40:0283(29)CA - - HHS, Pub. Health Serv. and Cent. Disease Control, NIOSH, Appalachian Lab. for Occupational Safety and Health and AFGE Local 3430 - - 1991 FLRAdec CA - - v40 p283
[ v40 p283 ]
The decision of the Authority follows:
40 FLRA No. 29
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a motion filed by the Public Health Service (Respondent PHS) seeking reconsideration of our decision in 39 FLRA No. 115. Respondent PHS also requested a stay of the Authority's decision. Neither the General Counsel nor the Charging Party filed an opposition to Respondent PHS's motion.
For the following reasons, we conclude that Respondent PHS has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the motion and request for a stay. We will, however, correct typographical errors in our Order and Notice.
II. The Decision in 39 FLRA No. 115
In 39 FLRA No. 115, the Authority concluded, as relevant here, that Respondent PHS violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) disapproving a contractual provision negotiated between the Union and the Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health (Respondent NIOSH); and (2) directing the Centers for Disease Control (Respondent CDC) to discontinue designated smoking areas at Respondent NIOSH's Morgantown, West Virginia facility. With respect to the latter point, the Authority noted that "Respondent NIOSH complied with the directions from higher-level management and, on April 1, 1990, discontinued the designated smoking areas." Slip op. at 12. Among other things, the Authority directed Respondent NIOSH to rescind its improper disapproval of the contractual provision and to reinstate and reestablish the designated smoking areas. The Authority also directed that a notice, signed by the Assistant Secretary of the Public Health Service, be posted in facilities where unit employees involved in the dispute are located.
III. The Motion for Reconsideration
Respondent PHS requests that the Authority reopen and reconsider the decision in 39 FLRA No. 115 for three reasons. First, Respondent PHS points out that the Authority's Order and Notice require the reinstatement of designated smoking areas which existed prior to April 1, 1989. Respondent PHS claims that as the stipulated record in this case shows that the designated smoking areas were closed on April 1, 1990, not 1989, the decision should be reconsidered. Second, Respondent PHS asserts that the Authority's Order does not "effectuate the purposes and policies of the Statute" because, by requiring the reinstitution of smoking areas in existence on April 1, 1989, the Order deprives the Respondent of the "benefit" of the contractual provision concerning designated smoking areas which it improperly disapproved. Motion at 5. Finally, Respondent PHS asserts that as the position of Assistant Secretary, PHS, is "a highly visible one in which he must often provide the leadership necessary to get the American people to engage in actions which will promote good health[,]" it is inconsistent with that official's responsibilities to "indicate publicly that he will take action to facilitate . . . the practice of smoking . . . ." Id. at 9.
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. We conclude that Respondent PHS has not established such extraordinary circumstances.
It is clear that, as noted in the Authority's decision, the designated smoking areas involved in this case were eliminated on April 1, 1990. 39 FLRA No. 115, slip op. at 4, 12. The references in the Authority's Order and Notice to April 1, 1989, resulted from typographical errors. As such, Respondent PHS's arguments regarding the effects of the incorrect Order and Notice provide no basis for reconsideration. We will, however, issue a corrected Order and Notice.
Respondent PHS's remaining arguments constitute nothing more than disagreement with the Authority's decision, however, and do not demonstrate extraordinary circumstances. Consequently, Respondent PHS's motion for reconsideration will be denied. For the same reasons, Respondent PHS's request for a stay of the decision will be denied.
The motion for reconsideration and the request for a stay of the Authority's Decision and Order in 39 FLRA No. 115 are denied. The Order and Notice in 39 FLRA No. 115 are corrected as follows:
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Public Health Service, shall:
1. Cease and desist from:
(a) Failing and refusing to approve the provisions in Article 31, Section 1, of the August 14, 1989, negotiated agreement between the Appalachian Laboratory for Occupational Safety and Health, National Institute of Occupational Safety and Health (NIOSH) and the American Federation of Government Employees, Local 3430, AFL-CIO (Union), which pertain to designated smoking areas and are substantially identical to proposals previously found to be negotiable by the Federal Labor Relations Authority.
(b) Directing NIOSH to declare nonnegotiable Union proposals that are substantially identical to proposals previously determined to be negotiable by the Authority.
(c) Rescinding and/or directing the Centers for Disease Control (CDC) and NIOSH to repudiate lawful agreements with the Union, including the December 11, 1989, Memorandum of Understanding on designated smoking areas.
(d) Directing CDC and NIOSH to discontinue the designated smoking areas at the Morgantown, West Virginia, facility or in any like or related manner, unlawfully interfering with the collective bargaining relationship between NIOSH and the Union.
(e) In any like or related, manner, interfering with, restraining or coercing its employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Withdraw and rescind its disapproval of Article 31, Section 1, Smoking Policy of the August 14, 1989, negotiated agreement between NIOSH and the Union and notify those two parties of such action in writing.
(b) Reinstate and reestablish the designated smoking areas at the Morgantown, West Virginia, facility that existed prior to April 1, 1990.
(c) Post at its facilities where unit employees are located, 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 Assistant Secretary, Public Health Service, and they shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C., Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
The allegations in the consolidated complaints against the Respondents HHS, CDC, and NIOSH are