40:0040(6)CA - - HHS, Health Care Financing Administration and AFGE Local 1923 - - 1991 FLRAdec CA - - v40 p40
[ v40 p40 ]
The decision of the Authority follows:
40 FLRA No. 6
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Respondent's motion for reconsideration of our decision in Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120 (1991). The Respondent also requested a stay of the Authority's decision. Neither the General Counsel nor the Charging Party filed an opposition to the Respondent's motion.
For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's motion and request for stay.
II. The Decision in 39 FLRA 120
In 39 FLRA 120, the Authority concluded, in agreement with the Administrative Law Judge, that the Respondent violated section 7116(a)(1), (5), (6), and (7) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a total ban on smoking in the Respondent's buildings at a time when the parties' dispute over the matter was pending before the Federal Service Impasses Panel. As relevant here, the Authority rejected the Respondent's assertion that it was not required to bargain over its decision to implement the ban on smoking because the parties previously had agreed, in a Memorandum of Understanding (MOU), that the Respondent could implement the ban. The Authority concluded that the MOU did not constitute a clear and unmistakable waiver of the Union's right to bargain over the Respondent's implementation of the ban. The Authority directed the Respondent to cease and desist from engaging in its unlawful actions and, among other things, to reinstitute designated smoking areas in its buildings.
III. The Respondent's Motion for Reconsideration
The Respondent asserts that reconsideration of the decision in 39 FLRA 120 is warranted because the Authority's rejection of the Respondent's assertion that