13:0554(93)NG - NTEU and Treasury, IRS -- 1983 FLRAdec NG
[ v13 p554 ]
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).