27:0643(73)CA - GSA and Edward Hanlon, Jim Mercury and Ruth Sanders -- 1987 FLRAdec CA



[ v27 p643 ]
27:0643(73)CA
The decision of the Authority follows:


 27 FLRA No. 73
 
 GENERAL SERVICES ADMINISTRATION
 Respondent
 
 and
 
 EDWARD HANLON, JIM MERCURY 
 AND RUTH SANDERS
 Charging Parties/Individuals
 
                                            Case No. 3-CA-60344
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority in accordance
 with section 2429.1(a) of the Authority's Rules and Regulations, based
 on a stipulation of facts by the parties, who have agreed that no
 material issue of fact exists.  Briefs for the Authority's consideration
 were filed by the Respondent and by the General Counsel.
 
    The complaint alleges that the Respondent, the General Services
 Administration (GSA), violated section 7116(a)(1) of the Federal Service
 Labor-Management Relations Statute (the Statute) by:  (1) maintaining
 regulations pertaining to the application procedure for persons or
 organizations desiring to use public areas under GSA's control, which
 regulations on their face unduly restrict the right of employees under
 section 7102 of the Statute to distribute literature on behalf of a
 labor organization;  and (2) applying these regulations to deny Charging
 Party Hanlon and other employees this statutory right.
 
                              II.  Background
 
    In considering this case, we take official notice of the following
 relevant matters:
 
    GSA has exclusive jurisdiction, custody, and control of all public
 space in Government-owned and leased buildings.  40 U.S.C. Sections 285
 and 490(e).  GSA's regulations generally governing the use of public
 space are part of the Federal Property Management Regulations (FPMRs),
 and are codified at 41 C.F.R. Section 101-20.3.  The Public Buildings
 Cooperative Use Act of 1976 encourages the use of certain public areas
 for cultural, educational, and recreational activities.  40 U.S.C.
 Section 490(a)(17).  GSA's regulations governing the "occasional use of
 public areas in public buildings" are codified at 41 C.F.R. Subpart
 101-20.7.
 
    Section 101-20.309 of the FPMR provides that:
 
          Any person or organization proposing to distribute materials in
       a public area under this section shall first obtain a permit from
       the buildings manager under Subpart 101-20.7 and shall conduct
       distribution in accordance with the provisions of Subpart
       101-20.7.  Failure to comply with those provisions is a violation
       of these regulations.
 
    Section 101-20.701(b) defines "public areas" as "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 specifically leased by any lessee of the public building." Section
 101-20.702 sets forth the application procedure to be followed by any
 person or organization desiring to use a public area.  To obtain a
 permit, the applicant must submit to the buildings manager "a copy,
 sample, or description of any material or item proposed for distribution
 or display." 41 C.F.R. Section 101-20.702(a).  Subject to appeal, a
 permit may be disapproved or cancelled if, among other things, the
 proposed use is a "commercial activity." 41 C.F.R. Section
 101-20.703(a)(1).  Solicitation of union membership or dues authorized
 by occupant agencies under the Statute is not considered a commercial
 activity.  41 C.F.R. Section 101-20.308(c).  Public areas of
 GSA-controlled property may be used for other activities permitted in
 accordance with Subpart 101-20.7 of the regulations.  Id.
 
                           III.  The Stipulation
 
    The parties stipulated, among other things, that since on or about
 March 28, 1986, and continuing to date, GSA has maintained the FPMRs,
 codified at 41 C.F.R. Sections 101-20.3 and 101-20.7, pertaining to the
 application procedure for persons or organizations desiring to use
 public areas under GSA's control for the distribution of literature.
 Further, since that time, GSA has required Hanlon and other employees
 seeking permission to engage in the distribution of literature on behalf
 of a labor organization to comply with these regulations.
 
                       IV.  Positions of the Parties
 
    The General Counsel contends that the Respondent has violated the
 Statute by (1) maintaining regulations which unduly restrict the rights
 of employees to distribute literature on behalf of a labor organization,
 and (2) requiring Hanlon and other employees who desire to distribute
 such literature to comply with those regulations.  The General Counsel
 argues that employees have an unfettered right to distribute literature
 in non-work areas during non-work time, and that the FPMRs, both on
 their face and as applied in this case, severely and unreasonably
 restrict that right.
 
    GSA contends that it is required by statute to regulate the use of
 the public areas of Federal buildings and grounds, and that the
 regulations here in question were promulgated to accomplish that duty.
 GSA states that the regulations were designed to treat alike all those
 who may apply for permits, including Federal employees.
 
    GSA notes that the regulations generally prohibit commercial or
 political solicitation, but allow (1) union membership solicitation if
 it is authorized by the occupant agency under the Statute, and (2)
 solicitation by other groups and individuals if they comply with the
 regulations' guidelines for the issuance of permits.  GSA states that it
 recognizes that employees have basic rights under the Statute to
 distribute literature in non-work areas during non-work time.  According
 to GSA, its regulations are not tantamount to a "no solicitation"
 prohibition or rule, but rather set forth a process which permits and
 facilitates solicitation.  Noting that the regulations in dispute are
 for the specific purpose of carrying out the intent of Congress in
 passing the Public Buildings Cooperative Use Act, GSA argues that the
 regulations are not unlawful on their face.  Further, GSA argues that
 since there has been no allegation or proof that the FPMRs were applied
 disparately or used pretextually to deny statutory rights, requiring
 Hanlon and other employees to adhere to the regulations does not
 interfere with their rights under the Statute.
 
                        V.  Analysis and Conclusion
 
    It is well settled that Federal employees have the right under
 section 7102 of the Statute to distribute union literature in the
 non-work areas of their work locations while they are on non-work time,
 and that agency management's interference with that right generally
 violates section 7116(a)(1) of the Statute.  See Department of Health
 and Human Services, Social Security Administration, Southwestern Program
 Service Center, 21 FLRA No. 93 (1986);  General Services Administration,
 9 FLRA 213 (1982);  Internal Revenue Service, North Atlantic Service
 Center, Andover, Massachusetts, 7 FLRA 596 (1982).  It is also well
 settled that the right of Federal employees to engage in solicitation on
 behalf of a labor organization during non-work time is similarly
 protected by the Statute.  See Department of Commerce, Bureau of the
 Census, 26 FLRA No. 40 (1987) (Census violated the right of Hanlon and
 other Census employees to solicit membership on behalf of a union during
 non-work time in work areas where there is no disruption of work);
 Social Security Administration, 13 FLRA 409 (1983);  Oklahoma City Air
 Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159
 (1981).
 
    In this case, we find that GSA has not violated the statutory right
 of Hanlon or other Federal employees to distribute literature.  GSA has
 a statutory duty imposed by the Public Buildings Cooperative Use Act to
 regulate the use of public areas of public buildings, and the
 regulations here in question were promulgated to implement that Act.
 The Act encourages the use of public areas of public buildings.  40
 U.S.C. Section 601(a).  The stated purpose of the regulations is "to
 create rules and procedures to be followed in permitting the occasional
 use of public buildings(.)" 41 C.F.R. Section 101-20.700.
 
    The General Counsel argues that GSA committed an unfair labor
 practice simply by maintaining these regulations and requiring
 applicants who are Federal employees to comply with them.  We do not
 agree and will not find that these regulations on their face prevent or
 unduly restrict the use of public areas by Federal employees so as to
 violate their right to distribute literature under section 7102 of the
 Statute.  Rather, as we have done in similar cases, we will examine
 whether any particular application of the regulations constitutes an
 unfair labor practice under the Statute.  See, for example, Department
 of Commerce, Bureau of the Census, 26 FLRA No. 88 (1987), and 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 considering the record before us, we conclude that the General
 Counsel has failed to establish by a preponderance of the evidence that
 GSA has committed an unfair labor practice.  The General Counsel does
 not contend, with respect to any particular instance in which GSA
 applied its regulations, that GSA committed an unfair labor practice.
 Absent such particular instances, we find that the