, nor common sense, requires collective bargaining to label consorting sexually with prisoners, or passing contraband to them, as “gross misconduct.” Nor was collective bargaining a prerequisite to appreciate that permitting physical abuse of a prisoner is either, or all, “gross neglect of duty,” “gross misconduct,” or jeopardizing to the prisoner’s health. And given the dire consequence of noncompliance, no bargaining is necessary to identify disobedience of a suicide-watch order as a gross neglect of duty or failure to obey an order.
¶ 37. The majority concludes, instead, that such requirements and categories of misconduct are matters “relating to the relationship between” the Department and its employees and, as such, are subject to the general bargaining requirements of SELRA. 3 V.S.A. § 904(a). Declaring that the Department’s unilateral direction that its officers protect prisoners from assault is impermissible, the majority supposes that the Legislature intended to abandon Vermont’s prison population to the “law of the fang” unless otherwise agreed by VSEA. This construction of the statute *383and contract is patently unreasonable. Further, it ignores specific statutory mandates to the Department and Commissioner to directly manage and control the operation and discipline of correctional facilities and correctional officers for the safety and wellbeing of those prisons and their inmates. See generally 28 V.S.A. §§101-102.
¶ 38. The majority’s effort to distinguish “bargaining” from “agreement,” ante, ¶ 29 n.3, is unavailing. In the majority’s model, the obligation of correction officers for prisoner security and public safety is entirely dependent upon defining and enforcing those obligations to the satisfaction of the officers. In the absence of agreement, those topics of security and safety would then be referred to mediation and fact finding, or even legislative intercession, as necessary to resolve the impasse. See 3 V.S.A. § 925. Allowing the guards such influence and hindrance over the Commissioner’s execution of the Department’s basic statutory charge to keep inmates and facilities secure and safe makes no sense, and ignores the Department’s authorizing legislation.
¶ 39. That these fundamental duties of the Department are not subject to collective bargaining is recognized by the express exclusion of “those matters which are prescribed or controlled by statute” from collective bargaining under SELRA, 3 V.S.A. § 904(a), and the contract’s own terms. Article 2 of the contract states that:
nothing in this Agreement shall be construed to interfere with the right of the Employer to carry out the statutory mandate and goals of the agency, to restrict the state in its reserved and retained lawful and customary management rights, powers, and prerogatives, including the right to utilize personnel, methods and means in the most appropriate manner possible.
The powers and responsibilities of the Department and its Commissioner over its employees are detailed in Title 28. The Department is charged, in pertinent part:
(1) To establish, maintain and administer . . . correctional facilities ... for the safekeeping of . . . persons as may be committed to the department in accordance with law;
*384(4) To employ such officers, employees and agents as deemed necessary to discharge the functions of the department;
(5) To establish standards for the management, operation, personnel and program of all correctional facilities in the state ....
28 V.S.A. § 101. The Commissioner is charged, in turn:
(1) To make rules and regulations for the governing and treatment of persons committed to the custody of the commissioner, the administration of correctional facilities and the regulation of employees under the jurisdiction of the commissioner.
(5) To prescribe rules and regulations for the maintenance of discipline and control at each correctional facility.
(6) To maintain security, safety and order at the correctional facilities and act to subdue any disorder . . . which may occur at any facility. . . .
28 V.S.A. § 102(c).
¶ 40. The Legislature’s delegation to the Department and to the Commissioner of constant direction and control over security, order, safety, and discipline of facilities, staff, and inmates is not a topic for bargaining. So designated as exclusively responsible for inmate safety and facility security, the Department and its Commissioner cannot then subject its decisions in this regard to the agreement or disapproval of its employees. It is axiomatic that the safekeeping of prisoners, exclusion of contraband, prohibition of sexual fraternization, elimination of conflicts of interest, and the discipline of officers failing to execute the fundamental prerogatives and responsibilities of the employer are not a subject of negotiation. 3 V.S.A. § 904(a); Collective Bargaining Agreement, Article 2, part 1. Accordingly, the majority’s conclusion that the Department cannot expect and require its officers to intervene against harm to inmates by others, without first negotiating for such protection, is untenable.
¶ 41. Equally indefensible is the notion that conflicts of interest, sexual liaisons with prisoners, delivery of contraband to prisoners, *385and the continued employment of staff who achieve felon or inmate status themselves cannot be prohibited, nor made grounds for immediate dismissal by the Department, without the agreement of the union. Quite contrary to the majority’s redelegation of the employer’s statutory authority to VSEA, the Legislature granted no voice to the union, and certainly no veto, over those parts of the Department’s memorandum pertaining to immediately disqualifying standards for staff, and immediately enforceable measures for the most basic physical protection of prisoners and elementary security of prisons. The majority’s holding plainly infringes on the explicit authority of the Department and Commissioner “[t]o establish standards for the management, operation, personnel and program of all correctional facilities,” 28 V.S.A. § 101(5), and “[t]o maintain security, safety and order at the correctional facilities,” id. § 102(c)(6).
¶ 42. It is important to note, at this juncture, that the Department’s right and obligation to define the fundamental obligations of its officers, and its own summary response to disobedience to those essential duties, in no way subverts employees’ contractual rights to be terminated only for good cause. The memorandum cannot curtail the Board’s jurisdiction to adjudge, upon the filing of a grievance, that the good cause claimed for immediate termination, or termination at all, cannot be sustained by the employer. It may be that, after full hearing, a summary firing cannot ultimately be justified as a matter of law, or that the Department cannot prove the infraction charged as a matter of fact. Such claims are properly reserved by statute for the Board’s review in the first instance. 3 V.S.A. §§ 902(14), 926.
¶ 43. The Board’s order should not be affirmed in its entirety, but reversed in part as necessary to defer to the Department’s statutory authority to set facially reasonable minimum performance expectations, and facially reasonable sanctions for infractions of such standards. The memorandum’s warning to corrections personnel that passing contraband to inmates, engaging in sexual relations with prisoners, failing to protect prisoners, committing felonies, and incarceration will not be tolerated from staff is entirely within the Department’s legislative mandate. I respectfully dissent from the majority’s determination that it is an unfair labor practice for the Department to protect inmates from suicide and physical attack, or to forbid its employees from introducing contraband to, and from engaging in sex with, the prison popu*386lation, or to immediately dismiss from its staff felony offenders and persons serving prison sentences.
¶ 44. I am authorized to state that Chief Justice Reiber joins in this partial dissent.
Appendix I
ARTICLE 14 DISCIPLINARY ACTION
1. No . . . employee covered by this agreement shall be disciplined without just cause. The parties jointly recognize the deterrent value of disciplinary action.
Accordingly, the State will:
(b) apply discipline or corrective action with a view toward uniformity and consistency;
(c) impose a procedure of progressive discipline or progressive corrective action;
(d) In misconduct cases, the order of progressive discipline shall be:
(1) oral reprimand;
(2) written reprimand;
(3) suspension without pay;
(4) dismissal.
(e) in performance cases, the order of progressive corrective action shall be as follows:
(1) feedback, oral or written . . .
(2) written performance evaluation . . .
(3) warning period . . .
(4) dismissal.
(f) The parties agree that there are appropriate cases that may warrant the State:
(1) bypassing progressive discipline or corrective action;
*3872. [The State] may dismiss an employee for just cause with two (2) weeks’ notice or two (2) weeks’ pay in lieu of notice. . . .
3. Notwithstanding the provisions of paragraph 2 above, [the State] . . . may dismiss an employee immediately without two (2) weeks’ notice or two (2) weeks’ pay in lieu of notice for any of the following reasons:
(a) gross neglect of duty;
(b) gross misconduct;
(c) refusal to obey lawful and reasonable orders given by supervisors;
(d) conviction of a felony;
(e) conduct which places in jeopardy the life or health of a co-worker or of a person under the employee’s care.
Appendix II
ARTICLE 17 AGENCY, DEPARTMENT AND INSTITUTION WORK RULES
1. ESTABLISHMENT OF RULES
(a) [The Department] shall put into writing those rules of conduct and procedure it deems necessary for its efficient operation. . . .
(b) [Work rules] shall not be in conflict with existing law, [or] contract provisions ....
(c) Work rules shall relate to aspects of employment (such as Public Safety work rules outlining proper maintenance schedules for cruisers, AOT rules for use of State-owned property and equipment), and not to fundamental conditions of work which give rise to a statutory bargaining obligation.
2. NOTIFICATION AND DISTRIBUTION OF RULES
(a) All employees affected by the . . . work rules must be notified in writing ... of those rules and changes to those rules at least fifteen (15) days prior to the date they become effective ....
*388(b) The State shall provide written notification to the VSEA of all new rules and changes to existing rules concurrent with the notice to employees.
3. REASONABLENESS AND APPLICATION OF RULES
(a) An employee or the VSEA may grieve the reasonableness of any rule promulgated under this Article ....
Appendix III
DEPARTMENT OF CORRECTIONS WORK RULES
1. No employee shall violate any provision of the collective bargaining agreement or any State or Department work rule, policy, procedure, directive, local work rule or post order.
3. No employee shall, while on duty or on State property, endanger the safety of any member of the public. Employees shall be responsible to promptly report, to their immediate supervisor, any such conduct by another employee, volunteer or offender which endangers the safety of others.
4. Employees shall be honest and complete in their descriptions, whether given orally or in writing, to the employer of events occurring in the work place and in all other circumstances related to their employment.
5. Employees shall cooperate fully with any inquiry or investigation, whether formal or informal, conducted by the Department. This shall include answering fully and truthfully any questions related to their employment.
6. No employee shall, while on duty or engaged in an activity associated with the Department of Corrections, engage in verbal or physical behavior towards employees, volunteers or members of the public, which is malicious, demeaning, harassing or insulting. Such behaviors include, but are not limited to: profane, indecent or vulgar language or gestures, actions or inactions which are rude (such as ignoring a visitor who attempts to gain entrance to the building) or treating inmates in a demeaning manner with no legitimate rehabilitative justification. No employee shall exhibit behaviors which are physically or mentally abusive towards offenders.
*3897. No employee shall engage in a sale or lease of property to or from an offender, hire offenders for work or provide services or goods to offenders, except with the permission of supervisory authority. No employee shall lend money to or borrow money from an offender or accept gifts or gratuities from and give gifts or gratuities to an offender.
9. No employee, whether on or off duty, shall comport himself or herself in a manner that reflects discredit upon the Department.
10. No employee, whether on or off duty, shall violate any law or ordinance. Any conduct constituting a felony or misdemeanor can be the basis for disciplinary action whether or not prosecution or conviction results. A formal adjudication of felonious or misdemeanant behavior is not necessary before a decision to discipline is made.
13. Romantic and/or sexual relationships between employees and offenders under any type of Department control or supervision are strictly prohibited. Actions are also prohibited which, in the opinion of the appointing authority, give the appearance of an improper relationship between an employee and an offender. These include, but are not limited to: hugging, kissing, hand-holding and unofficial correspondence. Employees, while on duty, on State property or while otherwise associated with State business, shall conduct themselves in a professional manner in their interactions -with co-workers.