Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms (Respondent) and National Treasury Employees Union and NTEU Chapters (Charging Party)

 



[ 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believed that certain provisions in the contract were superseded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