38:0867(72)CA - - HHS, Public Health Service, Indian Health Service, Indian Hospital, Rapid City, SD and NFFE Local 179 - - 1990 FLRAdec CA - - v38 p867



[ v38 p867 ]
38:0867(72)CA
The decision of the Authority follows:


38 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

INDIAN HEALTH SERVICE, INDIAN HOSPITAL

RAPID CITY, SOUTH DAKOTA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 179

(Charging Party)

7-CA-70812(2)

(37 FLRA 972)

ORDER DENYING REQUEST FOR RECONSIDERATION

AND REQUEST FOR STAY

December 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Respondent's request for reconsideration of the Authority's decision in 37 FLRA 972 (1990) and request for stay of the Authority's Order in that case. Neither the General Counsel nor the Union filed an opposition to the Respondent's requests. For the following reasons, we deny the Respondent's requests.

II. The Authority's Decision in 37 FLRA 972

In 37 FLRA 972, the Authority (Member Armendariz dissenting) determined that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing changes in its smoking policy without bargaining with the Union.

The Authority determined that the Respondent's decision to institute a smoke-free environment policy was directly related to its mission and that the decision constituted an exercise of the Respondent's right to determine the methods and means of performing its work under section 7106(b)(1) of the Statute. However, the Authority further found that the Respondent violated the Statute by refusing to entertain any of the Union's proposals regarding negotiable aspects of the Respondent's proposed changes in its policy. The Authority held that the Respondent's "refusal to entertain any proposals over the 'substance' of its changes in the smoking policy foreclosed bargaining over negotiable aspects of the changes and was, therefore, inconsistent with its statutory obligation to bargain over the changes in conditions of employment." 37 FLRA at 981. The Authority ordered the Respondent to, among other things, rescind the changes in the smoking policy and provide the Union with notice and an opportunity to bargain, to the extent consistent with the Statute, before effecting future changes in the policy.

III. Request for Reconsideration

The Respondent contends that the Authority should reconsider and reverse the decision in 37 FLRA 972 because the Authority's "refusal in this case to distinguish between bargaining over the substance of a management decision made pursuant to a management right in 5 U.S.C. § 7106(b)(1), on the one hand, and bargaining over impact and implementation proposals under 5 U.S.C. § 7106(b)(2), (3), on the other hand, is unjustified in law and is not supported by the substantial evidence on the record in this case." Request for Reconsideration at 1. The Respondent claims that the Authority's analysis "discounting the significance of the statutory distinction between substance and [impact] and [implementation] bargaining will leave substantial confusion about when that distinction will be significant." Id. at 3-4.

The Respondent asserts that inasmuch as the Authority concluded that the Respondent's smoke-free environment policy constituted a "method or means" of performing work under section 7106(b)(1) of the Statute, "[t]he appropriate analysis in this case . . . requires a finding that the [U]nion's request to bargain over the substance of the [A]gency decision directly interfered with the mission-related purpose thereof, and, accordingly, did not implicate a duty by [the] Respondent to bargain." Id. at 1-2. The Respondent contends, in sum, that it did not commit an unfair labor practice in this case.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. The Respondent fails to establish "extraordinary circumstances" within the meaning of section 2429.17.

The arguments presented by the Respon