[ v13 p554 ]
13:0554(93)NG
The decision of the Authority follows:
13 FLRA No. 93
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
Agency
Case No. 0-NG-600
DECISION AND ORDER ON NEGOTIABILITY ISSUE
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning the negotiability of the following provision /1/ of an
agreement which was disapproved by the Department of the Treasury
pursuant to section 7114(c) of the Statute: /2/
Section 8
Any conflict between the terms of this agreement and a relevant
master agreement or non-government-wide regulation will be
resolved by relying on the terms of this agreement.
Question Before the Authority
The question presented is whether, as alleged by the Department of
the Treasury, the Union's proposal is inconsistent with section 7116 or
7117 of the Statute.
Opinion
Conclusion and Order: The Union's proposal is not inconsistent with
sections 7116 or 7117 of the Statute. Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
Department of the Treasury shall rescind its disapproval of the Union's
provision which was bargained on and agreed to at the bureau level. /3/
Reasons: The provision negotiated between the parties herein is
claimed to be nonnegotiable insofar as it specifies that, in the event
of a conflict between the collective bargaining agreement and existing
or future rules and regulations of the Department of the Treasury
(Treasury), the agreement would be controlling. In support of its
disapproval of the provision, Treasury makes tow arguments. First, it
contends that it has not granted authority to the Internal Revenue
Service a subordinate bureau within Treasury, to negotiate over this
matter. /4/ Secondly, Treasury contends that the provision is
inconsistent with section 7117(a)(1) and (2) of the Statute /5/ because
it would preclude finding that a compelling need exists for any future
Treasury regulations. /6/
As to the first argument, even assuming, as Treasury states, that it
has retained the authority to negotiate over matters encompassed within
the provision at the Departmental level, the argument does not relate to
the bases for finding that a proposal is not within the duty to bargain
under section 7117 of the Statute, i.e., inconsistency with Federal law,
Government-wide rule or regulation, or agency regulation for which a
compelling need exists. Rather, under section 7114(b)(2) of the
Statute, the duty of an agency to negotiate in good faith includes the
obligation "to be represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on any condition of
employment." Thus, the Statute clearly requires the parties to provide
representatives who are empowered to negotiate and enter into agreements
on all matters within the scope of negotiations in the bargaining unit.
Accordingly, the Agency's contention to the contrary cannot be
sustained. American Federation of Government Employees, AFL-CIO, Local
3656 and Federal Trade Commission, Boston Regional Office,
Massachusetts, 4 FLRA 702 (1980).
As to Treasury's argument that the provision is inconsistent with
section 7117, it is settled that once a collective bargaining agreement
becomes effective, subsequently issued rules or regulations, with the
exception of Government-wide rules or regulations issued under 5 U.S.C.
2302 (relating to prohibited personnel practices), cannot nullify the
terms of such a collective bargaining agreement. National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 9
FLRA No. 138 (1983) (Article 2, sections 1A and B, Article 32, section
10A, and Article 40, section 3), appeal docketed as to other matters sub
nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
82-2225 (D.C. Cir. Oct. 14, 1982). With respect to agency regulations
prescribed before the effective date of the collective bargaining
agreement, under section 7117(a)(2) of the Statute and section 2424.11
of the Authority's Rules and Regulations, the agency has the burden of
coming forward with affirmative support for assertions that its
regulations bar negotiations on conflicting proposals because there is a
"compelling need" for the regulations. /7/ In the present case,
Treasury disapproved this contract provision without having even claimed
at any time during the course of negotiations or during review by the
agency head of the negotiated agreement that a conflict exists between
any Treasury regulation and any union proposal or any term of the
agreement as negotiated. Thus, it has made no showing whatsoever to
support a finding by the Authority that the provision is outside the
duty to bargain under section 7117 of the Statute. See Association of
Civilian Technicians, Inc., Pennsylvania State Council and The Adjutant
General, Department of Military Affairs, Commonwealth of Pennsylvania, 7
FLRA No. 52 (1981) (Provisions 2, 3, and 5).
Based upon the foregoing, it is concluded that the provision is
within the duty to bargain and the Treasury Department's disapproval
thereof must be rescinded.
Issued, Washington, D.C., December 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its response to the Agency's Statement of Position, the Union
withdrew its petition for review as to eight other provisions concerning
performance appraisal matters. Union Reply Brief at 1.
/2/ Contrary to the Union's assertions, the agreement was properly
disapproved within the meaning of section 7114(c) by "the head of the
agency" or his designee, in this case, the Acting Director of Personnel,
Department of the Treasury. See 5 U.S.C. 101, 105; National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 9
FLRA No. 138 (1983), appeal docketed as to other matters sub nom.
Department of the Treasury, U.S. Customs Service v. FLRA, No. 82-2225
(D.C. Cir. Oct. 14, 1982).
/3/ In deciding that the provision is within the duty to bargain, the
Authority makes no judgment as to its merits.
/4/ Agency Statement of Position at 25.
/5/ Section 7117(a) provides in relevant part:
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 only if
the rule or regulation is not a Government-wide rule or
regulation.
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
/6/ Agency Statement of Position at 25-26.
/7/ See American Federation of Government Employees, AFL-CIO, Local
1928 and Department of the Navy, Naval Air Development Center,
Warminster, Pennsylvania, 2 FLRA 450 (1980); 5 U.S.C. 7117(a); 5 CFR
2424.11 (1983).