Bureau of Alcohol, Tobacco and Firearms and NTEU (Authority decision, December 24, 1981)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU asked the Bureau of Alcohol, Tobacco and Firearms to bargain over contract provisions affected by the new labor statute. The agency called NTEU promptly, but the receptionist could not identify the responsible union representative, and NTEU did not follow up before filing a charge nearly six months later. The Authority found that the agency had a bargaining obligation but had neither expressly refused nor delayed so much as to amount to a refusal. It dismissed the complaint. There was no judge's decision under review; dismissal of the alleged violation controls the outcome label.

Decision snapshot

• Authority: 5 U.S.C. § 7114(b), 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(5).
• Outcome: Unfair labor practice complaint dismissed.
• Key point: One unsuccessful prompt contact did not show an unlawful refusal to bargain.

Full text (FLRA public release)

[ v07 p431 ]
07:0431(65)CA

The decision of the Authority follows:

7 FLRA NO. 65

DEPARTMENT OF THE
TREASURY, BUREAU OF
ALCOHOL, TOBACCO AND
FIREARMS

Respondent

and

NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTERS

Charging Party

Case No. 3-CA-343

DECISION AND ORDER

This matter is before the Authority pursuant to Regional Director Alexander T. Graham's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1 of the Authority's Rules and Regulations (5 CFR 2429.1).

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits and briefs submitted by the Respondent, General Counsel and Charging Party, the Authority finds:

The complaint herein alleges that the Respondent, Bureau of Alcohol, Tobacco and Firearms (ATF), violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) when it refused to bargain in good faith with the National Treasury Employees Union (NTEU).

The undisputed facts, as stipulated by the parties, are as follows:

NTEU represents a bargaining unit consisting of certain of the Respondent's employees. A collective bargaining agreement, signed on September 19, 1977, was, at all times material, in effect. By letter dated January 10, 1979, and signed by NTEU National President Vincent L. Connery, NTEU informed ATF that it believed that certain provisions in the contract were superseded by provisions in the Statute and enumerated the changes in the agreement which it contended were mandated by the operation of the Statute. Additionally, NTEU requested negotiations over the impact and implementation of the changes, and indicated a [ v7 p 431 ] desire to meet in the near future to begin negotiations over the matter. The letter was received by ATF on January 12, 1979. On or about January 15, 1979, Therese Faller, an agent of ATF, called NTEU and inquired as to the identity of the NTEU representative assigned to handle the matter. The NTEU receptionist receiving the call did not know which representative was assigned. Faller left no message and there was no further communication between the parties regarding the letter until NTEU filed an unfair labor practice charge, on July 12, 1979, alleging that ATF's lack of response to its bargaining request constituted a refusal to negotiate.

NTEU argues that ATF did not meet its obligation to negotiate in good faith under section 7114(b)(1) and (3) of the Statute. */ In this regard, NTEU asserts that the test to be applied in judging ATF's actions is whether ATF made a sincere effort and acted in a reasonable and fair-minded manner. ATF's attempt to respond, contends NTEU, did not meet this test. Rather, NTEU maintains, AFT's actions amounted to engaging in dilatory tactics and avoiding its obligation to bargain. The General Counsel argues, similarly, that ATF's lone telephone call was an ineffectual attempt at response and did not fulfill its bargaining obligation.

ATF argues that a finding of a refusal to bargain requires a showing that a fairly clear request to bargain was made and a fairly clear refusal occurred. It contends that there has been no showing that, either by an explicit statement or by its conduct, ATF refused to bargain.

The Authority has previously held that nothing in the Statute precludes parties to an agreement from mutually renewing or continuing the terms of their agreement if they so desire. However, where either party objects to such renewal or continuation, depending upon the [ v7 p 432 ] circumstances involved, either the relevant provisions of the Statute become operative or the parties must renegotiate those provisions to the extent required by the Statute. See Interpretation and Guidance, 1 FLRA 183 (1979); Interpretation and Guidance, 2 FLRA 264 (1979); Interpretation and Guidance, 2 FLRA 273 (1979).

Inasmuch as NTEU's negotiation request related to modifying provisions of the parties' agreement in the face of the changes flowing from the Statute, the Authority finds that ATF had an obligation, which it did not deny, to bargain. We find that, while NTEU in fact requested bargaining, ATF by its actions neither directly refused to bargain nor engaged in dilatory tactics of such a nature as to be tantamount to a refusal to bargain. In this regard, we note particularly ATF's telephonic attempt to contact the NTEU staff person involved in the negotiation request immediately after receipt of the request to bargain, and NTEU's inability to readily identify a responsible representative at such time. Noting further from the stipulated record that NTEU's only attempt to follow up on its request to bargain occurred with the filing of an unfair labor practice charge almost six months after the telephonic incident, we find that any delays that ensued were not strictly attributable to ATF, nor were they evidence of a refusal to bargain. Accordingly, the Authority finds that ATF's actions did not constitute an unlawful refusal to bargain.

ORDER

IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-343 be, and it hereby is, dismissed.

Issued, Washington, D.C., December 24, 1981

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote */ Section 7114(b)(1) and (3) provides:

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation --

(1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;

(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays(.)