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 18 FLRA No. 83
 
 DEPARTMENT OF TREASURY 
 INTERNAL REVENUE SERVICE 
 ATLANTA SERVICE CENTER 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 4-CA-589
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts and the contentions of the parties, the Authority finds:
 
    The National Treasury Employees Union (the Union) is the exclusive
 representative of the professional and nonprofessional employees in the
 Department of Treasury, Internal Revenue Service, Atlanta Service Center
 (the Respondent).  On or about August 14, 1979, the Respondent informed
 the Union that it planned to institute a carpool program.  The Union
 requested bargaining on the impact and implementation of the carpool
 program and submitted five proposals to the Respondent.  The Respondent
 advised the Union that all of the proposals were nonnegotiable.  The
 Union informed the Respondent that it intended to, and it did, file a
 negotiability appeal with the Authority.  /1/ The carpool program was
 implemented by the Respondent on August 25, 1980.
 
    The sole allegation in the complaint is that the Respondent violated
 section 7116(a)(1) and (5) of the Statute /2/ by implementing a carpool
 program notwithstanding the Union's pending negotiability appeal.
 
    It is well established under the Statute that an agency may not
 unilaterally change established conditions of employment of unit
 employees where the change as here, is within the duty to bargain,
 without first notifying the exclusive representative of the change and
 affording it an opportunity to bargain concerning the decision to
 effectuate the change.  /3/ An agency acts at its peril whenever it
 unilaterally changes established conditions of employment without first
 affording the exclusive representative notice of the proposed change and
 an opportunity to request bargaining.  Thus, if an agency changes
 conditions of employment without affording the Union the opportunity to
 bargain and it is subsequently determined that the agency should have
 negotiated over the proposed change, the agency's failure to do so is a
 violation of section 7116(a)(1) and (5) of the Statute.  /4/ Conversely,
 if it is subsequently determined that the agency had no duty to bargain
 over the change, the agency's failure to have done so before making the
 change is not a violation of the Statute.  /5/
 
    The complaint in the instant case does not allege that the Respondent
 violated the Statute by failing to bargain on a negotiable matter before
 implementation of the carpool program;  rather, the sole allegation is
 that the Respondent violated section 7116(a)(1) and (5) of the Statute
 by implementing the change in the face of the Union's pending
 negotiability appeal.  Thus, the Charging Party asserts that the
 Respondent's unilateral implementation of a change prior to the
 resolution of a pending negotiability appeal concerning the subject
 matter of the change and irrespective of how the negotiability dispute
 is subsequently resolved constitutes a violation of the Statute.
 
    The Authority finds no merit in this position.  Indeed, to find a
 violation in these circumstances could lead to the incongruous result
 that an agency could be found in violation of the Statute while a
 union's negotiability appeal on the matter is pending, but could
 subsequently be found not to have violated the Statute if the matter at
 issue is later found nonnegotiable.  Thus, the Authority finds that the
 implementation of changes affecting unit employees during the pendency
 of a negotiability appeal does not in and of itself constitute a
 violation of section 7116(a)(1) and (5) of the Statute.  Moreover, the
 Authority finds that this determination furthers the purposes of the
 Statute, as it would allow management to take action while still
 providing the Union with a complete statutory remedy if it is
 subsequently determined that management had a duty to bargain over the
 decision to make the changes before doing so.  /6/
 
    The Authority notes that if the complaint in this case had alleged
 that the Respondent violated the Statute by unilaterally changing a
 condition of employment without bargaining on a negotiable matter, a
 violation would have been warranted as to the one proposal found
 negotiable by the Authority.  /7/ However, inasmuch as the complaint is
 restricted to the allegation that the Respondent violated the Statute by
 implementing the carpool program during the pendency of the Union's
 negotiability appeal without regard to whether the matter was determined
 to be negotiable, the Authority concludes that the complaint must be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-589 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 21, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 

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