18:0466(61)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms and NTEU -- 1985 FLRAdec CA



[ v18 p466 ]
18:0466(61)CA
The decision of the Authority follows:


 18 FLRA No. 61
 
 DEPARTMENT OF THE TREASURY 
 BUREAU OF ALCOHOL, TOBACCO 
 AND FIREARMS 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 3-CA-2643
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Authority" in accordance with
 section 2429.1(a) of the Authority's Rules and Regulations.  Upon
 consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits and the contentions of the
 parties, the Authority finds:
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (6) of the Federal Service Labor-Management
 Relations Statute (the Statute) /1/ by implementing an Explosive Safety
 Order (the Order) while issues related thereto were pending before the
 Federal Service Impasses Panel (the Panel).  This conduct is alleged to
 have resulted in a failure to cooperate in impasse procedures, as set
 forth in the Statute, as well as a refusal to bargain in good faith with
 the National Treasury Employees Union (the Union).  The Respondent
 argues essentially that no bargaining obligation existed as to the
 matters proposed to be bargained by the Union because the Order did not
 change existing conditions of employment but was merely a reaffirmation,
 in writing, of existing conditions of employment as embodied primarily
 in the parties' collective bargaining agreement, and also because the
 matters proposed to be bargained did not relate to the provisions of the
 Order as set forth by the Respondent.
 
    The record indicates that the Union represents a unit of various
 nonprofessional General Schedule and Wage Grade employees of the
 Respondent's regional offices.  On April 15, 1980, the Respondent
 forwarded a copy of the proposed explosives safety policy to the Union,
 which contained, among other things, provisions relating to training,
 the establishment of an Explosives Safety Committee, and the furnishing
 of protective clothing and equipment to employees.  The Union thereafter
 requested negotiations on the policy and submitted a number of
 bargaining proposals.  During the course of negotiations, the Union
 sought the assistance of the Federal Mediation and Conciliation Service.
  After an unsuccessful attempt at mediation, the parties reached impasse
 over several issues.  Specifically, the parties were unable to reach
 agreement on the Union's proposals relating to the Order's statement of
 purpose, training, safety inspections, and a proposal to include the
 provisions of the Order under the negotiated grievance procedure.  On or
 about January 6, 1981, the Union invoked the services of the Panel by
 requesting it to assert jurisdiction over the unresolved bargaining
 issues.  On July 14, 1981, following a factfinding hearing, the Panel
 issued its Decision and Order (Case No. 81 FSIP 38) declining to assert
 jurisdiction over the proposals relating to the purpose of the Order,
 training, and safety inspections pending resolution of an underlying
 question concerning the Respondent's duty to bargain, and further
 directing the parties to adopt the Union's proposal concerning the
 inclusion of the Order within the scope of the negotiated grievance
 procedure.  During the Panel's factfinding process, the Respondent
 indicated, and the Union learned, that the Order had been implemented on
 or about February 4, 1981.
 
    The Authority has previously held, as applicable herein, that the
 duty to bargain under the Statute requires that a party meet its
 obligation to negotiate prior to making changes in established
 conditions of employment, absent a clear and unmistakable waiver of that
 bargaining right.  /2/ Where the parties have bargained in good faith
 and reached an impasse in their negotiations, the Statute provides, in
 section 7119, /3/ that either party may request the Federal Service
 Impasses Panel to consider the matter.  The Statute further provides in
 section 7135(b), /4/ as relevant herein, that decisions issued under
 Executive Order 11491, as amended, remain in full force and effect
 unless revised pursuant to the provisions of the Statute.  In this
 connection, a policy existed under the Executive Order that where
 parties reached an impasse in their negotiations and one or both of the
 parties timely invoked the services of the Panel, the parties were
 required to adhere to established personnel policies and practices and
 matters affecting working conditions to the maximum extent possible,
 i.e., to the extent consistent with the necessary functioning of the
 agency, in order to permit the Panel to take whatever action was deemed
 appropriate.  /5/ Neither the Statute nor its legislative history
 suggests that a different result should be reached under the Statute.
 Rather, the Authority finds that by requiring the parties to maintain
 the status quo to the maximum extent possible after an impasse in
 negotiations has been reached and the services of the Panel have been
 invoked in a timely manner, /6/ the purposes and policies of the Statute
 will be effectuated by permitting the parties an opportunity to utilize
 the impasse resolution procedures of the Statute, thereby fostering
 stability in Federal labor-management relations.  It should be
 emphasized that the foregoing policy requiring maintenance of the status
 quo to the maximum extent possible once the Panel's processes have been
 timely invoked would not preclude agency management from taking action
 which alters the status quo to the extent that such action is consistent
 with the necessary functioning of the Agency.  /7/ Thus, such policy
 also is consistent with and furthers the intent of Congress set forth in
 section 7101(b) of the Statute that the provisions of the Statute "be
 interpreted in a manner consistent with the requirement of an effective
 and efficient Government." To repeat, then, the Authority finds that
 once parties have reached an impasse in their negotiations and one party
 timely invokes the services of the Panel, the status quo must be
 maintained to the maximum extent possible, i.e., to the extent
 consistent with the necessary functioning of the agency, in order to
 allow the Panel to take whatever action is deemed appropriate.  A
 failure or refusal to maintain the status quo during such time would,
 except as noted above, constitute a violation of section 7116(a)(1), (5)
 and (6) of the Statute.
 
    In the instant case, as noted above, the Respondent took what is
 essentially a threshold position that no bargaining obligation existed
 on the proposed matters inasmuch as the Order did not change existing
 conditions of employment or because the proposals were unrelated to the
 provisions of the Order itself.  With regard to the Union's proposals
 related to training and safety inspections, the Respondent argued that
 such matters were covered by provisions of the parties' negotiated
 agreement or other agency orders and that the Order did not reflect any
 change in existing agency police.  The record indicates that no
 arguments were made by the General Counsel to refute this assertion.
 Therefore, in the Authority's view, the General Counsel has failed to
 establish that the provisions of the Order altered the existing practice
 regarding training and safety inspections so as to give rise to a duty
 to bargain in the first instance.  /8/ Accordingly, the Authority finds
 that the Respondent was not obligated to bargain over such matters and
 its implementation of these provisions of the Order while a dispute
 concerning the proposals related thereto was pending before the Panel
 cannot be held to have violated the Statute.
 
    The Authority turns next to the two remaining proposals, those
 concerning the Order's statement of purpose and the inclusion of the
 Order within the scope of the negotiated grievance procedure.  For the
 following reasons, the Authority finds that both proposals were within
 the required scope of bargaining.
 
    First, with respect to the statement of purpose, the record indicates
 that the Order, as set forth by the Respondent, contained the following
 statement:  "This order establishes the explosives safety policy for the
 Bureau of Alcohol, Tobacco and Firearms." The Union then proposed the
 following language:
 
          PURPOSE.  This order establishes the explosives safety police
       for the Bureau of Alcohol, Tobacco and Firearms (ATF).  The
       provisions of this order have been negotiated with the National
       Treasury Employees Union (NTEU) pursuant to the requirements of 5
       U.S.C. 7101, et seq.  The ATF and NTEU agree that this order will
       be applied to bargaining unit employees in a fair and equitable
       manner so as to achieve the goals of the ATF to conduct explosives
       inspections safely and efficiently.
 
 In the Authority's view, nothing contained in the proposal is
 inconsistent with the Statute so as to remove it from the required scope
 of bargaining.  First, the proposal simply references the same statement
 of purpose as contained in the Respondent's Order.  Second, the proposal
 indicates that the provisions of the Order have been negotiated with the
 Union pursuant to the requirements of 5 U.S.C. 7101 et seq., of the
 Statute.  This statement appears to be an accurate reflection of the
 bargaining which has occurred pursuant to the provisions of the Statute.
  The record indicates in this connection that the parties did in fact
 negotiate over various provisions of the Order so that the statement
 merely serves to emphasize that some bargaining has occurred.  Moreover,
 the statement would not require bargaining of any sort and, to the
 extent that bargaining would not be authorized under the Statute, as in
 the case of the proposals related to training and safety inspections,
 the statement does not suggest that bargaining has taken place.
 Finally, the third sentence of the Union's proposal would establish a
 fair and equitable standard concerning the application of the Order to
 bargaining unit employees.  The Authority has previously found the use
 of this standard in various contexts to be within the duty to bargain.
 /9/ As there has been no showing here that the application of such a
 standard would conflict with the exercise of a management right or for
 any other reason be outside the required scope of bargaining, the
 Authority finds that this portion of the proposal was also within the
 Respondent's duty to bargain.
 
    Similarly, the Authority finds the proposal concerning the inclusion
 of the Order within the scope of the negotiated grievance procedure to
 be within the duty to bargain.  In this connection, it has previously
 been held that the scope of the statutorily defined grievance procedure
 is a mandatory subject of bargaining.  /10/
 
    Based on the above, the Authority finds that unlike the proposals
 relating to training and safety inspections concerning which there
 existed no duty to bargain, the Respondent was obligated to bargain in
 good faith with the Union with regard to these other matters to the
 point of impasse and, following the invocation of the Panel's services
 by the Union, to maintain the status quo to the maximum extent possible.
  In this connection, the Respondent has not demonstrated, and it does
 not otherwise appear, that implementation of the Order was required
 consistent with the necessary functioning of the agency.  In the absence
 of any such showing, the Authority finds that the failure of the
 Respondent to maintain the status quo by unilaterally implementing
 provisions of the Order while a negotiation dispute with respect to such
 provisions was pending before the Panel, constituted a violation of
 section 7116(a)(1), (5) and (6) of the Statute.  Specifically, with
 regard to the finding of a violation of section 7116(a)(5) of the
 Statute, the Authority notes that the impasse resolution procedures of
 the Panel comprise one aspect of the collective bargaining process.
 /11/ By failing to maintain the status quo while matters were pending
 before the Panel, the Respondent therefore acted in derogation of its
 bargaining obligation.  Additionally, and more particularly with regard
 to the finding of a violation of section 7116(a)(6) of the Statute, the
 Authority finds that the Respondent's implementation of the Order
 essentially constituted a failure to allow the Panel to take appropriate
 action with respect to the unresolved bargaining issues and therefore
 constituted a failure to cooperate with impasse procedures as required
 by the Statute.
 
    To remedy the Respondent's unlawful conduct, the Union requested that
 the Authority issue a status quo ante remedy which would require the
 Respondent to rescind the Order and bargain with the Union.  In the
 Authority's view, such a remedy is not appropriate in the circumstances
 of this case insofar as the Respondent was not obligated to bargain over
 various provisions of the Order and its implementation of such
 provisions was not violative of the Statute.  Rather, the Authority
 finds that it will effectuate the purposes and policies of the Statute
 to order that the Respondent bargain over the Union's proposal relating
 to the purpose of the Explosive Safety Order, to the extent that such
 proposal is consonant with law, rule and regulation, and to incorporate
 any agreed-upon provision in the terms of the Order.  As to the
 inclusion of the Order in the scope of the negotiated grievance
 procedure, the Respondent indicated, without contradiction in the
 record, that the parties have already adopted the Union's proposal, as
 directed by the Panel in its Decision and Order.  On this basis, the
 Authority finds that no bargaining order is required with respect to
 this matter.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Department of the Treasury, Bureau of
 Alcohol, Tobacco and Firearms shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally implementing provisions of the Explosive Safety
 Order while negotiations over such provisions are pending before the
 Federal Service Impasse Panel.
 
    (b) Failing or refusing to cooperate in impasse procedures as
 required by the Federal Service Labor-Management Relations Statute.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request of the National Treasury Employees Union, bargain
 concerning the proposal relating to the purpose of the Explosive Safety
 Order and incorporate any agreed-upon provision in the terms of the
 Explosive Safety Order.
 
    (b) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the head of the Bureau of Alcohol,
 Tobacco and Firearms, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including bulletin boards and other places where notices to employees
 are customarily posted.  Reasonable steps shall be taken to insure that
 such Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, in writing,
 within 30 days from the date of this Order, as to what steps have been
 taken to comply herewith.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 3-CA-2643
 insofar as it alleges any other violations of the Statute be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 19, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally implement provisions of the Explosive Safety
 Order while negotiations over such provisions are pending before the
 Federal Service Impasses Panel.
 
    WE WILL NOT fail or refuse to cooperate in impasse procedures as
 required by the Federal Service Labor-Management Relations Statute.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request of the National Treasury Employees Union,
 bargain concerning the proposal relating to the purpose of the Explosive
 Safety Order and incorporate any agreed-upon provision in the terms of
 the Explosive Safety Order.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director for the Federal Labor Relations Authority whose address is:
 P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number
 is:  (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (6) of the Statute provides as
 follows:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
          (6) to fail or refuse to cooperate in impasse procedures and
       impasse decisions as required by this chapter(.)
 
 
    /2/ See United States Department of Defense, Department of the Air
 Force, Oklahoma City Air Logistics Center, Tinker Air Force Base,
 Oklahoma, 8 FLRA 740 (1982) and Department of the Air Force, Scott Air
 Force Base, Illinois, 5 FLRA 9 (1981).
 
 
    /3/ Section 7119 of the Statute provides, in relevant part, as
 follows:
 
          Sec. 7119. Negotiation impasses;  Federal Service Impasses
       Panel
 
                                  * * * *
 
          (b) If voluntary arrangements, including the services of the
       Federal Mediation and Conciliation Service or any other
       third-party mediation, fail to resolve a negotiation impasse--
 
          (1) either party may request the Federal Service Impasses Panel
       to consider the matter(.)
 
 
    /4/ Section 7135(b) provides:
 
          Sec. 7135.  Continuation of existing laws, recognitions,
       agreements, and procedures
 
          (b) Policies, regulations, and procedures established under and
       decisions issued under Executive Orders 11491, 11616, 11636,
       11787, and 11838, or under any other Executive Order, as in effect
       on the effective date of this chapter, shall remain in full force
       and effect until revised or revoked by the President, or unless
       superseded by specific provisions of this chapter or by
       regulations or decisions issued pursuant to this chapter.
 
 
    /5/ See Internal Revenue Service, Ogden Service Center et al., 6 FLRC
 310, 320-322 (1978) and Warner Robins Air Logistics Center, Robins Air
 Force Base, Georgia, 6 FLRC 414, 417-418 (1978).
 
 
    /6/ Cf. U.S. Air Force, Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio, 5 FLRA 288 (1981);  U.S. Customs Service, 16 FLRA
 No. 31 (1984);  and Department of Health and Human Services, Social
 Security Administration, Baltimore, Maryland, 16 FLRA No. 32 (1984),
 wherein the Authority addressed the requirement that agency management
 provide an exclusive representative with sufficient notice of an
 intention to implement after an impasse has been reached in negotiations
 to enable the exclusive representative to invoke the services of the
 Panel.
 
 
    /7/ Of course, if subsequently contested in an unfair labor practice
 proceeding, an agency taking such action would be required to come
 forward with affirmative support for the assertion that the action taken
 was consistent with the necessary functioning of the agency.
 
 
    /8/ See Department of the Navy, Mare Island Naval Shipyard, Vallejo,
 California, 9 FLRA 784 (1982);  Naval Amphibious Base, Little Creek,
 Norfolk, Virginia, 9 FLRA 774 (1982);  and Department of the Treasury,
 Internal Revenue Service, Cleveland, Ohio, 3 FLRA 656 (1980), wherein
 the Authority dismissed complaints where alleged changes in existing
 conditions of employment had not been established.
 
 
    /9/ See International Federation of Professional and Technical
 Engineers, Local 4, AFL-CIO, and Department of the Navy, Portsmouth
 Naval Shipyard, Portsmouth, New Hampshire, 15 FLRA No. 153 (1984) and
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980)
 (Union Proposal 5).
 
 
    /10/ See Vermont Air National Guard, Burlington, Vermont,