24:0672(68)CA - HHS, Health Care Financing Administration and AFGE and NTEU -- 1986 FLRAdec CA



[ v24 p672 ]
24:0672(68)CA
The decision of the Authority follows:


 24 FLRA No. 68
 
 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 
                                                    (18 FLRA No. 59)
 
                       DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit,
 directing the Authority to consider the effect of regulations of the
 General Services Administration (GSA) on the resolution of the unfair
 labor practice allegation in this case.  American Federation of
 Government Employees v. FLRA, 793 F.2d 333 (D.C. Cir. 1986).
 
                         II.  History of the Case
 
                       A.  The Authority's Decision
 
    The complaint in this case alleges that the Respondent Department of
 Health and Human Services, Health Care Financing Administration (HCFA)
 violated section 7116(a)(1) and (3) of the Federal Service
 Labor-Management Relations Statute (the Statute) by permitting and
 failing to take action to prevent representatives of the Intervenor, the
 National Treasury Employees Union (NTEU), from soliciting HCFA
 employees' signatures in support of a representation petition.  The
 Charging Party, the American Federation of Government Employees, AFL-CIO
 (AFGE) is the exclusive representative of HCFA employees.
 
    On June 13, 1985, the Authority issued its Decision and Order in
 Department of Health and Human Services, Health Care Financing
 Administration, 18 FLRA No. 59 (1985).  The Authority, in agreement with
 its Administrative Law Judge, found that HCFA had not unlawfully
 assisted NTEU, because the solicitations took place in public areas at
 Respondent's Baltimore headquarters not controlled by HCFA.  The
 Authority further found that HCFA had no affirmative duty to insist or
 urge that GSA, which controls such public spaces, forbid or prevent NTEU
 from such solicitation.  AFGE then sought judicial review of the
 Authority's Decision.
 
                          B.  The Court's Opinion
 
    On June 17, 1986, the court issued its opinion in American Federation
 of Government Employees v. FLRA, 793 F.2d 333 (D.C. Cir. 1986).  The
 court found that in order to make a decision on the merits of the
 complaint, the Authority must first determine (1) the extent to which
 HCFA has control, or can influence control, over access to the public
 areas involved here;  and (2) the extent to which, by past practice,
 HCFA has participated with GSA in decisions pertaining to access to
 these public areas.  Further, the court directed that if the Authority
 determines that HCFA has any control over those public areas, it must
 then determine the nature of HCFA's responsibility in the event it is
 also determined that GSA improperly permitted NTEU access to the areas.
 The court remanded the case to the Authority for further treatment,
 emphasizing that it expressed no view on HCFA's obligations.
 
                      III.  Positions of the Parties
 
    After the Court remanded the case, we granted GSA's request to file
 an amicus curiae brief.  Supplemental briefs were filed by AFGE and
 NTEU.
 
    GSA contends that under its regulations, GSA alone has control of
 public space located within GSA property.  GSA explained the limited
 circumstances in which a tenant agency has a right to request the use of
 such space;  that is, an agency may grant permission to a labor
 organization to solicit membership or dues under the Civil Service
 Reform Act of 1978.  The type of activity involved in this case did not,
 in GSA's opinion, fall into this category.
 
    NTEU argues that GSA alone controls public space.  NTEU acknowledges
 that it is unlawful for an agency to provide a rival union with access
 to space that is within the control of the agency.  It argues, however,
 that the public space here was controlled only by GSA, and that GSA has
 not only a right to allow unions access to public space, but, upon
 proper request, has an obligation under section 101-20.702 of its
 regulations to permit access for activities such as NTEU engaged in
 here.
 
    AFGE argues that GSA regulations allow agencies to request GSA to
 prevent certain activities in public space.  It notes that section
 101-20.703(a)(4) and (5) allows GSA buildings managers to disapprove an
 application for a permit on the grounds that the requested use "disrupts
 the official business of the agency or agencies occupying the public
 buildings" or "interferes with a tenant's quiet enjoyment of their
 leasehold.  It argues further that where, as here, NTEU's activity
 clearly would have been unlawful if HCFA allowed it, HCFA had an
 affirmative obligation to urge GSA to forbid or prevent it.  AFGE also
 argues that a "new hearing" is needed to determine some of the questions
 raised by the court.
 
                               IV.  Analysis
 
                            A.  GSA Regulations
 
    The Administrator of GSA has jurisdiction, custody and control of all
 Federal buildings outside of the District of Columbia, including the
 buildings at issue here.  40 U.S.C. Section 285.  Further, GSA has
 authority to assign and reassign space of all executive agencies in
 Government-owned and leased buildings in and outside of the District of
 Columbia.  40 U.S.C. Section 490(e).
 
    Pursuant to that authority, GSA has issued regulations governing the
 use of public buildings and grounds, codified at 41 CFR 101-20.3 (1986).
  These regulations are commonly posted in public areas and were posted
 in the public spaces where HFCA is a tenant at the time of the events in
 this case.  Section 101-20.308 contains a general prohibition against
 solicitation, vending and debt collection.  Among the specific
 expections to this prohibition is subsection (c), which provides for the
 "solicitation of labor organization membership or dues authorized by
 occupant agencies under the Civil Service Reform Act of 1978." While
 such solicitation appears to be within the control of agencies, not GSA,
 that is not the type of solicitation involved in this case.  It is
 undisputed that NTEU was soliciting only signatures in support of its
 efforts to file a petition for election.  It was not soliciting
 membership or membership dues.
 
    The Public Buildings Cooperative Use Act of 1976 encourages the use
 of certain public areas for cultural, educational, and recreational
 activities.  40 U.S.C. Section 490(a)(17).  Pursuant to authority
 granted it by that Act, GSA issued regulations regulating the
 "occasional use of public areas in public buildings," codified at 41 CFR
 101-20.7.  Under section 101-20.702, labor organizations may apply to
 GSA for permission to use public areas.  The regulations do not specify
 what activities are permissible.  They do specify that the permission
 may be granted only by GSA, not by tenant agencies.
 
                               B.  Findings
 
    We reaffirm the Authority's previous conclusion that the complaint
 must be dismissed.  We find that:
 
    (1) GSA has exclusive jurisdiction, custody and control of all public
 space in Government-owned and leased buildings.  40 U.S.C. Section 285
 and 40 U.S.C. Section 490(e);
 
    (2) GSA's regulations generally governing the use of public space,
 codified at 41 CFR 101-20.3, provide for one exception to that
 jurisdiction, at section 101-20.308(c):  occupant agencies may allow an
 exclusive representative of its own employees to solicit membership and
 membership dues in public spaces;
 
    (3) the solicitations conducted by NTEU at issue here were not of the
 type that could have been allowed or denied by HCFA;
 
    (4) GSA has exclusive jurisdiction under the Public Buildings
 Cooperative Use Act of 1976 to grant permits for the use of public
 space, and its regulations, codified at 41 CFR 101-20.7, do not allow
 for any exceptions to that jurisdiction;
 
    (5) GSA granted permission to NTEU to conduct the solicitations in
 question;  and
 
    (6) there is nothing in the record to show that HCFA has ever
 exercised control over, or influenced GSA's control over, the public
 spaces in these buildings.
 
    We find that GSA alone had control over the public spaces in
 question, and that HCFA did not have any control over these spaces.
 While tenant agencies may bring to GSA's attention activities they find
 disruptive to their official business, it is GSA's prerogative to act in
 such a case.  HCFA did not make any such requests to GSA in this case.
 
    We conclude that HCFA had no affirmative duty to persuade GSA to
 prevent or stop the solicitations by NTEU.  While a showing of past
 control over the spaces, or influence on GSA, by HCFA would be relevant,
 the General Counsel has not met the burden of showing that HCFA has
 controlled, or influenced GSA's control over, the public spaces in
 question.  Moreover, such a contention was not part of the General
 Counsel's complaint.  In these circumstances, we reject AFGE's request
 that the case be remanded for further hearing.  We therefore find it
 unnecessary to determine the nature of HCFA's responsibility if it did
 have any control, or right to influence GSA's control, over the public
 spaces.