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55 FLRA No. 39
INTERNAL REVENUE SERVICE
NORTH FLORIDA DISTRICT, TAMPA FIELD
BRANCH, TAMPA, FLORIDA
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 87 (Charging Party)
DECISION AND ORDER
February 26, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to sign or implement a Memorandum of Understanding (MOU) negotiated by the parties. The complaint further alleges that the Respondent violated the Statute by refusing to comply with and repudiating the MOU. The Judge found that the Respondent did not violate the Statute because the parties never reached a full agreement. Accordingly, the Judge recommended that the complaint be dismissed.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions. In particular, the preponderance of the evidence demonstrates that the parties did not reach agreement on a term of the MOU that both regarded as material. The Judge found that there was an on-going exchange of draft MOUs containing changes in several paragraphs of the MOU and, ultimately, that negotiations over the "signature block" paragraph of the MOU remained unresolved. Judge's Decision at 8. Consistent with Authority precedent, parties are obligated to execute, upon request, and take necessary steps to implement a written document but only after agreement is reached. See Internal Revenue Service, Philadelphia District Office, 22 FLRA 245, 255 (1986). See also International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560 (1990) ("[W]here the parties have reached [an] agreement bilaterally, the purpose of section 7114(b)(5) appears clear. Execution of a written agreement is necessary to ensure that, in fact, there is a `meeting of the minds' on the terms of the agreement."). The parties did not have a meeting of the minds with respect to the signature block paragraph of the MOU and did not reach agreement on the MOU.
In the private sector, the National Labor Relations Board applies similar standards for determining when parties reach agreement. "A meeting of the minds of the parties must occur before a labor contract is created." Bobbie Brooks, Inc. v. International Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987). "Whether a collective bargaining agreement exists is a question of fact; [the] technical rules of contract law are not strictly binding." Id. (citation omitted). The surrounding circumstances and the parties' intentions may be considered to determine if a bargaining agreement exists; however, an objective standard applies to the formation of a contract, regardless of a meeting of the minds in a subjective sense. Warehousemen's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987). We have examined the private sector cases on which the General Counsel relies. They do not persuade us to reach a different result in this case.
Finally, because we adopt the Judge's conclusion that the parties did not reach a full agreement on the MOU, we do not adopt the Judge's further determination that, consistent with the parties' national collective bargaining agreement, the MOU was subject to Agency head approval under section 7114(c) of the Statute.
In sum, we find that the Respondent did not violate the Statute. Accordingly, we dismiss the complaint. [n1]
The complaint is dismissed.
File 1: Authority's Decision in 55 FLRA No.
File 2: ALJ's Decision
Footnote # 1 for 55 FLRA No. 39 - Authority's Decision
The Judge inadvertently failed to dismiss the section 7116(a)(8) allegation although it is clear that, in finding no violation of the Statute, he intended to do so. Our Order applies to all the allegations of the complaint.