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43 FLRA No. 112

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
PUBLIC HEALTH SERVICE AND CENTERS FOR DISEASE CONTROL
NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH
APPALACHIAN LABORATORY FOR OCCUPATIONAL SAFETY AND HEALTH
(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3430, AFL-CIO
(Charging Party/Union)

3-CA-00190
3-CA-00409
3-CA-00410
3-CA-00411

39 FLRA 1306 (1991)
40 FLRA 283 (1991)

ORDER DENYING MOTION FOR RECONSIDERATION

February 5, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on Respondents' motion for reconsideration of our decision in 39 FLRA 1306, request for reconsideration denied, 40 FLRA 283.⁽¹⁾ Neither the General Counsel nor the Union filed an opposition to the motion.

We conclude that the Respondents have 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 1306 and the Order in 40 FLRA 283

In 39 FLRA 1306, the Authority concluded, as relevant here, that Respondent Public Health Service (PHS) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) disapproving a contractual provision concerning designated smoking areas negotiated between the Union and the Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health (NIOSH); and (2) directing the Centers for Disease Control to discontinue designated smoking areas in NIOSH's Morgantown, West Virginia facility. Among other things, the Authority directed rescission of the unlawful disapproval and reestablishment of the designated smoking areas.

In 40 FLRA 283, the Authority denied Respondent PHS's motion for reconsideration and stay of the decision in 39 FLRA 1306.⁽²⁾

III. Motion for Reconsideration

Respondents contend that reconsideration of the Authority's decision in 39 FLRA 1306 is warranted by new evidence and developments concerning the consequences of exposure to environmental tobacco smoke. Among other things, Respondents cite: (1) scientific studies concerning the health risks associated with exposure to tobacco smoke; (2) legal and administrative proceedings addressing such studies; (3) reports concerning the inadequacies of ventilation systems in protecting building occupants against the hazards of exposure to tobacco smoke; and (4) regulations and ordinances restricting and eliminating smoking in various public places in the Morgantown area. The Respondents also reference an agreement with the Union, which establishes, as a temporary policy, an outside designated smoking area at the Morgantown facility.⁽³⁾ According to the Respondents, the Authority's refusal to reconsider its decision in 39 FLRA 1306 may impede the parties' ability to resolve their differences over smoking at the facility.

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 Respondents have not established such extraordinary circumstances in this case. Instead, Respondents' arguments constitute mere disagreement with the Authority's decision in 39 FLRA 1306 and the Authority's denial of its previous request for reconsideration in 40 FLRA 283. Consequently, the motion for reconsideration will be denied.

V. Order

Respondents' motion for reconsideration of the Authority's Decision and Order in 39 FLRA 1306, request for reconsideration denied, 40 FLRA 283, is denied.

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

1. In the alternative, Respondents request the Authority to "defer" to the Federal Service Impasses Panel in a "related" proceeding pending before it. Motion at 4. As the Panel declined jurisdiction in the related proceeding on January 17, 1992, Respondents' alternative request is moot and will not be addressed further.

2. The Respondents filed, and withdrew, a petition for review of the Authority's decision in the U.S. Court of Appeals for the Fourth Circuit.

3. The agreement provides, in part:

The parties recognize that the Union has requested [i]mpact and [i]mplementation bargaining regarding an agency decision to close existing smoking areas, under protest. The Union considers the matter of designated smoking areas to be fully negotiable . . . . The Union does not waive any right regarding its legitimate scope of bargaining by entering into this agreement.

Attachment 7 to Motion at 2.

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