26:0719(88)CA - Commerce, Bureau of the Census and Edward Hanlon; GSA and Edward Hanlon -- 1987 FLRAdec CA



[ v26 p719 ]
26:0719(88)CA
The decision of the Authority follows:


 26 FLRA No. 88
 
                                            Case Nos. 3-CA-50528 
                                                      3-CA-50537
 
 DEPARTMENT OF COMMERCE 
 BUREAU OF THE CENSUS
 Respondent
 
 and
 
 EDWARD HANLON
 Charging Party/Individual
 
                                            Case Nos. 3-CA-50529 
                                                      3-CA-60017
 
 GENERAL SERVICES ADMINISTRATION
 Respondent
 
 and
 
 EDWARD HANLON
 Charging Party/Individual
 
                            DECISION AND ORDER
 
    I.  Statement of the Cases
 
    This consolidated proceeding is before the Authority on exceptions
 filed by Respondents Bureau of the Census (Census) and General Services
 Administration (GSA) to the attached Decision of the Administrative Law
 Judge.  The issues in the four cases involve the alleged unlawful
 interference with the right of Charging Party Hanlon and/or other Census
 employees to solicit membership and distribute union literature, meet
 with other employees and/or non-employee union representatives, and
 otherwise use non-work and/or public areas at the Suitland Federal
 Center (Center) where Census headquarters' employees work.  The General
 Counsel filed oppositions to the Respondents' exceptions.
 
    II.  Background
 
    The Center consists of five Federal office buildings with parking
 lots, open park lands, baseball fields and garden plots.  Most of
 Census' employees work in two of the five Federal office buildings at
 the Center, designated FOB3 and FOB4, the two buildings involved in
 these cases.  There is a public parking lot in front of FOB3, and both
 buildings have employee parking lots in the rear.  Both have main
 lobbies and several wings.  In FOB4 there is a canteen, and in FOB3
 there is a cafeteria and another large lobby called the Sunny Spot
 lobby.  The public may gain access to the main lobbies and the canteen,
 cafeteria and Sunny Spot lobby by obtaining visitors' passes from the
 reception desks in the main lobbies.  All pedestrian and vehicular
 entrances to FOB3 and FOB4 are controlled by guards contracted for by
 Census, although none of the lobbies, the canteen, or the cafeteria are
 leased by Census.
 
    Census' employees at the Center are represented by the American
 Federation of Government Employees (AFGE) Local 2782.  At all times
 material to these cases, Mr. Hanlon was an employee of Census and a
 member of the bargaining unit.  He is the former President of Local
 2782, and a known supporter of the National Treasury Employees Union
 (NTEU).  On March 28 and April 8, 1985, meetings were held in training
 rooms at the Center by Hanlon and other employees who were NTEU
 supporters.  /1/ In attendance also were non-employee NTEU
 representatives.  Both meetings were terminated by Census' Security
 personnel when disturbances involving NTEU and AFGE supporters occurred.
  A further incident occurred on July 3 between Census employees who
 supported NTEU and those who supported AFGE.  AFGE supporters tore NTEU
 literature off an AFGE bulletin board.  Additional background pertaining
 to each of the consolidated cases is set forth below.
 
    III.  Case No. 3-CA-50537
 
    A.  The Judge's Findings and Conclusions
 
    On or about April 10, Hanlon and several other bargaining unit
 employees received a memorandum from Census' Labor Relations Officer
 Woodard.  The memorandum, among other things, directed the employees to
 "stop meeting with representatives of any Union, other than AFGE, in any
 Census Bureau facilities or anywhere on the Suitland reservation." In
 answer to Hanlon's inquiry as to the meaning of this statement, Woodard
 replied that the phrase "Suitland reservation" included the park land,
 roadways, parking lots and perimeter sidewalks.  Census' issuance of
 this memorandum is alleged to have violated the rights of Hanlon and
 other Census employees assured by section 7102 of the Federal Service
 Labor-Management Relations Statute (the Statute).
 
    The Judge found that section 7102 protects the right of employees to
 solicit membership and distribute literature on behalf of a labor
 organization during non-work time in non-work areas, including the right
 to meet and talk with non-employee union representatives in areas where
 members of the public are allowed free access.  He found that Census'
 April 10 memorandum was an unjustified restriction on these employee
 rights, and that Respondent Census therefore violated section 7116(a)(1)
 by issuing the memorandum.  Because it was neither alleged nor argued,
 the Judge found it unnecessary to decide whether the April 10 memorandum
 also violated the Statute insofar as it could be construed as referring
 to union representatives other than non-employee union representatives.
 Judge's Decision at note 15.  Among other things, the Judge ordered
 Census to cease and desist from maintaining a rule that forbids its
 employees from meeting with representatives of NTEU, or any other labor
 organization, on those outdoor areas of the Suitland Federal Center
 routinely used by the public.
 
    B.  Positions of the Parties
 
    With regard to Case No. 3-CA-50537, Census disagrees with paragraph
 1(a) of the Judge's order as inconsistent with his statement at note 15
 of his decision.  Census argues that the Judge's finding of a violation
 was limited to non-employee union representatives, but that the order
 may be construed to apply to employee, as well as non-employee, union
 representatives.  The General Counsel argues that the Judge's order is
 consistent with his conclusions in this regard.
 
    C.  Analysis and Conclusions
 
    As the Judge noted, under section 7102 employees have the right to
 form, join or assist any labor organization.  This section protects the
 right of employees to solicit membership and distribute literature on
 behalf of a labor organization during non-work time in non-work areas.
 It also protects their right to meet and talk with non-employee union
 representatives in non-work areas like those involved in this case,
 where members of the public are allowed free access.  We therefore find,
 in agreement with the Judge, that Census' April 10 memorandum was an
 unjustified restriction on these employee rights in violation of section
 7116(a)(1) of the Statute.  Noting particularly that Census did not
 except to the Judge's finding and conclusions with regard to the merits
 of the complaint in this case, we adopt them.  We shall limit our order
 in this regard to non-employee union representatives, consistent with
 the Judge's findings.
 
    IV.  Case Nos. 3-CA-50528 and 3-CA-50529 /2/
 
    A.  The Judge's Findings and Conclusions
 
    By memo dated May 30 to Census' Labor Relations Officer Woodard,
 Hanlon informed management that he and other bargaining unit employees
 would be exercising their section 7102 rights by distributing literature
 during non-work time in non-work areas, specifically in the lobbies, the
 canteen and the cafeteria of FOB3 and FOB4.  Woodard initially responded
 by stating that "neither you nor other bargaining unit members are
 authorized to distribute literature which solicits or which gives the
 appearance of soliciting for a labor organization other than AFGE Local
 2782, the exclusive representative." Subsequently, Woodard, by
 memorandum dated July 12, advised Hanlon that Census authorized the
 distribution of union literature in the Sunny Spot lobby and outside the
 fenced areas of FOB3 and FOB4, but only by one employee at a time.
 Woodard stated that she would forward a request to the GSA Buildings
 Manager for approval and would advise Hanlon as to the response.  The
 request was approved by the GSA Buildings Manager on July 16, and Hanlon
 was so advised by Woodard by memo dated July 18.  Subsequently, Census,
 by memoranda dated December 6, notified Hanlon and other employees that
 three employees rather than one would be allowed to use the Sunny Spot
 lobby.
 
    It is alleged in Case Nos. 3-CA-50528 and 3-CA-50529 that, by these
 actions, Census and GSA, respectively, violated section 7116(a)(1) of
 the Statute by maintaining a restrictive rule that unlawfully interfered
 with the employees' exercise of their section 7102 rights under the
 Statute.  It is alleged further, in Case No. 3-CA-50529, that GSA'S
 subsequent actions, more fully set forth in the discussion below in Case
 No. 3-CA-60017, show that GSA was reaffirming its approval of such a
 restrictive rule.
 
    The Judge found first that the lobbies, the canteen and the cafeteria
 of FOB3 and FOB4 are areas that are used by Census employees in their
 non-work time and are non-work areas for purposes of all the cases
 before him.  He found that Census' July 18 memorandum, approved and
 sanctioned by GSA, interfered with the section 7102 rights of Hanlon and
 other employees to distribute literature, in violation of section
 7116(a)(1) of the Statute, by denying the right to use the lobbies, the
 canteen and the cafeteria.  He found that the limitation of the right to
 such activity in the Sunny Spot lobby to one employee at a time was an
 unreasonable interference with the employees' section 7102 rights.  As
 to this latter finding, the Judge found that the three incidents
 involving supporters of NTEU and AFGE were not sufficient justification
 for the limitations imposed.  He further found that Census' memoranda of
 December 6, allowing three employees rather than one to use the Sunny
 Spot lobby, were not sufficient to cure the violations found.
 
    As to GSA, the Judge rejected GSA'S argument that it owed no duty to
 Hanlon and other employees because they are not employees of GSA.
 Recognizing that GSA cannot be held generally responsible for the
 unlawfully restrictive acts of its tenant agencies, the Judge found that
 GSA is responsible here because the record shows that GSA has jointly
 controlled the space involved with its tenant Census.  The Judge noted
 particularly that GSA has always yielded to the wishes of Census and
 here affirmed Census' actions.
 
    B.  Positions of the Parties
 
    Respondent Census disagrees with the Judge's finding that the lobbies
 of FOB3 and FOB4 are non-work areas.  It argues that the lobbies are
 used by the employees in the course of their work time to gain access to
 other work areas, and are in fact work areas.  Further, it argues that
 the Judge was wrong to rely on Census' allowance of use of the lobbies
 as access to the public for such purposes as sales displays, because the
 record clearly shows that, since 1984, that practice has been
 discontinued and specific security measure have been employed to prevent
 such use.  Census memorandum, arguing that its limitations were properly
 based on the three disruptive incidents, as evidenced by National
 Treasury Employees Union v. Golden, No. 85-3881 (D.D.C. March 14 and May
 28, 1986), appeals filed, Nos. 86-5310 et al.  (D.C. Cir. May 21, 1986).
  Census also disagrees with the order refers to all non-work areas of
 the Suitland Federal Center, instead of just the specific areas in FOB3
 and FOB4 involved in these cases.
 
    Respondent GSA disagrees with the Judge's finding that GSA can in any
 circumstances be found in violation of the rights of employees of
 Federal agencies other than GSA.  GSA argues that in any event it did
 not have any obligation here because it cannot control Census' employees
 and has no obligation to them, as employees, to allow use of
 GSA-controlled space.
 
    The General Counsel, in opposition to Census' and GSA'S exceptions,
 generally supports the Judge's conclusions and recommended order.  As to
 the reliance on the three incidents involving supporters of NTEU and
 AFGE to support its limitations on employees' rights, the General
 Counsel points out that these incidents were not considered in deciding
 to limit employee rights.  Additionally, the General Counsel argues that
 NTEU v. Golden is clearly distinguishable from the facts of these cases.
 
    C.  Analysis and Conclusions
 
    We agree with the Judge's findings, for the reasons stated by him,
 that the lobbies of FOB3 and FOB4, as well as the Sunny Spot lobby, the
 canteen and cafeteria, are non-work areas.  We therefore agree with the
 Judge's conclusion that Census, by its July 18 memorandum, interfered
 with its employees' rights under section 7102 to distribute union
 literature in non-work areas during non-work time.
 
    We also agree with the Judge that the three incidents involving
 supporters of NTEU and AFGE were not sufficient justification for the
 limitations imposed.  Census did not cite these incidents to Hanlon or
 to GSA as reasons for imposing the limitations.  Moreover, there is no
 showing that the incidents were provoked by Hanlon or other NTEU
 supporters.  Indeed, as found by the Judge, to allow the restrictions
 imposed by Census would be to permit AFGE supporters to prevent other
 Census employees from exercising the rights guaranteed them by the
 Statute.  Finally, while the record indicates that since 1984, Census
 has not granted access to the public for purposes such as allowing sales
 displays, Census did not cite this practice as a reason for imposing the
 limitations and there is no showing that the reasons for that change
 would justify restricting the rights of employees at issue here.
 
    The District Court's decision in NTEU v. Golden does not dictate a
 different conclusion.  In that case, the court had before it a motion by
 NTEU and Hanlon seeking declaratory and injunctive relief for violations
 by Census and GSA of their rights under the Constitution.  The court
 found that the interior areas of FOB3 and FOB4 are public areas, but are
 "non-public forums" and that defendants Census and GSA therefore had a
 right to reasonably limit access to those areas.  The court decided
 that, while there was no evidence of disruption, the restrictions placed
 on Hanlon and NTEU were not wholly unreasonable.  The court did not have
 before it the question of employee rights under the Statute.  Indeed,
 the court noted (slip op. of March 14, 1986, at 10) that "Hanlon, unlike
 plaintiff NTEU, may have claims against the defendant Census Bureau
 under the (Statute)" and that "Hanlon's rights . . . under the CSRA, are
 not necessarily co-extensive with his rights as a citizen under the GSA
 regulations and the Constitution." Also, in its order accompanying its
 decision, the court directed the parties to petition the FLRA for relief
 of further labor disputes, stating that "the Court is satisfied the
 parties can receive full and adequate relief from the FLRA.  That
 administrative agency was created by Congress to resolve labor related
 disputes of this nature."
 
    We also agree with the Administrative Law Judge, based on his
 reasoning, that GSA violated the section 7102 rights of Census'
 employees.  In this regard, we note particularly the established joint
 control over the space involved, and GSA'S affirmation of of Census'
 actions.  GSA relies on the Authority's decision in Department of Health
 and Human Services, Health Care Finance Administration, 18 FLRA 427
 (1985) (HCFA) to show that it owes no duty to Census employees.  /3/
 GSA'S reliance of HCFA is misplaced.  In HCFA we found that the agency,
 the Health Care Finance Administration, did not owe AFGE an affirmative
 duty to persuade GSA to stop the solicitation of employees by
 non-employee NTEU representatives because the agency had no control over
 certain public areas and did not have the right to influence GSA'S
 control over those areas.  We did not pass on what the extent of the
 agency's statutory obligations would have been had it had any control,
 or on the question of GSA'S responsibilities, since there were no
 violations alleged against GSA in that case.  Further, HCFA dealt only
 with the rights of non-employees to use public areas;  it did not
 involve the rights of employees to use non-work areas, which is the
 issue before us.
 
    Finally, we find no merit in Census' exception to the scope of the
 Judge's Order in paragraph 1(b).  Census argues that the order should be
 limited to those areas specifically found by the Judge to be non-work
 areas.  We disagree.  The violation we find, consistent with the
 violation alleged in the complaint, is a violation of the right of
 employees to distribute literature and solicit union membership in all
 non-work areas while the employees are on non-work time.  /4/
 
    V.  Case No. 3-CA-60017
 
    A.  The Judge's Findings and Conclusions
 
    By letters to GSA of August 2 and 19, Hanlon requested that he, "as
 an individual member of the public" and "under FPMR 101-20.7," be
 granted a permit for the use at specified times of the lobbies in FOB3
 and FOB4, the cafeteria and the Sunny Spot lobby.  /5/ Hanlon requested
 the permit so that he and other persons could distribute union
 literature, and show a union film or video cassette and set up tables
 and chairs to disseminate literature in the Sunny Spot lobby.  /6/ GSA,
 by letter of August 22, denied the request, stating to Hanlon:
 
          Your request is denied for the following reasons:
 
          1.  The "end result" of your request to distribute literature
       would be to increase membership in the NTEU.
 
          2.  The Federal Property Management Regulations (FPMRs)
       (101-20.308) require authorization by the occupant agencies for
       solicitation of labor organization membership.
 
          3.  Your submission for a permit did not include the required
       agency authorization.
 
    Hanlon appealed the disapproval of the application to distribute
 literature.  By letter of September 5, GSA denied the appeal "(b)ased on
 a careful review of (the) request, and after consideration of the
 position of the occupant agency(.)" Census had forwarded a memorandum to
 GSA recommending that Hanlon's requests be denied.  The Judge found that
 Census' recommendation was a major factor in GSA'S decision to deny
 Hanlon's appeal.
 
    It is alleged in Case No. 3-CA-60017 that, by its letters of August
 22 and September 5, GSA violated section 7116(a)(1) of the Statute by
 refusing to permit Hanlon to show a film and set up tables and chairs
 for the purpose of disseminating union information in a non-work area
 (the Sunny Spot lobby).
 
    The Judge found that employees have the basic right to distribute
 literature and solicit membership on behalf of a union in non-work areas
 during non-work time, and that the showing of a union film by employees
 during non-work time is a form of solicitation protected by the Statute.
  The Judge also found that GSA treated Hanlon as a Census employee and
 in fact asked Census for its position as to whether GSA should approve
 his request.  In rejecting GSA'S argument that it properly denied
 Hanlon's request because of the three incidents involving NTEU and AFGE
 supporters, the Judge found, as he did in Case Nos. 3-CA-50528 and
 3-CA-50529, that these incidents were not sufficient justification for
 the limitations imposed.  He therefore found that GSA violated section
 7116(a)(1) of the Statute by denying Hanlon the use of the Sunny Spot
 lobby to show a union film.  /7/
 
    B.  Positions of the Parties
 
    GSA disagrees with the Judge's finding that it owed a duty to Hanlon
 under the Statute to permit him to distribute literature in
 GSA-controlled areas and that it improperly limited Hanlon's request.
 GSA contends, as it did before the Judge, that it rejected Hanlon's
 request for use of the lobbies and cafeteria because:  (1) those areas
 are not "public areas" under the FPMRs;  (2) such use would disrupt the
 official business of Census and interfere with its right under the
 FPMRs;  and (3) Census did not grant Hanlon permission under the FPMRs
 to solicit union membership and dues.
 
    The General Counsel supports the Judge's findings and conclusions in
 this regard, stressing as it did with Census that GSA did not cite
 disruption of Census' business as a reason given to Hanlon at the time
 his request was denied.
 
    C.  Analysis and Conclusions
 
    We agree with the Judge, based on his rationale, that GSA interfered
 with the exercise of Hanlon's rights under section 7102 of the Statute
 and thereby committed an unfair labor practice in the circumstances of
 this case.  As found by the Judge, GSA treated Hanlon as a Census
 employee and improperly denied him the right to engage in conduct
 protected by the Statute on property jointly administered by Census and
 GSA.
 
    As noted above, GSA asserted before the Judge and in its exceptions
 that it denied Hanlon's request because, among other things, to have
 granted it would have caused undue disruption to the official business
 of both Census and GSA.  However, in agreement with the reasons stated
 by the Judge, we find that this argument does not justify the
 limitations imposed.  Moreover, as noted above, concern for undue
 disruption to agency business was not one of the reasons cited to Hanlon
 by GSA.
 
    Finally, we agree with the Judge that the showing of a union film in
 these circumstances is a form of solicitation protected by the Statute.
 See Social Security Administration, 13 FLRA 409 (1983).  Compare
 Department of Commerce, Bureau of Census, 24 FLRA No. 92 (1986),
 petition for review filed sub nom. Hanlon v. FLRA, No. 87-1093 (D.C.
 Cir. Feb. 17, 1987), in which we found that it was not an unfair labor
 practice for Census to deny Hanlon's request to use agency property to
 set up his own tripods to disseminate union information.  Adopting the
 rationale of the Judge, we found that that case involved only the use of
 agency facilities, a matter of agency discretion, and did not involve
 the right of employees to distribute literature on behalf of a labor
 organization.
 
    We conclude, in agreement with the Judge, that GSA'S refusal to grant
 Hanlon permission to show a union film or video cassette in the Sunny
 Spot lobby violated section 7116(a)(1) of the Statute.  Noting
 particularly the absence of exceptions, we also agree with the Judge's
 finding that the complaint must be dismissed insofar as it alleges a
 violation by GSA'S denial of the request to set up tables and chairs and
 distribute literature, as that part of the request involved several
 non-employee union representatives.
 
                                   ORDER
 
    I.  Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Statute, Department of Commerce, Bureau of the
 Census, shall:
 
    1.  Cease and desist from:
 
    (a) Maintaining a rule that forbids its employees from meeting with
 non-employee representatives of the National Treasury Employees Union,
 or any other labor organization, on those outdoor areas of the Suitland
 Federal Center routinely used by the public.
 
    (b) Maintaining a rule that forbids or unreasonably restricts Edward
 Hanlon or other employees from distributing literature on behalf of the
 National Treasury Employees Union, or any other labor organization, and
 soliciting membership on behalf of the National Treasury Employees
 Union, or any other labor organization, during non-work times in
 non-work areas of the Suitland Federal Center, including the lobbies of
 Federal Office Building 3 and Federal Office Building 4, the cafeteria
 in Federal Office Building 3, the canteen in Federal Office Building 4,
 the Sunny Spot lobby in Federal Office Building 3 and inside the fenced
 areas of Federal Office Building 3 and Federal Office Building 4.
 
    (c) Failing and refusing to seek the necessary approval for such
 conduct from the General Services Administration.
 
    (d) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Permit its employees to meet with representatives of the National
 Treasury Employees Union, or any other labor organization, on those
 outdoor areas of the Suitland Federal Center routinely used by the
 public.
 
    (b) Permit Edward Hanlon and other employees to distribute literature
 on behalf of the National Treasury Employees Union, or any other labor
 organization, and to solicit membership on behalf of the National
 Treasury Employees Union or any other labor organization during non-work
 times in non-work areas, including the lobbies of Federal Office
 Building 3 and Federal Office Building 4, the cafeteria in Federal
 Office Building 3, the canteen in Federal Office Building 4, the Sunny
 Spot lobby in Federal Office Building 3 and inside the fenced areas of
 Federal Office Building 3 and Federal Office Building 4;  and seek the
 necessary approval for such conduct from the General Services
 Administration.
 
    (c) Post at its Suitland Federal Center facilities copies of attached
 Notice A on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms they shall be signed by the
 Director, Bureau of the Census, and 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    II.  Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the General Services
 Administration shall:
 
    1.  Cease and desist from:
 
    (a) Forbidding and unreasonably restricting Edward Hanlon or other
 Census Bureau employees from distributing literature on behalf of the
 National Treasury Employees Union or any other labor organization during
 non-work times in non-work areas of the Suitland Federal Center,
 including lobbies of Federal Office Building 3 and Federal Office
 Building 4, the cafeteria in Federal Office Building 3, the canteen in
 Federal Office Building 4, the Sunny Spot lobby in Federal Office
 Building 3 and inside the fenced areas of Federal Office Building 3 and
 Federal Office Building 4.
 
    (b) Forbidding and unreasonably restricting Edward Hanlon or any
 other Census Bureau employees from exercising their rights under the
 Statute by distributing literature and soliciting membership on behalf
 of the National Treasury Employees Union, or any other labor
 organization, including the showing of films and video cassettes, during
 non-work times in non-work areas of the Suitland Federal Center,
 including the Sunny Spot lobby of Federal Office Building 3.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing Census Bureau employees in the exercise of their rights assured
 by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Permit Edward Hanlon and other Census Bureau employees to
 distribute literature on behalf of the National Treasury Employees
 Union, or any other labor organization and to solicit membership on
 behalf of the National Treasury Employees Union, or any other labor
 organization, during non-work times in non-work areas of the Suitland
 Federal Center, including the lobbies of Federal Office Building 3 and
 Federal Office Building 4, the cafeteria in Federal Office Building 3,
 the canteen in Federal Office Building 4, the Sunny Spot lobby in
 Federal Office Building 3 and inside the fenced areas of Federal Office
 Building 3 and Federal Office Building 4.
 
    (b) Permit Edward Hanlon and any other Census Bureau employees to
 distribute literature and solicit membership on behalf of the National
 Treasury Employees Union, or any other labor organization, including the
 showing of films and video cassettes during non-work times in non-work
 areas of the Suitland Federal Center, including the Sunny Spot lobby of
 Federal Office Building 3.
 
    (c) Post at the Suitland Federal Center facilities copies of attached
 Notice B on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms they shall be signed by the
 Director, Buildings Management Division, Washington, D.C., and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees of the Bureau of the Census are customarily posted.
 Reasonable steps shall be taken to ensure that such Notices are not
 altered, defaced, or covered by any material.
 
    (d) Pursuant to Section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, 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 complaint in Case No. 3-CA-60017, insofar as it alleges a
 violation of the Statute by denying the Charging Party's request to set
 up tables and chairs and disseminate union inforamtion in the Sunny Spot
 lobby, is dismissed.
 
    Issued, Washington, D.C., April 29, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier 222, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                                 NOTICE A
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT maintain a rule that forbids our employees from meeting
 with representatives of the National Treasury Employees Union, or any
 other labor organization, on those outdoor areas of the Suitland Federal
 Center routinely used by the public.
 
    WE WILL NOT maintain a rule that forbids or unreasonably restricts
 Edward Hanlon or other employees from distributing literature on behalf
 of the National Treasury Employees Union, or any other labor
 organization, and soliciting membership on behalf of the National
 Treasury Employees Union, or any other labor organization, during
 non-work times in non-work areas of the Suitland Federal Center,
 including the lobbies of Federal Office Building 3 and Federal Office
 Building 4, the cafeteria in Federal Office Building 3, the canteen in
 Federal Office Building 4, the Sunny Spot lobby in Federal Office
 Building 3, and inside the fenced areas of Federal Office Building 3 and
 Federal Office Building 4.
 
    WE WILL NOT fail or refuse to seek the necessary approval for such
 conduct from the General Services Administration.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL permit our employees to meet with representatives of the
 National Treasury Employees Union, or any other labor organization, on
 those outdoor areas of the Suitland Federal Center routinely used by the
 public.
 
    WE WILL permit Edward Hanlon and other employees to distribute
 literature on behalf of the National Treasury Employees Union, or any
 other labor organization, during non-work times in non-work areas,
 including the lobbies of Federal Office Building 3 and Federal Office
 Building 4, the cafeteria in Federal Office Building 3, the canteen in
 Federal Office Building 4, the Sunny Spot lobby in Federal Office
 Building 3, and inside the fenced areas of Federal Office Building 3 and
 Federal Office Building 4;  and will seek the necessary approval of such
 conduct from the General Services Administration.
                                       (Agency) . . .
 
    Dated:  . . .
                                       By:  (Signature) . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, N.W., 7th Floor (or P.O. Box 33758), Washington,
 D.C. 20033-0758 and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
                                 NOTICE B
 
            NOTICE TO ALL EMPLOYEES OF THE BUREAU OF THE CENSUS
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                        WE HEREBY NOTIFY YOU THAT:
 
    WE WILL NOT forbid or unreasonably restrict Edward Hanlon or other
 Census Bureau employees from distributing literature on behalf of the
 National Treasury Employees Union, or any other labor organization,
 during non-work times in non-work areas of the Suitland Federal Center,
 including the lobbies of Federal Office Building 3 and Federal Office
 Building 4, the cafeteria in Federal Office Building 3, the canteen in
 Federal Office Building 4, the Sunny Spot lobby in Federal Office
 Building 3, and inside the fenced areas of Federal Office Building 3 and
 Federal Office Building 4.
 
    WE WILL NOT forbid or unreasonably restrict Edward Hanlon or any
 other Census Bureau employees from exercising their rights under the
 Statute by distributing literature and soliciting membership on behalf
 of the National Treasury Employees Union, or any other labor
 organization, including the showing of films and video cassettes, during
 non-work times in non-work areas of the Suitland Federal Center,
 including the Sunny Spot lobby of Federal Office Building 3.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce Census Bureau employees in the exercise of their rights
 assured by the Statute.
 
    WE WILL permit Edward Hanlon and other Census Bureau employees to
 distribute literature on behalf of the National Treasury Employees
 Union, or any other labor organization, and to solicit membership on
 behalf of the National Treasury Employees Union, or any other labor
 organization, during non-work times in non-work areas of the Suitland
 Federal Center, including the lobbies of Federal Office Building 3 and
 Federal Office Building 4, the cafeteria in Federal Office Building 3,
 the canteen in Federal Office Building 4, the Sunny Spot lobby in
 Federal Office Building 3, and inside the fenced areas of Federal Office
 Building 3 and Federal Office Building 4.
 
    WE WILL permit Edward Hanlon and any other employees of the Bureau of
 the Census to distribute literature and solicit membership on behalf of
 the National Treasury Employees Union, or any other labor organization,
 including the showing of films and video cassettes during non-work times
 in non-work areas of the Suitland Federal Center, including the Sunny
 Spot lobby of Federal Office Building 3.
                                       (Agency) . . .
 
    Dated:  . . .
                                       By:  (Signature) . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, N.W., 7th Floor (or P.O. Box 33758), Washington,
 D.C. 20033-0758 and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos. 3-CA-50528
               3-CA-50537
 
    Case Nos. 3-CA-50529
               3-CA-60017
 
    DEPARTMENT OF COMMERCE
    BUREAU OF THE CENSUS
    Respondent
                                    and
 
    GENERAL SERVICES ADMINISTRATION
    Respondent
 
                                    and
 
    EDWARD HANLON
    Charging Party
 
    C.J. Schmidt, Esquire
    Paul A. Bath, Esquire
    For the Respondent Department of Commerce Bureau of the Census
 
    Mary Ann Pacacha, Esquire
    For the Respondent General Services Administration
 
    Edward Hanlon
    For the Charging Party
 
    David Scholl, Esquire
    Peter A. Sutton, Esquire
    For the 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, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq., 92 Stat. 1191 (hereafter referred to as the
 Statute) and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
 
    A charge in Case No. 3-CA-50528 was filed on September 20, 1985 by
 Edward Hanlon, and individual, against Department of Commerce, Bureau of
 Census, hereafter referred to as Census.  A charge in Case No.
 3-CA-50529 was filed on September 20, 1985 by Hanlon against General
 Services Administration, hereinafter called GSA.  On December 19, 1985
 the General Counsel of the FLRA, by the Director of Region III, issued
 an Order Consolidating cases and Complaint and Notice of Hearing in Case
 Nos. 3-CA-50528 and 3-CA-50529 alleging that Census and GSA violated
 Section 7116(a)(1) of the Statute by issuing and maintaining a limited
 distribution rule concerning union literature.
 
    A charge in Case No. 3-CA-50537 was filed on September 26, 1985 by
 Hanlon against Census.  On December 19, 1985 the General Counsel of the
 FLRA, by the Director of Region III, issued a Complaint and Notice of
 Hearing alleging that Census violated Section 7116(a)(1) of the Statute
 by preventing employees from meeting with representatives of any union,
 other than Local 2782, American Federation of Government Employees,
 hereinafter called AFGE Local 2782 of AFGE, in any Census facility or
 anywhere on the Suitland Federal Center.
 
    A charge in Case No. 3-CA-60017 was filed on October 3, 1985 by
 Hanlon against GSA.  On December 19, 1985 the General Counsel of the
 FLRA, by the Director of Region III issued a Complaint and Notice of
 Hearing alleging that GSA violated Section 7116(a)(1) of the Statute by
 refusing to permit Hanlon to show a film and set up tables and chairs
 for the purpose of disseminating union information in a non-work area.
 
    Respondents Census and GSA filed timely Answers denying that they had
 violated the Statute.
 
    A prehearing conference was held in Washington, D.C. and all parties
 were represented and the undersigned consolidated Case Nos. 3-CA-50528,
 3-CA-50529, 3-CA-50537, 3-CA-60017 for the purpose of hearing and
 decision.  /8/
 
    A hearing in this matter was conducted before the undersigned in
 Washington, D.C.  Census, GSA, Hanlon 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.
 Briefs were filed and have been fully considered.
 
    Based upon the entire record in this matter, /9/ my observation of
 the witnesses and their demeanor, and my evaluation of the record I make
 the following:
 
                             Findings of Fact
 
    Census is the main statistical gathering and analysis agency for the
 government.  At its headquarters located in Suitland, Maryland, Census
 employees approximately 3500 persons, including about 2700 to 3000 who
 are represented by AFGE Local 2782.
 
    The Suitland Federal Center (Center), where Census is located,
 consists of five Federal office buildings with parking lots, open park
 lands, baseball fields, and garden plots.  The Center is bordered by
 three public highways and is serviced by the Metro public bus system.
 Members of the public have access to the grounds and roadways of the
 Center, there being no guards at entrance or exit points on the grounds.
 
    Most of the Census headquarters' employees are located in two
 buildings in the Center, designated Federal Office Building 3 (FOB3) and
 Federal Office Building 4 (FOB4).  About 95% of the space in FOB3 is
 occupied by Census employees and Census occupies about 50% of the space
 in FOB4.  /10/ With respect to both FOB3 and FOB4 GSA has not leased to
 Census the lobbies of FOB3 and FOB4, the cafeteria located in FOB3, and
 the canteen in FOB4 and the Sunny Spot lobby in FOB3.
 
    FOB3 consists of a main wing off which runs seven wings.  To travel
 between the seven wings of FOB3 one must use the corridors of the main
 wing, including the lobby, or on the second and third floors, use
 catwalks.  In the basement of FOB3 is the G-300 corridor.  The cafeteria
 is located at the end of the G-300 corridor and at the opposite end is
 an area called the Sunny Spot lobby.  Also on this corridor is a branch
 office of Suburban Trust (a private bank), a Department of Commerce
 credit union office, an office of AFGE Local 2782 and gift
 shop-convenience store called the "Sunny Spot."
 
    Directly in front of FOB3 is a large, open parking lot for use of
 Census employees and visitors.  Behind FOB3 is a parking lot for
 high-graded Census employees;  this lot is enclosed by a 7 foot
 chain-link fence located about 20 feet from the building.  This fence
 has three entry ways for pedestrians and vehicles.
 
    There is a main lobby entrance located in the main wing at the front
 of FOB3 and two or three entrances /11/ in the rear of FOB3.  A guard
 /12/ is located in the main lobby of FOB3 located at a small table at
 the entrance door.  /13/ Across from the guard's desk is an information
 and reception desk staffed by one or two Census employees.
 
    FOB4 is located adjacent to FOB3 and has three entrance points.  The
 rear of FOB4 is enclosed by a chain-link fence which has two openings
 for pedestrians and vehicles.  FOB4 is smaller than FOB3 and consists of
 only four wings.  FOB3 and FOB4 are connected by a tunnel that runs
 between the two buildings at the basement level.  This tunnel leads into
 the Sunny Spot lobby.
 
    All the pedestrian and vehicular entrances to FOB3 and FOB4 are
 controlled by guards contracted for by Census.  Census employee pass
 through any of the entrances into FOB3 and FOB4 by showing their Census
 green identification badges.  Visitors desiring to enter FOB3 or FOB4
 must enter through the main lobbies.  When entering FOB3 visitors are
 directed by the guard to the reception desk where the visitor is issued,
 by the Census employees, a yellow building pass if on official business
 or a salmon-colored pass if wishing to use the cafeteria or bank in the
 Sunny Spot lobby.
 
    The Sunny Spot lobby contains about 900 square feet, has a number of
 corridors and stairwells entering it and contains several vending
 machines and bulletin boards.  It is a busy area through which employees
 in FOB3 and FOB4 pass on their way to the cafeteria, convenience store,
 bank, etc.
 
    The canteen in FOB4 is a square room of about 515 square feet and
 contains several vending machines and tables and chairs for employees
 use while on break and during lunch.
 
    At all times material herein Hanlon has been an employee of Census, a
 member of the bargaining unit and, from March 1984 to March 1985,
 President of AFGE Local 2782.
 
    On March 28, 1985 Hanlon and several other employees who supported
 National Treasury Employees Union, hereinafter called NTEU, scheduled a
 training room at Census to hold a meeting with non-employee NTEU
 organizers.  There was some type of disturbance between AFGE and NTEU
 supporters.  Security personnel arrived and the meeting was terminated.
 
    On April 8, 1985 a meeting was held by the NTEU supporters in a
 training room.  A non-employee NTEU representative was speaking to a
 group of Census employees.  A group of Census employees who were AFGE
 supporters came to the training room while the meeting was in progress.
 Richard Robinson, Census' Chief of Security entered the training room
 and terminated the meeting and told the NTEU representatives, who were
 not Census employees, to leave the building.  There was then an
 altercation between Robinson and certain of the NTEU supporters,
 including Hanlon and Census employee Ruth Sanders.  /14/
 
    On July 3, 1985 an incident occurred between Census employees who
 supported AFGE and those supporting NTEU.  AFGE supporters tore NTEU
 literature off an AFGE bulletin board and Hanlon, in his report of the
 incident, stated that he thought Burns would hit him.
 
    On or about April 10, 1985 Hanlon and nine other bargaining unit
 employees received a memorandum from Census' Labor Relations Officer
 Woodward.  The memorandum noted that certain use of the internal agency
 mail had linked Hanlon and the other nine employees to NTEU solicitation
 activities and states:
 
    "The Agency must take positive steps to insure full compliance with
 the law.  We consider any employee actions which endanger the Census
 Bureau's legal position a serious matter.  Therefore, as protection for
 the Agency at this time, we expect you to stop meeting with
 representatives of any Union, other than AFGE, in any Census Bureau
 facilities or anywhere on the Suitland reservation."
 
    Hanlon asked Woodard, during a telephone conversation, what was the
 meaning of the phrase "anywhere on the Suitland reservation," pointing
 out that there are many areas at the center to which the public has free
 access.  Woodward stated that the phrase "Suitland reservation" used in
 the April 10 memorandum included the park land, roadways, parking lots
 and if the perimeter sidewalks were included if they were included as
 well.
 
    Hanlon sent Woodward a Memorandum dated May 30, 1985 in which he and
 the unit employees wished to exercise their Section 7102 rights by
 distributing literature during non-duty time in the canteen, "the CSvD
 canteen," and the Sunny Spot and the lobbies of FOB3 and FOB4 and the
 cafeteria.  The memorandum assured Woodward that the distribution would
 take place during non-duty time and in non-work areas.
 
    Woodward responded to Hanlon in a memorandum dated May 31, 1985.  In
 her memorandum Woodward stated that she assumed the literature that
 Hanlon and the others wanted to distribute was on behalf of NTEU.  She
 further stated Census would take positive steps "to ensure that
 solicitation for a labor organization without equivalent status does not
 take place in Census Bureau facilities or on the Suitland reservation.
 Accordingly, neither you nor other bargaining unit members are
 authorized to distribute literature which solicits or which gives the
 appearance of soliciting for a labor organization other than AFGE Local
 2782, the exclusive representative."
 
    By memorandum dated June 5, 1985 Hanlon informed Woodward that the
 request to distribute literature was made by the employees as
 "individual unit employees . . . to be able to communicate with other
 unit employees via literature while in non-work areas during non-work
 time . . . ." Hanlon stated clearly that access to the premises by
 non-employees was not sought.  Woodward responded to Hanlon by a
 memorandum dated June 5 in which she stated that Census' position, with
 respect to the distribution of literature remained as previously stated,
 pending advice from the legal staff.
 
    Hanlon sent Woodward a memorandum dated June 6 restating his request
 for unit employees to distribute literature to unit employees during
 non-work time in non-work areas.
 
    By a memorandum dated July 12, 1985, Woodward advised Hanlon that
 Census authorized the distribution of union literature in the Sunny Spot
 lobby and outside the fenced areas of FOB3 and FOB4 by only one employee
 at a time.  Further the distribution must be limited to the working
 hours of Census, 7 am to 6 pm and the employees distributing the
 material must be in non-duty status and confine the distribution to
 three specific areas.  Woodward concluded that the request for approval
 would be forwarded to the Building Manager and Census would notify
 Hanlon as soon as the building manager's reply was received.
 
    By a memorandum dated July 15, 1985 Woodward advised Building Manager
 Walter Woodhead that Hanlon, a Census employee, requested that he and
 other employees be authorized to distribute literature in "non-work
 areas of the Census Bureau . . ." The document stated further:
 
          "Our legal inquiries do suggest that employees may distribute
       literature in support of a union other than the exclusive
       representative.  Since any Census Bureau bargaining unit employees
       can claim this right, it is necessary that we maintain order in
       the workplace and reduce the likelihood of disruption in Census
       Bureau activity.  For this reason, the areas that we believe most
       clearly lend themselves to general distribution by employees
       include the lobby area adjacent to the Sunny Spot in Building 3 as
       well as outside the restricted (fenced) zones of Building 3 and 4
       . . . ."
 
    On July 16, 1985 Woodhead approved Woodward's memorandum without
 alteration and Woodward transmitted the approval to Hanlon by memorandum
 dated July 18, 1985, which reiterated that the union literature could be
 distributed in the Sunny Spot Lobby and outside the fenced areas of FOB3
 and FOB4 by only one person at a time.
 
    On August 2, 1985 /15/ Hanlon sent a letter to Woodhead in which
 Hanlon requested "As a member of the public" use of the Sunny Spot lobby
 on certain dates to disseminate union information.  Hanlon expressed a
 desire to set up a movie project and screen or, possibly, a video
 cassette player on certain dates and on others to set up two or three
 tables and "a half dozen small additional pieces." The letter stated
 further "several non-employees will need admittance to the building on
 these dates . . . and would not leave the Salmon colored pass zone . . .
 ." "As a member of the public" Hanlon also requested permission to set
 up a single tripod in the lobby of FOB3 and FOB4, the Sunny Spot lobby
 and outside the cafeteria entrance to "advertise information about a
 vote on reaffiliation with NTEU . . ." Hanlon requested to use the
 cafeteria on a specific day from 2:00 pm to 3:00 pm to hold a meeting
 open to all employees who wish to attend and "The meeting shall comprise
 a speaker(s) from NTEU . . ." Hanlon then named two persons "of the NTEU
 as his contact person.
 
    Not having received a responce, Hanlon went to see Woodhead and
 advised Woodhead that Hanlon wanted to show a union film and distribute
 union literature.  Woodhead refused to grant permission.
 
    On August 19, 1985 Hanlon sent a letter to Woodhead reiterating his
 request for permission for himself and others to distribute literature
 in the main lobbies of FOB3 and FOB4, 1200 wing lobby FOB, the Sunny
 Spot lobby and the cafeteria and to show a film in the Sunny Spot lobby.
  Hanlon stated he was making the request as an "individual member of the
 public" and not on behalf of NTEU or AFGE.
 
    By letter dated August 22, 1985 Woodhead denied Hanlon's requests to
 distribute literature concerning NTEU on the grounds that the end result
 of the request would be to increase membership in NTEU, that the Federal
 Property Management pregulation (101-20.308) requires authorization by
 the occupant agencies for solicitation of union membership and Hanlon
 had not included an authorization from Census.
 
    By letter dated August 27, 1986 to GSA, Hanlon appealed Woodhead's
 disapproval of the application to distribute literature.  By letter of
 September 5, Alex P. Lucas, GSA Director of Buildings, denied Hanlon's
 appeal "Based on a careful review of (his) request, and after
 consideration of the position of the occupant agency . . ." Census had
 forwarded a memorandum to Lucas recommending that Hanlon's requests be
 denied.  The record establishes that Census' recommendation was a major
 factor in GSA'S decision to deny Hanlon's appeal.
 
    On December 6, 1985 Census issued a number of Memorandum to Hanlon
 and other employee AFGE supporters.  In the memoranda Census permitted
 Hanlon to have two additional employees distribute union literature in
 the Sunny Spot lobby and to have tables available.  Generally Census
 stated it did not intend to interfere with employees exercising their
 Section 7102 rights.
 
    During the past two years private computer firms have used the Sunny
 Spot lobby for displaying computers, printers, etc., and distributing
 literature, including price lists.  /16/ These displays are typically
 run by three to five individuals.  GSA had a standing authorization from
 Census to let computer firms use the Sunny Spot lobby.  /17/ GSA would
 have permitted Hanlon to distribute union literature in the Sunny Spot
 lobby if so requested by Census, and if Census agreed to provide
 adequate security.  /18/
 
    GSA has jurisdiction custody and control of all public buildings
 outside the District of Columbia, including the buildings involved in
 this case.
 
    The Suitland Center is under the charge and control of GSA. Access to
 the Center's complex and grounds outside the building is unrestricted.
 
    GSA has promulgated rules governing persons' entry onto property
 under its control.  The relevant sections are 40 CFR 101-20.3 and
 101-20.7 governing both assigned and unassigned space.
 
    41 C.F.R. 101-20.308 generally prohibits "soliciting alms, commercial
 or political soliciting, and vending of all kinds, displaying or
 distributing commercial advertising, or collecting private debts on
 GSA-controlled property." The exceptions to this general prohibition on
 Federal property relevant to this case are:
 
                       *          *          *
 
 
          (c) solicitation of labor organization membership or dues
       authorized by occupant agencies under the Civil Service Reform Act
       of 1978 (Pub. L. 95-454);  and (d) lessee, or its agents and
       employees, with respect to space leased for commercial, cultural,
       educational, or recreational use under the Public Buildings
       Cooperative Use Act of 1976 (40 U.S.C. 490(a)(16)).
 
    Further, Section 101-20.309 governs the distribution of handbills on
 Federal Property:
 
          Distribution of materials, such as pamphlets, handbills, or
       flyers, is prohibited, except in the public areas of the property
       as defined in Section 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.
 
    In 1976, Congress passed the Public Buildings Cooperative Use Act of
 1976 which encourages the use of certain public areas for cultural,
 educational, and recreational activities.  /19/ Specifically, the
 Cooperative Use Act provides that the Administrator of GSA shall:
 
          . . . make available, on occasion, . . . and on such other
       terms and conditions as the Administrator deems to be in the
       public interest, auditoriums, meeting rooms, courtyards, rooftops
       and lobbies of public buildings to persons, firms, or
       organizations engaged in cultural, educational, or recreational
       activities . . . that will not disrupt the operation of the
       building.  40 U.S.C. 490(a)(17)
 
    The Section of GSA'S Property Management Regulations dealing with the
 Occasional Use of Public Areas in Public Buildings is Section 101-20.7.
 The purpose of the regulations was "to create rules and procedures to be
 followed in permitting the occasional use of public buildings and
 grounds for cultural, educational, and recreational activities."
 
    The definition of "public area" contained in the regulations
 provides:
 
          'Public area' shall mean any area of a public building or its
       grounds ordinarily open to members of the public, such as lobbies,
       courtyards, auditoriums, meeting rooms, and any other area not
       specificially leased by any lessee of the public buildings.  41
       CFR 101-20.701(b).
 
    The determination of whether a particular lobby or grounds
 constitutes a "public area" for purposes of the Cooperative Use Act is
 made on a case-by-case basis by GSA management officials based on such
 factors as the need for security, etc.
 
    There are ten grounds set forth in the regulations for disapproval of
 an application for a permit for use of a public area.  The grounds
 relied upon by GSA for disapproval in this case of Hanlon's proposed use
 are:
 
                       *          *          *
 
 
          (4) Disrupt(s) the official business of the agency or agencies
       occupying the public buildings;
 
          (5) Interfere(s) with a tenant's quiet enjoyment of their
       leasehold.  41 CFR 101-20.703(a).
 
    At Census, requests to use the public areas from non-employees are
 submitted to the GSA Buildings Manager at the Suitland Center.
 Generally, whenever an employee desires to use space controlled by GSA,
 it has been the practice for Census employees to submit the request to
 an appropriate management official at Census who then submits the
 request to the Buildings Manager for approval.  This practice was
 instituted to ensure that Census maintains the proper control over
 employees and to reduce the likelihood of any disruption in the
 workplace.
 
    Finally, there is no dispute that the areas to which Hanlon requested
 access are areas for which Census pays no standard level users charge
 ("SLUC").
 
                     Discussion and Conclusions of Law
 
    Section 7116(a)(1) of the Statute provides that it is an unfair labor
 practice for an agency "to interfere with, restrain or coerce any
 employee in the exercise by the employee of any right under this
 chapter;  . . . ." Section 7102 of the Statute provides "Each employee
 shall have the right to form, join or assist any labor organization . .
 . ."
 
    The FLRA has held that employees have a right, protected by Section
 7102 of the Statute to solicit membership and distribute literature on
 behalf of labor organizations during non-work time in non-work areas.
 e.g. General Services Administration, 9 FLRA 213, (1982), Internal
 Revenue Service, North Atlantic Service Center, Andover, Massachusetts,
 7 FLRA 596 (1982).  The FLRA has further held that an employee has the
 right to solicit membership /20/ while in non-duty status in work areas
 where the employees being solicited are also in non-duty status, absent
 disruption of the activity's operations.  See Social Security
 Administration, 13 FLRA 409 (1983) and Oklahoma City Air Logistics
 Center, Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981).  This right
 of employees to distribute literature and solicit membership on behalf
 of a labor organization, as recognized by the FLRA, is one of the most
 fundamental rights of employees protected by Section 7102 of the
 Statute;  a right whose protection is most important.  Such a right for
 employees to communicate among themselves is necessary if the employees
 are to have any meaningful right to organize for collective bargaining.
 
    In its April 10th memorandum Census advised Hanlon and certain other
 employees that they were to stop meeting with representatives of any
 union, other than AFGE, "in any Census Bureau facilities or anywhere on
 the Suitland reservation." This memorandum, on its face, seems to
 prohibit meeting with all union representatives, /21/ including both
 representative who are employees of Census and those who are not Census
 employees.  All parties seem to assume the reference to union
 representatives applied only to non-employee union representatives and
 the General Counsel of the FLRA does not allege the April 10 memorandum
 reference to union representatives applied to both Census employees as
 well as non-Census employees.  General Counsel of the FLRA contends only
 that the April 10 memorandum interferes with employee Section 7102
 rights because Section 7102 of the Statute which protects employee
 rights to engage in union solicitation during non-work time encompasses
 the right to meet and talk with non-employee union organizers in areas
 where members of the public are allowed free access.  /22/
 
    The April 10 memorandum specifically instructed Census employees to
 stop meeting with representatives of any union anywhere on the Suitland
 reservation.  The record established that the walkways, and the outside
 grounds of the Center were open and utilized by the public at large for
 both walkways and recreation.  Therefore, absent the April 10
 memorandum, the Center grounds are available for use by both Census
 employees and non-employee union representatives.  The non-employee
 Union representative were being excluded from these grounds, which were
 otherwise open to the public, solely because they were union
 representatives.  In such circumstances Census' April 10 memorandum
 violated Section 7116(a)(1) of the Statute because it was an unjustified
 restriction of the employees' rights to meet with non-employee union
 representatives in areas open and available to the general public.  c.f.
 Spencer Industries, 271 NLRB No. 191 (1981) and Montgomery Ward and Co.,
 256 NLRB 800 (1981), enforced 692 F2d 1115 (9th Cir. 1982), Cert.
 denied, 103 S.Ct. 1982 (1983).
 
    The record establishes that, with respect to the interior areas
 Hanlon wished to utilize for distribution of union material, GSA and
 Census, in practice, administer them jointly.  Thus, with respect to the
 FOB3 lobby Census contracts for the guard and the information desk is
 staffed by Census employees that distribute the plastic identification
 passes to visitors, including those visitors going to the cafeteria,
 Sunny Spot lobby, etc.  Further the record establishes that GSA, in
 effect, will approve any use of these areas if it is recommended by the
 tenant activity, in this case Census.
 
    The record establishes by memorandum dated May 30, 1985 the Hanlon
 advised Census, that Hanlon and other Census employees wished to
 distribute union literature to all the Census employees during non-work
 time in the lobbies of FOB3 and FOB4, FOB3 Cafeterta, FOB3 Sunny Spot
 lobby and FOB4 canteen.  After an exchange of communcations, by
 memorandum of July 18, 1985 Census advised Hanlon that Census employees
 in non-work status could distribute literature only in the Sunny Spot
 lobby of FOB3 and outside the fenced areas of FOB3 and FOB4.  Further,
 Census stated that only one person (employee) at a time was authorized
 to distribute literature in the Sunny Spot lobby.  The GSA Building
 Manager approved this July 18 Census Memorandum.  Accordingly, Census
 and GSA acted jointly in prohibiting Census employees from distributing
 union literature at any time in the lobbies of FOB3 and FOB4, the FOB3
 Cafeteria and the FOB4 canteen and in restricting the distribution of
 union literature in the Sunny Spot lobby to one employee at a time and
 to the area outside the fenced areas of FOB3 and FOB4.
 
    The record establishes, and there is no dispute, that the Sunny Spot
 lobby is a non-work area.  Similarly the FOB3 Cafeteria and FOB4 canteen
 are non-work areas where Census employees, and others, go during
 non-work times to take coffee and lunch breaks.
 
    The employees enter and leave work through the lobbies of FOB3 and
 FOB4.  Persons visiting Census on business and those visiting the bank
 or the Convenience store in the Sunny Spot lobby enter and receive their
 visitor passes in the FOB3 lobby.  The record also establishes that
 employees travelling to different parts of the building on business,
 might, and sometimes do, incidentally, pass through these lobbies.
 Also, apparently prior to 1985, during 1984 and before, the lobby in
 FOB3 was the cite of some sales and promotional activities, including
 some employee-sponsored activities, relating for example, to the
 employee recreation and welfare group.  Noting all of the foregoing and
 recognizing that entrance lobbies are where employees enter and leave
 work, are places where employees, before and after work, stop to talk
 about many matters including union concerns, I conclude the FOB3 and
 FOB4 lobbies are non-work areas that are appropriate for employees to
 engage in union solicitation and distribution.  See Time Publishing Co.
 v. NLRB, 576 F2d 1107 (5th Cir. 1978).
 
    I conclude, in light of the foregoing, that Census' July 18
 memorandum, as approved and sanctioned by GSA, interfered with Hanlon's
 and other employees' rights to solicit membership and distribute
 literature on behalf of a labor organization, insofar as it forbade such
 activities during non-work time in the lobbies of FOB3 and FOB4, FOB3
 Cafeteria and FOB4 Canteen.  Further in so far as the July 18 memorandum
 limited the solicitation and distribution in the Sunny Spot lobby to one
 employee at a time, I conclude it constitutes an unreasonable
 interference and limitation on the employees' rights.  In this regard
 the limitation to one employee is unreasonable in light of the size of
 the Sunny Spot lobby, the amount of traffic that passes through it, the
 manner of employees that use it and the other activities that take place
 in the Sunny Spot lobby.  The three incidents involving supporters of
 NTEU and AFGE were insufficient to justify this limitation.  The
 incidents were minor, two of the three involved non-employee union
 representat ves on Census property, and were easily controlled.  In
 these circumstances, in the absence of any empirical or experiential
 evidence, a limit of one employee at a time to distribute Union
 literature is an unreasonable interference with employees rights granted
 by Section 7102 of the Statute.  /23/
 
    Census' memoranda of December 6, 1985 are not sufficient to nullify
 Census' interference with the employees' rights.  The memoranda only
 attempted to resolve the limitation in the Sunny Spot lobby and not in
 the other areas and were issued almost 6 months after Census and GSA
 promulgated the rules that unlawfully restricted the employees' rights.
 
    GSA contends, in related arguments, that Hanlon has no standing to
 allege a violation of Section 7116(a)(1) of the Statute by GSA based on
 GSA'S interference with Hanlon's Section 7102 rights because GSA owed
 him no obligation under Section 7102 of the Statute because Hanlon was
 not an employee of GSA.
 
    Section 7103(a)(2) of the Statute defines employee as "an individual
 -- (A) employed in an agency . . ." and Section 7103(a) (3) defines
 agency as ". . . an Executive agency . . ." Section 7116(a)(1) of the
 Statute provides that it is "an unfair labor practice for an agency --
 (1) to interfere with, restrain or coerce any employee in the exercise
 by the employee of any right under this chapter;  . . ." Under a literal
 reading of the foregoing sections of the Statute GSA is an "agency".
 Hanlon is an "employee" and GSA could violate Section 7116(a)(1) of the
 Statute with respect to Hanlon because there is no stated requirement
 that the agency committing interference can only violate the Statute if
 it interferes with the rights of its own employees'.  Such a literal
 approach is too simplistic and does not deal with the aims and purposes
 of the Statute.
 
    The purposes of the Statute, as set forth in Section 7101, is to
 protect the rights of employees to organize and bargain collectively,
 recognizing that such organization and collective bargaining in the
 civil service is in the public interest.  In order to realize these
 purposes Section 7102 of the Statute grants to federal employees the
 right to form, join or assist any labor organization and Section
 7116(a)(1) of the Statute forbids agency interference with the employees
 exercise of these rights.  All the employees covered by the Statute
 have, at the highest level, a common employer, the Federal government;
 thus an agency for whom the employee does not work, is not a complete
 stranger.  On the other hand it would seem an over broad application of
 the Statute to hold an agency responsible for interference with the
 rights of its non-employees, who are however Federal employees, because
 an agency official might have done or said something that might
 incidentally interfere with such a non-agency employees' Section 7102
 rights, where such non-agency employees have no other contact with the
 agency.  /24/ However, as in the subject case, where as agency has a
 direct relationship with such federal employees who do not work for it,
 I conclude the Statute was meant to protect the rights of the Federal
 employees from interference by such a non-employing agency.  Thus, GSA
 because it controls, either solely or, as in the subject case, jointly
 the space in which the employees work is in a position to effectively
 eliminate or limit the rights the Statute is meant to protect.  GSA is
 not a stranger to such employees but rather has certain "employer like"
 control them.  There is sufficient nexus between GSA and those Federal
 employees who work in space controlled by GSA to hold GSA responsible
 under the Statute, if it interferes with the employees' rights
 guaranteed by the Statute, even where the employees are not employed by
 GSA.  /25/
 
    In the subject situation, therefore, I conclude GSA was responsible,
 together with Census, for maintaining a rule that constituted on
 unreasonable and unlawful limitation of the organizational activities of
 the Census employees.  Thus the limitations set forth in Census' July 18
 memorandum, that were approved by GSA, constituted a violation of
 Section 7116(a)(1) of the Statute by both GSA and Census.
 
    By letter dated August 2, 1985 Hanlon asked the GSA building for
 permission, "as a member of the public . . .," to set up a projector, or
 use a video cassette player, on certain days in the Sunny Spot lobby;
 to set up two or three tables on certain other days in the Sunny Spot
 lobby, including the admission of "several non-employees;" and to set up
 a single tripod in the lobby of FOB3, the lobby of FOB4, the Sunny Spot
 lobby and outside the Cafeteria entrance to provide information
 concerning a union reaffiliation vote and meeting.  He also requested to
 use the Cafeteria for an hour to hold a meeting of Census employees,
 including NTEU speakers.  By letter dated August 19 Hanlon repeated his
 requests of August 2 only put them in terms of FPMP Sections.  By letter
 dated August 22, 1985 GSA denied Hanlon's requests because he did not
 include authorization from Census for solicitation of labor organization
 membership.  Hanlon renewed his requests by letter of August 27, 1985
 directed to the Director of GSA Northern District.  By letter of
 September 5, 1985 GSA reiterated its denial of Hanlon's requests "after
 consideration of the position of the occupant agency . . . ." The record
 establishes that GSA has some control over the areas Hanlon wished to
 use.
 
    The unfair labor practice complaint against GSA, Case No. 3-CA-60017,
 alleges as a violation of the Statute only GSA'S refusal to grant
 Hanlon's request to "show a film and set up tables and chairs for the
 purpose of disseminating union information in the Sunny Spot lobby of
 FOB #3 . . . ." Thus this decision will be limited these allegations.
 
    As discussed above, the Sunny Spot lobby is a non-work area and
 therefore employees' have the right, as protected by the Statute, during
 non-work time, to distribute literature and solicit membership on behalf
 of a union.  Thus GSA'S refusal to permit Hanlon and his associates to
 engage in such conduct violated Section 7116(a)(1) of the Statute.  It
 should be noted that in denying permission to solicit membership and
 distribute literature for a union, GSA was apparently withdrawing the
 limited permission that had already been granted.  Further such a denial
 by GSA was not required by any law.
 
    The FLRA has held the showing of a union film by employees during
 non-work time is a form of solicitation and is protected by the Statute.
  Social Security Administration, 13 FLRA 409 (1983).  Thus GSA'S refusal
 to permit Hanlon to show a film or video cassette violated Section
 7116(a)(1) of the Statute.
 
    It would seem that the setting up of two or three tables in the Sunny
 Spot lobby for the distribution of union literature would also be so
 protected.  /26/ However, part of this request involved "several
 non-employees . . . ." This was then a request to set up an area in the
 Sunny Spot lobby where non-employees could distribute union literature.
 I conclude that, absent a showing of no other means of communication,
 the Statute does not grant the right of access to government property
 during an organizing campaign to non-employee union representatives for
 the purposes of solicitation and distribution.  Thus GSA'S refusal to
 grant permission to Hanlon to have such a program did not violate the
 Statute.  In so concluding I note that record references to computer
 sales displays in the Sunny Spot lobby were all work related;  it was
 not an area where the general public was invited to display and sell
 items.  /27/
 
    GSA contends that it did not grant Hanlon's request "based on three
 reasons:  (1) those areas do not constitute "public areas" for purposes
 of 41 CFR 101-20.7;  (2) such use would disrupt the official business of
 the agency (Census Bureau) and interfere with the tenant's quiet
 enjoyment of its leasehold (assignment) 41 CFR 101-20.703(4) and (5);
 and (3) the Census Bureau did not grant permission under 41 CFR
 101-20.308(c) to solicit labor organization membership and dues."
 
    GSA contends that because Hanlon made it clear in his letters that he
 was requesting permission from GSA as "a member of the public" pursuant
 to GSA'S Federal Property Management Regulations and GSA responded
 properly under those regulations and legitimately refused Hanlon access
 to this GSA controlled space.
 
    Although Hanlon made his request "as a member of the public . . ."
 GSA knew, at all times, that Hanlon was a Census employee, and required
 that he seek and submit authorization from Census to engage in the
 requested activity.  Accordingly, GSA cannot protect its conduct by
 claiming it treated Hanlon as a member of the public, rather than as
 employee whose rights are protected by the Statute.  In fact GSA'S
 letters made it quite clear that if Census had approved Hanlon's
 request, GSA would do the same.
 
    GSA admits, in its brief, that it considered Hanlon's status as an
 employee in applying GSA regulations and thus requested Census' opinion
 with respect to Hanlon's requests.
 
    At first blush it is a very appealing position that because Hanlon
 chose to seek permission to utilize the specified areas as "a member of
 the public" /28/ and pursuant to the Federal Property Management
 Regulations, /29/ not the Statute, he was not seeking to enforce a right
 under the Statute, as an employee, and therefore the matter does not
 involve Hanlon's rights under the Statute.  /30/ The facts of the
 subject case however require a contrary result.  Thus in the subject
 case, after having requested from Census permission to distribute and
 solicit on behalf of a union in the Sunny Spot lobby, and the lobbies of
 FOB3 and FOB4, /31/ and having his Statutory rights denied by Census, as
 approved by GSA, Hanlon sought by his August letters to go directly to
 GSA to seek his protected rights.  GSA not only knew of Hanlon's NTEU
 activity and status as a Census employee, it treated him as a Census
 employee and in fact asked Census for its position as to whether GSA
 should approve Hanlon's request.  In substance, GSA treated Hanlon as a
 Census employee trying to exercise rights protected under the Statute.
 
    Further GSA did not, in its letters, deny Hanlon's requests because
 the areas involved were not "public areas," /32/ but rather because
 Hanlon had not submitted authorization from Census.  However, However,
 Hanlon had previously requested permission from Census to engage in
 similarly protected conduct in the same areas and Census, with GSA
 approval, had substantially denied him such permission.  To require
 Hanlon to again seek such permission from Census would have been to
 require him to engage in a futile and meaningless act.  I conclude that
 GSA could not, in the circumstances here present, deny Hanlon's request
 to engage in protected activity because he failed to engage in such a
 futile and meaningless act.
 
    Finally, GSA stated it was justified in denying Hanlon's request to
 engage in the requested activity in the Sunny Spot lobby because to
 permit it would have resulted in a disruption in Census' business.  GSA
 contends that because of the three prior incidents involving NTEU and
 AFGE supporters it properly anticipated disruptions would occur if it
 granted Hanlon's requests.  This was particularly true, contends GSA,
 with respect to the Sunny Spot lobby, because AFGE'S office is located
 off the Sunny Spot lobby.  This contention is rejected because, as
 concluded above, the prior incidents were minor and did not justify the
 denial of such fundamental rights to Census employees.  In this regard I
 note in the Sunny Spot lobby Census permitted one employee at a time to
 engage in such conduct.  In the circumstances here present, to permit
 the denial of such organization rights to the Census employees based on
 the relatively minor NTEU-AFGE incidents, would be to permit AFGE
 supporters to prevent Census employees from seeking to organize for
 another union.  Such a result would frustrate the basic rights of
 employees, guaranteed by Section 7102 of the Statute, to aid and support
 labor organizations of their choice.
 
    Thus, I find that Hanlon, in asking to show the film or video
 cassette in his August letters to GSA, was attempting to engage in
 conduct protected by the Statute and that GSA treated Hanlon as a Census
 employee and unlawfuly denied Hanlon the right to engage in such conduct
 in property jointly administered by Census and GSA.  Accordingly, GSA's
 refusal to grant Hanlon permission to engage in such protected activity
 violated Section 7116(a)(1) of the Statute.
 
    Having concluded that Census and GSA violated Section 7116(a)(1) of
 the Statute I recommend that the Authority issue the following:
 
                                   ORDER
 
    I.  Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 the Department of Commerce, Bureau of Census, shall:
 
    1.  Cease and desist from:
 
          (a) Maintaining a rule that forbids our employees from meeting
       with representatives of National Treasury Employees Union, or any
       other labor organization, on those outdoor areas of the Suitland
       Federal Center routinely used by the public.
 
          (b) Maintaining a rule that forbids or unreasonably restricts
       Edward Hanlon or other employees from distributing literature on
       behalf of National Treasury Employees Union, or any other labor
       organization, and soliciting membership on behalf of National
       Treasury Employees Union, or any other labor organization, during
       non-work times in non-work areas of the Suitland Federal Center,
       including the lobbies of Federal Office Building 3 and Federal
       Office Building 4, the Cafeteria in Federal Office Building 3, the
       Canteen in Federal Office Building 4, the Sunny Spot lobby in
       Federal Office Building 3 and inside the fenced areas of Federal
       Office Building 3 and Federal Office Building 4;  and failing and
       refusing to seek any necessary GSA approval for such conduct.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Permit our employees to meet with representatives of
       National Treasury Employees Union, or any other labor
       organization, on those out door areas of the Suitland Federal
       Center routinely used by the public and will seek the necessary
       GSA approval to permit such meetings.
 
          (b) Permit Edward Hanlon and other employees to distribute
       literature on behalf of National Treasury Employees Union, or any
       other labor organization, and to solicit membership on behalf of
       National Treasury Employees Union or any other labor organization
       during non-work times in non-work areas, including the lobbies of
       Federal Office Building 3 and Federal Office Building 4, the
       Cafeteria in Federal Office Building 3, the Canteen in Federal
       Office Building 4, the Sunny Spot lobby in Federal Office Building
       3 and inside the fenced areas of Federal Office Building 3 and
       Federal Office Building 4;  and will seek the necessary GSA
       approval for such conduct.
 
          (c) Post at its Suitland Federal Center facilities copies of
       attached Notice "A" on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receipt of such forms they shall be
       signed by a responsible official and 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, Region III, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
    II.  Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Services Labor-Management Relations Statute, the Authority hereby orders
 the General Services Administration shall:
 
    1.  Cease and desist from:
 
          (a) Forbidding and unreasonably restricting Edward Hanlon or
       other employees of Census from distributing literature on behalf
       of National Treasury Employees Union or any other labor
       organization during non-work time in non-work areas of the
       Suitland Federal Center, including the lobbies of Federal Office
       Building 3 and Federal Office Building 4, the Cafeteria in Federal
       Office Building 3, the Canteen in Federal Office Building 4, the
       Sunny Spot lobby in Federal Office Building 3 and inside the
       fenced area of Federal Office Building 3 and Federal Office
       Building 4.
 
          (b) Forbidding and unreasonably restricting Edward Hanlon or
       any other employees of the Bureau of Census from distributing
       literature and soliciting membership on behalf of National
       Treasury Employees Union, or any other labor organizations,
       including the showing of films and video cassettes, during
       non-work time in non-work areas of the Suitland Federal Center,
       including the Sunny Spot Lobby of Federal Office Building 3.
 
          (c) In any like or related manner interfering with, restraining
       or coercing Census Bureau employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Permit Edward Hanlon and other Census Bureau employees to
       distribute literature on behalf of National Treasury Employees
       Union, or any other labor organization, and to solicit membership
       on behalf of National Treasury Employees Union, or any other labor
       organization, during non-work times in non-work areas of the
       Suitland Federal Center, including the lobbies of Federal Office
       Building 3 and Federal Office Building 4, the Cafeteria Federal
       Office Building 3, the Canteen in Federal Office Building 4, the
       Sunny Spot lobby in Federal Office Building 3 and inside the
       fenced areas of Federal Office Building 3 and Federal Office
       Building 4.
 
          (b) Permit Edward Hanlon and any other employees of the Bureau
       of the Census to distribute literature and solicit membership on
       behalf of National Treasury Employees Union, or any other labor
       organization, including the showing of films and video cassettes
       during non-work times in non-work areas of the Suitland Federal
       Center, including the Sunny Spot Lobby of Federal Office Building
       3.
 
          (c) Post at the Suitland Federal Center facilities copies of
       attached Notice "B" on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receipt of such forms they shall be
       signed by a responsible official and shall be posted and
       maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices to employees of Bureau of the Census 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 Authorities Rules and
       Regulations notify the Regional Director, Region III, in writing
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  August 1, 1986
    Washington, D.C.
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Unless otherwise specified, all dates refer to 1985.
 
    (2) A consolidated complaint issued in these two cases prior to the
 consolidation of all four cases for purposes of hearing.
 
    (3) Following a petition for review of the Authority's decision in 18
 FLRA 427, the Court of Appeals for the District of Columbia Circuit
 remanded the case to the Authority for further treatment.  In our
 Decision and Order on Remand, we made further findings and reaffirmed
 the Authority's original Order. Department of Health and Human Services,
 Health Care Finance Administration, 24 FLRA No. 68 (1986), petition for
 review filed sub nom.  American Federation of Government Employees v.
 FLRA, No. 87-1083 (D.C. Cir. Feb. 13, 1987).
 
    (4) We recently found that Census violated the rights of Hanlon and
 other employees to solicit membership on behalf of NTEU during non-work
 time in work areas where there is no disruption of work.  Department of
 Commerce, Bureau of the Census, 26 FLRA No. 40 (1987).
 
    (5) Federal Property Management Regulation 101.20-7, entitled
 "Occasional Use of Public Areas in Public Buildings," is set forth at 41
 CFR 101-20.7.
 
    (6) Hanlon's earlier request to set up a single tripod in all lobbies
 and outside the cafeteria was not included in the August 19 letter.  The
 use of tripods was the subject of our decision in Department of
 Commerce, Bureau of Census, 24 FLRA No. 92, petition for review filed
 sub nom. Hanlon v. FLRA, No. 87-1093 (D.C. Cir. Feb. 17, 1987).
 
    (7) As noted above, part of the complaint also alleged a violation by
 GSA when it denied Hanlon's request to set up tables and chairs and
 disseminate union information in the Sunny Spot lobby.  The Judge
 dismissed that aspect of the complaint because that request involved
 several non-employee union representatives.
 
    (8) Case No. 3-CA-60048 was not consolidated with these cases.
 
    (9) General Counsel of FLRA filed a Motion to Correct the Transcript
 which was unopposed and is hereby granted.
 
    (10) About 2500 to 3000 Census employees work in FOB3 and another 700
 to 1000 Census employees work in FOB4.
 
    (11) These entrances are normally kept locked.
 
    (12) The guard is a contract employee employed by Census.
 
    (13) There are a number of doors into the main lobby, but only one is
 open.
 
    (14) On July 7, 1986, Hanlon filed a Motion to Strike Robinson's
 testimony at the hearing concerning some alleged comments by Hanlon and
 Sanders or, in the alternative, that the hearing be reopened so Hanlon
 can submit evidence to rebut this testimony.  Hanlon based his Motion on
 the fact that he did not become aware of the disputed testimony until
 well after the close of the hearing because, as a witness he had been
 sequestered during all this testimony.  GSA filed a timely opposition to
 motion.
 
    Hanlon had the opportunity to be represented by counsel, but was not.
  The General Counsel of the FLRA was present during the hearing.  In
 these circumstances I conclude Hanlon had the opportunity to rebut the
 disputed testimony.  He was allegedly at the meeting that was the
 subject of the disputed testimony.  I am constrained not to grant the
 motion to strike or to reopen the record to put in additional evidence
 to rebut unfavorable evidence.  To grant the motion would do harm to the
 orderly hearing and disposition of cases.  Further the disputed
 testimony, whether certain derogatory statements were made by Hanlon and
 others to Robinson, is not relevant and no finding about it need be
 made.
 
    Accordingly, Hanlon's Motion is hereby DENIED.
 
    (15) Hanlon, on August 2, 1985 sent a memorandum to Census requesting
 permission to distribute literature in work areas during non-work times.
  This request and Census' response is the subject of Case No. 3-CA-60043
 and will be dealt with in that case.
 
    (16) 40 U.S.C. 285.
 
    (17) These computer displays related to the work of the Census
 employees.
 
    (18) Some employee organizations (e.g. recreation association) have
 occasionally had sales in the Sunny Spot lobby.  Prior to 1985, during
 1984 and before, such organizations also used the FOB3 lobby.
 
    (19) Prior to the passage of the Cooperative Use Act, GSA permitted
 members of the public to use certain areas of public buildings i.e.,
 auditoriums and meeting rooms.  However, lobbies, courtyards, and
 grounds were generally not available for use by the public.
 
    (20) Althought there maybe some distinctions between solicitation of
 union membership and distribution of union literature, the two matters
 are usually considered jointly because they usually occur jointly.  They
 are part of that basic right of employees to communicate among
 themselves and to support a labor organization.  Further the differences
 are insignificant and the same considerations apply to both.  There may
 be some situations in which distribution might present a litter problem
 whereas solicitation might not.  In those distribution cases where
 litter is a problem such a litter problem would have to be taken into
 consideration.  However, the same would apply if solicitation involved
 union membership cards and raised a litter problem.  Normally, however,
 solicitation and distribution rights are identical and the terms are
 substantially interchangeable.  In the subject case, no litter problem
 has been raised.
 
    (21) Excepting, of course, AFGE representatives.
 
    (22) Because it was neither alleged or nor argued I need not decide
 whether the April 10 memorandum violated the Statute because by its
 broad reference to union representatives, not just non-employee union
 representatives.
 
    (23) In so concluding I am not holding that in other circumstances
 such a limitation would be unreasonable nor am I holding that, if
 incidents and disruptions occur when more than one employee engages in
 distribution of union literature, that an agency can not impose a
 limitation on the number of employees who can distribute union
 literature.
 
    (24) Such a situation might involve a public statement by an agency
 official which some non-agency employees see on television, where these
 non-agency employees have no other contact or relationship with the
 agency than observing the agency-official on television.
 
    (25) GSA'S reliance on Department of Health and Human Services,
 Health Care Financing Administration, 18 FLRA No. 59 (1985) remanded sub
 nom AFGE v. FLRA, F . . . 2d . . . , No. 85-1478, (USCA-DC Cir. on June
 17, 1986) is misplaced and that case is inopposite.  In that case HCFA
 was found not to be responsible for permitting union solicitation in
 property HCFA did not control.  There was no complaint against GSA.
 
    (26) Hanlon's requests to show the film and to set up two or three
 tables, etc. did not involve Hanlon's requesting GSA to provide a
 projector, video cassette player or the tables, but rather permission to
 set up such equipment.  Thus, I do not rule on the propriety of
 providing such equipment, where it is not normally set up, etc.
 
    (27) The sales by employee organizations were not shown to have been
 conducted by non-employees.
 
    (28) In his August 19 letter Hanlon made it clear that "as a member
 of the public" did not mean as opposed to employee of Census, rather he
 stated, "I want to make my position absolutely clear.  I am making the
 request as an individual member of the public.  I am not making this
 request on behalf of or as an agent of any labor organization, AFGE, or
 NTEU."
 
    (29) More particularly in his August 19 letter Hanlon referred to
 FPMP 101-20.7, dealing with use of Public Areas in Public Buildings.
 
    (30) See United States Forces Korea/Eighth United States Army, 15
 FLRA 373 (1984).
 
    (31) Areas jointly administered by GSA and Census.
 
    (32) Under the Statute the issue is whether the areas involved are
 "non-work areas" not whether they are "public areas." Thus whether or
 not these were "public areas" is not relevant.  For the purposes of
 Hanlon's request to engage in union activity, the relevant consideration
 is whether the request involved non-work areas.  Accordingly, the fact
 that GSA had not during 1985 given permits, for public use of the
 cafeteria or the main lobbies is irrelevant.
 
 
 
 
 
 
 
 
                                 NOTICE A
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 of TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT maintain a rule that forbids our employees from meeting
 with representatives of National Treasury Employees Union, or any other
 labor organization, on those outdoor areas of the Suitland Federal
 Center routinely used by the public.
 
    WE WILL NOT maintain a rule that forbids or unreasonably restricts
 Edward Hanlon or other employees from distributing literature on behalf
 of National Treasury Employees Union, or any other labor organization,
 and soliciting membership on behalf of National Treasury Employees Union
 or, any other labor organization, during non-work times in non-work
 areas of the Suitland Federal Center, including the lobbies of Federal
 Office Building 3 and Federal Office Building 4, the Cafeteria in
 Federal Office Building 3, the Canteen in Federal Office Building 4, the
 Sunny Spot lobby in Federal Office Building 3 and inside the fenced
 areas of Federal Office Building 3 and Federal Office Building 4;  and
 fail and refuse to seek any necessary GSA approval for such conduct.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL permit our employees to meet with representatives of National
 Treasury Employees Union, or any other labor organization, on those out
 door areas of the Suitland Federal Center routinely used by the public
 and will seek the necessary GSA approval to permit such meetings.
 
    WE WILL permit Edward Hanlon and other employees to distribute
 literature on behalf of National Treasury Employees Union or, any other
 labor organization, and to solicit membership on behalf of National
 Treasury Employees Union, or any other labor organization, during
 non-work times in non-work areas, including the lobbies of Federal
 Office Building 3 and Federal Office Building 4, the Cafeteria in
 Federal Office Building 3, the Canteen in Federal Office Building 4, the
 Sunny Spot lobby in Federal Office Building 3 and inside the fenced
 areas of Federal Office Building 3 and Federal Office Building 4 and
 will seek the necessary GSA approval of such conduct.
                                       (Agency or Activity) . . .
 
    Dated:  . . .
                                       By:  (Signature) . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region 3,
 whose address is:  1111 - 18th Street, NW, Room 700, P.O. Box 33758,
 Washington, DC 20033-0758 and whose telephone number is:  (202)
 653-8452.
 
 
 
 
 
 
                                 NOTICE B
 
              NOTICE TO ALL EMPLOYEES OF BUREAU OF THE CENSUS
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
         WE HEREBY NOTIFY EMPLOYEES OF BUREAU OF THE CENSUS THAT:
 
    WE WILL NOT forbid or unreasonably restrict Edward Hanlon or other
 employees of Census from distributing literature on behalf of National
 Treasury eMployees Union or, any other labor organization, during
 non-work time in non-work areas of the Suitland Federal Center,
 including the lobbies of Federal Office Building 3 and Federal Office
 Building 4, the Cafeteria in Federal Office Building 3, the Canteen in
 Federal Office Building 4, the Sunny Spot lobby in Federal Office
 Building 3 and inside the fenced areas of Federal Office Building 3 and
 Federal Office Building 4.
 
    WE WILL NOT forbid or unreasonably restrict Edward Hanlon or any
 other employees of the Bureau of Census from distributing literature and
 soliciting membership on behalf of National Treasury Employees Union, or
 other labor organization, including the showing of films and video
 cassettes, during non-work time in non-work areas of the Suitland
 Federal Center, including the Sunny Spot lobby of Federal Office
 Building 3.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce Census Bureau employees in the exercise of their rights assured
 by the Federal Service Labor-Management Relations Statute.
 
    WE WILL permit Edward Hanlon and other Census Bureau employees to
 distribute literature on behalf of National Treasury Employees Union, or
 any other labor organization, and to solicit membership on behalf of
 National Treasury Employees Union, or any other labor organization,
 during non-work times in non-work areas of the Suitland Federal Center,
 including the lobbies of Federal Office Building 3 and Federal Office
 Building 4, the Cafeteria in Federal Office Building 3, the Canteen in
 Federal Office Building 4, the Sunny Spot lobby in Federal Office
 Building 3 and inside the fenced areas of Federal Office Building 3 and
 Federal Office Building 4.
 
    WE WILL permit Edward Hanlon and other employees of the Bureau of the
 Census to distribute literature and solicit membership on behalf of
 National Treasury Employees Union, or any other labor organization,
 including the showing of films and video cassettes during non-work times
 in non-work areas of the Suitland Federal Center, including the Sunny
 Spot Lobby of Federal Office Building 3.
                                       (Agency or Activity) . . .
 
    Dated:  . . .
 
    By:  (Signature) . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of i