13:0554(93)NG - NTEU and Treasury, IRS -- 1983 FLRAdec NG

[ v13 p554 ]
The decision of the Authority follows:

 13 FLRA No. 93
                                            Case No. 0-NG-600
    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.
    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. Cust