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| When the parties to a contract negotiate its terms, either in midterm or term negotiations, the head of the respective agency has the right to review the final document. Pursuant to
5 U.S.C. § 7114 (c), the head of an agency subjects a term contract to legal analysis to determine whether any of the negotiated provisions are contrary to law, rule or regulation. In the case of the Internal Revenue Service (IRS), the Department of Treasury conducts the agency head review. On April 29, 2005, NTEU received Treasury's memorandum regarding the results of its agency head review, in which it indicated its disapproval of 21 provisions as nonnegotiable.
As you know, the IRS and NTEU completed midterm negotiations in February 2005, on the ten open articles. Two articles (RIF and LMRC) remain in dispute. While that dispute will be settled in the coming months at the Federal Service Impasses Panel, the parties agreed to implement the remaining eight undisputed articles and the IRS therefore submitted those eight articles to Treasury for approval. Treasury had 30 days to review those provisions and determine whether, in its judgment, any of the negotiated provisions violate law, rule or regulation. By memorandum dated April 29, 2005, Treasury notified the IRS that it was disapproving 21 of the negotiated provisions because they "do not conform to law, rule, and/or regulation." I have attached a copy of Treasury's disapproval memorandum for your reference. You will notice in the memorandum that Treasury simply enumerates a list of provisions that it has disapproved as violative of law, rule and/or regulation. Treasury offers absolutely no reason for its conclusion that the specific provisions are nonnegotiable. Many of the disapproved sections contain multiple provisions, and it is so far impossible to determine which language of each section that Treasury has determined is objectionable. Once we begin the process to resolve the dispute, NTEU will certainly learn more about the specific allegations of nonnegotiability, and I will keep you informed. In the ground rules for the midterm negotiations, the parties agreed that any proposals that Treasury declared nonnegotiable would not delay the effective date of the remaining provisions. Accordingly, the remainder of the agreement (the eight articles not in dispute) will become effective. Below is a list of provisions of the new contract that Treasury disapproved. I have also briefly summarized the provisions of each section: · Article 12, Section 4B.5: Allows employees to prepare a self-assessment during the final 30 days of annual appraisal period; · Article 12, Section 4L: Requires changes in working procedures to be communicated to employees before they can be charged with errors; · Article 12, Section 6A: Employees will not be held accountable or responsible for critical job elements and standards until they are received by the employees; · Article 12, Section 23-5: Employees must be working on measured work for more than sixty (60) days before they can be given a measured evaluation; · Article 13, Section 1E: IRS will provide copies of any validation studies relating to any OPM-established positive education requirement at least 60 days before it is used in a vacancy announcement; · Article 13, Section 2A2: Competitive procedures will apply when filling by reassignment, transfer, reinstatement, or demotion to a position with a higher graded full performance level than any position permanently held by the applicant; · Article 13, Section 2B2: Competitive procedures will not apply to promotions to positions which have been upgraded without significant change in duties and responsibilities on the basis of either the issuance of a new classification standard or the correction of a classification error; · Article 13, Section 2B3: Competitive procedures will not apply to repromotion to grades or positions from which an employee was demoted within the Service without personal cause, i.e., without misconduct or inefficiency on the part of the employee and not at the employee's request; · Article 13, Section 2B9: Competitive procedures will not apply to filling positions by reinstatement or transfer except as set forth in subsection 2A2; · Article 13, Section 2B13: Competitive procedures will not apply to the filling of bargaining unit positions with non-bargaining unit employees, but only after bargaining unit employees are first considered through the Article 13 competitive procedures for the vacant position; · Article 13, Section 2D.5: Before using competitive procedures, employees granted priority consideration and with reassignment preference pursuant to Article 19 will be considered concurrently. Where an employee has priority consideration for the same vacancy as the Reassignment Preference candidate, the selecting official will meet with the local chapter president before the final selection is made to see if there would be a way to satisfy both candidates with selection, e.g., move the RP candidate into the job vacated by the priority consideration candidate. If not, the reassignment preference candidate will be selected; · Article 13, Section 4A9: Outlines application process; · Article 13, Section 5.C.1(e): In ranking applicants, one point (up to a maximum of three points) will be added for a performance award in accordance with the Joint Performance Award Agreement, and for each Quality Step Increase (QSI), or performance-related monetary Special Act Award (except Manager's Awards) approved in the last three years; · Article 13, Section 5D: Alternative to filling vacancies above the journey level, if all eligible candidates are currently in the same series as the position to be filled, the Employer will multiply the average critical job element rating from the employee's appraisal by ten (10). This score plus the performance-related award points will be used to establish the BQ list in rank order; · Article 13, Section 5E3: In filling GS-8 and below positions, process to award ranking points for incentive awards; · Article 13, Section 6F: Top four applicants plus one to be on BQ list. Up to ten applicants may be certified if fewer would result in the exclusion of an equally qualified candidate; · Article 13, Section 7A1 and 7A4: Promotion certificates to include name of all BQ applicants and management official or ranking panel members who evaluated the applicants; · Article 13, Section 7B1: Union official to be sent a copy of the promotion certificate previously given to the selecting official and identifying the selected applicant(s); · Article 13, Section 9D: Any non-selected BQ candidate to receive counseling, if requested; · Article 18, Section 3D: Employee to receive 25% of the first year's savings from any suggested improvement in work processes and working conditions submitted pursuant to Parties' 2001 Suggestion Program Memorandum of Understanding; and · Article 41, Appendix II, Item #10: Permits aggrieved employee the option of remaining in the statutory formal EEO process, having the complaint heard by an arbitrator or filing a grievance. I would like to remind you that while Treasury's sweeping disapproval of various agreed-to provisions is disappointing, it is not new. As you may recall, Treasury disapproved a large number of provisions when the parties negotiated the National Agreement in 2002. NTEU and the IRS worked through those disapproval actions and will do the same this time. NTEU has the option to reopen negotiations, make a minor wording adjustment to avoid the dispute, or file a petition with the Federal Labor Relations Authority (Authority) to challenge Treasury's legal conclusions. NTEU is currently weighing these options and will likely take a multi-prong approach, meaning file a petition with the Authority to preserve our legal rights and also reopen negotiations with the IRS to resolve what may be minor word adjustments. Colleen M. Kelley National President |
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