The opinion
BUTZNER, Senior Circuit Judge,
concurring in part and dissenting in part:
I concur in parts I — III of the court’s opinion. I respectfully dissent from part TV which denies enforcement of the provision pertaining to sexual harassment.
At issue in part IV is whether 5 U.S.C. § 7103 (a)(14)(C) in conjunction with 42 U.S.C. § 2000e-16 prohibits the Immigration and Naturalization Service and the American Federation of Government Employees AFL-CIO from providing in their collective bargaining agreement the following provision:
The employer may be responsible for its acts and those of its managers and supervisors with respect to sexual harassment regardless of whether the specific acts complained of were known or should have been known by the employer, unless it can be shown that the employer took immediate and appropriate corrective action.
The INS and the union agreed to this provision. The Department of Justice, exercising its oversight of the INS, objected. After the Federal Labor Relations Authority held that the provision was a proper subject of bargaining, the Department of Justice petitioned for review.
Section 7102(2) authorizes representatives of an agency’s employees to engage in collective. bargaining with an agency “with respect to conditions of employment.” Section 7103(a)(14)(C) excludes from the definition of “conditions of employment” matters “to the extent such matters are specifically provided for by Federal Statute.”
Title 42 U.S.C. § 2000e-16 prohibits a federal agency from discriminating against its employees because of their sex. This section also sets forth procedures for resolving and remedying grievances alleging sexual discrimination. It does not explain the circumstances under which the agency could become responsible for sexual harassment by the agency’s managers or supervisors.
Section 7103(a)(14)(C) is based on the common sense proposition that to the extent that Congress has enacted legislation specifically dealing with a subject, an agency and its employees cannot vary the legislation by bargaining. The question arises, however, whether it is lawful for the parties to bargain over issues that Congress has not specifically addressed. The FLRA has consistently adhered to principles that respond to this question:
We reject any interpretation of section 7103(a)(14)(C) which would hold that reference to a particular matter in a statute is sufficient to except that matter from the definition of conditions of employment. Rather, where a statute specifically provides for or establishes a particular aspect of a matter, that aspect of the matter is not included within the conditions of employment about which an agency is obligated to bargain. ’
*275 American Federal of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 F.L.R.A. 1023 , 1060-61 (1988) (citing cases).
This precedent, well established by the FLRA, is applicable to this case. Section 7103(a)(14)(C). precludes an agency and its employees- from bargaining over whether discrimination on the basis of sex is permissible and over the procedural mandates of 42 U.S.C. § 2000e-16. But § 2000e-16 does not address the possible consequences to the agency of sexual harassment by its supervisors and managers. The FLRA’s precedent establishes that § 7103(a)(14)(C) does not prohibit the parties from bargaining over this issue.
This conclusion is not the end of the matter. The sexual harassment provision must pass a second test — conformity with the law. The parties cannot insert an illegal provision into their agreement.
Although § 2000e-16 does not mention sexual harassment, the proposed provision of the bargaining agreement conforms to the proper interpretation of the statute. It is now settled that discrimination on the basis of sex includes sexual harassment that creates a hostile or abusive work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-68, 106 S.Ct. 2399, 2403-06 , 91 L.Ed.2d 49 (1986). The Department of Justice appears to have acquiesced in the proposed provision to this extent.
In stipulating the circumstances under which the INS may be responsible for its managers’ and supervisors’ sexual harassment, the proposed provision conforms to law. The Supreme Court dealt with this issue in Meritor where it said:
We therefore decline the parties’ invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress’ decision to define “employer” to include any “agent” of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.
Meritor, 477 U.S. at 72 , 106 S.Ct. at 2408 . The proposed provision faithfully tracks Mer-itor.
There is no cause for the Department of Justice’s apprehension that the proposed provision might infringe the sovereign immunity of the United States. Section '2000e-16(d) incorporates the provisions of § 2000e-5(f) through (k). The incorporated sections provide. for judicial enforcement through appropriate remedies, including monetary awards assessable against the employer. See also 42 U.S.C. § 1981a(a)(l) (damages for intentional discrimination violating § 2000e-16). The proposed provision in no way modifies the statutory waiver of sovereign immunity.
Finally, Article 2.A of the bargaining agreement states:
In the administration of all matters covered by this Agreement, the parties are governed by existing or future laws; and government wide rules or regulations in effect upon the effective date of this Agreement. In the administration of this Agreement, should any conflict arise between the terms of the Agreement and any present or future laws, provisions of such laws shall supersede conflicting provisions of this agreement.
Article 2.A gives unequivocal assurance that the proposed provision on sexual harassment must comply with pertinent laws and regulations.
Dissenting, I would overrule the Department of Justice’s objections to the sexual harassment provision and direct enforcement in accordance with the bargaining contract on which the INS and the union have reached agreement.