18:0427(59)CA - HHS, Health Care Financing Administration and AFGE and NTEU -- 1985 FLRAdec CA
[ v18 p427 ]
The decision of the Authority follows:
18 FLRA No. 59 DEPARTMENT OF HEALTH AND HUMAN SERVICES, HEALTH CARE FINANCING ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party and NATIONAL TREASURY EMPLOYEES UNION Intervenor Case No. 3-CA-20319 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed. Thereafter, the Charging Party and the General Counsel filed exceptions to the Judge's Decision, and the Respondent and the Intervenor filed oppositions thereto. /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions, and recommendation that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20319 be, and it hereby is, dismissed. Issued, Washington, D.C., June 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- William Smith Hill William McGuire For Respondent James A. Lawrence, Esq. Sharon Pinnock For Intervenor John Thornton For Charging Party Susan Shinkman, Esq. John W. Kyle, Esq. For General Counsel, FLRA Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq. Pursuant to a charge filed on February 4, 1982 by American Federation of Government Employees, AFL-CIO (hereinafter called the Union or AFGE), against Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland (hereinafter called Respondent or HCFA), the General Counsel of the FLRA by the Director of Region 3, issued a Complaint and Notice of Hearing on December 10, 1982. The Complaint alleges that HCFA violated Section 7116(a)(3) and (1) of the Statute by permitting and failing "to take action to prevent" non-employee representation of National Treasury Employees Union (NTEU) from soliciting membership from among HCFA's employees at Respondent's Baltimore Headquarters. HCFA filed an Answer, a first Amended Answer, and a Second Amended Answer, denying that it had violated the Statute. A hearing was held before the undersigned in Baltimore, Maryland. HCFA, AFGE, NTEU and General Counsel of the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and my evaluation of the evidence, I make the following: Findings of Fact Respondent is an activity of the Department of Health and Human Services (DHHS), created in 1978 by the merger of the Social Rehabilitation Service the Bureau of Health Insurance. HCFA's central office consists of its premises at 6305 Security Boulevard, Baltimore, Maryland and a group of employees located in Washington, D.C. Employees of Respondent's Central Office have since August 1980 been exclusively represented by AFGE in a unit consisting of professional and nonprofessional employees of Respondent's Baltimore, Maryland location and nonprofessional employees located in Washington, D.C. Representational matters rising in the Baltimore, Maryland location of HCFA are handled by AFGE Local 1923 as designee of AFGE. Representational matters arising in Respondent's Washington, D.C. location have by similar designation been given to AFGE Local 41. HCFA's Baltimore, Maryland location is a multi-building complex. HCFA's employees occupy, among other buildings at the complex, the East High Rise and the East Low Rise. The majority of space in the East High Rise and East Low Rise Buildings is occupied by HCFA's employees, although the Social Security Administration, DHHS, occupies some portion of space on the ground floor and first floor of the East Low Rise. The East High Rise Building is a rectangular structure with entranceways and lobby areas along its northern, eastern and western sides. The East Low Rise Building is a rectangular structure with entranceways and lobby areas along the eastern and western sides of its ground floor and the southern side of its first floor. Between the East Low Rise Building and the East High Rise Building is a cafeteria, /2/ with its main entranceway off of the ground floor hallways of the East High Rise. William Holman is HCFA's Director of Labor Relations. In December 1980, at the time Mr. Holman was being interviewed for his position, he was told that the NTEU was "sniffing around" or exhibiting interest in the AFGE bargaining unit. In June 1981, HCFA received a request from NTEU asking for certain information including the size and location of the AFGE unit. On August 13, 1981, HCFA furnished NTEU with the information it requested. In later November 1981, Holman was telephonically contacted by NTEU representative Scott Schaefer who said he wished to meet with HCFA's labor relations office. Holman and a staff member met with Schaefer and another NTEU representative, whereupon the NTEU representatives said they planned to come to HCFA's premises to distribute literature and solicit signatures. Holman, who had never been involved in an organizing campaign before, informed the NTEU representatives that his investigation and that of his staff had shown that HCFA was not free to provide NTEU with any facilities or anything else. Holman told Schaefer of his understanding that the cafeteria, the western entranceway to the ground floor of the East High Rise and the southern entranceway to the first floor of the East Low Rise were public areas. Schaefer did not ask Respondent's permission to come into the public areas of the East High Rise or East Low Rise at any time. In early or mid-December 1981, non-employee representatives of NTEU solicited signatures from NCFA's employees in the first floor lobby area of the East Low Rise, and the ground floor of the East Low Rise. HCFA employees were asked to sign a petition for the purpose of supporting an election between AFGE and NTEU. On the first floor lobby area of the East Low Rise, the NTEU representatives also distributed leaflets. Non-employee representatives of NTEU solicited signatures from HCFA's employees on December 21, 22 and 23, 1981. Respondent's employees were asked to sign a petition for the purpose of having a secret ballot election in which NTEU would be a choice. During the period between late November 1981 and December 25, 1981, Holman saw an NTEU representative passing out pamphlets and taking signatures in the first floor lobby area of the East Low Rise Building. Holman asked the NTEU representative if she had General Services Administration (GSA) permission to be on the property. The NTEU representative replied that she had such permission. No other questions were asked of the NTEU representative by Holman. During this same period of time Holman was approached by representatives of AFGE Local 1923, who complained that Holman should not allow NTEU access to the premises. Holman replied that as NTEU was on GSA property over which Respondent had no control. Holman was approached during the same period by a representative of AFGE who referred Holman to decisions of the Assistant Secretary the FLRA, including 2 FLRA 359. Holman replied that the advice from his agency was that he could do nothing to keep NTEU from the property. This advice had come from HCFA's General Services Supervisor, Richard Rohde, who acted as liaison with GSA. Rohde had been approached by the labor relations staff and asked his opinion as to whether lobby areas of Respondent's premises were public access spaces. Rohde had said they were public access spaces. Holman replied solely on Rohde's advice before December 25, 1981. Shortly after the Christmas 1981 holiday, HCFA's labor relations staff and Holman looked into whether HCFA could keep NTEU off the premises and contacted representatives of DHHS at the National and Philadelphia Regional level, as well as representatives of other Federal agencies. Holman also contacted the GSA Building managers at Respondent's Headquarters, including Mr. Glover, the GSA representative handling the East Low Rise and East High Rise Buildings. Glover "waivered a little bit" on the question of NTEU's access to those buildings. Glover had told Flynn of AFGE Local 1923 that NCFA controlled the areas of the East Low Rise in which NTEU was soliciting. Holman was telephonically informed by a Mr. Roth, an Area Manager of GSA, that Roth would not stop NTEU from entering Respondent's Baltimore, Maryland location. In early January 1982, Holman was telephonically contacted by a Ms. Pinnock, a representative of NTEU, who stated NTEU's intention to re-enter two unidentified buildings. Holman asked Pinnock if she would stay off the property until HCFA further examined the issue. Pinnock stated that she did not have to stay off the property and that she would respond further after speaking with Schaefer. Pinnock spoke to Schaefer, stating that HCFA would not allow NTEU in public access areas for further petitioning. Schaefer met the second week of January 1982, with two of Respondent's Labor Relations Specialists, Mr. McGuire and Mrs. Holland. Schaefer was told by HCFA's representatives that AFGE had objected to NTEU's petitioning in public access areas and HCFA would no longer permit NTEU to petition in those areas. Schaefer told Respondent's representatives that HCFA lacked authority to grant or deny access to NTEU. Schaefer provided HCFA's representatives with a copy of out-dated GSA regulations on procedures for soliciting signatures in public access areas. HCFA's representatives said they were unaware of such regulations. Schaefer told HCFA's representatives that NTEU would allow HCFA 2 weeks in which to reconsider its opposition to NTEU's presence on HCFA's property. Upon return to his office, Schaefer telephoned HCFA's representatives and referred them to the updated GSA regulations posted in Respondent's lobby areas. /3/ Sometime after January 23, 1982, Holman was telephonically contacted by Pinnock and told that NTEU representatives would be re-entering Respondent's premises the following day. Holman replied that Respondent had concluded it could not keep NTEU from the premises. Holman contacted Schaefer and said that Respondent's investigation revealed no authority to grant or deny NTEU's presence in the public areas. NTEU representatives sought employee signatures on petitions at Respondent's premises on January 27 and 29, 1982 and February 11 and 16, 1982. Non-employee representatives of NTEU solicited employee signatures on petitions on January 29, 1982 between 11:30 a.m. and 1:00 p.m. in the cafeteria, ground floor, East High Rise. NTEU representatives engaged in this solicitation were in the cafeteria lobby area, asking HCFA's employees to sign a petition for the purpose of allowing an election between AFGE and NTEU. Both Holman and HCFA's Chief Contract Negotiator witnessed this NTEU solicitation. A non-employee representative of NTEU used a government telephone in the hallway of the ground floor, East High Rise Building during this period. This hallway is off of the cafeteria and management caucus room, near the elevators. Joseph Flynn alerted Holman that the NTEU representative was using the phone. Holman walked from the management caucus room, a few steps down the hallway, and approached the NTEU representative and told the NTEU representative to use nearby public telephones in the future. The cafeteria, lobby areas and hallways connecting lobby areas together are space for which Respondent pays no standard level users charge or SLUC. These areas are public, in that the general public can freely enter and exit. HCFA obtains use of such space telephonically or by memo asking GSA's permission. Rohde testified that HCFA does not control people in GSA controlled public areas. GSA Building regulations were posted in Respondent's Buildings. HCFA has a reception desk in the lobby area of the ground floor, East High Rise. The receptionist is an employee of HCFA. At all entranceways to the East High Rise and East Low Rise Buildings, the doors carry the statement "HCFA visitors please report to the reception desk." Discussion and Conclusions Section 7116(a)(3) of the Statute provides: "7116 Unfair Labor Practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency . . . (3) to sponsor, control or otherwise assist any labor organization other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status; . . . " The basic intention and approach of section 7116(a)(3) of the Statute is the same as that set forth in Section 19(a)(3) of Executive Order 11491, as amended, /4/ the predecessor instrument governing labor-relations in the federal sector. It is unlawful and violative of the Statute for an Agency to grant access to its premises to a labor organization, without equivalent status, to conduct organizing or solicitation campaigns. cf. Defense Supply Agency, Defense Contract Administration Services Region, SF, Burlingame, California, A/SLMR No. 247 (1973), Department of the Army, U.S. Army Natick Laboratories, Natick, Massachusetts, A/SLMR No. 263 (1973); Department of the Navy, Navy Commissary Store Complex, Oakland, A/SLMR No. 654 (1976); Department of the Army; Commissary, Fort Meade, A/SLMR No. 793 (1977); United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982); and Department of Transportation, Federal Aviation Administration, Washington, D.C., 2 FLRA 359 (1979). In the instant case the solicitations by NTEU were carried on in the public areas (entries, lobbies and cafeteria) over which Respondent has no jurisdiction and which are under the control and supervision of the General Services Administration (GSA). Respondent advised AFGE that it had no control over the areas utilized by NTEU and that GSA controlled those areas. On the occasion that Respondent HCFA was advised that an NTEU representative was using one of Respondent's telephones, located in a public area, Respondent instructed the NTEU representative to use a public phone. In these circumstances I conclude that Respondents did not give any unlawful assistance to NTEU. Respondent did not permit or authorize NTEU to utilize any of Respondent's facilities. Those facilities that NTEU used were controlled by GSA. General Counsel of the FLRA contends that Respondent has some sort of affirmative obligation to go to another, totally separate, Federal Agency, GSA, and, to some degree, urge or insist that GSA forbid NTEU from utilizing GSA controlled space, which is contiguous to Respondent's space. I find no such obligation imposed on Respondent by the express language of Section 7116(a)(3) of the Statute, by the Statute's legislative history, by FLRA interpretations of the Statute or by any common sense reading of the Statute. The Section 7116(a)(3) of the statute is a limitation on Agency conduct; any imposition of an affirmative obligation to control the conduct of any other agency would have to be express. The limits of any such obligation would be difficult to draw. Would an agency have obligation to insist that the Interior Department stop union solicitation in a National Park across the street from a federal office building? Different agencies' space often abut, in all these instances would one agency violate the Statute if it did not sufficiently insist that another agency stop union solicitation. Such an obligation would be onerous and, in light of the independence of agencies, unworkable. General Counsel of the FLRA also contends that NTEU's use of GSA space violated GSA's own rules and regulations. Somehow this was alleged to be a violation of law by Respondent. On the contrary, while that was a matter among GSA, NTEU and AFGE, it did not constitute a violation of the Statute by Respondent. In light of the foregoing I conclude that the record herein does not establish that HCFA violated Section 7116(a)(3) and (1) of the Statute. It is therefore recommended that the Authority issue the following: ORDER The Complaint in Case No. 3-CA-20319 be, and it hereby is, dismissed. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: August 30, 1983 Washington, DC --------------- FOOTNOTES$ --------------- /1/ The Respondent's opposition to the exceptions of the Charging Party and the General Counsel was untimely filed and, hence, was not considered by the Authority in reaching its decision herein. /2/ The cafeteria is operated by ARA, pursuant to a contract with GSA. /3/ Applicability. These rules and regulations apply to all property under the charge and control of the U.S. General Services Administration (GSA) and to all persons entering in or on such property. Each occupant agency shall be responsible for the observance of these rules and regulations. Soliciting, vending, and debt collection (41 CFR 101-20.308). Soliciting aims, commercial or political soliciting, and vending of all kinds, displaying or distributing commercial advertising or collecting private debts on GSA-controlled property is prohibited. This rule does not apply to (a) national or local drives for funds for welfare, health, or other purposes as authorized by the "Manual on Fund Raising Within the Federal Service," issued by the U.S. Office of Personnel Management under Executive Order 10927 of March 18, 1961, and sponsored or approved by the occupant agencies; (b) concessions or personal notices posted by employees on authorized bulletin boards; (c) solicitation of labor organization membership or dues authorized by occupant agencies under the Civil Service Reform Act of 1978 (Public Law 95-454); and (d) a lessee, or its agents and employees, with respect to space leased for commercial, cultural, educational, or recreational use under the Public Buildings Cooperative Act of 1976 (Title 40, U.S. Code 409(a)(16)). Public areas of GSA-controlled property may be used for other activities permitted in accordance with Subpart 101-20.7. Distribution of handbills (41 CFR 101-20.309). Posting or affixing materials, such as pamphlets, handbills or flyers, on bulletin boards or elsewhere on GSA-controlled property is prohibited, except as authorized in Sec. 101-20.308 or when these displays are conducted as part of authorized Government activities. Distribution of materials, such as pamphlets, handbills or flyers is prohibited, except in the public areas of the property as defined in Sec. 101-20.701(b), unless conducted as part of authorized Government activities. Any person or organization proposing to distribute materials in a public area under this section shall first obtain a permit from the buildings manager under Subpart 101-20.7 and shall conduct distribution in accordance with the provisions of Subpart 101-20.7. Failure to comply with those provisions is a violation of these regulations. /4/ Section 19(a)(3) of Executive Order 11491, as amended, provided: Sec. 19 Unfair labor Practice. (a) Agency management shall not . . . (3) sponsor, control or otherwise assist a labor organization, except that an agency may furnish customary and routine services and facilities under Section 23 of this Order when consistent with the best interest of the Agency, its employees and the organization, and when the service and facilities are furnished, if requested, on a impartial basis to organizations having equivalent status.