Department of Health and Human Services, Health Care Financing Administration and American Federation of Government Employees, Local 1923 (Authority decision, February 27, 1992)

Final FLRA decision. This is a final order denying reconsideration in an unfair labor practice case. 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

The Authority had found that the Health Care Financing Administration violated the federal labor statute by imposing a smoking ban while a dispute with the union was pending, and had ordered some designated smoking areas restored. A federal appeals court enforced that order, and the Authority had already denied one reconsideration request. The agency sought reconsideration again, citing new evidence about exposure to tobacco smoke and asking to remove the restoration requirement or hold the case for bargaining. The Authority found no extraordinary circumstances that justified reopening its decision. It denied the motion, leaving the earlier order in place.

Decision snapshot

• Authority: Reconsideration standard under 5 C.F.R. § 2429.17.
• Outcome: Second motion for reconsideration denied; prior unfair labor practice order unchanged.
• Key point: The agency's new evidence about tobacco smoke did not meet the extraordinary circumstances standard for reconsideration.

Full text (FLRA public release)

[ v44 p145 ]
44:0145(13)CA

The decision of the Authority follows:

44 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCING ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1923, AFL-CIO

(Charging Party/Union)

3-CA-80303

39 FLRA 120 (1991)

40 FLRA 40 (1991)

ORDER DENYING MOTION FOR RECONSIDERATION

February 27, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on Respondent's motion for reconsideration of our decision in 39 FLRA 120, request for reconsideration denied, 40 FLRA 40, enforced Nos. 91-1068, 91-1120 (4th Cir. Dec. 26, 1991). Neither the General Counsel nor the Union filed an opposition to the motion.

We conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the motion.

II. The Decision and Order in 39 FLRA 120 and the Order in 40 FLRA 40

In 39 FLRA 120, the Authority concluded that the Respondent violated section 7116(a)(1), (5), (6), and (7) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a ban on smoking in certain buildings, in reliance on a regulation issued subsequent to the parties' execution of an agreement on the issue, while a dispute on the matter was pending before the Federal Service Impasses Panel. Among other things, the Authority directed the Respondent to reestablish certain designated smoking areas. In 40 FLRA 40, the Authority denied the Respondent's motion for reconsideration and stay of the decision in 39 FLRA 120. As noted previously, the Authority's Decision and Order in 39 FLRA 120 was enforced by the U.S. Court of Appeals for the Fourth Circuit.

III. Motion for Reconsideration

The Respondent contends that reconsideration of the Authority's decision in 39 FLRA 120 is warranted by new evidence concerning the consequences of exposure to tobacco smoke. The Respondent requests the Authority either to vacate the order in 39 FLRA 120 or to amend the order to delete the requirement that the Respondent reestablish designated smoking areas. In the alternative, the Respondent requests the Authority to hold this case in abeyance "to allow the parties to resolve the issue through collective bargaining[.]" Motion at 2. The Respondent also requests the Authority to hold a hearing on the motion, including oral argument and evidentiary presentations.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of a decision of the Authority. The Respondent has not established extraordinary circumstances in this case which would warrant reconsideration of the Authority's decision in 39 FLRA 120, as enforced by the U.S. Court of Appeals for the Fourth Circuit, and the Authority's denial of its previous request for reconsideration in 40 FLRA 40. Consequently, the motion for reconsideration will be denied.

V. Order

Respondents' motion for reconsideration of the Authority's Decision and Order in 39 FLRA 120, request for reconsideration denied, 40 FLRA 40, is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)