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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









(Charging Party/Union)


(39 FLRA 120 (1991))



April 9, 1991

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 it was privileged under the MOU to implement the ban on smoking constitutes "an implicit overruling of the Authority's important deferral doctrine . . . ." Motion at 1. According to the Respondent, the Authority improperly failed to determine whether the Respondent's interpretation of the MOU was "arguable" or "plausible" and, instead, applied the "more difficult standard" of "'clear' and 'unambiguous.'" Brief in Support of Motion at 3 (citations omitted). The Respondent argues that as its interpretation of the MOU is "arguable," the Authority should reverse its decision in 39 FLRA 120 and determine that the Respondent was not required to bargain over the implementation of the ban on smoking. The Respondent also argues, in this regard, that the Authority should provide the parties an opportunity to present additional arguments concerning other aspects of the Authority's decision and should stay the effect of the remedial order pending resolution of the motion for reconsideration.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances, within the meaning of section 2429.17, to warrant reconsideration of our decision in 39 FLRA 120.

We reject the Respondent's assertion that the Authority applied an improper standard in evaluating the Respondent's defense that it was privileged under the MOU to implement the ban on smoking. As we stated in our decision, it is "well settled that a union's waiver of a statutory right must be clear and unmistakable." 39 FLRA at 129. See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). See also, for example, Marine Corps Logistics Base, Barstow, California, 39 FLRA No. 97 (1991); Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA No. 91 (1991). The Respondent's arguments constitute nothing more than disagreement with our decision and an attempt to relitigate the merits of the case. As such, the Respondent has not demonstrated extraordinary circumstances within the meaning of section 2429.17 of our Rules and Regulations. See, for example, U.S. Department of the Army, Lexington Blue Grass Army Depot, Lexington, Kentucky, 39 FLRA No. 129, slip op. at 4 (1991).

Moreover, the Authority recently rejected "an approach that would dismiss complaints alleging the violation of a statutory right based on a finding that the parties have proffered differing and arguable interpretations of [a] collective bargaining agreement." Internal Revenue Service, Washington, D.C., 39 FLRA No. 137, slip op. at 6 (1991). The Authority held, in this regard, that "the use of a 'differing and arguable' analysis in cases involving statutory rights abrogates important rights . . . and . . . is inconsistent with the purposes and policies of the Statute." Id. Consequently, the Respondent's assertion that the Authority should reverse its decision in 39 FLRA 120 on the basis that its interpretation of the MOU is arguable provides no basis for reconsidering our decision.

In sum, the Respondent has not established extraordinary circumstances warranting reconsideration of our decision in 39 FLRA 120. The Respondent's motion for reconsideration will, therefore, be denied. For the same reasons, the Respondent's request for a stay of the decision will be denied.

V. Order

The Respondent's motion for reconsideration and stay of the Authority's Decision and Order in 39 FLRA 120 is denied.

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