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

 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).